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K
\
' CASES ARGUED AND DECIDED
IN THE
• SUPREME COURT
OF THE
UNITED STATES
OCTOBER TERM. 1919, IN
251, 252, 253 U. S.
BOOK 64
LAWYERS' EDITIOK
*
Complete with Headlines, Hbadnotes» Statements op Cases, Points ani>
Authorities op Counsel, Footnotes, and Parallel Reference^,
BY
THE PUBLISHERS' EDITORIAL STAFF.
THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY,
ROCHESTER, NEW YORK.
1920.
Copyrlgtit 191d,
by
The I4AWVERS Co-oPKRATivE Plblisiiixo Companx
Copyright 1920,
by
The Lawyers Co-operative Piblishing Company
Copyright 1921,
by
Thb Lawyers Co-operatcte Publishixo Compaict
E. R. Andrews Printing Company. Rochost<»r, X. Y.
JUSTICES
OF THE
SUPREME COUET OF THE UNITED STATES
DUDINO THE TlIfE OF THESE BEP0BT8.
CUIEF JUSTICE^
HON. EDWARD DOUGLASS WHITE.
ASSOCIATE JUSTICES,
Hoif. Joseph McKe^na,
UoN. OuvEB Wei^dell Holmes,
HoH. William R. Day,
Hoir. WiLUs Vak Devaxteb,
Hon. Mahlon Pitney,
Hon. James Clabk McBeyxolds,
IIox. Louis Dembitz Brandsis,
II ox. Joux liESi^iN Clabke*
attobxey gexehal,
Hon. a. Mitchell Palmeb.
SOLICITOR OEXEBAL,
Hon. Alex C. Kino
CLEBK,
jA3fEs D. Maheb, Esq.
bepobteb,
Hon. Ebnest Knabbeu
MARSHAL,
Fbank K. Gbeex, Esq.
421274
ALLOTMENT, ETC., OF THE
JUSTICES OF THE SUPBEME COUBT OF THE UNITED STATES
October 80, 1916.
«
T06ETHEB WITH THE DATES OF THEIB COMMISSIONS AND COMMENCEMENT
OF SEBVICE, BESPECnVELT.
For Order of Court Making Allotment, see 61 L. ed., Appendix III. p. 1381.
Names of Justices, and
Whence Appointed.
Associate Justice
OLIVER WENDELL HOLMES,
Massachusetts.
Br Whom
Appointed.
• Associate Justice
LOUIS D. BRANDEIS,
Massachusetts.
Associate Justice
MAHLON PITNEY,
New Jersey.
Chief Justice
EDWARD D. W^ITE,
Louisiana.
Associate Justice
JAMES C. McREYNOLDS,
Tennessee.
Associate Justice
WILLIAM R. DAY,
Ohio.
Associate Justice
JOHN H. CLARKE
Ohio.
Associate Justice
WILLIS VAN DEVANTER,
Wyoming.
Associate Justice
JOSEPH McKENNA.
California.
President
Roosevelt.
President
Wilson.
President
Taft.
President
Taft.
President
Wilson.
President
Roosevelt.
President
Wilson.
President
Taft.
President
McKjnlet.
ClBOUITS.
1914, 1915.
First. -
Me., N. H.,
Mass., R. I.,
Porto Rioo.f
Second.
Vermont, Conn.,
New York.
Third.
New Jerset,
Pa., Del.
Fourth.
Md., Va., N. C
W. Va., S. C.
Fifth.
Ga., Ala., Fla.,
Miss., La., Tex.
Sixth.
Kt., Tenn., Ohio,
Mich.
Seventh.
Ind., III., Wis.
Eighth.
Minn., Iowa, Mo.,
Kan., Ark., Neb.,
Colo., N. D.,
S. D., Utah.
Wyo., Oklahoma,
New Mex.
Ninth.
Cal., Ou., Ne?.,
Mont., .Wash.,
Idaho, Alaska,*
Arizona, Hawaii.*
COMMIS-
SIONEO.
1902.
(Dec. 4.)
1916.
(Junel.)
1912.
(Mar. 13.)
1910.
(Dec. 12.)
1914.
(Aug. 29.)
1908.
(Feb. 23.)
1^16.
(July 24.)
]9]0.
(Dec. 16.)
Sworn
IN.
1902.
(Dec. 8.)
1916.
(June 5.)
1912.
(Mar. 18.)
1910.
(Dec. 19.)
1914.
(Oct. 12.)
1903.
(Mar. 2.)
1916.
(Oct. 9.)
1911.
(Jan. 3.)
1898.
(Jan. 2L)
1898.
(Jan. 26.)
* Territories assigned to circuits by order of the Supreme Court.
t Porto Rico added to first circuit by Act of Congress of January 28, 1916 (38 Stat
at L. 803, chap. 22 1.
4
GENERAL TABLE OF CASES REPORTED.
VOLUMES 251, 252, 253.
A.
JEtna Explosives Co., United States
V. (Mem.) 1023
^tna Lw Ins.. Co. v. Brand (Mem.)
(253 U. S. 496, 40 Sup. Ct.
Rep. 687 ) 1031
Aktieselskabet Korn-Og Foderstof
Rompagniet, Rederiaktie-
bolaget Atlanten v 586
Alabama, Atlantic Coast Line R. Co.
V. (Mem.) 1027
Alaska S. S. Co., United States v. . , 808
United States v. (Mem.) 722
Albers v. United States (Mem.) (253
U. S. 481, 40 Sup. Ct. Rep.
584) 1024
American Brewing Co., United States
V 229
American Car & Foundry Co., Hines
(Edward) Lumber Co. v.
(Mem.) 413
American Fidelity Co., American Guar-
anty Co. V. (Mem.) 414
American Guaranty Co. v. American
Fidelity Co. (Mera.^ (251
U. S. 559, 40 Sup. Ct. Rep.
180) •. 414
American Ore Reclamation Co. v.
Dwight & L. Sintering Co.
(Mem.) (252 U. S. 582, 40
Sup. Ct. Rep, 393; 727
American Sheet Metal Works, United
States use of, National
Surety Go. v. (Mem.) (252
U. S. 690, 40 Sup. Ct. Rep.
393) 731
Ammerman v. United States (Mem.)
(263 U. S. 495, 40 Sup. Ct.
Rep. 687) 1030
Anderson v. United States (Mem.)
(253 U. S. 495, 40 Sup. Ct.
Rep. 687) 1030
Andrews (R. P.) Paper Co., District
of Columbia v. (Mem.) .. 1022
•4 L. ed.
Arbuckle, Arkansas ex rel.. Ft. Smith
Limiber Co. v. (251 U. S.
532, 40 Sup. Ct. Rep. 304) 396
Archer, United States v. ( Mem. ) . . 409
V. United States (Mem.) (251
U. S. 548, 40 Sup. Ct. Rep.
342) 409
Arctic Iron Co. v. Cleveland-Cliffs Iron
Co. (Mem.) (251 U. S. 558,
40 Sup. Ct. Rep. 179) ... 413
Arkansas ex rel. Arbuckle, Ft. Smith
Lumber Co. v 396
T. Mississippi (262 U. S. 344,
40 Sup. Ct. Rep. 333) ... ,. 605
Armour & Co. v. Texas & P. R. Co.
(Mem.) (251 U. S. 661, 40
Sup. Ct. Rep. 56) 410
Axon (J.) & Co., Hudson Xav. Co. t.
(Mem.) 725
Ash Sheep Co. v. United States (2
cases) (262 U. S. 159, 40
Sup. Ct. Rep. 241 ) 507
Askren v. Continental Oil Co. (252 U.
S. 444, 40 Sup. a. Rep.
355) 654
T. SincUilr Ref. Co. (262 U. S.
444, 40 Sup. Ct. Rep. 355) 654
T. Texas Co. (252 U. S. 444, 40
Sup. Ct. Rep. 355) 664
Atchafalaya Land 06. v. Capdevielle
* (Mem.) (262 U. S. 581, 40
Sup. Ct. Rep. 346) 727
Atchison, T. &: S. F. R. Co. v. Indus-
trial Commission (Mem.)
(252 U. S. 583, 40 Sup. Ct.
Rep. 393) 728
Spiller V 810
Atkins V. Garrett (Mem.) (252 U. S.
680, 40 Sup. Ct. Rep. 345) 726
Atlanta Terminal Co. r. United States
(Mem.) (251 U. S. 659, 40
Sup. Ct. Rep. 219 414
Atlanten. The (252 U. S. 313. 40 Sup.
Ct. Rep. 332) 580
5
CASES REPORTED.
Atlantic Coast Line R. Co. v. Alabama
(Mem.) (253 U. S. 489, 40
Sup. Ct. Rep. 485) 1027
Capps V. (Mem.) 726
▼. United States (Mem.) (251
U. S. 546, 40 Sup. Ct. Rep.
342) 408
Atlantic Dredging Co., United States
V 735
Augusta Chronicle Pub. Co., Conklin
V. (Mem.) 1031
Ausplund V. Oregon (Mem.) (251 U.
S. 563, 40 Sup. Ct Rep.
56) 416
Austell, Swann V. (Mem.) ...., 726
B.
Backstay Mach. St, Leather CJo. v. Ham-
ilton (Mem.) (253 U. S.
488, 40 Sup. Ct. Rep. 485) 102G
Backus V. Norfolk Southern R. Co.
(Mem.) (252 U. S. 575, 40
Sup. Ct. Rep. 394) 724
Baender v. United States (Mem.) (262
U. S. 586, 40 Sup. Ct Rep.
396) 729
Bailey, Baltimore & O. S. W. R. Co.
V. (Mem.) 416
Bain r. United States (Mem.) (252
U. S. 586, 40 Sup. Ct. Rep.
396) 729
Baltimore & O. R. Co. v. Coffland
(Mem.) (251 U. S. 545, 40
Sup. Ct. Rep. 218) .. 407
Baltimore & 0. S. VV. R. Co, v. Bailev
(Mem.) (251 U. S. 564, 40
Sup. Ct Rep. 118) 416
Baltimore Dry Dock & Ship Bldg. Co.
V. New York & P. R. S. S.
Co. (Mem.) (251 U. S. 556,
40 Sup. Ct Rep. 178) 412
Bank, Chase Nat, United States v.
(252 U. S. 485, 40 Sup. Ct
Rep. 361) 675
Continental, v. Prentice (Mem.)
(251 U. S. 561, 40 Sup. Ct
Rep. 220; 414
Corsicana Nat., v. Johnson (251
U. S. 68, 40 Sup. Ct. Rep.
82) 141
First Nat., v. Williams (252 U.
S. 504, 40 Sup. Ct Rep.
372) 690
German ia, Richardson v.
(Mem.) (252 U. S. 582, 40
Sup. Ct Rep. 393) 727
National, Evans v. (251 U. S.
108, 40 Sup. Ct Rep. 58) 171
Planters Nat., Wysong & M. Co.
V. (Mem.) (251 U. S. 568,
40 Sup. Ct Rep. 343J 418
iu2:
Bank, Sponge Exch., Commercial Cred-
it Co. v. (Mem.) (253 U. S.
496, 40 Sup. Ct Rep. 587) 1030
Bankers' Mortg. Loan Co., City Tvubt
Co. V. (Mem.) 1019
Bank of North America, Wysong &
Miles Co. V. (Mem.) 4l)i
Barber & Co. t. Tlie K nuts ford
(Mem.) (252 U. S. 586, 40
Sup. C^t. Rep. 390) 72i»
Barr, Kinj; v. (Mem.) ImLJO
Bates V. Bunker (251 U. S. 52t!, 40
Sup. Ct Hep. 247) i!9^
V. Dean (251 t. S. 524, 40 Sup.
Ct Rep. 247) 3^S
V. Dresser (251 U. S. 524, 40
Sup. Ct Rep. 247 )
Dresser v
Beckwith Co. v. Minnesota Stove Co.
(Mem.) (253 U. S. 488, 40
Sup. Ct Rep. 485}
Beckwith (P. D.), Estate of, v. Com-
missioner of Patents (252
U. S. 538, 40 Sup. Ct. Rep.
414)
feeech-Nut Packing Co., Federal Trade
Commission v
Beidler v. United States (253 U. S.
447, 40 Sup. Ct Rep. 564 }
Belknap, W^ashington v. (Mem.) ....
JBen Avon, Ohio Valley Water Co. v. . .
Ohio Valley Water Co. v.
(Mem.,)
Benham, Wilson v. (Mem.)
Berkman v. Caminetti (Mem.) (251
U. S. 540, 40 Sup. Ct. Kep.
118)
Birge-Forbes Co. v. Heye (251 U. S.
317,' 40 Sup. Ct Rep. 160 1
Birmingham Trust & Sav. Co. v.
United States (Mem.) (251
U. S. 550, 40 Sup. Ct Rep.
56) 41u
Bishop, E.\ parte (Mem.) (251 U. .S.
543, 40 Sup. Ct Rep. 17D • 4h.;
Ex parte (Mem.) (252 U. S.
568, 40 Sup. Ct. Rep. 343 ) 72*>
Bivens v. United Timber Corp. (Mem. )
(2 cases) (253 U. S. 495,
40 Sup. Ct Rep. 587) lonti
B Jorge, Curacao Trading Co. r.
(Mem.) lo2h
Blancett v. New Mexico (Mem.) (252
U. S. 574, 40 Sup. Ct Rep.
395) 72a
Bliss (E. W.) Co. v. United States
(253 U. S. 187, 40 Sup. Ct
Rep. 455) 852
Bloch V. United States (Mem.) (253
U. S. 484, 40 Sup. Ct. Rep.
481) 1025
Block, Missouri P. R. Co. v. (Mem.) 1029
10J4
lU<.'<i
41]
4v'5
414
4U5
2>(>
CASKS KEPORTED.
Blumenbtock Bros. Adv. A^eiicy v.
Curtis Pub. Co. (252 U. S.
436, 40 Sup. Ct. Rep. 385)
Bodine, Feigenspan v
Boogli, Western U. Teleg. Co. v
Boebmer v. Pennsylvania R. C/O. (252
U. S. 496, 40 Sup. Ct. Rep.
409)
BolliSy Missouri P. R. Co. v. (Mem.)
Bone V. Marion County (251 U. vS. 134,
40 Sup. Ct. Rep. 96)
l^oone. Gulf & S. I. R. Co. v. (Mom.)
Gulf & S. I. R.'Co. V. (Mem.)
Booth, Scott V. ( Mem. )
Boston West Africa Trading Co. v.
Quaker City Morocco Co.
(Mem.) (253 U. S. 492, 40
Sup. Ct. Rep. 585 )
Bouldin V. United States (Mem.) (253
U. S. 400, 40 Sup. Ct. Rep.
583)
Bowers Southern Dredging Co. v.
Draper (Mem.) (253 U. S.
486, 40 Sup. Ct. Rep. 483)
Bowles. Gulf, C. & S. F. R. Co. v.
(Mem.)
Bowman & B. Co., Postal Teletj.- Cable
Co. V. ( ^lem. )
Boynton, Dempsey v
Bradley, Willem v. (Mem.)
Bragg \. Weaver (251 U. S. 57, 40
Sup. Ct. Rep. 621
Brand, .^tna L. Ins. Co. v. (Mem.) . .
Branson v. Bush (251 U. S. 182, 40
Sup. Ct. Rep. 113)
firiggs V. Union P. R. Co. (Mem.)
(251 U. S. 540, 40 Sup. Ct.
Rep. 118)
Brink, Canfield V. (Mem.)
Britton v. Union Invest. Co. (Mem.)
• (252 U. S. 580, 40 Sup. Ct.
Rep. 34G) ..;
Broadwell v. Carter County (253 U.
. S. 25, 40 Sup. Ct.' Rep. 422)
Brooklyn Eastern Dist. Terminal,
Liverpool, B. & R. P. Steam
Xav. Co. V
Brooks- Scan I on Co. v. Railroad Com-
mission (251 U. S. 396, 40
Sup. Ct. Rep. 183)
Broussard, E.\ parte (Mem.) (251 U.
S. 546, 40 Sup. Ct. Rep.
219)
V. Crawford (Mem.) ( 251 U. S.
.560, 40 Sup. Ct. Rep. 219)
Broward (Xapoleon B.) Drainage
Dist., Everglades Drainage
League v. ( Mem. )
Brown v. I'nited States (^lem.) (251
U. S. 554, 40 Sup. Ct. Rep.
119)
Western U. Teleg. Co. v
Bruce v. Tobin (Mem.) (251 U. S.
552. 40 Sup. Ct. Rep. 50)
64 li. ed.
649
^46
281
680
403
188
415
719
1020
1020
1028
1026
403
415
946
722
135
1031
215
404
1029
726
759
130
323
407
414
418
411
803
410
Buena Vista, Virginia ex rel., Virginia-
Western Power Co. v.
(Mem.) (251 U. S. 567, 40
Sup. Ct. Rep. 179)
Bunker, Bates v
Burke, Union P. R. Co. v. (Mem.) ..
Bumap V. United States (252 U. S.
612, 40 Sup. Ct. Rep. 374)
Bush, Branson v
Byron v. United States (Mem.) (251
U. S. 556, 40 Sup. Ct. Rep.
177)
C.
Caffey, Ruppert f Jacob ) v
Cahill, Great Northern R. Co. v
Caldwell v. Parker (252 U. S. 376, 40
Sup. Ct. Rep. 388 )
Calhoun v. Massie (253 U. S. 170, 40
Sup. Ct. Rep. 474)
California, Kosta Kisin v. (Mem.) ..
Cameron v. United States (252 U. S.
450, 40 Sup. Ct. Rep. 410)
Caminetti, Berkman v. (Mem.) ....
Goldman v. (Mem. )
Camors, Schall v
Camp Bird v. Howbert (Mem.) (252
U. S. 579, 40 Sup. Ct. Rep.
344)
Canadian Northern R. Co. v. Egiren
• (252 U. S. 553, 40 Supfct.
Rep. 402)
Candee, Delaware, L. & W. R. Co. v.
(Mem.)
Canfield v. Brink (Mem.) (253 U. S.
493, 40 Sup. Ct. Rep. 586)
T. Cornelius (Mem.) (253 U. S.
493, 40 Sup. Ct. Rep. 586)
Capdevielle, Atchafalaya Land Co. t.
(Mem.) .'
Capps v. Atlantic 0>a8t Line R. Co.
(Mem.) (252 U. S. 580, 40
Sup. Ct Rep. 345)
Carbon Steel Co. v. Lewell>Ti (251 U.
S. 501, 40 Sup. Ct. Rep.
283)
Carlisle v. Collins (252 U. S. 364, 40
Sup. Ct. Rep. 347) . ..
Carolina-Tennessee Power Co., Hiawas-
see River Power Co. v
Carrollton, Jett Bros. Distilling Co.
V
Carter, Shaffer v
Carter County, Broadwell v
Central Elevator Co. v. Dyason
(Mem.) (262 U. S. 584, 40
Sup. Ct. Rep. 393)
V. Naam Looze Vennoot Schap
(Mem.) (252 U. 8. 584, 40
Sup. Ct. Rep. 393)
Central of Georgia R. Co., Lee v. ....
'central R. Co., Drago v. (Mem.) ...
413
3S8
409
692
215
412
260
7S7
621
843
408
405
416
247
725
713
1027
1029
1020
727
726
375
616
601
421
445
769
728
728
4S2
411
7
CASES REPORTED.
719
719
1028
Chaloner, New York Evening Post Co.
V. (Mem.) 731
Chapa y. United States (Mem.) (252
U. S. 583, 40 Sup. Ct. Rep.
393) ,... 728
Chapman v. Wintroath ( 262 U. S. 126,
40 Sup. Ct. Rep. 234 ) 491
Charles, Virginia & W. V. Coal Co. v.
(Mem.) 720
Chase Nat. Bank, United States v. .. 675
Cheatham Electric Switching Device
Co. V. Transit Development
Co. (Mem.) (252 U. S. 567,
40 Sup. Ct. Rep. 343 )
Cheek, Prudential Ins. Co. v. (Mem.)
Chesapeake S. S. Co. v. Hand (Mem.)
(253 U. S. 491, 40 Sup. Ct.
Rep. 584)
Chesbrough v. Hotchkiss. See Ches-
BBOL'GH V. NOBrrHERN TbUST
Co.
r. Northern Trust Ck). (252 U.
S. 83, 40 Sup. Ct. Rep.
237)
y. Schreiber. See Chbsbbouoh
V. NoBTHEBX Trust Co.
Chicago & A. R. Co., Spiller v
Chicago & E. I. R. Co., Spiller v. . .
Chicago k, N. W. R. Co. v. Van de
Zande (Mem.) (252 U. S.
574, 40 Sup. Ct. Rep. 395)
Chicago, D. & G. B. Transit Co. v.
Moore (Mem.) (251 U. S.
553, 40 Sup. Ct Rep. 118)
Chicago, M. & St. P. R. Co. v. McCaull-
Dinsmore Co. (Mem.) (251
U. S. 549, 40 Sup. Ct. Rep.
219) 409
T. McCaulI-Dinsmore Co. (263
U. S. 97, 40 Sup. Ct. Rep.
504) 801
Chicago, R. I. & P. R. Co. v. Cole (251
U. S. 64, 40 Sup. Ct. Rep.
68) 133
▼. Owens (Mem.) (253 U. S.
480. 40 Sup. Ct. Rep. 485) 1027
y. Road Improv. Dist. (Mem.)
• (252 U. S. 591, 40 Sup. Ct.
Rep. 395) 731
Spiller V 810
V. Swain (Mem.) (252 U. S.
577, 40 Sup. Ct. Rep. 344) 725
y. Ward (252 U. S. 18, 40 Sup.
Ct. Rep. 276) 430
Chin Fong, \\ bite v 797
Chipman v. Jeffery (Thomas B.) Co.
(261 U. S. 373, 40 6up. Ct.
Rep. 172) 314
Cincinnati, C. A E. R. Co. v. Kentucky
(262 U. S. 408,40 Sup. Ct.
Rep. 381) 637
470
810
810
723
411
City Trust Co. v. Bankers' Mortg.
Loan C:k>. (Mem.) (253 U.
S. 473, 40 Sup. Ct. Rep.
481)
CUyeland-Cliffs Iron Co., Arctic Iron
Co. V. (Mem.)
Clifton Forge, Virginia ex rel., Vir-
ginia-Western Power Co. v.
(Mem.) (251 U. S. 667, 40
Sup. Ct. Rep. 179)
Cofi9ajid, Baltimore & O. R. Co. y.
(Mem.)
Cole, Chicago, R. I. & P. R. Co. y. . .
y. Ralph (2 cases) (262 U. 8.
286, 40 Sup. Ct. Rep. 321 )
Collector of Customs, Gutierrez Her-
roanos v. ( Mem. )
Viegelmann (E.) & Co. v.
(Mem.)
Collins, Carlisle y
Erie R. Co. y
. y. Miller (262 U. S. 364, 40
Sup. Ct, Rep. 347)
Columbus, Ohio State Teleph. Co. y.
(Mem.)
Commercial Credit Co. y. Continental
Trust Co. (Mem.) (253 U.
S. 488, 40 Sup. Ct. Rep.
485) ,
y. Sponge Exch. Bank (Mem.)
(263 U. S. 496, 40 Sup. Ct.
Rep. 587 )
Commissioner of Patents, Beckwith
(P. D.) v
Conklin y. Augusta Chronicle Pub. Co.
(Mem.) (253 U. S. 496)
Connors, Erie R. Co. y. (Mem.) . . ^. .
C]k)nsolidated Gas Co., New York y. . .
Consolidated Window Glass Co. y.
Window Glass Mach. Co.
(Mem.) (261 U. S. 658, 40
Sup. Ct. Rep. 179)
Continental Bank y. Prentice (Mem.)
(261 U. S. 661, 40 Sup. Ct.
Rep. 220) .*..
Continental Oil Co., Askren y
Continental Trust Co., Commercial
Credit Co. y. (Mem.)
Cornelius, Canfield y. (Mem.)
Cornell S. B. Co., Morris & C. Dredg-
ing Co. y. (Mem.)
Corsicana Nat. Bank y. Johnson (251
U. S. 68, 40 Sup. Ct. Rep.
82)
Covington, Gilligan y
Virginia ex rel., Virginia- West-
ern Power Co. v. (Mem.)
(251 U. S. 567, 40 Sup. CL
Rep. 179)
Wagner v
Coyne, Lexington ex rel., Purcell v.
(Mem.) (253 U. S. 476, 40
Sup. Ct. Rep. 583)
Crawford, Broussard v. (Mem.) ....
1019
413
413
407
133
667
415
416
616
790
616
417
1027
1030
706
1031
413
870
413
414
654
1027
1029
*
414
141
168
413
157
1021
414
CASES REPORTED.
Cream of Wheat Co. v. Grand Forks
Ckmnty (263 U. S. 325, 40
Sup. Ct. Rep. 658) 931
Cricket S. 8. Co. v. Parry (Mem.)
(262 U. 8. 680, 40 Sup. Ct.
Rep. 345) 726
Culpepper v. Ocheltree (Mem.) (263
U. S. 480, 40 Sup. Ct. Rep.
482) 1023
Curacao Trading Co. v. Bjorge (Mem.)
(253 U. 8. 492, 40 Sup. Ct.
Rep. 584) 1028
Cuatis Pub. Co., Blumenstock Bros.
Adv. Agency r 649
Cuyahoga River Power Co. r. Northern
Ohio Traction k Lig^t Co.
(262 U. S. 388, 40 Sup. Ct-
Rep. 404) 626
Cuyamel Fruit Co. v. Johnson Iron
Works (Mem.) (253 U. S.
485, 40 Sup. Ct. Rep. 481) 1025
D.
Dallas, Gill T. (Mem.) 730
Darkow v. United States (251 U. 8.
466, 40 Sup. Ct. Rep. 269) 360
Davidge v. Simmons (Mem.) (263 U.
S. 477, 40 Sup. Ct. Rep.
583) ; 1021
Davidovich, Superior & P. Copper Co.
V. (Mem.) 407
Daris, Mergenthaler Linotype CJo. v. 255
Day, Thompson v. (Mem.) 401
Dean, Bates v 388
De Four y. United States (Mem.) (253
U. 8. 487, 40 Sup. Ct. Rep.
485) 1026
Delaware & B. B. R. Co. use of Phila-
delphia A R. R. Co., United
States V. (Mem.) 404
Delaware, L. A W. R. Co. ▼. Candee
(Mem.) (253 U. S. 490,
40 Sup. Ct. Rep. 584) ... 1027
V. Thompson (Mem.) (262 U. 8.
590, 40 Sup. Ct. Rep. 396) 731
Tomasco v. (Mem.) 410
Dempsey v. Boynton (253 U. S. 350,
40 -Sup. Ct. Rep. 486) 946
Denver, Farncomb v , 424
Mountain States Teleph. &
Teleg. Co. v. (Mem.) 407
Di Donato, Philadelphia & R. R. Co.
V. (Mem.) 1023
Dillon; Stratheam 8. S. Co. v 607
District of Columbia v. Andrews (R.
P.) Paper Ck). (Mem.)
(263 U. S. 479, 40 Sup. Ct.
Rep. 481) 1022
T. Lisner (Mem.) (263 U. S.
479, 40 Sup. Ct. Rep. 482) 1023
▼. Saks & Co. (Mem.) (253 U.
S. 479, 40 Sup. Ct. Rep.
482) 1022
•4 li. ed.
Donahue v. Donahue (Mem.) (253 U.
S. 476, 40 Sup. Ct. Rep.
683) 1021
Donohoe, Tjosevig v. (Mem.) 73u
Dorau, Twohy v. (Mem.) 405
DoremuB v. United States (Mem.)
(263 U. S. 487, 40 Sup. Ct.
Rep. 483) 1026
Douglas County v. Smith (Mem.) (253
U. S. 474, 40 Sup. Ct. Rep.
485) 1019
Drago V. Central R. Co. (Mem.) (251
U. S. 653, 40 Sup. Ct Rep.
118) 411
Draper, Bowers Southern Dredging Co.
V. (Mem.) 102»i
Ryan (D. W.) Towboat Co. v.
(Mem.) 102«
Dresser v. Bates (251 U. S. 524, 40
Sup. Ct. Rep. 247 ) 388
Batesv 388
Drohen, Rowe v. (Mem.) 730
Dryfoos v. Edwards (251 U. 8. 146,
40 Sup. Ct. Rep. 106) 194
Duart, Simmons v. (Mem.) 408
Dubois Electric Co., Fidelity Title &
T. Co. V 865
Duhne v. New Jersey (251 U. S. 311,
40 Sup. Ct. Rep. 154) ... 280
Dunbar v. New York (251 U. S. 616,
40 Sup. Ct. Rep. 250) 384
Duncan v. United States (Mem.) (261
U- S. 565, 40 Sup. Ct. Rep.
178) 417
Dunkley Co. v. Pasadena Canning Co.
(Mem.) (263 U. 8. 485, 40
Sup. Ct. Rep. 481) 102.>
D'Utassy, Southern P. Co. v. (Mem.) 404
Dwight & L. Sintering Co., American
Ore Reclamation Co. ▼.
(Mem.) 727
Dyason, Central Elevator Co. ▼.
(Mem.) 728
Pennsylvania R. Co. v. (Mem.) 728
£.
Eastern Extension, A. & C. Teleg. CJo.
V. United States (251 U.
S. 355, 40 Sup. Ct Rep.
168) 30.5
Edwards, Dryfoos v 194
Egan, Hartford Poster Adv. Co. v.
(Mem.) 416
^gge^f Canadian Northern R. (3o. . . 713
Eighteenth Amendment Cases. See
Duhne v. New Jerset;
Hawke v. Smith; Rhode
I8LAN1> V. PaLMEB.
Eisner v. Macombcr (252 U. S. 189,
40 Sup. Ct Rep. 189) .. 521
Electric Welding Co., Vandenburgh v.
(Mem.) 1031
9
CASES ll45:i\)RTED.
Kmbry, Oklahoma ex rel., Perrine v.
(Mem.) (253 U. S. 474, 40
Sup. Ct. Rep. 484)
Empire Fuel Co. v. Lyons (Mem.)
(252 U. S. 582, 40 Sup.
Ct. Rep. 393)
Ennis, Houston & T. C. R. Co. v.
( ;Mem. )
Eiislen, Houghton v. (Mem.)
Equi V. United States (.Mem.) (251
U. S. 560, 40 Sup. Ct. Kep.
219)
Equitable Trust Co., Lane v. (Mem.)
Toledo & C. R. Co. v. (Mom.)
Erickson v. Roebling's (John A.)
Sons Co. (Mem.) (252 U.
S. 585, 40 Sup. Ct. Rep.
394) :
Erie R. Co. v. Collins (253 U. S. 77,
40 Sup. Ct. Rep. 450) ..
V. Connors (Mem.) (251 U. S.
557, 40 Sup. Ct. Rep. 179)
V. Szary (253 U. S. 86, 40 Sup.
Ct. Rep. 454 )
Ervien v. United States (251 U. S. 41,
40 Sup. Ct. Rep. 75) ..
Estate of P. D. Beckwith v. Commis-
sioner of Patents (252 U.
S. 538, 40 Sup. Ct. Rep.
414)
Kstopinal, Godc-haux C«. v
Evans v. Gore (253 U. S. ^45, 40 Sup.
Ct. Rep. 550)
▼. National Bank (261 U. S^
108, 40 Sup. Ct. Rep. 58)
Evansville &, B. G. Packet Co. v.
Logan (Mem.) (251 U. S.
643, 40 Sup. Ct. Rep. 218)
Everglades Drainage League v. Brow-
ard (Napoleon B.) Drain-
age Dist. (Mem.) (251 U.
S. 567, 40 Sup. Ct. Rep.
219)
Everitt, Phillips Co. v. (Mem.)
Ex parte Bishop (Mem.) (251 U. S.
543, 40 Sup. Ct. Rep. 179)
Bishop (Mem.) (252 U. S. 568,
40 Sup. Ct. Rep. 343) ..
Broussard (Mem.) (251 U. S.
.546, 40 Sup. Ct. Rep. 219)
Peterson (Mem,)
United States (Mem.) (251 U.
S. 646, 40 Sup. Ct. Rep.
481)
P.
1020
727
728
1025
414
725
411
729
790
413
794
128
705
213
887
171
406
418
726
406
720
407
1032
408
Farncomb v. Denver (252 U. S. 7,
40 Sup. Ct. Rep. 271) 424
Federal Trade Commission v. Beech-
Nut Packing Co. (Mem.)
(253 U. S. 482, 40 Sup. Ct.
. Rep. 584) 1024
10
Federal Trade Commission v. Gratz
(253 U. S. 421, 40 Sup. Ct.
Rep. 572)
Feigenspan v. Bodine (253 U. S. 350,
40 Sup. Ct. Rep. 486) ..
Feltman v. United States (Mem.)
(253 U. S. 494, 40 Sup. Ct.
Rep. 586)
Fetters v. United States (Mem.)
(251 U. S. 554, 40 Sup. Ct.
Rep. 119)
Fidelity & C. Co. v. Schambs (Mem.)
(263 U. S. 494, 40 Sup.
Ct. Rep. 586)
Fidelity Title & T. Co. v. Dubois Elec-
tric Co. (253 U. S. 212, 40
Sup. Ct. Rep. 514)
Firestone Tire & Rubber Co., Munger
V. (Mem.)
First Nat. Bank v. Williams (252 U.
S. 504, 40 l^up. Ct. Rep.
372)
First Sav. & Bkg. Co., "l^ilmer v.
» ( Mem. )
Fleischer, McLaren v. (Mem.)'"^
Forged Steel Wheel Co. v. Lewejlyn
(251 U. S. 611, 40 Sup. Ct.
Rep. ^85)
Ft. Smith & W. R. Co. v. Mjlls (253
U. S. 206, 40 Sup. Ct. Rep.
526)
Ft. Smith Lumljer Co. v. Arkan^aas
ex rel. Arbuckle (251 U.
S. 532, 40 jSup. Ct. Rep.
304)
Foster, Howard v. (Mem.)
France & C. S. S. Corp. v. Storgard
(Mem.) (252 U. S. 585, 40
sip. Ct. Rep. 394)
Frazier, Green v
V. Oregon (Mem.) (252 U. S.
581, 40 Sup. Ct. Rep. 392 i
Scott V !
Freeman (E. H.) Electric Co., Weber
Electric Co. v. (Mem.) ..
l?Yeeman-Sweet Co. v. Luminous Unit
Co. (Mem.) (253 U. S.
480, 40 Sup. Ct. Rep. 482 j
Frey & Son v. Welch Grape Juice Co.
(Mem.) (251 U. S. 551, 40
Sup. Ct. Rep. 06)
Frink v. Okmulgee Window Glass Co.
(Mem.) (261 U. S. 663, 40
Sup. Ct. Rep. 342)
Fuller, Oregon-Washington R. k
Nav. Co. V. (Mem.) ....
Fulton V. Public Service Commission
(Mem.) (261 U. S. 646, 40
Sup. Ct. Rep. 342) ....
993
946
1030
412
1030
S05
727
690
413
1023
3S0
862
396
730
72U
87?
727
883
1023
1025
410
41.")
410
4US
CASKS REPORTED.
G.
Omlbraith v. Vallely (Mem.) (252 U.
S. 576, 40 Sup. Ct. Rep.
344)
Garanflo v. United States (Mem.)
(261 U. S. 565, 40 Sup. Ct.
Rep. 178)
Uarcui V. Townshend (Mem.) (251 U.
S. 567, 40 Sup. Ct. Rep.
392)
Garrett, Atkina v. (Mem.)
Garvan, Gregg v. (Mem. ) .'. .
Kelley v. (Mem. )
Gayon v. McCarthy (252 U. S. 171,
40 Sup. Ct. Rep. 244)
Geary v. Geary (Mem.) (251 U. S.
636, 40 Sup. Ot. Kep. 55)
Georgia v. South Carolina (Mem.)
(253 U. S. 477, 40 Sup.
Ct. Rep. 585)
Gerard, Tennessee ex rel., Mayfield v.
(Mem.) (263 U. S.* 492, 40
Sup. Ct. Rep. 586 )
Germania Bank, Richardson v.
(Mem.)
Gernat, Gibson v. (Mem.)
Gibson V. Gernat (Mem.) (^53 U. 8.
487, 40 Sup. Ct. Rep. 483)
Gill V. Dallas (Mem.) (252 U. 8. 588,
40 Sup. Ct. Rep. 343 \
Gillespie, Washburn v. (Mem.)
Gilligan v. Covington (251 U. S. 104,
40 Sup. Ct Rep. 95)
Gilson V. United States (Mem.) (251
U. S. 655, 40 i^up. Ct. Rep.
119)
Glascock V. McDaniol (Mem.) (2.52
U. S. 676, 40 Sup. Ct. Rep.
395)
Glass ▼. Orme^. See Holtston v.
Ormes.
Globe Works v. United States (Mem.)
(252 U. S. 588, 40 Sup. Ct.
Rep. 480)
Godchaux Co. v. Estopinal (251 U. S.
179, 40 Sup. Ct. Rep. 116)
Goepel ▼. Palmer (Mem.) (252 U. S.
582, 40 Sup. Ct. Rep. .392)
Goldman v. Caminetti (Mem.) (251
U. S. 565, 40 Sup. Ct. Rep.
119)
Goldsmith v. Preqdergast (George G.)
Constr. Co. (262 U. S. 12,
40 Sup. Ct. Rep. 273)
Goodrich (B. F.) Co., Munger v.
(Mem.)
Ooodspted v. Law (Mem.) (251 U. S.
655, 40 Sup. Ct. Rep. 119)
Gordon v. Illinois (^lem.) (251 U. S.
566, 40 Sup. Ct. Rep. 178)
Gore, Evans v.
Gouge V. Hart (Mem.) (251 U. S. 542
40 Sup. Ct. Ttep. ""'"'
64 L. ed.
724
417
418
726
730
730
613
401
1022
1020
727
1026
1026
730
729
168
412
724
730
213
727
416
427
727
412
417
887
170) 406
Graham, Paschall v
Piedmont Power & Light Co. v.
Grand Forks County, Cream of Wheat
Co. V.
Grand Trunk Western R. Co. v.
United States (252 U. S.
112, 40 Sup. Ct. Rep. 309)
Gratz, Federal Trade Commission v.
Gray, Seaboard Air Line R. Co. ▼.
(Mem.) ',
Great Northern R. Co. v. Cahill (253
U. S. 71, 40 Sup. Ct. Rep.
457)
T. Washington (Mem.) (251
U. S. 565, 40 Sup. Ct. Rep.
177)
Green v. Frazier (253 U. S. 233, 40
Sup. Ct. Rep. 499)^
Gregg V. Garvan (Mem.) (25*2 U. S.
588, 40 Sup. Ct. Rep. 396)
Gregory, Kentucky Distilleries &
Warehouse Co. v
Grier Bros. Co., Simmons (John)
Co. v. ( Mem. )
Griffith V. United States (Mem.) (252
U. S. 577, 40 Sup. Ct. Rep.
344)
Guardian Trust Co., Shedd v. (Mem.)
Gulf & S. I. R. Co. V. Boone (Mem.)
(251 U. S. 561, 40 Sup. Ct.
Rep. 220)
T. Boone (Mem.) (252 U. S.
567, 40 Sup. Ct. Rep. 343)
Gulf, C. & S. F. R. C3o. V. Bowles
(Mem.) (251 U. S. 538, 40
Sup. Ct! Rep. 65)
Gutierrez Herraanos v. Collector of
Customs (Mem.) (251 U.
S. 562, 40 Sup. Ct. Rep.
342) ^..
H.
Hagemeyer Trading Co., St. Paul F.
Sl M. Ins. Co. V. (Mem.)
Hallowell v. United States (Mem.)
(251 U. S. 559, 40 Sup. Ct.
Rep. 180)
Hamilton, Backstay Mach. & Leather
Co. V. (Mem.)
▼. Kentucky Distilleries & W.
Co. (251 U. S. 146, 40
Sup. Ct. Rep. 106)
Hancock, Philadelphia & R. R. Co. v.
Hand, Chesapeake S. S. Co. v.
(Mem.)
Hanrahan v. Pacific Transport Co.
(Mem.) (262 U. S. 679, 40
Sup. Ct. Rep. 345)
Hardin- Wyandot Lighting Co. v. Up-
per Sandusky (251 U. S.
173, 40 Sup. Ct. Rep. 104)
Harris v. Kansas (Mem.) (251 U. S.
541, 40 Sup. Ct. Rep. ITS)
855
855
931
484
993
417
787
416
878
730
946
1024
726
1019
415
719
403
415
1031
413
1026
•
194
907
1028
726
210
405
11
CASES REPORTED.
Hart, Gouge V. (Mem.) 406
Hartford Poster Adv. Co. v. Egan
(Mem.) (251 U. S. 564,
40 Sup. Ct. Rep. 56) 416
Hawke t. Smith (263 U. S. 221, 40
Sup. Ct. Rep. 495) 871
T. Smith (268 U. S. 231, 40
Sup. Ct. Rep. 4^) 877
Hays ▼. Seattle (251 U. S. 233, 40
Sup. Ct. Rep. 126) 243
Henry ▼. United States (251 U. S.
393, 40 Sup. Ct. Rep. 186) 322
Herman v. United States (Mem.)
(251 U. S. 558, 40 Sup. Ct.
Rep. 179) 413
Heye, Birge-Forbes Co. v 286
Hiawassee River Power Co. t. Caro-
lina-Tennessee Power Co.
(262 U. S. 341, 40 Sup.
Ct. Rep. 330) 601
Hiltscher, Jones v. (Mem.) 407
Hines, Wallace v 782
Hines (Edward) Lumber Co. v. Amer-
ican Car &. Foundry Co.
(Mem.) (251 U. S. 557,40
Sup. Ct. Rep. 179) 413
Hitchcock V. Scattergood (Mem.) (251
U. S. 564. 40 Sup. Ct. Rep.
118) 416
Holland, Missouri v 641
Horowitz v. United States (Mem.)
(252 U. S. 586, 40 Sup. Ct.
Rep. 396) 729
Horton, Seaboard Air Line R, Co. v.
(Mem.) ..^ 417
Hotchkiss, Chesbrough v 470
Houghton V. Enslen (Mem.) (253 U.
S. 485, 40 Sup. C^t. Rep.
482) 1025
Houston V. Ormes (262 U. S. 469,
40 Sup. Ct. Rep. 369) 667
T. Seaboard Air Line R. O).
(Mem.) (251 U. S. 638,
40 Sup. Ct. Rep. 67) 403
Houston ft T. a R. Co. v. Ennis
(Mem.) (262 U. S. 583,
40 Sup. Ct. Rep. 393) 728
Howard v. Foster (Mem.) (262 U. S.
589, 40 Sup. Ct. Rep. 480) 730
Howbert, Camp Bird v. ( Mem. ) 725
Howell, Lehigh Valley R. Co, v.
(Mem.) 1024
New York C. R. Ck). v. (Mem.) 730
Hoyne, Metropolitan West Side Elev.
R. Co. ▼. (Mem.) 723
Hudson Nav. Co. v. Aron (J.) & Co.
(Mem.) (252 U. S. 678, 40
Sup. Ct Rep. 344) 725
Hughes Tool Co., Reed v. (Mem.) 416
Hull v. Philadelphia A R. R. Co.
( 252 U. S. 475, 40 Sup. Ct.
Rep. 358) 670
12
Hurni Packing Co. v. Mutual L. Ins.
Co. (Mem.) (251 U. S.
566, 40 Sup. Ct Rep. 178)
Hutchinson v. Sperry (Mem.) (252 U.
S. 687, 40 Sup. Ct. Rep.
396)
Illinois, (]k>rdon v. ( Mem. )
Tananevicz v. ( Mem. )
Illinois C. R. Co., Spiller v
Illinois' Commercial Men's Asso.,
Pembleton v. (Mem.) ..
Pembleton v. (Mem.)
Industrial Acci. O>mmi8sion, South-
em P. Co. V.
Industrial Commission, Atchison, T. &
S. F. R. CJo. V. (Mem.) ..
Ins. Co., JEtna, L., v. Brand (Mem.)
(263 U. S. 496, 40 Sup.
Ct. Rep. 687)
Mutual L., Hurni Packing Co.
V. (Mem.) (261 U. S. 556,
40 Sup. Ct Rep. 178)
Penn Mut. L., t. Lederer (262
U. S. 623, 40 Sup. Ct. Rep.
397>
Prudential^ v. Cheek (Mem.)
( 252 U. S. 667, 40 Sup. Ct.
Rep. 343)
St. t*aul F. & M., V. Hagemeyer
Trading Co. (Mem.) (253
U. S. 497, 40 Sup. Ct. Rep.
688)
St. Paul P. A M., V. Thomsen
(Mem.) (263 U. S. 497, 40
Sup. Ct Rep. 588)
International Nickel Co., New York
V. (Mem.)
Interstate • Commerce Commission,
United States ex rel.
Kansas City Southern R.
Co. V
InterUrban R. Co. ▼. Smith (Mem.)
(251 U. 8. 562, 40 Sup. Ct
Rep. 57)
▼. Smith (Mem.) (253 U. S. 499,
. 40 Sup. Ct. Rep. 482)
Iowa, Taft (C. C.) Co. ▼. (Mem.)
J.
412
730
417
720
810
409
1032
258
728
1031
412
698
719
1031
1031
418
517
410
1032
720
Jay ▼. Weinberg (Mem.) (262 U. S.
586, 40 Sup. Ct. R«p. 396) 729
Jeflfery (Thomas B.) (3o., Chipman v. 314
Jenkins, Union P. R. Co. v. (Mem.) 731
Jeong Qaej How ▼. White (Mem.)
(261 U. 8. 669, 40 Sup. Ct.
Rep. 180) 414
Jett Bros. Distilling Co. v. Carrollton
(252 U. S. 1, 40 Sup. Ct.
Rep. 256) 421
CASES RKPORTED.
J. J. HiU, The, Smith v. (Mciu.)
(261 U. S. 654, 40 Sup. Ct.
Rep. 119) "
Job (W. & S.) ib Co., Oneida NaT.
Corp. V ^ . . .
JohnsoD, CorsicaDa Nat. Bank t
United States ex rel., v. Payne
( 253 U. S. 209, 40 Sup. Ct.
Rep. 613)
Johi.8on Iron Works, Cuyamel Fruit
Co. V. (Mem.)
Jonea ▼. Hiltscher (Mem.) (251 U. S.
545, 40 Sup. Ct. Rep. 218)
Joalin V. Providence (Mem.) (251 U.
S. 535, 40 gup. Ct. Rep.
55)
JoBlin Mfg. Co. V. Providence (Mem.)
(251 U. S. 535, 40 Sup.
Ct. Rep. 55)
Joyee (William T.) Co., Louisiana v.
(Mem.)
K.
Kane Glass Co. v. Window Glass Mach.
Co. (Mem.) (251 U. S.
668, 40 Sup. Ct. Rep. 179)
Kansas, Harris v. ( Mem. )
Kansas City Bolt k Nut Co. t. Kansas
City Light & P. Co.
(Mem.) (262 U. 8. 671, 40
Sup. Ct. Rep. 392)
Kansas City Light k P. Co., Kansas
City Bolt k Nut Co. v.
(Mem.)
Kansas City, M. ft O. R. Co. v. United
States (261 U. S. 326, 40
Sup. a. Rep. 162)
Kansas City Southern R. Co. t. Smith
(Mem.) (261 U. S. 552, 40
Sup. Ct. Rep. 56)
T. United States (252 U. S.
147, 40 Sup. Ct. Rep. 267)
United States ex rel., v. Inter-
state Commerce Commis-
sion (262 U. S. 178, 40
Sup. Ct. Rep. 187)
Keith, Kilmer v. (Mem.)
Kelley v. Garvan (Mem.) (2o2 U. S.
688, 40 Sup. ( t. Rep. 396)
Kenney ▼. Loyal Order of Moose (Su-
preme Lodge) (262 U. S.
411, 40 Sup. Ct. Rep. 371)
Kentucky, Cincinnati^ C. ft E. R. Co.
V, . ,
South Covington ft C. Street
Kentucky Distilleries ft Warehouse
Co. V. Gregory (263 U. S.
350, 40 Sup. Ct. Rep. 486)
Hamilton v
KeowB ▼. Reown (Mem.) (251 U. S.
567, 40 Sup. Ct Rep. 218)
€4 Ii. ed.
411
697
141
863
1025
407
401
401
1024
413
406
721
721
290
410
600
517
725
730
638
637
631
946
194
417
Keppelmann v. Palmer (Mem.) (252
U. S. 581, 40 Sup. Ct. Rep.
392) 727
Kilmer ▼. First Sav. ft Bkg. Co.
(Mem.) (251 U. S. 556, 40
Sup. Ct. Rep. 179) 413
V. Keith (Mem.) (262 U. S.
678, 40 Sup. Ct. Rep. 344) 725
King ▼. Barr (Mem.) (253 U. S.
484, 40 Sup. Ct. Rep. 481) 1025
Kings County Trust Co., Queens Land
ft Title Co. V. (Mem.) 722
Kinney v. Plymouth Rock Squab Co.
(Mem.) (253 U. S. 474, 40
Sup. Ct. Rep. 484 ) ...... 1020
Kittaning Iron ft Steel Mfg. Co.,
Pennsylvania R. Co. v. . . 928
Knickerbocker Ice Co. v. Stewart
(263 U. S. 149, 40 Sup. Ct.
Rep. 438) 834
Knutsford, The, Barber ft Co. ▼.
(Mem.) 729
Kollman v. United States (Mem.)
(253 U. S. 489, 40 Sup. a.
Rep. 485) 1027
Kosta Kisin v. California (Mem.)
(261 U. S. 647, 40 Sup. Ct.
Rep. 480) 408
Krichman t. United States (Mem.)
(262 U. S. 576, 40 Sup. Ct.
Rep. 344) 724
Kruse ▼. United States (Mem.) (253
U. S. 494, 40 Sup. Ct. Rep.
686) ' 1029
Kwock Jan Fat v. White (263 U. S.
464, 40 Sup. Ct. Rep. 566) 1010
Lane v. Equitable Trust Co. (Mem.)
(262 U. S. 678, 40 Sup. CJt.
Rep. 344) 725
Lang ▼. New York C. R. Co. (Mem.)
(263 U. S. 479, 40 Sup. Ct.
Rep. 482) 1023
Laughter v. United States (Mem.)
(261 U. S. 561, 40 Sup. Ct.
Rep. 220) 415
Law, Goodspeed v. (Mem.) 412
Leary v. United States (253 U. S. 94,
40 Sup. Ct. Rep. 446) 798
Le Crone v. McAdoo (253 U. S. 217,
40 Sup. Ct. Rep. 510) 869
Lederer t. Northern Trust Co.
(Mem.) (253 U. S. 487, 40
Sup. Ct. Rep. 483) 1026
Penn Mut. L. Ins. Co. t. .... 698
Worth Bros. Co. v 377
Lee ▼. Central of Georgia R. Co.
(252 U. S. 109, 40 Sup. Ct.
Rep. 254) 482
Malleable Iron Range Co. ▼.
(Mem.) 415
IS
CASES REPORTED.
Hart, Gouge v. ( Mem. ) 406
Hartford Poster Adv. Co. v. Egan
(Mem.) (261 U. S. 564,
40 Sup. Ct. Rep. 56) ... . 416
Hawke t. Smith (263 U. S. 221, 40
Sup. Ct. Rep. 496) 871
T. Smith (268 U. S. 231, 40
Sup. Ct. Rep. 4^) 877
Hays T. Seattle (25X U. S. 233, 40
Sup. Ct. Rep. 125) 243
Henry v. United States (261 U. S.
393, 40 Sup. Ct. Rep. 186) 322
Herman v. United States (Mem.)
(251 U. S. 568, 40 Sup. Ct.
Rep. 179) 413
Heye, Birge-Forbes Co. v 286
Hiawassee River Power CJo. ▼, Caro-
lina-Tennessee Power Co.
(262 U. S. 341, 40 Sup.
Ct. Rep. 330) 601
Hiltscher, Jones V. (Mem.) ,. 407
Hines, Wallace v 782
Hines (Edward) Lumber Co. v. Amer-
ican Car & Foundry Co.
(Mem.) (261 U. S. 657, 40
Sup. Ct. Rep. 179) .... 413
Hitchcodc v. Scattergood (Mem.) (251
U. S. 564, 40 Sup. Ct. Rep.
118) 416
Holland, Missouri v 641
Horowitz V. United States (Mem.)
(252 U. S. 586, 40 Sup. Ct.
Rep. 396) 729
Horton, Seaboard Air Line R. Co. v.
(Mem.) ..^ 417
Hotchkiss, Chesbrougb v 470
Houghton v. Enslen (Mem.) (253 U.
S. 485, 40 Sup. Ct. Rep.
482) 1025
Houston V. Ormes (262 U. S. 469,
40 Sup. Ct Rep. 369) 667
▼. Seaboard Air Line R. Co.
(Mem.) (251 U. S. 638,
40 Sup. Ct. Rep. 67) 403
Houston ft T. a R. Co. v. Ennis
(Mem.) (262 U. S. 583,
40 Sup. Ct. Rep. 393) 728
Howard v. Foster (Man.) (252 U. S.
589, 40 Sup. Ct. Rep. 480) 730
Howbert, Camp Bird v. ( Mem. ) 725
Howell, Lehigh Valley R. Co. v.
(Mem.) 1024
New York C. R. Co. v. (Mem.) 730
Hoyne, Metropolitan West Side Elev.
R. Co. V. (Mem.) 723
Hudson Kav. Co. ▼. Aron (J.) & (I!o.
(Mem.) (252 U. 8.678,40
Sup. Ct. Rep. 344) 725
Hughes Tool Co., Reed t. (Mem.) 416
Hull T. Philadelphia ft R. R. Co.
1 252 U. S. 475, 40 Sup. Ct.
Rep. .358) 670
12
Hurni Packing Ck>. v. Mutual L. Ins.
Co. (Mem.) (251 U. S.
566, 40 Sup. Ct. Rep. 178) 412
Hutchinson v. Sperry (Mem.) (252 U.
S. 687, 40 Sup. Ct. Rep.
396) 730
Illinois, Qordon v. (Mem.) 417
Tananevicz v. (Mem.) 720
niinois C. R. Co., Spiller v 610
Illinois* Commercial Men's Asso.,
Pembleton v. (Mem.) 409
Pembleton v. (Mem.) 1032
Industrial Acci. Commission, South-
em P. Co. v 258
Industrial Commission, Atchison, T. ft
S. F. R. Co. V. (Mem.) .. 728
Ins. Co., Mtna, L., v. Brand (Mem.)
(263 U. S. 496, 40 Sup.
Ct. Rep. 687) 1031
Mutual L., Hurni Packing Co.
V. (Mem.) (261 U. S. 556,
40 Sup. Ct. Rep. 178) .... 412
Penn Mut. L., ▼. Lederer (262
U. S. 623, 40 Sup. Ct. Rep.
397> 698
Prudential, v. Cheek (MeuL)
( 252 U. S. 667, 40 Sup. Ct.
Rep. 343) 719
St. taul F. ft M., V. Hagemeyer
Trading Co. (Mem.) (253
U. S. 497, 40 Sup. Ct. Rep.
688) 1031
St. Paul P. ft M., V. Thomsen
(Mem.) (253 U. S. 497, 40
Sup. Ct. Rep. 688 ) 1031
International Nickel Co., New York
V. (Mem.) 418
Interstate - Commerce Commission,
United States ex rel.
Kansas City Southern R.
Co. V 517
Inter-Urban R. Co. v. Smith (Mem.)
(261 U. 8. 662, 40 Sup. Ct.
Rep. 57) 410
▼. Smith (Mem.) (263 U. S. 499,
. 40 Sup. Ct. Rep. 482) ... 1032
Iowa, Taft (C. C.) Co. ▼. (Mem.) 720
J.
Jay ▼, Weinberg (Mem.) (262 U. S.
686, 40 Sup. Ct. Rep. 396) 729
Jeffery (lliomas B.) (3o.« Chipman v. 314
Jenkins, Union P. R. C6. t. (Mem.) 731
Jeong Quey How t. White (Mem.)
(261 U. S. 669, 40 Sup. Ct.
Rep. 180) 414
Jett Bros. Distilling Co. t. Carrollton
(262 U. S. 1, 40 Sup. Ct
Rep, 256) 421
CAS£8 REPORTED.
iCergeatb&ler Linotype Co. v. D»Ws
<261 U. S. 256, 40 8u^ Ct
Rep. 133)
Metropolitan West Side Elev. R. Oo.
T. Hoyne (Mem.) (252 U.
8. 573, 40 Sup. Ct. Rep.
395)
T. Sanitary Diet. (Mem.) (262
U. 8. 673, 40 Sup. Ct. Rep.
396)
MSdiigmii C. R. Co. y. Owen (Mark)
k Co. (Mem.) (253 U. S.
481, 40 Sup. Ct. Rep. 483)
Mill Creek k M. H. Nav. & R. Co. use
of Philadelphia k R. R. Ck>.,
United States v. (Mem.) . .
Miller, Collins ▼
▼. United States (Mem.) (252
U. S. 684, 40 Sup. Ct Rep.
394) .;...v
MilK Ft SmiUi ft W. R. Co. ▼
Milwaiikte, WIsoonsin ex reL, Mil-
waukee Electric R. k Light
Co. ▼. (262 U. S. 100, 40
Sup. Ct. Rep. 306)
Milwaukee Electric R. k Light Co. t.
Wisconsin ex reL Mil*
waukee (262 U. S. 100, 40
Sup. Ct. Rep. 306) ..... . .
Misnesota v. Wisconsin (262 V. a
279, 40 Sup. Ct. Rep. 318)
Mlaneeeta Store Co., Beekwith Co. ▼.
(Mem.)
MIm^, LvsT. (Mem.) ••«.k.....v...
Wiifcieeippi, Arkansas t.
Missood T. Holland (262 U. 8. 416,
40 Sup. Ct Rep. 382) ..
^ reL Sedalia ▼• Public Service
ComiQission (Memi) (251
U. 8. 547, 4^ Sup. 6l Hep.
342) ...., .,...,
Missouri, K. & T. R. O)., Spiller ▼• ••
» , V. Zuber (Mem.) (251 U. S.
549, 40 Sup. Ct Rep^A^Q)
Missouri P. K. Co. v. Block (Mem.)
(253 U. S. 493, 40 Sup. Ct
Rep. 586) .,...!
n BoUis (Mem.) (251 U. S.
538, 40 Sup. Ct. Rep. 67)
T. Monroe County Road Inlprovv
Dist (Mem.) (262 U. S.
591, 40 Sup. Ct Rep. 395)
Spiller y
Mohney, New York C. R. Co. v
Monroe 0>unty Road Improv. Dist,
Missouri P. R. Co. v.
( Mem. ) •*..•'...••
Meor, Parsons y. (Mero.) ...w»
Msore, Chicago, D. & O. B. Transit Co.
y. (Mem.) *
St Louis Brewing Asso. y. ....
Wartell y. (Mem.)
•4 L. ed.
266
723
723
1023
404
616
728
862
476
476
666
1027
1027
606
641
408
810
409
1029
403
731
810
602
731
721
411
Moore k Tierney, Roxford Knitting
Co. V. (Mem.)
Moore (William) Knitting 0>., Rox-
ford Knitting Co. v.
(Mem.)
Mor, Porto Rioo R. Light ft P. Co. y.
Morgan y. Louisiana (Mem.) (263 U.
8. 498, 40 Sup. Ct. Rep.
688)
Morosco, Manners y
Morris k C. Dredging Co. y. Cornell
8. B. 0>. (Mem.) (251 U.
S. 559, 40 Sup. Ct Rep.
180)
Mountain Gkis Ck>., V. k S. Bottle Co.
y. (Mem.)
Mountain States Teleph. k Teleg. Co.
y. Denyer (Mem.) (261 U.
S. 646, 40 Sup. Ct Sep.
219) ....,
Moyers, Newman y
Munday y. Wisconsin Trust Co. (262
U. 8. 499, 40 Sup. Ct Rep.
365)
Munger y. Firestone Tire k Rubber Co.
(Mem.) (262 U. & 682, 40
Sup. Ct Rep. 398)
T. Ck>odri(di (B. F.) Co. (Mem.)
(262 U. 8. 662, 40 Sup. C^
Bep. 892)
Mutual L. Ins. Ok, Humi Paoking Ck>.
T. (Mem.) ••••••
K.
1031
1032
944
1032
590
414
406
407
849
•84
727
727
412
Naitm Lpoze Vennoot Seluip, Fennsyl*
yania R. Co. t. (Mem.)
<2 cases)
Nadeau y. Union P. R. Cp. (263 U. 8.
442, 40 Sup. Ct Rep. 670
Napa Valley Eleetrio Co. y. Railroad
Commisaion (251 U. 8, 366,
40 Sup. Ct Rep. 174) ....
National Bank, Eyans y
National Council, J. 0. U. A. M. y.
Nicodemus (Mem.) (261 U.
U. 8. 536, 40 Sup. Ct. Rep.
66)
National Lead 0>. y. United States
(252 U. 8. 140, 40 Sup. Ct.
Rep. 237)
National Prohibition Cases (253 U. S.
350, 40 Sup. Ct. Rep. 486)
National Surety Co. y. Leflore County
(Mem.) (253 U. 8. 490, 40
Sup. Ct. Rep. 583)
United States y. (Mem.)
T. United States use of Amer-
ican Sheet Metal Works
(Mem.) (252 U. S. 690, 40
Sup. Ct. Rep. 393)
946 I National Trust k Credit Co., Orcutt
'415 (F. IT.) k Son C^o. (Mem.)
728
1002
810
171
402
496
946
1028
724
731
102H
lA
CASKS KKl^RTKD.
r>*e T. Minor (Mem.) (253 U. S.
488, 40 Sup. Ct. Rep. 485) 1027
Leflore Couuty, National Surety Co.
X. (Mem.) 1028
Lehigh Valley R. Co. v. Howell
(Mem.) (253 U. S. 482, 40
Sup. Ct. Rep. 482) 1024
T. Royal Indemnity Co.
(Mem.) (253 U. S. 483, 40
Sup. Ct. Rep. 482) 1024
Lemke V. United States (251 U. S.
466, 40 Sup. Gt. Rep. 259) 360
Levy, Weidhorn v » 898
Lewellyn, C arbon Steel Co. v .'575
Forged Steel Wlicel Co. v 380
Lexington ex rel. Coyne, Rurcell v.
(Mem.) 1021
Virginia ex rel., Virginia- West-
ern Power Co. v. (Mem.)
(251 U. S. 557, 40 Sup. Ct.
Rep. 179) 413
Leyland (Frederick) & Co., Staneil
V. (Mem.) 1028
Lincoln, Lincoln Gas & £. L. Co. v.
(Mem.) 1022
Lincoln Gas & E. L. Co. v. Lincoln
(Mem.) (253 U. S. 477, 40
Sup. Ct. Rep. 585 ) 1022
Lindsay v. United States (Mem.)
(252 U. S. 583, 40 Sup. Ct.
Rep. 303) 727
Lisner, District of Columbia v.
(Mem.) 1023
Liverpool, B. & R. P. Steam Nav.
Co. V. Brooklyn Eastern
Dist. Terminal' (251 U. S.
48, 40 Sup. Ct. Rep. 66) 130
L'^cran, Evansvillc & B. G.' Packet Co.
V. (Mem.) 406
Los Angeles v. Los Angelas Gas & B.
Corp. (251 U. S. 32, 40
Sup. Ct. Rep. 76) 121
Los Angeles Gas & E. Corp., Los
Angeles v 121
Louie V. United States (Mem.) (2.53
U. S. 482, 40 Sup. Ct. Rep.
687) 1024
Loui-iiana v. Joyce (William T.) Co.
(Mem.) (253 U. S. 484, 40
Sup. Ct. Hv[K 481) 1024
Morgan V. (Mem.) 1032
Love, Oklahoma Operating Co. v. .. 596
Love County, Ward v 751
Loyal Order of Moose. (Supreme
Lodge), Kenney v. 638
Lucas, Thompson v 612
Luminous Unit Co., Freeman-Sweet
Co. V. (Mem.) 1025
Lyons, Empire Fuel Co. T. (Mem.) 727
M.
MoAdoo, Le Crone v 800
14
McAdoo V. Ormes. See Houston v.
Obmes.
McCarthy, Gayon v •
Smedley v. (Mem. )
McCauU-Dinsmore Co., Chicago, M. &
St. P. R. Co. v. (Mem.) ..
Chicago, M. Jc St. P. U. Co. v.
McCay Engineering Co. v. United
States (Mem.) (252 U. S.
571, 40 Sup. Ct Rep. 392)
McCloskey v. Tobin (252 U. S. 107, 40
Sup. Ct. Rep. 306)
McDaniel, Glascock V. (Mem.)
Mackay, Norma Min. Co. v. (Mem.)
MacKnight v. United States (Mem.)
( 253 U. ^. 493, 40 Sup. Ct.
Rep. 586)
V. United States (Mem.) (251
U. S. 543, 40 Sup. Ct Rep.
180)
McLaren v. Fleischer (Mem.) (263 U.
S. 479, 40 Sup: Ct Rep.
482)
McLaughlin v. United States (Mem.)
(251 U. S. 541, 40 Sup. Ct
Rep. 178)
MacMillan, United States v
MaconAer, Eisner v
Magma Copper Co. v. Rissala (Mem.)
(251 U. S. 565, 40 Sup. Ct.
Rep. 177)
Maguire v. Trefry (253 U. S. 12, 40
Sup. Ct. Rep. 417)
Mail Divisor Cases. See Noethebn P.
R. Co. V. United States.
Malleable Iron Range Co. v. Lee
(Mem.) (251 U. S. 562, 40
Sup. Ct Rep. 342)
Manitowoc Products Co., Sawyer v. . .
Manners v. Moroseo (252 U. S. 317, 40
Sup. Ct Rep. 335)
Marion County, Bone v
Marshall v. New York (Mem.) (252
U. S. 577, 40 Sup. Ct Rep.
396) •
Maryanne Shipping Co. v. Ramberg
Iron Works (Mem.) (252
U. S. 580, 40 Sup. Ct Rep.
345) .,
Maryland Casualty Co. v. United
States (251 U. S. 342, 40
Sup. Ct Rep. 155 )
Mason v. Shannon (^fem.) (2.")2 U. S.
572, 40 Sup. Ct. Rep. 392)
Massie, Calhoun v
May field v. Tennessee ex rel. Gerard
(Mem.) (253 U. S. 492, 40
Sup. Ct. Rep. 586)
Maynard v. United Thacker Coal Co.
(Mem.) (251 U. S. 555, 40
Sup. Ct Rep. 119)
Meccano v. Wanamaker (253 U. S.
136, 40 Sup. Ct Rep. 463)
513
416
409
801
721
481
724
412
1029
406
1023
405
857
621
417
739
415
946
690
18S
725
72G
297
I'll
843
1020
412
822
CASES REPORTED.
Mergeothaler Linotype Co. v. DtmB
(251 U. S. 256, 40 8u^. Ct.
Rep. 133)
Metropolitan West Side Elev. H. Oo.
T. Hoyne (Mem.) (262 U.
8. 573, 40 Sup. Gt. Rep.
395)
▼. Sanitary Dist. (Mem.) (262
U. 8. 573, 40 Sup. Ot. Rep.
395)
Miehigan C. R. Co. ▼. Owen (Mark)
k Co. (Mem.) (253 U. S.
481, 40 Sup. Ct. Rep. 483)
Mill Creek k M. H. Nav. & R. Co. use
of Philadelphia k R. R. Co.,
United States v. (Mem.) . .
Miller, Collins ▼
▼. United States (Mem.) (252
U. S. 684, 40 Sup. Ct Rep.
394) i...v
Milk, Ft SmiUi ft W. R. Co. ▼.
MUwaukee, Wisoonsin ex reL, Mil-
waukee Ekotric R. k Light
Co. T. (252 U. S. 100, 40
Sup. Ct. Rep. 306)
Milwaukee Electric R. k Light Co. ▼.
Wisconsin ex rel. BCil*
waukee (252 U. S. 100, 40
6«p. Ct. R^. 306) .;.'....
MiMiesota v. Wisconsin (252 U. &
27S, 40 Sup. Ot. Rep. 318)
Mianesota Store Co., Beckwith Co. -r.
(Mem.) ;.i;....
Miaor, L0eT. (Mem.) ••».»..... v.. .
Misluseippi, Arkansas t
Misaoiyei w. Holland (252 U. S. 416,
40 Sup. Ct Rep. 382) ..
ex rel. Sedalia ▼• Public Service
Commission {MemI) (251
U. 8. 547, 4^ Sup. Ct^ Hep.
,342) , •••■•i-'V
Missouri, K. k T. R. Co., Spiller t. ..
» , V. Zubcr (Mem.) (251 U. 8.
549, 40 Sup. Ct Repol3[Q)
Missouri P. R. Co. v. Block (Hem.)
(253 U. S. 493, 40 St;^. Ct
Rep. 586) ...!..•..
f^ BoUis (Mem.) (251 U. 8.
538, 40 Sup. Ct. Rep. 57)
T. Monroe County Road Inlprovv
Dist (Mem.) (252 U. S.
691, 40 Sup. Ct Rep. 395)
Spiller ▼
ICohney, New York C, R. Co. v. . • . . . .
Monroe County Road Improv. Dist,
Missouri P. R. Co. v.
(Mem.) ;.•.'
Mebr, Parsons v. (Mem.)
Meore, Chicago, D. & G. B. Transit Co.
V. (Mem.)
St Louis Brewing Asso. v, ....
Wartell v. (Mem.)
•4 L. ed.
255
723
723
1023
404
616
728
862
476
476
656
1027
1027
605
641
408
810
409
1029
403
731
810
602
731
721
411
946
'415
Moore k Tiernej% Roxford Knitting
Co. V. (Mem.)
Moore (William) Knitting Co., Rox-
ford Knitting Co. v.
(Mem.)
Mor, Porto Rioo R. Light ft P. Ox v.
Morgan v. Louisiana (Mem.) (263 U.
8. 498, 40 Sup. Ct. Rep.
588)
Morosco, Manners v
Morris k C. Dredging C^. v. Cornell
8. B. Co. (Mem.) (251 U,
8. 559, 40 Sup. Ct Rep.
180)
Mountain Gas Co., V. k 8. Bottle Co.
V. (Mem.)
Mountain States Teleph. k Teleg. Co.
y. Denver (Mem.) (251 U.
is. 545, 40 Sup. Ct Bap.
219) ,•.,..,.,
Moyers, Newman ▼
Munday v. Wisconsin Trust Oo. (252
U. S. 499, 40 Sup. Ot Rep.
365)
Munger v. Firestone Tire k Rubber Oo.
(Mem.) (262 U. 6. 682, 40
Sup. Ot Rep. 398)
T. Ck>odri(di (B. F.) Ck>. (Mem.)
(262 U. 8. 662, 40 Sup. C^
Bep. 892)
Mutual L. Ins. Co., Humi Paoking Ck>.
T, fMem.) •••••••
N.
Naitm Looze Vennoot Sduip, Pennsyl*
vania R. Co. t, (Mem.)
<2 cases)
Nadeau ▼. Union P. R. Op. (253 U. 8.
442, 40 ^up. Ct Rep. 670
Napa Valley Sleetric Co. ▼. Railroad
Commission (251 U. 8. 366,
40 Sup. Ct. Rep. 174) ....
National Bank, Evans v
National Council, J. O. U. A. M. v.
Nicodemus (Mem.) (251 U.
U. 8. 536, 40 Sup. Ct. Rep.
66) ;
National Lead Ck>. v. United States
(252.U. 8. 140, 40 Sup. a.
Rep. 237)
National Prohibition Cases (253 U. 8.
. 350, 40 Sup. Ct. Rep. 486)
National Surety Co. v. Leflore County
(Mem.) (253 U. 8. 490, 40
Sup. Ct Rep. 583)
United States v. (Mem.)
T. United States use of Amer-
ican Sheet Metal Works
(Mem.) (252 U. 8. 590, 40
Sup. Ct. Rep. 393)
j National Trust & Credit Co., Orcutt
(F. H.) k Son C;o. (Mem.)
1031
1032
944
1032
590
414
406
407
849
•84
727
727
412
728
1002
810
171
402
496
946
1028
72i
731
1028
CASES REPORTED.
New Jersey, Duhne v.
V. Palmer (253 U. S. 360, 40
Sup. Ct. Rep. 486)
T. Palmer (Mem.) (252 U. S.
570, 40 Sup. dt. Rep. 345 )
Newman v. Moyers (253 U. 8. 182, 40
Sup. Ct Rep. 478)
New Mexico, Bloncett v. (Mem.) ...
New Orleans Land Co. v. Roussell
(Mem.) (252 U. S. 571, 40
Sup. Ct. Kep. 392)
Xew York v. Consolidated Gas Co.
(253 U. S. 219, 40 Sup. Ct.
Rep. 511)
Dunbar v
y. International Nickel Co.
(Mem.) (251 U. S. 568, 40
Sup. Ct. Rep. 343)
Marshall y. (Mem. )
Sanger y. (Mem.)
y. Standard Oil Co. (Mem.)
(251 U. S. 568, 40 Sup. Ct
Rep. 343)
New York & P. R. S. S. Ck>., Baltimore
Dry Dock & Ship Bldg. Co.
V. (Mem.)
New York C. & H. R. R. Co. y. United
States (251 U. S. 326, 40
Sup. Ct. Rep. 162)
y. York k W. Co. (Mem.) (253
U. 8. 478, 40 Sup. Ct Rep.
481) :
York & W. Co. V. (Mem.) ....
New York C. R. Co. y. Howell (Mem.)
(252 U. 8. 588, 40 Sup. Ct
Rep. 396)
Lang y. (Mem. )
y. Mohney (252 U. S. 152, 40
Sup. Ct Rep. 287) ......
New York Eyening Post Co. y. Chal-
oner (Mem.) (252 U. 8.
591, 40 Sup. Ct. Rep. 396)
New York, N. H. k H. R. Co. y. United
States (251 U. 8. 123, 40
Sup. Ct Rep. 67)
Nichols, Thompson y. (Mem.)
Nichols & Co., Yazoo k M. Valley R.
Co. y. (Mem.)
Nicydemus, National Council, J. O. U.
A. M. Y. (Mem.)
Non-Part isan League Cases. See Na-
tional Pbohibition Cases.
Norfoll; Southern R. Co., Backus y.
(Mem.)
V. Owens (Mem.) (251 U. 8.
550, 40 Sup. CJt. Rep. 342)
Norma Min. Co. ▼. Mackay.^ (Mem.)
(251 U. 8. 556, 40 Sup. Ct
Rep. 178)
North American Transp. & Trading
Co. V. United States (253
U. S. 330, 40 Sup. Ct Rep.
518)
United States y • . • . .
1«
280
946
721
849
723
722
870
384
418
725
403
418
412
290
1022
1022
730
1023
502
731
182
418
409
402
724
409
412
933
935
Northern Ohio Traction k Light Oo.i
Cuyahoga River Power Co.
y 625
Northern P. R. Co. v. United States
(251 U. S. 326, 40 Sup. Ct.
Rep. 1G2) 290
Northern Trust Co., Cheabrough v. . . 470
Lederer v. (Mem.) 1026
North Pwinsylvania R. Co. use of
Philadelphia & R. R. Co.,
United States v. (Mem.) 404
0.
O'Brien, Re (Mem.) (253 U. S. 473,
40 Sup. Ct Rep. 481 ) 1019
y. Public Service Commission
(Mem.) (251 U. S. 537, 40
Sup. Ct Rep. 55) 402
Ocbeltree, Culpepper v. ( Mem. ) .... 1023
O'Connell v. United States (253 U. 8.
142, 40 Sup. Ct Rep. 444) 827
Ohio State Teleph. Co. v. Columbus
(Mem.) (251 U. 6. 567, 40
Sup. Ct Rep. 219) 417
Ohio VaUey Water Co. y. Ben Avon
(Mem.) (251 U. 8. 542, 40
Sup. Ct Rep. 583) 405
▼. Ben Avon (253 U. 8. 287, 40
Sup. C^. Rep. 527) 90$
Oklahoma, Oklahoma Gin O. v 600
ex rel. Embry, Perrine y.
(Mem.) 1020
T. Texas (252 U. S. 372, 40 Sup.
Ct. Rep. 353) 619
y. Texas (253 U. S. 465, 40 Sup.
Ct. Rep. 580) 1015
T. Texas (253 U. 8. 470, 40
Sup. CtJ Rep. 580) 1017
y. Texas (253 U. S. 471, 40 Sup.
Ct Rep. 682) 1017
Oklahoma Gin Co. v. Oklahoma (252
U. S. 339, 40 Sup. Ct Rep.
341) 600
Oklahoma Operating Co. y. Loye (252
U. S. 331, 40 Sup. Ct Rep.
338) 596
Oklahoma R. Co. v. Sevems Paving
Co. (251 U. S. 104, 40 Sup.
Ct Rep. 73) 168
Okmulgee Window Glass Co., Frink v.
(Mem.) 415
Omaha Tribe of Indians v. United
States (253 U. S. 275, 40
Sup. Ct. Rep. 522 ) 901
United States v 901
Oneida Nay. (}orp. v. Job (W. k 8.)
k Co. (252 U. 8. 521, 40
Sup. Ct. Rep. 357 ) 697
Orcutt (F. H.) k Son Co. v. National
Trust k Credit Co. (Mem.)
(253 U. S. 491, 40 Sup. Ct.
Rep. 584) 1028
CAaKS REPOKTED.
< Oregon, Amsplund v. ( Mem.) 416
Frazier v. ( Mem. ) 727
Oregon -Washington R. & Nav. Co. v.
Fuller (-Mem.) (261 U. S.
551, 40 Sup. Ct. Rep. 56) 410
Ormes, Houston v 067
Osage County, United States v 184
Owen (Mark) & Co., Michigan C. R.
Co. V. (Mem.) 1023
Owens, Chioago, R. I. & P. R. Cik). ▼.
(Mem.) ...• 1027
Norfolk-Southern R. Co. v.
(Mem.) 409
P.
Paoific Gas & £. Co. v. Police Ct. (251
U. S. 22, 40 Sup. Ct. Rep.
79) 112
Pacific Transport Co., llanrahan v.
(Mem.) 726
Pahner, Goepel v. (Mem.) 727
Keppelmann v. ( Mem. ) 727
New Jersey v. (Mem.) 721
New Jersey v 946
Rhode Island v 946
Paaaina R. Co. v. Toppin <252 U. S.
' 308, 40 Sup. Ct. Rep. 319) 582
Parker, Caldwell v 621
Texas & G. S. S. Co. v. (Mem.) 1026
Parry, Cricket S. S. Co. v. (Mem.) . . 726
Parsons v. Moor (Mem.) (252 U. S.
570, 40 Sup. Ct. Rep. 345) 721
ParUn y. United States (Mem.) (251
U. 8. 561, 40 Sup. Ct Rep.
220) 415j
Pasadena Canning CrO., Dunkley Co. ▼.
(Mem.) 1026
Paachall ▼. Graham (253 U. 8. 193,
40 Sup. Ct. Rep. 453) 855
Payne, United States ex rel. ^Johnson
V 863
Peek, a A W. Co. v. Smith (H. D.) &
Co. (Mem.) (253 U. 8. 497,
40 Sup. Ct. Rep. 588) 1031
P«nbleton v. Illinois Comjnercial
Men's Asso. (Mem.) (251
U. 6. 549, 40 Sup. Ct. Rep.
178) 409
▼. Illinois Commerci.il Men's
Asso*. (Mem.) (253 U. 8.
499, 40 Sup. Ct. Rep. 483) 1032
Pennaochio v. United States (Mem.)
(253 U. S. 497, 40 Sup. Ct.
Rep. 588) 1031
Penn Mut. L. Ins. Co. ▼. Lederer (252
U. S. 523, 40 Sup. Ct. Rep.
397) 698
Pennsylvania t. West Virgipia (252
U. 8. 563, 40 Sup. Ct Rep.
357) 717
Pennsylvania Gas Co. v. Public Serv-
ice Commission (252 U. 8.
23, 40 Sup. Ct. Bep. 279) 434
«I4 li. ed. 2
Pennsylvania R. Co., Boebuicr v
V. Dyason (Mem.) (252 U. S.
584, 40 Sup. Ct Rep. 394)
V. Kittaning Iron & Steel Mfg.
Co. (253 U. 8. 319, 40 Sup.
Ct Rep. 532)
▼. Naaui Looze Vennoot Schap
(Mem.) (252 U. S. 584, 40
Sup. Ct Rep. 393)
. T. Stiedler (Mem.) (253 U. S.
489, 40 Sup. Ct. Rep. 485)
Pennsylvania Window Glass Co. v.
Window Glass Maeh. Ck>.
(Mem.) (251 V. S. 558, 40
Sup. Ct Kep. 179)
Perrine v. Oklahoma ex r^;!. Kmbry
(Mem.) (253 U. S. 474, 40
Sup. Ct Rep. 484)
Peters v. Veasey (251 U. S. 121, 40
Sup. CI. Rep. 65)
Peterson, Ex parte (Mem.)
Re (253 U. 8. 300, 40 Sup. Ct
Rep. 543)
Petroleum Rectifying Co., Reward Oil
Co. v. (Mem.) ;
Philadelphia & R. R. Co. v. Di Dmiato
(Mem.) (253 U. S. 480, 40
Sup. Ct Rep. 482)
▼. Hancock (253 U. S.«284, 40
Sup. a. Rep. 512)
Hull v
V. Polk (Mem.) (253 U. 8. 480,
40 Sup. Ct Rep. 482) ..
▼. Reynolds (Mem.) (253 U. 8.
486, 40 Sup. Ct. Rep. 482)
T. Smith (Mem.) (253 U. 8.
481, 40 Sup. Ct Rep. 584)
use of Delaware & B. B. R. Co.,
United States v. (Mem.)
(251 U. 8. 539, 40 Sup. Ct
Rep. 118)
use of, Mill Creek & M. H.
Nav. A R. Co., United
States V. (Mem.) (251 U.
8. 539, 40 Sup. Ct. Rep.
118)
use of. North Pennsylvania R.
Co., United States T.
(Mem.) (251 U. S. 539,40
Sup. Ct Rep. 118)
Phillips V. United States (Mimi.) (253
U. 8. 491, 40 Sup. Ct Rep.
584) ,
Phillips Ck). V. Everitt (Mem.) (252
U. S. 579, 40 Sup. Ct. Rep.
344)
Piedmont Power & Light Co. v.
Graham (253 U. S. 193, 40
Sup. Ct Rep. 453)
Pierce v. United States (252 U. 8. 239,
40 Sup. Ct Rep. 205)
Planters Nat. Bank, Wysong & M. Co.
V. (Mem.)
680
728
928
728
1027
413
1020
180
1032
919
411
1023
907
670
1023
1025
1024
404
404
404
1026
726
855
542
418
17
CASES RKFOHT£D.
Plymouth Rock Sqoab Co., Kinney v.
(Mem.) 1020
Poland, United States ▼ 236
Police Ct, Pacific Gas k E. Co. r. . . 112
Polk, Philadelphia k R. R. Co. v.
(Mem.) 1023
PolUrd y. United SUtes (Mem.) (252
U. S. 577, 40 Sup. Ct. Rep.
344) 726
Porto Rico R. Light k P. Co. ▼. Mor -
(253 U. 8. 345, 40 Sup. Ct.
Rep. 516) 944
Postal Teleg.-Cable Co. r. Bon-man ft
B. Co. (Mem.) (251 U. S.
562, 40 Sup. Ct. Rep. 342) 415
V. Warren-Oodwin Lumber Co.
(251 U. 8. 27, 40 Sup. Ct.
Rep. 69) 118
Pofton, Western U. Tc.leg. Co. v.
(Mem.) 1023
• Powers ▼. Richmond (Mem.) (251 U.
8. 539, 40 Sup. Ct. Rep.
118) 404
Preodergaat ((George G.) Constr. Co.,
Goldsmith r 427
Prentice, ContinenUl Bank ▼. (Mem.) 414
Producers Transp. Co. ▼. Railroad
Commission (215 U. S.
2f8, 40 Sup. Ct. Rep. 131) 239
ProhibitioB Cases. See HAMiLTOif v.
KCNTUOKT DI8TILLCBIS8 ft
Wabehousb Co.; Ruppebt
(Jacob) v. Caffet; Uiot-
B> Statbs v. Staitdabo
Bbbwebt; Duhi^ v. New
Jebset; Uiciro) States v.
Simpson; VLawkz v.
Smith; Rhode ISLA^ti t.
Palmer.
Providence, Joslin V. (Mem.) 401
Joslin Mfg. Co. T. (Mem.) ... 401
Scituate Light ft P. Ck>. r.
(Mem.) 401
Prudeiitial Ins. Co. ▼. Cheek (Mem.)
(252 U. S. 667, 40 Sup. Ct.
Rep. 343) 719
Public Senice Ommission, Fulton v.
(Mem.) 408
O'Brien v. (Mem.) 402
Missouri ex rel. Sedalia ▼.
(Mem.) 408
Pennsylvania Gas Co. v 434
-Public Utility Comrs. v. Ynchausti ft
Co. (251 U. S. 401, 40 Sup.
Ct. Rep. 277) 327
Pureetl v. Lexington ex rel. Coyne
(Mem.) (253 U. S. 476, 40
Sup. Ct. Rep. 583) 1021
Q.
Quaker City Morocco O., Boston West
Africa Trading Co. v.
(Mem.) 1029
18
Quaker OaU Co., UnitMl Stfttea ▼.
(Mem.) 1032
Queens Land ft Title Co. v. Kisgs
County Trust Co. (Mem.)
(252 V, S. 572, 40 Sup. Ct.
Rep. 395) 722
R.
Railroad Commission, Brooks-Scaakm
Ck). v. . . .•. 323
Xapa Valley Electric Co. v. . . 316
Producers Transp. Co. v. .... 239
Railroad Company, Atlantic Coast
Line, v. Alabama (Mem.)
(253 U. S. 489. 40 Sup. Ci.
Rep. 485) 1027
Atlantic Coast Line, Capps v.
(•Mem.) (252 U. S. 580, 40
Sup. Ct. Rep. 345) 72f
Atlantic Coast Line, v. United
States (Mem.) (251 U. 8.
546, 40 Sup. Ct. Rep. 342) 408
Baltimore ft O., v. Coflland
(Mem.) (251 U. S. 545, 40
Sup. C?t. Rep. 218) 407
Baltimore ft O. S. W., v. Bail^
(Mem.) (251 U. S. 564) 40
Sup. Ct. Rep. 118) 416
Central, Drago v. (Man.)
(251 U. 8. 553, 40 Sup. Ct.
Rep. 118) 411
Chicago ft A., Spiller v. (253
U. 8. 117, 40 Sup. €t. R^
466) 810
Chicago ft £. I., Spiller v. (253
U. 8. 117, 40 Sup. Ct. Rep.
466) 816
Delaware ft B. B., use of Phila-
delphU ft R. R. Co.,
United States v. (MeAa.) 1
(251 U. S. 539, 40 Sup. Ct.
Rep. 118) ...'.404
Delaware, L. ft VV., v. Candee
(Mem.) (253 U. 8. 490. 40
Sup. Ct. Rep. 584) MWfT
Delaware, L. ft W., v. Thomp-
son (Mem.) (262 U. 8.
690, 40 Sup. Ct Rep.
396) .'. T31
Delaware, L. ft W., Tomasco v.
(Mem.) (251 U. S. 551, 40
Sup. Ct. Rep. 56) .' 4^0
Erie, v. Collins (253 U. 8. T7,
40 Sup. Ct. Rep. 450) .... 790
Brie, v. Connors (Mem.) (251
U. S. 557, 40 Sup. Ct. Rep.
179) .413
Brie, v. Szary (253 U. 8. 86. 40
Sup. Ct Rep. 454) 794
Ft Smith ft W., v. Mills (253.
U. 8. 206, 40 Sup. Ot. Rep.
526) 862
CASKS KEPOKTED.
415
1024
Railroad Compauy, Gulf & S. I., v.
Boone (Mem.) (261 U. S.
561, 40 Sup. Ct. Rep. 220)
Gulf & 8. 1., V. Boone (Mem.)
(252 U. S. 567, 40 Sup. Ct.
Rep. 343) 719
Houston k T. C, ▼. Eirais
(Mem.) (252 U. S. 583, 40
Sup. Ct. Rep. 393) 728
lUinois C, Spiller v. (253 U. S.
117, 40 Sup. Ct. Rep. 466) 810
Lehi^ Valley, v. Howell
(Mem.) (253 U. S. 482, 40
Sup. Ct. Rep. 482) 1024
Lehigh Valley, Royal Indemni-
ty Co. V. (Mem.) (253 U.
6. 483, 40 Sup. Ct. Rep.
482)
Ifichigan C, v. Owen (Mark)
k Co. (Mem.) (253 U. S.
481, 40 Sup. Ct. Rep. 483) 1023
IBU Creek & M. H. NaT. &, use
of Philadelphia ft It R. Co.,
United States t. (Mem.)
(251 U. S. 539, 40 Sup. Ct
Rep. 118) 404
lilflsouri Pv ▼. Bloek (Mem.)
(253 U. 8. 493, 40 Su^ Ct
Rep, 586) 1029
itiMOuri P., T. Bollifl (Mem.)
(251 U. 8. 538, 40 Sup. Ct
Rep. 57) 403
Hlieouri P., v. Monroe County
Road Improv. Dist
(Mem.) (252 U. S. 59i; 40
8np. Ct Rep. 305) 731
Few York C, v. Howell
(Mem.) (252 U. S. 588, 40
Sup. Ct. Rep. 396) 730
Kew Toric C, Lang v. (Mem.)
(253 U. S. 479, 40 Sup. Ot
Rep: 482) 1028
• ; New York C, v. Mohney (252
U. S. 152, 40 Sup. Ct Rep.
' 287) 502
New York C. & H. R., ▼. United
States (251 U. S. 326, 40 *
Sup. Ct Rep. 162) 290
New York C. A H. R., York A
W. Co. V. (Mem.) (253 U.
8. 478, 40 Sup. Ct. Rep.
481)
New York C. t H. R., T.
York & W. Co. (Mem.)
(253 U. S. 478, 40 Sup. Ct.
Rep. 481) 1022
New York, N. H. t H., v.
United States (251 U. S.
123, 40 Sup. Ct Rep. 67)
• Norfolk Southern, Backus v.
(Mem.) (252 U. S. 575,
40 Sup. Ct Rep. 394)
•41 If. M.
1022
182
724
Railroad Company, Norfolk -Southenii
V. Owens (Mem.) (251 U.
S. 550, 40 Sup. Ct Rep.
342)
{forth Pennsylvania, use of
Philadelphia & R. R. Co.,
United States v. (Mem.)
(251 U. S. 539, 40 Sup.
Ct Rep. 118)
Oregon-Washington R. k Nav.,
▼. Fuller (Mem.) (251 U.
S. 551, 40 Sup. Ct Rep.
56)
Panama, v. Toppin (252 U. S.
308, 40 Sup. Ct Rep. 319)
Pennsylvania, Boehmer v.
(252 U. S. 496. 40 Sup. Ct
Rep. 409)
Pennsylvania, v. Dyason
(Mem.) (252 U. S. 584> 40
Sup. Ct Rep. 394)
Pennsylvania, v. Kittaning
Iron k Steel Mfg. Co. (253
U. S. 319, 40 Sup. Ct. Rep.
532)
Pennsylvania, ▼. Naam Looze
Vennoot Schap (Menk)
(252 U. S. 584, 40 Sup. Ct
Rep. 393)
Pennsylvania, ▼. Siiedler
(Mem.) (263 U. S. 489» 4^
Sup. Ct. Rep. 485) ......
Philadelphia k K, use of.
North Pennsylvania B.
Co., United States f.
(Mem.) (251 U. S. 639, 40
Sup. Ct Rep. 118) ....
St Louii k S. Ft, S)p^et v.
(253 U. S. 117, 40' Sup.
Ct. Rep. 466)
Southern P., ▼. IVUtassy
(Mem.y (251 U. 8. 589, 40
Stip. Ct Rep. 57)
Southern P., v. Iiviustrial Acci.
Commission (251 U. S.
259, 40 Sup. CJt. Rep. 130)
Southern P., United States v.
(251 U. S. 1, 40 Sup. Ct
Rep. 47)
. Toledo k C. v. Equitable Trust
Co. (Mem.) (251 U. S.
553, 40 Sup. Ct Rep. 118)
Union P., Briggs v. (Mem.)
(251 U. S. 540, 40 Sup. Ct.
Rep. 118)
Union P., v. Burke (Mem.)
(251 U. S. 548, 40 Sup.
CJt. Rep. 56)
Union P., v. Jenkins (Mem.)
(252 U. 8. 589, 40 Sup.
Ct Rep. 393)
Union P., Nadeau ▼. (253 U. S.
442, 40 Sup. Ct. Rep. 570)
409
404
410
582
680
728
928
728
1027
404
810
404
258
97
411
404
409
731
1002
CASES REPORTED.
Hart, Gouge v. ( Mem. ) : . . .
Hartford Poster Adv. Co. v. Egan
(Mem.) (261 U. S. 564,
40 Sup. Ct. Rep. 56)
Hawke t. Smith (253 U. S. 221, 40
Sup. Ct Rep. 496)
T. Smith (258 U. S. 231, 40
Sup. Ct. Rep. 4^)
Hays T. Seattle l25X U. S. 233, 40
Sup. Ct. Rep. 125)
Henry v. United States (251 U. S.
393, 40 Sup. Ct. Rep. 186)
Herman v. United States (Mem.)
(251 U. S. 558, 40 Sup. Ct.
Rep. 179)
Heye, Birge-Forbes Co. v
Hiawassee River Power CJo. ▼. Caro-
lina-Tennessee Power Co.
(252 U. S. 341, 40 Sup.
Ct. Rep. 330)
Hi Itscher, Jones V. (Mem.)
Hines, Wallace v
Hines (Edward) Lumber Co. v. Amer-
ican Car &. Foundry (^.
(Mem.) (251 U. S. 557, 40
Sup. Ct. Rep. 179)
Hitehcodc V. Scattergood (Mem.) (261
U. S. 564, 40 Sup. Ct. Rep.
118)
Holland, Missouri v
Horowitz v. United States (Mem.)
(252 U. S. 586, 40 Sup. Ct.
Rep. 396)
Horton, Seaboard Air Line R. Co. v.
(Mem.) ..^
Hotchkiss, Chesbrougb v
Houghton V. En si en (Mem.) (253 U.
S. 485, 40 Sup. Ct. Rep.
482)
Houston V. Ormes (252 U. S. 469,
40 Sup. Ct. Rep. 369)
T. Seaboard Air Line R. Co.
(Mem.) (251 U. S. 638,
40 Sup. Ct. Rep. 67)
Houston k T. (X B.. Co. v. Ennis
(Mem.) (252 U. S. 583,
40 Sup. Ct. Rep. 393)
Howard v. Foster (Mem.) (262 U. S.
589, 40 Sup. Ct. Rep. 480)
Howbert, Camp Bird v. (Mem.)
Howell, Lehigh Valley R. Co. v.
(Mem.)
New York C. R. Co. v. (Mem.)
Hoyne, Metropolitan West Side Elev.
R. Co. ▼. (Mem.)
Hudson Nav. Co. v. Aron (J.) & Co.
(Mem.) (262 U. S. 678, 40
Sup. Ct. Rep. 344)
Hughes Tool Co., Reed v. (Mem.)
Hull T. Philadelphia & R. R. Co.
( 252 U. S. 475, 40 Sup. Ct.
Rep. 358)
12
406
416
871
877
243
322
413
286
601
407
782
413
416
641
729
417
470
1025
667
403
728
730
725
1024
730
723
725
416
670
Humi Packing Co. v. Mutual L. Ins.
Co. (Mem.) (251 U. S.
666, 40 Sup. Ct. Rep. 178) 412
Hutchinson v. Sperry (Mem.) (252 U.
S. 587, 40 Sup. Ct. Rep.
396) 730
Ulinois, Qordon v. (Mem.) 417
Tananevicz v. ( Mem. ) 720
niinois C. R. Co., Spiller v 610
Illinois* Commercial Men's Asso.,
Pembleton v. (Mem.) 409
Pembleton v. (Mem.) 1032
Industrial Acci. Commission, South-
em P. Co. v 258
Industrial Commission, Atchison, T. &
S. F. R. Co. v. (Mem.) .. 728
Ins. Co., Mtna, L., v. Brand (Mem.)
(263 U. S. 496, 40 Sup.
Ct. Rep. 687) 1031
Mutual L., Humi Packing Co.
V. (Mem.) (261 U. S. 556,
40 Sup. Ct. Rep. 178) .... 412
Penn Mut. L., r. Lederer (262
U. S. 523, 40 Sup. Ct. Rep.
397> 698
Prudential^ v. Cheek (Mem.)
(252 U. S. 667, 40 Sup. Ct.
Rep. 343) 719
St. taul F. & M., V. Hagemeyer
Trading Co. (Mem.) (253
U. S. 497, 40 Sup. Ct. Rep.
688) 1031
St. Paul F. k M., y. Thomsen
(Mem.) (253 U. S. 497, 40
Sup. Ct. Rep. 588) 1031
International Nickel Co., New York
V. (Mem.) 418
Interstate • Commerce Commission,
United States ex rel.
Kansas City Southern R.
Co. V 517
Inter-Urban R. Co. ▼. Smith (Mem.)
(251 U. 8. 652, 40 Sup. Ct.
Rep. 57) 410
▼. Smith (Mem.) (263 U. 8. 499,
. 40 Sup. Ct Rep. 482) .... 1032
Iowa, Taft (C. C.) Co. ▼. (Mem.) 720
J.
Jay ▼. Weinberg (Mem.) (262 U. S.
686, 40 Sup. Ct. Rep. 396) 729
Jeffery (Thomas B.) (3o.« Chipman v. 314
Jenkins, Union P. R. C6. ▼. (Mem.) 731
Jeong Quey How ▼. White (Mem.)
(261 U. & 660, 40 Sup. Ct.
Rep. 180) 414
Jett Bros. Distilling Co. v. Carrollton
(252 U. S. 1, 40 Sup. Ct
Rep. 255) ...•.•••..••.. 421
CASKS REPORTED.
413
405
J. J. HiU, The, Smith v. (Al.,iu.)
(251 U. S. 554, 40 Sup. Ct.
Rep. 119) '.... 411
Job (W. & S.) k Co., Oneida Xav.
Corp. V, 697
Johnson, Corsicana Nat. Bank t 141
United States ex re)., v. Payne
(253 U. S. 209, 40 Sup. Ct.
Rep. 613) 863
Johi^son Iron Works, Cuyamel Fruit
Co. V. (Mem.) 1025
Jonaa t. Hiltscher (Mem.) (251 U. S.
545, 40 Sup. Ct. Rep. 218) 407
Joslin v. Providence (Mem.) (251 U.
S. 535, 40 gup. Ct. Rep.
55) 401
Joslin Mfg. Co. T. Providence (Mem.)
(251 U. S. 535, 40 Sup.
Ct. Rep. 55) 401
Jojoe (William T.) Co., Louisiana v.
(Mem.) 1024
K.
Kane Glass (3o. v. Window Glass Mach.
Co. (Mem.) (251 U. S.
558, 40 Sup. Ct. Rep. 179)
Kansas, Harris v. (Mem.)
Kansas City Bolt t Nut Co. v. Kansas
City Light & P. Co.
(Mem.) (252 U. 8. 571, 40
Sup. Ct. Rep. 392) 721
Kansas City Light A P. Co., Kansas
City Bolt ft Nut Co. v.
(Mem.) .'
Kansas City, M. ft 0. R. Co. t. United
States (251 U. S. 326, 40
Sup. Ct. Rep. 162)
Kansas City Southern R. Ck>. v. Smith
(Mem.) (251 U. S. 552, 40
Sup. Ct. Rep. 56) 410
▼. United States (252 U. S.
147, 40 Sup. Ct. Rep. 257)
United States ex rel., v. Inter-
state Commerce Commis-
sion (252 U. S. 178, 40
Sup. Ct. Rep. 187)
Keith, Kilmer v. (Mem.) 725
KeUey v. Garvan (Mem.) (252 U. S.
588, 40 Sup. ( t. Rep. 396)
Kenney t. Loyal Order of Moose (Su-
preme Lodge) (252 U. S.
411, 40 Sup. Ct. Rep. 371)
Kentucky, Cincinnati, C. ft E. R. Co.
T. . ,
South Covington ft C. Street
Kentucky Distilleries ft Warehouse
Co. V. Gregory (253 U. S.
350, 40 Sup. Ct. Rep. 486)
Hamilton v 194
KeowB T. Keown (Mem.) (251 U. S.
567, 40 Sup. Ct. Rep. 218) 417
•4 If. od.
721
290
600
517
30
638
637
631
946
Keppelmann v. Palmer (Mem.) (252
U. S. 581, 40 Sup. Ct. Rep.
392)
Kilmer v. First Sav. ft Bkg. Co.
(Mem.) (251 U. S. 556, 40
Sup. Ct. Rep. 179)
T. Keith (Mem.) (252 U. S.
578, 40 Sup. Ct. Rep. 344)
King T. Barr (Mem.) (253 U. S.
484, 40 Sup. Ct. Rep. 481)
Kings County Trust Co., Queens Land
ft Title Ck). V. (Mem.)
Kinney v. Plymouth Rock Squab Co.
(Mem.) (253 U. S. 474, 40
Sup. Ct. Rep. 484)
Kittaning Iron ft Steel !Mfg. Co.,
Pennsylvania R. Co. v. . .
Knickerbocker Ice Co. v. Stewart
(253 U. 8. 149, 40 Sup. Ct.
Rep. 438)
Knutsford, The, Barber ft Co. t.
(Mem.)
Kollman v. United States (Mem.)
(263 U. S. 489, 40 Sup. (X.
Rep. 485)
Kosta Kisin v. California (Mem.)
(251 U. S. 547, 40 Sup. Ct.
Rep. 480)
Krichman v. United States (Mem.)
(252 U. S. 576, 40 Sup. Ct.
Rep. 344)
Kruse t. United States (Mem.) (253
U. S. 494, 40 Sup. Ct. Rep.
686) •
Kwock Jan Fat v. White (253 U. S.
454, 40 Sup. Ct. Rep. 566)
Lane r. Equitable Trust Co. (Mem.)
(252 U. S. 678, 40 Sup. Ct.
Rep. 344)
Lang T. New York C. R. Co. (Mem.)
(253 U. S. 479, 40 Sup. Ct.
Rep. 482)
Laughter v. United States (Mem.)
(251 U. S. 561, 40 Sup. Ct.
Rep. 220)
Law, Goodspeed v. (Mem.)
Leary v. United States (253 U. S. 94,
40 Sup. Ct. Rep. 446)
Le Crone v. McAdoo (253 U. S. 217,
40 Sup. Ct. Rep. 510)
Lederer t. Northern Trust Co.
(Mem.) (253 U. S. 487, 40
Sup. Ct. Rep. 483)
Penn Mut. L. Ins. Co. t
Worth Bros. Co. v
Lee V. Centra] of Georgia R. Co.
(252 U. S. 109, 40 Sup. Ct.
Rep. 254)
Malleable Iron Range Co. v.
(Mem.)
727
413
725
1025
722
1020
928
834
729
1027
408
724
1020
1010
725
1023
415
412
798
869
1026
698
377
482
415
IS
CASKi^ KEl^UXKU.
I>e T. Minor (Mem.) (2o3 U. S.
488, 40 ^Sup. Ct. Rep. 485)
Leflore County, National Surety Co.
X. (Mem.)
Lehigh Valley R, Co. v. Howell
(Mem.) (253 U. S. 482, 40
Sup. Ct. Rep. 482)
T. Royal Indemnity Co.
(Mem.) (253 U. S. 483, 40
Sup. Ct. Rep. 482 )
Lemke v. United States (251 U. S.
466, 40 Sup. Gt. Rep. 259)
Levy, WeidUorn y t
Lewellyn. Carbon Steel Co. v
Forged Steel Wheel Co. v
Lexington ex reL Coyne, Purcell v.
(Mem.)
Virgini.i ex rel., Virginia- West-
em Power Co. V. (Mem.)
(251 U. S. 557, 40 Sup. Ct.
Kep. 179)
Leyland (Frederick) & Co., Stancil
V. ( Mem. )
Lincoln, Lincoln Gas A E. L. Co. v.
(Mem.)
Lincoln Gas k E. L. Co. v. Lincoln
(Mem.) (253 U. S. 477, 40
Sup. Ct. Rep. 585)
Lindsay v. United States (Mem.)
(252 U. S. 583, 40 Sup. Ct.
Rep. 393)
Li.-ner, District of Columbia v.
(Mem.)
Liverpool, B. k R. P. Steam Xav.
Co. V. Brooklyn Eastern
Dist. Ternjinaf (251 U. S.
48, 40 Sup. Ct. Rep. 66)
Locran, Evansvillo k B. G.' Packet Co.
V. (Mem.)
Los Angeles v. Los Angel«fl (^s k E.
Corp. (261 U. S. 32, 40
Sup. Ct. Rep. 76)
Los AogelcH Gas & E. Corp., Los
Angeles v
Louie V. United States (Mem.) (253
r. S. 482. 40 Sup. Ct. Rep.
687)
Louisiana v. Joyce (William T.) Co.
(Mem.) (253 U. S. 484, 40
Sup. Ct. Rep. 481)
Morgan v. (Mem.)
Love, Oklalioma Operating Co. v. . ,
Love County, Ward v
Loyal Order of Moose. (Supreme
Lodge), Kenney v
Lucas, ThompsoB v
Luminous L'nit Co., Freeman-Sweet
Co. V. (Mem.)
Lyons^ Empire Fuel Co. T« (Mem.)
M.
1027
1028
1024
1024
360
808
375
380
1021
413
1028
1022
1022
727
1023
130
406
121
121
1024
1024
1032
596
751
638
612
1025
727
McAdoo, T>e Crone v 869
14
McAdoo V. Orracs. See Houston v.
Obm£S.
McCarthy, Gayon v
Smedley v. ( Mem. )
McCaull-Dinsmore Co., Chicago, M. k
St. P. R. Co. V. (Mem.) ..
Chicago, M. k St. P. R. Cu. v.
McCay Engineering Co. v. United
States (Mem.) (252 U. S.
571, 40 Sup. Ct Rep. 392)
McCloskey v. Tobin (252 U. S. 107, 40
Sup. Ct. Rep. 306 )
McDaniel, Glascock v. (Mem.)
.Mackay, Norma Min. Co. v. (Mem.)
MacKnight v. United States (Mem.)
( 253 U. -S. 493, 40 Sup. Ct.
Rep. o%i\ )
V. United States (Mem.) (251
U. S. 543, 40 Sup. Ct. Rep.
180)
McLaren v. Fleischer (Mem.) (253 U.
S. 479, 40 Sup: Ct Rep.
482)
McLaughlin v. United States (Mem.)
(251 U. S. 541, 40 Sup. Ct.
Rep. 178)
MacMillan. United States v
Maconiber, Eisner v
Magma Copper Co. v. Ritsala (Mem.)
( 251 U. S. 665, 40 Sup. Ct.
Rep. 177)
Maguire v. Trefry (253 U. S. 12, 40
Sup. Ct Rep. 417)
Mail Divisor Cases. See Northern P.
R. Co. V. United States.
Malleable Iron Range Co. v. Lee
(Mem.) (251 U. S. 562, 40
Sup. Ct Rep. 342)
Manitowoc Products Co., Sawyer v. . .
Manners v. Morosco (252 U. S. 317, 40
Sup. Ct. Rep. 335)
Marion County, Bone v
Marshall v. New York (Mem.) (252
U. S. 577, 40 Sup. Ct. Rep.
3961
Maryanne Shipping Co. v. Ramberg
Iron Works (Mem.) (252
U. S. 580, 40 Sup. Ct Rep.
345) .,
Maryland Casualty Co. v. United
States (251 U. S. 342, 40
Sup. Ct Rep. 155 )
Mason v. Shannon (Mem.) (252 U. S.
572, 40 Sup. Ct Rep. 392)
Massie, Calhoun v
Mayfield v. Tennes'^ee ex rel. Gerard
(Mem.) (253 U. S. 492, 40
Sup. Ct Rep. 586)
Maynard v. United Thacker Coal Co.
(Mem.) (251 U. S. 555, 40
Sup. Ct Rep. 119)
Meccano v. Wanamaker (253 U. S.
136, 40 Sup. Ct Rep. 463)
51:?
41C
4011
St>l
721
481
724
412
1029
406
1023
40,1
857
521
417
739
415
946
590
188
725
720
297
722
843
1029
412
822
CASES REPORTED.
Mer^ntiukler Linotype Co. v. Darit
(251 U. S. 256, 40 Suj^. Ct.
Rep. 133) ;....
Metropolitan West Side Elev. R. Oo.
T. Uoyne (Mem.) (252 U.
S. 573, 40 Sup. Ct. Rep.
395)
T. Sanitary Diet. (Mem.) (262
U. S. 573, 40 Sup. (X Rep.
395)
Miehigan C. R. Co. t. Owen (Mark)
k Co. (Mem.) (253 U. S.
481, 40 Sup. Ct. Rep. 483)
Mill Creek & M. H. Nav. & R. Co. use
of Philadelphia k R. R. Co.,
United States v. (Mem.) . .
Miller, Collins v
T. United States (Mem.) (252
U. S. 584, 40 Sup. Ct. Rep.
394) .;...v
Milto, Ft. Smith & W. R. Co. r.
MUwankee, Wisconsin ex reL, Mil-
waukee Electric R. k Light
Co. T. (252 U. S. 100, 40
Sup. Ct. Rep. 306)
Milwaukee Electric R. k Light €o. t.
Wisconsin ex reL Mil-
waukee (252 U. S. 100, 40
Sup. Ct. Rep. 300) ...... . .
MiMiesota t. Wlsconsfai (252 IT. &
273, 40 Sup. Ot. Rep. 318)
Minnesota Store Co.» Beckwith Co. ▼.
(Mem.) ...»••••.
MiB<»', Lee T. (Mem.) •«•••••... v.*.
Minliissippi, Arkansas t
MisMMiKi T. Holland (252 U. S. 416,
40 Sup. Ct Rep. 382 ) . .
ex rel. Sedalia y. Public Service
. Commission ^Memi ) (251
U. 6. 547, 4^ Sup. (X^ Rep.
342) ,,...,
Missouri, K. k T. R. Co., SpiUer t. ••
. , V. Zubcr (Mem.) (251 U. 8.
549, 40 Sup. Ct. Rep^lliQ)
Missouri P. k Co. v. Block (Mem.)
(253 U. S. 493, ^OSxxg. Ct.
Rep. 586) '. ..:
▼. Bollis (Mem.) (251 U. S.
538, 40 Sup. Ct. Rep. 57)
▼. Monroe County Road Iniprov^
Dist. (Mem.) (252 U. S.
591, 40 Sup. Ct. Rep. 395)
SpUler r •
Mohney, New York C. R. Co. ?
Monroe County Road Improv. Diet,
Missouri P. R. Oo. v.
(Mem.) '
Msor, Parsons T. (Mem.) ,,,,
Meore, Chicago, D. & G. B. Transit Oo.
Y. (Mem.)
St. Louis Brewing Asao. r. ....
Wartell r. (Mem.)
64 L. ed.
255
723
723
1028
404
616
728
862
476
476
5d8
1027
1027
605
641
408
810
409
1029
403
731
810
502
731
721
411
946
415
Moore k Tierney, Roxford Knitting
Co. V. (Mem.)
Moore (William) Knitting Co., Rox-
ford Knitting Co. v.
(Mem.)
Mor, Porto Rico R. Light & P. Cob t.
Morgan t. Louisiana (Mem.) (253 U.
S. 498, 40 Sup. Ct. Rep.
588)
Morosco, Manners v
Morris k C. Dredging Co. y. Cornell
a B. Co. (Mem.) (251 U.
S. 559, 40 Sup. Ct Rep.
180)
Mountain Gas Ck>., V. k S. Bottle Co.
V. (Mem.)
Mountain States Teleph. k Teleg. Co.
T. Denver (Mem.) (251 U.
S. 545, 40 Sup. Ct Rep.
219) .•....,.,
Moyert, Newman r
Munday y. Wisconsin Trust Co. (252
U. S. 499, 40 Sup. Ct Rep.
865)
Munger t. Firestone Tire k Rubber Co.
(Mem.) (252 U. a 582, 40
Sup. Ct Rep. 898)
T.Ctoodrieh (B. F.) Co. (Mem.)
(252 U. S. 562, 40 6iq». Ct
Rep. 892)
Mutual Ix Ins. Co., Humi Paokiog Co.
T, (Mem.) ••••••••••••••
N.
NailiB Looze Vennoot Sdiap, Pennsyl-
yania R. Co. t. (Mem.)
(2 cases)
Nadeau r. Union P. R. Cp. (253 U. S.
442, 40 Sup. Ct Rep. 570
Napa Valley Electric Co. t. Railroad
Commission (251 U. S. 366,
40 Sup. Ct Rep. 174) ..••
National Bank, Evans y
National Council, J. 0. U. A. M. y.
Nicodemus (Mem.) (251 U.
U. S. 536, 40 Sup. Ct Rep.
56)
National Lead Co. y. United States
(252 U. S. 140, 40 Sup. a.
Rep. 237)
National Prohibition Cases (253 U. S.
. 350, 40 Sup. Ct. Rep. 486)
National Surety Co. y. Leflore County
(Mem.) (253 U. S. 490, 40
Sup. Ct Rep. 583)
United States y. (Mem.)
T. United States use of Amer-
ican Sheet Metal Works
(Mem.) (252 U. S. 590, 40
Sup. a. Rep. 393)
{National Trust k Credit Co., Orcutt
(F. H.) k Son Co. (Mem.)
1031
1032
944
1032
590
414
406
407
849
M4
T27
727
*
'412
728
1002
810
171
402
496
946
1028
72'4
73J
1028
CASES REPORTED.
Railroad Company, Union P., Theden
T. (Mem.) (253 U. S. 485,
40 Sup. Ct. Rep. 482) 1026
Vazoo k M. Valley, v. Nichols &
Co. (Mem.) (251 U. 8.
550, 40 Sup. Ct. Bep. 219) 400
Hallway Company, Atchison, T. k S.
P., V. Industrial Commis-
sion (Mem.) (252 U. S.
583, 40 Sup. a. Rep. 393) 728
Atchison, T. k S. F., Spiller v.
(253 U. S. 117, 40 Sup. Ct.
Rep. 466) 810
Canadian Northern, v. Eggen
(252 U. S. 553, 40 Sup. Ct.
Rep. 402) 71S
Central of G^rgia, Lee t. (252
U. S. 109, 40 Sup. C^. Rep.
264) 482
€liica£;o^ N. W., v. Van de
Zande (Mem.) (252 U. S.
674, 40 Sup. Ct. Rep. 395) 723
Chicago, M. k St. P.,
T, McCaull-Dlnsmorc Co.
(Mem.) (251 U. S. 549, 40
Bup. Ct. Rep. 219) 409
Oiieago, M. k St. P.,
T. McCaull-Dinsmore Co.
(263 U. S. 97, 40 Sup. Ct.
Rep. 604) 801
Cailcago, R. I. & P., V. Cole
(261 U. 8. 64, 40 Sup. Ct.
Rep. «8) 133
Chicago, R. I. k P., v. Owens
(Mem.) (253 U. 8. 489,
40 Sup. Ct. Rep. 485) .. 1027
Qdcago, R. L k P., n Road
Improv. Dist. (Mem.)
(252 U. S. 591, 40
Sup. Ct. Rep. 395) 731
Chicago, R. I. & P., Spiller ▼.
(253 U. 6. 117, 40 Sup. Ct.
R^. 466) 810
Chicago, R, I. & P., t. Swain
(Mem.) (262 U. 8. 677, 40
Sup. Ct. Rep. 344) 726
Chicago, R. I. & P., v. Ward
(252 U. S. 18, 40 Sup. Ct.
Rep. 276) • 430
Cincinnati, C. k E., v. Ken-
tucky (252 U. S. 408, 40
Sup. Ct. Rtep. 381) 637
Grand Trunk Western, v.
United States (252 U. S.
112, 40 Sup. Ct. Kep. 309) 484
Great Northern, v. Cahill (253
V. S. 71, 40 Sup. Ct. Rep.
457) 787
Great Northern, v. Washington
(Mem.) (251 U. S. 565, 40
Sup. Ct. Rep. 177) 416
Railway Company, Gulf, C. k S. F., r.
Bowles (Mem.) (261 U. S.
688, 40 Sup. Ct. Rep. 65) 403
later-Urban, v. Smith (Mem.)
(261 U. S. 562, 40 Sup. Ct.
Rep. 57) 410
Interurban, v. Smith (Mem.)
(253 U. S. 499, 40 Sup. Ct.
Rep. 482) 1032
Kansas City Southern, ▼.
Smith (Mem.) (251 U. S.
662, 40 Sup. Ct. Rep. 66) 410
Kansas City, M. k 0., v.
United States (251 U. S.
326, 40 Sup. Ct. Rep. 162) 290
Kansas City Southern, v.
United States (262 U. S.
147, 40 Sup. Ct. Rep. 267 ) 600
Kansas City Southern, United
States ex rel., ▼. Inter-
state Commerce Cooimis-
sion (262 U. S. 178, 40
Sup. Ct. Rep. 187 ) 617
Metropolitan West Side Kiev.,
v. Hoyne (MenL) (252 U.
S. 673, 40 Sup. Ct. Rep.
896) 728
Metropolitan West' Side Elev.,
y. Sanitary Dist. (Mem.)
(262 U. S. 673, 40 Sup. Ct
Rep. 395) 723
Milwaukee Electric R. k Light
Co. V. Wisconsin ex rel.
Milwaukee (262 U. S. 100.
. 40 Sup. Ct. Rep. 306) .. 476
Missouri, K. k T., Spiller ▼.
(263 U. 8. 117, 40 Sup. a.
Rep. 466) 810
Missouri, K. k T., t. Zuber
(Mem.) (261 U. S. 649, 40
Sup. Ct. Rep. 119) 409
Missouri P., Spiller ▼.
(263 U. S. 117, 40 Sup. Ct.
Rep. 466) 810-
Northern P., t. United Stfites
(261 U. 8. 326, 40 Sup. Ct.
Rep. 162) 290
Oklahoma, v. Severns Paving
Co. (251 U. S. 104, 40 Sup.
Ct. Rep. 73) 168
Philadelphia k R, v. Di Do-
nato (Mem.) (2r,3 U. S.
480, 40 Sup. Ct. Rep. 482) 1023
Philadelphia k R., v. Hancock
( 253 U. S. 284. 40 Sup. Ct.
Rep. 612) 907
Philadelphia k R., Hull v. (252
U. S. 475, 40 Sup. Ct. Rep.
358) 670
Philadelphia k R., v. Polk
(Mem.) (263 U. S. 480, 40
Sup. Ct. Rep. 482) 1023
CASES REPORTED.
404
Railway Company, Philadolpliia & K.,
V. Reynolds (Mem.) (253
U. 8. 480, 40 Sup. Ct. Rep.
482) 1025
Philadelphia & K., v. Smith
(Mem.) (263 U. S. 481,
40 Sup. Ct. Rep. 684) .. 1024
Philadelphia & R., use of, Dela-
ware & B. B. R. Co., Unit-
ed States T. (Mem.) (251
U. 8. 539, 40 Sup. Ct. Rep.
118)
Philadelphia & R., use of, Mill
Creek dt M. H. Nav. K. Co.,
United States v. (Mem.)
(251 U. S. 639, 40 Sup. Ct.
Rep. 118) 404
Porto Rico, Light & P., v. Mor
(263 U. S. 345, 40 Sup. Ct.
Rep. 516) 944
St. Louis, I. M. & S. Southern
Cotton Oil Co. v. (Mem.)
(262 U. S. 590, 40 Sup. Ct.
Rep. 396) 731
Bt, Louis, I. M. & S., Spiller v.
(253 U. 8. 117, 40 Sup. Ct
Rep. 466) 810
St. Louis, I. M. & S., ▼. True
(Mem.) (262 U. 8. 589, 40
Sup. Ct Rep. B92) 730
St Louis, L M. & 8., y. United
SUtes (261 U. 8. 196, 40
Sup. Ct. Rep. 120) 226
6t Louis, L M. & 8., v. Wll-
HanM (251 U. S. 68, 40
Sup. Ct. Rep. 71) 189
Seaboard Air Lino, t. Qray
(Mem.) (251 U. 8. 666, 40
Sup. Ct Rep. 218) 417
Seaboard Air Line, v. Horton
(Mem.) (251 U. 8. 666, 40
Sup. Ct. Rep. 180) 417
Seaboard Air Line, Houston v.
(Mem.) (261 U. S. 538, 40
Sup. C7t. Rep. 67) 403
Seaboard Air Line, ▼. United
States (251 U. 8. 3^, 40
Sup. Ct. Rep. 1C2)
South Covington & C. Street, t.
Kentucky (252 U. $. 899,
40 Sup. Ct Rep. 378) ...
Texas & P., Armour k Co. t.
(Mem.) (261 U. S. 651, 40
Sup. Ct Rep. 66) 410
Wabash, v. Sheohan (Mem.)
(251 U. S. 562, 40 Sup. Ct.
Rep. 342) 415
Ralph, Cole v 567
Ramberg Iron Works, Mnrynnne Ship-
ping Co. V. (Mem.) 726
Randolph v. United State** (Mem.)
(2r»3 r. S. 499, 40 Sup. Ct.
Rep. 484) 10.T2
•4 L. ed.
290
631
Re O'Brien (Mem.) (253 U. S. 473,
40 Sup. Ct Rep. 481) ..
Peterson (253 U. S. 300, 40
Sup. Ct Rep. 643)
Tiffany (252 U. S. 32, 40 Sup.
Ct Rep. 239)
Reading Co. v. United States (253
U. 8. 26, 40 Sop. Ct Rep.
425)
T. United States (Mem.) (253
U. S. 478, 40 Sup. a. Rep.
585)
United States v
United States v. ( Mem. ) ....
Rederiaktiebolaget Atlanten v. Aktie-
selskabet Korn-Og Foder-
stof Kompagniet (252 U.
S. 313, 40 Sup. Ct Rep.
332)
Reed y. Hughes Tool C^. (Mem.)
(251 U. 8. 561, 40 Sup. Ct.
Rep. 342)
Reeder t. United States (Mem.)
(252 U. S. 581, 40 Sup. CJt.
Rep. 346)
Reward Oil Co. v. Petroleum Reetify-
ing Co. (Mem.) (251 U. 8.
664, 40 Sup. Ct Rep. 119)
Rex T. United Stotes (261 U. 8. 382,
40 Sup. Ct Rep. 181) ..
Reynolds, Philadelphia & R. R. Co. v.
(Mem.)
Rhode Island v. Palmer (263 U. S.
360, 40 Sup. Ct. Rep. 486)
Richardson v. Qermania Bank
(Mem.) (252 U. 8. 682, 40
Sup. Ct Rep. 393)
Richmond, Powers ¥. (Mem.)
Riete T. United SUtes (Mem.) (261
U. S. 560, 40 Sup. Ct Rep.
219)
Rissala, Magna Copper Co. y. (Mem.)
Road Improy. Dist., Chicago, R. L &
P. R. Co. V. (Mem.)
Rocha y. Tuason y Patino (Mem.)
(252 U. S. 578, 40 Sup. Ct.
Rep. 344)
Roebling's (John A.) Sons Co., Erick-
son V. (Mem.)
Ross (P. Sanford), Sullivan v.
(Mem.)
Roussell, New Orleans Land Co. y.
(Mem.)
Rowe V. Droheu (Mem.) (252 U. 8.
587, 40 Sup. Ct Rep. 396)
Roxford Knitting Co. y. Moore k
Tiemey (Mem.) (253 U. S.
498, 40 Sup. Ct. Rep. .588 )
y. Moore (William) Knitting
Co. y. (Mem.) (253 U. 8.
498, 40 Sup. Ct. Rep. 588)
Royal Indemnity Co., T^high Valley
R. (o. V. (Mem.)
1019
919
443
760
1022
760
1022
686
415
726
411
318
1026
946
727
404
414
417
781
725
729
1029
722
730
1031
1037
1024
SI
CASES R£PUKTKD.
Royster (F. S.) Guano Co. v. Vir-
ginia (253 U, S. 412, 40
Sup. Ct. Rep. 660) 989
Rucker v. Tatlow (Mem.) (251 U. S.
537, 40 Sup. Ct. Rep. 55) 402
Rudbach, South Coast S. S. Co. ▼. . . 386
Ruppert (Jacob) v. Caffey (261 U. S.
204, 40 Sup. Ct. Rep. 141) 260
Ryan (D. W.) Towboat Co. v. Draper
(Mem.) (263 U. S. 486, 40
Sup. Ct. Rep. 483) .... 1026
a
St. Louis & S. F. R. Co., Spiller v. . . 810
St Louis Brewing Asso. v. Moore (263
U. S. 360, 40 Sup. Ct. Rep.
486) 946
St. Louis, I. M» & S. R. 0>., Southern
Cotton Oil Co. V. (Mem.) 731
Spiller V 810
V. True (Mem.) (262 U. S. 589,
40 Sup. Ct Rep. 392) ... 730
T. United SUtes (261 U. 8. 198,
40 Sup. Ct Rep. 120) ... 225
T. Williams (261 U. S. 63, 40
Sup. Ct Rep. 71) 189
8t Paul F. k M. Ins. Co. v. Hagemeyer
Trading Co. (Mem.) (253
U: S. 497, 40 Sup. Ct. Rep.
588) 1031
T. Tbomsen (Mem.) (253* U. a
497, 40 Sup. Ct Rep, 5SS) 1031
Saks ^ O)., District of Columbia v. .
(Mem.) 1022
Sandaa V. United States (Mem.) (253
U. S. 497, 40 Sup. Ct Rep.
587) 1031
Sandgren v. Ulster S. S. Co. (Meni.)
(252 U. S. 585, 40 Sup. Ct
Rep. 394) 729
Sanger T. New York (Mem.) (251 U.
S. 537, 40 Sup. Ct Rep.
55) 408
Sanitary Dist., Metropolitan West Side
Elev. R. CJo. V. (Mem.) .. 723
Sawyer v. Manitowoc Products Co.
( 263 U. S. 350, 40 Sup. Ct.
Rep. 486) 946
Scattergood, Hitchcock v. (Mem.) .. 4l6
Schaefer v. United States (261 U. S.
466, 40 Sup. C^. Rep. 259) 360
Schall V. Camera (251 U. S. 239, 40
Sup. Ct. Rep. 135) 247
Schambs, Fidelity A C. Co. v. (Mem.) 1030
Scboberg v. United States (Mem.)
(253 U. 8. 494, 40 Sup. Ct
Rep. 586) 1029
Schrader's (A.) Son, United States t. 471
Schreiber, Chesbrough v 470
Scituate Light & P. Co. v. Providence
(Mem.) (251 U. S. 535, 40
Sup. Ct Rep. 65) 401
39
Scott T. Booth (Mem.) (253 U. 8.
476, 40 Sup. Ct. Rep. 484) 1020
V. Frazier (253 U. 8. 243, 40
Sup. Ct Rep. 603) 888
Seaboard Air Line R. Co. t. Ghray
(Mem.) (251 U. 8. 566, 40
Sup. a. Rep. 218) 417
T. Horton (Mem.) (261 U. 8.
. 666, 40 Sup. Ct. Rep. 180) 417
H<iU8ton V. (Mem. ) 403
▼. Unitod States (251 U. 8. 326,
40 Sup. Ct Rep. 162) ... 290
Seattle, Hays v 243
Sedalia, Missouri ex rel., r. Pub-
lic Service Commission
(Mem.) (251 U. S. 547,40
Sup. Ct. Rep. 342) ....,,.• ^08
Seufert Bros. Co., United States ex i^L
Williams v. (Mem.) 417
Sevems Paving Co., Oklahoma R. Ca
V .^ . 168
Shaffer v. Okrter (2 cases) (262 U. &,
37, 40 Sup. Ct Rep. 221) 446
T. United States (Mem.) (251
U. S. 652, 40 Sup. Ct' j^^.
57) 410
Shannon, Mason v. (Mem.) . . : 722
Shedd V. Guardian Trust (Jo. (MeiiL)
(263 U. S. 473, 40 Sup. Ct.
Rep. 484) .............. 1019
Sbeehan, Wabash R. Co. v. (Meni.) '. . 415
Shrevefori; Southwcstei^n Gai k £.
Co. V. (Mem.) 729
Sullivan T ; 295
Silverlhome Lumber Co. v. United
States (251 U. S. 385, 40
Sup. Ct Rep. 182) . . 819
Simmoas, Davidge v. (Mera^.) 1021
V. Duart (Mem.) (251 U. 8.
: . 547, 40 Sup. Ct Rep. 842) 408
Simmaai 4 John) Co, v. Grier Bros. Co.
(Mem.) (263 L. a 482, 40
Sup. Ct Rep. 587) 1024
SimpsoB T. United States (252 U. 8.
547, 40 Sup. Ct Rep. 367) 709
▼• United SUtes !..... 666
Sinclair Rtf. Ca, Askrcn v 664
Skinner, Union Pacific Coat Co. v.
(Mem.) :..:. 721
Smedley v. McCarthy (Mem.) (261 U.
S. 664, 40 Sup. Ct. Rep.
118) 416
Smith, Douglas County v. (Mem.) .. 1019
Hawke v 871
Hawke v 877
Inter-Urban R. Co. v. (Mem.) 410
Interurban R. C^. v. (Mem.) . . 1032
Kansas City Southern R. Co. v. ...
(Mem.) 410
^Philadelphia & R. R. Co. v.
(Mem.) 1024
V. The J. J. Hill (Mem.) (251
i \U. S. 554, 40 Sup. Ct Rc|».
119) 411
CA8SS RBFORTSD.
Smith (H. D.) & Co., Peck, a ft W.
Co, V, (Mem.) ^. . .
Sneierson v. United States (Mem.)
(253 U. S. 400, 40 jSup. Ct.
Rep. 584) .'. .v'. .i.
South Butte Min. Co., ThomM T.
(Mem.) i
South Carolina, Georgia v, (Mem.) . .
South Coast, The (251 U. S. 619, 40
Sup. Ct. Rep. 233)
South Coast 8. S. Co. v. Rudbach (251
U. 8. 510, 40 Sup. Ct. Rep.
23«)
South CoTington k C. Street R. Co. t.
Kantucky (252 U. S. 300,
40 Sup. Ct. Rep. 378) ..
aMthem Cotton Oil Co. v. St. Louis,
I. M. ft-S. R. Co. (Mem.)
(252 U. S. 500, 40 Sup. Ct.
Rep. 306) C...
Southacm P. Co. v. JTUtassy (Mem.)
(251 U. S. 530, 40 Sup. a.
Bap. 57)
w. Induatrial Aoei. Commission
(251 U. S. 250, 40 Sup. Ot.
Rep. laO) ....4.,.
CMtad States V
Sattthwestam Gaa ft E. Co. t. Shreva-
port (Man.) (252 U. 8.
585, 40 Sup. Ct. Rep. 80«)
Southwick, Western U. Teleg. Co. ^.
(¥«.)
Speight, Western U. Teleg. Co. t.
(Mam.)
Sperrj, Hutehiason v. (Mem.) ......
Spillar T. Atchison, T. ft S. F. R. €o.
(258 U. S. 117, 40 Sup. Ct.
Rap. 466) ;.....
w. Chicago ft A. R. Co. (253 U.
a 117, 40 Sup. ct Rep.
466) ..; ,
w. Chicago ft E. I. R. Co. (258
U. 8. 117, 40 Sup. Ct. R^'.
466) ..:..
▼. Chicago, R. I. ft P. R. Go.
(253 U. S. 117, 40 Sup. Ct
Rep. 466) ....:.:
r. niinois C. R. Co. (258 U. S.
117, 40 Sup. Ct. Rep. 466)
r. Missouri, K. ft T. R. Co.
(253 U. S. 117, 40 Sup. Ct.
Rap. 466)
▼. Missouri P. R. Co. (263 U. S.
117, 40 Sup. Ct Rep. 466)
T. St Louis ft S. F. R. Go. (258
U. S. 117» 40 Sup. Ct. Bap.
466) ..:
T. St Louis, I. M. ft S. R. jGa
(253 U. S. 117, 40 Sup. Ct
Rep. 466)
Splatn, Stalling? v
Sponge Kxeh. Bank, Commercial Credit
Co. V. (Mem.) ..........
Sprinkle, United Statea v. (Mem.) ..
•4 I^ ea.
1081
1628
1026
1022
886
386
631
781
404
268
07
720
400
724
730
810
810
810
810
810
810
816
810
810
040
1030
73t)
StaUings v. Splain (253 U. S. 330, 40
Sup. CtRep. 537)
St4ncil ▼. Ley land (Frederick) ft Co.
(Mem.) (253 U. S. 401, 40
Sup. Ct Rep. 584)
Standard Brewery, United States v. . .
Standard Oil Co., New York v, (Mem.)
Stewart, Knickerbocker Ice Co. v. . . .
Stiedler, Pennsylvania R. Co. y.
(Mem.)
Storgard, France* ft C. S. S. Corp. v.
(Mem.)
Stratheam S. S. Co. v. Dillon (252 U.
S. 348, 40 Sup. Ct. Rep.
350)
Stroud V. United States (251 U. S. 15,
40Sup. CtRep. 50)
V. United States (251r U. S. 380,
40 Sup. Ct Rep. 176) . . .
SuUivan V.Ross (P. Sanford) (MenL)
(253 U. S. 402, 40 Sup. <X
Rep. 586)
V. Shreveport (251 U. S. 160, 40
Sup. Ct. Rep. 102)
Superior ft P. Copper Co. v. David-
ovich (Mem.) (251 U. 8.
544, 40 Sup. Ct Rep. 218)
Swain, Chicago, R. I. ft P. R. Co. t.
(Mem.)
Swann v. Austell (Mem.) (282 U. 8.
570, 40 Sup. Ct Rep. 844)
Szary, Erie R. Co. ▼ •
T.
Tall, Wheeler v. (Mem.) .......,•.
T^ilt (C. C.) Co. V. Iowa (Mem.) (252
U. S. 560, 40 Sup. Ct. Rap.
345)
Tananavios v. lUinois (Mam.) (252 U.
S. 568, 40 Sup. CU Rep.
346)
Tatlow, Rueker v. (Mem.)
Tennessee ex reL Gerard, Mayfield v.
(Mem.) ^ J....
Texas, Oklahoma v. .....•••
Oklahoma v t . . •
Oklahoma v
Texas ft G. 8. S. Co. v. Parker (Mem.)
(253 U. S. 488, 40 Sup. Ct
Rep. 485)
Texas ft P. R. Co., Armour ft Co. v.
(Mem.)
Texas Co., Askren v k ......... .
Thacber v. United States. See Simp-
son V. United States.
The Atlanten (252 U. B. 513, 40 Sup.
Ct Rep. 282)
The J. J. Hill, Smith v. (Mem.)
The Knutsford, Barber ft Co. t.
, (Mem.) —
Theden r. Union P. R. Co. (Mem.)
(253 U. S. 485, 40 Sup. Ct
Hop. 482) •
040
1028
220
418
834
1027
720
607
103
317
1020
205
407
725
726
704
1028
720
720
402
1020
610
X015
1017
1026
410
664
586
411
720
102.'»
CASKS KK1X)RTED.
Thomas v. South Butte Min. Go.
(Mem.) (253 U. S. 486, 40
Sup. Ct. Rep. 483) 1020
Thompson v. Day (Mem.) (261 U. S.
536,, 40 Sup. Ct Rep. 55) 401
Delaware, L, & W. R. Co. v.
(Mem.) 731
▼. Lucas (252 U. S. 358, 40 Sup.
Ct. Rep. 353) .. 612
V. Nichols (Mem.) (251 U. S.
569, 40 Sup. Ct. Rep. 343) 4l8
V. United States (Mem.) (251
U. S. 653, 40 Sup. C^. Rep.
57) 411
United States v 333
Thomsen, St. Paul F. & M. Ins. Co. v.
(Mem.) 1031
Tiedemann v. Tiedemtfnn (Mem.) (251
U. 8. 536, 40 Sup. Ct. Rep.
66) 402
Tiffany, Re (252 U. S. 32, 40 Sup. Ct
Rep. 239) 443
y. United States (Mem.) (252
U. S. 690, 40 Sup. Ct Rep.
394) 731
Tjosevig V. Donohoe (Mem.) (252 U.
S. 687, 40 Sup. Ct Rep.
396) 730
Tobin, Bruce V. (Mem.) 410
McCloskey v 481
Toledo & C. R. Co. v. Equitable Trust
. Co. (Mem.) (251 U. S. 553,
• 40 Sup. a. Rep. 118) .... 411
Tomasco v. Delaware, L. & W. R. Co.
(Mem.) (251 U. S. 551, 40
Sup. Ct. Rep. 56) 410
Toppin, Panama R. Co. v 582
Townshend, Garcia t. ( Mem. ) ....... 418
Trader v. United States (Mem.) (251
U. S. 555, 40 Sup. Ct. Rep.
119) 412
Transit Development Co., Cheatham
Electric Switching Device
Co. V. (Mem.) 719
Travis ▼. Yale & T. Mfg. Co. (252 U.
S. 60, 40 gup. Ct Rep. 228) 460
Tredwell v. United States (Mem.)
(253 U. S. 496, 40 Sup. Ct
Rep. 587 ) 1031
Trefry, Maguire v 739
True, St. Louis, I. M. & S. R. Co. T.
(Mem.) 730
Tuason y Patino, Roclia v. ( Mem. ) . . 725
Twohy V. Doran (Mem.) (2.11 U. S.
541, 40 Sup. Ct. Hep. 177) 406
U.
Uhl V. United States (Mem.) (253 U.
S. 491, 40 Sup. Ct Rep.
584) 1028
n^ter S. S. Co.. Sandgren v. (:Mem.) 729
21
Union Invest Co., Britton v. (MenL) 726
Union Pacific Ck)al Co. v. Skinner
(Mem.) (252 U. S. 570, 40
Sup. Ct Rep. 392) 721
Union P. R. Co., Briggs v. (Mem.) . . 404
V. Burke (Mem.) (251 U. 8.
648, 40 Sup. Ct Rep. 66) 409
V. Jenkins (Mem.) (252 U. S.
589, 40 Sup. Ct. Rep. 393) 731
• Nadeau v 1002
Theden V. (Mem.) 1023
Union Trust Co. v. Woodward k
Lothrop CMcm.) (252 U. S.
668, 40 Sup. Ct Rep. 343) 720
United States, Ex parte (Mem.) (251
U. S. 546, 40 Sup. Ct Rep.
481) 408
V. .^na Explosives Co. (Mem.)
(263 U. S. 481, 40 Sup. Ct
Rep. 483) 1023
T. Alaska S. S. Co. (Mem.)
(262 U. S. 672) 722
V. Alaska S. S. Co. (253 U. S.
113, 40 Sup. Ct Rep. 448) 808
Albers V. (Mem.) 1024
V. American Brewing Co. (261
U. S. 210, 40 Sup. Ct Rep.
139) 229
Ammerman v. (Mem.) ..*.... 1030
Anderson v. (Mem. ) 1030
▼. Archer (Mem.) (251 U. B.
548, 40 Sup. Ct Bep. 342) 409
Archer v. (Mem.) 409
Ash Sheep Co. v 607
Atlanta Terminal Co. v. (Mem.) 414
Atlantic Coast Line R. Co. v.
(Mem.) 408
V. Atlantic Dredging Co. (253
U. S. 1, 40 Sup. Ct Rep.
423) 735
Baender v. (^Mem. ) 729
Bain v. ( Mem. ) ...» 729
Beidler v 1006
Birmingham Trust & Sav. Co.
V. (Mem.) t .. . .. 410
Bliss (E. W.) Co. V 852
Bloch V. (Mem. ) 102:>
Bouldin V. (Mem.) 102h
Brown v. (Mcm.| 411
Burnap v 692
Byron V. (Mem.) 41:^
Cameron v 050
Chapa V. ( ^tem. ) 72 -^
V. Chase Xat. Bank (252 U. S.
48.5, 40 Sup. Ct Rep. 361) 67o
Darkow v 360
De Four v. (Mem.) 1026
V. Delaware A 1$. B. R, Co. use
of Philadelphia & R. R. Co.
(Mem.) (251 U. S. 539, 40
Sup. Ct Rrp. 118) 404
Doremus v. (Mem. ) 1026
Duncan V. (Mem.) 417
CASKS KE1\)UTKD.
L'njii'tl Stalw, Ka^^tern Kxteusion, A.
& C. Tele^r. To. V s.. 305
Kqui V. (Meia.i 414
Ervien v 128
Fcltman v. (Mem.) 1030
Fetters V. (Mem.) 412
Oaranflo v. (Mem.) 417
Gilson V. (Mem.) 412
Globe Works v. (Mem.) 730
Grand Trunk Western R. Co. v. 484
Griffith V. (Mem.) 725
Hallowell v. (Mem.) 413
Hard in- Wyandot Lighting Co.
V 210
Henry v 322
Herman v. (Mem. ) 413
Horowitz V. (Mem.) 720
«K rel. Kansas City Southern
' R. Co. V. Interstate Com-
• merce Commission (252 U.
S. 178, 40 Sup. Ct Rep.
187) 517)
Kansas City, M. & 0. R. Co. v. 290
Xanias City Southern R. Co. v. 500
XoUman v. (Mem.) 1027
Kriohman v. (Mem.) 724
Kmse V. (Mem.) 1029
Laughter t. (Mem.) 415
Leary v 798
Lcmke v 360
Lindsay v. (Jklem.) 727
Louie V. (Mem.) 1024
McOiy Engineering CJo. v.
(Mem.) 721
MeKnight T. (Mem.) 406
MaeKnight t. (Mem.) 1029
McLau^lin v. (Mem.) 405
▼. MacMillan (253 U. S. 195, 40
Sup. (3t. Rep. 540) 857
liaryland Casualty Co. v 297
T. Mill Creek & M. H. Nav. & R.
. O). use of Philadelphia A
R. R. Co. (Mem.) (251 U.
8. 539, 40 Sup. Ct Rep.
118) 404
Miller v 728
National Lead Co. t 496
T. National Surety Co. (Mem.)
(252 U. S. 677, 40 Sup. Ct.
Rep. 396) 724
use of American Sheet Metal
Works, National Surety
Co. V. (Mem.) 731
New York 0. A H. R. R. Co.
V 290
New York, N. H. & H. R. Co.
T 182
T. North American Transp. k
Trading O. (253 U. S.
330, 40 Sup. Ct Rep. 518) 935
North American Transp. &
Trading Co. v 935
Northern P. R. Co, v 290
•4 L. ed.
i/nited States v. North PennsyWania
R. Co. use of Philadelphia
& R. R. Co. (Mem.) (251
U. S. 539, 40 Sup. Ct Rep.
118) 404
O'Connell v • 827
T. Chnaha Tribe of Indians
(253 U. S. 275, 40 Sup. Ct
Rep. 522) 901
Omaha Tribe of Indians v. . . 901
V. Osage County (251 U. S. 128,
40 Sup. Ct K^. 100) .... 184
Partan v. ( Mt-m. ) , 415
ex rel. Jolnison v. Payne (263
U. S. 200, 40 Sup. Ct. Rep.
513) 863
Pennaccliio v. ( Mem. ) 1031
Phillips v. ( Mem.) 1028
Pierce v 542
V. Poland (251 U. 8. 221, 40
Sup. Ct. Rep. 127 ) 236
Pollard V. (Mem.) 725
V. Quaker Oats Co. (Mem.)
(253 U. S. 499, 40 Sup. Ct.
Rep. 683) 1032
Randolph v. (Mem.) 1032
T. Reading Co. (253 U. S. 26,
40 Sup. Ct Pvep. 425) .. 760
T, Reading Co. (Mem.) (258
U. S. 478, 40 Sup. Ct. Rep.
685) 1022
Reading Co. t. 760
Reading Co. V. (Mem.) 102i
Reeder v. (Mem.) '.... 726
Rex V 318
Rietz V. (Mem.) 414
St. Louis, I. M. & S. R. Co. v« 225
Sandaa v. (Mem.) 1031
Schaefer T 360
Schoberg v. (Mem.) 1029
V. Schrador's (A.) Son (252
U. S. 85, 40 Sup. Ct. Rep.
261) 471
Seaboard Air Line R. Co. v. . . 290
ex rel. Williams v. Seufert
Bros. Co. {Mem,) (251 t'.
S. 566, 40 Sup. Ct Rep.
178) 417
Shaffer v. (Mom.) ..'. 410
Silverthome Lumber Co. v. . . 319
V. Simpson (252 U. S. 405, 40
Sup. Ct. Rep. 364) 665
Simpson t 709
Sncierson v. (Mem.) 1028
V. Southern P. Co. (251 U. 8.
1, 40 Sup. Ct Rep. 47) 97
T. Sprinkle (Mem.) (262 U. S.
689, 40 Sup. Ct Rep. 345) 730
▼. Standard Brewery (251 U.
S. 210, 40 Sup. Ct Rep.
139) 229
Stroud V. 103
Stroud Y 317
2S
GASB8 REFOBTED.
CTnited States v. Thompson (251 U. S.
407, 40 Sup. CU Rep. 289) 333
ThompsoB V. (Mem.) ........ 411
Tiffany r. (Mem.) 731
Trader v. (Mem.) 412
Tredwellt. (Mem.) 1030
Uhl ▼. (Mem.) 1028
United States Steel Corp. (251
U. S. 417, 40 Sup. Ct. Rep.
293) 343
Vogfil y 360
T. Wayne Cdunty (Mem.) (262
U. S. 574, 40 Sup. Ct Rep.
304) 723
Weitzel V. (Mem.) 1021
Werner v 360
Wessels T. (Mem.) 1026
White V. (Mem.) 1030
Wimmer t. (Mem.) 1030
Wine ▼. (Mem.) 1024
Cnlted SUtes Steel Corp., United
States V 343
United Thacker Coal Ck)., Maynard v.
(Mem.) 412
Uaitad Timber Corp., Bivens v.
(Mem.) 1030
V.
7. 4 &x Bottle Co. T. Mountain Gas
Co. (Mem.) (261 U. S.
544, 40 Sup. Ct Rep. 218) 406
Vallely, Gktlbraith v. (Mem.) 724
Vandenlmrgfa v, Electrio Welding Go.
(Mem.) (253 U. S. 497, 40
Sup. Ct. Rep. 587) 1031
^an de Zande, Chicago ft N. W. R. Co.
V. (Mem.) 723
Vargas v. Yapticp (F. M.) ft Co.
(Mem.) (253 U. S. 498, 40
Sup. (X Rep. 586) 1029
Vsasey, Peters ▼ 180
Vlegelmann (E.) ft Co. ▼. Collector
of Customs (Mem.) (251
U. S. 563, 40 Sup. Cit
Rep. 56) 416
Virginia, Royster (F. S.) Guano O.
V 989
ex rel. ftuena Vista, Virginia-
Western Power Co. ▼.
(Mem.) 413
ex rel. Clifton Forge, Virginia-
Western Power Co. ▼.
(Mem.) 413
«z rel. Covington, Virginia-
Western Power Co. v.
(Mem.) 413
ex rel. Lexington, Virginia-
Western Power Co. t,
(Mem.) V 413
Virginia ft W. V. Coal Co. v. Charles
(Mem.) (262 U. S. 569, 40
Sup. Ct Rep. 346) 720
««
Virginia-Western Power Co. v. Vir-
. ' ginia ex reL Buena Vista
- (Mem.) (251 U. S. 657, 40
. Sup. Ct Rep. 179) 413
T. Virginia ex* rel. Clifton
Forge (Mem.) (261 U. S.
557, 40 Sup. Ct Rep. 179) 413
W* Virginia ex rel. Covington
(Mem.) (251 U. S. 557, 46
Sup. Ct Rep. 179) ...; 413
V. Virginia ex rel. Lexingtoa
(Mem.) (251 U. S. 557,40
Sup. Ct. Rep. 179) 413
Vogel ▼. United States (251 U. S.
466, 40 Sup. Ct Rep. 269) 860
W.
Wabash R. Co. v. Sheehan (Mem.)
(261 U. S. 562, 40 Sup. Ct.
R^. 342) 416
Wagner v. Covington (251 U. S. 95,
40 Sup. Ct Rep. 93) .... 157
Wallace v. Hines (253 U.' S. 66, 40
Sup. Ct. Rep. 435) .... .\ 7«2
Wanamaker, Meccano v 822
Ward, Chicago, R. I. ft P. R. Co. r. . . 430
T. Love County (253 U. S. 17,
40 Sup. Ct Rep. 419) .. 751
Warren-Godwin Lumber Co., Postal
Teleg. Cable Ck>. v 118
Wartell v. Moore (Mem.) (251 U. A
568, 40 Sup. Ct Rep. 342) 416
War Time Prohibition Cases: See
Hahiltok y. KENTixmr
Distuxoiies ft WAMMSfffom
Co.; RupFEBT (Jacob) ▼.
Caftkt; United States y.
Standard Bbeweby.
Washburn v. Gillespie (Mem.) ,(25^
U. S. 587, 40 Sup. Ct Rep.
396) 729
Washington v. Belknap (Mem.) C251
U. a 563, 40 Sup. Ct Rep.
118) 411
Great Northern R. Co. v-
(Mem.) 416
Wayne County, United States T.
(Mem.) 723
Weaver, Bragg v 135
Weber Electric Co. v. Freeman (E.
H.) Electric ('o. (Mem.)
(263 U. S. 481, 40 Sup. Ct
Rep. 483) 1023
Weidhom v. Levy (253 U. S. 268, 40
Sup. Ct Rep. 534) 898
Weinberg, Jay v. ( Mera. ) 729
Weitzel v. United SUtes (Mem.)
(253 U. 8. 476, 40 Sup. Ct.
Rep. 485) 1021
Welch Grape Juice Co., Frey ft Son
T. (Mem.) 410
Werner v. United States (251 U. S.
466, 40 Sup. Ct. Rep. 250) t9»
• 1
CASES REPORTED.
NN easels v. United Stated (Mem.)
(263 U. S. 486, 40 Sup. Ct.
Rep. 481)
Wettcm U. Teleg. Ck>. v. Boegli (261
U. S. 316, 40 Sup. Ct Rep.
1«7)
▼. Brown (263 U. S. 101, 40
Sup. Ct Rep. 460)
T. Poeton (Mem.) (253 U. S.
480, 40 Sup. Ct. Rep.
482)
▼. Soothwidc (Mem.) (261 U.
S. 549, 40 Sup. Ct Rep.
219)
▼. Speight (Mem.) (262 U. 8.
57(t, 40 Sup. Ct. Rep. 344)
Watt Virginia, Pennsylyania v
^9¥bmkfr t. Taft (Mem.) (253 U. S.
490, 40 Sup. <^. Rep. 584)
Wlritt T. Chin Fong (263 U. S. 90,
40 Sup. Ct Rep. 449) ..
Jeong Quey How v. (Mem.) .
Kwodc Jan Fat v
T. United States (Mem.) (253
U. S. 496, 40 Sup. Ct. Rep.
587)
Tee Won v. (Mem.)
WiUem t. Bradley (Mem.) (252 U.
8. 673, 40 Sup. Ct. Rep.
396)
WMams, First Nat. Bank t
St Louis, I. M. & S. R. Co. t.
United States ex rel. v. Sen-
lert Bros. .Co. (Mem.)
(251 U. 8. 566, 40 Sup.
Ct. Rep. 178)
Witeoa T. Benham (Mem.) (251 U.
8. 560, 40 Sup. Ct. Rep.
219)
Wimm&t T. United States (Mem.)
(253 U. S. 494, 40 Sup. Ct
Rep. 686)
Win^heeter v. Winchester Water-
works Co. (251 U. 8. 192,
40 Sup. CJt. Rep. 123)
WiDohester Waterworks Co., Win*
dbester t
Window Glass Mach. Co., Consolidated
Window Glass Co. t.
(Mem.) .......^
•4 Ii. ed.
1025
281
803
1023
409
721
717
1028
797
414
1010
1080
409
722
690
189
417
414
1080
221
221
. Window Glass Mach. Co., Kane Glass
Co. V. (Mem.) 413
Pennsylvania Window Glass
Ck). V. (MenL) 413
Wine V. United SUtes (Mem.) (263
U. S. 484, 40 Sup. Ct Rep.
481) 1024
Wintroath, Chapman r. 491
Wisconsin ex rel. Milwaukee, Milwau-
kee Electric R. & Light
Co. V 476
Minnesota v 558
Wisconsin Trust Co., Munday v 684
Woodward & Lothrop, Union Trust
Co. V 720
Worth Bros. Co. v. Lederer (251 U.
S. 507, 40 Sup. Ct Rep.
282) 377
Wyiong & M. Co. v. Bank of North
America (Mem.) (251 U.
8. 668, 40 Sup. Ct. Rep.
343) 418
▼. Planters Nat Bank (Mem.)
(251 U. 8. 568, 40 Sup.
Ct Rep. 343) 418
Y.
Yale k T. Mfg. Co., Trayis t 460
Yaptioo (F. M.) & Co., Vargas t.
(Mem.) 1029
Yazoo 4 M. Valley R. Co. v. Nichols
k Co. (Mem.) (251 U. 6.
660, 40 Sup. a. Rep. 219) 40»
Yee Won ▼. White (Mem.) (251 U. S.
549, 40 Snp. Ct Rep. 180) 409
Yncihausti k Co., Publie UtiUtj
Comrs. ▼. 827
York k W. Ca t. New York C. ft H.
R. R. Co. (Mem.) (253 U.
8. 478, 40 Sup. Ct Rep.
481) 1022
New York C. ft H. R. R. Co.
▼. (Mem.) 1022
Z.
Zuber, Miesouri, K. ft T. R. Ce. ▼«
4181 (Mem.) t..*.^*.... 40»
S7
CITATIONS.
IN OPINIONS OF THE JUDGES CONTAINED IN THIS BOOK.
A. Badnit, Jr., & Sons ▼. Fort Street
Union Depot Co. 169 U. 8.
667» 42 L. ed. 853, 18 Sup.
Ct. Rep. 445 187/ 188
Abbott Bros. Co. t. United States, 155
C. C. A. 889, 242 Fed. 751 842
Abraham t. Ordway, 158 U. 8. 416,
89 L. ed. 1036, 15 Sup. Ct.
Rep. 894 247
Abrami ▼. United States, 250 U. S.
616, 63 L. ed. 1173, 40 Sup.
Ct. Rep. 17 365, 549
Adair v. United States, 208 U. S. 161,
52 L. ed. 436, 28 Sup. Ct.
Rep. 277, 13 Ann. Cas. 764 849
Adams ▼. Baker, 24 Nev. 375, 55 Pac
362 675
▼. Milwaukee, 228 U. S. 572, 57
L. ed. 071, 33 Sup. Ct. Rep.
610 276
V. New York, 192 U. S. 585, 48
L. ed. 575, 24 Sup. Ct. Rep.
372 321
T. Tanner, 244 U. S. 590, 61
L. ed. 1336. L.R.A.1917F,
1163, 37 Slip. Ct. Rep. 66^,
Ann. Cas. 1917D, 973 849
Adams Exp. Co. v. Croningor, 226 U.
S. 491, 67 L. ed. 314, 44
L.R.A.(N.8.) 257, tiZ Sup.
Ct. Rep. 148 120
V. Ohio State Auditor, 165 U.
S. 194, 41 L. ed. 683, 17
Sup. Ct. Kep. 305, 166 U.
S. 185, 41 L. ed. 965, 17
Sup. Ct. Rep. 604 984
Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211, 44
L. ed. 136, 20 Sup. Ct. Rep.
96 358
Adirondack R. Co. v. New York, 176
U. S. 385, 44 L. ed. 492, 20
Sup. Ct. Rep. 460 137
.«tiia L. Ins. Co. v. Ward, 140 U. S.
76, 35 L. ed. 371, 11 Sup.
Ct. Rep. 720 151
64 fi. ed.
Alabama Q. S. R. Co. ▼. ThomptOB,
200 U. 8. 206, 60 L. ed. 441,
26 8up. Ct. Rep. 161, 4
Ann. Cas. 1147 484
Alaska Pacific Fisheries r. Alaska, 249
U. 8. 53, 68 L. ed. 474, 39
Sup. Ct. Rep. 208 1020
Allen T. 8t. Louis, I. M. A 8. R. Co.
280 U. 8. 558, 67 L. ed.
1625, 38 Sup. Ct Rep. 1080 140
Allgeyer y. Louisiana, 165 U. 6. 678,
41 L. ed. 882, 17 8up. Ct.
Rep. 427 689
Amarilto v. Southwestern Tislsg. A
Teleph. Co. 165 C. C. A.
264, 258 Fed. 638 826
American Diamond Drill Co. ▼• Sul-
livan Mach. Co. 82 Fed. 552,
181 U. 8. 428, 83 L. ed. 217,
9 Sup. Ct Rep. 794 926
American Ezp. Co. y. South Dakota,
244 U. 8. 617, 61 L. ed.
1352, P.U.R.1917F, 45, 37
Sup. Ct Rep. 656 275
American Mfg. Co. y. St. Louis, 260
U. 8. 459, 63 L. ed. 1084,
39 Sup. Ct Rep. 522.. 456, 458
American School y. McAnnulty, 187
U. S. 94, 40 L. ed. 90, 23
Sup. Ct. Rep. 33 556
American Scour. A T. C-o. y. District
of Columbia, 224 U. S. 491,
56 L. ed. 866, 32 Sup. Ct.
Rep. 553 946
American S. B. Co. v. Chase, 16 Wall.
522, 21 L. ed. .169 ...... B42
American Tobacco C'o. Caho, 221 U.
6. 106. 65 L. ed. 663, 31
Sup. ft. Rep. 632 .. 355,
356, 858, 359. 776, 098
Amoskeag Mfg. Co. v. Trainer, 101
V. S. 51, 25 L. ed. 993 707
Amoskeag Say. Bank v. Purdy, 231 U.
S. 373, 58 L. ed. 274, 34
Sup. Ct. Rep. 114 470
Amy y. Watertoivn. 130 U. S. 301, 32
L. ed. 046, 9 Sup. Ct. Rep.
.'»30 843
CASES CITED.
r»
Anglo-American Provision Co. v. Daris
Provision Co. 191 U. 8.
373, 48 L. ed. 225, 24 Sup.
Ct. Rep. 92
Anheuser-Busch Brewing Asso. v. Unit-
ed States, 207 U. S. 666,
62 L. ed. 336, 28 Sup. Ct.
Rep. 204 #.
Anthony y. Jillson, 83 Cal. 296, 2a
Pac. 419, 16 Mor. Min. Rep.
26
Antoni t. Gr^hhow, 107 U. S. 769,
27 L. ed. 468, 2 Sup. Ct.
Rep. 91
Appleby v. Buffalo, 221 U. S. 624, 66
L. ed. 838| 31 13up. Ct. Rep.
69f)..,.
Arizona Copper Co. v. Hammer. See
AbezOna Emplotebs' Lia-
, . BQJTT Cases.
Arizona Employers' Liability Cases,
260 U. S. 400, 63 L. ed.
. 1066, 6 A.L.R. 1637, 39
. Sup.Ct. Rep. 663 .... 134,
A^kan^; T. Teni^Bee^ 246 U. 8. 168,
' ^ ;j{ Oa L^ ed. 638, L.R.A.1918D,
268, 88 Sup. Ct. Rep. 301
Aiv^our k Co. ▼. Virginia, 246 U. S.
1, 62 L. ed. 647, 38 Sup.
Ct. Rep, 267
Arrer t. United State«. See Seubo-
TivB Pratt Law Cases.
Aspen Min. & Smelting Co. v. Billings,
, 160 U. a 31, 37 L. ^. 986,
' 14 Si?p. Ct. Rep. 4
Associated Oil Co. .T. Railroad Com-
,^ mi^afoni ,176 CaU 618,
L.R.A.1918C, 849, P.U.R.
1918B, 633, 169 Pac 62
AtchisjdBy T. ft 8. F. R. Coi V. O'Con-
nor, 223 U. 8. 2i0, 66 L.
ed. 436, 32 Sup. Ci. Rep.
216, Ann. Cas. 1913C, 1060
600, 768,
T. Sowers, 213 U. 6. 66, 63 L.
ed. 696, 29 Sup. Ct Rep.
397
T. United States, 226 U. 8. 640,
66 L. ed. 1236, 32 Sup. Ct
Rep. 702 ... . 184, 291, 296,
Attantio t 6. W. R. Co. v. Koblents,
21 Ohio St. 334
Atlantie Coast Line R. Co. y. Mims,
242 U. 8. 632, 61 L. ed. 476,
37 Sup. Ct Rep. 188, 17
N.C.O. A. 349
Atlantic lYansport Co. v. Imbtoyek,
234 U< 8. 62, 68 L. ed.
1208, 61 LJtJl. (N.8.) 1167,
34 Sup. Ct. Rep. 738 ,
Auffmofdt T. Hedden, 137 U. S. 310,
34 L. ed. 674, 11 Sup. Ct
Rep. 103
640
383
682
716
606
407
663
466
719
242
769
641
408
939
484
181
696
Aultman^A T. Co. v. Syme, 24 C. C. A.
639, 61 U. S. App. 48, 79
Fed. 238 716
Austin V. Boston, 7 Wall. 694, 19 L.
ed. 224 893
Ayers Re, 123 U. S. 443, 31 L. ed. 216,
8 Sup. Ct Rep. 164 . . 669, 670
B.
Babbitt ▼. Dutcher, 216 U. 8. 102, 64
L. ed. 402, 30 Sup. Ct
Rep. 372 900
Baoeufi v. Louisiana, 232 U. S. 334,
68 L. ed. 627, 34 Sup. Ct
Rep. 439 167
Backus, Jr. k Sons v. Fort Street Un-
ion Depot Co. 169 U. 8.
^67, 42 L. ed. 863, 18 Sup.
Ct Rep. 445 480
Baeon t. Texas, 163 U. S. 207, 41 L.
ed. 132, 16 Sup. Ct Rep.
1023 IWl
Badger. ▼. Badger, ^ Wall. 87, 17 ^
ed. 836 S!4d
Baer Bros. Mercantile Co. v. Denver
k R. G. R. Co. 233 U. 8.
f 79, 58 L. ed. 1066, 34
Sup. Ct. Rep. 641 ....
BaM, 1^ parte, 177 U. 8. 378, 44 L.
ed. 813, 20 Sup. Ct Rep.
673
BagdoB ▼. Philadelphia k R. Coal k
i. Co. 217 N. Y. 432, t.RJL
1916F, 407, 111 N. E. 1076,
Ann. Cas. 1918A, 389 ..
BaUey t. New York C. & H. R. E. Co.
22 Wall. 604, 22 L. ed. 840 640
T. tVestem U. Teleg. Co. 97
Kan. 619, 166 Pao. 71« 181
Balbaa ▼. United States, — C. a A.
— , 267 Fed. 17 M8
BaldwiB T. Franks, 120 U. S. 678, 80
L. ed. 766, 7 Sup. Ct Rep.
666 64(8, 763
Ball T. Halsell, 161 U. 8. 72, 40 II. ed.
622, 16 Sup. Ct Rep. 664
846-649
Ball Bi^neering Co. v. J. G. White
ft Ca 250 U. 8. 46, 63 L.
ed. 836, 39 Sup. Ct Rep.
393 309, 987
Ballew ▼. United SUtes, 160 U. a 187,
40 L. ed 388, 16 Sup. Ct
Bep. 263 884
Ballon, Re, 216 Fed. 810 Ml
Baltimore, The, 8 Wall 877» 19 L. ed.
408 ....; W?
Baltincto'e ft P. R. Co. v. Hopkins, 130
U. S. 210, 32 L. ed 908, 9
Sup. Ct Rep. 603 428
I Bank of Augusta ▼. Earle, 18 Pet
* 619, 10 L. ed. 274 934
M8
816
OASBS
Bank of Augusta t. Earle, 13 Pet 679^
10 L. €d. 303, 191 U. 8. 376,
48 L. ed. 227/24 Sup. Ct.
Rep. 92 640
Bank of England v. Vagliano Bros.
[1891] A. C. 107, 60 L. J.
Q. B. N. S. 145, 64 L. T.
N. S. 353, 30 Week. Rep.
657, 55 J. P. 676, 8 Eng.
RuL Gas. 695 680
Bank of Newport ▼. Cook, 29 L.R.A.
761, 39 Cye. 948 177
Bank of United States y. Bank of
Georgia, 10 Wheat. 833, 6
L. ed. 334 679
T. Johnson, 8 Cranch, C. C. 228,
Fed. Gas. No. 919 023
Barbour v. Georgia, 249 U. a 464, 63
L. ed. 704, 39 Sup. Gt
Rep. 816 200, 275
Bardea t. First Nat. Bank, 178 U. S.
624, 44 L. ed. 1176, 20
Sup. Gt. Rep. 1000 900
Barnes's EsUte, 221 Pa. 399, 70 AtL
790 917
Bamei r. lluncie Nat Bank, 98 U.
a 666, 26 L. ed. 212 .... 176
Bury T, Barry, 8 Cranch, C. C. 120,
Fed. Gas. No. 1,060 .... 923
Bartels r. Redfield, 47 Fed. 708 ... . 927
B«rtemeyer y. Iowa, 18 Wall. 129,
21 L. ed. 929 200
Bartk T. Glise, 12 Wall. 400, 20 L. ed.
Baaao ▼. United States, 239 U. 8* 602,
60 L. ed. 462, 36 Sup. Ct
Kep. 226 938
Batemtn y. Western U. Teleg. Co. 174
N. a 97, L.R.A.1918A, 803,
. 93 S., B. 467 121
Bate Refrigerating. Co. y. Sulzberger,
157 U. S. 1, 39 L. ed. 601,
16 Sup. Gt Rep. 508 234
Battle T. United States, 209 U. S. 36,
52 L. ed. 670, 2S Sup. Ct
Rep. 422 275
Bamnan y. Rosa, 167 U. S. 548, 42 L.
ed. 270, 17 Sup. Ct Rep.
966 938, 939
Bayard ▼. United States, 127 U. 8.
246, 32 L. ed. 116, 8 Sup.
Ct. Rep. 1223 869
Reals y. Cone, 27 Colo. 473, 83 Am.
St. Rep. 92, 62 Pac. 948,
20 Mor. Min. Rep. 691 .. 577
Bean y. Morris, 86 C. C. A. 519, 159
Fed. 651, 221 U. S. 485, 65
L. ed. 821, 31 Sup. Ct. Rep.
708 510
Beayers, Re, 126 Fed. 988, 131 Fed.
366 94»
y. Haubart, 198 U. S. 77, 49 L.
ed. 960, 26 Sup. Ct. Rep.
573 614
a I li. cd.
CITED.
Beayers y. Henkel, 194 U. S. 73, 48 L.
ed. 882, 24 Sup. Gt. Rep.
606 944
Beecher y. Wetherby, 96 U. S. 517, 24
L. ed. 440 1006
Beers y. Glynn, 211 U. S. 477, 63 L.
ed. 290, 29 Sup. Ct. Rep.
186 992
Belk y. Meagher, 104 U. S. 279, 26 L.
ed. 735, 1 Mor. Min. Rep.
510 576, 582
Bell's Gap R. Co. y. Pennsylyania, 134
U. S. 232, 33 L. ed. 892, 10
Sup. Ct Rep. 533 .. 220,
468, 991, 992
Benson y. Henkel, 198 U. S. 1, 49 L.
ed. 919, 25 Sup. Ct Rep.
569 944
Berry y. Dayis, 212 U. S. 468, 61 L.
ed. 441, 37 Sup. Ct. Rep.
208 810
Berryhill y. Carter, — Okla. — , 186
Pac. 93 ...'. 454
Berryman y. United States, 170 C. C.
A. 276, 259 Fed. 208 ... . 666
Bessette y. W. B. Conkey Co. 194 U.
S. 324, 48 L. ed. 997, 24
Sup. Ct. Rep. 666 406
Beuttell y. Magone, 157 U. S. 154, 39
L. ed. 654, 15 Sup. Ct Rep.
566 289
Bigby y. United States, 188 U. S. 400,
47 L. ed. 519, 23 Sup. Ct
Rep. 468 864, 938
Bigelow y. Old Dominion Copper Min.
k Smelting Co. 225 U. S.
Ill, 56 L. ed. 1000, 32 Sup,
Ct. Rep. 641, Ann. Gas.
1913E, 876 162
y. Old Dominion Copper Min. &
Smelting Co. 74 N. J. Eq.
457, 71 Atl. 153 168
BUby y. Stewart, 246 U. S. 265, 62 L.
ed. 701, 38 Sup. Ct. Rep.
264 406. 719, 720
Billings y. Sitner, 142 G. C. A. 607,
228 Fed. 315 618
y. United States, 232 U. S. 261,
58 L. ed. 596, 34 Sup. Ct.
Rep. 421 893
Bishop y. State, 149 Ind. 223, 39
L.R.A. 278, 63 Am. St. Rep.
279, 48 N. E. 1038 534
Black T. McClelland, Fed. Cas. No.
1,462 252
Blackheath, The, 195 U. S. 361, 49
L. ed. 236, 25 Sup. Ct. Rep.
46 132, 839
Blackstone v. Miller, 188 U. S. 189,
47 L. ed. 439, 23 Sup. Ct
Rep. 277 751
Blair y. Chicago, 201 U. S. 400, 50
L. ed. 801, 26 Sup. Ct. Rep.
427 ...'.. 857
SI
• ^ 4
CASES CITED.
Blair v. United States, 260 U. S. 273,
63 L. ed. 979, 30 Sup. Ct.
Rep. 468 342
Blake v. MeClung, 172 U. S. 2:J0. 43
L. ed. 432, 19 Sup. Ct. Rep.
165, 176 U. S. 59, 44 L.
ed. 371, 20 Sup. Ct. Rep.
307 469, 716
▼. United States, 103 U. 8. 227,
26 L. ed. 462 694
Blythe v. Hinckley, 180 U. S. 333, 45
L. ed. 557, 21 Sup. Ct. Rep.
396 648
Board of Liquidation v. McComb, 92
U. S. 531, 23 L. ed. 623 669
Bois^ Artesian Hot &, Cold Water
Co. V. Bois^ City, 213 U.
S. 276, 63 L. ed. 796, 29
Sup. Ct. Rep. 426 187
Bonner, Re, 151 U. S. 242, 38 L. ed.
149, 14 Sup. Ct. Rep. 323 618
Boston & F. Iron Works, Re, 23 Fed.
880 262
Boaton k IL Consol. Copper & S. Min.
Co. V. Montana Ore Pur*
chasing Co. 188 U. S. 632,
47 L. ed. 626, 23 Sup. Ct.
Rep. 434 602
Boaton Beer Co. v. Massachusetts, 97
U. S. 25, 24 L. ed. 989 . . 200
Boetwick y. Brinkerhoff, 106 U. 8. 3,
27 L. ed. 73, 1 Sup. Ct.
Rep. 15 618
Bowe T. Scott, 233 U. 8. 658, 58 L. ed.
1141, 34 Sup. Ct. Rep. 769 403
Bowersock v. Smith, 243 U. 8. 29, 61
L. ed. 572, 37 Sup. Ct. Rep.
371 134
Bowes T. Haywood, 35 Mich. 241 ..
488, 490
Bowling Green v. McMullcn, 134 Ky.
742, 26 L.R.A.(N.S.) 895,
122 S. W. 823 267, 273
Bowman v. Wathen, 2 McLean, 376,
Fed. Cas. No. 1,740 934
Boyce, Re, 29 Land Dec. 599 237
Boyd V. Nebraska, 143 U. S. 135, 36
L. ed. 103, 12 Sup. Ct. Rep.
375 758
Bradshaw ▼. State, 76 Ark. 562, 89 S.
W. 1051 267, 268
Bragg V. Weaver, 251 U. S. 57, 64 L.
ed. 135, 40 Sqp. Ct. Rep.
62 246
Brainard ▼. Hubbard. See Collbotob
▼. HUBBABD.
Brander ▼. Brander, 4 Ves. Jr. 800, 31
Eng. Reprint, 414 640
Branson ▼. Bush, 261 U. S. 182, 64 L.
ed. 215, 40 Sup. Ct. Rep.
113 430
T. Gee, 25 Or. 462, 24 L.R.A.
366, 36 Pac. 527 138
Brazce v. Michigan, 241 U. 8. 340, 60
L. ed. 1034, 36 Sup. Ct.
Rep. 661, Ann. Gas. 1917C,
522 482
Brennan v. Titusville, 153 U. 8. 289,
38 L. ed. 710, 4 Inters.
Com. Rep.' 658, 14 Sup. Ct.
Rep. 829 168
Brickill y. New York, 65 Fed. 565 . . 926
Bridges y. Sheldon, 18 Blatchf. 295,
607, 7 Fed. 17, 42 926
Briggs V. Spaulding, 141 U. 8. 132, 35
L. ed. 662, 11 Sup. Ct. Rep.
924 395
Bristol V. Washington County, 177 U.
S. 133, 44 L. ed. 701, 20
Sup. Ct. Rep. 685 466
Brolan v. United SUtes, 236 U. 8. 216,
69 L. ed. 544, 35 Sup. Ct.
Rep. 285 . . 401, 402, 645,
720, 1019-1021
Brooks-Scanlon Co. v. Railroad Com-
mission, 251 U. 8. 396, 64
L. ed. 323, P.U.R.1920C.
679, 40 Sup. Ct. Rep. 183 863
Brown y. Alton Water Co. 222 U. 8.
825, 56 L. ed. 221, 82 Sup.
Ct. Ilep. 156 719, 1020
T. Colorado, 106 U. 8. 95, 27
L. ed. 132, 1 Sup. Ct. Rep.
175 M6
T. Elliett, 225 U. 8. 892, 66
L. ed. 1136, 82 Sup. Ct.
Rep. 812 614, 616
y. Gumey, 201 U. 8. 184, 60
L. ed. 717, 26 Sup. Ct
Rep. 509 577
T. Houston, 114 U. 8. 622, 20
L. ed. 267, 5 Sup. Ct. Rep.
1091 167
y. Maryland, 1 Wheat. 419, 0
L. ed. 678 636, 640
y. State, 17 Ariz. 814, 162 Pac.
678 267, 268
T. United Button Co. 8 L.R.A.
(N.S.) 961, 79 C. C. A.
70, 149 Fed. 48, 0 Ann.
Cas. 445 254
Brown Chemical Co. * y. Meyer, 139
U. 8. 640, 36 L. ed. 247,
11 Sup. Ct. Rep. 625 707
Browning v. Waycross, 233 U. 8. 16,
68 L. ed. 828, 34 Sup. Ct.
Rep. 578 168
Bruce v. Tobin, 245 U. 8. 18, 62 L.
ed. 123, 38 Sup. Ct. Rep.
7 401, 407, 719, 1020
Bnishaber y. Union P. R. Co. 240 U.
8. 1, 60 L. ed. 493, L.R.A.
1917D, 414, 36 Sup. Ct.
Rep. 236, Ann. Cm. 1917B,
713 202, 628, 893, 896
Buffington v. Day. See Coixector v.
Day. *
CASKS CITED.
Btirfenniog r. Chicago, St. P. M. & 0.
R. Co. 163 U. S. 321, 41
L. ed. 175, 16 Sup. Ct. Rep.
1018 664
Borke v. Southern P. R. Co. 234 U. S.
669, 68 L. ed. 1527, 34 Sup.
Ct. Rep. 907 100
Burrow-Qiles Lithographic Co. v. Sar-
ony, 111 U. 8. 53, 28 L. ed.
349, 4 Sup. Ct. Rep. 279 536
Burt V. Merchants' Ins. Co. 115 Mass.
1 938
Burton y. Kew York C, & H. R. R. Co.
245 U. S. 316, 62 L. ed. 314,
38 Sup. Ct. Rep. 108 942
Butler V. Goreley, 146 U. S. 308, 36
L. ed. 984, 13 Sup. Ct. Rep.
84, 147 Mass. 8, 16 N. £.
734 869
Butte City Water Co. ▼. Baker, 196 *
U. S. 119, 49 L. ed. 409, 26
Sup. Ct. Rep. 211 841
Battfield T. Stranahan, 192 U. S. 470,
48 L. ed. 525, 24 Sup. Ct.
Rep. 349 841
C.
01 A. Hooper & Co. v. Railroad
Commission, 175 Cat 811,
P.U.R.1917E, 997, 166 Pac.
689 313
Calaf 7 Fugural v. Calaf j Rivera, 232
U. 8. 371, 68 L. ed. 642,
34 Sup. Ct Rep. 411 313
Caldwell ▼. Donaghej, 108 Ark. 60, 46
L.R.A.(N.8.) 721, 156 8.
W. 839, Ann. Cas. 1916B,
133 246
T. North Carolina, 187 U. 8.
622, 47 L. ed. 336, 23 Sup.
Ct. Rep. 229 168
Cslhoon T. Massie, 253 U. 8. 170, 64
L. ed. 843, 40 Sup. Ct. Rep.
474 850, 861
California v. Central P. R. Co. 127 U.
8. 1, 32 L. ed. 150, 2 Inters.
Com. Rep. 163, 8 Sup. Ct.
Rep. 1073 275
T. San Pablo & T. R. Co. 149
U. S. 308, 37 L. ed. 747,
13 Sup. Ct. Rep. 876 809
▼. Southern P. Co. 157 U. 8.
229, 39 L. ed. 683, 15 Sup.
Ct. Rep. 591 281
California Powder Works v. Davis,
161 U. S. 389, 38 L. ed. 206,
14 Sup. Ct. Rep. 330 . . 402,
403, 406
California Reduction Co. v. Sanitary
Reduction Works, 199 U.
8. 806, 60 L. ed. 204, 26
Sup. Ct Rep. 100 276
•4 Ii. ed. S
45')
604
Cameron v. Ba^-^, 39 Ariz. 246, 168
Pac. 645 664
Caminetti v. United States, 242 U. 8.
470, 61 L. ed. 442, L.R.A.
1917F, 502, 37 Sup. Ct.
Rep. 192, Ann. Cas. 1917B,
1168 234, 704
Camp V, Boyd, 229 U. S. 530, 67 L.
ed. 1317, 33 Sup. Ct Rep.
785
Capital City Dairy Co. v. Ohio, 183
U. S. 238, 46 L. ed. 171, 22
Sup* Ct Rep. 120
Capital Traction Co. v. Hof, 174 U.
S. 1, 43 L. ed. 873. 19 Sup.
Ct Rep. 580. . 137, 364, 923, 924
Capital Trust Co. v. Calhoun, 250 U.
8. 208, 63 L. ed. 942, 39
Sup. Ct Rep. 486 .. 847 , 848, 851
Carbon Steel Co. v. Lewcllyn, 251 U.
S. 501, 64 L. ed. 375, 40
Sup. Ct. Rep. 283 382
Carey v. Huston & T. C. R. Co. 160
* U. 8. 171, 37 L. ed. 1042,
14 Sup. Ct Rep. 63 406
Carolina Glass Co. v. South Carolina,
240 U. 8. 305, 60 L. ed.
668, 36 Sup. Ct. Rep. 293 871
Carroll v, Greenwich Ins. Co. 199 U.
8. 401, 60 L. ed. 246, 26
Sup. Ct. Rep. 66 199
T. Safford, 3 How. 441, 11 L.
ed. 671 663
Carter ▼. Texas, 177 U. S. 442, 44 L.
ed. 839, 20 Su{>. Ct. Rep.
687 768
Gary v. South Dakota, 250 U.- 8. 118,
63 L. ed. 886, 39 Sup. Ct.
Rep. 403 649
Cass Farm Co. v. Detroit, 181 U. S.
396, 45 L. ed. 914, 21 Sup.
Ct Rep. 644 22i
Castillo V. McConnico, 168 U. S. 674,
42 L. ed. 62^, 18 Sup. Ct.
Rep. 229 404
Castle ▼. Mason, 91 Ohio St. 206, 110
N, E. 403, Ann. Cas. 1917A,
164 209
Catholic Bishop v. Gibbon, 168 U. S.
166, 39 L. ed. 931, 15 Sup.
a. Rep. 779 663, 664
Cattle Raisers' Aaso. v. Missouri, K.
k T. R. Co. 11 Inters. Com.
Rep. 296, 352 817
Cecilia Jaramillo de Oancino v. Rail-
road of the North, Judicial
Gazette, Nos. 662, 663, 8u«
preme Court of Justice of
the Republic of Colombia,
XIII 686
Cedar Rapids & M. River R. Co. v.
Courtright. See Iowa R.
Land Co. v. Courtwrioht.
CASES CITED.
252
619
Cedar Rapids Gaslight Co. v. Cedar
Rapids, 223 U. S. 655, 56
L. ed. 594, 32 Sup. Ct.
Rep. 389 918
Central Land Co. y. Laidley, 159 U.
S. 103, 40 L. ed. 91, 16
Sup. Ct. Rep. 80 .. 480, 1021
Central Pennsylvania Lumber Co. v.
Director General, 53 Inters.
Com. Rep. 523 931
Central Trust Co. t. Chicago Audi-
torium Asso. 240 U. S. 581,
60 L. ed. 811, L.R.A.1917B,
580, 36 Sup. Ct. Rep. 412
y. Grant Locomotive Works,
135 U. S. 207, 34 L. ed.
97, 10 Sup. Ct. Rep. 736
0^k>al Vermont R. Co. y. White, 238
U. S. 507, 59 L. ed. 1433,
35 Sup. Ct. Rep. 865, Ann.
Cas. 191 6B, 252, 9 N. C.
C. A. 265 484
(Cambers y. Baltimore & 0. E. Co.
207 U. S. 142, 52 L. ed.
143, 28 Sup. Ct. Rep. 34 . .
614, 716
Cliampion y. Ames. See Lottbbt
Case.
Aapman y. Douglas County, 107 U.
S. 348, -27 L. ed. 378, 2
Sup. Ct. Rep. 62 759
Charleston & W. C. R. Co. y. Thomp-
son, 234 U. S. 576, 58 L.
ed. 1476, 34 Sup. Ct. Rep.
964 : 605, 607
Oharlton ▼. Kelly, 229 U. S. 447, 67
LL ed. 1274, 46 L.RJL
(N.S.) 397, 88 Sup. Ct.
Rep. 946 616, 618, 619
Chattanooga Nat. Bldg. k L. Asso.
y. Denson, 189 U. S. 408,
47 L. ed. 870, 23 Sup. Ct.
Rep. 630 689
Cheatiiam v. Norvdc See Cheath/h
y. Vj^jted States.
y. I^ited States, 92 U. 8. 86,
23 L. ed. 561 304
Chelentis y. LudLenbach 8. S. Co. 247
U. S. 372, 62 L. ed. 1171,
38 Sup. Ct. Rep. 601 .. 838
Chemimg Canal Bank y. Lowery, 93
U. S. 72, 23 L. ed. 806 716
Cheney Bros. Co. y. Massachusetts,
246 U. 8. 147, 62 L. ed.
632, 38 Sup. Ct. Rep. 296 168
Cheong Ah Moy y. United States,
113 U. 8. 216, 28 L. ed.
983, 6 Sup. Ct Rep. 431 943
Cherokee Nation v. Southern Kansas
R. Co. 135 U. S. 641, 34
L. ed. 295, 10 Sup. Ct. Rep.
^5 1006
S4
Chesapeake & 0. R. Co. y. De Atley,
241 U. S. 310, 60 L. ed.
1016, 36 Sup. Ct. Rep. 564 433
y. Kentucky, 179 U. S. 388, 46
U ed. 244, 21 Sup. Ct. Rep.
101 :... 636
▼. Proffitt, 241 U. 8. 462, 60 L.
ed. 1102, 36 Sup. Ct. Rep.
620 434
Chetwood, Re, 165 U. S. 443, 41 L.
ed. 782, 17 Sup. Ct. Rep.
385 815
Chicago y. Dempcy, 250 U. S. 651, 63
L. ed. 1189, 40 Sup. Ct.
Rep. 53 407, 40t
Chicago & N. W. R. Co. v. Ochs, 249
U. S. 416, 63 L. ed. 679,
P.U.R.1919D, 498, 39 Sup.
Ct. Rep. 343 242
y. Ohle, 117 U. S. 123, 29 L.
ed. 887, 6 Sup. Ct. R^.
632 161
Chicago, B. ft Q. R. Co. y. Cutts.
See Chicago B. ft Q. R. Co.
V. Iowa.
V. Harrington, 241 U. 8. 177,
/ . 60 L. ed. 941, 36 Sup. Ct.
\ Rep. 617, 11 N. C. C. A.
gg2 70J
y. minois, 200 U. S. 661, 60 ll
ed. 696, 26 Sup. Ct. Rep.
341, 4 Ann. Cas. 1176 .. 242
/ ▼. Iowa, 94 U. 8. 156, 24 L.
ed. 94 248
y. Jones, 149 III. 861, 24 L.R.A.
141, 4 Inters. Com. Rep.
683, 41 Am. St. Rep. 278,
37 N. B. 247 984
F. McGuire, 219 U. S. 649, 66
L. ed. 828, 81 Sup. Ct.
Rep. 259 882
Chicago, I. ft L. R. Co. y. McGuire,
196 U. 8. 128, 49 L. ed.
413, 26 Sup. Ct Rep. 200 686
Chicago Junction R. Co. y. King, 222
U. 8. 222, 66 L. ed. 178,
32 Sup. Ct Rep. 79 684
Chicago, M. ft St P. R. Co. y. Min-
neapolis Civic ft C. Asso.
247 U. S. 490, 62 L. 6d.
1229, 38 Sup. Ct. Rep. 553 781
y. Minnesota, 134 U. S. 418, 33
L. ed. 970, 3 Inters. Com.
Rep. 209, 10 Sup. Ct. Rep.
462 698
▼. Tompkins, 176 U. S. 167, 44
L. ed. 417, 20 Sup. Ct. Rep.
336 926
Chicago, R. I. ft P. R. Co. v. Arkansas,
219 U. 8. 463, 55 L. ed.
290, 31 Sup. Ct Rep. 276 480
y. Davis, 114 Ark. 619, 170 8.
W. 245 141
UA8JQS CriED.
Gbicago, R. I.^ P. R. Co.. v. Maucher,
248 U. S. 359, 63 L. ed. 294,
39 Sup. Ct Rep. 108
Chicago, St. P. M. A 0. R. Co. v.
United States, 217 U. S.
180, 54 L. ed. 721, 30 Sup.
Ct. Rep. 470 489,
CMa FoDg ▼. Backus, 241 U. S. 1, 60
L. ed. 859, 36 Sup. Ct. Rep.
490
CUm K. Shue, Re, 199 Fed. 282 ..
ChiB Yow V. United States, 208 U. S.
8, 52 L. ed. 369, 28 Sup.
Ct. Rep. 201 . . 618, 1012,
Chirac t. Chirac, 2 Wheat. 259, 4 L.
ed. 234
Gteate ▼. Trapp, 28 Okla. 517, 114
Pac. 709
V. Trapp, 224 U. S. 605, 66 L.
ed. 941, 32 Sup. Ct. Rep.
665
ChriamaB ▼. Miller, 197 U. S. 813, 49
L. ed. 770, 25 Sup. Ct. Rep.
468 578,
Gbiftie ▼. United Stotes, 237 U. S.
234, 59 L. ed. 933, 36 Sup.
Ct. Rep. 565
Chri0tmaa v. Russell, 6 Wall. 290,
18 L. ed. 475
Oineiimati, H. & D. R. Co. v. Inter-
state Commerce Commia-
aion, 206 U. 8. 142, 51 L.
ed. 996, 27 Sup. Ct Rep.
648
OitUena' Nat. Bank ▼. Donnell, 195 U.
8. 869, 49 L. ed. 238, 25
Sup. Ct. Rep. 49
CitUens' Sav. k L. Asso. ▼. Topeka,
20 WalL 665, 22 L. ed. 461
CitlMiiB' Xeleph. Co. v. Fuller, 229 U.
6. 322, 57 L. ed. 1206, 33
Sup. Ct. Rep. 833
dtj 4 Suburban R. Co. v. Savannah,
77 Ga. 731, 4 Am. St. Rep.
100
Claaaaen ▼. United SUtes, 142 U. S.
140, 35 L. ed. 966, 12 Sup.
Ct Rep. 169
CUr^ Diatilling Co. v. Western Mary-
land R. Co. 242 U. 8. 311,
61 L. ed. 326, L.R.A.1917B,
1218, 37 Sup. Ct. Rep. 180,
Ann. Cas. 1917B, 845 ..
200, 841,
CUrke ▼. UcDade, 165 U. S. 168, 41
L. ed. 673, 17 Sup. Ct. Rep.
284
▼. Rogers, 106 C. C. A. 64, 183
Fed. 518, 228 U, S. 534,
67 L. ed. 953, 33 Sup. Ct.
Rep. 587 253,
Clm^Uind ft P. R. Co. v. Cleveland,
235 U. S. 50, 59 L. ed.
127, 35 Sup. Ct Rep. 21
•4 U. ed.
607
490
798
618
1016
648
757
767
662
738
640
997
179
883
991
U7
649
843
604
868
997
254
406
Cleveland, C. C. 4 St. L. R. Co. ▼«
Backus, 154 U. S. 439, 88
L. ed. 1041, 4 Inters. Com.
Rep. 677, 14 Sup. Ct Rep.
1121 218, 219
Clifford V. Atlantic Cotton Mills, 146
Mass. 47, 4 Am. St. Rep.
279, 15 N. B. 84
Clinton Sugar Refin. Co. v. Chicago
4 N. W. R. Co. 28 Inters.
Com. Rep. 364
Clipper Min. Co. v. Eli Min. & Land
Co. 194 U. 8. 220, 48 L. ed,
944, 24 Sup. Ct. Rep. 632
577, 57«, 664
Cochran v. United States, 157 U. S.
286, 39 L. ed. 704, 15 Sap.
Ct. Rep. 628 152
Coe y. Armour Fertilizer Works, 237
U. 8. 413, 59 L. ed. 1027,
86 Sup. Ct. Rep. 626 .. 401
T. Brrol, 116 U. 8. 617, 29 L.
ed. 716, 6 Sup. Ct Rep.
475 506, 908, 984
Coffey V. Uarlan County, 204 U. 8.
659, 51 L. ed. 666, 27 Sup.
a. Rep. 305 141
Cole, Re, 6 Land Dec. 290 288
v. Ralph, 262 U. 8. 286, 64 L.
ed. 567, 40 Sup. Ct Rep.
821 661
Coleman t. Tennessee, 97 U. 8. 609,
24 L. ed. 1118 624
Collard v. PitUburgh, C. C. 4 St. L. R.
Co. 246 U. S. 653, 62 L. ed.
928, 38 Sup. Ct Rep. 336 401
Collector ▼. Day, 11 Wall. 113, 20 L.
ed. 122 898
V. Hubbard, 12 WalL 1, 20 L.
ed. 272 533, 538
Collins V. Johnston, 237 U. 8. 602, 69
L. ed. 1071, 36 Sup. Ct.
Rep. 649 141
T. MUler, 252 U. S. 364, 64 L.
ed. 616, 40 Sup. Ct Rep.
347 697
CoUins Case, 170 C. C. A. 240, 259 Fed.
172 796, 797
Comegys v. Vasee, 1 Pet. 193, 7 L. ed.
108 821
Com. V. AUen, U Pa. Co. Ct 546 . . 343
V; Bios, 116 Mass. 56 271
V. Hall, 9 Gray, 262, 69 Am.
Dec. 285 942
V. Hamilton Mfg. Co. 12 Allen,
298 W3
V. McQrath, 185 Mass. 1, 69
N. E. 340 267, 271
ex rel. Hepburn y. Mann, 5
Watts & 8. 403 894
V. Peaske, 177 Maes. 267, 59
X. E. 65 359
S6
CA8ES CITED.
Ck)in. V. Phelp», 20U Mas*;'. 396, 95 N.
E. 808, Ann. Cas. 1912B,
566 942
V. Pierce, 138 Mass. 165, 52
Am. Rep. 264, 5 Am. Crim.
Rep. 291 868
T. Priestly, 24 Pa. Co. Ct. 543 343
V. Stoner, 70 Pa. Super. Ct. 365 343
V. Strauss, 188 Mass. 229, 74
N. E. 308, 191 Mass. 545,
11 L.R.A.(N.S.) 968, 78 N.
£. 136, 6 Ann. Cas. 842 1001
Connecticut General Ins. Co. v. Eason,
218 Fed. 188 699, 701
Connecticut Mut. L. Ins. Co. v. Eaton,
218 Fed. 206 699, 701
Consolidated Tump. Co. v. Norfolk &
O. V. R. Co. 228 U. S. P26,
67 L. ed. 867, 33 Sup. Ct.
Rep. 510 406, 719, 720
▼i Norfolk & O. V. R. Co. 228
U. S. 596, 67 L. ed. 982, 33
Sup. Ct. Rep. 609 .. 1020, 1021
Converse v. Hamilton, 224 U. S. 243,
66 L. ed. 749, 32 Sup. Ct.
Rep. 416, Ann. Cas. 1913D,
1292 640
Cooke y. United States, 91 U. S. 389,
23 L. ed. 287 680
Cooley V. Port Wardens, 12 How. 299,
13 L. ed. 996 842, 843
Coon V. Kennedy, 248 U. S. 467, 63 L.
ed. 368, 39 Sup. Ct. Rep.
146 267
Cooper ▼. Sehlesinger, 111 U. S. 148,
28 L. ed. 382, 4 Sup. Ct.
Rep. 360 649
Coppage V. Kansas, 236 U. S. 1, 50
L. ed. 441, L.R,A.19J5C,-
960, 35 Sup. Ct. Rep. 240 849
Coppell V. Hall, 7 Wall. 642, 19 L.
ed. 244 861
Corfield v. Coryell, 4 Wash. C. C. 371,
Fed. Cas. No. 3,230 . . 716, 716
Cornelius v. Keasel, 128 U. S. 456, 22
L. ed. 482, 9 Sup. Ct. Rep.
122 663
Cornell v. Coj-ne, 192 U. S. 418, 48 L.
ed. 504, 24 Sup. Ct. Rep.
383 611
Corry v. Baltimore, 196 U. S. 466, 49
L. ed. 556, 25 Sup. Ct Rep.
297 934
<'oHraofl Exploration Co. v. Gray Eagle
Oil Co. 190 U. S. 301, 47
L. ed. 1064, 23 Sup. Ct.
Rep. 692, 24 Sup. Ct. Rep.
860 663
Costs in Civil Caacs, Re, 1 Blatilif.
662 1)27
Coulter V. Loui«villo & N. R. Co. 196
r. S. 599. 49 1.. ed. 615, 25
Sup. I t. IJep. :142 187
.1«
Courtney V. Pradt, 196 U. 8. 89, 49
L. ed. 398^ 26 Sup! Ct. Rep.
208 405, 406
Courtright, Re, 6 Land Dec. 459 238
Covington v. First Nat. Bank, 185 U.
S. 270, 46 L. ed. 906, 22
Sup. Ct. Rep. 645 619
Crabtree v. Neff, 1 Bond, 554, Fed. Cas.
No. 3;315 927
Craig V. Missouri, 4 Pet. 410, 7 L.
ed. 903 636
Crawford v. Burke, 195 U. S. 176, 49
L. ed. 147, 25 Sup. Ct. Rep.
9 252, 263
Cream of Wheat Co. v. Grand Forks
County, 253 U. S. 325, 64
L. ed. 931, 40 Sup. Ct. Rep.
558 993
Credits Commutation Co. v. United
States, 177 U. S. 311, 44
L. ed. 782, 20 Sup. Ct Rep.
636 871
Creede k C. Creek Min. & Mill
Co. V. Uinta Tunnel Min. &
Transp. Co. 196 U. S. 337,
49 L. ed. 601, 2o Sup. Ct.
Rep. 266 677, 680, 664
CreduDore ▼. United States, L.R.A.
1917C, 846, 160 C. C. A.
497, 237 Fed. 743 342
Crenshaw v. Arkansas, 227 U. S. 389,
67 L. ed. 666, 33 Sup. Ct
Rep. 294 167
Crescent Lumber Co., Re, 154 Fed. 724 264
Creswill v. Grand Lodge, K. P. 226
U. S. 246, 66 L. ed. 1074,
32 Sup. Ct. Rep. 822 768
Crew Levick Co. v. Pennsylvania, 246
U. S. 292, 62 L. ed. 296, 38
Sup. Ct Rep. 126 458, 469
Cross Lake Shooting k Fishing Club
V. Louisiana, 224 U. S. 632,
66 L. ed. 924, 32 Sup. Ct.
Rep. 577 213, 689
Grossman v. Pendery, 2 McCrgry, 139,
8 Fed. 693, 4 Mor. Min.
Rep. 431 679
Crow V. Van Sickle, 6 Nev. 146 676
Crozier v. Fried. Krupp Aktiengesell-
schaft, 224 U. S. 290, 56-
L. ed. 771,. 32 Sup. Ct Rep.
488 138, 864, 939
Cruickshank v. Bidwell, 176 U. S. 73,
44 L. ed. 377, 20 Sup. Ct
Rep. 280 187
Cuba H. Co. V. Crosby, 222 U. S. 473,
56 L. ed. 274, 38 L.R.A.
(X.S.) 40, 32 Sup. Ct. Rep.
132 584
Cultra V. Western U. Teleg. Co. 44
Inters. Com. Rep. 670 121
Cummings v. Merchants* Nat. Bank,
101 U. S. 153, 25 L. ed.
903 179, lt7
CASES CITED.
Cartm ▼. Someraet, 140 Pa. 70, 12
L.R.A. 322, 23 Am. St. Rep.
220, 21 Atl. 244 868
CuAhing ▼. The John Frascr, 21 How.
184, 15 L. ed. 106 131
Cutting, Ex parte, 94 U. 8. 14, 24 L.
ed. 49 871
D.
Daineee y. Kendall, 119 U. S. 53, 30
L. ed. 305, 7 Sup. Ct. Rep.
65 618
Dakota Cent. Teleph. Co. t. South Da-
koU, 250 -U. S. 163, 63 L.
cd. 910, 4 A.L.R. 1623,
P.U.R,1919D, 717, 39 'Sup.
Ct. Rep. 507 202
Dalay t. Savage, 145 Mass. 38, 1 Am.
St. Rep. 429, 12 N. E. 841 868
Damon t. Carrol, 163 Mass. 404, 40
N. B. 185 819
Danciger T. Cooley, 248 U. S. 319, 63
L. ed. 266, 39 Sup. Ct. Rep.
119 665
Darling & Co. ▼. Pittsburgh, C. C. &
St. L. R. Co. 87 Inters.
Com. Rep. 401 '. 930
DameU ▼. Edwards, 244 U. 8. 664, 61
L. ed. 1317, P.U.R.191TF,
64, 37 Sup. Ct. Rep. 701 . . 917
David Kaufnian & Sons Co. v. Smith,
216 U. 8. 610, 54 i. ed.
636, 80 Sup. Ct. Rep. 419 857
Davidson v. New Orleans, 96 U. 8. 97,
24 L. ed. 616 398
Davia ▼• Com. 104 Mass. 241, 30 LJt JL.
743, 41 N. £. 292 849
T* Patrick, 122 U. 8. 138, 80 L.
ed. 1090, 7 Sup. Ct. Rep.
1102 833
▼. St Louis k S. F. R. Co. 25
Fed. 786 923
Dawson v. Columbia Ave. Sav. Fund,
s: D. Title & T. Co. 197 U.
S. 178, 49 L. ed. 713, 25
Sup. Ct. Rep. 420 246
Dean r. Davis, 242 U. S. 438, 61 L.
ed. 419, 37 Sup. Ct. Rep.
130 254
V. Nelson. See Thomson v.
Dean.
Debs, Re, 158 U. 8. 564, 39 L. ed.
1092, 15 Sup. Ct. Rep. 900 275
V. United States. 24!) U. S. 211,
63 L. cd. 566, 39 Sup. Ct.
Hep. 252 365, 645, 548
Dedhani Xat. Bank v. Everett Nat
Bank, 177 Mass. 392, 83
Am. St. Rep. 286, 59 N. E.
62 680
Defiance Water Co. v. Defiance, 191
U. S. 184, 4,S L. od. 140,
24 Sup. ( t. INp. 63 616
•4 li. ed.
De Ganay v. Lederer, 250 U. S. 376,
63 L. ed. 1042, 39 Sup. Ct
Rep. 524 456,
Delamater v. South Dakota, 206 U. S.
93, 51 L. ed. 724, 27 Sup.
Ct. Rep. 447, 10 Ann. Cas.
733
De la Rama v. De la Rama, 241 U. S.
154, 60 L. ed. 932, 36 Sup.
Ct. Rep. 518, Ann. Cas.
19170, 411
Delaware & H. Canal Co. v. Clark, 13
Wall. 311, 20 L. ed. 581 . .
Delaware, L. k W. R. Co. v. Pennsyl-
vania, 198 U. S. 341, 49 L.
ed. 1077, 25 Sup. Ct. Rep.
669
V. United States, 249 U. S. 385,
63 L. ed. 659, 39 Sup. Ct.
Rep. 348 183, 184,
V. YurkoniP, 238 U. S. 439, 59
L. ed. 1397, 36 Sup. Ct
Rep. 902 720, 793,
Denver v. Dumars, 38 Colo. 94, 80
Pac. 114
V. Kennedy, 33 Cola 80, 80
Pac. 122
V. New York Trust Co. 229 U.
6. 123, 57 L. ed. 1101, 33
Sup. Ct Rep. 667
Deposit Bank v. Fayette Nat. Bahk,
90 Ky. 10, 7 L.R.A. 849,
18 S. W. 339
Detroit ▼. Parker, 181 U. 8. 399, 45
L. ed. 917, 21 Sup^ Ct Rep.
624
Detroit United R. Co. v. Michigan, 242
U. S. 238, 61 L. ed. 272,
P.U.R.1917B, 1010, 37 Sup.
Ct. Rep. 87
Devine T. Los Angeles, 202 U. S. 313,
50 L. ed. 1046, 26 Sup. Ct.
Rep. 652 692,
Dexter Horton Nat. Bank v. Hawkins,
111 C. C. A. 514, 190 Fed.
924
Diamond Coal &> Coke Co. v. United
States, 233 U. S. 236, 58 L.
ed. 936, 34 Sup. Ct. Rop.
507 103,
Diaz V. United Staler, 223 U. 8. 442,
56 L. ed. 500, 32 Sup. Ct.
Rep. 250, Ann. Cas. lOlJC,
1138
Dickerson v. Louisville & N. R. Co. 187
Fed. 874
V. Western U. Teleg. Co. 114
Miss. 116, 74 So. 779 ....
Dobbins v. Erie County, 16 Pet 436,
10 Ij. ed. 1023
V. Los AngtHos. 195 U. S. 223,
40 L. ed. 169, 25 Sup. Ct.
18
751
841
707
934
296
1020
426
426
826
680
220
479
720
445
•237
819
997
120
8f'2
20^
84
CASES CITED.
Dr Miies Medical Co. v. John D. Park
& Sons Co. 220 U. S. 373,
65 L. ed. 602, 31 Sup. Ct.
Rep. 376 474
Dodge V. Woolsey, 18 How. 331, 15 L.
ed. 401 875
Dodge's Case, 6 Mart. (La.) 569 .... 043
Deggett y. Emerson, 1 Woodb. & M.
195, Fed. Cas. No. 3,962 . . 252
Dollar Co. v. Canadian Car & Foun-
dry Co. 220 N. Y. 270, 115
N. E. 711 316
Dorr T. United States, 195 U. 8. 138,
49 L. ed. 128, 24 Sup. Ct.
Hep. 808, 1 Ann. Cas. 697 333
Dowdell T. United States, 221 U. 8.
325, 55 L. cd. 753, 31 Sup.
Ct. Rep. 590 333
Dower y. Richards, 151 U. S. 658, 38
L. ed. 305, 14 Sup. Ct. Rep.
452, 17 Mor. Min. Rep. 704 918
Downee y. Bidwell, 182 U. S. 244, 45
L. ed. 1088, 21 Sup. Ct.
Rep. 770 333
Doyle y. Doyle, 66 N. H. 567 924
y. Mitchell Bros. Co. 247 U. 8.
179, 62 L. ed. 1054, 38 Sup.
a. Rep. 467 629
Doeier y. Alabama, 218 U. 8. 124, 64
L. ed. 965, 28 L.R.A.(N.S.)
264, 30 Sup. Ct. Rep. 649 168
Drumm Flato Commission Co. y. Ed-
misson, 208 U. 8. 634, 62 L.
ed. 606, 28 Sup. Ct. Rep.
367 395
Dubourg de St Colombo y. United
States, 7 Pet. 626, 8 L. ed.
807 926
PuffiU, Re, — Cal. — , 183 Pao. 337 536
Dunbar ▼. Dunbar, 190 U. 8. 340, 47
L. ad. 1084, 23 Sup. Ct.
Rep. 767 252
Dundy y. Chambers, 23 111. 360 934
Durre y Western U. Teleg. Co. 165
Wis. 190, 161 N. W. 765 121
Dusar y. Murgatroyd, 1 Wash. C. C.
13, Fed. Cas. Ko. 4,199 . . 252
£.
Bagan y. Hart, 166 U. 8. 188, 41 L.
ed. 680, 17 Sup. Ct Rep.
300 918
Earp'a Appeal, 28 Pa. 368 540
KMtem R. Co. y. United States, 129
U. 8. 891, 32 U ad. 710, 9
Sop. Ot. Rep. 320 .... 184, 296
Bastem St«tes Retail Lumber Dealers*
Aaao. y. United 8t«tM, 234
U. 8. 600, 68 L. ed. 1490,
L.RJL1916A, 788, 34 Sup.
Ct Rep. 951 868
89
Eberle y. Michigan, 232 U. S. 700, 68
L. ed. 803, 34 Sup. Ct Rep.
464
E. Clemens Horst Co. y. Railroad Com-
mission, 175 Cal. 660,
P.U.R.1917F, 893, 166 Pac.
804
Edwards y. Darby, 12 Wheat 206, 6
L. ed. 603
Edwardson y. Gambart, 56 Mo. 81 . .
Eichel y. United States Fidelity A; G.
Co. 239 U. 8. 629, 60 L. ed.
475, 36 Sup. Ct. Rep. 166 . .
Eisner y. Macomber, 252 U. 8. 189, 64
L. ed. 621, .9 A.L.R. 1570,
40 Sup. Ct. Rep. 189
Elgin Nat Watch Co. y. Illinois
Watch Case Co. 179 U. 8.
666, 46 L. ed. 365, 21 Sup.
Ct. Rep. 270
El Paso Sash & Door Co. y. Oarraway,
245 U. 8. 643, 62 L. ed. 628,
38 Sup. Ct Rep. 222 .....
£. Luokenback, The, 19 Fed. 847,
Embree y. Kansas City & L. B. Road
Dist 240 U. 8. 242, 60 L.
ed. 624, 36 Sup. Ct Rep.
317 221,
Emert y. Missouri, 166 U. 8. 296, 89
L. ed. 430, 6 Inters. Com.
Rep. 68, 15 Sup. Ct Rep.
367
Empira State-Idaho Min. Co. y. Han-
ky, 206 U. 8. 226, 61 L. ed.
779, 27 Sup. Ct Rep. 476
1019,
English y. Richardson, 224 U. 8. 680,
66 L. cd. 949, 82 Sup. Ct.
Rep. 571
y. Richardson, 28 Okla. 406, 114
Pac. 710
Enterprise Irrig. Dist y. Farmers Milt
Canal Co. 243 U. a 167,
61 L. ed. 644, 37 Sup. Ct
Rep. 318
Equitable Life Assur. Soo. y. Brown,
187 U. S. 308, 47 L. ed. 190,
23 Sup. Ct Rep. 123 606,
1020,
Erie Lighter 108, The, 260 Fed. 490 . .
Erie R. C6. y. Purucker, 244 U. S.
820, 61 L. ed. 1166, 37 Sup.
Ct Rep. 629
Erwin ▼. United States, 97 U. S. 392,
24 L. ed. 1065 670,
Esselbom, Re, 8 Fed. 904
Estes y. State, 13 Okla. Crim. Rep.
604, 4 AX..R. 1135, 166 Pac.
77 :.
Eugene F. Moran, The, 212 V. S. 466,
63 L. ed. 600, 29 Sup. Ct.
Rep. 339
200
313
499
923
1022
896
707
403
926
430
ljS7
1021
767
767
768
1021
132
434
821
943
271
132
GAS£S CITED.
▼. Uiiitad States, 158 U. 8. 584,
88 L. ed, 830, 14 Sup. Ct
Rep. 934, 9 Am. Crim. Rep.
668
549
fkir T. Manhattan Ins. Co. 112 Mass.
829 922
Fairbank ▼. United States, 181 U. S.
283, 45 L. ed. 862, 21 Sup.
Ct. Rep. 648, 15 Am. Crim.
Rep. 135 898
Fkir Bmv^a & W. R. Co. ▼. New Haven,
203 U. 8. 379, 51 L. ed. 237,
27 Sup. Ct. Rep. 74 480
rtallbrook Irrig. Dist. v. Bradley, 164
U. a 155, 41 L. ed. 387, 17
Sup. Ct Rep. 56 881
Ikrgo T. Hart, 198 U. S. 490, 48 L.
ed. 761, 24 Sup. Ct. Rep.
498 787
FanMTS k K. Nat. Bank y. Deoring,
91 U. a 29, 28 L. ed.
196 175, 177
FkmhaBi y. United States, 240 U. S.
587, 60 L. ed. 786, 86 Sup.
Ct Rep. 427 854
Parrall r: O'Brien, 199 U. S. 89, 50 U
ed. 101, 25 Sup. Ct. Rep.
727 1019-1021
Faimtia y. 'Fhikidelphia A R. R. Co.
288 U. S. 352, 58 L. ed.
997, 94 Snp. Ct Rep. 591 . . 406
ftentleroy y. Lum, 210 U. S. 230, 52
L. ad. 1089, 28 Sup. Ct
Bep. 641 640, 641
FlBBB T. Kensey, 45 Mich. 446; 8 N. W.
64 488, 490
F\Btter, Re, 28 N. J. L. 311, 57 Am.
Dee. 882 948
Fiddcn y. Taxing Dist 145 U. 8. 1,
36 L. ed. 601, 4 Inters. Com.
Rep. 79, 12 Sup. Ct Rep.
SIO 653
Fidelity k C. Trust Co. v. Louisville,
245 U. a 54, 62 L. ed. 145,
L.RJL1918C, 124, 88 Sup.
Ct Rep. 40 751, 934
Fidelity k D. Co. v. United States, 187
U. 8. 316, 47 L. ed. 194, 28
Sup. Ct Rep. 120 924
Field y. Holland, 6 Cranch, 8, 8 L. ed:
136 ! 925
First Nat Bank v. Chicago, Title k T.
Co. 198 U. S. 280, 49 L. ed.
1051, 25 Sop. Ct. Kep. 693 899
y. Home Sav. Bank, 21 Wall.
294, 22 L. ed. 560 512
V. Marshalltown Stote Bank,
107 Iowa. 327, 44 L.R.A.
131, 77 X. W. 104.5 680
Fishhark Snap Co. v. Klfpno ^Ifg. Co.
44 App. D. C. 6 700
•4 li. ed.
926
281
178
934
901
618
Fiske, Ex parte, 113 U. 8. 713, 28 L.
ed. 1117, 5 Sup. Ct Rep.
724
Fitts y. McGhee, 172 U. 8. 516, 43 L.
ed. 535, 19 Sup. Ct Rep.
269
Fitzpatrick v. United SUtes, 178 U.
8. 304, 44 L. ed. 1078, 20
Sup. Ct Rep. 944 110
Flagg y. United States, 147 C. C. A.
367, 233 Fed. 481 321
Fleckner v. Bank of United States, 8
Wheat 338, 5 L. ed. (131
176,
Flint y. Stone Tracy Co. 220 U. S.
107, 55 L. ed. 389, 31 Sup.
Ct Rep. 342, Ann. Cas.
1912B, 1312 893,
F. M. ft a Q. Carlile, Re, 199 Fed.
612
Fong Yue Ting v. United States, 149
U. 8. 698, 37 L. ed. 905, 13
Sup. Ct. Rep. 1016
Ford v. Munroe, — Tex. Civ. App. — ,
144 8. W. 849 482
Forgay v. Conrad, 6 How. 201, 12 L.
ed.404 619
443 Cans of Frozen Egg Product y.
United States, 226 U. 8.
- 172, 57 L. ed. 174, 9^ Sup.
Ct Rep. 50 871
Fox y. Myers, 29 Nev. 169, 86 Pac. 793 580
Fraina v. United States, 166 C. C. A.
856, 255 Fed. 28 « 884
Francis y. Baker, 11 R. I. 103, 23 Am.
Rep. 424 924
Frank v. Mangum, 237 U. 8. 309, 59 L.
ed. 969, 85 Sup. Ct Rep.
682
Franklin v. United States, 216 U. a
559, 54 L. ed. 615, 80 Sitp.
Ct Rep. 484, 6 O^s. At<y.
Gen. 413 625,
Frederic L. Grant Shoe Co. v. W. M.
Laird Co. 212 U. S. 445, 58
L. ed. 591, 29 Sup. Ct Rep.
332 252,
French v. Barber Asphalt Pbv. Co. 181
U. 8. 824, 45 L. ed. 879, 21
Sup. Ct. Rep. 625 220
Friend v. Talcott 228 U. 8. 27, 57 L; '
ed. 718, 33 Sup. Ct. Rep.
505
Fritts y. Palmer, 132 U. 8. 282, 33 L.
ed. 317, 10 Sup. Ct Rep.
98
Frohwerk v. United States, 249 U. S.
204, 68 L. ed. 561, 39 Sup.
Ct. Rep. 249 365, 545. 648^ '834
Fuller y. Jaekfton. 97 Miss. 23t, 30
L.R.A.(N.S.) 1078, 52 So.
873 . . . : '268
Funk y. State. — Te5c. Crim. Rep.—,
208 S. \\\ 509 626
ft
136
842
652
253
689
CASES OlXliiD.
. G.
Gaar, S. & Co. t. Shannon, 223 U. S.
468, 56 L. ed. 510, 32 Sup.
Ct. Rep. 236, .... 758, 769,
785, 1020
GalUher v. Cadwell, 146 U. S. 368, 36
L. ed. 738, 12 Sup. Ct. Rep.
873 247
Galveston, H. & S. A. 11. Co. v. Gin-
ther, 96 Ti\. 295, 72 S. W.
166 482
Gandia v. Pettingill, 222 U. S. 462, 56
L. ed. 267, 32 Sup. Ct. Rep.
127 656
Gardner v. Michigan, 190 U. S. 325, 50
U ed. 212, 20 Sup. Ct. Rep.
106 276
V. Western U. Teleg. Co. 145 C.
C. A. 399, 231 Fed. 405 . . 121
Garaeld v. United States, 211 U. S.
249, 53 L. ed. 168, 29 Sup.
Ct. Rep. 62 865
Gaat Realty & Invest. Co. v. Schneider
Granite Co. 240 U. S. 55, 60
L. ed. 623, 36 Sup. Ct. Rep.
254 221
Gayler v. Wilder, 10 How. 477, 13 L.
ed. 504 855
Geer v. Connecticut, 161 U. S. 619, '40
L. ed. 793, 16 Sup. Ct. Rep.
600 647
General Oil Co. v. Grain,. 209 U. S.
211, 52 L. ed. 754, 28 Sup.
Ct Rep. 475 643
Geofroy y, Riggs, 133 U. S. 258, 33 L.
ed. 642, 10 Sup. Ct, Rep.
295 648
Georgia v. Brailsford, 3 Dall. 1, 1 L.
ed. 483 136
▼. Tennessee Copper Co. 206 U.
S. 230, 51 L. ed. 1038, 27
Sup. Ct. Rep. 618, 11 Ann.
Cag. 488 647
German Alliance Ins. Co. v. Lewis, 233
U. S. 289, 68 L. ed. 1011,
L.R.A.1915C, 1189, 34 Sup.
Ct. Rep. 612 882
Ghriest T. Railroad Commission, 170
Cal. 63, 148 Pac. 196 .... 313
Gibbons ▼. Goldsmith, 138 C. C. A. 262,
2^ Fed. 826 899
T. Mahon, 136 U. S. 549, 34 L.
ed. 525, 10 Sup. a. Rep.
361 626, 62T, 640
T. Ogden, 9 Wheat. 1, 6 L. ed.
23 73, 202, 663, 666,
842, 848, 984, 987
<}la88 A, Mfg. Co. ▼. Rowe, 246 U. S.
* 276, 62 L. ed. 286, 38 Sup.
Ct. R«p. 80 826
Gleason v. Wood, 224 U S. 679, 66 L.
ed. 947, 32 Sup. Ct. Rep.
571 767
4#
Gleason v. Wood, 28 Okla. 602, U4
Pac. 703 767
Globe Newspaper Co. v. Walker, 210
U. S. 356, 52 L. ed. 1096,
28 Sup. Ct. Rep. 726 652
Globe Ref. Co. v. London Cotton Oil
Co. 190 U. S. 540, 47 L. ed.
1171, 23 Sup. Ct. Rep. 754 396
Glynn v. Central U. Co. 175 Mass. 510,
78 Am. St. Rep. 507, 50 N.
E. 698, 7 Am. Xeg. Rep.
442 868
Godchaux Co. v. Estopinal, 251 U. S.
179, 64 L. ed. 213, 40 Sup.
Ct. Rep. 116 267
Godley v. Hagerty, 20 Pa. 387, 69 Am.
Dec. 731 868
Goldman v. United States, 246 U. S.
474,^62 L. ed. 410, 38 Sup.
Ct. Rep. 166 546, 834
Goodman v. Niblack, 102 U. S. 656, 26
1j» eu. ^aV •*•...... .... OfU
Goodrich ▼. Ferris, 214 U. S. 71, 63
L. ed. 914, 29 Sup. Ct Rep.
680 401, 402, 1019-1021
Goodyear 's India Rubber Glove Mfg.
Co. V, Goodyear Rubber Co.
128 U. S. 698, 32 L. ed.
635, 9 Sup. Ct. Rep. 166 . . 707
Grafton v. United SUtes, 206 U. S.
333, 51 L. ed. 1084, 27 Sup.
Ct Piep. 749, 11 Ami. Caa.
640 626
Graham v. Bill, 223 U. S. 643, 56 L. ed.
686, 32 Sup. Ct. Rep. 396 . . 918
Grand Forks County v. Cream 'of
Wheat Co. 41 N. D. 330,
170 N. W. 863 »38
Grand Rapids & 1. R. Co. v. Osbom,
193 U. S. 17, 48 L. ed. 698,
24 Sup. a. Rep. 310 847
Grant y. Phoenix Mut. L. Ins. Co. 106
U. S. 429, 27 L. ed. 237, 1
Sup. Ct. Rep. 414 . , 618
V. Raymond, 6 Pet 218, 8 L.
ed. 376 : 1009
Gray, Ex parte, — Tex. Crim. Rep. — ^
83 S. W. 828 273
T. Boston Gaslight Co. 114
BiMS. 149, 19 Am. Rep. 324 868
Grays Harbor Logging Co. v. Coats
Fordney Logging Co. 243
U. S. 261, 61 L. ed. 702, 37
Sup. Ct Rep. 296 407
719, 1020
Great Northern R. Co. v. Hower, 236
U. 8. 702, 59 L. ed. 798,
36 Sup. Ct. Rep. 465 238
T. Minnesota, 238 U. S. 340, 59
L. ed. 1337, P.U.R.1915D,
701, 35 Sup. Ct Rep. 753 . .
787, 918
CASES CITED.
Oreat WMtern R. Co. v. Swindon & C.
Extension R. Co. L. R. 0
App. Cas. 787
Gtmb ▼. Bissell, 79 Conn. 647, 8 L.R.A.
(N.S.) 1011, 118 Am. St.
Rep. 156, 65 Atl. 1056, 9
Ann. Cas. 287
OreeiM t. Henkel. 183 U. S. 249, 46 L.
ed. 177, 22 Sup. Ct. Rep.
218 »
▼• Louisville & Interurban H.
Co. 244 U. S. 49f>, 01 1.. ed.
1280, 37 Sup. Ct. Rep. 673,
Ann. Cas. 1917E, 88 . .179,
187, 246, 423,
GrmAda Lumber Co. v. Mit^sissippi,
217 U. S. 433, .^4 L. ed.
826, 30 Sup. Ct. Rep. 635 . .
GriB, Re. 112 Fed. 790
V. Shine, 187 I^. S. 181, 47 L.
ed. 130, 23 Sup. Ct. Rep. 98,
12 Am. Crim. Rep. 866 ..
Gulf, 0. ft S. F. R. Co. y. Dennis, 224
U. S. 503, 66 L. ed. 860, 32
Sup. Ct. Rep. 642
T. Texas, 246 U. S. 68, 62 L. ed.
574, 38 Sup. Ct. Rep. 236 . .
Gumbel v. Pitkin, 113 U. S. 545, 28 Ik
ed. 1128, 5 Sup. Ct Rep.
616
Got Lmi, Re, 84 Fed. 323
GwUUm ▼. Donnellan, 115 U. S. 45, 29
L. ed. 348, 6 Sup. Ct. Rep.
1110, 15 Mor. Min. Rep. 482
Qjtl, Ex parte, 210 Fed. 818
H.
Hau T. Henkel, 216 U. 8. 462, 54 L.
ed. 569, 80 Sup. Ct. Rep.
249, 17 Ann. Cas. 1112 ..
514,
Hmke ▼. Brown, 44 Fed. 734
Hale V. Henkel, 201 U. S. 43, 50 L. ed.
652, 26 Sup. Ct. Rep. 370
HaU T. Armstrong, 65 Vt 421, 20
L.RJk. 366, 26 Atl. 592 . .
Hmmiltoa v. Kentucky ]>i8tillerie» &
. Warehouse Co. 251 U. 6.
' 146, 64 L. ed. 194, 40 Sup.
Ct. Rep. 106 276, 277,
279,
HamUton, The, 207 U. S. 398, 62 L.
ed. 264, 28 Sup. Ct. Rep.
183
Hamilton Mfg. Co. ▼. Massachusetta,
6 Wall. 632, 18 L. ed. 904
Hammertley t. New York, '56 N. T.
633
Haamond v. Hopkins, 143 U. 8. 224,
36 L. ed. 134, 12 Sup. Ct.
Rep. 418
M li. «a.
235
537
634
454
600
618
618
826
140
445
618
676
618
944
920
342
923
846
841
933
939
247
Hancock v. Muskogee, 250 U. S. 454, .
63 L. ed. 1081, 39 Sup. Ct.
Rep. 528 221, 430
Hanger v. Abbott, 6 Wall. 532, 18 L.
ed. 939 289
Hans y, Louisiana, 134 U. S. 1, 33 L.
ed. 82, 10 Sup. Ct. Rep.
504 281
Hansberg v. State, 120 III. 21, 60 Am.
Rep. 649, 8 N. E. 857, 267, 270
Harding, i'bc parte, 120 V. S. 782, 30
L. ed. 824, 7 Sup. Ct. Rep.
780 618
Ex parte, 219 U. S. 363, 55 L.
ed. 252, 37 L.R.A. (N.S.)
392, 31 Sup. Ct. Rep. 324 445
T. Illinois, 186 U. S. 78, 49 L.
ed. 394, 25 SUp. Ct. Rep.
176 406
V. Wilson, 196 U. S. 78, 49 L.
ed. 394, 25 Sup. Ct. Rep.
176 402, 403
Hardt ▼. Heidweyer, 162 U. S. 647,
38 L. ed. 548, 14 Sup. C^.
Rep. 671 247
Harkrader v. Wadley, 172 U. S. 148,
43 L. ed. 399, 19 Sup. Ct.
Rep. 119 616
Harley ▼. United States, 198 U. S.
229, 49 L. ed. 1029, 26 Sup.
Ct. Rep. 634 854
Harper Bros. t. Klaw, 232 Fed. 609 694
Harriman y. Northern Securities Co.
197 U. S. 244, 49 L. ed.
739, 25 Sup. Ct. Rep.
493 368. 826
Harria y. Equator Min. &, Smelting
Co, 3 McCrary, 14, 8 Fed.
863, 12 . Mor. Min. Rep.
178 Ml
V. First Nat. Bank, 216 U. 8.
382, 64 L. cd. 528, 30 Sup.
Ct. Rep. 296 901
y. James, 45 L. J. Q. B. N. S.
645, 35 L. T. N. S. 240 868
Harrialrby Cotton Co. v. State, 31
Okla. 003, 122 Pac. 163 . . 598
Harry Lode Min. Claim, Re, 41 Land
Dec. 403 577
Hart Steel Co. v. Railroad Supply Co.
244 U. S. 294, 61 L. ed.
1148, 87 Sup. Ct. Rep. 506 313
Harvey y. United SUtes, 113 U. S.
243, 28 L. ed. 987, 5 Sup.
Ct. Rep. 465 906
Haseltine v. Central Nat Bank, 183
U. S. 132, 46 L. ed. 118, 22
Sup. Ct Rep. 50 175, 177, 401
Haskell, Ex parte, 112 Cal. 412, 32
UKA. 627, 44 P»c, 726 . . 186
41
CASES CITED.
Haskell v. Kansas Natural Gas Co.
224 U. S. 217, 56 L. ed. 738,
32 Sup. Ct. Rep. 442 441
Haskell Implement & Steel Co. ▼.
Postal Teleg.-Cable Co. 114
Me. 277, 90 Atl. 219 .... 121
Hathaway v. Roach, 2 Woodb. &
M. 63, Fed. Cas. No.
6,213 926, 927
Hauenstein v. Lynham, 100 U. S. 483,
25 L. ed. 628, 648
Hawaii v. Mankiclii, 190 U. S. 197,
47 L. ed. 1016, 23 Sup. Ct.
Rep. 787, 12 Am. Crim.
Rep. 465 333
Hawke ▼. Smith, 253 U. 8. 221, 64
L. ed. 871, 40 Sup. Ct. Rep.
496 978
Hawley ▼. Maiden, 232 U. a 1, 58
L. ed. 477, 34 Sup. Ct. Rep.
201, Ann. Cas. 1916C, 842 934
Hayes v. Missouri, 120 U. S. 68, 30
L. ed. 578, 7 Sup. Ct. Rep.
350 Ill
floaley ▼. Rupp, 37 Colo. 25, 80 Pac.
1015 577
Hcaly ▼. Sea Gull Specialty Co. 237
U. S. 479, 69 L. ed. 1056,
35 Sup. Ct Rep. 658 652
Hodcer T. Fowler, 2 Wall. 123, 17 L.
ed. 759 926
Heike ▼. United States, 217 U. 8. 423,
54 L. ed. 821, 30 Sup. Ct.
Rep. 539 . . 616, 619, 815, 1022
Hendersonville Light & P. Co. v. Blue
Ridge Interurhan R. Co.
243 U. S. 563, 61 L. ed.
900, 37 Sup. Ct. Rep. 440 605
Hennen, Ex parte, 13 Pet. 230, 10 L.
ed. 138 694
Henry. V. Henkel, 235 U. S. 219, 59
L. ed. 203, 35 Sup. Ct. Rep.
54 514, 618
V. United Stetes, 251 U. S. 393,
64 L. ed. 322, 40 Sup. Ct.
Rep. 185 712, 713
Hepburn t. Dubois, 12 Pet. 345, 9 L.
ed. 1111 151
Hewit V. Berlin Mach. Works, 194 U.
S. 206, 48 L. ed. 986, 24
Sup. Gt. Rep. 690 . . 899, 906
Hilton V. Dickinson, 108 U. S. 165,
27 L. ed. 688, 2 Sup. Ct.
Rep. 424 851
Himely v. Rose, 5 Cranch, 313, 3 L.
ed. Ill 906
Hingham v. United States, 88 C. C.
A. 341, 161 Fed. 295, 15
Ann. Cas. 105 938
Hipolite Egg Co. y. I'nited States,
220 V. S. 4o, 55 L. ed. 364,
81 Slip. (t. Rep. 364.. 199, 846
Hirschman, Re, 2 N. B. N. Rep. 1123,
104 Fed. 69 264
Hirsh ▼. Twyford, 40 Okla. 220, 139
Pac. 313 69»
Hobart t. Drogan, 10 Pet. 108, 9 L.
ed. 863 842
Hoffman v. National City Bank, 12
Wall. 181, 20 L. ed. 366 679
Hohorst T. Hamburg- American Packet
Co. 76 Fed. 472 926
V, Hamburg-American Packet
Co. 148 U. S. 262, 37 L. ed.
443. 13 Sup. Ct. Rep. 590, 697
H^ke y. United States, 227 U. S. 308,
67 L. ed. 523, 43 L.R^.
(N.S.) 906, 33 Sup. Ct
Rep. 281, Ann. Cas. 1913B,
906 199, 846
Holcombe v. McKusick, 20 How. 652,
16 L. ed. 1020 618
Hollerbaoh v. United States, 233 U.
8. 166, 68 L. ed. 898, 34
Sup. Ct. Rep. 553 788
Hollingsworth v. Virginia, 8 Dall.
378, 1 L. ed. 644 ........ 876
Holmes t. Hunt, 122 Mass. 505, 23 '
Am. Rep. 381 923, 924
T. Jennison, 14 Pet. 540, 10 L.
ed. 579 987
Holt ▼. United States, 218 U. 8.
246, 54 L. ed. 1021, 31
Sup. Ct. Rep. 2, 20 Ami.
Cas. 1138 Ill
Home Ins. Co. ri New York, 134 U. 8.
694, 33 L. ed. 1026^ 10
Sup. Ct. Rep. 593 934
Hoo« ▼. Alexandria, 1 Cranch, C. 0.
98, Fed. Cas. No. 6,667 . . 927
T. United States, 218 U. 8. 322. ^ i
54 L. ed. 1055, 31 Sap. Ct.
Rep. 85 987
Hooper y. California, 155 U. 8. 648,
39 L. ed. 297, 6 Inters.
Com. Rep. 610, 15 Sup. Ct
Rep. 207 668
Hopkins v. United States, 171 U. S. m
679, 43 L. ed. 290, 19 Sup.
Ct. Rep. 40 663
y. Walker, 244 U. S. 486, 61
L. ed. 1270, 87 Sup.' Ct.
Rep. 711 692
Hopkirk v. Bell, 3 Cranch, 454, 2 L.
ed. 497 , ^m
Hopt y. UUh, 120 U. S. 430, 30 L.
ed. 708, 7 Sup. Ct. Rep. 614 111
Hortsman r. Henshaw, 11 How. 177,
13 L. ed. 053 679
Houck y. Little River Drainage Dist.
239 U. S. 254, 60 L. ed.
266, 36 Sup. Ct, Rep,
55 218, 280
( .
49'
^ 3
CASES CITED.
HdolUian ▼. St. Anthouy, 173 Fed.
496, lOQ C. C. A. 304, 184
Fed. 262 : . . . 928
B«ward t. Acme Brewing Co. 143 Ga.
1, 83 S. E. 1096, Ann. Cas.
1917A,91 267
T. Gipsy Oil Co. 247 U. S. 608,
62 L. ed. 1239, 38 Sup. Ct.
Rep. 426 466
▼. Kimball, 66 Me. 308 .... 924
▼. Missiesippi Valley Bank, 28
La. Ann. 727, 26 Am. Hep.
105 680
Howell, The, 267 Fed. 678 839
Howe Macb. Co. v. Edwards, 16
Blatchf . 402, Fed. Caa. No.
6,784 023
T. Gage, 100 U. 8. 676, 26 L.
ed. 764 167
Hnlbert t. Chicago, 202 U. 8. 276,
60 L. ed. 1026, 26 Sup. Ct.
Rep. 617 604, 606
HqU ▼. Burr, 234 U. S. 712, 68 L.
ed. 1667, 34 Sup. Ct Rep.
892 720, 1020
UiuD^ireys v. Idaho Gold Mines De-
velopment Co. 21 Idaho,
126, 40 L.R^.(N.8,) 817,
120 Pac. 823 682
Hmmieiitt y. Peyton, 102 U. S. 333,
26^ L. ed. 113 833
Himtuigton y. AttriU, 146 U. 8. 667,
36 L. ed. 1123, 13 Snp. Ct
Rep. 224 , 768
HuBtreM y. Epson, 16 Fed. 732, .... 927
Hurley y. Jones, 07 U. 8. 318, 24 L.
ed. 1008 861
Hyde T. Shine, 199 U. 8. 62, 60 L.
ed. 90, 26 Sup. Ct Rep.
760 614
T. United States, 226 U. 8. 347,
66 L. ed*. 1114, 32 Sup: Ct.
Rep. 793, Ann. Cas< 1914A,
614 614, 616
laafgl ▼. Tan de Gkrr, 166 U. 6. 391,
41 L. ed. 1045, 17 Sup. Ct
Rep. 696 943
minoia Seed Co., Ex parte, 219 Off.
Gaz. 931 706
iBeoftie Tax Cases, 168 U. S. 601, 39
L. ed. 1108, 16 Sup. Ct.
Rep. 912 626, 628, 633
laMina Transp. Co., Re, 244 U. S.
346, 61 L. ed. 1253, 37 Sup.
Ct. Rep. 717 466
Inter-Island Steam Nav. Co. T. Ward,
242 U. S. 1, 61 L. ed. 113,
37 Sup. Ct. Rep. 1
Internal Improv. Fund y. Greenougb,
105 U. S. 527, 26 L. ed.
1157
•4 li. ed.
946
801
International A G. N. R. Co. y. Ander-
son County, 246 U. S. 424,
62 L. ed. 807, 38 Sup. Ct.
Rep. 370
International Haryester Co. y. Mis-
souri, 234 U. S. 199, 68 L.
ed. 1276, 62 L.R.A.(N.S.)
626, 34 Sup. Ct Rep. 869
International Improy. Fund ▼. Gren-
ough, 105 U. S. 527, 26
L. ed. 1157
International Textbook Co. y. Pigg,
217 U. S. 91, 54 L. ed. 678,
27 L.RA.(N.S.) 493, 30
Sup. Ct. Rep. 481, 18 Ann.
Cas. 1103 641,
Interstate Amusement Co. y. Albert,
239 U. S. 560, 60 L. ed.
439, 36 Sup. Ct. Rep. 168
Interstate Commerce Commission y.
Baird, 194 U. S. 26, 48 L.
ed. 860, 24 Sup. Ct Rep.
663
y. Baltimore A, O. R. Co. 146
U. 8. 263, 36 L. ed. 699,
4 Inters. Com. Rep. 92,
12 Sup. Ct Rep. 844 ..
,▼. Diffenbaugh, 222 U. 8. 42, 66
L. ed. 83, 32 Sup. Ct Rep.
22
T. Goodrich Transit Co. 224
U. 8. 194, 66 L. ed. 729,
32 Sup. Ct. Rep. 436 ..
T. Louisyille & N. R. Co. 227
U. S. 88, 57 L. ed. 4^1,
33 Sup. Ct. Rep. 185
▼. Union P. R. Co. 222 U. S.
641, 66 L. ed. 308, 32 Sup.
Ct Rep. 108 ;
Interstate Consol. Street R. Co. y.
Ma^sadiusetts, 207 U. 8.
79, 62 L. ed. Ill, 28 Sup.
Ct. Rep. 26, 12 Ann. Cas.
.555 842, 847,
Intoxicating Liquor Cases, 25 Kan.
751, 37 Am. Rep. 284, 267,
Iowa y. lUinois, 147 U. S. 1, 37 L.
ed. 65, 13 Sup. Ct. Rep.
239 563,
Iowa C. R. Co. y. Iowa, 160 U. S. 389,
40 L. ed. 467, 16 Sup. Ct
Rep. 344
Iowa R. Land Co. y. Courtright, 21
Wall. 310, 22 L. ed. 582
Iron Silver Min. Co. v. Campbell, 135
U. S. 286, 34 U ed. 166,
10 Sup. Ct. Rep. 765, 16
Mqt. Min. Rep. 218 ....
Italier, The, 168 C. C. A. 662, 267
Fed. 712
Itow y. United SUtes, 233 U. S. 681,
58 L. ed. 1102, 34 Sup. Ct
Rep. 699
934
779
619
663
689
819
1000
1000
841
820
W7
934
268
664
917
490
677
612
405
4S
CASES
J.
Jackman v. Arlington Mills, 137
Mass* 277 868
Jackson v. Roby, 190 U. S. 440, 27
L. ed. 090, 3 Sup. Ct. Hep.
301 677
▼. Wauchula Mfg. & Timber Co.
144 C. C. A. 661, 230 Fed.
409 264
Jacksonville v. Southern Bell Telepb.
Co. 67 Fla. 374, 49 So. 609 223
Jacob Ruppert v. CalTey, 251 U. 8.
264, 64 L. ed. 260, 40 Sup.
Ct. Rep. 141 979, 986
Jacobs T. Prichard, 223 U. 8. 200,
66 L. ed. 406, 32 Sup. Ct.
Rep. 289 499
▼. Southern R. Co. 241 U. S.
299, 60 L. ed. 970, 36 Sup.
Ct. Rep. 688 433
James Gray, The, v. The John Fraser.
See CuBHiNO v. The Johit
Fbaseb.
Jarrolt v. Moberly, 103 U. S. 680,
26 L. ed. 492, 636
Jefferson, The, 216 U. S. 130, 64 L.
ed. 126, 30 Sup. Ct. Rep.
64, 17 Ann. Cas. 907 .. 662
Jefferson Branch Bank v. Shelly, 1
Black, 436, 17 L. ed. 173 768
Jennings v. Philadelf^ia, B. ft W. R.
Co. 218 U. S. 266, 64 L. ed.
1031, 31 Sup. Ct. Rep. 1 833
J. J. McCaskill Co. v. United States,
216 U. S. 604, 64 L. ed.
590, 30 Sup. Ct. Rep. 388 103
John ▼. Paullin, 231 U. S. 683, 68 L.
ed. 381, 34 Sup. Ct. Rep.
178 484
John O. Stevens, The, 170 U. S. 113,
42 L. ed. 969, 18 Sup. Ct.
Rep. 644 132
Johnson v. Brandau, 82 App. D. C.
348 706, 708
T. Qearlds, 234 U. S. 422, 68
L. ed. 1383, 34 Sup. Ct.
Rep. 794 202, 209
▼. Southern P. Co. 196 U. S.
1, 49 L. ed. 363, 26 Sup.
Ct. Rep. 168, 17 Am. Neg.
Rep. 412 946
Jones V. Portland, 246 U. 8. 217, 62
L. ed. 262, L.R.A.1918C,
765, 38 Sup. Ct. Rep. 112,
Ann. Cas. 1918E, 660 882
V. Rutherford, 26 App. D. C.
114 .•. 670
▼. United States, 170 C. 0. A,
172, 259 Fed. 104 666
Jones Nat. Bank v. Yates, 240 U.
S. 541, 60 L. ed. 788, 36
Sup. Ct. Rep. 429 147
44
CITED.
Joplin Mercantile Co. ▼. United
States, 236 U. S. 631, 69
L. ed. 705, 36 Sup. Ct. Rep.
291 646
Joyce ▼. Martin, 16 R. I. 558, 10
Atl. 620 868
J. P. Donaldson, The, 167 U. 8. 599,
42 L. ed. 292, 17 Sup. Ct.
Rep. 951 131
J. Ribas y Hi jo v. United States,
194 U. 8. 315, 48 L. ed.
994, 24 Sup. Ct. Rep.
727 201, 203, 987
Juragua Iron Co. v. United States,
212 U. 8. 297, 63 L. ed.
620, 29 Sup. Ct. Rep. 386 864
Jureidini v. National British ft I. M.
Ins. Co. [1916] A. C. 499,
[1916] W. N. 6, 84 L. J.
K. B. N. 8. 640, 112 L. T.
N. 6. 631, 31 Times L. R.
132, 69 Sol. Jo. 206 689
•
K.
Kaine, Re, 14 How. 103, 14 L. ed. 346, 618
Kammann v. United States, — C. C.
A. — , 269 Fed. 192 .... 868
Kansas y. Colorado, 186 U. S. 126, 46
L. ed. 838, 22 Sup. Ct.
Rep. 652 647
Kftnsaa City, Ft. S. ft M. R. Co. ▼. Bot-
kin, 240 U. 8. 227, 60 L. ed.
617, 36 Sup. Ct. Rep. 261 332
Kansas City Southern R. Co. v. C. H.
Albers Commission Co. 223
U. 8. 678, 66L. ed. 666,32
Sup. Ct. Rep. 316 918
Keeney ▼. New York, 222 U. S. 626, 56
L. ed. 299, 38 L.R.A.(N.S.)
1189, 82 Sup. Ct Rep. 106 991
Keim t. United States, 177 U. 8. 290,
44 L. ed. 774, 20 Sup. Ct.
Rep. 674 694
Kelley ▼. Rhoads, 188 U. §. 1, 47 L.
ed. 359, 23 Sup. Ct. Rep.
259 665
KeUy y. Griffin, 241 U. 8. 6, 60 L. ed.
861, 36 8up. Ct. Rep. 487 943
y. Springfield R. Co. 88 Fed. 188 926
y. United States, 163 C. C. A.
197, 250 Fed. 947 342
Kemmkr, Re, 136 U. 8. 436, 34 L. ed.
619, 10 Sup. Ct. Rep. 930 199
Kendall y. United States, 7 Wall. 113,
19 L. ed. 85 847
Kennedy v. Gibson, 8 Wall. 498, 19 L.
ed. 476 692
Kennon y. Gilmer, 131 U. 8. 22, 83
L. ed. 110, 9 Sup. Ct. Rep.
696 Ill
Kentucky R. Tax Cases, 115 U. S. 321,
29 L. ed. 414, 6 Sup. Ct.
Rep. 57 219
CASES CIXKD.
Kepner v. United Stales, 105 U. S. 100,
49 L. ed. 114, 24 Sup. Ct.
Rep. 797, 1 Ann. Gas. 655
Kershaw v. Kelsey, 100 Mass. 561, 97
Am. Dec 124, 1 Am. Hep.
142
Keyser ▼. Lowell, 54 C. C. A. 574, 117
Fed. 400
Kidd ▼. Alabama, 188 U. S. 730, 47 L.
ed. 669, 23 Sup. Ct. Rep.
401
T. Pearson, 128 U. S. 1, 32 L. ed
346, 2 Inters. Com. Rep. 232,
9 Sup. Ct. Rep. 6 . . . 200,
Kidder v. Oxford, 116 Mass. 165 ....
Kiehlbauch v. Simero, 32 Land Dec.
418
Kimberly v. Arms, 129 U. & 512, 32
L. ed. 764, 9 Sup. Ct. Rep.
356
Kindred v. Union P. R. Co. 225 U. 8.
582, 56 L. ed. 1216, 32 Sup.
Ct. Rep. 780 1005,
King's County Sav. Inst. ▼. Blair, 116
U. S. 200, 29 L. ed. 667, 6
Supv Ct. Rep. 353
Kinzell y. Chicago, M. & St. P. R. Co.
250 U. S. 130, 63 L. ed. 803,
39 Sup. Ct. Rep. 412
Kirk y. Olson, 245 U. S. 225, 62 L. ed.
256, 38 Sup. Ct. Rep. 114
Kirmeyer y. Kansas, 236 U. S. 568, 59
Jj, ed. 721, 35 Sup. Ct. Rep.
419
KirUand y. Hotchkias, 100 U. S. 491,
25L. ed. 658 ,
KlagM ▼• Philadelphia & R. Terminal
Co. 160 Pa. 386, 28 Atl. 862
Klein-Logan Co. y. Duquesne Light Co.
261 Pa. 526, P.U.R.1919A,
524, 104 Atl. 763
Klote V. Angle. 220 N. Y. 347, 116 N.
E. 24
Knapp V. Milwaukee Trust Co. 216 U.
S. 545, 54 L. ed. 610, 30
Sup. Ct. Rep. 412
Knapp, S. & Co. y. McCaffrey, 177 U.
S. 638, 44 L. ed. 921, 20
Sup. Ct. Rep. 824
Kneeland y. American Loan & T. Co.
138 U. S. 509, 34 L. ed.
1052, 11 Sup. Ct. Rep. 426
Knickerbocker L. Ins. Co. y. Norton,
%6 U. S. 234, 24 L. ed. 689
Knight y. United Land Asso. 142 U. 8.
161, 35 L. ed. 974, 12 Sup.
Ct. Rep. 258
Knott V. Chicago, B. & Q. R. Co. See
Missorni Rate Cases.
Knowtton y. Moore, 178 U. S. 41, 44
L. ed. 969, 20 Sup. Ct. Rep.
747 712, 893, 895^
Knoxville Water Co. y. Knoxville, 200
U. S. 22, 50 L. ed. 353, 26
Sup. Ct. Rep. 224
M L. ed.
110
289
641
934
278
939
237
025
1006
304
260
865
666
751
939
916
716
900
842
395
808
662
• •••••
987
857
Kohl V. United States, 01 U. 6. 367,
23 L. ed. 449 275
Krippondorf v. Hyde, 110 U. S. 276,
28 L. ed. 145, 4 Sup. Ct.
Rep. 27 445
Kronprinzessin Cecilie, The, 244 U. S.
12, 61 L. ed. 060, 37 Sup.
Ct. Rep. 400 847
Kurtz V. Moffitt, 115 U. 8, 487, 29 L.
ed. 458, 6 Sup. Ct. Rep. 148 042
Kurz V. State, 70 Ind. 488 267, 270
L.
La FoUette v. Murray, 81 Ohio St.
474, 91 N. E. 294 . . 267,
Lake y. Bender, 18 Nev. 361, 4 Pac.
711, 7 Pac. 74
Lake County v. Rollins, 130 U. S. 662,
32 L. ed. 1060, 9 Sup. Ct.
Rep. 651 234,
Lake Erie & W. R. Co. y. State Public
Utility Commission, 240 U.
S. 422, 63 L, ed. 684, P.U.R.
1910D, 450, 30 Sup. Ct.
Rep. 345
Lak^ Koen Nay. Reservoir & Irrig.
Co. y. Mcl^in Land &,
Inyest. Co. 60 Kan. 334, 76
Pac. 853
Lamar y. United States, 240 U. S.
60, 60 L. ed. 526, 36 Sup.
Ct Rep. 255
T. United States, 241 U. 8. 103,
60 L. ed. 012, 36 Sup. Ct.
Rep. 535
Lamborn y. Dickinson County, 91 U.
S. 181, 24 L. ed. 926 ....
Lancaster y. Collins, 115 U. S. 222,
29 L. ed. 373, 6 Sup. Ct.
Rep. 33
Landsdale y. Smith, 106 U. S. 391, 27
L. ed. 219, 1 Sup. Ct. Rep.
350
Lane y. Cameron, 45 App. D. C. 404
Lange, Ex parte, 18 Wall. 163, 21 L.
ed. 872
Langford y. United States, 101 U. S.
341, 25 L. ed. 1010 . . 309,
Last Chance Min. Co. y. Tyler Min.
Co. 157 U. S. 683, 30 L.
ed. 859, 15 Sup. Ct. Rep.
733, 18 Mor. Min. Rep. 205
La Tourette y. McMaster, 248 U. S.
465, 63 L. ed. 362, 39 Sup.
Ct. Rep. 160
Lau Ow Bew v. United States, 144 U.
S. 47, 36 L. ed. 340, 12 Sup.
Ct. Rep. 517
I^wrence Mfg. Co. v. TenncHsee Mfg.
Co. 138 U. S. 537, 34 L.
ed. 007, n Sup. Ct. Rep.
269
575
983
914
939
1021
1021
759
151
247
664
110
938
678
460
8ir>
306
......
707
45
CASES CITED.
Lawton v. Steele, 152 U. S. 133, 38
L. ed. 385, 14 Sup. Ct. Fep.
499 276
Leaf Tobacco Board of Trade, Re, 222
U. S. 578, 56 L. ed. 323, 32
Sup. Ct. Rep. 833 871
Leathe v. Thomas, 207 U. S. 03, 62
L. ed. 118, 28 Sup. Ct. Rep.
30 ....^ 758
Leather Mfrs. Nat. Bank v. Morgan,
117 U. S. 96, 29 L. ed. 811,
6 Sup. Ct. Rep. 657 679
Lee T. Johnson, 116 U. S. 48, 29 L.
ed. 570, 6 Sup. Ct. Rep.
249 662, 851
Leeds k C. Co. v. Victor Talking
Mach. Co. 213 U. S. 301,
63 L. ed. 805, 29 Sup. Ct.
Rep. 495
Legal Tender Cases, 12 WalL 457, 20
L. ed. 287 641,
Legal Tender Cases, 110 U. S. 421, 28
L. ed. 204, 4 Sup. Ct. Rep.
122 536,
Leland v. Hayden, 102 Mass. 642 ..
Lennon, Re, 150 U. S. 393, 37 L. ed.
1120, 14 Sup. Ct. Rep. 123
Lent y. TiUson, 140 U. S. 316, 36 L.
ed. 419, 11 Sup. Ct. Rep.
826
Lewensohn, Re, 2 N. B. N. Rep. 381,
99 Fed. 73, 44 C. C. A. 309,
104 Fed. 1006
Lewis y. Gainesville, 7 Ala. 86
Lewisyille Natural Qas Co. y. State,
135 Ind. 49, 21 LJt.A. 734,
34 N. E. 702
Lincoln v. Clafln, 7 Wall. 132, 19 L.
ed. 106
Lincoln Gas & E. L. Co. y. Lincoln,
250 U. S. 256, 63 L. ed. 968,
39 Sup. Ct. Rep. 464 . . 202,
Linn y. United States, 163 C. C. A.
470, 251 Fed. 476
Linn 4 L. Timber Co. y. United
States, 236 U. S. 674, 59
L. ed. 725,. 36 Sup. Ct.
Rep. 440 638
Littlefield y. Perry, 21 Wall. 205, 22
L. ed. 677 855
Liverpool & L. ft G. Ins. Co. y. Board
of Assessors, 221 U. S. 346,
55 L. ed. 762, L.RJ^.1915C,
903, 31 Sup. Ct. Rep. 650 456
Lockman, Re, 18 Idaho, 466, 46 L.R.A.
(N.S.) 759, 110 Pac. 263
267, 268
Logan County y. United States, 109
U. 8. 256, 42 L. ed. 737.
18 Sup. Ct Rep. 361 627
Loganville Bkg. Co. y. Forrester, 143
Qa. 302, L.R.A.1015D, 1196,
84 S. E. 901 .... 176. 178, 179
4t
827
642
642
637
406
137
253
934
223
396
209
322
Londoner v. Denver, 210 U. S. 373, 62
L. ed. 1103, 28 Sup. Ct
Rep. 708 426,
Long Sault Development Co. y. Call,
242 U. S. 272, 61 L. ed. 294,
37 Sup. Ct. Rep. 79
Lord v. Thomas, 64 N. Y. 107
Lottawanna, The, 21 Wall. 568, 22 L.
ed. 654
Lottery Case, 188 U. S. 821, 47 L.
ed. 492, 23 Sup. Ct. Rep.
321, 13 Am. Crim. Rep.
661 199, 202,
Louisiana v. Jumel, 107 U. S. 711, 27
L. ed. 448, 2 Sup. Ct Rep.
128
y. Mississippi, 202 U. 8. 60,
60 L. ed. 931, 26 Sup. Ct.
Rep. 408 663, 664,
«x rel. Hubert y. New Orleans,
216 U. S. 170, 64 L. cd.
144, 30 Sup. Ct. Rep. 40
y. Texas, 176 U. S. 1, 44 L. ed.
347, 20 Sup. Ct Rep. 261
▼. Wood, 102 U. 8. 294, 26 L.
ed. 153 :
Louisiana Nav. Co. y. Oyster Commis-
sion, 226 U. S. 99, 67 L. ed.
138, 33 Sup. Ct Rep. 78
407, 619, 719,
LouiflYille ft J. Ferry Co. y. Kentucky,
188 U. S. 386, 47 L. ed.
513, 23 Sup. Ct. Rep. 463
Louisville ft N. R. Co. y. Barber As-
phalt Paving Co. 197 U. 8.
430, 49- L. ed. 819, 26 Sup.
Ct. Rep. 466
▼. Garrett, 231 U. 8. 298, 68
L. ed. 229, 34 Sup. Ct
Rep. 48
V. Holloway, 246 U. S. 626, 62
L. ed. 867, 38 Sup. Ct.
Rep. 379, 17 N. C. C. A. 678
y. Mottley, 219 U. S. 467, 66 L.
ed. 297, 34 L.R.A.(N.S.)
671, 31 Sup. Ct. Rep. 266
243,
T. Rice, 247 U. S. 201, 62 L.
ed. 1071, 38 Sup. Ct Rep.
429
y. United States, 56 Ct CI. 238
y. West Coast Naval Stores Co.
198 U. S. 483, 49 L. ed.
1135, 25 Sup. Ct Rep. 745
y. Western U. Teleg. Co. 234
U. S. 369, 58 L. ed. 1356,
34 Sup. Ct Rep. 810 ....
y. Western U. Teleg. Co. 237
U. S. 300, 69 L. ed. 966,
86 Sup. Ct. Rep. 698 . . 842,
Louisyille Trust Co. v. Comingor, 184
U. S. 18, 46 L. ed. 413, 22
Sup. Ct Rep. 293
427
213
240
839
846
660
571
1021
281
769
1020
984
171
916
484
846
403
602
242
406
1020
899
CASES CriKD.
Loving, R4?, 224 U. S. 1S3, 56 I^ ed.
725, 32- Supv Ct. Rep. 446
hofwery v. Farmers^ 4 X. Co. 172 N.
. , Y. 137, 64 N. E. 796 ..
Low Wah 8uey v. Backus, 225 U. S.
460, 56 L. ed. 1165, 32 Sup.
Ct. Rep. 734 ......
Liitcher k M. Lumber Co. v. Knight,
217 U. S. 257, 54 L. ed.
757, 30 Sup. Ct. Rep. 505
Lutlitf ir. State, 83 Neb. 455, 20
L.R.A.(N.S.) 1146, 120 N.
W.' 125 267,
UnUm T. Korth River Bridge Co. 147
U. S. 337, 37 L. ed. 194, 13
Sup. Ct. Rep. 356
Ljnch r. fiombgr, 247 U. S. 339, 62
L. ed. 1149, 38 Sup. Ct.
Rep. 543 527»
M.
MeCall ▼. Berring, 116 Go. 235, 42
a E. 468 176,
McCftHhy ▼. First Nat. Bank, 223 U.
S. 493, 56 L. ed. 523, 32
Sup. Ct. Rep. 240
MeClellam v. Carland, 217 U. S. 268,
54 L. ed. 762, 30 Sup. Ct.
R^, 601
MtCloskej V. Sao Antonio Traction
Co. — Tex. Civ. App. *— ,
192 S. W. 1U6
lleCoach v. Pratt, 236 U. S. 662, 69
L. «d. 720, 36 Sup. Ct. R«p.
4S1 323,
irConnell ▼. Hector, 8 Bos. ft P. 118,
127 Bag. Reprint, 61^ 6 Re-
Tittd Rep. 724
MeCorquodale ▼. Texas, 211 U. S. 432,
53 L. ed. 260, 29 Sup. Ct.
Rep. 146
McCowaa t. Maclay, 16 Hont. 234, 40
Pac. 602
HeCn^ ▼. United States, 195 U. S.
27, 49 L. ed. 78, 24 Sup.
Ct. Rep. 769, 1 Ann. Cas.
661 199, 202,
ITCuUoch ▼. Maryland, 4 Wheat 316,
4 L. ed. 579 .... 202, 456,
534, 536, 875, 893,
HcCuUottgh ▼. Groff, 2 Mackey, 361
▼. Virginia, 172 U. S. 102, 43
L. ed. 382, 19 Sup. Ct. Rep.
134
McCurdy v. United States. 246 U. S.
263, 62 L. ed. 706, 38 Sup.
Ct Rep. 289
McGoarkey y. Toledo & O. C. R. Co.
146 U. S. 636, 36 L. ed.
1079, 18 Sup. Ct Rep. 170
MoGowan t. FlarUh. 237 U. S. 285, 69
L. ed. 955, 35 Sup. Gt. Rep.
543 45;>, 670,
€4 li. ed.
899
586
1012
827
270
815
^9
178
17T
816
482
718
289
719
682
893
984
923
1021
185
165
850
Slackenzie v. Flannery, 90 Ga. 590, 16
S. E. 710 176, 178
McKinloy v. United States, 249 U. S.
397, 63 L. ed. 668, 39 Sup.
CtRep. 324 109
MeLish v. Roff, 141 U. S. 661, 35 L.
ed. 893, 12 Sup. Ct. Rep.
118 616, 816
MeNamara v. Henkel, 226 U. S. 520,
67 L. ed. 330, 33 Sup. Ct.
Rep. 146 617
Magruder v. Oregon & C. R. Co. 28
Land Pec. 174 580
Mahn v. Harwood, 112 U. S. 354, 28
L. ed. 665, 5 Sup. Ct. Rep.
174, 6 Sup. Ct Rep. 451 495
Maillard v. Lawrence, 16 How. 251,
14 L. ed. 925 301
Main, The v. Williams, 152 U. S. 122,
38 L. ed. 381, 14 Sup. Ct.
Rep. 486 132
Malcon v. United States, 167 C. a A.
533, 256 Fed. 363 666
Msde Y. Atchison, T. k S. F. R. Co. 240
U. S. 97, 60 L. ed. 544, 36
Sup. Ct Rep. 361 406
Mali ▼• Keeper of Common JaiL See
WiLDENHus's Case.
Malstroa t. People's Drain Diteh Co.
32 Nev. 246, 107 Pac. 98 676
Manhattan Medicine Co. r. Wood, 108
U. S. 218, 27 L. ed. 706, 2
Sup. Ct. Rep. 436 707
Manning's Case, 13 WaU. 578, 20 L.
ed. 706 604
Marks t. State, 159 Ala. 71, 133 Am.
St. Rep. 20, 48 So. 867 .. .
267, 268
Marsh v. Fulton County, 10 Wall 676,
19 L. ed. 1040 ..« 759
T. Whitmore, 21 Wall, 178, 22
L. ed. 482 246
Marshall v. Baltimore k 0. R. Co. 16
How. 314, 14 L. ed. 953..
846, 848
T. Vicksburg, 15 WaU. 146, 21 h,
ed. 121 613
Marshall Dental Mfg. Co. v. Iowa, 226
U. S. 460, 57 L. ed. 300, 33
Sup. Ct Rep. 168 647
Marshall Field k Co. v. Clark, 143 U.
S. 649, 36 L. ed. 294, 12
Sup. Ct Rep. 495 841
Martin v. Hunter, 1 Wheat. 304, 4 L.
ed. 97 536
Y. United States, 93 C. C. A.
484, 168 Fed. 198 695
Marvin v. Trout, 199 U. S. 212, 50 L.
ed. 157, 26 Sup. Ct. Rep.
31 141, 604, 605
Marx V. Hanthom, 148 U. S. 172, 37
L. ed. 410, 13 Sup. Ct. Rep.
.'508 924
Marv, Tlie, 23.) Fed. 121 618
47
CASES CITED.
826
470
136
246
301
408
121
618
816
Mason City & Ft. D. R. Co. v. Boyn-
ton, 204 U. 8. 670, 61 L.
ed. 029, 27 Sap. Ct. Rep.
321 V 939
Masset Pub. Co. t. Patten, L.R.A.
1918C, 79, 158 C. C. A. 260,
246 Fed. 24, Ann. Caa.
1918B, 999 664
Mast, T. k Co. v. Stover Mtg, Co. 177
tJ. J5. 488, 44 L. ed. 858,
20 Sop: Ct. Rep, 708 ...
825,
Maxwell t. Bugbee, 250 U. S. 525, 63
L. ed. 1124, 40 Sup. Ct.
Rep. 2 468,
T, Dow, 176 U, S. 581, 44 L. ed.
697^ 20 Sup. Ct. Rep. 448,
494
T. Kennedy, 8 How. 210, 12 L.
ed. 1051
T. McGee, 12 Cush. 137
Maynard t. Hecht, 151 U. S. 824, 88
L. ed. 179, 14 Sup. Ct. Rep.
353
Meadows r. Postal Tteleg. & Cable Co.
173 N. C. 240, 91 S. B. 1009
Medley, 'Be, 134 U. S. 160, 33 L. ed.
835, lb Sup. Ct. Rep. 384
Meeker ▼. Lehigh Valley tL Co. 234 U.
S. 749, 58 L. ed. 1576, 34
Sup. Ct Rep. 674
T, Lehi^ Valley R. Co. 236 U.
S. 412, 69 L. ed. 644, P.U.R.
1916D, 1072, 35 8np. Ct
Rep. 328, Ann. Cas. 1916B,
691 , 816, 820, 924
T. Lehigh Valley R. Co. 236 U.
^, 434, 69 L. ed. 669, 85
* Bup.*tJt. lEtep. m 820
Mifciankaa t. Qreenough Red Ash Coal
Co. ie44 U. 8. 64, 61 L. «d.
987, 37 Sup. Ct. Rep. 693 316
Memphis ft L. R. Co. r. Berry. See
Me^pfiis ft L. R. Co. V.
Raulboad Combs.
▼• Railroad Comrk 112 U. 6.
609, 28 L. ed. 837, 5 Sup.
Ct Rep. 299
Mercantile Nkt. Bank ▼. Carpenter,
101 U. S» 567, 25 L. ed. 816
Merchants' ft M. Nat. Bank v. Pennsyl*
>ania, 1^7 U. S. 461, 42 L.
ed. 236, 17 Sup. Ct. Rep.
829 992
Metropolitan Water Co. v. Kaw Valley
Drainage Dfst 223 U. 8.
619, 56 t. ed.' 633, 32 Sup.
Ct. Rep. 246 T19
Meyer t. Wells, F. ft Co. 223 U. S. 298,
66 L. ed. 446, 32 Sup. Ct.
Rep. 218 832
Michigan Aluminum Foundry Co. v.
Aluminum Co. of America,
190 Fed. 903 927
48
219
247
Michigan C. R. v. Powers, 201 U. 8.
246, 66 h, ed. 744, 26 Sop.
Ct Rep. 459 456, 991
Michigan Ins. Bank v. Eldred, 143
U. 8. 293, 36 L. ed. 162,
12 Sup. Ct Rep. 460 83a
Michigan Land ft Lumber Co. v. Rust,
168 U. S. 589, 42 L. ed. 601,
18 Sup. Ct Rep. 206 .... 66^
Michigan Trust Co. ▼. Ferry, 228 V.
S. 346, 67 L. ed. 867, 38
Sup. Ct. Rep. 650 465
Middieton v. Texas Power ft Light Co.
249 U. S. 152, 63 L. ed. 607,
39 Sup. Ct. Rep. 227 1020
Miedreich v. Lauenstein, 232 U. 8. 286,
68 L. ed. 684 j 84 Sup. Ct
Rep. 309 • 918
Mlligan, £r parte, 4 Wall. 2, 16 L. ed.
281 199, 278, 885
Millingar v. Hartupee, 6 WalL 268,
18 L. ed. 829 428
Mills r. Chicago, 127 Fed. 781 ..... . 288
T. Lehigh Valley R. Co. 838 U.
8. 473, 69 L. ed. 1414, 85
Sup. Ct. Rep. 888 .. 820, 824
Minneapolis ft St. L. R. Co. t. ^om-
holis, 241 U. 6. 211/ 9^^
ed. 961, L.RaLl917A, 86, 86
Sup. Ct Rep. 695, Ann.
Cas. 1916B, 505 185,
t. Minnesota, 198 U. 8. 63, 48
L. ed. 614, 24 SUp. Ct Rep.
396
▼. Winters, «42 tJ. R 863, 61
' ^ L. ed. 368, 37 6np. Ot. Rep.
17<^, Ann. Ckis. 1918B, 54,
18 N. C. O. A.'112l
ItHnnesota ▼. Hitdbcock, 185 U. 6. 873,
46 L. ed. 954, 22 tSttp. Ot'
Rep. 660 510, 611,
Minnesota Rate Cases, 280 U. 8. 352,
57 L. ed. 1511, 48 LJtA.
(N.S.) 1151, 83 Sup, Ct
Rep. 729, Ann. Cas. 1916^
18 .... 202, 209, 442, 620,
Minot y. Paine, 99 Mass. 101, 96 Am.
Dec. 706
Mississippi ft R. River Boom €&. r.
Patterson, 98 U. & 403, 25
L. ed, 206
Misaiflsippi R. Cominjission v. Moltil^ ft
0. R. Co. 244 U. 8.' 388,
61 L. ed. 1216, 37 8tip. Ct
Rep. 602 , 480
Missouri ▼« Chicago, B. ft Q. R. to.
241 U. 8. 533, 60 ;L. ed.
1148, 36, Sup. Ct Rep. 71^
599, 914
MissMiri ft K. Interurban R. Co. r.
Olathe, 222 U. 8. 187, 56
L. ed. 156, 32 Sup. Ct Rep.
47 1021
484
t»
I,
798
669
521
540
137
CASES CITED.
Missouri P. R. Co. v. Umnes, 115 U.
8. 512, 20 L. ed. 463, 5 Sup.
et Rep. 110 140
w, KsufiaBM, 216 U. & 262» 54 L.
ed. 472, 30 Sup. Ct. Rep..
380 326, 480
T. Kansas, 248 U. B. 276, 63 L.
ed. 230, 2 A.L.R. 1589, 39
Sup. Ct. Rep. 93 978
▼• Nebraska, 217 U. S. 196, 54
L. ed. 727, 30 Sup. Ct. Rep.
461, 18 Ann. Cas. 989 .. 140
▼. Omaha, 235 U. S. 121, 50 L.
td. 157, 35 Sup. Ct Rep.
82 480
▼. Tmher, 244 U. S. 200, 61 L.
ed. 1082, 37 Sup. CU Rep.
522 215
▼. Tucker, 230 U. S. 346, 57 L.
ed. 1507, 33 Sup. Ct Rep.
961 146, 599, 914
IfiaMMnri Rate Oases, 230 U. S. 474, 57
• L. ed. 1571, 33 Sup. Ct
Rep. 976 ^2
Ifitehell ▼. Dakota Cent Teloph. Co.
246 U. S. 396, 62 L. ed. 798,
38 Sup. Ct. Rep. 362 , 867
Men T. Sanitary IMst 228 III. 633, 81
N. E. 1147 939
Hottdoii T. New York, N. H. ft H. R.
Co. See Snx>5D £mpix)t-
■If LtAMUTT Ci8l9B.
Monoiigakela Nav. Ca r. United
States, 148 U. & 812, 37 L.
ed. 468, 18 Supi Ot Rep.
622 ; 199
Iffontaiia R. Co. r. Warren, 137 U. S.
348, 34 L. ed. 681, 11 Sup.
Ct Rep. 96 819
Ifoore T. Missouri, 159 U. S. 673, 40 L.
ed. 301, 16 Sup. Ct Rep.
179 430
Morgan r. Louisiana, 93 U. S. 217, 23
L. ed. 860 219
MorHeon, Re, 147 U. S. 14. 87 L. ed.
60, 13 Sup. Ct Rep. 246 . . 928
Ifountftin TlUiber Co. v. Washington,
243 U. S. £10, 61 L. ed. 685,
37 Sup. Ct Rep. 260, Ann.
Cas. 1917D, 642, 13 N, C.
G. A. 927 .' 468
Ht Eonoetl Light & P. Co. v. Ihelen,
170 CaL.468, P.U.R.1916E,
291, 150 Pae. 369 313
MMller T. Nugent^ 184 U. S. 1, 46 L.
ed. 406, 22 Sup. Ct Rep.
269 900
Migler Y. Kansas, 123 U. a 623, 31 L.
ed. 205, 8 Sup. Ct Rep. 273
200, 275
Huhlker t. New York, 197 U. S. 544,
4ft L. ed. 872, 26 Sup. Ct.
R^. 522 480 *
•4 Ii. ed.
Municipal Gas Co. v. Public Service.
ConimissioB, 225 N, Y. 89,
P.U.R.1916C, 364, 121 N. B.
772 20f
Munn V. Illinois, 94 U. a i;3, 24 L.
ed. 77 242, 327-
Murphey v. Caralli, 3 Hurlat & 0.
462, 150 JBng. RepriBt» 611.
34 L. J. Ezchk N. a 14, 10
Jur. N. a 1207, 13 !Week.
Rep. 165 ... I 868
Murphy, Re, 3 Am. Bankr. Rep» 499 . , pOl
Murtha V. Ourley, 92 N, Y. 359 927
Mutchmor v. McCarty, 149 Cal 603,
87Pac.86 , 680
Mutual Ben. L. Ins. Ca t. Herold,
198 Fed. 109 090-701
Mutual L. Ins. Co. v. McOrew, 188 U.
a 291, 47 L. ed. 480, 63
L.R.A. 33, 23 Sup., Qt Kep.
375 215
Myers r. Pittsburgh Coal Co. ^3 U.
S. 184, fi8 U ed. 006> 94 >
Sup. Ct Rep. 559 867
Styles Salt Co. v. Iberia at at M.
Drainage Diat. 230 U. a
478, 60 L. ed. 992, L.R.A.
1918E, 190, 36 Sup. Ct
Kep. 204 .....«••«. .^ji • a^^ S2\
N.
Nahant T. United Statefi 69 It^RJL
728, 70 G* C. A. 641, 136
Fed. 273, 82 C. 0. A. 470,
158 Fed. 520 .^..«.r M7
Nairn LInoleun Co. t. Bingwalt IA99^
ileum Work*, 46 Apf. D. a
64 706
Napa y^fy Blectric .Oe. t. BuDw^ "■
Conumsaioners, 251 U. S.
366, 64 L. ed. 202, P.U.IU
1920C, 849, 40 Su^ Qk. ..
Rep. 176 ..... 916
Narragansett Brewing Co. t. Bi^er A
O'Shaiuies^ (Nov» X2,
1919, U. a IX Ct R. I.) . . 203
Kash V. United Statea, 229 U. S. 373,
57 L. ed. 1232, 33 Sup. 0^.
Rep. 780 868
Nashua & L. R. Corp. t. Boston 4 L.
R. Corp. 136 U. S. 356, 34
L. ed. 363, 10 Sup. Ct Rep.
1004 ..i 1/M
National Bank t. Johnson, 104 U. 8.
271, 26 L. ed. 742 175
V. Whitney, 103 U. a 103, 26 L.
td. 444 861
National Park Bank t. Ninth Nat
Bank, 46 N. Y. 77, 7 Ajn,
Rep. 310 680
Xeilson v, Rhine Shipping Go. 248 U.
S. 206, 63. L. ed. 208, 39
Sup. Ct Rep. 39 610-
4»
CASES CITED.
652
117
677
926
894
865
456
48i
Nelsoii Y. Oregon, 212 U. S. 316, 63 L.
, * ed. 628, 29 Sup. Ct. Rep.
383 ^83
NeTada-California-Ore^n R. Co. v.
BurruB, 244 U. 6. 103, 61
L. ed. 1019, 37 Sup. Ct.
Rep. 576 484
Newburyport Water Co. v. Newbury-
port, 193 U. 8. 662, 48 L.
ed. 795, 24' Sup. Ct. Rep.
653
Newcomb r. Korfolk Western Street R.
Co. 179 Mass. 449, 61 N. E.
42
Kew England & C. Oil Co. v. Congdon,
152 Cal. 211, 92 Pac. 180 . .
Kew Hampshire Land Co. v. Tilton, 29
. Fed. 764
Kew Orleans v. Lea, 14 La. Ann. 194
V. Paine, 147 U. S. 261, 37 L.
ed. 162, 13 Sup. Ct Rep.
gQ3
▼. Stfempel, 176 XJ. S. 309, 44 L.
ed. 174, 20 Sup. Ct. Rep.
110
Kew Orleans & N. E. R. Co. v. Harris,
247 U. 8. 367, 62 L. ed.
' 1167, 38 Sup. Ct. Rep. 635
Kew Orleans Gaslight Co. ▼. Drainage
Commission, 107 U. 8. 453,
49 L. ed. 831, 26 Sup. Ct.
Rep. 471 •.. 127
Kew Orleans Waterworks Co. ▼.
Louisiana Sugar Ref. Co.
125 U. S. 18, 81 L. ed. 607,
8 Sup. Ct Rep. 741 1021
Kewport t. Frendi Bros. Bauer Co.
169 Ky. 174, 188 8. W. 532
166,
▼. Wagner, 168 Ky. 641, 182 S.
W. 834, Ann. Oas. 1917A,
. ^2
Kew York ▼.' Barker, 179 U. 8. 279, 45
L. ed. 190, 21 Sup. Ct Rep.
121
ex rd. SiU v. Hester vberg, 211
U. S. 31, 63 L. ed. 76, 29
Sup. Ct. Rep. 10
•K rel. New York & Q. Gas Co.
V. McCall, 245 U. 8, 345, 62
L. ed. 337, P.U.R.1918A,
792, 38 Sup. Ct. Rep. 122 . .
480, 916
Kew York C. & H. R. R. Co. v. Carr,
238 U. 8. 260, 59 L. ed.
1298, 35 Sup. Ot Rep. 780,
9 N. C. C. A. 1 008
T. Gray, 239 U. 8. 588, 60 L. ed.
461, 36 Sup. Ct Rep. 176 . 847
T. Interstate Commerce Com
mission, 168 Fed. 131 .... 997
Kew York C. R. Co. v. Porter, 249 U.
S. 168, 63 L. ed. 663, 39
Sup. Ct. Rep. 188 ... . 200. 908
SO
167
166
399
279
New York C. R. Co. v. White, 243 U.
S. 188, 61 L. ed, 667, L.R,A.
1917D, 1, 37 Sup. Ct Rep.
247. Ann. Cas. 1917D, 629,
13 N. C. C. A. 948 841
▼. Winfleld, 244 U. 8. 147,
61 L. ed. 1045, L.R.A.1918C,
489, 37 Sup. Ot. Rep. 646,
Ann. Cas. 1917D, 1189, l4
N. C. C. A. 680 . . . . 260,
841, 908
Kew York, L. E. & W. R. Co. v. Penn-
sylvania, 163 U. 8. 628, 88
L. ed. 846, 14 Sup. Ct Rep.
962 468
New York L. Ins. Co. v. Deer Lodge
County, 231 U. S. 495, 58
L. ed. 332, 34 Sup. Ct Rep.
167 653
New York, K. H. A H. R. Co. v. United
States, 261 U. S. 123, 64
L. ed. 182, 40 Sup. Ct. Rep.
67 293, 295
Kew York Tunnel Co., Re, 86 C. C. A.
666, 169 Fed. 688 254
Nichols Case, 46 Land Dec iSO 664
Kiahimura Ekiu v. United Stotes, 142
U. S. 661, 53 L. ed. 1146,
12 Sup. Ct Rep. 336 943
Norfolk k 8. Tump. Co. v. Virginia,.
225 U. 8. 264, 56 L. ed.
1082, 32 Sop. Ct. Rep. 828 990
Norfolk & W. R. Co. v. Oonley, 2^6 U.
8. 605, 59 L. ed. 745, P.U.R.
1915G, 293, 36 Sup. Ct.
Rep. 437 »18
▼. West Virginia, 236 U. 8. 605,
69 L. ed. 745, P.U.R.1915C,
293j 36 Sup. Ct Rep. 437 . . 326
Norris v. Western U. Teleg. Co. 174 N.
C. 92, 93 8. E. 465 121
North American Cold Storage Co. v.
Chicago, 211 U. S. 306, 63
L. ed. 196, 29 Sup. Ct Rep.
101, 15 Ann. Cas. 276 .. 276
North Carolina ▼. Temple, 134 U. 8.
22, 33 L. ed. 849, 10 Sup.
Ct Rep. 509 281
North Carolina R. Co. v. Swasey, 23
vVall. 405, 23 L. ed. 136 . . 925
V. Zachary, 232 U. S. 248, 68
L. ed. 691, 34 Sup. Ct. Rep.
305, 9 N. C. C. A. 109,
Ann. Cas. 1914C, 159 .. 673
Northern P. R. Co. v. Ely, 197 U. S.
1, 49 L. ed. 639, 25 Sup.
a. Rep. 302 1006
V. North Dakota, 236 U. 8. 585,
59 L. ed. 736, L.R.A.1917F,
1148, P.U.R,191flC, 27T, 35
Sup. Ct Rep. 429, Ann. Cas.
1916A, 1 242, 326, 918
CAfeES CITED.
Xortbd^n P. K. Co. v. Paget Sound &
W. H. R. Co. 250 U. S. 332,
63 L. ed. 1013, P.U.R.1919D,
728, 30 Sup. Ct. Rep. 474 . . 213
T. Smith, 171 U. 8. 260, 43 L.
ed. 167, 18 Sup. Ct Rep.
704 1006
T. Townsend, 190 U. 8. 26T,
47 L. ed. 1044, 28 Sup.
Ct. Rep. 671 1006
Korthetn Securities Co. ▼. United
States, 193 U.S. 107, 48 L.
ed. 679, 24 Sup. Ct. Rep.
486 358, 779
North German Lloyd v. Guaranty
TVust Co. See Thk Kbon-
PBIlfZESSrW Cecilie.
Nttrthwegtent Mut. L. Ins. Co. v. Wis-
consin, 247 U. 8.- 132, 62 L.
ed. 1025, 38 Sup. Ct. Rep.
444 ftl
Norton t. Fancher, 92 Hun, 463, 36
N. Y. Supp. 1032 927
T. Whiteside, 239 U. S. 144, 60
L. ed. 186, 36 Sup. Ct. Rep.
97 561
Norwood ▼. Baker, 172 U. S. 269, 43
L. ed. 443, 19 Sup. Ct. '
Rep. 187 221
Nutt T. Knut, 200 U. 8. 12, 50 L. ed.
348, 26 Sup. Ct. Rep.
216 846, 848
0,
Oakee r. Manufacturers' F. & M.
Ins. Co. 135 Mass. 248 .. 808
Cf Callaghan v. O'Brien. See Farbell
V. O'Brien.
Oommpo ▼. United States, 234 U. 8.
91, 58 L. ed. 1281, 34 Sup.
Ct. Rep. 712 333
Oceanic Steam Nav. Co. v. Stranalian,
214 U. S. 320, 53 L. ed.
1013, 29 Sup. Ct. Rep. 671 759
Ogden V. Saunders, 12 Wheat. 213, 6
L. ed. 625 541
Ogden City v. Armstrong, 168 U. S.
224, 42 L. ed. 444, 18 Sup.
Ct. Rep. 98 454
Ohio ex rcl. Davis v. Hildehrant, 241
U. S. 565, 60 L. ed. 1172,
36 Sup. Ct. Rep. 708.. 877, 879
Ohio Tax Cases, 232 U. S. 576, 58
L. ed. 738, 34 Sup. Ct.
Rep. 372 454
O^eefe, Re, 29 Land Dec. 643 237
Oklahoma, Re. 220 U. S. 191, 55 L.
ed. 431, 31 Sup. Ct. Rep.
426 445
Oklahoma Gin Co. v. Love, — Okla.
— , P.U.R.1916C, 22, 158
Pac. 629 598
64 li. ed.
Oklahoma Gin Co. v. Oklahoma, 2ft8
U. S. 339, 64 L. ed. 600,
40 Sup. Ct. Bep. 341 599
Oklahoma Operating Co. t. Lore, 202'
U. S. 331, 64 L. ed. 506, 40
Shp. Ct. Rep. 388 .'i 601, 914
Old Dominion S: 8. Co. t. Gilmore.
See Thb HAMiLioit.
Old Wayne Mut. Life Asio. v^ Mo-
Donough, 204 U. 8. 8, 61
' L. ed. 845, 27 6up. OL
Rep. 286 316
Olsen, Re, 33 Land Dec. 225 237
O'Neal ▼, United SUtes, 190 U. S.
36, 47 L. ed. 945, 28 Sup.
Ct. Rep. 776, 14 Am. Crim.
Rep. 308 v..;«. 4Mli
Orchard v. Alexander, 167 U. S. 372,
39 L. ed. 737, 15 Sdp. Ct.
Rep. 035 ..«.. 6M
Osborne, Re, 209 N. Y. 466, 50
L.RJ1.(NJ3.) 616, 103 N.
E. 723, 823, Ann. Cas.
1915A, 298 536
The, 105 U. S. 447, 26 L. ed. .
1066 861
Oscanyan ▼. Winchester Repeating
Arms Co. 103 U. 8. 261, 26
L. ed. 689 851
Overholzer, Re, 23 Am. Bankr* Rep. IQ Ml
Owens V. Hanney, 9 Craneh, 180, 3
L. ed. 697 ^ 28f
Owensboro v. Owensboro Waterworks
Co. 191 U. S. 358, 48 L. ed.
217, 24 Sup. Ct. Rap. 82 224
P,
I
Pacific Exp. Co. T. Seibert, 142 U. 8.
389, 86 L. ed. 1035, 3 In-
ters. Com. Rep. 810, 12
Sup. Ot. Rep. 250 -454
Pacific Ins. Co. r. Soule, 7 WaQ. 433,
19 L. ed. 95 893
Panama R. Co. v. Bosse, 249 U. S.'41, • *
63 L. ed. 466, 39 Sup. Ct.
Repf. 211 ..594, 585
Paper Bag Mach. Cases, 105 -^'U. S.
766, 26 L. ed. 959' ...... 855
Parish r. McGowan, 39 App. D. C. 184 670
Parker v. Griffith, 151 X. C. 600, feo
S. E. 565 273
Parsons v. Vcnzke, 164 U. S. 89, 41
L, ed. 360, 17 Sup. Ct.
Rep. 27 .::..... 663
Passenger Cases, 7 How. 283, 12 L.
ed. 702 J 982
Patterson v. The Budora, 190 U. S.
169, 47 L. ed. 1002, 23 Sup.
Ct. Rep. 821 611
Paul V. Vir<jinia, 8 Wall. 168, l9 L.
ed. 357 '....458, 469, 663
51
CASES CITED.
Paulsoi T. PMrtlaad, 149 U. S. 30»
0 97 L. ed. 637, 13 Sup. Ct.
I{^, 76» 138
Pawhvtka t, PawluiBka OU & Qsls
Ck>. 250 U. 6. 3iH, 63 L.
; ed. 1064, P.U.iU9a9B, 178,
. 89 Sup. Ct. Bep. 626 . 407, 4^
PMbody Y. £kiiar» 247 U. 8. 347,
j92 U •<!. 1152, 88 €up. Ct. .
B/bp. 546 627, 632
Pearsail y^* Great Northern B. Co.
161 U. S. .646, 40 L. ed.
838, 16 ^p. Ct. Rep. 705 358
Peek Y. Heurioh, 167 U. S. 624, 42
L. ed. 802, 17 Sap. Ct. Rep.
02? 482
Piikham y. Henkel, 216 U. S. 483,
54 L. ed. 579, 30 Sup. Ct
R^. 255 943
BtdtrMB Y. Delaware, L. & W. R.
Go. 229 U. S. 146, 57 L.
ed. 1125, 38 Sup. Ct. Rep.
646, Ann. Cas. 1914C, 158,
3 N. C. C. A. 779.. 260, 792-794
PenneB y. State, 141 WU. 35, 123 K.
W. 115 267, 269
Penn ^ut L. Ins. Co. y. Austin, 168 •
U. fi. 685, 42 L. ed. 626,
18 Sup. Ct. Rep. 223 247
Bmnaftr y. Neff, 95 U. S. 714, 24 L.
ed. 565 316
PoB^lYania Co. y. United States,
236 U. a 851, 59 L. ed.
616, P.U.R.1915B, 261, 85
6«p. Ct. Rep. 370 .*. 997, 1000
PennijlYania Hospital y. Philadel-
phia, 245 U. 8. 20, 62 L.
ed. 124, 38 Sup. Ct. Rep.
35 1020, 1021
Pemui|lYaiiia IL Co. y. Hughes, 191
U. 8; 477, 48 L. ed. 268,
«4 Sup. Ct. Rep. 132 .... 120
' T. Public SerYioe Commission,
250 U. S. 566, 63 L. ed.
1142, 40 Sup. Ct Rep. .36 327
People Y. Clements, 5 N. Y. Crlm.
Rep. 286 343
Y. Cox, 106 App. Div. 299, 94
N. Y. Supp. 526 .... 267, 269
Y. Denman, 179 Cal. 497, 177
Pac. 461 626
?. pillon, 197 N. Y. 264, 90 N.
E. 820, 18 Ann. Cas. 652 . . 343
r. J>uke, 19 Misc. 292, 44 N. Y.
Supp. 336 1001
•X rel. Pullman Co. v. Glyn,
130 App. Div. 332. 114 N.
Y, Supp. 460, 198 N. Y.
605, 9^ N. B. 1097 536
Y. Kaidhart, 35 Misc. 191, 71
K. Y. Supp. 591 343
et rel Lanci v. O'Reilly, . 129
App. Div. 622, 114 N. Y.
Supp. 258 267, 269
ftft
People ex reL Detroit & H. R. Co. Y.
Salem, 20 Mich. 452, 4 Am.
Rep. 400 882
ex rel. Jefferson y. Smith, 88
N.Y.676 751
Y. Striokler, 25 Cal. App. 60,
142 Pac. ;1221 271
▼« Warren, 109 N. Y. 615, 16
N. £. 880 848
People's Tobacco Co. Y. American
Tobacco Co. 246 U. 8. 78,
62 li. ed. 587, 38 Sup. Ct.
Rep. 223, Ann. Cas. 1918C,
537 818
Perego y. Dodge, 163 U. 8. 160, 41 L.
ed. 113, 16 Sup. Ct Rep.
971, 18 Mor. MiA. Rep.
364 577. 578
Perkins, Be, 100 Fed. 950 618
Y. Scott, 67 N. H. 55 924
Pwin Y. United States, 232 U. 8.
478, 58 L. ed. 691, 34 Sup,
Ct Rep. 387 202, 209
Philadelphia ft R. R. Co. y. McKib-
bin, 243 U. 8. 264, 61 L.
ed. 710, 37 Sup. Ct Rep.
280 818
Pine River Logging & ImproY. Co.
Y. United States, 186 U. 8.
279, 46 L. ed. 1164, 22 Sup.
Ct Rep. 920 938
Pipe Line Cases, 234 U. S. 648, 58 L.
ed. 1459, 34 Sup. Ct. Rep.
956 242, 888
Pittsburgh, C. C. k St. L. R. Co. y.
Backus, 154 U. S. 421, 38
L. ed. 1031, 14 Sup. Ct
Rep. 1114 187
Pittsburgh R. Co. v. Pittsburgh, 260
Pa. 424, P.U.R.1918F, 801,
103 Atl. 959 914, 918
Plimpton V. Somerset, 33 Vt. 283 .. 924
Pollock V. Farmers' Loan & T. Co. 157
U. S. 429, 39 L. ed. 759,
16 Sup. Ct Rep. 673; 168
U. S. 601, 39 L. ed. 1108,
15 Sup. Ct. Rep. 912.. 893, 898
Y. Farmers Loan & T. Co. 8ee
Income Tax Cases.
Pope Mfg. Co. v. Gormully & J. Mfg.
Co. 144 U. S. 248, 36 L. ed.
423, 12 Sup. Ct. Rep. 841 888
Portland R. Light & P. Co. v. Rail-
road Commission, 229 U. 8.
397, 57 L. ed. 1248, 32 Sup.
Ct Rep. 820 918
Postal Teleg. Cable Co. v. Warren-
Godwin Lumber Co. 261 U.
S. 27, 64 L. ed. 118, 40 Sup.
Ct. Rep. 69 285
Prentis v. Atlantic Coast Line R. Co.
211 U. 8. 210, 63 L. ed.
150, 29 Sup. Ct. Rep. 67
135, 914, 918
CA8ES CITED.
Price T. Forr««t, 173 U. S. 410, 49
L^ •d. 749, 10 Sup. Ct Rep.
..»|.434
w. Henkftl, 216 U. a 488, 54 L.
ed. 681, 30 Sup. Ct Rep.*
2«7
T. Neal, 9 Burr, 1354, 97 Bug.
Reprint, 871
Priflu-eee v. Fenno^ 113 iPed. 375, 56
C. C. A. 313» U9 FeO. 8^1
925,
w. Western U. Tel^. Cq. 154
U. S. 1, 38 L. ed. 883, 14
Sup. Ct Rap. 1098 . . 110,
Proteeior, The, 12 Wall. 700, 20 L. ed.
463
Prorideat Inat. lor Sav. t. Jersey Cit/,
113 U. S. 506, 28 L. ed.
UQ2, 6 Supt Ct Rep, 612
Pvblio UtUities Commission v. Landon,
249 U. 6. 236» 63 L. ed. 577,
P.U.R.1919C, 834, 39 Sup.
Ot Rep. 268
PttUmaa Go. ▼. Croom, 231 U. & 571,
. 58 L. ed. 375, 3^ Sup. Ct
Rep. 182
T. Kansas, 216 U. S. 56, 54 L.
ed. 378, 30 Sup. Ct. Rep.
232
T. Knott, 243 U. S. 447, 61 L.
ed. 841, 37 Sup. Ct Rep.
428
Pnritj Extract St Tonic Co. t. Lynch,
226 U. S. 192, 57 L. ed. 184,
83 Sup. Ct Rep. 44, affirm-
ing 100 Miss. 650, 56 So.
816 .. 267, 268, 273, 279,
PwMa T. Page, 133 K. a 125, 46 S.
E. 534
T. United States, 162 U. S.
687, 40 L. ed. 1118, 16 Sup.
Ct. Rep. 923
Q.
^nong Wing r. Kirkendall, 223 U. S.
' 69, 56 L. ed. 350, 32 Sup.
' Ot. Rep. 193
670
SXi
670
928
120
201
38§
441
870
382
870
986
894
549
399
R.
Bakkf ▼. Cduinbia Phonograph Co.
68 a a A. 639, 128 Fed.
Bahrer. Se^ MO U. a 646, 35 L. ed.
672, U fiup. Ct Bap. 866
BaUroad Ceaimisaien t. Tesaa 4 P.
K. Ct. 2£9 U. & 336, 67
h. ed. 1215, 83 Sup. Ct
Sep. 887
▼. WortkingtoB* 225 U. S. 101,
66 !#. ed. 1004, 32 Sup. a.
Bep. 663 506,
•4 If. ed.
826
841
908
908
Ramirez v. Panama R. Co. Supreme
Court of Justice, oi Colom-
bia, 1 Gaccta Judicial, Np.
22, p. 170
Band v. United States, 240 U* & 503,
63 L. ed. 731, 39 Sup. Ct,
.Bep. 359
Rast T. Van Deaan & L. Co. 240 U. S.
342, 60 L. ed. 6t0, L.RJL
1017 A, 421, 36 Sup. Ct Bep.
870, Ann. Cas. 1017B, 455
Raymond v. Chicago Union Traction
Co. 207 U. S. 20, 52 L. ed.
78, 28 Sup. Ct Rep. 7, 12
Ann. Cas. 757
Bea V. State, 3 Okla. Crim. Rep. 260,
105 Pac. 381 , . . .
Reagan r. United States, 182 U. S.
410, 45 L. cd. 1162, 21 Sup.
Ct. Bep. 842
Reariok v. Ponn&vlvania, 203 U. S.
.507, 51 L. ed. 205, 27 Sup.
Ct Rep. 159
ReaTis v. Fianza, 215 U. S. 16, 54 1^
ed. 72, 30 Sup. Ct. Rep. 1
Bed Jacket Jr., Coal Co. v. United
Thacker Coal Co. 248 U.
S. 531, 63 L. ed. 405, 39
Sup. Ct. Rep. 5
Reg. ▼• Cambrian R. Co. I/. R. 6 Q.
B. 422, 40 L. J. Q. B. K.
a 169, 25 L. T. N. S. 84,
19 Week. Rep. 1138 ....
Regan v. Farmers' Loan &, T. Co. 164
U. S. 362, 88 L. ed. 1014.
4 Inters. Com. Rep. 560, 14
Sup. Ct Rep. 1047
Bagmaidon's Case, 1 Lewin, C. C. 180
Reisenberg ▼. State, — Tex. Crim.
Rep. — , 84 S. W. 585 ..
267,
Reitler ▼. Harris, 223 U. 8. 437, 66
L. ed. 497, 32 Sup. Ct
Bep. 248
Beapublica ▼. Arnold, 8 Yeates, 268
Bexford ▼. Brunswick-Balke-Collander
Co. 228 U. S. 339, 57 L.
ed. 864, 38 Supw Ct Bep*
616 619,
Reynolds v. New York Trw|t Co. 39
L.R.A.(N.a) 301, 110 C.
C. A. 409, 188 Fed. 611
Rhode y. Grant Smith Porter Co. 259
Fed. 304
fihutassel. Be, 96 Fed. 507
Richai'dgon v. Green, 133 U. 8. 30, 33
li. ed. 616, 10 Sup. Ct. Rep.
280
▼. (^taw, 209 U. 8. 881, 62 L.
ed. S43, 38 Sup. Ot. Rep.
612, 14 Ana. Cae. 961 ..
Richmond His. Ca ▼. Boas, 114 U. &
676, 29 L. ed. 273, 5 Sup.
Ct Rep. 1065
586
712
202
187
843
694
168
682
720
984
187
868
273
924
943
1022
256
889
263
165
264
677
%9
CASKS CITED.
167
670
670
750
869
Rinsburger, Re, 8 T. >£. Repts. 5G7,
128 Ms. Doc. 141 707
Riverside Mills v. Charleston & W. C.
R. Co. 20 Inters. Com. Rep.
163 ......: 981
Robbint ▼. Shelby Taxing Dist. 120 U.
S. 489, 30 L. ed. 694, 1
Inter*: Com. Rep. 46, 7
Sup. Ct. Rep. 592
Roberts v. Consaul, 24 A pp. D. C. 661
Y. United States, 176 U. S. 221,
44 L. ed. 443, 20 Sup. Ct.
Rep. 376
Robertson v. Frank Bros. Co. 132 U.
S. 17, 33 L. ed. 236, 10
Sup. Ct. Rep. 5
T. Gordon, 226 U. S. 311, 57 L.
ed. 236, 33 Sup. Ct. Rep.
105
Robinson v. Baltimore & O. R. Co. 237
U. S. 84, 59 L. ed. 849, 35
Sup. Ct. Rep. 491, 8 N. C.
C. A. 1 673
T. Lundrigan, 227 U. S. 173, 57
L. ed. 468, 33 Sup. Ct. Rep.
265 237
▼• Oceanic Steam Nav. Co. 112'
N. Y. 315, 2 L.R.A. 636,
19 N. E. 625 - 716
Robinson Co. r. American Exp. Co. 38
Inters. Com. Rep. 738 ... 821
Redd ▼. Heartt See TsE Lotta-
WANNA.
Rogers v. Arkansas, 227 U. S. 401, 57
L. ed. 569, 33 Sup. Ct. Rep.
298
▼. Brown, 136 Fed. 813
T. Hennepin County, 239 U. S.
621, 60 L. ed. 469, 36 Sup.
Ct. ftep. 217
Romano, £x parte, 251 Fed. 762 ..
Rods, Re, 140 U. S. 453, 35 L. ed.
581, 11 Sup. Ct. Rep. 897
¥. Day, 232 U. S. 110, 58 L. ed.
528, 34 Sup. Ct. Rep. 233
Round Mountain Min. Co. v. Round
Mountain Sphinx Min. Co.
36 Nev. 643, 188 Pac. 71
577,
Rounds T. Cloverport Foundry & Mach.
Co. 237 U. S. 303, 59 L.
ed. 966, 35 Sup, Ct. Rep.
696
Roush V. Baltimore & O. R. Co. 243
Fed. 712 :
Rowand ▼• Com. 82 Pa. 405
KowUuid y. Boyle, 244 U. S. 106, 61
L. ed. 1022, P.U.R.1917C,
686, 37 Sup. Gt Rep. 677
140, 819
Rowntree t. Sloan, 45 A pp. D. C. 207 494
54
168
926
887
618
648
905
R'uperto Restrepo v. Sabana K. Co.
Supreme Court of Justice
of the Republic of CoUhbh-
bia. III, Judicial Gasett^,
Xo. 353 586
ftussell ▼. Sebastian, 233 U. S. 195,
58 L. ed. 912, L.R.A.1918E,
882, 34. Sup. Ct. Rep. 517,
Ann. Cas. 191 4C, 1282 ..
T. United ^ates, 182 U. 8. 616,
45 L. ed. 1210, 21 Sup. Ct.
Rep. 899
127
854
580
842
793
343
S.
Sage T. United States, 250 U. S. 33,
63 L. ed. 828, 39 Sup. Ct.
Rep. 415
St. Anthony's Church v. Pennsylvania
R. Co. 237 U. S. 675, 69
L. ed. 119, 35 Sup. Ct. Rep.
729
St. Clair v. Tamaqua & P. Electric
R. Co. 269 Pa. 462, 6
A.L.R. 20, P.U.R.1918D,
229, 103 AtL 287 .. 914.
St. Joseph & D. C. K. Co. v. Baldwin,
103 U. S. 426, 26 L. ed.
578
St. Louis V. Western U. Teleg. Co.
148 U. S. 92, 37 L. ed. 380,
13 Sup. Ct. Rep. 485
St. Louis & K. C. Land Co. v. Kansas
City, 241 U. S. 419, 60 L.
«d. 1072, 30 Sup. Ct. Rep.
647
St. Louis & 8. F. R. Co. t. Brown,
241 U. S. 223, 60 L. ed.
966, 36 Sup. Ct. Rep. 602
T. Gill, 54 Ark. 101, 11 L.R.A.
462, 15 S. VV. 18
▼. Shepherd, 240 U. S. 240. 60
L. ed. 622, 36 Sup. Ct. Rep.
274 215, 405, 719^
St. Louis, I. M. ^ S. R. Co. v. Mc-
Knight. 244 U. 6. 368, 61
L. ed. 1200, 37 Sup. Ct.
Rep. 611
V. Waldrop, 93 Ark. 42, 123 S.
W. 778 ^.'>
St. Louis, S. F. & T. R. Co. v. Scale,
229 U. S. 156, 67 L. ed.
1129, 33 Sup. Ct. Rep. 651,
Ann. Cas. 1914C, 166 . . .
St. Louis Southwestern R. Co. ▼* Alcot-
ander, 227 U. S. 218, 67
L. ed. 486, 33 Sup. Ct. Rep.
245, Ann. Cas. 1915B, 77
T. Arkansas, 285 U. S. 360, 99
L. ed. 265, 85 Sup. Ct. Rep.
99 .... 167, 398, 458, 459,
323
720
9ie
1006
724
426
434
140
720
140
140
908
316
786
CASES CITKD.
St. P^ml V. gt PauI CUy K Co. 1X4
Iklinn. 250, 3ja L.R.A.{N.S.)
. 28a, 180 N. W. 1108, Ann.
C«s. 1912B, 1U6 117
St. Panl aatUght Co. t. St Paul, 161
U. 8. 142, 46 L. ed. 788,
21 Sup. Ct. Rep. 675 ... 846
Sanborn V. Maxwell, 18 App. D. C.
.245 670
Sandberg ▼. McDonald, 248 U. S. 185,
• 63 L. ed. 200, 30 Sup. Ct.
Rep. 84 610
▼. United States, — C. C. A. *-,
.267 Fed. 643 368
San Diego Land &, Town Co. v. Jasper,
180 U. S. 43», 47 L. ed.
802, 23 Sup. Ct. Rep. 571 917
San Francisco Chemical Co. v. Dtf-
fteld, 120 C. C. A. 160, 201
Fed. 830 577
Sarage t. Com. 84 Va. 582, 5 S. B.
663 271
Sayaanalr t. Jeeup, 106 U. 6. 663, 27
L. ed. 276, 1 Sup. Ct. Rep.
612 446
Sawyer t. Botti, 147 Iowa, 453, 27
L.RA.(N.S.) 1007, 124 N.
W. 787 267, 268
Sayward v. Denny, 158 U. S. 180, 39
L. ed. 941, 15 Sup. Ct. Rep.
777 402, 403, 406
Scatcherd t. Love, 91 C. C. A. 639, 166
Fed. 63 927
Sdienck T. United Stotcs, 249 U. 'S.
47, 63 L. ed. 476, 39 Sup.
Ci. Rep. 247 .. 866, 367,
545, 548, 550, 554, 834
Scherber, Re, 131 Fed. 121 901
SchiUinger v. United States, 155 U.
S. 163, 39 L. ed. 108, 15
Sup. Ct. Rep. 85 .. 854, 988
Schloflser t. Hemphill, 198 U. S. 173,
49 L. ed. 1000, 25 Sup. Ct.
Rep. 654 ... 401, 407, 719, 1020
Sdimohl ▼. Trtftaler's Ins. Co. — Mo.
— , 197 8. W. 60 258
Schuchardt, Re, 8 Ben. 585, Fed. Cas.
No. 12,483 252
Schulebberg r. Harriman, 21 Wall: 44,
22 L. ed. 551 490
Schwear ▼. Brown, 196 U. S. 171, 49
L. ed. 144, 25 Sup. Ct. Rep.
16 899
Scotland, The, 118 U. S. 507, 30 Lw
ed. 153, 6 Sup. Ct R6p.
1174 396
Saaboard Air Line R. Co. v. Duval],
125 U. S. 477, 56 L. ed.
1171, 32 Sup. Ct. R4»p. 790 406
▼. Hortori, 233 U. S. 492, 58 L.
ad. 1062, L.R.A.1915C, 1,
34 Sup. Ct. Rep. 086, Ann.
Caa. 1915B, 475, 8 N. C.
C. A. 834 433
•4 li. ed.
Soabotird Air Line R. Co. v. Secgers,
207 U. $. 73. .52 L. ed. 1081.
28 Sup. Ct. KQp. 28 141
Sears v. Akron, 240 L. 8.242, 62 L.
ed. 688, 38 iSxiii, Ct. Rep. *
245 137, 629
Sears, R. & Co. v. Pearoe, 165 C. C.
A. 402, 253* Fed. 960 .... , 927
Second Employers' Liahilitv Cases,
223 U. S. 1, r>6 h. ed. 327,
:J8 L.H.A.(X.S.) 44, 32
Sup. Ct. Rep. 169, 1 N. C.
C. A. 875 275, 666, 839
Seibert T. 8tate, 121 Ark. 258, 180.
S. \V. 990 267, 268
Selective Draft I^w Cases. 245 U. S.
366, 62 L. ed. 352, .L.R.A
1918C, 3G1, as Sup. Ct.
Rep. 159, Ann, Cas. 1918B,
800 .\..i. 545
Seven Cases v. United States, 239 U.
S. 6ia, 60 L. ed, 411,
L.R.A.1916D, 164, 36 Sup.
Ct. Rep. 190 199
Shaffer v. CarUi, 252 U. 6. 37, 64 L.
ed. 445, 40 Sup. Ct. Rep.'
221 468, 785
V. Chicago, R. I. & P. R. Co.
21 Inters. Com. Rep. 12 . . 803
T. Howard, 250 Fed. 873 458
Shanks v. Delaware, L. & W. R. Co.
239 U. S. 550, 60 L., ed. .
436, L.R.A.1916C, 797, 36
Sup. Ct. Rep. 188 .. 260, 793
Shapiro v. United States, 235 U, S.
412, 59 L. ed. 291, 35 Sup.
Ct Rep. 12? ...:, 720
Shawnee Gas & E. Co. t. State, il
Okla. 505, 122 Pac. 222 . . 698
Shepard v. Barron, 194 V. 8. 553,
48 L. ed. 1115, 24 Sup. Ct
Rep. 737 847
Sheppy V. Stevens, 119 C. 0. A. 330,
200 Fed. 946 619
ShevlinCarpeuter Co. v. Minnesota,
218 U. S. 67, 54 L. ed.
930, 30 Sup. Ct. Rep. 663 1020
Shoemaker v. United States, 147 U.
S. 282. 37 L; ed. 170, 13
Sup. Ct. Rep. 381 939
Shreve r. Cheesman^ 16 C. C. A. 413,
32 U. S. App. 676, 69 Fed. '
785 927
Shreveport Ice k Brewing Co.' V.
Brown, 128 La. 408, 54 So.
923 272
Shulthis V. McDougal, 225 U. S. 661,
66 L. ed. 1206, 34 Sup. Ct.
Rep. 704 720, 1019
Shults ft Mark, Re, 11 Am. Bankr.
Rep. 690 4 901
Shurileff v. United Stat^, 189 U. S.
311, 47 L. ed. 828, 23 Sup.
Ct. Rep. 535 694
•55
CASES CITED.
Sibray ▼. United States, 185 Fed. 401
Simon t. Southern R. Co. 296 U. 8.
115, 59 L. ed. 492, 35 Sup.
Ct. Rep. 255
Simons, £x parte, 247 U. S. 231, 62 L.
ed. 1094, 36 Sup. Ct. Rep.
497 :.. .
SimpsoB T. Shepard. Sec Minttesota
Rate Cases;
Sinking Fund ( ases, 90 U. S. 700, 25
L, ed. 496
Sioux City, etc., R. Co. t. Brown, 13
Neb. 317, 14 N. W. 407 . .
Slater v. Mexican Nat. R. Co. 194 U.
S. 120, 46 L. ed. 900, 24
Sup. Ct. Rep. 581
Slaughter-House Cases, 16 Wall. 36,
21 L. ed. 394
Sloeum T.,New York L. Ins. Co. 228
U. S. 364, 57 L. ed. 879, 33
»up. Ct. Rep. 523, Ann.
Cas, 1914D, 1029
Smith V. Vuloan Iron Works, 165 U.
8. 518, 41 L. ed. 810» 17
Sup. Ct. Rep. 407
Smith k G. Bffg. Co. v. Sprague, 123
U. S. 249, 31 L. ed. 141,
8 Sup. Ct. Rep. 122
Smithers t. Smith, 204 U. S. 632, 51
L. ed. 656, 27 Sup. Ct.
Rep. 297
Smythe V. Ames, 169 U. S. 466, 42 L.
ed. 819, 18 Sup. Ct Rep.
418
Sohn T. Waterson, 17 Wall 596, 21 L.
ed. 737
South Caroliiut t. United States, 199
U. S: 437, 50 L. ed. 261,
26 Sup. Ct. Rep. 110, 4
Ann. Cas. 737 .... 127,
South Covington k C. Street R. Co. v.
CoTington, 235 U. S. 537,
69 L. ed. 350, LJLA.
1916F, 792, P.U.R.1915A,
231, 35 Sup. Ct. Rep.
158 634,
t, Itentudcy, 252 U. S. 399, 64
L. ed.' 631, 40 Sup. Ct.
Rep. 378 637,
Southern Exp. Co. v. Long, 1^0 C. C.
A. 568, 202 Fed. 462 ....
Southon P. Co. V. Arizona, 249 U.
8. 472, 63 L, ed. 713, P.U.R.
1919D, 462, 39 Sup. a.
Repb 313 .%
% Darnell-Taenzer Lumber Co.
245 U. 8. 531, 62 L. ed. 451,
P.U.R.1918B, 598, 38 Sup.
Ct. Rep. 186 820,
T. Dellton, 140 U. 8. 202, 66 L.*
ed. 943, 13 Sup. Ct Rep.
44
943
316
922
541
989
584
716
867
826
495
471
187
716
536
636
638
826
506
821
332
Southern P. Co. v. Industrial AccL
Commission, 251 U. 8. 269,
64 L. ed. 268, 10 AX.R. — ,
40 Sup. Ct. Rep. 180
T. Jensen, 244 U. 8. 206, 61 U
ed. 1086, LJLA.1918C, 451,
37 Sup. Ot Rep. 624, Ann.
Cas. 1917E, 996, 14 N. C Cw
A. 596, 181, 837, 836, 840
T. Kentucky, 222 U. a 63, 64
L. ed. 96v 32 Si^ Ot Rep.
13
▼. Lowe, 247 U. 8. 330, 62 L. ed.
1142, 38 Sup. Ct Rep. 540
▼. Schuyler, 227 U. 8. 601, 67 L.
ed. 662, 43 L.RA.(N.8.)
901, 33 Sup. Ct. R0|>. 277
▼• United States, 287 U. S. 202,
69 L. ed. 916, 36 ^Kp. Ot
R^. 573
Southern P. Terminal Co. t. IntMrsMtta
Commerce Comminsiwi, 219
U. 8. 408, 66 L. ed. ai«» 81
8up. Ot. Rep. 279
Southern R. Co. v. Carson, 194 U. 8.
136, 48 L. ed. 907, 24 Supw
Ct Rep. 609
T. King, 217 U. S. 624, 64 L.
ed. 868, 30 Sup. Ct Rep.
694
T. MiUer, 217 U. 8. 209, 64 L.
ed. 732, 30 Sup. Ct. Usp.
450
T. Puckett, 244 U. 8. 671, §1
L. ed. 1321, 37, Sup. Ct
Rep. 703, Ann. Cas, 1918B,
«9
T. United States, 222 U. 8. 20^
66 L. ed. 72, 32 Sup. Ct
Rep. 2, 8 K. C. C. A. 822
Southern Steel Co., Re, 163 Fed. 498
Southern Wisconsin R. Co. v. Madison,
240 U. a 457, 60 L. ed.
739, 86 Sup. Ot Rep. 400
Sparf T. United SUtes, 166* U. & 61,
39 L. ed. 343, 16 Sup. Ct
Rap. 273, 10 Am. Grim.
Rep. 168
Spencer ▼. I>«plan Silk Co. 191 U. 8.
626, 48 L. ed. 287, 24 Sup.
Ct Rep. 174
T. Merchant, 126 U. 8 345, 31
L. ed. 763, 8 Sup. Ct Rep.
921
Spies T. Illinois, 123 U. 8. 131, 31
L. od. 80, 8 Sup. Ct Rep.
21 Ill,
Stallo T. Wagner, 168 C. C. A. 04, 246
Fed. 636
Standard Oil Co. t. Anderson, 2UL2
U. S. 216, 63 L. ed. 480,
29 Sup. Ct Rep. 268 . 673,
y. Com. 107 Ky. 606, 66 8. W.
8
841
934
301
607
22S
606
484
1620
484
793
276
264
479
136
729
220
317
926
674
167
CASKS CITED.
Standard Oil Co. ▼. Graves, 249 U. S.
380, 63 L. ed. 662, 89 Sup.
Ct. Rep. 820 ; . 659
▼. United States, 221 U. S. 1,
66 L. ed. 619, 34 L.ILA.
(NJS.) 834, 31 Smp. Ct. -
Rep. 602, Ann. Cat. 1912D,
784 . . 354, 355, 358, 534,
778, 776, 998
eiandard Paint Co. v. Trinidad As-
plialt Mfg. Co. 220 U. S.
446, 55 L. ed. 636, 31 Sup.
Ct. Rep. 466 707
mulejr T. Sehwalby, 162 U. S. 255,
40 L. ed. 960, 16 Sup. Ct
Rep. 764 938
StMtoii y. Baltic Min. Co. 240 U. 8.
103, 00 L. ed. 546, 86 Sup.
Ct. Rep. 278 528, 896
8taUer T. United States, 157 U. a
£77, 39 L. ed. 700, 15
Sup. Ct. Rep. 616 ....... 834
Stewart ▼. Bloom. See Stewabt t.
Kahit.
T. Kahn, 11 Wall. 493, 20 L.
ed. 176 201
titaU T. Burk, 151 Mo. App. 188, 181
S. W. 888 : . . . 270
tt rd. West ▼. Butler, 70 Fla.
102, 69 So. 771 534
▼. Buyck, 8 8. C. L. (1 Brer.)
460 048
T. Canal ft C. R. Co. 80 La.
Ann. 1189, 66 LJLA. 287,
24 So. 265 117
t, Carmody, 60 Or. 1, 12 L.R Jl.
(N.S.) 828, 94 Pae. 446,
271, 1081
▼• GentjBnnial Brewing Co. 56
Mont. 500, 179 Pae. 296
* 267, 272
r* Certain Intozieating liqtiors,
76 Iowa, 243, 2 L.R^ 408,
41 N. W. 6 268
iK rel. Wisconsin t. Cheyboy-
gan. 111 Wis. 28, 86 N. W.
657 223
T. C<41is„ 73 Iowa, 542, 35 N. W.
625 343
▼. Colvin, 127 Iowa, 632, 103
N. W. 968 267, 268
T. Currie, 8 N. D. 545, 80 N.
W. 475 272
r, Danenberg, 161 N. C. 718, 26
L.RJL(N.S.) 890, 66 S. E.
801 273
as rel Atchison, T. & S. F. R.
Co. y. Ellison, 268 Mo. 225,
186 S. W. 1075 258
ex rel. Miles v. Ellison, 269
Mo. 151, 190 S. W. 274 . . 258
y. Ely, 22 S. D. 487, 118 N. W.
687, 18 Ann. Cas. 92 . . 267, 269
•4 li. ed.
State ▼. Fargo Bottling Works, 10
N. D. 307, 26 L.RJ^.(K.&)
872, 124 N. W. 887 . . 26?,
y. Frederickson, 101 Me. 37, 6
L.R^.(K.S.) 186> lU Am.
St. R^. 295, 68 Att. 600,
0 Ann. Cas* 40
y. Gamma, 149 Mo. A^. 694,
120 8. W. 784
y. George, KI6 La. 006^ 07 Sow
963 267,
y. Gill, 89 Minn. 502, 05 N.
W. 440
y. Heme/icb, 98 Wask. 480,
L.R.A.1917B, 962, 161 Pae.
79
▼. Henry, 74 W. Va. 72, 4
A.L.R. 1182, 81 S. S. 560
y. Maroun, 128 La. 029, 65 So.
472 267^
y. Miller, 92 Kan. 994, L.R.A.
1917F, 288, 142 Bac. 979,
Ana. Cas. 1016B, 806 . 20T,
ex rel. Milwaukee y. Milwaukee
Electric R. 4 Light Co. 144
Wis. 386, 140 Am. St Rep.
1025, 129 N. W. 628
ex rel. Milwaukee y. Milwaukee
Electric R. ft Light Co. 161
Wis. 620, 130 N. W. 396,
Ann. Cas. 1914B, 128 ....
•JC rel. Garner y. Missouri & K.
Telej^. Co. 189 Mo. 83, 88
; 8. W. 41
y; diyer, 26 W. Va. 422, 58
Am. Rep. 70 207,
▼• Olsen, 95 Minn. 104, 103 N.
W. 727
y. Piche, 98 Me. 340, 60 AtL
1062
OK rel. Thatcher y. Reno Brew-
ing Co. 42 Nsfy. 807, 170
Pae 002
y. Spaulding, 61 Vt 506, 17
Atl. 844
y. Thornton, 63 N. H. 114 . *67,
y. Trione,. 97 Kan. 365, 155 Pae.
29 • 267,
y. Virgo, 14 N. D. 203, 103 N.
W. 610 267,
y. Walder, 83 Ohio St. 68, 93
N. E. 531 267,
V. Wills, 154 Mo. App. 605, 136
S. W. 25
State Bank v. Cumherland Say. ft %
Co. 168 N. C. 606, L.R.A.
1915D, 1138, 86 S. fc 5..
State Cattle Co. y. Atchison, T. ft A.
P. R. Co. 210 U. S. 1, 62
L. ed. 931^28 Sup. Ct. ^p.
607, 16 Ann. Cas. 70 ....
State Railroad Tax Cases, 92 U. 8.
575, 23 L. ed. 663 . . 218,
070
270
070
sot
070
269
271
070
800
117
470
228
271
267
270
271
270
072
266
272
269
270
. • »
600
280
^9
07
CASES CITED.
923
618
810
362
State Tax -on Fore^gii-jHeld Bonds, 15
Wall; 800, 21 L. ed. 179 456
Utecky. Colorado Fuol & I. Co. 142
;< . N. Y. 236, 25 LJI.A. 67,
Sternamah V. BBok, 26 CO. A. 214,
61 U. S. App. 312, 80 Fed.
883 ...:..v
Stduer, Re, 104 Fed. 976, 8 N. B. N.
Kepi. 226 ; /. 901
Stewarfc.v. Griffith. 217 U. S. 323, 54
' . L. ed. 782, 30 Sup. Ct. Kep.
• 628, 19 Ann. CaB. 639. .807, 808
BtiUwoll & B. Mfg. Co. V. Phelps, 130
U. S. 520, 32 L. ed. 1035, 9
Sup. Ct. Rep. 601
Stilsoa y; United States, 250 U. 6.
. . 883, 63 L. ed. 1154, 40 Sup.
Ct. Rep. 28 •.
Stockbridge Iron Co. v. Cone Iron
Works, 102 Mass. 80, 6
!• Mot. Min. Rep. 317 925
Stockton T. Baltimore & N. Y. R. Co.
1 Inters. Com. Rep. 411, 2&
Fed. 9 ! 724
Stratton's Independence v. Howbert,
\ ,, 231 U. 8. 399, 68 L. ed. 286,
34 Sup. Ct. Rep. 136 . ... 629
Straua ¥. American Publishers' lAsso.
2n U. S; 222, 68 L. ed. 192,
|^R.AJfc916A, 1099, 34 Sup.
. CU Rep. <84, Ann. Cas.
1916A, 369 368
StPcpy V. Stark, 7 Colo; 614, 6 Pac.
HI, 17 Mor.Min. Rep. 36 580
Stuart V. Union P. «L Co. 227 U. S.
342^ 67 L.,iQd. .635y 33 Sup.
Ct. Rep. 338 1005
Stuarts Draft Mill. Co. ▼. Southern
R. Co. 31 Inters. Com. Rep.
«, 623 .*..*...;.- \
StudlegriY. 30yl8ton Nat. Baak, 118
C. C. A. 435, 200 Fed: 249 ;
.229 U. S. 523. 67 L. ed.
1313, 33 Sup. Ct. Rep. 80G 901
SuddejL «4b Christenson v. Industrial
Acci^ Commission, — Cal.
— , 188 Pac. 803 841
SugaroMn v. United States, 249 U. S.
182, 63 L. ed. 650, 39 Sup.
gt. Rep. 191, 362, 401, 402,
405, 720, 857, 1019-1021
Sullivjp V. Portland & K. R. Co. 94
U. S. 806, 24 L. ed. 324 . . 247
Sulzer y. Watson, 39 Fed. 414 923
(Sunbeam, The, 115 C. C. A. 370, 195
, ' Fed^ 468,470 132
Superior v. Puluth Street R. Co. 166
Wis. 487, 165 N. W. 1081 . . 480
Supreme Council R. A. v. Behrend, 247
U. S! 394, 62 L. cd. 1182,
1 A.L.R. 966, 38 Sup. Ct.
Rep. 522 702
58
997
Sutton V. Com. 97 Ky. 308, 30 a W.
661 943
Swan Brewery Co. v. Rex [1914] A. C.
231, 83 L. J. P. C. N. S.
134, 110 L. T. N. 8. 211, 30
. ' Times L. R. 199 532, 641
Swanson r. Sears, 224 U. 8. 180, 66 L.
ed. 721, 32 Sup. Ct. Rep.
455 676
Sweet vi Reehel, 159 U. a 380, 40 L.
♦ed. 188, 16 Sup. Ct. Rep. 43 138
Swift & C. B. Co. V. United States, 111
U. S. 22, 28 L. ed. 341, 4
Sup. Ct Rep. 244 769
Swift & Co. V. Hocking Valley R. Co.
243 U. S. 281, 61 L. ed. 722,
37 Sup. Ct. Rep. 287 «29
T. United States, 196 U. S. 396,
49 L. ed. 524, 25 Sup. Ct.
Rep. 276 361, 369
Swords V. Edgar, 59 N. Y. 28, 17 Am.
• Rep. 295 868
T.
Tang Tun v.. Edsell, 223 U. S. 673, 66
J L. ed. 606, 32 Sup. Ct. Rep. i
• 369 1012
Tauza t. Susquehanna Coal C'O. 220 H.
Y. 259, 115 N. E. 915 316
Taxation of Salaries of Judges, Re, 131
N. C. 692, 42 S. E. 970 . . 894
Tax Comr. V. Putnam, 227 Mass. 522,
L.R.A.1917F, 806, 116 N. E.
904 532, 534, 540, 541
Taylor r. Anderson, 234 U. S. 74> 56
• L. ed. 1218, 34 Sup. Ct
Rep. 724 692
▼. Bemjss, 110 U. S. 42, 28 I..
ed. 64, 3 Sup. Ct Rep. 441
845, 847
Tempel t. United States, 248 U. 8. 124,
03 L. ed. 162, 39 Sup. Ct
Rep. 56 309, 938
Tennessee v. Sneed, 96 U. S. 69, 24 L.
ed. 610 ../ 716
V. Union & Planters' Bank, 162
U. S. 454, 38 L. ed 611,
14 Sup. Ct. Rep. 654 692
V. Whitwortb, 117 U. S. 329, 20
L. ed. 830, 6 Sup. Ct feep.
645 398
Tennessee Coal, I. & R. Co. v. Georgia,
233 U. S. 354, 58 L. ed. 99J,
I..R.A.1916D, 685, 34 Sup.
Ct Rep. 587 641
Terre Haute & 1. R. Co. v. Indiana,
194 U. S. 679, 48 L. ed.
1124, 24 Sup Ct Rep. 767 758
Terry v. Anderson, 95 U. S. 628, 24
L. ed. 365 716
Tesla Electric Co, v. Scott, 101 Fed.
524 026
OASES CITED.
Texas ft N. O. B. Co. v. Miller, 221 U.
S. 408, 55 L. ed. 789, 31
Smp. Ct. Rep. 534 574
T. Smbine Tram Co. 227 U. S.
Ill, 57 L. ed. 442, 33 Sup.
Ct. Rep. 229 * 908
TexM 4 P. R. Co. v. Abilene Cotton
Oil Co. 204 U. a. 426, 51
L. ed. 553, 27 Sup. Ct. Rep.
350, 0 Ann. Cas. 1075 821
T. Interstate Commeroe CommiS'
sion, 162 U. S. 197, 40 L.
ed. 940, 5 Inters. Com. Rep,
405, 16 Sup. Ct. Rep. 666 . .
997, 1000
Ttzas Traction Co. v. Barron O. Col-
lier, 115 C. C. A. 82, 195
F<^d. 65 826
Tlie Protector, 12 Wall. 700, 20 L. ed.
403 203
lliomas T. Brewnville, Ft. K. & P. R.
Co. 109 U. S. 522, 27 L. ed.
1018, 3 Sup. Ct. Rep. 315 . . 155
▼. Iowa, 209 U. S. 258, 52 U ed.
782, 28 Sup. Ct. Hep. 487 . . 403
▼. Taylor, 224 U. 8. 73, 56 L,
ed. 673, 32 Sup. Ct. 'Rep.
403 147
fliOBipeon V. Schenectady R. Co. 124
Fed. 274 934
Thompson Towing ft Wrecking Asso.
T. McGregor, 124 C, 0. A.
479, 207 Fed. 200 ...... . 132
Thomson ▼. Bean, 7 Wall. 342^ 19 L.
ed. 94 .-* 619
Thomtott ▼. Dow, 60 Wash. 622, 32
»»' L.R.A,(N.S.) 968, 111 Pac
899 868
Tide Water Oil Co. ▼. United States,
. . 171 U. S. 210, 43 Jj, ed.
139, 18 Sup. Ct. Rep. 837 . . 383
TiUaon v. United SUtes, 100 U. S. 43,
26 L. ed. 543 906, 938
Tindle v. Birkett, 205 U. 8. 183, 51 L.
ed. 762, 27 Sup. Ct. Rop.
493 , 253
Tineley v. Treat, 205 U. S. 20, 51 L. ed.
689, 27 Sup. Ct. Rep. 430 514
Titus V. Glen Falfe Ins. Co. 81 N. Y.
410 '. 808
Todd y. Daniel, 16 Pet. 621; 10 L. ed.
1054 851
T. Flight, 9 C. B. N. S. 377. 142
Eng. Reprint, l48, 30 L. J.
C, P. N. S. 21, 7 Jur. N.
S. 291, 8 L. T. N. S. 325,
9 Week. Rep. 145, l6 Eng.
Rul. Cas. 829 ' 868
^, United States, 158 U. 8. 278,
39 L. ed. 982, f5 Sup. Ct.
' 'Rep. 887 .'i 618
Toledo Newspaper Co. v. tfni*td States,
* ' 247 V, 8. 402, 62 L. ed.
• " ' 1186, 38 Sup. Ct. Rep. 560 405
•4 Jj. ed.
Tonopah Fraction Min. Co. v. Doug-
lass, 123 Fed. 936 ,.,.... 67t
Toop ▼. Ulysses Land Co. 237 tr. S.
680, 59 L. ed. 1127, 35 Sup.
Ct. Rep. 739 857
Towne v. Eisner, 245 U. S. 418, 62 L.
ed. 372, L.R.A.1918D, 254,
38 Sup. Ct. Rep. 158 ..
526, 533, 534, 540
Tracey v. Ginzberg, 205 U. S. 17p, 51
L. ed. 755, 27 Sup. Ct. Rep.
461 480
Trade Mark Cases, 100 U. S. 82, 25 L.
ed. 560 .K 541
Transfer No. 21, The, 160 C. a A. 469,
248 Fed. 459 , 132
Trans-Missouri Freight Asso. Case,
166 U. S. 290, 41 L- ed.
1007, 17 Sup. Ct. Rep, 540 358
Travis ▼. Yale & T. Mfg. Co. 252 U.
S. 60, 64 L. ed. 460, 40 Sup.
a. Rep. 228 455, 457
Treat v. White, 181 U. S. 264. 45 L.
ed. 853, 21 Sup. Ct. Bep'.
611 893
Trefry t. Putnam. See Tax Combs'.
V. Putnam.
Trinidad Asphalt Paving Co. t. Robi9- |
son, 52 Fed. 347 9tt
Trono v. United States, 199 U. /3y 521,
50 L. ed. 292, 26. Sup. Ct.
Rep. 12^1 4 Ann. Cas. 773 110,
Troxell r. Delaware, L. AW.. R. Co.
• 227 U. S. 434, 57 L. ed. 586,
>33 Sup. Ct. Rep. 274 151
Tucker ▼. United States, 151 U. a 164,* ' '
38 L. ed. 112, 14 Sup. Ct.
Bep. 299 924
Turpin v. Lemon, 187 U. S. 61, 47 L.
ed. 70, 23 Sup. Ct. Rep. 20 924
Turtle Creek v. Pennsylvania Water
Co. 243 Pa. 401, 90 Atl.
194 •.
Twining ▼. NeW Jel^ey. 211 V:'B. 78,
53 L. ed. 97, 39 'Sup. Ct.
Rep. 14 135, Ml,.
Twin-Luok Oil Co. v. Marbury, Ql U.
S. 587, 23 L. -ed. 32Q, 3 Mor.
Min. Rep. 688- * .>• • * «-« •»• <^ * IMd^
... (>
917
•J i)
•M
I
U.
.:.>*
Union ft Planters'- Bank v. Memphis,
189 U. S. 71, 47 L. ed. 712,
' 23 Sup. Ot. Bep. 604 ... .. ^. ,V\
Union Dry Goods Co.. ▼. Qfprgii^ Pub.
Service Corp. 248 U. S. 372,
63 L..ed* 309, 9 A4^J{. ;i42p,
P.U.R.1919C, 60, 3^ Sup.
. . a. Rep.. 117 ....243, 722, 846
Union Fieh Co. v. Erjckson, 248 U. g.
.308, 63 L. ed. 261, 39 Sup.
Ct. Rep. 112 838
CAbEy CITEU.
Uaios K»i. Bank v. Loui8\dIle, K, A.
4 C. R. Co. 163 U. S. 325,
tt L. od. 177. 16 Sup. Ct.
Rep. 1039 177,
Union Oil Co. v. Smith, 249 U. S. 337,
63 L. ed. 635, 39 Sup. Ct.
Rep. 308
Union Pacific R. Co. Case, 226 U. S.
61, 57 L. ed. 124, 33 Sup.
Ct Rep. 53
T. Cheyenne, 113 U. S. 616, 28
' L. ed. 1098, 5 Sup. Ct. Rep.
J 601 187,
w. Dodge County,' 98 U. 8. 541,
25 L. ed. 196
w. Harris, 215 U. S. 386, 54 L.
ed. 246, 30 Sup. Ct Rep.
138
▼• Public Senrice Commission,
248 U. S. 67, 6? L. ed. 131,
P.U.R.1919B, 315, 39 Sup.
Ct. Rep. 24 ... . 758, 759,
T, Byan. See Union P. R. Co.
T. Chetennb.
▼• Weld County, 247 U. S. 282,
62 L. ed. 1110, 38 Sup. Ct.
Rep. 610 187,
C&UoB Refrigerator Transit Co. ▼. Ken-
tucky, 199 U. S. 194, 50 L.
ed. 150, 26 Sup. Ot Rep.
36, 4 Ann. Cas. 498 .. 750,
CaioB Sav. Bank k T. Co. v. Dotten-
keim, 107 Oa. 606, 34 S. ^.
m 176,
CbIob a 8. Cq. t. The Aracan, L. R.
6 P. a 127, 48 L. J. Ptob.
N. S. 80, 31 L. T. N. S. 42,
22 Week. Rep. 927, 2 Asp.
L.Caa.350
Uftlott Stock Yards Co. ▼. Chicago, B.
ft Q. R. Co. 196 U. 8. 217,
49 L. ed. 453, 25 Sup. Ct
Rep. 226, 2 Ann. Cas. 525,
17 Am. Nsg. Rep. 760
itata ISuik Line Co. v. Wright, 249
U. & 275, 63 U id. 602» 39
8up. Ct Rep. 276
Oatted Button Co., Be, 140 Fed. 495
United Fuel k Gas Co. v. Com. 159 Ky.
34, 166 S. W. 783
Onitad Shoe Machinery Co. v. Ram-
lose, 210 Mo. 68, 109 S. W.
567
Waited States, Re, 194 U. 8. 194, 48 L.
ed. 981, 24 Sup. Ct. Rep.
629
T. Alabama O. 8. R. Co. 142 U.
8. 615, 35 L. ed. 1134, 12
Sup. Ct Rep. 306
»▼. Allred, 165 U. S. 591, 39 L.
ed. 273, 15 Sup. Ct Rep.
231 618.
4«
179
576
358
454
759
511
918
786
934
178
132
868
787
254
224
258
618
489
694
United States v. American Bell Teleph.
Co. 167 U. S. 224, 42 L. ed.
144, 17 Sup. Ct Rep. 809 . . 495
V. American Tobacco Co. 191
Fed. 371 1061
▼• Anderson, 9 Wall. 66, 19 L.
ed. 616 201, 203
V. A. Schrader's Son, 252 U. S.
85, 64 L. ed. 471, 40 Sup.
Ct Rep. 251 996
T. Ashfield, 91 U. 6. 317, 23 L.
ed. 396 694
V. Atchison, T. & S. F. R. Co.
249 U. & 451, 63 L. ed.
703, 30 Sup. Ct Rep. 325 . . 292
T. Bailey, 9 Pet 238, 9 L. ed.
113 500
v. Baltimore k O. R. Co. 17
WaU. 322, 21 L. ed. 597 . . 893
▼. Barber, 219 U. S. 72, 55 L.
ed. 99, 31 Sup. Ct Rep. 209 341
T. Barker, 2 Wheat. 395, 4 L.
ed. 271 801
T. Beatty, 282 U. S, 463, 58 L.
ed. 686, 84 Sup. Ct Rep.
392 81§, 1022
▼. Berdan Fire-Arms Mfg. Co.
156 U. S. 552, 39 L. ed. 530,
15 Sup. Ot Rep. 420 ....
▼. Berry, 2 McCrary, 58, 4 Fed.
779
W. Blrdsall, 233 U. S. 223, 58 L.
ed. 930, 34 Sup. Ct. Rep.
51t
T. Borcherling, 185 U. & 223,
46 L. ed. 894, 22 Snqp. Ct
Rep. 607
▼. Britton, 108 U. S. 190, 27 L.
ed. 698, 2 Sup. Ct Rep.
531 546
T. Buffalo Pitts Co. 234 U. 6.
228, 58 L. ed. 1290, 34 Sup.
Ct Rep, 840 309
▼. Cerecedo Hermanos y Com-
pania, 209 U. S. 337, 52 L.
ed. 821, 28 Sup. Ct Rep.
532 500
T. Certain Lands, 145 Fed. 654 937
T. Chase, 245 U. S. 89, 62 L.
ed. 168, 38 Sup. Ct Rep.
24 1006
¥. Chaves, 228 U. S. 525, 57
L. ed. 950, 33 Sup. Ct. Rep.
595 665
T. Choctaw Nation, 179 U. 8.
494, 45 L. ed. 291, 21 Sup.
Ct Rep. 149 516
▼. Cobn, 2 Ind. Terr. 474, 52 N.
W. 88 ..• 267
T. Colgate Co. 250 U. B. 800, 63
L. ed. 992, 7 AX.R. 443, 39
Sup. Ct Rep. 465 .... 474,
475, 996
854
618
302
CASKS CIIKD.
T.
United 6Ute« *v. Conipress Con^tr. Co.
222 U. S. 100, ^6 L. ed. 163,
32 Sup. Ct. Kept. 44 601
««e ol Mackej t. Coxe, 1$ How.
100, 16 L. ed. 200 670
w. CreM, 243 U. a 316, 61 L.
ed. 746^ 37 Sap. Gt. R^.
380 100, 723, 037
▼» Graibf , 7 Cranoh» 115, 3 L.
id. 287 600
▼. Dalcour, 203 U. 8. 408, 61
!«. #d. 248, 27 Sup. Ot Rep.
68 860
reL lyAiiiato t. WilliamB,
103 Fed. 228 ^. 618
Qiau Linsead-Oil Co. 31 C. C.
A. 61, 5.7 U. S. Ap^ 716,
«rVbd.463 600
W. Daiaw^re^ L. & W. R. Co. 238
U. & 616, 50 L. ed. 1438, 35
. Sup. Gt. Rep. 873 773, 781
« rtL Atfy. Gen. v. Delaware k
J^ Co. 213 U. S. 366, 53
L. ed. 836, 20 Sup. Ct. Rep.
627 ...600,773,780, 848
T« Denver 4b R. Q. R. Co. 150 U.
a 1, 37 L. «d. 075, U Sup.
Ct. Rep. 11 1005
t. DMMoime NaT. A R. Co. 142
U. 8. 510, 35 L. ed. 1000,
IS Sup. Ct. Rep. 308 202
w. Doremua, 240 U. 8. 86, 63 L.
ed. 403, SO Sup. Ct. Rep.
214
V. Engeman, 46 Fed. 808 ....
100
038
T. Eraaa. Set Tea BiMaL"
■■▲Tm.
t. Kalk, 204 U. 8. 143, 51 L. ed.
411, 27 Sup. Ct. Rep. 101 .. ^
600
▼. Ferreira, 13 How. 40, 14 L.
ed.42
618
w. Fidelity Trust Co. 222 U. 8.
liS^ 56 L. ed. 137, 82 Sup.
Ct. Rep. 50 323,
712
w. First Nat. Bank, 234 U. 8.
245, 58 L. ed. 1208, 34 Sup.
Gl Rep. 846
234
T. Firtt Nat. Bank, 250 Fed.
200, Ann. Cas. 1918E, 36
038
es tiL diampion LumJber Go. v.
Fiiher, 227 U. S. 445, 57
L. ed. 501, 33 Qv^ Ct. Rep.
910
423
T. Freeman, 8 Bom, 556, 11 L.
ed. 7«4
513
V. Qeoige, 228 U. 8. 14, 57 L.
ad. 712, 33 8up. Ct Rep.
412
285
w. Qermaine, 00 U. a 508, 25
L. ed. 482
604
T. Qilmon, 7 WalL 401, 10 I*.
ed. 282
024
«. Qirault, 11 How. 22, 13 L. ed.
587
618
«4 li. ed.
United States v. Goioez, 23 How. 326,
16 L. ed. o62 851, 862
T. Great Falla Mfg. Co. 112 U.
S. 645, 28 U ed. 846, 5 8i^.
Ct. Rept. 306 937, 038
T. Grimaud, 220 U. a 506, 55
L. ed. 563, 31 Sup. Ct. Rep.
480 : 302
▼. Grizzard, 210 U. S. 180, 55
L. ed. 165, 31 L.R.A.(N.S.)
1135, 31 Sup. a. Rep. 162 723
T. Hall, 248 Fed. 150 368
y. Hall, 98 U. S. 343, 25 L. ed.
180 846, 848, 849
V. Hamburg - Aniorikaniscbe
Packet f ah rt • Actien Gesell-
fichaft, 230 IT. S. 466, 60 L.
ed. 387, 36 Sup. Ct. Rep.
212 809
T. Hartwell, 6 WaU. 385, 18 L.
ed. 830 612, 605
T. Hendee, 124 U. 6. 309, 31 L.
ed. 465, 8 Sup. Ct. Rep.^ 507 605
V. Higbsmith, 168 0. C. A. 441,
2^7 Fed. 401 038
T. Hill, 120 U. S. 169, 30 L. ed.
627, 7 Sup. Ct. Rep. 510
400,860, 861
T. Hill, 123 U. 8. 681, 31 L. ed.
275, 8 Sup. Ct. Rep. 808 861
T. HUl, 248 U. S. 420, 63 L^ ed.
337, 80 Sup. Ct. Rep. 143 666
T. Hirtcb, 254 Fed. 100 625
ex rel. Riverside Oil Go. ▼.
Hitohcock, 100 U. S. 316,
47 L. ed. 1074, 23 Sup. Ct.
Rep. 608 ....• 662
T. Honolulu Plantation Cow 68
C. C. A. 270, 122 Fed. 581 038
T. Joint Traffic Asso. 171 U. 8.
505, 43 L. ed. 259, 10 Sup.
Ct. Rep. 25 109
▼. Jones, 109 U. 8. 513, 27 L.
ed. 1015, 3 Sup. Ct. Rep.
846 137
▼. Jones, 236 U. 8. 106, 50 L.
ed. 488, 35 Sup. Ct. Rep.
261, Ann. Caa. lOlOA, 316 323
T. Lacker, 134 U. S. 624, 33 L.
ed. 1080, 10 Sup. Ct. Rep.
625 513
T. Larkin, 208 U. S. 333, 52 L.
ed. 517, 28 Sup. Ct. Rep.
417 404
T. Lehigh Valley R. Co. 220 U.
8. 257, 55 U ed. 458, 31
Sup. Ct. Rep. 387 773, 781
«x rel. Drury r. Lewis, 200 U.
• 8. 1, 50 L. ed. 348, 26 Sup.
Ot. Rep. 220 626
^. Lynah, 188 U. a 445, 47 L.
ed. 530, 23 Sup. Ct. Rep.
340 037, 038
.T. McCuUagh. 221 Fed. 288 .. 647
tl
CASES CITED.
United States v. McMMllen, 222 U. S.
460, 50 L. ed. 269, 32 Sup.
Ct. Rep. 128 :. 589
ex rel. Parish v. Mac Veagh, 214
U. S. 124, 55 L. ed. 936,
29 Sup. Ct. Hep. 566 670
T. Mason, 218 U. S. 517, 54 L.
ed. 1133, 31 Sup. Ct. Rep.
28 i . 860
T. Mattock, 2 Sawy. 148, Fed.
Cas. No. 15,744 ^12
T. Mesa, 228 U. S. 533. 57 L.
ed. 953, 33 Sup. Ct. Rep.
597 665
T. Mille Lac Band of Chippewa
Indians, 229 U. S. 498, 57
L. ed. 1299, 33 Sup. Ct.
Rep. 811 510, 511
T. Minneapolis, St. P. & S. Ste.
M. R. Co. 235 Fed. 951 . . 927
▼. Minor, 114 U. S. 233, 29 L.
ed. 110, 5 Sup. Ct. Rep. 836 103
T. Moore, 95 U. S. 760, 24 L.
ed. 688 695
T. Morehead, 243 U. S. 607, 61
L. ed. 926, 37 Sup. Ct. Rep.
458 302
▼. Mouat, 124 U. S. 303, 31 L. *
ed. 463, 8 Sup. Ct. Rep.
505 695, 696
▼. National Exch. Bank, 214 U.
8. 802, 53 L. ed. 1006, 29
Sup. Ct. Rep. 666, 16 An*.
Cas. 1184 679
▼. New York, 160 U. 8. 598, 40
' L. ed. 551, 16 Sup. Ct.
Rep. 402 939
▼. Notth Carolina, 136 F. S.
211, 34 L. ed. 336, 10 Sup.
Ct. Rep. 920 .'. 938
▼• Ohio Oil Co. See Pipe, Line
Cases.
▼. Old Settlers, 148 U. S. 427,
37 L. ed. 509, 13 Sup. Ct.
Rep. 650 906
▼. Oppenheinaer, 242 U. 8. 85,
61 L. ed. 161, 3 A.L.R. 516,
37 Slip, Ct. Rep, 68 ..... 341
▼. Pacheco, 20 How. 26i, 15
L. ed. 820 862
y. Pacific R. Co. 120 V. S. 227,
30 L. ed. 634, 7 Sup. Ct.
Rep. 490 199, 276
V. Paul, 6 Pet. 141, 8 L. ed. 348 842
V. Perkins, 116 U. S. 483, 29
L. ed. 700, 6 Sup. Ct. Rep.
449 ;.... 695
T. Petkos, 131. C. C. A. 274, 214
Fed. 978 ...^ .^ 618
V. Philadelphia a^ R. R. Co. 123
• U. S. 113, 31 L. ed. 138, »
8 Sup. Ct. R^. 77 926'
United States v. Pliilbrick, 120 U. S.
52, 30 L. ed. 669, 7 Sup. Ct
Rep. 418 499,
▼. Press Pub. Co. 21» U. 8. -l,
55 L. ed. 65, 31 Sup. Ct.
Rep. 212, 21 Ann. Cas. 942
T. Rabinowich, 238 U. 8. 78, 59
L. ed. 1211, 36 Bop. Ct.
x\ep. ooc •••....'....'...i.
y. Rathbone, 2 Paine, 57% Fed.
Cas. Ko. 16,121 928,
T. Reading Co. 183 Fed. 427
v. Reading Co. 226 Fed. 229 . .
718,
T. Reading Co. 226 U. a 324,
57 L. ed. 243, 33 Siipw Ot
Rep. 90 . . . . ^ . . . 356, 773,
V. Realty Co. 168 U. a 487, 41
L. ed. 215, 16 Sup. Ct. Rep.
1120
T. Rockefeller, 260 Fed. 346 . .
V. Rogers, 168 0. C A. 437, ^§7
Fed. 397 i..,
T. Rose, 2 Crandi, a (X 561,
Fed. Cas. No. 16,193
▼. Rowell, 243 U. a 464, 91 L.
ed. 848, 37 Sup. Ct. Rep.
425
v. Russell, as WalL 623, 80 L.
ed. 474
V. Sargent, 89 C. C. A. 81, 162
Fed. 81 936,
T. Schlierhols, 137 Fed. t616 . .
V. Schurz, 102 U. a 378, 26
L. ed. 167 662,
T. Sehutte, 252 Fed. 212 . . . r.
V. Shauver, 214 Fed. 154
V. Sherman, 98 U. 8. 566, 25 L.
ed. 235
▼. Smith, 124 U. S. 626, 31 L.
ed. 534, 8 Sup. Ct. ^. 595
▼. Smull, 236 U. 8. 406» 60 L.
ed. 641, 36 Sup. Ct. Rep.
: 349
▼. Spearin, 246 U. 8. 132, 63 L.
ed. 166, 39 Sup. Ct. Rep. 69
▼, Standard Bnewery, 251 U. a
210, 64 L. ed. 229, 40 Buf .
Ot. Rep. 189 277,
T. Texae, 162 U. a 1, 40 L. li.
867, 16 Sup. Ct. Re^. 726
▼. Thompson, 258 Fed* 257
T. Thompson, 98 U. S. 466, 26
L. ed. 194 ;./.
V. Union P. R. Co. 226 U/-fi. 61,
57 L. ed. 124, 33. Sup.' Ot.
Rep. 63 7li> 779,
T. United Verde Copper C^. 196
U. a 207, 46 L. ed^ 449, 26
Sup. Ct. Rep. 222 . .'
¥« Utah, N. a C. Stage Co. 169
U. S. 424, 50 L. ed. 265, 26
Sup. Ct.^ Rep. 69 «.
V. Van Leuven, 62 Fed. 52
600
843
646
926
773
782
776
536
647
938
323
1006
199
939
695
927
362
647
938
695
302
738
946
1017
647
489
780
236
738
845
CASKS
UBitetfetates v. Verdii^r. 104 U. S. 213,
41 L. ed. 407, 17 8up. Ct.
Rep. 42 938
▼. Welch* 217 U. S. 333, 64
L. ed. 787, 28 UR.A.(N.S;)
• . 385, 30 Sup. Ct. Repw 527,
19 Ann. Gas. 680 723
vse of Brading-Marshal Lumber
Co. V. Wells, 203 Fc?d. 146
923, 925
▼. WidLersham, 201 XJ. S. 390,
fie L. ed. 798, 26 Sup. Ct.
Rep. 469 694
▼. Wong Kim Ark, 169 U. S.
649, 42 L. ed. 890, 18 Sup.
Ct. Rep. 456 1012
▼. Wonson. 1 Gall. 6, Fed. Cas.
No. 16.750 923
T. Woo Jan, 245 U. S. 652, 62
L. ed. 466, 38 Sup. Ct Rep.
2Q7 .... 798
UBitea States Fidelity k G. Co. V.
Bray, ^5 U. 8. 205, 56 L.
ed. 1055, 32 Sup. Ct. Rep.
620 826
▼. Xtfntttcky, 231 U. S. 894, 58
L. ed. 283, 34 Sup. Ct Rep.
• ' !l«2 653
United States FiMity. Trust Co. 222
U. 8. 158, 66 L. ed. 137, 32
' * Sup. Ct. Rep. 69 713
United States Gbio Oo. v. Oak Creek,
247 U. 8. 321, 62 L. ed.
' ' 1185, 88 Sup. Ct Rep. 499,
Ami. Cas. 1918E, 748..459,
896, 898
United States Leather Co. r. South-
em R. 0:>.'S1 Inters. Com.
Rep. 323 * 997
United Snrety Co. v. Aineriean Fruit
Product Go. ^8 U. S. 140,
69 I*, ed. 1238, 35 Snp. Ct.
I^p,. 81(8 40r^.4Q^, 720
Unlike Qelpdce y. Dubuque, 1 Wall.
175, 17 L. ed. 520 480
Upton ▼* Santa Rita AUn. ( o. 14 If.
M. 96, 89 Pac. 276 ...... 582
yi^dalba R. Co. t. Indiana, 207. U. S.
359, 52 L. ed. 246, 28 Sup.
Ct Rep. 130 758
Van ^ykfin t. Erie R. Co. 117 F^d.
712 132
Vanghan v. Northrup, 15 Pet. 1, 6, 10
lu ed. 639 670
Vead^ Bank v. Fenno, 8 \VaIl.>33, io
L. ed. 482 893
Vcrmfjule v. Reilly„ 196 IVd. 226 ^. 925
Vicksl^uig V. Vicksburg Water-works
Co. 206 U. S. 496, 51 L. ed.
1155, 27 Sup. Ct Rep. 762 127
•4 I/, ed.
CITKD.
Vilas V. Manila, 220 U. S. 345, 66 L.
ed. 491, 31 Sup. Ct Rep.
416 127
Von Bank v. United States, 165 C. C.
A. 267, 253 Fed. 641 .... 368
Von Recklinghausen v. Dempster, 34
App. D. C. 474 *. 496
W.
Wad ley Southern R. Co. t. Georgia,
235 U. S. 651, 69 L. ed.
406, 411 P.U.R.1915A, 106,
35 Sup. Ct Rep. 214 ..
146, 699, 606, 914, 916
Wagner, Ex parte, 249 U. a 466, 63.
L. ed. 709, 39 Sup. Ct Rep.
817 826
T. Covington, 251 U. 8. 96, 64
L. ed. 157, 40 Sup. Ct R^
93 669
▼. Lesser, 289 U. S. 207, 60 L.
ed. 230, 36 Sup. Ct. Rep.
66 /... 9»
T. Railway Co. 38 Okio 8t 32
629, 630
Waite ▼. Macy, 246 U. S. 606, 62 L.
ed. 892, 38 Sup. Ct Rep.
395 235
Waldron ▼. Waldron, 156 U. S. 361,
30 L. ed. 453, 15 Sup. Ct.
Rep. 383 833
Wales V, Whitney, 114 U. S. 564, 29
L. ed. 277, 5 Sup. Ct. Rep.
1050 943
Walker v, New Mexico & S. P. R. Co.
l65 U. S. 593, 41 L. ed. 837, —
17 Sup. Ct Rep. 421, 1 Am.
Neg. Rep. 768 924
T. Sauvinet, 92 U. S. 90, 23 L.
ed. 678 136
Wall ▼. Rederiaktiebolaget Luggude,
[1915] 3 K. B. 66, [1916]
W. N. 248, 84 L. J. K, B.
N. S. 1663, 31 Times L. R.
478 .....^. 69a
Walling V. Michigan, 116 U. S. 446, 29
L. ed. 601, 6 Sup. Ct. Rep.
454 167
Walsh Bros,, Be, 163 Fed. 352 901
Ward V. Maryland, 12 Wall. 418, 20
L, ed. 449 457, 468, 469
Warden v. Union P. R. Co. 103 U. S.
651, 26 L. ed. 509, 7 Mor.
Min. Rep. 144 165
Ware v. Hylton, 3 Dall. 199, 1 li. ed.
568 648
y. Mobile Co. ^09 U. S. 405, 52 ^
L. ed. 8£^5, 28 Sup. Ct. Rep.
526, 14j Anp. Cas. 1031 . . 653
Warner V. Peuoyer, 44 L.R.A. 7tfl, 33
C. C. A. 222. 6l U. S. App.
372, 91 Fed. 587 395
63
GASES CITED.
Washburn y. Green. See Ricuabosox
y, Gbsen.
Wmshington ex rel. Oregon R. A Nay.
Ca. y. Fairchild, 224 U. S.
6ia, 56 L. ed. 863, 32 Sup.
Ct. Rep. 635
¥. Oregon, 211 U* S. 127, 63 L.
ed. 118, 29 Sup. Ct. Rep.
47
y. Oregon, 214 U. S. 205, 53 L.
ed. 969, 29 Sup. Ct. Rep.
631 668,
«E rel. Grays Harbor Log-
ging Co. V, Superior Ct.
Sm Geays Habbob Log-
GiNo Co. y. Coats Fcmkdnet
LoGGiiro Co.
Wsahington Market y. Hoffman, 101
U. S. 112, 25 U ed. 782
Washington Securities Co. y. United
States, 234 U. S. 76, 68 L.
«d. 1220, 34 Sup. Ct. Rep.
726
Wttkey ▼. Hammer, 223 U. S. 86, 66
L. eA. 360, 32 Sup. Ct. Rep.
187
WaterflUiB y. Mackenzie, 138 U. S. 262,
34 L. ed. 923, 11 Sup. Ct.
Rep. 334
Waters-Pierce Oil Co. y. Texas, 212 U.
6. 86, 53 L. ed. 417, 29 Sup.
Ct. Rep. 220 141,
Watts y. Camors, 115 U. 6. 353, 29
L. ed. 406, 6 Sup. Ct Rep.
91
Watt^ W. & Co. y. Mitsui k Co.
[1917] A, C. 227, 8ft L. J.
K. B. N. S. 363, 33 Law
Times L. R. 262, 2B Com.
Cas. 242, 61 Sol. Jo. 382,
[1916] 2 K. B. 826, 86 L.
J. K. B. N. S. 1721. 115
L. T. N. S. 248, 32 Times
L. R. 622
▼. Unione Austriaca di Navi-
gazione, 248 U. S. 9, 63 L.
ed. 100, 3 A.L.R. 323, 39
Sup. Ct. Rep. 1
Wayne y. United States, 20 Ct. CI. 274
Webb y. American Asphaltum Min. Co.
84 C. C. A. 651, 157 Fed.
203
Weber y. Freed, 239 U. S. 325, 60 L.
ed. 308, 36 Sup. Ct. Rep.
131, Ann. Cas. 1916C, 317
Webster y. Luther, 163 U. S. 331, 41
L. ed. 179, 16 Sup. Ct. Rep.
963
Wedding y. Meyler, 192 U. S. 678, 48
L. ed. 570, 66 LJt.A. 833,
24 Sup. Ct. Rep. 322.. 983,
•4
918
663
564
234
103
577
856
918
590
690
289
8t)4
577
202
237
986
Weeks y. United States, L.R^191iB^
661, 132 a C. A. 436, 216
Fed. 292, Ann. Gas. 19170,
524 342
T. United StAtea, 232 U. S. 383,
58 L. ed. 65S, LJtJt.l915B,
834, 34 Sup. Ct. Rep. 341,
Ann. Cas. 1916C, 1117 ..
Ill, 821
Weems S. B. Co. y. People's S. B. Co.
214 U. S. 845, 53 L. ed.
1024» 29 Sup. Ct. Rc|ft. 661,
16 Ann. Cas. 1222 242
Wells y. Roper, 246 U. S; 335, 6^ h.
ed. 755, 38 Sup. Ct. B^
317 670
Wells, F. & Co. y. Neyada, 248 U. 6.
166, 63 L. ed. 100, 89 Sup.
Ct. Rep. 62 ,. 187
Welton y. Missouri, 91 U. S. 275, 23
L. ed. 347 167, 466
West y. Kansas Natural Gas Oo. 221
U. 8. 229, 56 L. ed. 716, 36
L.R.A.(N.&) UM, 81 Sup.
Ct. Rep. 664 441
Westbrook, Ex parte, 260 Fed. 636 . . 666
West End Street R. Co. y. Malle^, 158
C. C. A. 681, 246 Fed. 625 927
Western & A« R. C*..y. Smith, 144 6a.
737» 87 S. E. lOae, 22 Ga.
App. 437, 06 8. E. 280 484
Western Oil Ref. Co. y. Lipsoomb, 944
U. S. 346, 61 L. ed. 1181,
37 Sup. iC;t. Rep. €23 ... . 168
Western U. Teleg. Co. y. Bank of Spen-
cer, 53 Okla. 398, 156 Pao.
1175 181
▼. BiUsoly, 116 Va. 562, 82 a
E. 91 121
▼. Brown, 284 U. & 542, 56 Ii«
ed. 1457, M Snp. Ot Rep.
f65, 5 N. C. C. A. 1024 . . 120
▼• Croyo, 220 U. 8. 364, 55 L.
ed. 498, 31 Sup. Ct Itep.
399 120
y, Foster, 224 Mass. 366, P.U.R.
1916F, 176, 113 N. E. 192 121
y. Foster, 247 U. S. 106, 62 L.
ed. 1006, 1 A.L.R. 1278,
P.U.R.1918D. 865, 38 Sl^^.
Ct. Rep. 438 832, 441
y. Hawkins, 14 Ala. App. 295,
70 So. 12 121
y. Kansas, 216 U. S. 1, 64 L.
^. 365, 30 Sup. Ct. Rep.
190 332
y. Lee, 174 Ky. 210, 192 S. W.
70, Ann. Cas. 1918C, 1026,
16 N. C. C. A. 1 121
y. Richmond, 224 U. S. 160, 56
L. ed. 710, 32 Sup. Ct. Rep.
449 724
CASK.S CITED.
WMtern U, Teleg. Co. v. Soliade, 137
Tenn. 214, 3112 S. W. 924
T. Showers, 112 Miss. 411, 73
So. 876 119,
W. O. Mason, The, 74 C. C. A. 83,
142 Fed. 913 ,.
WheeUr ▼. Taft, — C. C. A. — , 261
FedL 978
Wkeliit T. St. Louis, 180 U. S. 379,
41 li. eel 683, 21 Sup. Ci.
Rep. 402
WIdpple ▼. Cumberland Cotton Mfg.
Co. 3 Story, 84, Fed. Cas.
No. 17,616 926,
WkiU ▼. Schloerb, 178 U. S. 542, 44
L. ad. 1183, 20 Sup. a.
Rep. 1007
WkiUleld T. Hanges, 138 C. C. A. 199,
M Fed. 745
Wldta^ T. Dick, 202 U. S. 132, 60 L.
•d. 963, 20 Sup. Ct. Rep.
684
WUdaalitia'a Case, 120 U. a 1, 30 L.
ed. 666, 7 Sup. Ct. Rep.
383
WUlard ▼. Wood, 164 U. S. 602, 41
L. ed. 631, 17 Sup. Ct.
Rep. 176
WiUoox T. Consolidated Gas Co. 212
U. B. 19, 63 L. ed. 382, 48
L.RJk.(N.S;) 1134, 29 Sup.
Gi. Rap. 192, 16 Ann. Cas.
1084 140,
William Oramp & Sons Ship & Engine
Bldf. Go. ▼• InWnational
Oortia Marine Turbine Co.
t46 U. S. n, M L. ed. 660,
18 Sup. Ci. Rep. 271.. 864;
William S. Pedc ft Co. t. Lowe, 24T
U. & 165, 62 L. ed. 1049.
88 Sup. Ct Rep. 482 ....
469, 528» a96»
Wttliama ▼. Brufl^, 102 U. S. 248^ 26
I#.fd, 135
▼. Fears, 179 U. S. 270, 46
L. ed. 18$, 21 Sup. Ct. Rep.
128
f. Hamrd, 140 U, S. 629, 36 L.
ed. 550, 11 Sup. Ct. Rep.
$86, 146 Mass. 645, 16 N.
E, 437
f. Morgan, 111 U. S. 684, 28
L. ed. 659, 4 Sup. Ct. Rep.
^•g •
▼. Pwrker, 188 U. S. 491, 47 L.
ad. 659, 23 Sup. Ct. Rep.
440 .. . , ,
▼. Vreeland* 260 U. S. 295. 6a
L. ed. 989, 3 A.L.R. 1038,
39 Sup. Ct. Rep. 438 ....
WUa<m ▼. Kew, 243 U. a 332, 61 L.
ed. 75&, L.ltA.1917E, 938,
87 Sup. Ct. Rep. 298, Ann.
Cas. 1918A, 1024
•4 L. ed.
121
120
132
927
887
927
900
618
816
648
247
600
939
893
313
663
869
619
679
Winona & St. P. Land Co. >. Minne-
aoU, 169 U. S. 626, 40 L.
ed. 247, 16 Sup. Ct. Rep.
83 187
Winslow V. Wilcox. See The Os-
BOBNE.
Wisconsin v. Duluth, 96 U. S. 379,
24 L. ed. 668 661
V. Pelican Ins. Co. 127 U. S.
265, 32 L. ed. 239, 8 Sup.
Ct. Rep. 1370 640
Wisconsin C. R. Co. v. United States,
164 U. S. 190, 41 L. ed. 399,
17 Sup. Ct. Rep. 45 489
Witherspoon v. Duncan, 4 Wall. 210,
18 L. ed. 339 663
Withnall t. Ruacking Constr. Co. 249
U. 6. 68, 63 L. ed. 479, 39
Sup. Ct. Rep. 200 .. 220, 430
WoU T. United States, — C. C. A. — ,
259 Fed. 388 368
Wollensak v. Reiher, 116 U. S. 96, 29
L. ed. 360, 6 Sap. Ct Rep.
1137 405
Wolverton t. Nichols, 119 U. & 485,
30 L. ed. 156, 10 Sup. Ct.
Rep. 889, 16 Mor. Mia.
Rep. 218 577
Wood ▼. A. Wilbert's Sons Shingle Sl
Lnmber Co. 226 U. S. 384,
57 L. ed. 264, 33 Sup. Ct.
Rep. 126 901
WoodrufT T. Parham, 8 Wall. 123, 19
L. ed. 382 167
Woodworth t. Chesbrough, 244 U. S.
72, 61 L. ed. 1000, 37 Sap.
Ct. Rep. 679 471
Workman v. New York, 170 U. B. 662,
46 L. ed. 314, 21 Sup. Ct.
Rep. 212 sat
Worth Bros. Co. v. Lewellyn, 251 U.
S. 607, 64 L. ed. 377, 40
Sup. Ct. Rep. 282 ...... 382
Worthington v. Robbins, 139 U. S. 337,
36 L. ed. 181, 11 Sup. Ct.
Rep. 681 883
Wright-Blodgett Co. v. United States,
236 U. S. 397, 50 L. ed. 637,
36 Sup. Ct. Rep. 339 .. 238
Wyman ▼. Halatead, 100 U. 8. 654,
27 L. ed. 1068^ 3 Sup. a.
Rep. 417 670
▼. United Stales. See Wthan
V. Halstbad.
t V. Whicher, 179 Mass. 276, 60
K. E. 612 923
Y.
862 Yard Case, 38 Land Pec. 59
5
664
•6
CASES CITED.
Tates T. Jones -Xat. Bank, 200 U. S.
158, 51 h. fd. 1002, 27 Sup.
Ct. Rep. 638 147, 851
Toang, Ex parte, 209 U. S. 123, 52
L. ed. 714, 13 L.RJi..(N.S.)
932, 28 Sup. Ct. Rep. 441,
14 Ann. Cas. 764 . . 140, 598, 599
Z.
Zakonaite ▼. Wolf, 226 U. S. 272, 57
L. ed. 218, 33 Sup. Ct. Rep.
31 , lOMJ
Zeiger v. Dowdj, 13 Ariz. 331, 114 Pac.
565 .^
STATUTES, CONSTITUTIONS, PROCLAMATIONS, AND TREATIES
CONSTRUED, ETC.
Colombia.
JfudioM Code.
Art. 1601. Concurrent cml and crim-
inal actions 682
■ *
England.
Treaties.
1J83, 8ept. 3. Treaty of pea<?e with
United States 606
1842, August 9. Treaty with United
States 616
1901, April 22. Treaty with United
States 616
1916, Dec 8. Treaty with Unitad
States ; migratory
birds 641
Germany.
CivU Code.
f 477. Limitation of actions 286
Omaha Nation.
Yreatiai with United States, see post,
Panama.
Treaties.
1904, Feb. 26. Treaty with United
States •
Poliiical Code.
Arts. 488, 489. Speed of railway
trains
Civil Code.
Art. 2841. Indemnity for damage
resulting from neg-
ligence
Art. 2347. Indemnity for damage
for acts of depend-
ents
H
76.
682
582
Laws,
* ■
1896, Ord. No. 87. Speed of railway
trains 582
:..'•...■
Pottawatomie Nation.
Treaties,
Treaties with United States, tee j»q^, 7.5»
Spain.
Treaties. .
• t
1819, Feb. 22. Treaty with United
States ...-. •!#
1898, Dec. 10. Treaty of peace with
United States 305
art. 11. Rights of Spanish^ resi-
dents in Portd Rico 944
■ ■ • ,
United States.
0^nsUtution„ „
Art. 1, § 2. Apportionment jof . dl-
,rect taxes ....521, 887
Art. 1, § 2. Qualifications of elec-
, tors of congressmen 871
Art. 1, § 3. Election of senators... 871
Art. 1, § 4. Elections ...'..:..'.. .'. ' 871
Art. 1, 8 7. Approval and veto ... 871
Art. 1, § ^. Commerce clause . .*lrt, 157
260, 434, 445, 631, 637
649. 654; 782. 834
Art. 1, § 8, cl. 7. Postoffices and
post roads 260
Art. 1, § 8, cl. 17. Exclusive feder-
al jurisdiction over
places ceded aifd
purchased . . , 8W
Art. 1, § 8, cl.^ 18. Im]>yed ^nil nec-
essary powers if
Congress ..W-f, 260,
*'^ 641, 834
Art. 1, 5 9. Apportionment of di-
rect taxes ...1.521, 887
582 Art. 1, § 10. Impairing contract ob-
ligations ..128, 168, fe^
I 243, 810, 460, 476, 626
582* 684
I I
J^TATUTICS, ETC., CCWCSTRUED.
Art. 1>, I 19. FowerB ol Congress . . 046
-^rt. %.^% ^, cl a; Salary of Presi-
f I ^ > dent 887
Art. 2, J &, I ireaty making power 641
4^ 2, %.Z' PoinrerB of president .. 692
Art. a. Salaries of Federal judges 867
Art. 2, S ,2, cU 2. Jurisdiction of Su-
. prerae Court ..280, 834
Art. 4. . .Guaranty to states against .
V domestic violence . . 871
Art. 4, ;§ ;i. full faith and credit . . 638
A^. 4, § 2. Privileges and immuni-
ties 445, 460, W3
Art. 4i § 8. Creation of new states
out of XAd ones 871
Act. 5. Amendments 871,877, 946
Art. 6. . Legislative oath or affirma*
, J tion 871
Art. 6(4 Supremacy of Federal treaties 641
Art. S, cl« i. Supremacy of Federal
, , Constitution and
laws 834, 946
Ist Amesd^. Freedom of speech and
press 360
5th Amend. . Former jeopardy ...••• 103
5th Anend. Crimination ol sell • • . 108
5th Amend. Due process of law .. 260,
607, 761, 843, 849, 862
863, 1010
5th AMend.' liking private property
for public use 194, 935
7tk Amend. Right to jury trial ... 919
10th Amend, Reserved x>owers of
states .... 194, 260, 641
11th Amend. Suits against)" stfttes ...871
13th Amand. Powers of Congress . . 946
14th AvMnd. Privileges and immu-
nities 601, 684
14th .4ii^endi Due process of law .... 112
121, 133, 135, 139, 205
213, 216, 221, 289, 243
260, 310, 323, 384, 396
• t . 421, 424, 427, 445, 460
476, 481, 596, 600, G28
684, 739, 761, 782, 787
855, 878, 883, 908, 931
989
14th Am^nd. Equal protection of the
laws 112, 215, 396
421, 427, 445, 460, 476
481, 596, 600, 601, 931
14th Amend. Searches and seizures 319
14th Amend. Power*) of Congress . . 946
15th Ameflid. Powers of Congress . . 946
16th Amend. Income tax 621, 887
17th Amend. Election of senators by
popular vote 871
18th Amend. Intoxicating liquors;
prohibiting manu-
facture and sale 194
260. 280, 946
19th Amfad. Extending right of suf-
frage to women ... 877
•4 li. ed.
Statutes.
1789, Sept 24 (1 SUt. at L. 73, chap.
20). Judiciary. §
9. Exclusive Fed-
eral jurisdiction . . 834
1790, July 16 (1 SUt. at L.' 130,
chap. 28). Seat of
government: United
States 692
1796, May 19 (1 Stat, at L. 469,
chap. 30). Com-
merce with Indians.
§ 2. Grazing on
Indian lands 507
1800, April 4 (2 Stat, at L. 19, chap.
19). Bankrupt act 247
1802, March 30 (2 Stat, at L. 139,
chap. 18). R^^- •
lating trade with
Indians. 507
1802, May 1 (2 Stat, at L. 176, chap.
141 ) . Government
of Washington,
D. C. 692
1816, April 29 (3 Stat at L. 324,
• chap. 160). Com-'
missioner of public
buildings 692
1834, June 30 (4 Stat at L. 729,
chap. 161); Regu-
lation of trade with
Indians. § 17. In-
dian depredations . . 318
1841, Augiut 19 (6 Stat at L. 440, ' •
chap. 9). Bankrupt
act 247
1846, July 29 <0 Stat, at L. 41, chi^>.
66). Assigament of *
claims 843
1S46, August 6 (9 Stat, at L. 56,
chap. 89). Wbcon-
sin enabling act . . . 658
1848, May 29 (9 Stat, at L. 233, chap.
50 ) . • Admission of
Wisconsin into the '
Union 658
lg48, Angust 14 (9 Stat, at L. 323,
chap. 177). Gov-
ernment of Oregon
territory 669
1863, Feb. 9 (10 Stat, at L. 155,
chap. 59). Rail-
road land grant . . 226
1863, Febi 26 (10 Stat at L. 161,
chap. 80). Costs .. 919
1853, Feb. 26 (10 Stat at L. 170,
chap. 81). § 1. As-
signment of claims 843
1856, June 3 (11 8tat at L. 21, chap.
44). Railroad land
grant § 5. Car-
rying mails 484
• f
n
STATUTES, ETC., CONSTRUED.
1857, Feb. 26 (11 Stat, at L. 166,
chap. 60 ) . Min-
nesota enaUing act 5d8
1868, May 11 <11 Stat, at L. 285,
diap. 81 ) . Admis-
sion of Minnesota
into the Union .... 658
1861, August 6 (12 Stat, at L. 292,
chap. 45). Tariff
act 486
§ 40. Income tax 445
1862, Julj 1 ( 12 Stat, at L. 472, chap.
110). Internal reve-
* nue. § 86. Salaries
of Federal officers 887
1862, Julj 1 ( 12 Stat, at L. 489, ohap.
120). Public lands;
railway land grant 1002
1863, Feb. 25 (12 Stat, at L. 665,
chap. 58). National
banks. § 55. Prop-
er district for suit 600
1863, March 8 (12 Stat at L. 736,
chap. 75). War en-
listment act. § 30.
Courts martial 621
1864, Jume 3 (13 SUt. at L. 99, *
chap. 106). Na-
tional banks. § 8.
Powers ...» 171
I 30. Interest rate;
usury 171
§ 57. Proper district for
suit 690
1864, Jvne 30 (13 Stat, at L^ 223,
chap. 173). Inter-
nal revalue. § 116.
Income tax 446
I 117. Taxation of stock-
holder's undivided
profits 6tl
1864, July 2 (18 SUt. at L. 366,
chap. 216). Public
ImidB; railway land
grant 1002
1866, July 3 (14 Stat, at L. 70, chap.
150). Public lands;
railway land grant 1002
1866, July 13 (14 Stat, at L. 08, chap.
184). § 0. Income
tax 445
1866, July 27 (14 Stat, at L. 202,
chap. 278). Rail-
road land grant % . 97
1866, July 28 (14 Stat at L. 338,
chap. 300). Rail-
road land grant . . . 225
1867, March 2 (14 Stat, at L. 466,
chap. 167 ) . Ap-
propriations. § 2.
Chief of engineers . . 602
1867, Mardi 2, (14 SUt at L. 471,
chap. 160). § 13.
Income Ux 445
4tl
406
446
200
20»
1 1867, March 2 (14 SUt at L. $17,
chap. 176). Blmk-
rupt act S§ 11, 10.
Provable debts; mi*
liquidated olaimt .. 147
1870, July 8 ( 16 Stat, at L. 103, chap.
226). § 7. LbsiU-
tion of fees 843
1870, July 8 (16 SUt. at L. SOt, ^hap.
230). PatenU. |
36. Renenrcl of ap-
plications
18170, Jnly 14 (16 SUt at L. 266,
chap. ^266). Tarilt
flUst
§ 6. Income tax
1872, June 8 (17 SUt at L. 283, Chap.
335). Post<^ce De-
partment. 91 21^
212. Compensation
for carrying the
mails
§ 214. Carrying mail «li
railways receiving
government aid . . .
1873, March 3 (17 SUt at L. tm,
chap. 231). Poit^
office; railway mail
service 29^
1873, March 3 (17 Stat at L. (M,
chap. 234). § 17.
limitation of fees . . $48
§S 31, 32. LinitatloB of
fees 843
1876, March 8 (18 SUt tt L. S40.
chap. 128). ^Mlof-
flce approprkilOM;
railway mail service 20$
1876, July 12 (19 SUt at L. 78, chap;
179). Poetoffice ap-
propriations. I 13.
TransporUtioB of
mails by land grant
aided railroad .... 226
200, 484
1878, June 17 (20 Stat, at L. 140,
chap. 260). Post-
office; railway mail
service
1870, Jan. 26 (20 SUt at L. 266,
chap. 23). I ^
LimiUtion of fees
1879, Feb. 3 (20 SUt. at L. 280,
chap. 42). Bmbei-
clement of publie
moneys
1879, March 3 (20 SUt at L. 377,
chap. 182). § 2.
LimiUtion of fees
1880, June 16 (21 SUt at L. 287,
chap. 244). PubUc
lands ; repayment
of excess paid .... 236
2M
U9
867
843
STATCTES, ETC., (X)XSTRUXD.
ia81» March 3 (21 SUt. at L. 505,
chap. 140). Klines;
adverse suit
1882, May « (22 SUt. at L. 58, chap.
126). Chinese ex-
cluflian
188?, J«Mi 30 (22 Stat, at L. 120,
oliap. 254 ) . Army ap-
propriations; amy
transportation ....
1881. Ma^ck 8 {tSt Stat; at L. 485,
chap. 116). Juris-
dktioB of court of
claims; Bowman act
1883, Ifaroh 3 (22 Stat at L. 448,
ohap. 121). Tariff
act
1884» Ji^ 17 (23 SUt. at L. 24,
ohap. 53). Govern-
meat of Alaska. §
8. Extending min-
ing claim laws to
Alaska
1884, July 4 '(23 SUt. at L. 98, cha^f.
181). § 7. I/imiU-
tton of fees
1884, July 8 (23 SUt at L. 115, chap.
220). COiiiieso «x-
clusion . . <
1887, Feb. 4 (24 SUt at L. 370,
ohap. 104). InUr-
state commerce. §
8. Carrier's liabil-
ity
S 0. Remedies .•••••••
I 13. Proceedings before
Commission
I 16. Enforcemett of
Cotnmlssion's award
I 16. Foldings and or-
ders ol PommissioB
i 17. Oonduet of pro-
ceedings
1887, March 3 (24 SUt at L. 505,
chap. 850). Claims
against . United
SUtes; Tucker act
1888, August 1 (25 Stat, at L. 357,
chap. 728). § 1.
Condemnation pro-
ceedings
1888, Sept. 13 (25 SUt at L. 476,
chap. 1015). Chi-
nese exclusion
1888, Ifirch 2 (25 SUt. at L. 861,
ohap. 382). Regu-
lation of commerce
1888, Jnne 27 (26 SUt at L. 182,
chap. 634). § 4.
LimiUtion of fees
1880, July 2 (26 SUt at L. 209,
chap^ 647)* Sher-
man anti-trust act
471,
84 li. ed.
567
787
225
843
496
843
797
810
810
810
810
019
810
843
935
797
810
843
343
993
1890, July 2 — continued.
§ 1. CTombination • • . • •
§ 2. Monopoly
S 7. Tt'eble damage suiU
1890, August 8 (26 St8t. at L. 818,
ehapb 728). Com-
merce in intoxicat-
ing liquors; Wftoo
act
1890, August 18 (26 SUt at L. 316,
ohap. 797). | 1.
Military appropri-
ations
1890, Oct 1 (26 SUt at L. 567, chap.
1244). Tariff act ..
1891, March 2 (26 Stat at L. 882,
chap. 496). f 3.
limiUtion of fees . .
1891, March 3 (26 Stat, at L. 888,
chap. 517). Circuit
conrU of appeals.
§ 6. Certiorari U
circuit courU of ap-
peals
1891, March 3 (26 SUt at L. 851,
' chap. 538). Indian
depredation claims
§ 9. Indian depredation
daims
1891, March 3 (86 SUt at L. 948,
ohap. 542). Lhni-
tation of fees
1891, March 3 (26 SUt at L. 1081,
chap. 548). Limita-
tion of fees
1891, March 3 (26 SUt at L. 1095,
<^ap. 561). PUbfic
lands. § 11. Ex-
tending townsiU
laws' U Alaska ....
S 24. Forest resirves . .
1892, July 28 (27 SUt at L. 306,
diap. 811). Re-
funding illegal tax
1892, August 8 (27 SUt at L. 848,
• chap. 378). | 2.
LimiUtion of fees
1883, March 2 (27 SUt at L. 531,
chap. 196). Safety
appliances. § 4.
Handholds or grab
irons
1893, Nov. 3 (28 Stat at L. 7, chap.
14). Chinese exdu-
768
766
649
810
948
936
496
843
810
318
843
849
843
238
868
887
843
680
sion 797
1894,
1894,
July 31 (28 Stat at L. 162,
chap. 174). AppnK
priations
August 27 (28 SUt at L. 509,
chap. 349). Tariff
act ; income Ux . . .
§ 22. Drawback
§ 27. Income Ux ..445,
857
887
496
521
88
STATUTES, ETC., CONSTRUED.
188
491
659
567
322,
709
322
709
1896, March 1 (28 SUt. at L. 697.
chap. 145). Intox-
icating liquors. § 8.
Indiftn Territory
prohibition 260
1895, fiiardli 2 (28 Stat, at L. 764,
chap. 177). Appro-
priations 857
1896, Feb. 26 (29 Stat, at L. 32,
chap. 34)1 Venezu-
ela claims 869
1897, March 3 (29 Stat, at L. 692,
chap. 891 ) . Pat-
ents ; what inven-
tions are patentable
1897, jQBe 4 (30 Stat, at L. 84, chap.
2). Public lands;
forest reserve
1898, May 14 (30 Stat, at L. 409,
chap. 299 ) . Ex-
tending homestead
laws to Alaska . . . 236
1898, JuM 18 (30 Stot. at L. 448,
chap. 448). War
revenue act. §§ 7,
13-15. Stamp tax
§ 20. Suoceasion tax . .
§ 30. Succession tax . .
§ 31. Treasury regula-
tions
1898, June 28 (30 SUt. at L. 507,
chap. 517 ) . Indi-
ans; CVirtis act; re-
strictions on aliena-
tion 751
1898, July 1 <30 SUt. at L. 544,
chap. 541 ) . Bank-
rupt act. § 1.
Definitions .. 247, 898
I 6. Partners 247
§ 17. Discharge 247
§ 22i References .^ 898
S 23. Onflict of juris-*
diction ; . 898
f 24a. Appeals 898
g 24b. Petition to re-
vise 898
§ 25a. Appeals 898
§§ 36, 38a. Referees ... 898
S 63a. Provable debU;
fixed liability 247
§ 63b. Provable debts;
unliquidated claims 247
§ 67e. Voidable trans-
fers 247
I 70e. Fraudulent con-
veyances and trans-
fers 247, 898
1898, Dec. 21 (30 Stat, at L. 766,
chap. 28). Wages
of seamen 607
19
1899, Feb. 8 (30 SUt. at L. $22,
chap. 121). Sub-
stitution in suiU
against Fedeiml oS-
cer
1899, March 3 (30 Stat, at L. 1064,
chap. 423). Afftih
priaiions
1900, April 12 (31 SUt. at L. 77,
chap. 191). Tempo-
rary goreritmtfBDt .Mr
Porto Rico; Forakcr
act. § 33. Insular
courts
§ 34. Federal dtstriet
courts
1900, May 26 (31 SUt. at L. 205,
chap. 686). Appro-
priations
1900, May 81 (31 SUt. at L. 221,
chap. 698 ) . Limi-
Ution of fees
1901, March 2 (31 SUt. at L. 953,
chap. 812). J 3.
Jurisdiction of Fed-
* eral district court
for Porto Ric6
1901, March 3 (31 SUt. at L. 1093,
chap. 845). Chinese
exclusion ..'...'....
1901, March 3 (31 SUt. at L. 1189,
chap. 854). Dis-
trict of Columbia
0>de. § lOf . Juris-
diction over, nonres-
idenU
I 1278. Damages in man-
damus proceedings
1902, April 12 (32 SUt at L. 96,
chap. 500). Re-
pealing wafer reve-
nue act. § 7. Suc-
cession Ux
1902, April. 28 (32 SUt. at L. 162,
chap. 694). Appro-
priations; duties of
chief oi engineers
1902, June 27 (32 Slat, at L. 406,
chap. 1160). War
revenue tax. § 3.
Refunding succes-
sion Ux .... 322,
1902, June 28 (32 Stat, at U 41$,
chap. 1301). Ap-
propriations
1902. July 1 <32 SUt. at L. 601,
chap. 1869). Civil
government for Phil-
ippine Islarids ....
§ 5. Bill of Righto ....
§ 86. Congressional su-
pervision
869
•; :
935
944
94%
935
843
i»44
797
667
869
iii
'6^2
709
857
365
327
327
1
STATOIES, EIC, COXSTKUED.
IM), Ftb. 6 (3*2 Stmt, at L. 797,
chap. 487). Bank-
ruptcy
§ 5. Discharge
§ 13. Provable debts ..
1H3, Feb. 28 (32 Stat, at L. 920,
ehap. 858). § 3.
Lhnitation of fees
ItM, March 3 (32 Stat, at L. 1028,
chap. 1002^. Ex-
tending homestead
* laws to Alaska . . .
IMS, March 3 (32 Stat, at L. 1225,
<*hap. 1019). Pat-
ents
IHi, Mardi 4 (33 SUt. at L. 59,
chap. 394). Affida-
vits of claimants of
public lands
19Q4, April 16 (33 Stat, at L. 181,
chap. 1814) « Phil-
ippine Islands;
coastwise trade . . .*
1904, April 27 (33 Stat. at'L. 352,
chap. 1624). Rati-
fication of Indian
agreement
1906, W9^ 20 (38 Stat, at 1i. 725,
• chap. 592). Trade-
mark registration.
§ 5. Marks entitled
to registration . . .
1906, March 3 (38 Stat, at L. 1082,
chap. 1480). Post-
office; railway mail
•ervice
1900, April 26 (34 Stat, at L. 137,
diap. 1876). In-
dian affairs. § 2.
Enrolment
1906, Maj 4 (34 Stat, at L. 168,
chap. 2081). Trade-
mark registration
1906, June 8 (34 Stat, at L. 225,
chap. 3060). Pub-
lic lands; monu-
ment reserve
1906, Juse 16 (34 Stat at L. 267,
chap. 3335). Okla-
homa enabling act.
§ 1. Federal control
of Indians
1906, Juaa 22 (34 SUt. at L. ^1,
diap. 8516). Na-
tional banks; exces-
sive loans
1906, June 20 (34 Stat, at L. 467,
chap. 3546). Post-
office appropriations
1906, June 28 (34 Stat, at L. 639,
chap. 3572). Divi-
sion of Indian prop-
64 li. ed.
898
247
247
843
I
236
491
940
327
507
705
290
863
705
669
751
141
500
184
1906, June 29 (34 Stat, at L. 564,
chap. 3501). Inter-
state commerce. § 1.
Commodities clause
1906, June SO (34 Stat at L. 616,
chap. 3935). Legal
proceedings under
direction of Attor-
ncy CJcncral
1907, March 2 (34 Stat, at L. 1246,
chap. 2564). Re-
Tiew by government
in criminal case . .
1907, March 2 (34 Stat, at L. It05,
chap. 3513). Post^
office; railway mail
service
1907, March 2 (34 Stat, at L. 1246,
chap. 3564). Crim-
inal appeals
I 1704. Review by gov-
ernment in criminal
case
1908, April 19 (35 Stat, at L. 64,
chap. 147). § 8.
Limitation of fees
1908, April 22 (35 Stat at L. 65,
chap. 149). Em-
ployers' liability . .
430, 482, 670, 680,
794,
1908, May 27 (35 Stat, at L. 312,
chap. 199). Indian
allotments ; restric-
tions <m alienation
1908» May 27 (35 Stat, at L. 412,
chap. 206). Post-
office appropri-
ations ; carriage of
* empty mail bags ..
1908, May 28 (35 Stat, at L. 418,
chap. 208). Limi-
tation of fees
1909, Feb. 18 (35 Stat, at L. 627,
chap. 144). Trade-
mark registration
1909, March 4 (35 Stat at l^. 1088,
chap. 321). Crim-
inal Code. § 10.
Violating neutrality
§ 37. Conspiracy ..513,
§ 97. Embezzlement . . .
§ 330. nomicide ; verdict
without capital pun-
ishment ...'.
1909, August 5 (36 SUt at L. 11,
chap. 6). Tariff
act. § 38. Federal
corporation tax 297,
1910, April 5 (36 Stat at L. 291,
chap. 143). Em-
ployers' liability . .
760
333
229
29€
471
833
843
258
790
907
761
£2»
84»
705^
613
542
940
103
698
670
7t
STATUTES, ETC., CONSTRUED.
1917, March 2 (39 Stat, at L. 983,
chap. 146). Indian
appropriations; ap-
praisal of allot-
ments
1917, March 2 (39 Stat, at L. 999,
chap. 153). Bank-
ruptcy ; discharge . .
1917, March 3 (39 Stat, at L. 1009,
chap. 162). Com-
merce in intoxlcat-
*
ing liquors. § 5.
Reed amendment ..
j 1017,
1918,
184
247
665
946
1917, March 3 (39 Stat, at L. 1123,
chap. 165). Intox-
icating liquors; Dis-
trict of C<Aumbia
prohibition 260
1917, March 4 (39 SUt. at L. 1193,
chap. 180). Tak-
ing or use of prop-
erty for war pur-
poses 194
1917, May 7 (40 Stat, at L. 39, chap.
11). Violations of
neutrality 513
1917, May 18 (40 Stat, at L. 76, chap.
16). Selective serv-
ice Act. § 6. Crim-
inal violations .... 827
f 12. Intoxicating li-
quors 260
1917, June 12 (40 Stat, at L. 102,
chap. 26). §8.
Limitation of fees 843
1917, June 15 (40 Stat at L. 183,
chap. 29). Taking
or use of property
for war pBrpoaes;
emergency shipping
fund 194
1M7, Juna 16 (40 SUt at L. 217,
chap. 30). Espion-
age act 360, 542
I 3. Obetrueting recruit-
ing and enlistment
service 827
1917, August 10 (40 Stat at L. 276,
chap. 53). Food con-
trol; Lever act .. 229
260
§ 15. Use of food prod-
ucts in distilled
spirits 194
§ 24. Termination of
provisions of act .. 194
1917, Oct. 3 (40 Stat, at L. 300, chap.
63). War Revenue
Act; income tax 445, 887
§ 307. Fermented liquors 260
1917, Oct. 6 (40 Stat at L. 395, chap.
97). Admiralty ju-
risdiction .....180, 834
74
1918,
Oct 6 (40 Stat, at L. 411, ektip,
106). Trading with
t^e enemy 194
March 8 (40 Stat at L. 449,
chap. 20). Soldiers
and sailors' civil re-
Uef 194
MaToh 21 (40 SUt at L. 451,
dtmp, 25). Taking
or use of t.proferty
lor war purposes ;
fMeral control of
railroads ......;'.. 194
1918, April 22 (40 SUt at L. 535,
chap. 62). Taking
or use of property
for war purposes;
emergency shipping
fund 194
1918, May 16 (40 Stat at L. 556,
chap. 74). Taking
or use of property
for war purposes . . 194
1918, May 20 (40 SUt at L. 556,
chap. 78). Depart-
ment Reorganization
Act 194
1918, June 4 (40 Stat at L. 598,
chap. 90). Taking
or use of property
for war purposes . . 194
July 1 (40 SUt at L. 651, chap.
113). Taking or
use of property for
war purposes
July 3 (40 SUt at L. 755, chap.
128). Migratory
bird treaty act ....
1918, July 9 (40 SUt at L. 889, •
, chap. 143). Army
appropriations ; air
craft 194
1918, July 16 (40 Stat, at Lu 903,
chap. 153). § 2.
Limitation of fees . . 843
1918, July 16 (40 Stat, at L. 904,
chap. 154). Taking
or use of property
for war purposes . . . 104
1918, July 18 (40 SUt at L. 913,
chap. 157). Taking
or use of property
for war purposes;
emergency «hipping *
fund 194
August 31 (40 SUt at L. 955,
chap. 166). Exten-
sion of Selective
draft act . ; 540
(40 Stat at L. 1010,
chap. 181). Taking
or use of property
for war purposes .. 194
1918,
1^18,
1918,
194
641
1918, Oct. i
STATLI'ES, £TC„ CONSTRUED.
194
194
260
If 18, Nov. 4 (40 SUt. at L. 1020,
chap. 201). Taking
or use of property
for war purposes;
emergency sbipping
fund
1918, Nor. 21 <40 Stat, at L. 1045,
chap. 212). War-
time prohibition . .
1819, Feb. 24 (40 Stat, at L. 1057,
chap. 18). Internal
revenue 194
§§ 210, 213. Income Ux 445
I 213. Salaries of Fed-
eral judges 887
S 233a. Gross income . . . 698
1818, Umt<Sk 4 (40 Stat, at L. 1348,
chap. 125). Food
Control Act. § 11!
Wheat price guar-
antee 194
1919, Oot ^ (41 Stat, at L. 305,
chap. 83). National
prohilntion ; Vol-
stead act ..194, 260, 946
1820, Feb. 28 (41 Stat, at L. 456,
chap. — ) . Trans-
portation act 808
1783, Sept. 8 (8 SUt. at L. 80).
Treaty of peace with
Great Britain 606
1819, Feb. 28 (8 Stat, at U 252>.
Treaty with Spain 619
1842, August 8 (8 Stat, at L. 672).
Treaty witk Great
- Britain ^ 616
1846, June 8, 17 (8 Stat, at L. 853).
Treaty with Potta-
watomie Indians . . 1002
1854. March 18 (10 Stat, at L. 1043).
Treaty with Omahas 901
1861, Nov. 6 (12 Stat, at L. 1191).
Treaty with Potta-
watomie Indians .. 1002
1885, Mardi 8 (14 Stat, at L. 667).
Treaty with Omahas
1898, Dec. 10 (30 Stat, at L. 1754).
Treaty of peace with
Spain
Art. 11. Rights of Span-
ish residents in Porto
Rico
1901, April :82 (32 Stat, at L. 1864).
Treaty with Gteat
Britain 616
1904, Feb. 86 (83 Stot. at L. 2234).
Treaty with Panama 582
«4 li. ed.
901
305
944
1916, Dec. 8 (39 Stat, at L. 1702).
Treaty with Great
Britain ; migratory
birds
Judicial Code,
§ 24. Jurisdiction of district court
f 3. Admiralty juris-
diction.
§ 49. Proper district for suit by na-
tional bank
§ 51. Proper Federal district for
suit 649,
§ 128. Finality of judgments of cir-
cuit courts of ap-
peals .....443, 810,
§ 129. Review of preliminary orders
granting injunctions
$ 145. Jurisdiction of court of claims
§ 151. Referring claims to court pf
claims
% 156. Referring claims to court of
claims 843.
S 177. Interest on claims against
United States ..901,
§ 237. Error to state court ....213,
421, 476, 481, 600,
931,
§ 238. Direct review of judgments of
district court . . 194,
260, 445, 542, 616,
§ 240. Certiorari to circuit courts of
appeals ..810, 822,
§ 241. Erjor to circuit courts of ap-
peals 810,
§ 250. Review of judgments of Dis-
trict of C!olumbia
court of appeals . . .
§ 256. E.xclusive Federal jurisdiction
If 3. Admiralty juris-
diction
§ 262. Power to issue writs
§ 266. Appeal from interlocutory de-
crees 445,
§ 287. Challenges to jurors
Criminal Code,
§ 10. Violating neutrality
8 87. Conspiracy 513,
§ 97. Embezzlement . . :
§ 330. Homicide; verdict without
capital punishment
Joimt ReBoluUone,
1864, July 4 (18 SUt. at L. 417, Res.
No. 77 ) . Income
Ux
» r
641
690
834
180
690
690
822
822
852
843
935
935
255
908
989
243
649
697
993
870
667
834
180
810
596
360
513
542
940
103
44^
78
STATLTKS, ETC., CONSTKUED.
Co^necUrut.
General Statutes,
1W8, § 6762. Auditor . .' 919
Session Laica.
1919, chap. 241, p. 2917. lutoxicat-
iBg liquors 260
I>ela\vare.
Lau>s.
1917, chap. 10, p. 19. lotozicating
liquors • • • . 200
District of Celumbia.
CodCf 1901.
I 105. Jurisdiction over nonresidents 667
I 1278. Damages in mandamus pro-
ceedings 869
Florida.
Beaaion Laws,
1918 (Special Session) chap. 7736, § 7.
Intoxicating liquors 260
1919, chap. 7890. Intoxicating liquors 260
Georgia.
Civil Code, 1010.
I 3426. Interest rate • 171
§3427. Usury 171
13486. Usury 171
Park* a Annotated Code, 1917,
I 448b. Intoxicating liquors
Beasion Lavoa.
260
1915 (Special Sossidn), pp. 77, 79.
Intoxicating liquors 260
1919, p. 931. Intoxicating liquors .. 260
Hawaii.
' Reviaed Latca, 1915.
I 2101. Intoxicating liquors 260
Idaho.
Conatitution, 1916.
ProhibitioB
78
260
SeaaioH Lmoa. . . .
•
1909, p. 18. Intoxicating liquors ..^. •£6P
1911, chap. 16. Intoxicating liquors 260
1915, chap. 11, § 23. Intoxicatiiif 11^
uors . • • 260
1915, chap. 28. Intoxicatiiig liquors. .^6P
1917, p. 528. Intoxicating liquors . . 260
IlUaoto.
Revised BOUuies, iSH,
Chap. 43, § 1. Intoxicating. Uquort $60
Beaaion Lmoa,
1919, p. 931. Intoxicating liquors . . 260
Indiana. i
Beviaed Btaiutea, 1881.
§ 2094. Intoxicating liquors .260
Beaaion Law$.
1911. chap. 119, § 29. Intoxicating
liquors 260
1917, chap. 4, i 2. Intoxicating liq-
uors 260
Iowa.
Reviaed Code, 1897-1915.
§ 2382. Intoxicating liquors 260
• *
Kansas.
General Btaiutea, 1915.
§ 5498. Intoxicating liquors 260
§ 6501. Intoxicating liquors 200
Beaaion Law a.
1881, chap. 128, § 1. Intoxicating liq-
uors 260
1909, chap. 164, § 4. Intoxicating liq^
uors 260
1917, chap. 215. Intoxicating hquors 260
1917, chap. 216. Intoxicating liquors 260
Kentnoky.
Biatuiea.
§ 3290. Third class iuties; powers .. 221
§ 3490. Fourth class cities; powers 221
$§ 4106, 4114. Taxation of distilled
spirits 421
STATUTES, ETC., CHWSTRUED.
Btatutf, 190S, • Massachnsetts.
S 2554. Intoxicating liquors
Btatute9, 1915.
260
S 795. Separate coach law • . . , 631, 637
Sesaion Lave;
1906, chap. 21. Intoxicating liquors 26t»
lioulslaiui.
Cmtstitutiony 19 H,
Art, 281. Jurisdiction 213
Session hates.
1910 (Extra Session), No. 171. In-
toxicating liquors . .
1914, Xo. 20. Workmen's compensa-
tion
1914, Kos. 146, 211. Intoxicating liq-
uors
Maine.
Revised l^mtntes, 188S,
260
180
260
Constitution.
44th Amend. Income tax
521
Revised Statutes, 1836.
Chap. 96, § 31. Auditors
919
Revised Laics ^ 1902,
Chap. 100, § 2. Intoxicating liquors 260
Chap. 165, § 60. Auditors 919
Revised Laics, 1908 Supplement,
Chap. 100, § 1. Intoxicating liquors 260
General Statutes, 1860.
Chap. 121, § 50. Auditors 910
Session Lav>9*
Chap. 82, § 70. Auditors
919
Revised StattUes, 1916,
Chap. 127, 8 21. Intoxicating liquors 260
Session Laws.
1821, chap. 59, § 25. Auditors ....
1826, chap. 347, § 1. Auditors ....
1897. March 12. chap. 224. Auditors
1919, chap. 235, § 21. Intoxicating
liquors
Marjriand.
Session Laxcs,
919
919
919
260
1785, chap. 80, § 12. Appointment
of auditor 919
1914, chap. 831, § 1, p. 1569. In-
toxicating liquors . . 260
1916, chap. 389,. § 1, p. 786. Intoxi-
cating liquors 260
1917 (Extra Session), chap. 13, § 1.
Intoxicating liquors 260
1918, chap. 219, p. 580. Intoxicating
liquors 200 § 3101. Intoxicating liquors
•4 L. ed.
1818, chap. 142.
1867, March 16,
1873, June 6,
1878, April 23,
1911, June 5,
1914, chap. 576.
1916, chap. 269.
Auditor 919
chap. 67. Auditor«« 919
chap. 342. Auditors 919
chap. 173. Auditors 919
chap. 237. Auditors 919
Auditors 910
Income tax ' 730
Mic*lii|(an.
Session Laws.
1859, Feb. 14. Ai^eeptance of congres-
sional grant in aid
of railroad construc-
tion 484
1877, May 14. Ratifying land patent
to railroad company ,484
1881, June 9, p. 362. Ratification of
land grant to rail-
road company 484
1919, Act. No. 53, § 3, p. 81. Intoxi-
cating liquors 260
Minnesota.
General Statutes, 1913.
•
§ 3188. Intoxicating liquors 260
§ 7709. Limitation for cause of ac-*
tion arising outbide
of sUte 713
General StatuteSf 1911 Supplement.
200
79
STATUTES, ETC., CONSTRUED.
1919, chap. 455, p. 537. Intoxicating
liquors 260
Mississippi.
Code, 1906.
* 4
§ 1746. Intoxicating liquors
Code, 1917,
260
§ 2086. Intoxicating liquors 260
Session Laws,
1908, chap. 115, p. 116. Intoxicating
liquors 260
1918, chap. 189, § 1, p. 210. Intoxi-
cating liquors 260
Missouri.
Revised Statutes, 1900.
§§ 3037-3040, 3342. Foreign corpora-
tions
§ 7243. Intoxicating liquors
k . • • .
255
260
Woernet's Revised Code, 1907,
§ 21. Sewer districts «
Laws, 19U9.
427
f 15. Intoxicating liquors
MonUma*
260
Session Laws.
1917, chap. 143, § 2. Intoxicating liq-
uors 260
Nebraska.
Cohhey*s Compiled Statutes, 1907.
§ 7161. Intoxicating liquors 260
Session Laws.
1917, chap. 187, 8 1. Intoxicating
liquors 260
Nevada.
Revised Laws^ 1912.
§§ 1038-1040. Mining claims 567
§ 4951. Mineral lands; adverse pos-
session 567
SO
4998, 5000. Parties
§ 5526. Mining claims
567
567
Session Laws.
1919, chap. 1, § 1. Intoxicating liq-
uors • 2610
New Hampsliire.
General Laws, 1878'
Chap. 109, § 15. Intoxicating liquors 260
Public Statutes, 1901.
Chap. 227, § 7. Auditors 919
Public Statutes Supplement, 190 1-19 IS.
P. 7. Intoxicating liquors 260
■ Session Laws.
»
1823, June'gS, chap. 19, § 1. Audi-
tors 919
1876, July 20, chap. 35, § 4. Audi-
tors 919
1917, chap. 147, § 60. Intoxicating
liquors - 260
New Jersey.
Session L9WS.
1918, chap. 2, § 1. Intoxicating liq-
uors 260
New Mexico.
Statutes, 1915.
§ 2874. Intoxicating liquors 26a
§ 2937. Intoxicating liquors 260
Session Laws.
1915, March 8. § 1. Public lands;
-expending proceeds
for advertising pur-
poses 128
1917, p. 352. Intoxicating liquors . . 260
1919, chap. 93, p. 182. Tax on sale
of gasolene 654
New York.
Code of Civil Procedure.
§ 2356. Costs of compulsory reference 919*
§ 2718. Publication by executors of
notice to present
claims 799-
STATUTES, IfiTC, CONSTRUED.
f 2721. Time for payment bl legacies 709
f 2722. Compelling payment of lega-
cies 1
709
Consolidated Laws.
Chap. 28. General Corpori^tion Law.
§ 16. Designating
agent for service of
process
314
Session Laws, *
1778, diap. 17.
1897, duip. 812,
1903. chap. 486,
1905, chap. 679,
1910, chap. 480.
1917, chap. 624,
1919, chap. 627.
Income tax 445
§ 2. Intoxicating
liquors 260
§ 2. Intoxicating
liquors 260
§ 2. Intoxicating '
liquors 200
Public service com-
missions. § 65. Gas
and electric corpora-
tions 434
9 2. Intoxicating
liquors 260
Income tax ....... 460
North Carolina.
Public Laics, 1909,
Chap. 438, Schedule B, §§ 26, 63. In-
toxicating liquors
Session Lairs,
260
1908, Spec. Seas. 1008, cliap. 71, § 1.
Intoxicating liquors 260
North Dakota.
Revised Code, 1895.
i 7698. Intoxicating liquors
260
Revised Code, 1899.
§ 7698. Intoxicating liquors 260
Compiled Jjaics, 191S,
n 2077, 2102, 2103, 2110. Corporate
taxation 931
I 8176. Suit against state 782
Session Laics,
1897. chap. 65, § 10. Intoxicating
liquors 260
1909, chap. 187, p. 277. Intoxicating
liquors 260
1910. chap. 147. State bank 878
«4 li. ed.
1919, chap. 148.
1019, chap. 160.
1919, chap. 152.
1910, chap. 158.
1919, chap. 154.
1919, Feb. 25.
1919, March 7.
State hank bond act 878
Home building as-
sociations 878
Mill and elevator
associations 878
State bonding act 878
State bonding act 878
Industrial Commis-
sion 878
Railway taxation 782
Ohio.
Constilution, 19i:i,
Art. 2j § 1. Referendum 871
Art. 13, § 5. Compensation for prop-
erty taken 62C
Revised Statutes, 1880,
§ 3461. Mode of use of streets .... 210
§ 3471a. Mode of use of streets 210
Revised Statutes, 1906.
4364-9. Intoxicating liquors .... 260
General Code, 1910.
§ 10,128. Incorporation #. . . 62C
§ 10,134. Incorporation 626
§ 12,940. Regulation of carriage of
passengers 634
Joint Resolutions.
1919, Jan. 7. Ratification of 18th
Amendment 871
Session Laics,
84 Oliio Laws, 7. ^lode of use of
streets 210
92 Ohio Laws, 204. Municipal con-
trol over erection of
electric light and
power appliances . . 210
1919, §§ 6212-15, p. 388. Intoxicating
liquors 260
Oklahoma.
Comtitution, 1907.
Art. 9, §§ 18-23. State corporation
commission 596
Art. 10, S 8. Exempting Indian
lands from taxation 751
Art. 10, § 12. Taxes 445
Art. 23, i 6. Question for jury;
contri bu tory negl i -
gence 133
81
STATUTES, ETC., CONSTRUED.
Remaed 8iatiHe9, J910. Rhode Island.
§§ 111)2>1207. State corporation com-
mission ..» 596
S 1570. LimiUtion of actions 751
I 8235. Public business; rates.. 696, 600
Session Laics,
General Latoa,
Chap. 123, §§ 1, 2, 5. Intoxicating
liquors
Public Laws,
260
1913, chap. 26, § 6. Intoxicating
liquors
1915, chap. 107. (J r o s s production
Ux .'.
1915, chap. 164. Income tax
1916, chap. 39. G r o h s production
tax
1917, chap. 186. Intoxicating liquors
1919, chap. 52, § 3. Appeals from
orders of state cor-
poration commission
Orcflion.
Laws,
1905, chap. 2. Intoxicating liquors
1915, chap. 141, § 2, p. 151. Intoxi-
cating liquors
Peunsj-lvanla.
Constitution, 187i,
Art. 17, § 5. Coal mining by common
carrier
Pamphlet Laws,
260
445
445
445
260
596
260
260
760
1840, Xo. 232, p. 613, % 2. Taxation
of salaries of public
olBcers 887
1841, Xo. 117, p. 310, § 9. Taxing
salaries of public
officers 887
1913, July 26, p. 1374. Public serv-
ice, commission. §§
17, 22-25. Appeals 908
§ 31. Injunction 908
S§ 35, 39, 41, 59. Penal-
ties 908
1915, June 3, p. 779. Appeals from
orders of public
service commission 908
Philippine Islandn.
Administrative Code, 1910,
Art. 310. Coastwise trade 327
Administrative Code, 1917.
§ 658. Coastwise trade
82
1887, chap. 634, § 2. Intoxicating
liquors 260
1919, chap. 1740, § 1. Intoxicating
liquors 260
SouUi Carolina.
Revised Criminal Statutes, 189S,
§ 437. Intoxicating liquors 260
Criminal Code, 1902*
§ 555. Intoxicating liquors 260
Criminal Code, 1912.
§ 794. Intoxicating liquors 260
Session LawB,
1917, Xo. 94, Intoxicating liquors . . 260
ScMith Dakota.
Revised Political Code,. 1909,
S 2834. Intoxicating liquors 2(60
Revised Code, 1919,
i 10,237. Intoxicating liquors 260
Session Laws,
1890, chap. 101, § 6, p. 229. Intoxi-
cating liquors 260
Tennessee.
• Session Laws,
1917, chap. 4, p. 6. Intoxicating liq-
uors 260
Texas.
Penal Code,
Art. 421. Barratry 481
Revised Statutes, 1895,
327 Art. 5060a. Intoxicating liquors ... 260
STATUTES, ETC., CONSTRUED.
V0rm>H*9 8ayleu*a Civil Statutes, 19J4.
Arte. 5687, 5688, 5690. Limitation of
actions 141
«
8eB»io}i l^atcs.
Ifl7, March 29, chap. 133. Barratry 481
1918, chap. 24. Intoxicating liquors 260
VUili.
Sessiott Latet,
1911, chap. 106, § 2. Intoxicating
liquors 260
1913, chap. 81, § 2. Intoxicating
liquors 260
1917, chap. 2, § 2. Intoxicating
liquors 260
Vermont.
Revised Laws, 1880,
§3800. Intoxicating liquors 260
General Laws, 1911,
I 6452. Intoxicating liquors 260
Session Latcs,
1782, Oct. 21. Auditor 919
1002, No. 90, § 1, p. 94. Intoxicating
liquors 260
Virginia.
Code, 1887.
f 587. Intoxicating liquors 260
Political Code, 190.^,
S 838. Appeals from decisions of )^u-
perv'isors
I 944a. Highwayti
Session Lairs.
135
135
1903, April 16. Revenue 989
1912, March 12, chap. 151. Highways 135
1914, March 21, c)iap..l74. Highways 135
1916, chap. 146, § 1, p. 216. Intoxi-
cating liquors 260
1916, March 17, chap. 279. Highways 135
1916, March 22, chap. 472. Income
tax 989
1916. chap. 495. Income tax 089
1918, chap. 219. Income tax 989
64 li. ed.
Washington.
Remington and BalUnger's Code,
886-890. Claims against state .. 243
Code, 1912.
Title, 267, § 45. Intoxicating liquors 266
Session Laves.
•
1893. March 9, p. 241. Excavation
of waterways hy pri-
vate contract 243
1911, March 14. Incorporating port
districts 243
1913, March 11, p. 195. Vacating
waterway and vest-
ing title in munici-
pal corporation . . . 243
1915, chap. 2, § '3k Intoxicating liq-
uors 260
West Virginia.
Code.
Chap. 32, § 1. Intoxicating liquors 260
Code, 1906.
Chap. 32, § 1. Intoxicating liquors 260
Session Laics.
1877, chap. 107. Intoxicating liquors 260
1913, chap. 13, § 1. Intoxicating liq-
uors 260
Wisconsin.
Statutes.
§ 1862. Municipal regulation of street
railwavs 476
Statutes, 1911.
% 1565c. Intoxicating liquors 260
§ 1770b. Foreign corporations 684
§ 1770J. Foreign corporations; cura-
tive act 684
Session Laics,
1017, chap. 212. Foreign corporations 684
Wyoming.
Compiled Statutes, 19l0.
§ 2838. Intoxicating liquors 260
Session Laics.
1919, chap. 25, § 2. Intoxicating liq-
uors 260
83-94
f ^■
f»
'*
CASES
ARGUED AND DECIDED
IN THB
SUPEEME COURT
OF THB
UNITED STATES
AT
OCTOBER TERM, 1919.
Vol 251.
14 ti. ed.
THE DECISIONS
OF THE
Supreme Court of the United States
AT
OCTOBER TERM, 1919.
UNITED STATES, Appt.,
V.
SOUTHERN PACIFIC COMPANY et aL
(See S. C. Reporter's ed. 1-15.)
Eridence — sulficlency — railway land
grant — fpanclulent representatiofis
— oil lands.
1. An attempt to obtain a patent for
landR within tlie indemnity limits of the
Southern Pacific Railroad land ^ant of
Jnly 27. 1866. bv repregentinjj that the
lands were not mineral, when the railway
company's officers believed the fact was
otherwise, is shown by evidence that when
the patent was sought and obtained the
lands had no substantial value unless for
o9 mining; that the interest and anxiety
displayed by the company's officers in se-
curing the patent wore wholly dispropor-
tionate to the value of t'.ie lands for any
other purpoiiie; that the lands lay within a,[
recognized and productive oil region which
the company's geologists had been sys-
tematically examining to determine in what
lands oil was to be expected: and that up-
on the advice and recommendation of such
seologista the company was treating and
dealing with adjacent lands, of which it was
the owner, as valuable for oil.
(For other cases, see Evidence. XII. f. In Di-
rest Sup. Ct. 1008.].
Pabllc lands — cancelation of patent ~
rallway land grant — fraudulent rep-
resentations — oil lands.
2. Landi^ within the indemnity limits of
the Southern Pacific Railroad land grant of
Note. — On setting aside land patents
for fraud — see note to Miller v. Kerr,
6 L. ed. U. 6. 381.
On land grants to railroads, generally
—see note to Kansas P. R. Co. v. Atchi-
son, T. A S. F. R. Co. 28 L. ed. U. S.
794.
•4 Ij. ed.
July 27, 1866, were known to the railway
company to be valuable for oil when the
patent therefor was sought and obtained, so
as to justify cancelation of the patent at
the -siiit ol the government, where the
known conditions at that time were such as
reasonably to engender the belief that the
lands contained oil of such quality and in
such quantity as would render its extrac-
tion profitable and justify expenditures to
that end.
(For other cases, see Public Lands, I. 1;.I. c,
2. i, in Digest Sup. Ct. 1008.]
Public lands — railroad land grants —
indemnity selections — mineral lands.
3. A report of a special agent of the
General Land Office as to the nonmineral
character of certain lands which were there-
after selected by the Southern Pacific Rail-
way Company as within the indemnity
limits of the land grant of July 27, 1866,
did not relieve the railway company from
showing before the Land Department that
the lands selected were not mineral.
[For other cases, see Public Lands. I. c, 2, e;
I. f. In Dlgrest Sup. Ct. 1008.]
[No. 179.]
Argued March 5 and 6, 1919. Decided No-
vember 17, 1919.
APPEAL from the United States Cir-
cuit Court of Appeals for the Ninth
Circuit to review a decree which re-
versed, with directions to dismiss the
bill, a decree of the District Court for
the Southern District of the Northern
Division of California in favor of the
United States in a suit to cancel a pat-
ent to public lands issued to a railway
company upon certain indemnity selec-
tions. Reversed, and decree of District
Court affirmed.
See same case below, 162 C. C. A. 19,
249 Fed. 785.
The facts are stated in the opinion.
97
SUPREME COURT OP THE UNITED STATES.
Oct. Tebm,
Mr. J. Crawford Biggs, Special Assist-
ant to the Attorney General, and Assist-
ant Attorney General Kearftil, argued
the cause and filed a brief for appellant :
In a suit to annul a patent as fraud-
ulently covering mineral lands, belief as
to mineral character is established by
proof that the known conditions at the
time of the proceedings which resulted
in the patent were plainly such as to
engender the belief that the lands con-
tained mineral deposits of such quality
and' in such quantity as would render
their extraction profitable, and justify
expenditures to that end; and this rule
applies to oil lands.
Diamond Coal & Coke Co. v. United
States, 233 U. S. 236, 239, 58 L. ed. 936,
939, 34 Sup. Ct Rep. 507; Cowell v.
Lammers, 10 Sawy. 246, 21 Fed. 200;
Davis V. Wiebbold, 139 U. S. 507, 35
L. ed. 238, 11 Sup. Ct. Rep. 628; Cosmos
E^plorat^ion Co. v. Gray Eagle Oil Co.
104 Fed. 20; Francoeur v. Newhouse, 40
Fed 618.
A suit brought by the United States
to cancel a patent for fraud stands upon
a different plane from the ordinary
private suit to recover real estate.
Causey v. United States, 240 U. S.
399, 402, 60 L. ed. 711, 713, 36 Sup. Ct
Rep. 365; Utah Power & Light Co. v.
United States, 243 U. S. 389, 409, 61
L. ed. 791, 818, 37 Sup. Ct. Rep. 387;
United States v. Minor, 114 U. S. 233,
240, 29 L. ed. 110, 112, 5 Sup. Ct. Rep.
836.
A representation recklessly made
without knowledge of its truth, but
which is in reality false, is a fraudulent
representation.
Smith V. Richards, 13 Pet. 26, 36, 10
L. ed. 42, 47; Cooper v. Schlesinger, 111
U. S. 148, 155, 28 L. ed. 382, 384, 4 Sup.
Ct. Rep. 360; Lehigh Zinc & I. Co. v.
Bamford, 150 U. S. 665, 673, 37 L. ed.
1215, 1217, 14 Sup. Ct. Rep. 219 ; Wecker
v. National Enameling & Stamping Co.
204 U. S. 176, 185, 51 L. ed, 430, 435,
27 Sup. Ct. Rep. 184, 9 Ann. Cas. 757;
Mullan V. United States, 118 U. S. 271,
277, 30 L. ed. 170, 172, 6 Sup. Ct. Rep.
1041.
The fraudulent manner in which the
Southern Pacific acquired patent to the
lands involved in the Tulare Oil Com-
pany contest is in keeping with its
fraudulent conduct in securing patent
for the lands now sued for.
Tulare Oil & Min. Co. v. Southern P.
R. Co. 29 Land Dec. 269; Wood v. Unit-
ed States, 16 Pet. 342, 10 L. ed. 987;
Mudsill Min. Co. v. Watrous, 9 C. C. A.
415, 22 U. S. App. 12, 61 Fed. 163, 18
08
Mor. Min. Rep. 1 ; Penn Mut. L. Ins. Co.
V. Mechanics' Sav. Bank & T. Co. 38
L.R.A. 33, 19 C. C. A. 286, 37 U. S. App.
692, 72 Fed. 413; Diamond Coal &
Coke Co. V. United States, 233 U. S.
248, 58 L. ed. 943, 34 Sup. Ct. Rep. 507.
A man who has made a false repre-
sentation in respect to. a material mat-
ter must, in order to rely on the de-
fense that the transaction was not
entered into on the faith of the repre-
sentation, be able to prove to a demon-
stration that it was not relied on.
Kerr, F. & Mistake, 3d ed. 75; Pol-
lock, Torts, 292; Griffin v. Roanoke R.
& Lumber Co. 140 N. C. 514, 6 L.R.A.
(KS.) 463, 53 S, E. 307; Pomerov, Eq.
Jur. 3d ed. § 895.
The representation need not be the
sole inducement.
Hindman v. First Nat. Bank, 57
L.R.A. 108, 50 C. C. A. 623, 112 Fed.
931; Sioux Nat. Bank v. Norfolk State
Bank, 5 C. C. A. 448, 12 U. S. App. 347,
56 Fed. 139.
The proceedings resulting in the pat-
ent were ex parte, no issue was framed,
no hearing was had, and the patent is
not conclusive against the government,
but it may cancel the patent by showing
that it was obtained by means of false
and fraudulent proofs.
Washington Securities Co. v. United
States, 234 U. S. 76, 58 L. ed. 1220, 34
Sup. Ct. Rep. 725; United States v.
Minor, 114 U. S. 233, 29 L. ed. 110, 5
Sup. Ct. Rep. 836; J. J. McCaskill Co.
v. United States, 216 U. S. 504, 509, 54
L. ed. 590, 594, 30 Sup. Ct. Rep. 386;
Diamond Coal & Coke Co. v. United
States, 233 U. S. 236, 239, 58 L. ed.
936, 939, 34 Sup. Ct. Rep. 507.
Mr. Charles B, Lewers argued the
cause, and, with ]!^essrs. William F.
Herrin and Joseph P. Blair, filed a
brief for appellees:
Opinion or surmise that oil might
exist, at an unknown depth, from 4 to
10 miles from its nearest known occur-
rence, is not convincing proof that the
conditions in 1904 were plainly such as
to engender the belief that the land
contained mineral deposits of such qual-
ity and in such quantity as would ren-
der their extraction profitable, and jus-
tify expenditures to that end.
Diamond Coal & Coke Co. v. United
States, 233 U, S. 236, 239, 58 L. ed. 936^
939, 34 Sup. Ct. Rep. 507.
It was the duty of the government to
prove its case by that class of evidence
which commands respect, and with that
amount of it which produces conviction.
951 U. S.
1^19.
UNITED 8TATES v. SOUXHEBX P. CO.
Maxwell Ltmd-GraDt Case, 121 U. S.
325, 379-381, 30 L. ed. 949-959, 7 Sup.
CL R«p. 1015.
Only those lands may be lawfully
taken from the railroad company which
were in faet mineral land$ at the time
of patent. The expression ^^mineral
land[s," as here used, is no longer open
to qneetion. It includes only such lands
as were, at the time of the grant (pat-
ent), known to be so valuable for their
minerals as to justify expenditure for
their extraction.
Davis V. Wiebbold, 139 U. S. 607,
524, 35 L. ed. ^38, 244, 11 Sup. Ct. Rep.
628; Deffebaek v. Hawke, 115 U. S.
392, 20 L. ed. 423, 6 Sup. Ct. Eep. 95;
Diamond Coal & Coke Co. v. United
States, 233 U; S. 236, 239, 58 L. ed. 936,
939, 34 Sup. Ct. Rep. 507.
A mineral patent would not issue for
a single i^e in the Elk hills on the
showing of mineral made by the govern-
ment in this case. This is so because
the evidence is not sufficient to prove a
discovery of mineral.
Chrisman v. Miller, 197 U. S. 313, 49
L- ed. 770, 25 Sup. Ct. Rep. 468.
Far more proof is required to take
land out of the category established by
its nonmineral patent than is required
to establish a miner's "discovery."
Ibid.
Without legal damage to the govern-
ment there can be no relief on the
ground of fraud. This is the rule which
this court has applied in a similar suit
by a private individual (Southern De-
velopment Co. V. Silva, 125 U. S. 247,
31 L. ed. 678, 8 Sup. Ct Rep. 881, 15
Mor. Min. Rep. 435). The same rule has
been held to i^ply in suits by the gov-
ernment itself.
United States v. San Jacinto Tin Co.
125 U. S. 273, 285, 31 L. ed. 747, 751, 8
Sup. Ct, Rep. 850; United States v.
Stinson, 197 U. S. 200, 205, 49 L. ed.
724, 725, 25 Sup. Ct. Rep. 426.
Mere indications of the existence of
oil are not proof of its existence or of
its quantity or location.
Brewster v. Lanyon Zinc Co. 72 C. C.
A. 213, 140 Fed. 801; Nevada Sierra
Oil Co. V. Home Oil Co. 98 Fed. 673, 20
Mor. Min. Rep. 283; Nevada Sierra Oil
Co. V. Miller, 97 Fed. 681; Miller v.
Chrisman, 140 Cal. 444, 98 Am. St. Rep.
63, 73 Pac. 1083, 74 Pac. 444; Olive
Land & Development Co. v. Olinstead,
103 Fed. 568, 20 Mor. Min. Rep. 700;
United States v. McCutchen, 238 Fed.
575; Bay v. Oklahoma Southern Gas,
Oil A Min. Co. 13 Okla. 425, 73 Pac.
936; Weed v. Snook, 144 Cal. 439, 77
«4 !>. ed.
Pac. 1023; New England & C. OU Co. v.
Congdon, 152 Cal. 311, 92 Pac. 180 j Me-
Leii^ore v^ Express Oil Co. 158 Cal. 559,
139 Am. St. Rep, 147, 112 P^. 59;
Dughi V. Harkins, 2 Land Dec. 721;
Davis V. Wiebbold, 199 U. S. 507, 35
L. ed. 238, 11 Sup. Ct. Rep. 628; Hutton
V. Forbes, 31 Land Dec. 325; Southwest-
em Oil Co. V. Atlantic P. R. Co. 39
Land Dec. 335; Re Butte Oil Company,
40 Land Dec. 602.
Belief not based on clear demonstra*
tion is not proof of mineral character.
Deffeback v. Hawke, 115 U. S. 392, 29
L. ed. 423, 6 Sup. Ct Rep. 95 ; Iron SU-
ver Min. Co. v. Reynolds, 124 U. S. 374,
31 L. ed..466, 8 Sup. Ct. Rep. 598; Iron
Silver Min. Co. v. Mike & S. Gold & S.
Min. Co. 143 U. S. 394, 36 L. ed. 201,
12 Sup. Ct. Rq;>. 543, 17 Mor. Min. Rep.
436; Sullivan v. Iron Silver Min. Co.
143 U. S. 431, 36 L. ed. 214, 12 Sup. Ct.
Rep. 555.
Greater evidence is required to cancel
a patent than would have warranted a
refusal to grant it in the first place.
United States v. Marshall Silver Min.
Co. 129 U. S. 579, 588, 32 L. ed. 734, 737,
9 Sup. Ct. Rep. 343, 16 Mor. Min. Rep.
205.
Fraud cannot be predicated ]ipon the
expression of an opinion concemih|^ the
existence of hidden mineral deposits. }
2 Addison, Torts, Wopd's ed. § 1186.
Black, Rescission, § 77; Southern De-
velopment Co. V. Silva, 125 U. S. 247,
252, 31 L. ed. 678, 681, 8 Sup. Ct Rep.
881, 15 Mor. MLn. Rep. 435; Gordon r.
Butler, 105 U. S. 553, 26 L. ed. 1166;
Holbrook v. Connor, 60 Me. 578, 11
Am. Rep. 212; Synnott v. Shaughnessy,
130 U. S. 572, 32 L. ed. 1038, 9 Sup. Ct.
Rep. 609, 17 Mor. Min. Rep. 213; Dia-
mond Coal & Coke Co. v. United ^tatas,
233 U. S. 236, 58 L. ed. 936, 34 Sup. Ct.
Rep. 507.
The respect due to patent titles is
such that they can be set asidie by the
extraordinary relief of cancelation only
where the proof is clear, both that the
government has lost what it was
entitled to keep, and that it has suffered
this loss through the intentional wrong
of the patentee.
United States v. Stinson, 197 U. S.
200, 49 L. ed. 724, 25 Sup. Ct Rep. 426;
Maxwell Land-Grant Case, 121 U. S.
325, 30 L. ed. 949, 7 Sup. Ct. Rep. 1015;
United States v. San Jacinto Tin Co.
125 U. S. 273, 299, 31 L. ed. 747, 8 Sup.
Ct Rep. 850; Unitdd States v. Iron Sil-
ver Min. Co. 128 U. S. 67?, p76, 32 U ed.
571, 572, 9 Sup. Ct. Rep. 195; United
SUtes V. Claik, 200 U S. 6ai, 608, 50
9^
ti-8
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbh,
L. ed. 613, 616, 26 Sup. Ct. Rep. 340;
United States y. Budd, 144 U. 8. 154, 36
L. ed, 384, 12 Sup. Ct. Rep. 575; Dia-
mond Coal & Coke Co. v. United States,
233 U. S. 236, 239, 58 L. ed. 936, 939,
34 Sup. Ct. Rep. 507; Washington Seen-
rities Co. v. United States, 234 U. S. 76,
58 L. ed. 1220, 34 Sup. Ct. Rep. 725;
United States v Des Moines Nav. & R.
Co. 142 U. S. 510, 541, 35 L. ed. 1099,
1108, 12 Sup. Ct. Rep. 308.
A false representation must be relied
upon to be actionable either in law or
equity.
Southern Development Co. v. Silva,
125 U. S. 247, 250, 31 L. ed. 678, 680,
8 Sup. Ct. Rep. 881, 15 Mor. Min. Rep.
435.
Mr. Justice Van Devanter delivered
the opinion of the court :
This is a suit by the United States
to cancel a patent issued December 12,
1904, to the Southern Pacific Railroad
Company for eight full and two partial
sections of land within the indemnity
limits of the grant made to that company
by an act of Congress of July 27, 1866,
ohap. 278, 14 Stat, at L. 292, it being
charged in the bill that the railroad eom-
()any [7] fraudulently obtained the pat-
ent by falsely representing to the Land
Department that the lands were not min-
eral but agricultural, when it was known
that they were mineral. From the evi-
dence presented the district court found
that the charge was true, and entered a
decree of cancelation, and this was re-
versed by the circuit court of appeals,
one judge dissenting. 162 C. C. A. 19,
249 Fed. 785.
^^AU mineral lands" other than those
containing coal or iron were excluded
from the grant, and this exclusion em-
braced oil lands. Burke v. Southern P.
R. Co. 234 U. S. 669, 676-679, 58 L. ed.
1527, 1543, 1544, 34 Sup. Ct. Rep. 907.
As will be seen presently, there can be
no doubt that the patent was procured
by representing that the lands were not
mineral. Whether this representation
was false turns upon the character of
the lands as known when the patent was
sought and obtained. If they then were
known to be valuable for oil, as the gov-
ernment asserts they were, they were
mineral in the sense of the granting act.
To compensate for losses to the grant
within its primary limits the railroad
company was entitled to select other
lands of like area within the indemnity
limits, approval by the Secretary of the
Interior being essential to passing the
selections to patent. The established mode
100
of making the selections was by present-
ing at the local land office selection
lists designating the lands last and those
selected, with supporting affidavits show-
ing, among other things, that the lands
selected were of the character contem-
plated; that is to say, were not mineral
but agricultural. These lists and affida-
vits would then be examined in that
office and in the General Land Office, and
ultimately the selections would be passed
to the Secretarv of the Interior for his
action. That course was followed here.
The original list was presented No-
vember 14, 1903, but it isncountered ob-
stacles which led to the presentation of
a substituted list covering the same lands
on September 6, 1904. [8] Both lists
were presented by the company's land
agent, Mr. Eberlein, and were accom-
panied by affidavits made by him, stat-
ing that the lands selected ^re not in-
terdicted mineral," but "are of the
character contemplated by the g^nt,"
and that "he has caused" them "to be
carefully examined by the agents and
employees of said companj' as to their
mineral or agricultural character, and
that to the best of his knowledge and
belief none of the lands returned in
said list are mineral lands." In acting
on the substituted list, the officers of
the Land Department relied upon and
gave effect to the statements in sup-
porting affidavits, and the selections
were accordingly approved and passed
to patent.
In truth, Mr. Eberlein bad not ex-
amined the lands or caused them to be
examined by others. Nor had any ex-
amination of them been made on behalf
of the railroad company, save such as is
inferable from the conduct of its geolo-
gists and others presently to be noticed.
The lands were in the Elk hills in Kern
county, California ; were rough, semiarid.
and unfit for cultivation; were devoid of
timber, springs, or running water, and
had but little value for grazing. Oil had
been discovered in that r^on as early
as 1899, and this had been followed by
development and production on an exten-
sive scale. In 1903 and 1904 there were
many producing wells about 25 miles to
the east, and many within a much 8hort-
er distance to the west and south, some
within 3 or 4 miles. The railroad com-
pany was then maintaining a corps of
geologists, — all informed by experience
in the California oil fields, — and under
their supervision was searching for, de-
veloping, and producing oil for fuel pur-
poses. In 1902, upon the recommenda-
tion of one of its geologists, it withdrew
261 U. 8»
1919.
UNITED STATES v. SOUTHERN P. CO.
8-11
from sale many of its patented lands sor-
rounding and adjacent to those in suit
''because they were in or near oil ter-
ritory;" and early in 1903 it entered up-
on a systematic examination of its lands
in [0] that territory '^to determine as
far as ean be done from surface indica-
tions and geological structure where oil
is to be expected in this region." In a
letter to Mr. Kruttschnitt^ one of the
eompany's vice presidents, the chief
geologist said; when about to take up
the examination : ^'So far as I ean judge
from the trip I have just made over this
territory, this work promises results of
greatest value to the company."
The lands in suit were surveyed in
1901, and the approved plat was filed in
the loeal land ofKce in May, 1903. The
field notes denominated the lands as min-
eral, and described them as in a mineral
district 'Vithin which many successful
oil wells have been developed." As be-
fore stated, the original selection list
was presented November 14, 1903. Mr.
Kmttschnitt already had written to the
eompany's attorney at Washington, re-
questing that ^^special attention" be
given to securing a patent for the lands
when selected; and. shortly thereafter
Mr. Eberlein wrote to the attorney, say-
ing: '^ am particularly anxious in re-
gard to this Ust; as the lands adjoin the
oil territory, and Mr. Kmttschnitt is
very solicitous in regard to it." Other
letters and telegrams show that this
special concern or anxiety persisted un-
til the patent was issued.
In 1903 the company concluded to lease
such of its lands as were considered
"valuable for oil purposes" to a subsidi-
ary company which was to be a sort of
fuel department, and to have charge of
the development and production of oiL
The geolog^ts were requested to desig-
nate the lands to be thus leased, and as a
result of their investigation and reeom-
inendatibn several sections adjacent to
and some immediately adjoining those in
suit were included. The lease was to be
signed on behalf of the railroad company
by Mr. Eberlein as land agent, and was
laid before him for that purpose on Au-
gust 2, 1904. Perceiving at onee that its
execution would not be in accord [10]
with his action in pressing the pending
selection list, he took the matter up .with
some of his superiors. To one he said in
a letter: ''We have selected a large
body of lands interspersed with the lands
sought to be conveyed by this lease, and
which we have reptesented as nonmineral
in character. Should the eidatence of
this lease become known, it would go a
•4 li. ed.
long way toward establishing the min-
eral character of the lands referred to,
and which are still unpatented. W^
could not successfully resist a mineral
filing after we have practically estabr
lished the mineral character of the land.
I would suggest delay at least until this
matter of patent can be adjusted." To
the same officer he protested against the
action of the geologists in examining un-
patented lands because "it was charging
the company with notice." And to an-
other,* in New York, he explained "all
phases of the matter," with the result
that the "impropriety of the lei^e at that
time" and the "very ambiguous position
in which we would be placed" were recogf
nized, and he was instructed to withhold
his signature and to place and keep all
correspondence and papers relating to
the lease in a separate and private file
not accessible to others. He followed the
instruction and the special or secret file
remained in his possession "until," as he
testified, "it was pried out" at the hear-
ing.
But notwithstanding what was brought
to his attention through the proposed
oil lease, Mr. Eberlein continued actively
to press the pending selection, and when,
about a month later, he presented the
substituted selection list, it was accom-
panied by afiidavits wherein he repeated
his prior representation that the lands
were not mineral. After presenting this
list he had a conference with the chief
geologist which prompted the latter,
when writing to a superior officer, to ex-
plain that "for reasons of policy regard-
ing certain unpatented lands it will be
best not to execute the lease ... at
present."
[11] The lease was placed by Mr.
Eberlein in the special or secret file, and
some time afterward, when an effort
was made to find it, he denied all knowl-
edge of it. The denial was brought to
the attention of the chief geologist, and
he at once wrote to Mr. Eberlein, call-
ing attention to the conference just
mentioned, and stating: "You explained
that you were rushing certain lands for
final patent, and that the immediate
execution of the lease showing our idea
of what were oil lands might interfere
with you^ and we agreed to defer the
execution until that danger was passed."
The chief geologist was a witness at the
hearing, and when asked what danger
was meant, answered: "The danger
that these lands might be delayed and
not be patented because of their inineral
character."
All that has been recited thus far is
101
11-13
SUPREME COURT OF THE UNITED STATES.
Oct. Ter^i,
proved so well that it is beyond dispute.
FaiHy considered, it shows that when the
patent was sotig^ht and obtained the lands
had no substantial value unless for oil
mining; that the interest and anxiety
displayed by the company's officers in
securing the patent were wholly dispro-
portionate to the value of the lands fot
any other purpose; that the lands lay
within a recognized and productive oU
region which the company's g^logists
had i>e0n systematically examining to de-
termine in what lands oil was to be ex-
pectedy and that upon the advice and
recommendation of its geologists the
company was treating and dealing with
adjacent and adjoining lands, of which
it was the owner, as valuable for oil.
Of course among practical men the char-
acter— whether oil or otherwise — of
these adjacent and adjoining lands had
some bearing on the character of those
ill suit, and this was given pointed recog-
nition when the company's officers halted
the signing of the proposed oil lease
pending action on the selection list, and
caused the correspondence and papers re-
lating to the lease to be secreted in a
special and private file.
We 'think the natural, if not the only,
conclusion from [12] all this, is that,
in pressing the^selection, the officers of
the railroad company were not acting
in good faith, but were attempting to
obtain the patent by representing that
the lands were not mineral when they
believed the fact was otherwise.
The observable geological and other
physical conditions at the time of the
patent proceedings, as shown by the evi-
dence, were as follows : The area called
the Elk hills was about 6 miles wide and
15 long, and co.nstituted an anticlinal
fold or elongated dome, — an occurrence
favorable to the accumulation and re-
tention of oil. The lands in suit were
about its center. Prom 6 to 10 miles to
the west was the Temblor range, the
main uplift of that region. Along the
•epBt flank of that uplift for a distance
of 30 kniles was a series of outcrops or
exposures of Monterey (diatomaceous)
shales, the source of oil in California,
and porous sandstone in which oil gen-
erally finds its ultimate reservoir. These
strata were of exceptional thickness, and
it was apparent that oil in considerable
quantity had been seeping or wasting
from th^ sandstone. The dip of the
strata was towards the Elk hills, and
there Were no indications of any fault-
ing or thinning in that direction. Be-
tween the outcrop and the Elk hills up-
wards of two hundred wells had found
102
the oil-bearing strata and were being
profitably operated, several of the wells
being on a direct line towards the lands
in suit and within 3 or 4 miles of them.
In and beyond the Elk hills were oil
seepages and other surface indications
of the existence of oil in th^ underlying
strata, one of the seepages being near
the lands in suit. Two wells had been
sunk in the Elk hills, but obviousdy had
not gone to an adequate depth ana were
not productive, although some oil was
reached by one.
Geologists and men of wide experience
and success in oil mining — all of whom
had examined that territory and [IS]
some of whom had been familiar with it
for years— were called as witnesses by
the government, and gave it as their
opinion, having regard to the known
conditions in 1903 and 1904, as just out-
lined, that the lands were valuable for
oil, in that an ordinarily prudent man,
understanding the hazards and rewards
of oil mining, and desiring to chgage
therein for profit, would be justified in
purchasing the lands for such mining
and making the expenditures incident
to their development, and in that a com-
petent geologist or expert in oil mining,
if employed to advise in the matter,
would have ample warrant for advising
the purchase and expenditure.
Otner geologists and oil operators,
called by the company, gave it as their
opinion that the lands were not, under
the conditions stated, valuable for oil:
but, as respects the testimony of some,
it is apparent that they were indisposed
to regard any lands as within that cate-
gory until they were demonstrated to be
certainly such by wells actually drilled
thereon and producing oil in paying
quantities after a considerable period of
pumping. This is a mistaken test, in
that it takes no account of geological
conditions, adjacent discoveries, and
other external conditions upoh which
prudent and experienced men in the oil
mining regions are shown to be accus-
tomed to act and make large expendi-
tures. And the testimony of some -of
these witnesses is weakened by the fact
that their prior acts in respect of these
lands, or others in that vicinity similarly
situated, were not in accord with the
opinions which they expressed.
After considering all the evidence, we
think it is adequately shown that the
lands were known to be valuable for oil
when the patent was sought and ob- .
tained, and by this we mean that the
known conditions at that time were such
as reasonably to engender the belief that
»1 U. 8.
UU'.».
STROUD V. UNITED STATES.
13-1 :>
the Uiiitis contained oil of such quality
and in such quantity as would render its
extraction profitable, and justify ex-
penditures [14] to that end. See
Diamond Coal & Coke Co. v. United
Stat^, 233 U. S. 236, 58 L. ed. 936, 34
Sup. Ct. Eep. 607.
The railroad company places some re-
liance on the fact that after the presen>-
tatioQ of the original selection list, and
before the substituted one was tendered,
1 special agent of the General Land
Office examined the lands and reported
them as nonmineral. But there is noth-
ing in this that can help the company.
The agent's report was made in another
connection, and was not considered by
the land officers when they approved the
selection. It did not relieve the company
from showing that the lands selected
were n<)t mineral; nor did the company
understand that it had any such effect.
Mr. Eberlein knew of the report several
months before he and other officers of
the company became troubled over the
proposed oil lease and concluded that,
if g^iven publicity, it would endanger the
pending selection. Besides, if the re-
port could be considered here, it would
be without any real evidential value, for
it appears from testimony given by the
agent at the hearing that he was not a
geologist or familiar with oil mining,
and that his examination of the lands
was at best only superficial.
' The company makes the contention
that drilling done since the patent was
issued has demonstrated that the lands
have no value for oil. Assuming, with-
out so deciding, that the contention
would help the company if sustained by
the evidence, we think it is not sustained.
The drilling relied upon was done after
1909 upon lands in the Elk hills other
than those in suit. Several wells were
started and not more than three were
successful. The three were the only ones
that were drilled in favorable locations
and to an adequate depth, and they pene-
trated oil sands of oonsiderable thick-
ness and produced a large quantity of
oil, but were, shut down for reasons not
made clear by the record. They were
drilled by an oil company which was con-
trolled by the railroad company. [15]
The other wells failed for reasons which
prevent the outcome from having any
significance h^e. In some the drilling
was not carried to an adequate depth be-
cause the right to proceed was thought
to be nncertain by reason of an executive
withdrawal of the lands.
We conclude that the application of
prior decisions to the case made by the
• 4 L. ed.
evidence entitles the government to the
relief sought, as was held by the dis-
trict court. See United States v. ^iuor,
114 U. S. 233, 29 L. ed. 110, 5 Sup. Ct.
Rep. 836 ; J. J. McCaskill Co. v. United
States, 216 U. S. 604, 54 L. ed. 590, 30
Sup. Ct. Rep. 388; Diamond Co^l & Coke
Co. V. United States, supra; Washington
Securities Co. v. United States, 234 U. S.
76, 58 L. ed. 1220, 34 Sup. Ct. Rep. 725.
Decree of Circuit Court of Appeals re-
versed-
Decree of District Court affirmed.
ROBERT F. STROtJD, Plff. In Err.,
UNITED STATES OF AMERICA.
(See S. 0. Reporter's ed. 15-22.)
Homicide ~ first degree — ^ mitigation of
punishment.
1. A conviction for murder as charged
in the indictment, which embraced the ele-
ments constituting murder in the first de-
gree, is not rendered less than on^for first-
degree murder merely because the jury ex-
ercised its right, under the Criminal Code, §
330, to mitigate the punishment to im-
prisonment for life.
[For other cases, see Homicide, I. in Digest
Sup. Ct. 1908.]
Criminal law — former Jeopardy — re»
versal of first conviction.
2. A person found guilty of murder in
the first degree by a verdict which, conform-
ably to the Criminal Code, § 330, mitigates
the punishment to life imprisonment, is not
placed twice in jeopardy by an unquali-
fied conviction for first-degree murder car-
rying the death penalty in a new trial had
after the earlier conviction was reversed iip-
on a writ of error sued out by the accused.
[For other cases, see Criminal Law, II. in Di-
gest Sup. Ct. 1908.]
Appeal — discretion below — venue —
jury.
3. The discretion of the trial judge in
a criminal case in overruling motions to
change the venue on grounds of local preju-
dice, and to quash the panel of prospective
Note. — On former jeopardy — *- see
notes to Com. v. Fitzpatriok, 1 L.R.A.
451; Altenburg v. Com. 4 L.R^. 543;
Ex parte Lange^ 21 L. ed. U. S. 872;
and United States v. Perez^ 6 L. ed.
U. S. 165.
As to review of discretionary action
of court below — see note to Barrow v.
Hill, 14 L. ed. U. S. 48.
As to challenges to jurors — see notes
to Harrison v. United States, 41 L. ed.
U. S. 104, and Gulf, C. & 8. F. R. Co.
V. Shane, 39 L. ed. U. S. 727.
10&
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
jurors on like grounds, will not be disturbed
by an appellate court except for abuse.
[For other cases, see Appeal and Error, VIII.
1, 2; VIII. 1. 6. In Digest Sup. Ct. 1908.]
Appeal — harmless error — refusing
challenge of juror for cause.
4. An erroneous ruling in a homicide
case upon defendant's challenge of a juror
for cause could not 'prejudice the accused
where such juror was peremptorily chal-
lenged by the accused, and the latter was in
fact allowed two more than the statutory
number of peremptory challenges, and there
is nothing in the record to show that any
juror who sat upon the trial was in fact
objectionable.
[For other eases, see Appeal and Error, VIII.
m, 6, in Digest Sap. Ct. 1808.]
Criminal law — self-incrimination —
search and seisure.
5. The use in evidence in a criminal
case of letters voluntarily written by the
accused after the crime, while he was in
prison, and which came into the possession
of the prison officials under established
practice reasonably demanded to promote
discipline, did not infringe the constitution-
al safeguards against self-incrimination or
unreasonable searches and seizures.
[For other cases, see Criminal Law, III. b, 2,
in Digest Sup. Ct. 1908.]
[No. 276.]
Argued Octol)er 22, 1919. Decided Novem-
ber 24, 1919.
IN ERROR to the District Court of the
United States for the District of Kan-
sas to review a conviction for murder in
the first degree. Affirmed.
The facts are stated in the opinion.
Mr. Martin J. 0*Donnell argued the
cause, and, with Mr. Isaac B. Kimbrell,
filed a brief for plaintiff in error:
The constitutional prohibition ajgainst
double jeopardy incorporated in the
phrase of the 6th Amendment, "nor
shall any person be subject for the same
offense to be twice put in jeopardy of
life," is a prohibition directed to the
courts of the United States, which op-
erates to deprive them of jurisdiction
to try any person more than once for
his life for the same offense, and neither
the consent of the defendant nor the
action of any department of the govern-
ment can operate to confer upon the
courts a jurisdiction thus denied by the
organic law.
Nolan V. State, 55 Ga. 521, 21 Am.
Rep. 281, 1 Am. Crim. Rep. 532; Kepner
V. United States, 195 U. S. 100, 49 L. ed.
114, 24 Sup. Ct. Rep. 797, 1 Ann. Cas,
655; Ex parte Lange, 18 Wall. 163, 21
L. ed. 872; United States v. Gibort, 2
Suran. 39, Fed. Cas. No. 15,204; Com. v.
Cook, 6 Serg. & R. 577, 9 Am. Dec. 465;
104
Schick V. United States, 195 U. S. 69,
49 L. ed. 102, 24 Sup. Ct. Rep. 826,
1 Ann. Cas. 585; Golding v. State, 31
Fla. 262, 12 So. 525; Re Bennett, 84
Fed. 324; Reg. v. Murphy, 38 L. J.
P. C. N. S. 53, 6 Moore, P. 0. C.
N. S. 177, 16 Eng. Reprint, 693, L. B.
2 P. C. 535, 21 L. T. N. S. 598, 17
Week. Rep. 1047, 4 HI. Com. 11; Hopt
V. Utah, 110 U. S. 574, 28 L. ed. 262, 4
Sup. Ct. Rep. 202, 4 Am. Crim. Rep.
417; Lewis v. United States, 146 U. S.
370, 36 L. ed. 1011, 13 Sup. Ct. Rep.
136; Thompson v. Utah, 170 U. S. 346,
42 L. ed. 1065, 18 Sup. Ct. Kep. 620;
Cooley, Const. Lim. 319; Bishop, New
Crim. Law, §§ 1043-1047.
This court is committed to the doc-
trine that the rights of Englishmen at
the common law as outlined by Black-
stone will be held to be rights which are
secured to Americans by the incorpora-
tion of common-law maxims in the Con-
stitution.
Kepner v. United States, 195 U. S.
100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797,
1 Ann. Cas. 655; Callan v. Wilson, 127
U. S. 540, 32 L. ed. 223, 8 Sup. Ct Rep.
1301; Capital Traction Co. v. Hof, 174
U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep.
580; Chisholm v. Georgia, 2 DaU. 419,
435, 1 L. ed. 440, 447; Den. ex dem.
Murray v. Hoboken Land & Improv. Co.
18 How. 272, 276, 15 L. ed. 372, 374;
Twining v. New Jersey, 211 U. S. 78,
53 L. ed. 97, 29 Sup. Ct. Rep. 14; Gomp-
ers v. United States, 233 U. S. 604, 610,
58 L. ed. 1115, 34 Sup. Ct Bep. 693,
Ann. Cas. 1915D, 1044; Bobertson v.
Baldwin, 165 U. S. 275, 41 L. ed. 715,
17 Sup. Ct. Rep. 326.
There can be no new trial in a capita)
sense.
Rex V. Mawbey, 6 T. R. 638, 101 Eng.
Reprint, 736, 3 Revised Rep. 282, 1
Chitty, Crim. Law, Eng. ed. p. 654, 2
Russell, Crimes, bk. 6, chap. 1, § 1, 2
Lord ed. p. 589, 2 Tidd, Pr. p. 820;
Archbold, Crim. Pr. & PI. 177; Rex v.
Fowler, 4 Bam. & Aid. 273, 106 Eng.
Reprint, 937; Rex v. Edwards, 4 Taunt.
309, 128 Eng. Reprint, 348, Russ & R.
C. C. 234, 2 Leach, C. L. 621, 3 Campb.
207, 13 Revised Rep. 601; Reg. v. Mur-
phy, 38 L. J. P. C. N. S. 53, 6 Moore, P.
C. C. N. S. 177, 16 Eng. Reprint, 693, L.
R. 2 P. C. 535, 21 L. T. N. S. 598, 17
Week. Rep. 1047; Er\'ing v. Cradock,
Quincy (Mass.) 553; United Slates v. Gil-
bert, 2 Sumn. 39, Fed. Cas. No. 15,204;
Reg. v. Bertrand, 10 Cox, C. C. 621, 4
Moore, P. C. C. N. S. 460, 16 Eng. Re-
print, 391, 36 L. J. P. C. N. S. 51, L. R. 1
P. C. 520. 16 L. T. N. S. 752, 16 Week.
251 r. s.
1819.
STROUD V. UNITED STATES.
Rep. 9; Shepherd v. People, 26 X. Y.
406; People v. Comstoek, 8 Wend. 549.
The plaintiff in error did not bring
aboat the destruction of the former ver*
4ict or judgment. The United States,
aeting through its Solicitor General,
filed a motion moving that the court
reverse the judgment, and in pursuance
of the confession and motion on the
part of the United States the judgment
was reversed and remanded for further
proceedings. Consequently the falla-
cious doctrine of waiver of former
jeopardy does not lit the facts of this
16 C. J. 258; People v. McGrath, 202
N. Y. 445, 96 N. E. 92; State v. Snyder,
98 Mo. 555, 12 S. W. 369; Ex parte
Snvder, 29 Mo. App. 256; State v.
Adams, 11 S. D. 431, 78 N. W. 353;
State V. Xor\ell,.2 Yerg. 24, 24 Am.
Dec. 458; State v. Parish, 43 Wis. 395.
To hold that a person convicted of a
capital crime by prosecuting a writ of
error waives his right to rely on tbe
eonstitutignal prohibition against dou-
ble jeopardy is to hold that this consti-
tutional guaranty can never be invoked
by a person so convicted.
Hartung v. People, 26 N. Y. 187;
Scott V. United States, Morris (Iowa)
142; State v. Mikesell, 70 Iowa, 176, 30
N. VT. 474; Ex parte Lange, 18 Wall.
163, 21 L. ed. 872; Hurtado v. Califor-
nia, 110 U. S. 516, 28 L. ed. 232, 4 Sup.
Ct. Rep. Ill, 292.
Rule three of this court requires it to
follow the former practice of the court
of King's bench; and as that rule has
not been altered or modified since its
adoption, either by the court or by act
of Congress, as to capital crimes, it
wa^ without power to award a trial de
novo on the former writ of error.
Rio Grande Irrig. ft Colonization Co.
V. Gildersleeve. 174 U. S. 603, 43 L. ed.
1103, 19 Sup. Ct. Rep. 761 ; Rex v. Maw-
bey, 6 T. R. 638, 101 Eng. Reprint, 736,
3 Revised Rep. 282; Archbold, Crim.
Pr. & PI. 177; Chitty, Crim. Law, Eng.
ed. p. 654; 2 Russell, Crimes, bk. 6,
chap. 1, § 1, 2 Lord ed. p. 589; 2 Tidd,
Pr. p. 820; Rex v. Ellis, 5 Bam. & C.
395, 108 Eng. Reprint, 147; Rex v.
Bourne, 7 Ad. & El. 58, 112 Eng. Re-
print, 393; Re Frederich, 149 U. S. 70,
37 L. ed. 653, 13 Sup. Ct. Rep. 793;
Walsh V. Com. 224 Mass. 39, 112 N. E.
486; Ex parte Page, 49 Mo. 291; Shep-
herd V. People, 25 N. Y. 406; Lo wen-
berg V. People, 27 N. Y. 336; Hartung
V. People, 26 N. Y. 167; Elliott v. Peo-
ple, 13 Mich. 365; Capital Traction Co.
v. Hof, 174 U. S. 3. 43 L. ed. 873, 19
•4 li. ed.
Sup. Ct Rep. 580; Lowe v. Elansas, 163
U. S. 81, 41 L. ed. 78, 16 Sup. Ct. Rep.
1031; Ex parte Lange, 18 Wall. 163, 21
L. ed. 872.
The former verdict disposed of two
issues in the case: first, guilty as
charged; second, acquittal of the spe-
cies of charge warranting capital pun-
ishment. The former writ of error to
this court was prosecuted from the
judgment on the phase of the verdict
finding defendant guilty of the crime.
Therefore the verdict acquitting the
defendant of the species warranting the
infliction of the death penalty remains
in full force and effect.
United States v. Sanges, 144 U. S.
310, 36 L. ed. 445, 12 Sup. Ct. Rep. 609 ;
Ballew v. United States, 160 U. S. 187,
40 L. ed. 388, 16 Sup. Ct. Rep. 263; Re
Frederich, 149 U. S. 70, 74, 37 L. ed.
653, 656, 13 Sup. Ct. Rep. 793; Rex v.
Bourne, 7 Ad. & El. 58, 112 Eng. Re-
print, 393; Camp v. Gress, 250 U. S.
308, 63 L. ed. 997, 39 Sup. Ct. Rep. 478 ;
United States v. Gibert, 2 Sumn. 19,
Fed. Cas. No. 15,204; Coughlin v. Mc-
Elroy, 74 Conn. 404, 92 Am. St. Rep.
224, 50 Atl. 1025; State v. Clouser, 72
Iowa, 303, 33 N. W. 686 ; Ex parte Med-
way, 23 Wall. 504, 23 L. ed. 160, 5
Reeves, History of English Law, p. 460;
Yong's Case, 4 Coke, 40a, 76 Eng. Re-
print, 984; Whart. Homicide, 1049,
1050; Rex v. Jennings, Russ. & R. C. C.
388.
The district court of the United States
is empowered by § 53 of the Judicial
Code, upon the application of a defend-
ant in a criminal case, to transfer the
cause for trial to another division of
the district, and the denial of a defend-
ant's application for such transfer is
error fatal to the verdict in a case
where it appears that, because of prej-
udice against him on the part of the
inhabitants of the division in which the
trial was had, defendant cannot have a
trial by an impartial jury such as the
Constitution contemplates.
3 Bl. Com. pp. 294, 350; Reg. v. Bar-
rett, Ir. Rep. 4 C. L. 285, 18 Week. Rep.
671; Rex v. Cowle, 2 Burr. 834, 97 Eng.
Reprint, 587; Crocker v. Justices of
Superior Ct. 208 Mass. 162, 94 N. JE.
369, 21 Ann. Cas. 1061; State v.
Flaherty, 42 W. Va. 240, 24 S. E. 885;
Kennon v. Gilmer, 131 U. S. 22, 33 L. ed.
110, 9 Sup. Ct. Rep. 696; Hendrix v.
United States, 219 U. S. 79, 55 L. ed.
102. 31 Sup. Ct. Rep. 193; Mattox v.
United States, 146 U. S. 140, 36 L. ed.
917, 13 Sup. Ct. Rep. 50; Lvnch v. Hor-
ry, 1 S. C. L. (1 Bay) 229; Western
105
SUPREME COURT OF THE UNITED STATES.
OoT. Ibem,
Coal & Mio. Co. v. Jones, 75 Ark. 76,
87 S. W. 440.
The district court deprived defendant
of his right to a trial by an impartial
jury of the state and district of Kansas,
by refusing to quash the jury panel
where it appeared that the district
attorney, in attempting to force a trial
during the absence of defendant's coun-
sel, while they were unavoidably de-
tained in the trial of a cause in an
adjoining state before a court of gen-
eral jurisdiction, made and caused his
affidavit to be read in the hearing of
the panel, reciting his unwarranted con-
clusion that defendant's said counsel
had deserted their client, the defendant,
and that they had proposed to enter a
plea of guilty, and where it appeared
that the judge of said court, during the
unavoidable . absence of defendant's
counsel, denounced them in the presence
and hearing of the panel as being guilty
of professional misconduct, declaring
that if they were within the jurisdic-
tion of that district coiirt, he would
order them into custody of the marshal,
thus and thereby depriving defendant
of his constitutional right to be tried
for his life by an impartial jury of the
state and district where the homicide
was alleged to have been committed.
Mattox V. United States, 146 U. S.
140, 36 L. ed. 917, 13 Sup. Ct. Rep. 50;
State V, Flaherty, 42 W. Va. 240, 24
S. E. 885; Western Coal & Min. Co. v.
Jones, 75 Aik, 76, 87 S. W. 440, 4 Bl.
Com. 350; 1 Co. Litt. 115b, 156b; 5
Bacon, Abr. Juries (E) I, 342; Reynolds
V. United States, 98 U. S. 145, 25 L. ed.
244; Allen v. United States, 52 C. C. A.
597, 115 Fed. 3; Capital Traction Co. v.
Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup.
Ct. Rep. 580; Curry v. State, 5 Neb.
414; Dauncey v. Berkeley, 3 Chitty,
Gen. Pr. 795; Hesketh v. Braddock, 3
Burr. 1847, 97 Eng. Reprint, 1130.
The law will presume prejudice in a
case where the court refused to sustain
defendant's challenge for cause, and de-
fendant waa compelled to use his per-
emptory challenges to exclude a juror
properly challenged for cause, where,
before the jury was sworn, the per-
emptory challenges were exhausted.
People v. Weil, 40 Cal. 268; Trenor
V. Central P. R. Co. 50 Cal. 222; Hub-
bar^ v. Rutledge, 57 Miss. 7; State v.
Brown, 15 Kan. 400, 2 Am. Crim. Rep.
423.
This for the very plfiin reason that
the act of the court in refusing to sus-
tain a challenge for cause, and thereby
compelling the defendant to use his
106
peremptory challenge to exclude a
juror, necessarily, by this conduct, de-
nies to defendant that peremptory chal-
lenge which the law allows as his abso-
lute right.
Boles V. State, 13 Smedes & M. 398;
Williams v. State, 32 Miss. 390, 66 Am.
Dec 615; Finn v. Stote, 5 Ind. 400;
Vah Blaricum v. People, 16 111. 364, 63
AuL Dec. 316.
The court, by refusing to sustain de-
fendant's challenges for cause, whieb
were well founded, deprived the defend-
ant of the right to the twenty challenges
allowed by the statute, and thereafter
denied him the right to the thirty-five
challenges allowed by the Constitution,
in which the common-law rule on this
subject is incorporated.
Lewis V. United States, 146 U. S. 376,
36 L. ed. 1014, 13 Sup. Ct. Rep. 136; 4
Bl. Com. p. 354.
It is error in a first-degree murder
case in a court of the United States to
sustain the challenge of the government
to a juror qualified under the law of the
state in which* the court sits to be a
juror in a first-d^;ree murder case for
the reasons (a) that § 275 of the Penal
Code requires that the qualifications of
jurors in the state courts shall deter-
mine their qualifications in the United
States courts, and (b) by virtue of §
330, the command of the law as to the
measure of punishment for such crime
is fulfilled by a verdict of guilty, with
the words '^without capital punishment"
added thereto.
St. Clair v. United States, 154 U. S.
147, 38 L. ed. 941, 14 Sup. Ct. Rep.
1002; State v. Lee, 91 Iowa, 499, 60
N. W. 119 ; State v. Garrington, 11- S.
D. 178, 76 X. W. 326 ; Borowitz v. State,
115 Miss. 47, 75 So. 763; State v. Doo-
ley, 89 Iowa, 584, 57 N. W. 414; People
v. Stewart, 7 Cal. 140; Atkins v. State,
16 Ark. 568.
Conscientious scruples against capi-
tal punishment are not a ground for
challenge by the state, where the jury
are given the option to substitute im-
prisonment for the death penalty.
State V. Lee, 91 Iowa, 499, 60 X. W.
119; State v. Garrington, 11 S. D. 178,
76 X. W. 326; Winston v. United States,
172 U. S. 310, 43 L. ed. 459, 19 Sup. Ct.
Rep. 212; State v. Ellis, 98 Ohio St.
21, 120 X. E. 218.
But a juror may be examined as to
his scruples as a basis for peremptoi7
challenge.
Hardy v. United States, 186 U. S.
228, 46 L. ed. 1139, 22 Sup. Ct. Rep.
251 C. S.
1!*1».
STROtiD V. UNITED STATES,
tiS9; State v. Dooley, 89 Iowa, 584, 57
N. W. 414.
The court erred in proceeding with
the trial, for the reason that it affirma-
liTely appears from the record that a
list of the jurors was not served on the
defendant two entire days before the
trial b^^, or at all, and the rule for
"ieearing an iii^;>artial jury prescribed
by the Statutes of William (7 Wm. UI.
chap. 3) and Anne (7 Ann. chap. 21) ,
and incorporated in the 6th Amendment,
and eategorically adopted bv U. S. Rev.
Stat. § 1033, Comp. Stat. § 1699, 2 Fed.
Stat. Anno. 2d ed. p. 688, was violated.
4 Bl. Com. 352; 4 Maeauley, Hist.
(£ng.) chap. 18; 3 Hallam, Const. Hist.
(Eng.) 160; Thompson v. Utah, 170 U.
S. 343, 42 L. ed. 1061, 18 Sup. Ct Rep.
620; 2 Watson, Const. 1485-1489; Hey-
don's Case, 3 Coke, 7b, 76 £ng. Reprint,
637; Callan v. Wilson, 127 U. S. 540,
549, 32 L. ed. 223, 226, 8 Sup. Ct Rep.
1301.
Because of the failure of the indict-
ment to categorically specify the degree
of murder charged in the language of
the statute, defendant's rights under the
6th Amendment, guaranteeing that he
be informed of the nature and cause of
all accusations, were violated.
1 Bishop, New Crim. Proc. § 618; Rex
V. Palmer, 1 Leach, C. L. 102; Com. v.
Simonds, 11 Gray, 306; Com. v. Peas,
2 Gratt. 629; 2 Bishop, New Crim. Law,
§ 726; State v. O'Shea, 59 Kan. 596, 53
Pac. 876; State v. Jennings, 24 Kan.
642; State v. Adams, 20 Kan. 311; State
V. Potter, 16 Kan. 80, 15 Kan. 302;
State V. Bowen, 16 Kan. 475; State v.
Heth, 60 Kan. 560, 57 Pac. 108; 2 Bish-
op, New Crim. Proc. §§ 591, 592, 595;
United States v. Cruikshank, 92 U. S.
557, 23 L. ed. 593;, United States v.
Howard, 3 Sunm. 12, Fed. Cas. No.
15,403.
The court erred in that, in its charge
to the jury, it limited the jury in its
considexation of the issue of self-de-
fense to the testimony of defendant's
witnesses alone, and prevented the jury
from considering all the facts and cir-
cumstances in the case on that issue, as
detailed in the evidence of the witness-
es for the government.
3 Hallam, Const. Hist. (Eng.) 162;
16 C. J. 775; Keith v. State, 50 Tex.
Crim. Rep. 63, 94 S. W. 1044.
The. trial court erred in refusing to
order the return, and in admitting in
evidence, over the objection and excep-
tion of the defendant, the letters de-
posited hy Stroud with officers of the
s:overtiment for transmission throusrh
64 L. ed.
the mails, because ''the law of the case''
I had been declared by this court.
I Headley v. ChalUss, 15 Kan. 602; 26
Am. & Eng. Enc. Law, 192, 193; Lease
V. Clark, 20 Cal. 387; Balch v. Haas,
20 C. C. A. 151, 36 U. S. App. 693,-73
Fed. 974; Davidson v. Dallas, 15 Cal*
75; Re Potts, 166 U. S. 263, 268, 41 lu
ed. 994, 996, 17 Sup. Ct. Rep. 520 ; Stew-
art V. Salmon, 97 U. S. 361, 24 L. ed.
1044; The Lady Pike (Pearce v. Ger-
mania Ins. Co.) 96 U. S. 461, 24 L. ed.
672; Re Sanford Fork & Tool Co. 160 U.
S. 247, 40 L. ed. 414, 16 Sup. Ct. Rep,
291 ; Wayne County v. Kennicott, 94 U. S.
499, 24 L. ed. 260; Skillem v. May, 6
Cranoh, 267, 3 L. ed. 220, 4 Cranch, 137,
2 L. ed. 574; Gains v. Rugg (Gaines v.
CaldweU) 148 U. S. 228, 37 U ed. 432,
13 Sup. Ct. Rep. 611; Hastings v. Fox-
worthy, 45 Neb. 676, 34 L.R.A. 321, 63
N. W. 955; Phelan v. San Francisco, 20
Cal. 40; Fitzpatrick v. Graham, 56 C. C-
A. 95, 119 Fed. 353; Sharon v. Hill, 11
Sawy. 290, 26 Fed. 337; Masterson v.
Howard, 18 Wall. 99, 21 L. ed. 764;
Ohio C. R. Co. V. Central Trust Co. 133
U. S. 83, 33 L. ed. 561, 10 Sup. Ct. Rep.
235.
The decision of the district court
denying defendant's petition for the re-
turn of his letters after it had taken
jurisdiction of the subject-matter set
forth in the petition, and found that
said letters had come into possession of
th^ government as the result of its own
unlawful act in unlawfully seizing them
and confiscating them by its warden, and
admitting the same in evidence, in vio-
lation of its own Constitution^ was re-
versible error.
Weeks v. United States, 232 U. S.
383, 58 L. ed. 652, L.R.A.1915B, 834, 34
Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1117;
United States v. Mounday, 208 Fed.
186; Boyd v. United States, 116 U. S.
616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524;
Underwood v. State, 13 Ga. App. 206,
78 S. E. 1103; Risher v. State, 94 Ga.
366, 47 Am. St. Rep. 175, 21 S. E. 593;
Whart. Crim. Ev. § 516, p. 1076; Ex
parte Jackson, 96 U. S. 727, 24 L. ed.
877; Bram v. United States, 168 U. S.
532, 42 L. ed. 568, 18 Sup. Ct. Rep. 183,
10 Am. Crim. Rep. 547; United States v,
Wilson, 163 Fed. 338; Rex v. Bamett,
3 Car. & P. 600; Rex v. Kinsey, 7 Car.
& P. 447; Tsuie Shee v. Backus, 156
C. C. A. 249, 243 Fed. 551; Wise v. '
Henkel, 220 U. S. 556, 55 L. ed, 581, 31
Sup. Ct. Rep. 599; United States v.
McHie, 194 Fed. 894; Lyman v. United
States, 145 C. C. A. 581, 241 Fed. 948;
United States v. Hee, 219 Fed. 1020;
107
/I
I
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
United States v. Abrams. 230 Fed. 315;
United States v. Friedberg, 233 Fed.
317; United States v. Jones, 230 Fed.
266; United States v. Lombardo, 228
Fed. 981; United States v. Mills, 185
Fed. 318; Flagg v. United States, 147
C. C. A. 367, 233 Fed. 481 ; People ex
rel. Ferguson v. Reardon, 197 N. Y. 236,
27 L.R.A.(N.S.) 141, 134 Am. St. Rep.
871, 90 N. E. 829; People v. Coombs,
36 App. Div. 284, 55 N. Y. Supp. 276;
Ehrich v. Root, 134 App. Div. 432, 119
X. Y. Supp. 395; Re Foster, 139 App.
Div.- 769, 124 N. Y. Supp. 667; People v.
Rosenheimer, 70 Misc. 433, 128 N. Y.
Supp. 1093; Weeks v. United States, 232
U. S. 383, 58 L. ed. 652, L.R.A.1915B,
834, 34 Sup. Ct. Rep. 341, Ann. Cas.
1915C, 1117; United States v. Wong
Quong Wong, 94 Fed. 832; Boyd v.
United States, 116 U. S. 616, 29 L, ed.
746, 6 Sup. Ct. Rep. 524; Greenl. Ev. §
219.
It was error to permit the jury to
carry the indictment containing the in-
dorsement '^penalty, death," for the rea-
son that the indorsement, together with
the attitude of the court and prose-
cutor, tended to influence the, jury to
vote for a verdict which would result
in capital punishment.
Ogden V. United States, 50 C. C. A.
380, 112 Fed. 523; Holmgren v. United
States, 217 U. S. 509, 54 L. ed. 861, 30
Sup. Ct. Rep. 588, 19 Ann. Cas. 778;
Mattox V. United States, 146 U. S. 140,
36 L. ed. 917, 13 Sup. Ct. Rep. 50.
The judgment imposed upon the de-
fendant included solitary confinement
from the date of sentence to the date of
execution. The solitary confinement
feature was not authorized by law, and
consequently the judgment is invalid and
must be reversed.
Re Medley, 134 U. S. 160, 33 L. ed.
835, 10 Sup. Ct. Rep. 384.
Assistant Attorney General Stewart
argued the cause, and, with Mr. W. C.
Herron, filed a brief for defendant in
error :
The alleged constitutional questions
are frivolous, and the writ of error
should be dismissed for lack of juris-
diction.
Berkman v. United States, 250 U. S.
114, 117, 63 L, ed. 877, 879, 39 Sup. Ct.
Rep. 411; Sugarman v. United States,
249 U. S. 182, 184, 63 L. ed. 550, 551,
39 Sup. Ct. Rep. 191; Beecham v. Unit-
ed States, 223 U. S. 708, 56 L. ed. 623,
32 Sup. Ct. Rep. 518.
Changes of venue are within the sound
discretion of the trial court, and will
108
not be reviewed on error except upon
clear showing of abuse of such discre-
tion.
Cook V. Burnley, 11 Wall. 659, 20 L.
ed. 29; Kennon v. Gilmor, 131 U. S. 22,
33 L. ed. 110, 9 Sup. Ct Rep. 696;
Brown v. United States, 168 C. C. A.
258, 257 Fed. 46.
If a challenge to the array beoanse of
alleged prejudice in the whole panel be
permissible at all in the Federal courts
(which is certainly doubtful), the mat-
ter is clearly within the sound discretion
of the trial court, and its action is not
reviewable on error except upon a clear
showing of abuse of such discretion.
No such showing is made in this record.
The court could lawfully permit the jury
to be present at the hearing of the mo-
tion for continuance (Holt v. United
States, 218 U. S. 245, 54 L. ed. 1021,
31 Sup. Ct. Rep. 2, 20 Ann. Cas. 1138),
and nothing occurred at such hearing
which can fairly be said to have preju-
diced them.
Where a case is reversed and re-
manded for a new trial on confession
of error by the state, there is no law of
the case further than this, viz., that the
defendant shall have a new trial. The
reasons for the confessions of error are
given above in the statement of this
case, and the errors confessed were
avoided on the retrial. This court
knows what it intended by its mandate,
and that the trial court obeved it.
Steinf eld v. • Zeckendorf , ^ 239 U. S.
26, 60 L. ed. 125, 36 Sup. Ct. Rep. 14.
Challenges for cause in a criminal case
in the Federal courts are not governed
by state law.
Lewis V. United States, 146 U. S. 370,
36 L. ed. 1011, 13 Sup. Ct. Rep. 136;
Pointer v. United States, 151 U. S. 396,
38 L. ed. 208, 14 Sup. Ct. Rep. 410:
St. Clair v. United States, 154 U. S.
134, 38 L. ed. 936, 14 Sup. Ct. Rep. 1002.
The overruling of a challenge for
cause to men who were not on the trial
jury did not deny the constitutional
right to an impartial jurv.
Hayes v. Missouri, 120 U. S. 68, 30
L. ed. 578, 7 Sup. Ct. Rep. 350; Hopt v.
Utah, 120 U. S. 430, 30 L. ed. 708, 7
Sup. Ct. Rep. 614.
The indictment duly charged the locus
as within the exclusive jurisdiction of
the United States, and the proof showed
it.
Jones V. United States, 137 U. S. 202,
34 L. ed. 691, 11 Sup. Ct. Rep. 80;
Benson v. United States, 146 U. S. 325,
36 L. ed. 991, 13 Sup. Ct. Rep. 60; Battle
V. United States, 209 U. S. 36, 52 L. ed.
251 IT. 8.
1M».
STROUD V. UNITED STATES.
16, 17
670, 28 Sup. Ct. Rep. 422; Holt v. Unit-,
ed States and Brown v. United States,
supra.
The mere fact that a defendant is
confined and in irons under an accusa-
tion of having committed a capital of*
fense does not render statements by him
iseompetent, if they were made volun-
tarily, and were not obtained by putting
the prisoner in fear, or by promises.
Sparf V. United States, 156 U. S. 61,
39 L. ed. 343, 15 Sup. Ct. Rep. 273, 10
Am. Crim. Rep. 168; Bram v. United
SUtes, 168 U. S. 532, 42 L. ed. 568, 18
Sup. Ct. Rep. 183, 10 Am. Crim. Rep.
547.
The indi<}tment may be taken into the
jury room.
Hohttgren v. United States, 217 U. 8.
509, 54 L. ed. 861, 30 Sup. Ct. Rep. 588,
19 Ann. Cas. 778.
The letters of defendant were proper-
ly admitted in evidence.
Johnson v. United States, 228 U. S.
457, 57 L. ^d. 919, 47 L.R.A.(N.S.) 263,
33 Sup. Ct. Rep. 572; Perlman v. Unit-
ed States, 247 U. S. 7, 62 L. ed. 950, 38
Sup. Ct. Rep. 417.
The defm:idant cannot now success-
fully contend that he has been placed in
jeopardy in either of the two former
trials. He procured the writ of error
in each case, upon which the judgments
against him were set aside and the case
remanded for proceedings de novo.
Trono v. United States, 199 U. S. 521,
50 L. ed. 292, 26 Sup. Ct. Rep. 121, 4
Ann. Cas. 773; United States v. Ball,
163 U. S. 662, 41 L. ed. 300, 16 Sup.
Ct. Rep. 1192.
The provision of U. S. Rev. Stat. §
1033, Comp. Stat. § 1699, 2 Fed. Stat.
Anno. 2d ed. p. 688, that when a person
is indicted for a capital offense, a list
of the jurors, etc., shall be delivered to
him at least two entire days before the
trial, is not applicable to veniremen
called upon special venire. The record
in this case does not disclose an objec-
tion on the part of the defendant to
proceeding with the trial until a list of
the names of the ten additional special
veniremen was served upon him. Nei-
ther does it appear in the record that the
defendant insisted upon such list. The
right secured to the defendant under §
1033 may be waived.
Logan V. United States, 144 U. S. 263,
36 L. ed. 429, 12 Sup. Ct. Rep. 617;
Hickory v. United States, 151 U. S.
303, 38 L. ed. 170, 14 Sup. Ct. Rep. 334;
Johnson v. United States, 225 U. S. 405,
66 L. ed. 1142, 32 Sup. Ct. Rep. 748;
«4 li. ed.
Goldsby v. United States, 160 U. S. 70,
40 L. ed. 343, 16 Sup. Ct. Rep. 216.
The section last referred to is not ap*
plicable to veniremen ealled upon spe*
eial venire for the purpose of complet-
ing the panel, where the same has been
ei^austed by chalfenge or excused ju-
rors.
Stewart v. United States, 127 G. C.
A. 477, 211 Fed. 4L
Mr. Justice Day delivered the opinion
of the court:
Robert F. Stroud was indicted for the
killing of Andrew Turner. The indict-
ment embraeed the elements constitnting
murder in the first degree. The homicide
took place in the United States prison at
Leavenworth, Kansas, where Stroud was
a prisoner and Turner a guard. The
record discloses that Stroud killed Tur-
ner by stabbing him with a knife which
he carried concealed on his person.
Stroud was convicted in May, 1916, of
murder in the first degree, and sentenced
to be hanged. Up<m confession of error
by the United States district attorney
the circuit court of appeals reversed this
judgment. Stroud was [17] again tried
at 'the May term, 1917, the jury in the
verdict rendered found Stroud ^guilty as
charged in the indictment without cap-
ital p^unishment.'' Upon writ of error
to this court the Solicitor General of the
United States confessed error, and the
judgment was reversed; the mandate
commanded: ''Such further proceedings
be had in said cause, in conformity with
the judgment of this court, as according
to right and justice, and the laws of
the United States, ought to be had, the
said writ of error notwithstanding." In
pursuance of this mandate the district
court issued an order vacating the for-
mer sentence, and ordered a new trial.
The trial was had, the jury found Stroud
guilty of murder in the first degree as
charged in the indictment, making no
reconmiendation dispensing with capital
punishment. Upon this verdict sentence
of death was pronounced. This writ of
error is prosecuted to reverse the judg-
ment.
The case is brought directly to this
court because of assignments of error
alleged to involve the construction and
application of the Constitution of the
United States. The argument has taken
a wide range. We shall dispose of such
assignments of error as we deem neces-
sary to consider in justice to the conten-
tions raised in behalf of the plaintiff in
error.
It is alleged that the last trial of the
io»
17-20
SUPREME COURT OF THE UNITED STATES.
Oct. Touc,
^se had the effect to put the plaintiff in
error twice in jeopardy for the same
offense, in violation of the 5th Amend-
ment to the Constitution of the United
States. From what has already been
said it is apparent that the indictment
was for murder in the first degree; a
single count thereof fully described that
offense. Each conviction was for the
offense charged. It is true that upon the
second trial the jury added "without
capital punishment'' to its verdict, and
sentence for life imprisonment was im-
posed. This recommendation was be-
cause of the right of the jury so to do
under § 330 of the Criminal Code (35
Stat, at L. 1152, chap. 321, Comp. Stat. §
10,504, 7 Fed, Stat. Anno. 2d ed. p. 983).
(18] This section permits the jury to
add to the verdict, where the accused is
found guilty of murder in the first de-
gree, "without capital punishment," in
which case the convicted person is to be
sentenced to imprisonment for life. The
fact that the jury may thus mitigate the
punishment to imprisonment for life did
not render the conviction less than one
for first-degree murder. Fitzpatrick v.
United States, 178 U. S. 304, 307, 44
li. ed. 1078, 1080, 20 Sup. Ct. Rep. 944
) Thie protection afforded by the Con-
stitution is against a second trial for the
same offense. Ex parte Lange, 18 WalL
163, 21 L. ed. 872; Kepner v. tJnited
Statfes, 195 U. S. 100, 49 L. ed. 114, 24
6np. €t. Rep. 797, 1 Ann. Cas. 655, and
eases cited in the opinion. Each convic-
tion was for murder as charged in the
indictment, which, as we have said, was
murder in the first degree. In the last
conviction the jury did not add the words
^'without capital punishment" to the
verdict, although the court in its charge
particularly called the attention of the
jury to this statutory provision. In such
case the court could do no less than in-
flict the death penalty. Moreover, the
conviction and sentence upon the former
trials were reversed upon writs of error
sued out by the plaintiff in error. The
only thing the appellate court could do
was to award a new trial on finding error
in the proceeding; thus the plaintiff in
error himself invoked the action of the
court which resulted in a further trial.
In such cases he is not placed in second
jeopardy within the meaning of the Con-
stitution. Trono v. United States, 199
V. 8. 521, 533, 50 L. ed. 292, 296, 26
Sup. Ct. Rep. 121, 4 Ann. Cas. 773.
It is insisted that the court erred in
not granting a change of venue. The
plaintiff in error made a motion in the
trial court, asking such an order. The
110
chief grounds for the application appear
to have been that the testimony for the
government in the former trials had been
printed and commented upon by the local
press; that the evidence published was
only such as the government had intro-
duced, and its wide circulation by the
medium of the press created prejudice
in the minds of the inhabitants of Leav-
enworth [19] county against him, and
that this prejudice existed to such an
extent that the jury impaneled to try
the case, t<hough not inhabitants of
Leavenworth county, were infiuenoed
more or less by the prejudice existing in
that county against him; that at defend-
ant's last trial the government, by issu-
ing pardons to p isoners who claimed
to have witnessed the homicide, produced
only such witnesses as tended to sup-
port its theory of the guilt of the defend-
ant of the crime of first-degree murder,
and that at the same time the govern-
ment invoked the rule that prisoners in
the penitentiary who witnessed the homi-
cide, being still prisoners under convic-
tion and serving terms of more than one
year, were not qualified witnesses on be-
half of the defendant; that the cause
was set for trial at a special term of the
court beginning on May 20, 1918, and
on said date the defendant's counsel were
engaged in the state of Missouri in the
trial of a cause; that the attorneys ad-
vised the judge of their inability to be
present during the week the case was set
for trial ; that an affidavit, setting forth
the above facts, was filed with the court,
praying it not to enter upon the trial;
that the counsel for the government sub-
mitted an affidavit in which it was stated
that counsel for the defendant, Stroud,
stated their wish and desire to escape
further responsibility for the conduct of
the defense, and expressed their hope
that something would occur to make it
unnecessary to appear longer in this
cause in Stroi^d's behalf, and proposed
that the government consent that the de-
fendant plead guilty to the charge of
second-degree murder, with the under-
standing that as a result thereof the
court might sentence the defendant to
prison for the remainder of his life;
that said statement and affidavit were
read in the presence and hearing of the
special panel of prospective jurors in
open court, said jurors being among
those before whom the government pro-
posed to put the defendant upon trial for
murder; that at the close of the reading
of the affidavit in the presence of the
prospective [20] jurors, the district
SSI V. 6.
191d.
STJROUD V. UNITED STATEb.
20-22
jndge stated from the bench that^ in view
of the statements set forth in the affi-
davit, he was compelled to feel that
«ransel had acted unprofessionally by
not being there in court, at least one of
them; that said facts were commented
upon by the public press of Leavenworth
county, and created prejudice against
defendant and his attorneys; that de-
fendant never authorized any person or
attorney to make any such proposal to
attorneys for the government, concern-
ing a plea of guilty, for the reason that
the defendant was not guilty of the
charge contained in the indictment, or
of murder in any degree, and that un-
less the jurors who had theretofore at-
tended the court during the week of May
20, 1918, were discharged by order of
the court, the defendant could not enjoy
the right of a public trial by an impartial
jury secured to him by the Constitution,
and prayed an order transferring tie
ease to another diviaiim of the district.
The court overruled the motion except
in so far as it asked for an exclusion
of inhabitants of Leave;iworth county as
jurors; to that extent it was sustained.
The motion to quash the panel, called to
act as jurors, was made on like grounds,
and was also overruled.
The division in which Leavenworth
countv is situated consists of fifty coun-
ties, and, after hearing these applica-
tions, the district court excluded persons
from the jury who were residents of
Leavenworth county, and refused to
quash the panel upon the grounds al-
leged. Matters of this sort are addressed
to the discretion of the trial judge, and
we find nothing in the record to amount
to abuse of discretion such as would au«
thorize an appellate court to interfere
with the judgment. Kennon v. Gilmer,
131 U. S. 22, 24, 33 L, ed. 110, 111, 9
Sup. Ct Rep. 696.
Certain jurors were challenged for
cause upon the ground that they were
in favor of nothing less than capital pun-
ishment in cases of conviction for mur-
der in the first degree. It may well be
that as to one of these jurors, one [21]
Williamson, the challenge should have
been sustained. This juror was peremp-
torily challenged by the accused, and did
not nt upon the jury. The statute, in
cases of this character, allowed the ac-
cused twenty peremptory challenges; it
appears that he was in fact allowed twen-
ty-two peremptory challenges. Thus his
right to exercise peremptory challenges
•4 Ia. ed.
was not abridged to his prejudice by an
erroneous ruling as to the challenge for
cause. In view of th^s fact, and since
there is nothing in the record to show
that any juror who sat upon the trial
was in fact objectionable, we are unable
to discover anything which requires a re-
versal upon this ground. See Hayes v.
Missouri, 12b U. S. 68, 71, 30 L. ed. 578,
580, 7 Sup. Ct Rep. 350; Hopt v. Utah,
120 U. S. 430, 30 L. ed. 708, 7 Sup. Ct.
Rep. 614; Spies v. Illinois, 123 U. S.
131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21, •22;
Holt V. United States, 218 U. S. 245, 248,
54 L. ed. 1021, 1028, 31 Sup. Ct. Rep.
2, 20 Ann. Cas. 1138.
Certain letters were offered in evi-
dence at the trial containing expressions
tending to establish the guilt of the ac-
cused. These letters were written by him
after the homicide and while he was an
inmate of the penitentiaty at Leaven-
worth. They were voluntarily written,
and under the practice apd discipline of
the prison were turned over ultimately
to the warden, who furnished t^em to
the district attorney. It appears that at
the former trial, as well as the one which
resulted in the conviction now under con-
sideration, application was made for a
return of these letters upon the ground
that their seizure and use brought them
within principles laid down in Weeks v.
United States, 232 U. S. 383, 58 L. ed.
652, L.R.A.1915B, 834, 34 Sup. Ct. Rep.
341, Ann. Cas. 1915C, 1117, and kindred
eases. But we are unable to discover
any application of the principles laid
down in those cases to the facts now be-
fore us. In this instance the letters were
voluntarily written, no threat or coercion
was used to obtain them, nor were they
seized without process. They came into
the possession of the officials of the peni-
tentiary under established practice,
reasonably designed to promote the disci-
pline of the institution. Under such cir-
cumstances there "was neither [22] tes-
timony required of the accused, nor un-
reasonable search and seizure in viola-
tion of his constitutional rights.
Other objections are raised in the
elaborate brief filed in behalf of the
plaintiff in error. We do not find it
necessary to discuss them. In view of the
gravity of the case they have been ex-
amined and considered with care, and
we are unable to find that any error was
committed to the prejudice of the ac-
cused.
Affirmed.
Ill
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbii,
1^
PACIFIC GAS & ELECTRIC COMPANY,
Plff. in Err..
V.
POLICE COURT OF THE CITY OF SAC-
RAMENTO, CALIFORNIA, et aL
(See S. C. Reporter's ed. 22-26.)
Krror to state court — when judi^ment
is that of highest court.
1. A judgment of a California district
court of appeal refusing certiorari to an in-
ferior court is the judgment of the state
court of last resort having power to con-
sider the case so far as the appellate juris-
diction of the Federal Supreme Court is
concerned, where such appellate court as-
sumed jurisdiction of the cause, and the su-
preme court of the state refused, for want
of jurisdiction, to review the judgment, al-
though the district court of appeal may
have erred in assuming jurisdiction, since
this is purely a question of state law.
[For other cases, see Appeal and Error, 1147-
1167. In Digest Sap. Ct. 1908.]
Constitutional law — impairing con*
tract obligations — street railway
franchise — added burden *- street
sprinkling — police power.
2. The obligation of the contract right
which a street railway company has imder
its franchises to operate its railway in the
streets of a municipality is not impaired by
an ordinance enacted in the exercise of the
police power, requiring the street railway
company to sprinkle the surface of the
streets occupiea by its railway between the
rails and tracks, and for a sufficient dis-
tance beyond the outer rails, so as effectu-
ally to lay the dust and prevent the same
from arising when the cars are in operation.
[For other cases, see C^nRtltutlonal Law. 1435-
1439, In Digest Rup. Ct. 190S.)
Constitutional law — police power —
street railway operation — street
sprinkling.
3. The police power of a state extends
to requiring street railway companies to
sprinkle the surface of tlie streets occupied
b^ their railways between the rails and
tracks, and for a sufficient distance beyond
the outer rails so as effectually to lay the
dust and prevent the same from arising
when the cars are in operation.
[For other cases, see Constitutional Law. IV.
c. 2. In Digest Sap. Ct. 190S.1
Constitutional law — due process of law
^ street railway operation — street
sprinkling.
4. A street railway company may, con-
sistmitly with due process of law. be re-
quired by municipal ordinance to sprinkle
the surface of the streets occupied by its
tracks between the rails and tracks, and for
a sufficient distance beyond the outer rails,
so as effectually to lay the dust and prevent
the same from arising when the cars are
in operation.
[For other cases, see Constitutional Law, IV.
b. 4. in Digest Sup. Ct. 1908.1
Constitutional law — equal protection
of the; laws — classification — street
railway operation — street sprink-
ling.
. 5. The equal protection of the laws i»
not denied to a street railway company by
a municipal ordinance under which it is re-
quired to sprinkle the surface of the streets
occupied by its railway between the rails
and tracks, and for a sufficient distance
beyond the outer rails, so as effectuallv to
lay the dust and prevent the same from
arising when the cars are in operation.
[For other csRes. see Constitutional Law. IV.
a, 3, b, in Digest Sup. Ct. 1908.1
[No. 31.]
Submitted October 9, 1919. Decided Dcoom-
ber 8, 1919.
IN ERROR to the District Court of Ap-
peal for the Third Appellate District
of the State of California to review a
judgment refusing to grant a writ of
certiorari to review a judgment of the
Note. — On the general subject of
writs of error from the United States
Supreme Court to state courts — see
notes to Martin v. Hunter, 4 L. ed. U.
S. 817; Hamblin v. Western Land Co.
37 L. ed. U. S. 267; Re Buchanan, 39
L. ed. U. S. 884: and Kipley v. Illinois,
42 L. ed. U. S. 998.
As to when writ of error may run to
inferior state court — see note to Ken-
tucky V. Powers, 50 L. ed. U. S. 633.
On error to state courts in cases pre-
senting questions of impairment of con-
tract obligations — see note to Osborne v.
Clark, 51 L. ed. U. S. 619.
Generally, as to what laws are void as
impairing obligation of contracts — see
notes to Franklin County Grammar
School V. Bailey, 10 L.R.A. 405; Bullard
V. Northern P. R. Co. 11 L.R.A. 246;
Henderson v. Soldiers & S. Monument,
13 L.R.A. 169; and Fletcher v. Peck, 3
L. ed. U. S. 162.
For a discussion of police power, gen-
erally— see notes to State v. Marshall,
1 L,R.A. 51; Re Gannon. 5 L.R.A. 359;
State V. Schlemmer, 10 L.R.A. 135; Ul-
man r. Baltimore, 11 L.R.A. 224: Elec-
tric Improv. Co. v. San Francisco, 13
L.R.A. 131 ; and Barbier v. Connolly, 28
L. ed. U. S. 923.
As to power to compel street railway
to sprinkle tracks — see note to St. Paul
V. St. Paul City R. Co. 36 L.R.A.(N.S.)
235.
On privilege of using street as a con-
tract within the constitutional provision
against impairing the obligation of con-
tracts— see notes to Clarksburg Electrio
Light Co. V. Claitsbui^, 50 L,R.A. 142,
and Russell y. Sebastian. LJt.A.1918E,
892.
t81 IT. 6.
1919.
PACIFIC GAS & K. CO. v. PUUCK COUKT.
Superior Court for the County of Sacra-
mento, in that state, convicting a street
railway company of violating a street
sprinkling ordinance. Affirmed.
See same case below^ 28 Cai. App. 412,
152 Pac. 928.
The facts are stated in the opinion.
Mr. William B. Bosley submitted the
oause for plaintiff in error:
The judgment of the district court of
app»eal which plaintiff in error seeks to
have reviewed on this writ of error is a
final judgment of the highest court of
the state of California in which a deci-
sion in such case could be had, and is a
decision in favor of the validity of
a statute of the state of California, the
validity of which was drawn in question
in the district court of appeal on the
ground that it was repugnant to the
Constitution of the United States.
Therefore, under and by virtue of the
Constitution of the United States and
§ 237 of the Judicial Code, and on the
authority of the decisions of this court
in Chicago, B. & Q. R. Co. v. Illinois,
200 r. S. 561, 580, 50 L. ed. 596, 604,
26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175 ;
Western Turf Asso. v. Greenberg, 204
U. S. 359, 362, 51 L. ed. 520, 522, 27
Sup. Ct. Rep. 384; New Orleans Water-
works Co. V. Louisiana Sugar Ref. Co.
125 U. S. 18, 31, 31 L. ed. 607, 612, 8 Sup.
Ct. Rep. 741, this court has jurisdiction
to re-examine and reverse or affirm said
judgment on this writ of error which
was sued out by the plaintiff in error
withift the time allowed therefor by law.
The i)ower of the several states of the
Union, and their municipal corporations
and political subdivisions, to levy and
collect special or local assessments, is
founded upon and limited by the exist-
ouee of a si>ecial compensating benefit
resulting to the owner of property bene-
fited by the construction of some public
improvement, to pay for which the as-
sessment is levied.
Spring Street Co. v. Los Angeles, 170
Cal. 28, L.R.A.1918E, 197, 148 Pac. 217;
. Xorwood V. Baker, 172 U. S. 269, 278,
43 L. ed. 443, 447, 19 Sup. Ct. Rep. 187;
Martin v. District of Columbia, 205 U. S.
135, 51 L. ed. 743, 27 Sup. Ct. Rep.
440; Myles Salt Co. v. Iberia & St. M.
Drainage Dist. 239 U. S. 478, 60 L. ed.
302, L.R.A.1918E,.190, 36 Sup. a. Rep.
204; New York L. Ins. Co. v. Prest, 71
Fed. 815.
Any taking of private property for
public use without compensation is a
deprivation of property without due
process of law.
•4 li. ed.
8
Chicago, B. & Q. E. Co. v. Chicago, 166
U. 8. 226, 238, 41 L. ed. 979, 985, 17 Sup.
Ct. Rep. 581.
Imposing upon those who own or oper-
ate railways in the streets of Sacra-
mento the burden and expense of
sprinkling a great part of such streets,
while no corresponding burden is laid on
the owners of such abutting property,
denies to plaintiff in error and others
who own and operate street railways in
Sacramento the equal protection of the
laws, in violation of the 14th Amend-
ment tq the Constitution of the United
States.
State V. Jackman, 69 N. H. 318, 42
L.R.A. 438, 41 Atl. 347, 11 Am. Crim.
Rep. 607.
The ordinance in question is not a
constitutional exercise of a right or pow-
er included in the police power.
License Cases, 5 How. 504, 583, 12
L. ed. 256, 291 ; Lake Shore & M. S. R.
Co. V. Smith, 173 U. S. 684, 688, 43 L.
ed. 858, 860, 19 Sup. Ct. Rep. 565; Chi-
cago, B. & Q. R. Co. V. Illinois, 200 U. S.
561, 592, 600, 50 L. ed. 596, 609, 612, 26
Sup. Ct. Rep. 341, 4 Ann. Cas. 1175;
Grand Trunk Western R. Co. v. South
Bend, 227 U. S. 544, 57 L. ed. 633, 44
L.R.A.(N.S.) 405, 33 Sup. Ct. Rep. 303;
Northern P. R. Co. v. North Dakota, 236
U. S. 585, 595, 598, 59 L. ed. 736, 741,
742, L.R.A.1917F, 1148, P.U.R.1915C,
277, 35 Sup. Ct. Rep. 429, Ann. Cas.
1916A, 1; Chicago, M. & St. P. R. Co.
V. Wisconsin, 238 U. S. 491, 499, 501, 59
L. ed. 1423, 1429, 1430, L.R.A.1916A,
1133, P.U.R.1915D, 706, 35 Sup. Ct. Rep.
869; Atchison, T. & S. F. R. Co. v. Vos-
burg, 238 U. S. 56, 58, 59 L. ed. 1199,
1200, L.R.A.1915E, 953, 35 Sup. Ct. Rep.
675 ; Minnesota v. Barber, 136 U. S. 313,
319, 320, 34 L. ed. 455, 457, 458, 3 Inters.
Com. Rep. 185, 10 Sup. Ct. Rep. 862;
Buchanan v. Warley, 245 U. S. 60, 74,
62 L. ed. 149, 160, L.R.A.1918C, 210, 38
Sup. Ct. Rep. 16, Ann. Cas. 1918C, 1201.
It cannot be doubted that to compel
a corporation to pay out its own money
in performing a service to the public is
to take its property for public use; nor
that the 14th Amendment to the Con-
stitution of the United States prohibits
the states from taking private property
for public use without just compensa-
tion.
Smyth V. Ames, 169 U. S. 466, 522, 42
L. ed. 819, 840, 18 Sup. Ct. Rep. 418;
Northern P. R. Co. v. North Dakota,
236 U. S. 585, 69 L. ed. 735, L.R.A J.917F,
1148, P.U.R.1915C, 277, 35 Sup. Ct. Rep.
429, Ann. Cas. 1916A, 1; Chicago, B. &
Q. R. Co. V. Illinois, 200 U. S. 561, 592,
. 118
SUPREME COURT OF THE UNITED STATES.
Oci'. Term,
593, 50 L. ed. 596, 609, 610^ 26 Sup. Ct.
Rep. 341, 4 Ann. Cas. 1175; Chicago, B.
& Q. R. Co. V. Chicago, 166 U. S. 226,
235, 41 L. ed. 979, 984, 17 Sup. Ct. Rep.
581.
This case clearly comes within the
rule declared by this court in Atchison,
T. & S. F. R. Co. V. Vosburg, 238 U. S.
56, 59, 59 L. ed. 1199, 1200, LJI.A.1915E,
953, 35 Sup. Ct. Rep. 675, that the con-
stitutional guaranty, i. e., the equal pro-
tection clause of the 14th Amendment,
entitles all persons and corporations
within the jurisdiction of the gtate to
the protection of equal laws, including
laws enacted as police regulations.
State V. Jackman, 69 N. H. 318, 42
L.R.A. 438, 41 Atl. 347, 11 Am. Crim.
Rep. 607 ; Wilson v. United Traction Co.
72 App. Div. 233, 76 N. Y. Supp. 203.
The i>olice i)ower, when used in its
broadest sense, is simply the power of
government residing in every sovereign
state; i. e., the power to create, define,
and limit the political or legal rights and
duties of human beings living in an or-
ganized civil society or state, and to
control and regulate the conduct of such
human beings in the exercise and enjoy-
ment of their rights and the perform-
ance of their duties. So defined, the
police power embraces the power of
eminent domain, the power to coin mon-
ey, the i)ower to levy and collect taxes,
the power to make war, the power to
provide for the common defense, the
power to regulate conmierce, the. power
to create courts and to provide for the
adjudication of controversies, and all of
the other powers which, by reason of
their having been the subject of special
legislation from time immemorial, or by
reason of their having been made the
subject of special grants or limitations
and restrictions in the Federal and state
Constitutions, have come to be classified
and given distinctive names by courts
and the authors of legal treatises, and
also embraces the great unclassified re-
siduum of governmental power, inherent
in the legal conception of sovereignty.
License Cases, 5 How. 504, 5S3^ 12
L. ed. 256, 291; Lake Shore & M. S. R.
Co. V. Smith, 173 U. S. 684, 688, 43 L.
ed. 858, 860, 19 Sup. Ct. Rep. 565; New
York V. Miln, 11 Pet. 102, 139, 9 L. ed.
648, 662.
The term "police power" is perhaps
more frequently used in a narrower sense
as embracing the power to make and
enforce laws the object of which is so
to control and regulate the conduct of
human beings that they, in the exercise
and enjoyment of their constitutional
114
and legal rights with respect to life,
liberty, and property, and in the per-
formanise of their constitutional and
legal duties, shall avqjid doing injury and
causing damage to others.
Munn V. Illinois, 94 U. S. 113, 24 L.
ed. 77; Richmond, F. & P. R. Co. t-.
Richmond, 96 U. S. 521, 528, 24 L. ed.
734, 736.
Once it is determined that the statute
whose validity is in 'question is not a
legitimate exercise of the police power
as last above defined, but, on the con-
trary, will, by its necessary operation,
if enforced, be destructive of rights
granted or seciired by the Constitution
of the United States, this court does not
hesitate to declare it void for repug-
nancy to that Constitution.
Buchanan v. Warley, 245 U. S. 60, 62
ii. ed. 149, L.R.A.1918C, 210, 38 Sup.
Ct. Rep. 16, Ann. Cas. 1918C, 1201.
On the other hand, if it is determined
that the statute whose validity is drawn
in question is a legitimate and reason-
able exercise of the police power as so
defined, that is to say, a statute the
natural and necessary effect of the en-
forcement of which will be simply to
compel those coming within its operation
to exercise their own rights under the
Constitution and laws of the land in
such manner as to avoid injury to other
individuals and detriment to the public,
then the fact that enforcement of the
law involves some restriction of the in-
dividual's freedom of conduct, or some
limitation upon his use and enjoyment of
his property, or will subject him to sub-
stantial expense by compelling altera-
tions in structures or the installation of
safeguards, or will subject him to loss
by prohibiting him from continuing to
conduct, by means of his property, some
special kind of business deemed inimical
to the public welfare, e. g., the manu-
facture and sale of alcoholic liquors,
will not be deemed by this court to be a
sufficient ground for holding such stat-
ute repugnant to the 14th Amendment
to the Constitution of the United States.
New York & N. E. R. Co. v. Bristol/
151 U. S. 556, 38 L. ed. 269, 14 Sup.
Ct. Rep. 437; Minneapolis & St. L. R. Co.
V. Emmons, 149 U. S. 364, 37 L. ed. 769,
13 Sup. Ct. Rep. 870; Chicago, B. A Q.
R. Co. V. Nebraska, 170 U. S. 57, 42 L.
ed. 948, 18 Sup. Ct. Rep. 513; Mugler v.
Kansas, 123 U. S. 623, 31 L. ed. 205, 8
Sup. Ct. Rep. 273; Missouri P. R. Co.
V. Omaha, 235 U. S. 121, 69 L. ed. 157,
35 Sup. Ct. Rep. 82.
The cases involving the constitutional-
ity of statutes enacted in the exefcise
161 U. 5.
1»10.
PACIFIC GAS & E. CO. V. POLICE COURT.
of the police power, as so defined, may
conveniently be divided into three class-
es, as follows, viz.: (1) Cases involving
statutes whose constitutionality is drawn
in question upon the ground that the di-
rect object of their enactment and en-
forcement, whatever may have been the
motive of the legislature in enacting
them, or the indirect results intended to
be accomplished by them, is one whose
accomplishment is prohibited by the Con-
stitution of the United States. To this
class belongs the case of Buchanan v.
Warley, 245 U. S. 60, 62 L. ed. 149,
L.R.A.1918C, 210, 38 Sup. Ct. Rep. 16,
Ann. Cas. 1918C, 1201.
(2) Cases involving statutes whose
constitutionality is drawn in question
upon the ground that, even though the
object sought to be accomplished by
their enactment and CAforcement is
legitimate and meritorious, and even
though the means provided for the ac-
complishment of such objects do not in
principle come within any express pro-
hibition of the Constitution of the Unit-
ed States, nevertheless they impose re-
strictions and burdens upon individuals
in the exercise and enjoyment of their
liberty, or in respect to their use and
enjoyment of property, so unreasonable
and oppressive as to be tantamount to a
deprivation of liberty or property with-
out due process of law. To this class
belong the case of Missouri P. R. Co. v.
Omaha, 235 U. S. 121, 59 L. ed. 157, 35
Sup. Ct. Rep. .82, and the other cases
referred to above. In this class of cases
the constitutionality of the statute is
generally sustained, though in extreme
cases such a statute, or an administra-
tive order made pursuant thereto, may
be declared void.
See Washington ex rel. Oregon R. &
Nav. Co. V. Fairchild, 224 U. S. 610, 56
L. ed. 863, 32 Sup. Ct. Rep. 535.
Cases involving statutes whose con-
stitutionality is drawn in question on
the ground that, however legitimate and
proper may be the ultimate object sought
to be accomplished by their enactment
and enforcement, the means employed
to accomplish that object involve the
taking of property from the owner for
the private use of another, or the taking
of private property for public use with-
out just compensation, or a denial of
the equal protection of the laws, or an
infringement of some other right secured
by the Constitution of the United States.
This class includes such cases as Min-
nesota V. Barber, 136 U. S. 313, 34 L.
ed. 466, 3 Inters. Com. Rep. 185, 10 Sup.
Ct. Rep. 862; Missouri P. R. Co. v. Ne-
«4 L. ed.
braska, 164 U. S. 403, 41 L. ed. 489, 17
Sup. Ct. Rep. 130; Missouri P. R. Co. v.
Nebraska, 217 U. S. 196, 54 L. ed. 727,
30 Sup. Ct. Rep. 461, 18 Ann. Cas. 989 ;
Great Northern R. Co. v. Minnesota,
238 U. S. 340, 59 L. ed. 1337, P.U.R.
1915D, 701, 35 Sup. Ct. Rep. 753; Chi-
cago, M. & St. P. R. Co. V. Wisconsin,
238 U. S. 491, 59 L. ed. 1423, L.R.A.
1916A, 1133, P.U.R.1915D, 706, 35 Sup.
Ct. Rep. 869.
Mr. Edward M. Cleary submitted the
cause for defendants in error. Messrs.
Archibald Yell and Hugh B. Bradford
were on the brief:
Municipalities have the rigl^t to ex-
ercise police power within their terri-
torial limits.
Aldred's Case, 9 Coke, 59, 77 Eng. Re-
print, 821; Pond, Public Utilities, § 93;
Richmond, F, & P. R. Co. v. Richmond,
96 U. S. 521, 24 L. ed. 734; Re Mont-
gomerv, 163 Cal. 457, 125 Pac. 1070,
Ann. fcas. 1914A, 130; Elliott, Roads &
Streets, §§ 84, 85; Re Junqua, 10 Cal.
App. 602, 103 Pac. 159.
For a discussion of police power see —
New York & N. E. R. Co. v. Bristol, 151
U. S. 556, 567, 38 L. ed. 269, 272, 14
Sup. Ct; Rep. 437; Boston Beer Co. v.
Massachusetts, 97 U. S. 25, 24 L. ed.
989; Northwestern Fertilizing Co. v.
Hyde Park, 97 U. S. 659, 24 L. ed. 1036:
Barbier v. Connolly, 113 U. S. 27, 28
L. ed. 923, 5 Sup. Ct. Rep. 357; New
Orleans Gaslight Co. v. Louisiana Light
& H. P. & Mfg. Co. 115 U. S. 650, 29
L. ed. 516, 6 Sup. Ct.-Rep. 252; Mugler
V. Kansas, 123 U. S. 623, 31 L. ed. 205,
8 Sup. Ct. Rep. 273 : Budd v. New York,
143 U. S. 517, 36 L ed. 247, 4 Inters.
Com. Rep. 45, 12 Sup. Ct. Rep. 468;
Minneapolis & St. L. R. Co. v. Emmons,
149 U. S. 364, 367, 37 L. ed. 769, 771, 13
Sup. Ct. Rep. 870; Southern P. Co. v.
Portland, 177 Fed. 958; Collins v. Lean,
68 CaL 284, 9 Pac. 173; Baltimore v.
Baltimore Trust & G. Co. 166 U. S.
673, 41 L. ed. 1160, 17 Sup. Ct. Rep.
696 ; Chicago, B. & Q. R. Co. v. Nebraska.
170 U. S. 68, 42 L. ed. 952, 18 Sup. Ct.
Rep. 513.
The city cannot devest itself of the
police powder.
Tacoma v. Boutelle, 61 Wash. 434, 112
Pac. 665; Coatesville v. Coatesville Elec-
tric Light, Heat & P. Co. 32 Pa. Super.
Ct. 513; Elliott, Railroads, § 1082;
Joyce, Franchises, § 366; Abbott, Mun.
Corp. § 854; St. Louis & S. F. R. Co. v.
Mathews, 165 U. S. 1, 41 L. ed. 611, 17
Sup. €t. Rep. 243; McQuillin, Mun. Corp.
§ 473; San eTose v. San Jose & S. C. R.
115
23, 24
SUPREMt: COUBT OF THE UNITED STATES.
Oct. Tsbh,
Co. 53 Cal. 475; Re Ackerman, 6 Cal.
App. 9, 91 Pac. 429; Plumas County v.
Wheeler, 149 Cal. 762, 87 Pac. 909; Ex
parte Whitwell, 98 Cal. 73, 19 L.R.A.
727, 35 Am. St. Rep. 152, 32 Pac. 870;
Cincinnati, I. & W. R. Co. v. Conners-
ville, 170 Ind. 316, 83 N. E. 503; Chicago,
St P. M. & 0. R. Co. V. Douglas County,
134 Wis. 197, 14 L.R.A.(X.S.) 1074, 114
X. W. 511; Chicago v. Chicago Union
Traction Co. 199 111. 259, 59 L.R.A. 666,
65 N. E. 243; Wabash R. Co. v. Defiance,
167 U. S. 88, 42 L. ed. 87, 17 Sup. Ct.
Rep. 748; German Ins. Co. v. Com. 141
Ky. 606, 133 S. W. 793.
The constitutionality or legality of a
statute or ordinance is presumed until
it has been overthrown by the argu-
ments opposed.
Re Thomas, 10 Cal. App. 375, 102
Pac. 19; Re Flaherty, 105 Cal. 558, 27
L.R.A. 529, 38 Pac. 981; People v. Zim-
merman, 11 Cal. App. 115, 104 Pac. 590;
People ex rel. Morgan v. Hayne, 83
Cal. Ill, 7 L.R.A. 348, 17 Am. St. Rep.
211, 23 Pac. 1; Tucker v. Bamum, 144
Cal. 271, 77 Pac. 919; Re San Chung, 11
Cal. App. 517, 105 Pac. 609.
The question of whether the ordinance
is reasonable or not, and therefore a
proper exercise of the police power, is
one for the court to decide.
Merced County v. Fleming, 111 Cal.
51, 43 Pac. 392.
Ordinances requiring the street rail-
ways to sprinkle their roadbeds so as to
keep down the dust have generally been
approved by the court and by the text-
writers.
Elliott, Railroads, § 1082; Tiedeman,
Pol. Power, § 194; Dill. Mun. Corp. 5th
ed. § 1276; Elliott, Roads & Streets, §
958; Toledo, P. & W. R. Co. v. Chenoa,
43 HI. 209; Robertson v. Wabash, St. L.
& P. R. Co. 84 Mo. 119 ; Gahagan v. Bos-
ton & L. R. Co. 1 Allen, 187, 79 Am. Dec
724; Chicago v. Chicago Union Traction
Co. 19l9 111. 259, 59 L.R.A. 666, 65 N. E.
243; Merz v. Missouri P. R. Co. 14 Mo.
App. 459; Whitson v. Franklin. 34 Ind.
302; Nellis, Street Railways, § 157; Mc-
Quillin, Mun. Corp. § 3774; 2 Wilcox,
Municipal Franchises, 691; State ex rel.
Milwaukee v. Milwaukee Electric R. &
Light Co. 144 Wis. 386, 140 Am. St.
Rep. 1025, 129 N. W. 623: City & Subur-
ban R. Co. v. Savannah, 77 Ga. 731, 4
Am. St. Rep. 106; State v. Canal & C. R.
Co. 50 La. Ann. 1189, 56 L.R.A. 287, 24
So. 265; Chester v. Chester Traction Co.
5 Pa. Dist. R. 609, 4 Pa. Super. Ct. 575 ;
St. Paul V. Haugbro, 93 Minn. 59, 66
LR.A. 441, 106 Am. St. Rep. 427, 100 N.
W. 470, 2 Ann. Cas. 580; St. Paul v.
116
St. Paul Citv R. Co. 114 Minn. 250, 36
L.R.A.(N.S.)^235, 130 N. W. 1108, Ann.
Cas. 1912B, 1136; Pittsburgh & B. Pass.
R. Co. V. Birmingham, 51 Pa. 41; Balti-
more V. Baltimore Trust & G. Co. 166 U.
S. 673, 41 L. ed. 1160, 17 Sup. Ct, R^.
696.
Dust is a menace to health.
Ex parte Lacev, 108 Cal. 328, 38 LR.A.
640, 49 Am. St. Rep. 93, 41 Pac. 411.
Mr. Chief Justice White delivered the
opinion of the court :
By ordinance the city of Sacramento
made it the duty of "every person, firm
or corporation owning, controlling or op-
erating any street railroad, suburban
railroad, or interurban railroad upon
and along any of the streets of the city
of Sacramento shall, without cost to the
city during the months of June, July,
August, September and October of each
year, and at such other times as may be
necessary to keep the dust laid, sprinkle
with water the surface of the street,
occupied by such railroad, between the
rails and tracks and for a 'sufficient dis-
tance beyond the outermost rails there-
of, so as to effectually lay the dust and
prevent the same from arising when the
cars are in operation."
The Gas Company, plaintiff in error,
operated lines of street railway in Sacra-
mento imder franchise granted by the
city. It refused to obey the ordinance
and was prosecuted in the city police
court, and there asserted that the ordi-
nance was in conflict * with the due
process" and equal protection of the laws
clauses of the 14th Amendment to the
Constitution of the United States.
From a sentence imposing upon it a
money penalty, it appealed to the su-
perior court for the county of Sacra-
mento, and from the judgment of that
court, confirming [24] the conviction, it
prosecuted an appeal to the supreme
court of the state, which court refused
to review the case, on the ground that
it was without jurisdiction. Thereupon
the company, alleging the illegality of
the conviction upon various grounds,
among others, that the ordinance was
repugnant to the 14th Amendment, peti-
tioned the district court of appeal for the
third appellate district for a writ of cer-
tiorari requiring the superior court to
send up the record for review. The peti-
tion was demurred to as stating no cause
of action and on the further ground that
it disclosed no jurisdiction in the court
I to review. Although it expressed doubt
I on the subject, the court took jurisdic-
* tion, reviewed the conviction, held that
the city had power under the state Con-
251 U. 6.
1919.
PACIFIC GAS & E. CO. v. POLICE COURT.
24-20
stitation and laws to pass the ordinance,
• and that it was not repugnant to the
Constitution of the United States. The
certiorari was refused. A review of this
judgment was then asked at the hands
of the supreme court of the state, but
that court again refused to interfere, on
the ground of its want of jurisdiction.
The writ of error which is before us was
then prosecuted by the Gas Company to
the judgment of the district court of ap-
peal refusing to grant the writ of cer-
tiorari.
At the threshold a motion to dismiss
requires to be considered. It is based up-
on the ground that the court below had,
under the state Constitution and laws,
no power to review by certiorari the ac-
tion of the superior court, and therefore
that court was the court of last resort
<^mpetent to decide the cause. But this
disregards the fact that the district court
of appeal assumed jurisdiction of the
iuiuse, and that the supreme court of the
state declined to review its judgment for
want of jurisdiction. As whether, under
the circumstances, the district court of
appeal rightfully assumed jurisdiction by
certiorari, is a question of purely state
law, which we may not review, the judg-
ment of that court is the judgment of
the state [25] court of last resort hav-
ing power to consider the case, and- the
motion to dismiss is denied.
Besides the due process and equal pro-
tection clauses of the 14th Amendment,
the contract clause of the Constitution of
the United States is relied upon in the
assignments. In argument, however, that
contention is based, not upon the im-
pairment by the ordinance of any par-
ticular contract right, but upon the un-
warranted burden which it is asserted
would result from enforcing the or-
dinance as against the railroad company
because of the general authority which it
possessed under its franchises to operate
its railroad in the streets. But this at
onoe establishes that the consideration of
the contract clause is negligible, and
hence, that it is only necessary to pass
upon the contentions under the due
process and equal protection clauses.
This results, since, if the police power of
the city to provide by the ordinance for
the protection of the health and safety
of the people was unrestrained by any
eontract provision, the police power nec-
essarily dominated the right of the com-
pany under its franchises to use the
streets, and subjected that right to the
authority to adopt the ordinances in
question.
64 L. ed.
Further, as the right of the city "to
adopt such ordinance, so far as the state
Constitution and laws are concerned, is
concluded by the decision below, and as
it is elementary that the due process
clause of the 14th Amendment does not
restrain the states in the exercise of their
legitimate police power, it follows that
the case narrows down to a consideration
of whether the ordinance in question was
generically embraced by the police power
of the state, and, if it was, whether the
p)ower was so abused as to cause its ex-
ertion to exceed the limits of the police
power, thus bringing the ordinance un-
der the prohibitions of the due process
and equal protection clauses of the 14th
Amendment.
That the regulation made by the or-
dinance was inlierently [26] within the
police power is, we think, too clear for
anything but statement. We cite in the
margin, however, decided cases dealing
with the subject, in some of which the
power here in question, when exerted for
the same purpose and to the same extent,
was upheld, and in others of which, al-
though the manifestations of the exer-
cise of the power were somewhat differ-
ent, its existence was accepted as indis-
putable; and to text- writers who state
the same view.*
That the power possessed was, on the
face of the ordinance, not unreasonably
exerted, and therefore that its exercise
was not controlled by the due process
clause of the 14th Amendment, is, we are
also of opinion, equally clear. And this
is true likewise of the contention as to
the equal protection clause of the
Amendment, since that proposition rests
upon the obviously unwarranted assump-
tion that no basis for classification re-
sulted from the difference between the
operation of the street railway cars mov-
ing on tracks in the streets of the city
and the movement of a different charac-
ter of vehicles in such streets.
Affirmed.
1 State ex rel. Milwaukee v. Milwaukee
Electric R. & Light Co. 144 Wis. 386. 140
Am. St. Rep. 1023, 129 N. W. 623; City &
Suburban R. Co. v. Savannah, 77 Ga. 731,
4 Am. St. Rep. 106; State v. Canal & C. R.
Co. 60 La. Ann. 1189, 56 L.R.A. 287, 24
So. 265; St. Paul v. St. Paul City R. Co.
114 Minn. 250, 36 L.R.A.(NJS.) 235, 130
N. W. 1108, Ann. Cas. 1912B, 1136; New-
comb V. Norfolk Western Street R. Co.
179 Mass. 449, 61 N. E. 42; Elliott, Rail-
roads. § 1082; Dill. Mun. Corp. 6th ed.
§ 1276; Nellis. Street Railways, 8 157;
McQuillin. Mun. Corp. p. 3774; Elliott,
Roads & Streets, § 958.
117
i:
SI PREME COURT OF THE UNITED STATES.
Oct. Xbkm^
[27] POSTAL TELEGRAPH-CABLE COM-
PANY, ^Petitioner,
V.
WARREX-GODWiN LUMBER COMPANY.
(See S. C. Reporter's ed. 27-32.)
Commerce — conflicting state and Fed-
eral regulations — telegraph compa-
nies — limiting liability for unrepeat-
ed message.
Congress has so far occupied the en-
tire field of the interstate business of tele-
graph companies by enactinjj the provisions
of the Act of June 18, 1910, respecting in-
terstate telegraph rates, as to exclude state
action invalidating a contract limiting the
liability of a telegraph company for error
in sending an unrepeated interstate message
to the refunding of the price paid for the
transmission of the message.
[For other cases, see Conirnerce, I. c; III. o,
In Digest Sup. Ct. 1908.]
[No. 91.]
Argued and submitted Novouiber 17, 1919.
Decided December 8, 1919.
ON WRIT of Certiorari to the Su-
preme Court of the State of Missis-
sippi to review a judgment which re-
versed, with a direction to enter judg-
ment for the plaintiff, a judgment of the
Circuit Court of Hinds County, in that
state, in favor of defendant in a suit
against a telegraph company for error
in transmitting an unrepeated interstate
message. Reversed and remanded for
further proceedings.
See same case below, 116 Miss. 660, 77
So. 601.
The facts are stated in the opinion.
Mr. EUis B. Cooper argued the cause,
and, with Messrs. J. T. Brown and J. N-
Flowers, filed a brief for petitioner:
The transmission of messages from
one state to another by telegraph is in-
terstate commeree.
Western U. Teleg. Co. v. Crovo, 220 U.
S. 364, 55 L. ed. 498, 31 Sup. Ct. Rep.
399; Western U. Teleg. Co. v. James, 162
U. S. 650, 40 L. ed. 1105, 16 Sup. Ct.
Rep. 934; Western U. Teleg. Co. v. Texas,
105 U. S. 460, 26 L. ed. 1067.
The power to regulate and control in-
terstate commeree is vested in Congress.
Adamtf Exp. Co. v. Croninger, 226 XT.
S. 491, 57 L. ed. 314, 44 l!r.A.(N.S.)
257, 33 Sup. Ct Rep. 148; Second Em-
ployers' Liability Cases (Mondou v. New
York, N. fi. & H. R. Co.) 223 U. S. 1, 56
L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup.
Ct. Rep. 169, 1 N. C. C. A. 875; Reid v
Colorado, 187 U. S. 137, 47 L. ed. 108, 23
Sup. Ct. Rep. 92, 12 Am. Crim. Rep. 506;
Smith V. Alabama, 124 U. S. 465, 31 L.
ed. 508, i Inters. Com. Rep. 804, 8 Sup.
Ct. Rep. 564.
When Congress acts, state laws on the
same subject are superseded.
Adams Exp. Co. v. Croninger, 226 D.
S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.)
257, 33 Sup. Ct. Rep. 148; Erie R. Co. v.
New York, 233 U. S. 671, 58 L. ed. 1149,
52 L.R.A.(N.S.) 266, 34 Sup. Ct. Rep.
756, Ann. Cas. 1915D, 138; Missouri, K.
& T. R. Co. V. Harris, 234 U. S. 419, 58
L. ed. 1382, L.R.A.1915E, 942, 34 Sup.
Ct. Rep. 790; Northern P. R. Co. v.
Washington, 222 U. S. 370, 56 L. ed. 237, .
32 Sup. Ct. Rep. 160; Jones v. Southern
Note. — On state regulation of inter-
state or foreign commerce — see notes to
Norfolk & W. R. Co. v. Com. 13 L.R.A.
107; and Gloucester Ferry Co. v. Penn-
sylvania, 29 L. ed. U. S. 158.
On the power of Congress to regulate
commerce — see notes to State ex rel.
Corwin v. Indiana & 0. Oil, Gas & Min.
Co. 6 L.R.A. 579; Bullard v. Northern
P. R. Co. 11 L.R.A. 246; Re Wilson, 12
L.R.A. 624; Gibbons v. Ogden, 6 L. ed.
U. S. 23; Brown v. Maryland, 6 L. ed.
U. S. 678; Gloucester Ferry Co. v. Penn-
sylvania, 29 L. ed. U. S. 158; Ratterman
v. Western U. Teleg. Co. 32 L. ed. U. S.
229 ; Harmon v. Chicago, 37 L. ed. U. S.
216; and Cleveland, C. C. & St. L. R.
Co. V. Backus, 38 L. ed. U. S. 1041.
On validity of state statute imposing
penalty for default or mistake in trans-
mission or delivery of interstate tele-
i^ram — see note to Western U. Teleg.
Co. V. Crovo, 55 L. ed. U. S. 499.
118
On legislative regulation of tolls, rates,
or prices — see note to Winchester & L.
Tump. Co. V. Croxton, 33 L.R.A. 177.
On validity of limitation of liability of
telegraph company for unrepeated mes-
sages— see notes to Western U. Teleg. Co.
V. Dant, L.R.A.1915B, 685; Strong v.
Western U. Teleg. Co. 30 L.R.A.(N.S.)
409, and Western U. Teleg. Co. v. Mil-
ton, 11 L.R.A.(N.S.) 561.
On applicability of stipulation as to
repeating telegraph messages to failure
or delay in transmission or delivery — see
note to Box v. Postal Teleg. Cable Co.
28 L.R.A.(N.S.) 566.
On state law affecting telegraphs as
regulation of interstate commerce — see
note to Western U. Teleg. Co. v. Com-
mercial Mill. Co. 36 L.R.A.(N.S.) 220.
On power of states to impose burdens
upon interstate telegraph and telephone
companies — see note to Postal Teleg.
Cable Co. v. Baltimore, 24 L.R.A. 161.
251 V. $.
1919. POSTAL TELEGRAPH-CABLE CO. v. WARREN-GODWIN LUMBER CO. 27, 2S
Exp. Co. 104 Miss. 126, 61 So. 165; St.
Louis & S. F. R. Co. v. Woodruff Mills,
106 Miss. 214, 62 So. 171.
The iiia<^tioii of Congress in no wise
affected its power over the subject.
Gloucester Ferry Co. v. Pennsylvania,
114 U. S. 196, 29 L. ed. 168, 1 Inters.
Com. Rep. 382, 6 Sup. Ct. Rep. 826;
Second Employers' Liability Cases (Mon-
dou V. New York, N. H. & H. R. Co.)
223 U. S. 1, 56 L. ed. 327, 38 L.R.A.
(X.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C.
C. A. 875; The Lottawanna (Rodd v.
H^rtt) 21 Wall. 668, 22 L. ed. 664.
By the Act of June 18, 1910, Congress
has undertaken to occupy the field of in-
terstate commerce by tdegraph, and as-
sume exclusive jurisdiction and authori-
ty in the regulation thereof.
Bailey v. Western U. Teleg. Co. 97
Kan. 619, 166 Pac. 716; Bateman v.
Western U. Teleg. Co. 174 N. C. 97,
L.R.AJ918A, 803, 93 S. E. 467; Boyce
V. Western U. Teleg. Co. 119 Va. 14, 89
>^. E. 106; Unrepeated Message Case, 44
Inters. Com. Rep. 670 ; Dnrre v. Western
F. Teleg. Co. 166 Wis. 190, 161 N. W.
756; Gardiner v. Western U. Teleg. Co.
145 C. C. A, 399, 231 Fed. 405, 243 U.
S. 644, 61 L. ed. 944, 37 Sup. Ct. Rep.
405: Haskell Implement & Seed Co. v.
Postal Teleg-Cable Co. 114 Me. 277, 96
, Atl. 219 ; Meadows v. Postal Teleg.-Cable
Co. 173 N. C. 240, 91 S. E. 1009 ; Norris
V. Western U. Teleg. Co. 174 N. C.
92, 93 S. E. 465; Western U. Teleg. Co.
V. Bank of Spencer, 53 Okla. 398, 156
Pac. 1175; Western U. Teleg. Co. v. Bil-
isoly, 116 Va. 662, 82 S. E. 91; Western
U. Teleg. Co. v. First Nat. Bank, 116 Va.
1009, 83 S. E. 424; Western U. Teleg. Co.
V. Schade, 137 Tenn. 214, 192 S. W. 924;
Western U. Teleg. Co. v. Lee, 174 Ky.
210. 192 S. W. 70, Ann. Cas. 1918C, 1026,
15 X. C. C. A. 1 ; Western U. Teleg. Co.
V. Foster, 224 Mass. 365, P.U.R.1916F,
176, 113 N. E. 192; Western U. Teleg.
Co. V. Hawkins, 198 Ala. 682, 73 So. 973;
Western U. Teleg. Co. v. Dant, 42 App.
D. C. 398, L.R.A.1915B, 685, Ann. Cas.
1916A, 1132; Williams v. Western U.
Teleg. Co. 203 Fed. 140 ; White v. West-
em XJ. Teleg. Co. 38 Inters. Com. Rep.
500.
Mr. Williaia D. Anderson submitted
the cause for respondent:
Until specific action by Congress regu-
lating the liability of teleg^ph compa-
nies to their patrons in respect to inter-
state commerce, the laws of the states
are applicable.
Sonthern R. Co. v. Reid, 222 U. S. 424,
436. 56 Ix ed. 257, 260, 32 Sup. Ct. Rep.
«4 li. ed.
140; Adams Exp. Co. v. Croninger, 226
U. S. 491, 67 L. ed. 314, 44 L.R.A.
(N.S.) 267, 33 Sup. Ct. Rep. 148.
By the Act of June 18th, 1910, Con-
gress did Jiot undertake to occupy the
entire field of interstate commerce by
telegraph, and assume exclusive jurisdic-
tion and authority in the regulation
thereof.
Dickerson v. Western U. Teleg. Co. 114
Miss. 116, 74 So. 779; Western D. Teleg.
Co. v. Bailey, 108 Tex. 427, 196 S. W.
616; Western U. Teleg. Co. v. Boegli, —
Ind. — , 116 N. E. 773; Des Arc OU Mill
V. Western U. Teleg. Co. 132 Ark. 335, 6
A.L.R. 1081, 201 S. W. 273.
Mr. Chief Justice White delivered the
opinion of the court:
In Primrose v. Western U. Teleg. Co.
164 U. S. 1, 38 L. ed. 883, 14 Sup. Ct.
Rep. 1098, the court passed upon the
validity of a contract made by a tele-
graph company with the sender of a mes-
sage by which, in case 'the message was
missent, the liability of the company was
limited to a refunding of the price paid
for sending it, unless, as a means of
guarding against mistake, the repeating
of the message from the office to which
it was directed to the office of origin
was secured by the payment of an ad-
ditional sum. It .was held that such a
contract was not one exempting the com-
pany from [28] liability for its negli-
gence, but was merely a reasonable con-
dition c^propriately adjusting the
charge for the service rendered to the
duty and responsibility exacted. for its
performance. Such a contract was
therefore decided to be valid, and the
right to recover for error in transmitting
a message which was sent subject to it
was accordingly limited.
In Western U. Teleg. Co. v. Showers,
112 Miss. 411, 73 So. 276, the supreme
court of that state was called upon to
consider the validity of a contract by a
telegraph company limiting its respon-
sibility for missending an unrepeated
message essentially like the contract
which was considered and upheld in the
Primrose C^e. The court decided that,
as the Act of Congress of June 18. 1910
(36 Stat, at L. 639, 545, chap. 309, Comp.
Stat. § 8663, 6 Fed. Stat. Anno. 2d ed.
p. 1108), had operated to exert the pow-
er of Congress over telegraph companies
as to their interstate business and con-
tracts, Congn^ss had taken possession of
the field and thus excluded state legisla-
tion, and hence such a contract was valid
and enforceable in accordance with the
rule laid down in the Primrose Case. In
119
28-31
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbic«
holding this, however, the court pointed
out that, but for the act of Congress, a
different rule Would apply, as, under the
state law, such a contract was invalid
because it was a stipulation by a carrier
limiting its liability for its negligence.
In Dickerson v. Western U. Teleg. Co.
114 Miss. 115, 74 So. 779, the validity of
a like contract by a telegraph company
for the sending of an unrepeated mes-
sage once again arose for consideration.
In passing upon it the court declared
that the ruling previously made in the
Showers Case, as to the operation of the
Act of Congress of 1910, was erroneous.
Coming, therefore, anew to reconsider
that subject, it was held that the Act of
Congress of 1910 had not extended the
power of Congress over the rates of tele-
graph companies for interstate business
and the contracts made by them as to
such subject, and hence the [29] Show-
ers Case, in so far as it held to the con-
trary, was overruled. Thus removing the
contract from the operation of the na-
tional law and bringing it under the
state law^ the court held that the con-
tract was void and not susceptible of be-
ing enforced, because it was a mere con-
tract exempting the telegraph company
from the consequences of its negligence.
The case before us involving the ex-
tent of the liability of the Telegraph
Company for an unrepeated interstate
message governed by a contract like
those considered in the previous cases
was decided bv a state circuit court after
the decision in the Showers Case and
before the overruling of that case by the
Dickerson Case. Presumably, therefore,
the court, because of the Showers deci-
sion, upheld the validity of the contract
and accordingly limited the recovery.
The appeal which took the case to th^
court below, however, was there heard
after the decision in the Dickerson Case.
In view of that situation the court below,
in disposing of the case, expressly de-
clared that the only issue which was
open was the correctness of the ruling,
in the Dickerson Case, limiting the op-
eration and effect of the Act of Congress
of June 18, 1910. Disposing, of that is-
sue, the ruling in the Dickerson Case
was reiterated and the contract, although
it concerned the transmission of an in-
terstate message, was declared not af-
fected by the act of Congress and to be
solely controlled by the state law, and to
be therefore void. That subject pre-
sents, then, the only Federal question,
and, indeed, the only question in the case.
For the sake of brevity, we do not stop
to review the cases which perturbed the
120
mind of the court below in the Dickerson
Case as to the correctness of its ruling
in the Showers Case (Pennsylvania R.
Co. V. Hughes, 191 U. S. 477, 48 L. ed.
268, 24 Sup. Ct. Rep. 132; Western U.
Teleg. Co. v. Crovo, 220 U. S. 364, 55 L.
ed. 498, 31 Sup. Ct, Rep. 399; Adams
Exp. Co. V. Croninger, 226 U. S. 491, 57
L. ed. 314, 44 L.R.A.(N.S.) 257, 33 Sup.
Ct. Rep. 148; Western U. Teleg. Co. v.
Brown, 234 U. S. 542, 58 L. ed. 1457,
34 Sup. Ct. Rep. 955, 5 N. C. C. A. 1024),
but content [30] ourselves with saying
that we are of opinion that the effect
which wi^s given to them was a mistaken
one. We come at once, therefore, to
state briefly the reasons why we conclude
that the court below mistakenly limited
the Act of Congress of 1910, and why,
therefore, its judgment was erroneous.
In the first place, as it is apparent on
the face of the Act of 1910 that it was
intended to control telegraph companies
by the Act to Emulate Commerce, we
think it clear that the Act of 1910 was
designed to and did subject such com-
panies as to their interstate business to
the rule of equality and uniformity of
rates which it was manifestly tbe domi-
nant purpose of the Act to Regulate
Commerce to establish, — a purpose which
would be. wholly destroyed if, as held by
the court below, the validity of contracts
made by telegraph companies as to their
interstate commerce business continued
to be subjected to the control of diver-
gent, and it may be, conflicting, local
laws.
In the second place, as in terms the
act empowered telegraph companies to
establish reasonable rates, subject to the
control which the Act to Regulate Com-
merce exerted, it follows that the power
thus given, limited, of course, by such
control, carried with it the primary au-
thority to provide a rate for unrepeated
telegrams and the right to fix a reason-
able limitation of responsibility where
such rate was charged, since, as pointed
out in the Primrose Case, the right to
contract on such subject was embraced
within the grant of the primary rate-
making power.
In the third place, as the act expressly
provided that the telegraph, telephone,
or cable messages to which it related
may be "classified into day, night, re-
peated, unrepeated, letter, commercial,
press, government and such other classes
as are just and reasonable, and different
rates may be charged for the different
classes of messages,^' it would seem un-
mistakably to draw under the Federal
[31] control the very power which the
251 U. S.
If 19.
LOS ANGELES v. LOS ANOELES GAS & E. CORP.
31, 32
eonstmetion giren below to the act nec-
I'Sftarilv ezcluded from such control. In-
deed, the condnsive force of this view is
made additionally cogent when it is con-
sidered that, as poin^ ont by the Inter-
State Commerce Commission (Cnltra v.
Western U. Teleg. Co. 44 Inters. Com.
Rep. 670)) from the very inception of the
telegraph business^ or at least for a
period of forty years before 1910, the
nnrepeated message was one sent under
a limited rate and subject to a limited
responsibility of the character of the
one here in contest.
But we need pursue the subject no
further, since, if not technically authori-
tatively controlled, it is in reason per-
suasively settled by the decision of the
Interstate Commerce Commission in
dealing in the case above cited with the
v«ry question here under consideration
as the result of the power conferred by
the Act of Congress of 1910; by the care-
ful opinion of the circuit court of ap-
peals of the eighth circuit, dealing with
the same subject (Gardner v. Western
U. Teleg. Co. 146 C. C. A. 399, 231 Fed.
405); and by the numerous and conelu-.
sive opinions of state courts of last re-
sort, which, in considering the Act of
1910 from various points of view,
reached the conclusion that that act was
an exertion by Congress of its authority
to bring under Federal control the inter-
state business of telegraph companies,
and therefore was an occupation of the
field by Congress which excluded state
action (Western U. Teleg. Co. v. Bank
of Spencer, 53 Okla. 398, 156 Pac. 1176;
Haskell Implement & Seed Co. v. Postal
Teleg.-Cable Co. 114 Me. 277, 96 Atl.
219; Western U. Teleg. Co. v. Bilisolv,
116 Va. 662, 82 S. E. 91; Bailey v.' West-
ern U. Teleg. Co. 97 Kan. 619, 156 Pac.
n6 ; Durre v. Western U. Teleg. Co. 165
Wis. 190, 161 N. W. 755; Western U.
Teleg. Co. v. Schade, i37 Tenn. 214, 192
S. W. 924; Meadows v. Postal Teleg.
A Cable Co. 173 N. C. 240, 91 S. E. 1009;
Xorris v. Western U. Teleg. Co. 174 N.
C. 92, 93 S. E. 465 ; Bateman v. Western
U. Teleg. Co. 174 N. C. 97, L.R.A.1918A,
803, 93 S. E. 467; Western U. Teleg. Co.
V. Lee, 174 [82] Ky. 210, 192 S. W. 70,
Ann. Cas. 1918C, 1026, 15 N. C. C. A. 1 ;
Western U. Teleg. Co. v. Foster, 224
Mass. 365, P.U.R.1916F, 176, 113 N. E.
192: Western U. Teleg. Co. v. Hawkins,
14 Ala. App. 295, 70 So. 12).
It is indeed true that several state
courts of last resort have expressed con-
clusions concerning the act of Congress
applied by the court below in this case.
But we do not stop to review or refer to
•4 Ia. ed.
them, as we are of opinion that the error
in the reasoning upon which they pro-
ceed is pointed out by what we have said
and by the authorities to which we have
just referred.
It follows that the judgment below was
erroneous, and it must be reversed and
the cause remanded for further proceed-
ings not inconsistent with this opinion.
And it is so ordered.
Mr. Justice Pitney dissents.
CITY OF LOS AXGELES et al., Appts.,
v.
LOS ANGELES GAS & ELECTRIC COR-
PORATIOX.
(See S. C. Reporter's ed. 32-40.)
Mnnicipal corporations — powers —
constructing street llg^htlng system —
|)oliee power or proprietary capacity.
1. The construction of a municipal
electric street lighting system was not
done in the city's governmental capacity,
— an exertion of police power, — but in
its proprietary or quasi private capacity,
and therefore the city is subordinate in
right to a private corporation which was
an earlier and lawful occupant of the field.
[For other cases, see Municipal Corporations.
II. f. In Digest Sup. Ct. 1908.]
Constitutional law — police power — >
due process of law — municipal llj^ht-
^Inic plant — displacement of private
*sy8tems — > compensation.
2. A municipality may not, consistent-
ly with U. S. Const., 14th Amend., as a
matter of public right, clear a space for the
construction of its own street lighting sys-
tem by removing or relocating the instru-
mentalities of a privately owned lighting
system occupy iiijr the public streets under
a franchise legally granted, without com-
Note. — For a discussion of police pow-
er, generally — see notes to State v. Mar-
shall, 1 L.R.A. 51 ; Re Gannon, 5 L.R.A.
359; State v. Schlemmer, 10 L.R.A. 136;
Uhnan v. Baltimore, 11 L,R.A. 224;
Electric Improv. Co. v. San Francisco,
13 L.R.A. 131; and Barbier v. Connolly,
28 L. ed. U. S. 923.
As to compensation to be paid to^ a
public utility company upon taking its
plant — see note to Appleton Waterworks
Co. V. Railroad Commission, 47 L.R.A.
(N.S.) 770.
On privilege of using street as a con-
tract within the constitutional provision
against impairing the obligation of con-
tracts— see notes to Clarksburg Electric
Light Co. V. Clarksburg, 50 L.R.A. 142;
Russell V. Sebastian, L.R.A.1918E, 892.
121
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
peusating the owner of such system for the
rights appropriated.
[For other cases, see Constitutional Law, IV.
b. 4; IV. c, 2, In Digest Sup. Ct. 1908.)
[No. 60.]
Argued October 23, 1919. Decided Decem-
ber 8, 1919.
APPEAL from the District Court of
the United States for the Southern
District of California to review a decree
enjoining the execution of a municipal
ordinance providing for a municipal
electric street lighting system in such a
wav as to trespass upon a privately
owned lightitig system. Affirmed.
See same case below, 241 Fed. 912.
The facts are stated in the opinion.
Mr. W. B. Mathews argued the cause,
and, with Mr. Albert liCe Stephens, filed
a brief for appellants:
The order of the municipal authorities
was in confoimity with conditions at-
tached to the company's franchise at its
inception, and which are binding on the
company.
Knight V. United Land Asso. 142 U.
S. 161, 35 L. ed. 974, 12 Sup. Ct. Rep.
258; Curtis, Electricity, § 223; MitcheU
V. Dakota Cent. Teleph. Co. 25 S. D. 409,
127 N. W. 582.
The company, besides being bound by
contractual conditions attached to its
franchise at its inception, is subject to
reasonable regulation by the city in the
exercise of its police power.
DilL Mun. Corp. § 1269 ; Elliott, Roads
& Streets, §§ 939, 1066; Merced Falls
Gas & E. Co. V. Turner, 2 Cal. App. 720,
84 Pac. 239.
The regulatory measures complained
of are presumed to be reasonable, and
the burden is on the company to show
the contrary. ' •
People V. Stokes, 281 111. 159, 118 N.
E. 87; Portland v. Montgomerv, 38 Or.
215, 62 Pac. 755 j Dill. Mun. Corp. 5th
ed. §§ 591, 649; Ex .parte Haskell, 112
Cal. 412, 32 L.R.A. 527, 44 Pac. 725.
The company failed to plead or prove
facts sufficient to show that the ordi-
nance and order complained of are ar-
bitrary, unreasonable, or confiscatory.
Soon Hing v. Crowley, 113 U. S. 703,
710, 28 L. ed. 1145, 1147, 5 Sup. Ct.
Rep. 730; Cooley, Const. Lim. 7th ed.
257, 258 ; Western U. Teleg. Co. v. Elec-
trie light & P. Co. 178 N. Y. 325, 70
N. E. 866; Louisville B:ome Teleph. Co.
V. Cumberland Teleph. & Teleg. Co. 49
C. C. A. 524, 111 Fed. 663; Cumber-
land Teleg. & Teleph. Co. v. Louisville
Home Teleph. Co. 114 Kv. 892, 72 S. W.
122
4; Chicago, B. & Q. B. Co. v. Illinois, 200
U. S. 561, 50 L. ed. 596, 26 Sup. Ct. Rep.
341, 4 Ann. Cas. 1175; Ex parte Haskell.
112 Cal. 412, 32 L.R.A. 627, 44 Pac. 725.
The district court erroneously assumed
that the question of public necessity for
the establishment of the municipal elec-
tric lighting system was for the deter-
mination'of that court, and that unless
the city proved that such necessity exist-
ed, the police power could not be availed
of to force the company from positions
it had taken in the public streets.
Miller v. Fitchburg, 180 Mass. 32, 61
N. E. 277; Revere Water Co. v. Win-
throp, 19a Mass. 455, 78 N. E. 497; Piatt
V. San Francisco, 15a CaL 74, 110 Pac.
304.
The district court was not justified in
holding that the company is protected by
the principle that first in time is first in
right, against the enforcement of regula-
tory measures requiring it to change the
location of its structures in a public
street, in order to make room for a later
utility.
Merced Falls Gas & E. Co. v. Turner,
2 Cal. App. 720, 84 Pac. 239; Louisville
Home Teleph. Co. v. Cumberland Teleph.
& Teleg. Co. 49 C. C. A. 524, 111 Fed.
663; Michigan Teleph. Co. v. Charlotte,
93 Fed. 11.
The district court erred in holding
that the ordinance and order complained
of are unreasonable and arbitrary, on
the ground that they have the effect of
impairing the obligation of the contract
between the company and the state, in
violation of § 10 of article 1 of the Con-
stitution of the United States.
Grand Trunk Western R. Co. v. South
Bend, 227 U. S. 544, 57 L. ed. 633, 44
L.R.A.(N.S.) 405, 33 Sup. Ct. Rep. 303;
Atlantic Coast Line R. Co. v. Goldsboro,
232 U. S. 548, 58 L. ed. 721, 34 Sup. Ct.
Rep. 364; Slaughter-House Cases, 16
Wall. 36, 62, 21 L. ed. 394, 404; Chicago
& A. R. Co. V. Tranbarger, 238 U. S. 6(,
59 L. ed. 1204, 35 Sup. Ct. Rep. 678. t
The district court erred in holding
that the ordinance and order complained
of have the effect of depriving the com-
pany of its property and rights without
due process of law, in violation of the
14th Amendment of the Constitution of
the United States.
Michigan Teleph. Co. v. Charlotte, 93
Fed. 11; Chicago & A. R. Co. v. Tran-
barger, 238 U. S. 67, 59 L.. ed. 1204,
35 Bup. Ct. Rep. 678; Atlantic Coast
Line R. Co. v. Goldsboro, 232 U. S. 548,
58 L. ed. 721, 34 Sup. Ct. Rep. 364.
The district court erred in holding that
the ordinance and order complained of
251 U. 8.
1911.
LOS ANGELES v. LOS ANGELES GAS & E. CORP.
have the effect of denying to'ttie com-
pany the equal protection of the laws,
in violation of the 14th Amendment of
J he Conititntion of the United States.
Chica^, B. & Q. R. Co. v. Illinob, 200
r. S. 561, 50 L. ed. 696, 26 Sup. Ct. Rep.
341, 4 Ann. Cas. 1175.
The district conrt erred in holding that
the ordinance and order complained of
have the effect of taking the company's
property without just compensation, and
of depriving the company of its property
or rights without due process of law, in
violation of the 5th Amendment of the
United States Constitution.
Hunter v. Pittsburgh, 207 U. S. 161,
52 L. ed. 161, 28 Sup. Ct. Rep. 40 ; Ohio
ex rel. Uovd v. Dollison, 194 U. S. 445,
48 L. ed. 1062, 24 Sup. Ct. Rep. 703.
The district court erred in holding that
the ordinance and order complained of
are unreasonable and arbitrary, on the
^und that they are, in effect, the tak-
mg or damaging of private property for
public use without just compensation, in
violation of § 14 of article 1 of the Con-
stitution of California.
Merced Falls Gas & E. Co. v. Turner,
2 Cal. App. 720, 84 Pac. 239; Chicago &
A. R.'Co. V. Tranbarger, 238 U. S. 67, 59
L. ed. 1204, 35 Sup. Ct. Rep. 678; New
Orleans Gaslight Co. v. Drainage Com-
missian, 197 U. S. 453, 49 L. ed. 831, 25
Sup. Ct. Rep. 471 ; Atlantic Coast Line R.
Co. V. Goldsboro, 282 U. S. 548, 58 L.
ed. 721, 34 Sup. Ct. Rep. 364; Chicago,
B. & Q. R. Co. V. Illinois, 200 U. S. 561,
50 L. ed. 596, 26 Sup. Ct. Rep. 341, 4
Ann. Cas. 1175; Lewis, Em. Dom. § 248.
The district court erred in holding that
the ordinance complained of constitutes
an unlawful attempt to delegate legisla-
tive power to the board of public woi^s
of the citv.
Marshall Field & Co. v. Clark, 143
U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep.
495: Buttfield v. Stranahan, 192 U. S.
470, 48 L. ed. 525, 24 Sup. Ct. Rep. 349;
Union Bridge Co. v. United States, 204
U. S. 364, 51 li. ed. 52.% 27 Sup. Ct. Rep.
367; Ex parte Fiske, 72 Cal. 125. 13
Pac. 310; Harbor Comrs. v. Excelsior
Redwood Co. 88 Cal. 491, 22 Am. St.
Rep. 321, 26 Pac. 375.
Messrs. Albert Lee Stephens, Charles
S. Bnmell, and W. B. Mathews also filed
a brief for appellants :
The proposed enforcement of the ordi-
nance against appellee's utility, so as to
secure a place in the street, for the
municipal utilitj", being consistent with
the reser\'ation in favor of the city,
under appellee's franchise, of the right
«4 L. ed.
to direct appellee's use of the street, may
not properly be considered either a revo-
cation or an impairment of any right or
obligation under such franchise.
Merced Falls Gas & E. Co. v. Ttimer,
2 Cal. App. 720, 84 Pad. 239; Hamilton.
G. & C. Traction Co. v. Hamilton & L.
Electric Transit Co. 69 Ohio St. 402, 69
N. E. 991.
The distinction attempted to be made
by the lower court and by counsel for
appellee, , between . proprietary instru-
mentalities and governmental interests
as objects of the police power, is en-
tirely unfounded.
McQuillin, Mun. Corp. § 2645; Dill.
Mun. Corp. § 1298; Mauldin v. Green-
ville, 33 S. C. 1, 8 L.R.A. 291, 11 S. E.
434; Hequembourg v. Dunkirk, 49 Hun,
550, 2 N. Y. Supp. 447.
Mr. Paul Overton argued the cause,
and, with Mr. Herbert J. Goudge, filed
a brief for appellee:
Appellee's franchise is an irrevocable
contract.
Russell v. Sebastian, 233 U. S. 195,
58 L. ed. 912, L.R.A.1918E, 882, 34 Sup.
Ct. Rep. 517, Ann. Cas. 1914C, 1282.
Appellee's franchise vested it with an
easement or right of way in the streets
occupied by its lines of poles and wires,
which easement or right of way is prop-
erty under the protection of. the consti-
tutional guaranties.
Southern Bell Teleph. & Teleg. Co. v.
Mobile, 162 Fed. 523; Kansas Natural
Gas Co. V. Haskell, 172 Fed. 645; Stock-
ton Gas ft E. Co. V. San Joaquin Countv,
148 Cal. 319, 6 L.R.A.(N.S.) 174, 83 Pac.
54, 7 Ann. Cas. 511; Re Russell, 163
Cal. 668, 126 Pac. 875, Ann. Cas. 1914A,
152; South Pasadena v. Pasadena Land
& Water Co. 152 Cal. 579, 93 Pac. 490 ;
Hamilton, G. & C. Traction Co. v. Ham-
ilton & L. Electric Transit Co. 69 Ohio
St. 402, 69 N. E. 991.
The ordinance and order of the citv
will impair the obligation of appellee's
franchise.
Los Angeles Gas & E. Co. v. Los An-
geles, 241 Fed. 920; Re Johnston, 137
Cal. 115, 69 Pac. 973; 15 Am. & Eng.
Enc. Law, 1049; Grand Trunk Western
R. Co. V. South Bend, 227 U. S. 544,
554, 57 L. ed. 633, 640, 44 L.R.A.(N.S.)
405, 33 Sup. Ct. Rep. 303; Walla Walla
V. Walla Walla Water Co. 172 U S.
1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77.
The ordinance is violative of the due
process clause of the Federal Constitu-
tion.
Chicago, B. & Q. R. Co. v. Chicago.
166 F. S. 226, 233, 41 U ed. 979, 988. 1 7
SI l*KK.\JE COURT OF THE UNITED STATES.
Oct. Tebm,
Sup. Ct. Rep. 581; Norwood v. Baker,
172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct.
Fep. 187; New Orleans Waterworks CJo.
V. Louisiana Sugar Ref. Co. 125 U. S.
18, 31, 31 L. ed. 607, 612, 8 Sup. Ct. Bep.
741; St. Paul Gaslight Co. v. St. Paul,
181 U. S. 142, 148, 45 L. ed. 788, 791,
21 Sup. Ct. Rep. 575; Northern P. R.
Co. V. Minnesota, 208 U. S. 583, 590,
62 L. ed. 630, 633, 28 Sup. Ct. Rep. 341 ;
Ross V. Oregon, 227 U. S. 150, 162, 57
L, ed. 458, 463, 33 Sup. Ct. Rep. 220,
Ann. Cas. 1914C, 224; Atlantic Coast
Line R. Co. v. Goldsboro, 232 U. S. 548,
555, 58 L. ed. 721, 725, 34 Sup. Ct. Rep.
364.
The ordinance and order o£ the city
involve a taking of appellee's property
contrary to the constitutional guaran-
ties.
Hamilton, G. & C. Traction Co. v.
Hamilton & L. Electric Transit Co. 69
Ohio St. 402, 69 X. E. 991 ; Pacific Teleph.
& Teleg. Co. v. Eshleman, 166 Cal. 640,
50 L.R.A.(N.S.) 652, 137 Pac. 1119, Ann.
Cas. 1915C, 822; Belleville v. St. Clair
County Tump. Co. 234 111. 428, 17
L.R.A.(N.S.) 1071, 84 N. E. 1049; Pum-
pelly V. Green Bfty & M. Canal Co. 13
Wall. 166, 20 L. ed. 557.
The ordinance and order of the city
will damage ap'pellee's property with-
out lust compensation having first been
made, as required by the Constitution
of the state of California.
Chicago v. Taylor. 125 U. S. 161, 166,
31 L. ed. 638, 641, 8 Sup. Ct. Rep. 820;
Reardon vt San Francisco, 66 Cal. 492,
56 Am. Rep. 109, 6 Pac. 317; Rigney v.
Chicago, 102 111. 64.
While it has been repeatedly decided
that when Federal jurisdiction is in-
voked on the ground of the impairment
of the obligation of a contract, this court
will decide for itself, without reference
to the state decisions, the extent of the
contract rights claimed to have been im-
paired (see Russell v. Sebastian, 233 U.
S. 195, 58 L. ed. 912, L.R.A.1918E, 882,
34 Sup. Ct. Rep. 517. Ann. Cas. 19140,
1282; J. W. Perrv' Co. v. Norfolk, 220
U. S. 472, 55 L.*ed. 548, 31 Sup. Ct.
Rep. 465; Steams v. Minnesota, 179 U.
S. 223, 45 L. ed. 162, 21 Sup. Ct. Rep.
73), it is nevertheless enlightening to
cbnsider the construction placed by the
courts of the state upon this consti-
tutional grant. The state's construction
should be followed when in favor of
the grantee.
People V. Stephens, 62 Cal. 209; Re
Johnston, 137 Cal. 115, 69 Pac. 973.
In constructing and operating an elec-
trical distributing system the city is not
124
performing a governmental function, Iml;
is acting in a proprietary' capacitv.
Vilas V. Manila, 220 U. S. 346, 356, 55-
L. ed. 491, 495, 31 Sup. Ct. Rep. 416;
28 Cyc. 125; South Carolina v. United
States, 199 U. S. 437, 463, 50 L. ed. 261^
270, 26 Sup. Ct. Rep. 110, 4 Ann. Cas.
737; Western Sav. Fund Soc. v. Phila-
delphia, 31 Pa. 175, 72 Am. Dec 730;
South Pasadena v. Pasadena Land &
Water Co. 152 Cal. 579, 93 Pac 490;
Chafor v. Long Beach, 174 Cal. 478,
L.R.A.1917E, 685, 163 Pac 670, Aniu
Cas. 1918D, 106; Vallejo Ferry Co. v.
Vallejo, 146 Cal. 393,^ 80 Pac 514;
Omaha Water Co. v. Omaha, 12 L.R.A.
(N.S.) 736, 77 C. C. A. 267, 147 Fed. 1,
8 Ann. Cas. 614; 4 McQuillin, Mun. Corp.
§ 1801, p. 3860; Eaton v. Weiser, 12
Idaho, 544, 118 Am. St. Rep. 225, 86
Pac. 541, 20 Am. Neg. Rep. 504; Eastern
Illinois State Normal School v. Charles-
ton, 271 111. 602, L.R.A.1916D, 991, 111
N. E. 573; Safety Insulated Wire &
Cable Co. v. Baltimore, 13 C. C. A. 375,
25 U. S. App. 166, 66 Fed. 140; Chicago
v. Selz, S. & Co. 104 111. App. 381 ; New
York V. Bailev, 2 Denio, 433; Athens v.
Miller, 190 Ala, 82, 66 So. 702; Asher
V. Independence, 177 Mo. App. 1, 163
S. W. 574; Brumm v, Pottsville Water
Co. 9 Sadler (Pa.) 483, 22 W. N. C. ]37,
12 Atl. 855; Illinois Trust & Sav. Bank
V. Arkansas City, 34 L.R.A. 518, 22 C.
C. A. 171, 40 U. S. App. 257, 76 Fed.
271 ; Wichita Water Co. v. Wichita, 234
Fed. 415; Seattle v. Stirrat, 55 Wash.
560, 24 L.R.A.(N.S.) 1275, 104 Pac. 834;
Re Rapid Transit R. Comrs. 197 N. Y.
81, 36 L.R.A.(N.S.) 647, 90 N. E. 456,
18 Ann. Cas. 366.
As between two electric distributing
systems, priority of position gives su-
periority of right.
Edison Electric Light & P. Co. v. Mer-
chants' & Mfrs' Electric Light, Heat &
P. Co. 200 Pa. 219, 86 Am. St, Rep. 712,
49 Atl. 766; Edison Electric Illuminating
Co. V. Citizens Electric Co. 235 Pa. 492,
84 Atl. 438; Paris Electric Light & R.
Co. V. Southwestern Teleg. & Teleph. Co.
— Tex. Civ. App. — , 27 S. W. 902 ; Rut-
land Electric Light Co. v. Marble City
Electric Light Co. 65 Vt. 377, 20 L.R.A.
821, 36 Am. St. Rep. 868, 26 Atl. 635;
Bell Teleph. Co. v. Belleville Electric
Light Co. 12 Ont. Rep. 571.
The ordinance and order are not a
valid exercise of the police power.
Freund, Pol. Power, §§ 511, 512, pp.
546, 547: Mt. Hope Cemeten- v. Boston,
158 Mass. 509, 35 Am. St. Rep. 515, 33
X. E. 695 ; Re Johnston, 137 Cal. 115, 69
Pac. 973; Pacific Teleph. & Teleg. Co, v.
251 U. S.
1919.
LOS ANGELES v. LOS ANGELES GAS & E. CORP.
33-3r>
Bshleman. 166 Cal. 640, 50 L.B^.(N.S.)
652, 137 Pac. 1119, Ann. Cas. 1915C,
822: State v. Missouri P. R. Co. 242
Mo. 339, 147 S. W. 118.
Public necessity will not justify the
tikinf^ of private property without just
<<>mpensation.
Pacific Teleph. & Teleg. Co. v. Eshle-
man, 166 Cal. 640, 50 L.R.A.(N.S.) 652,
137 Pac. 1119, Ann. Cas. 1915C, 822.
Mr. Justice McKenna delivered the
opinion of the court:
The appellant city is a munieipal cor-
poration of the state of California, and
the other appellants are its officers, hav-
ing official relation to it and its rights
and powers.
The appellee is a California corpora*
tion invested with and in exercise of a
franchise for generating and selling elec-
tricity through a system of poles and
wires and other works in the public
streets of Los Angeles, among others, in
that known as Yoi^ boulevard.
It, the appellee, — to which we shall
refer as the corporation, — ^brought this
suit in the district court to declare in^^
valid and restrain the execution of an
ordinance of the city providing for a
municipal electric street^lighting system
and making way for it in such way, it
is charged, that it obstructed, trespassed
upon, nnd made dangerous [84] the
8>-stem of the corporation, in violation
of its rights under the Constitution of
the United States.
The district court granted the prayer
of the bill upon the grounds relied on,
and hence the appeal from its decision
direct to this court.
The ordinance attacked is very long
by reason of its repetitions. It, however,
can be intelligibly reduced to a few pro-
visions. It was passed March 6, 1917,
and approved the next day, and declares
in its title its purpose to be to provide
for the removal and relocation of poles
and other property in the public streets
of the city "when necessarj- in order that
the municipal electrical street lighting
system may be constructed, operated,
and maintained.'' Such system and its
installation "as speedily as may be prac-
ticable" is declared necessarv "for the
public peace, health, and safety.'*
It is recited that certain "fixtures, ap-
pliances, and structures" (they are enum-
erated) are maintained in the streets,
and -it is necessary "in order that suffi-
cient space may be secured for the said
municipal electrical system . . . and
that the work of constructing and estab-
lishing the same mav be carried on, to
U L. ed.
provide for the removal or relocation of
poles and other properties so maintained
by such persons and corporations."
It is therefore ordained that (§ 1)
whenever it shall appear to the boa^ of
public wortcs that the removal or relo-
cation of such "fixtures, i^pliances, or
structures" (there is an enumeration
again which we omit as useless repeti-
tion) is necessary in order that the mu-
nicipal system may have place, the board
shall give notice to the person, firm, or
corporation owning or controlling the
property to remove or relocate the same.
The notice to designate the property to
be removed and the place to which it
shall be removed, and it shall be the
duty of such person, firm, or corporation
to comply with the notice within five
days of its receipt. To fail or refuse to
BO [85] comply or to diligently prosecute
the work of removal is made unlawful
(§§ 2 and 3), and (§ 4) made a mis-
demeanor punishable by a fine of not
more than $500, or by imprisonment in
the city jail for a period of not more
than six months, or by both such fine
and imprisonment. Each day's delay is
made a separate offense. .
In case of failure to remove or prose-
cute the work of removal the board of
public works is given power to do what
the notice directs. (§5.)
By § 6 the dependency of the city upon
private contracts for lighting the pub-
lic streets and other public places is de-
clared, some of which contracts, it is
said, have expired, and all will have ex-
pired by July, 1917, thus making the com-
pletion of the municipal system neces-
sary to provide for lighting the streets
without interruption and the removal
or relocation of the appliances owned or
controlled by various persons, firms, or
corporations immediately necessary in
order that the city may complete and in-
stall its system. And it is declared that
the "ordinance is urgently required for
the immediate preservation of the pub-
lic peace, health, and safety."
The ordinance was preceded by acts
of interference by the city with the prop-
erty of the corporation in other streets
and also in York boulevard, which inter-
ference was enjoined by interlocutory
and final decree by the superior court of
Los Angeles county in a suit brought by
the corporation, — the city not defending.
And it was interference, not displace-
ment, and the court's decree was adapted
to the extent of the interference. The
decree as to other streets than York
l>oulevard was as follows: ". . . from in
any manner trespassing upon, interfer-
125
35-38
SUPREMi: COURT OF THE UNITED STATJilS.
Oct. Tebm ,
ing with, moving, or displacing the poles
or wires, or either or any of them, owned
or controlled wholly or in part by plain-
tiff [the corporation in this case] ; or
erecting or placing any pole, cross arm,
or other electricsd appliance or equip-
ment, or attaching any wire or cable to
or upon [36] any pole, cross arm, or
other electrical appliance or equipment
in a fixed position within the distance
from any pole, cross arm, wire, or other
electrical appliances or equipment owned
or controlled wholly or in part by plain-
tiff [the corporation in this case], as pre-
scribed by the laws of the state of Cali-
fornia and the rules and regulations of
the Railroad Commission of said state;
. . ." As to Yoi* boulevard the decree
was as follows : ". . . from conveying,
running, or transmitting electric power
or energy through the lines and wires
heretofore erected and constructed by
said city of Los Angeles, its agents, serv-
ants, and employees," until the wires,
poles, and equipment of the city are re-
moved to the distance '^prescribed by the
laws of the state of California and the
iniles and regulations of the Railroad
Commission thereof."
The decree contained a proWsion upon
which the city bases a contention, or
rather a suggestion, to which we shall
presently refer. The provision is as fol-
lows: "Nothing herein contained shall
be construed as prohibiting or restrain-
ing the city of Los Angeles or its proper
boards, officers, or agents from carrying
into effect any ordinance of said city
providing for the rem^vfd or relocation
of poles, anchors, cross arms, wires,
street lamps, or other fixtures, appli-
ances, or structures owned or controlled
by said plaintiff [the corporation in this
case], and located in, upon, over, or
imder any public street or other public
place of said city."
The ground or basis of the ordinance
of March 6, 1917, here involved, is the
same as that of the interference in the
suit in the state court ; that is, the right
to displace the corporation's pix)perty in
order that the municipal system may be
operated or erected. There is no at-
tempt here, as there was no attempt in
that suit, at absolute displacement. The
order of the board of public works, is-
sued in accordance with the direction of
the ordinance, required the corporation
to change or ^hift or lower its wires to
[37] the detriment of their efficient use,
as it is contended. There is some con-
flict as to the extent and effect, which,
however, we are not called upon to recon-
cile. It was stipulated "that the value of I
126
the right to exercise the franchises of the
Los Angeles Gas & Electric Corporation
in the public streets and thoroughfares
of the city of Los Angeles exceeded the
sum of $3,000 and was in excess of
$4,000." And it was testified that if the
city, in constructing its system, pro-
ceeds as it has done in ordering the re-
moval of poles and wires, it will cost the
corporation between $50,000 and $60,-
000; but, passing by the particular in-
stance of interference, and considering
the ordinance's broad assertion of right,
the contention of the city and the cor-
poration are in sharp, oontradiction.
We say "the ordinance's broad asser-
tion of right" to distinguish the narrower
right of the city to erect a system of its
own. Of the latter right there is no
question. The district court conceded
it, indeed, praised the project, but de-
cided that it could not be exercised to
displace other systems, without compen-
sation, occupying the streets by virtue •
of franchises legally granted. Thus the
only question is whether the city may,
as matter of public right and without
compensation, clear a "space" for the
instrumentalities of its system by remov-
ing or relocating the instrumentalities
of other systems. The city asserts the
affirmative, — asserts the rig^t to displace
other systems as an exercise of the police
power, and, further, as an incident of its
legislative power. It is further asserted
that these powers are attributes of gov-
ernment, and that their exercise, when
not palpably arbitrary, is not subject to
judicial interference. And that "every
intendment is to be indulged in favor
of its validity, and all doubts resolved
in a way to uphold the lawmaking power
[in this case the city] ; and a contrary
conclusion will never be reached upon
light consideration." Ex parte Haskell,
112 Cal. 412, 32 L.R.A. 527, 44 Pac. 725.
[38} In counter propositions the cor-
poration urges its franchise and the right
it conveys to occupy the streets of the
city,— rights, it is said, having the in-
violability of a contract and the sanctity
of private property; not, indeed, free
from reasonable regulation, if such regu-
lation is governmental, but free from
molestation or displacement to make
"space" for a city system, for that is pro-
prietary. We have, therefore, the not
unusual case of rights asserted against
governmental power, — a case somewhat
fruitful of disputable considerations- and
upon which judgment may not be easy or
free from controversy. But there is some
point where power or rights must prevail,
however plausible or specious the argu-
S61 17. 6«
1919.
LOS ANGEUES v. LOS ANGELES GAS & E. CORP.
38-40
ment of either against the other may be.
Afly for example, in the present ease. The
city has undoubtedly the function of
pohee; it undoubtedly has the power of
mimieipal ligHting and the installation
of its instrumentalities (Russell y. Se-
bastian, 233 U. S. 195, 202, 58 L. ed.
912, 920, L.R.A.1918E, 882, 34 Sup. Ct.
Bep. 517, Ann. Cas. 1914C, 1282); but
tnnclion and power may be exceeded,
and, so far as wz^ongful, be restrained.
And such was the conclusion of the dis-
trict court, applying the Constitution of
the United States, "and such the ground
of its- judgment.
In what way the public peace or
health or safety was imperiled by the
lighting system of the corporation, or re-
lieved by its removal or change, the court
was unable to see, and it is certainly not
apparent. The court pointed out that
there were several lighting systems in
existence and occupying the streets, and
that there was no contest, or disorder, or
overcharge of rates, or peril or defect of
any kind; and therefore concluded that
the conditions demonstrated that while
the city might install its own system,
there was no real ^'public necessity'' aris-
ing from consideration of public health,
peace, or safety requiring the city to en-
gage in the business of furnishing light.
The court reasoned and concluded that
what the city did was done not in its
governmental ei^city, — ^an exertion of
the police power, — but in its "proprie-
tary or quasi [39] private capacity;" and
that therefore the city was subordinate
in right to the corporation, the latter
being an earlier and lawful occupant of
the field. The dififerepce in the capacities
is recognized, and the difiterence in at-
tendant powers pointed out, in decisions
of this court. Vilas v. Manila, 220 U.
S. 346, 55 L. ed. 491, 31 Sup. Ct. Rep.
416; Russell v. Sebastian, 233 U. S. 195,
58 L. ed. 912, L.R.A.1918E, 882, 34 Sup.
Ct Rep. 517, Ann. Cas. 1914C, 1282;
South Carolina v. United States, 199 XJ.
S. 437, 50 L. ed. 261, 26 Sup. Ct. Rep.
110, 4 Ann. Cas. 737 ; New Orleans Gas-
light Co. v. Drainage Commission, 197 U.
S. 453, 49 L. ed. 831, 25 Sup. Ct. Rep.
471; Vicksbuii? v. Vicksburg Water-
works Co. 206 U. S. 496, 508, 51 L. ed.
1155, 1160, 27 Sup. Ct Rep. 762.
The city's contentions are based on a
oonfusion of these capacities and the
powers or nghts respectively attributed
to them, and upon a misunderstanding of
the reservations in the decree of the
state court. The reservations were made
only in prudence, not to define the exist-
ence or extent of powers, and forestall
$4 If. ed.
their challenge, but to leave both to the
occasion when either of them might be
asserted or denied. And it is clear that
it was not intended to confound the ca-
pacities in which the city might act, and
the relation of the city's acts to those
capacities.
It is not necessary to repeat the rea-
soning or the examples of the cases oited
above, by which and in which the differ-
ent capacities of the city are defined and
illustrated. A franchise conveys rights,
and if their exercise could be prevented
or destroyed by a simple declaration of
a municipal council, they would be in-
firm indeed in tenure and substance. It
is to be remembered that they come in-
to existence by compact, having, there-
fore, its sanction, uiiged by reciprocal
benefits, and are attended and can only
be exercised by expenditure of money,
making them a matter of investments
and property, and entitled as such
against being taken without the proper
process of law, — the payment of compen-
sation.
The franchise of the present contro-
versy was granted prior to 1911, and
hence has the attributes and rights de-
scribed in Russell v. Sebastian, ^3 U. S.
195, 58 L. ed. 912, L.R.A.1918E, 882, 34
Sup. Ct Rep. 517, Ann. Cas. 1914C, 1282.
Its source, as was that of the franchise
in that case, is the Constitution of [40]
the state, and is that '^of using the public
streets and thoroughfares thereof . . .
for introducing into and supplying'' a
city ''and its inhabitants either with gas-
light or other illuminating light." We
s^ of such that the ''breadth of the
offer was commensurate with the require-
ments of the undertaking* which was in-
vited. The service to which the provi-
sion referred was a community service.
It was the supply of a municipality—
which ' had no municipal works — with
water or light." And again: '*The in-
dividual or corporation undertaking to
supply the city with water or light was
put in the same position as though such
individual or corporation had received a
special grant of the described street
rights in the city which was to be
served." We can add nothing to this
definition of rights, and, we may repeat,
they did not become immediately violable
or become subsequently violable.
It will be observed that we are not con-
cerned with the duty of the corpK)ration
operating a public utility to yield uncom-
pensated obedience to a police measure
adopted for the protection of the pub-
lic, but with a proposed uncompensated
taking or disturbance of what belongs to
127
4
40, 41
SLPREME COURT OF THE UNITED STATES.
Oct. Term,
one lighting 'system in order to make
way for another. And this the 14th
Amendment forbids. What the grant
was at its ineeption it remained^ and
was not subject to be displaced by some
other system, even that of the city, with-
out compensation to the corporation for
the rights appropriated.
We think, therefore, that the decree of
the District Court protecting the cor-
poration's rights from disturbance un-
der the ordinance in question must be
and it is affirmed.
Mr. Justice Pitney and Mr. Justice
Clarke dissent.
[411 ROBERT P. ERVIEN, Commissioner
of Public Lands of the State of New
Mexico, Appt.,
V.
UNITED STATES OF AMERICA.
(See S. C. Reporter's ed. 41-48.)
Public lands — New Mexico land grant
— use of proceeds — breach of trust.
The specific enumeration in the New
Mexico Enabling Act of June 20, 1910, of
the purposes for which the public lands
therein granted to that state may be dis-
posed of, and the further provision that
the natural products and money proceeds
of such lands shall be subject to the same
trusts as the lands themselves, renders In-
valid state legislation authorizing the com-
missioner of public lands of that state to
expend annually not to exceed 3 cents on
the dollar from the annual income of his
office from sales and leases of the public
lands. for making known the resources and
advantages of the state generally, and par-
ticularly to home seekers and investors,
and such a threatened breach of trust will
be. enjoined at the instance of the United
States.
[For other cases, see Public Lands. I* c, 5,
in Digest Sup. Ct. 1D08.]
[No. 72.]
Submitted November 11, 1919. Decided
December 8, 1919.
APPEAL from the United States Cir-
cuit Court of Appeals for the Eighth
Circuit to review a decree which re-
versed, with a direction t6 enter a decree
for the plaintiff, a decree of the District
Court for the District of New Mexico,
dismissing ;the bill in a suit to enjoin a
threatened breach of trust by the com-
missioner of public lands of the state
of New Mexico. Affirmed,
See same case below, 159 C. C. A. 7,
246 Fed. 277.
The facts are stated in the opinion.
128
Mr. A. B. Benahaii submitted the
I c^use for appellant. Mr. Carl H. Gil-
bert was on the brief:
This was a suit again^ the state of
New Mexico.
. Ajitoni V. Greenhow, 107 U. S. 769, 27
L. ed. 468, 2 Sup. Ct. Rep. 91 ; Cunning-
ham V. Macon & B. R. Co. 109 U. S. 446,
27 L. ed. 992, 3 Sup. Ct. Rep. 292, .609;
Sundry African Slaves v. Madrazo, 1 Pet.
110, 7*^L. ed. 73 ; Hagood v. Southern, 117
U. S. 52, 29 L. ed. 805, 6 Sup. Ct. Rep.
608; Re Ayers, 123 U. S. 443, 31 L. ed.
216, 8 Sup. Ct. Rep: 164; Louisiana v.
Jumel, 107 U. S. 711, 27 L. ed. 448, 2
Sup. Ct. Rep. 128; Minnesota v. Hitch-
cock, 185 U. S. 373, 46 L. ed. 954, 22 Sup.
Ct. Rep. 650; Louisiana ex rel. New
York Guaranty & I. Co. v. Steele, 134 U.
S, 230, 33 L. ed. 891, 10 Sup. Ct. Rep.
511; Smith v. Reeves, 178 U. S. 436, 44
L. ed. 1140, 20 Sup. Ct. Rep. 919.
The trust estate is chargeable with the
reasonably necessary expenses of its ad-
ministration.
Attv. Gen. ex rel. Bignold v. Norwich.
2 Myl. & C. 424, 40 Eng. Reprint, 702;
Crump v. Baker, 18 Ves. Jr. 285, 34 Engr.
Reprint, 325; Meddaugh v. Wilson. 151
U. S. 333, 38 L. ed. 183, 14 Sup. Ct. Rep.
356; Perry, Trusts, § 910; Rex v. Sewer
Comrs. 1 Barn. & Ad. 232, 109 Eng.
Reprint, 773, 9 L. J. Mag. Cas. 30; Rex
V. Essex, 4 T. R. 591, 100 Eng. Reprint,
1193, 2 Revised Rep. 470; Internal Im-
prov. Fund v. Greenough, 105 U. S, 527,
26 K ed. 1157; WorraU v. Harford, 8
Ves. Jr. 8, 32 Eng. Reprint, 251.
The reasonableness of expenses de-
pends on the nature of the trust.
Hill, Trusteesy chfip. 5, pi 570.
Publicity is required in trusts to sell.
Connolly v. Parsons, 3 Ves. Jr. 628,
note, 30 Eng. Reprint, 119, note; Dounes
V. Grazebrook, 3 Meriv. 208, 36 Eng. Re-
print, 80, 17 Revised Rep. 62; Mortlock
V. Buller, 10 Ves. Jr. 309, 32 Eng. Re-
print, 863, 7 Revised Rep. 417; Ord v.
Noel, 5 Madd. Ch. 440, 56 Eng. Reprint,
963, 21 Revised Rep. 328; Wilkms v.
Fr>% 1 Meriv. 268, 35 Eng. Reprint, 673,
2 Rose, 375, 15 Revised Rep. 110.
A contract for sale must not be en-
tered into under circumstances of haste
or improvidence.
Ord V. Noel, 5 Madd. Ch. 440, 56 Eng.
Reprint, 963, 21 Revised Rep. 328.
The trial court should have consider-
able latitude of discretion in determining
what expenses are reasonable.
Internal Improv. Fund v. Greenough,
105 U. S. 527, 26 L. ed. 1157.
Reasonableness of expenses is gauged
by business usage.
251 U. 8.
1919.
ERVIEX V. UNITED STATES.
45, 40
PeiT\'. Trusts, § 770; Phelps v. Harris,
101 U/ S. 380, 25 L. ed. 859.
Where, as here, the question is solely
one of whether or not -the trustee is
eflReiently discharging his duties, the ad-
ministration of the trust should not be
interfered with by injunction unless a
gross abuse of discretion be shown.
NichcSs V. Eaton. 91 U. S. 716, 23 L.
ed. 254; Colton v. Colton. 127 U. S. 300,
32 K ed. 138, 8 Sup. Ct. Rep. 1164.
Assistant Attorney General Frierson
submitted the cause for appellee. As-
sistant Attorney General Nebeker and
Mr. Leslie C. Gamett filed a brief :
The district court had jurisdiction of
the case.
Ex parte Young, 209 U. S. 123, 52
L. ed. 714, 13 L.R.A.(N.S.) 932, 28 Sup.
Ct. Rep. 441. 14 Ann. Cas. 764; Truax
V. Raich, 239 U. S. 33, 37, 60 L. ed. 131,
133, L.R.A.1916D, 545, .16 Sup. Ct. Rep.
7. Ann. Cas. 1917B, 283 ; Loonev v. Crane
Co. 245 U. S. 178, 191, 62 L. ed. 230, 235,
38 Sup. Ct. Rep. 85; Cavanaugh v.
Loonev, 248 U. S. 453, 456, 63 L. ed. 354,
357, 39 Sup. Ct. Rep. 142.
[431 Mr. Justice McKenna delivered
the opinion of the court :
Suit to enjoin the expenditure by ap-
pellant, commissioner of public lands of
the state of New Mexico, of any of the
funds derived from the sale and lease
of lands granted and confirmed to the
state by the act admitting her into the
Union. The right to sell or lease is as-
serted under a certain act of New Mexico
entitled, "An Act Concerning the Public-
ity and Promotion of Public Resources
and Welfare."
The Enabling Act was passed June 20,
1910 [36 Stat, at L. 557, chap. 310], and
on August 21, 1911 [37 Stat, at L.^39],
by a joint resolution of the Senate and
House of Representatives, New Mexico
and Arizona were admitted into the
Union upon an equal footing with the
original states.
By the Enabling Act certain grants
of public landi^ were made to New
Mexico for purposes of which there was
a specific enumeration.
It is provided by § 10 of the act that
the lands granted and transferred there-
by "shall be by the said state held in
trust, to be disposed of in whole or in
part only in manner as herein provided
and for the several objects specified in
the respective granting and confirmatory
provisions, and that the natural products
and monev proceeds of anv of said lands
14 L. ei.
shall be subject to the same trusts as the
lands producing the same."
And it is further provided that the
''disposition of any of said lands, or of
any money or thing of value directly or
indirectly derived therefrom, for any ob-
ject other than that for which such par-
ticular lands, or the lands from which
such money or thing of valjae shall have
been derived, were granted or confirmed,
or in any manner contrary to the provi-
sions of this act, shall be deemc<l a
breach of trust."
It is made the duty of the Attornev
General of the [46] United States to
prosecute in the name of the United
States such proceedings at law or in
equity as may be necessary to enforce
the provisions of the act "relative to the
application and disposition of the said
lands and the products thereof and the
funds derived therefrom."
The Constitutional Convention was re-
quired to provide, by an ordinance irrev-
ocable without the consent of the Unit-
ed States and the people of the state,
that the state and its people consent to
the provisions of the act, and the Con-
stitution of the state did so provide.
The legislature of the state, on March
8, 1915, passed, over the governor's veto,
,An act entitled as we have designated,
the first section of which is as follows:
"Sec. 1. It shall be unlawful for the
commissioner of public lands to expend
for making known the resources and ad-
vantages of this state generally and par-
ticularly to home seekers and investors,
more than 3 cents on the dollar of the
annual income of his office from sales
and leases of lands, but, up to such limit
of money annually, he may give or cause
to be given publicity to such resources
and advantages, and do or cause to be
done all incidental work, in his judg-
ment advisable to be done."
The commissioner receives from sales
and leases of the lands granted a large
income annually, the income for the year
ending December 31, 1914, being approxi-
mately $741,000, and he threatens to ex-
pend 3 cents on the dollar of the annual
income derived from sales and leases to
give publicity to the resources and ad-
vantages of the state generally in con-
formity with the act of the legislature
of March 8, 1915, and, unless restrained,
will do so.
The answer, though in form a denial
of some of the averments of the bill and
an admission of others, is really an ob-
jection to its sufficiency to authorize the
relief prayed, and the ground of objec-
tion is that the bill, taken as a whole,
12tl
46r48
SUPREME COURT OF THE UNITED STATES.
Oct. Tsbm,
**is no more than ua attempt to interfere
with the due administration of a trust
estate by the trustee, the [47] state of
New Mexico, which requires the payment
of necessary and proper expenses out of
the income or proceeds of the trust prop-
erty, the grantor of the trust, the govern-
ment of the United States, having made
no other provision for the payment of
such necessary and proper costs and ex-
penses; and defendant avers that the ex-
penditure of a small portion of such in-
come and proceeds &)r the purpose of
advertising the resources of the state and
the value of its lands, with the hope of
thereby increasing the demand for the
purchase and leasing of such lands and
in the enhancing of the prospective prices
to be derived therefrom, is a proper and
necessary expense of the administration
of said trust estate.^
A temporary injunction was applied
for and denied, and subsequently the
case by stipulation was submitted upon
bill and answer, upon which it was or-
dered that the bill be and it was dis-
missed.
The decree was reversed by the circuit
court of appeals, and the case remanded
with direction to enter a decree for the
United States. This appeal was then'
prosecuted.
The case is not in broad range and
does not demand much discussion. There
is in the Enabling Act a specific enu-
meration of the purposes for which the
lands were granted, and the enumeration
is necessarily exclusive of any other pur-
pose. And to make assurance doubly
sure it was provided that the natural
products and money proceeds of such
lands should be subject to the same
trusts as the lands producing the same.
To preclude any license of construction
or liberties of inference it was declared
that the disposition of any of the lands
or of the money or anything of value
directly or indirectly derived therefrom
for any object other than the enumerated
ones should "be deemed a breach of
trust."
The dedication, we repeat, was special
and exact, precluding any supplementary
or aiding sense, in prophetic realization,
it may be, that the state might be tempt-
ed [48] to do that which it has done,
lured from patient methods to specula-
tive advertising in the hope of a speedy
prosperity.
It must be admitted there was entice-
ment to it and a prospect of realization,
and such was the view of the district
court. The court was of opinion that a
ISO
private proprietor of the lands would,
without hesitation, use thf?ir revenues to
advertise their' advantage, and that that
which was a wise administration of the
property in him could not reach the odi-
ous dereliction of a breach of trust in
the state.
The phrase, however, means no more
in the present case than that the United
States, being the grantor of the lands,
could impose conditions upon their use,
and have the right to exact the per-
formance of the conditions. We need
not extend the argument or multiply con-
siderations. The careful opinion of the
Circuit Court of Appeals has made it
unnecessary. We approve, therefore, its
conclusion and affirm its decree.
Affirmed,
LIVERPOOL, BRAZIL, & RIVER PLATE
STEAM NAVIGATION COMPANY, Pe-
titioner,
V.
BROOKLYN EASTERN DISTRICT TER-
MINAL.
(See S. 0. Reporter's ed. 4&-d4.)
Shipping — limiting liability — interest
in adventure.
The value of a car float and a dis-
abled tug lashed to either side of another
tug which was actually responsible for a
collision cannot, although they were all
owned by the same person, be included,
when limiting liability, conformably to U.
S. Rev. Stat. §§ 4283-4285, which provide
that the liability of the owner of any vessel
for any injury by collision shall in no case
exceed the value of the interest of such
owner in such vessel.
[For other oases, see Shipping, V, c, 4. In
Dlfest Sup. Ct 1908.1
[No. 81.]
Argued November 14. 1919. Decided De-
cember 8, 1919.
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 for the limitation of liability of a
vessel owner. Affirmed.
See same case below, 162 C. C. A. 664,
250 Fed. 1021.
The facts are stated in the opinion.
Note. — On limitation of shipowner's
liability — see note to Lawton v. Comer,
7 L.R.A. 55.
151 V. 8.
1919. LIVERPOOL, B. A: U. V. S. NAV. CO. v. BROOKLYN E. D. TERMINAL. 61, 52
Mr. Van Vechten Veeder argued the
eanse, and, with Mr. Charles C. Burling-
ham, filed a brief for petitioner:
Where two vessels without motive
power are lashed alongside and in tow
of a steam tug, the three vessels forming
a flotilla owned in common, engaged in
the same adventure, and operated by the
servants of the owner, the owner is en-
titled to limit his liability for n^ligent
navigation only upon surrendering the
whole flotilla.
The Main v. WilHams, 152 U. S. 122,
131, 38 L. ed. 381, 384, 14 Sup. Ot. Rep.
486; Thompson Towing & Wrecking
Aaso. V. MeGvegor, 124 C. C. A. 479, 207
Fe^ 209; The Columbia, 19 C. C. A.
436, 44 U. S. App. 826,. 73 Fed. 226;
Or^n R. ft Nav. Co. v. Balfoxar, 33 C.
C. A. 67, 61 U. S. App. 150, 90 Fed. 296;
The San Rafael, 72 C. C. A. 388, 141
Fed. 270; Shipowners' & Merchants' Tug-
boat Co. V. Hammond Lumber Co. 134
C. C. A. 575, 218 Fed. 161 ; The Borden-
town, 40 Fed. 682; The Anthracite, 162
Fed. 388.
There may be no liability whatever in
rem, and yet the shipowner may be en-
titled to limit his liability by surrender-
ing the vessel which was concerned in the
disaster.
The Hamilton (Old Dominion S. 8.
Co. V. Gilmore) 207 U. S. 398, 52 L. ed.
264, 28 Sup. Ct. Rep. 133; Richardson v.
Harmon, 222 U. S. 96, 56 L. ed. 110, 32
Sup. Ct. Rep. 27.
The limitation statute, being in dero-
gation of the common-law rights of the
claimant, is to be construed strictly
against the shipowner.
The Main v. Williams, 152 U. S. 122,
38 Lu ed. 381, 14 Sup. Ct. Rep. 486.
Mr. Samuel Park argued the cause,
and, with Mr. Henry E. Mattison, filed a
brief for respondent :
A tug and her tow cannot be regarded
as one vessel for the purpose of ascer-
taining their relations between them-
selves, or their several liabilities to re-
spond for the consequences of a fault of
one of them.
The W. G. Mason, 74 C. C. A. 83, 142
Fed. 913; The Transfer No. 21, 160 C.
C. A. 469, 248 Fed. 469; The Coastwise,
147 C. C. A. 71, 233 Fed. 4; Van Eyken
v. Erie R. Co. 117 Fed. 717; The Erie
Lighter 108, 250 Fed. 497; The Mary P.
Riehl, 259 Fed. 919; The Sunbeam, 115
C. C. A. 370, 195 Fed. 470; United
States V. The Adhel, 2 How. 210, 11 L.
04 li. ed.
ed. 239; The China, 7 Wall. 53, 19 L. ed.
67; Ralli v. Troop, 157 U. S. 402, 39 L.
ed. 749, 15 Sup. Ct. Rep. 657; Cushing v.
The John Fraser (The James Gray v.
The John Fraser) 21 How. 194, 16 L. ed.
•110: The Carrie L. Tyler, 54 L.R.A. 236,
« C. C. A. 374, 106 Fed. 426; The Civil-
ta, 103 U. S. 699, 26 L. ed. 599; Cushing
V. The John Fraser (The James Ghray v.
The John Fraser) 21 How. 184, 16 L.
ed. 106; Sturgis v. Boyer, 24 How. 122,
16 L. ed. 694; The John G. Stevens, 170
U. S. 122, 42 L. ed. 973, 18 Sup. Ct. Rep.
344; The Eugene F. Moran, 212 U. S.
466, 53 L. ed. 600, 29 Sup. Ct. Rep. 339;
Union S. S. Co. v. The Araean, 2 Asp.
Mar. L. Caa. 350; L. R. 6 P. C. 127, 43
L. J. Prob. N. S. 30, 31 L. T. N. S. 42, 22
Week. Rep. 927.
Mr. Jnntice Hobnea delivered the opin-
ion of the court:
This iS' a libel in admiralty brought
by the petitioner against the respondent
for a collision with the petitioner^ steam-
ship Yauban while it was moored at a
pier in Brooklyn. The respondent does
not deny liability, but claims the right to
limit it under Rev. Stat. §§ 4283-4285,
Comp. Stat. §§ 8021-8023, 6 Fed. Stat.
Anno. 2d ed. pp. 336, 360, 363, to the
value of the vessel that caused the dam-
age. The moving cause was the respond-
ent's steam tug Intrepid, which was
proceeding up the East river, with a car
fioat loaded with railroad cars lashed to
its port side and on its starboard side a
disabled tug, both belonging to the [5d]
respondent. By a stipulation dated Au-
gust 3, 1917, it was agreed that the dam-
age sustained was $28,036.98, with
$5,539.84 interest. The value of the tug
Intrepid was found to be $5,750, and the
liability of the respondent was limited
by the district court to that sum, with
interest. The circuit court of appeals
affirmed the decree without an opinion.
162 C. C. A. 664, 250 Fed. 1021. The
case is brought here on the question
whether the value of the whole flotilla
should not have been included in the de-
cree.
The car float was the vessel that came
into contact with the Vauban, but as it
was a passive instrument in the hands of
the Intrepid, that fact does not affect
the question of responsibility. Cushing
V. The John Fraser (The James Gray v.
The John Fraser) 21 How. 184, 15 L. ed.
106; The J. P. Donaldson, 167 U. S. 599,
131
.".2-54
SLPREME COURT OF tHE UNITED STATES.*
Oct. Xebm,
603, 604, 42 L. ed. 292, 294, 295, 17 Sup.
Ct. Rep. 951 ; The Eugene F. Moran, 212
U. S. 466, 474, 475, 53 L. ed. 600, 603,
604, 29 Sup. Ct. Rep. 339; Union S. S.
Co. V. The Araean, L. R. 6 P. C- 127,
43 L, J. Prob. N. S. 30, 31 L. T. N. S.
42, 22 Week. Rep. 927, 2 Asp. Mar. L*
Gas. 350. The rule is not changed by
the ownership of the vessels. The John
G. Stevens, 170 U. S. 113, 123, 42 L. ed.
969, 973, 18 Sup. Ct. Rep. 544; The W.
G. Mason, 74 C. C. A. 83, 142 Fed. 913,
917; 212 U. S. 466, 475; L. R. 6 P. C.
127, 133. These cases f^how that for the
purposes of liability the passive instru-
ment of the harm does not become one
with the actively responsible vessel by
being attached to it. If this were a pro-
ceeding in rem it may be assumed that
the car float and disabled tug would
escape, and none the less that they were
lashed to the Intrepid, and so were more
helplessly under its control than in the
ordinary case of a tow.
It is said, however, that when you
come to limiting liability, the foregoing
authorities are not controlling, — that the
object of the statute is ''to limit the lia-
bility of vessel owners to their interest
in the adventure'^ (The Main v. Wil-
liams, 152 U. S. 122, 131, 38 L. ed. 381,
384, 14 Sup. Ct. Rep. 486), and that the
same reason that requires the surrender
of boats and apparel requires the sur-
render of the other instrumentalities by
means of which the tug was rendering
the services for which it [53] was paid.
It can make no difference, it is argued,
whether the cargo is carried in the hold
of the tug or is towed in another vessel.
But that is the question, and it is not
answered by putting it. The respondent
answers the argument with the sugges-
tion that, if sound, it applies a different
rule in actions in personam from that
which, as we have said, governs suits
in rem. Without dwelling upon that, we
are of opinion that the statute does not
warrant the distinction for which the
petitioner contends.
The statute follows the lead of Euro-
pean countries, as stated in The Main
v. Williams, 152 U. S. 122, 126, 127, 38
L. ed. 381-383, 14 Sup. Ct. Rep. 486.
Whatever may be the doubts as to the
original grounds for limiting liability
to the ship, or with regard to the historic
starting point for holding the ship re-
sponsible as a moving cause (The Black-
heath (United States v. Evans) 195 U.
S. 361, 366, 367, 49 L. ed. 236, 237, 238.
132
25 Sup. Ct. Rep. 46), it seems a per-
missible conjecture that both principles,
if not rooted in the same conscious
thought, at least were influenced by the
same semiconscious attitude of mind.
When the continental law came to be
followed by Congress, no doiibt, along-
side of the desire to give our shipown-
ers a chance to compete with those of
Europe, there was in some sense an in-
tent to limit liability to the venture;
but such a statement gives little help in
deciding where the line of limitation
should be drawn. No one, we presume,
would contend that other unattached
vessels, belonging, if you like, to the
same owner, and co-operating to the same
result with the one in fault, would have
to be surrendered. Thompson Towinpr
& Wrecking Asso. v. McGregor, 124
C. C. A. 479, 207 Fed. 209, 212-214; The
Simbeam, 115 C. C. A. 370, 195 Fed. 468,
470; The W. G. Mason, 74 C. C. A. 83.
142 Fed. 913, 919. The notion, as appli-
cable to a collision case, seems to us to
be that if yon surrender the offending
vessel you are free, just as it was said
by a judge in the time of Edward III. :
"If my dog kills your sheep and I, fresh-
ly after the fact, tender you the dog,
you are without recourse against me.''
Fitzh. Abr. Barre, 290. The words of the
[54] statute are: "The liability of the
owner of any vessel for any injury by
collision shall in no ease exceed the value
of the interest of such owner in such
vessel." The literal meaning of the
sentence is reinforced by the words
"in no case.'' For clearly the liability
would be made to exceed the interest of
the owner "in such vessel" if you said
frankly, "In some cases we propose to
count other vessels in although they are
not ^suoh vessel ;' " and it comes to the
same thing when you profess a formal
compliance with the words, but reach the
result by artificially construing "such
vessel" to include other vessels if only
thej' are tied to it. Earlier cases in the
second circuit had disposed of the ques-
tion there, and those in other circuits
for the most part, if not wholly, are
reconcilable with them. We are of opin-
ion that the decision was right. The
Transfer No. 21, 160 C. C. A. 469, 248
Fed. 459 ; The W. G. Mason, 74 C. C. A.
83, 142 Fed. 913; The Erie Lighter 108.
250 Fed. 490, 497, 498; Van Eyken v.
Erie R. Co. 117 Fed. 712, 717.
Decree affirmed.
251 v. S.
im^.
CHICAGO, R. I. & P. R. CO. v. COLE.
CHICAGO. ROCK ISLAND, & PACIFIC
RARWAY COMPANY, Plff. in Err.,
V.
EVA ROBKRTS COLE, as Administratrix
of the Estate of A. W. Robertn. Deceased,
for Herself, * Sarah F. Roberts, Claude
Roberts, and Barniim Roberts.
(See S. C. Reporter's ed. 54-56.)
Constitationiil law — due procoss of
law — remedies and procedure —
abolishing common-law defenses . —
contrlbntory negligence.
1. A state may, consistently with due
process of law, abolish the defense of con-
tributory negligence.
[For other cases, see Constitutional Law. IV.
b, 8. in Digest Sup. Ct. 1008.]
Constitutional law — due process of law
— remedies and procedure — making
contrlbiitory negligence a question
for the jury.
2. Tkere is nothing in the 14th Amend-
ment to the Federal Constitution that de-
prives a state from providing in its Con-
stitution that the defense of contributory
negligence shall, in all cases whatsoever, be
a question of' fact, and shall, at all times,
lie left to the jury.
(For other cases, see Constitutioual Law, IV.
b, 8, in Dtsest Sup. Ct. 1908.1
[No. 290.]
Submitted on motion to dismiss or affirm
November 17, 1919. Decided December 8,
1919.
IN ERIHOR to the Supreme Court of
. the State of Oklahoma to review a
judgment which affirmed a judgment of
the District Court of Oklahoma County,
in that state, in favor of plaintiff in an
action for death. Affirmed.
See same case below, — Okla. — , 177
Pac. 570.
The facts are stated in the opinion.
Mr. E. J. Roberts submitted the
cause for plaintiff in error. Messrs. G.
O. Blake and John E. DuMars were on
the brief:
The common-law defense of oontribu-
fory negligence was not taken away or
changed by the provision of artiele 23,
§ 6, of the Oklahoma Constitution.
MeKennon v. Winn, 1 Okla. 334, 22
L.B.A. 601, 33 Pac. 582; Severv v. Chi-
cago, B. I. & P. R. Co. 6 Okla. 153, 50
Note. — As to what constitutes due
process of law, generallv — see notes to
People V. O'Brien, 2 L.R.A. 255; Kuntz
V. Sumption, 2 L.R.A. 655; Re Gannon,
5 L.R.A. 359; Ulman v. Baltimore, 11
L.R.A. 224; Oilman v. Tucker, 13 L.R.A.
304; Pearson v. Yewdall, 24 L. ed. U. S.
436; and Wilson v. North Carolina, 42
U ed. U. S. 865.
64 L. ed.
Pac. 162, 3 Am. Neg. Rep. 463; Pittman
I V. El Reno, 4 Okla. 638, 46 Pac. 495 ; St.
I Louis & S. F. R. Co. v. Long, 41 Okla.
190, 137 Pac. 1156, Ann. Cas. 1915C,
432; Hailev-Ola Coal Co. v. Morgan, 39
Okla. 71, 134 Pac. 29; Frederick Cotton
Oil & Mfg. Co. V. Traver, 36 Okla. 717,
129 Pac. 747 ; Chicago, R. L & P. R. Co.
V. Duran, 38 Okla. 719, 134 Pac. 876;
St. Louis & S. F. R. Co. v. Loftis, 25
Okla. 496, 106 Pac. 824; Missouri, K. &
T. R. Co. V. Shepherd, 20 Okla. 629, 95
Pac. 243; Chicago, R. I. & P. R. Co. v.
Pitchford, 44 Okla, 197, 143 Pac. 1146;
Chickasha Cotton Oil Co. v. Brown, 39
Okla. 245, 134 Pac. 850.
There is no inherent difference be-
tween negligence of plaintiff and negli-
gence of defendant, — both are contribu-
tory; and the Oklahoma supreme court
has frequently and expressly recognized
the rule that whether or not an act is
negligent is a question of law only, ex-
cept where the minds of reasonable men
might differ with reference thereto.
Missouri, K. & T. R. Co. v. Shepherd,
20 Okla. 629, 95 Pac. 243; St. Louis &
S. F. R. Co. V. Loftis, 25 Okla. 496, 106
Pac. 824; Muskogee Vitrified Brick Co.
V. Napier, 34 Okla. 618, 126 Pac. 792;
Midland Vallev R. Co. v. Bailey, 34 Okla.
193, 124 Pac. 987: Smith v. Acme Mill.
Co. 34 Okla. 439, 126 Pac. 190; St.
Louis & S. F. R. Co. v. Hess, 34 Okla.
615, 126 Pac. 760.
These decisions of the Oklahoma su-
preme court were in accordance with the
^ established rule.
1 Shearm. '& Redf. Neg. 6th ed. §§
52, 56.
The right to the defense of contribu-
tory negligence, and to such defenses as
bar recovery, became a substantia], vest-
ed right, protected by the Federal Con-
stitution, at the time of the occurrence
upon which the action was brought.
Coolev, Const. Lim. 521; Bicknell v.
Comstock, 113 U. S. 149, 28 L. ed. 962,
5 Sup. Ct. Rep. 399; St. Louis, I. M. &
S. R. Co. V. McWhirter, 229 U. S. 265,
57 L. ed. 1179, 33 Sup. Ct. Rep. 858;
Pritchard v. Norton, 106 U. S. 141, 27
L. ed. 110, 1 Sup. Ct. Rep. 102; Baltimore
6 0. S. W. R. Co. V. Reed, 158 Ind. 25, 56
L.R.A. 468, 92 Am. St. Rep. 293, 62 N. E.
488; Merchants Nat. Bank v. East Grand
Forks, 94 Minn. 246, 102 N. W. 703.
The guaranty of due process and the
equal protection of law assures a con-
tinuance of a government of impartial
laws, and the existence of judicial tri-
bunals to construe and apply them; and
the 14th Amendment having had in view
principles, conditions, and meanings in
133
55, 5G
SUPREME COURT OF THE UNITED STATES.
Oct. Tekm,
jurisprudence as known at the time of
the adoption, evasion by attempts at vio*
latiou of those meanings is forbidden.
McGehee, Due Process of Law, 59:
Den ex dem. Murray v. Hoboken Land
& Improv. Co. 18 How. 272, 15 L. ed.
372; Huber v. Guggenheim, 89 Fed. 601;
Thayer, Ev. pp. 191-193; Lowe v. Kan-
sas, 163 U. S. 81, 41 L. ed. 78, 16 Sup.
Ct. Rep. 1031; Ex parte Wall, 107 U. S.
265, 27 L. ed. 552, 2 Sup. Ct. Rep. 569;
Prentis v. Atlantic Coast Line Co. 211
U. S. 210, 53 L. ed. 150, 29 Sup. Ct. Rep.
67.
The constitutional convention unques-
tionably had the power to vary the com-
mon law and to reject the rules making
assumption of risk and contributory neg-
ligence defenses, but it has not done so.
St.* Louis & S. F. R. Co. v. Long, 41
Okla. 190, 137 Pac. 1156, Ann. Cas.
1915C, 432.
The guaranty of the equal protection
of the laws and due process of law for-
bids the investment of arbitrary powers
of determination and use of variant
standards for the test of negligence.
Judicial power is jurisdiction, and
there can be no judgment without juris-
diction, and a judical determination, or
confession, or admission ; and juries have
no judicial powers under the Constitu-
tion and laws of Oklahoma, and there
has been no pretense of conferring such
powers as to this question.
Yick Wo V. Hopkins, 118 U. S. 356,
373, 30 L. ed. 220, 227, 6 Sup. Ct. Rep.
1064; McGehee, Due Process of Law, pp.
59, 60; Kiley v. Chicago, M. & St. P. R.
Co. 138 Wis. 215, 119 N, W. 314, 120
N. W. 756, 21 Am. Neg. Rep. 394; Cooley,
Const. Lim. 589; Baker v. Newton, 27
Okla. 446, 112 Pac. 1034; Hopkins v.
Nashville, C. & St. L. R. Co. 96 Tenn.
409, 32 L.R.A. 354, 34 S. W. 1031;
American Pub. Co. v. Fisher, 166 U. S.
464, 41 L. ed. 1079, 17 Sup. Ct. Rep.
618: Capital Traction Co. v. Hof, 174
U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep.
580 ; Luce v. Garrett, 4 Ind. Terr. 54, 64
S. W. 613; Ervine's Appeal, 16 Pa. 256,
55 Am. Dec. 499; Janesville v. Carpenter,
77 Wis. 288, 8 L.R.A. 809, 20 Am. St.
Rep. 123, 46 N. W. 128; Wiseman v.
Tanner, 221 Fed. 714; Blaker v. State,
130 Ind. 203, 29 N. E. 1077.
Messrs. W. A. Ledbetter and H. L.
Stuart submitted the cause for defend-
ants in error. Messrs. R. R. Bell and
E. P. Ledbetter were on the brief:
A state may abolish contributor}" neg-
ligence as a defense.
Arizona Employers' Liability Cases
(Arizona Copper Co. v. Hammer) 250 U.
134
S. 400, 63 L. ed. 1058, 6 A.L.R. 1537, 39
Sup. Ct Rep. 553.
If a state can abolish contributory
negligence as a defense, it certainly has
the power to declare that the defense of
contributory negligence shall be one of
fact, to be determined by the jury.
Bowersock v. Smith, 243 U. S. 29, 35,
61 L. ed. 572, 577, 37 Sup. Ct. Rep. 371 ;
Chicago & A. R. Co. v. Tranbarger, 238
U. S. 67-78, 59 L. ed. 1204-1211, 35 Sup.
Ct. Rep. 678; New York C. R. Co. v.
White, 243 U. S. 188, 61 L. ed. 667,
L.R.A.1917D, 1, 37 Sup. Ct. Rep. 247,
Ann. Cas. 1917D, 629, 13 N. C. C. A. 943 ;
Minneapolis & St. L. R. Co. v. Bombolis,
241 U. S. 211-220, 60 L. ed. 961-964,
L.R.A.1917A, 86, 36 Sup. Ct. Rep. 595.
Ann. Cas. 1916E, 505; St. Louis & S. F.
R. Co. v. Brown, 241 U. S. 223-228, 60
L. ed. 966-969, 36 Sup. Ct. Rep. 602.
Mr. Justice Holmes delivered the opin-
ion of the court:
Tbis is an action brought by the de-
fendant in error for knocking down and
killing her intestate, Roberts. He
stepped upon the railroad track when a
train was approaching in full view, and
was killed. It may be assumed, as the
state court assumed, that, if the question
were open for a ruling of law, it would
be ruled that the plaintiff could not re-
cover. But the Oklahoma Constitution
provides that "the defense of contribu-
tory negligence or of assumption of risk
shall, in all cases whatsoever, be a ques-
ti(9ti of fact, and shall, at all times, be
left to the jury." Art. 23, § 6. The case
was left to the jury, and they found a
verdict for the plaintiff. Judgment was
entered for her and was affirmed on error
by the supreme court of the state, which
held that the provision applied to the
case, and that, when so applied, it did
not contravene the 14tb Ajnendment of
the Constitution of the United States.
The state Constitution was in force
when the death occurred, and therefore
the defendant had only such right to the
defense of contributory negligence as
that Constitution allowed. The argu-
ment that the railroad company had a
vested right to that defense is disposed
of by the decisions that it may be taken
away altogether. Arizona Employers'
Liability Cases (Arizona Copper Co. v.
Hammer), 250 U. S. 400, 63 L. ed. 1058,
6 A.L.R. 1537, 39 Sup. Ct. Rep. 653:
Bowersock v. Smith, 243 U. S. 29, 34, 61
L. ed. 572, 577, 37 Sup. Ct. Rep. 371. It is
said that legislation cannot [56] change
the standard of conduct, which is matter
of law in its nature, into matter of fact,
2S1 V. S.
I9id.
BRAGG V. WEAVER.
56, 5:
mud tliis may be conceded; bat the ma-
terial element in the constitutional enact-
Oient is not that it called contributory
negligence fact, but that it left it wholly
to the jury. There is nothing, however,
in the Constitution of the United States
or its Amendments, that requires a state
to maintain the line with which we are
familiar between the functions of the
jury and those of the court. It may do
away with the jury altogether (Walker
V. Sauvinet, 92 U. S. 90, 23 L. ed. 678),
modify its constitution (Maxwell v. Dow,
176 U. S. 581, 44 L. ed, 597, 20 Sup. Ct.
Rep. 448, 494), the requirements of a
verdict (Minneapolis & St. L. R. Co. v.
Bombolis, 241 U. S. 211, 60 L. ed. 961,
L.R.A.1917A, 86, 36 Sup. Ct. Rep. 596,
Ann, Cas. 1916E, 505), or the procedure
before it (Twining v. New Jersey, 211 U.
S. 78, 111, 53 L. ed. 97, lU, 29 Sup. Ct.
Rep. 14; Prank v. Mangum, 237 U. S.
309, 340, 59 L. ed. 969, 985, 35 Sup. Ct.
Rep. 582). As it may confer legislative
and judicial powers upon a commission
not known to the common law (Prentis
V. Atlantic Coast Line Co. 211 U. S. 210,
53 L. ed. 150, 29 Sup. Ct. Rep. 67), it
may confer larger powers upon a jury
thas those that generally prevail. Pro-
visions making the jury judges of the
law as well as of the facts in proceed-
ings for . libel are common to England
and some of the states,* and the contro-
versy with regard to their powers in
matters of law more generally as illus-
trated in Sparf v. United States, 156
XJ. S. 51, 39 L. ed. 343, 15 Sup. Ct. R«p.
273, 10 Am. Crim. Rep. 168, and Georgia
V. Brailsford, 3 DalL 1, 4, 1 L. ed. 483,
434, «hows that the notion'' is not .a
novelty. In the present instance the
plaintiff in error cannot complain that its
chance to prevail upon a certain ground
is diminished, when the ground might
have been altogether removed.
Judgment affirmed.
[57] TALBOT DARBY BRAGG, Plff. in
Err.,
V.
R. S. WEAVER et al.
(Sec S. C. Reporter's ed. 57-62.)
Constitntlonal law « dve process of law
— eminent domain ^ notice and hear-
ing. •
1. Where the intended use of property
taken by eminent domain is public, the
necessity and expediency of the taking mav
be determined by such agency and in such
mode as the state may designate, tho>e be-
64 li. ed.
ing legislative questions, no matter who
may be charged with their decision, and a
hearing thereon is not essential to due
process in the sense of the 14th Amendment
to the Federal Constitution.
[For other cases, see Constitutional Law, 696-
773: Eminent Domain, 73-75, In Digest Sup.
Ct. IvOO'J
Constitutional law — due process of
law ^ eminent domain ^ notice and
hearing.
2. It is essential to due process of law
that the mode of determining the compen-
sation to be paid for property taken by
eminent domam be such as to afford the
owner an opportuni^ to be heard.
[For other cases, see Constitntlonal Law, 606-
778 : Eminent Domain, 78-75, in Digest Sup.
Ct. 1908.]
Constitutional law ~ due process of law
— eminent domain « notice and hear-
ing.
3. A sufficient opportunity to be heard
respecting the compexisation to be paid for
the taking, under legislative sanction, of
earth from land adjoining a highway, to
be used in repairing the road, is afforded
to the owner of such land, where the law
contemplates that, in the absence of agree-
ment, the compensation is to be assessed
primarily by viewers, whose award is to be
examined by the supervisors and approved
or changed as to the latter may appear
reasonable, and that from the decision of
the supervisors an appeal may be taken as
of right to a court of general jurisdiction,
in which the matter may be heard de novo,
and where, under such law, the proceedings
looking to an assessment may be initiated
by the owner as well as by the road officers,
either of whom may apply to a justice for
the appointment of viewers, and where, al-
though there is no eicpresa provision for
notice at Uie inception or during the early
stages of the proceeding, the statute pro-
vides that the claimant, if not present when
Note. — As to what constitutes due
pirocess of law, generally — see notes to
People V. O'Brien, 2 LJl.A. 255 j Kuntz
V. Sumption, 2 L.R.A. 655; Re Gannon,
5 L.RA. 359; Ulman v. Baltimore, 11
L.R.A. 224; Oilman v. Tucker, 13 L.R.A.
304; Pearson v, Yewdall, 24 L. ed. TJ. S.
436; and Wilson v. North Carolina, 42
L. ed. U. S. 865.
On notice and hearing required gen-
erally to constitute due process of law —
see notes to Kuntz v. Sumption, 2 L.RJL
657; Chauvin v. Valiton, 3 KB. A. 194;
and Ulman v. Baltimore^ 11 L.R.A. 225.
Generally, as to what constitutes a
taking of private property for public
use — see notes to Memphis ft C. R. Co.
V. Birmingham, S. & T. River R. Co. 18
LJI.A. 166; Osborne v. Missouri P. R.
Co. 37 L. ed. U. S. 166; Sweet v. Rechel,
40 L. ed. U. S. 188; and A. Backus, Jr.,
6 Sons V. Fort Street Union Depot Co.
42 L. ed. U. S. 853.
185
58
SL'PREME COURT OF THE UNITED STATES. t)cT. Tr-BiJ,
57 L. ed. 156, 42 L.R.A.(N.S.) 1123, 33
Sup. Ct. Rep. 76, Ann. Cas. 1914B, 102.
The question whether the purpose of
the taking is for a public use is a judicial
question.
Sears v. Akron, 246 U. S. 242, 62 L. ed.
688, 38 Sup. Ct. Rep. 245.
the supervisors' decision is made, shall be
notified in writing and shall have thirty
days after such notice within wliich to ap-
peal, and that if he be present when the
decision is raade, he is regarded as receiv-
ing notice at that time, the thirty days for
taking the appeal beginning to nm at once.
'^'5£«**^''**^ oasps, see Constitutional taw, 606-
««.. : Eminent Domain, 73-75, in Digest Sup.
v<t. IStOo. J
Constitutional law — due process of law
— eminent domain — notice and hear-
ing.
4. Where adequate provision is made
for the certain payment without unreason-
able delay of compensation for property
taken by eminent domain, the takmor doe's
not contravene due process of law m the
sense of U. S. Const., 14th Amend., merely
because it precedes the ascertainment of
what compensation is just.
[For other cases, see Constitutional I^w. «06-
773: Eminent Domain, VI. c, in Digest Sup.
Ct. 1908.]
[No. 22.]
Argued October 13, 1919. Decided Decem-
ber 8, 1919.
JX ERROR to the Supreme Court of I
Appeals of the State of Virginia to ,
review a decree, which, by refusing an ,
appeal, in effect affirmed a decree of the
Circuit Court of Lunenburg County, in
that state, refusing to enjoin an alleged
trespass. Affirmed.
The facts are stated in the opinion.
Mr. Qeorfe E. Allen argued the cause, {
and, with Mr. John Garland Pollard,
filed a brief for plaintiff in error:
The Virginia statutes are violative of
the 14th Amendment of the Constitu-
tion of the United States, because they
authorize the taking by public officials
of private property for public use, with-
out due process of law.
Home Teleph. & Teleg. Co. v. Los An-
geles, 227 U. S. 278, 57 L. ed. 510, 33
Sup.-Ct. Rep. 312; Soliah v. Heskin, 222
U. S. 522, 56 L. ed. 294, 32 Sup. Ct. Rep.
103; Eubank v. Richmond, 220 U. S.
137, 57 L. ed. 156, 42 L.R.A.(N.S.) 1123,
33 Sup. Ct. Rep. 76, Ann. Cas. 1914B,
192; Embree v. Kansas City & L. B.
Road Dist. 240 U. S. 242, 60 L. ed. 624,
36 Sup. Ct. Rep. 317; St. Louis & K. C.
T^ud Co. V. Kansas City, 241 U. S. 419,
60 L. ed. 1072, 36 Sup. Ct. Rep. 647;
Garfield v. United States, 211 U. S. 249,
53 L. ed. 168, 29 Sup. Ct. Rep. 63. 67 ; i
Hagar v. Reclamation Dist. Ill U. S. i
701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663.
The extreme possibilities of the stat-
ute may be resorted to in order to test
a law.
Eubank v. Richmond, 226 U. S. 137, -
Mr. J. D. Hank, Jr„ argued the cause,
and, with Mr. John R. Saunders, Attor-
ney General of Virginia, and Messrs. F.
B. Richardson and N. S. Tumbull, Jr.,
died a brief for defendants in error:
The state of Virginia, in the exeroiKe
of its sovereign power of eminent do-
main, may take private property for
public use.
Mississippi & R. 'River Boom Co. v.
I Patterson, 98 U. S. 403, 25 L. ed. 206;
I Cincinnati v. Louisville & N. R. Co. 223
j U. S. 390, 56 L. ed. 481, 32 Sup. Ct. Rep.
, 267.
I State statutes are presumed to be eon-
' stitutional.
Home Teleph. & Teleg. Co. v. Los An-
geles, 211 U. S. 265, 53 L. ed. 176, 29
Sup. Ct. R«p. 50.
No notice or hearing upon the ex-
pediency or necessity of the taking of
I private property for publip use is re-
quired.
Lancaster v. Augusta Water Dist. 108
Me. 137, 79 Atl.* 463, Ann. Cas. 1913A,
1252; Crozier v. Fried Krupp Aktien-
gesellschaft, 224 U. S. 290, 56 L. ed. 771,
32 Sup. Ct. Rep. 488.
Compensation need not be paid in ad-
vance of the taking.
Williams V. Parker, 188 U. S. 491, 493,
47 L. ed. 559, 560, 23 Sup. Ct. Rep.- 440;
Mt. Vernon Woodberry Cotton Duck Co.
V. Alabama Interstate Power Co. 240 U.
S. 30, 33, 60 L. ed. 507, 511, 36 Sup. Ct.
Rep. 234; Cherokee Nation v. Southern
Kansas R. Co. 135 U. S. 641, 658, 34 L.
ed. 295, 303, 10 Sup. Ct. Rep. 965 ; Sweet
V. Rechel, 159 U. S. 380, 401, 40 L. ed
188, 197, 16 Sup. Ct. Rep. 43; A. Backus,
Jr., & Sons V. Fort Street Union Depot
Co. 169 U. S. 557, 568, 42 L. ed. 853, &9,
18 Sup. Ct. Rep. 445; Shoemaker v. Unit-
ed States, 147 U. S. 282, 297, 37 L. ed.
170, 184, 13 Sup. Ct. Rep. 361; Tait v.
Central Lunatic Asvlum, 84 Va. 271, 4
S. E. 697.
Mr. Justice Van Devanter delivered
the opinion of the court :
By this suit the owner of land adjoin
mg a public road in Virginir seeks an
injunction against the taking of earth
from his land to be used in repairing the
road. The taking is from the most con-
venient and nearest olate, where it will'
251 r. s.
19 1».
DUAUCi V. WEAVER.
5S-60
be attended by the least expense, and
h&s the express sanction of a statute of
the state. PoUard^s Code 1904, § 944a,
clauses 21 and 22.* Whether the stat-
ute denies to the owner the due process
of law guaranteed by .the 14th Amend-
ment is the Federal question in the case.
It was duly presented in the state court,
and, while no opinion was delivered, the
record makes it plain that, by the judg-
ment rendered, the court resolved the
question in favor of -the validity of the
istatute.
It is conceded that the taking is un-
der the direction of public officers and
is for a public use; also that adequate
provision is made for the payment of
^och eompensation as may be awarded.
Hence no discussion of these matters is
required. The objection urged against
the statute is that it makes no provision
for affording the owner an opportunity
to be heard respecting the necessity or
i-xpediency of the taking or the com-
pensation to be paid.
Where the intended use is public, the
necessity and expediency of the taking
may be determined by such agency and
in such mode as the state may designate.
They are legislative questions, no matter
who may be charged with tjieir decision,
and a hearing thereon is not essential
to due process in the sense of the 14th
Amendment. Mississippi & R. River
Boom Co. V. Patterson, 98 U. S. 403,
406, 25 L. ed. 206, 207; A. [59] Backus,
Jr., & Sons V. Fort Street Union Depot
Co. 169 U. S. 657, 568, 42 L. ed. 853,
858, 18 Sup. Ct. Rep. 445; Adirondack
R. Co. V. New York, 176 U. S. 335, 349,
44 L. ed. 492, 499, 20 Sup. Ct. Rep. 460 ;
Sears v. Akron, 246 U. S. 242, 251, 62
L. ed. 688, 698, 38 Sup. Ct. Rep. 245.
But it is essential to due process that
the mode of determining the com{)ensa-
tion be such as to afford the owner an
opportunity to be heard. Among several
admissible modes is that of causing the
amount to be assessed by viewers, sub-
ject to an appeal to a court, carrying
« with it a right to have the matter deter-
mined upon a full trial. United States
V. Jones, 109 U. S. 513, 519, 27 L. ed.
1015, 1017, 3 Sup. Ct. Rep. 346; A. Back-
us, Jr., & Sons V. Fort Street Union De-
pot Co. 169 U. S. 563, 42 L. ed. 859, 18
Sup. Ct. Rep. 445. And where this mode
is adopted due process does not require
1 Other enactments of March 12, 1912,
chap. 151, March 21, 1914, chap. 174, and
;March 17. 1916, chap. 279, make the stat-
ute specially applicable here, but they re-
quire no particular attention.
«« L. ed.
that a hearing before the viewers be af-
forded, but is satisfied by the full hear-
ing that may be obtained by exercising
the right . to appeal. Lent v. Tillson,
140 U. S. 316, 326, et seq., 35 L. ed. 419,
424, 11 Sup. Ct. Rep. 825; Winona & St.
P. Land Co. v. Minnesota, 159 U. S. 526,
537, 40 L. ed. 247, 251, 16 Sup. Ct. Rep.
83; Wells, F. & Co. v. Nevada, 248 U. S.
165, 168, 63 L. ed. 190, 192, 39 Sup. Ct.
Rep. 62. And see Capital Traction Co.
v. Hof, 174 U. S. 1, 18-30, 45, 43 L. ed.
873, 879-883, 889, 19 Sup. Ct. Rep. 580.
With these principles in mind we turn
to the statute in question. By clause 21
it authorizes certain officers engaged in
repairing public roads to take earth for
that purpose from adjacent lands, and
by clause 22 it declares :
"If the owner or tenant of any such
land shall think himself injured thereby,
and the superintendent of roads, or his
deputy, can agree with such owner as to
the amount of damage, they shall report
the same to the board of supervisors, or,
if they cannot agree, a justice, upon
application to him, shall issue a warrant
to three freeholders, requiring them to
view the said land, and ascertain what is
a just compensation to such owner or
tenant for the damage to him by reason
of anything done under the preceding
section. The said freeholders, after
being sworn according to the provisions
of § 3 of this act,« [60] shall according-
ly ascertain such compensation and re-
port the same to the board of supervisors.
Said board may allow the full amount
so agreed upon, or reported by said free-
holders, or so much thereof as upon in-
vestigation they may deem reaBonabl^,
subject to such owner or tenant's right of
appeal to the circuit court as in other
cases."
The aame statute, in clause 5, deals
with the compensation to be paid for
lands taken for roadways, and in that
connection provides that the proprietor
or tenant, if dissatisfied with the amount
allowed by the supervisors, "may of right
appeal to the circuit court of said county,
and the said court shall hear the matter
de novo" and determine and certify the
amount to be paid. And a general stat-
ute (§ 838), which regulates the time
and mode of taking appeals from deci-
sions of the supervisors disallowing
claims in whole or in part, provides that
the claimant, if present when the deci-
sion is made, niay appeal to the circuit
a". . . that they will faithfully and
impartially discharge their duty as view-
era.
137
60-62
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
court within thirty days thereafter, and,
if not present, shall be notified in writing
by the clerk, and may appeal within
thirty days after sertdce of the notice.
Apart from what is implied by the de-
cision under review, no construction of
these statutory provisions by the state
court of last resort has been brought to
our attention; so, for the purposes of
this case, we must construe them. The
task is not difficult. The words employed
are direct and free from ambiguity, and
the several provisions are in entire har-
mony. They show that, in the absence
of an agreement, the compensation is to
be assessed primarily by viewers; that
their award is to be examined by the
supervisors and approved or changed as
to the latter may appear reasonable ; and
that, from the decision of the supervi-
sors, an appeal lies as of right to the cir-
cuit court, where the matter may be
heard de novo. Thus, by exercising *the
right to appeal, the owner may obtain a
full hearing in a court of justice, — one
concededly possessing and exercising a
general jurisdiction. An opportunity to
have such a [61] hearing, before the
compensation is finally determined, and
when the right thereto can be effectively
asserted and protected, satisfies the de-
mand of due process.
Under the statute the proceedings
looking to an assessment may be initiated
by the owner as well as by the road offi-
cers. Either may apply to a justice for
the appointment of viewers. Thus the
owner is free to act promptly and upon
his own motion, if he chooses.
But it is contended that where the road
officers take the initiative, — as they do
in many instances, — the proceedings may
be carried from inception to conclusion
without any notice to the owner, and
therefore without his having an oppor-
tunity to take an appeal. We think the
contention is not tenable. It takes into
account some of the statutory provisions
and rejects others equally important. It
is true there is no express provision for
notice at the inception or during the ear-
ly stages of the proceedings; and for
present purposes it may be assumed that
such a requirement is not even implied,
although a different view might be ad-
missible. See Paulsen v. Portland, 149
U. S. 30, 37 L. ed. 637, l5 Sup. Ct. Rep.
750. But the provisions relating to the
later stage — the decision by the super-
visors— are not silent in respect of no-
tice, but speak in terms easily under-
stood. Clauses 5 and 22, taken together,
138
provide that the owner, if dissatisfied
with the decision, shall have the right to
appeal as in other cases. This presup-
poses that he will have some knowledge
of the decision; and yet neither clause
states how the knowledge is to be ob-
tained, or when or how the right of ap-
I>eal is to be exercised. All this is
explained, however, when § 838 is ex-
amined. It deals with these questions
in a comprehensive way and evidently is
intended to be of general application.
Of course, newly created rights of ap-
peal of the same class fall within its op-
eration unless the legislature provides
otherwise. Here the legislature has not
provided otherwise, and so has indicated
that it is content to have the gener^
statute applied. As before stated, that
[62] statute provides that the claimant,
if not present when the supervisors' deci-
sion is made, shall be notified thereof in
writing, and shall have thirty days after
such notice within which to appeal. If he
be present when the decision is made, he
is regarded as receiving notice at that
time, and the thirty days for taking an
appeal begin to run at once. It is appar-
ent, therefore, that special care is taken
to afford him ample opportunity to ap-
peal, and thereby to obtain a full hear-
ing in the circuit court.
The claim is made that this opportun-
ity comes after the taking, and therefore
is too late. But it is settled by the deci-
sions of this court that where adequate
provision is made for the certain pay-
ment of the compensation without unrea-
sonable delay, the taking does not con-
travene due process of law in the sense
of the 14th Amendment merely because
it precedes the ascertainment of what
compensation is just. Sweet v. Rechel,
159 U. S. 380, 402, 407, 40 L. ed. 188, 197,-
198, 16 Sup. Ct. Rep. 43; A. Backus, Jr.,
&> Sons V. Fort Street Union Depot Co.
169 U. S. 567, 568, 42 L. ed. 853, 858, 18
Sup. Ct. Rep. 445; Williams v. Parker,
188 U. S. 491, 47 L. ed. 559, 23 Sup. Ct.
Rep. 440; Crozier v. Fried. Krupp Ak-
tiengesellschaft, 224 U. S. 290, 306, 56
L. ed. 771, 776, 32 Sup. Ct. Rep. 488.
And see Branson v. Gee, 25 Or. 462, 24
L.R.A. 355, 36 Pac. 527. As before indi-
cated, it is not questioned that such ade-
quate provision for payment is made in
this instance.
We conclude that the objections urged
against the validity of the statute are
not well taken.
Judgment affirmed.
251 C S.
1919.
ST. LOUIS, I. M. & S. R. CO. v. WILUAMS.
63, 64
[US] ST. LOUIS, TROX MOUNTAIN, &
SOUTHERN RAILWAY COMPANY,
Vm. in Err.,
DICKSEY WILLIAMS and Lucy Williama.
(See Su 0. Reporter's ed. 63-67.)
•
Constltiitional law — due process of law
— rate regulation — penalties.
1. The imposition of severe penalties
as a means of enforcing railway passenger
rates prescribed by statute is not a denial
of due process of law in a case in which it
does not appear that the carrier was not
afforded an adequate opportunity for safely
testing the validity of the rate, or that its
deviation therefrom proceeded from any be-
lief that the rate was invalid.
[For other cases, see Constitutional Law, IV.
b, 4, in Digest Sup. Ct 1908.]
Constitutional law ^ due process of law
— rate reinilatlon — penalties.
2. So far as due process of law is con-
cerned, the penalty imposed by a state stat-
ute upon a railway company which exacts
more than the prescribed passenger fares
may be given to the aggrieved passenger, to
be enforced by private suit, and such pen-
alty need not be confined or apportioned
to his loss or damage.
[For other csi^es, see Constitutional Law, IV.
b, 4, in Digest Sup. Ct. 1908.]
Constitutional law "^ due process of law
«-rate regulatioi^" — penalties.
3. The penalties prescribed by a statute
giving to a passenger aggrieved 1:ry a car-
rier's exaction of a fare in excess of the
prescribed rate the right to recover in a
civil suit not less than $oO nor more than
$300 and costs of suit, including a reason-
able attorney's fee, cannot be said to be so
severe and oppressive as to be whollv dis-
proportionate to the offense or obviously
unreasonable, and hence to amount to a
denial of due process of law.
[For other cases, see Constitutional Law, IV.
b. 4, in Digest Sup. Ct. 1908.]
[No. 66.}
Argued November 11, 1919. Decided De-
cember 8, 1919.
IN ERROR to tbe Supreme Court of the
State of Arkansas to review a judg-
ment which affirmed a judgment of the
Circuit Court of Clark County, in that
state, in favor of plaintiffs in a suit to
recover penalties for overcharge by a
carrier in the transportation of passen-
gers. Affirmed.
See same case below, 131 Ark. 442,
199 S. W. 376.
The facts are stated in the opinion.
Note. — On excessive penalties as de-
nial of constitutional rights — see notes
to Washington v. Crawford, 46 L.R.A.
(X.S.) 1039, and Rail & River Coal Co.
V. Yaple, 59 L. ed. U. S. 608.
%4 L. ed.
Mr. Robert E. WUey argued the cause,
and, with Messrs. Edward J. White and
Ed^far B. Kinsworthy, filed a brief for
plaintiff in error:
This statute takes the carrier's prop-
erty without due process of law, and de-
nies to it the equal protection of the
laws, contrary to the 14th Amendment,
because the penalty is arbitrary and un-
reasonable, and not in proportion to the
actual damages sustained.
Atlantic Coast Line R. Co. v. North
Carolina Corp. Commission, 206 U. S. 1,
19, 51 L. ed. 933, 942, 27 Sup. Ct. Rep.
585, 11 Ann. Cas. 398; Missouri P. R, Co.
V. Nebraska, 217 U. S. 196, 205, 54 L. ^d.
727, 731, 3a Sup. Ct. Rep. 467, 18 Ann.
Cas. 989; Missouri P. R. Co. v. Tucker,
230 U. S. 340, 57 L. ed. 1507, 33 Sup. Ct.
Rep. 961; Northern P. R. Co. v. North
Dakota, 236 U. S. 585, 69 L. ed. 735,
L.R.A.1917P, 1148, P.U.R.1915C, 277, 35
Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1;
Seaboard Air line R. Co. v, Seegers, 207
U. S. 73, 52 L. ed. 108, 28 Sup. Ct. Rep.
28.
The penalty is relatively exorbitant
when considered in connection with its
purpose.
Wadley Southern R. Co. v. Georgia,
235 U. S. 651, 59 L. ed. 405, P.U.R.1915A,
106, 35 Sup. Ct. Rep. 214; St. Louis, I.
M. & S. R. Co. V. Waldrop, 93 Ark. 42,
123 S. W. 778; Missouri P. R. Co. v.
Smith, 60 Ark. 221, 5 Inters. Com. Rep.
348, 29 S. W. 752; St. Lotos A S. F. R.
Co. V. Gill, 54 Ark. 101, 11 L.R.A. 452,.
15 S. W. 18.
The statute is violative of the 14th
Amendment because the penalties pro-
vided by it are so severe as to deprive
the carrier of the right to resort to the
courts to test its validity.
Ex parte Young, 209 U. S. 123, 52 L.
ed. 714, 13 L.R.A.(N.S.) 932, 28 Sup.
Ct. Rep. 441, 14 Ann. Cas. 764; Missouri
P. R. Co. V. Tucker, 230 U. S. 340, 57
L. ed. 1607, 33 Sup. Ct. Rep. 961.
No brief was filed for defendants in
error.
Mr. Justice Van Devanter delivered
the opinion of the court:
By a statute of Arkansas, regulating
rates for the transportation of passen-
gers between points within the state,
[64] any railroad company that demands
or collects a glreater compensation than
the statute prescribes is subjected ^'for
every such offense" to a penalty of "not
less than $50 nor more than $300 and
costs of suit, including a reasonable at-
torney's fee," and the aggrieved passen-
ger is given a right to recover the same
(i4 Gti
Sl'PUEME COUKT OF THE UXITKD STATES.
Oct. TtJsM,
in a civil action. Act April 4, 1887,
Laws 1887, p. 227; Kirbv's Dig. 1904,
§ 6620; Act March 4, 1915, Laws 1916,
p. 365; Kirby & C. Dig. 1916, § 8094.
In June, 1915, a company operating a
line of railroad within the state demand-
ed and collected 66 cents more than the
prescribed fare from each of two sisters
carried over part of its line when return-
ing to their home from a school com-
mencement elsewhere in the state ; and in
suits separately brought for the purpose,
and afterwards consolidated, these pas-
sengers obtained judgments against the
company for the overcharge, a penalty of
$75 and costs of suit, including an at-
torney's fee of $25. The company ap-
pealed, asserting that the provision for
the penalty was repugnant to the due
process of law clause of the 14th Amend-
ment ; but the siippeme court of the state
sustained the provision and affirmed the
judgments. 131 Ark. 442, 199 S. W. 376.
To obtain a review of that decision the
company prosjiBcutes this writ of error.
The grounds upon which the provision
is said to contravene due process of law
are, first, that' the penalty is "so severe
as to deprive the carrier of the right to
resort to the courts to test the validity"
of the rate prescribed, and, second, that
the penalty is "arbitrary and unreason-
able, and not proportionate to the actual
damages sustained.*'
It is true that the imposition of severe
penalties as a means of enforcing a rate,
such as was prescribed in this instance,
is in contravention of due process of
law, where no adequate opportunity is
afforded the carrier for safely testing,
in an appropriate judicial proceeding,
the validity [65] of the rate — that is,
whether it is confiscatory' or otherwise —
before any liability for the penalties at-
taches. The reasons why this is so are
set forth fully and plainly in several re-
cent decisions and need not be repeated
now. Ex parte Young, 209 U. S. 123, 147,
52 L. ed. 714, 723, 13 L.R.A.(N.S.) 932,
28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764;
Willcox v. Consolidated Gas Co. 212 U.
S. 19, 53, 53 L. ed. 382. 400, 48 L.R.A.
(N.S.) 1134, 29 Sup. Ct. Rep. 192, 15
Ann. Cas. 1034; Missouri P. R. Co. v.
Nebraska, 217 U. S. 196, 207, 208, 54 L.
ed. 727, 731, 732, 30 Sup. Ct. Rep. 461, 18
Ann. Cas. 989; Missouri P. R. Co. v.
Tucker, 230 U. S, 340, 57 L. ed. 1507, 33
Sup. Ct. Rep. 961; Wadlev Southern R.
Co. v. Georgia, 235 U. S. 651, 659, et seq.,
69 L. ed. 405, 410, P.U.R.1915A, 106, 35
Sup. Ct. Rep. 214.
And it also is true that where such an
opportunity is afforded and the rate is
140
adjudged valid, or the carrier fails to
avail itself of the opportunity, it then is
admissible, so far as due process of law
is concerned, for the state to enforce ad-
herence to the rate by imposing substan-
tial penalties for deviations from it.
Wadley Southern R. Co. v. Georgia,
supra, pp. 667 et seq.; Gulf, C. & S. F.
R. Co. V. Texas, 246 U. S. 58, 62, 62 L.
ed. 574, 578, 38 Sup. Ct. Rep. 236.
Here it does not appear that the car-
rier had not been afforded an adequate
opportunity for safely testing the valid-
ity of the rate, or that its deviation
therefrom proceeded from any belief
that the rate was invalid. On the con-
trary, it is practically conceded — and we
judicially know — that if the carrier real-
ly regarded the rate as confiscatory, the
way was open to secure a determination
of that (question by a suit in equity
against the Railroad Commission of the
state, during the pendency of which the
operation of the penalty provision could
have been suspended by injunction.
Wadley Southern R. Co. v, Georgia, su-
pra. See also Allen v. St. Louis, I. M.
& S. R. Co. 230 U. S. 553, 57 L. ed. 1625,
33 Sup. Ct. Rep. 1030 ; Rowland v. Bovle,
244 U. S. 106, 61 L. ed. 1022, P.U.R.
1917C, 685, 37 Sup. Ct. Rep. 577; St.
Louis, I. M. & S. R. Co. v. McKnight,
244 U. S. 368, 61 L. e*d. 1200, 37 Sup. Ct.
Rep. 611. And the record shows that at
the trial the carrier not only did not
raise any question about the correct fare,
but proposed and secure 1 an instruction
to the jury wherein the prescribed rate
was re<*ognized as controlling.
[66] It therefore is plain that the
first branch of the company's contention
cannot prevail.
The second branch is more strongly
urged, and we now turn to it. The j)ro-
vision assailed, is essentiallv penal, be-
cause primarily intended to punish the
carrier for taking more than the pre-
scribed rate. St. Louis & S. F. R. Co. v.
Gill, 54 Ark. 101^ 106, 11 L.R.A. 452, 15
S. W. 18; St. I>)ui8, I. M. & S. R. Co. v
Waldrop, 93 Ark. 42, 45, 123 S. W. 778.
True, the penalty goes to the aggrieved
passenger, and not the state, and is to be
enforced by a private, and not a public,
suit. But this is not contrar>^ to due
process of law ; for, as is said in Missouri
P. R. Co. V. Humes, 115 U. S. 512, 523,
29 L. ed. 463, 466, 6 Sup. Ct. Rep. 110,
"the power of the state to impose fines
and penalties for a violation of its statu-
tory* requirements is coeval with govern-
ment; and the mode in which they shall
be enforced, whether at the suit of a
privnte partv, or at the suit of the pub-
251 r. s.
1919.
COKSILA.NA NAT. HAS\\ v. ,j(JUNJSO>
06-68
lie, dnd what disposition shall he made
of the amounts collected, are merely
matters of legislative discretion/' Nor
does giving the penalty to the aggrieved
passenger require that it be confined or
proportioned to his loss or damages; for,
as it is imposed as a punishment for* the
violation of a public law, the legislature
may adjust its amount to the public
wrong rather than the private injury,
just as if it were going to the state. See
Marvin v. Trout, 199 U. S. 212, 225, 50
L. ed. 157, 162, 26 Sup. Ct. Rep. 31.
The ultimate question is whether a
penalty of not less than $50 and not more
than $300 for the offense in question can
be said to bring the provision prescrib-
ing it into conflict with the due process
of law clause of the 14th Amendment.
That this clause places a limitation up-
on the power of the states to prescribe
penalties for violations of their laws has
been fully recognized, but always with
the express or tacit qualification that the
states still possess a wide latitude of
discretion in the matter, and that their
enactments transcend the limitation only
where the penalty [67] prescribed is so
severe and oppressive as to be wholly dis-
proportioned to the offense and obvious-
ly unrea^nable. Coffey v. Harlan Coun-
ty, 204 U. S. 659, 662, 51 L. ed. 666, 668,
27 Sup. Ct. Rep. 305; Seaboard Air Line
R. Co. V. Seegers, 207 U. S. 73, 78, 52 L.
ed. 108, 110, 28 Sup. Ct. Rep. 28; Waters-
Pierce Oil Co. V. Texas, 212 U. S. 86, 111,
53 L. ed. 417, 430, 29 Sup. Ct. Rep. 220 ;
Collins V. Johnston, 237 U. S. 502, 510,
59 L. ed. 1071, 1079, 35 Sup. Ct. Rep.
649.
Of this penalty and the need for it
the supreme court of the state says ; "It
is commonly known that carriers are not
prone to adhere uniformly to rates law-
fully prescribed, and it is necessary- that
deviation from such rates be discouraged
and prohibited by adequate liabilities
and i)enalties; and we regard the penal-
ties prescribed as no more than reason-
able and adequate to accomplish the pur-
pose of the law and remedy the evil
intended to be reached." Chicago, R. I.
& P. R. Co. V. Davis, 114 Ark. 519, 525,
170 S. W. 245.
When the penalty is contrasted with
the overcharge possible in any instance
ity of course, seems large; but, as we
have said, its validity is not to be tested
in that way. When it is considered with
due regard for the interests of the pub-
lic, the numberless opportunities for
committing the offense, and the need for
securing uniform adherence to estab-
lished passenger rates, we think it prop-
64 li. ed.
erly cannot be said to be so severe and
oppressive as to be wholly dispropor-
tioned to the offense or obviously un-
reasonable.
Judirment affirmed.
Mr. Justice McBesmolds dissents.
[681 CORSICANA NATIONAL BANK OF
CORSICANA, Plff. in Err.,
V.
SAMUEL WISTAR JOHNSON.
(See S. 0. Reporter's ed. 68-94.)
National banks — liability of director
— excessive loan — Icnowing partici-
pation or assent.
1. Directors of a national hank cannot
be held liable, under U. S. Rev. Stat. §§
5£00 and 5239, for knowingly participating
in or assenting to an excessive loan unless
such participation or assent was not through
mere negligence, but was knowing and m
effect intentional. If, however, a director
deliberately refrains from investigating that
which it is. his duty to investigate, any vio-
lation of the statute must be regarded as
in effect intentional.
[For other ca«o». see Banks, lY. e, 8, in Digest
Sup. Ct. 190S.)
Trial — province of court and Jury —
weight- of evidence.
2. What weight should be given to sub-
-stantial evidence tending to support the
plaintiff's view of disputed facts is for the
jury, not the court, to determine.
[For other cases, see Trial, VI. a, in Digrest
Sup. Ct. 1908. J
Note. — On liability of bank directors
in case of bad loans or investments — see
notes to Greenfield Sav. Bank v. Aber-
crombie, 39 L.R.A.(N.S.) 173, and Bos-
worth V. Allen, 55 L.R.A. 751.
As to care required of bank directors
— see note to Swentzel v. Penn Bank, 15
L.R.A. 305.
As to fact that loan by bank was ex-
cessive— see note to Elmo State Bank v.
Hildebrand, 3 A.L.R. 59.
As to province of coirrt and jury, gen-
erally— see note to Kinp: v. Delaware Ins.
Co. 3 L. ed. U. S. 155.
On limitation of actions aprainst di-
rectors of corporation for malfeasance
or nonfeasance — see note to Ventress v.
Wallace, L.R.A.1917A, 980.
Liability of national bank directors for
excessive loan to one borrower.
The present discussion has been con-
fined to the liability of directors for vio-
lation of the statutory duty, and does
not; consider the liability for a violation
of the common-law dutv.
141
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Pleading » sufficiency of allegations «
action against national bank director..
3. An allegation in the amended pe-
tition in an action against a director of a
national bank for knowingly participating,
contrary to U. S. Rev. Stat. §§ 6200 and
5239, in an excessive loan, that the trans-
action set forth was a loan of that char-
acter, whether regarded as one loan to two
persons designated as a ''firm,'*, as the plain-
tiff alleges the fact to be, or regarded as
two loans, as contended for by the defend-
ant in his pleadings theretofore filed, is
sufiicient if the proof tends to show a single
and excessive loan made to such persons
jointly in any capacity, or made |n form
one half to each, but in substance as a single
loan.
[For other cases, see Pleading, II. j, in Digest
Sap. Ct. 1908. J
Eridenoe « weight — denial.
4. The denial by a director of a na-
tional bank, in an action against him for
knowingly participating, contrary to U. S.
Rev. SUt. §§ 5200 and 5239, in an exces-
sive loan, that such loan was a single one.
or that he knew it to be such, is not con-
clusive where there is substantial evidence
inconsistent with such denial, tending to
show facts and circumstances attendant
upon the transaction of which he had knowl-
edge, and subsequent conduct in the nature
That there is a common-law obligation
resting upon national bank directors in
addition to the duty imposed by statute
is settled by the United States Supreme
Coart in the recent case of Bowerman v.
Hamner, 250 U. S. 504, 63 L. ed. 1113,
39 Sup. Ct. Rep. 5^19, in which the court,
after referring to Yates t. Jones Nat.
Bank, 206 U. S. 158, 51 L. ed. 1002, 27
Sup. Ct. Rep. 638^ and Jones Nat. Bank
v.. Yates, 240 U. S. 542, 60 L. ed. 788, 36
Sup. Ct. Rep. 429, cases dealing with the
liability of bank directors for making
false reports of the financial condition
of the bank, says: ^^While the cited
cases hold that in a suit for damages
against national bank directors based
solely upon a violation of duty imposed
by the National Bank Act, it is not
enough to show a negligent violation of
the act, but that something more in ef-
fect than intentional violation must be
shown to justify a recovery, and that
this is the exclusive rule for measuring
the responsibility of directors as to such
violations, yet it is expressly pointed out
in the opinion of the court that the act
does not relieve such directors from the
common-law duty to be honest and dili-
gent, as is shown by the oaths which they
are required to take to 'diligently and
honestly administer the affairs of the as-
sociation' as well as not to 'knowingly
violate or willingly permit to be violated
any of the provisions of this title,' — the
National Bank Act. The rule thus an-
nounced would perhaps be applicable if
the bill were limited to the charge of
liability based solely upon the statutory
prohibition of excessive loans, for it is
reasonably clear that Bowerman did not
have actual knowledge of the making of
the loans or of anything else connected
with the conduct of the bank. He de-
liberately avoided acquiring knowledge
of its affairs, and wholly abdicated the
duty of supervision and control which
rested upon him as a director. The Na-
tional Bank Act imposes various specific
142
duties on directors other than those im-
posed by the common law, and it is
obviously possible that a director may
neglect one or more of the former and
not any of the latter, or vice versa. For
example, in this case we have the gross
negligence of the appellant in failing to
discharge his common-law duty to dili-
gently administer the affairs of the bank
made the basis for the contention that
he did not 'knowingly* vidate his statu-
tory duty by permitting the excessive
loans to be made. While the statute fur-
nishes -the exclusive rule for determining
whether its provisions have been vio-
lated or not, this does not prevent the
application of the common-law rule for
measuring violations of common-law du-
ties. And there is no sound reason why
a bill may not be so framed that if the
evidence fails to establish statutory neg-
ligence, but establishes common-law neg-
ligence, a decree may be entered accord-
ingly, and thus the necessity for a resort
to a second suit avoided."
The contrar}^ statement in Zinn v.
Baxter, 65 Ohio St. 341, 62 N. E. 327,
an action brought in the state 6oart
against directors for making excessive
loans, to the effect that the rights of the
bank and of its stockholders, as well as
the liability of its officers and directors,
were fixed and imposed by the National
Bank Act alone, and that the statutes of
Ohio, the common law, and rules of equi-
ty as to such rights and liabilities, had
no application, so far as it denies the
existence of a common-law dutv resting
upon directors, is no longer corr^t.
The National Bank Act, after pre-
scribing the limit of loans to individuals,
makes the directors who have "knowing-
ly" participated in a loan in excess of
the limit liable in their personal and in-
dividual capacity for all damages sus-
tained in consequence of the excess loan.
In accord with the plain provisions of
this act, it is held that a director who
251 IT. 8.
1919.
CORSICANA NAT. BANK v. JOHNSON.
of admissions by him, also Inconsistent with
such denial. |
[For other cases, see ETidenee, XII. m, in' Di-
gest 8up. Ct. 1908.1
Xational banks — powers — limitations
on loan.
6. The limitation in U. S. Rev. Stat,
§ 5200, upon the total liabilities to a na-
tional bank of any single borrower, will not
be Gonstrned as including his liability as
surety or indorser for money borrowed by
another, in view of the long-continued prac-
tice and administrative rulings of the
Comptroller of the Currency not to include
such liabilities in the computation.
[For other cases, see Banks, IV. g, in Digest
Sop. Ct. 1908.1
National banks — liability of director —
excessive loans •— standing of bor-
rower.
6. The question whether a director of
a national bank knowingly participated in
or assented to, contrary to U. S. Rev. Stat.
§ 5239, the makine of a loan in excess of
the limit prescribed by § 6200, is not to be
confused by any consideration of the sup-
posed personal or financial standing of the
borrower.
[For other cases, see Banks, IV. e, 3, In Digest
Sap. Ct. 1908.]
National banks » liability of director —
excessive loan — defenses.
7. The absence of any improper motive
participated in or assented to a loan in
excess of the limit fixed is personally lia-'
ble for damages suffered thereby. Wit-
ters V. "Sowles (1887) 31 Fed. 1, s. c. on
subsequent appeal, 43 Fed. 405. In fact,
it is made a condition of liability that
the director has participated in or con-
sented to the loan. A director who does
not knowingly participate in excessive
loans is not liable. Iirst Nat. Bank v.
Noyes, 168 C. C. A. 543, 257 Fed. 593.
Speaking generally of the liability of
direetors in a national banking associa-
tion under the provisions of U. S. Rev.
Stat. § 5239, Comp. Stat. § 9831, 6 Fed.
Stat. Anno. 2d ed. p. 873, the court, in
Grandprey v. Bennett, — S. D. — , 172
N. W. 514, an action in which the plain-
tiff counted upon false and incorrect
reports, the court states^ that '^directors
of national banks are liable for viola-
tions of the provisions of the Federal
statute only when such violations are
committed with knowledge on the part
of the violators that they are viola/ting
such provisions; but that there is ^in
effect' an intentional violation of such
provisions whenever a director deliber-
ately refuses to examine that which it is
his duty to examine, or deliberately re-
fuses to do any act which, under such
provisions, it is his duty to perform."
It has been held that there must be
actual knowledge, participation, or as-
sent. A director is not constructively
chargeable with the knowledge of the
cashier, to whom the business of the
bank has been intrusted by the directors,
who have acted with proper caution.
Clews V. Bardon, 36 Fed. 617.
The Federal courts differ as to the
liability of a director to suit under the
provisions of the National Bank Act be-
fore it has been adjudged that acts have
been committed which justify the for-
feiture of the charter. It has been held
that an adjudication that acts have been
committed such as justify a forfeiture
of the charter is necessary before suit
•4 li. ed.
can be brought. Welles v. Graves, 41
Fed. 459. The opinion in this case was
by Judge Shiras, and the conclusion
reached therein was approved by him in
the subsequent case of Gemer v. Thomp-
son, 74 Fed. 125, an action against di-
rectors for having published false re-
ports of the condition of the bank.
And this rule was adhered to in Hay-
den V. Thompson, 67 Fed. 273, a bill in
equity by the receiver of a national bank
against the stockholders and directors
to recover dividends paid without suf-
ficient earnings, the court stating that,
so far as the directors were concerned,
their liability could only be enforced
by th*e receiver, acting under the direc-
tion of the Comptroller, after the vio-
lation of the statute had been judicially
determined by a court of the United
States, and a forfeiture declared.
But the majority view is to the con-
trary,— ^that a forfeiture is not a con-
dition precedent to the maintenance of
an action against the directors. Ste-
phens V. Overstolz, 43 Fed. 771 ; National
Bank v. Wade, 84 Fed. 10; Cockrill v.
Cooper, 29 C. C. A. 529, 57 U. S. App.
576, 86 Fed. 7. This is the implied
holding of Zimn v. Baxter, 65 Ohio St.
341, 62 N. E. 327.
In Stephens v. Overstolz, supra, it ap-
l>eared as a fact that the charter of the
bank had been forfeited, but in the view
of the court this is immaterial. The
court states that "according to our view
of § 5239, Comp. Stat. § 9831, 6 Fed.
Stat. Anno. 2d ed. p. 873, two results,,
in no respect dependent upoil each other,
may follow the making of an excessive
loan; that is to say, the Comptroller
may, if he thinks proper, proceed to have
the charter revoked, alleging the exces-
sive loan as a violation of law; but
whether he does so or not, a director of
the bank who knowingly participates in
or assents to the loan may be compelled
to make good whatever damage results
to the bank from making the same. Thi«5
14S
SL PHEME COURT OF THE UNITED STATES.
Oct. Term,
or desire for personal profit on defendant's
part is no defense to an action against a
director of a national bank for violating
U. S. Rev. Stat. §§ 5200 and 5235, by know-
ingly participating in or assenting to an
excessive loan.
ll'or other t-asoH, see Banks, IV. e, 3, in Digest
Sup. Ct. 1908.]
National banks — liability of director —
excessive loan — Joint or several lia-
bility.
8. Every director of a national bank
knowingly participating in or assenting to
a loan in excess of the limit prescribed by
U. S. Rev. Stat. § 5200, is made liable by
§ 5239, in his personal and individual capac-
ity, without regard iSb the question whether
other directors likewise are liable; and he
may alone be sued.
[For other ca^s, see Banks, TV. e, 3: Joint
Creditors and I>ebtor8, I. in Digest Sup. Ct.
1908.]
National banks — liability of director
— excessive loan — insolvency of bank
— change of stock interest.
9. A national bank may recover from
a director the damages sustained by rea!^on
of his knowing participation in or assent to
an excessive loan, contrary to U. S. Rev.
Stat. §§ 5200 and 5239, although it re
mained solvent or even prosperous, and ir-
respective of any changes in stockholding
interest or control occurring between the
time the cause of action arose and the time
of the commencement of the suit or of the
trial, and even if the new stockholders ac-
quired their interests with knowledge* of
the fact that a loss had been sustained, and
that such director was responsible for it.
[For other cases, see Banks, IV. e, 3 ; Estopiwl,
III. b, in Digest Sup. Ct. 1908.]
seems to us to be the obvious meaning
of the law."
A difference pf opinion exists as to the
tribunal in which the liability must be
enforced. According to Welles v.
Graves, 41 Fed. 469, — a case involving
a complicated state of facts, — the lia-
bility can be enforced only in equity.
The court in Cockrill v. Cooper, 2d C. C.
A. 629, 67 U. S. App. 576, 86 Fed. 7,
assumed that the question is whether
equity has jurisdiction at all of such
an action. It is held that the suit may
be brought in equity. That such a suit
may be brought in equity is held also in
Emerson v. Gaither, 103 Md. 564, 8
L.R.A.(N.S.) 738, 64 Atl. 26, 7 Ann. Cas.
1114.
In National Bank v. Wade, 84 Fed. 10,
it is held that even though the statute
does create a liability enforceable by
an action at law, "nevertheless it does
not diminish the jurisdiction of the
courts in equity unless the conditions
are such that the remedy at law is equal-
ly adequate and complete. In this case
the transactions involved are complicated
by the subsequent exchanging of promis-
sory notes and taking of property as
security for the loans which are alleged
to have caused the losses complained
of. These necurities must be converted
into money or otherwise disposed of be-
fore the amount of the loss can be
definitely ascertained. It is obvious,
therefore, that the complainant is en-
titled to relief in equity because the rem-
edy at law is not adequate or com-
plete."
According to Stephens v. Overstolz,
43 Fed. 771, it may be enforced in an
action at law.
In Corsicana Nat. Bank v. Johnson,
144
134 C. C. A. 610, 218 Fed. 822, appar-
ently a former trial of the principal caae,
it is held that an action by the bank to
hold an ofBcer liable for damages sus-
tained by the bank in consequence of the
defendant knowingly violating the pro-
vision of the statute limiting loans is a
suit to recover damages, and such a suit
may be maintained at law, and is not
cognizable by a court of equity, in the
absence of any showing of the inadequacy
of the legal remedy which is available.
It hh^ been held that in such an ac-
tion at law the issues that should be
submitted to the jury are: (1) Whether
the loans made to the borrower were
made at a time when he was already
indebted to the bank in a sum equal to
one tenth of its capital actually paid in;
(2) whether such loans were knowingly
made or assented to bv the director or
officers sought to be held liable; and
(3) what portion of the money so loaned
was lost. Citv Nat. Bank v. Crow, 27
Okla. 107, 111 Pac. 210, Ann. Cas. 1912B.
647.
A director to w^hom a loan has been
made in excess of the Ifmit fixed bv the
National Bank Act becomes liable as a
debtor to the bank, but is not liable as
participating in or assenting to the loan
on behalf of the bank. Witters v. Sowles,
31 Fed. 1.
It has been held that a bank director
cannot be held liable for inducing the
bank to extend credit to an individual
beyond the statutory limit, where he was
not, at the time, acting as director, but
as agent for the borrower. Hicks v.
Steel, 142 Mich. 292, 4 L.R.A.(N.S.) 279,
105 N. W. 767.
251 €. B.
1919.
COKSICAXA NAT. BANK v. JOHNSON.
LiBiitattou of actions — action to en- . 5239, are satisfied by u traii>fer of thr
force liability of bank director •» ex- { borrower's notes and indebtedness to an-
oeBsive loans. ; other eorporation for .their full face value
10. The two years* limitation of Vernon's 1 if, and only if, the transfer is good and
8ayles'B Tex. Civ. 8tat. 1914, art. ^687, is
Bot applicable to a cause of action against
a national bank director for knowingly par-
ticipating in or assenting to an excessive
loan, but such suit is governed by the four
years* limitation prescribed by art. 5690 for
actions for which no limitation is other-
wise prescribed.
valid as against such corporation and its
stockholders, or is duly ratified by tbem.
[For other cases, see Banks, IV. e, li. In Digest
Sup. rt. 1908.]
National banks — liability of director
— excessive loan — transfer of bor-
rower's indebtedness — rescission.
16. A national bank director cannot
IPor other ca«es, see Limiutlon of Actfons. III. j escape liability, -under U. S. Rev. Stat. §§
f, ID JMgeHt HUP. ct. ims.i I ^^^ ^^^ ^239, for knowingly participating
Action — time of ^ suit against national
bank diirector — excessive loan.
11. A cause of action against a national
bank director for knowingly participating
in an excessive loan, contrary to U. S. Rev.
Stat. §§ 5200 and 5239, accrues when the
bank, through his act, parts with the money
loaned, receiving in return negotiable paper
that it cannot lawfully accept b^ause the
transaction is prohibited, llie damage, as
uell as the injury, is complete at that time,
and the bank is not obliged to await the
maturity of the paper before suing.
(For other cases, see Action or Suit, I. b;
Banks. IV. e, 3. in Digest Sup. Ct. 1908.1
Damages — liability of national bank
director — excessive loans.
12. The entire sum loaned, plus interest
and Ies6 salvage, should be treated as the
damages sustained by a national bank
through a director's knowing participation
in or assent* to an excessive loan, contrary
to l^ S. Rev. Stat. §§ 6200 and 5239, and
not merely the excess above what lawfully
might have been loaned, where the entire
excess loan formed but a single transaction.
[For other cases, see Damages, VI. h, in Digest
Sup. Ct. 1908.1
Corporations ^ powers — corporations
operating Jointly.
13. A national bank and a loan company
organized under state law must, notwith-
standing identity of stock ownership and
close affiliation in management, be regarded
for some purposes as separate corporations;
for instance, as being capable in law of
contracting with each other.
(For other cases, see Corporations, VI. i, in
Digest Sup. Ct. 1908.1
Corporations — officers — common di-
rectors — identity of stock owner-
ship.
14. In considering the practical effect of
intercorporate dealingH, especially as bear-
ing upon the duties of common directors
and the authority of stockholders to con-
trol them, identity of stock ownership ought
not to be overlooked.
I For other cases, see Corporations, V. d, In
I>Ige8t Sup. Ct, 1908.1
National banks — liability of director
— > excessive loans ^ transfer of bor-
rower's indebtedness.
15. The damages sustained by a national
bank by reason of a director's knowing par-
ticipation in or assent to an excessive loan,
contrary to U- S. Rev. Stat. §§ .1200 and
•4 li. ed. 10
in or assenting to an excessive loan ^cause
of a sale of the borrower's notes and in-
debtedness for their full face value to a
loan company having the same directors and
managers as the bank, and identity of stock
ownership, if the transfer was made under
circumstances rendering it voidable as
against the loan company and as against
the stockholders of both corpoyations, and
the stockholders of the loan company exer-
cised their right to rescind without unrea-
sonable delay and gave notice to the bank,
and the bank, recognizing the justness of the
claim, restored to the loan company what
was accepted as the equivalent in value of
that which the bank had received for the
transfer, the director not having changed
his position and not being prejudiced by
such delay as there was in exercising the
right to rescind.
[For other cases, see Banks, IV. e, 3. in Digest
Sup. Ct. 1908.1
Corporations ^ dummy directors —
power to rescind fraudulent transfer.
17. A transfer between two corporations
having identity of stock ownership and.
directorates, which transfer was ^fraudulent
as to the transferee corporation, could lie
annulled by a dimimy board of directors
chosen by, and acting for, the controlling
stockholders for this very purpose, though
such a change in personnel was imnecessary,
as similar action by boards having identical
membership would have had the same elTcct,
if done by the express authority of the
stockholders.
(For other cases; see* Corporations, V. b, in
Digest Sup. Ct. 1908.]
National banks « liability of director
— excessive loan — transfer of bor-
rower's indebtedness •— rescission.
18. The rescission for fraud of a sale by
a national bank of the notes and indebted-
ness of a borrower for their full faoe value
to a loan company having the ;:«ame direct-
ors and managers as the bank, and identity
of stock interest, may not be challenged by
a director in the bank in an action against
him for having participated in, or assented
to, an excessive loan to such borrower, con-
trary to U. S. Bev. Stat. §§ 5200 and 5239,
merely because such rescission may have
been had in order to permit the haiik to
bring the action.
[For other oases, see Banks, IV. e, 3, in Digest
Sup. Ct. 1908.1
145
SUPREME COURT OF THE UNIl^ED STATES.
Oct. Temm,
National batiks » liability of directors
— excessive loan — transfer of bor-
rower's indebtedness — rescission —
restitution.
10. The question whether a loan com-
pany having the same directors and man-
agers as a national bank and identity of
stock interest, upon rescinding for fraud a
sale to it by the bank of the notes and in-
debtedness of a borrower for their full face
value, received full restitution from the
bank, is not material as bearing either upon
the bank's right, under U. S. Rev. Stat. §§
6200 and 5230, to sue a director fpr having
knowingly participated in*, or assented to,
an excessive loan to such borrower, or upon
the question of damages.
[For other cases, 8«e Banks, lY. e. 8, in Digest
Sap. Ct 1908.]
[No. 23.]
Argued aad submitted January 16, 1919.
Decided December 8, 1919.
IN ERROR to the United States Circuit
Court of Appeals for the Fifth Cir-
cuit to review a judgment which affirmed
a judgment of the District Court for the
Northern District of Texas, directing a
verdict in favor of defendant in a suit
by a bank against a director for having
knowingly participated in or assented to
an excessive loan. Reversed and remand-
ed to the District Court for further pro-
ceedings.
See same case below, 150 C. C. A. 665,
237 Fed. 1016.
The facts are stated in the opinion.
Mr. Joq^ph Manson McCormick argued
the cause, and, with Messrs. Francis
Marion Etheridge and Richard Mays,
filed a brief for plaintiff in error:
The liability of one who appears to be
a joint maker on the face of a note
given for money borrowed from a na-
tional banking association, but who in
fact is a surety, must be included in
totaling his liability to the bank, to
which 1 5200 of the Revised Statutes of
the United States, Comp. Stat. § 9761,
6 Fed. Stat. Anno. 2d ed. p. 761, applies.
Cochran v. United States, 157 U. S.
295, 39 L. ed. 707, 15 Sup. Ct. Rep. 628;
Hyatt v. Anderson, 25 Ky. L. Rep. 132,
74 S. W. 1094; Hubbard v. Gumey, 64
N. Y. 463 ; 1 Brandt, SuretyAip A Guar-
anty, 94.
Common •directors lack authority to
make contracts between their principal
corporations.
1 Mora we tz, Priv. Corp. 2d ed. § 628;
Barrie v. United R. Co. 125 Mo. App.
96, 102 S. W. 1078; Thomas v. Brown-
\'ille, Ft. K. & P. R. Co. 109 U. S. 524,
27 L. ed. 1018, 3 Sup. Ct Rep. 315;
146
Sweeny v. Wheeling Grape Sugar Sc
Ref . Co. 30 W. Va. 443, 8 Am. St R^.
97, 4 S. E. 431 ; Wardell v. Union P. R.
Co. 103 U. S. 656, 26 L. ed. 511, 7 Mor.
Min. Rep. 144; Noyes, Intercorporate
Relations, § 124, p. 195; Cole v. Millter-
ton Iron Co. 59 Hun, 217, 13 N. Y. Supp.
851, 133 N. Y. 164, 28 Am. St. Rep. 615,
30 N. E. 848; Bicocchi v. Casey-Swasev
Co. 91 Tex. 264, 66 Am. St. Rep. 875, 42
S. W. 963.
The liability of defendant attached
when the excessive loan was made, and
not first when the notes were taken over
by the bank from the loan company.
This liability could only be extinguished
by the bai^ receiving in some legal,
unavoidable form the principal and in-
terest of the notes in. money or value, or
by estoppel.
.2 EUiott, Contr. § 1421; Gulf Com-
press Co. V. Harris, C. & Co. 158 Ala.
343, 24 L.R.A.(N.S.) 399, 48 So. 477;
Bicocchi V. Casey-Swasey Co. supra.
Defendant in ertor dominated the bank
until in May, 1909. During the period
prior to this date the Statute of Limi-
tations did not ran.
National Bank v. Wade, 84 Fed. 15;
2 Perry, Trust, 2d ed. § 864; 2 Pom. Eq.
Jur. § 1089; Poland v. Frazier, 64 Tex.
542; MoCord v. Nabours, 101 Tex. 494,
109 S. W. 913, 111 S. W. 144; Blount v.
Bleker, 13 Tex. Civ. App. 227, 35 S. W.
863; American Cotton Co. v. Heierman,
37 Tex. Civ. App. 312, 88 S. W. 845;
Jacobs V. Shannon, 1 Tex. Civ. App. 395,
21 S: W. 386; Bank of Hartford County
V. Waterman, 26 Conn. 824; Witters v.
Sowles, 31 Fed. 5; Welles v. Graves, 41
Fed. 468; CockrUl v. Butler, 78 Fed. 679;
Power V. Munger, 3 C. C. A. 253, 10
U. S. App. 289, 52 Fed. 710; Briggs v.
Spaulding, 141 U. S. 146, 35 L. ed. 668.
11 Sup. Ct. Rep. 924; Cockrill v. Abeles.
30 C. C. A. 223, 58 U. S. App. 648, 86
Fed. 505; Cooper v. Hill, 36 C. C. A.
402, 94 Fed. 582; Stephens v. Overstolz.
43 Fed. 771; Warner v. Penoyer, 44
L.R.A. 761, 33 C. C. A. 222, 61 U. S.
App. 372, 91 Fed. 587; Brown v. Farm-
ers & M. Nat. Bank, 88 Tex. 265, 33
L.R.A. 359, 31 S. W. 285; Zinn v. Bax-
ter, 65 Ohio St. 341, 62 N. E. 327.
Messrs. Cnllen F. Thomas, W. J. Mc-
Ei6, and Henry 0. Coke submitted the
oause for defendant in error:
The liability of a surety on a note
given to a national bank for money bor-
rowed by the principal from the bank is
not to be included in determining the
surety^s liabilities to the bank under
S51 U. 8.
1919.
CORSICANA NAT. BANK v. JOHNSON.
70-72
IT. S. Rev. Stat. § 5200, Comp. Stat.
% 9761, 6 Fed. Stat. Anno. 2d ed. p. 761.
Pratt's Dig. of National Banks, 1914,
Rev. ed. p. 120.
Mr. Justice Pitney delivered the opin*
ion of the court :
This was an action brought under
5239, U. S. Rev. Stat., Comp. Stat.
9831, 6 Fed. Stat Anno. 2d ed. p. 873, in
the then circuit,^ now district, court of
the United States for the northern dis-
trict of Texas, by plaintiff in error, a
national banking {Association which we
may call for convenience the Bank,
against defendant in error, formerly a
member of its board of directors and its
vice president, to hold him liable per-
sonally for damages sustained by the
Bank in consequence of his having know-
ingly violated, as was alleged, the pro-
visions of § 5200, Rev. Stat., as amended
June 22, 1906 (chap. 3516, 34 Stat, at L.
461, Comp. Stat. § 9761, 6 Fed, Stat.
Anno. 2d ed. p. 761), by participating as
such director and vice president in a
loan of the Bank's funds to an amount
exceeding one tenth of its paid-in capital
and surplus.
The action appears to have been com-
menced in February, 1910, and, after de-
lays not necessary to be recounted, was
tried before the district court with a
jury. A verdict Tfas directed in favor
of defendant, and the judg^nent thereon
was affirmed by the circuit court of ap-
I>eals, no opinion being delivered in
either court. The judgment of affirm-
ance is now under review.
The amended § 5200, Rev. Stat., as it
stood at the time the alleged cause of
action arose, reads as follows, the matter
inserted by the amendment being indi-
^ated bv brackets i
"Sec. 5200. The total liabilities to any
association, of any person, or of any
<u>mpany, corporation, or firm for money
borrowed, including, in the liabilities of
a company [71] or firm, the liabilities of
the several members thereof, shall at no
time exceed one-tenth part •f the {wtnount
of the capital stock of such association
actually paid in [and unimpaired and
one-tenth part of its unimpaired surplus
fund: Provided, however, that the total
of such liabilities shall in no event ex-
ceed' thirty per centum of the capital
stock of the association]. But the dis-
count of bills of exchange drawn in good
faith against actually existing values,
and the discount of commercial or busi-
ness paper actually owned by the person
negotiating the same, shall not be con-
sidered as monev borrowed. '^
«4 L. ed. '
The pertinent portion of the other sec-
tion reads as follows : .
'*Sec. 5239. If the directors of any
national banking association shall know-
ingly violate, or knowingly permit any
of the officers, agents, or servants of the
association to violate any of the provi-
sions of this title, all the rights, privi-
leges, and franchises of the association
shall be thereby forfeited. . . . And
in cases of such violation, every director
who participated in or assented to the
same shall be held liable in his )>ersonal
and individual capacity for all damages
which the association, its shareholders,
or any other person, shall have sustained
in consequence of such violation."
Under the rule settled by familiar de-
cisions of this court, in order for the
Bank to prevail in this action it must
appear not only that the liabilities of a
person, company, firm, etc., to the Bank
lor money borrowed, were permitted to
exceed the prescribed limit, but that
defendant, while a director, participated
in or assented to the excessive loan or
loans not through mere negligence, but
knowingly and in effect intentionallr
(Yates V. Jones Nat. Bank, 206 U. S.
158, 180, 51 L. ed. 1002, 1015, 27 Sup.
Ct. Rep. 638), with this qualification:
that if he deliberately refrained from in-
.vestigating that which it was his duty
k) investigate, any resulting violation of
the statute must be regarded as "in effect
intentional" [72] (Thomas v. Taylor.
224 U. S. 73, 82, 56 L. ed. 673, 678, 32
Sup. Ct. Rep. 403; Jones Nat. Bank v.
Yates, 240 U. S. 541, 555, 60 L. ed. 788,
799, 36 Sup. Ct. Rep. 429).
The facts are involved, and need to
be fully stated. And necessarily, in
order to test the propriety of the per-
emptory instruction given by the trial
judge, we must bring into view the facts
and the reasonable inferences which
tended to a dijG^erent conclusion, and,
where the evidence was in substantial
dispute, must adopt a view of it favor-
able to plaintiff ; but of course we do this
without intending to intimate what view
the jury ought to have taken, had the
case been submitted to it.
On June 10, 1907, plaintiff, whose
banking house was at Corsicana, Texas,
had $100,000 capital and $100,000 sur-
plus, aggregating $200,000, and making
$20,000 the applicable limit under § 5200.
Defendant was a director and vice presi-
dent of the Bank, active — ^perhaps domi-
nant— in the conduct of its banking busi-
ness, and familiar with the state of its
finances.
The averment of a breach of duty re-
147
72 73
SLPRKMK COURT OF THE UNITED STATES. • Oct. Term,
lates to an alleged excessive loan or loans
made on or about the date last mentioned
to Fred Fleming and D. A. Templeton,
who, for a considerable time, had been
engaged in business as private bankers
in Corsicana and in several other towns
in Texas under the firm name of Fleming
& Templeton, and also had conducted at
Corsicana a branch bank for the AVestem
Bank & Trust Company, a state institu-
tion of which Fleming was president and
Templeton vice president, and whose
main banking house appears to have been
at Dallas, about 50 miles from Corsicana.
There was evidence that, early in June,
1907, Fleming & Templeton terminated
their private banking business at Corsi-
cana and turned over their deposit ac-
counta— between $30,000 and $40,000—
to the Corsicana National Bank, plaintiff
herein, together with money or exchange
on the Western Bank & Trust Company
sufficient to meet them. Whether the
firm was in fact dissolved at that time or
later, and [73] whether the dissolution
applied to their other branches, or to the
Corsicana business only, were points
concerning which, under the evidence,
there was some doubt.
On or about June 10th, while the presi-
dent of the Bank was absent on vacation,
defendant loaned for the Bank to Flenj^
ing and Templeton $30,000 (less dis-
count) upon two promissory notes for
$15,000 each, maturing in six months.
Defendant testified that both Fleming
and Templeton negotiated with him, ask-
ing for two separate loans of $15,000
each, telling him that they had dissolved
partnership and' were winding up and
dosing out at Corsicana, and would turn
over between $30,000 and $40,000 of de-
posits to the Corsicana National Bank.
He further testified: "One of the con-
siderations of this loan was the transfer
of the deposits and with it the accounts
of Fleming & Templeton." He insisted
that two separate loans were made, of
$15,000 each, one to Fleming, for which
Templeton was surety, the other to Tem-
))leton, for which Fleming was surefy.
But defendant's own account of the cir-
cumstances under which and the special
inducement upon which the loan was
made, with other evidence to be recited
below, left room for a reasonable infer-
ence that there was in fact but a single
loan, and that separate notes were taken
in order to avoid the appearance of a
loan in excess of the limit. They were in
^he usual form of joint and several notes,
payable to plaintiff^s order. One was
signed "Fred Fleming, D; A. Templeton,"
the other, "D. A. Templeton, Fred Flem-
148
ing," without naming either maker as
• surety. Discount to the amount of $900
was deducted, and the net proceeds, $29,-
100, were paid by a draft drawii by the
Bank on the Western Bank & Trust Com-
pany to the order of "Fleming & Temple-
ton," which was sent by mail, inclosed
in a letter written upon the Bank's let-
terhead, dated June 10, 1907, and ad-
dressed to Templeton at Dallas, in which
letter, after acknowledging receipt of
the two notes for $15»000 each, "signed by
[74] yourself and Fred Fleming," it was
stated : "We have deducted the discount,
$900, and hand you herewith our draft
#A, 7830, on Western Bank & Trust
Companv, order Fleming & Templeton,
for $29,i00." The retained copy of this
letter appears to have been introduced
in evidence; at the foot, opposite the
place of signature, are the initials "V.
P." With regard to this, as also to cer-
tain other "V. P." letters dated in the
following December and relating to re-
newal of the notes, defendant testified:
"I think I signed the letters which are
offered in evidence as exhibits H," etc.
There was evidence that the draft for
$29,100 was indorsed in the firm name by
Templeton and deposited in the Western
Bank & Trust Company at Dallas to the
credit of the joint account of Pleming ft
Templeton, to make up in part an over-
draft amounting to more than $125,000;
this account having been overdrawn
constantly, and in large but varying
amounts, sfhce the preceding April.
As a result of an examination of the
Bank, made a few days later, the Comp-
troller of the Currency wrote to its presi-
dent under date June 22, severely criti-
cizing the Fleming-Templeton loan,
among others, as excessive under § 5200,
Rev. Stat., Comp. Stat. § 9761, 6 Fed.
Stat. Anno. 2d ed. p. 761, and saying:
"Immediate arrangements must be made
to reduce these loans to the legal limit."
It was a fair inference that defendant
knew of this letter, or, in the proper
performance of his duties, would have
known of it. Whether any reply was
made to it did not appear.
Notwithstanding the warning thus
given, when the notes matured in De-
cember they were renewed with defend-
ant's assent for a further period of six
months, joint notes being given to the
Bank as before, and the further sum of
$900 being paid by Fleming & Temple-
ton to the Bank for interest in this way :
plaintiff, under defendant's direction,
charged the amount in a single [75] item .
to the Western Bank & Trust Company,
for account of the borrowers, and the lat-
.251 U. S.
1919.
CX)RSICANA NAT. BANK v. JOHNSON.
75-
i 4
ter institution acknowledged the chatge,
gave credit to plaintiff for the amount,
and charged it against the joint account
of Fleming & Templeton. During De-
cember some correspondence passed be-
tween defendant at Corsicana, he writing
as vice president of the Bank, and Tem-
pleton ^t Dallas, relating to the renewal
of the notes, tending to show that they
were regarded by both writers as repre-
senting a single obligation of "Fleming
d Templeton." Thus, Templeton on De-
cember 3d wrote to defendant: "Refer-
ring to the notes of Fleming & Temple-
ton," etc.; and defendant wrote to him
on the following day mentioning "renew-
al notes of loan to you and Mr. Fleming."
The evidence tended to show that up
to the time of the renewal the borrowers
were apparently solvent, but that about
January 15, 1908, they became manifest-
ly and notoriously insolvent. The West-
em Bank & Trust Company closed its
doors on that date and went into liqui-
dation, with Fleming & Templeton owing
it several hundred thousand dollars.
About the same time Fleming and per-
haps Templeton went into bankruptcy,
and Templeton Afterwards died, and
their respective estates paid small divi-
dends upon their obligations. The jury
would have been warranted in finding
that it was evident to defendant, as a
banker, on and after the 15th of Janu-
ary, that there would be a substantial
loss upon the Fleming and Templeton
notes.
On February 6, 1908, an official bank
examiner visited the Bank, with the re-
sult that on the 26th the Deputy Comp-
troller wrote, calling the attention of its
officers to alleged repeated violations of
the National Banking I-iaw in the con-
duct of its affairs, specifying certain
loans in excess of the limit prescribed by
§ 5200, among them "Fleming & Temple-
ton, $30,000," and stating that "the di-
rectors who are responsible for the loans
or permitted [76] them to be made
should assume liability for any Iq^s that
may be sustained thereon, and not throw
the burden of such loss on innocent stock-
holders." On March 11 the directors, in-
cluding defendant, united in signing a
letter to the Comptroller in reply to his
criticisms, among, other things saying:
**Reference to the Fleming & Templeton
item of $30,000 we beg to say that this
item has been disposed of by the Bank
and they now owe us nothing." It was a
reasonable inference that defendant in-
tended to admit that it was a single loan
and in excess, of the limit*
In explanation of the statement that it
§4 L. ed.
had been "disposed of by the Bank." tli<»
evidence tended to show that on Febru-
ary 12, 1908, nearly a month after the
insolvencj' of Fleming and Templeton •
had become notorious, and a few davs
after the bank examiner's vjsit, defend-
ant and the president of the Bank caused
the two notes of December 10 to be trans-
ferred "without recourse" to an affiliated
corporation known as the Corsicana Na-
tional Land & Loan Company (they be-
ing directors and officers of this coii^ora-
tion also), upon payment of $29,400, the
full face value less discount, as consid-
eratipn; the payment being made by a
transfer of credit uiK)n the books of the •
Bank. Defendant relies upon this as
wholly relieving the Bank from loss by
reason of the loan, and consequently as
releasing him from responsibility to the
Bank. But the evidence tended to show
further that the loan company in Janu-
ary, 1910, shortly before this suit was
brought, rescinded the transaction upon
the ground of fraud, and that there was .
a settlement as between the loan com-
pany and the Bank, based upon an ac-
knowledgment by the latter of the form-
er's right to rescind.
A brief account of the relations be-
tween these two corporations, and of their
dealings respecting the- notes in question,
becomes material. The loan company
was organized in the month of May, 1007,
under the laws of the state* of Texas,
with $50,000 capital stock and with
[77] stockholders and directors identical
with those of the Bank. The capital of
the company was subsc^ribed for and paid
out of a special dividend declared by the
directors of the Bank for the purpose,
and each stockholder had the sam^ pro-
portion of stock in the company as in the
Bank. The purpose of the new corpora-
tion, as declared in its charter, was the
"accumulation and loan of money." De-
fendant testified: "The purpose of the
loan company, a state corporation, was
to take such paper as the bank could not
handle. It "was organized by the stock-
holders of the bank and paid for out of
the earninsrs of our bank.
The
loans of the loan company were largely
real estate loans. It was to help out
the bank in every possible [way]." From
the organization of the company in the
spring of 1907 until the spring of 1909,
defendant was a director and active in
the management of the company as well
as of- the Bank. He testified that the
stockholders of the two corporations
were identi(*al, and continued to be so
during the entire period just mentioned:
that '* whenever there was a sale of bank
119
i i
-80
SUPREME COURT OF THE UNITED STAJES.
Oct. Tebm^
stock it carried with it that particular
. shareholder's stock in the loan com-
pany." During the same period the two
corporations had the same president, vice
president, alid directors, while the assis-
tant cashier of the Bank was secretary
of the loan company.
So far as appeared, the transfer of the
Fleming and Templeton notes to the loan
company, and the payment made by the
company to the Bank, were never ex-
pressly authorized or ratified by the
stockholders of either corporation; nor
did it appear that the stockholders of
the loan company ever authorized its di-
rectors to employ its funds in taking bad
or doubtful paper off the hands of the
Bank at a loss; much less, to relieve the
directors of the Bank from responsibility
for its losses.
In April or May, 1909, there was a
change in the control of the Bank, due
to sales of a majority of the stock, fol-
lowed [78] by a change of officers, de-
fendant retiring as both stockholder and
director. The corresponding shares of
he stock of the loan company were trans-
ferred at the same time, and the new
nlanagement officered the company as
well as the Bank. So far as appeared
from the evidence, the transfer of de-
fendant's stock carried with it no agree-
ment that he should not be held respon-
sible to the Bank because of the Fleming
and Templeton loan, nor any approval
of the transfer of the loan to the loan
company.
The Bank and the loan company held*
annual meetings of stockholders on Janu-
ary U, 1910, at which, for the first time,
so far as appears, the boards of direc-
tors were so selected that a majority
of one board no longer were directors
of the other corporation. This was done
by electing, as ^ve out of nine directors
of the loan company, individuals hold-
ing one share of stock each, recently
placed in their names for the purpose of
qualifying them. They were not stock-
holders of the Bank) but, except for
them, the stockholders of the two cor-
porations still were the same, and it was
a reasonable inference that the two meet-'
ings were attended by the same indi-
viduals. Minutes of these stockholders'
meetings, and of certain meetings of the
respective boards of directors, were in-
troduced in evidence and supplemented
by other testimony, from all of which the
following additional corporate proceed-
ings appeared. The stockholders of the
loan company, more than a majority in
interest being present, unanimously
adopted a resolution reciting the taking
150
of the notes of December 10, 1907, by
the Bank from Fleming and Templeton,.
and that on or about January 15, 1908^
the makers became insolvent and the
notes worthless and uncollectable; and
setting forth that, with knowledge of
this fact, certain of the directors and
officers of the Bank illegally and wrong-
fully transferred the notes to the loan
company, for which the same officers and
directors, [79] being likewise officers and
directors of the loan company, illegally
and wrongfully transferred to the Bank
out of the funds of the. loan company
the face value of the notes, whereby the
Bank had committed a wrong upon the
loan company and was liable to it there-
for; and by this resolution the directors
of the company were authorized to ad-
just and settle this demand against the
Bank, and to tender and return to the
Bank the Fleming and Templeton notes
and indebtedness with any collateral se-
curity held for them. The directors of
the loan company thereafter and on the
same day passed a resolution to the like
effect, and appointed a committee to
make demand upon the Bank for return
of the money wrongfully transferred to
the Bank for the notes, and to adjust
and settle this demand; the notes and
indebtedness of Fleming and Templeton
and any collateral security held therefor
being at the same time tendered and or-
dered to be returned to the bank. This
committee appeared before the stock-
holders' meeting of the Bank and for-
mally presented the demand, whereupon
these stockholders authorized their board
of directors to act upon the claim made
on the Bank by the loan company, -and
to adjust and settle it if they should
conclude that the Bank was liable to
the loan company; otherwise to reject it.
A few days later a meeting of the new
board of directors of the Bank was
held, at which a communication from the
loan company committee was presented,
in subftance the same as that previously
presented to the Bank stockholders, and
the resolution of the Bank stockholders
thereon was read; and thereupon the di-
rectors authorized the president of the
Bank, if he believed the claim of the
loan company to be just, to proceed to
settle it in such a way as he might deem
to be to the best interest of the Bank.
Under this authority, the president of
the Bank communicated to the loan com-
pany committee in substance that the
Bank recognized the legality and just-
ness of the claim of the loan company and
[80] would pay it provided the oompany
would purchase from the Bank a certain
251 U. 8.
im.
COBSICANA NAT. BAXK v. JOHNSON.
80-S>
eottoD-mill property for the sum of $65,-
OOO, accept $30,000 of this in payment
of its demand against the Bank, trans-
fer to the Bank the Fleming and Temple-
ton notes and indebtedness, with all col-
lateral secnring the same, and execute
to the Bank its own promissory note for
the remaining $35,000, with the cotton-
mill property as security. This was
agreed to by the directors of the loan
company^ and the settlement was car-
ried out accordingly. Shortly after this,
the present action was brought.
The "collateral security" above re-
ferred to appears to have consisted of
certain shares of stock in a corporation
known as the Fleming Ranch & Cattle
Company, acquired in the winding-up
of the bankrupt estate of Fleming.
These shares, so far as the evidence
showed, were the only thing of value re-
covered either by the loan company or
by the Bank from the estates of the bor-
rowers. After the present suit was com-
menced, the Fleming Ranch & Cattle
Company was liquidated, and in the dis-
tribution of its assets the Bank received
sums aggregating $9,149.34, which are
credited as payments on account of its
claim against defendant.
So far as the above-recited facts were
in dispute, there was substantial evi-
dence tending to support a view of them
favorable to plaintiff's contentions.
What weight should be given to it was
for the jury, not the court, to determine.
Hepburn v. Dubois, 12 Pet. 345, 376, 9
L. ed. IIU, 1123; Lancaster v. Collins,
115 U. S. 222, 225, 29 L. ed. 373, 374,
6 Sup. Ct. Rep. 33; Chicago & N. W.
R. Co. V. Ohle, 117 U. S. 123, 129, 29
L. ed. 837, 839, 6 Sup. Ct. Rep. 632;
JEiuR L. Ins. Co. v. Ward, 140 U. S.
76, 91, 35 L. ed. 371, 376, 11 Sup. Ct
Rep. 720; Troxell v. Delaware, L. & W.
R. Co. 227 U. S. 434, 444, 57 L. ed. 586,
591, 33 Sup. Ct. Rep. 274.
W'e proceed to consider, in the order
of .convenience, the questions raised up-
on the record.
(1) And first, as to the direction of a
verdict in favor of defendant. Plaintiff,
in the amended petition upon which [81]
the case went to tried, after a circum-
tantiaj statement respecting the transac-
tion of -June 10, 1907, alleged that the
discount of the notes ''was an excessive
loan^ whether regarded as one loan to the
firm of Fleming & Templeton, as plaintiff
alleges the fact to be, or regarded as two
loans, as contended for by the defendant
in his pleadings heretofore filed herein.''
The degignation of Fleming & Temple-]
ton as a ''firm'' is but descriptive, and
•4 L. ed.
not essential, and the pleading is suffi-
cient if the proof tended to show a single
and excessive loan made to them jointly
ih any capacity, or made in form one-
half to eachj but in substance as a single
loan.
In our opinion, the trial judge clearly
erred in holding, as in effect he must
have held, that there was no substantial
evidence from which the jury might find
that there was an excessive loan in the
making of which defendant, as a director
of the Bank, knowingly participated.
That he acted for the Bank in the mat-
ter, and that he knew that any loan in
excess of $20,000 was prohibited, he ad-
mitted. His denial that it was a single
loan, or that he knew it to be such, is
not conclusive; there being substantial
evidence inconsistent with it, tending to
show facts and circumstances attendant
upon the transaction, of which he had
knowledge, and also subsequent conduct
in the nature of admissions by him, in-
consistent with his testimony upon this
point. The account of the negotiations,
as given in defendant's own testimony;
the fact that he knew that the firm of
Fleming & Templeton, even if dissolved,
was still in liquidation; that one of the
inducements for the loan (or "loans")
was the transfer of deposit accounts of
equal or greater amount from the firm to
the Bank; that Templeton alone (as
shown by the exhibits) appears to have
corresponded with defendant concerning
the notes; that defendant himself, as vice
president of the Bank, wrote to Temple-
ton acknowledging receipt of the two
notes for $15,000 each, "signed [82] by
yourself and Fred Fleming,'* and having
"deducted the discount, ^00," inclosed
the Bank's d^af t, "order Fleming & Tem-
pleton for $29,100 ;" that when the notes
fell due in December the correspondence
concerning their renewal was conducted
by defendant with Templeton alone, and
they were treated as representing a
single loan, and the discount was charged
by defendant or under his direction in
a single item; that after the borrowers
had become notoriously insolvent, in
February, 1908, defendant took part in
transferring the notes "without re-
course" to the affiliated loan copipany in
the manner and under the circumstances
above stated; that the transfer was ef-
fected a few days after the visit of the
bank examiner; that when the Deputy
Comptroller wrote to the Bank, classify-
ing "Fleming & Templeton $30,000'* as
an excessive loan, and demanding that
the directors responsible for making it
should assume the loss, defendant joined
151
82-84
SI PRKME COURT OF TlIE UNITED STATES.
Oct. Term,
in signing the reply that has been quo-
ted;— all this, to say nothing of other
<*ircinnstances that might be mentioned,
would have warranted the jury in find-
ing, notwithstanding defendant's denial,
that in fact the disputed transaction
was a single loan of $30^000, less dis-
count, or,- to be precise, $29,100, made
to Fleming and Templeton jointly; that
defendant knew and assented to this at
the time; and that the taking of two
notes was but a device to conceal the
true nature of the transaction.
(2) Irrespective of whether there was
))ut a single loan or wpre two separate
loans, plaintiff in error contends that the
liability of a surety must be added to his
direct and primary liability in determin-
ing his total liabilities for money bor-
rowed, within the meaning of Rev. Stat.
§ 5200, Comp. Stat. § 9761, 6 Fed. Stat.
Anno. 2d ed. p. 761, and that in the pres-
ent case, although the notes should be
found to have represented two entirely
separate loans, each within the limit,
they must be added together in order
to determine whether the limit was ex-
ceeded. Cochran v. United States, 157 U.
S. 286, 295, 296, 39 L. ed. 704, 707, 708,
15 Sup. Ct. Rep. 628, is cited, where it
was held [83] that the word "liabilities,"
as emploved in § 5211, Rev. Stat. (Comp.
Stat. § 9774, 6 Fed. Stat. Anno. 2d ed.
p. 790), included contingent liabilities.
We do not regard the case as controlling,
because the purpose of that section, and
the language employed, differ materially
from the purpose and the language of
the provision we are dealing with. As
to whether in § 5200 the words "the total
liabilities . • . . of any person . . .
for money boiTowed," etc» require the
liability of a surety or of an indorser
for money borrowed by another to be
added to his direct liability for money
borrowed by himself in ascertaining
whether the limit is exceeded, — what-
ever view we might entertain were
the matter res nova, — we are advised
that by the practice and administrative
rulings of the Comptroller of the Cur-
rency during a long period, if not from
the beginning of national banking, lia-
bilities which are incurred by one person
avowedly and in fact as surety or as in-
dorser for money borrowed by another
are not Included in the computation.
We feel constrained to accept this as a
practical construction of the section.
And we are not prepared to say that in
au action against a director who knows
and relies upon the fact that a particular
obligation is signed by one merely as
j^uretv, although not so described, the
152 '
defendant may not be permitted to show
the truth.
(3) In view of certain contention^
urged here in behalf of defendant, and
perhaps acceded to by the courts below,
it should be said that the question
whether defendant knowingly partici-
pated in or assented to the making of a
loan in excess of the limit prescribed by
§ 5200 is not to be confused by any con-
sideration of the supposed standing of
the borrowers, personal or financial.
The statutory limit is a special safe-
guard prescribed by Congress for the
very purpose (among others) of pre-
venting undue reliance upon the finan-
cial standing of borrowers. Nor would
the absence of any improper motive or
a desire for personal profit on defend-
ant's part be a defense ; nor the fact that
[84] in spite of a loss upon this transac-
tion the Bank remained solvent or even
prosperous. Neither is the question of
defendant's liability, or the extent of it,
to be affected by the fact, if it be a fact,
that other officers or directors of the
Bank were in part responsible, yet de-
fendant alone was sued; nor that the
Bank refrained from suing him until
after a change in the stockholding inter-
est or control. Again, in the absence of
some special agreement, — and none such
appears, — it is immaterial whether the
new stockholders were aware of the ex-
cessive loan, or of defendant's alleged
liability in the premises, at the time they
acquired their stock; or whether they
possibly may now profit by an increase
in the value of the shares in the event
of a recovery against him.
It is clear from the language of § 5239,
Rev. Stat. (Comp. Stat. § 9831, 6 Fed.
Stat. Anno. 2d ed. p. 873), that evenf
director knowingly participating in or as-
senting to a violation of any of the pro-
visions of the act is "liable in his personal
and individual capacity," without regard
to the question whether other directors
likewise are liable. The violation is in
the nature of a tort, and the party in-
jured may sue one or several of the joint
participants. Bigelow v. Old Dominion
Copper Min. & Smelting Co. 225 U. S.
Ill, 132, 56 L. ed. 1009, 1023, 32 Sup.
Ct. Rep. 641, Ann. Cas. 1913E, 875. And
the liability extends to "all damages
which the association, its shareholders,
or any other person, shall have sustained
in consequence of such violation." In
the present action the Bank represents
the interest of its shareholders, as well
as of its creditors; and if there was a
violation of the act by defendant, with
resulting diminution of its assets, the
251 V. S.
1919.
CORSICANA NAT. BA^K v. JOHNSON.
^4-s:
Bank is entitled to recover the damages
thus sustained, notwithstanding it re-
mained solvent, and irrespective of any
changes in its stockholding interest or
control occurring between the' time the
cause of action arose and the time of the
commencement of the suit or of the trial.
Even if it appeared that hew stock-
holders acquired their interests with
knowledge of the fact that such a loss
had been si^stained and that defendant
was responsible fop it, [85] neither they
nor the Bank would be thereby estopped
from having full recovery from defend-
ant. Th^re is no reason in the law to
disentitle a purchaser of shares from
even relying upon the responsibility of
directors to make good previous losses
as an element adding intrinsic value to
the shares. Compare Bigelow v. Old
Dominion Copper Min. & Smelting Co.
74 X. J. Eq. 457, 500, 71 Atl. 153.
(4) Defendant, among other defenses,
pleaded the two-year Statute of Limita-
tions of the state of Texas. Plaintiff
<lemurred on the ground that this limita-
tion was not a bar; and also replied,
setting up certain facts that need not
now be recited. The demurrer was over-
ruled.
The provisions of the Texas statutes
npou the subject are Vernon's Sayles's
Civ. Stat. (Tex.) 1914, arts. 5687, 5688,
and 5690, set forth in the margin.*
[86] In our opinion, the action is not
one of the kinds specified in art. 5687, to
which the two-year limitation applies,
but is within the general description of
art. 5690, and subject only to the limi-
tation of four years. Hence the limita-
tion pleaded was no defense; and it is
not. contended that there was any basis
in fact for pleading the four-year limita-
tion.
(5) Assuming the Fleming and
Templeton notes were found to represent
an excessive loan, knowingly partici-
pated in or assented to by defendant as
a director of the Bank, in our opinion
the cause of action against him accrued
on or about June 10, 1907, when the
Bank, through his act, parted with the
money loaned, receiving in return only
negotiable paper that it could not law-
fully accept because the transaction was
prohibited by § 5200, Rev. Stat. (Comp.
Stat. § 9761, 6 Fed. Stat. Anno. 2d ed.
p. 761). The damage as well as the in-
jury was complete at that time, and the
Bank was not obliged .to await the ma-
turity of the notes, because immediately
it became the duty of fhe officers or
directors who knowingly participated' in
making the excessive, loan to undo the
wrong done by taking the notes off
the hands of the Bank and restor-
ing to it the money that had been
loaned. .Of [87] course, whatever of
value the Bank recovered from the bor-
rowers on account of the loan would
go in diminution of the damages; but
the responsible officials would have no
»Art. 5687. There shall be commenced
and prosecuted within two years after the
cause of action shall have accrued, and not
afterward, all actions or suits in court of
the following description :
1. Actions of trespass for injury done to
the estate or the property of another.
2. Actions for detaining the persona]
property of another, and for converting such
personal property to one's own ui^e.
3. Actions for taking or carrying away
the goods and chattels of another.
4. Actions for debt where the indebted-
ness is not evidenced by a contract in writ-
ing.
5. Actions upon stated or open accounts,
other than such mutual and current ac-
«-ounts as concern the trade of merchandise
between merchant and merchant, their fac-
tors or agents. In all accounts, except
those between merchant and merchant, as
aforesaid, their factors and agents, the re-
spective times or dates of the delivery of
the several articles charged shall be par-
ticularly specified, and limitations shall run
against each item from the date of such
delivery, unless otherwise specially con-
tracted.
6. Action for injury done to the person
of another.
•4 L. ed.
7. Action for injury done to the person
of another where death ensued from such in-'
jury; and the cause of action shall be con-
sidered as having accrued at the death of
the party injured.
Art. 5688. There shall be commenced and
prosecuted within four years after the oau<»e
of action shall have accrued, and not after-
ward, all actions or suits in court of the
following description:
1. Actions for debt where the indebted-
ness is evidenced by or founded upon any
contract in writing.
2. Actions for the penalty or for dam-
ages on the penal clause of a bond to convey
real estate.
3. Actions by one partner ftgainst his co-
partner for a settlement of the partnership
accounts, or upon mutual and current ac-
counts concerning the trade of merchandise
between merchant and merchant, their fac-
tors or agents; and the cause of action shall
be considered as having accrued on a cessa-
tion of the dealings in which they were in
terested together.
Art. 5690, Every action other than for
the recovery of real estate, for which no
limitation is otherwise prescribed, shall be
brought within four years next after the
right to bring the same shall have accrued,
, and not afterward.
153
^
S
s7 S!>
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
right to require the Bank to pursue its
remedies against the borrowers or await
the liquidation of their estates. The
liability imposed by the statute upon
the director is a direct liability, not con-
tingent or collateral.
(6) The question is raised whether
the entire sum loaned, plus interest and
less salvage, should be treated as dam-
ages sustained by the Bank through the
violation of the provisions of § 5200,
Rev. Stat., — assuming it be found that
defendant did knowingly violate them, —
or whether only the excess above what
lawfully might have been loaned (pre-
sumably $20,000) should be so regarded.
We assume that if, in good faith and in
the ordinary course of business, defend-
ant had made a loan of $20,000 to Flem-
ing and Templeton, and if, while this
loan remained unpaid, he had afterwards
and as a separate transaction unlawfully
loaned them an additional $10,000, in
excess of the limit, the damage legally
attributable to his violation of the limit-
ing provision would have been but
$10,000. But Jthat is not this case. Ac-
cording to the evidence, the $30,000, less
discount, was paid out by the Bank as
a single payment ; end if the jury found
it to have been loaned in excess of the
statutory limit (whether in form one
loan or two) it must be upon the ground
that it was a single transaction. That
being so, it would follow that the entire
amount disbursed by the Bank was dis-
bursed in violation of the law. The
cause of action against a director know-
ingly participating in or assenting to
such excessive loan would be complete
at that moment, and entire; there would
be no legal presumption that the bor-
rowers would have accepted a loan with-
in the limit, if their application for the
excessive loan had been refused; nor
that a director who in fact violated his
duty as defined by law would, if mind-
ful of it, have loaned them even $20,000.
To mitigate in his favor [88] the dam-
ages resulting from a breach of his statu-
tory duty by resorting to the hypothesis
that if he had not disregarded the law in
this respect he would have pursued a dif-
ferent course of action within the law,
would be an unwarranted resort to fiction
in aid of a wrongdoer, and at the ex-
pense of the party injured. Hence, the
entire excessive loan would have to be re-
garded as the basis for computing the
damages of the Bank.
(7) In behalf of defendant it is in-
sisted that, assuming the loan was ex-
cessive, no loss accrued to the Bank by
reason of it, because the Fleming and
154
Templeton notes and indebtedness were
transferred to the loan company Febru-
ary 12, 1908, for a cash consideration
equivalent to their face value, less in-
terest to maturity.
Plaintiff in error contends that the
Bank and the loan company were so
identical in ownership and united in
management that the latter was but the
alter ego of the former, and a loss to
the loan company on the notes was the
same as a loss to the Bank, not only
practically, but in contemplation of law.
On the other hand, the arg^ument of de-
fendant in error regards the two cor-
porations as if they were wholly inde-
pendent ; treats the transfer of the notes
from the Bank to the loan company, in
February, 1908, as valid, and the money
or credit contemporaneously transferred
to the Bank like money coming from an
outside party; and looks upon the re-
transfer in January, 1910, as voluntary
on the part of the Bank and an unneces-
sary assumption of a loss that other-
wise it had escaped.
We cannot accede to either contention
in the extreme. Because the Bank and
the loan company were distinct legal or-
ganizations, operating under separate
charters, derived from different sources,
and possessing independent powers and
privileges, we are constrained to hold
that, notwithstanding the identity of
stock ownership and their close affilia-
tion in management, for some purposes
they must be regarded as separate cor-
porations; for [89] instance, as being
capable in law of contracting with each
other. See Nashua & L. B. Corp. v. Bos-
ton & L. B. Corp. 136 U. S. 356, 372, 373.
375, et seq., 34 L. ed. 363, 367, 368. 10
Sup. Ct. Bep. 1004. But, in considering
the practical effect of such intercorporate
dealings, especially as bearing upon the
duties of the common directors and the
authority of the stockholders to control
them, we need not and ought not to over-
look the identity of stock ownership.
Thus, the transfer of the notes in Feb-
ruary, 1908, from the Bank to the loan
company, in* consideration of their full
face value ostensibly or actually paid by
the company to the Bank, evidently
could have no effect in relieving ' the
stockholding interest from loss, since
each stockholder of one corporation had
a corresponding interest in the stock
of the other, and any theoretical saving
that accrued to him as a stockholder of
the Bank was balanced by a correspond-
ing loss sustained in his capacity as a
stockholder of the company. At the
same time the stockholders, in reviewing
251 U. S.
1919.
CORSICAXA NAT. BAXK v. JOHNSON.
89-91
that transaction, might lawfully and
properly base their action upou all the
facts of the situation; recognizing the
legtfl separateness of the corporations
as existing in order to test the validity
of the transfer and the feasibility of
setting it aside without litigation, while
^ving effect to their community of in-
terest in deciding whether this should be
done, and, if so, then in what manner
and upon what terms.
(8) Regarding the two corporations
as l^^ly separate, and ignoring for the
moment the community of stockhold-
ing interest, it is plain that the transac-
tion of February 12, 1908, in which the
Bank sold the Fleming and Templeton
notes and indebtedness to the loan com-
pany for their full face value, was prima
facie tantamount to a satisfaction of the
damages that th^ Bank had sustained by
reason of the excessive loan; but that it
had this effect, only provided the trans-
action was good and valid as against the
loan company and its stockholders, or
was duly ratified by them. For if it was
invalid, or was made [90] under cir-
cumstances rendering it voidable by
the loan company, or the stockholders,
neither the Bank nor defendant was
entitled to have the transaction stand
for their benefit; and if in fact it
was avoided for good cause, the Bank
would be entitled to its action against
defendant the same as if the annulled
transaction never had occurred.
Was there good cause for the rescis-
sion? The fact that the same persons
were directors and managers of both
corporations subjects their dealings inter
sese to close scrutiny. That two cor-
porations have a majority or even the
whole membership of their boards of
directors in conmion does not necessarily
render transactiojas between them void;
but transactions resulting from the
agency of officers or directors acting at
the same time for both must be deemed
presumptively fraudulent unless express-
ly authorized or ratified by the stock-
holders; and certainly where the circum-
stances show, as by the undisputed evi-
dence they tended to show in this case,
that the transact ipn would be of great
advantage to one corporation at the
expense of the other, especially where,
in addition to this, the personal interests
of the directors or any of them would be
enhanced at the expense of the stock-
holders, the transaction is voidable by
the stockholders within a reasonable
time after discovery of the fraud. Twin-
Lick Oil Co. V. Marbur^^ 91 U. S. 587,
589, 23 L. ed. 329, 330, 3 Mor. Min. Rep.
64 L. ed.
688 ; Wardell v. Union P. B. Co. 103 U.
S. 661, 667, et seq., 36 L. ed. 609, 611,
7 Mor. Min. Rep. 144; Thomas v. Brown-
ville, Ft. K. &• P. R. Co. 109 U. S. 622,
624, 27 L. ed. 1018, 1019, 3 Sup. Ct. Rep.
315; Richardson v. Green (Washburn v.
Green) 133 U. S. 30, 43, 33 L. ed. 516,
621, 10 Sup. Ct. Rep. 280; McGourkev
V. Toledo & 0. C. R, Co. 146 U. S. 536,
552, 665, 36 L. ed. 1079, 1085, 1090, 13
Sup. Ct. Rep. 170.
The evidence having tended to show a
transfer of the notes in question from
the Bank to the loan company "without
recourse," for a consideration equiva-
lent to their full face value, after the
insolvency of the makers had been
brought to light, with resulting discredit
of the notes as marketable paper and
probable inability of the makers to pay
theifl, — a transaction carried out by di-
rectors and [91] officers who acted as
agents or trustees for both corporations,
and one at least of whom, as the jun^-
might find, was subject to criticism from
the Comptroller of the Currency, and to
an action at the suit of the Bank, for
mining an excessive loan, — it clearly was
open to the jury to find that the transfer
was fraudulent as against the loan com-
pany, and as against the stockholders of
both companies. The jury should have
been instructed to this effect; and fur-
ther, that if they found the transfer to
have been fraudulent, the stockholders
had the right to rescind it within a rea-
sonable time after discovery of the
fraud; and that if, having such right,
the stockholders of the loan company as-
serted it and gave notice of its claim to
the Bank in the manner shown by the
minutes, and the Bank, recognizing and
acknowledging the justness of the claim,
restored to the loan company what was
accepted as the equivalent in value of
that which the Bank had received in the
transaction of February, 1908, this was
not to be regarded as a voluntary ox un-
necessary assumption of loss by the
Bank, but, on the contrary, the result,
so far as defendant was concerned, was
the same as if by court decree, in a suit
brought by the loan company, or by the
stockholders, the Bank had been com-
pelled to make such restitution ; and that
thereafter the rescinded transaction
could not be regarded as amounting, even
in form of law, to a satisfaction of the
damages sustained by the Bank as a re-
sult of the Fleming and Templeton loan.
So far as the evidence showed, neither
the stockholders of the loan company,
nor, indeed, its board of directors, ever
expresslv ratified or affirmed the trans-
155
I! I -04
srPKKME COURT OF THE UNITED STATES.
Oct. Teem^
fer. Nor does it Appear that there was
any unreasonable delay on the part of
the stockholders in taking action to set
it aside after they had become aware of
the circumstances; such delay as there
was the bank waived, as it had a right
to do; and defendant doe.s not appear to
have changed his position or to have
been prejudiced by reason of it.
[92] Assuming, in defendant's favor,
that because the corporations were legal-
ly separate thev could not undo the
transaction of February, 1908, without
formal corporate action, the procedure
adopted was sufficient for the purpose. It
is objected that the personnel of the
boards was changed for the very purpose
of accomplishing the rescission, and that
the new members were mere figureheads
or dummiefi for the controlling stockhold-
ers, and had no bona fide stock of their
own. But if the transaction of 1908 was
a fraud as against the loan company,
and done without authority of the stock-
holders, they were quite within their
rights in acting through dummies if
necessary in order to set it aside. We
do not think it was necessary to change
the membership of the boards; similar
action by boards having identical mem-
bership would have had the same effect,
if done by the express authority of the
stockholders in order to undo an im-
j)roper and unlawful act of former di-
rectors, injurious to their interests.
It is said that the rescission was put
•through in order to enable the Bank to
bring the present action against defend-
ant. But it was not done to build up
a ground of actioij against him, for this
arose, if at all, prior to February 12, !
1908, the damage to the Bank being sus-
tained when, with his participation and
assent, its money was paid to Fleming
and Templeton in June, 1907, for promis-
sory notes that the Bank could not law-
fully take. Defendant's liability to the
Bank, if he was liable, was direct and
primary, and to it the notes occupied the
status of collateral security. Had the
disposition made of them in February,
1908, been valid and unassailable, it
would have borne the appearance of a
satisfaction of the damages only because
the two corporations were legally sepa-
rate; but in substance, so far as the
stockholders were concerned, it would
have satisfied nothing, because it merely
transferred money to them in one capac-
ity by taking it from them in another.
Defendant had no right to have the
transaction remain [93] in effect as a
screen to protect him from suit bv the
Bank under § 5239, Rev. Stat. So far as
156
it may be supposed to have protected him
while it remained unrescinded, the re-
sult was entirely gratuitous, no Consider-
ation having proceeded from him in the
matter. Indeed, if his act in shift in «:j
the discredited loan was done in part
to give him immunity from such an ac-
tion as the present, this would furnish
an additional ground entitling the stock-
holders to set the transfer aside. And
if, either on this ground, or on the
ground that the transfer was put through
for the advantage of one corporation at
the expense of the other by officers or
directors acting at the same time for
both, and without the authority of the
stockhblders, the transaction was void-
able by the stockholders and they re-
solved to avoid it, it . would savor ot
absurdity to sustain defendant's conten-
tion that this w^as done in order to enable
the Bank to sue him; for, of course,
they would have the right to do it for
that very purpose.
(9) In defendant's behalf it is in-
sisted that, at the time of the proceed-
ings of January-, 1910, the value of the
cotton-mill property was much less than
$65,000, so that, in the exchange made,
the Bank in efi^ct parted with little or
no value for the return to it of the Flem-
ing and Templeton notes and indebted-
ness. But for reasons already suffi-
ciently indicated, we are of opinion that
defendant is not entitled to raise an in-
quiry into the value of this property,
as bearing either upon the question of
the Bank's right of action against him
or upon the question of damages. If
the loan company or the stockholders
had good ground for rescinding the 1908
transaction, and this was done pursuant
to their resolution, they might waive a
return of the precise consideration and
accept such equivalent in exchange as
to them seemed proper. Because of the
identity of the stockholding interest, the
transaction, even while it stood, was, •
as we have shown, only a pseudo-satis-
faction of the Bank's loss in the Flem-
ing [94] and Templeton loan; and when
the real parties affected by this loss un-
dertook on just grounds to set aside the
transfer of the notes, and took such
proceedings through action of the two
corporations as were necessary for that
purpose, they had a right to recognize
the community of interest in settling the
terms upon which this should be done;
and defendant has no standing to com-
plain.
If there be a seeming inconsistency in
sustaining a rescission of the 1908 trans-
action avowediv based itpon the ground
251 r. s.
1919.
WAGNER V. COVINGTON.
94, 95
that the loan company had unjustly been
subjected to a loss therein, while at the
same time we treat as unimportant the
question whether, upon such rescission,
full restitution was made to that com-
pany, it should be said that we treat it
as unimportant only so far as defend-
ant is concerned; and if there be in-
consistency, it is no more than correct-
ive of the unreality of the 1908 transac-
tion itself. It is defendant who invokes
that transaction as an actual realiza-
tion by the Bank of full value through
.a sale of the notes that it hold as col-
lateral security for its claim against him.
li, r^j^rding it as an actual sale, it was
voidable because done by agents acting
At the same time in a dual capacity or
for other reasons, he cannot complain
that the parties entitled to avoid it
treated it as actual for the purpose of
^»etting it aside, and in the consequent
readjustment recognized a* substantial
identity of interest between seller and
purchaser in the rescinded transaction
that rendered it hardly an actual sale.
Por, to the extent that the sale was a
sham, there was no realization by the
Bank upon the collateral security, and
hence no satisfaction of the damages
claimed against him.
The judgment under review must be
reversed, to the end that there may be
a new trial in accordance with the views
above expressed.
Judgment reversed, and the cause re-
manded to the District Court for further
proceedings in conformity with this
opinion* .
[95] WILLIAM T. WAGNER, Edward
Wagner, and Sophie Wagner, Partners
Doing finsiness under the Finn Nam« of
W. T. Wagner's Sons, Plffs. in Err.,
V.
CITY OF COVINGTON.
(See 8. C. Reporter's ed. 95-104.)
Taxes — validity — limitations of Fed-
eral Constitution.
1. WTien the Federal Supreme Court is
<ralled upon to test a state tax by the pro-
vksioQs of the Federal Constitution, its de-
cision must depend, not upon the form of
the taxing scheme, or any characterization
of it adopted by the courts of the state, but
rather upon the practical application and
effect of the tax as applied and enforced.
[For other cases, see Taxes I. a, X. in Digest
Sup. Ct. 1908.] .
Commepce — licenses and taxes —
peddlers and drnminers — whole-
salers.
2. A nonresident manufacturer of "soft
drinks'' doing a business in a municipality
in the state which largely consists in carry-
ing a supply of such drinks from one re-
tailer's place of business to another's upon
the vehicle in which the goods were brought
across the state line, exposing them for
sale, soliciting and negotiating sales, and
immediately delivering the goods sold in the
original unbroken cases, may be required
to take out the license required of all whole-
salers in soft drinks without infringing the
commerce clause of the Federal (5)nstitn-
Uon.
[For other cnses, seo Commerce IV. b, 4, in
Digest Sup. Ct. 1008.1
[No. 61.]
Argued November 10 and 11, 1919. Decided
December 8, 1919.
IN ERROR to the Court of Appeals of
the State of Kentucky to review a
judgment which affirmed a judgment ol"
the Circuit Coiirt of Kenton County, in
that state, in favor of defendant in an
action to recover back certain license
fees exacted under municipal ordinances,
and to enjoin the enforcement of a later
ordinance calling for further like pay-
ments. Affirmed.
See same case below, 177 Kv. 385, 197
S. W. 806.
The facts are stated in the opinion.
Mr. Harry Brent Mackoy argued the
cause, and, with Mr. William H. Mackoy,
filed a brief for plaintiffs in error :
Interstate commerce is not subject to
state regulation or control. Requiring
a license fee for the privilege of engag-
ing therein is a direct burden.
Pullman's Palace Car Co. v. Penrisvl-
vania, 141 U. S. 18, 35 L. ed. 613,' 3
Inters. Com. Rep. 595, 11 Sup. Ct. Rep.
876; Brennan v. TitusvUle, 153 U. S.
289, 38 L. ed. 719, 4 Inters. Com. Rep.
658, 14 Sup. Ct. Rep. 829; Caldwell v.
Note. — On validity of license or oc- 1
cupation tax on hawkers and peddlers '
and persons engaged in soliciting orders
by sample or otherwise, as an exercise of
the police power — see notes to State v.
Baver, 19 L.R.A.(N.S.) 301; and Dozier
V. State, 28 L.R.A.(N.S.) 265.
On validity of occupation tax under
the commerce clause — see note to West-
«4 li. ed.
em U. Teleg. Co. v. Taggart, 60 L.R.A.
691.
On discrimination between nonresi-
dents by statute or municipal ordinance
imposing license or occupation tax — see
note to State V. Williams, 40 L.R.A.
(N.S.) 286.
As to state licenses or taxes generally
as affecting interstate commerce — see
157
.•^tPKEME COURT OF THE UNITED STATES.
Oct. Tebm,
Xorth Carolina, 187 U. S. 622, 47 L. ed.
336, 23 Sup. Ct. Rep. 229; Rearick v.
Pennsylvania, 203 U. S. 507, 51 L. ed.
295, 27 Sup. Ct. Rep. 159; Dozier v. Ala-
bama, 218 U. S. 124, 54 L. ed. 965, 28
L.R.A.(N.S.) 264, 30 Sup. Ct. Rep. 649;
Sault Ste. Marie v. International Transit
Co. 234 U. S. 333, 58 L. ed. 1337, 52
L.R.A.(N.S.) 574, 34 Sup. Ct. Rep. 826.
The right of sale in original packages
is a. necessary incident to the right to
import, and continues until packages are
commingled with the general mass of
property in the state.
Leisy v. Hardin, 135 U. S. 100, 34 L,
ed. 128, 3 Inters. Com. Rep. 36, 10 Sup.
Ct. Rep. 681; Lyng v. Michigan, 135 U,
S. 161, 34 L. ed. 150, 3 Inters. Com. Rep.
143, 10 Sup. Ct. Rep. 725 ; Schollenberger
V. Pennsylvania, 171 U. S. 1, 43 L. ed. 49,
notes to Rothermel v. Meyerle, 9 L.R.A.
366; American Fertilizing Co. v. Board
of Agriculture, 11 L.R.A. 179; Gibbons
V. Ogden, 6 L. ed. U. S. 23; Brown v.
Maryland, 6 L. ed. U. S. 678; Ratterman
V. Western U. Teleg. Co. 32 L. ed. U. S.
229; Harmon v. Chicago, 37 L. ed. U. S.
217; Cleveland, C. C. & St. L. R. Co. v.
Backus, 38 L. ed. U. S. 1041; Postal
Teleg. Cable Co. v. Adams, 39 L. ed. U.
S. 311; and Pittsburg & S. Coal Co. v.
Bates, 39 L. ed. U. S. 538.
On state regulation of interstate or
foreign commerce — see notes to Norfolk
& W. R. Co. V. Com. 13 L.R.A. 107;
Gloucester Ferry Co. v. Pennsylvania, 29
L. ed. U. S. 158; and Brown v. Mary-
land, 6 L. ed. U. 8. 678.
Peddlers and dnumners as related to in-
terstate commerce.
Earlier cases considering this question
will be found in a note appended to
Stockard v. Morgan, 46 L. ed. 785.
A statute cannot be sustained as a
valid exercise of the police power of the
state to tax the occupation of peddlers
which defines peddliers in such a way
as to include persons engaged in inter-
state commerce, and taxes them as such.
Crenshaw v. Arkansas, 227 U. S. 389, 57
L. ed. 565, 33 Sup. Ct. Rep. 294.
So, a statute which imposes a license
fee upon peddlers, hawkers, and solici-
tors places an unconstitutional burden
upon interstate commerce in so far as it
is made to apply to the solicitor for a
nonresident concern. Re Kinyon, 9
Idaho, 642, 75 Pac. 268, 2 Ann. Cas. 699.
The business of traveling from place
to place, taking orders and transmitting
them to a nonresident manufacturer, for
articles to be delivered in fulfilment of
such orders, and which are in fact
shipped in interstate commerce and de-
livered to the persons who ordered them,
or the business of making such deliver-
ies, cannot, consistently with the com-
merce clause of the Federal Constitu-
tion, be subjected to a state license tax.
Crenshaw v. Arkansas, 227 U. S. 389, 57
L. ed. 565, 33 Sup. Ct. Rep. 294 (solicitor
for ranges) ; Rogers v. Arkansas, 227
158
U. S. 401, 57 L. ed. 569, 33 Sup. Ct. Rep.
298 (solicitor for buggies); Clark v.
State, 4 Ala. App. 202, 59 So. 236, writ
of certiorari denied in 180 Ala. 629, 61
So. 901 (solicitor for lightning rods) ;
Miller v. State, 7 Ala. App. 183, 62 So.
307 (delivery man for sewing machines).
One who solicits orders for goods for
a nonresident concern, and who, the
goods being shipped to him in one pack-
age, breaks' the original package, and
delivers to each <nistomer the article or-
dered by him, and receives the price
therefor, is engaged in interstate com-
merce, and a statute making it a mis-
demeanor for a peddler or itinerant
trader to sell goods, wares, or merchan*
disc without a license is not operative
against him. Stone v. State, 117 Ga. 292,
43 S. B. 740.
And one who, from samples, solicits
orders for the products of a nonresident
manufacturer, the goods being shipped
to him in one large package, but each
customer's order being wrapped sepa-
rately, with his name marked -thereon,
which smaller packages he delivers to
the customers, and receives the money
therefor, is engaged in interstate com-
merce, and is not subject to a municipal
ordinance which provides "that traveling
salesmen or dealers who shall bargain
or sell any goods, wares, or merchandise
. . *. for cash or by sample, or any
other manner, for present or future de-
livery" within the corporate limits of
the city, shall pay a license fee. Cason
V. Quinby, 60 Fla. 35, 53 So. 741.
So, one is engaged in interstate com-
merce, and not required to take out a
state license, who, as agent for a non-
resident drug company, takes orders for
patent medicines, sends the orders in to
the drug company, which fills them,
wraps each order, separately marked
with the name of the customer, and
ships them to its agent within the state,
who delivers the packages in their orig-
inal form. State v. Trotman, 142 N. C.
662, 55 S. E. 599.
A state may not, consistently with
the commerce clause of the Federal Con-
stitution, impose a license tax upon a
251 U. 8.
1M9.
WAGXEH V. COVINGTON.
IS Sup. Ct Rep. 757; Austin v. Tenijes-
866, 179 U- S. 343, 46 L. ed. 224, 45
Sup. Ct. Rep. 132; Cook v. Marshall
County, 196 U. S. 261, 49 L. ed. 471, 25
Sup. Ct, Rep. 233; Purity Extract &
Tonic Co. V. Lynch, 226 U. S. 192, 57
L. ed. 184, 33 Sup. Ct. Rep. 44; Adams
Exp. Co. V. Kentucky, 238 U. S. 190. 69
L edl 1267, L.R.A.1916C, 273, 36 Sup.
Ct Rep. 824, Ann. Cas. 1915D, 1167;
Price V. Illinois, 238 U. S. 446, 59 L. cd.
1400, 35 Sup. Ct. Rep. 892; Rosenberger
V. Pacific Exp. Co. 241 U. S. 48, 60 L. ed.
880, 36 Sup. Ct. Rep. 510; State ex rel.
Black V. Delaye, 193 Ala. 500, L.R.A.
1916E, 640, 68 So, 995 : Hall v. State, 39
Fla. 637, 23 So. 119; Parks Bros. & Co.
V. Nez Perce County, 13 Idaho, 298, 121
Am. St. Rep. 261, 89 Pac. 949, 12 Ann.
Cas. 1113; Canollton v. Bazzette, 159
4
nopresident merchant, traveling from
place to place within the state tfnd so-
• lid ting orders by sample, lists, and cata-
logues, for groceries which are after-
wards shipped into the state in carload
lots to his order, and which he delivers
from the cars to the persons ordering
them. Stewart v. Michigan, 232 U. S.
665, 58 L. ed. 786, 34 Sup. Ct. Rep. 476.
Interstate commerce is unlawfully
burdened by a municipal ordinance ex-
acting a license fee from a person em-
ployed by a foreign corporation to solicit
within the municipality orders • for
KToeeries which the company fills by
ichipping goods to him for the delivery
to and eollection of the purchase price
from the purchasers, who have the right
to refuse the goods if not equal to the
sample, such goods always being shipped
in distinct packages, corresponding to
the several orders, except in the case of
brooms, which, after being tagged and
marked like the other articles, according
to the number ordered, are then tied to-
gether in bundles of about a dozen,
wn^>ped up conveniently for shipment.
Reariek v. Pepnsylvania, 203 U. S. 507,
51 L. ed. 296, 27 Sup. Ct. Rep. 169.
And one who solicits orders for a non-
resident grocery house, the orders being
s^it to the grocery house, where they
are filled, each order being wri^ped
separately, and shipped in one large box
to the solicitor, who delivers the pack-
ages to the persons ordering them, col-
lecting for the samC; and transmitting
the money to the grocery concern, is
engaged in interstate commerce, and is
not required to take out a peddler's li-
cense. Menke v. State, 70 Neb. 669, 97
N. W. 1020.
A municipal ordinance imposing a li-
cense tax upon peddlers is invalid, as a
restraint upon interstate commerce; in
90 far as it is made to apply to the so-
licitor for a nonresident tea house, who
solicits orders for teas, coffees, etc., when
such orders are sent to the home ofiftce,
where they are put up in packages ac-
cording to the quantities designated by
the solicitor, but without the purchaser's
name being written on the package, and
€4 li. ed.
are shipped back to the solicitor, who
gets them from the railroad station, de-
livers them to the purchasers, collecting
the price. Jewel Tea Co, v. Lee's Sum-
mit, 189 Fed. 280. The court stated
that the shipment of the goods from the
home office to the solicitor, the draying
of them from the depot to the street in
front of the customer's house, and the
carrying them into the house, are all
parts of one transaction, and that trans-
action is interstate commerce. A ship-
inent like that cannot be divided into
parts, so as to make one or more parts
an intrastate shipment. They must all
be taken and regarded as one shipment,
and when across a state line it is an
interstate shipment, and is covered by
the conmierce clause of the Federal Con-
stitution. ' .
A state license tax required of itiner- .
ant vendors is an interference with in-*
terstate commerce in so far as applied
to a salesman who travels from place to
place, taking orders from samples for
ranges manufactured by a nonresident
concern, where the ranges are shipped
into the state, and delivered to the
purchaser in their original package.
Wrought Range Co. v. Campen, 136 N.
C. 606, 47 S. E. 668.
And the license tax imposed by North
Carolina Laws 1901, p. 116, § 52, upon
all those engaged in the business of sell-
ing sewing machines in the state, is an
unconstitutional interference with inter-
state commerce so far as applied to the
sale of a single machine shipped into
the state by a nonresident manufactur-
ing corporation upon the written order
of a customer, under an ordinary C. O.
D. consignment. [Norfolk & W. R. Co.
V. Sims, 191 U. S. 441, 48 L. ed. 254, 24
Sup. Ct. Rep. 151.
A statute which assumes to impose a
license fee upon one who solicits orders
for buggies, which are transmitted to' a
nonresident manufacturer, the buggies to
be delivered in fulfilment of such orders,
is unconstitutional, as placing a burden
upon interstate commerce. Wilcox v.
People, 46 Colo. 382, 104 Pac. 408; State
V. Byles, 22 Wyo. 136, 136 Pac. 114.
159
SUPREME COURT OF THE UNITED STATES.
Oct. ItKiii,
294; Stewart v. Michigan, 232 U. S. 665,
58 L. ed. 786, 34 Sup. Ct. Rep. 476; West-
em Oil Ref, Co. V. Lipscomb, 244 U. S.
346, 61 L. ed. 1181, 37 Sup. Ct. Rep.
623; York Mfg. Co. v. Colley, 247 U. S.
21, 62 L. ed. 963, 38 Sup. Ct. Rep. 430;
Coe V. Errol, 116 U. S. 517, 29 L. ed.
715, 6 Sup. Ct. Rep. 475; Kelley v.
Rhoads, 188 U. S. 1, 47 L. ed. 359, 23
Sup. Ct. Rep. 259 ; Davis v. Virginia, 236
U. S. 697, 59 L. ed. 795, 35 Sup. Ct. R4»p.
476; General Oil Co. v. Crain, 209 U. S.
211, 52 L. ed. 754, 28 Sup. Ct. Rep. 475.
Original packages of interstate com-
merce themselves only become taxable
when thev have come to rest at their
destination, or have become part of the
general mass of property in the state.
Woodruff V. Parham, 8 Wall. 123, 19
L. ed. 382; Hinson v. Lott, 8 Wall 148,
be regarded as a part of the interstate
transaction between the nonresident
manufacturer and the customer. Davis
v. Virginia, 236 U. S. 697, 59 L. ed. 795,
35 Sup. Ct. Rep. 479.
But where a sale is made of goods
theretofore shipped into the state, which,
by reason of having been taken from
their original package, or from some
other cause, had ceased to be articles of
interstate commerce, the transaction is
not within the protection of the com-
merce clause.
Thus, one who goes about from place
to place selling patent medicines of a
nonresident manufacturer which the
manufacturer has put up in small bot-
tles and packages ready for use, and has
shipped in bulk to such peddler, is not
engaged in interstate ^commerce, and so
is required to take dut a peddler's li-
cense. Smith V. Wilkins, 164 N. C. 135,
80 S. E. 168.
Also one who establishes a line of cred-
it with a nonresident merchant, and on
his own account sells such merchant's
goods from door to door, or takes orders
for goods which he may not have with
him, and delivers them on his next trip,
is not engaged in interstate commerce,
and so is liable for the license fees im-
posed upon peddlers and hawkers. Bal-
lard V. Russell, 145 La. 636, 82 So. 730.
Nor would it alter the situation were
he to sell such goods in such manner as
the agent or representative of such non-
resident merchant Ibid.
Although one may be engaged in inter-
state commerce as to goods which he is
delivering, which have been previously
contracted for, yet he is not engaged in
interstate commerce as to goods which
he takes with him at the same time, and
as to which negotiations for sale had not
been made before they were brought into
the state. Newport v. French Bros.
Bauer Co. 169 Ky. 174, 183 S. W. 532.
And a statute forbidding the sale by
an itinerant vendor of any except cer-
tain classes of articles without first ob-
taining a license, and which makes no
distinction between articles produced in
the state and those produced without, is
102
not repugnant to the power given to Con-
gress to regulate commerce, as applied
to an agent of a nonresident wagon
manufacturer, who has wagons and parts
of wagons shipped to him from his em-
ployer, and, after unpacking them, puts
the parts together and proceeds from
]>lace to place, offering the wagons for
sale. Territory v. Russell, 13 N. M. 558,
86 Pac. 551.
Also one who solicits orders for the
goods of a nonresident concern is not
engaged in interstate commerce where
the orders are never transmitted beyond
the state, or accepted or filled by any-
one be^'ond the state, but are filled from
goods which he orders sent to him in
bulk, and for which he pays as soon as
they arrive. Re Prindle, 67 Kan. 364,
72 Pac. 864.
And a solicitor for aluminum ware of
a nonresident manufacturer was held, in
Eldorado Springs v. Highfill, 268 Mo.
501, 188 S. W. 68, not to be engaged in
interstate commerce, and so bound to
take out a canvasser's license, where the
facts were that the goods were sold by
the solicitor on condition that they would
be* satisfactory on examination; the so-
licitor sent no names of purchasers to
the manufacturer, but ordered goods suf-
ficient to cover prospective sales, the
goods being shipped to him in bulk, and
paid for by him or security given for the
value at time of arrival ; the goods were
then sorted by the solicitor, and were
delivered in accordaflce with the condi-
tional sale, and, if satisfactory, were
paid for, the solicitor having an agree-
i mpnt that on any order goods to a cer-
tain value not accepted by purchasers
might be returned to the manufacturer
at its expense. The court said that the
interstate character of the shipment
ceased upon the delivery of the goods by
the foreign corporation to the solicitor,
and the goods thereafter not moving in
interstate commerce, the transactions
became local in their nature.
The license or occupation tax imposed
in each county upon the business of sell-
ing or delivering sewing machines un-
der Alabama Act of March 31, 1911, § 32,
251 V, 8.
1919.
WAGNER V. COVINGTON.
W. Va. 495, 64 Am. St. Rep. 871, 27
S. E. 225 ; McDermott v. State, 143 Wis.
18, 126 N. W. 888, 21 Ann. Cas. 1315.
A current of commerce created by im-
porting goods from one state into an-
other continues until thev have reached
ft-
their final destination. A temporary in-
terruption necessary to consummate a
purchase does not destroy the interstate
character of the transaction.
Swift & Co. V. United States, 196 U.
S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep.
&76; Caldwell v. North Carolina, 187 U.
S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep.
229; Rearick v. Pennsylvania, 203 U. S.
507, 61 L. ed. 295, 27 Sup. Ct. Rep. 159;
Dozier v. Alabama, 218 U. S. 124, 54 L.
ed. 965, 28 L.R.A.(N.S.) 264, 30 Sup. Ct.
Rep. 649; Crenshaw v. Arkansas, 227 U.
S. 389, 57 L. ed. 565, 33 Sup. Ct. Rep.
wrapped separately, and marked with
the purchaser's . name, and then shipped
to a delivery agent of such concern, who
dehvers them to the purchaser, is not
required to take out a license, as he is
engaged in interstate commerce. Peo-
ple v. Erickson, 147 N. Y. Supp. 226.
A municipal ordinance whidi imposes
a license tax upon an agent for a non-
resident manufacturer of "near beer'' is
invalid, as placing a burden upon inter-
state commerce, where the sole purpose
of the ordinance is to make this class
of business pay a certain tax for the gen-
eral revenues of the city, without regard
to matters of health, peace, or public
morality. Loh v. Macon, 8 Ga. App. 744,
70 S. E. 149.
And an aet of Congress imposing a
license on brewers' agents was held, in
BeitzelT v. District of Columbia, 21 App.
D. C. 49, not to apply to one who so-
licited orders for the products of a
brewery located outside of the District,
the orders being sent to the brewery,
where they were filled and shipped di-
rect to the consumer, the solicitor having
no place in the District for the trans-
action of business or for the storage of
the brewery's products.
But the annual license charge imposed
by a state law upon the business of sell-
ing or offering for sale intoxicating liq-
uors within the state by any traveling
salesman who solicits orders in quanti-
ties of less than 5 gallons cannot be re-
garded, when applied to interstate trans-
actions, as repugnant to the commerce
clause of the Federal Constitution, in
view of the provisions of a Federal stat-
ute that intoxicating liquors coming into
the state shall be as completely under its
control as if manufactured therein.
Delamater v. South Dakota, 205 U. S.
93. 51 L. ed. 724, 27 Sup. Ct. Rep. 447,
10 Ann. Cas. 733.
Agents for a nonresident manufac-
turer, who solicits orders for pictures to
be enlarged, and also agents who deliver
and collect for such pictures after they
Are enlarged, are engaged in interstate
commerce, and so are not liable to a tax
imposed upon peddlers and hawkers. I
•4 L. ed. 1
Caldwell v. North Carolina, 187 U. S.
622, 47 L. ed. 336, 23 Sup. Ct. Rep.
229; Chicago Portrait Co. v. Macon, 147
Fed. 967; Ex parte Hull, 153 Fed. 459;
Re Julius, 26 Ohio C. C. 423.
Nor does the fact 'that the delivering
agents, at the time of delivery of the
pictures previously ordered, sell frames
therefor, make such delivery agents ped-
dlers within the meaning of a municipal
ordinance imposing a license tax upon
peddlers and hawkers. Caldwell v. North
Carolina, supra; Chicago Portrait Co.
V. Macon, 147 Fed. 967; Re Julius, su-
pra.
The sale within the state of a frame
for a portrait made in another state to
fill an order taken by a solicitor in the
former state cannot be so separated from
the rest of the dealings between the
nonresident maker and the purchaser as
to sustain the imposition of a license tax,
under Alabama Act of March 7, 1907,
§ 17, where the order for the portrait
contemplated its delivery in an appro-
priate frame, which the purchaser of the
portrait should have the option of buy-
ing at the factory price. Dozier v. Ala-
bama, 218 U. S. 124, 54 L. ed. 965, 28
L.R.A.(N.S.) 264, 30 Sup. Ct. Rep. 649.
By this decision it is now settled that
where the selling of the frame is a mere
incident to the taking of the order for
the portrait, it is within the protection
of the commerce clause, — ^a question con-
cerning which there had been much con-
flict prior to this decision.
Also an agent of a nonresident por-
trait manufacturer to whom the latter
sends portraits made to fill orders taken
by local solicitors, and, in a separate
parcel, frames suitable for such por-
traits, the orders for which contemplate
delivery in appropriate frames, which
the customers may select at wholesale
prices, cannot constitutionally be re-
quired to take out a peddler's license
when engaged in putting the portraits
into separate frames, delivering them,
and offering the customers a choice of
the different styles of frame, the cu§?-
tomers taking one or none, at their op*
tion, since any sale of the frames must
1 161
SUPREME COURT OF THE UNITED STATES.
Oct. XtKii,
294; Stewart v. Michigan, 232 U. S. 665,
58 L. ed. 786, 34 Sup. Ct. Rep. 476; West-
em Oil Ref. Co. V. Lipscomb, 244 U. S.
346, 61 L. ed. 1181, 37 Sup. Ct. Rep.
623; York Mfg. Co. v. Colley, 247 U. S.
21, 62 L. ed. 963, 38 Sup. Ct. Rep. 430;
Coe V. Errol, 116 U. S. 517, 29 L. ed.
715, 6 Sup. Ct. Rep. 475; Kelley v.
Rhoads, 188 U. S. 1, 47 L. ed. 359, 23
Sup. Ct. Rep. 259 ; Davis v. Virginia, 236
U. S. 697, 59 L. ed. 795, 35 Sup. Ct. Rep.
479; General Oil Co. v. Crain, 209 U. S.
211, 52 L. ed. 754, 28 Sup. Ct. Rep. 475.
Original packages of interstate com-
merce themselves only become taxable
when they have come to rest at their
destination, or have become part of the
general mass of property in the state.
Woodruff V. Parham, 8 Wall. 123, 19
' L. ed. 382 ; Hinson v. Lott, 8 Wall. 148,
be regarded as a part of the interstate
transaction between the nonresident
manufacturer and the customer. Davis
V. Virginia, 236 U. S. 697, 59 L. ed. 795,
35 Sup. Ct. Rep. 479.
But where a sale is made of goods
theretofore shipped into the state, which,
by reason of having been taken from
their original package, or from some
other cause, had ceased to be articles of
interstate commerce, the transaction is
not within the protection of the com-
merce clause.
Thus, one who g^es about from place
to place selling patent medicines of a
nonresident manufacturer which the
manufacturer has put up in small bot-
tles and packages ready for use, and has
shipped in bulk to such peddler, is not
engaged in interstate commerce, and so
is required to take dut a peddler's li-
cense. Smith V. Wilkins, 164 N. C. 135,
80 S. E. 168.
Also one who establishes a line of cred-
it with a nonresident merchant, and on
his own account sells such merchant's
goods from door to door, or takes orders
for goods which he may not have with
him, and delivers them on his next trip,
is not engaged in interstate commerce,
and so is liable for the license fees im-
]x>sed upon peddlers and hawkers. Bal-
lard V. Russell, 145 La. 636, 82 So. 730.
Nor would it alter the situation were
he to sell such goods in such manner as
the agent or representative of such non-
resident merchant. Ibid.
Although one may be engaged in inter-
state commerce as to goods which he is
delivering, which have been previously
contracted for, yet he is not engaged in
interstate commerce as to goods which
he takes with -him at the same time, and
as to which negotiations for sale had not
been made before they were brought into
the state. Newport v. French Bros.
Bauer Co. 169 Ky. 174, 183 S. W. 532.
And a statute forbidding the sale by
an itinerant vendor of any except cer-
tain classes of articles without first ob-
taining a license, and which makes no
distinction between articles produced in
the state and those produced without, is
102
not repugnant to the power given to Con-
gress to regulate commerce, as applied
to an agent of a nonresident wagon
manufacturer, who has wagons and parts
of wagons shipped to him from his em>
ployer, and, after unpacking them, puts
the parts together and proceeds from
place to place, offering the wagons for
sale. TeiTitory v. Russell, 13 N. M. 558,
86 Pac. 551.
Also one who solicits orders for the
goods of a nonresident concern is not
engaged in interstate commerce where
the orders are never transmitted beyond
the state, or accepted or filled by any-
one beyond the state, but are filled from
goods which he orders sent to him in
bulk, and for which he pays as soon as
they arrive. Re Prindle, 67 Kan. 364,
72 Pac. 864.
And a solicitor for aluminum ware of
a nonresident manufacturer was held, in
Eldorado Springs v. Highfill, 268 Mo.
501, 188 S. W. 68, not to be engaged in
interstate commerce, and so bound to
take out a canvasser's license, where the
facts were that the goods were sold by
the solicitor on condition that they would
be* satisfactory on examination; the so-
licitor sent no names of purchasers to
the manufacturer, but ordered goods suf-
ficient to cover prospective sales, the
goods being shipped to Uim in bulk, and
paid for by him or security given for the
value at time of arrival; the goods were
then sorted by the solicitor, and were
delivered in aceordafJce with the condi-
tional sale, and, if satisfactory, were
paid for, the solicitor having an agree-
i ment that on any order goods to a cer-
tain value not accepted by purchaserf?
might be returned to the manufacturer
at its expense. The court said that the
interstate character of the shipment
ceased upon the delivery of the goods by
the foreign corporation to the solicitor,
and the goods thereafter not moving in
interstate commerce, the transactions
became local in their nature.
The license or occupation tax imposed
in each county upon the business of sell-
ing or delivering sewing machines im^
der Alabama Act of March 31, 1911, § 32,
251 V. 8.
lt)19.
\VA(;XKU V. ( OVINGTOX.
19 L. ed. 387; Brown v. Houston, 114 U.
S. 622, 29 L. ed. 257, 5 Sup. Ct. Rep.
1001; Robbins v. Taxing Dist. 120 U.
S. 489, 495, 30 L. ed. 694, 607, 1 Inters.
Com. Rep. 45, 7 Sup. Ct. Rep. 592 ; Pitts-
hwcg & S. Coal Co. v. Bates, 156 U. S.
577, 39 L. ed. 538, 5 Inters. Com. Rep.
30, 15 Sup. Ct. Rep. 415; American Steel
& Wire Co. v. Speed, 192 U. S. 500, 48
L. ed. 538, 24 Sup. Ct. Rep. 365; Kehrer
V. Stewart, 197 U. S. 60, 49 K ed. 663,
25 Sup. Ct. Rep» 403.
There is a distiaetion betweoi the
right to impose a tax on the nonreaident
importer for the privilege of selling
goods in the original packages and the
right to impose a tax on the original
packages themselves after they reach
their destination and come to rest in the
state.
7 Enc. U. S. Sup. Ct. Rep. 298-300.
is not an unconstitutional interference
with interstate commerce, as applied to
a foreign corporation which maintains
a store or regular place of business in
each connty, from which all of the local
agents in such county Itre supplied with
r>ewing machines and appurtenances to
be taken into the rural districts for sale
or for rent, all transactions entering into
:iQch sales or renting being completed
within a single county. Singer Sewing
\fach. Co. V. Brickell, 233 U. S. 304, 58
L ed. 974,- 34 Sup. Ct. Rep. 493.
So, the business of erecting lightning
rods within the corporate limits as the
agent of a nonresident manufacturer on
whose behalf such agent has solicited
orders for the sale of such rods, and
from whom he had received the rods
when shipped into the state on such
orders, may be subjected to a municipal
license tax without violating the com-
merce clause of the Federal Constitu-
tion, although the contract under which
the rods were shipped bound the seller,
at his own expense, to attach them to
the houses of the persons who ordered
them. Browning v. Waycross, 233 U. S.
16, 58 L. ed. 828, 34 Sup. Ct. Rep. 578.
The state may make the license tax on
the right to sell certain classes of goods
by sample to consumers by canvassing
from house to house apply to goods
shipped from foreign states, when it ap-
plies equally to those of domestic origin.
State V. Bayer, 34 Utah, 257, 19 L.R.A.
(N.S.) 297, 97 Pac. 129.
In Ex parte Crowder, 171 Fed. 250, an
npent for a nonresident carriage com-
pany solicited and received an order for
i buggy, to be subsequently delivered.
The ^e was consummated by the deliv-
ery of a buggy from a stock kept by the
manufacturer in a warehouse within the
state, llie agent, not having taken out
a license, as required by statute of those
engaged in the business of peddling, was
arrested for violating the statute. In
dischannng a writ of habeas corpus and
remanding the petitioner, the court stat-
ed that the statute was strictly a ]>olice
and revenue statute, applicable to busi-
ness to be transacted wholly within the
64 1a. ed.
state, and did not create an invidious
burden upon interstate or foreign com-
merce, since it was general in its appli-
cation, bearing evenly upon all peddlers
without discriminating against persons,
whether residents or nonresidents of the
state, nor against commodities, whether
produced within the state or imported
from other states or countries.
A statute which provides that ''it
shall be unlawful for any person to trav-
el from place to place in any county of
this state for the purpose of carrying to
sell, or exposing or offering to sell, bar-
ter, or exchange any goods, wares, mer-
chandise or any other property whatever,
without first obtaining a license therefor
from the auditor of said county," is not
unconstitutional, as placing a burden up-
on interstate commerce, since the act on-
ly includes persons traveling from place
to place, carrying the goods which they
sell, and does not include persons indue-
ing sales of goods by sample for future
delivery. Re Lipschitz, 14 N. D. 622, 96
N. W. 167.
Difloriminatioa acainst laaanf Aotures
or produots of oilier states.
A statute forbidding without lioense
the canvassing for or selling by sam-
ple of goods made in another state, after
they have been shipped into the state
passing the statute, while permitting
such canvassing for domestic goods, vio-
lates the commerce clause of the Federal
Constitution. State v. Bayer, 34 Utah,
257, 19 L.R.A.(N.S.) 297, 97 Pac. 129.
And so a statute is unconstitutional
and inoperative in so far as it requires
a license of one who travels from place
to place selling carriages which have
been shipped into the state and does not
require the same license of one who sells
carriages which are of domestic manu-
facture. Ibid.
Also a municipal ordinance which im-
poses a license fee upon anyone who sells
foreign-grown fruit from a wagon dis-
criminates in favor of home-grown fruit
and against foreign fruit, and so is an at-
tempted interference with interstate
commerce. State v. Bomstein, 107 Me^
260, 78 Atl. 281.
1«S
SUPREME COURT OF THE UNITED STATES.
Oct.
There is also a distinction between the
right to impose a tax on an importer who
is usingr persons licensed by the state to
make sales for him within the state, and
the right to impose a tas on the im^
porter himself for making such sales, as
is sought to be done here.
Brown v. Marj'land, 12 Wheat. 419, 6
L. ed. 678; Hopkins v. United States, 171
U. S. 578, 43 L. ed. 290, 19 Sup. Ct. Rep.
40.
The so-called ''peddler" cases do not
supply to the facts here.
Howe Mach. Co. v. Gage, 100 U. S. 676,
25 L ed. 754; Emert v. Missouri, 156 U.
?. 296, 39 L. ed. 430, 5 Inters. Com.
Rep. 68, 15 Sup. Ct. Rep. 367; Newport
V. French Bros. Bauer Co. 169 Kv. 174,
183 S. W. 532; Watters v. Michigan, 248
IT. S. 65, 63 L. ed. 129, 39 Sup. Ct. Rep.
29.
The property here does not acquire a
situs whenever a driver stops his vehicle
in front of a retail dealer's place of busi-
ness, for the purpose of negotiating a
sale.
Com. ex rel. Alexander v. Haggin, 30
Ky. L. Rep. 788, 99 S. W. 906; Com. v.
Prudential L. Ins. Co. 149 Ky. 380, 149
S. W. 836; Com. v. Union Refrigerator
Transit Co. 118 Ky. 131, 80 S. W. 490,
81 S. W. 268; Gloucester Ferry Co. v.
Pennsylvania, 114 U. S. 196, 29 L. ed.
158, 1 Inters. Com. Rep. 382, 5 Sup. Ct.
Rep. 826; Pickard v. Pullman Southern
Car Co. 117 U. S. 34, 29 L. ed. 785, 6
Sup. Ct. Rep. 635 ; Fargo v. Hart, 193 U.
S. 490, 48 L. ed. 761, 24 Sup. Ct. Rep.
498.
T)ie fact that containers of drinks are
temporarily held in Kentucky until a
driver calls for them cannot affect the
questions here at issue.
Wells, F. & Co. v. State, 248 U. S.
165, 63 Lf. ed. 190, 39 Sup. Ct. Rep. 62;
I. M. Darnell & Son Co. v. Memphis, 208
U. S. 113, 52 L. ed. 413, 28 Sup. Ct. Eep.
247; Swift & Co. v. United States. 196
U. S. 375, 397, 49 L. ed. 518, 525. 25
Sup. Ct. Rep. 276; Rearick v. Pennsyl-
vania, 203 U. S. 507, 51 L. ed. 295, 27
Sup. Ct. Rep. 159; Dozier v. Alabama,
218 U. S. 124, 54 L. ed. 965, 28 L.R.A.
(N.S.) 264, 30 Sup. Ct. Rep. 649.
If the construction here contended for
should result in discrimination against
citizens of Covington, Kentucky, it can
make no difference.
Philadelphia & R. R. Co. v. Pennsyl-
vania, 15 Wall. 232, 21 L. ed. 146 ; Rab-
bins V. Taxing Dist. 120 U. S. 489, 495,
30 L. ed. 694, 69^1 Inters. Com. Rep. 45,
7 Sup. Ct. Rep. a92; Brennan v. Titus-
vUle, 153 U. S. 289, 38 L. ed. 719, 4
Inters. Com. Rep. 658, 14 Sup. Ct. Rep.
829 ; Caldwell v. North Carolina, 187 U.
S. 622, 47 L. ed. 336, 23 Sup. Ct. R«p.
229.
This court is not in any way bound
by the opinions of the Kentucky court of
appeals.
Old Colony Trust Co. v. Omaha, 230
U. S. 100, 57 L. ed. 1410, 33 Sup. Ct.
Rep. 967.
The following recent decisions of this
court support the contentions of plain-
tiffs in error as to what constitutes in-
terstate commerce:
Weigle V. Curtice Bros. Co. 248 U. S.
285, 63 L. ed. 242, 39 Sup. Ct. Rep. 124 :
Hebe Co. v. Shaw, 248 U. S. 297, 304, 63
L. ed. 255, 259, 39 Sup. Ct. Rep. 125;
Rast V. Van Denm'an & L. Co. 240 U. S.
342, 362, 60 L. ed. 679, 688, L.R.A.1917A,
421, 36 Sup. Ct. Rep. 370, Ann. Cas.
1917B, 455.
The following late decisions are also
in accord with our contention that the
license tax here imposed for the privi-
And in Com. v. Caldwell, 190 Mass.
355, 112 Am. St. Rep. 334, 76 N. E. 955,
5 Ajin. Cas. 879, it was held that a stat-
ute which discriminated between agricul-
tural products of the United States and
those of other countries in reference to
the requirement of a license fee to peddle
the latter was an attempted interference
with foreign commerce.
So, too, a statute which imposes a
license tax upon solicitors for a non-
resident portrait concern, and which
provides that such statute shall not ap-
ply to merchants or dealers having a per-
manent place of business in the state,
and keeping picture frames as part of
their stock in trade, is invalid as an un-
just discrimination in restraint of inter-
164
state commerce, as against nonresident
concerns. Ex parte Hull, 153 Fed. 459.
A state statute imposing a heavy li«
cense tax upon the right to canvass from
house to house for a certain limited
number of articles not produced or man-
ufactured within the state, and not in-
jurious to Iiealth or morals, for the
apparent purpose of favoring resident
merchants with established places of
business, violates the provisions of the
Federal Constitution against abridging
the privileges or immunities of the cit-
izens of the United States, and den^-ing
the equal protection of the laws. State
V. Bayer, 34 Utah, 257, 19 L.R.A. (N.S.)
297, 97 Pac. 129.
S51 U. 8.
1919.
WAGXER V. COVINGTON.
98, 99
lege of making sales is a direct burden
npon the interstate commerce:
Crew LeTick Co. v. Pennsylvania, 245
U. S. 292, 295, 296, 62 L. ed.'295, 298,
299, 38 Sup. Ct. Rep. 126; United States
Glne Co. v. Oak Creek, 247 U. S. 321, 326,
327, 62 L. ed. 1135, 1140, 1141, 38 Sup.
Ct Rep. 499, Ann. Cas. 1918E, 748;
Postal Teleg. Cable Co. v. Adams, 155 U.
S. 688, 695, 39 L. ed. 311, 315, 5 Inters.
Com. Rep. 1, 15 Sup. Ct. Rep. 268, 360;
Ficklcn V. Taxing Dist. 145 U. S. 1, 36
L ed. 601, 4 Inters. Com. Rep. 79, 12
Sup. Ct. Rep. 810.
Mr. A. £. Stricklett argued the cause
and filed a brief for defendant in error :
The plaintiffs in error bring their mer-
chandise, consisting of soft drinks, into
the city of Covington, Kentucky, from
('incinnati, in the state of Ohio, on their
own vehicles, without having received
from their customers in the city of Cov-
ington previous orders or requests there-
for, and there and then sell and deliver
the same to the retail dealers in the city
of Covington. These transactions are
not interstate commerce, nor in any way
directly connected with such commerce.
American Steel & Wire Co. v. Speed,
192 U. S. 500, 517, 518, 48 L. ed. 538, 545,
546, 24 Sup. Ct. Rep. 365 ; Armour Pack-
ing Co. v. Lacv, 200 U. S. 226, 233, 50
L. ed. 451, 456, 26 Sup. Ct. Rep. 232;
Banker Bros. Co. v. Pennsylvania, 222
U. S. 210, 214, 56 L. ed. 168, 170, 32
Sup. Ct. Rep. 38; Brennan v. Titusville
153 U. S. 289, 38 L. ed. 719, 4 Inters
Com. Rep. 658, 14 Sup. Ct. Rep. 829
Caldwell v. North Carolina, 187 U. S
622, 47 L. ed. 336, 23 Sup. Ct. Rep. 229
Crenshaw v. Arkansas, 227 U. S. 389, 57
L. ed. 565, 33 Sup. Ct. Rep. 294; Dozier
V. Alabama, 218 U. S. 124, 127, 54 L. ed.
965, 966, 28 L.R.A.(N.S.) 264, 30 Sup.
Ct. Rep. 649; Emert v. Missouri, 156 U.
S. 296, 309, 311, 39 L. ed. 430, 433, 434,
5 Inters. Com. Rep. 68, 15 Sup. Ct. Rep.
367; International Textbook Co. v. Pigg,
217 U. S. 91, 106, 54 L. ed. 678, 685, 27
LR.A.(N.S.) 493, 30 Sup. Ct. Rep. 481,
18 Ann. Cas. 1103; Kehrer v. Stewart,
197 U. S. 60, 68, 49 L.' ed. 663, 667,
25 Sup. Ct. Rep. 403; Rearick v. Penn-
sylvania, 203 U. S. 507, 510, 51 L. ed.
295, 296, 27 Sup. Ct. Rep. 159; Robbins
V. Taxing Dist 120 U. S. 489, 493, 495,
30 L. ed. 694, 696, 697, 1 Inters. Com.
Rep.^, 7 Sup. Ct. Rep. 592; Stewart v.
Michigan, 232 U. S. 665, 58 L. ed. 786, 34
Sup. Ct. Rep. 476; Wagner v. Covington,
177 Ky. 385, 197 S. W. 806.
The judgment of the court of appeals
of Kentucky is based on findings of facts
64 li. ed.
which exclude a Federal question, and
which this court accepts as conclusive;
therefore the writ of error should be
denied.
Chrisman v. Miller, 197 U. S. 313-319,
49 L. ed. 770-772, 25 Sup. Ct. Rep. 468;
Wagner v. Covington, 177 Ky. 385, 197
S. W. 806; Waters-Pierce Oil Co. v.
Texas, 212 U. S. 86, 97, 53 L. ed. 417, 424,
29 Sup. Ct. Rep. 220.
The writ of error should be denied
because the judgment of the court of ap-
peals of Kentucky is based on gronnds
sufficiently broad to sustain it, over
which this court has no jurisdiction.
Cidifomia Powder Works v. Davis,
151 U. S. 393, 38 L. ed. 207, 14 Sup. Ct.
Rep. 350; Newport v. Wagner, 168 Ky.
641, 182 S. W. 834, Ann. Cas. 1917A,
962; Garr, S. & Co. v. Shannon, 223
U. 8. 468, 473, 56 L. ed. 510, 513, 32 Sup.
Ct. Rep. 236; Leathe v. Thomas, 207 U.
8. 93, 98, 52 L. ed. 118, 120, 28 Sup. Ct.
Rep. 30 ; Rogers v. Jones, 214 U. S. 196,
204, 53 L. ed. 965, 969, 29 Sup. Ct. Rep.
635; Wagner v Covington, 177 Ky. 388,
197 S. W. 806.
The ordinance in question imposes an
occupation tax upon all wholesale deal-
ers in soft drinks; the tax imposed be-
ing uniform on all persons engaged in
such business, whether residents or non-
residents. The ordinance does not, there-
fore, come within the constitutional in-
hibition.
Emert v. Missouri, 156 U. 8. 296, 311,
39 L. ed. 430, 434, 5 Inters. Com. Rep.
68, 15 Sup. Ct. Rep. 367; Howe Mach.
Co. v. Gage, 100 U. S. 676, 677, 25 L. ed.
754, 755; Kehrer v. Stewart, 197 U. S.
68, 69, 49 L. ed. 663, 668, 25 Sup. Ct.
Rep. 403.
The transaction,' rather than the oiigin
of the commodity sold, determines
whether the goods are moving in inter-
state commerce, and there must be some
previous interstate transaction pursuant
to which the goods are moving from one
state to another, in order that a given
transaction may be classed as interstate
commerce.
Kirmeyer v. Kansas, 236 U. S. 56^-
570, 59 L. ed. 721-723, 35 Sup. Ct. R^pw
419.
Mr. Justice Pitney delivered the opin-
ion of the court:
This was an action brought by plain-
tiffs in error in a state court of Ken*
tucky against the city of Covington, a
[09] municipal corporation of that
state, to recover license fees theretofore
paid by them under certain ordinances
of the city for the conduct of their
16&
i
J
jm-ioi
sri'KKME COURT OF THK UXITKI) STATES.
Oct. Tekm,
>
business in Coviugtou, and to enjoin
the enforcement against them of a
later ordinance calling for further like
payments. The several ordinances,
each in its turn, required all persons
carrying on certain specified busi-
nesses in the city to take out licenses
and pay license fees; among others,
the business of wholesale dealer in
what are known as "soft drinks.'' Plain-
tiffs were and are manufacturers of such
drinks, having their factory and bottling
works in the city of Cincinnati, in the
state of Ohio, on the opposite side of
the Ohio river from COvington. They
have carried on and do carrv on the busi-
ness of selling in Covington soft drinks,
the product of their manufacture, in the
foMownng manner: They have a list of
retail dealers in Covington to whom they
have been and are in the habit of mak-
ing allies; two or three times a week a
wagon or other vehicle owned by plain-
tiffs is loaded at the factory in Cincin-
nati and sent across the river to Coving-
ton, and calls upon the retail dealers
mentioned, many of whom have been for
years on plaintiffs' list and have pur-
chased their goods under a general
understanding that plaintiffs' vehicle
would call occasionally and furnish them
with such soft drinks as they might need
or desire to purchase from plaintiffs;
when a customer's place of business is
reached by the vehicle the driver goes
into the storeroom and either asks or
looks to see what amount of drinks is
needed or wanted; he then goes out to
the vehicle and brings from it the neces-
sary quantity, which he carries into the
store and delivers to the customer; upon
his trips to Covington he always carries
sufficient drinks to meet the probable de-
mands of the customers, based on past
experience; but, with the exception- of
occasional small amounts carried for de-
livery in response to particular orders
previously received at plaintiffs' place of
business in Cincinnati, all [100] sales
in Covington are made from the vehicle
by the driver in the manner mentioned.
Sometimes the driver succeeds in selling:
there the entire supply thus carried upon
the wagon, sometimes only a part there-
of} or he may return after having made
but a few sales, or none at all ; in which
event he carries the unsold supply back
to plaintiffs' place of business in Cin-
cinnati. The soft drinks in question are
delivered in stopped bottles or siphons,
aeeording to their nature, and these are
placed (at the bottling works) in sepa-
rate wooden or metal cases, each case
being open at the top and holding a
166
certain number of bottles or siphons, ac-
cording to the nature of the drinks and
the custom of the trade ; the filled bottles
or siphorm are carried upon the vehicle,
sold, and delivered in these cases, each
case remaining entire and unbroken, and
nothing less than a case being sold or
delivered. The retail dealers usually pay
cash, and purchase only the contents of
the bottles, while the bottles and cases
remain the property of plaintiffs and
are subsequently collected, when empty,
by plaintiffs' drivers or agents on their
regular visits; there are, however, a few
customers who pay for and thereafter
own the bottles in which distilled water
is delivered. The ordinances were and
are respectively applicable to all whole-
sale dealers in such soft drinks in Cov-
ington, whether the goods were or are
manufactured within or without the
state.
The trial court, and, on appeal, the
court of appeals of Kentucky, gave judg-
ment for defendant, overruling the con-
tention of plaintiffs that the ordinances
as carried into effect against them were
repugnant to the "commerce clause" (art.
1, § 8) of the Constitution of the United
States (177 Ky. 385, 197 S. W. 806).
and upon this Federal question the case
is brought here by writ of error.
It is important to observe the precise
point that we have to determine. It is
indisputable that, with respect to the
goods occasionally carried upon plain-
tiff's wagon from one [101] state to the
other, in response to orders previously
received at their place of business in
Cincinnati, plaintiffs are engaged in
interstate commerce, not subject to the
licensing power of the Kentucky mu-
nicipality. The court of appeals in
the present case, in line with its pre-
vious decisions in Newport v. Wagner,
168 Ky. 641, 646, 182 S. W. 834, Ann,
Cas. 1917A, 962, and Newport v.
French Bros. Bauer Co. 169 Ky. 174.
183 S. W. 532, recognizing the au-
thority of the decisions of this court
bearing upon the subject, conceded that
this part of plaintiffs' business was not
subject to state regulation (177 Ky. 388).
At the same time the court held that,
with respect to the remaining and princi-
pal part of the business conducted in
Covington, that which consists in carry-
ing a supply of goods from place to place
upon wagons, exposing them for. sale,
soliciting and negotiating sales, and im-
mediately delivering the goods sold,
plaintiffs were subject to the licensing
ordinances ; and it is with this alone that
we have to deal. If, with respect to this
251 V. S.
191d.
WAGNKll V. COVIXGTON.
101-103
portion of their business, plaintiffs may
be subjected to the regulator^' power of
tbe state, acting through the municipal-
ity, we are not concerned with the ques-
tion whether the general language of the
ordinances, if applied with respect to
some other method of dealing with goods
bronght from state to state, might be
repugnant to the Federal Constitution.
Prom the facts recited it is evident
that, in essence, tbat part of plaintiffs'
businest^ which is subjected to regulation
is the business of itinerant vender or
peddler, — a traveling from place to place
within the state, selling goods that are
carried about with the seller for the pur-
pose. Plaintiffs in error insist that this
\-iew of the matter is untenable because
the courts of Kentucky have held that
sales made to a retail merchant for re-
sale do not constitute peddling within
the meaning of the statutes of that state.
Standard Oil Co. v. Com. 107 Ky. 606,
609, 55 S. W. 8; Newport v. French Bros.
Bauer Co. 169 [102] Ky. 174, 185, 183
S. W. 532. These decisions however,
deal merely with a question of statutory
definition; and it hardly is necessary to
repeat that when this court is called
upon to test a state tax by the provi-
sions of the Constitution of the United
>»tates, our decision must depend not
upon the form of the taxing scheme, or
any characterization of it adopted by the
courts of the state, but rather upon the
practical operation and effect of the tax
as applied and enforced. The state court
could not render valid, by misdescribing
it, a tax law which in substance and ef-
fect was repugnant to the Federal Con-
stitution ; neither can it render unconsti-
tutional a tax that, in its actual effect,
violates no constitutional provision, by
inaccurately defining it. St. Louis
Southwestern R. Co. v. Arkansas, 235
U. S. 360, 362, 59 L. ed. 265, 271, 35
Sup. Ct. Rep. 99.
We have, then, a state tax upon the
business of an itinerant vender of goods
as carried on within the state, — a tax
applicable alike to all such dealers, irre-
spective of where their goods are manu-
factured, and without discrimination
against goods manufactured in other
states. It is settled by repeated deci-
sions of this court that a license regula-
tion or tax of this nature, imposed by a
state with respect to the making of such
:>ales of goods within its borders, is not
to be deemed a regulation of or direct
burden upon interstate commerce, al-
though enforced impartially with respect
to goods manufactured without as well
as within the state, and does not conflict
64* L. ed.
with the "commerce clause." Woodruff
V. Parham, 8 Wall. 123, 140, 19 L. ed.
382, 387; Howe Mach. Co. v. Gage, 100
U. S. 676, 25 L. ed. 754; Emert v. Mis-
souri, 156 U. S. 296, 39 L. ed. 430, 5
Inters. Com. Rep. 68, 15 Sup. Ct. Rep.
367; Baccus v. Louisiana, 232 U. S. 334,
58 L. ed. 627, 34 Sup. Ct. Rep. 439.
The peddler's license tax considered in
Welton V. Missouri, 91 U. S. 275, 23 L.
ed. 347, was denounced only because it
amounted to a discrimination against the
products of other states, and therefore
to an interference with commerce among
the states. To the same effect, Walling
V. Michigan, 116 U. S. 446, 454, 29 L.
ed. 691, 693, 6 Sup. Ct. Rep. 454.
[103] Of course the transportation
of plaintiffs' goods across the state line
is of itself interstate commerce ; but it is
not this that is taxed by the city of Cov-
ington, nor is such commerce a part of
the business that is taxed, or anything
more than a preparation for it. So far as
the itinerant vending is concerned, the
goods might just as well have been man-
ufactured within the state of Kentucky;
to*the extent that pla^tiffs dispose of
their goods in that kind of sales, they
make them the subject of local com-
merce; and this being so, they can claim
no immunity from local regulation,
whether the goods remain in original
packages or not.
The distinction between state regula-
tion of peddlers and the at^mpt to kn-
pose like regulations upon drummers
who solicit sales of goods that are to be
thereafter transported in interstate com-
merce has always been recognized. In
Robbins v. Shelby Taxing Dist. 120 U.
S. 489, 30 L. ed. 69^, 1 Inters. Com.
Rep. 45, 7 Sup. Ct. Rep. 592, Mr. Justice
Bradley, who spoke for the court, said
(p. 497) : "When goods are sent from
one state to another for sale, or in con-
sequence of a sale, they become part of
its general property, and amenable to»its
laws; provided that no discrimination be
made against them as good^ from an-
other state, and that they be not taxed
by reason of being brought from another
state, but only taxed in the Usual way
as other goods are. Brown v. Houston,
114 U. S. 622, 29 L. ed. 257, 5 Sup. Ct.
Rep. 1091 ; Howe Mach. Co. v. Gage, 100
U. S. 676, 25 L. ed. 754. But to tax
the sale of such goods, or the offer to
sell them, before they are brought into
. the state, is a very different thing, and
] seems to us clearly a tax on interstate
commerce." See also Crenshaw v. Ar-
kansas, 227 U. S. 389, 399, 400, 57 L. ed.
565, 568, 569, 33 Sup. Ct. Rep. 294, where
167
103, 104
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm:,
the distinction was clearly set forth.
And in all the "drummer cases" the fact
has appeared that there was no selling
from a stock of goods carried for the
purpose, but only a solicitation of sales,
with or without the exhibition of
samples; the goods sold to be thereafter
transported from without the state.
Rogers v. Arkansas, 227 U. S. 401, 408,
57 L. ed. 569, 572, 33 Sup. Ct. Rep. 298;
[104] Brennan v. Titusville, 153 U.
S. 289, 38 L. ed. 719, 4 Inters. Com. Rep.
658, 14 Sup. Ct. Rep. 829; Caldwell v.
North Carolina, 187 U. S. 622, 47 L. ed.
336, 23 Sup. Ct. Rep. 229; Rearick v.
Pennsylvania, 203 U. S. 507, 510, 51 L.
ed. 295, 296, 27 Sup. Ct. Rep. 159; Dozier
V. Alabama, 218 U. S. 124, 54 L. ed. 965,
28 L.R.A.(N.S.) 264, 30 Sup. Ct. Rep.
649; Browning v. Waycross, 233 U. S. 16,
58 L. ed. 828, 34 Sup. Ct. Rep. 578;
Western Oil Ref. Co. v. Lipscomb, 244
U. S. 346, 61 L. ed. 1181, 37 Sup. Ct.
Rep. 623 ; Cheney Bros. Co. v. Massachu-
setts, 246 U. S. 147, 153, 62 L. ed. 632,
636, 38 Sup. Ct. Rep. 295.
Judgment affirmed.
GiLLIGAN
V.
City of Covington.
[No. 62.]
Announced by Mr. Justice Pitney:
By stipulation of (Counsel this case
was heard with No. 61, and it is agreed
that a similar judgment is to be entered.
Judgment affirmed.
Mr. Justice McKenna and Mr. Justice
Holmes dissent.
OKLAHOMA RAILWAY COMPANY, Plff.
• in Err.,
V.
SEVERNS PAVING COMPANY and the
City of Oklahoma City.
(See S. C. Reporter's ed. 104-107.)
Error to state court — proper judgment
— saTlng right to hearing.
1. A judgment of the highest court of
a state which, by affirming, without more,
a judgment of the trial court directing a
reassessment against the property itself
instead of against a street railway company
of the share of the expense of a pavement
properly apportioned to a central strip in
a highway owned in fee by the street rail-
way company, leaves in serious doubt the
168
right of the company to a new and adequate
hearing in respect of the assessment, will
be so modified and corrected by the Federal
Supreme Court on writ of error as definite-
ly to preserve such right.
[For other cases, see Appeal and Error, IX. e,
in Digest Sup. Ct. 1908.]
Constitutional law — impairing con-
tract obligations — assessing street
railway for public improvement.
2. The terms and conditions in a street
railway franchise which require the street
railway company under certain conditions
to pave or pay for paving certain portions
of occupied streets do not amount to a con-
tract which prevents, on .constitutional
grounds, the imposition bv the municipality
upon a central strip in tne highway owned
in fee by the street railway company of
its fair share, according to benefits, of the
expense of paving such street.
[For other cases, 8«»e Constitutional T^w, 14.'J5—
1439, in Digest Sup. Ct. 1908.]
[No. 106.]
Argued November 19 and 20, 1919. De-
cided December 8, 1919.
IN ERROR to the Supreme Court of
the State of Oklahoma to review a
judgment which affirmed a judgment of
the District Court of Oklahoma Coun-
ty, in that state, granting a writ of man-
damus to compel a reassessment against
the property itself instead of against a
street railway company of the fair share
of the expense of a pavement appor-
tioned to a central strip in the highway
owned in fee by the street railway com-
pany. Modified by preserving the right
Note. — On error to state courts in
cases presenting questions of impair-
ment of contract obligations — see note
to Osborne v. Clark, 61 L. ed. U. S. 619.
Generally as to what laws are void as
impairing obligation of contracts — see
notes to Franklin County Grammar
School V. Bailey, 10 L.R.A. 405; Bul-
lard V. Northern P. R. Co. 11 KR.A.
246; Henderson v. Soldiers & S. Monu-
ment Comrs. 13 IiJt.A. 169; and Fletch-
er V. Peck, 3 L. ed. U. S. 162.
On liabiility of street railway for pav-
ing assessment — see note to Shreveport
V. Prescott, 46 L.R.A. 193.
On privilege of using street as a con-
tract within the constitutional provision
against impairing the obligation of con-
tracts— see notes to Clarksburg Electric
Light Co. V. Clarksburg, 50 L.R.A. 142,
and Russell V. Sebastian, L.R.A.1918E,
892.
On necessity for special benefit to sus-
tain assessments for local improvements
— see note to Re Madera Irrig. Dist, M
L.R.A. 755.
251 U.'S.
1919.
OKLAHOMA K. CO. v. SEVERNS PAVING CO.
of the street railway company to a hear-
ing in respect of the assessment, and as
BO modified affirmed.
5^ee same ca<*e below, — Okla. — , 10
AX.R. ~, 170 Pac. 216.
The facts are stated in the opinion.
Messrs. John B. Dudley and Henry G.
Snyder argued the cause, and, with Mr.
Henry £. Asp, filed a brief for plaintiff
in error:
In no event can any greater burden
with respect to paving be imposed upon
the Oklahoma Railway Company than
was outlined in the franchise ordinance
No. 281 of the* city, where the entire du-
ty and burden of the railway company
with respect to paving are detailed. The
imposition of any oti^er or greater bur-
den than that provided for by the fran-
chise is void under the Federal Consti-
tution, as impairing the obligation of
the franchise contract.
Oklahoma City v. Oklahoma R. Co.
20 Okla. 1, 16 L.R.A.(N.S.) 651, 93
Pac. 48; Oklahoma R. Co. v. St. Josei^h's
Parochial School, 33 Okla. 755, 127 Pac.
1087: Enid Citv R. Co. v. Enid, 43 Okla.
788, 144 Pac. 617; Northern P. R. Co.
V. Minnesota, 208 U. S. 683, 52 L. ed.
630, 28 Sup. Ct. Rep. 341; Detroit Unit-
ed R. Co. V. Michigan, 242 U. S. 238,
249, 61 L. ed. 268, 273, P.U.R.1917B,
1010, 39 Sup. Ct. Rep. 87; Chicago v.
Sheldon, 9 Wall. 50, 19 L. ed. 594;
Coast Line R. Co. v. Savannah, 30 Fed.
646; Wright v. Georgia R. & Bkg. Co.
216 U. S. 420, 54 L. ed. 544, 30 Sup. Ct.
Rep. 242; State ex rel. Kansas City v.
Corrigan Consol. Street R. Co. 85 Mo.
263, 55 Am. Rep. 361; West Chicago
Street R. Co. v. Chicago, 178 HI. 339, 53
N. E. 112; Western Paving & Supply
Co. V. Citizens' Street R. Co. 128 Ind.
525, 10 L.R.A. 770, 25 Am. St. Rep.
462, 26 N. E. 188, 28 N. E. 88; Provi-
sional Municipality v. Northrup, 14 C.
r. A. 59, 30 U. S. App. 762, 66 Fed, 689 ;
Boise Artesian Hot & Cold Water Co.
V. Boise City, 230 U. S. 84, 57 L. ed.
1400, 33 Sup. Ct. Rep. 997; Madison v.
Alton, G. & St. L. Traction Co. 235
HI. 346, 85 N. E. 596; Moline v. Tri-
Citv R. Co. 262 111. 122, 104 N. E. 271;
Dean v. Paterson, 67 N. J. L. 199, 50
Atl. 620; McChesney v. Chicago, 213 III.
595. 73 N. E. 368..
Under the authority of Boise Artesian
Hot & Cold Water Co. v. Boise City, 230
U. S. 84, 57 L. ed. 1400, 33 Sup. Ct.
Rep. 997, this franchise ordinance is a
grant in perpetuity. The right to occu-
py the street surface for tracks there-
fore continues while the use continues.
61 I., ed.
Exactly the same is true of the private
right of way, which can be used for no
other purpose than the laying and oper-
ation over of street railway tracks, and
which, when this use is abandoned, re-
verts to the igrantor.
Santa Fe, L & E. R. Co. v. Laune,
— Okla. — , 168 Pac. 1022.
In no event can a greater burden be
imposed upon the railway company re-
specting paving, in so far as its private
right of way is affected, than the bur-
den provided in the dedication of such
private rights of way, such dedication
being made when the land in question
was farm property, not within the city
limits, the area included within such
dedication having been subsequently
taken into the city with knowledge of
the restrictions contained in the plats
and dedications, snch restrictions and
conditions having been the inducement
of the railway company to build in these
outlying districts, and constituting con-
tracts which would be impaired, in vio-
lation of both state and Federal Con-
stitutions, by the imposition of any or
other greater burden as to paving than
the plats and dedications provide for
and require.
Atchison, T. & S. F. R. Co. v. Shaw-
nee, 105 C. C. A. 377, 183 Fed. 85; Cin-
cinnati V. Louisville & N. R. Co. 223 U. S.
390, 56 L. ed. 481, 32 Sup. Ct. Rep.- 267 ;
Browne v. Palmer, 66 Neb. 287, 92 N.W.
315; Bartlett v. Boston, 182 Mass. 460,
65 N. E. 827; Perth Amboy Trust Co.
V. Perth Amboy, 75 N. J. L. 291, 68
Atl. 84; State, Tallon, Prosecutor, v.
Hoboken, 59 N. J. L. 383, 36 Atl. 693;
Tallon V. Hoboken; 60 N. J. L. 212, 37
Atl. 895; Boston Water Power Co. v.
Boston, 194 Mass. 571, 80 N. E. 598:
Board of Education v. Kansas City, .62
Kan. 374, 63 Pac. 600; Chambersburs:
Shoe Mfg. Co. V. Cumberland Valley R.
Co. 240 Pa. 519, 87 Atl. 968; 5aker v.
Chicago, R. I. & P. R. Co. 154 Iowa,
228, 134 N. W. 587; Kimball v. Chicago,
253 111. 105, 97 N. E. 257; Faller v. La-
tonia, 24 Ky. L. Rep. 2476, 74 S. W.
287; O'Donnell v. Pittsburgh, 234 Pa.
401, 83 Atl. 314; Parriott v. Hampton,
134 Iowa, 157, 111 N. W. 440; Bloom-
field V. Allen, 146 Ky. 34, 7 L.R.A.
(N.S.) 122, 141 S. W. 400; Delaware,
L. & W. R. Co. V. Syracuse, 157 Fed.
700; Spaulding v. Wesson, 5 Cal. Unrep.
399, 45 Pac. 807; Noblesville v. Lake
Erie & W. R. Co. 130 Ind. 1, 29 N. E.
484; Chicago v. Ward, 169 111. 392. 38
L.R.A. 849, 61 Am. St. Rep. 185, 48 N.
E. 927; Jacksonville v. Jacksonville R.
Co. 67 111. 543; St. Paul & P. R, Co. v.
169
106
SUPREME COURT OF THE UNITED STATES.
Oct. Term.
Sohurmier, 7 Wall. 272-289, 19 L. ed.
74-78; Atchison, T. & S. F. R. Co. v.
Chanute, 90 Kan. 428, 133 Pac. 576.
The judgment in the court below de-
prives the railway company of its prop-
erty without due process of law.
Wagner v. Leser, 239 U. S. 208, 60 L.
ed. 230, 36 Sup. Ct. Rep. 66; Myles
Salt Co. V. Iberia & St. M. Drainage
Dist. 239 U. S. 478, 60 L. ed. 392, L.R.A.
1918E, 190, 36 Sup. Ct. Rep. 204; Em-
bree v. Kansas City & L. B. Road Dist.
240 U. S. 242, 60 L. ed. 624, 36 Sup. Ct.
Rep. 317; Gast Realty & Invest. Co. v.
Schneider Granite Co. 240 U. S. 55, 60
L. ed. 523, 36 Sup. Ct. Rep. 254; Lon-
doner V. Denver, 210 U. S. 373, 52 L. ed.
1103, 28 Sup, Ct. Rep. 70S; French v.
Barber Asphalt Paving Co. 181 U. S.
324, 45 L. ed. 879, 21 Sup. Ct. Rep. 625 ;
St. Louis & K. C. Land Co. v. Kansas
City, 241 U. a 419, 60 L. ed. 1072, 36
Sup. Ct. Rep. 647.
Mr. D. A. Richardson argued the
cause, and, with Messrs. RusseU G.
Lowe, T. G. Chambers, B. A. Ames, and
Streeter B. Flynn, filed a brief for de-
fendants in error:
The franchise granted no exemption
from the assessment of land owned by
the railway company.
Charles Kiver Bridge v. Warren Bridge,
11 Pet. 420, 9 L. ed. 773; Citizens' Bank
v. Parker, 192 U. S. 73, 87, 48 L. ed. 346,
356, 24 Sup. Ct. Rep. 181 ; Phcenix F. &
M. Ins. Co. V. Tennessee, 161 U. S. 174,
177, 40 L. ed. 660, 661, 16 Sup. Ck Rep.
471; New York ex rel. Schurz v. Cook,
148 U. S. 397, 409, 37 L. ed. 498, 502,
13 Sup. Ct. Rep. 645; Illinois C. R. Co.
V. Decatur, 147 U. S. 190, 37 L. ed. 132,
13 Sup. Ct.- Rep. 293; Minneapolis v.
Minneapolis Street R. Co. 215 U. S. 417,
54 L. ed. 259, 30 Sup. Ct. Rep. 118;
Cleveland Electric R. Co. v. Cleveland,
204 U. S. 116, 51 L. ed. 399, 27 Sup.
Ct. Rep. 202; Blair v. Chicago, 201 U.
S. 400, 50 L. ed. 801, 26 Sup. Ct. Rep.
427; Tucker v. Ferguson, 22 Wall. 527,
22 L. ed. 805; Seton Hall College v.
South Orange, 242 U. S. 100, 61 L. ed.
170, 37 Sup. Ct. Rep. 54 ; Union Pass. R.
Co. v. Philadelfihia, 101 U. S. 528, 25 L.
ed. 912: New Orleans City & Lake R.
Co. V. New Orleans, 143 U. S. 192, 36 L.
ed. 121, 12 Sup. Ct. Rep. 406; Oklaho-
ma City v. Shields, 22 Okla. 293, 100
Pac. 559; Tampa Waterworks Co. v.
Tampa, 199 U. S. 241, 243, 50 L. ed. 172,
173, 26 Sup. Ct. Rep. 23; Louisville & N.
R. Co. V. Barber Asphalt Paving Co. 197
U. S. 430, 49 L. ed. 819, 25 Sup. Ct. Rep.
460
170
The dedication or conveyance of the
property in question contained no provi-
sion purporting to exempt the same
from assessment under the jreneral law
of the state for paving pur)>o8es; and
if it had done so, such provision would
have been void.
Chicago & A. R. Co. v. McWhirt, 243
U. S. 422, 61 L. ed. 826, 37 Sup. Ct. Rep.
392; Texas & N. 0. R. Co. v. Miller, 221
U. S. 408, 55 L. ed. 789, 31 Sup. Ct.
Rep. 534; St. Louis & 8. F. R. Co. v.
Mathews, 165 U. S. 1, 41 L. ed. 611, 17
Sup. Ct. Rep. 243; Chicago & A. R. Co.
V. Tranbarger, 238 U. S. 67, 76, 59 L.
ed. 1204, 1210, 35 Sup. Ct. Rep. 678;
Union Drv Gk)ods Co. v. Georgia Pub.
Serv. Corp. 248 U. S. 372, 63 L. ed. 309,
9 A.L.R. 1420. P.U.R.1919C, 60, 39 Sup.
Ct. Rep. 117; Manigault v. Springs, 199
U. S. 473, 480, 50 L. ed. 274, 278, 26
Sup. Ct. Rep. 127; Hudson Countv Wa-
ter Co. V. McCarter, 209 U. S. 349,' 357,
52 L. ed. 828, 832, 28 Sup. Ct. R«p. 529,
14 Ann. Cas. 560; 3 Dill. Mun. Cor}>.
5th ed. § 1075; Richards v. Cincinnati,
31 Ohio St. 506; Jones v. Carter, 45
Tex. Civ. App. 450, 101 S. W. 514; Ed-
wards Hotel & City Street R. Co. v.
Jackson, 96 Miss. 547, 51 So. 803; Den-
ver V. New York Trust Co. 229 U. S.
123, 57 L. ed. 1101, 33 Sup. Ct. Rep.
657.
The proceeding in and decree of the
trial court, and the affirmance thereof
by the supreme court of Oklahoma, do
not deprive the railway compMkny of its
property without due process of law.
Bartlesville v. Holm, 40 Okla. 467, 9
A.L.R. 627, 139 Pac. 273 ; Norris v. Law-
ton, 47 Okla. 213, 148 Pac. 123; Coal-
gate V. Gentilini, 51 Okla. 552, 152 Pac.
95; Terry v. Hinton, 52 Okie. 170, 152
Pac. 518; Chickasha v. O'Brien, — Okla.
— , 159 Pac. 282; Perry v. Davis, 18
Okla. 458, 90 Pac. 865; Kerker v. Boch-
er, 20 Okla. 729, 95 Pac. 981; Paulsen
V. El Reno, 22 Okla. 734, 98 Pac. 958;
Jenkins v. Oklahoma City, 27 Okla. 230,
111 Pac. 941; Lon^inger v. Ponca Citv,
27 Okla. 397, 112 Pac. 1006; Weaver v.
Chickasha, 3G Okla. 226, 128 Pac. 305:
Shultz V. Ritterbusch, 38 Okla. 478. 134
Pac. 961; Shepard v. Barron, 194 U. S.
553, 48 L. ed. 1115, 24 Sup. Ct. Rep. 737.
[106] Mr. Justice McReynolds deliv-
ered the opinion of the court :
In 1909 the owners platted Linwood
Place, adjacent to Oklahoma City, for
building lots, streets, etc. To procure
extension of a street car line therein,
they dedicated a strip 40 feet in width,
Iving aloni? the center of what is now
251 r. s.
1919.
EVAXS V. NATIONAL BANK.
i-oe-ios
known as Lin wood boulevard, to plain- 1
tiff in error's predecessor, "its successors
and assigns, with a like effect as though
deeded and conveyed to said company in
fee simple by separate deed," on con-
dition, however, that the property should
be subject to reasonable police regula-
tions, that the grantee should construct
crossings over the tracks and also put
down curbing and pave the crossings
whenever the boulevard itself should be
paved. Subordinate to above grant the
streets as shown on the plat were dedi-
'•ated to the public for ordinary pur-
poses of travel. Afterwards car tracks
were laid in the center of the 40-foot
strip and the corporate limits of Okla-
homa City were extended to include Lin-
wood Place.
In order to provide funds for paving
the public roadways along Linwood
boulevard, the city undertook in 1910
to lay a tax upon the adjacent property,
and directed that it be apportioned ac-
cording to benefits. The board of com-
missioners apportioned to the central
strip as its proper share of the expenses,
$12,046.16. Instead of assessing this
amount directly against the property,
the city council erroneously assessed it
against the street car company. There-
after, the city and the Sevems Company,
which had put down the paving, procured
from the district court of Oklahoma
county a mandamus directing a reassess-
ment against the land itself, but a hear-
ing upon objections thereto was not
specifically provided for.
The supreme court of the state ( —
Okla. — , 10 A.L.B. — , 170 Pac. 216) de.
clared: "The fee title to the strip of
land in question [107] here appears to
be in the railway company. ... Its
right is not merely an intangible privi-
lege or an easement; but, under the terms
of the dedication, is a fee-simple title.
. . , The dominion and control of the
strip of land in question here is not in
the city authorities. If the street should
be vacated by the city authorities, this
private right of way would not revert
to the abutting owners, but would con-
tinue to be the property of the railway
company. The company took the fee
from the original grantors by the dedi-
cation before the abutting owners ac-
quired their titles." It then held the
land was subject to assessment accord-
ing to benefits resulting from the paving,
and "that when the commissioners pro^
<o(»d in olicdience to the decree of the
court to reassess the property of the rail-
way company an opportunity will be
piven the company to be heard and to
«l L. od.
complain or object to the amount 6t the
assessment./' Nevertheless, it ordiered
an affirmance of the judgment of the
trial court, without more, and by so do-
ing left in serious doubt the right of
plaintiff in error to a new and adequate
hearing in respect of the assessment.
We think, therefore, that the judgment
below should be modified and corrected
so as^ definitely to preserve such right.
So modified, it is affirmed. The costi?
here will be equally divided.
The terms and conditions in the origi-
nal franchise granted by Oklahoma City
to the plaintiff in error, which require-
it, under given conditions, to pave or
pay for paving certain portions of occu-*
pied streets, are not applicable in the
circumstances here presented, and can-
not be relied upon to defeat the assess-
ment now in question. The land sup-
posed to be benefited belongs to the com-
pany; the city has made no contract
which prevents imposition upon it of a
fair share of the cost of beneficial im-
provements. Louisville & N. R. Co, v.
Barber Asphalt Paving Co. 197 U. S.
430, 49 L. ed. 819, 25 Sup. Ct. Rep. 466.
Modified and affirmed.
[108] THOMAS J. EVANS, Sole Smrviv-
ing Receiver of the Citizens k Screven
County Bank, Petitioner,
V.
NATIONAL BANK OF SAVANNAH.
(See 8. C. Reporter's ed. 106-120«>
Usury — by national bank.
1. The National Bank Act establishes
a system of general regulations, adopting
the usury laws of the states only in so
far as they severally fix -the rate of interest.
[For other cases, see Usury, I. c. In Digtst
Sup. Ct. 1908.]
Usury — by national bank — discounts
— reserving Interest in advance.
2. A national bank, having the power^
under U. S. Rev. Stat. §§ 5136, 5197, to
make discounts at the interest rate allowed
by the state law, does not incur the pen-
alty prescribed by § 5198 for taking usury
merely because, in discounting short-term
Note. — As to lawfulness of takings in-
terest in advance — see notes to L^ran-
ville Banking Co. v. Forrester, L.R.A.
1915D, 1195, and Bank of Newport v.
Cook, 29 L.R.A. 761.
On forfeiture or other effect of taking^
or reserving illegal interest by national
bank — see notes to Citizens' Nat. Bank
V. Gentry, 56 L.R.A. 673, and Farmers'
& M. Nat. Bank v. Bearing, 23 L. ed.
U. S. 196.
171
J
n
St PUEMK COURT OF THE UXITKD STATES.
Oct. Term,
iwytefl In the ordinary course of business, it
reserves interest in advance at the maxi-
muni interest rate allowed by th^ state law,
although, under sucli law, interest charges
reserved on a loan in advance by a state
hank at the highest permitted rate consti-
tute usury.
CFor other cases, see Usury. I. c. In Dig:e8t
Sup. Ct. 1908.]
[No. 67.]
Argued November 11 and 12, 1919.
December 8, 1919.
Decided
ON WRIT of Certiorari to the Court
of Appeals of the State of Georgia
to review a judgment which affirmed a
judgment of the Superior Court of
Chatham County^ in that state, sustain-
ing a demurrer to the petition in a suit
to recover a penalty for usury by a
naUonal bank. Affirmed.
See same case below, 21 Ga. App. 356,
94 S. E. 611.
The facts are stated in the opinion.
Mr. Frederick T. Saossy argued the
cause and filed a brief for petitioner:
We call attention to the excessive
chajrges made by the lender, on the ac-
tual discounts charged, and the averment
in the petition that the same were paid
at the maturity of each Joan. These
most important and vital allegations
were seemingly ignored by the Georgia
courts, which erroneously treated the pe-
tition as merely based on an allegation
that 8 per cent per annum interest, and
no more, had been charged in advance,
and paid at maturity.
And even if the discounts actually
charged in advance had in each of the
loans been exactly at the rate of 8 per
cent per annum (they were at a higher
rate), such charges are usurious under
the laws of Georgia.
Loganville Bkg. Co. v. Forrester, 143
Ga. 302, L.R.A.1915D, 1195, 84 S. E.
961.
Section 5197 of U. S. Rev. Stat.,
Comp. Stat. § 9758, 6 Fed. Stat. Anno.
2d ed. p. 744, mentions "loan or dis-
count;'' and this court has held that the
terms "loan" and "discount" are synony-
mous.
National Bank v. Johnson, 104 U. S.
271, 26 L. ed. 742; Morris v. Third Nat.
Bank, 73 C. C. A. 211, 142 Fed. 25.
If the act of Congress can be con-
.fitrued as contended for by counsel for
respondent, and as decided by the court
of appeals of Georgia in this case, then
a niUional bank in Georgia, by making
the maturity of the loan sufficiently re-
i72
mote, can charge any rate of interest
the borrower will agree to pay it.
McCall v. Herring, 116 Ga. 244, 42
S. E. 468.
The state law is adopted by Congress,
and what is usury under that law, if
done by a person in that state, is usury
if done by a national bank located in
that state; and if taking interest in ad-
vance at the highest rate is usury under
the law of that state, it is usury 'if done
by a national bank in that state.
Timberlake v. First Nat. Bank, 43
Fed. 231; Citizens' Nat. Bank v. Don-
nell, 195 U. S. 374, 49 L. ed. 238, 25 Sup.
Ct. Rep. 49; Daggs v. Phoenix Nat.
Bank. 177 U. S. 549, 555, 44 L. ed. 882,
884, 20 Sup. Ct. Rep. 732.
The suit sufficiently shows that usury
was charged and paid, irrespective of
the enforced deposit of over $10,000 re-
quired by the lender, and sufficiently
complied with the Georgia statute relat-
ing to pleading usury. As to the en-
forced deposit, the suit sufficiently
shows the amount of usury charged, due
to the enforced deposit; for the use of
the money, being worth 7 per cent,
would make that amount of interest on
the enforced deposit usury that was
charged. Of course it was paid, because
the entire discount on the full face of
the loans was paid, although the bor-
rower had no use of the enforced de-
posit.
The measure of the rights of the
national bank to interest is the state
law.
Union Nat. Bank v. Louisville, N. A.
& C. R. Co. 163 U. S. 330, 331, 41 L. ed.
178, 179, 16 Sup. Ct. Rep. 1039.
The Georgia statute as to pleading
the exact amount of usury charged ha.«
not been applied to any cases except
where one seeks to recover or set oflf
the usury as such, where exact figures
are necessary.
Carswell v. Hart ridge, 55 Ga. 415;
HoUis v. Covenant Bldg. & L. Asso. 104
Ga. 322, 31 S. E. 215; King Bros, v
Moore, 147 Ga. 43, 92 S. E. 757.
The enforcing of the deposit was
clearly usury; it could not well be held
otherwise than a usurious device; usury
laws would be abrogated if the lender
could require a deposit to be made as a
condition to a loan: the worst forms of
usury could thereby be practised, and
we believe the practice has become one
that is prevalent throughout our coun-
try. It is a makeshift to get more than
legal interest; and while all sorts of ex-
planations are offered for the require-
ment, such as maintaining the credit of
251 r. s.
1919*
EVANS V. NATIONAL BANK.
the borrower with the lender, making
the aeconnt worth while to can\v, etc.,
yet it so happens that the interest
ehaiged the borrower is calculated and
paid on the entire face of the note; not
on the net amount loaned.
East River Bank v. Hoyt, 32 N. Y.
119.
Mr. Edward S. Elliott argued the
<^au8ey and, with Mr. Jacob Gazan, filed
a brief for respondent :
The acts of Congress ptoviding for
the creation and operation of national
banks are the charter of such banks,
and their terms and provisions are
alone applicable to national banks.
Farmers' & M. Nat. Bank v. Bearing,
91 U. S. 29-33, 23 L. ed. 196-198; Hans-
ford V. National Bank, 10 Ga. App. 270,
73- S. E. 406.
The acts of Congress, as construed by
the courts of the United States, are
the law of the land, and the courts of
all the states are bound, in all matters
relating to the National Bank Act, to
conform their opinions and decisions to
the construction of that law as an-
nounced by the United States courts.
Bates V. First Nat. Bank, 111 Ga. 758,
36 S. E. 949; Farmers' & M. Nat. Bank
V. Bearing, 91 U. S. 29, 23 L. ed. 196;
Bamet v. Muncie Nat. Bank, 98 U. S.
555, 568, 25 L. ed. 212, 213; First Nat.
Bank v. McEntire, 112 Ga. 232, 37 S. E.
381; Reese v. Colquitt Nat. Bank, 12
Ga. App. 472, 77 S. B. 320; First Nat.
Bank v. Bavis, 135 Ga. 691, 36 KB. A.
(N.S.) 134, 70 S. E. 246; Haseltine v.
Central Nat. Bank, 183 U. S. 134, 46
L. ed. 118, 22 Sup. Ct. Rep. 60.
Under the National Bank Act, not
only by its express language, but also
as construed by the United States
eourts, national banks are permitted to
take discount at the highest l^al rate
authorized by the laws of the state in
which such bank does business, and thus
in Georgia discounting at 8 per cent
does not constitute usury, although, if
done by a state bank in Georgia, it
would be usurious.
Farmers' & M. Nat. Bank v. Bearing,
91 U. S. 29, 23 L. ed. 196; Fleckner v.
Bank of United States, 8 Wheat. 338,
5 L. ed. 631 ; Union Sav. Bank & T. Co. v.
Dottenheim, 107 Ga. 614, 34 S. E. 217;
Fowler v. Equitable Trust Co. 141 U. S.
384, 35 L. ed. 786, 12 Sup. Ct. Rep. 1;
Danforth v. National State Bank, 17
L.R.A. 622, 1 C. C. A. 62, 3 U. S. App.
7, 48 Fed. 271; Morris v. Third Nat.
Bank, 73 C. C. A. 211, 142 Fed. 25;
National Bank v. Johnson, 104 U. S.
•4 li. ed.
271, 26 L. ed. 742; Atlantic State Bank
V. Savery, 82 N. Y. 291; Pape v. Cap-
itol Bank, 20 Kan. 440, 27 Am. Rep.
183; McGill v. Ware, 5 HI. 26; VaW-
b«rg V. Keaton, 51 Ark. 541, 4 LJLA.
462, 14 Am. St. Rep. 73, 11 S. wTotS;
Hass V. Flint, 8 Blackf. 67; English v.
Smock, 34 Ind. H6, 7 Am. Rep. 215;
Tholen v. Buffy, 7 Kan. 409; Bank of
Newport v. Cook, 29 L.R:A. 761, note;
Newell v. National Bank, 12 Bush, 60;
Bunoan v. Maryland Sav. Inst. 10 GiD
& J. 311 ; Lyons v. State Bank, 1 Stew.
(Ala.) 469; Bank of Utica v. Wager, 2
Cow. 767; Grigsby v. Weaver, 5 Leigh,
213; Planters' Bank v. Snodgrass, 4
How. (Miss.) 627; Bank of Geneva t.
Hewlett, 4 Wend. 332; Maine Bank v.
Butts, 9 Mass. 49; McCarthy v. First
Nat. Bank, 223 U. S. 493, 499, 56 U ed.
523, 525, 32 Sup. Ct. Rep. 240; Baker v.
Lynchburg Nat. Bank, 120 Va. 208, 91
S. E. 157; Bamet v. Muncie Nat. Bank,
98 U. S. 558, 25 L. ed. 212; Thornton t.
Bank of Washington, 3 Pet. 36, 7 L. ed.
594; Myer v. Muscatine, 1 Wall. 384,
17 L. ed. 564; Wheeler v. Union Nat.
Bank, 96 U. S. 268, 24 L. ed. 833; Bank
of Metropolis v. Moore, 5 Cranch, C. C*
618, Fed. Cas. No. 901, 13 Pet. 302, 309,
10 L. ed. 172, 176; Tyler, Usury, 165,
156; Mackenzie t. Flannery, 90 Ga.
599, 16 S. E. 710; National L. Ins. Co.
V. Bonovan, 238 HI. 283, 87 N. E. 356;
Rose V. Munf ord, 36 Neb. 148, 54 N. W.
219; Foster v. Pitman, 2 Neb. (Unof.)
672, 89 N. W. 763; Sanford v. Lund-
quist, 80 Neb. 414, 18 L.R.A.(N.Si) 633,
114 N. W. 279, 118 N. W. 129; Hoyt v.
Bridgewater Copper Min. Co. 6 N. J.
Eq. 253; Metz v. Winne, 15 Okla, 1, 79
Pac. 223; Covington v. Fisher, 22 Okla.
207, 97 Pac. 615; Newton v. Woodley,
55 S. C. 132, 32 S. E. 532, 33 S. E. 1;
Heyward v. Williams, 63 S. C. 470, 41
S. E. 550; Tate v. Lenhardt, 110 S. C.
569, 96 S. E. 720; Marsh v. Martindale,
3 Bos. & P. 154, 127 Eng. Reprint, 85;
Floyer v. Edwards, Cowp. pt. 1, p. 112,
98 Eng. Reprint, 995; Lloyd v. Williams,
2 W. Bl. 792, 96 Eng. Reprint, 466;
Auriol V. Thomas, 2 T. R. 62, 100 Eng.
Reprint, 29; Hammet v. Yea, 1 Bos. ft
P. 144, 126 Eng. Reprint, 826; Maddock
V. Hammett, 7 T. R. 184, 101 Eng. Re-
print, 922; McLean v. Lafayette Bank^
3 McLean, 587, Fed. Cas. No. 8,888;
Alexandria Bank v. Mandeville, 1
Cranch, C. C. 552, Fed. Cas. No. 850;
United States Bank v. Crabb, 2 Craneh^
C. C. 299, Fed. Cas. No. 913; Union
Bank v. Gosler, 2 Cranch, C. C. 340,
Fed. Cas. No. 14,358; Union Bank v.
Corcoran, 5 Cranch, C. C. 513, Fed. Cas.
i
SUPREME COURT OF THE UNITED STATEb\
Oct. Term,
No. 14,353; Branch Bank v. Strother,
15 Ala. 51; Baird v. Millwood, 51 Ark.
548, 11 S: W. 881 ; Bank of Newport v.
Qook, 60 Ark. 288, 29 L.R.A. 761, 46
Am. St. Rep. 171, 30 S. W. 35; First
. Nat. Bank v. Waddell, U Ark. 241, 85
S. W. 417, 4 Ann. Cas. 818 ; McKiel v.
Real Estate Bank, 4 Ark. 592; Thomp-
son V. Real Estate' Bank, 5 Ark. 59;
Reed v. State Bank, 5 Ark. 193;
Magruder State Bank, 18 Ark. 9; Sav-
ings Bank v. Bates, 8 Conn. 505; Phil-
adelphia Loan Co. v. Towner, 13 Conn.
249; Phelps v. Kent, 4 Day, 96; Sec-
ond Nat. Bank v. Smoot, 2 MacArth.
371; Mitchell v. Lyman, 77 111. 525;
First Nat. Bank v. Davis, 108 111. 633;
Willett V. MaxweU, 169 111. 540, 48 N.
E. 473; Harris v. Bressler, 119 111. 467,
10 N. E. 188; Cobe v. Guyer, 237 111.
516, 86 N, E. 1071, affirming 139 111.
App. 592; Maxwell v. WiUett, 49 111.
App. 564; Cole v. Lockhart, 2 Ind. 631;
Bramblett v. Deposit Bank, 122 Ky. 324,
a LJa.A.(N.S.) 612, 92 S. W. 283; Dun-
can V. Maryland Sav. Inst. 10 Gill & J.
299; Warren Deposit Bank v. Robinson,
18 Ky. L. Rep. 78, 35 S. W. 275;
Lichtenstein v. Lyons, 115 La. 1051, 40
So. 454; Ticonic Bank v. Johnson, 31
Me. 414; Agricultural Bank v. Bissell,
12 Pick. 586; L3anan v. Morse, 1 Pick.
295, note; Cameron v. Merchants' & M.
Bank, 37 Mich. 240; Smith v. Parsons,
65 Minn. 520, 57 N. W. 311; Marvine
V. Hymers, 12 N. Y. 223; International
Bank v. Bradley, 19 N. Y. 245 ; Bloomer
V. Mftlnemey, 30 Hun, 201; Hawks v.
Weaver, 46 Barb. 164; New York Fire-
men Ins. Co. V. Sturges, 2 Cow. 664;
New York Firemen Ins. Co. v. Ely, 2
Cow. 678; Bank of Utica v. Smalley, 2
Cow. 770, 14 Am. Dec. 526, affirmed in
8 Cow. 398; Manhattan Co. v. Osgood,
15 Johns. 162, reversed on other
grounds in 3 Cow. 612, 15 Am. Dec. 304 ;
Mowry v. Bishop, 5 Paige, 98; Utica
Bank v. Phillips, 3 Wend. 408; Utica
Ins, Co. V. Bloodgopd, 4 Wend. 652;
Anderson v. Schenck, 1 N. Y. Leg. Obs.
JOT; Fidelity Loan Asso. v. Connolly,
96 N. Y. Supp. 676; Bank of Salina v.
Alvord, 31 N. Y. 473; State Bank v.
Hunter, 12 N. C. (1 Dev. L.) 100;
Crowell V. Jones, 167 N. C. 386, 83 S. E.
561; Monnett v. Sturges, 25 Ohio St,
384; Cook v. Courtright. 40 Ohio St.
248, 48 Am. Rep. 681; Penn Mut. L.
Ins. Co. V. Carpenter, 40 Ohio St. 260;
Lafayette Bank v. Findlay, 1 Ohio Dec.
Reprint, 49; Covington v. Fisher, 22
Okla. 207, 97 Pac. 615; Planters' Bank
V. Bivingsvillo Cotton Mfg, Co. 45
414
S. C. L. (11 Rich.) 677; Carolina Sav.
■ Bank v. Parrott, 30 S. C. 61, 8 S. E.
199; Merchants & P. Bank v. Sarratt.
77 S. C. 141, 122 Am. St. Rep. 562, 57
S. E. 621; W^tmore v. Brien, 3 Head,
723; Webb v. Pahde, — Tex. Civ. App.
— , 43 S. W. 19; Geisberg v. Mutual
Bidg. & L. Asso. — Tex. Civ. App. — ,
GO S. W. 478; Bank of St. Albans v.
Scott, 1 Vt. 426; Bank of Burlington v.
Durkee, 1 Vt. 399; Parker v. Cousins, 2
Gratt. 372, 44 Am. Dec. 388; Crump v.
Trytitle, 5 Leigh, 251; State Bank v.
Cowan, 8 Leigh, 238; Stribbling v. Bank
of Valley, 5 Rand. (Va.) 132; Tiflfanv
V. National Bank, 18 Wall. 409, 21 L, ed.
862.
Under the decisions of this court, it
is absolutely necessary that the amount
of usurious interest paid should be
alleged, in order to warrant a recover^'
under the provisions of § 5198 (Comp.
Stat. § 9759, 6 Fed. Stat, Anno. 2d ed.
p. 747).
Brown v. Marion Nat. Bank, 169 U.
S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep.
390; McCarthy v. First Nat. Bank, 223
U. S. 493, 56 U ed. 523, 32 Sup. Ct. Rep.
240.
The special deposit involved in this
case is not usurious.
Pattison v. Syracuse Nat. Bank, 80
N. Y. 82, 36 Am. Rep. 588; 7 C. J. 630,
632; American Nat. Bank v. Presnall,
58 Kan. 69, 48 Pac. 556; 3 Am. & Eng.
Enc. Law, 822, 824; Capital Nat.
Bank v. Coldwater Nat. Bank, 49 Neb.
786, 59 Am. St. Rep. 572, 69 N. W. U5 ;
Montagu v. Pacific Bank, 81 Fed. 602;
Moreland v. Brown, 30 C. C. A. 23, 56
U. S. App. 722, 86 Fed. 257; Officer v.
Office^, — Iowa, — , 90 N. W. 826; Saw-
yer V. Conner, 114 Miss. 363, L.R.A.
1918A, 61, 75 So. 131, Ann. Cas. 1918B,
388; Smith v. Sanborn State Bank, 147
Iowa, 640, 30 L.R.A. (N.S.) 517, 140 Am.
St. Rep. 336, 126 N. W. 779; Titlow v.
Sundquist, 148 C. C. A. 379, 234 Fed.
613; Reynes v. Dumont, 130 U. S. 355, 32
L. ed. 934, 9 Sup. Ct. Rep. 486; Cooper
V. National Bank, 21 Ga. App. 356, 94
S. E. 612.
The usury alleged in this case is not
so pleaded as to warrant a recovery.
Tillman v. Morton, 65 Ga. 386 ; Tram-
mell V. Woolfolk, 68 Ga. 628; Laramore
V. Bank of Americus, 69 Ga. 722; Bur-
nett V. Davis, 124 Ga. 543, 52 S. E. 927;
Culver V. Wood, 138 Ga. 60, 74 S. E.
790; Lee v. King, 142 Ga. 609, 83 S. E.
272; King Bros. v. Moore, 147 Ga. 43.
92 S. E. 757; Sullivan v. Rich, 18 Ga.
App. 301. 89 S. E. 429.
251 r.. 8.
l»i».
KVANS V. NATIONAL BANK.
108-112
Mr. Justice McResmolds delivered the
ophiion of the court:
The court below rightly construed the
pleadings as presenting only one substan-
tial Federal question: — ^Did [109] re-
spondent subject itself to the penalties
prescribed for taking usury by dis-
<!ounting short-time notes in the ordi-
nary course of business and charging
therefor at the rate of 8 per centum per
annum in advance? And we think it
correctly answered that question in the
negative.
Respondent is a national hank. Its
powers in respect of discounts, whether
transactions by it are usurious, and the
consequent penalties therefor, must be
ascertained upon a consideration of the
National Bank Act of June 3, 1864, chap.
106, 13 Stat, at L. 99, 101, 108, Rev.
Stat. §§ 5133 et seq., Comp. Stat. § 9658,
6 Fed. Stat. Anno. 2d ed. p. 651; Farm-
ers & M. Nat. Bank v. Bearing, 91 U.
S. 29. 23 L. ed. 196; Barnet v. Muncie
Nat. Bank, 98 U. S. 555, 558, 25 L. ed.
212, 213 ; Haseltine v. Central Nat. Bank,
183 U. S. 132, 134, 46 L. ed. 118, 119,
22 Sup. Ct. Rep. 60. Section 8 declares :
**That every association formed pursu-
ant to the provisions of this act . . ,
may elect or appoint directors . . .
and exercise under this act all such in-
cidental powefs as shall be necessary to
carry on the business of banking by dis-
counting and negotiating promissory^
notes, drafts, bills of exchange, and
other evidences of debt, by receiving de-
posits . . ." Section 30, printed in the
mai^n, ^ contains regulations [110]
presently important in respect of usury.
Among other things, it provides: "That
every association may take> receive, re-
serve, and charge on any lo^n or dis-
count made, or upon any note, bill of
exchange, or other evidences of debt,
interest at the rate allowed by the laws
of the state or territory where the bank
is located, and no more, . . ." All
these provisions were carried into §§
5136, 5197, and 5198, Revised Statutes,
Comp. Stat. §§ 9661, 9758, 9759, 6 Fed.
Stat. Anno. 2d ed. pp. 654, 744, 747, set
out below.*
[Ill] The National Bank Act estab-
lishes a system of general regulations.
It adopts usury laws of the states only
in so far as they severally fix the rate
of interest. Farmers & M. Nat. Bank
V. Bearing, supra; National Bank v.
Johnson, 104 U. S. 271, 26 L. ed. 742;
Haseltine v. Central Nat. Bank, supra;
The Georgia Code (1910) ^bntains the
following :
"Sec. 3426.— What is lawful interest.
The legal rate of interest shall remain
7 per centum per annum, where the rate
per cent is not named in the contract,
and any higher rate must be specified
in writing, but in no event to exceed
8 per cent per annum.
"Sec. 3427. — ^What is usury. Usury is
the reserving and taking, or contracting
to reserve and take, either directly or
by indirection, a greater sum for the use
of money than the lawful interest."
"Sec. 3436. — ^Beyond 8 per cent inter-
est forbidden. [112] It shall not be
lawful for any person, company, or cop-
l "Sec. 30. That every association may
take, receive, reserve, and charge on any
loan or discount made, or upon any note,
bill of exchange, or other evidences of debt,
Interest at the rate allowed bv the laws
of the state or territory where the bank is
located, and no more, except that where by
the* laws of any state a different rate is
limited for banks of issue organized under
state laws, the rate so limited shall be
allowed for associations organized in any
such state under this act. And when no
rate is fixed by the laws of the state or
territory, the bank may take, receive, re-
serve, or charge a rate not exceeding 7 per
centum, and such interest may be taken
in advance, reckoning the days for which
the note, bill, or other evidence of debt has
ta run. And the knowingly taking, receiv-
ing, reserving, or charging a rate of interest
greater than aforesaid shall be held and
adjudged a forfeiture of the entire interest
which the note, bill, or other evidence of
debt carrie>» with it. or which has l)een
agreed to be paid thereon. And in case a
greater rate of interest has been paid, the
person or persons paying the same, or their
64 I., ed.
legal representatives, may recover back, in
any action of debt, twice the amount of
the interest thus paid from the association
taking or receiving the same: Provided,
That such action is commenced within two
years from the time the usurious transac-
tion occurred. But the purchase, discount,
or sale of a bona fide bill of exchange, pay-
able at another place than the place of such
purchase, discount, or sale, at not more
than th^ current rate of exchange for si^t
drafts in addition to the interest, shall not
be considered as taking or receiving a great <
er rate or interest." 13 Stat, at L. 108,
chap. 106.
« "Rev. Stat. § 5136. Upon duly making
and filing articles of association and an
organization certificate, the association
shall become, as from the date of the execu-
tion of its prganization certificate, a body
corporate, and as such, and in the name
designated in the organization certificate,
it shall have power —
• •••••••
*'Seventh. To exercise by its board of
directors, or duly authorized officers or
agents, subject, to law, all such incidental
173
112, 113
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
poration to reserve, charge, or take for
any loan or advance of money, or for-
bearance to enforce the collection of any
sum of money, any rate of interest
greater than 8 per centum per annum,
either directly or indirectly by way of
commission for advances, discount, ex-
change, or by any contract or contrivance
or device whatever."
Construing these sections, in Logan-
ville Bkg. Co. v. Forrester (1915) 143 Ga.
302, L.R.A.1915D, 1195y 84 S. E. 961, the
Georgia supreme court held that charges
reserved in advance by a state bank at
the highest permitted rate of interest on
a loan, whether short or long time, con-
stitute usury, and said (p. 305) : '4f the
intent be to take only legal interest, a
slight and trifling excess, due to mis-
take or inadvertence, will not taint the
transaction with usury. . . . But if
the purpose be to take from the money
advanced, at the time of the loan, the
legal maximum rate of interest, the
transaction is an usurious one." Earlier
opinions by the court express a different
view of the same sections. In Macken-
zie V. Flannery (1892) 90 Ga. 590, 599,
16 S. E. 710, it is said : ^'Nor can we de-
termine, without reference to the evi-
dence, whether the taking of 8 per cent
interest in advance by way of discount
was usurious. Eight per cent was legal
If agreed upon in writing . . . and it
is well settled that the taking of interest
in advance on short loans in the usual
and ordinary course of business is not
usurious, if the interest reserved does not
exceed the legal rate." See also Union
Sav. Bank & T. Co. v. Dottenheim, 107
Ga. 606, 614, 34 S. E. 217; McCall v.
Herring, 116 Ga. 235, 243, 42 S. E. 468.
Petitioner maintains the loans in ques-
tion would have been usurious if made in
Georgia by an individual or a state bank,
and that the same rule applies notwith-
standing the lender happened to be a
national bank. Respondent insists that
the Federal act permits it to discount
short-time notes, reserving interest in ad-
vance at the maximum [113] interest
rate allowed by the state law, — ^in this
instance, 8 per centum.
In Fleckner v. Bank of United States,
8 Wheat. 338, 349, 354, 5 L. ed. 631,
633, 635, the charter of the Bank of the
United States inhibited it from taking
interest '^more than at the rate of 6 per
centum," and plaintiff claimed that by
deducting interest at the rate of 6 per
centum from the amount of a discounted
note, the bank received usury. Replying
to that point, this court, through Mr.
Justice Story, said: ''If a transaction
of this sort is to be deemed usurious, the
same principle must apply with equal
force to bank discounts generally, for
the practice is believed to be universal;
and probably few, if any, charters, con-
tain an express provision, authorizing.
powers as shall be necessary to carry on
the business of banking; by discMintihg and
negotiating promissory notes, drafts, bills
of exchange, and other evidences of debt;
by receiving deposits ; by buying and selling
exchange, coin, and bullion; by loaning
money on personal security; and by obtain-
ing, issuing, and circulating notes accord-
ing to the provisions of this title."
"Rev. Stat. § 5197. Any association may
take, receive, reserve, and charge on any
loan or discount made, or upon any note,
bill of exchange or other evidences of debt,
interest at the rate allowed by the laws of
the state, territory, or district wljiere the
bank is located, and no more, except that
where by the laws of any state a different
rate is limited for banks of issue organized
under state laws, the rate so limited shall
be allowed for associations organized or
existing in any such state under this title.
When no rate is fixed by the laws of the
state, or territory, or district, the bank may
take, receive, reserve, or charge a rate not
exceeding seven per centum, and such in-
terest may be taken in advance, reckon-
ing the days for which the note, bill, or
other evidence of debt has to run. And the
purchase, discount, or sale of a bona fide
bill of exchange, payable at another place
than the place of such purchase, discount,
176
or sale, at not more than the current rate of
exchange for sight drafts in addition to
the interest, shall not be considered as tak-
ing or receiving a greater rate of interest.
''Rev. Stat. § 6198. The taking, re-
ceiving, reserving, or charging a rate of
interest greater than is allowed by the
preceding section, when knowingly done,
shall be deemed a forfeiture of the entire
interest which the note, bill, or other evi-
dence of debt carries with it, or which has
been agreed to be paid thereon. In case
the greater rate of interest has been paid,
the person by whom it has been paid, or
his legal representatives, may recover back,
in an action in the nature of an action of
debt, twice the amount of the interest thus
paid from the association taking or receiv-
ing the s&me; provided such action is com-
menced within two years from the time the
usurious transaction occurred. [That suite,
actions, and proceedings against any asso-
ciation under this title may be had in any
circuit, district, or territorial court of the
United States held within the district in
which such association may be established,
or in any state, county, or municipal court
in the county or city in which said associa-
tion is located having jurisdiction in simi-
lar cases.]" Act Feb. 18, 1876, chap. 80,
18 Stat, at L. 320.
951 V. B.
1919.
EVANS V. NATIONAL BANK.
113-lla
in terms, the deduction of the interest
in advance upon making loans or dis-
counts. It has always been supposed
that an authority to discount, or make
discounts, did, from the very force of
the terms, necessarily include an author-
ity to take the intereet in advance. And
this is not only the settled opinion
among professional and c<^mmercial men,
but stands approved by the soundest
principles of legal construction. Indeed,
we do not know in what other sense the
word 'discount' is to be interpreted.
Even in England, where no statute au-
thorizes bankers to make discounts, it has
been solemnly adjudged that the taking
of interest in advance by bankers, upon
loans, in the ordinary course of business,
is not usurious." See also McCarthy v.
First Nat Bank, 223 U. S. 493, 499, 66
L. ed. 523, 525, 32 Sup. Ct. Rep. 240.
This view has been generally adopted.
Many supporting cases are collected in a
note to Bank of Newport v. Cook, 29
L.R.A. 761, and in 39 Cyc. 948 et seq.
•*The taking of interest in advance, up-
on the discount of a note in the usual
course of business by a banker, is not
usary. This has long been settled, and
is not now open for controversy." Tyler,
Usn^, 1872, p. 155. "That it is not
[11*] usury to discount commercial
paper in the ordinary course of business
is absolutely settled. This rule of law
arose out of custom and does not de-
pend upon statute." Webb, Usury,
1898, § 111.
Associations organized under the Na-
tional Bank Act are plainly empoleered
to discount promissory notes in the or-
dinary course of business. To discount,
ex vi termini, implies reservation of in-
terest in advance; and, under the an-
cient and commonly accepted doctrine,
when dealing with short-time paper such
a reservation at the highest interest rate
allowed by law is not usurious. Recog-
nizing prevailing practice in business
and the above-stated doctrine concern-
ing usury, we think Congress intended to
endow national banks with the power,
which banks generally exercise, of dis-
counting notes, reserving charges at the
highest rate permitted for interest. To
carry out this purpose, the National
Bank Act provides that associations or-
ganized under it may reserve on any dis-
count interest at the rate allowed by the
state ; and only when there is reservation
at a rate greater than the one specified
does the transaction become usurious.
The maximum interest rate allowed by
the Georgia statute is 8 per centum.
bank there located may charge upon dis-
counts; but its right to retain so much
arises from Federal law. The latter also
completely defines what constitutes the
taking of usuiy by a national bank, re-
ferring to the state law only to de-
termine the maximum permitted rate.
Affirmed.
Mr. Justice Pitney, with whom con-
curred Mr. Justice Brandeis and Mr.
Justice Clarke, dissenting:
I agree that in this case but one Fed-
eral question is properly presented for
our consideration, and that is whether
the National Bank of Savannah took
usury, [115] in violation of §§ 5197
and 5198, U. S. Rev. Stat. Comp. Stat.
§§ 9758, 9759, 6 Fed. Stat. Anno. 2d ed.
pp. 744, 747, when, in discounting short-
term notes in the ordinary course of
business at its banking house in the
state of Georgia, it knowingly reserved
in advance a discount at the rate of 8
per centum per annum, computed upon'
the face of such notes, when by the
laws of G^rgia this was not allowed to
be done by state banks of issue.
I agree that this question is to be de-
termined by the provisions of § 5197;
but, so far as it depends upon ascer-
taining the local rate of interest, we
must determine it according to the law
of the state of Georgia, because the cited
sections make that law the criterion. It
is settled that although the consequen-
ces of acoeptanee of usurious interest by
a national bank and the penalties to be
enforced are to be determined by the
provisions of the National Banking Act,
the ascertainment of the rate of interest
allowable is to be according to the state
law. Farmers & M. Nat. Bank v. Dear-
mg, 91 U. S. 29, 32, 23 L. ed. 196, 198;
Union Nat. Bank v. Louisville, N. A. &
C. R. Co. 163 U. S. 325, 331, 41 L. ed.
177, 178, 16 Sup. Ct. Rep. 1039 y Hasel-
tine V. Central Nat. Bank, 183 U. S. 132,
134, 46 L. ed. 118, 119, 22 Sup. Ct. Rep.
50.
The language of § 5197 is explicit. It
allows a national bank to ^^take, receive,
reserve, and charge on any loan or dis-
count made, or upon any note, bill of
exchange, or other evidences of debt,
interest at the rate allowed by the laws
of the state . . . where the bank is
located, and no more, except that where
by the laws of any state, a different rate
is limited for banks of issue organized
under state laws, the rate so limited
shall be allowed for associations organ-
ized or existing in any such state under
That marks the limit which a national this title. When no rate is fixed by the
«4 li. ed. 12 177
115-118
SUPREME COURT OF THE UNITED STATES.
Oct. Tesm,
laws of the state, . . . the bank may
take, receive, reserve, or charge a rate
not exceeding seven per centum, and
such interest may be takeh in advance,
reckoning the days for which the note,
bill, or other evidence of debt has to
run. . , ."
[116] I regard it as clear that by
"the laws of the state" is meant not
merely acts of legislation, much less a
particular act or section, or a particular
phrase in a single section. In order to
determine the point in controversy we
must take all applicable provisions of
the statutes as interpreted and con-
strued by the decisions of th^ court of
last resort, and from their combined
effect determine what is ^interest at the
rate allowed by the laws of the state.''
The pertinent statute law of the state
of Georgia is found in §§ 3426, 3427, and
3436 of the Code. The first of these de-
fines "what is lawful interest," and pre-
scribes 7 per centum per annum as the
legal rate where no rate is named in the
contract, and permits a higher rate to
be specified in writing, "but in no event
to exceed 8 per cent per annum." Sec-
tion 3427 defines usuiry as "reserving and
taking, or contracting to reserve ancf
take, either directly or by indirection, a
greater sum for the use of money than
the lawful interest." And § 3436 de-
clares: "It shall not be lawful for any
person, company, or corporation to re-
serve, charge, or take for any loan or
advance of money, or forbearance to en-
force the collection of any sum of money,
any rate of interest greater than 8 per
centum per annum, either directly or in-
directly by way of commission for ad-
vances, discount, exchange, or by any
contract or contrivance or device what-
ever."
I agree that under the decisions of
this court and the general current of
authori^3', the discounting of short-term
notes with a reservation of interest in
advance at the highest rate allowed by
statute is permissible in the absence of
special restriction. Fleckner v. Bank of
United States, 8 Wheat. 338, 349, 354,
5 L. ed. 631, 633, 635.
And I understand it to have been per-
mitted in Georgia prior to the recent de-
cision by the supreme court of that state
in Loganville Bkg. Co. v. Forrester, 143
[117] Ga. 302, L.R.A.1915D, 1195, 84
S. E. 961. See Mackenzie v. Flannery,
90 Ga, 690, 599, 16 S. E. 710; Union
Sav. Bank & T. Co. v. Dottenheim, 107
Ga. 606, 614, 34 S. E. 217; McCall v.
Herring, 116 Ga, 236, 24?, 42 S. E. 468.
The Forrester Case was decided April
178
13, 1915. The claim involved in the pres-
ent suit includes a series of transac-
tions, the first of which was on Novem-
ber 2, 1914, the last on October 18, 1915.
A majority of these were prior to the
decision in the Forrester Case ; and as to
them I agree that there was no violation
of the Federal statute.
With respect to the others, I have
reached a different conclusion. The case
was decided on a demurrer to plaintiff's
petition, in which it was alleged that de-
fendant (now respondent) knowingly re-
ceived and charged interest in excess of
the highest contractual rate allowed un-
der the laws of the state, specifying the
particular dates and amounts. This nec-
essarily imports a knowledge at the time
of each transaction as to what then con-
stituted the law of the state, supposing
such knowledge need be averred.
As to these later transactions, with
great respect for the views of my breth-
ren, I am constrained to dissent from the
opinion and judgment of the court be-
cause convinced that there is error in
holding without qualification that, since
the decision of the Forrester Case, 8 per
cent is the rate of interest allowed and
limited for state banks of issue by the
laws of the state of Georgia. It seems
to me erroneous to regard that decision
as merely defining usury and thus set-
tling what lawfully may be done by state
banks in respect of taking interest in
advance, and to ignore its effect, in com-
bination with the quoted sections of the
Code, as constituting the law of the state
which fixes the maximum rate of inter-
est for such banks, and therefore, under
§ 6197, United States Rev. Stat., estab«
lishes the limit for national banks lo-
cated in that state. Plainly, I think, the
purpose of Congress was [118] to
place national banks upon a precise
equality in this respect with banks of
issue organized under state laws, and
that where the local law places a higher
or a lower limit upon such banks of
issue than upon other lenders of money
the same limit should be imposed upon
the national banks.
The section has regard to substance,
not merely to form; and in determining
what is in substance the local rate of
interest it is fallacious, I submit, to re-
gard the multiplier only (say, 8 per cent)
and ignore the multiplicand, since both
factors have equal infiuence in producing
the result As in other cases of testing
state laws by a Federal standard, the
question is. What is the effect and opera-
tion of those laws, as construed and ap-
plied by the state court of last resort t
851 17. S.
lyl».
EVANS V. NATIONAL BANK.
118-1-20
The difference between the effect of
computing discount taken in advance ac-
^•ording: to the custom of bankers, by ap-
plying the allowed percentage to the
face of the note, — termed "bank dis-
oount/' — and the effect of deducting an
amount equivalent to exact interest on
the sum actually loaned, — termed "true
discount,'' — is very substantial, and is
recognized ii;i the standard interest and
discount tables, which contain computa-
tions on both bases. To illustrate by a
comparison: If interest at the rate of 8
per centum per annum be reserved in
advance and computed upon the face of
a three months' note, it amounts to
2.040*^ per cent for the period, or at the
rate of SJ.632 per centum per annum up-
on the* money loaned ; upon a six months'
note it amounts to 4.1667 per cent for the
period, or at the rate of 8.3333 per cen-
tum per annum; upon a nine months'
note, to 6.383 per cent for the period,
or at the rate of 8.511 per centum per
annum ; upon a one-year note it amounts
to 8.695 per cent.
The legal problem is precisely analo-
gous to that involved in comparing re-
spective burdens of taxation imposed up-
on different properties or classes of prop-
erty: [119] concerning which this
court has more than once held that a
law requiring that one class shall be
taxed at the "same rate of taxation"
paid by another requires that not only
the percentage of the rate, but the basis
of the valuation, shall be the same.
Oummings v. Merchants' Nat. Bank,
101 U. S. 163, 158, 162, 163, 26 L. ed.
W3, 905-907; Greene v. Louisville d;
Interurban R. Co. 244 U. S. 499, 616,
61 L. ed. 1280, 1288, 37 Sup. Ct. Rep.
673, Ann. Cas. 1917E, 88.
The laws of (Georgia do not prohibit
the taking of interest in advance by a
state h&nk; and they permit it to be
charged according to the usual course of
banking, with this qualification: that if
reserved in advance at the highest per-
centage, or at any percentage that has
the effect of yielding to the lender more
than at the rate of 8 per centum per an-
num upon the amount actually loaned,
it is usurious. This qualification, which,
since the decision of the Forrester Case,
must be deemed to be the law of Georgia,
has precisely the name effect as if it had
been inserted bv wav of an amending
proviso to § 3426 of the Code. That it
happens to arise from the construction
and iH[>plication of that section together
with §§ 3427 and 3436 by the state
«4 li. ed.
court of last resort can make no differ-
ence for present purposes.
The case before us comes squarely
within the principle of Citizens' Nat.
Bank v. Donnell, 195 U. S. 369, 373, 374,
49 L. ed. 238, 241, 242, 25 Sup. Ct. Rep.
49. There the question was whether a
national bank in Missouri had taken
usury contrary to §§ 5197 and 5198, U.
S. Rev. Stat., Comp. Stat. §§ 9758, 9759,
6 Fed. Stat. Anno. 2d ed. pp. 744, 747, in
taking interest computed at a percentage
less than the highest rate allowed by the
state law if agreed upon in writing, but
at the satoe time violating a state pro-
hibition against compounding interest
oftener than once a year. This court
held that the prohibition against fre-
quent compounding affected the "rate of
interest" within the meaning of those
words in § 5198, and that this section
was violated because the local prohibi-
tion was violated. I quote from the
opinion (p. 374) : "The rate of interest
which a man receives is greater when
[120] he is allowed to compound than
when he is not^ the other elements in
the case being the same. Even if the
compounded interest is less than might
be charged directly without compound-
ing, a statute may forbid enlarging the
rate in that way, whatever may be the
rules of the conmion law. The supreme
court of Missouri holds that that is
what the Missouri statute has done.
On that point, and on the question
whether what was done amounted to
compounding within the meaning of the
Missouri statute^ we follow the state
court. Union Nat. Bank v. Louisville,
N. A. & C. R. Co. 163 U. S. 325, 331,
41 L. ed. 177, 178, 16 Sup. Ct. Rep.
1039. Therefore, since the interest
charged and received by the plaintiff was
compounded more than once a year, it
was at a rate g^reater than was allowed
by U. S. Rev. Stat. § 5197, and it was
forfeited."
For these reasons I am convinced that
the respondent national bank, in know-
ingly discounting notes and reserving in-
terest at the rate of 8 per centum per
annum upon the face of the notes, in
violation of the limitation imposed by
the quoted sections of the Georgia Code
as construed by the supreme court of
that state in the Forrester Case, charged
more than "interest at the rate allowed
by the laws of the state," and that there-
fore the judgment in its favor ought to
be reversed.
17«
321
SUPREME COURT OF THE UNITED STATES.
Oct. Tebic^
[121] HENRY PETERS, Eugene Peters,
and ^tna Life Insurance Company, Plffs.
in Err.,
V.
NELLIE VEASEY, I Administratrix of the
Succession of Thomas Veasey, Deceased.
(See S. C. Reporter's ed. 121-123.)
•
Admiralty ^ exclnsiveness of Federal
jurisdiction « state Workmen's Com-
pensation Laws.
1. A state Workmen's Compensation
Ijfiw may not be applied to an injury sus-
tained prior to the enactment of the Act
of October 6, 1017, by a longshoreman while
he was unloading a vessel lying in navigable
waters, in view of the Judicial Code, §§ 24
and 256, giving Federal district courts ex-
clusive judicial cognizance of all civil
causes of adlniralty and maritime juris-
diction, saving to suitors in all cases the
right to a common-law remedy where the
common law is competent to give it.
[For otber cases, see Admiralty, I. b, 8, in
Digest Sup. Ct. 1008.]
Admiralty — exclusiveness off Federal
jurisdiction — state "Workmen's Com-
pensation Act — saving clanse — re-
troactive effect.
2. A cause of action accruing before the
enactment of the Act of Octol^r 6, 1017,
is not affected by the provision of that act
which amends the clauses of the Judicial
Code, §§ 24 and 256, giving Federal district
courts exclusive judicial cognizance of all
civil causes of admiralty and maritime
jurisdiction, saving to suitors in all cases
the right of a common-law remedy where
the common law was competent to give it,
b^ adding the words, **and to claimants the
rights and remedies under the Workmen's
Compensation Law of any state."
[For otber cases, see Admiralty, I. b. 8; Stat-
ates, II. V, in Digest Sup. Ct 1008.]
[No. 77.]
Argued and submitted November 14, 1010.
Decided December 8, 1010.
IN ERROR to the Supreme Court of the
State of Louisiana to review a judg-
ment which, on a rehearing, affirmed a
judgment of the Civil District Court of
the Parish of Orleans, in that state, in
favor of plaintiff in a suit tinder the state
Workmen's Compensation Act. Reversed
Qnd remanded for further proceedings.
See same case below, 142 La. 1012, 77
So. 948.
The facts are stated in the opinion.
1 Death of Thomas Veasey^ the defend-
ant in error herein, suggested, and appear-
ance of Nellie Veasey, as administratrix
of the succession of Thomas Veasey, de-
ceased, as the party defendant in error
herein, filed and entered November 10,
1010, on motion of counsel for the defend-
ant in error.
180
Mr. Gkorge Janvier argued the cause^
and, with Messrs. William C. Dufour^
Gnstave Lemle, A. A. Moreno, and
John St. Paul, Jr., -filed a brief for
plaintiffs in error:
The remedy of the LoHiBiana Work-
men's Compensation Act (it provides
compensation upon a prescribed scale
for injuries and deaths of epiployees^
without regard to fault) is a remedy
unknown to the common law, and inca-
pable of enforcement by the ordinary
processes of any court; and hence,,
prior to the amendment of October 6^
1917, to the Judicial Code, was not
among the common-law remedies which
are saved to suitors from the ezclosive
admiralty jurisdiction by the Judiciary
Act of 1879, § 9.
Southern P. Co. v. Jensen, 244 U. S.
207, 61 L. ed. 1086, L.R.A,1918C, 461,
37 Sup. Ct. Rep. 524, Ann. Cas. 1917E,
900, 14 N. C. C. A. 696.
Work performed by a stevedore on
board a ship unloading at a wharf in
navigable waters is maritime; his em-
ployment for such work and injuries
suffered in it are likewise maritime, and
the rights and liabilities arising from
such work, employment, and injuries are
clearly within the admiralty jurisdic-
tion.
Ibid.
If a cause is maritime in nature
admiralty is not deprived of the juris-
diction by the fact that the suit is one
in personam, and not in rem.
New Jersey Steam Nav. Co. v. Mer-
chants' Bank, 6 How. 344, 12 L. ed. 465 ;
Atlantic Transport Co. v. Imbrovek,
234 U. S. 62, 68 L. ed. 1208, 61 L.R.Al
(N.S.) 1167, 34 Sup. Ct. Rep. 733; CheU
entis V. Lackenbach S. S. Co. 247 U. S.
372, 62 L. ed. 1171, 38 Sup. Ct. Rep. 50L
The amendment adopted October 6,
1917, to §§ 24 and 256 of the Judicial
Code, is not retroactive.
Chelentis v. Luckenbach S. S. Co.
supra; Auffm'ordt v. Rasin, 102 U. S.
620, 26 L. ed. 262; McGeehan v. Burke,
Note. — On the jurisdiction of ad-
miralty over suit for injury to steve-
dore— see note to Atlantic Transport
Co. V. Imbrovek, 51 L.R.A.(N.S.) 1167.
On Workmen's Compensation Acts,
generally — see notes to Milwaukee v.
Miller, L.R.A.1916A, 123, and linnane
V. -^tna Brewing Co. L.R.A.1917D, 80.
On applicability of the Federal Em-
ployers' Liability Act or state Compen-
sation Acts to injuries within admiralty
jurisdiction — see note to Southern P.
Co. Y. Jensen, L.R.AJ.918C, 474.
951 V. 8.
1919.
PETERS V. VEASEY.
121, 122
37 La. Ann. 156; St. Louis Sonthwest-
ern R. Co. v. Purcell, 68 C. C. A. 211,
135 FecL 499; Coon v. Kennedy, 91 N.
J. L. 598, 103 Atl. 207.
Mr. Walter 8. Penfield submitted the
<*ause for defendant in error. Messrs.
Solomon Wolff, E. M. Stafford, F. B.
Freeland, and Howell Carter, Jr., were
on the brief:
A contract by which a stevedore em-
ploys i| longshoreman, and, in the course
of this employment, sends the long-
shoreman aboard a vessel to assist in
loading her, is not maritime in its
nature^ especially w.here, as in the in-
stant case, there is no allegation in the
petition that the accident was caused
by some negligence of the vessel, its
owner, officers, or crew.
. Campbell v. H. Hackfeld & Co. 62
C. C. A. 274, 125 Fed. 696.
The employment of the longshoreman
may have been as well for work on
shore as for work on the vessel, and
admiralty is without jurisdiction where
even a clearly maritime contract is so
inseparably connected with a contract
which is not maritime in its nature,
that one cannot be decided without the
other.
Turner v. Beacham, Taney, 583, Fed.
Cas. No. 14,252.
Admiralty has no jurisdiction over
preliminary contracts leading to mar-
itime contracts, irrespective of the
name given them.
The Tribune, 3 Sumn. 144, Fed. Cas.
No. 14,171.
The nature and character of the con-
tract of service decide whether they
are within the jurisdiction of admiralty,
and not the place of performance,
whether on land or on water.
Wortman v. Griffith, 3 Blatchf. 528,
Fed. Cas., No. 18,057.
It is error to contend that the place
of injury controls the rights of men.
That merely because one is injured on
board a vessel, admiralty alone affords
relief. It is not the place where the
accident haj^ened — it is the original
contract of employment which deter-
mines.
Northern Pacific S. S. Co. v. Hall
Bros. Marine R. & Shipbuilding Co. 249
U. S. 119, 63 L. ed. 510, 30 Sup. Ct.
Rep. 221.
Even if the courts of Louisiana were,
before the amendment of the Judicial
Code, without jurisdiction to entertain
the claim of the defendant in error, yet
where, by a change in the law; they be-
came seised of jurisdiction to entertain I
«4 I., cd.
it> they could decide the case, if it was
still pending undecided after jurisdic-
tion was acquired.
Simmons v. Hanover, 23 Pick. 188;
Bass V. Yazoo & M. Valley R. Co. 136
La. 528, 67 So. 355; Morgan's L. & T. R.
& S. S. Co. V. Railroad Commission, 138
La. 377, P.U;R.1916B, 356, 70 So. 332.
Where no remedy exists for an in-
jury in the admiralty courts, the fact
that such courts exist and exercise ju-
risdiction in other causes of action
leaves the state courts as free to exer-
cise jurisdiction in respect to an injury
not cognizable in the admiralty, as if
the admiralty courts were unknown to
the Constitution, and had no existence
in our jurisprudence.
American S. B. Co. v. Chase, 16 Wall.
522, 21 L. ed. 369.
*
Mr. Justice McBeynolds delivered the
opinion of the court:
In a proceeding under the Workmen's
Compensation Law of Louisiana (No. 20. .
La. Acts 1914), the supreme court of
that state affirmed a judgment against
plaintiffs in error and in favor of Veasey,
who claimed to have suffered injuries,
August 6, 1915, while employed by Henrv
[122] and Eugene Peters as a long-
shoreman on board the "Seria," then
lying at New Orleans. The steamer
was being unloaded. While upon her
and engaged in that work, Veasey acci-
dentally fell through a hatchway. 142
La. 1012, 77 So. 948.
A compensation policy in favor of
Peters, issued by the ^tna Life Insur-
ance Company, was in force when the
accident occurred.
The work in which defendant in error
was engaged is maritime in its nature;
his employment was a maritime con-
tract; the injuries which he received
were likewise maritime; and the rights
and liabilities of the parties in connec-
tion therewith were matters clearly with-
in the admiralty jurisdiction. In such
circumstances, the Workmen's Compen-
sation Law of the state had no applica-
tion when the accident occurred. At-
lantic Transport Co. v. Imbrovek, 234
U. S. 52, 59, 61, 58 L. ed. 1208, J211,
1212, 51 L.R.A.(N.S.) 1157, 34 Sup. Ct.
Rep. 733; Southern P. Co. v. Jensen, 244
U. S. 205, 217, 218, 61 L. ed. 1086, 1099,
L.R.A.19ldC, 451, 37 Sup. Ct. Rep. 524,
Ann. Cas. 1917E, 900, 14 N. C. C. A.
596.
Clause third, § 24, of the Judicial Code
[36 Stat, at L. 1091, chap. 231], confers
upon the district courts of the United
States jurisdiction **of all civil causes
181
122, 123
«l'PREME COURT OF THE UNITED STATES.
Oct. Teek
of admiralty and maritime jurisdictioji,
saving to suitors in all cases the right
of a common-law remedy where the com-
mon law is competent to give it/' Clause
third, § 266, provides that the jurisdic-
tion of the courts of the United States
shall be exclusive in "all civil causes of
admiralty and maritime • jurisdiction,
saving to suitors, in all cases, the right
of a common-law remedy, where the com-
mon law is competent to give it." By
an act approved October 6, 1917, chap.
97, 40 Stat, at L. 395, Comp. Stat. §§
991(3), 1233, Fed. Stat. Anno. Supp.
1918, pp. 401, 414, Congress directed that
both of these clauses be amended by in-
serting after "saving to suitors in all
cases the right of a common-law remedy
where the common law is competent to
give it," the words ^^and to claimants
the rights and remedies under the Work-
men's Compensation Law of any stateJ'
The court below erroneously concluded
that this act should be given retroactive
effect and applied in the [123] present
controversy. There is nothing in the
language employed, nor is there any
circumstance known to us, which indi-
cates a purpose to make the act appli-
cable when the cause of action arose be-
fore its passage; and we think it must
not be so construed.
The judgment of the court below is
reversed and the cause remanded for
further proceedings not inconsistent with
this opinion.
Reversed.
Mr. Justice Brandeis and Mr. Justice
Clarke dissent.
KEW YORK, NEW HAVEX, & HART-
FORD RAILROAD COMPAXY, Appt.,
V.
UNITED STATES.
(See 8. C. Reporter's ed. 123-127.)
Postoffioe^ compensation for carrying
mails « weigliinK.
1. Payments to a railway company for
carrying the mails during each four-year
term upon the basis of weights taken im-
mediately prior to the beginning of such
term instead of annually must be deemed to
satisfy the requirement of U. S. Rev. Stat.
§ 4002» that payment of specified sums per
mile be made per annum according to
weights, since sucm action accords with prior
practice followed for manv years, and was
permitted by the letter oi the statute, the
carrier having submitted with full knowl-
edge.
fFor other cases, see Postoffice, IV. c. In Di-
jfest Sup. Ct. 1008.1
182
Postoffice « carrying mails » duty of
railway carrier.
2. Prior to the Act of Ju\y 28, 1916,
railroads — with the exception of certain
roads aided by land grants — were not re-
quired by law to carry the maila.
[For other cases, see Postoffice, IV. a. In Di-
gest Sap. Ct. 1908.]
Postoffice ^ compensal Ion for carrjrlng
mails « corapulsion « Implied con*
tract.
3. A railway company which volun-
tarily accepts and performs mail transpor-
tation service, with knowledge of what the
United States intends to pay, cannot re-
cover any greater compensation, even though
it might nave been driven to perform the
service for an inadequate compensation by
the fear that a refusal would incur the
hostility of persons living along its line,
since this does not amount to compulsion
by the United States, and cannot constitute
the basis of a justiciable claim against it
for taking property for public use under
an implied contract to maKe adequate com-
pensation.
[For other cases, see Postoffice, IV. c. In Di-
gest Sup. Ct. 1908.]
[No. 74.]
Argued May 2, 1919. Decided December 8,
1919.
APPEAL from the Court of Claims to
review a judgment dismissing on de-
murrer a petition claiming increased
compensation for carrying the mails.
Af&rmed.
See same case below, 53 Ct. CI. 222.
The facts are stated in the opinion.
Messrs. Edward G. Bnckland and S.
S. Ashbang^ argued the cause, and,
with Mr. Arthur P. Russell, filed a brief
for appellant:
Carrying the mails is compulsory
when this service is called for under
the law by the Postmaster General.
Re Debs, 158 U. S. 577, 39 L. ed. 1100,
15 Sup. Ct. Rep. 900; Searight v.
Stokes, 3 How. 151, 169, 11 L. ed. 537,
546; Bankers' Mut. Casualty Co. v.
Minneapolis, St. P. & S. Ste. M. R. Co.
65 L.R.A. 397, 54 C. C. A. 608, 117 Fed.
434; Union P. R. Co. v. United States,
134 C. C. A. 325, 219 Fed. 427; Great
Northern R. Co. v. United States, 149
C. C. A. 485, 236 Fed. 433; Union P. R.
Co. V. United States, 104 U. S. 662, 26
L. ed. 884; Atchison, T. & S. F. R. Co.
V. United States, 225 U. S. 640, 56 L. ed.
1236, 32 Sup. Ct. Rep. 702; Chicago &
N. W. R. Co. V. United States, 104 U. S.
686, 26 L. ed. 893; Chicago, M. & St. P.
R. Co. V. United States, 104 U. S. 687,
26 L. ed. 893; Eastern R. Co. v. United
States, 129 U. S. 392, 32 L. ed. 731, 9
Sup. Ct. Rep. 320; Chicago, M. & St. P.
251 t:. s.
1919.
NEW YORK, N. H. & U. R. CO. v. UXITED STATES.
126, 127
R. Co. V. United States, 198 U. S. 385,
49 L. ed. 1094, 25 Sup. Ot. Bep. 665.
The elaimant has not by performance
waived any right to demand pay for the
true weight of mail carried each year.
The statute cannot be waived.
Union P. B. Co. v. United States, 104
U. S. 664, 26 L. ed, 885.
It cannot be held that parcel post
packages can be added after July 1,
1913, to the amount of mail carried by
claimant, as. ascertained by a weighing
in the fall of 1912. This new matter
taken from freight and express cannot
he added by virtue of the words "sub-
ject to future orders,'' as found in the
notice of adjustment dated November
13, 1913, so as to bring it within tj^e
decision in Eastern B. Co. v. United
States, 129 U. S. 391, 32 L. ed. 730, 9
Sup. Ct. Bep. 320.
Assistant Attorney Ckneral Brown
.-argued the cause and filed a brief for
appellee:
This case is another of a long series
which have arisen from the efforts of
the railroad companies to secure in-
creased compensation for carrying the
mails, and in which it has been sought
by one argfument or another to escape
the limitations of the Statute of 1873
and its amendments, and the effect of
the practice which grew up under it.
It would serve no useful purpose to re-
view or even to list all of these cases,
but it is interesting to notice that the
point of compulsion here relied upon
was involved in the following cases de-
cided by this court:
Union P. B. Co. v. United States, 104
U. S. 662, 665, 26 L. ed. 884, 885; East-
em B. Co. v. United States, 129 U. S.
391, 32 L. ed. 730, 9 Sup. Ct. Bep. 320;
Chicago, M. & St. P. B. Co, v. United
States, 198 U. S. 385, 389, 49 L. ed.
1094, 1095, 25 Sup. Ct. Bep. 665; Atchi-
son, T. & S. F. B. Co. V. United States,
225 U. S. 640, 56 L. ed. 1236, 32 Sup. Ct.
Bep. 702; Delaware, L. & W. B. Co. v.
United States, 249 U. S. 385, 63 L. ed
659, 39 Sup. Ct. Bep. 348.
The appellant voluntarily performed
the service.
Atchison, T. d; S. F. B. Co. v. United
States, 225 U. S. 640, 56 L. ed. 1236, 32
Sup. Ct. Bep. 702; Eastern B. Co. v.
United States, 129 U. S. 391, 32 L. ed.
730, 9 Sup. Ct. Bep. 320; Delaware, L.
&. W. R. Co. V. United States, supra.
A promise will not be held to be im-
plied in fact which is contrary- to the
expressed intention of the parties.
Earle v. Coburn, 130 Mass. 596; Co-
• 4 L. ed.
lumbus, H. V. d; T. B. Co. v. Gaffnev,
65 Ohio St. 104, 61 N. E. 152; Municipal
Waterworks Co. v. Ft. Smith, 216 F^d.
431.
The question being merely one of the
meaning of the statute, there is a plain
case for the application of the familiar
rule as to the acceptance of long-con-
tinued departmental construction, not
itself plainly erroneous, and impliedly
sanctioned by the re-enactment of the
statute.
New York, N. H. d; H. B. Co. v. In-
terstate Commerce Commission, 200 U.
S. 361, 401, 50 L. ed. 515, 525, 26 Sup.
Ct. Bep. 272.
Mr. Justice McResmolds delivered the
opinion of the court:
Appellant sued the United States to
recover the difference between amounts
received through the Postoffice Depart-
ment and what it claims should have
been paid for its services in carrying the
mails during a series of years, ending
June 30, 1914. The demand is based
upon implied contracts alleged to arise
from the following circumstances : First.
Acceptance and transportation of the *
mails in reliance upon § 4002, Bevised
Statutes (Comp. Stat. § 7483, 8 Fed.
Stat. Anno. 2d ed. p. 195), as amended.
This directs payment of specified sums
per mile per annum according to weights ;
and the claim is that because the Post-
office Department improperly construed
and applied it, appellant received much
less than it should have. Second. Ac-
ceptance and transportation of the mails
under orders and coercion of the Post-
office Department, followed by failure
to allow reasonable compensation there-
for. Appellant claims its property was
taken for public use and adequate com-
pensation must be paid.
Concerning the challenged interpre-
tation and application of § 4002, Bevised
Statutes, resulting in payments during
each four-year term upon the basis of
weights taken [127] immediately prior
to the beginning of the same instead of
annually, it suffices to say that the ac-
tion taken accords with prior practice
followed for many years; the letter of
the statute permits it; the carrier sub-
mitted with full knowledge; and, impli-
edly, at lea^t, it was sanctioned by this
court in Delaware, L. & W. B. Co. v.
United States, 249 U. S. 385, 63 L. ed.
659, 39 Sup. Ct. Bep. 348.
We think it must be treated as settled
doctrine that, prior to the Act of July
28, 1916, chap. 261, 39 Stat, at L. 412,
429, — with the exception of certain roads
127. 128
SUPREME COURT OF THE UNITED STATES.
Oct. Tekm,
aided by land grants, — railroads were not
required by law to carry the mails.
Eastern R. Co. v. United States, 129 U.
S. 391, 394, 32 L. ed. 730, 731, 9 Sup.
Ct. Rep.. 320; Atchison, T. d; S. F. R.
Co. V. United States, 225 U. S. 640, 650,
56 L. ed. 1236, 1239, 32 Sup. Ct. Rep.
702 ; Delaware, L. d; W. R. Co. v. United
States, supra. And as appellant volun-
tarily accepted and performed the serv-
ice with knowledge of what the United
States intended to pay, it cannot now
claim an implied contract for a greater
sum. It may be that any railroad, by
failing to carry the mails, would incur
the hostility of those living along its
lines, and as a consequence suffer serious
financial losses; but the fear of such re-
sults certainly does not amount to com-
pulsion by the United States, and cannot
constitute the basis of a justiciable claim
against them for taking property.
The Court of Claims (53 Ct. CL 222)
dismissed the petition upon demurrer,
and its judgment is affirmed.
Mr. Justice Brandeis dissents.
[1281 UNITED STATES, Appt.,
V.
BOARD OP COUNTY COMMISSIONERS
OF OSAGE COUNTY, OKLAHOMA, et
al.
(See S. C. Reporter's ed. 128-134.)
Indians « status — United States as
guardian — exhanstlng power.
1. The United States did not exhatist
its power as the protector and guardian of
the Osage Indians, hy the enactment of the
provisions of the Act of June 28, 1906, for
the division of the Indian property, so as
no longer to have as to them any mission
or authority.
[For other cnnen, see Indians, I. in Digest
Sap. Ct. 1008.]
United States — salt by Federal officers
— illegal taxation of Indian lands.
2. Notwithstanding the subjection to
state taxation of the surplus lands of the
noncompetent Osage Indians which was ef-
fected by the Act of June 28, 1906, author-
ity exists in the officers of the United States
to invoke judicial relief against the en-
forcement of state tax assessments against
such lands which are asserted to be based
upon systematic, arbitrary, grossly exces-
sive, discriminatory, and unfair valuations
which amount to a perversion of the state
laws, committed in order to defeat the prop-
erty rights conferred liy the Federal stat-
ute.
[For other cases, see United States, IV. a, in
Digest Sup. Ct. 1908.]
Injunction ^ illegal taxation « multi-
plicity of salts — remedy at law.
3. The remedies afforded to individuals
under the state law to correct errors in as-
sessing taxes do not defeat the right of
the United States, through its officers, to
intoke equitable relief against the enforce-
ment of state tax assessments on the sur-
plus lands of noncompetent Osage Indiana
which are asserted to be based upon syste-
matic, arbitrary, grossly excessive, discrim-
inatory, and unfair valuations which
amount to a perversion of the state laws,
committed in order to defeat the property
rights conferred by the Act of June 28,
1906, since the interposition of a court of
equity to prevent the wrong complained of
was essential in order to avoid a multiplier
ity of suits, and, in addition, such wrone
was not a mere mistake or error committed
in the enforcement of the state tax laws.
[For other cases, nee Injunction, I. k, in
Digest Sup. Ct. 1908.]
[No. 309.]
Argued April 16, 1919. Decided Decem-
ber 16, 1919.
APPEAL from the United States Cir-
cuit Court of Appeals for the Eighth
Circuit to review a decree which affirmed
a decree of the District Court for the
Western District of Oklahoma, dismiss-
ing the bill in a suit by the United States
to enjoin the enforcement of state taxa-
tion of surplus lands of noncompetent
Osage Indians. Reversed and remanded
for farther proceedings.
See same case below, 166 C. C. A. 128,
254 Fed. 570.
The facts are stated in the opinion.
Note. — On rights and status of Indi-
ans— see note to Worcester v. Georgia,
8 L. ed. U. S. 484.
As to enforceability of rights of In-
dians in courts of justice — see note to
Missouri P. R. Co. v. Cullers, 13 L.R.A.
542.
As to exemption of Indian lands from
taxation — see note to Allen County v.
Simons, 13 L.R.A. 512.
On injunction to restrain collection of
illegal taxes — see notes to Odlin v.
Woodruff, 22 L.R.A. 699; Dows v. Chi-
181
c&go, 20 L. ed. U. S. 65; and Ogden v.
Annstrong, 42 L. ed. U. S. 445.
On jurisdiction of equity where rem-
edy at law exists — see notes to Meldrum
V. Meldrum, 11 L.R.A. 65; Delaware, L.
& W. R. Co. V. Central Stock Yards &
Transit Co. 6 L.R.A. 855; and Tyler v.
Savage, 36 L. ed. U. S. 83.
As to right to enjoin acts under an
unconstitutional statute' as affected by
other remedies in case such acts are
done — see note to Harley v. Lindemann,
8 L.R.A.(N.S.) 124.
851 U. S.
31)19.
UNITED STATES v. OSAGE COUNTY.
12U
Mr. Leslie 0. Garnett argued the
cause, and, with Solicitor General King,
filed a brief for appellant: ,
The United States has capaeity ^o
nmintain this suit, and the right to sue
in its own courts.
Brader v. James, 246 XT. S. 88, 96, 62
L. ed. 591, 696, 38 Sup. Ct. Rep. 285;
Hickman v. United States, 224 U. S.
413, 441, 66 L. ed. 820, 831, 32 Sup. Ct
K«p. 424; Levindale Lead io Zinc Min.
Co. V. Coleman, 241 U. S. 432, 60 L. ed,
1080, 36 Sup. Ct Rep. 644; United
States V. Rickert, 188 U. S. 432, 47
L. ed. 532, 23 Sup. Ct Rep. 478.
There is no Talid statute affording
adequate relief.
Re Hickman, — Okla. —, 162 Pac.
176; Smith v. Garvin County, — Okla.
— , 162 Pac. 463; Union P. R. Co. v.
Weld County, 247 U. S. 282, 62 L. ed.
1110, 38 Sup. Ct Rep. 510.
The case comes within the recognized
heads of equity jurisdiction.
Cummings v. Merchants' Nat. Bank,
101 U. S. 153, 25 L. ed. 903; Dows v.
Chicago, 11 Wall. 108, 112, 20 L. ed, 65,
67.
Equity has jurisdiction in this case to
avoid a multiplicity of suits.
Smyth V. Ames, 169 U. S. 466, 516, 42
L. ed. 819, 838, 18 Sup. Ct Rep. 418;
United States v. Rickert, 188 U. S. 432,
47 L. ed. 532, 23 Sup. Ct Rep. 478.
Equity has jurisdiction in this case to
remove the cloud upon the title to these
lands, occasioned hy the lien of the ille>
^a\ tax, and to restrain irreparable in-
jury.
Ohio Tax Cases, 232 U. S. 676, 687, 58
L. ed. 737, 743, 34 Sup. Ct Rep. 372.
Where the taxing offtcers, in enforc-
ing a valid assessment, are guilty of an
intentional and systematic discrimina-
tion against a class of property, with in-
tention of imposing upon that class of
property an undue burden of taxation,
equity will afford relief.
Greene v. Louisville io Interurban R,
Co. 244 U. S. 499, 617, 61 L. ed. 1280,
1289, 37 Sup. Ct. Rep. 673, Ann. Cas.
1917E, 88; Lacy v. McCaflferty, 131 C.
C. A. 494, 216 Fed. 364; Taylor v.
Louisville & N. R. Co. 31 C. C. A. 637,
60* U. S. App. 166, 88 Fed. 360.
3Ir. Preston A. Shinn argued the
«ause, and, with Mr. Corbett Comett,
filed a brief for appellees:
The United States is not a proper
party plaintiff, because Congress, the
on]y body authorized to speaJs, for the
plaintiff, has emancipated the Osag^ In-
dians and their surplus lands, for the
64 li. ed.
purposes of taxation, from government-
al control.
United States v. Osage County, 193
Fed. 486, 133 C. C, A, 87, 216 Fed. 883;
United States v. Waller, 243 U. S. 452,
61 L. ed. 843, 37 Sup. Ct Rep. 430; Mc-
Curdy v. United States, 246 U. S. 263,
62 L. ed. 706, 38 Sup. Ct Rep. 289.
The United States and each member
of the Osi^e tribe of Indians had a
plain, speedy, adequate, and complete
remedy at law, and the bill of complaint
is without equity.
Pittsburgh, C. C. d; St. L. R. Co. v.
Board of Public Works, 172 U. S. 38,
39, 43 L. ed. 366, 367, 19 Sup. Ct. Rep.
90; Garfield County v. Field, — Okla.
— , 162 Pac. 733; Atchison, T. & S. F.
R. Co. V. Eldredge, — Okla. — , 166 Pac.
1085; Huckins Hotel Co. v. Oklahoma
County, — Okla. — , 166 Pac. 1043;
Canadian County v. Tinklepaugh, 49
Okla. 440, 152 Pac. 1119.
[120] Mr. Chief Justice White de-
livered the opinion of the court:
Although the subject was fully stated
in McCurdy v. United States, 246 U. S.
263, 62 L. ed. 706, 38 Sup. Ct. Rep. 289,
nevertheless, to throw light on this case,
we recall the facts concerning the dis-
tribution of the land and funds of the
Osage Tribe of Indiians, made under the
Act of Congress of June 28, 1906, 34
Stat, at L. 539, chap. 3572.
Of the tribal land there were reserved
from allotment certain parcels, some of
which were used by the United States or
the tribe and others of which were used
by individuals for the benefit of the
tribe. From the remainder, each mem-
ber was allotted three tracts of 160 acres
each, of which one was to be designated
and held as a homestead. Any land
which remained was also to be allotted.
The funds in trust in the hands of the
United States were divided pro rata, to
be held subject to the supervision of the
United Statea The oil, gas, coal, and
other mineral rights in all the lands were
reserved for the benefit of the tribe. The
tract selected as a homestead was made
inalienable and nontaxable, subject to
the action of Congress. The land em-
braced by other than the homestead al-
lotment, called surplus land, was made
inalienable for a period of twenty-five
years and nontaxable for three, subject
to the action of Congress. Power was
conferred, however, on the Secretary of
the Interior, to g^ve to the allottee a
certificate of competency, upon receipt
of which the surplus land held by such
185
:2y-i32
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
an alioitee became immediately alien-
able and taxable.
Tn September, 1917, the United States
district attorney for the district of Okla-
homa, by direction of the Attorney Gen-
eral, commenced this suit in the name
of the United States, for the benefit of
named noncompetent members of the
Osage Tribe and of all other members
[130] in the same situation, to prevent
the enforcement of state and local
taxes assessed against the surplus, al-
though taxable, lands of s^id Indians
for the eight years between 1910 and
1917, inclusive.
The defendants were the Board of
County Commissioners of Osage County,
including the county clerk and county
treasurer, officials charged by the laws
of the state with the enforcement of the
taxes which were assailed. After aver-
ring the existence of authority in the
United States, in virtue of its guardian-
ship of the Indians, and as a result of
the terms of the Allotment Act, to pro-
tect and safeguard the interests of the
Indians from the enforcement of the il-
legal taxes complained of, the bill
charged that the taxes in issue were
"arbitrary, grossly excessive, discrimina-
tory, and unfair, and were made in vio^
lation of the rights of the said Osage
Indians g^uaranteed by the Constitution
of the United States and the Constitu-
tion of the state of Oklahoma; . . .
that the State Board of Equalization
arbitrarily and systematically increased
the assessments on such Indian lands
for the year 1911 to an amount approxi-
mately nearly double the original amount
of such assessments. . . ." It was
averred that the tax assessment^ made
on the Indian lands involved "were made
without an inspection or examination of
the land . . . that the said appraisers
in making such appraisements discrimi-
nated against the lands of the Osage In-
dians as a class and systematically over-
valued the same and systematically un-
dervalued other proj>erty in said county;
. . . that the assessments so made by
said assessors were made in such an ar-
bitrary and capricious manner as to
amount to constructive fraud upon the
taxpayers, and that the overvaluations
made by said assessors were so grossly
excessive as to justify the interference
of a court of equity; . . ." It was
alleged that the assessments complained
of were of such a character that the
[131] Secretary of the Interior had
endeavored to have them corrected, but
without result; that, in consequence of
his having called the attention of Con-
186
gress to the subject, the Act of March
2, 1917 [39 Stat, at L. 983, chap. 146],
was passecl, authorizing an appraise-
ment by the said Secretary for the pur-
pose of fixing the extent of the over-
assessment, and that such appraisement,
which had been virtually completed,
sustained the charges set forth in the
bUl.
There was annexed to the bill a state-
ment of the result of the appraisement
in thirty-six cases as compared with the
assessments complained of. In one case
it was alleged that the land of the In-
dian was assessed at $20 an acre, al-
though by the affidavit of the county
clerk it was shown that it was worth $3
per acre. In another case it was alleged
that, for the purpose of taxation, the
land was shown to be overvalued by 119
per cent. It was further averred that
an offer had been made through the Sec-
retary of the Interior to pay all the taxes
assessed for all the years assailed upon
the basis of the assessment made as the
result of the act of Congress, but that
the same had been refused, and that
process for the sale of the lands for de-
linquent taxes was inmiediately threat-
ened. The prayer was for relief by
injunction as against the illegal assess-
ments and for action by the court, look-
ing to a payment of all delinquent taxes
due by noncompetent Osage Indians on
the basis of the appraisement made un-
der the act of 'Congress.
On motion the court dismissed the bill
on the ground ^'that the lands involved
were by the act of Congress, approved
June 28, 1906, declared subject to taxa-
tion, and that the plaintiff has no inter-
est in said lands, and has no duty or
authoritv to contest the taxes thereof, or
the sale of said lands for unpaid taxes^
. . .'' On appeal the decree was af-
firmed on the ground that, as the state
law afforded adequate means to the Unit-
ed States and the noncompetent Indians
to correct errors in assessing [132]
taxes, if any, there was no basis for in-
voking relief from a court of equity.
The argument here is exclusively
directed to two grounds: the one en-
forced by the trial court and the other
sustained by the court below. The first,
however, is in argument here expanded
into two points of view, since it chal-
lenges not only the authority of the offi-
cers of the United States to bring the
suit, but the power of the United States
\o authorize them to do it. So far as the
latter aspect is concerned, it proceeds up-
on the assumption that, by the Act of
1906, the United States exhausted its
251 XT. S.
1919.
UNITED STATES v. OSAGE COUNTY.
132-134
power as the protector and guardian of
the Osa^ Indians, and as to them had
no longer any mission or authority what-
ever. We pass from this contention
-without further notice, as it is so obvi-
ously opposed to the doctrine upon the
subject settled from the beginning, and
so in conflict with the terms of the act
of Congress, that nothing more need to
be said concerning it. As to the first
point of view, the proposition is this:
That as the Act of 1906 subjected the
surplus lands to taxation, it therefore
brought them under the taxing laws of
the state; and, it is insisted, that having
been so brought, it results that until
Congress otherwise provides, there exists
no. lawful authority in an officer of the
United States to act in the name of the
United States for the poi^se of attack-
ing the legality of a tax levied upon said
lands under the laws of the state. But
although the premise upon which the
argument proceeds be admitted, that is,
that in subjecting the lands to state
taxation it was the purpose of Congress
to subject them to the methods of levy-
ing and collecting thd taxes provided by
state law, including the remedial proc-
esses for the- correction of errors, we fail
to understand what relation that conces-
sion can have to the case in hand, since,
on the face of the pleading^, the action
taken by the United States was not to
frustrate the act of Congress by pre-
venting the operation of the state [133]
law, but to prevent the systematic viola-
tion of the state law, committed for the
purpose of destroying the rights created
by the act of Congress. The argument
therefore disregards the foundation for
the relief sought, and proceeds upon the
assumption that the exertion of power to
prevent a perversion of state laws made
to defeat the rights which the act of
Congress gave is to be treated as a vio-
lation of the act of Congress and a re-
fusal to apply the state law.
Certain is it that as the United States,
as guardian of the Indians, had the duty
to protect them from spoliation^ and,
therefore, the right to prevent their
being illegally deprived of the property
rights conferred under the Act of Con-
gress of 1906, the power existed in the
officers of the United States to invoke
relief for the accomplishment of the
purpose stated. Indeed, the Act of Con-
gress of 1917, providing for the appraise-
ment of the lands in question, by neces-
sary implication, if not in express terras,
treated the power of the officers of the
United States to resist the illegal assess-
ments as undoubted.
64 li. ed.
And the existence of power in the
United States to sue which is thus es-
tablished disposes of the proposition
that, because of remedies afforded to in-
dividuals under the state law, the au-
thority of a court of equity could not be
invoked by the United States. This nec-
essarily follows because, in the first
place, as the authority of the United
States extended to all the noncompetent
members of the tribe, it obviously re-
sulted that the interposition of a court
of equity to prevent the wrong com-
plained of was essential in order to
avoid a multiplicity of suits (see Union
P. R. Co. V. Cheyenne (Union P. R. Co.
V. Ryan) 113 U. S. 516, 28 L. ed. 1098,
6 Sup. Ct. Rep. 601; Smyth v. Ames, 169
U. S. 466, 517, 42 L. ed.. 819, 838, 18
Sup. Ct. Rep. 418; Cruickshank v. Bid-
well, 176 U. S. 73, 81, 44 L. ed. 377, 381,
20 Sup. Ct. Rep. 280 ; Boise Artesian Hot
& Cold Water Co. v. Boise City, 213 U.
S. 276, 283, 53 L. ed. 796, 798, 29 Sup.
Ct. Rep. 426; Greene v. Louisville & In-
terurban R. Co. 244 U. S. 499, 506, 61
L. ed. 1280, 1285", 37 Sup. Ct. Rep. 673.
Ann. Cas. 1917E, 88) ; in the second
place, because, as the wrong relied upon
was not a mere mistake or error [134]
committed in the enforcement of the
state tax laws, but a systematic and in-
tentional disregard of such laws by^ the
state officers for the purpose of destroy-
ing the rights of the whole class of non-
competent Indians who were subject to
the protection of the United States, it
follows that such class wrong and dis-
regard of the state statute gave rise
to the right to invoke the interposition
of a court of equity in order that an
adequate remedy might be afforded
(Cummings v. Merchants' Nat. Bank,
101 U. S. 153, 25 L. ed. 903; Regan
V. Farmers' Loan & T. Co. 154 U. S.
362, 390, 38 L. ed. 1014, 1021, 4 Inters.
Com. Rep. 560, 14 Sup. Ct. Rep. 1047;
Pittsburgh, C. C. & St. L. R. Co. v.
Backus, 154 U. S. 421, 38 L. ed. 1031, 14
Sup. Ct. Rep. 1114; Coulter v. Ijouis-
ville & N. R. Co. 196 U. S. 599, 49 L.
ed. 615, 25 Sup. Ct. Rep. 342; Raymond
V. Chicago Union Traction Co. 207 U.
S. 20, 52 L. ed. 78, 28 Sup. Ct. Rep. 7,
12 Ann. Cas. 757; Greene v. Louisville
& Interurban R. Co. 244 U. S. 499, 507,
61 L. ed. 1280, 1285, 37 Sup. Ct. Rep.
673, Ann. Cas. 1917E, 88). In fact, the
subject is fullv covered by the ruling in
Union P. R. Co. v. AVeld County, 247 U.
S. 282, 62 L. ed. 1110, 38 Sup. Ct. Rep.
510.
Reversed and remanded for further
proceedings in conformity with this
opinion.
187
SUPREME COURT OF THE UNITED STATES.
Oct. Tebh,
FRANK A. BONE, Petitioner,
V.
COMMISSIONERS OF MARION
COUNTY.
(See S. C. Reporter's ed. 134-145.)
Patents — novelty — foreign publica-
tion.
1. Patentable novelty cannot be assert-
ed for a device which has been described
in foreign printed publications.
[For other cases, see Patents, V. d, in Di-
gest Sup. Ct. 1908.]
Patents — novelty — anticipation —
Infringement.
2. In view of the prior art, the only
originality that can be accorded to the Bone
patent, number 705,732, for a steel rein-
forced concrete retaining wall with a heel
and toe at the base, so constructed that the
weight of the retaining material upon the
heel of the inclosed metal structiure will
operate to retain the wall in a vertical posi-
tion, is in its special form, and there can
be no infringement except by a copv of that
form or a colorable imitation of it.
[For othier cases, see Patents, V. d; V. e:
XIV. a. In Digest Sup. Ct. 1908.]
[No. 63".]
Argued November 11, 1919. Decided De-
cember 15, 1919.
ON WRIT 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 the District of Indiana, dis-
missing the bill in a patent infringement
suit. Affirmed.
See same case below, 161 C. C. A. 247,
249 Fed. 211.
The facts are stated in the opinion.
Mr. Clarence E. Mehlhope argued the
cause, and, with Mr. Arthur H. Ewald,
filed a brief for petitioner.
Mr. V. H. Lockwood argued the cause
and filed a brief for respondents:
It has been the common practice in
every unskilled occupation to strength-
en the unstable parts of any structure
with reinforcing iron, and in this only
mechanics, and no invention, are in-
volved.
€rouch V. Roemer, 103 U. S. 797, 26
L. ed. 426; Star Bucket Pump Co. v,
Butler Mfg. Co. 198 Fed. 863.
Note. — ^As to foreign patents and
their effect — see note to Grant v. Wal-
ter, 37 L. ed. U. S. 553.
On anticipation of patents; prior pat-
ents and publication — dee note to Leg-
arett V. Standard Oil Co. 37 L. ed. U. S.
737.
188
Placing a brace in the framework of
a machine to enable it to stand up to
its work is not invention.
W. F. & John Barnes Co. v. Van Dyek
Churchill Co. 130 C. C. A. 300, 213 Fed.
636.
In fact, bracing in so many ways is
of such common use in machines, that,
if the necessity of having a brace in
any piece of mechanism is established,
any person skilled in the art could read-
ily introduce it, and without invention.
Rose Mfg. Co. V. E. A. Whitehouae
Mfg. Co. 201 Fed. 928.
Reinforcing the sides of a corrugated
board box by wooden veneer or any
other reinforcing ' is not invention.
Re Ferres, 192 Off. Gaz. 745.
Where it has been customary to place
a large number of short rods in a large
concrete structure at the point of great
tension and where it will wear, th^ is
no invention in using continuous rods
located at such point.
Re Luten, 170 Off. Gaz. 246.
It has been held not to be invention
to make the part of a bicycle frame
which receives the gear strain of the
pedal shaft, strong enough to withstand
that strain.
Pope Mfg. Co. V. Arnold, S. d; Co. 113
C. C. A. 517, 193 Fed. 652.
A mere enlargement of a shoulder
pad to *enable it to do its work is not
invention, any more than strengthening
it would be.
Schweichler ▼. Levinson, 78 C. C. A.
92, 147 Fed. 708.
A device made or disclosed before the
patent anticipates that patent if such
device would infringe the patent when
made later than the patent.
Knapp V. Morss, 150 U. S. 221, 37
L. ed. 1059, 14 Sup. Ct. Rep. 81.
The courts have not looked with
much favor upon the patents g^ranted
for concrete constructions reinforced by
bars, as will appear from the following
list of cases. Some workers in this art,
and for a time the Patent Office Exam-
iner, seemed to have gone wild in the
matter of patents for reinforced con-
crete constructions consisting chiefly in
locating reinforcing bars at points need'
ing reinforcing. Thus, Mr. liuten, one
of Mr. Boners experts in our case, testi-
fies that he applied for about eighty
patents on reinforced concrete construc-
tions, and had received about forty-two
patents. Several of these got into the
courts, as will appear from the deci-
sions below, and have been uniformly
held void for lack of invention. These
251 V. 6.
lt>19.
BONE V. MARION COUNTY.
135-137
are an tmjast handicap to legitimate
concrete construction business.
Hennebique Constr. Co. v. Armored
Concrete Constr. Co. 163 Fed. 300, 94
C. C. A. 577, 169 Fed. 287; Ransome
Concrete Co. v. Grerman-American But-
ton Co. 119 C. C. A. 622, 201 Fed. 528;
Turner v. Moore, 198 Fed. 134, 128 C.
C. A. 138, 211 Fed. 466 ; Carter v. Bureh
Plough Works Co. 211 Fed. 481;
Thacher v. Baltimore, 219 Fed. 909;
Drum T. Turner, 135 C. C. A. 74, 219
Fed. 188; Trussed Concrete Steel Co. V.
Ooldberg, 138 C. C. A. 106, 222 Fed.
506; Besser v. Merillat Culvert Core Co.
226 Fed. 783; Luten v. Sharp, 148 C. C.
A. 478, 234 Fed. 880, 217 Fed. 76;
United States Column Co. v. Benham
Column Co. 226 Fed. 55, 151 C. C. A.
276, 238 Fed. 200; Turner v. Lauter
Piano Co. 236 Fed. 252, 161 C. C. A. 48,
248 Fed. 930; Turner v. Deere & W.
Bldg. Co. 161 C. C. A. 662, 249 Fed.
752; Luten v. Whittier, 163 C. C. A.
584, 251 Fed. 590; Luten v. Washburn,
165 C. C. A. 392, 253 Fed. 950; Luten
V. Wilson Reinforced Concrete Co. 254
Fed, 107; Luten v. Allen, 254 Fed. 587;
Luten V. Young, 254 Fed. 591; Luten v.
Marsh, 254 Fed. 701.
A prior publication, if it discloses
the invention, anticipates the patent,
even if such prior device has never been
built.
Walker, Patents, 57; E. M. Miller Co.
T. Meriden Bronze Co. 80 Fed. 525.
If a mechanic, or one skilled in the
art, would have supplied what the prior
publication or device lacked or omitted,
in order to make the patented device,
such prior publication anticipates the
I>atent.
Chase v. Fillebrown, 58 Fed. 378.
If the description in a prior printed
publication is so full, clear, and exact
that those skilled in the art would be
enabled to make the patented device,
the patent is anticipated by such publi-
cation.
Cohn V. United States Corset Co. 93
U. S. 366, 23 L ed. 907; Downton v.
Yeager Mill Co. 108 U. S. 466, 27 L ed.
789, 3 Sup. Ct. Rep. 10; New Departure
Bell Co. V. Bevin Bros. Mfg. Co. 19 C.
C. A. 534, 38 U. S. App. 292, 73 Fed.
469.
Mr. Justice McKenna delivered the
opinion of the court:
Suit brought in the district court of
the United States for the district of In-
diana to restrain the infringement of a
patent for a retaining wall, which, to
64 li. ed.
quote petitioner, is "a wall to prevent
the material of an embankment or cut
from sliding."
After issue joined and proofs sub-
mitted, the district court (Anderson, J.)
entered a decree dismissing the bill for
want of equity. The decree was affirmed
by the circuit court of appeals, to review
which action this writ of certiorari was
granted.
The bill in the case is in the conven-
tional form and alleges invention, the
issue of a patent numbered 705,732, and
infringement by respondent. The prayer
is for treble damages, an injunction and
accounting. ^
The answer of respondent is a serial
denial of the allegations of the bill,
and avers anticipation of petitioner's
device by prior patents and publications
in this and other countries.
This summary of the issues is enough
for our purpose, and we need only add
preliminarily to their discussion that
Bone's device has the sanction of a pat-
ent and a decision sustaining it by the
district court for the northern district
of Ohio and the circuit court of appeals
for the [186] sixth circuit. The dif-
ference of decision in that circuit and
the seventh circuit is an important con-
sideration and must be accounted for,
which is best done by a display of the
patent and the case.
First as to the patent: It describes
the invention as being one that "relates
to improvements in retaining walls for
abutments to bridges . . . , and such
places as it is desired to retain earth
or other matter permanently in place
with its face at an angle nearer vertical
than it would naturally repose when ex-
posed to the action of the elements or
gravity;" and "consists principally of
introducing into masonry of concrete,
stone, or brick a framework of steel or
iron in such way that the whole wall is
so much strengthened thereby that the
volume of the masonry may be greatly
reduced, and yet the height, base, and
strength against overturning, bulging, or
settling wUl still be ample."
The following figure represents a
cross-sectional view of the device — A
representing the masonry, B the material
retained, and B^ the earth on which the
wall rests. The metal parts within A
are indicated by the smaller letters.
• [137] The patent does not insist up-
on that form of the masonry in all par«
ticulars. The base of the wall may be,
it is said, "varied to suit the circum-
stances:*' it, the base, may extend to
189
■: COURT OK THE LKITED STATES.
Oct. Tw
the rear ratber than the front "with
proper proportions of metal ... the
form shown in the drawings being what
might be called an iDTerte<l T, while
those suggeated would be in the form of
an L or reversed L."
The utility of the wall of these
shapes ia represented to be that it is
"not so liable to be overturned from the
pressure of material behind it as would
be a wall of the same height and area of
section, but having a rectangular, trap-
ezoidal, or triangular shaped section,"
the latter shapes requiring more ma-
sonry. And it is said that the patented
wall, "having more base and less weight"
than such other shapes, "will rest more
securely on a soft or yielding founda-
tion, the weight of the material resting
on the heel" causing the latter "to press
on the earth below, and thus cause fric-
tion to prevent the whole wall from slid-
ing outward." This is the especial effect
of the patent, achieved by the wall of
the shape described, and distinguishes it,
is the contention, from the retaining walls
of the prior art.
The patentee admits, however, that re-
taining; walls had been "constructed of
•^oMcrfte and steel, but none" to his
"knowledge" "had been supported on
their own base as" his, nor had "any of
them entirely inclosed the .=teel within
the concrete" nor had "any of them used
the weight of the material retained as a
force to retain itself."
Snch, then, is the wall and the utility
attributed to it. The combinations
whieh may be made with it are set forth
in 17 elaims, of which 1, 3, 6, 16, and 17
are involved in the present action.
Counsel for petitioner considers, how-
ever, that 1 and 17 are so far illustrative
1*0
that tfae others need not be given. They
are as follows:
"1. The eombination with a retaining
wall having a [138] heel, of a meUJ
structure embedded vertically in said
wall and obliquely in said heei, so that
the weight of the retained material up-
on the heel of the metal structnre will
operate to retain the wall in vertical
"17, The combination with a retainir^
wall having an inclined heel and a toe
at opposite sides thereof, of a metal
structure embedded within said wall and
heel, said structure consisting of upright
bents at the back part of the vertical
wall and continuing down along the
upper part of the heel of said wall tn
the back part thereof, whereby by reason
of the toe and the heel the. weight of
the retained material upon the heel of
the metal structure will operate to main-
tain the wall in a vertical position."
So much for the device of the patent.
How far was it new or how far was it
anticipated T
Bone's idea was conceived in 1898. and
his patent issued in 1902 upon an appli-
cation made in 1S99 ; but, according to
his counsel, the valae of the invention
was not recognized "until after the lapse
of several years," when he. Bone,
brought a suit against the city of Akron,
Ohio, in the district court for the north-
ern district of Ohio, in vindication of the
patent and in reparation for its infringe-
ment. He was given a decree which was
affirmed by the circuit court of appeals
for the sixth circuit.
The district court (Judge Day) gave
a clear exposition of the patent, the rela-
tion of its metal parts * to the masonry
[139] pBxts, and their co-operating
functions, and adjudged the patent
valid and the wall of the city of Akron
an infringement of it.
The circuit court of appeals affirmed
the decree. The court said that the
record disclosed nothing which antici-
pated "the substantial thought of the
lllie following is an extract from Judge
Day's opinion:
"The reinforcing members [metallic mem-
bers] are placed near the baik face of the
wall and heel and naar the lower face of
tho toe. The oblique reinforcing bars in the
heel acting in conjunction with the uprights
serve the function of a cantilever beam
whereby the weight of the material press-
ing upon the heel is transferred to the up-
Tight portion of the wall and operates to
retain the wall in a vertical po«ition. . . .
"Considering the claims of the patent,
and the testimonv. I am of the opinion that
sfti V. a.
BONE V. MARIOS COUNTY.
130-141
patent." If it had done so, or, to quote
the exart laagnage of the eonrt. "If the
prior art had ahown a struetare intended
for a retaining waU, and having a heel
such that the weight of the earth there-
on would tend to keep the wall erect, it
might be difBcult to find invention in
merely adding the form of reinforce-
ment most suitable to create the desired
ifDsile strength; but ve find no such
earlier ntraetures." *
[ 140] On application for rehearinK
the court refused to direct the district
eourt to open the case to permit the de-
fendant to put in proof regarding a
(ierman publication of 1894,
Those decisiffna confronted the district
i^ourt in the present suit and fortified
f he pretensions of the patent. They wen
attacked, however, as having been pro-
nunnced upon a different record, and
this eoneliuion was accepted by the dis-
trict court. The latter court found from
the new evidence the existence of a
-itnictnre upon the nonexistence of which
the circuit court of appteals for the sixth
circuit based its conclusion. The dis' -t
eourt said that Bone was not the firs, to
do the things he asserted he was the
first to do, and that whatever the record
in the sixth circuit might have shown,
so fnr as the record before the court
"was concemed, the absolute converse
of that proposition" ha^ "been demon-
The court, therefore, as we have said,
dismissed the bill for want of equity.
The decree was afBrmed by the circuit
court of appeals; indeed, the reasoning
Bone, the patentee, was the ftrBt to rein-
forre the retaining wall, or similar wall of
concrete or masonry in such a manner that
the iveiglit of the retained material would
lif utilized to impart through the reinfor-
<-ing members €enBile resintance to the Bt«rn
or vertical part of the wall, thereby fortify-
injc iliii part of the wall against breaking
''This was an advancement in the art
and paBseBBe4 novelty, and tlie structure of
thn defendant city infringed this patent.
"While many of the features of concrete
structures were old. yet this combinatioR
an outlined and descrihed in this Bone ap-
plication for ■ patent wae new. It ia also
in eTidrace that there has been a large sale
and general acquiescence -in the Bone pat-
• The followine is an extract from the
opinion of the circuit court of appeals:
"Tbe record discloFies nothing anticipat-
ing the substantial thouj^ht of the patent.
Masonry or concrete retaining walls were
deep and heavy, and maintained by jcravity
in their resistance aftainat a horizontal
etreas. There was no occasion for reinforce-
•4 L. ed.
of the district eourt was approved after
painstaking consideration of the patent
and an estimate of the anticipatory de-
fenses, none of which, the court said,
was introduced in the Akron Case,
"otherwise a different conclusion would
have been reached," adducing the opin-
ion of the eourt. 161 C. C. A. 247, 24D
Fed. 214. This being so, and there is
no doubt it is so, the present case is
reUeved of the authority or persuasion
of the Akron Case, and it becomes neces-
sary to consider the prior art and decide
the extent attd effect of its anticipation.
We have given a cross section _of the
device of the [141] patent, showing its
shape and strengthening "metallic mem-
bers," and the patent informs of their
co-operative function. We reprodnee
the device uid set by its side the
Marion county wall for comparison.
ment. Sustaining walls had been built of
concrete with vertical reinforcement; liut
they Were maintained against side strain
by croasticH or beams, without which they
might tip over. If the prior art had shown
a structure intended for a retaining wall,
and having a heel such that the weight of
the earth thereon would tend to keep the
wall erect, it might be difficult to find in-
vention in merely adding the form of rein-
forcement most suitable to create the de-
sired tensile strength; but wp find no such
earlier structures, Thone which have that
shape are sustaining walls only, and were
so obviously unfit for use as retaining walls
that no one seems to have seen the utility
for that purpose, of which the form, when
properly adapted and strengthened, was
capable. There is also a prior wall, wholly
of metal, fairly disclosing a unitary heel
adapted to hold the wair erect; but to see
that this could become merely a skeleton
embedded in concrete may w'ell have re-
quired, in inns, more than ordinary vision.
Upon tbe whole, we think invention was in-
volved, and the olaimi are valid." [137
C. C. A. 515, 221 Fed. 044.]
JBI
145, 146
SUPREME COURT OF THE UNITED STATES.
Oct.
publications that preceded Bone's and
I we also avail ourselves of the same to
show that Bone's patent was a step, not
a leap, in that progress, and that the
only orig^inality that can be accorded it
is in its special form, and there can be
no infringement except by a copy of that
form or a colorable imitation of it. We
do not think the Marion county wall is
subject to either accusation, and the de-
cree of the Circuit Court of Appeals is
affirmed.
Mr. Justice Day took no part in the
consideration or decision of this case.
[146] EL5700D HAMILTON, Collector
of Internal Revenue, Appt.,
V.
KENTUCKY DISTILLERIES & WARE-
HOUSE COMPANY. (No. 589.)
ALPHONS DRYFOOS, Eugene Blum, and
Eugene Bascfao, Appte.,
V.
WILLIAM H. EDWARDS, Collector of In-
ternal Revenue. (No. 602.)
(See S. C. Reporter's ed. 146-168;)
States •» relation . to Federal gOTern*
ment — police power.
1. Although the United States lacks
the police power, this being reserved to the
states, it is none the less true that when
-the United States exerts anj of the pow-
ers conferred upon it by the Federal Con-
stitution, no valid objection can be based
upon the fact that such exercise may be
attended by the same incidents which attend
the exercise by the state of its police power,
or that it may tend to accomplish a mmilar
purpose.
[For other cases, see States, IV. d. In Digest
Sup. Ct 1908.]
War — power of Congress — constl-
tvtional limitations.
2. The war power of the United States,
Note. — ^For a discussion of police
power, generally — see notes to State v.
Marshall, 1 L.B.A. 51; Re Gannon, 5
L.R.A. 359; State v. Schleminer, 10
L.R.A. 135; Ulman v. Baltimore, U
L.R.A. 224; Electric Improv. Co. v. San
Francisco, 13 LJLA. 131; and Barbier
V. Connolly, 28 L. cd. U. S. 923.
As to what constitutes due process of
la^, generally— see notes to People v.
O'Brien, 2 L.ILA. 255; Kuntz v. Sump-
tion, 2 L.RJL 655; Re Gaimony 5
L.R.A. 359; Ulman v. Baltimore, 11
L.R.A. 224; Oilman v. Tucker, 13 L.R.A.
304; Pearson v. Yewdall, 24 L. ed. U. S,
436; and WOson v. North Carolina, 42 i
L. ed. U. S. W5.
194
like its other pom'ers, and like the police
power of the states, is subject to appH-
^ble constitutional limitations; but the
5th Amendment to the Federal Constitu-
tion imposes, in this respect, no greater
limitation upon the national power than
does the 14th Amendment upon state power.
[For other cases, gee War, VIII. in Digest
Sup. Ct. 1908.]
Constitutional law — due process of law
— police power — taking property
without CMinipensation.
3. If the nature and conditions of a
reetricticm upon tlie use or disponition of
property are such that a state could, under
the police power, impose it consistently
with the 14th Amendment without making
compensation, then the United States maj,
for a permitted purpose, impose a like re-
striction consistently with the 5th Amend-
ment without faking compensation.
[For otber cases.' see Constitutional Law. IV.
b. 4; IV. c, 2. J
Constitutional law — due process of
law — war-time prohibition.
4. Private property was not taken for
public purposes without compensation, con-
trary to U. S. Const., 5th Amend., by the
enactment by Congress, in the exercise •f
the war power, <h the provisions of the
War-time Prohibition Act of November 21,
1918, fixing a period of seven months and
nine days from its passage, during which
distilled spirits might be disposed of fra*
from any restriction imposed by the Fed-
eral government, and ^reafter permittingv
until the end of the\ra|[Und the termina-
tion of demobilization, an unrestricted sale
for export, and, within the United States,
sales for other than beverage purposes.
[For other cases, see Constitntlonal Law. IV.
b, 4.)
War « power of Congress — war-time
prohibition.
5. Assuming that the implied power of
Congress to enact such a measure as the
War-time Prohibition Act of November 21,
1918, must depend not upon the existence
of a technical state of war, terminaMe only
with the ratification of a treaty of peace or
a proclamation of peace, but upon some
actual emergency or necessity arising out
of the war or incident to it, the power is
not, limited to victories in the field and the
dispersion of the hostile forces.. It carries
with it inherently the power to guard
against the immediate renewal of the con-
flict, and to remedy the evils which have
arisen from its rise and progress.
Covrts » relation to legislative depart-
ment « motives « wisdom « neces-
sity.
6. The Federal Supreme Courts may not,
in passing upon the validity of a federal
statute, inquire into the motives of Con-
gress, nor may it inquire into the wisdom
of the legislation, nor may it pass upon the
necessity for the exercise of a power
possessed.
[For Mher cascB, Hee Conrts, I. e, 8, a, in
Digest Sup. rt. 1908.)
2(1 V. 8.
19». not-
afaapcs described by Bone lis having
advantage over ntber shapes. . And
there was also the BUg^stion of the
valae of a firm connection between the
•^erticaJ and horizontal member." In
other words, the publication showed a
retaining [144] wall ha^■ing a heel
sDch that the weight of the earth
thereon wonld tend to keep the wall
erect,— an effect and operation that Bone
declares in his patent no wall had at-
tained prior to his invention. And that
effect and operation the circuit court of
appeals for the sixth circuit considered
the essence of the Bone patent, and the
<-ourt said that "it might -be difScnlt to
lind invention in merely adding the form
•>f reinforcement most BUitnble to create
the desired tensile strength."
The Stowell & Cunningham stmetnTe
is. as we hare said, somewhat complex
in ita mechanical parts. Bat these are
bat details; the physical laws that they
are to avail of are explained so that "the
volume of masonry" of retaining walls
may be redneed, yet retain thei* strength
by the use of metallic rein forcemeats.
Coansel attacks the sufficiency of the
asserted antieipations, especially th«
pnblieatioDs, and in effect aaya that
whatever conceptions luriced in them
eonyeyed no suggestion of a "concrete
entity," to use counsel's words, to exe-
mOK COUNTY.
143-1
cnte them, and lanieuts that Bone should
be robbed of the credit and reward of
adding to the world's useful instrumen-
talitiest which, but for him, would have
remained in theories and the "duat from
which respondent recovered them."
To execute theories by adequate in-
stmnientalitiea may indeed be invention,
but an answer to petitioner's contention
we have given by gar commeiit on the
Bauzeitung and Planat publications and
the fullness of their expositions. Bone
may have been ignorant of them and his
device may not have been their su^es-
tion. Tbey seem to have been unknown
to American engineers, not even the in-
terest of the controvM^ in the sixth
circuit having developed their existence.
From this local ignorande nothing can be
deduced favorable to the patent. Its
device having been described in printed
publications, although in foreign coim-
triea, patentable novelty or originality
cannot be asserted for it. Bev. Stat.
g 4886, Act of March 3, 1897, 29 Stat.
at L. 692, chap. 391, Comp. Stat. § 9430,
7 Fed. Stat. Anno. 2d ed. p. 23. [14&]
Sncb is the provision of the law, and
we cannot relax it in indulgence to
what may seem the indiridnal's merit. *
The Circuit Court of Appeals, to show
the progress of the prior art, made use
of the illofltratiqns ' of the patents and
•S««wHr«» rtm^fsse
^*>m-/99e fXxmnm tSSS
\
145, 146
SUPREME COURT OF THE UNITED STATES.
Oct.
publications that preceded Bone's and
we also avail ourselves of the same to
show that Bone's patent was a step, not
a leap, in that process, and that the
only originality that can be aceorded it
is in its special form, and there can be
no infringement except by a copy of that
form or a colorable imitation of it. We
do not think the Marion county wall is
subject to either accusation, and the de-
cree of the Circuit Court of Appeals is
affirmed.
Mr. Justice Day took no part in the
consideration or decision of this case.
[146] ELJ^OOD HAMILTON, Collector
of Internal Revenue, Appt.,
V.
KENTUCKY DISTILLERIES & WARE-
HOUSE COMPANY. (No. 689.)
ALPHONS DRYFOOS, Eugene Blum, and
Eugene Bascfao, Appte.,
V.
WILLIAM H. EDWARDS, Collector of In-
ternal Revenue. (No. 602.)
(See S. C. Reporter's ed. 146-168;)
States — relation . to Federal gOTem*
inent « police power.
1. Although the United States lacks
the police power, this being reserved to the
states, it is none the less true that when
-the United States exerts any of the pow-
ers conferred upon it by the Federal Con-
stitution, no yalid objection can be based
upon the fact that such exercise may be
attended by tiie same incidents which attend
the exercise by the state of its police power,
or that it may tend to accomplish a similar
purpose.
CFor other cases, see States, IV. d, in Digest
Sap. Ct 1908.]
War — power of Congress — consti-
tutional limitations.
2. The war power of the United States,
Note. — ^For a discussion of police
power, generally — see notes to State v.
Marshall, 1 L.B.A. 51; Re Gannon, 5
L.R.A. 359; State v. Schleminer, 10
L.R.A. 135; Ulman v. Baltimore, U
L.R.A. 224; Electric Improv. Co. v. San
Francisco, 13 ULA. 131; and Barbier
V. Connolly, 28 L. ed. U. S. 923.
As to what eonstitutes due process of
la^, generally — see notes to People v.
O'Brien, 2 L.RA. 255; Kuntz ▼. Sump-
tion, 2 Ij.RJL 655; Re Gaimony 5
L.R.A. 359; Ulman v. Baltimore, 11
L.R.A. 224; Oilman v. Tucker, 13 L.R.A.
304; Pearson ▼. Yewdall, 24 L. ed. U. S.
436; and Wilson v. North Carolina, 42
L. ed. U. S. W5.
i94
like its other pom'ers, and like the police
power of the states, is subject to appli-
cable constitutional limitations; but the
5th Amendment to the Federal Constitu-
tion imposes, in this respect, no greater
limitation upon the national power than
does the 14th Amendment upon state power.
[For other cases, see War, VIII. In Digest
Sup. Ct. 1908.3
Ck>nstitntionaI law — due process of law
— police power — taking propert}-
without conip<*nsntion.
3. If the nature and conditions of a
restriction upon the use or dispoHition of
property are such that a state could, under
the police power, impose it consistently
with the 14th .Amendment without making
compensation, theii the United States may,
for a permitted purpose, impose a like re-
striction consistently with the 5tb Amend-
ment without ji)aking compensation.
[For otber cases, see Constitutional Law, IV.
b. 4; IV. c. 2.1
Constitntional law — due prooemi ot
law — war-time prohlbidon.
4. Private property was not taken for
public purposes without compensation, con-
trary to U. S. Const., 5th Amend., by the
enactment by Confess, in the exercise ef
the war power, of the provisions of the
War-time JEhrohibition Act of November 21,
1918, fixing a period of seven months and
nine days from its passage, during whieb
distilled spirits might be disposed of free
from any restriction imposed by tiie Fed-
eral government, and ^reafter permittingv
until the end of the^wland the termina-
tion of demobilisation, % unrestricted sale
for export, and, within the United States,
sales for other than beverage purposes.
[For other cases, see Constitntional Law. IV.
b. 4.]
War » power of Congress — war-time
prohibition.
5. Assuming that the implied power of
Congress to enact such a measure as the
War-time Prohibition Act of November 21,
1918, must depend not upon the existence
of a technical state of war, terminable only
with the ratification of a treaty of peace or
a proclamation of peace, but upon some
actual emergency or necessity arising out
of the war or incident to it, the power is
not limited to victories in the field and the
dispersion of the hostile forces.. It carries
with it inherently the power - to guard
against the immediate renewal of the con-
flict, and to remedy the evils which have
arisen from its rise and progress.
Covrta » relation to legislative depart-
ment « motives -* wisdom — neces-
sity.
6. The Federal Supreme Court" may not,
in passing upon the validity of a J'ederal
statute, inquire into the motives of Con-
gress, nor may it inquire into the wisdom
of the legislation, nor may it pass upon the
necessity for the exercise of a power
possessed.
[For <^ther cases, see Conrts, 1. e, 8, a. Id
Digest Sup. Ct. 1908.)
2(1 V. 8..
1919.
HAMILTON T. KENTUCKY DISTILLERIES k VV. CO.
Coarts » relation to legislatlTe depart-
oteut « war powers of Congress —
passini: of war emeri^ency.
7. It requires a clear case to justify
a court in declaring that a Federal statute
adopted to increase war efficiency has ceased
to be valid, on the theory that the war
emergency has passed and that the power
of Confess no longer continues.
(For other cases, f«ee Courts. I. e, 8, a, la
Digest Sup. Ct. 1908.]
War •» power of Congress » passing? of
war emergency — war-time ^rohlbl*
tton.
8. The War-time Prohibition Act of
November 21, ini8, cannot be said to have
ceased to be valid prior to the limitation
therein fixed, viz., ''the conclusion of the
present war and thereafter until the termi-
nation of demobilization," on the theory
that the war emergency has passed, where
the Treaty of Peace has not yet been con-
cluded, the railways are still under na-
tional control by virtue of the war powers,
other war activities have not been brought
to a close, and it cannot even be said that
the man power of the nation has been re*
stored to a peace footing.
War — power of Congress — war-time
prohfhition —(Implied repeal by 18th
Amendment.
9. The existing restriction on the sale
of distilled spirits for beverage purposes.
Imposed by the War-time Prohibition Act
of November 21, 1918, was not impliedly
removed bv the adoption of the 18th Amend-
ment to the Federal Constitution, which, in
express terms, postponed the effective date
of the prohibition of the liquor traffic ^ere^
Sr imposed, until one year after ratifiea^
on.
War — termination — cessation of war
actlTltfea — > war-time prohlUtion.
10. The war with Germany cannot be
«aid ta have been concluded within the
meaning of the War-time Prohibition Act
of November 21, 1918, merely by reason
of the actual termination of war activities.
CFor ether cases, see War, IX. in Dicrent Sup.
Ct. 1908.1
WTar •» war-time prohibition •» termina-
tion.
11. The provision of the War-time Pro-
hibition Act of November 21, 1918, that it
shall not cease to be operative until the
"eonclusion of the present war and there-
after until the termination of demobiliza-
tion, the date of which shall be determined
and proclaimed by the President," is not
•xatisfied by passing references in various
messages and proclamations of the Presi-
dent to the war as ended, and to demobili-
zation as accomplished, nor by newspaper
interviews with high officers of tiie Army,
or with officials of the War Dei^rtment.
[Kos. 589 and 602.]
Argued November 20, 1919. Decided De-
cember 15, 1919.
•4 li. ed.
APPEAL from the District Court of
the United States for the Western
District of Kentucky to review a decree
enjoining" the enforcement of the War-
time Prohibition Act. Reversed. Also
AN APPEAL from the District Court
of the United States for the Sonth-
om District of New YoA to review a
decree dismissing the bill in a suit to
enjoin the enforcement of the War-time
Prohibition Act. AflBrraed.
The facts are stated in the opinion. .
Assistant Attorney General FriersoQ
ai^ed the cause, and, with Solicitor
(General King and Mr. W. V. Gregory,
filed a brief for appellant in No. 589 :
The statute was enacted not under
the general 'police power, but nnder the
war powers of Congress, and its valid-
ity depends upon whether it is an ap-
propriate means of carrying into effect
the war powers of the Federal govern-
ment.
United States v. Doremus, 249 U. S.
86, 63 L. ed. 493, 39 Sup. Ct. Rep. 214.
Confess is empowered to enact any
law which has a substantial relation to
the successful conduct of the war, and
which is not forbidden by any express
provision of the Constitution.
Northern P. R. Co. v. North Dakota,
250 U. S. 135, 149, 63 L. ed. 897, 903,
P.U.R.1919D, 705, 39 Sup. Ct. Rep. 502;
Gibbons v. Ogden, 9 Wheat. 195, 6 L. ed.
69; 2 Willoughby, Const. § 715, p. 1212;
Legal Tender Casea, 12 Wall. 563, 20
L. ed. 316; Stewart v. Kahn (Stewart
V. Bloom) 11 Wall. 493, 506, 20 L. ed.
176, 179; Adair v. United States, 208
U. 8. 161, 179, 62 L. ed. 436, 444, 28
Sup. Ct. Rep. 277, 13 Ann. Cas. 764;
Employers' liability Cases (Howard v.
niinoU C. B. Ck).), 207 U. S. 463, 52
L. ed. 297, 28 Sup. Ct. Rep. 141; Trade
Mark Cases, 100 U. S. 82, 25 L. ed. 550.
The regulation or prohibition of the
sale and manufacture of intoxicants has
a substantia] and reasonable relation to
the end to be accomplished by exerting
the power to declare war.
M'Culloch V. Maryland, 4 Wheat.
422, 4 L. ed. 605; Lotterv Case (Cham-
pion V. Ames) 188 U. S. 321, 355, 47
L. ed. 492, 500, 23 Sup. Ct. Rep. 321, 13
Am. Crim. Rep. 561; Stewart v. Kahn
(Stewart v. Bloom) 11 Wall. 493, 20
L, ed. 176.
The motives of Congress or of indi-
vidual members of Congress cannot be
inquired into by the courts.
United States v. Des Moines Nav. &
R. Co. 142 U. S. 510, 544, 35 L. ed. 1099,
1109, 12 Sup. Ct. Rep. 308; Amy v.
195
SLPKKMi: COCHT OF Till: I XITKD STATES.
Oct. Tebm ,
Watertown, 130 U. S. 301, 319, 32 U ed.
946, 952, 9 Sup. Ct. Rep. 530 ; Weber v.
Freed, 239 U. S. 325, 60 L. ed. 308, 36
Sup. Ct. Rep. 131, Ann. Cas. 1916C, 317.
The validity of the act is not affected
by the fact that it partakes of the na-
ture of a police relation.
Hoke V. United States, 227 U. S. 308,
323, 57 L. ed. 523, 527, 43 L.R.A.(N.S.)
906, 33 Sup. Ct. Rep. 281, Ann. Cas.
1913E, 905: Wilson v. United States,
232 U. S. 563, 567, 58 L. ed. 728, 731,
34 Sup. Ct. Rep. 347; Seven Cases v.
United States, 239 U. S. 510, 515, 60
L. ed. 411, 415, L.R.A.1916D, 164, 36
Sup. Ct. Rep. 190; Gloucester Ferry Co.
V. Pennsylvania, 114 U. S. 196, 215, 29
L. ed. 158, 166, 1 Inters. Com. Rep. 382,
5 Sup. Ct. Rep. 826; Cooley, Const. Lim.
732 ; Gibbons v. Ogden, 9 Wheat. 1, 202,
6 L. ed. 23, 71.
The statute does not constitute a tak-
ing of property, and does not contra-
vene the 5th Amendment.
Mugler V. Kansas, 123 U. S. 623, 668,
31 L. ed. 205, 212, 8 Sup. Ct. Rep. 1273;
Kidd V. Pearson, 128 U. S. 1, 32 L. ed.
346, 2 Inters. Com. Rep. 232, 9 Sup. Ct.
Rep. 6.
A state of war still exists, and the
statute is in effect whether demobiliza-
tion is complete or not.
United States v. Anderson, 9 Wall.
66, 70, 19 L. ed. 615, 619 ; J. Ribas y Hi-
jo V. United States, 194 U. S. 315, 323,
48 L. ed. 994, 996, 24 Sup. Ct. Rep. 727;
The Protector, 12 Wall. 700, 20 L. ed.
463. .
Messrs. Wayne B. Wheeler and R. C.
Minton filed a brief as amici curiae in
No. 589:
The War Prohibition Act is constitu-
tional because it has a reasonable rela-
tion to the recogrnized authority of Con-^
^ess to support the Army and Navy,
and to other war powers. It conserves
the essentials to an adequate support of
the Army and Navy by preventing the
waste of food, fuel, transportation facil-
ities, and manpower used in the man-
ufacture and sale of beer, wine, and
other intoxicating liquors.
Purity Extract & Tonic Co. v. Lvnch,
226 U. S. 192, 57 L. ed. 184, 33 Sup. Ct.
Rep, 44; United States v. Doremus, 249
U. S. 86, 63 L. ed, 493, 39 Sup. Ct. Rep.
214; Hoke v. United States, 227 U. S.
309, 57 L. ed. 623, 43 L.R.A.(N.S.) 906,
33 Sup. Ct. Rep. 281, Ann. Cas. 1913E,
905.
The War Prohibition Act does not
take private property for public use
without just compensation. The deci-
106
sions of the courts are uniform that the
government may prohibit the liquor
traffic entirely without providing any
compensation to the liquor dealers.
Mugler V. Kansas, 123 U. S.. 623, 31
U ed. 205, 8 Sup. Ct. Rep. 273; New Or-
leans Gaslight Co. V. Louisiana Light &
H. P. Mfg. Co. 115 U. S. 650, 29 L. ed.
516, 6 Sup. Ct. Rep. 252 ; Menken v. At-
lanta, 78 Oa. 677, 2 S. E. 559.
The 18th Amendment gives ho guar-
anty to the liquor trafiBc to continue
during the year from the date of rati-
fication by thirty-six states.
Stone V. Mississippi, 101 U. S. 814, -25
L. ed. 1079; Kresser v. Lyman, 74 Fed.
766; Moore v. Indianapolis, 120 Ind.
483, 22 N. E. 424; Clark Distilling Co.
v. Western Man land R. Co. 242 U. S.
311, 61 L. ed. 326, L.R.A.1917B, 1218,
37 Sup. Ct. Rep. 180, Ann. Cas. 1917B,
845.
The war has not ended nor has de-
mobilization terminated by the procla-
mation of the President of the United
States.
The Protector, 12 Wall. 700, 20 L. ed.
463; J. Ribas y Hi jo v. United States,
194 U. S. 315, 48 L. od. 994, 24 Sup. Ct.
Rep. 727; Commercial Cable Co. v. Bur-
leson, 255 Fed. 99; Scatena v. Caffey,
260 Fed. 756.'
There is a presumption of constitu-
tionality.
United States v. Harris, 106 U. 8.
6S5, 27 L. ed. 292, 1 Sup. Ct. Rep. 601 ;
Atchison, T. & S. F. R. Co. v. Matthtfws,
174 U. S. 96, 43 L. ed. 909, 19 Sup. Ct.
Rep. 609; Brown v. Walker, 161 U. S.
591, 40 L. ed. 819, 5 Inters. Com. Rep.
369, 16 Sup. Ct. Rep. 644. .
Messrs. Leyy Mayer an4 William
Marshall Bullitt argued the cause and
filed a brief for appellee in No. 589:
The state's police power over the liq-
uor traffic is absolute and exclusive
Barbour v. Georgia, 249 U. S. 454, 63
L. ed. 704, 39 Sup. Ct. Rep. 316; Barte-
meyer v. Iowa, 18 Wall. 129, 21 L. ed.
929; Boston Beer Co. v. Massaehtisetts,
97 U. S. 25, 24 K ed. 989; Crane v.
Campbell, 245 U. S. 304, 62 L. ed. 304,
38 Sup. Ct. Rep. 98; Crowley v. Chris-
tensen, 137 U. S. 86, 34 L. ed. 620, 11
Sup. Ct. Rep. 13; Eberle v. Michigan,
232 U. 8. 700, 58 L. ed. 803, 34 Sup. Ct.
Rep. 464; Kidd v. Pearson, 128 U. S. 1,
32 L. ed. 346, 2 Inters. Com. Rep. 232, 9
Sup. Ct. Rep. 6; Mugler v. Kansas, 123
U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep.
273; Purity Extract & Toni© Co. v.
Lynch, 226 U. S. 192, 57 L. ed. 184, 33
Sup. Ct. Rep. 44.
:siy.
HAMILTON V. KENTUCKY DISTILLKKIES & W. CO. .
The depreciation of brewery or dis-
tillery properties is a mere incident, for
which damages are not recoverable.
Eberle v.. Michigan, 232 U. S. 700, 58
L. ed. 803, 34 Sup. Ct. Rep. 464; Mugler
V. Kansas, 123 U. S. 623, 31 L. ed. 205,
8 Sup. Ct. Rep. 273; Murphy v. Califor-
nia, 225 U. S. 623, 56 L. edi 1229, 41
L.R.A.(N.S.) 153, 32 Sup. Ct. Rep. 697.
The state's power with respect to pre-
existing liquor is an open question.
Barbour v. Georgia, 249 U. S. 454, 63
L. ed. 704, 39 Sup. Ct. Rep. 316; Barte-
meyer v. Iowa, 18 Wall. 129, 21 L. ed.
929; Boston Beer Co. v. Massachusetts,
97 U. S. 25, 24 L. ed. 989; Eberle v.
Michigan, 232 U. S. 700, 58 L. ed. 803,
34 S^. Ct. Rep. 464; Wynehamer v.
People, 13 N. Y. 378.
Congress has no power in peace time
to prohibit the sale of whisky.
Re Heff, 197 U. S. 488, 49 L. ed. 848,
25 Sup, Ct. Rep. 506; Re Rahrer, 140
U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep.
865; Hammer v. Dagenhart, 247 U. S.
251, 62 L. ed- 1101, 3 AJi.R. 649, 38
Sup. Ct. Rep. 529, Ann. Cas. 1918E, 724;
KeUer v. United States, 213 U. S. 138,
53 L, ed. 737, 29 Sup. Ct. Rep. 470, 16
Ajin. Cas. 1066; McKinley v. United
States, 249 U. S. 397, 63 L. ed. 668, 39
Snp. Ct Rep. 324; Selective Draft Law
Cases (Arver v. United States) 245 U.
S. 366, 62 L. ed. 352, L.R.A.1918C, 361,
38 Sup. Ct. Rep. 159, Ann. Cas. 1918B,
856; Sehenck v. United States, 249 U.
S, 47, 52, 63 L. ed. 470, 473, 39 Sup. Ct.
Rep. 247.
The exercise of the war power is sub-
ject to the restrictions contained in the
5th Amendment.
Ex parte Milligan, 4 Wall 2, 18 L. ed.
2&L; Johnson v. Jones, 44 BL 142, 92
Am. Dee. 159; Monongahela Nav. Co. v.
United States, 148 U. S. 312, 37 L. ed.
463, 13 Sup. Ct. Rep. 622; McCray v.
United States, 195 U. S. 27, 61, 49 L. ed.
78, 97, 24 Sup. Ct. Rep. 769, 1 Ann. Cas.
561.
Whisky is property, and when taken
for public use is entitled to protection
under the 5th Amendment.
Leisy V. Hardin, 135 U. S. 100, 34
L. ed. 128, 3 Inters. Com. Rep. 36, 10
Sup. Ct. Rep. 681; Wynehamer v. Peo-
ple, 13 N. Y. 378; Com. v. Campbell, 133
Ky. 50, 24 L.R.A.(N.S.) 172, 117 S. W.
383, 19 Ann. Cas. 159; Com. v. Ken-
tueky Distilleries & Warehouse Co. 143
Ky. 314, 136 S. W. 1032.
The War-time Prohibition Act takes
the Kentucky Company's private propr
erty for public use, but makes no provi-
sion for just compensation to the own-
%4 Ii, ed.
er. Thoi'efore the act is unconstitu-
tional.
Buchanan v. Warley, 245 U. S. 60, 62
L. ei 149, L.R.A.1918C, 210, 38 Sup. Ct.
Rep. 16, Anij. Cas. 1918C, 1201; Wyne-
hamer V. People, 13 N. Y. 378; Forster
V. Scott, 136 N. Y. 577, 18 L.R.A. 543,
32 N. E. 976; United States v. Cress,
243 U. S. 316, 61 L. ed. 746, 37 Sup. Ct.
Rep. 380; United States v. Lynah, 188
U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep.
349; Cherokee Nation v. Southern Kan-
sas R. Co. 135 U. S. 641, 34 L. ed. 295,
10 Sup. Ct. Rep. 965; Sweet v. Rechel,
159 U. S. 380, 40 L. ed. 188, 16 Sup. Ct.
Rep. 43; A. Backus Jr. & Sons v. Fort
Street Union Depot Co. 169 U. S. 557,
42 L. ed. 853, 18 Sup. Ct. Rep. 445;
Crozier v. Fried Krupp Aktiengesell-
schaft, 224 U. S. 290, 56 L. ed. 771, 32
Sup. Ct. Rep. 488.
The War-time Prohibition Act has by
its own terms ceased to be operative.
United States v. Hicks, 256 Fed. 707.
The War-time Prohibition Act has
become obsolete.
Perrin v. United States, 232 U. S.
478, 58 L. ed. 691, 34 Sup. Ct. Rep. 387 :
Johnson v. Gearlds, 234 U. S. 422, 58
L. ed. 1383, 34 Sup. Ct. Rep. 794.
Mr. Walter 0. Noyes argued the
cause, and, with Messrs. Moses J.
Stroock, Arthur L. Strasser, and Wal-
ter S. Dryfoos, filed a brief for appel-
lants in No. 602 :
The district court had jurisdiction to
entertain this suit.
Philadelphia Co. v. Stimson, 223 U.
S. 605, 56 L. ed. 570, 32 Sup. Ct. Rep.
340; Ex parte Young, 209 U. S. 123, 52
L. ed. 714, 13 L.R.A.(N.S.) 932, 28 Sup.
Ct. Rep. 441, 14 Ann. Cas. 764; Yee Gee
v. San Francisco, 235 Fed. 757; Jacob
Hoffman Brewing Co. v. McElligott, 259
Fed. 321, — C. C. A. — , 259 Fed. 525 ;
Scatena v. Caffey, 260 Fed. 756.
A law, valid in its inception, may be-
come shorn of constitutionality by a
change of circumstances.
Perrin v. United States, 232 U. S.
478, 58 L. ed. 691, 34 Sup. Ct. Rep. 387;
Johnson v. Gearlds, 234 U. S. 422, 446,
58 L. ed. 1383, 1393, 34 Sup. Ct. Rep.
794; Castle v. Mason, 91 Ohio St. 303,
110 N. E. 463, Ann. Cas. 1917A, 164;
Municipal Gas Co. v. Public Service
Commission, 225 N. Y. 89, P.U.R.1919C,
364, 121 N. E. 772; United States v.
Hicks, 256 Fed. 707.
The question of the present existence
of a war necessity or emergency is
either a judicial question or a political
197
153-165
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
or administrative one, determined by the
President
Johnson v. Gearlds, 234 U. S. 422, 68
L. ed. 1383, 34 Snp. Ct. Rep. 794; Per-
rin V. United States, 232 U. S. 478, 68
L. ed. 691, 34 Snp. Ct. Rep. 387; Law-
ton V. Steele, 162 U. S. 133, 137, 38 L.
ed. 386, 388, 14 Sup. Ct. Rep. 499; Re
Jacobs, 98 N. Y. 98, 60 Am. Rep. 636.
Messrs. Levi Cooke and George R.
Beneman filed a brief as amici curisD in
No. 602 :
The prohibition contained in the Act
of November 21, 1918, can be so con-
stnied as to avoid the question of con-
stitutional invalidity.
United States ex rel. Atty. Gen. v.
.Delaware & H. Co. 213 U. S. 366, 407,
'53 L. ed. 836, 848, 29 Sup. Ct. Rep. 627;
United States v. Jin Fuey Moy, 241 U.
S. 394, 401, 60 L. ed. 1061, 1064, 36 Sup.
Ct. Rep. 658.
Solicitor General King argued the
cause, and, with Assistant Attorney Gen-
eral Frierson, filed a brief for appellee
in No. 602.
Mr. Justice Brandeis delivered the
opinion of the court :
The armistice with Germany was
signed November 11, 1918. Thereafter
Congress passed, and, on November 21,
1918, the President approved, the War-
time Prohibition Act (chap. 212, 40 Stat,
at L. 1046, * 1046, Comp. Stat. §§
3116H42ee, 3115"/i2f), which provides as
follows :
''That after June thirtieth, nineteen
hundred and nineteen, until the con-
elusion of the present war and thereafter
until the termination of demobilization,
the date of which shall be determined
and proclaimed by the President of the
United States, for the purpose of con-
serving the man power of the nation,
and to increase efficiency in the produc-
tion of arms, munitions, ships, food, and
clothing for the Army and Navy, it shall
be unlawful to sell for beverage pur-\
poses any distilled spirits, and during
said time no distilled spirits held in bond
shall be removed therefrom for beverage
purposes except for export. . . ."
On October 10, 1919, the Kentucky
Distilleries & Warehouse Company, own-
er of distillery warehouses and of whisky
therein, brought in the district court of
the United States for the western dis-
trict of Kentucky a suit against Hamil-
ton, collector of internal revenue for
that district, alleging that the above act
was void or had become inoperative, and
praying that he be enjoined from inter- 1
198
fering, by reason of that act, with the
usual process of [154] withdrawal, dis-
tribution, and sale of the whisky in
bond. The case was heard before the
district judge on plaintiffs motion for
a preliminary injunction and defend-
ant's motion to dismiss. A decision
without opinion was rendered for the
plaintiff; and, the defendant declining
to p^ead further, a final decree was en-
tered granting a permanent iitjunction
in accordance with the prayer of the
bill. A similar suit seeking? like relief
was brought on October 29, 1919,* by
Dryfoos, Blum, & Company, in the dis-
trict court of the United States for the
southern district of New York, against
Edwards, collector for that district.
That case was heard on November 5 be-
fore the district judge on like motions
for a preliminary injunction and to di^
miss. An opinion was filed November
14, 1919, holding the act in force; and
on the following day a final decree was
entered, dismissing the bill.
The essential facts in the two cases
differ in this: In the Kentucky case the
whisky was stored in a distillery ware-
house; the plaintiff was the maker of
the whisky; had owned it prior to the
passage of the act ; and had, since June
30, 1919, paid the revenue tax on part
of it. In the New York case the liquors
were in general and special bonded ware-
houses; the plaintiffs were jobbers; and
it does not appear when they became the
owners of the liquors. Both cases come
here by direct appeal under § 238 of the
Judicial Code [36 Stat, at L. 1167, chap.
231, Comp. Stat. § 1216, 6 Fed. Stat.
Anno. 2d ed. p. 794J, were argued on the
same day, and may be disposed of to-
gether. Four contentions are made in
support of the relief prayed for: (1)
That the act was void when enacted, be-
cause it violated the 6th Amendment;
(2) that it became void before these
suits were brought by reason of the pass-
ing of the war emergency; (3) that it
was abrogated or repealed by the 18th
Amendment; (4) that by its own terms
it expired before the commencement of
these suits. These contentions will be
considered in their order.
First: Is the act void because it takes
private property [155] for public pur-
poses without compensation, in violation
of the 6th Amendment? The contention
is this: The Constitution did not confer
police power upon Congress. Its power
to regulate the liquor traffic must there-
fore be sought for in the implied war
powers; that is, the power '^to make all
laws neeessary and proper for carrying
9S1 U. 8.
9X9.
IJAMILION V. KENTUCKY DISTILLERIES & VV. CO.
155-15:
into execution" the war powers expressly
granted. Art. 1, § 8, cl. 18. Congress
mi^ht, under 4itis implied power, tem-
porarily regnlate the sale of liquor, and,
if reasonably necessary, forbid its sale
in order to guard and promote the ef-
ficiency of the men compo3ing the Army
and the Navy, and of the workers en-
iraired in suppljmig them with arms, mu-
nitions, transportation, and supplies. Mc-
Kinley v. United States, 249 U. S. 397,
309, 63 L. ed. 668, 669, 39 Sup. Ct. Rop.
324. But the exercise of the war powers is
r except in respect to property destroyed
by military operations, United States v.
Pacific R. Co. 120 U. S. 227, 239, 30 L.
od. 634, 638, 7 Sup. Ct. Rep. 490) sub-
ject to the 5th Amendment. United
States V. Russell, 13 Wall. 623, 627, 20
Ij. ed. 474, 475. The severe restriction
:mj>08ed by the act upon the disposi-
non of liquors amounts to a taking" of
property; and, being uncompensated,
would, at least as applied to liquors ac-^
quired before the passage of the act, ex-
ceed even the restriction held to be ad-
missible under the broad police powers
possessed by the states. Therefore, since ^
it fails to make provision for compen-
sation, which in every other instance
<.V>ngre8s made when authorizing the
:akin^ or use of property for war pur-
poses,* it is void. Such is the argument
of the plaintiffs below.
[156] That the United States lacks
the police power, and that this was re-
served to the states by the 10th Amend-
ment, ia true. But it is none the less true
that when the United States exerts any
of the powers conferred upon it by the
Constitution, no valid objection can bo
based upon the fact that such exercise
may be attended by the same incidents
which attend the exercise by a state of
its police power, or that it may tend to
accomplish a similar purpose. Lottery
Case (Champion v. Ames) 188 U. S.
321, 357, 47 L. ed. 492, 501, 23 Sup. Ct.
Rep. 321, 13 Am. Crim. Rep. 561; Mc-
Cray v. United States, 195 U. S. 27, 49
L. ed. 78, 24 Sup. Ct. Rep. 769, 1 Ann.
Cas. 561; Hipolite Egg Co. v. United
States, 220 U. S. 46, 58, 55 L. ed. 364,
368, 31 Sup. Ct. Rep. 364; Hoke v. United
States, 227 U. S. 308, 323, 57 L. ed. 523,
527, 43 L.R.A.(N.S.) 906, 33 Sup. Ct.
Rep. 281, Ann. Cas. 1913E, 905; Seven
Cases V. United States, 239 U. S. 510,
515, 60 L. ed. 411, 415, L.R.A.1916D,
164, 36 Sup. Ct. Rep. 190; United States
V. Doremus, 249 U. S. 86, 93, 94, 63 L. ed.
493, 496, 497, 39 Sup. Ct. Rep. 214. The
war power of the United States, like its
other powers and like the police power
of the states, is subject to applicable
constitutional limitations (Ex parte
Milligan, 4 Wall 2, 121-127, 18 L. ed.
281, 295-298; Monongahela Nav. Co. v.
United States, 148 U. S. 312, 336, 37 L.
ed. 463, 471, 13 Sup. Ct. Rep. 622 ; United
States V. Joint Traffic Asso. 171 U. S.
505, 571, 43 L. ed. 259, 288, 19 Sup. Ct.
Rep. 25; McCray v. United States, 195
U. S. 27, 61, 49 L. ed. 78, 97, 24 Sup. Ct.
Rep. 769, 1 Ann. Cas. 561; United States
V. Cress, 243 U; S. 316, 326, 61 L. ed.
746, 752, 37 Sup. Ct. Rep. 380) ; but the
5th Amendment imposes in this respect
no greater limitation upon the national
power than does the 14th Amendment
upon state power (Re Kemmler, 13(3 U.
S. 436, 448, 34 L. ed. 519, 524, 10 Sup.
Ct. Rep. 930; Carroll v. (Greenwich Ins.
Co. 199 U. S. 401, 410, 50 L. ed. 246, 250,
26 Sup. Ot. Rep. 66). If the nature and
conditions of a restriction [157] upon
the use or disposition of property are
such that a state could, under the police
power, impose it consistently with the
14th Amendment without making com*
pensation, then the United States may
for a permitted purpose impose a like
1 War acts authorizing the seizure or
requisition of property;
March 4, 1917, chap. 180, .39 Stat. 1168,
1193, Comp. Stat. § 3115^c; July 1, 1918,
hap. 113. 40 Stat, at L. 6:)4, 651, factories,
ships, and war materials; June 15, 1917,
<^hap. 29, 40 Stat, at L. 182, 183, Comp.
Stat. § 3115ee; April 22, 1918, chap. 62,
40 Stat, at L. 535, November 4, 1918, chap.
•201. 40 Stat, at L. 1020. Comp. Stot. §
3115^d, street railroads, equipment, etc.,
and the acquisition of title to Uudds, plants,
4^tc.; August 10, 1917, chap. 53, 40 Stat, at
L. 276, 279, Comp. Stat. §§ SllSJe, 3115ihh
iFood Control Act), foods, fuels, factor icj^,
padkhig houses, coal mines, coal supplier,
etc; March 21, 1918, chap. 25, 40 Stat, at
L. 451, railroads; May 16, 1918, chap. 74,
40 Stat, at L. 550, 551, June 4, 1918, chap.
«4 14. ed.
90, 40 Stat, at L. 503, houses, buildings,
properties, etc., in District of Columbia;
Julr 18, 1918, chap. 157, 40 Stat, at L. 913,
915', ships; July 16. 1918, chap. 154, 40 Stat,
at L. 904, telephone and telegraph systems;
October 5. 1918, chap. 181, 40 Stat, at L.
1009, 1010, mines, mmeral lands, etc.
See also Act of June 3, 1916, chap. 134
(39 Stat, at L. 166, 213), for the mobiliza-
tion of Industrie's, which authorizes the
seiziu'e of munition plants, and provides
that the compensation therefor snail be
"fair and just," and the Act of March 4,
ID17, chap. 180 (39 Stat, at L. 1168, 1169.
Oomp. Stat. § 3115:^f), authorizing the ac-
quisition of aeroplane patents by condem-
nation, for wbicli $1,000,000 was appropri-
ated.
1»9
157-1 59
JSIPREME COURT OF THE UNITED STATES,
Got. Tkrm,
restriction consistently with the 5th
Amendment without making compensa-
tion ; for prohibition of the liquor traffic
is conceded to be an appropriate means
of increasing our war efficiency.
There was no appropriation of the
liquor for public purposes. The War-time
Prohibition Act fixed a period of seven-
months and nine days from its passage,
during which liquors could be disposed
of free from any restriction imposed by
the Federal government. Thereafter,
until the end of the war and the termi-
nation of mobilization, it permits an un-
restricted sale for export, and, within
the United States, sales for other than
beverage purposes. The uncompensated
restriction upon the disposition of liquors
imposed by this act is of a nature far
less severe than the restrictions upon
the use of property acquired before the
enactment of the prohibitory law, which
were held to be permissible in cases aris-
ing under the 14th Amendment. Mug-
ler V. Kansas, 123 U. S. 623, 668, 31
L. ed. 205, 212, 8 Sup. Ct. Eep. 273;
Kidd V. Pearson, 128 U. S. 1, 23, 32 L.
ed. 346, 351, 2 Inters. Com. Rep. 232, 9
Sup. Ct. Rep. 6. The question whether
an absolute prohibition of sale could be
applied by a state to liquor acquired be-
fore the enactment of the prohibitory
law has been raised by this court, but
not answered, because unnecessary to a
decision. Bartemeyer v. Iowa, 18 Wall.
129, 133, 21 L, ed. 929, 930; Boston Beer
Co. v. Massachusetts, 97 U. S. 26, 32, 33,
24 L. ed. 989, 991, 992; Eberle v. Michi-
gan, 232 U. S. 700, 706, 58 L- ed. 803,
806, 34 Sup. Ct. Rep. 464; Barbour v.
Georgia, 249 U. S. 454, 459, 63 L. ed.
704, 707, 39 Sup. Ct. Rep. 316. See,
however, Mugler v. Kansas, 123 U. S.
G23, 625, 657, 31 L. ed. 205, 209, 8 Sup.
(.*t. Rep. 273. But no reason appears
why a state statute, which postpones
its effective date long enough to en-
able those engaged in the business to
dispose of stocks on hand at the date of
its enactment, should be obnoxious to the
14th Amendment ; or why such a Federal
law should be obnoxious [158] to the
5th Amendment. We cannot say that
seven months and nine days was not a
reasonable time within which to dispose
of all liquors in bonded warehouses on
November 21, 1918. The amount then
in storage was materially less than was
usually carried; ' because no such liquor
could be lawfully made in America
under the Lever Food and Fuel Control
Act (August 10, 1917, ch^. 53, § 15,
40 Stat, at L. 276, 282, Comp. Stat.
§ 3115il) after September 9, 1917. And
if , as is suggested, the liquors remaining
' in bond November 21, 1918, were not yet
sufficiently ripened or aged to permit
them to be advantageously disposed of
within the limited period of seven
months and nine days thereafter, the
resulting inconvenience to the owner,
attributable to the inherent qualities of
the property itself, cannot be regarded
as a taking of property in the constitu-
tional sense. Clark Distilling Co. y.
Western Maryland R. Co. 242 U. S. 311.
332, 61 Tx ed. 326, 341, L.R.A.1917B,
1218, 37 Sup. Ct. Rep. 180, Ann. Cas.
1917B, 845.
Second: Did the act become void by
the passing of the war emergency before
the commencement of these suits t It is
conceded that the mere cessation of hos-
tilities under the armistice did not
abridge or suspend the power of Congress
to resort to prohibition of the liquor
traffic [159] as a means of increasing
our war efficiency; that the support and
care of the Army and Navy during de-
mobilization was within the war emer-
gency; and that, hence, the act was valid
when passed. The contention is that be-
tween the date of its enactment and the
commencement of these suits it had be-
come evident that hostilities would not
be resumed; that demobilization bad
been effected ; that thereby the war emer-
gency was removed; and that when the
emergency ceased the statute became
void.
To establish that the emergency has
passed, statements and acts of the Presi-
SThe amount of distilled spirits of all
kinds in bonded warehouses June 30, 1919,
was 72,358,151.1 gallons as c<Mnpared with
282,036,460.2, June 30, 1914; 253,668,341.3
gallons, June 30, 1915; 232,402,878.3 gal-
lons, June 30, 1916; 104,832,682.6 gallons,
June 30, 1917; 158,959,264.5 gallons, June
30, 1918. Report of the Commissioner of
Internal Revenue for 1019, p. 173. The fol-
lowing explanation is given by the Conmiis-
sioner, p. 51, why more was not withdrawn :
"The high rates of tax on spirits, fermented
liquors and winea which were provided in
200
the bill subsequently enacted into law as
the Revenue Act of 1918 [Act of February
24, 1919, 40 Stat, at L. 1057, chap. 18,
Comp. Stat. § 6371H]f prompted many
dealers to make heavy purchases of these
commodities prior to the passage of the act,
and, as a consequence of this action on the
part of the dealers as well as of the expan-
sion of prohibition territory throughout the
United States, the withdrawals from bond-
ed warehouses materially declined alter the
passage of the act.^
S51 V. B.
in».
HAMILTOX V. KKNTL'CKV DiSTlLLERlKK jt \V. CO.
159-161
dent and of other executive officers are
ftddneed; some of them ahtedating the
enactment of the statute here in ques-
tion. There are statements of the Presi-
dent to .the effect that the ^^r has
ended ' and peace has come ; ^ that cer-
tain war agencies and activities should
be discontinued;^ that our enemies are
impotent to renew hostilities;*' and that
the objects of the aot herd in question
have been satisfied in the demobilisation
o£ the Army and Navy.^ It is shown
that many war-time activities have been
Bu^^ended; that vast quantities of war
materials have been disposed Of; that
trade with Germany has been resumed;
and that the censorship of postal, tele-
graphie, and wire communications has
h^en, removed.* But we have also the
fact that since these statements .were
made and these acts [160] wete done,
Congress, on October 28, 1919, passed
over the President's veto the National
Prohibition Aot, which, in making fur-
ther provision for the administration of
the War-time Prohibition Act, treats the
war as continuing and demobilization as
incomplete; that the Senate, on November
19, 1919, refused to ratify the Treaty
of Peaee with Germany ;^ that^ under
the provisions of the Lever Act, the
President resumed, on October 30, 1919,
the control of the fuel supply which he
had relinquished partly on January "31,
1919, and partly on February 20, 1919 ; ^^
that he is still operating the railroads,
of which control had been taken as a
war measure ; and jthat on November 18,
1919, he vetoed Senate Bill 641, because
it diminished that control ; ^^ that, pur-
suant to the Act of March 4, 1919, chap.
125, 40 Stat, at L. 1348, he continues to
control, by means of the Food Adminis-
tration Grain Corporation, the supply of
grain and wheat flour; that through the
United States Sugar Equalization Board,
Inc., he still regnilates the price of sugar;
that in his message to Congress on De-
(»ember 2, 1919, he urgently recommended
the further extension for six months of
the powers of the Food Administration;
that as Commander in Chief he still
keeps a part of the Army in enemy-occu-
pied territory and another part in Si-
beria; and that he has refndned from
issuing the proclamation declaring the
termination of demobilization for which
this act provides.
The present contention may be stated
thtks : That, notwithstanding the act was
a proper exercise of the war power of
Congi^ss at the date of its approval, .
and contains its own period of limita-
tion,— "until the conclusion of the pres-
ent war and thereafter until the termi-
nation of demobilization," — [161] the
progress of events since that time had
produced so great a change of condi-
tions and there now is so clearly a want
of necessity for conserving the man
power of the nation, for increased
efficiency in the production of arms,
munitions, and supplies, that the pro-
hibition of the sale of distilled spirits
for beverage purposes can no long-
er be enforced, because it would
be beyond the constitutional authority
of Congress in the exercise of the war
power to impose such a prohibition under
present circiltnstances. Assuming that
the implied power to enact such a pro-
hibition must depend not upon the exist-
ence of a technical state of war, termi-
nable onl^ with the ratification of a
treaty of peace or a proclamation of
peace (United States v. Anderson, 9
Wall. 66, 70, 19 L. ed. 615, 619 ; The Pro-
tector, 12 Wall. 700, 702, 20 L. ed. 463,
464; J. tlibas y Hijo v. United States,
194 U. S. 315,. 323, 48 L. ed. 994, 996, 24
Sup. Ct. Eep. 727), but upon some actual
emergency or necessity arising out of the
war or incident to it, still, as was said
in Stewart v. Kahn (Stewart v. Bloom)
11 Wall. 493, 507, 20 L. ed. 176, 179,
"The power is not limited to victories in
the field and the dispersion of the in-
surgent forces. It carries with it in-
herently the power to guard against the
immediate renewal of the conflict and to
remedy the evils which have arisen from
its rise and progress."
s Address to Congress, Official U. S. Bulle-
tin» November 11, 1918, p. 5.
4 Thanksgiving Proclamation, Official U.
S. Bulletin, November 18, 1918, p. 1.
s Address to Congress, December 2, 1918,
Official U. S. Bulletin, December 2, 1918,
p. 6.
• Armistice Commemoration Proclamation,
November 11, 1919.
•^Veto Message, October 27, 1919, Con-
greflsional Record. October 27, 1919, p. 806,3.
«U. 8. Official Bulletin, November 12,
1918, p. 3; November 22, 1918, p. 1; Xo-
•4 L. ed.
vember 27, 1018, p. 7; December 12. 1918,
p. 4; December 20, 1918, p. 4; December 30,
1918, p. 7; United States Bulletin, Feb-
ruary 27, 1919, p. 6; May 8, 1919; May 12,
1919, p. 14; October 20, 1919, p. 17.
9 Congressional Record, November 19,
1919, p. 9321.
10 United States Bulletin, November 10.
1919, p. 9; y. S. Official Bulletin, January
18, 1919. p. 1.
11 Congressional Record, November 19,
1910, p. 9323.
301
1H1-1H3
SIPRK.MK COURT OF TIIK UNITED STATES.
Oct.
No principle of our constitutional \&w I
is more firmly established than that this I
court may not, in passing upon the valid-
ity of a statute; inquire into the motives
of Congress. United States v. Des
Moines Nav. & R. Co. 142 U. S. 510, 544,
35 L. ed. 1099, 1109, 12 Sup. Ct Rep.
308; McCray v. United States, 195 U. S.
27, 53-59, 49 L. ed. 78, 94-97, 24 Sup.-
Ct. R^p. 769, 1 Ann. Cas. 561 ; Weber v.
Freed, 239 U. S. 325, 330, 60 L. ed.
308, 310, 36 Sup. Ct. Rep. 131, Ann, Cas,
1916C, 317; Dakota Cent. Teleph. Co. v.
South Dakota, 250 U. S. 163, 184, 63 L.
ed. 910, 924, 4 A.L.R. 1623, P.U.R.1919D,
717, 39 Sup. Ct. Rep. 507. Nor may the
court inquire into the wisdom of the
legislation. M'Culloch v. Maryland, 4
Wheat. 316, 421, 4 L. ed. 579, 605; Gib-
bons V. Ogden, 9 Wheat. 1, 197, 6 L. ed.
23, 70; Brushaber v. Union P. R. Co. 240
U. S. 1, 25, 60 L. ed. 493, 504, L.R.A.
1917D, 414, 36 Sup. Ct. Rep. 236, Ann,
Cas. 1917B, 713; Rast v. Van Deman &
L. Co. 240 U. S. 342, 357, 60 L. ed. 679,
687, L.R.A.1917A, 421, 36 Sup. Ct. Rep.
370, Ann. Cas. 1917B, 456. Nor may it
pass upon the necessity for the exercise
of a power possessed, since the possible
abuse of a [162] power is not an argu*
ment against its existence. Lottery
Case (Champion v. Ames) 188 U. S. 321,
363, 47 L. ed. 492, 504, 23 Sup. Ct. Rep.
321, 13 Am. CrinL Rep. 561.
That a statute valid when enacted may
cease to have validity, owing. to a change
of circumstances, has been recognized
with respect to state laws, in several
rate cases. Minnesota Rate Cases
(Simpson v. Shcpard) 230 U. S. 352,
473, 57 L. ed. 1511, 1571, 48 L.R.A.(N.S.)
1151, 33 Sup. Ct. Rep. 729, Ann. Cas.
1916A, 18; Missouri Rate Cases (Knott
V. Chicago, B. & Q. R. Co.) 230 U. S. 474,
508, 57 K ed. 1571, 1594, 33 Sup. Ct.
Rep. 975; Lincoln Gas & E. L. Co. v.
Lincoln, 250 U. S. 256, 268, 63 L. ed.
968, 976, 39 Sup. Ct. Rep. 454. That the
doctrine is applicable to acts of Con-
gress was conceded arguendo in Perrin
V. United States, 232 U. S. 478, 486, 58
L ed. 691, 695, 34 Sup. Ct. Rep. 387,
and Johnson v. Gearlds, 234 U. S. 422,
446, 58 L. ed. 1383, 1393, 34 Sup. Ct.
Rep. 794. In each of these cases Con-
gress had prohibited the introduction
of liquor into lands inhabited by In-
dians, without specified limit of time; in
one case the prohibition was in terms
perpetual; in the other it was to con-
tinue "until otherwise provided by Con-
gress." In both cases it was contended
that the constitutional power of Congress
over the subject-matter necessarily was
3oa
limited to what was reasonably essential
to the protection of the Indians. In the
Perrin Case it was contended (p.. 482)
that the power. was transcended because
the prohibition embraced territory great-
ly in excess of what the situation reason-
ably required, and because ite operation
was not eonfined to a designated period
reasonable in duration, but i^parently
was intended to be perpetual. In John-
son V. Gearlds the contention was (p.
442) that a prohibition originally valid
had become obsolete by reason of changes
in the character of the territory included
in it and the status of the Indians thei^
in. In both cases the court, while assura-
ing that since the power to impose a
prohibition of this charact^ ^as inci-
dent to the presence of the Indians and
their, status as wards of the government,
and did not extend beyond what was
reasonably essential to their protection,
it followed that a prohibition valid in
the beginning would become inoperative
when, in regular course, the Indians
affected were completely emancipated
from Federal guardianship and controlt
[163] nevertheless held that the courts
would' not be justified in declaring that
the restricAon either was originally in-
valid or had become obsolete S any con-
siderable number of Indians remained
wards of the government within the
prohibited territory. In ealsh case the
decision rested upon the ground Uiat
the question what was reasonably essen-
tial to the protection of the Indians waa
one primarily for the consideration of
the lawmaking body; that Congress was
invested with a wide discretion; and
that its action, unless purely arbitrary,
must be accepted and given full effect
by the courts.
Conceding, then, for the purposes of
the present case, that the question of the
continued validity of the War Prohibi-
tion Act under tlie changed circum-.
stances depends upon whether it appears
that there is no longer any necessity for
the prohibition of the Sale of distilled
spirits for beverage pui7>oses, it remains
to be said that, on obvious grounds*,
every reasonable intendment must be
made in favor of its continuing validity,
the prescribed period of limitation not
having arrived; that to Congress, in the
exercise of its powers, not least the war
power upon which the very life of the
nation depends, a wide latitude of dis-
cretion must be accorded; and that it
would require a clear case to justify a
court in declaring that such an act.
passed for such a purpose, had ceased
to have force because the power of Con-
251 U. 6.
lina.
HAM
KKNTUCKY DISTILLKUIES & W. 00.
13*3-W7
no loBger eontinued. In view of
facts of publie knowledge, some of which
have been referred to, that the Treaty
of Peaee had not yet been concluded,
that the railways are still under national
control by virtue of the war powers, that
other war activities have not been,
broiight to a dose, and that it cannot
even be said that the man power of the
nation has been restored to a peace foot-
ingv we are unable to conclude that the
aet lias ceased to be valid.
Third: Was the aet repealed by the
adoption of the ISth Amendment f By
the express terms of the [164] Amend-
mei^ the prohibition thereby imposed
beeomes effective after one year from its
rat^eation. Ratification was proclaimed
on January 29, 1919 (40 Stat, at L. pt.
2, A|^z.). The contention is that, as the
Ajaaendment became, on its adoption, an
integral part of the Constitution, its im-
plieations are as binding as its language ;
that, in postponing the effective date of
the prohilntion, the Amendment implied-
ly guaranteed to manufacturers and
dealers in intoxicating liquors a year of
graee; and that not only was Congress
prohibited thereby from enacting mean-
while new prohibitory legislation, but
also that the then-existing restriction
imiMMed by the War-time Prohibition
Aet was removed. See Narragansett
Brewing Co. v. Baker & O'Shaunessy
(Nov. 12, 1919; U. S. D. Ct. R. I.).
The 18th Amendment, with its. impli-
eatkmSy if any, is binding not only in
times of peace« but in war. If there be
found by implication a denial to Con-
gress of the right to forbid before its
effeetive date any prohibition of the
liqnor traffic, that denial must have been
operative immediately upon the adoption
of the Amendment, although at that time
demobilization of the Army and the
Navy was far from complete. If the
Amendment effected such a denial of
power, then it would have done so equal-
ly had hostilities eontinued flagrant or
been renewed. Furthermore, the Amend-
ment is binding alike upon the United
States and the individual states. If it
guarantees a year of immunity from in-
terference by the Federal government
with the liquor traffic, even to the extent
of idirogating restrictions existing at the
lime of its adoption, it is difficult to see
why the guaranty does not extend also
to immxmity from interference by the
individual states, with like results also
as to then-existing state legislation.
The contention is clearly unsound.
Fourth: Did the |Hrohibition imposed
by the act expire by limitation before
K*4 L. ed.
the commencement of these suitat The
period therein prescribed is ''until the
conclusion of [165] the present war
and thereafter until the termination of
demobilization, the date of wliieh shall
be determined and proclaimed by the
President of the United States." It. is
contended both that the war has been
concluded an^ that the demobilization
has terminated.
■ In the absence of specific provisions
to the contrary the period of war has
been held to extend to the ratification
of the Treaty of Peace or the proclama-
tion of peace, J. Ribas y Hijo v. Unitetl
States, IJ)4 U. S. 315, 323, 48 L. ed. 904,
996, 24 Sup. Ct. Rep. 727; The Prote/etor,
12 Wall. 700, 702, 20 L. ed. 463, 464)
United States v. Anderson, 9 Wall, ^
70, 19 L. ed. 616, 619. From the fact
that other statutes concerning war activi-
ties contain each a specific provision for
determining when it shall cease to be
operative,^' and from the alleged ab-
sence of [100] such a provision here, it
is argued that the term '^conclusion of
the war*' should not be given its ordi-
nary legal meaning; that instead it
should be construed as the time when
actual hostilities ceased; or when the
Treaty of Peace was signed at Ver-
sailles, on June 28, 1919, by the Amer-
ican and €lerman representatives; or,
more generally, when the aetual war
emergencies ceased by reasoi\ of our
complete victory and the disarmament
of the enemy, coupled with the demobil-
ization of our Army and the closing of
war activities; or when the declared
purpose of the act of "conserving the
man power of the nation, and to in-
crease [107] efficiency in the pro-
duction of arms, munitions, ships, food,
and clothing for the Army and Navj',"
shall have been fully satisfied. But
there is nothing in the weirds used to
justify such a construction. "Conclu-
sion of the war" clearly did not mean
cessation of hostilities; because the act
was approved ten days after hostilities
had ceased upon the signing of the ar-
mistice. Nor may we assume that Con-
gress intended by the phi-ase to designate
the date when the Treaty of Peace
should be signed at Versailles or else-
18 The provisions fixing the date of expi-
ration of the several war acts are as follows :
(Aircraft Act. being chap. 16 of the
Army Appropriation Act of July ^» 191^,
chap. 143, 40 Stat, at L. 889.) "Within one
year from the signing of a treaty of peace
with the Imperial German Government.**
(Department Reorganization Act of May
20. 1918, chap. 78, 40 Stat, at L. 556, CJomp.
203
W, 1«8
SUPREME COURT OF THE UNITED STATES.
Got. Tjolm
where by German and American repre-
aentativesy since by the Constitution a
treaty .is only a proposal until approved
by the Senate. Furthermore, to construe
"conclusion of the war** as meaning the
actual termination of war activities
would leave wholly uncertain the date
when the act would cease to be opera-
tive; whereas Congress evinced here, as
in other war statutes, a clear purpose
that the date of expiration should be
definitely fixed. The reason why this was
not directed to be done by a proclama-
tion of peace is made clear by the use of
the woi^i "thereafter." It was expected
that the "conclusion of the war" would
precede the termination of demobiliza-
tion. Congress, therefore, provided that
^e.time when the act ceased to be Opera-
tive should be fixed by the President's
ascertaining and proclaiming the date
when demobilization had terminated.
It is insisted that he has done so. The
contention does violence to both the lan-
guage and the evident purpose of the
pi^vision. The "date of which shall be
determined and proclaimed by the Presi-
dent" is a phrase so definite as to leave
no room for construction. ThiB require-
ment cannot be satisfied by passing ref-
erences in messages to Congress, nor by
newspaper interviews with high officers
of the Army or with officials of the War
Department. When the President men-
tioned in l^s veto message the "demobUi-
z6fiolf of the Army and Navy" the wards
were doubtless used in a popular senses
[168] just as he had declared to Con-
gress, on the occasion of the signing of
the armistice: "The war thus oMnes
to an end." If he had bdieved on Octo-
ber 28, 1919, that demobilizatfon had^
in an exact sense, terminated, he would
doubtless have issued then a proelama-
tion to that effect; for he had manifest-
ed a strong conviction that ^restiiielSon
upon the sale of liqtior should end.
Only by such proclamation could tiie
purpose of Congress be attained, and
the serious consequences attending mi-
certainty be obviated. But in fact
demobilization had not terminated l^t
Stat. § 283a.) "That this act sliall remain
In force during the coiLtinuanoe of the pres-
ent war and for six months after the termi-
nation of the war by the proclamation of
the Treaty of Peace."
(Emergency Shipping Fund Act of June
15, 1917, chap. 29, 40 Stat, at L. 182, aa
amended hy the Act of April 22, 1918, chap.
62, 40 Stat, at L. 635, and by the Act of
yovember 4, 1918, chap. 201, 40 Stat, at L.
1020, Comp. SUt. § 3116^d.) *'A11 au-
thority . . . shall cease six months after
a final treaty of peace is proclaimed be-
tween this government and the German Em-
pire."
(Charter Rate and Requisition Act of
July 18, 1918, chap. 157, 40 Stat, at L.
913, Comp. Stat. § 3115^fff.) "All power
and authority . . . shall cease upon the
proclamation of the final treaty of peace
between the United States and the Imperial
German Government."
(Railroad Control Act of March 21, 1918,
chap. 25, 40 Stat, at L. 451, 458, Comp.
Stat. §§ 3115Ja, 3115|n.) ". . . . Fed-
eral control . . . shall continue for and
during the period of the war and for a
reasonable time thereafter, which shall not
exceed one year and nine months next fol-
lowing the date of the proclamation . . .
of the exchange of ratifications of the
Treaty of Peace."
(Food Control Act of August 10, 1917,
chap. 53, 40 Stat, at L. 276, 283. Comp.
Stat. §§ 3115 Je, 3115ipp.) "Sec. 24. That
the provisions of this act shall cease to he
in effect when the existing state of war be-
tween the United States and Germany shall
have terminated, and the fact and date of
tuch termination shall be ascertained and
proclaimed by the President."
(Trading with the Enemy Act of October
il04
6, 1917, chap. 106, 40 Stat, at L. fill, 4;12,
Comp. Stat. §§ 3115aa, 3115iaa.) *The
words *end of the war.* as used herein, ^aTT
be deemed to mean the date of procliirna-
tion of exchange of ratifications of trie
Treaty of Peace, unless the President shall;
by proclamation, declare a prior date, ih
which case the date so proclaimed alu^l be
deemed to he 'the end of the war/ within
the meaning of this act." i -
(Soldiers and Sailors' Civil Relief Act
of March 8, 1918, chap. 20, 40 Siat. at L.
440, at 441 and 449, Comp. Stat. §§ 3078fa,
3078iaa, 30781s.) "(5) The term 'termi-
nation of war' as used in this act lAiall
mean the termination of the present wUr
by the Treaty of Peace as proclaimed by
the President. ... § 603. That this,
act shall remain in force until the termina-
tion of the war, and for six months there-
after."
(Saulsbury Resolution of May 31,, 1918..
chap. 90, 40 Stat, at L. 693.) "That until
a treaty of peace shall have been definitely
concluded between the United States and
the Imperial German Government, unless in
the meantime otherwise provided by (in-
gress . . ."
(Wheat Price Guarantee Act of March 4,
1919, chap. 126, § 11, 40 Stat, at L. 1348,
1353, Comp, Stat. § 31151kk(ll).) -nThat
the provisions of this act shall ceato to be
in effect whenever the President shall find
that the emergency 'growing ont of the war
with Germany has passed, and tiiat .tins
further exeenlion of the provisions of this
act is no longer necessary for its purposes,
tiie date of which termination shall be as-
certained and proclaimed by the President;
but the date when this act shall eease to
be in effect shall not be later than the first
day of June, nineteen hundred and twenty."
851 U. 8i
1919.
SLLLIVAN V. SHKKVliPOKT.
168, 169
the time of the veto of the Act of
October 28, 1919, or at the time these
suits ^were begun; and, for aught that
^>petLrs, it has not yet terminated.
The report of the Secretary of War,
made to the President under date of
November 11^ 1919 (and transmitted to
Congress on December 1), In describ-
ing the progress of demobilization, shows
(p. 17) that during the preceding ten
days (November 1-10) 2,018 officers and
10,266 enlisted men had been discharged;
the rate of discharge being substantially
the eame as daring the month of October
-4n whieh 8,690 officers and 33,000 en-
list'--^ men were discharged.
The War-time Prohibition Act being
thus valid and still in force, the decree
in Number 589 is reversed and the case
18 lemanded to the District Court with
direeftionB to dismiss the bill; and the
daeree in Number 602 is affirmed.
No. b8&. Reversed.
No. 602. Affirmed.
11693 W. A. SULLIVAN, Plff. in Err.,
V.
CITY OF SHREVEPORT.
(See S. C. Reporter's ed. 169-173.)
Ooarto — relation to mnnidiMU depart-
meiu of government.
X, Swj inteDdment is to be made in
favor of the lawfulness of the exercise of
municipal power in making regulations to
promote the public health and safety, and
it is not the province of the courts, except
in clear cases, to interfere with the exer-
cise of the power reposed by law in munic-
ipal corporations for the protection of local
ngfats and the health and welfare of the
people in the community.
(Fy>r otber canes, see Courts, I. e, 5, in Digest
Sup. Ct. 1008.]
Constitutional law — doe process of
law — police power — municipal re^ni-
latlon of street railways — prohibit-
ing vse of one-man cars.
2. A municipal ordinance, confessedly
a valid exercise of the police power when
adopted, under which each street car used
in the city streets must be operated during
designated hours by two persons, a motor-
man and a conductor, cannot be said to be
so arbitrary and confiscatOTy as to deny
due process of law when so applied as to
prohibit the use on a lifie on which the
travel is heavy at times, and which has
at least one steep grade, of a new type
of car still in the experimental stage, so
equipped that it ma^ plausibly be contended
that if all the appliances work as it is in-
tended that they shall, it may be operated
at a reduced cost by one motorman, with a
high degree of safety to the public in streets
where the traffic is not heavy.
[For other cases, see Constitntional Law, IV.
b, 4; IV. c, 2, in Digest Sup. Ct. 1908.]
[No. 89.]
Submitted November 17, 1919. Decided
December 15, 1919.
IN ERROR to the Supreme Court of
the State of Louisiana to review a
judgment which affirmed a judgment of
the City Court of Shrev^ort, convict-
ing a superintendent of a street railway
company of violating ten, ordinance fbr-
bidding the use of one-man cars. Af-
firmed.
See same case below, 142 La. 573,
77 So. 286.
The facts are stated in the opinion.
Mr. £. H. Randolph submitted the
cause for plaintiff in error:
The legislature may not, under the
guise of protecting the public interests,
arbitrarily interfere with private busi-
ness or impose unusual and unnecessary
restrictions upon lawful occupations.
In other words, its determination as to
what is a proper exercise of its police
powers is not final or conclusive, but
subject to the supervision of the courts.
Lawton v. Steele, 152 U. S. 133, 38
L. ed. 385, 14 Sup. Ct. Rep. 499.
It may be admitted that every in-
tendment is to be made in favor of the
l&wfulness of the exercise of municipal
Note. — ^A^ to what constitutes due
process of law, generally — see notes to
People V. O'Brien, 2 L.R.A. 255; Kuntz
V. Sumption, 2 L.R.A. 655; Re Qannon,
5 IaBA. 359; Ulman v. Baltimore, 11
LB.A. 224; Oilman v. Tucker, 13 L.R.A.
304; Pearson v. Yewdall, 24 L. ed. U.
S. 436; and Wilson v. North Carolina,
42 L. ed. tJ. S. 865.
For a discussion of police power, gen-
erally— see notes to State v. Marshall,
1 L.R.A. 51; Re Gannon, 5 L.R.A. 359;
SUte V. Schlemmer, 10 L.R.A. 135;
•4 1^. ed.
Ulman v. Baltimore, 11 L.R.A. 224;
Electric Improv. Co. v. San Francisco,
13 L.R.A. 131 ; and Barbier v. Connolly,
28 L. ed. U. S. 923.
On validity of ordinance requiring
conductor on street car — see note to
South Covington & C. Street R. Co. v.
Berry, 15 L.B.A. 604.
Power of mnnidpaUty to. prohibit use
of one-man street car.
I Municipal ordinances requiring more
205
SUPREME COURT OF THE UNITED STATES.
Oct. Tkrm,
power,, making regulations to promote
the public health and safety, and that
it is not the province of the courts, ex-
cept in clear cases^ to interfere with the
exercise of the power reposed by
law in municipal corporations for the
protection of local rights and the health
and welfare of the people in the com-
munity. But, notwithstanding this gen-
eral rule of the law, it is now thor-
oughly weU settled that municipal
by-laws and ordinances, and even legis-
lative enactment. s undertaking to rt»gu-
late useful business enterprises, are
subject to investigation in the courts
with a view of determining whether the
law or ordinance is a lawful exercise
of the police power, or whether, under
the guise of enforcing police regula-
tions, there has been an unwarranted
and arbitrary interference with the
constitutional rights to carry on a law-
than one man to operate a street car
have generally been sustained under the
police power. South Covington & C.
Street R. Co. v. Berrv, 93 Ky. 43, 15
rxR.A. 604, 40 Am. St. Rep. 161, 18 S.
W. 1026; State, Trenton Horse R. Co.,
I'rosecutor, v. Trenton, 53 N. J. L. 132,
11 L.R.A. 410, 20 Atl. 1076; State ex
rel. Columbia Electric Street R. Light
& R Co. V. Sloan, 48 S. C. 21, 25 S. E.
898.
In South Covington & C. Street R.
Co. v. Berry, supra, an ordinance re-
quiring both a driver and a conductor
to accompany every street car was held
to be a proper exercise by a municipali-
ty of the police power. It appeared
that the cars involved in this case
passed through crowded thoroughfares
and centers of crowded populatioo;
that persons were constantly getting on
and off the cars, which were apt to be
crowded, at least in the morning and
evening, as persons go and return from
their business.
The ordinance involved in State,
Trenton Horse R. Co., Prosecutor, v.
Trenton, 53 N. J. U 1*32, 11 L.R.A. 410,
20 Atl. 1076, was sustained under a
general grant of the police power.
There were, in addition to the general
grant of police power to the municipal-
ity, two special grants: one granting to
the municipality the power to prescribe
the manner in which corporations or
persons should exercise any privilege
granted to them in the use of the
streets; another conferring power to
license and regulate vehicles used for
the transi)ortation of passengers and
merchandise. The court states that so
far a.s the special grants relate to the
power to require more than one man
in the operation of a street car, neither
of the particular delegations of power
added anything to the right to exercise
the police power generally granted. It
is stated further that, the question be-
ing one of the exercise of the police
power, the only question remaining is
whether the regulation is reasonable.
The ordinance in question required the
206
street car company to have an agent in
addition to the driver to assist in the
control of the car and passengers, and
to prevent accidents and disturbances
of the good order and security of the
streets, and this ordinance was held, up-
on its face, not to be an unreaaonable
regulation.
Under certain grants of power to mu-
nicipal corporations, the right of tht
municipality to enact such an ordinance
has been 'denied. Brookljm Crosstown
R. Co. V. Brooklyn, 37 Hun, 413; Thorn-
hill v. Cincinnati, 4 Ohio C; C. 364, 2
Ohio C. D. 592.
In Brooklyn Crosstown R. Co. v.
Brooklyn, supra, the power of the com-
mon council to pass the ordinance was
claimed to exist under the act consoli-
dating the companies, which created the
street railway company in this case,
which act provided ''that in the oon-
struction, maintenance and operation of
said road said new company shall be
subject lo any and all laws or ordi-
nances that have been or may be es-
tablished and in force by the common
council of the city of Brooklyn for the
regulation of horse railroads generally.''
The power was also claimed to exist by
virtue of a statute authorizing the com-
mon council to "regulate and license
common carriers, carriers of passengers,
etc. . . . The common council shall
also fix an annual license fee not ex-
ceeding the sum of $20, for each street
or horse car daily operated or used in
said city. . . . Said license fees
shall be taken in full satisfaction for
the use of the si vets or avenues, but
the same shall not relieve said com-
panies from any obligation now re-
quired by law to keep such streets and
avenues or any part thereof in repair."
The members of the court are not
agreed as to the reason for the invalidi-
ty of the ordinance. Barnard, P. J.,
holds that the subjection of the street
railway company in the construction,
maintenance, and operation of its road
to the laws and ordinances of the eity
is not a general subjeetion, and does
251 U. 8.
Jit.
SULLIVAN V. 8HREVEP0RT.
fol business or make contmcts, or to
oae and enjoy property.
Dobbins v. Los Angeles, 196 U. S.
223, 49 L. ed. 169, 25 Snp. Ct. Rep. 18.
Mr. James £. Smithennan sabmitted
:iie eanse for defendant in error.
tfftfwrs. B. F. Roberts and John P. Phil-
ip« were on the brief:
Power to regulate implies full power
oTer the things to be regulated.
Gibbons v. Ogden, 9 Wheat. 1, 6 L.
ed. 23.
Under the general police power mu-
nicipal corporations have the right to
require a * certain number of servants
on each car, as a driver and a conductor.
3 McQuillin, Mun. Corp. p. 2096.
Ordinances under the general police
power may require a conductor and a
driver on each car.
South Covington & C. Street B. Co.
oot legalize the ordinance; and further,
ibet since the statute conferred upon
:he city authority to regulate and li-
<*ettse common carriers generally, and to
tix an annual license fee for street rail-
road cars^ it seems to have been the
intention of the legislature not to dele-
gate to the municipality the power to
enact the ordinance in -question. Pratt,
J., is also of the opinion that, **vi view
of the f Act that the statute gives to the
trustees of horse railways the power
to manage the affairs of railway com-
panies 'and to r^ulate the manner in
which passengers shall be transported,'
it is quite clear that the indefinite pow-
er to 'license and regulate common car-
riers,' remaining in the city charter,
does not warrant the passage of an
ordinance regulating the manner of the
interior facilities of a car, or necessitat-
ing the use of a large instead of a
!Qnall ear.'' Pratt, J., seems to have
been of the opinion that the validity
of the ordinance in question depended
somewhat upon its reasonableness.
Statutory authority: "1. To prevent
riots, gambling, noise, and disturbance,
indecent or disorderly conduct or as-
semblages, and preserve the peace and
sood order, and protect the property of
^he municipal corporation and its in-
habitants. ... 3. To prevent in-
jury or annoyance from anything dan-
<rerous, offensive, or unwholesome, and
to cause any nuisance to be abated,"
does not confer authority upon a mu-
nicipality to enact a penal ordinance
making it an offense to operate a street
car without having a conductor thereon
in addition to a driver. Thornhill v.
Cincinnati, supra.
Statutory authority 'Ho regulate the
use of carts, drays, wagons, hackney
coaches, .... and every description
of carriages, which may be kept for
hire or livery stable purposes," does not
confer authority upon the municipality
to enact a penal ordinance making it an
offense to run oars without both a driv-
er and conductor. Ibid.
The dutv of a street railwav eom-
S4 li. ed. '
pany which constructed its road under
an ordinance providing that it was to
be operated under the general street
railroad ordinance of the city, one of
the sections of which provided that no
cars should be run without both a driv-
er and conductor, to comply with the
ordinance, cannot be enforced by a
penal ordinance subjecting to punish-
ment by fine or imprisonment for fail-
ure to comply with its proviaions. Ibid.
A street railway company which at
first operated double horse can under
a contract with this city which required
it to employ careful^ sober, and civil
agents, conductors, and drivers to take
charge of its cars, and which subjected
it also to such regulations of the com-
mon council of the municipality as such
council may, from time to time, deem
necessary for the protection of the citi-
zens of the municipality, cannot, when
it has replaced such large cars with
smaller one-horse cars, be required by
the municipality to maintain a conduct-
or in addition to the driver. Toronto v.
Toronto Street R. Co. 16 Ont. App. Rep.
30. Patterson, J. A., states that noth-
ing can turn upon the stipulation that
the company shall at all times employ
careful, sober, and civil agents, con-
ductors, and drivers to take charge of
its cars; that the only cars in use at the
time of the drafting of the agreement
being the large car which carried two
men, the aim of the draftsman was
evidently to require the employment of
careful, sober, and civil men, and not
to provide that any number of men
should be employed. The right to im-
pose such a duty upon the company. is
also denied under the provision that it
shall operate its road subject to such
regulations as the conmion council may
deem necessary for the protection of the
citizens of a municipality; Patterson, J.
A., stating that the requirement in ques-
tion was a direction to the company as
to the mode in which it was to conduct
its business, — a matter which, if the
council can meddle with it at all, must
be the subject of a joint agreement
207
170
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
V. Berry, 93 Ky. 43, 15 L.R.A. 604, 40
Am. St. Rep. 161, 18 S, W, 1026; State,
Trenton Horse R. Co., Prosecutor, v.
Trenton, 53 N. J. L. 132, 11 L.R.A. 410,
20 Atl. 1076.
Requiring an agent in addition to a
driver on each street car is reasonable.
State, Trenton Horse R. Co., Prosecu-
tor, V. Trenton, supra.
Every reasonable intendment of ordi-
nances should be looked for in order to
give validity to an ordinance which is
within the municipal power. Words
signifying the will of the governing
b^y should be given full effect, without
r^ard to the niceties of diction.
28 Cyc. 352; 2 McQuillin, Mun. Corp.
p. 1742.
The legislature has constitutional
power to enable the council to l^slate
on matter within the scope of the char-
ter, notwithstanding the Constitution
has declared that legislative power shall
be vested in a senate, house of repre-
sentatives, and the governor.
Mayor v. Morgan, 7 Mart. (N. S.) 1,
18 Am. Dec. 232.
Railway companies with yards or ter-
minals in cities of the state may, con-
sistently with due process of law, be
forbidden by a state statute to conduct
switching operations across public cross-
ings in cities of the first and second
class with a switching crew of not less
than one engineer, a fireman, a foreman,
and three helpers, although the statute
creates an exemption in favor oi rail-
ways less than 100 miles in length, the
crews of which may operate over the
same identical crossings.
St. Louis, I. M. & S. R. Co. v. Arkan-
sas, 240 U. S. 518, 60 L. ed. 776, 36
Sup. Ct. Rep. 443.
It will be necessary to show that a
railway system, as a whole, would op-
erate at a loss, and not merely that a
certain line of the system was operating
for less than cost, in order to plead
that property is being taken without
due process of law, or that the equal
protection of the law is being denied.
Atlantic Coast Line R. Co. ▼. North
Carolina Corp. Commission, 206 U. S.
1, 27, 51 L. ed. 933, 945, 27 Sup. Ct.
Rep. 585, 11 Ann. Cas. 398.
State legislatures may not only ex-
ercise their sovereignty directly, but
may .delegate such portions of it to in-
teanoY legislative bodies as, in their
judgment, is desirable for local pur-
poses.
Walla Walla v. Walla Water Co. 172
U. S. 1, 9, 43 L. ed. 341, 346, 19 Sup.
308
Ct. Rep. 77; Wright v. Nagle, 101 U. S.
791, 25 L. ed. 921.
It is not the province of the courts
to take issue with the lawmakers as to
the wisdom or necessity of a statute or
ordinance enacted ostensibly in the ex-
ercise of the police power, unless the
enactments have no real or reasonable
relation to public safety, public health,
or morals, — ^are abuses of the police
power, under the pretense of promoting
public safety, health, or morals.
Shreveport v. Sullivan, 142 La. 573,
77 So. 286.
[170] Mr. Justice Olarke delivered
the opinion of the court:
In 1907 the city of Shreveport, Louisi-
ana, passed an ordinance requinng that
each street ear used in its streets should
be operated during designated hours by
two persons, a conductor and a motor-
man, and providing p>enaltie^ tot its vio-
lation.
The company with street railway lines
in the city complied with the require-
ment until in June, 1917, when it pro-
cured some cars equipped for operation
by one man, and attempted to use them
on. its '^Allendale line," with only a
motorman in charge. Thereupon the
plaintiff in error, hereinafter designated
the deJtendant, who was superintendent
of the railway company, was arrested foir
violation of the ordinance.
He defended by filing a motion to
quash the affidavit for arrest, on the
ground that the ordinance was unrea-
sonable and arbitrary and that the en-
forcement of it would deprive the com-
pany of its property without due process
of law and without compensation, in
violation of the 14th Amendment te the
Constitution of the United States*
The motion to quash was '^referred to
the merits," a full trial was had, the
motion was overruled, and the defend-
ant, found guilty, was s^itenced to pay
a fine. The judgment of the supreme
court of Louisiana affirming this judg-
ment is before us for review on writ of
error.
The defense introduced evidence tend-
ing to show that the new t3r]>e of car used
was so equipped that it could be oper-
ated by one motorman with safety to the
public as great as was sectired by cars
theretofore used when operated by two
men. The car, designated in the record
as ''a one-man car," is described as so ar-
ranged that passengers enter and leave
it only at the front end, where the
motorman is placed. It is so equii^d
electrically that the motorman must re-
251 U. 8.
1918.
SULLIVAN V. SHREVKPORT.
170-173
nuun in an assigned [171] position
necessary for the diseharge of his dn-
ties, and mnst perform ''some oonseious
a«t^ at all times when the ear is in mo-
tion. If he fails in this* "conscious act"
the current is automatically cut off, the
brakes- are applied in emergency, the
rail is sanded, and the door of the ear
is unlocked, and is so adjusted that
opening it lowers the step for use.
Iliere is testimony tending to show
economy in the use of such cars, not
only in the saving of the wages of one
man, but also in immunity from ac-
cident.
It is apparent from this description
derived from the record that it presents
for decision the question: Whether the
Ordinance of 1907, confessedly a valid
exercise of the police power when it was
passed, was rendered arbitrary and in-
valid by the development of a car which
it is claimed can be operated by one man
with as much safety to the traveling
public as, and with less cost than, was
secured by the two-man car in use at the
time the ordinance was pas&ed, and
which was contemplated by it.
It is not necessary to decide in this
case whether a* valid regulating or-
dinance can be rendered invalid by a
change of conditions which renders it
arbitrary and confiscatory (Lincoln Gas
ft E. L. Co. V. Lincoln, 250 U. S. 256,
269, 63 L. ed. 968, 39 Sup. Ct. Bep. 454;
Minnesota Rate Cases (Simpson v.
Shepard) 230 U. S. 352, 473, 57 L. ed.
1511, 1571, 48 L.RJV.(N.S.) 1151, 33
Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18;
Johnson v. Gearlds, 234 U. S. 422, 426,
58 L. ed. 1383, 1385, 34 Sup. Ct. Rep.
794; Perrin v. United States, 232 U. S.
478, 481, 58 L. ed. 691, 693, 34 Sup. Ct.
Rep. 387; Municipal Qns Co. v. Public
Service Commission, 225 N. Y. 89, 95, 97,
P.U.R.1919C, 364, 121 N. E. 772; and
Castle V. Mason, 91 Ohio St. 296, 303,
110 N. E. 463, Ann. Cas. 1917A, 164),
for the claim that such a change of con-
dition had arisen in the case is stoutly
disputed by the city authorities.
While on the record before us it might
be plausibly contended that when all the
appliances on the ^'one-man car'' work as
it was intended they should, it could be
operated with a high degree of safety in
streets where the traffic is not heavy, yet
there is evidence that, in the short period
of the operation of 9uch cars in Shreve-
port, [172] the brakes on one of them
failed to operate on a descending grade,
resulting in the car getting out of con-
trol under conditions which, except for
good fortune, might have resulted in
•4 li. ed.
serious accident. A passenger testified
to receiving slight injuries when enter-
ing a car, due to the premature closing
of the door, and he attributed the ac-
cident to the presence of other persons
between him and the motorman whose
duty it was to close the door. It was
in evidence, that the line on which these
cars were placed, while in general one
of light travel, extended into the princi- '
pal business section of a city of 40,000
inhabitants; that it had at least one
steep grade in it, and that at times the
travel was heavy and the cars crowded.
It is obvious, and not disputed, that
such cars are better adapted to light
than to heavy travel, for all passengers
must enter and leave at one door, and
one man must take fares, make change,
issue transfers, answer questions, and
also remain in position to start the car
promptly. So occupied and placed,
plainly this one man could not render
such assistance as is often necessary to
infirm or crippled or very young pas- *
sengers, or to those encumbered with
haggage or bundles, and it would not
be difficult to suggest emergencies of
storm or accident in which a second man
might be of first importance to the safety '
and comfort of passengers.
These ''one-man cars'' at the time of
trial were, as yet, experimental, and
enough has been said to show that in
each community the operation of street
cars presents such special problems— due
to the extent and character of the travel,
to grades and other conditions — that,
with peculiar appropriateness, they have
been committed by. the law primarily to
the disposition of the local authorities,
whose determination will not be dis-
turbed by the courts, except in cases in
which the power has been exercised in a
manner cleariy arbitrary and oppressive.
The rule is, "that every [173] intend-
ment is to be made in favor of the law-
fulness of the exercise of municipal
power, making regulations to promote
the public health and safety, and that
it is not the province of the courts, ex-
cept in clear cases, to interfere with the
exercise of the power reposed by law in
municipal corporations for the protec-
tion of local rights and the health and
welfare of the people in the commu-
nity.'' Dobbins v. Los Angeles, 195 U.
S. 223, 235, 49 L. ed, 169, 175, 25 Sup.
Ct Bep. 18. Since the record, as we
have thus discussed it, fails to show a
clear case of arbitrary conduct on the
part of the local authorities, the judg-
ment of the Supreme Court of Louisi-
ana is affirmed.
4 209
»
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
HARDIN-WYANDOT LIGHTING COM-
PANY, Pl£f. in Err.,
▼.
VILLAGE OP UPPER SANDUSKY.
(See 8. C. Reporter's ed. 175-179.)
Constitutional law — impairiag contract
obligations — due* process off law —
police power — municipal resnlation
off electric company.
1. Any modification of the rights of an
electric light and power company which it
may sufTer by the enactment, in the exer-
cise of the police power, of a statute giv-
ing the municipal authorities complete con-
trol over the placing in the streets of poles
and wires for conducting electricity for
lighting and power purposes, instead of the
like control which they had when the fran-
chise was granted, but subject to resort to
the probate court in case of disagreement
with the company as to the mode of using
the streets, does not constitute an impair-
ing of the obligation of the company's con-
. tract with the state or mimicipality, and
is not a taking of its property without due
process of law.
[For other cases, see ConstltatioDal Law, IV.
b. 4: TV. c, 2; IV. g, 4. e. to Digest Sup.
Ct. 1908.)
Constitutional law — Impairing contract
obligations — mnnicipal regulation off
electric company.
2. The obligation of a municipal elec-
tric light and power franchise covering pub-
lie and private uses, granted when the appli-
cable statute then in force gave the munic-
ipality a qualified control over the erec-
tion of electric light and power appliances
in the streets, was not impaired by sub-
sequent legislation giving the municipal*
ity exclusive control, under which the light
and power company, having removed and
dismantled its street lighting system upon
the expiration of a street lighting contract,
may be restrained from erecting any poles
or wires in the street until the consent of
the municipality shall have been obtained,
without prejudice to the company's right
to maintain, repair, or replace such poiea
and wires as it is then usmg. for commer-
cial lighting.
[For other cases, see Constitational Law»
1435-1439; 1879-1883. in Digest Sup. Ct.
Error to state court -* Federal qnestfcm
— decision on non-Federal fi^onnd —
impairing contract obligation.
3. A decision of the higliest court of a
state is not reviewable in the Federal Su-
preme Court as presenting the question
whether contract obligations were impaired
by the effect given to a municipal ordinance
repealing a street lighting and power fran-
chise, where this contention was first made
in the intermediate state appellate court,
and no eCeot whatever was given to sudi
ordinance, either by that court or by th«
state court of last resort, each court reach-
ing the conclusion under review independ-
ently of and without reference to such ordi-
nance.
f^Pr^S*^^** <^*8c«. "^H? Appeal and Error. 187<J-
1392: 1466-1528, in Digest Sup. Ct. 1908.1
[No. 10.]
Argued October 13, 1919. Decided Decem-
ber 15, 1919.
IN ERROR to the Supreme Ckmrt of
the State of Ohio to review a decree
which affirmed a decree of the Court of
Appeals of Wyandot County, in that
state, which, reversing a decree of the
Court of Common Pleas of that ooonty,
for the dismissal of a petition in a suit
by a municipality to enjoin a light and
power company from erecting additional
poles, and to have its franchise forfeited
and its equipment removed from the
streets, enjoined such company from
erecting poles, wires, or lamps in the
Nota.-^On privilege of nsing streets
as a contract within the constitutional
provision against impairing the obliga-
lion of contracts — see notes to Clarks-
burg Electric Light Co. v. Clarksburg,
50 L.R.A. 142, and Russell v. Sebastian,
L.R.A.1918E, 892.
On error to state courts in cases pre-
senting questions of impairment of con-
tract obligations — see note to Osborne
V. Clark, 51 L. ed. U. S. 619.
Generally, as to what laws are void
as impairing the obligation of contracts
— see notes to Franklin County Gram-
mar School V. Bailey, 10 L.R.A. 405;
BuUard v. Northern P. R. Co. 11 L R. A.
246; Henderson v. Soldiers ft S. Monu-
ment Comrs. 13 L.R.A. 169; and Fletch-
er V. Peck, 3 L. ed. U. S. 162.
210
On the general subject of writs of
error from the United States Supreme
Court to state courts — see notes to Mar-
tin V. Hunter, 4 L. ed. U. S. 97; Ham-
blin V. Western Land Co. 37 L. ed. U.
S. 267; Re Buchanan, 39 L. ed. U. S.
884; and Kipley v. Illinois, 42 L. ed.
U^ S. 998.
On whal adjudications of state courts
can be brought up for review in the
Supreme Court of the United States by
writ of error to those courts — see note
to Apex Transp. Co. ▼. Garbade, 62
L.R.A. 513.
As to how and when cases most be
raised and decided in a state court in
order to make a case for a writ of er-
ror from the Supreme Court of the
United States — see note to Mutual K
I Ins. Co. V. McGrew, 63 L.R.A. 33.
9S1 V. 8.
1919.
HARDIN^WYAXDOT LIGHTING CO. v. UPPEH SAXDl 8KY. 174, 175
streets until mtinicipnl consent shall have
been obtained. Affirmed.
See same case below, 93 Ohio St. 428,
113 N. E. 402.
The facts are stated in the opinion.
Mr. H. T. Mathers argued the eause,
andy with Mr. Thomas M. Kirby, filed
a brief for plaintiff in error:
The Act of April 21, 1896, which
added the proviso to the former grant
of power to. electric light and power
companies, impairs the contract rights
of the plaintiff in error under the Ordi-^
nance of March. 4, 1889.
3 DUL Mun. Corp. §§ 1242, 1306, p.
2150; 1 Allen, Foot & Everett, Incor-
porated Cos. Operating under Munici-
pal Franchise, p. 214; Little Falls Elec-
tric & Water Co. v. Little Falls, 102
Fed. 663; American Waterworks &
Guarantee Co. v. Home Watr? Co. 115
Fed. 171; Cleveland City R. Co. v.
Cleveland, 94 Fed. 385; Ashland Elec-
tric Power & Light Co. v. Ashland, 217
Fed. 158; Clarksburg Electric Light Co.
V. Clarksburg, 47 W. Va. 739, 50 L.R.A.
142, 35 S. E. 994; Owensboro v. Cumber-
land Teleph. & Teleg. Co. 230 U. S.
58, 57 L. ed. 1389, 33 Sup. Ct. Rep. 988;
Bio Grande R. Co. v. Brownsville, 45
Tex. 88; London I Jills v. Fairview-Lon-
don Teleph. Circuit, 105 111. App. 146,
affirmed in 208 lU. 289, 70 N. E. 313;
State, Hudson Teleph. Co., Prosecutor,
V. Jersey City, 49 N. J. L. 303, 60 Am.
Rep. 619, 8 AtL 123; 4 McQuUlin, Mun.
Corp. § 1661; 3 Abbott, Mun. Corp. §§
896, 919, 920; 2 Abbott, Mun. Corp.
§ 834; Pond, Public Utilities, § 133; 28
Cyc. 383, 890; Chicago v. Sheldon, 9
Wall. 50, 55, 19 L. ed. 594, 597; City
R. Co. V. Citizens' Street R. Co. 166
U. a 557, 41 L. ed. 1114, 17 Sup. Ct. Rep.
653; Coast-Line R. Co. v. Savannah, 30
Fed. 646; Citizens' Street R. Co. v.
Memphis, 53 Fed. 715; Detroit Citizens'
Street R. Co. v. Detroit, 26 L.R.A. 667,
12 C. C. A. 365, 22 U. S. App. 570, 64
Fed. 628; Baltimore Trust & G. Co. v.
Baltimore, 64 Fed. 153; Africa v. Knox-
ville, 70 Fed. 729; Birmingham & P. M.
Street R. Co. v. Birmingham Street R.
Co. 79 Ala. 465, 58 Am. Rep. 615; Par-
melee V. Chicago, 60.111. 267; People v.
Chicago W^t Div, R. Co. 18 111. App.
125; Western Paving & Supply Co. v.
Citizens' Street R. Co. 128 Ind. 525, 10
L.R.A. 770, 25 Am. St. Rep. 462, 26 N.
K 188, 28 N. E. 88; Williams v. Citi-
zens' R. Co. 130 Ind. 71, 15 L.R.A. 64,
30 Am. St. Rep. 201, 29 N. E. 408;
Hovelman v. Kansas City Horse R. Co.
79 Mo. 632; Elansas City v. Corrigan,
%4 li. ed.
86 Mo. 67; New York v. Second Ave. R.
Co. 32 N. Y. 261 ; People v. O'Brien, 111
N. Y. 1, 2 L.R.A. 255, 7 Am. St. Rep.
684, 18 N. E. 692; Kaukauna Electric
Light Co. V. Kaukauna, 114 Wis. 327, 89
N. W. 542.
The notion that a corporation which
has, upon the strength of a permission
to use streets, spent thousands of dol-
lars in erecting its poles and stretching
its wires, is at the mercy of the city
authorities continually and entirely, is
not to be entertained for a moment.
State, Hudson Teleph. Co., Prosecu-
tor, V. Jersey City, 49 N. J. L. 30, 60
Am. Rep. 619, 8 Atl. 123.
Mr. W. B. Hare argued the cause and
filed a brief for defendant in error.
Mr. Justice Clarke delivered the opin-
ion of the court:
In 1889 the council of the village of
Upper Sandusky, Ohio, enacted an or-
dinance, authorizing an electric light and
power company, and its assigns, to use
the streets of the village for the pur-
pose of erecting and operating electric
light wires for the distribution of elec-
tric light and power. The ordinance
declared that "the privilege hereby
granted*' shall entitle the company "to
manufacture, sell, and distribute light
and power by means of electricity to the
citizens of the village for public and
private uses."
The grantee, accepting the franchise,
constructed a generating plant, erected
poles, wires, and lamps, and, until the
year 1912, lighted the streets of the vil-
lage and sold current to private consum-
ers. In that year the plant and fran-
chise were purchased by the plaintiff in
error, hereinafter referred to as the
Company, which continued to light the
streets until the contract which its pred-
ecessor had with the village expired.
Upon the expiration of that contract the
parties entered upon negotiations for a
new one; but, failing to agree, the Com-
pany, in October, 1913, removed all of
its street lights and took down its poles
and [175] wires used for such lighting,
but continued its commercial business.
In about a year after the Company
ceased to light the village streets this
action was commenced bv* the filing of
a petition by the village, which, averring
the facts we have stated, further alleged
that, prior to the removal of the street
lighting appliances, the village had sub-
mitted to the Company a schedule of fair
prices which it was able and willing to
pay for street Hghting, and which it
Sit
X75-177
SIPREME COURT OF THE UNITED STATES.
Oct. Tbm
was willing to authorize the Coii^>any to
ohaiige for commercial lighting and for
power^ but this was rejected; that by
dismantling its street lighting system
the Company had rendered itself wholly
unable to furnish any light whatever
for the purpose of public lighting; that,
without the consent of the village, it was
threatening to place new poles and wires
in the streets ^^to further advance its
private interests;'' that it had forfeited
all rights in the streets, and that it was
not possible for the Village and Com-
pany to agree upon terms for future
lighting.
The prayer was that the Company be
enjoined from erecting additional poles,
that its franchise be declared forfeited,
and that it be required to remove all of
its equipment from the public streets.
The trial court dismissed the petition,
but, on appeal, the court of appeals en-
joined the Company from erecting poles,
wires, or lamps in the streets "until the
consent of said village shall have been
obtained." This decree was affirmed by
the supreme court of Ohio in the judg-
ment we are reviewing.
In its opinion the supreme court held
that there was no bill of exceptions or
properly authenticated finding of facts
before it, and that therefore the ease
must be decided upon the assumption
that all of the allegations of the peti-
tion were sustained by the evidence;
that at the time the Ordinance of 1889
was passed and accepted, the applicable
state statute provided that the "mode"
of use of [176] the streets shall be
such as shidl be agreed upon between
the municipal authorities of the village
and the Company, but, if they cannot
agree, the probate court of the county
shall direct what the mode of use shall
be (Rev. Stat. 1880, § 347ra; 84 Ohio
Laws, 7; and Rev. Stat. § 3461); and
that, by an act of the legislature passed
in 1896, seven years after the date of
the village ordinance, the state law was
amended into the form which continued
to the time of trial, providing that "in
order to subject the same to municipal
control alone, no person or company
shall place, string, construct or maintain
any line, wire fixture or appliance of any
kind for conducting electricity for light-
ing, heating and power purposes through
any street, etc., without the consent of
such municipality." 92 Ohio Laws, 204.
This amended law of 1896 is made the
basis of the only contention in the case
which is sufficiently substantial for
special notice; viz., that by it the obli-
gation was impaired of the contract
which the Company had with the state
and village, arising from its acceptance
of the Ordinance of 1889, and that it
was thereby deprived of its property
without due process of law.
As we have seen, when the Ordinance
of 1889 was passed, the statute then in
force provided that the "mode" in which
the streets could be used for electric
lighting and power appliances must be
agreed upon between the village and the
Company; but that, if they failed to
agree, it must be determined by the pro-
bate court; and the amendment, now
claimed to be unconstitutional, consisted
simply in giving to the municipality the
exclusive control over the erection of
any such appliances in the streets, in-
stead of the prior qualified control. In
this case the original '^ode" of use was
determined by agreement without action
by the probate court.
The prayer of the petition was that,
because of the dismantling of the street
lighting plant and of its refusal to
[177] agree to reasonable rates for the
future, all rights of the Company in the
streets should be declared forfeited, and
that it should be ordered to remove
from them all of its constructions; but
the decree of the court of appeals, af-
firmed by the supreme court, went to
the extent, only, of restraining the Com-
pany from erecting any poles and wires
in the streets "until the consent of
the village shall have been obtained."
There was nothing in the decree affect-
ing the maintenance or renewal of such
poles and wires as were in use for pri-
vate lighting when the case was com-
menced, and that this omission was of
deliberate purpose appears from .the
fact that both courts held that the
state statutes in force at the time the
grant became effective, and the form
of the proceeding, were such that a de-
cree annulling such rights as the Com-
pany had then retained in the streets
could not properly be entered in the
cause. On this point the supreme court
said:
"In this posture of the case, while, in
view of the statutory provisions which
were in force at the inception of the en-
terprise, the village would not be en-
titled to annul the company's rights,
still, by reason of the facts stated above
and the voluntary abandonment by the
company of its rights and privileges to
the extent set forth, it cannot now re-
turn and repossess itself of such rights
as it abandoned without the consent of
the village in accordance with existing
law." [93 Ohio St. 442, 113 N. E. 402.]
1919
GODCHAUX CO. v. ESTOPIXAL.
177-179
From this state of the record we con-
clude that the state supreme court did
not intend to deal with the right of the
company to maintain^ repair, or replace
such pK)les and wires as it was using for
commercial lighting when the case was
commenced, but that its injunction was
intended to prohibit restoring of the
street lighting poles and wires which had
been taken down and all new additional
construction ''until the consent of said
village shall have been obtained;" and, so
restrained, its judgment will be affirmed,
baaed, as it is, upon the Statute of 1S96,
whieh the court [178] holds, upon
abundant reason and authority, was
pasised in a reasonable exercise of the
police power of the state.
This act was a general one, applicable
to all electric lighting companies then
operating, or which migAt thereafter op-
erate, in the state, and all that it did
was to give to the municipal authorities
complete control over the placing in the
streets of poles and wires for conduct-
ing Idlectricity for lighting and power
purposes, instead of the like control
which they had when the franchise was
granted, but subject to resort to the pro-
bate court in case of disagreement with
the company as to the ''mode" of using
the streets.
We cannot doubt that the danger to
life and property from wires carrying
high tension electric current through vil-
lage streets is so great that the subject
is a proper one for regulation by the
exercise of the police power, and very
certailily the authorities of the munic-
ipality immediately interested in the
safety and welfare of its citizens are a
proper agency to have charge of such
regpalation. Any modification of its
rights which the company may suffer
from this law, passed in a reasonable
exercise of the police power, does not
constitute an impairing of the obliga*
tion of its contract with the state or vil-
lage, and is not a taking of its property
without due process of law within the
meaning of the constitutional prohibi-
tion. Northern P. R. Co. v. Puget Sound
ft W. H. R. Co. 250 U. S. 332, 63 L. ed.
1013, P.U.R.1919D, 72B, 39 Sup. Ct. Rep.
474, and cases cited.
Of the contention that if an ordinance
passed in 1915 by the village, repealing
the Ordinance of 1889, were given effect,
it would result in impairing the obliga-
tion of the contract, it is enough to say
that it first appears in a supplementid
answer filed in the court of appeals, and
the case, as we have seen, was disposed
of OB the assumption that all of the
i4 Ii. ed.
allegations of the petition were sustained
by the evidence." No effect whatever was
given to that ordinance, either by the
court of appeals or by the supreme
[179] court, but each reached the con-
clusion we are reviewing independently
of and without reference to it. Cross
Lake Shooting & Fishing Club v. Louisi-
ana, 224 U. S. 632, 639, 56 L. ed. 924,
928, 32 Sup. Ct. Rep. 677; Long Sault
Development Co. v. Call, 242 U. S. 272,
277, 61 L. ed. 294, 299, 37 Sup. Ct. Rep,
79.
It results that, since the change of
law complained of did not impair any
Federal constitutional right of the plain-
tiff in error, the judgment of the Su-
preme Court of Ohio, restrained to the
scope of its opinion, as we have inter-
preted it, must be aftoned.
Mr. Justice Day did not participate
in the discussion or decision of this ease.
GODCHAUX COMPANY, Incorporated.
Plff. in Err.,
V.
ALBERT ESTOPINAL, Jr., Sheriff of the
Parish of St. Bernard, nfid the Board of
Drainage Comroissioners t»f the Bayou
Terre Aux Boeuf s Drainage District.
(See S. C. Reporter's ed. 179-181.)
Error ^o state court — Federal question.
1. Since the amendment of September
6, 1916. to the Judicial Code, § 237, a writ
of error to a state court lies only where
there was drawn in question the validity
of a treaty or statute of or an authority
exercised under the United States, and the
decision was against their validity, or
where there was drawn in question the va-
lidity of a statute of or an authority exer-
cised under any state, on the ground of
their being repugnant to the Constitution,
treaties, or laws of the United States and
the decision was in favor of their validity.
Krror to state court — Federal question
— how raised — rehearing.
2. To give the Federal Supreme Court
jurisdiction to review the judgment of a
state court upon writ of error, the essential
Federal question must have been specially
set up there at the proper time and in the
Note. — On the general subject of
writs of error from the United States
Supreme Court to state courts — see
notes to Martin v. Hunter, 4 L. ed. U.
S. 97; Hamblin v. Western Land Co.
37 L. ed. U. S. 267; Re Buchanan, 39
L. ed. U. S. 884; and Kipley v. Illinois,
42 L. ed. U. S. 998.
On what adjudications of state courts
21S
180, 181
SUPREME COURT OF THE UNITED STATES.
Oct. Tkem
propor manuor, and if first presentc^tl in a
potitinn for rolioaring to the state court of
last resort, it txiint»8 too late, unless the
court actually entertains the petition and
passes upon the point.
[For other cnMes. see Appeal and Error, 1240-
1270. 1292-1310. In Digeat Sup. Ct. 1908.]
[No. 101.]
Argued November 17 and 18, 1919. De-
cided December 22, 1919.
IN ERROR to the Supreme Court of
the State of Louisiana to review a
decree which affirmed a decree of the
District Court for the Parish of St.. Ber-
nard, in that state, dismissing the peti-
tion in a suit to enjoin the collection of
a drainage tax. Dismissed for want of
jurisdiction.
See same case below, 142 La. 812, 77
So. 640.
The facts are stated in the opinion.
Mr. B. 0. Milling argued the cause,
and, with Mr. R. £. Milling, filed a brief
for plaintiff in error.
Mr. WilUam Winan» Wall argued the
cause, and, with Mr. N. H. Nunez, filed
a brief for defendants in error.
Mr. Justice McReynolds delivered the
opinion of the court :
By petition filed in the district court,
St. Bernard parish, plaintiff in error
sought to restrain collection of an acre-
age tax assessed against its lands not
susceptible of gravity drainage. Inva-
lidity of the tax was alleged upon the
ground that no statute of Louisiana au-
thorized it, and also because its enforce-
ment would produce practical confisca-
tion and take property without due
process of law, contrary to the 14th
Amendment. Answering, defendant in
error asked dismissal of the petition,
claiming the tax was properly assessed,
and also that an amendment to article
281 of the Louisiana Constitution, adopt-
ed November, 1914, deprived the court
of jurisdiction to entertain the contest.
The trial court exercised jurisdiction ^
sustained the tax, and dismissed the pe-
tition. Upon a broad appeal, the su-
preme court, after declaring that the
constitutional amendment deprived the
courts of the state of jurisdiction over
the controversy, affirmed the judgment
of the trial court. 142 La. 81^ 77 So.
640.
The record fails to disclose that plain-
tiff in error at any time or in any way
challenged the validity of the state con-
stitutional amendment because . of con-
flict with the Federal Constitution until
it applied for a rehearing in the supreme
court. That application was refused
without more. Here the sole, error as-
signed is predicated upon such supposed
conflict ; and, unless that point was prop-
erly raised below, a writ of error cannot
bring the cause before us.
Such a writ only lies to review "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
is drawn in [181] question the validity
of a treaty or statute of, or an author-
ity exercised under the United States,
and the decision is against their valid-
ity; or where is drawn in question the
validity of a statute of, or an authority
exercised under any state, on the ground
of their being repugnant to the Con3ti-
tution, treaties, or laws of the United
States, and the decision is in favor of
their validity." Judicial Code, § 237,
Act September 6, 1916, chap. 448, 39
Stat, at L. 726, Comp. Stat. § 1214, Fed.
Stat. Anno. Supp. 1918, p. 412.
The settled rule is that, in order to
give us jurisdiction to review the judg-
ment of a state court upon writ of error,
the essential Federal question must have
been especially set up there at the
proper time and in the proper manner;
and, further, that if first presented in a
petition for rehearing, it comes too late
unless the court actually entertains the
can be brought up for review in the
Supreme Court of the United States by
writ of error to those courts — see note
to A|>ex Trnnsp. Co. v. Garbade, 62
L.R.A, 513.
On how and when questions must be
raised and decided in a state court in
order to make a case for a writ of error
from the Supreme Court of the United
States — see note to Mutual L. Ins. Co. v.
McGrew, 63 L.R.A. 33.
On what the record must show re-
specting the presentation and decision
of a Federal question in order to confer
214
jurisdiction on the Supreme Court of
the United States on a writ of error to
a state court — see note to Hooker v.
Los Angeles, 63 L.R.A. 471.
On what questions the Federal Su-
preme Court will consider in reviewing
the judgments of state courts — see note
to Missouri ex rel. Hill v. Dockery, 63
L.R.A, 571.
When Federal question is raised in
time to sustain appellate jurisdiction of
the Federal Supreme Court over state
courts — see note to Chicago, I. & L. R.
Co. v. MeGuire, 49 L. ed. U. S. 414.
S51 IT. 8.
m9.
BRANSON V. BUSH.
181, 182
Sttitiaxi tad passes upon the point,
utual L. Ina Co. v. McGrew, 188 U. S.
291, 308, 47 L. ed. 480, 484, 63 L.R.A. 33,
23 Sup. Ct. Eep. 375; St. Louis & S. P.
R. Co. V. Shepherd, 240 U. S. 240, 60 L.
«d. 622, 36 Sup. Ct. Bep. 274; Missouri
R B. Co. V. Taber, 244 U. S. 200, 61 L.
ed. 1082, 37 Sup. Ct. Bep. 522.
The writ of error is dismissed.
The Chikp Justice coneurs in the re-
sist, solely on the ground that, as the
court below exerted jurisdiction and de-
cided the cause, — ^by the judgment to
which the writ of error is diirected, — the
contention that a Federal right was vio-
lated by the refusal of the court to take
jurisdiction is too unsubstantial and
frivolous to give rise to a Federal ques-
tion.
(1823 J. H. BRANSON, Sheriff and Col-
lector of Crawford County, and J. J.
Cravens, W. B. Smith, and R. F. Hamer,
Commissioners of Road Improvement
District No. 2, Crawford County, Ar-
kansas, Aippta.,
▼.
R. F. BUSH, Receiver of the Pr<»er1y of
St. Louis, Iron Mountain, & Soutlkem
Railway Company.
(See S. C. Reporter's ed. 182-192.)
OonstttoUonal law — equal protection
of (he laws -« assessment for public
improvement — railway franchine.
1. The consideration by assessing oflBi-
oers, conformably to state law, of the fran-
chises of a railway company, when assess-
ing for a public unprovement the real es-
tate of a railway company within the tax-
ing district, does not, without more, justify
invalidating the tax as a denial of the equal
protection of the laws, on the theory that
the franchises of the railway company were
included as a separate personal-property
value in the real property assessment, thus
taxing the railway property at a higher
rate than other real property in the district.
[For other cases, see Constitutional Law, IV.
a, 4, In Digest Sap. Ct. IOCS.]
Constitational law — due process of latr
— as^essnieiit for public improvement
— lands benefited.
2. The legislative determination as to
what lands within a local improvement dis-
trict will be beneilted by an improvement
is conclusive upon the owners and the
courts, and can be assailed, under U. S.
Const., 14th Amend., only where the legis-
lative action is arbitrary, wholly unwar-
ranted, a flagrant abuse, and, by reason of
its arbitrary character, a confiscation of
particular property.
[For other cas^s, see Constitotlonal Law, IV.
b, «. c. In Digest Sap. Ct. 1908.1
Constitutional law — due proecss of law
— public improvement — assessment
for benefits.
3. The declaration by the legislature
that the real property of a railway com-
pany within a rcMid improvement district
will be benefited by the construction of a
contemplated road improvement in such
district cannot be said to be so arbitrary,
capricious, or confiscatory as to invalidate,
under U. S. Const., 14th Amend., an assess-
ment for benefits against such real prop-
erty of the railway company, where there is
evidence that the* improved road, by mak-
ing more accessible a village terminus where
the railway company in (juestion had the
only line, and by . developing the adjacent
country, would increase the company's busi-
ness and would divert bi^siness from a place
where there was a competing railroad, and
that before the road was ccmipletcd a large
$ras-producing district was oiscovered not
far from the improved road, which was
tributary to it.
[For other cane^, see Constitatlonal Law. IT.
b, C, c, in Digest Snp. Ct. 1908.]
[No. 82.]
Argued November 14, 1919. Decided De-
cember 22, 1919.
APPEAL from the United States Cir-
cult Court of Appeals for the
Eighth Circuit to review a decree which
reversed a decree of the District Court
for the Western District of Arkansas,
refusing to enjoin an assessment of real
property of a railway company for a
road improvement. Reversed, and de-
cree of District Court affirmed.
Note. — ^As to what constitutes due
process of law, generally — see notes to
People V. O'Brien, 2 L.R.A. 255; Kuntz
V. Sumption, 2 L.R.A. 655; Re Gannon,
5 L.R,A. 359; Ulman v. Baltimore, 11
L.R.A. 224; Oilman V. Tucker, 13 L.R.A.
304; Pearson v. Yewdall, 24 L. ed. U. S.
436; and Wilson v. North Carolina, 42
L. ed. U. S. 865.
As to tax or assessment for public
improvement on highway — see note to
Graham v. Detroit, 44 L.R.A.(N.S.) 836.
On liability of railroad right of way
•4 li. ed.
to assessment for local improvement —
see notes to Georgia R. & Bkg. Co. v.
Decatur, 40 L.R.A.(N.S.) 935; Heman
Constr. Co. v. Wabash R. Co. 12 L.R.A.
(N.S.) 112; and Chicago, M. & St. P. R.
Co. v. Milwaukee, 28 L.R.A. 249.
On necessity of special benefit to sus-
tain assessment for local improvements
— ^see notes to Re Madera Irrig. Dist.
Bonds, 14 L.R.A. 755, and Myles Salt
Co. v. Iberia & St. M. Drainage Dist.
L.R.A.1918E, 190.
215
SUl'UKMK COURT OF THE UNITED STATES.
Oct. TEaiftr,
See same case below, 160 C. C. A. 387,
248 Fed. 377.
The facts are stated in the opiaion.
Mr. Gtoorge B. Rose argued the cause,
and, with Messrs. W. E. Hemingway, D.
H, Cantrell, and J. F. Loughborough,
filed a brief for appellants:
In matters of local improvements this
court is loath to interfere with the pub-
lic policy of the respective states.
French v. Barber Asphalt Paving Co.
181 U. S. 324," 45 L. ed. 879, 21 Sup. Ct
Rep. 625.
Testimony can have no probative
force when it is in direct conflict with
the conceded or physical facts, and to
believe it would involve an absurdity in
reason and common experience.
Waters-Pierce Oil Co. v. Knisel, 79
Ark. 608, 96 S. W. 342.
A highway is an improvement justify-
ing a local assessment against a rail-
road.
St. Louis & S, F. R. Co. v. Ft. Smith,
& V. B. Bridge Dist. 113 Ark. 493, 168
S. W. 1066; Missouri P. R. Co. v. Con-
way County Bridge Dist. 134 Ark. 292,
204 S. W. 630; Gates v. Cypress Creek
Drainage Dist. 135 Ark. 149, 205 S. W,
293; Missouri P. R. Co. v. Monroe Coun-
ty Road Improv. Dist. 137 Ark. 568, 209
S. W. 729.
A legislative assessment must stand
unless demonstrably wrong.
Union Transit Refrigerator Co. v.
Kentucky, 199 U. S. 203, 50 L. ed. 153,
26 Sup. Ct. Rep. 36, 4 Ann. Cas. 493;
Coffman v. St. Francis Drainage Dist.
83 Ark. 60, 103 S; W. 179; Moore v.
Long Prairie Levee Dist. 98 Ark. 116,
135 S. W. 819; St. Louis Southwestern
R. Co. V. Red River Levee Dist. 81 Ark.
562, 99 S. W. 843; Board of Improve-
ment V. Southwestern Gas & £. Co. 121
Ark. 105, 180 S. W. 764; Fellows v.
McHaney, 113 Ark. 364, 168 S. W. 1099. *
Of course, if it could be shown to a
certainty that particular property
would be required to bear more than
its share of the burden, this would be
a violation of the 14th Amendment.
Myles Salt Co. v. Iberia A St. Mary
Drainage Dist. 239 U. S. 478, 60 L. ed.
392, L.R.A.1918E, 190, 36 Sup. Ct. Rep.
204; Gast Realty & Invest. Co. v.
Schneider Granite Co. 240 U. 8. 55, 60
L. ed. 523, 36 Sup. Ct. Rep. 254.
The assessment may be ad valorem.
Webster v. Fargo, 181 U. S. 394, 45
L. ed. 912, 21 Sup. Ct. Rep. 623; Houck
V. Little River Drainage Dist. 239 U.
S. 255, 60 L. ed. 266, 36 Sup. Ct. Rep.
58; St. Louis Southwestern R. Co. v.
216
Red River Levee Dist. 81 Ark. 562, 99
S. W. 843; Board of Improvement v.
Southwestern Gas & E. Oo. 121 Ark. 105,
180 S. W. 764; St. Louis Southwestern
R. Co. V. Grayson, 72 Ark. 119, 78 S.
W. 777; Porter v. Waterman, 77 Ai*.
384, 91 S. W. 754; Crawford County
Levee Dist. v. Crawford County Bank,
108 Ark. 421, 158 S. W. 149; Moore v.
Long Prairie Levee Dist. 98 Ark. 116,
135 S. W. 819.
Taxation is at best an approximation,
and perfeet equality, however desirable,
is neither demanded nor expeeted.
Cass Farm Co. v. Detroit, 181 U. 8.
396, 398, 45 L. ed. 914, 916, 21 Sup. Ct.
Rep. 644.
The railroad is estopped to contest
the assessment.
Tulare Irrig. Dist. v. Shepard, 185 U.
S. 1, 46 L. ed. 773, 22 Sup. Ct. Rep.
531; Shepard v. Barron, 194 U. S. 553,
48 L. ed. 1115, 24 Sup. Ct. Rep. 737.
In determining the value of the sev-
eral parts of the railroad, the only fair
method is to apportion the value of the
franchise amongst them, as is provided
in the Arkansas statute. ^
State R. Tax Cases, 92 U. S. 608, 23
L. ed. 671.
Mr. Thomas B. Pryor argued the
cause, and, with Mr. Edward J. White,
filed a brief for appellee:
All the property that is included
within the district, under the terms of
this act, are lands and railroad rights-
of-way; nothing else can be included or
taxed.
Watkins v. Wa^^seU, 20 Ark. 410; lit-
tle Rock & Ft. S. R. Co. V. Clifton, 38
Ark. 205; Kew Mexico v. United States
Trust Co. 172 U. S. 171, 43 L. ed. 407, 19
Sup. Ct. Rep. 128; Improvement Dist.
V. Cotter, 71 Ark. 561, 76 S. W. 552;
Watkins v. Griffith, 59 Ark. 357, 27 S.
W. 234; 2 Dill. Mun. Corp. § 769.
There is clearly no evidenee to sup-
port an assessment of benefits against
the property of the railroad company
under this act.
Rector v. Board of Improvement, 50
Ark. 116, 6 S. W. 519; Cribbs v.
Benedict, 64 Ark. 555, 44 S. W. 707;
Kansas City, P. & G. R. Co. v. Wa-
terworics Improv. Dist.- 68 Ark. 376.
59 S. W. 248; Ahem v. Board of Im-
prov. Dist. 69 Ark. 68, 61 S. W. 575;
Stiewel v. Fencing Dist. 71 Ark. 17, 70
S. W. 308, 71 S. W. 247; Kirst v. Street
Improv. Dist. 86 Ark. 1, 109 S. W. 526 ;
Shibley v. Ft. Smith & V. B. Dist. 96
Ark. 410, 132 S. W. 444; Alexander v.
Crawford County Levee Dist. 97 Ark.
951 U. 8.
1919.
BRANSON V. BUSH.
322, 134 S. W. 618; Board of Improve-
meiit v. Pollard, 98 Ark. 543, 136 S. W.
967; Norwood v. Baker, 172 U. S. 269,
278, 284, 43 L. ed. 443, 447, 449, 19
Sop. Ct. Rep. 187.
The franehise of a railroad cannot be
tflsessed for local improvements.
Ft Smith Light & Traction Co. v.
McDonough, 119 Ark. 254, 177 S. W.
926; Board of Improvement v. South-
western Gas & K Co. 121 Ark. 114, 180
S. W. 764; Snetzer v.. Gr^g, 129 Ark.
»46, KR.A.1917F, 999, 196 S. W. 925;
Chatham County v. Seaboard Air Line
R. Co. 133 N. C. 216, 45 S. E. 566.
A local assessment may not be made
against railroads for a highway im-
provement.
Snetzer v. Gregg, 129 Ark. 646, LR.A.
1917F, 999, 196 S. W. 925; New York,
N. H. & H. B. Co. v. Port Chester, 149
App. Div. 893, 134 N. Y. Supp. 883;
Cache River Drainage Dist. v. Chicago
& E. L R. Co. 265 111. 398, 99 N. E. 638;
Kankakee v. IlUnois C. R. Co. 263 111.
589, 105 N. E. 733; LouisviUe & N. R.
Co, V. Barber Asphalt Paving Co. 197
U. S. 430, 49 L. ed. 819, 25 Sup. Ct.
Rep. 466.
Power arbitrarily exerted, imposing a
burden without a compensating advan-
tage of any kind, amounts to confisca-
tion and violates the due process clause
of the 14th Amendment; such a result
is accomplished by the action of a local
administrative body in including land
within a drainage district, where such
inclusion is palpably arbitrary, it not be-
ing for the purpose of benefiting such
land directly, but for the purpose of
obtaining revenue therefrom.
Myles Salt Co. v. Iberia & St. M. Drain-
age Dist. 239 U. S. 478, 60 L ed. 392,
LR.A,l918E, 190, 36 Sup. Ct. Rep. 204.
See also Gast Realty & Invest. Co. v.
Schneider Granite Co. 240 U. S. 55, 60
L ed. 523, 36 -Sup. Ct. Rep. 254; Taylor,
Due Process of Law, §§ 263, 264; Han-
cock V. Muskogee, 250 U. S. 454, 63 L
ed. 1081, 39 Sup. Ct. Rep. 528.
The assessment is discriminatory.
Union Tank Line Co. v. Wright, 249
U. S. 275, 63 L. ed. 602, 39 Sup. Ct.
Rep. 276.
Regardless of the method adopted,
whether it be upon an ad valorem basis
or any other basis, there is a limitation
as far as local improvements are con*
eemed; the imposition must be based
npon special benefits, the tax must not
exceed the special benefit derived, and
the imposition of the tax must be uni-
form and free from any unjust disorimi- .
nation. I
Myles Salt Co. v. Iberia & St. M.
•4 L. ed.
Drainage Dist. supra; Gast Realty &
Invest. Co. v. Schneider Granite Co. 240
U. S. 65, 60 L ed. 523, 36 Sup. Ct. Rep.
254; Mudd v. St. Francis Drainage Dist.
117 Ark. 30, 173* S. W. 825; Mullins v.
Little Rock, 131 Ark. 59, L.R.A.1918B,
461, 198 S. W. 262; 2 Page & J. Taxn.
by Assessment, § 665.
No estoppel in pais can be created ex-
cept by conduct which the person set-
ting up the estoppel has the right to
rely upon and does in fact rely and act
upon.
Bloomfield v. Charter Oak Nat. Bank,
121 U. S. 121, 30 L. ed. 923, 7 Sup. Ct.
Rep. 865.
The Arkansas act impairs the obliga-
tion of a contract.
7 R. C. L. 70; Arkansas Stave Co. v.
State, 94 Ark. 27, 27 L.R.A.(N.S.) 255,
140 Am. St. Rep. 103, 125 S. W. 1001;
Northern C. R. Co. v. Maryland, 187 U.
S. 258, 47 L. ed. 167, 23 Sup. Ct. Rep.
62; Steams v. Minnesota, 179 U. S. 223,
45 L. ed. 162, 21 Sup. Ct. Rep. 73;
Wright V. Nagle, 101 U. S. 791, 25 L
ed. 921; Vicksburg, S. & P. R. Co. v.
Dennis, 116 U. S. 665, 29 L. ed. 770, 6
Sup, Ct. Rep. 625; Shelby County v.
Union & Planters' Bank, 161 U. S. 149,
40 L. ed. 650, 16 Sup. Ct Rep. 558;
Citizens* Sav. Bank v. Owensboro, 173
U. S. 636, 43 L. ed. 840, 19 Sup. Ct.
Rep. 530, 571; 6 R. C. L § 51; State
ex rel. Atty. Gen. v. Sayre, 142 Ala.
641, 39 So. 240, 4 Ann.^Cas. 656; Norvell
v. , State, 143 Ala. 361, 39 So. 357 ;
Uniontown v. State, 145 Ala. 471, 39
So. 814, 8 Ann. Cas. 320; Hatfield v.
Garnett, 45 Okla. 438, 146 Pac. 24.
The act violates the due process of
law provision in the 14th Amendment.
Coe V. Armour Fertilizer Works, 237
U. S. 413, 59 L. ed. 1027, 35 Sup. Ct.
Rep. 625; Central of Georgia R. Co. v.
Wri^t, 207 U. S. 127, 52 L. ed. 134,
28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463;
Taylor, Due Process of Law, § 133;
Harmon v. Bolley, — Ind. — , 2 A.LR.
609, 120 N. E. 33; Chicago, M. & St. P.
Rr. Co. V. Minnesota, 134 U. S. 418, 456,
33 L. ed. 970, 980, 3 Inters. Com. Rep.
209, 10 Sup. Ct. Rep. 462, 702; Greene
V. Louisville & N. R. Co. 244 U. S. 522,
554, 61 l^. ed. 1291, 1309, 37 Sup. Ct.
Rep. 683, Ann. Cas. 1917E, 97; Corn
Products Ref. Co. v. Eddy, 249 U. S.
427, 63 L. ed. 689, 39 Sup. Ct. Rep.
325; Lane v. Vick, 3 How. 464, 11 L
ed. 681; Swift v. Tyson, 16 Pet. 1, 10
It, ed. 865; Northern C. R. Co. v. Mary-
land, 187 U. S. 258, 47 L. ed. 167, 23
Sup. Ct. Rep. 62; Steams v. Minnesota,
179 U. S. 223, 45 L ed. 162, 21 Sup. CA
217
183-186
SUPUKME COURT OF THE UNITED STATES.
Oct. Terit,
Rep. 73; Wrij^ht v. Xagel, 101 U. S. 791,
25 L. ed. 921; Vicksburp, S. & P. R.
Co. V. Dennis, 116 U. S. 665, 29 L. ed.
770, 6 Sup. Ct. Rep. 6^; Shelby Coun-
ty V. Union & Planters' Bank, 161 U.
S. 149, 40 L. ed. 650, 16 Sup. Ct. Rep.
558; Citizens* Sav. Bank v. Owensboro,
173 U. S. 636, 43 L. ed. 840, 19 Sup.
Ct. Rep. 530, 571.
Mr. Justice Clarke delivered the opin-
ion of the court :
By act of the general assembly, the
state of Arkansas created "Crawford
County Road Improvement District No.
2," a body corporate, and prescribed its
boundaries. Special and Private Acts of
Arkansas, 1911, p. 642.
To pay the cost of the road improve-
ment contemplated, the act. provided
that it should be made a charge upon all
of the real property, railroads, and tram-
roads in the District. Bonds were sold
and the road completed before this suit
was commenced to enjoin the collection
of taxes charged against the property of
the railway company, of which the ap-
pellee, hereinafter designated the Com-
pany, was receiver. Tho tax objected to
was imposed upon the assessed value of
the main track, sidetracks, rolling stock,
buildings, and material of the Company
apportioned to the Road District under
a state law for the valuation of railroad
property, and in |he bill it is alleged to
be invalid because the assessment con-
flicts with many provisions of the Con-
stitutions of the United States and of
Arkansas. The rate was the same for
all real property in the district.
The district court permanently en-
joined the tax to the extent that it was
imposed on personal prc^erty, — the roll-
ing stock and materials of the company.
From this part of the decree no appeal
was. taken, and thereafter all questions
as to the invalidity of the assessment
because including rolling stock and ma-
terials disappeared from the case. But,
for want of equity, the bill was dismissed
so [184] far as applicable to the real
estate '^designated in the bill as main
track, sidetrack^ and buildings.'' On
appeal by the Company from this part
of the decree, the cirooit court of ap-
peals reversed the decree of the district
court and enjoined the collection of the
tax on the real estate on two erounds:
(1) Because the including of the fran-
chise and other intangible property of
the Company in the assessment results in
"a higher rate of taxation" on the prop-
218
erty of the Railway Company than on
the other property in the District; and
(2) Because the evidence fails to show
that the Company would derive any bene-
jdt from the improvement of the road.
In this court the plaintiffs in error,
hereinafter, referred to as the Road Dis-
trict, assign as errors these two holdings
of the circuit court of appeals, and we
shall consider them in the order stated.
All property of the Railway Company
in the state was assessed by a state tax
commission under an act, the validity of
which is not assailed, providing:
"The franchises (other than the right
to be a corporation) of all railroads
. , . are declared to be property for
the purpose of taxation, and the value of
such franchises shall be considered by
: the assessing officers when assessing the
property of such corporations.'' Acts of
Arkansas, 1911, p. 233, § 2.
The act also required the commission
to "determine the total value of the
entire property of the corporation, tan-
gible and intangible;" that the buildings
and sidetracks should be assessed as real
estate in the town or district where locat-
ed, but that the main track, also to be
assessed as real estate, should be a]>-
portioned among the several towns and
districts through which the road ran ac-
cording to the "actual mileage in each
town or district."
[185] The circuit court of appeals
did not hold either the Railroad Valua-
tion or the District Road Improvement
Law unconstitutional^ both being types
of laws often upheld by this court
(State Railroad Tax Cases, 92 U. S. 575,
23 L. ed. 6G3; Cleveland, C. C. A St. Ia.
R. Co. V. Backus, 154 U. S. 439, 38 L. ed.
1041, 4 Inters. Com. Rep. 677, 14 Sup.
Ct. Rep. 1122, and Houck v. Little River
Drainage Dist. 239 U. S. 254, 60 L. ed.
266, 36 Sup. Ct. Rep. 58)^ but the first
ground of its decision was, only, that
the assessment of the main track under
the former law, as applied to the case
of taxation by benefits provided for by
the latter, resulted in unequal taxation
to an extent amounting to a denial of
the equal protection of the laws.
The eourt was carried to its conclusion
by this process: The act creating the
Road District, and the general law ap-
plicable to local assessments in propor-
tion to benefits, both required that only
real estate should be assessed to pay for
the improvement here involved; only the
real estate of the other property owners
of the District was assessed, and there-
fore, when the franchises, personalty, of
961 U. 8.
1019.
BRANSON V. BUSU.
] 85-187
the Railroad Company were ''considered''
m making the assessment complained of,
the Company was taxed a "higher rate,"
a greater amount, than other property
owners, and by such discrimination was
denied the equal protection of the laws.
It is argued by the Road District that
this condusion is erroneous, for the
reasons following:
The assessment law, which we have
quoted, provides that the franchises of
railroad companies ("other than the right
to be a corporation") "shall be con-
sidered" by officials when assessing their
property.
It is to be noted that this law does
not provide for the assessment of the*
franchises of railroad companies sepa-
rately as personal, or intangible, prop-
erty, as the laws of some states require,
but only declares that they are "prop-
erty" which "shall be considered by as-
sessing officers when assessing the prop-
erty of such corporations," and they are
not valued separately in the [186] as-
sessment complained of, as it is itemized
in the bill of complaint.
It is not easy to define just what is
meant by the "franchise" of a railroad
company "other than the right to be a
^corporation," and the record does not at-
tempt a definition. Morgan v. Louisiana,
93 U. S. 217, 223, 23 L. ed. 860, 861. The
record is also silent as to what, if any,
value was placed upon the franchises of
the Company here involved by the state
tax commission, and as to what extent,
if at all, they were "considered" in ar-
riving at the assessment objected to, and
therefore, it is Contended that the con-
clusion of the circuit court of appeals
that personal-property value was includ-
^ in the assessment of the real estate of
the District has no foundation on which
to rest, other than the assumption that
the tax commission conformed to the
law and "considered" the franchises
when assessing the real estate, and that
this necessarily resulted in fact, if not
in form, in such inclusion, — ^an imusu-
^ly meager basis, surely, for invalidate
mg a tax of the familiar character of
this before ns.
If, however, the distinction sometimes
taken between the "essential properties
of corporate existence" and the fran-
<thi8es of a corporation (Memphis & L.
R. B. Co. V. Railroad Comrs. (Memphis
A L. ft; R. Co. V. Berry) 112 U. S. 609,
619, 28 L. ed. 837, 841, 5 Sup. Ct. Rep.
299) be considered substantial enough to
be of practical value, and if it be as- 1
snmed that the distinction was applied
«4 L. ed.
by the state commission in making the
assessment here involved, this would re-
sult, not in adding personal-property,
value to the value of the real estate of
the Company in the District, but simply
in determining what the value of the real
property was, — ^its right of way, tracks,
and buildings, — having regard to the use
which it made of it as an instrumentality
for earning money in the conduct of rail-
road operations. This, at most, is no
more than giving to the real property a
value greater as a part of a railroad unit
and a going concern [187] than it
would have if considered only as a
quantity of land, buildings, and tracks.
This is the method of assessing rail-
road property often approved by this
court, specifically in Cleveland, C. C. &
St. L. R. Co. V. Backus, 154 U. S. 439,
445, 38 L. ed. 1041, 1046, 4 Inters. Com.
Rep. 677, 14 Sup. Ct. Rep. 1122, raying:
"The rule of property taxation is that
the value of the property is the basis of
taxation. It docs not mean a tax upon
the earnings which the property makes,
nor for the privilege of using the prop-
erty, but rests solely upon the value.
But the value of property results from
the use to which it is put, and varies
with the profitableness of that use,
present and prospective, actual and an-
ticipated. There is no pecuniary value
outside of that which results from such
use. The amount and profitable char-
acter of such use determines the value,
and if property is taxed at its actual
cash value it is taxed upon something
which is created by the uses to which it
is put. In the nature of things it is
practically impossible — ^at least in re-
spect to railroad property — to divide its
value, and determine how much is caused
by one use to which it is put and how
much by another."
And long experience has confirmed the
statement by Mr. Justice Miller in State
Railroad Tax Cases, 92 U. S. 575, 608,
23 L. cd. 669, 671, that "it may well
be doubted whether any better mode of
determining the value of that portion of
the track within any one county has been .
devised than to ascertain the value of
the whole road, and apportion the value
within the county by its relative length
to the whole." And see Kentucky Rail-
road Tax Cases, 115 U. S. 321, 29 L. ed.
414, 6 Sup. Ct. Rep. 57, in which, also,
the contention is disposed of that the
railroad track should be valued by the
same officials and on the same basis of
acreage as farm lands adjacent to it.
Thus, the assessment complained of
9t»
IS7- 100
SI PRKME CUUKT OF THE UNITED STATES.
Oct. Tkbm,
was made under valid laws and in a
manner approved and customary in ar-
jriving at the value of that part of rail-
road tracks [188] situate in a state,
county, or district. So far as this rec-
ord shows, the assessment modified by
the decree of the district court, not ap-
pealed from, is not a composite of real
and personal-property values, but is the
ascertained value of the real estate — the
tracks and buildings — of the Company
within the taxing district, enhanced, no
doubt, by the special use made of it, but
still its value as a part of the railroad
unit, resulting from the inherent nature
of the business in which it is employed,
— a value which will not be resolved in-
to its constituent elements for the pur-
pose of defeating contribution to a pub-
lic improvement. No attempt was made
to prove fraudulent or capricious or ar-
bitrary action on the part of any offi-
cials in making the assessment, the only
evidence upon the subject being the
opinions of four employees of the Com-
pany that the improvement of the road
would not benefit the railroad property,
and, if inequality hasjresulted from the
application of the state law in a cus-
tomary manner to a situation frequently
arising in our country, it is an incident-
al inequality, resulting from a valid
classification of railroad property for
taxation purposes, which does not fall
within the scope of the 14th Amend-
ment, which "was not intended to com-
pel the states to adopt an iron rule of
equal taxation." Bell's Gap R. Co. v.
Pennsylvania, 134 U. S. 232, 237, 33 L.
ed. 892, 895, 10 Sup. Ct. Rep. 533. And
see French v. Barber Asphalt Paving
Co. 181 U. S. 324, 45 L. ed. 879, 21 Sup.
Ct. Rep. 625; Cass Farm Co. v. Detroit,
181 U. S. 396, 398, 45 L, ed. 914, 916,
21 Sup. Ct. Rep. 644; Detroit v. Parker,
181 U. S. 399, 45 L. ed. 917, 21 Sup. Ct.
Rep. 624.
Thus, the basis for assuming that the
franchises of the railroad company were
added as a separate personal-property
value to the assessment of the real prop-
erty of the company becomes, upon this
record, much too unsubstantial to justify
invalidating the tax involved if it be
otherwise valid, and the first assignment
of error must therefore be sustained.
But the holding of the circuit court of
appeals that [189j "the evidence fails
to show that the railroad company de-
rives any benefit from the road" is also
assigned as error.
In the act of the general assembly
220
creating this Road District it is pro-
vided :
"Section 5; It is ascertained and here-
by declared that all real property within
said District, including railroads and
tramroads, will be benefited by the build-
ing of the said highway more than the
cost thereof as apportioned in the county
assessment of each piece of property
within the District for this and the suc-
ceeding years, and the cost thereof is
made a charge upon such real property
supeHor to all other mortgages and liens
except the liens for the ordinary taxes,
and for improvement districts hereto-
fore organized; . . ." Special &
Private Acts of Arkansas, 1911, 642, 645.
Where, in laws creating districts for
local improvements and taxation, there
is such a legislative declaration as this,
as to what lands within the district will
be benefited by the improvement, the law
with respect to the extent to which, such
determination may be reviewed by the
courts is 60 well settled, and has so lately
been re-examined and restated by this
court, that extended discussion of the
subject is not justified.
In Spencer v. Merchant, 125 U. S. 345,
31 L. ed. 763, 8 Sup. Ct. Rep. 921,— a
decision often cited and approved, — it is
decided that if the proposed improve-
ment is one which the state had authority
to make and pay for by assessments on
property benefited, the legislature, in the
exercise of the taxing power, has au-
thority to determine, by the statute im-
posing the tax, what lands, which might
be benefited by the improvement, are in
fact benefited by it; and if it does so,
its determination is conclusive upon the
owners and the courts, and the owners
have no right to be heard on the ques-
tion whether their lands have been bene-
fited or not.
The subject was carefully re-examined
and the law [190] restated in cases so
recent as Phillip Wagner v. Leser, 239
U. S. 207, 60 L. ed. 230, 36 Sup. Ct. Rep.
66, and Houck v. Little River Drainage
Dist. 239 U. S. 254, 60 L. ed. 266, 36
Sup. Ct. Rep. 58, with the result that
the rule as we have stated it was ap-
proved, with the qualification, which
was before implied, that the legislative
determination can be assailed under the
14th Amendment only where the legis-
lative action is "arbitrary, whoUy un-
warranted,^' "a flagrant abuse, and by
reason of its arbitrary character a
confiscation of particular property."
And see Withnell v. Ruecking Constr.
Co. 249 U. S. 63, 69, 63 L. ed. 479, 39
251 U. S.
1919.
WINCHESTER v. WlNCHESTKlt WATER WORKS CO.
190-102
Sup. Ct Kep. 200 ; Hancock v. iliiskogee,
250 U. S. 464, 457, 63 L. ed. 1081, 1083,
39 Sup. Ct. Rep. 528; Embree v. Kansas
City & L. B. Road Dist. 240 U. §. 242,
^0, 60 L. ed. 624, 628, 36 Sup. Ct. Rep.
317.
Th^ decisions relied upon by the Com-
pany (Norwood V. Baker, 172 tJ. S. 269,
43 Ix ed. 443, 19 Sup. Ct. Rep. 187;
Myles Salt Co. v. Iberia & St. M. Drain-
a^ Dist. 239 U. S. 478, 60 L. ed, 392,
L.ILA.1918E, 190, 36 Sup. Ct. Rep. 204;
OrBst Realty & Invest.. Co. v. Schneider
Granite Co. 240 U. S. 55, 60 L. ed. 523,
36 Sup. Ct. Rep. 254) are not in confliet
with the rule, but plainly fall within,
and are illustrations of, the qualification
of it.
An application of this rule to the ease
before us renders not difficult the de-
cision of the second assignment of error.
The road to be improved was "a little
less than 3^ miles in length/' and ex-
tended from Alma, a considerable vil-
lage, on the north, southeriy to an east
and west road which had its western
terminus at the city of Van Buren, 8
miles west of the junction of the two
roads. It was the principal road to and
from Alma, the travel on it being greater
than on all the other roads which served
that village combined. In wet seasons
the road was practically impassable for
wagons, sometimes for three or foilr
months together. People living south of
the east and west road, who made Van
Bnren their trading point in wet weather,
after the road was improved traded ex-
clusively at Alula, it being 4^ miles
nearer for many of them. The railway
of the appellee was the only [191] one
at Alma, but at Van Bnren there was
a eompeting road, with a line 250 miles
shorter than that of the appellee to St.
Louis, the chief market for the staples
ef the r^on.
On the question of benefits which
would come to the railroad property
from the construction of the road, the
appellee receiver called four witnesses,
three of them engineers and one a super-
intendent of the company. Two of these
were familiar with the location of the
road and the other two testified that
they knew of its location in a general
way. All four testified in general terms
that the road was not and never would
be of any benefit to the railroad. It is
significant that no trafiSo man was called,
and that no evidence was introduced
showing the extent of business done at
Alma before and after the improvement
of the road.
t4 li. ed.
For the District, three witnesses were
called, one a doctor, one a merchant, and
one a long-time resident of the village of
Alma. Each of these testified that, in
his opinion, the road, by making the vil-
lage of Alma more accessible, particular-
ly in the wet seasons of the year, and
by developing the adjacent country,
would increase the business of the rail-
way company, and would divert busi-
ness from Van Buren, where there was
a competing railroad, to Alma, where ap-
pellee had the only line. It was in evi-
dence also that after the act was passed,
but before the road was completed, a
large gas-producing district was dis-
covered not far south of the southern
terminus of the improved road, which
was tributary to it.
To this must be added the obvious fact
that an3rthing that develops the territory
which a railroad serves must necessarily
be of benefit to it, and that no agency
for such development equals that of good
roads.
This discussion of the record makes it
clear that it is impossible to characterize
as arbitrary, capricious, or confiscatory
the action of the general assembly in
declaring [192] that the property of
the railroad company within the Dis-
trict would be benefited by the construc-
tion of the contemplated road improver
ment, but, on the contrary, it makes it
apparent that the case i^ one so fully
within the general rule that the hold-
ing of the circuit court of appeals that
the railroad would not be benefited by
the improvement cannot be sustained.
It results that the decree of the Cir-
cuit Court of Appeals must be reversed,
and that of the District Court afi^rmed.
Reversed.
Mr. Justice McReynolds dissents.
CITY OF WINCHESTER et al., Appte.,
V.
WINCHESTER WATER WORKS COM
PANY.
(See 8. 0. Reporter's ed. 192-198.)
Municipal corporations — powers —
regulating rates.
1. Independently of a right to regulate
and control the rates to be charged for pub-
Kote. — ^As to establishment and regu-
lation of municipal water supply — see
note to State ex rel. Hallauer v. '€k)s-
nell, 61 L.R.A. 33.
As to power of municipality, mturt
9S1
193
SUPREME COURT OF THE UNITED STATES.
Oct. Tebk
lie service reserved in a grant of a fran-
chise or right to use the city streets, a
city or other municipality has no power to
regulate rates to be charged by water, light-
ing, or other public service corporations, in
the absence of express or plain legislative
authority to do so, nor does such authority
arise from the power to regulate the. open-
ing and use of streets, nor from a grant
of the eeneral right to control and regulate
the right to erect works and lay pipes in
the city streets.
[For other cases, see Municipal Corpora tions,
II. f : Waters, III. b, in Digest Sup. Ct.
1908.]
Waters ^ municipal power to regulate
rates.
2. No grant of municipal authority to
fix water rates can be deduced from the pro-,
visions of Kv. Stat. § 3490, subsec. 25, that
the board of council in cities of the fourth
class may grant the ri^lit of way over the
public streets to any railroad or street rail-
road company on ^uch conditions as to it
ma^ seem proper, and shall have a super-
vising control over the use of the same, and
may regulate the speed of cars and signals,
and fares on street cars, and under like
conditions and supervision may grant the
necessary right of way to water companies,
nor from other subsections of this section
empowering the council to provide a water
supply or to contract for that purpose, to
Srotect the water supply svstem against
amage or molestation, to make by-laws and
ordinances to carry into effect the powers
granted, and to do all things properly be-
longing to the police of incorporated cities.
[For other cases, see Waters, III. b. In Digest
Sup. Ct 1908.]
[No. 51.]
Argued October 24, 1919. Decided January
5, 1920.
APPEAL from the District Court of
the United States for the Eastern
District of Kentucky to review a decree
enjoining the enforcement of a munici-
pal ordinance fixing water rates. Af-
firmed.
The facts are stated in the opinion.
Mr. J. Smith Hays aiigiied the oause,
and, with Messrs. J. Smith Hays, Jr.,
John M. Stevenson, James F. Winn, and
F. H. Haggard^ filed a brief for appel-
lants :
The city is clothed with authority to
fix rates by the language of Kentucky
Statutes, § 3490, subsection 25, and the
other subsections show that it was the
plain legislative iptent to bestow such
power.
Owensboro v. Owensboro Waterworks
Co. 191 U. S. 358, 48 L. ed. 217, 24 Sup.
Ct. Rep. 82; 37 Cyc. 604.
The language of the court of appeals
of Kentucky, cited by the district court*
relative to charters of cities of the
third and fourth class in Kentucky, is
dictum.
United Fuel & Gas Co. v. Com. 159
Ky. 34, 166 S. W. 783.
Mr. Beverley R. Jouett argued the
cause, and, with Messrs. James M. Ben-
ton and Stephen T. Davis, filed a brief
for appellee :
The board of council of the city of
Winchester had no authority on June
2, 1916, to pass the ordinance fixing the
rates which water companies would be
permitted to charge for water furnished
the city and its citizens, because the
legislature of Kentucky had not granted
such authority to the city.
3 Dill. Mun. Corp. §§ 1325, 1389; 2
Lewis's Sutherland, Stat. Constr. § 403;
Eikholf V. Charter Commission, 176
Mich. 535, 142 N. W. 746; People ex rel.
McCullough V. Deutsche €^emeinde, 249
IIL 132, 94 N. E. 162; Wabash R. Co.
▼. United States, 101 C. C. A. 133, 178
Fed. 5, 21 Ann. Cas. 819; Consolidated
Coal Co. V. MiUer, 236 III 149, 86 N. E.
206; Jacksonville v. Southern Bell
Teleph. A Teleg. Co. 57 Fla. 374, 49 So.
509; State ex rel. Gamer v. Missouri A
K. Teleph. Co. 189 Mo. 83, 88 S. W. 41 ;
State ex rel. Wisconsin TcIotIi. Co. ▼.
Sheboygan, 111 Wis. 23, 86 N. W. 657;
Re Piryor, 55 Kan. 724^ 29 L.R.A. 398,
49 Am. St. Rep. 280, 41 Pao. 958; Lew-
iaville Natural Gas Co. v. State, 135
Ind. 49, 21 L.R.A. 734, 34 N. E. 702;
Bluefleld Waterworks & Improv. Co. v.
Bluefield, 69 W. Va. 1, 33 L.R.A.(N.S.)
759, 70 S. E. 772; Sohroeder v. Scran-
ton Gas & Water Co. 20 Pa. Super. Ct.
255; St. Louis v. Bell Teleph. Co. 96
Mo. 623, 2 L.R.A. 278, 9 Am. St. Rep.
370, 10 S. W. 197; MiUs v. Chicago, 127
Fed. 731; United Fuel .& Gas Co. v.
Com. 159 Ky. 34, 166 S. W. 783; Cum-
berland Teleph. & Teleg. Co. v. Mem-
phis, 119 C. C. A. 73, 200 Fed. 657.
Mr. Justice Day delivered the opinion
of the court:
The Winchester Water Works Com-
pany filed its bill in the United States
district court for the eastern district of
Kentucky, seeking to enjoin the enforee-
ment of an ordinance establishing maxi-
mum rates for water to be furnished the
from contract, to reg^ulate the rates to
be charged by public service corpora
tion — see notes to Bluefield Waterworks
222
& Improv. Co. v. Bluefield, 33 L.R.A.
(N.S.) 759, and St. Marys v. Hope Nat-
aral Gas Co. 43 L.R«A.(N.S.) 994.
251 U. 8.
Iflft.
WINCHESTER v, WINCHESTER WATER WORKS CO.
193^195
eitj for poblie use and to the people
thereof for private use. By the bill and
amended bill it was charged that the
eity had no authority to pass or enforce
an ordinance fixing such rates, because
(1) no power had been granted to the
city so to do by the legislature of Ken-
tacky; (2) because the rates established
were so low as to be confiscatory in their
eharaeter, and, consequently, the or-
dinance was violative of rights secured
to the company by the 14th Amendment
to the Federal Constitution. An answer
was filed, and the court decided the case
and made a final decree in favor of the
company upon the ground that, under
the laws of Eentucl^, the eity had no
authority to pass or enforce an or-
dinance fixing rates. The court found it
unnecessary to pass upon the question
of the confiscatory character of the rates.
The bill invoked jurisdiction upon a con-
stitutional ground, and the ease was
brought here by direct appeal.
•It appears tiiat the company had a
contract with the city, which expired
in 1916, and thereafter the ordinance in
controversy was passed. That a city has
no power to r^ulate rates of this char-
acter unless it faa^ legislative authority
so to do is established, and does not
seem to be disputed by the appellant.
*^dependently of a right to regulate
and control the rates to be charged for
public service reserved in a grant of a
franchise or right to use the city streets,
a eity or other municipality has no pow-
er to regulate the rates to be charged by
water, Ughting, or [194] other public
service corporations in the absence of
express or plain legislative authority to
do so." 3 DiU. Mun. Corp. 5th ed. §
1325. Nor does such authority arise
from the power to reg^ulate the opening
and use of streets, nor a grant of the
general right to control and regulate
the right to erect works and lay pipes
in the streets of the city. State ex rel.
Gamer v. Missouri & K. Teleph. Co. 189
Mo. 83, 88 S. W. 41; Jacksonville v.
Southern Bell Teleph. Co. 67 Fla. 374,
49 So. 509; Lewisville Natural Gas Co.
t. State, 135 Ind. 49, 21 L.R.A. 734, 34
N. E. 702; MUIs v. Chicago, 127 Fed.
731; State ex rel. Wisconsin v. Chey-
boygan, 111 Wis. 23, 86 N. W. 657.
Bearing this general principle in mind,
we come to examine the sections of the
laws of Kentucky which, it is insisted,
pive the authority to fix water rates.
The appellant insists that this power
i« expressly conferred in subsection 25
of § 3490 of the Kentucky Statutes,
which reads as follows: "The board of I
•4 L. ed.
council may grant the right of way over
the public streets or public grounds of
the city to any railroad company or
street railroad company, on such con-
ditions as to them may seem proper, and
shall have a supervising control over the
use of the same, and regulate the speed
of cars and signals and fare on street
cars; and under like condition and super-
vision may grant the. right of way that
may be necessary to gas companies,
water companies, electric light compa-
xues, telephone companies, or any like
companies; and may compel any rail-
road company to erect and maintain
gates at any or all street crossings, and
to prevent railways from blocking or ob-
structing the streets or public ways of
the city, and to fix penalties for the vio-
lation of these provisions: provided,
etc.'*
Other subsections claimed to be ap-
plicable are given in the margin.^
[195] Examining subsection 25, we
are unable to discover any grant of
authority to fix the rates for water con*
sumption. It is therein first provided
that the council may grant the right of
way over the public streets to any rail-
1 Kentucky Statutes :
'*3490. The board of council, in addition
to other powers herein granted, shall have
power within the city:
"(8) To provide the city with water, or
erect, purchase or lease waterworks and
maintam same, or to make all necessary
contracts with any person or corporation
for such purposes; to erect hydrants, cis-
terns, fire plugs and pumps in the streets
within or beyond the limits of the city.
"(30) The board of council shall have
power, by ordinance, to prescribe the pun-
ishment, by fine, not exceeding $100, or im-
prisonment not exceeding sixty days, of any
person who shall molest, damage or inter-
fere with any system of waterworks laid in
said city, or the pipes and mains, hydrants,
or any part thereof, and shall have power
to punish by ordinance and impose the same
penalty as for damaging or molesting any
other public property, and may, subject to
the rules of any water company which may
establish such system, select persons who
shall have the right to open, tap, or make
connection with such pipes or mains in the
streets, allevs, or public wavs of said city.
"(33) Said city council shall have legis-
lative power to make by-laws and or-
dinances for the carrying into effect of all
of the powers herein granted for the gov-
ernment of the city, and to do all things
properly belonging to the police of incor-
porated cities. Said board of coimcil may
change the boundary line of any ward or
wards of any city now divided into wards,
or hereafter divided into wards, under the
provision of this act, not less than sixty
days previous to any November election.''
22a
196-198
SUPREME COURT OF THE UNITED STATES.
Oct.
road or street railroad company on such
conditions as to the council may seem
proper, and shall have a sui>ervising
control over the use of the same, and
the council is given the right to reg-
ulate the speed of cars and signals and
fare on street cars, and under like con-
ditions and supervision, the ieouncil may
grant the right of way to water com-
panies among others. This language is
certainly very far from that express
authority to regulate rates, which, is
essential in order to enable municipalr
ities so to do. The power to grant a
right of way to water companies is
specifically granted, and this under like
conditions and supervision already pro-
vided as to railroad and street [196]
railroad companies. This is the full
measure of the grant of authority to
deal with water companies. The right
to regulate fares is in the same sentence
which grants authority to deal with
water companies, and is specifically
limited to fares on street cars.
Nor do we find in other subsections of
this section any provision from which
the right to fix the rates of water com-
panies can be inferentially deduced.
Counsel call to our attention but one
case from Kentucky* whose court of last
resort is final authority upon the con-
struction of the statutes, and that is
United Fuel & Gas Co. v. Com. 159 Ky.
34, 166 S. W. 783. There the United
Fuel & Gas Company held a franchise
from a city in Kentucky under an or-
dinance providing that the grantee of
the franchise should furnish for public
and private use for the city and its in-
habitants natural and artificial gas at a
reasonable price not exceeding in any
event $1 per 1,000 cubic feet, and that
the grantee, in delivering gas, should not
discriminate against the consumers in
the city. The company proposed to sell
gas to the inhabitants of the city at 20
cents per thousand feet if they would
sign a contract for five years, but it
charged persons who did not sign such a
contract 25 cents a thousand feet. The
city council passed an ordinance pro-
viding that a gas company should not
charge one citizen more than another,
and imposed a fine for violation of the
ordinance. The city was of the fifth
class, and was given anthority to make
*'all other local police, sanitary, and oth-
er regulations, not conflicting with the
general laws." The court held that the
act for the government of this city of
the fifth class must be read in connection
with the statutes conferring power on
224
larger cities^ and that, thus constraed^
there was no grant of authority to the
city to impose a fine such as the one in
question in the absence of legislative
authority so to do. The section from
Dillon on Municipal Corporations,
[107] stating that the authority of a
municipality to regulate rates to be
charged by public service corporations
is limited -to cases in which express or
plain legislative authority has been giv-
en, was quoted with approvaL Cases
from other states in which the princi-
ple has been approved were also cited.
It is true that this case is not precisely
in point, but it contains a recognition by
the court of appeals of Kentucky of the
accepted principle that the right to fix
rates must be granted to municipal cor-
porations by a plain expression of legis-
lative authority. It is said, however^
that our decision in Owensboro v. Owens-
boro Waterworks Co. 191 U. S. 358, 48 Lr.
ed. 217, 24 Sup. Ct. Rep. 82, holds a con>
trary view; So far as apposite, that case
dealt with the power of a city of the
third class to fix rates for water con-
sumers. As to cities of that class, § 3290
of the Kentucky Statutes specifically
provides authority tcT provide the city
and inhabitants thereof with water,
light, etc., service by contract or by
works of its own, and to make regula-
tions for the management thereof, and
to hx and regulate the price to consum-
ers and customers. Dealing with that
section, and the authority conferred up-
on cities of the third class, this court
said: ''The purpose of § ^290 was to
provide the inhabitants of cities of the
third class with the services mentioned,
— water, light, power, heat, and tele-
phone. They could be provided by the
cities directly, or they could be provided
by private persons; but whatever way
provided, the power was given to regu-
late the management and fix the rates of
the services, and this was but the en-
dowment of a common governmental
power."
This language was used in regard to
the authority given in express terms to
fix rates. It was said of such authority
that it was but the endowment of a com-
mon governmental power. This is un-
doubtedly true. But it is equally certain
that the governmental power rests with
the state, and must be conferred upon
the municipality [198] in an unmis-
takable way. We find nothing in the
Owensboro Case which at all conflicts
with the construction which we have
given to § 3400, applicable to cities of
251 r. 8.
191l».
ST. U)l l.S, 1. M. & S, R. CX). V. UNITED STATES.
198, 202
the fourth class, to which the city of
Winchester belongs.
FindiDK DO error in the judgment of
the District Court, the same is affirmed.
ST. liOUIS, IRON MOUNTAIN. & SOUTH-
ERN RAILWAY COMPANY, Appt.,
V.
UNITED STATES OF AMEUICA.
(See S. C. Reporter's ed. 108-200.)
Pohtofliee ^ €M>inpen$Mition for carrying
niallH — empty mail ba'^s.
1. There is nothing to prevent Congress,
when fixing compensation for the carriage
of the mails, from directing, as it did in the
Act of May 27, 1908, that the empty mail
btg> shall be withdrawn from the mails
and be transported by freight or. express,
the effect of which is to reduce the com-
pensation for carrying the mails by ex-
cluding the weight of the empty bags in
determining the average weight of the mails
ai the basis of fi.\ing compensation.
[For other casos. see PostolAce, iV. c, in Digest
8np. Ct. 1008.1
Postofflce — compensation for carrylni?
. Uie mails ^ empty mail hmgs ^ land-
smnt milroads.
2. Congress, by directing, as it did in
the Act of May 27, 1908, that empty mail
bags be withdrawn from the mails and be
transported by freight or express, thereby
broupht such bags when carried by freight
00 a land-grant-aided railway within the
provision of the Land-Grant Acts that all
property and troops of the United States
shall be transported at the railway c(»m-
pany's expense, although by a wholly sepa-
rate provision it was declared that the
mails should be transported over the rail-
way company's lines at such prices as Con-
gress might direct, and the price was later
fixed by Congress at 80 per cent of the
compensation that would otherwise have
been received.
[Pbr other cases, see Postoffice, IV. c. In Digest
Sup. Ct. 1908.)
[No. 71.]
Argued November 12, 1919. Decided Janu-
ary 5, 1920.
APPEAL from the Court of Claims to
review a judgment dismissing the
petition of a railway company for com-
pensation for the carriage of empty
mail bags. Affirmed.
See same case below, 53 Ct. CI. 45.
The facts are stated in the opinion.
Mr. Benjamin Carter argued the
cause and filed a brief for appellant:
The words in the land-grant statutes,
relating to passenger and freight trans-
portation, whieh define the subject of
transportation free of charge, or at less
€4 L. ea.
rates than those established by the
ordinary tariffs;, are to be construed
strictly.
United States v. Union P. R. Co. 249
U. S. 354, 63 L. ed. 643, 39 Sup. Ct.
Rep. 294; Alabama G. S. R. Co. v.
United States, 49 Ct. CI. 522: Chicago.
M. & St. P. R. Co. V. United States, 53
Ct. CI. 627.
When a statute, not clear upon its
face, is to be interpreted, courts will
consult the legislative reports and de-
bates for expressions or indications of
the legislature's intention.
St. Louis, I. M. & S. R. Co. v. Craft,
237 U. S. 648, 59 L. ed. 1160, 35 Sup. Ct.
Rep. 704, 9 N. C. C. A. 754; Tap line
Cases (United States v. Louisiana & P.
R. Co.), 234 U. S. 1, 27, 58 L. ed. 1185,
1195, 34 Sup. Ct. Rep. 741; United
States ex rel. Atty. Gen. v. Delaware &
H. Co. 213 U. S. 366, 53 L. ed, 836, 29
Sup. Ct. Rep. 527; United States v.
Trans-Missouri Freight Asao. 166 U. S.
290, 41 U ed. 1007, 17 Sup. Ct. Rep. 540.
A statute, although in clear terms, is
not to be interpreted in a way to. pro-
duce results manifestly unjust or ab-
surd.
Hawaii v. Mankichi, 190 U. S. 197, 47
L. ed. 1016, 23 Sup. Ct. Rep. 787, 12
Am. Crim. Rep. 465; Lau Ow Bew v.
United States, 144 U. S. 47, 36 L. ed.
340, 12 Sup. Ct. Rep. 517; Heydenfeldt
V. Daney Gold &< S. Min. Co. 93 U. S.
634, 638, 23 L. ed. 995, 996, 13 Mor. Min.
Rep. 204; United States v. Kirbv, 7
Wall. 482, 19 L. ed. 278.
Assistant Attorney Genera] Frierson
argued the cause and filed a brief for
appellee :
Congress has the undoubted right to
designate what shall be carried in the
mails and what shall be excluded from
them.
Ex parte Jackson, 96 U. S, 727, 732,
24 L. ed. 877, 879; Public Clearing;
House V. Coyne, 194 U. S. 497, 48 L. ed.
1092, 24 Sup. Ct. Rep. 789.
Mr. Justice Day delivered the opinion
of the court:
This case presents questions arising
upon a suit brought by the railway com-
pany in the court of claims to recover
compensation for the carriage of mail
bags under facts found in the court of
claims in the record sent up for our con-
sideration. These facts are: That the
St. Louis, Iron Mountain, & Southern
Railway Company, a corporation organ-
ized under the laws of the state of Mis-
souri, operated a line of railwav between
5 '' 225
202-204
SUPREME COURT OF THE UNITED STATES.
Oct. Tebu,
Tower Grove, Missouri, and Texarkaoa,
in Arkansas. So much of the railway
line as lies between Poplar Bluff, Mis-
souri, and Tezarkana, Aiicansas, was
aided in its construction by a grant of
land from the United States by the Act
of February 9, 1863 (10 Stat, at L. 156,
chap. 69), and by the Act of July 28,
1866 (14 Stat, at L. 338, chap. 300).
The 4th section of the Act of Febru-
ary 9, 1853, provides:
''The said railroad and branches shall
be and remain a public highway for the
use of the government of the United
States, free from toll or other charge
upon the transportation of any property
or troops of the United States."
The 1st section of the Act of July 28,
1866, with respect to said railway, pro-
vides:
''All property and troops of the Unit-
ed States shall at all times be trans-
ported over said railroad and branches
at the cost, charge, and expense of the
company or corporation owning or op-
erating said road and branches respec-
tively, when so required by the govern-
ment of the United States."
February 4, 1910, the Postoffice De-
partment transmitted to the claimant
company a distance circular which
[208] relates to mail transportation',
the same was duly filled out and certified
and returned to the Postoffice Depart-
ment. Between the 17th of February
and the Ist day of June, 1910, the Post-
office Department made the quadrennial
weighing of mail in the weighing divi-
sion which included the railway com-
pany's lines. Before this weighing of
the mails, Congress passed the Act of
May 27, 1908 (36 Stat, at L. 412, chap.
206), making appropriations for the
Postoffice Department, which provides:
*'The Postmaster General shall require,
when in freightable lots and whenever
practicable, the withdrawal from the
mails of all postal cards, stamped
envelops, newspaper wrappers, empty
mail bags, furniture, equipment and
other supplies for the postal service,
except postage stamps, in the respec-
tive weighing divisions of the country,
immediately, preceding the weighing
period in said divisions, and thereafter
said postal cards, stamped envelops,
newspaper wrappers, empty mail bags,
furniture, equipment, and other sup-
plies for the postal service, except post-
age stamps, shall be transmitted by
either freight or express."
Stlbsequent to the passage of the Act
of May 27, 1908, the Postoffice Appro-
226
priation Acts provided for specific sums
for the pa3rment of expressage oh post-
al cards, stamped envelops, newspaper
wrappers, and empty mail bags, and they
carried similar provisions as to the with-
drawal of said articles from the mails
preceding weighing periods.
Before the weighing of the mails of
the railway company the Postmastenr
General, acting under authority of the
provisions of the Act of 1908, with-
drew from the mail the empty mail bags,
and the same were thereafter trans-
ported by freight over claimant's line of
railway, and the weights were not in-
cluded in estimating the weight of the
mail carried during the contract term
beginning July 1, 1910.
The findings give . the number of
pounds of empty mail [204] bags with-
drawn from the mails during the weigh'*
ing season of 1910, and sent by freight
to St. Louis from Texarkana, Arkansas,
and Little Rock, Arkansas, and sho^
that if these empty bags had not been
so withdrawn and the weight thereof
had been included with the weight of
the mails, upon which compensation waa
based, the claimant would have received
$15,296.82 more than it did receive for
service performed between July 1, 1910,
and February 1, 1912.
During the period from July 1, 1910,
to and including January 31, 1912, a
total of 1,452,271 pounds of empty mail
bags was transported over the railroad
of the claimant in freight trains from
Texarkana, Arkansas, to St. Louis, Mis>
souri, for which service the claimant
submitted bills at the published tariff
rate against the United States amount-
ing in the aggregate to $14,043.17. In
making settlement of these charges the
Auditor for the Postoffice Department
made a deduction for the entire charge
for the services performed from Tex-
arkana, Arkansas, to Poplar Bluff, Mis-
souri, amounting to $8,251.45.
The 6th section of the Act of 1853
provides : "The United States mail shall
at all times be transported on the said
road and branches, under the direction
of the Postoffice Department, at such
price as Congress may by law direct."
And the 13th section of the Act of
July 12, 1876 (19 Stat, at L. 78, chap.
179, Comp. Stat. § 7486, 8 Fed. Stat.
Anno. 2d ed. p. 199), provides: "That
railroad companies whose railroad was
constructed in whole or in part by a
land gxiant made by Congress on the
condition that the mails should be trans-
251 V. 8.
1919.
ST. LOUIS, I. M. & S. R. CO. v. UNITED STATES.
204-207
ported over their road at such price as
CoDgress should by law direct shall re-
eeive only 80 per centum of the compen-
sation authorized by this act.'^
The findings further state that ever
since the passage of said last-mentioned
aet it has been the custom and practice
of the Postoffice Department to pay all
the railroads [205] whose construction
was aided by grants of land from the
United States 80 per centum of the rate
of compensation paid to non-land-aided
roads for carrying the mails.
Claimant presented its bill for the
transportation of said freight at the full
«*onimercial rate provided by the duly
published and approved tariffs. In mak-
ing settlement therefor, the Postmaster
i^neral made deduction of the entire
charge between Texarkana, Arkansas,
and Poplar Bluff, Missouri, and refused
to pay anything therefor, on the ground
that the railway company was obliged
by the provisions of the Acts of 1853
and 1866 to transport said empty mail
bags without cost or expense to the
United States.
Upon these findings the court of claims
•^^cided against the claimant, and dis-
missed its petition. 53 Ct. CI. 45. "
Two questions are presented, which
are thus stated in the opinion of the
conrt of claims:
"(1) Could the empty mail bags be
lawfully withdrawn from the mails mere-
ly for tlie purpose of reducing claim-
ant's compensation for mail transporta-
tion service t
^(2) And assuming that said empty
mail bags were lawfully withdrawn from
the mails and shipped by freight, were
they 'property' of the United States
within the purview of the Land Grant
Acts of 1853 and 1866 f
As to the first question there can be
little difficulty. There was nothing in
any law or contract of the government
which required it to permit the weigh-
ing of empty sacks or containers as part
of the mail in determining the compen-
sation to be paid for carrying the same.
While, generally speaking, a bag or con-
tainer in which letters or other mail-
able matter is carried is part of the
mail, and collectively the containers
might be considered as part of the mail
essential to carry the mailable matter
from one place to another, nevertheless
there was nothing to prevent Congress,
in fixing compensation for the carriage
of the mails, to expressly withdraw
therefrom the empty [206] mail bags,
#4 li. ed.
and this it did by the Act of May 27,
1908, above quoted.
For the purposes of fixing eompensa-
tion in the weighing of the mail Congress
directed that the weight of the empty
bags should be withheld in determining
the average weight of the mails as the
basis of fixing compensation. We agree
with the court of claims that such action
violated no contractual or other right
of the claimant.
Concerning the other question pre-
sented there is perhaps more difilcultv.
By the 6th section of the Act of 1853 'it
was directed that the United States mail
should be transported over the claim-
ant's road at such prices as Congress
may by law direct, and by the 18th sec-
tion of the Act of July 12, 1876, rail-
roads aided by grants of land made by
Congress on condition that Congress
shqidd fix the basis of compensation for
transportation of mails over its lines
should receive 80 per centum of the com-
pensation provided for in the act. These
acts make specific reference to the
amounts to be paid for the transporta-
tion of the miuls. The payment pro-
vided in them is for the transportation
of the mails, which, it may be conceded,
might include with the mail-matter the
bags in which the same was carried.
However, by the Act of May 27, 1908,
the Congress has classified empty mail
bags with furniture and equipment and
other supplies for the postal service, to
be transported by freight or express.
Congress thus undertook to make a sep-
arate provision covering the carrying of
^npty mail containers after they nad
served their purpose of inclosing the
mail-matter during transportation.
It is insisted that the return of the
empty mail bags is but part of the
transportation of the mail. But cer-
tainly Congress might provide that
empty mail bags should be ' differently
treated than those used in the actual
transportation of mailable matter. None
will dispute that forwarding mail bags
from their place of manufacture to
[207] different points in the country
for use would not constitute transporta-
tion of mail. We see no reason why
Congress may not regard empty mail
bags, being returned for ]further use, as
no longer a part of the mails. Con-
gress authorized contracts for the trans-
portation of the mail, but, by the Act of
May 27, 1908, it withdrew empty mail
bags from maU transportation and
directed that they be sent by freight or
express. How, then, was such transpor-
227
207-209
SUPREME COURT OF THE UNITED STATES.
Oct. Term:,
tation to be compensated? Ordinarily
the applicable freight or express rates
would control. But the acts of Con-
gress which provided that property of
the United States should be transported
at the expense of the company were in
full force and effect. It is said that in
the report and action upon the legisla-
tion which took empty mail bags from
carriage as part of the mails and direct-
ed the carriage by freight or express
there is no intimation that the result of
such legislation would have the effect of
obtaining free transportation under the
Land Grant Acts, and that no such re-
quirement is made in the act itself. But
Congress must be presumed to have
known of its former legislation in the
Acts of 1853 and 1866, and to have
passed the new laws in view of the pro-
visions of the legislation already enact-
ed. These statutes must be construed
together and effect given to all of them.
Under the earlier acts this railroad, in
consideration of benefits received, was
bound, when required, to transport
troops and property of the United
States free of charge.
We have here a question concerning
the transportation of property of the
United States. See Southern P. Co. v.
United States, 237 U. S. 202, 204, 59 L.
ed. 916, 917, 35 Sup. Ct. Rep. 573. The
act of Congress providing for 50 per cent
rates concerns only "army" transporta-
tion, and is not applicable to this case.
See Act of June 30, 1882 (22 Stat, at L.
120, chap. 254; 1 Rev. Stat. Supp. pp.
375, 376). 'fhe empty mail bags were
property, and belonged to the United
States. When the government required
their transportation by freight, the for-
mer legislation which accompanied
[208] the grant of lands to this rail-
way company controlled the terms of
carriage. '
We find no error in the judgment of
the Court of Claims, which was also the
conclusion of the Comptroller of the
Treasury (17 Comp. Dec. 749).
Affirmed.
Mr. Justice. McReynolds, dissenting:
Appellant's right to recover seems
quite plain to- me.
The Act of February 9, 1853, chap.
59, 10 Stat, at L. 155, granted lands
afterwards used to aid in constructing
appellant's lines. Section 4: ". . .
The said railroad and branches shall be
and remain a public highway for the
use of the government of the United
228
States, free from toll or other chargre
upon the transportation of any property
or troops of the United States." Sec-
tion 6: "That the United States mail
shall at all times be transported on the
said road and branches, under the direc-
tion of the Postoffice Department, at
such price as Congress may by law-
direct."
The Act of July 28, 1866, chap. 300,
14 Stat, at L. 338, among other things,
revived and extended the Act of 1853.
Section 1: ". . . And provided fur-
ther, That all property and troops of
the United States shall at all times be
transported over said railroad and
branches at the cost, charge, and expense
of the company or corporation owning
or operating said road and branches r^
spectively, when so required by the gov-
ernment of the United States."
Ajid thus it appears that one section
of the statutes directs free transporta-
tion of "all property and troops of the
United States," and a wholly different
section requires transportation of the
United States mail "under the direction
of the Postoffice Department, at such
price' as Congress may by law direct."
Through the Postoffice Department, the
United States [209] are engaged in
handling the mails for pay. Their
transportation is part of a well-defined
business. In the orderly course and as
an essential part of that business
emptied sacks are constantly being re-
turned for further use. They are prop-
erty of the United States in a certain
sense, whether full or empty; and they
are elements of the mail whether goings
out or coming back.
A clear distinction between property
of the United States and United States
mail is preserved by the very language
of the Land Grant Statutes; and, I
think. Congress had no purpose — if, in-
deed, the power — to convert mail into
property within the meaning of these
statutes simply by directing carriage of
the former in freight trains. The pur-
pose was to secure transportation at less
than former cost, and to such end Con-
gress, in effect, commanded that emptied
bags, a portion of the mails for which
rapid movement is not essential, "shall
be transmitted by either freight or ex-
press," and compensation made accord-
ing to the ordinary rates. Under this
interpretation, the railroad would suffer
no oppressive burden and contemplated
economies would be effectuated.
251 V. S.
ItUO.
UNITED STATES v. STANDARD BKEW KUV.
210
(3101 rXITED STATES OF AMERICA,
Plff. in Err.,
V.
STANDARD BREWERY, Incorporated.
(No. 458.)
UNITED STATES OF AMERICA, Plff. in
Err.,
V.
AMERICAN BREWING COMPANY.
(No. 474.)
<See S. C. Reporter's ed. 210-220.)
Statuteft ^ oonstrnctlon — general
terms.
1. Where several words in a statute
are followed by a general expression which
is as much applicable to the first and other
words as to the last, that expression is not
limited to the last, but applies to all.
[For otber cases, see Statutes, II. f. In Digest
8up. Ct. 1908.1
War — > war*tltne prohibition — maiiu*
facturc of non in toxical in|if beer.
2. The use of grains, cereals, fruit, or
other food products in the manufacture and
production of beer for beverage purposes,
which, while containing as much as J of I
per cent of alcohol by weight and volume,
is not alleged to be intoxicating, was not
prohibited by the provisions of the War-
time Prohibition Act of November. 21, 1918,
that to conserve the nation's man power
and to increase efficiency in the production
of war essentials no grains,, cereals, fruit,
or other food products shall, after May 1,
1919, until the conclusion of the war and
until demobilization is proclaimed by the
President, be used in the manufacture or
pro<luction of beer, wine, or other intoxi-
cating malt or vinous liquors for beverage
purposes. A different conclusion is not de-
manded because of Treasury Department
rulings that all beer containing ^ of 1 per
tTent of alcohol is taxable, or of the de-
termination of the Internal Revenue Depart-
ment that a beverage containing that
amount of alcohol is to be regarded as in-
toxicating within the intendment of the
act.
Statutes — executive construction.
3. Administrative rulings cannot add
to the terms of an act of Congress and
make conduct criminal which such law
leaves untouched.
[For other casw»s, .see Statutes, II. e, 2, Ip
Digest Sup. Ct. 1908.]
Statutes — construction — favoring con-
stitutionality.
4. A congressional enactment must be*
construed, if fairly possible, so as to avoid
not only the conclusion that it was uncon-
stitutional, but also grave doubts upon that
score.
[For otber cases, see Statutes, II. a, in Digest
Sup. Ct. lOOS.l
Evidence — judicial notice — intoxicat-
ing character of Uqnor.
5. The Federal Supreme Court cannot
say as a matter of law that a beverage con-
taining not more than ^ of 1 per cent of
alcohol is intoxicating.
[For other cases, see Evidence, I. e, in Digest
Sup. Ct. 1908.1
[Nos. 458 and 474.]
Argued December 11, 1919. Decided Janu-
ary 5, 1920.
IN ERROR to the District Court of the
United States for the District of
Maryland to review a judgment sustain-
ing a demurrer to an indictment charg-
ing a violation of the War-time Prohibi-
tion Act. Affirmed. Also
IN ERROR to the District Court of
the United States for the Eastern Dis-
trict of Louisiana to review a judg-
ment sustaining; a demurrer to an in-
dictment charging a violation of the
War-time Prohibition Act. Affirmed.
See same case below, in No. 458, 260
Fed. 486.
The facts are stated in the opinion.
Solicitor General King and Assistant
Attorney General Fri^rson argued the
eause and filed a brief for the United
States in No. 458 :
Clearly the intention was to prohibit
all beverages which are commonly
known as beer. The courts of the vari-
ous states have almost uniformly given
this construction to similar language.
Note. — On construction of statute ac-
cording to purpose for which it was
passed — see note to United States v.
Saunders, 22 L. ed. U. S. 736.
On popular and received import of
words as furnishing rule of interpreta-
tion— see note to Maillard v. Lawrence,
14 L. ed. U. S. 925.
Generally, on construction of statute
— see note to Blake v. National City
Bank, 23 L. ed. U. S. 119.
On the question as to whether stat-
utes forbidding the sale of a certain
class or classes of liquor include nonin-
toxicating liquor — see notes to State v.
64 li. ed.
jHemrich, L.R.A.1917B, 974; Ex parte
Loekman, 46 L.R.A.(N.S.) 759; Bowlini?
Green v. McMulIen, 26 L.R.A.(N.S.)
895; and Luther v. State, 20 L.R.A.
(N.S.) 1146.
As to what liquors are within stat-
utory restrictions as to the sale of spir-
ituous, vinous, fermented, and other in-
toxicating liquors — see note to Leml3' v.
State, 20 L.R.A. 645.
On judicial notice or inference as to
spirituous, vinous, distilled, malt, fer-
mented, or intoxicating quality of liquor
from its name — see note to State v.
Barr, 48 L.R.A. (N.S.) 302.
229
SLPREME COURT OF THE UNITED STATEt^.
Oct. Teem,
United States v. Cohn, 2 Ind. Terr. 492,
52 S. W. 38; State v. Elv, 22 S. D. 492,
118 N. W. C87, 18 Ann. Cas. 92; La Fol-
lette V. Murray, 81 Ohio St. 474, 91 N.
E. 294; Fuller v. Jackson, 97 Miss. 253,
30 L.R.A.(N.S.) 1078, 52 So. 873; Pur-
ity Extract & Tonic Co. v. Lynch, 100
Miss. 650, 56 So. 316; Marks 'v. State,
159 Ala, 71, 133 Am. St. Rep. 20, 48 So.
867; Re Lockman, 18 Idaho, 469, 46
L.R.A.(N.S.) 759, 110 Pac. 253; Brown
V. State, 17 Ariz. 314, 152 Pac. 578.
Messrs. Wayne B. Wheeler and An-
drew Wilson filed a brief as amici
curiaa :
The War Prohibition Act prohibits
beer and wine containing 2J per cent
alcohol by 'weight, and 3 3/10 per cent
alcohol by volume, regardless of their
intoxicating qualities.
United States v. Cohn, 2 Ind. Terr.
474, 52 S. W. 38; La Follette v. Murray,
81 Ohio St. 474, 91 N. E. 294; State v.
Walder, 83 Ohio St. 68, 93 N. E. 531;
State V. Williams, 11 S. D. 64, 75 N. W.
815; State v. Ely, 22 S. D. 487, 118 N.
W. 687, 18 Ann. Cas. 92.
Similar statutes enacted by Congress
and state legislatures have been con-
strued to include all beer and wine,
without reference to their intoxicating
quality.
United States v. Cohn, supra; La Fol-
lette V. Murray, 81 Ohio St. 474, 91 N.
E. 294; State v. Williams, 11 S. D. 64,
75 N. W. 815.
Mr. William L. Marbury argued the
cause, and, with Messrs. William L.
Rawls and Randolph Barton, Jr., filed
a brief for the Standard Brewery:
Congress only* intended to deal with
malt and vinous liquors, by whatever
name they might be called, when they
met the two conditions specified, viz.:
when they were intoxicating and when
they were manufactured for beverage
purposes. The language used is so clear
that it is scarcely capable of any eluci-
dation. The interpretation which is
here placed upon it is that which the
mind naturally gives it, without any ef-
fort, and the one which a critical exam-
ination of the text of the statute con-
firms.
Jacob Hoffman Brewing Co. v. Mc-
Elligott, — ■ C. C. A. — , 259 Fed. 525;
United States v. American Brewing Co.
(U. S. Dist. E. Dist. La.) ; United States
V. Ranier Brewing Co. 259 Fed. 359;
United States v. Baumgartner, 259 Fed.
722; United States v. Petts, 260 Fed.
063; United States v. Henlev Brewing
Co. (U. S. Dist. Ct. R. I.) ; United States
230
V. Mohr (U. S. Dist. Ct. Wis.); United
States V. Porto Rico Brewing Co. (U. S.
Dist. Ct. Porto Rico) ; United States
V. Blatz Brewing Co. (U. S. Dist.
E. Dist. Wis.); United States v.-
Chase, 135 U. S. 255, 34 L. ed. 117, 10
Sup. Ct. Rep. 756, 8 Am. Crim. Rep-
649; United States v. Loftis, 12 Fed.
671; United States v. United Verde Cop-
per Co. 196 U. S. 207, 49 L. ed. 449, 25
Sup. Ct. Rep. 222; Potts v. United
States, 51 C. C. A. 678, 114 Fed. 52;
Gridlev v. Northwestern Mut. L. Iris. Co.
14 Blatchf. 108, Fed. Cas. No. 5,808, af-
firmed in 100 U. S. 614, 25 L. ed. 746;
Sinclair v. Phoenix Mut. L. Ins. Co. Fed.
Cas. No. 12,896; Bowling Green v. Mc-
Mullen, 134 Ky. 742, 26 L.R.A.(N.S.)
895, 122 S. W. 825; State v. Virgo, 14
N. D. 295, 103 N. W. 610; People v.
Strickler, 25 Cal. App. 60, 142 Pac. 1123.
The indictment is -insufftcient to
charge an offense under the act as prop-
erlv construed.
Evans v. United States, 153 U. S. 584,
587, 38 L. ed. 830, 831, 14 Sup. Ct.
Rep. 934, 9 Am. Crim. Rep. 668;
Moore v. United States, 160 U. S. 274,
40 L. ed. 425, 16 Sup. Ct. Rep. 294;
United States v. Carll, 105 U. S. 611,
613, 26 L. ed. 1135, 1136, 4 Am. Crim.
Rep. 246; United States v. Simmons,
96 U. S. 369, 24 L. ed. 819; United
States V. Hess, 124 U. S. 483, 31 L. ed.
516, 8 Sup. Ct. Rep. 571.
Was the Act of November 21, 1918,
capable of being constitutionally en-
forced on the 4th dav of June, 1919?
Ex parte Milligan, 4 Wall. 2, 18 L. ed.
281.
A statute must be construed, if fairly
possible, so as to avoid not only the
conclusion that it is unconstitutional,
but also grave doubt upon that score.
United Slates v. Jin Fuey Moy. 241
U. S. 394, 401, 60 L. ed. 1061, 1064, 36
Sup. Ct. Rep. 658; United States ex rel.
Atty. Gen. v. Delaware & H. Co. 213 U.
S. 366, 53 L. ed. 836, 29 Sup. Ct. Rep.
527.
Solicitor General King and Assistant
Attorney General Frierson argued the
cause and filed a brief for the United
States in No. 474.
Mr. EUhu Boot argued the cause, and,
with Mr. William D. Guthrie, filed a
brief for the American Brewing Com-
panv:
It any essential element of the alleged
crime is omitted in an indictment, such
omission cannot be supplied by intend-
ment or implication.
Pettibone v. United States, 148. U. S.
15 1 V. 6.
1919.
UNITED STATES v. STANDARD BREWERY.
i»
1^7, 202, 37 L. ed. 419, 422, 13 Sup. Ct.
Rep. 542; United States v. Hess, 124 U.
S;483, 486, 31 L. ed. 516, 517, 8 Sup. Ct.
Rep. 571 ; Todd v. United States, 158 U.
S. 278, 282, 39 L. ed. 982, 983, 15 Sup.
Ct. Rep. 889.
The averments that the defendant
^did unlawfully use certain grains,"
ete., and that that was ''contrars;^ to the
form of the statute in such case made
and provided/' etc., are mere conclu-
sions of the pleader, and not facts, and,
therefore, are of no avail.
United States v. Cruikshank, 92 U. S.
542, 558, 23 L. ed. 588, 593; Re Greene,
52 Fed. Ill; United States v. Carney,
228 Fed. 165.
Since it is well-established law that
where facts alleged are susceptible of
two interpretations, one of which points
to guilt and the other to innocence, a
court of justice has no alternative, it
must pronounce in favor of innocence,
it follows that it must be presumed that
the half per cent beer referred to in the
indictment was nonintoxicating. Cer-
tainly the courts cimnot judicially know
what particular percentage of alcohol
will render a given kind of beer intox-
icating. Indeed, it would be far more
reasonable to ask the court to take judi-
cial cognizance of the indisputable fact
that half of 1 per cent beer is not, as
a matter of fact, intoxicating.
The Bothnea, 2 Wheat. 169, 177, 4
L. ed. 211, 213; Coffin v. United States,
156 U. S. 432, 39 L. ed. 481, 15 Sup. Ct.
Rep. 394.
Effect must, if possible, be acfcorded
to every word in the statute. Such a
word as "other" cannot be treated as
superfluous, void, or insignificant. Its
use must be assumed, if possible, to in-
dicate a definite purpose on the part of
Congress.
Washington Market Co. v. Hoffman,
101 U. S. 112, 115, 25 L. ed. 782, 783;
United States v. Lexington Mill & El-
evator Co. 232 U. S. 399, 410, 58 L. ed.
658, 662, L.RA.1915B, 774, 34 Sup. Ct.
Rep. 337.
The mere fact that the words, "beer"
and "wine" do not serve any separate
purpose that would not be comprehend-
ed within the phrase "intoxicating malt
or vinous liquor" does not warrant the
disregard of the word "other."
United States v. Bassett, 2 Storv, 404,
Fed. Cas. No. 14,539; United States v.
Fisher, 2 Cranch, 358, 387, 2 L. ed. 304,
313.
Nothing can be more mischievous
than the attempt to wrest words from
CI L. ed.
their proper and legal meaning, only be-
cause they are superfluous.
Hough V. Windus, L. R. 12 Q. B. Div.
229, 53 L. J. Q. B. N. S. 165, 50 L. T.
N. S. 312, 32 Week. Rep. 452, 1 Morrell,
1.
The construction urged by the defend-
ant in error is supported by the deci-
sions of this court and numerous other
courts.
United States v. Chase, 135 U. S. 255,
258, 259, 34 L. ed. 117-119, 10 Sup.
Ct. Rep. 756, 8 Am. Crim. Rep. 649;
United States v. United Verde Copper
Co. 196 U. S. 207, 213, 49 L. ed. 449,
451, 25 Sup. Ct. Rep. 222; United States
V. Loftis, 12 Fed. 673; United States v.
Clark, 43 Fed. 674; United States v.
Wilson, 58 Fed. 77a; Potts v. United
States, 51 C. C. A. 678, 114 Fed. 54;
Pacific Rolling-Mill Co. v. Hamilton, 61
Fed. 477; Gridley v. Northwestern Mut.
L. Ins. Co. 14 Blatchf. 107, Fed. Cas.
No. 5,808, affirmed in 100 U. S. 614, 25
L. ed. 746; Sinclair v. Phcenix Mut. L.
Ins. Co. Fed. Cas. No. 12,896; People v.
Strickler, 25 Cal. App. 66, 142 Pac.
1123; State v. Virgo, 14 N. D. 295, 103
N. W. 610; Atty. Gen. v. Ayer, 148
Mass. 586, 20 N. E. 451; Ex parte Gray,
— Tex. Crim. Rep. — , 83 S. W. 829;
Alexander v. Greenup, 1 Munf. 144, 4
Am. Dec. 641; St. Paul v. Traeger, 25
Minn. 253, 33 Am. Rep. 462; Minnesota
Mut. L. Ins. Co. V. Link, 230 HI. 278, 82
N. E. 637; Bowling Green v. McMullen,
134 Ky. 742, 26 L.R.A.(N.S.) 895, 122
S. W. 825.
As a matter of ordinary construction,
where several words are followed by a
general expression, as here, which is as
much applicable to the first and other
words as to the last, that expression is
not limited to the last, but applies to all.
Great Western R. Co. v. Swindon &
C. R. Co. L. R. 9 App. Cas. 808, 53
L. J. Ch. N. S. 1075, 32 Week. Rep. 957.
The construction urged herein is not
only according to the natural import of
the language used and the subject-mat-
ter being dealt with by ^Congress, but it
avoids the unjust discrimination be-
tween nonintoxicating beverages which
must otherwise ensue.
Hawaii v. Mankichi, 190 U. S. 197,
214, 47 L. ed. 1016, 1021, 23 Sup. Ct.
Rep. 787, 12 Am. Crim. Rep. 4^5.
If, for the practical enforcement of
the law, it was necessary to bar all sub-
terfuges, it does not, as did the statute
involved in Purity Extract & Tonic Co.
V. Lynch, 226 U. S. 192, 204, 57 L. ed.
184, 188, 33 Sup. Ct. Rep. 44, prohibit
2S1
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
all malt liquors^ but only sncb of them
as are intoxicating.
Recourse to legislation in pari materia
as an aid to construction is, of course,
permissible.
March ie Tiger v. Western Invest. Co.
221 U. S. 286, 306, 309, 56 L. ed. 738,
745, 747, 31 Sup. Ct. Rep. 578; Law-
rence V. Allen, 7 How. 785, 793, 12
L. ed. 914, 917; Smith v. People, 47 N.
Y. 339 ; State v. Gerhard t, 145 Ind. 439,
33 L.R.A. 313, 44 N. E. 469; Rex v. Pal-
mer, 1 Leach, C. L. 355; Rohrer v. Hast-
ings Brewing Co. 83 Neb. 116, 119 N. W.
27, 17 Ann. Cas. 998.
Legislative history may properly be
referred to in order to shed light upon
the intent of Congress.
Blake v. National City Banks, 23
Wall. 307, 23 L. ed. 119:
A congressional report upon proposed
legislation may be referred to by the
courts as an aid in determining the
proper construction of a statute.
Caminetti v. United States, 242 U. S.
470, 490, 61 L. ed. 442, 455, L.R.A.1917F,
502, 37 Sup. Ct. Rep. 192, Ann. Cas.
1917B, 1168; United States v. St. Paul,
M. & M. R. Co. 247 U. S. 310, 62 L. ed.
1130, 38 Sup, Ct. Rep. 525.
When a previous statute is amended
by an alteration of the terms used
therein, it is to be presumed that it was
the intent to alter the meaning of the
previous act in that particular.
United States v. Bashaw, 1 C. C. A.
653, 4 U. S. App. 360, 50 Fed. 753;
United States v. Southern P. Co. 230
Fed. 270.
Administrative fiat cannot convert
into crimes conduct which Congress had
never denounced as illegal.
Waite V. Macy, 246 U. S. 606, 608, 62
L. ed. 892, 894, 38 Sup. Ct. Rep. 395,
Ann. Cas. 1918E, 1, affirming 140 C. C.
A. 45, 224 Fed. 362; United States v.
Morehead, 243 U. S. 607, 614, 61 L. ed.
926, 930, 37 Sup. Ct. Rep. 458; United
States V. George, 228 U. S. 14, 22, 57
L. ed. 712, 715, 33 Sup. Ct. Rep. 412;
United States v. United Verde Copper
Co. 196 U. S. 207, 215, 49 L. ed. 449, 452,
25 Sup. Ct. Rep. 222; United States v.
San Jacinto Tin Co. 125 U. S. 273, 307,
31 L. ed. 747, 759, 8 Sup. Ct. Rep. 850;
Morrill v. Jones, 106 U. S. 466, 467, 27
U ed. 267, 268, 1 Sup. Ct. Rep. 423;
United States v. Williamson, 207 U. S.
425, 461, 52 L. ed. 278, 296, 28 Sup. Ct.
Rep. 163; United States v. 200 Barrels
of Whiskey, 95 U. S. 571, 576, 24 U ed.
491, 492; Muir v. Louisville & N. R. Co.
247 Fed. 895; Bruce v. United States,
120 C. C. A. 370, 202 Fed. 103; United
2.32
States v. 11,150 Pounds of Butter, 115
C. C. A. 463, 195 Fed. 663, 188 Fed. 160 ;
Leecy v. United States, 111 C. C. 'A.
254, 190 Fed. 292; St. Louis Merchants'
Bridge Terminal R. Co. v. United States,
110 C. C. A. 63, 188 Fed. 195.
Nothing could be more far-fetched
than the reasoning which assumes that
because Congress may have used one
definition for the purposes of certain
particular acts relating to the taxation
of fermented, not intoxicating, liquors,
which acts are not referred to in or
made a part of the Act of November 21,
1918, it must be presumed to intend the
same test as to the operation of other
laws not relating to the subject of tax-
ation.
Macbeth & Co. v. Chislett [1910] A.
C. 223, 79 L. J. K. B. N. S. 376, 102
L. T. N. S. 82, 26 Times L. R. 268, 54
Sol. Jo. 268, 47 Scot. L. R. 623, 17 Ann.
Cas. 102.
The Act of Congress of November 21,
1918, should be strictly construed.
United States v. Salen, 235 U. S.
237, 59 L. ed. 210, 35 Sup. Ct. Rep. 51 ;
Re Johnson, 224 Fed. 183; Sarlls v.
United States, 152 U. S. 570, 574. 38
L. ed. 556, 557, 14 Sup. Ct. Rep. 720;
United States v. Reese, 92 U. S. 214,
219, 23 L. ed. 563, 565; United States
Condensed Milk Co. v. Smith, 116 App.
Div. 19, 101 N. Y. Supp. 129; affirmed
in 191 N. Y. 536, 84 N. E. 1122; 36 Cvc.
1179, 1180; Dickenson v. Fletcher, L. R.
9 C. P. 7, 43 L. J. Mag. Cas. N. S. 25,
29 L. T. N. S. 540; Re Cuno, L. R. 43
Ch. Div. 17.
The construction urged by the de-
fendant in error herein has been sus-
tained by the circuit court of appeals
for the second circliit and ten district
courts.
Jacob Hoffmann Brewing Co. v. Mo-
Elligott, 259 Fed. 330, affirmed in — C.
C. A. ~, 259 Fed. 529; United States
V. Standard Brewery, 260 Fed. 486;
United States v. Petts, 260 Fed. 663;
United States v. James Hanley Brewing
Co. decided July 23, 1919; United
States V. Ranier Brewing Co. 259 Fed.
360; United States v. Baumgartner, 25fl
Fed. 722; United States v. Mohr, decid-
ed Aug. 22, 1919; United States v.
Porto Rico Brewing Co. decided Aujr.
23, 1919; United States v. Valentine
Blatz Brewing Co. decided Oct. 14,
1919.
Criminal statutes, whose prohibitions
are, of course, directed to the public
generally, and intended to guide and de-
ter the plain man, speak the language
of the common people. The ordinary
251 V. S.
1019.
UNITED STATES v. STANDARD BREWERY.
214-216
meaning must, therefore, be given the
common terms employed in the act.
Sarlls V. United States, 152 U. S. 570,
574, 38 L. ed. 656, 557, 14 Sup. Ct. Rep.
720.
Intoxicating liquors are those liquors
which are intended for use as, or ca-
pable of being used as, a beverage, and
which contain alcohol in such propor-
tion or per cent that when consumed in
the quantity which may practically be
drunk by an ordinary man, or in any
quantity which the human stomach will
ordinarily hold, will produce a condi-
tion commonly known as intoxication
or drunkenness. Drunkenness or in-
toxication is a materially abnormal
mental or physical condition, manifest-
ing itself in the loss of the ordinary
control of the mental faculties or bod-
ily functions to an appreciable or mate-
rial extent.
Intoxiea ting-Liquor Cases, 25 Kan.
768, 37 Am. Rep. 284; Board of Excise
V. Taylor, 21 N. Y. 173; State v. Piche,
98 Me. 361, 56 Atl. 1052; Com. v. Bios,
116 Ma«s. 58; State v. Mav, 52 Kan. 63,
34 Pac. 407; Estes v. State, 13 Okla.
Crim. Rep. 604, 4 A.L.R. 1135,
166 Pac. 77; Marks v. State, 159
Ala, 81, 133 Am. St. Rep. 20, 48
So. 864; State v. Virgo, 14 N. D.
293, 103 N. W. 610; Black's Law Diet.
2d ed. "Drunk;" Black, Intoxicating
Liquors, § 2; 23 Cyc. 57; Decker v. State,
39 Tex. Crim. Rep. 20, 44 S. W. 845;
Mason v. State, 1 Ga. App. 534, 58 S. E.
139; Taylor v. State, — Tex. Grim. Rep.
— , 49 S. W. 589; United States v.
Baumgartner, 259 Fed. 725; People v.
Zeiger, 6 Park. Crim. Rep. 355; Blatz
V. Rohrbach, 116 N. Y. 455, 6 L.R.A.
669, 22 N. E. 1049; James v. State, 49
Tex. Crim. Rep. 334, 91 S. W. 227;
Heintz v. Le Page, 100 Me. 545, 62 Atl.
605; Joyce, Intoxicating Liquors, § 3;
1 Woollen & T. Intoxicating Liquors,* §
6. p. 13; Sikes v. State, 116 Ga. 182, 42
. S. E. 346; Lafler v. Fisher, 121 Mich.
60, 79 N.'W. 934; St. Louis, I. M. & S.
R. Co. V. Waters, 105 Ark. 619, 152 S.
W. 137; Gard v. State, 15 Ohio C. C.
N. S. 255; O'Connell v. State, 5 Ga.
App. 234, 62 S. E. 1007; O'Donnell v.
Com. 108 Va. 882, 62 S. E. 373; State v.
Pierce, 65 Iowa, 85, 21 N. W. 195;
Wadsworth v. Dunnam, 98 Ala. 610, 13
So. 597; Columbia L. Ins. Co. v. Tousey,
152 Kv. 447, 153 S. W. 767; State v.
Xethken, 60 W. Va. 673, 55 S. E. 742.
Mr. Justice Day delivered the opinion
of the court:
These causes are here under the Crimi-
• 4 li. ed.
nal Appeals Act, March 2, 1907 (34 Stat,
at L. 1246, chap. 2564, Comp. Stat.
§ 1704, 6 Fed. Stat. Anno. 2d ed. p. 149),
and require the construction of the so-
called "War-time Prohibition [215]
Act," of November 21, 1918 (chap. 212,
40 Stat, at L 1045-1047, Comp. Stat. §
3115 ll/12f).
In No. 458 the Standard Brewing Com-
pany was indicted for unlawfully using
certain grains, cereals, fruit, and other
food products on the 4th of June, 1919,
in the manufacture and production of
beer for beverage purposes which, it is
charged, contained as much as i of 1
per cent of alcohol by both weight and
volume. In No. 474 the American Brew-
ing Co^npany was indicted for the like
use on the 26th day of June, 1919, of cer-
tain grains, cereals, and food products
in the manufacture and production of
beer containing a like percentage of
alcohol.
In the indictment in Nt). 474 it was
charged that at the time of- the alleged
offense the termination of demobiliza-
tion had not been determined and pro-
claimed by the President. •
In each case a demurrer was sustained
by the district court.
Before considering the construction of
that portion of the act involved in these
cases it will be helpful to give a short
history of the preceding legislation that
led up to it. The Food Control Act of
August 10, 1917 (40 Stat, at L. chap.-
53, pp. 276, 282, Comp. Stat. § 3115 Je,
Fed. Stat. Anno. Supp. 1918, p. 181), au-
thorized the President to prescribe and
give public notice of limitations, regula-
tions, or prohibitions respecting the use of
foods, fruits, food materials, or feed, in
the production of malt or vinous liquors
for beverage purposes, .including regula-
tions for the reduction of the alcoholic
content of any such malt or vinous
liquor, in order to assure an adequate
and continuous supply of food, and pro-
mote the national security and defense.
Whenever notice should be given and re-
main unrevoked no person, after a rea-
sonable time prescribed in such notice,
could use any food, fruits, food ma-
terials, or feeds in the production ot
malt or vinous liquors, or import any
such liquors except under license and in
compliance with lawfully prescribed
rules and regulations. Under the
[216] authority thus conferred, the
President issued various proclamations.
On December 8, 1917 [40 Stat, at L.
84], he issued one forbidding the pro-
duction of all malt liquor, except ale
and porter, containing more than 2.75
233
21ft-218
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
per cent of alcohol by weight. On Sep-
tember 16, 1918 [40 Stat, at L. 204], he
issued a second proclamation, prohibit-
ing after December 1, 1918, the produc-
tion of malt liquors, including near
beer, for beverage purposes, whether or
not such malt liquors contained alco-
hol. On January 30, 1919 [40 Stat, at
L. 286], he issued a third proclama-
tion which modified the others to the
extent of permitting the use of grain
in the manufacture of nonintoxicat-
ing beverages, it being recited therein
that the prohibition of the use of grain
in the manufacture of such beverages
had been found no longer essential in
order to assure an adequate and continu-
ous supply of food. And on March 4,
1919 [40 Stat, at L. 293], he issued a
fourth proclamation amending his proc-
lamation of September 16, 1918, so as to
prohibit the production only of intoxi-
cating malt liquors for beverage pur-
poses. •
It thus appears that the President,
acting under the Act of August 10, 1917,
has reduced the prohibition of the use
of food materials so that now it is
limited to the manufacture of such
liquors as are in fact intoxicating.
In the light of all this action we come
to consider the proper construction of
so much of the Act of November 21,
1918, as is here involved, which pro-
vides :
^'That after June thirtieth, nineteen
hundred and nineteen, until iJie conclu-
sion of the present war and thereafter
until the termination of demobilization,
the date o{ which shall be determined
and proclaimed by the President of the
United States, for the purpose of con-
serving the man power of the nation,
and to increase efficiency in the produc-
tion of arms, munitions, ships, food, and
clothing for the Army and Navy, it shall
be unlawful to sell for [217] beverage
purposes any distilled spirits, and dur-
ing said time no distilled spirits held in
bond shall be removed therefrom for
beverage purposes except for export.
After May first, nineteen hundred and
nineteen, until the conclusion of the
present war and thereafter until the
termination of demobilization, the date
of which shall be determined and pro-
claimed by the President of the United
States, no grains, cereals, fruit, or other
food product shall be used in the man-
ufacture or production of beer, wine,
or other int<}xicating malt or vinous liq-
uor for beverage purposes. After June
thirtieth, nineteen hundred and nine-
teen, until the conclusion of the present
234
war and thereafter until the termina-
tion of demobilization, the date of
which shall be determined and pro-
claimed by the President of the United
States, no beer, wine, or other intoxicat-
ing malt or vinous liquor shall be sold
for beverage purposes except for ex-
port."
Nothing is better settled than that, in
the construction of a law, its meaning
must first be sought in the language
employed. If that be plain, it is the
duty of the courts to enforce the law as
written, provided it be within the con-
stitutional authority of the legislative
body which passed it. Lake County v.
Rollins, 130 U. S. 662, 670, 671, 32 ll ed.
1060, 1063, 1064, 9 Sup. Ct. Rep. 651;
Bate Refrigerating Co. v. Sulzberger, 157
U. S. 1, 33, 39 L. ed. 601, 610, 15 Sup.
Ct. Rep. 508; United States v. First Nat.
Bank, 234 U. S. 245, 258, 58 L. ed. 1298,
1303, 34 Sup. Ct. Rep. 846 ; Caminetti v.
United States, 242 U. S. 470, 485, 61 L.
ed. 442, 452, L.R.A.1917F, 502, 37 Sup.
Ct. Rep. 192, Ann. Cas. 1917B, 1168.
Looking to the act, we find these are its
declared purposes: (1) To conserve the
man power of the nation; (2) to increase
efficiency in the production of arms, mu-
nitions, ships, and food and clothing for
the Army and Navy. To these ends it
is made illegal to sell distilled spirits
for beverage purposes or to remove the
same from bond for such purposes except
for export. And after May 1, 1919,
until the conclusion of the war, and
until demobilization is proclaimed by
the President, no grains, cereals, fruit,
or other food products are permitted to
be used in the manufacture or produc-
tion of [218] beer, wine, or other in-
toxicating malt or vinous liquops for
beverage purposes.
The prohibitions extend to the use of
food products for making "beer, wine, or
other intoxicating malt or vinous liq-
uors for beverage purposes." These pro-
visions are of plain import and are aimed
only at intoxicating beverages.* It is
elementary that all of the words used in
a legislative act are to be given force
and meaning (Washington Market Co.
V. Hoffman, 101 U. S. 112, 115, 25 L. ed.
782, 783) ; and of course the qualifying
words "other intoxicating" in this act
cannot be rejected. It is not to be as-
sumed that Congress had no purpose in
inserting them, or that it did so without
intending that they should be given due
force and effect. The government insists
that the intention was to include beer
and wine, whether intoxicating or not.
If so, the use of this phraseology was
251 U.S.
1919.
UNITED STATES v. STANDARD BRENYERY.
218-220
quite superfluous, and it would have
been enough to have written the act
without the qualifying words.
This court had occasion to deal with
a question very similar in character in
the ease of the United States v. United
Verde Copper Co. 196 U. S. 207, 49 L.
ed. 449, 25 Sup. Ct. Rep. 222, where an
act permitted the use of timber on the
public lands for building, agricultural,
mining, and other domestic purposes,
and held that we could not disregard the
use of the word "other," notwithstand-
ing the contention that it should be
eliminated from the statute in order to
ascertain the true meaning. So here, we
think it clear that the framers of the
statnte intentionally used the phrase
'^other intoxicating" as relating to and
defining the immediately preceding desig-
nation of beer and wine. "As a matter
of ordinary construction, where several
words are followed by a general expres-
sion as here, whicif is as much applicable
to the first and other words as to the
last, that expression is not limited to
the last, but applies to all." Lord Bram-
well in Great Western R. Co. v. Swindon
& C. Extension R. Co. L. R. 9 App. Cas.
787, 808.
[219] The declared purpose of Con-
gress was to conserve the nation's man
power and increase efficiency in produc-
ing war essentials; and it accordingly
undertook to prohibit the manufacture
of intoxicating liquors whose use might
interfere with the consummation of
that purpose. Other provisions of the
act lend support to this view. The sale
and withdrawal from bond of distilled
spirits (always intoxicating) were de-
clared unlawful after June 30th, 1919,
— their manufacture had already been
prohibited. The sale of beer, wine, and
other intoxicating malt or vinous liq-
uors was prohibited after the same
date, and the importation of all such
liquors and also of distilled liquors was
made immediately unlawful. The Pres-
ident was empowered at once to estab-
lish zones about coal mines, manufac-
tories, shipbuilding plants, etc., etc.,
and "to prohibit the sale, manufacture,
or distribution of intoxicating liquors
in such zones."
The fact that the Treasury Depart-
ment may have declared taxable imder
many revenue acts all beer containing i
of 1 per centum of alcohol is not impor-
tant. Such rulings did not turn upon the
intoxicating character of the liquid, but
upon classification for taxation con-
trolled by other considerations. A liquid
mav be designated as beer and subjected
64 *Ii. ed.
to taxation although clearly nonintoxi-
cating. "The question whether a fer-
mented malt liquor is intoxicating or
nonintoxicating is immaterial under the
Internal Revenue Laws, although it may
be a very material question under the
prohibitory laws of a s^ate or under
local ordinances." T. D. 804.
As to the insistence that the Internal
Revenue Department has determined
that a beverage containing i of 1 per
cent of alcohol should be regarded as
intoxicating within the intendment of
the act before us, little need be said.
Nothing in the act remits the determi-
nation of that question to the decision
of the revenue officers of the govern-
ment. While entitled to respect, [220]
as such decisions are, they cannot en-
large the meaning of a statute enacted
by Congress. Administrative rulings
cannot add to the terms of an act of
Congress and make conduct criminal
which such laws leave untouched.
Waite V. Macy, 246 U. S. 606, 62 L. ed.
892, 38 Sup. Ct. Rep. 395; United States
V. George, 228 U. S. 14, 22, 57 L. ed.
712, 715, 33 Sup. Ct. Rep. 412 ; United
States V. United Verde Copper 'Co. 196
U. S. 207, 215, 49 L. ed. 449, 452, 25
Sup. Ct. Rep. 222.
Furthermore, we must remember, in
considering an act of Congress, that a
construction which might render it un-
constitutional is to be avoided. We said
in United States v. Jin Fuey Moy, 241
U. S. 394, 401, 60 L.- ed. 1061, 1064, 36
Sup. Ct. Rep. 658: "A statute must be
construed if fairly possible, so as to
avoid not only the conclusion that it is
unconstitutional, but also grave doubt
upon that score." See also United
States ex rel. Atty. Gen. v. Delaware &
H. Co. 213 U. S. 366, 53 L. ed. 836, 29
Sup. Ct. Rep. 527. We held in Hamilton
v. Kentucky Distilleries & Warehouse Co.
decided December 15, 1919 [ 251 U. S.
146, ante, 194, 40 Sup. Ct. Rep. 106],
that the war power of Congress, as ap-
plied to the situation outlined in the
opinion in that ease^ enabled it to pro-
hibit the sale of intoxicating liquor for
beverage purposes. But the question
was neither made nor decided as to
whether Congress could prohibit even
in time of war the manufacture and
sale of nonintoxicating beverages.
An indictment must charge each and
every element of an offense. Evans v.
United States, 153 U. S. 584, 587, 38 L.
ed. 830, 831, 14 Sup. Ct. Rep. 934, 9
Am. Crim. Rep. 668. We cannot say, as
a matter of law, that a beverage contain-
ing not more than J of 1 per cent of
235
1220-223
SLPREME COURT OF THE UNJTEU STATES.
Oct. Tekm,
alcohol is intoxieating, and as neither
indictment so charges, it follows that
the courts below in each of the cases
correctly construed the act of Congress,
and the judgments are affirmed.
[221] UNITED STATES, Petitioner,
V.
WILLIAM B. POLAND and Frederick
William Low.
(See S. C. Reporter's ed. 221-228.)
Pnblic lands — soldiers* additional
liomestead riglitn — single body.
1. The prohibition in the Act of March
3, 1903, extending the Homestead Laws to
Alaska, that not more than 160 acres of
land shall be entered in a single body by
means of soldiers' additional homestead
rights, may not be evaded by a mere resort
to two entries by the same person for two
tracts separately surveyed, but contiguous
to the extent of having a common boundary
^ mile in length, each containing 160 acres
or less.
[For other cases, see Public Lands, L c, 9,
in Digest Sup. Ct. 190S.1
Evidence — burden of proof — suit to
cancel patent — 1>ona fide purchase.
2. The defense that defendant in a suit
by the Federal government to cancel a pat-
ent for publi'c lands as issued in violation
of law is a bona fide purchaser is an affirma-
tive one, which he must set up and estab-
lish.
[For other cases, see Evidence, II. c, in Digest
Sup. Ct. 1908.1
[No. 29.]
Argued November 10. 1919. Decided Janu-
ary 5, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Ninth Circuit to review a decree
which affirmed a decree of the District
Court of the United States for the Third
Division of the District of Alaska, sus-
taining demurrers to and dismissing the
bill in a suit by the United States to
cancel a patent for public lands. Re-
versed.
See same case below, 145 C. C. A. 630,
231 Fed. 810.
The facts are stated in the opinion.
Assistant Attorney General Nebeker
argued the cause, and, with Solicitor
General King, filed a brief for peti#
tioner.
Mr. Ira Bronson argued the cause,
and, with Mr. H. B. Jones, filed a brief
for respondents.
*
Mr. George H. Patrick also argued
the cause for respondents.
2:tG
Mr. Justice Van Decanter delivered
the opinion of the court:
This is a suit to cancel a patent is-
sued to William B. Poland for 160 acres
of land in Alaska, the gravamen of the
complaint being that by this and an-
other patent, both based upon soldiers'
additional homestead rights, Poland ac-
quired a single body of land for larger
acreage than was permitted by the stat-
ute under which the patents were sought
and issued. The defendants, who were
the patentee and another claiming under
him, separately demurred to the com-
plaint, a;id the court sustained the de-
murrers and dismissed the suit. That
decision was affirmed by the circuit court
of appeals, one judge dissenting (145
C. C. A. 630, 231 Fed. 810), and the
case is here on writ of certiorari.
Of course, it rested with Congress to
determine whether, when, and with what
restrictions, the General Land Laws
should be extended to Alaska. For many
years there was no affirmative action up-
on the subject. The first steps consisted
of limited extensions of the laws re-
lating to mining claims (Act of May 17,
1884) chap. 53, 23 Stat, at L. 24, ^§ 8,
Comp. Stat. § 5094, 1 Fed. Stat. Anno.
2d ed. p. 300), and townsites (Act of
March 3, 1891, chap. 561, 26 [23S]
Stat, at L. 1095, § 11, Comp. Stat. §
5079, 1 Fed. Stat. Anno. 2d ed. p. 316),
but with these we are not now con-
cerned. The Homestead Laws were the
next to receive attention. By the Act
of May 14, 1898, chap. 299, 30 Stat, at
L. 409, Comp. Stat. § 5083, 1 Fed. Stat
Anno. 2d ed. p. 330, they were extended
to that district with the restrictions (a)
that "no homestead" should exceed 80
acres in extent, and (b) that "no entry'*
should extend more than 80 rods along
the shore of any navigable water, and
along such shore a space of at least 80'
rods should be reserved from entry be-
tween all such claims. And by the
amendatory Act of March 3, 1903, chap.
1002, 32 Stat, at L. 1028, Comp. Stat. §
5046, 1 Fed. Stat. Anno. 2d ed. p.
326, the extension of the Homestead
Laws was repeated and confirmed, but
with the qualifications (a) that an ac-
tual settler intending to comply with
the requirements in respect of continued
residence, cultivation, etc., should be en-
titled to enter 320 acres or a less quan-
tity, (b) that "no more than 160 acres
shall be entered in any single body" by
means of soldiers' additional homestead
rights, and (c) that "no entry" should
extend more than 160 rods along the
shore of anv navigable water, and along
251 U. S.
1910.
IMTKD STATES v. POU4X1).
223-22;>
such shore a space of at least 80 rods
should be reserved from entry between
all such claims. Further restrictions
were imposed, but there is no present
need for noticing them.
The controversy here is over the mean-
ing and purpose of the provision that
no more than 160 acres shall be entered
in any single body by means of soldiers'
additional homestead rights.
The material facts to be gathered from
the complaint are these: Poland, who
was the assignee of certain soldiers' ad-
ditional homestead rights entitling their
owner to enter and acquire in the aggre-
gate 319.75 acres, wished to use them in
entering and acquiring certain land in
Alaska. The regular public surveys had
not been extended to that locality, so
he caused a special survey of the land
to be made at his expense, as was per-
mitted by applicable [224] regulations.
32 Land Dec. 424; 28 Land Dec. 149.
By that survey the land, which was in a
compact or single body, was divided into
two tracts, — one of 169.75 acres, desig-
nated as survey No. 241, and the other
of 160 acres, designated as survey No.
242. As surveyed, the north boundary
of one tract was the south boundary of
the o.,her, and this was shown in the
surveyor's return. On April 26, 1906,
after the survey, he presented at the
local land office two applications where-
by he sought to make separate entries
of the two tracts with his soldiers' ad-
ditional rights, — some of the rights
being used on one tract and the others
on the other tract. The applications
were approved and passed to entry and
patent, — the patent for the 160 acres
being issued a considerable period after
the other.
In these circumstances the complaint
charges that the 319.75 acres, although
surveyed in the form of two tracts, were
but a single body of land in the sense
of the provision in question; that the
land officers, in passing bot^ applications
to entry and patent, acted upon a mis-
conception of the law and of their au-
thority, and that in consequence the
later patent, whereby Poland's acquisi-
tion was made to exceed 160 acres in a
single body, was issued in violation of
law, and should be canceled.
The complaint also contains an allega-
tion that that patent was fraudulently
procured in that, among the proofs pre-
sented to the land officers, was an affi-
davit falsely representing, in effect, that
the two tracts were more than 80 rods
apart, when in truth they were adjoin-
ing tracts. But this allegation must be
64 L. ed.
put out of view, first, ^because the words
of the affidavit as set forth in the com-
plaint do not sustain the pleader's con-
clusion as to what was represented, and,
second, because the complaint makes it
certain that the application and other
entry papers clearly disclosed that the
two tracts were contiguous to the extent
of having a common boundary J mile in
length.
[225] In approaching the considera-
tion of the provision whose meaning and
purpose are in question it is welj to re-
call what soldiers' additional homestead
rights are and what use could be made
of them outside Alaska when the provi-
sion was adopted. They are rights to
enter and acquire unappropriated non-
mineral public land without settlement,
residence, improvement, or cultivation,
and without payment of any purchase
price. They are not personal to the
original beneficiaries, but are transfer-
able at will, and the number that may
be assigned to the same person 'is not
limited. A single right is always for
less, and generally much less, than 160
acres, but rights aggregating many times
that number of acfes may be and often
are held by a single assignee. When the
provision was adopted there were almost
no restrictions upon the use of such
rights outside Alaska. Indeed, the only
restriction of any moment was one, uni-
formly respected, preventing the inclu-
sion of more than 160 acres in a single
entry. But the number of such entries
that might be made by the same person
was not restricted, nor was there any
limitation upon the amount of land in
a single body that might be entered in
that way. Thus, an assignee having
rights aggregating 640 acres could use
them in entering that amount of land in
a compact body 1 mile square, if only
he did so through four entries of 160
acres each. And, if he had rights the ag-
gregate of which was sufficient, he could
in a like way enter a body of land 3 miles
square or even an entire township. See
Rev. Stat. §§ 2289, 2304, 2306, Comp.
Stat. §§ 4530, 4592, 4594, 8 Fed. Stat.
Anno. 2d ed. pp. 543, 586, 588; Webster
v. Luther, 163 U. S. 331, 41 L. ed. 179,
16 Sup. Ct. Rep. 963; Diamond Coal &
Coke Co. V. United States, 233 U. S.
236, 243, 58 L. ed. 936, 941, 34 Sup.
Ct. Rep. 507; Robinson v. Lundrigan,
227 U. S. 173, 178, 179, 57 L. ed. 468, 470,
471, 33 Sup. Ct. Rep. 255; 3 Land Dec.
472; Re Boyce, 29 Land Dec. 699; Re
O'Keefe, 29 Land Dec. 643; 30 Land
Dec. 285 ; 31 Land Dec. 441 ; Kiehlbauch
V. Simero, 32 Land Dec. 418; Re Olsen,
237
225-228
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
33 Land Deo. 225t 45 Land Dec. 236, 3d
par.; Oeneral Circular of 1904, pp. 11,
26-28.
With this understanding of the cir-
cumstances in which [226] the provi-
sion was incorporated into the Act of
1903, extending the Homestead Laws to
Alaska, we thmk the meaning and pur-
pose of the provision are manifest. It
is in form a proviso and says '^no more
than 160 acres shall be entered in any
single body'' by means of soldiers' ad-i
ditional homestead rights. A purpose to
prevent the use of these rights in en-
tering a large acreage in a single body
hardly could be more plainly expressed.
There is nothing in the provision indi-
cating that it is concerned merely with
what may be taken by a single entry;
and to construe it in that way would
make it practically useless, for a large
acreage in a single body still could be
taken by merely resorting to two or
more entries. Besides, the amount of
land 'that could be taken by a single
entry had long been limited to 160 acres,
and of course to say that no greater
amount should be taken in a single body
by a single entry would add nothing to
that limitation. But the provision does
not speak of a single entry, but only of
the amount that may be ''entered in any
single body;" and if it is to have any
real effect it must be construed accord-
ing to the natural import of its words;
that is to say, as limiting the amount of
land in a compact or single body that
may be entered by means of soldiers' ad-
ditional homestead rights, whether the
entering be by one or several entries.
We conclude, therefore, that the provi-
sion, while leaving one who holds sev-
eral rights free to exercise all of them
and to make as many entries as his rights
will sustain, prohibits him from using
them to enter and acquire more than 160
acres in a compact or single body.
The court in Alaska regarded the pro-
vision as sufficiently like that relating to
the area of placer mining claims (Rev.
Stat. §§ 2330, 2331, Comp. Stat. §§ 4629,
4630, 6 Fed. Stat. Anno. 2d ed. pp. 677,
579) to require that it be sinularly con-
strued. But we think there is a marked
difference between the two provisions.
That in the placer mining law says "no
location" shall exceed a prescribed
[227] ar^a, and it means, as the stat-
ute otherwise shows^ that no single
location shall include more.
The circuit court of appeals was of I
opinion that ''what the statute was seek- •
ing to protect was the shores of the!
navijfable waters of Alaska, and not to
288
prohibit the entry of a tract of more
than 160 acres." In this the court ap-
parently confused the present provision,
which operates in the same way in all
parts of Alaska, with another and
wholly distinct provision, which relates
only to entries along the shore. Their
independence and the subjects to which
they relate are best shown by quoting
both in the order in which they appear
in the statute, which we do:
Ajid provided further "that no more
than one hundred and sixty acres shall
be entered in any single body by . . .
soldier's additional homestead right."
Provided, "that no entry shall be al-
lowed extending more than one hundred
and sixty rods along the shore of any
navigable water, and along such shore a
space of at least eighty rods shall be
reserved from entry between all such
claims."
There is in this case no question as to
what distance along the shore an entry
may extend, or as to what space shall
be reserved between claims along the
shore, but only a question as to whether
making separate entries of lands which,
in point of contiguity and compactness,
constitute a single body of 319.75 acres,
is in contravention of the provision first
quoted, where both entries are by the
same person and are based upon soldiers'
additional homestead rights. That ques>
tion we answer in the affirmative for
the reasons before indicated.
It follows that, if the facts be as al-
leged in the complaint, the second pat-
ent was' issued in violation of law, and
the government is entitled to demand
that it be canceled, unless, as is asserted
in the brief for the defendants, one of
them is a bona fide purchaser. The
complaint does not show that he is such,
and the rule is that this is an [228]
affirmative defense which he must set
up and establish. Wright-Blodgett Co.
V. United States, 236 U. S. 397, 403, 59
L. ed. 637, 640, 35 Sup. Ct. Rep. 339:
Great Northern R. Co. v. Hower, 236
U. S. 702, 710, 59 L. ed. 798, 802, 35
Sup. Ct. Rep. 465.
If the ])atent is canceled, Poland, or
his assignee, will be free to exercise the
rights with which the patent was ob-
tained (see Re Cole, 6 Land Dec. 290,
and Re Courtright, 6 Land Dec. 459),
and also to ask repayment under the Act
of June 16, 1880, chap. 244, 21 Stat, at
L. 287, Comp. Stat. § 4595, 8 Fed. Stat.
Anno. 2d ed. p. 601, of the fees and
commissions paid to the land officers.
Decree reversed.
251 IT. S.
1910.
PRODUCERS TRANSPORTATION OQ. v. RAILROAD COM.
PRODUCERS TRANSPORTATION COM-
PANY, Plff. in Err.,
V.
RAILROAD COMMISSION OF THE
STATE OF CALIFORNIA et al.
(See S. C. Reported ed. 228-232.)
Constltotional law *- dne process of law
— rate reffulatlon.
1. An oil pipe line constructed solely
to carry oil for particular producers under
strict ly* private contracts, and never devoted
by its* owner to public use, could not, by
niere legislative flat or by any regulating
order of a state commission, be converted
by a state into a public utility, nor its
ou'ner made a common carrier, since that
would be taking private propertv for pub-
lic use without just compensation, which
no state can do consistently with the due
process of law clause of the 14th Amend-
ment to the Federal Constitution.
{Fbr other cases, see Constltatlonal Law, 608-
628. in Digest Sup. Ct 1908.]
ConsUtntlonal law — due process of
law — rate regulation.
2. A corporation which has yolimtarily
devoted its oil pipe line to the use of the
public may, consistently with due process
of law, be subjected bv a state to the regu-
latory powers of a state commission over
the rates and practices of public utilities.
(Fbr other cases, see Constitutional Law, 608-
628. in Digest Sup. Ct 1908.]
Constitutional law — Impairing con-
tract obligations — rate regulations.
3. A common carrier cannot, by mak-
ing contracts for future transportation or
bofliness, mortgaging its property or pledg-
ing its income, prevent or postpone the
exertion by a state of the power to regu-
late the carrier's rates and practices, nor
does the contract clause of the Federal Con-
stitution interpose any obstacle to the exer-
tion of such power.
CFor other cases, see Constltatlonal Law, 1430-
1434, in Digest Sup. Ct. 1008.]
[No. 219.]
Argued December 12, 1919. Decided Janu-
ary 5, 1920.
Note. — ^As to pipe line companies as
public utilities — see note to Associated
Pipe line Co. v. Railroad Commission,
L.R.A.1918C, 865.
On effect of contract with patrons to
preclude reg^ation of rates of public
service corporations — see note to Pin-
nev & B. Co. v. Los Angeles Oas & E.
Corp. L.R.A.1915C, 282.
Generally, as to what laws are void
as impairing obligation of contracts —
see notes to Franklin County Grammar
School V. Bailev, 10 L.R.A. 405; Dul-
lard V. Northern P. R. Co. 11 L.R.A.
246; Henderson v. Soldiers & S. Mon-
ument Comrs. 13 L.R.A. 169; and
Fletcher v. Peek, 3 L. ed. U. S. 162.
64 li. ed.
TN ERROR to the Supreme Court of
the State of California to review a
judgment which affirmed an order of
the state. Railroad Commission, requiring
a corporatiou operating. an oil pipe line
to file its schedule of rates or charges
and the rules and regulations under
which the transportation is conducted.
Affirmed.
See same case below, 176 Cal. 499,
P.U.R.1918B, 518, 169 Pac 59.
The facts are stated in the opinion.
Mr. A. V. Andrews argued the cause,
and, with Messrs. Lewis W. Andrews,
Thomas 0. Toland, and Paul M. Greg^.
filed a brief for plaintiff in error:
Has the state of California plenary
power which authorizes it, by constitu-
tional declaration or legislative enact-
ment, to impress upon a person or cor-
poration in fact engaged in a private
business, the obligations and character
of a public utility, and by its mere fiat
change property actually devoted solely
to private use so that it becomes im-
pressed with a public character and
burden, withjut the exercise of the
right of eminent domain and without
compensation?
Associated Oil Co. v. Railroad Com-
mission, 176 Cal. 528, L.R.A.1918C, 849,
P.U.R.1918B, 633, 169 Pac. 62 j Ex parte
Dickey, 144 Cal. 238, 66 L.R.A. 928, 103
Am. St. Rep. 82, 77 Pac. 924, 1 Ann.*
Cas. 428; Pacific Teleph. & Teleg. Co. v.
Eshleman, 166 Cal. 664, 50 L.R.A.(N.S.)
652, 137 Pac. 1119, Ann. Cas. 1916C,
822; Forster v. Scott, 136 N. Y. 577, 18
L.R.A. 543, 32 N. E. 976; Weems S. B.
Co. V. People's S. B. Co. 214 U. S. 345,
355, 53 L. ed. 1024, 1028, 29 Sup. Ct.
Rep. 661, 16 Ann. Cas. 1222; Chicago
B. & Q. R. Co. V. Illinois, 200 U. S.
593, 50 L. ed. 609, 26 Sup. Ct. Rep. 341,
4 Ann. Cas. 1175.
The term "due process of law," as
used in the Fifth and Fourteenth
Amendments to the Constitution of the
United States, undoubtedly means ''by
the law of the land."
Maxwell v. Dow, 176 U. S. 581, 595,
44 L. ed. 597, 602, 20 Sup. Ct. Rep. 448,
494; Dartmouth College v. Woodward, 4
Wheat. 518, 581, 4 L. ed. 629, 645;
Walker v. Sauvinet, 92 U. S. 90, 23
L. ed. 678; Re Kemmler, 136 U. S. 436,
448, 34 L. ed. 519, 624^ 10 Sup. Ct. Rep.
930.
Under the term "due process of law,"
as found in the Constitutions of the
several states, as well as in the Federal
Constitution, it is uniformly provided
that private property cannot be taken
239
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
for public use without just compensa-
tion.
Van Home v. Dorrance, 2 Dall. 304,
315, 1 L. ed. 391, 396, Fed. Cas. No.
16,857; Tippecanoe County v. loicas, 93
U. S, 108, 114, 23 L. ed. 822, 824;
Monongahela Nav. Co. v. United States,
148 U. S. 312, 325, 37 L. ed. 463, 467,
13 Sup. Ct. Rep. 622; Holden v. Hardy,
169 U. S. 366, 390, 42 L. ed. 780, 790,
18 Sup. Ct. Rep. 383 ; Cleveland Electric
R. Co. V. Cleveland, 204 U. S. 116, 142,
51 L. ed. 399, 410, 27 Sup. Ct. Rep. 202;
Orient Ins. Co. v. Daggs, 172 U. S. 557,
563, 43 L. ed. 552, 554, 19 Sup. Ct. Rep.
281.
The constitutional requirement of
due process of law, which embraces
compensation for private property tak-
en for public use, applies in every case
of the 'exertion of governmental power.
If, in the execution of any power, no
matter what it is, the government, Fed-
eral or state, finds it necessary to take
private property for public use, it must
obey the constitutional injunction to
make or secure just compensation to the
owner.
Chicago, B. & Q. R. Co. v. Illinois,
200 U. S. 593, 50 L. ed. 609, 26 Sup. Ct.
Rep. 341, 4 Ann. Cas. 1175; Cherokee
Nation v. Southern Kansas R Co. 135
U. S. 641, 659, 34 L. ed. 295, 303, 10
Sup. Ct. Rep. 965; Scranton v. Wheeler,
' 179 U. S. 141, 153, 45 L. ed. 126, 133, 21
Sup. Ct. Rep. 48.
The forms of law and the machinery
of government, with all their reach and
power, must, in their actual working,
stop on the hither side of the unneces-
sary and uncompensated taking or
destruction of any private property
legally acquired and legally held.
Reagan v. Farmers' Loan & T. Co.
154 U. S. 362, 399, 38 L. ed. 1014, 1024,
4 Inters. Com. Rep. 560, 14 Sup. Ct.
Rep. 1047; Reagan v. Mercantile Trust
Co. 154 U. S. 413, 38 L. ed. 1028, 4
Inters. Com. Rep. 575, 14 Sup. Ct. Rep.
1060.
Vested rights cannot be impaired.
6 Am. & Eng. Enc. Law, 2d ed. p.
955; Eastman v. Clackamas County, 32
Fed. 24; Calder v. Bull, 3 Dall. 386, 1
L. ed. 648; Moore v. State, 43 N. J. L.
243, 39 Am. Rep. 558.
The word "impair" is defined as
meaning, "to make worse; to diminish
in quantity, value, excellence, or
strength; to lessen in power; to weak-
en; to enfeeble; to deteriorate."
Edwards v. Kearzey, 96 U. S. 595,
600, 24 L. ed. 793, 796; Ogden v. Saun-
240
ders, 12 Wheat. 213, 316, 6 L. ed. 806,
641.
"Obligation" is defined to be "the act
of obliging or binding; that which obli-
gates; the binding power of a vow,
promise, oath, or contract."
Edwards v. Kearzey, supra; Mc-
Cracken v. Hayward, 2 How. 008, 612^
11 L. ed. 397, 399.
Any laws affecting the obligation of
contracts embrace alike those which af-
fect its validity, construction, dis-
charge, and enforcement.
Ibid.
Nothing could be more material to
the obligation of a contract than the
means of enforcing it.
Woodruff V. Trapnall, 10 How. 190,
13 L. ed. 383; White v. Hart, 13 Wall.
646, 653, 20 L. ed. 685, 688; Walker v.
Whitehead, 16 Wall. 314, 21 L. ed. 357.
. The degree of impairment is imma-
terial so long as it is substantial, and if
the value of the contract has been
diminished, then the impairment is sub-
stantial.
Green v. Biddle, 8 Wheat. 1, 5 L. ed.
547; McCracken v. Hayward, 2 How.
608, 11 L. ed. 397; Farrington v. Ten-
nessee, 95 U. S. 679, 683, 24 L. ed. 558,
559; Von Hoffman v. Quincv, 4 Wall.
535, 552, 18 L. ed. 403, 409;"^ Walker v.
Whitehead, 16 Wall. 314, 318, 21 L. ed.
357, 358.
If a contract was valid when made, a
state can no more impair its obligation
by a constitutional amendment than it
can by an ordinary act of legislature.
Delmas v. Merchants' Mut. Ins. Co.
14 Wall. 661, 20 L. ed. 757.
Producers Transportation Company's
lines never conveyed oil to or for the
public, and the public has never had
any interest therein.
Thayer v. California Development Co.
164 Cal. 126, 127, 128 Pac. 21; Falls-
burg Power & Mfg. Co. v. Alexander,
101 Va. 98. 61 L.R.A. 129, 99 Am. St.
Rep. 855, 43 S. E. 194; Weems S. B.
Co. V. People's S. B. Co. 214 U. S. 345,
355, 53 L. ed. 1024, 1028, 29 Sup. Ct.
Rep. 661, 16 Ann. Cas. 1222.
The findings of the courts below do
not foreclose this court in this case.
Kansas City Southern R. Co v. C. H.
Albers Commission Co. 223 U. S. 573, 56
L. ed. 556, 32 Sup. Ct Rep. 316; Cedar
Rapids Qaslight Co. v. Cedar Rapids,
223 U. S. 668, 56 L. ed. 604, 32 Sup. Ct.
Rep. 389; Creswill v. Grand Lodge, K.
P. 225 U. S. 261, 56 L. ed. 1080, 32 Sup.
Ct. Rep. 822; Frank v. Mangunu 237 U.
S. 347, 59 L. ed. 984, 35 Sup. Ct. Rep.
582.
151 V. S.
Ifl9.
PRODUCERS TRANSPORTATION CO. v. RAILROAD COM.
229, 230
ICr. BonglM Brookman argned the
caaae and filed a brief for defendants
in error:
The assertion of the right to exercise
the power of eminent domain has al-
ways been recognized as conclusive evi-
dence that the corporation asserting
the right has devoted its property to
public use.
1 Wyman, Pub. Serv. Corp. § 214;
State, Trenton & N. B. Tump. Co., Prose-
eators, v. American £. Commercial News
Co. 43 N. J. L. 381.
This court will not be disposed to
review the ihidings of fact, supported,
as they are, by conclusive evidence.
Portland R. Ldght & P. Co. v. Railroad
Commission, 229 U. S. 397, 412, 57 L.
ed. 1248, 1258, 33 Sup. Ct. Rep. 820;
Kerfoot v. Farmers' & M. Bank, 218 U.
S. 281, 288, 64 L. ed. 1042, 1043, 31 Sup.
Ct. Rep. 14; Waters-Pierce Oil Co. v.
Texas, 212 U. S, 86, 53 L. ed. 417, 29
Sup. Ct. Rep. 220; Clipper Min. Co.
▼. Eli Min. & Land Co. 194 U. S. 220,
222, 48- L. ed. 944, 948, 24 Sup. Ct. Rep.
632.
A state has the power to declare any
business which is of public interest and
concern to be a public utility and subject
to regulation by the state, particularly
when those conducting the business
have devoted its property to public
nse^ and the fact that the business is
conducted through contracts does not
preclude such regulation.
Munn V. Illinois, 94 U. S. 113, 24 L. ed.
77; Burlington Twp. v. Beasley, 94 U.
S. 310, 24 L. ed. 161; Spring Valley
Waterworks v. Schottler, 110 U. S. 347,
28 L. ed. 173, 4 Sup. Ct. Rep. 48; Budd
V. New York, 143 U. S. 517, 36 L. ed.
247, 4 Inters. Com. Rep. 45, 12 Sup.
Ct. Rep. 468; Brass v. North Dakota,
153 U. S. 391, 38 L. ed. 757, 4 Inters.
Com. Rep. 670, 14 Sup. Ct. Rep. 857;
German Alliance Ins. Co. v. Lewis, 233
U. S. 389, 58 L. ed. 1011, L.R.A.1915C,
1189, 34 Sup. Ct. Rep. 612.
Regulation of companies engaged in
transporting oil for compensation by
means of pipe lines cannot be said to be
unreasonable and unjustifiable when
this court itself has upheld the regula-
tion of such companies as common car-
ricfrs by the Interstate Commerce
Commission, in so far as interstate
transportation is concerned.
Pipe Line Cases (United States v.
Ohio Oil Co.) 234 U. S. 548, 58 L. ed.
1459, 34 Sap. Ct. Rep. 956.
The fact that the business declared
to be a public utility is conducted
through contracts is immaterial as af-
64 L. ed.
fecting the power of the state to sub-
ject the business to regulation.
Atlantic Coast line R. Co. v. €k)lds-
boro, 232 U. S. 548, 58 L. ed. 721, 34
Sup. Ct. Rep. 364; German Alliance Ins.
Co. V. Lewis, 233 U. S. 389, 58 L. ed.
1011, L.R.A.1915C, 1189, 34 Sup. Ct.
Rep. 612; Union Dry Goods Co. v.
Georgia Public Service Corp. 248 U. S.
372, 63 L. ed. 309, 9 A.L.R. 1420, P.U.R.
1919C, 60, 39 Sup. Ct. Rep. 117.
The supreme court of California has
already recognized the right of the
Railroad Commission in prescribing
rates for public utility service to alter
the rate specified in contracts between
the public utility and its patrons.
Limoneira Co. v. Railroad Commis-
sion, 174 Cal. 232, P.U.R.1917D, 183,
162 Pac. 1033; Southern P. Co. v.
Spring Valley Water Co. 173 Cal. 291,
L.R.A.1917E, 677, 159 Pac. 865.
Mr. Justice Van Devanter delivered
the opinion of the court:
We here are concerned with a statute
of California and an order made there-
under by the state Railroad Commission,
both of which are said to be repugnant
to the Constitution of the United States,
and therefore invalid.
The statute declares that every pri-
vate corporation or individual operating
''any pipe line, or any part of any pipe
line . . . for the transportation of
crude oil ... , directly or indirect-
ly, to or for the public, for hire, . . ,
and which said pipe line ... is con-
structed or maintained upon, along, over
or under any public highway, and in
favor of whom the right of eminent do-
main exists," shall be deemed a common
carrier and subject to the provisions of
a prior act investing the. Railroad Com-
mission with extensive powers over the
rates and practices of those who operate
public utilities. Stat, 1913, chap. 327;
Stat. 1911, Ex. Sess. chap. 14.
The order of the Commission was made
after notice and [230] a full hearing;
is based upon a finding that the Pro-
ducers Transportation Company, the
plaintiff in error, has a pipe line from
the San Joaquin oil fields to Port Har-
ford, on the Pacific coast, whereby it
transports crude oil for pay in such cir-
cumstances that the statute requires that
it be regarded and dealt with as a com-
mon carrier; and directs the filing with
the Commission of the company's sched-
ule of rates or charges and the rules
and regulations under which the trans-
portation is conducted.
In the state court the company con-
6 241
230-232
SCPREME COURT OF THE UNITED STATES.
Oct. Tsbm,
tended that the evidence before the Com-
mission, all of which was before the
court, conclusively established that the
pipe line was constructed solely to carry
crude oil for particular producers from
their wells to the seacoast under strictly
private contracts, and that there had
been no carrying for others, nor any
devotion of the pipe line to public
use; and the company further contended
that the statute, as applied to this pipe
line, was repugnant to the due process
«f law clause of the 14th Amendment
and the contract clause of § 10 of article
1 of the Constitution, and that the order
of the Commission was void as offend-
ing against these clauses. The state
court sustained both the statute and the
order (176 Cal. 499, P.U.R.1918B, 518,
169 Pac. 59), and the company sued out
this writ of error.
The company was organized under the
laws of California in 1909 and its pii>e
line was put in operation in 1910. The
statute in question took effect August
10, 1913, and the order was made Decem-
ber 31, 1914.
It is, of course, true that if the pipe
line was constructed solely to carry oil
for particular producers under strictly
private contracts, and never was de-
voted by its owner to public use, that is,
to carrying for the public, the state
could not, by mere legislative fiat or
by any regulating order of a commis-
sion, convert it into a public utility or
make its owner a common carrier; for
that would be taking private property*
for public use "without just compensation,
[231] which no state can do consistently
with the due process of law clause of
the 14th Amendment. Chicago, B. & Q.
R. Co. V. IlUnois, 200 U, S. 561, 593,
50 L. ed. 596, 609, 26 Sup. Ct. Rep. 341,
4 Ann. Cas. 1175; Northern P. R. Co.
V. North Dakota, 236 U. S. 585, 595, 59
L. ed. 735, 741, L.R.A.1917F, 1148, P.U.R.
1915C, 277, 35 Sup. Ct. Rep. 429, Ann.
Cas. 1916A, 1; Associated Oil Co. v.
Railroad Commission, 176 Cal, 518, 523,
526, L.R.A.1918C, 849, P.U.R.1918B, 633,
169 Pac. 62. And see Munn v. lUinois,
94 U. S. 113, 126, 24 L. ed. 77, 84; Louis-
ville & N. R. Co. V. West Coast Naval
Stores Co. 198 U. S. 483, 495, 49 L. ed.
1135, 1139, 25 Sup. Ct'. Rep. 745; Weems
S. B. Co. v. People's S. B. Co. 214 U. S.
345, 357, 53 L. ed. 1024, 1029, 29 Sup.
Ct. Rep. 661, 16 Ann. Cas. 1222; Chicago
& N. W. R. Co. V. Ochs, 249 U. S. 416,
419, 420. 63 L. ed. 679, 682, 683, P.U.R.
1919D, 498, 39 Sup. Ct. Rep. 343. On
the other hand, if in the beginning or
242
during its subsequent operatym the pipe
line was devoted by its owner to public
use, and if the right thus extended to
the public has not been withdrawn^ there
can be no doubt that the pipe line is a
public utility and its owner a common
carrier whbse rates and practices are
subject to public r^^ulation. Munn t.
Illinois, supra.
The state court, iqK>n examining the
evidence, concluded that the company
voluntarily had devoted the pipe line
to the use of the public in transporting
oil, and it rested this conclusion upon
the grounds, first, that one of the things
which the company was authorized to
do, if it so elected, as shown in its
articles of incorporation, was "to estab-
lish and carry on . . . a general
transportation business for the purpose
of transporting . . . any of the oils
. . . produced ... by this corpo-
ration or any other person, firm, part-
nership, association, or corporation;''
second, that in acquiring its right of way
it resorted to an exercise of the power
of eminent domain, — admissible only if
the condemnation was for a "public use"
(Code Civ. Proe. §§ 1237, 1238), and
was by "an agent of the state" (Civ.
Code, § 1001), — ^and in that proceeding
asserted, and obtained a judgment recit-
ing, that it was engaged in transporting
oil by pipe line "as a common carrier
for hire," and that the right of way was
sought for "a public use ;" and, third, that,
looking [282] through the maze of con-
tracts, agency agreements, and the like,
under which the transportation was ef-
fected, subordinating form to substance,
and having due regard to the agency's
ready admission of new members and its
exclusion of none, it was apparent that
the company did in truth carry oil for
all producers seeking its service ; in other
words, for the public. See Pipe Line
Cases (United States v. Ohio Oil Co.)
234 U. S. 548, 68 L. ed. 1459, 34 Sup. Ct.
Rep. 956.
While some criticism is made of this
conclusion and the grounds upon which
it is rested, we are of opinion that the
grounds' have adequate support in the
evidence and that they sustain the con-
clusion. True, one witness stated that
"the pipe line was not laid upon the
right of way which was obtained in the
condemnation suit;" but, as his further
testimony disclosed that he meant only
that a part of the right of way so ob-
tained was not used when the pipe line
was laid, we think the state court right-
ly regarded the company as having ao-
251 U. S.
X919.
HAYS V. SEATTLE.
232, 233
<)aired some of its actual right of way
by exercising the power of eminent do-
main as a common carrier. If it was a
eozmnon carrier at the time of the con-
demnation snit; it is such now, for noth-
ing has occurred in the meantime to
ehange its status.
That some of the contracts before
mentioned were entered into before the
statute was adopted or the order made
is not material. A common carrier can-
not, by making contracts for future
transportation, or by mortgaging its
property or pledging its income, prevent
or post}>one the exertion by the state of
the power to regulate the carrier's rates
and practices. Nor does the contract
<?laa8e of the Constitution interpose any
obstacle to the exertion of that power.
Chieago, B. & Q. R. Co. v. Iowa (Chi-
cago, B. & Q. R. Co. V. Cutts) 94 U. S.
155, 162, 24 L. ed. 94, 96; Louisville &
N. R. Co. V. Mottley, 219 U. S. 467, 482,
55 L. ed. 297, 303, 34 L.R.A.(N.S.) 671,
31 Sup. Ct. Rep. 266; Union Dry Goods
Co. V. Georgia Pub. Seirvice Corp. 248
U. 8. 372, 63 L. ed. 309, 9 A.L.R. 1420,
P.U.R.1919C, 60, 39 Sup. Ct. Rep. 117.
Judgment ufi&rmed.
[2381 WILLIAM P. HAYS, Appt.,
V.
PORT OF SEATTLE, the State of Washing-
ton, et al.
(See S. C. Reporter's ed. 233-239.)
Pleading — Jurisdictional averments •—
— Federal question.
1. Averments of a bill setting up al-
1^^ obligations of a contract between
claimant and the state, and the contention
that they were impaired by subsequent leg-
islation, presented a controversy under the
Fed^al Constitution and conferred juris*
diction (a sufficient amount bein^ involved)
upon a Federal district court irreepective
of the citizenship of the parties.
[For other cases, see Pleading, 821-358, in
Digest Sup. Ct 1908.]
Error to district court — Federal ques-
tion — Impairing contract obligations.
2. The question whether the obligationi^
of a contract with the state were impaired
by subsequent state legislation is one Which
will warrant a direct writ of error from
the Federal Supreme Court to a district
court.
[For other cases, see Appeal and Error, 938-
989, in Digest Sup. Ct. 1908. J
Constitutional law » impairing contract
obligations — r^udlating contract.
3. A statute that ha^ the efifect of vio-
lating or repudiating an incompleted con*
tract^ previously made with the state does
not impair the obligation of a contract.
The obligation remains as before and forms
the measure of the contractor's right to re-
cover from the state the damages sustained.
[For other cases, see Constitutioxud Law. 1840-
1342, in Digest Sup. Ct 1908.]
Constitutional law — due process of
law — taking for public purpose —
compensation — notice and hearing.
4. The property rights, if any, of one
contracting with the state for the construc-
tion of a waterway, cannot be said to have
been taken without due process of law by
state legislation vacating a portion of such
waterway and vesting title thereto in a
municipal corporation, where tliere was ade-
quate provision in the state law for as-
sured payment without unreasonable delay
of any compensation due such contractor
on account of such taking.
[For otner cases, see Constltational Law, 616-
673; Eminent Domain, VI. c, in Digest Sup.
Ct. 1908.1 .
Pleading — what must be pleaded —
laches.
5. Leches is a defense that, in the
equity practice of the Federal courts, need
not be set up by plea or answer. It is for
the complainant m his bill to excuse the
delay in seeking equitable relief, .where
there has been such, and if it be not ex-
cused, his laches may be taken advantage
of either by demurrer or upon final hear-
ing.
[For other cases, see Pleading* III. g, 1, in
Digest Sup. Ct. 1908.]
[No. 70.] i
Argued November 12, 1919. Decided Janu-
ary 6, 1920.
Note. — On direct review in Federal
Supreme Court of judgments of district
<or circuit courts — see notes to (Iwin v.
United States, 46 L. ed. U. S. 741; B.
Altman & Co. v. United States, 56 L. ed.
U. S. 894; and Berkman v. United
States, 63 L. ed. U. S. 877.
Generally, as to what laws are void as
impairing the obligation of contracts —
«ee notes to Franklin County Grammar
School V. Bailey, 10 L.R.A. 405; Bullard
v. Northern P. R. Co. 11 L.R.A. 246;
Henderson v. Soldiers & S. Monument
Comrs. 13 L.R.A. 169; and Fletcher v.
Peck, 3 L. ed. U. S. 162.
44 L. ed.
As to what is a public purpose which
will justify the power of eminent do-
main— see notes to Pittsburg, W. & K.
R. Co. V. Benwood Iron Works, 2 L.R.A.
680; Barre R. Co. v. Montpelier & W.
River R. Co. 4 L.RA. 785; Searl v.
School Dist. 33 L. ed. U. S. 740; and
Sweet V. Rechel, 40 L. ed. U. S. 188.
On notice and hearing required, gen-
erally, to constitute due process of law
— see notes to Kuntz v. Sumption, 2
L.R.A. 667: Chauvin v. Valiton, 3 L.R.A.
194; and Ulman t. Baltimore, 11 L.R.A.
225.
243
234
SUPREMK COURT OF THE UNITED STATES.
Oct. Tebm»
\PPEAL from the Distri«»t Court of
the United States for the Western
District of Washington to review a de-
cree which dismissed a bill to enjoin the
enforcement of a state statute vacating
a portion of a waterway and vesting
title thereto in a municipality. Affirmed.
See same case below, 226 Fed. 287.
The facts are stated in the opinion.
Mr. William F. Ha3r8, in propria per-
sona, argued the cause and filed a brief
for appellant:
The state of Washington had power
to enter into the colitraet involved in
this suit, and it is valid.
Hays v. Hill, 23 Wash. 730, 63 Pac.
576; Hays V, Callvert, 36 Wash. 138, 78
Pac. 793; Allen v. Forrest, 8 Wash. 700,
24 L.R.A. 606, 36 Pac. 971; Scholpp v.
Forrest, 11 Wash. 640, 40 Pac. 133;
Missouri Valley Trust Co. v. Hofius, 20
Wash. 272, 56 Pac. 54.
The contract gave to appellant a vest-
ed property right in and to the said
waterway from the time the contract
was entered into and the ai^roval of
the bond guaranteeing for appellant its
performance, and the record shows that
appellant, without any duty on his part,
express or implied, in order to safe-
guard his rights, as also the rights of
the state under the contract, prose-
cuted, at great personal expense, two
suits to the highest court of the state
of Washington.
Hays V. Hill, and Hays v. Callvert,
supra.
The right of appellant in and to the
contract giving him the exclusive title
to the earth contained in the waterway,
for filling adjacent tidelands, has not
been and cannot be successfully ques-
tioned. The statute enacted to vacate
the waterway, and vest title thereto in
the port of Seattle, is the taking of
appellant's property without due proc-
ess of law, and is void. •
Tavlor, Due Process of Law, chap. 11,
§§ 216, 218-220.
The relation of the state to appel-
lant under the contract is a continuing
trust and the doctrine of laches is in-
applicable.
7 Enc. U. S. Sup. Ct. Rep. 813, note
56.
Mr. L. T. Turner argued the cause,
and, with Messrs. Harold Preston and
O. B. Thorgrimson, filed a brief for ap-
pellees :
The question raised by appellant is
now a moot one, and will not be con-
sidered by this court.
Little V. Bowers, 134 U. S. 547, 33 L.
244
ed. 1016, 10 Sup. Ct. R«p. 620; Kim-
ball V. Kimball, 174 U. S. 158, 43 L. ed.
'932, 19 Sup. Ct. Rep. 639; Washington
Market Co. v. District of Columbia, 137
U. S. 62, 34 L. ed. 572, 11 Sup. Ct. Rep.
4; 2 Enc. PI. & Pr. 344; Hice v. Orr, 16
Wash. 164, 47 Pac, 424; Barber As-
phalt Paving Co. v. Hamilton, 80 Wash.
56, 141 Pac. 199.
The vacating of the waterway hy the
state merely constituted a breach of
contract, and did not impair its obli-
gation.
Lord V. Thomas, 64 N. Y. 107; Brown
V. Colorado, 106 U. S. 98, 27 L. ed. 133,
1 Sup. Ct. Rep. 175; Caldwell v. Dona-
ghey, 108 Ark. 60, 45 L.R.A.(N.S.) 721,
156 S. W. 839, Ann. Cas. 1915B, 133;
Wright V. Columbus, H. V. & A. R. Co.
176 U. S. 481, 44 L. ed. 554, 20 Sup. Ct.
Rep. 398.
Appellant has . lost his rights under
the contract through laches.
Brown v. Buena Vis£a County, 95 U-
S. 157, 24 L. ed. 422; 16 Am. & Eng.
Enc. Law, 356; Penn. Mut. L. Ins. Co. v.
Austin, 168 U. S. 685, 42 L. ed. 626, 18
Sup. Ct. Rep. 223; Keeling v. Pittsbui^,
V. & C. R. Co. 205 Pa. 31^ 54 Atl. 485 ;
Logansport v. Uhl, 99 Ind. 531, 50 Am.
Rep. 109; Atty. G^n. v. Delaware & B.
B. R. Co. 27 N. J. Eq. 1.
[234] Mr. Justice Pitney delivered
the opinion of the court:
Appellant filed his bill in equity for an
injunction to restrain the enforcement of
an act of the legislature of the state of
Washington, approved March 11, 1913
(Sess. Laws, p. 195), entitled, "An Act
Vacating a Portion of Smith's Cove
Waterway, in the City of Seattle, and
Vesting the Title of the Vacated Por-
tion in the Port of Seattle," upon the
ground (a) that it impaired the obliga-
tion of an existing contract between him
and the state, in violation of § 10 of art.
1 of the Constitution of the United
States; and (b) that it deprived him of
property without due process of law,
contrary to § 1 of the 14th Amendment.
The district court, on final hearing, dis-
missed the bill (226 Fed. 287), and the
case is brought here by direct appeal
under § 238, Judicial Code [36 Stat, at
L. 1157, chap. 231, Comp. Stat. § 1215,
5 Fed. Stat. Anno. 2d ed. p. 794], be-
cause of the constitutional questions.
The facts, shortly stated, are as fol-
lows: Under an act of the legislature
approved March 9, 1893 (Sess. Laws, p.
241), which made provision for the exca^
vation by private contract of w^ater-
ways for the uses of navigation, com-
251 V. 8.
I911I.
HAYS V. SEATTLE.
234-23:
pJainant and another party to whose
rig^hts he has succeeded obtained a con-
tract with the state, acting by the com-
missioner of pnblic lands, which was ap-
proved by the governor on March 7,
1S96. It provided for the excavation
by complainant of Smith's cove water-
way, in Seattle harbor, extending from
the outer harbor line throilgh the inter-
vening tidelands to the head of Smith's
cove, the excavated material to be used
for tilling in and raising above high tide
the adjacent tide and shore lands be-
longing to the state of Washing^ton. For
doing this he was to be entitled to com-
pensation equivalent to the cost of the
work, plus 15 per centum and interest,
for which he was to have a lien upon the
tide and shore lands so filled in. The
state agreed to hold these lands subject
to the operation of the contract pending
its execution, and [235] subject to the
ultimate lien of the contractor thereon,
and that it would perform by its author-
ized agents all things required by the
Act of 1893 to be performed by the state.
The contract provided for and specified
the character of the bulkheads and re-
taining walls to be used, reserving, how-
ever, to the commissioner of public lands,
the right to modify these plans and speci-
fications as to "shape, form, and char-
acter of material,^ as might appear
necessary. The contract required com-
plainant at his own cost to excavate also
a waterway to extend from the north
end of the Smith's cove waterway across
the penfnsula separating the cove from
Salmon bay, such excavation to be made
under the direction and in accordance
with the plans of an engineer to be desig-
nated by the governor of the state or the
Secretary of War of the United States,
and when excavated to be owned, pos-
sessed, and controlled by the United
States or by the state, free of cost to
them, if the right of way and the privi-
lege of excavating across the peninsula
should be accorded to the contractor free
of cost, or if fair compensation should
be made to him therefor. Work was to
be commenced within sixty days and
completed within two years from the
date of approval.
On May 4, 1896, comi)lainant entered
upon performance of the contract and
commenced driving piles for the con-
struction of a bulkhead. Almost im-
mediately he was notified by the conunis-
sioner of public hinds that the latter
elected to exercise the right, as provided
by the contract, to change the form of
bulkhead. This had the effect of re-
quiring a suspension bf work until modi-
<4 L. ed.
fied plans and specifications for the bulk-
heads should be prepared. Complainant
did suspend the work, and it never was
resumed thereafter. There were nego-
tiations and correspondence between him
and the commissioner of public lands
looking to the preparation of the modi-
fied plans and specifications, but they
resulted in nothing. [236] Each party
seems to have insisted that it was the
duty of the other to furnish them.
Complainant contends that he was at
all times ready and prepared to carry
out the contract on his part, but was
prevented from doing so by acts and
omissions of the state and its representa-
tives, including the failure to furnish
plans for the modified form of bulkhead
and a failure to furnish complainant
with a right of way across the peninsu-
la between the head of Smith's cove and
Salmon bay. Defendants contend that
repeatedly, and in particular in the
month of November, 1898, complainant
was notified that his plans were wholly
inadequate and would be insufficient for
the purpose for which the retaining wall
was designed; and that on the latter
occasion he was notified to submit proper
plans and specifications and to commence
operations within ten days after their
approval.
While the excavation project thus re-
mained in suspense, and pursuant to an
act authorizing establishment of port
districts, approved March 14, 1911 (Sess.
Laws, p. 412), the port of Seattle was
established as a municipal corporation
with territorial limits including Smith's
cove waterway, Salmon bay, and the in-
tervening peninsula. This act conferred
extensive powers for the regulation, con-
trol, and improvement of the harbor and
navigable and non-navigable waters with-
in such district, in the interest of the
public.
Thereafter, bv the statute that is now
under attack (Sess. Laws 1913, p. 195),
it was enacted that the northerly part of
the Smith's cove waterway should be
vacated and the title thereto vested in
the port of Seattle. Complainant was
fully advised of this legislative measure,
even prior to its enactment.
After it took effect, which was in June,
1913, the port commission took posses-
sion of the waterway, exercised control
over it, and did a Considerable amount
of excavation, [237] filling, and bulk-
head construction, having spent large
sums of money therein between the tak-
ing effect of the act and November 14,
1914, wlien the bill of complaint was
filed.
2t.5
237-239
SUPREME COURT OF THE UNITED STATES.
Oct. Tebaj^
Coming to the questions raised upon
the present appeal: The averments of
the bill setting up the alleged obligations
of complainant's contract with the state,
and the contention that they were im-
paired by the Apt of 1913, presented a
controversy under the Constitution of
the United States, and (a sufficient
amount being involved) conferred juris-
diction upon the Federal court irrespec-
tive of the citizenship of the parties,
and at the same time warranted a direct *
appeal to this court under § 238, Judicial
Code. Greene v. Louisville & Interur-
ban R. Go. 244 U. S. 499, 508, 61 L. ed.
1280, 1285, 37 Sup. Ct. Rep. 673, Ann.
Cas. 1917E, 88.
The merits remain for determination.
Upon the first constitutional point, it
is important to note the distinction be-
tween a statute that has the effect of
violating or repudiating a contract pre-
viously made by the state and one that
impairs its obligation. Had the legis-
lature of Washington, pending perform-
ance or after complete performance by
complainant, passed an act to alter ma-
terially the scope of his contract, to di-
minish his compensation, or to defeat his
lien upon the filled lands, there would
no doubt have been an attempted im-
pairment of the obligation. The legis-
lation in question had no such purpose
or effect. It simply, after seventeen
years of delay without substantial per-
formance of the contract, provided that
the project should be abandoned and
title to the public lands turned over to
the municipality. Supposing the con-
tract had not been abandoned by com-
plainant himself or terminated by his
long delay, its obligation remained as be-
fore, and formed the measure of his
right to recover from the state for the
damages sustained. Brown v. Colorado,
106 U. S. 95, 98, 27 L. ed. 132, 133, 1
Sup. Ct. Rep. 175 ; St. Paul Gaslight Co.
V. St. Paul, 181 U. S. 142. 148-150, 45 L.
ed. 788, 791-793, 21 Sup. Ct. Rep. 575;
Dawson v. [288] Columbia Ave. Sav.
Fund, S. D. Title & T. Co. 197 U. S.
178, 181, 49 L. ed. 713, 716, 25 Sup. Ct.
Rep. 420; Lord v. Thomas, 64 N. Y. 107;
Caldwell v. Donaghey, 108 Ark. 60, 64,
45 L.R.A.(N.S.) 721, 156 S. W. 839, Ann.
Cas. 1915B, 133.
We deem it clear also that the Act of
1913 had not the effect of depriving com-
plainant of property without due process
of law, in contravention of the 14th
Amendment. Assuming he had property
rights and that they were taken, it clear-
ly was done for a public purpose, and
thete was adequate provision for com-
246
pensation in §§ 886-890, Rem. & Bal.
Code of Washington, which entitle any
person having a claim against the state
to begin an action thereon in a desig*-
nated court upon the mere giving of se-
curity for costs, whereupon service of
the complaint is to be made upon the
attorney general and secretary of state,
the action is'to proceed in sdl respects
as other actions, with a right of appeal
to the supreme court, and, in case of a
final judgment against the state, a tran-
script of it is to be furnished to the audi-
tor of state, who is required thereupon to
''audit the amount of damages and costs
therein awarded, and the same shall be
paid out of the state treasury." If his
claim has not been barred by limitation
of time, this statute constitutes an ade-
quate provision for assured payment of
any compensation due to complainant
without unreasonable delay; and hence
satisfies the requirement of due process
of law as clearly as if the ascertainment
of compensation had preceded the tak-
ing. Bragg V. Weaver, decided Decem-
ber 8, 1919 [ 251 U. S. 57, ante, 135, 40
Sup. Ct. Rep. 62].
The district court, besides finding com-
plainant's case to be otherwise without
merits, held in effect that he was barred
from relief in equity by laches, because
after the taking effect of the Act of
1913 he stood by for more thaii a year
and permitted the port conmiission to
enter upon extensive improvements and
expend large moneys on the waterway
and adjoining lands, before he b%an his
suit. The only answer made to this is
that the defense of laches was not plead-
ed. But in the equity practice of the
courts [230] of the United States (ex-
cepted from the Conformity Act, see Rev.
Stat. §§ 913, 914, Comp. Stat..§§ 1536,
1537, 6 Fed. Stat. Anno. 2d ed. pp. 18,
21) laches is a defense that need not be
set up by plea or answer. It rests upon
the long-established doctrine of courts of
equity that their extraordinary relief
will not be accorded to one who delays
the assertion of his claim for an unrea-
sonable length of time, especially where
the delay has led to a change of condi-
tions that would render it unjust to dis-
turb them at his instance. It is for the
complainant in his bill to excuse the de-
lay in seeking equitable relief, where
there has been such ; and if it be not ex-
cused, his laches may be taken advan-
tage of either by demurrer or upon final
hearing. Maxwell v. Kennedy, 8 How.
210, 222, 12 L. ed. 1051, 1055; Badger
v. Badger, 2 Wall. 87, 95, 17 L. ed. 836,
838; Marsh v. Whitmore, 21 Wall. 178,
251 V. S.
1919.
SCHALL V. CAMORS.
239
185, 22 L. ed. 482, 486 ; SnUivan v. Port-
land & K. B. Co. 94 U. S. 806, 811, 24
L. ed. 324, 326; Mercantile Nat. Bank v.
Cazpenter, 101 U. S. 567, 25 L. ed. 815;
L&ndsdale v. Smith, 106 U. S. 391, 27
Li. ed. 219, 1 Sup. Ct. Rep. 350; Ham-
mond V. Hopkins, 143 U. S. 224, 250, 36
L.. ed. 134, 145, 12 Sup. Ct. Rep. 418;
G^lliher v. CadweU, 145 U. S. 368, 371-
373, 36 L. ed. 738-740, 12 Sup. Ct.
Rep. 873; Hardt v. Heidweyer, 152 U.
S. 547, 559, 38 L. ed. 548, 552, 14 Sup.
Ct. Rep. 671 J Abraham v. Ordway, 158
U. S. 416, 420, 39 L. ed. 1036, 1039, 15
Sup. Ct. Rep. 894; WiUard v. Wood, 164
U. S. 502, 524, 41 L. ed. 531, 540, 17
Sup. Ct. Rep. 176; Penn. Mut. L. Ins.
Co. V. Austin, 168 U. S. 685, 696-698,
42 L. ed. 626, 630, 631, 18 Sup. Ct. Rep.
223.
Decree affirmed.
WILLIAM SCHALL, Jr., Carl Muller, Ed-
mund Pavenstedt, and Frederick MuUer-
Schall, Petitioners,
V.
FREDERIC CAMORS et al., Trustees of
the Bankrupt Estates of Albert Le More,
Bankrupt, and of Edward E. Carriere,
Bankrupt.
(See 8. C. Reporter's ed. 239-265.)
Bankruptcy — provable debts — tort
claims.
1. A claim for unliquidated damages
arising out of a pure tort which neither
constitutes a breach of an express contract
nor results in any imjust enrichment of the
tort-feasor that may form the basis of an
implied contract is not made prorable in
bankruptcy by the provision of the Bank-
rupt Act of July 1, 1898, § 636, that im-
liqui dated claims against the bankrupt may,
pursuant to application to the court, be
liquidated in such manner as it shall direct,
and may thereafter be proved and allowed
against his estate, since this provision does
not add claims of purely tortious origin
to tne provable debts enumerated in para-
graph a of such section, but provioies a
procedure for liquidating claims provable
under that paragraph if not already liqui-
dated.
[For other coses, see Bankruptcy, X. a. In
Digest Sup. Ct. 1908.]
Note. — On right to prove unliquidated
claim for tort in bankruptcy — see note
to Brown v. United Button Co. 8 L.R.A.
(N.S.) 961.
On double proof of claim against es-
tate of firm and individual partner —
see note to Reynolds v. New York Trust
Co. 39 L.R.A.(N.S.) 391. |
64 li. ed.
Bankruptcy — provable debts — tort
olaims.
2. The class of provable claims in bank-
ruptcy, as set forth in the provisions of the
Bankrupt Act of July 1, 1898, § 63, was
not enlarged so as to include mere tort
claims by anythiuff in the amendment to
§ 17 made by the Act of February 5, 1903,
confessedly designed to restrict the scope
of a discharge in bankruptcy.
[For other cases, see Bankruptcy, X. a, in
Digest Sup. Ct. 1908.]
Bankruptcy » Individual and partner-
ship creditors.
3. No legal or equitable claiih as
against individual partners that might, by
waiver of the tort or otherwise, be deemed
to arise out of a tort done in the course
of the partnership business for the bene-
fit of the firm, and without benefit to the
partners as individuals, can displace the eq-
uity of other creditors recognized in the
Bankrupt Aet of July 1, 1898, § 5, and
put the claimants in a position of equality
with others who were actual creditors of
the individual partners, and of preference
over other, firm creditors.
[For other cases, see Bankruptcy, X. c, 1, in
Digest Sup. Ct. 1908.]
[No. 84.]
Argued November 17, 1919. Decided Jan-
uary 5, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Fifth Circuit to review a judgment
which affirmed a judgment of the District
Court for the Eastern District of Louisi-
ana, disallowing certain claims against
the individual bankrupt members of a
bankrupt partnership. Aitoned.
See same case below, — A.L.R. — , 162
C. C. A. 178, 250 Fed. 6.
The facts are stated in the opinion.
Mr. Ralph S. Rounds argued the
cause, and, with Mr. Eugene Congleton,
filed a brief for petitioners:
The petitioners' claim is provable
against the individual partners on the
ground that the fraud of the individual
members of the firm made them liable
in quasi- contract or equitable debt; and
against the firm in express contract or
in quasi contract or equitable debt, be-
cause it received the proceeds of the
frauds.
Ex parte Adamson, L. R. 8 Ch. Div.
807, 47 L. J. Bankr. N. S. 106, 38 L. T.
N. S. 920, 26 Week. Rep. 892; Re Davi-
son, L. R. 13 Q. R Div. 50, 50 L. T. N.
S. 635; Catts v. Phalen, 2 How. 376, 11
L. ed. 306; Burton v. Driggs, 20 Wall.
125, 22 L. ed. 299; Re E. J. Arnold &
Co. 133 Fed. 789; Pom. Eq. Jur. 3d ed.
§ 1047; Stanhope v. Swafford, 77 Iowa,
594, 42 N. W. 450; First State Bank v.
247
srPREMK COUKT OF THE UNITED STATES.
Oct. Tebm,
McGaughe, 38 Tex. Civ. App. 495, 86 S.
W. 55.
The claims filed by Muller, Schall, &
Company, against th^ separate estates
of Albert Le More and Edward E. Car-
riere are provable in bankruptcy as tort
claims.
Friend v. Talcott, 228 U. S. 27, 57
L. ed. 718, 33 Sup. Ct. Rep. 505; Clarke
\ . Rogers, 228 U. S. 534, 57 L. ed. 953,
33 Sup. Ct. Rep. 587; Collier, Bankr.
flth ed. 853; Jackson v. Wauchula Mfg.
& Timber Co. 144 C. C. A. 551, 230 Fed.
409; Williams, Bankr. Pr. 10th ed. 142.
If ambiguity exists, the heading of
the statute may be considered in its in-
terpretation.
United States v. Fisher, 2 Cranch,
358, 386, 2 L. ed. 304, 313; United
States V. Palmer, 3 Wheat. 610, 631, 4
U ed.*471, 477; United States v. Union
P. R. Co. 91 U. S. 72, 23 L. ed. 224;
Smythe v. Fiske, 23 Wall. 374, 380, 23
Ij. ed. 47, 49; Coosaw Min. Co. V. South
Carolina, 144 U. S. 550, 36 L. ed. 537,
12 Sup. Ct. Rep. 689; Knowlton v.
Moore, 178 U. S. 41, 65, 44 L. ed. 969,
978, 20 Sup. Ct. Rep. 747.
Reducing a claim to judgment does
not in general alter its character or
change the nature of the claim.
Wisconsin v. Pelican Ins. Co. 127 U.
S. 265, 32 L. ed, 239, 8 Sup. Ct. Rep.
1370; Kennev v. Supreme Lodge, L. O.
M. 285 III. 188, 4 A.L.R. 964, 120 N.
E. 631; Bovntou v. Ball, 121 U. S. 457,
30 L. ed. 985, 7 Sup. Ct. Rep. 981.
A statute is capable of legislative as
well as judicial construction, and legis-
lative construction by amendment of a
statute is persuasive upon the courts.
Marchie Tiger v. Western Invest. Co.
221 U. S. 286, 308, 55 L. ed. 738, 746,
31 Sup. Ct. Rep. 578; Baker v. Swigart,
118 C. C. A. 313, 199 Fed. 867.
The cardinal rule of statutory- con-
struction is that all the words of a stat-
ute should be read together to deter-
mine its meaning. If the sevecal sec-
tions of the statute relating to a par-
ticular subject, when read together, are
harmonious, there is no room for con-
st i*uct ion by the courts, and, irrespec-
tive of what thev mav consider the best
|H)licy to be, they should give effect to
the statute.
Thomlev v. United States, 113 U. S.
310, 313, 28 L. ed. 999, 1000, 5 Sup. Ct.
Rep. 491; Bate Refrigerating Co. v.
Sulzberger, 157 U. S. 1, 33, 39 L. ed.
mi, 610, 15 Sup. Ct. Rep. 508; Bend v.
Hoyt, 13 Pet. 263, 272, 10 L. ed. 154.
158; Montclair Twp. v. Hnmsd'^n. 107
218
• U. S. 147, 152, 27 L. ed. 431, 432, 2 Sup.
Ct. Rep. 391.
It is also a settled rule of statutory
construction that prior acts may be re-
sorted to, to solve, but not to create, an
ambiguity.
Hamilton v. Rathbone, 175 U. S.
414, 421, 44 L. ed. 219, 222, 20 Sup. Ct.
Rep. 155.
A construction which denies tort
creditors the right to prove in bank-
ruptcy, and denies the bankilipt a dis-
charge from tort claims, is inequitable
and unjust, and if the statute is ambig-
uous, should be avoided by the court.
Knowlton v. Moore, 178 U. S. 41, 65,
44 L. ed. 969, 978, 20 Sup. Ct. Rep. 747.
Claims for negligence and other tort
claims against corporations which can-
not avail themselves of the bankruptcy
statutes, as railroads, etc., whose in-
solvent estates are administered In
courts of equity, nftiy be reduced to
judgment after the filing of the bill and
the appointment of a receiver, or liqui-
dated in the insolvencv proceedings,
and may afterwards participate in the
distribution of the insolvent estfite with
contract creditors.
Pennsylvania Steel Co. v. New York
City R. Co. 165 Fed. 459; Veatch v.
American Loan & T. Co. 25 C. C. A. 39,
49 U. S. App. 191, 79 Fed. 471; Atchi-
son, T. & S. F. R. Co. V. Osbom, 78
C. C. A. 378, 148 Fed. 606.
If tort claims in general are not prov-
able, and therefore not dischargeable
under the provisions of the statute, fur-
ther instances of the imperfect workin«r
of the statute, and, in fact, of the fail--
ure of its purpose, are presented.
Central Trust Co. v. Chicago Audi-
torium Asso. 240 U. S. 581, 591, 6()
L. ed. 811, 815, L.R.A.1917B, 580, 3U
Sup. Ct. Rep. 412.
The Bankruptcy Act of 1898 marked
a departure from the legislative policy
of the former bankruptcy laws to meet
changed conditions.
Re Fife, 109 Fed. 880, 3 N. B. X. Rt'p.
835; Re McCaulev, 101 Fed. 223; Tinker
V. Colwell, 193 U. S. 473, 48 L. ed. 754,
24 Sup. Ct. Rep. 505; Re Freche, 109
Fed. 620; Central Trust Co. v. Chicago
Auditorium Asso. 240 U. S. 581, 60 L.
ed. 811, L.R.A.1917B, 580, 36 Sup. Ct.
Rep. 412.
The liability of Albert Le More and
Edward E. Carriere being predicated
upon their conscious, criminal partic-
ipation in the frauds, it is immaterial
whether the claims are presented as
claims in tort for fraud, or as claims
upon an imolied or quasi contract or
251 V. S.
1919.
SCIIALL V. CAMORS.
equitable debt. In any event, the peti-
tioners are entitled to prove their
claims both against the firm estate and
against the individual estates of the
partners.
22 Am. & Eng. Enc. Law, 171; Lind-
ley, Partn. 8th ed. 821; Black, Bankr.
J 129; Re McCoy, 80 C. C. A. 60, 150
Fed. 106; Re Coe, 169 Fed. 1002,
aflBrmed in 106 C. C. A. 181, 183 Fed.
745; Re Blackford, 35 App. Div. 330,
54 X. Y. Supp. 972; Re Baxter, 18 Nat.
Bankr. Reg. 62, Fed. Cas. No. 1,119;
Re Jordan, 2 Fed. 319; Re Parkers, 19
Q. B. Div. 84, 56 L. J. Q. B. N. S. 338,
.17 I^ T. X. S. 198, 39 Week. Rep. 566,
4 Morrell, 135; Re Peck, 206 N. Y. 55,
41 L.R.A.(N.S.) 1223, 99 N. E. 258,
Ann. Cas. 1914A, 798; Re Pierson, 19
App. Div. 483, 46 N. Y. Supp. 557; Mc-
In tyre v. Kavanaugh, 242 U. S. 138, 61
L. ed. 205, 37 Sup. Ct. Rep. 38; City
Nat. Bank v. National Park Bank, 32
Hun, 105; Terry v. Hunger, 121 N. Y.
171, 8 L.R.A. 216, 18 Am. St. Rep. 803,
24 N. E. 272; Loveland, Bankr. 315;
Russell V. McCail, 141 N. Y. 437, 38
Am. St. Rep. 807, 36 N. E. 498; Sadler
V. Lee, 6 Beav. 324, 49 Eng. Reprint,
850, 12 L. J. Ch. N. S. 407, 7 Jur. 476;
Re Vetterlein, 20 Fed, 109.
The English doctrine of election has
\teen repudiated hy the American cases.
Re Famum, Fed. Cas. No. 4,674;
Stor>% Partn. 3d ed. § 384, p. 609 ; Mead
V. National Bank, 6 Blatchf. 180, Fed.
Cas. No. 9,366; Re Bigelow, 3 Ben. 146,
Fed. Cas. No. 1,397; Re Bradley, 2 Biss.
515, Fed. Cas. No. 1,772; Re Howard, 4
Nat. Bankr. Reg. 571, Fed. Cas. No.
6,750; Emery v. Canal Nat. Bank, 3
Cliff. 507, Fed. Cas. No. 4,446; Re Bax-
ter, 18 Nat. Bankr. Reg. 62, Fed. Cas.
Xo. 1,119; Re Jordan, 2 Fed. 319; Re
Blackford, 35 App. Div. 330, 54 N. Y.
Supp. 972.
There is an unbroken current of
authority under the earlier Bankruptcy
Acts, establishing that the substantive
rights of creditors to make proof where
a firm and its individual members are
jointly and severally liable upon an ex-
press contract or in quasi contract is
not affected or impaired by the provi-
idons in the earlier acts corresponding
to § 5f of the present Bankruptcy Act.
Re Famum, Fed. Cas. No. 4,674;
Mead v. National Bank, 6 Blatchf. 180,
Fed. Cas. No. 9,366; Re Bigelow, 3 Ben.
140, Fed. Cas. No. 1,397; Re Bradlev, 2
Biss. 515, Fed. Cas. No. 1,772; Re How-
ard, 4 Nat. Bankr. Reg. 571, Fed. Cas.
No. 6,750; Emerv v. Canal Nat. Bank, 3
niff. 507, Fed. Cas. No. 4,446; Re Bax-
•4 li. ed.
ter, 18 Nat. Bankr. Reg. 62, Fed. Cas.
No. 1 A19 ; Re Jordan, 2 Fed, 319.
It follows that the enactment of the
same general rule in the Bankruptcy
Act of 1898 justifies the conclusion that
it was the legislative intent that the
statute of 18^ should bear the same
construction as the corresponding pro-
visions of the earlier Bankruptcy Acts.
Farmers' & M. Nat. Bank v. Ridge
Ave. Bank, 240 U. S. 498, 505, 60 L. ed.
767, 769, L.R,A.1917A, 135, 36 Sup. Ct.
Rep. 461.
Indeed, this construction has had the
sanction of this court.
Re McCoy, 80 C. C. A. 60, 150 Fed.
106; Chapman v. Bowen, 207 U. S. 89,
52 L. ed. 116, 28 Sup. Ct. Hep. 32.
Mr. Monte M. Lemann argued the
cause, and, with Messrs. J. Blanc Mon-
roe and D. B. H. Chaffe, filed a brief
for respondents:
No* basis can possibly be suggested
for the raising of an implied or quasi
contract in this case on the part of Le
More or Carriere individually, since the
transactions were entirely partnership
transactions and the proceeds thereof
inured entirely to the \^enefit of the
partnership.
Keener, Quasi Contr. p. 100; Bigby v.
United States, 188 U. S. 400, 409, 47
L. ed. 519, 524, 23 Sup. Ct. Rep. 468;
Reynolds v. New York Trust Co. 39
L.R.A.(N,S.) 391, UO C. C. A. 409, 188
Fed. 611; Kyle v. Chester, 42 Mont.
522, 37 L.R.A.(N.S.) 230, 113 Pac. 749;
Greer v. Newland, 70 Kan. 310, 70
L.R.A. 554, 109 Am. St. Rep. 424, 77
Pac. 98, 78 Pac. 835, 12 Am. & Eng.
Enc. Law, 2d ed. 695, 696; Waiver of
Tort, by Prof. Keener, 6 Harvard L.
Rev. pp. 223, 269; Prof. Ames, in 2 Har-
vard L. Rev. p. 63; Ijangdell, Eq. Jur.
pp. 38, 39.
Claims in tort of the sort here pre-
sented have never been provable under
any of the Bankruptcy Acts enacted in
this countr>'; nor are they provable
under the Bankruptcy Laws of England.
Dusar v. Xurgatroyd, 1 Wash. C. ('.
13, Fed. Cas. No. 4,199; Doggett v.
Emerson, 1 Woodb. & M. 195, Fed. Cas.
No. 3,962; Re Schwartz, 14 Blatchf.
196, Fed. Cas. No. 12,502; Re Lach-
emeyer, 18 Nat. Bankr. Reg. 270, Fed.
Cas. No. 7,966; Black v. McClelland, 12
Nat. Bankr. Reg. 481, Fed. Cas. No.
1,462; Re Hennocksburgh, 6 Ben. 150,
Fed. Cas. No. 6,367; Re Boston & F.
Iron Works, 23 Fed. 880; Re Schu-
chardt, 8 Ben, 585, Fed. Cas. No.
12,483; Strang v. Bradner, 114 U. S.
219
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
555, 29 L. ed. 248, 5 Sup. Ct. Rep. 1038;
2 Laws of England (Halsbury), p. 197;
Ex parte Stone, 61 L. T. N. S. 83, 37
Week. Rep. 767, 6 Morrell, 158; Ex
parte Baum, L. R. 9 Ch. 673, 44 L. J.
Bankr. N. S. 25, 31 L. T. N. S. 12; Ex
parte Brooke, L. R. 3 Gh. Div. 494, 25
Week. Rep. 261.
Claims in tort are not provable under
the present Bankruptcy Act; § 63b adds
nothing to the catalogue of provable
claims contained in § 63a.
Re Hirschman, 2 N. B. N. Rep. 1123,
104 Fed. 70; Re Jorolemon-Oliver Co.
130 C. C. A. 217, 213 Fed. 625; Colman
Co. V. Withoft, 115 C. C. A. 222, 195
Fed. 250; 6 W^ords & Phrases, 4,985;
3 Words & Phrases, 2d ed. 738; Brown
V. Chicago & N. W. R. Co. 102 Wis. 137,
44 L.R.A. 57, 77 N. W. 748, 78 N. W.
771, 5 Am. Neg. Rep. 255; Central
Trust Co, V. Chicago Auditorium Asso.
240 U. S. 581, 60 L. ed. 811, L.R.A.
1917B, 580, 36 Sup. Ct. Rep. 412; Col-
lier, Bankr. 11th ed. p. 973; Dunbar v.
Dunbar, 190 U. S. 340, 47 L. ed. 1084,
23 Sup. Ct. Rep. 757; Re Southern Steel
Co. 183 Fed. 498; Re Hirschman, 2 N.
B. X. Rep. 1123, 104 Fed. 69; Re Filer,
125 Fed. 261 4 Pindel v. Holgate, 137
C. C. A, 158, 221 Fed. 349, Ann. Cas.
1916C, 983; Re Mullings Clothing Co.
L.R.A.1918A, 539, 151 C. C. A. 134, 238
Fed. 67; Switzer v. Henking, 15 L.R.A.
(N.S.) 1151, 86 C. C. A. 140, 158 Fed.
784 ; Moore v. Douglas, 144 C. C. A. 541,
230 Fed. 400; Re Roth, 31 L.R.A.(N.S.)
270, 104 C. C. A. 649, 181 Fed. 667; Re
Crescent Lumber Co. 154 Fed. 724 ; Col-
lier, Bankr. 11th ed. 1917, p. 976; Black,
Bankr. 1914, § 514; Remington, Bankr.
3d ed. 1915, § 635 ; Brandenburg, Bankr.
1917 ed. § 570; Loveland, Bankr. 4th
ed. 1912^ p. 668; C. J. 1917, 307, 400.
The list of provable claims as enu-
merated in § 63a is not enlarged by the
preceding § 17, either as that section
was originally enacted or as it was
amended in 1903.
United States v. Jackson, 75 C. C. A.
41, 143 Fed. 783; Re Rouse, H. & Co.
33 C. C. A. 356, 63 U. S.- App. 570, 91
Fed. 96; Sutherland, Stat. Constr. §
158; State, Bartlett, Prosecutor, v.
Trenton, 38 N. J. L. 67; State ex rel.
Lutf ring v. Goetze, 22 Wis. 365 ; 26 Am.
& Eng. Ency, Law, 2d ed. 618 ; Ware v.
Hylton, 3 Dall. 199, 233, 1 L. ed. 568,
582; Alexander v. Alexandria, 5 Cranch,
1, 3 L. ed. 19; Williams v. Western &
A. R. Co. 142 Ga. 696, 83 S. E. 525; Vic-
toria v. British Columbia Electric R. Co.
15 B. C. 43; State ex rel. Baughn v.
Ure. 91 Xeh. 31, 135 N. W. 224; 36 Cvc
250
1128; Montclair Twp. v. Ramsdell, 107
U. S. 147, 27 L. ed. 431, 2 Sup. Ct. Rep.
391; Peck v. Jenness, 7 How. 612, 12
L. ed. 841; Friend v. Talcott, 228 U. S.
27, 57 L. ed. 718, 33 Sup, Ct. Rep. 505 ;
Audubon .v. Shuf eldt, 181 U. S. 575, 45
L. ed. 1009, 21 Sup. Ct. Rep. 735; Wet-
more v. Markoe, 196 U. S. 68, 49 L. ed.
390, 25 Sup, Ct. Rep. 172, 2 Ann. Cas.
265; Re United Button Co. 140 Fed.
495; Brown v. United Button Co. 8
UR.A.(N.S.) 961, 79 C. C. A. 70, 149
Fed. 48, 9 Ann. Cas. 445 ; Re New York
Tunnel Co. 86 C. C. A. 556, 159 Fed.
688; Re Southern Steel Co. 183 Fed.
498; Reynolds v. New Ydrk Trust Co.
39 L.R.A.(N.S.) 391, 110 C. C. A. 409,
188 Fed, 611 ; Williams v. United States
Fidelity & G. Co. 236 U. S. 549, 59 L.
ed. 713, 35 Sup. Ct. Rep. 289; Central
Trust Co. V. Chicago Auditorium Asso.
240 U. S. 581, 60 L. ed. 811, L.R.A.
1917B, 580, 36 Sup. Ct. Rep. 412; Kreit-
lein V. Fei^r, 238 U. S. 21, 27, 59 L. ed.
1184, 1186, 35 Sup. Ct. Rep. 685 ; Zavelo
V. Reeves, 227 U. S. 625, 57 L. ed. 676,
33 Sup. Ct. Rep. 365, Ann. Cas. 1914D,
664.
The intention of Congress in amend-
ing § 17 was merely to renew the rule
under the Act of 1867 by which claims
originating in contract and thus prov-
able would be excepted from a dis-
change, even though not reduced to
judgment, if the contract had been pro-
cured by a fraudulent representation.
Black, Bankr. § 743; Loveland,
Bankr. § 760; Collier, Bankr. 9th ed.
390.
If Congress had intended to extend
the class of provable claims, the sim-
plest, most direct, and most certain
way would have been by amending §
63a.
Re Hirschman, 2 N. B. N. Rep. 1123,
104 Fed. 70.
No sufficient reason has been suggest-
ed to impute to Congress an intent to
have a different rule of construction ap-
plied to the Act of 1898 from that
which had been judicially applied to
the similar provisions of the preceding
Act of 1867.
Greenleaf v. Goodrich, 101 U. S, 278,
25 L, ed. 845; 2 Enc. U. S. Sup. Ct. Rep.
p. 137; Fanners' & M. Nat. Bank v.
Ridge Avenue Bank, 240 U. S. 498, 60
L. ed. 767, L.R.A.1917A, 135, 36 Sup.
Ct. Rep. 461.
The transactions out of which the
claims of Muller, Schall, & Company
arose were entirely partnership trans-
actions, and the claims are provable
against the partnership estate alone;
251 V. S.
1919.
SCHALL V. CAMORS.
24&-248
'double proof against the individual es*
tates is not admissible.
Adams v. Deckers Valley Lumber Co.
120 C. C. A. 302, 202 Fed. 48; Re C. H.
Kendrick & Ck). 226 Fed. 980, 35 Am.
Bankr. Rep. 628; Remington, Bankr. 3d
«d. 2121; Re Stevens, 104 Fed. 323;
Davis V. Turner, 66 C. C. A. 669, 120
Fed. 606; ffibberd v. McGill, 64 C. C. A.
158, 129 Fed. 590; Buckingham v. First
l^at. Bank, 65 C. C. A. 498, 131 Fed.
192; Miller v. New Orleans Acid & Fer-
tilizer Co.' 211 U. S. 496, 53 L. ed. 300,
^ Sup, Ct Rep. 176; Reynolds v. New
York Trust Co. 39*L.R.A.(N.S.) 391,
110 C. C. A. 409, 188 Fed. 611 ; Collier,
Bankr. 10th ed. 1917, p. 197; United
States V. Ames, 99 U. S. 35, 44-46, 25
L. ed. 295, 300, 301; Devost v. Twin
State Gas & E. Co. 162 C. C. A. 419, 250
Fed. 352; Farmers' & M. Nat. Bank v.
Ridge Ave. Bank, 240 U. S. 498, 60 L.
ed. 767, L.R.A.1917A, 135, 36 Sup. Ct.
Rep. 461.
It was the special object of the Bank-
ruptcy Act to remove all purely techni-
cal circumstances in the administration
of partnership and individual estates,
and to permit claims to be handled as
justice and equity required.
2 Fed. Stat. Anno. 2d ed. 590.
Mr. Justice Pitney delivered the opin-
ion of the court:
The transactions out of which this
controversy arose took place in the years
1913 and 1914. At that time Le More
and Carriere carried on business as part-
ners in the cities of New Orleans, Louis-
iana, and Mobile, Alabama. Afterwards,
and in the month of May, 1914, upon an
involuntary petition in bankruptcy, the
firm and the individual members thereof
were adjudged bankrupts in the United
States district court for the eastern dis-
trict of Louisiana, New Orleans division,
and the present respondents were elected
and qualified as trustees of both the part-
nership and the individual estates. The
present [247] petitioners, constituting
the firm of Muller, Schall, & Company,
filed three proofs of claim, one against
the partnership and one against each of
the individual partners, all based upon
the same transactions, which consisted of
the purchase by claimants in the city of
New York, through an agent of the bank-
rupt firm named Trippe, of certain bills
of exchange and checks drawn by the
firm upon London, Paris, and Antwerp,
aggregating about $70,000, all of which
Were sold to petitioiiers for full value
on the faith of certain fraudulent repre-
sentations not necessarj' to be specified,
«4 L. ea.
and, at maturity, were presented for
payment, dishonored, and protested, and
notice thereof given to the firm. At the
time of these transactions Le More was
in Europe and Carriere in New Orleans,
and neither of them participated in the
particular transactions, although both
were cognizant of them and responsible
for the false representations. The par-
ticular drafts and checks were not signed
or indorsed by either partner, and nei-
ther profited from their sale except
through his interest in the firm. The
transactions occurred in the ordinary
course of the firm's business, except that
they were fraudulent and the proceeds
of the drafts and checks went to the
credit of the firm and were used in the
conduct of its business. Petitioners*
claim against the partnership is based
upon the drafts and checks as partner-
ship obligations in contract, and also up-
on the damages sustained by reason of
the fraudulent representations. The
claims against the individual estates of
the partners in terms demand only dam-
ages for the false representations, but
are relied upon as showing also, by in-
ference, an individual liability in quasi
contract or equitable debt.
The trustees petitioned the district
court that the latter claims should be ex-
punged. After a hearing the referee in
bankruptcy, for reasons expressed in an
elaborate opinion, ordered that the
claims against the individual [248] es-
tates should be ^'expugned and dis-
allowed,'^ and the rights of claimants to
participate in dividends in such estates
denied. Upon review, the district court
affirmed this order, and, upon appeal,
its decree was affirmed by the circuit
court of appeals, — A.L.R. — , 162 C.
C. A. 178, 250 Fed. 6. A writ of certi-
orari brings the case here.
No question is made as to whether the
referee's order, in wholly expunging the
claims against the individual estates and
denying to petitioners all participation
therein, went too far, in view of the pro-
vision of § 5f of the Bankruptcy Act
(July 1, 1898, chap. 541, 30 Stat at L.
544, 548, Comp. Stat. § 9580, 1 Fed. Stat.
Anno. 2d ed, p. 578), that "should any
surplus remain of the property of any
partner after paying his individual
debts, such surplus shall be added to the
partnership assets and be applied to the
payment of the partnership debts." If
the decision be sustained, petitioners nev-
ertheless will be entitled, upon establish-
ing their claim against the partnership,
to participate as partnership creditors in
anv surplus that may remain of indi-
251
248-250
SUPREMi: COURT OF THE UNITED STATES.
Oct. Term,
vidual assets after payment of individual
debts. What was asserted and overruled
was a right to double proof, establish-
ing a separate and independent liability
on the part of the individual partners
that would give to the claimants, in ad>
dition to their participation in the part-
nership assets, a participation in the in-
dividual assets on equal terms with other
individual creditors, and in preference
to other partnership creditors.
The first and fundamental question is
whether a claim for unliquidated dam-
ages, arising out of a pure tort which
neither constitutes a breach of an ex-
press contract nor results in any unjust
enrichment of the tort-feasor that may
form the basis of an implied contract, is
provable in bankruptcy. This question
was passed upon by the referee and by
the district court; it has been most elab-
orately argued pro and con in this court;
its general importance in the adminis-
tration of the Bankruptcy Act warranted
a review of the case by certiorari; and
hence it is [249] proper that we dis-
pose of it, without regard to whether a
like result might follow, upon the par-
ticular facts of the case, from a deci-
sion of any subordinate question.
Considering, therefore, the question
stated: Among other definitions includ-
ed in § 1 of the Bankruptcy Act is this:
"(11) *debt* shall include any debt, de-
mand, or claim provable in bankruptcy."
Section 63 runs as follows : "Debts which
may be proved. — (a) Debts of the bank-
rupt may be proved and allowed against
his estate which are (1) a fixed liability,
as evidenced by a judgment or an instru-
ment in writing, absolutely owing at the
time of the filing of the petition against
him, whether then payable or not, with
any interest thereon which would have
been recoverable at that date or with a
rebate of interest upon such as were
not then payable and did not bear in-
terest; ... (4) founded upon an
open account, or upon a contract express
or implied; . . .
"(b) Unliquidated claims against the
bankrupt may, pursuant to application
to the court, be liquidated in such man-
ner as it shall direct, and mav thereafter
be proved and allowed against his es-
tate."
In Dunbar v. Dunbar, 190 U. S. 340,
350, 47 L. ed. 1084, 1092, 23 Sup. Ct.
Rep. 767, it was said: "This ^ b, how-
ever, adds nothing to the class of debts
which might be proved under 7 a of the
name section. Its purpose is to permit
an unliquidated claim, coming within
the provisions of S 63a, to be liquidated I
252
as the court should direct." But in Craw-
ford V. Burke, 195 U. S. 176, 187, 49
L. ed. 147, 151, 25 Sup. Ct. Rep. 9, the
question whether the eflfect of T b was to
cause an unliquidated claim, susceptible
of liquidation, but not literally embraced
by t a, to be provable in bankruptcy^
was regarded as still open.
That clause b provides the procedure
for liquidating claims provable under
clause a if not already liquidated, es-
pecially those founded upon an open ac-
count or a contract express or implied,
is entirely clear^ and has been [250]
recognized repeatedly in our decisions.
Frederic L. Grant Shoe Co. v. W. M.
Laird Co. 212 U. S. 445, 447, 448, 53
L. ed. 591, 593, 594, 29 Sup. Ct. Rep.
332; Central Trust Co. v. Chicago Audi-
torium Asso. 240 U. S. 581, 592, 60 L.
ed. 811, 816, L.R.A.1917B, 580, 36 Sup.
Ct. Rep. 412. Has it the further effect
of -admitting all unliquidated claims, in-
cluding those of tortious origin?
Historically, bankruptcy laws, both in
England and in this country, have dealt
primarily and particularly with the con-
cerns of traders. Our earlier bankrupt-
cy acts invariably have been regarded
as excluding from consideration unliqui-
dated claims arising purely ex delicto.
Act of April 4, 1800, chap. 19, 2 Stat,
at L. 19; Dusar v. Murgatroyd, 1 Wash.
C. C. 13, Fed. Cas. No. 4,199; Act of
August 19, 1841, chap. 9, 5 Stat, at L
440; Doggett .v. Emerson, 1 Woodb. &
M. 195, Fed. Cas. No. 3,962; Act of
March 2, 1867, chap. 176, §§ 11 and 10,
14 Stat, at L. 517, 521, 525, U. S. Rev.
Stat. §§ 5014, 5067; Black v. McClelland,
Fed. Cas. No. 1,462; Re Schuchardt, 8
Ben. 585, Fed. Cas. No. 12,483; Re Bos-
ton & F. Iron Works, 23 Fed. 880.
Can it be supposed that the present
act was intended to depart so widely
from the precedents as to include mere
tort claims among the provable debts?
Its 63d section does not so declare in
terms, and there is nothing in the his-
tory of the act to give ground for such
an inference. It was the result of a long
period of agitation, participated in by
commercial conventions, boards of trade,
chambers of commerce, and other com-
mercial bodies. To say nothing of meas-
ures proposed in previous Congresses, a
bill in substantially the present form was
favorably reported by the Committee on
the Judiciary of the House of Repre-
sentatives in the first session of the
54th Congress. Having then failed of
passage, it was submitted again in the
second session of the 55th Congress as a
.substitute for a Senate bill; after di«-
251 17. S»
11>1».
SCIIALL V. CAMORS,
2G0-2ri:)
agreeing votes of the two Houses, it
went to conference, and as the result of
a conference [251] report became law.
It is significant that § 63, defining
^'debts which may be proved," remained
unchanged from first to last, except for
a slight and insignificant variance in
clause (5) in the 'final print, the word
^'interests" having been substituted for
^^interest.'* House Kept. No. 1228, 54th
Cong. Ist Sess. p. 39; House Rept. No.
65, 55th Cong. 2d Sess. p. 21; Senate
Doc. No. 294, 55th Cong. 2d Sess. p. 22.
Evidently the words of the section were
Carefully chosen; and the express men-
tion of contractual obligations natural-
ly excludes those arising from a mere
tort. Since claims founded upon an
open account or upon a contract express
or implied often require to be liquidated,
.some provision for procedure evidently
was called for; clause b fulfils this func-
tion, and would have to receive a
strained interpretation in order that it
should include claims arising purely ex
delicto. Such claims might easily have
been mentioned if intended to be in-
cluded. Upon every consideration, we
are clear that claims based upon a mere
tort are not provable. Where the tor-
tious act constitutes at the same time a
breach of contract, a different question
may be raised, with which we have no
}>resent concern ; and where, by means of
the tort, the tort-feasor obtains some-
thing of value for which an equivalent
price ought to be paid, even if the tort
as such be forgiven, there may be a prov-
able claim quasi ex contractu. Craw-
ford V. Burke, supra; Tindle v. Birkett,
205 U. S. 183, 186, 51 L. ed. 762, 764,
27 Sup. Ct. Rep. 493; Clarke v. Rogers,
106 C. C. A. 64, 183 Fed. 518, 521, 522,
affirmed in 228 U. S. 534, 543, 57 L. ed.
953, 957, 33 Sup. Ct. Rep. 587.
Of course, §§ 63 and 17 are to be read
together. The reference in the latter
section to '^provable debts," defined in
the former, would be sufficient to show
this. See Crawford v. Burke, 195 U. S.
176, 193, 49 L. ed. 147, 153, 25 Sup. Ct.
Kep. 9; Tindle v. Birkett, 205 U. S. 183,
186, 51 L. ed. 762, 764, 27 Sup. Ct. Rep.
493; Friend v. Talcott, 228 U. S. 27, 39,
57 L. ed. 718, 723, 33 Sup. Ct. Rep. 505;
Clarke v. Rogers, 228 U. S. 534, 548, 57
L. ed. 953, 959, 33 Sup. Ct. Rep. 587.
It is petitioners^ contention that § 17, as
amended in 1903 (Act of Februarv 5,
1903, chap. 487, § 5, 32 Stat, at L. 797,
798, Comp. Stat. § 9C01), amounts to a
legislative [252] construction admitting
tort claims, to proof. The section as it
stood before, and the nature of the
61 li. ed.
amendment, are set forth in the mar-
gin.* We are referred to the Commit-
tee's report (House Rept. No. 1698, 57th
Cong. Ist Sess. pp. 3, 6) as indicating
that, by the law as it stood, in the opin-
ion of the Committee, claims created by
fraud, but not reduced to judgment,
were dischai'ged; reference having been
made to Re Rhutassel, 96 Fed. 597, and
Re Lewensohn, 2 N. B. N. Rep. 381, 99
Fed. 73, affirmed in 44 C. C. A. 309, 104
Fed. 1006, as contradictory decisions
upon the point. But neither the report
of the Committee nor the language of
the amendment gives the least sugges-
tion of an intent to enlarge the descrip-
tion of provable claims as set forth in §
63. On the contrary, the purpose was
to limit more [253] narrowly the effect
of a discharge by enlarging the class of
provable debts that were to be excepted
from it. By the terms of the section,
both before and after amendment, the
scope of the exception was qualified by
the fact that the discharge released the
bankrupt only from **provable debts."
I Section as originally enacted (30 Stat,
at L. 550. chap. 541. Comp. Stat. § 9601,
1 Fed. Stat. Anno. 2d ed. 708).
*'Sec. 17. Debts not affected by a din-
charge. — (a) A discharge in bankruptcy
Hhall release a bankrupt from all of hi»
provable debts, except such as (1) are due
as a tax levied by the United States, tlie
state, county, district, or municipality in
which he resides; {2) are judgmenta in ac-
tions for frauds, or obtaining property 6i/
false pretenses or false representations, or
for trilful and malicious injuries to the
person or property of another; (3) have
not been duly scheduled in time for proof
and allowance, with the name of the cred-
itor^if known to the bankrupt, unless such
creditor had notice or actual knowledge
of the proceedings in bankruptcy; or (4i
were created by his fraud, embezzlement,
misappropriation, or defalcation while act-
ing as an oHicer or in any fiduciary capac-
ity."
Amendment of 1003 (32 Stat, at L. 798.
chap. 487, Comp. Stat. § 9601 ) inserted in
the place of clause 2 the following:
*'(i) are liabilities for obtaining prop-
erty by false pretenses or false representa-
tions, or for icilftil and malicious injuries
to the person or property of another, or
for alimony due or to become due, or for
maintenance or support of ic4fe or child, or
for seduction of an unmarried female, or
for criminal vonrersntion.''*
XoTE: By a further amendment (Act of
March 2, VMl, chap. 153, 39 Stat, at L.
909, Corap. SUt. § 9601) there was in-
serted after the word "female," instead of
*'or for criminal conversation," the follow-
ing: "or for breach of promise of marriage
accompanied by seduction, or for criminal
iitnrrrsation.'^
253
253-256
SLPRKMi: COURT OF THE UNITED STATES.
Oct. Tixm^
And if the excepting clause as amended
might seem to extend to some claims
not otherwise provable, its own force
must be deemed to be limited by refer-
ring to § 63 for the, definition of prov-
ability. It is not admissible to give to
this amendment, confessedly designed
to re3trict the scope of a discharge in
bankruptcy, the effect of enlarging the
class of provable claims.
Aside from § 17 or the amendment
thereof, it has been held by the Federal
courts generally that § 63 does not au-
thorize the liquidation and proof of
claims arising ex delicto and unaffected
by contract, express or implied. Re
Hirsehman, 2 N. B. N. Rep. 1123, 104
Fed. 69-71; Re Yates, 114 Fed. 365,
367; Re Crescent Lumber Co. 154 Fed.
724, 727; Re Southern Steel Co. 183 Fed.
498.
And that the amendment of § 17 does
not enlarge the class of provable claims
enumerated in § 63 has been recognized
in several well-considered decisions of
the Federal courts, which have held, up-
on satisfactory grounds, that pure toft
claims are not provable. Re United But-
ton Co. 140 Fed. 495, 499, et seq.; s. c
on appeal, Brown v. United Button Co.
8 L.R.A.(N.S.) 961, 79 C. C. A. 70, 149
Fed. 48, 52, 53, 9 Ann. Cas. 445; Re
New York Tunnel Co. 86 C. C. A. 556,
159 Fed. 688, 690. In Jackson v. Wau-
chula Mfg. & Timber Co. 144 C. C. A.
551, 230 Fed. 409, 411, and again in
the present case ( — A.L.R. — , 162 C. C.
A. 178, 250 Fed. 7), the circuit court
of appeals for the fifth circuit passed
the question as unnecessary for the deci-
sion.
There is an argument ab inconvenienti,
based upon the supposed danger that if
tort claims he held not provable they
may be preferred by failing debtors
without redress [254] under § 60, a
and b (30 Stat, at L. 562, chap. 541,
amended February 5, 1903, chap. 487, §
13, 32 Stat, at L. 797, 799, amended
June 25, 1910, chap. 412, § 11, 36 Stat,
at L. 838, 842, Comp. Stat. § 9644, 1
Fed. Stat. Anno. 2d ed. p. 1026), held to
apply only to provable claims (Richard-
son V. Shaw, 209 tJ. S. 365, 381, 52 L. ed.
835, 843, 28 Sup. Ct. Rep. 512, 14 Ann.
Cas. 981 ; see also Clarke v. Rogers, 228
U. S. 534, 542, 57 L. ed. 953, 957, 33 Sup.
Ct. Rep. 587). We are not much im-
pressed. If there be danger of mischief
here, other than such as may be reached
under the provisions of § 67e or § 70e,
respecting fraudulent conveyances and
transfers (see Dean v. Davis, 242 U. S.
438, 444, 61 L. ed. 419, 421, 37 Sup. Ct.
Rep. 130), the Congress mav be trusted
254
to supply the remedy by an appropriate
amendment.
It is insisted by i>etitioners, further,
that because the proofs of the individual
claims establish the responsibility of
each partner for the frauds, they are
liable in solido not only as partners, but
individually; and that, irrespective of
whether the claims are provable in tort
for the fraud, they are provable and
were properly proved both against the
individual partners and against the firm
as claims in quasi contract or equitable
debt. But as the basis of a liability of
this character is the unjust enrichment
of the debtor, and as the facts show that
no benefit accrued to the individuals as
a result of the frauds beyond that which
accrued to the firm, the logical result
of the argument is that out of one en-
richment there may arise three separate
and independent indebtednesses. Doubt-
less it would be conceded that a single
satisfaction would discharge all of the
claims; but we are dealing with a situa-
tion where, by reason of insolvency, it is
not to be presumed that claims will be
satisfied in full; and, as already pointed
out, the effect of sustaining the right
to double proof would be to give peti-
tioners not only a right to share in the
partnership assets on equal terms with
other partnership creditors, but a par-
ticipation in the individual assets on
equal terms with other individual cred-
itors and in preference to other partner-
ship creditors. Section 5 of the Bank-
ruptcy Act (30 Stat, at L. 547, 548, chap.
541, Comp. Stat. § 9589, 1 Fed. Stat
Anno. 2d ed. p. 578) establishes on a
firm basis the respective [255] equities
of the individual and firm creditors.^
8 "Sec. 5. Partners. — . . .
"(d) The trustee shall keep separate ac-
counts of thd partnership property and of
the property belonging to the individual
partners.
........
"(f) The net proceeds of the partner-
ship property shall be appropriated to the
payment of the partnership debts, and the
net proceeds of the individual estate of
each partner to the payment of his indi-
vidual debts. Should any surplus remain
of the property of any partner after pay-
ing his individual debts, such surplus snail
be added to the partnership assets and be
applied to the payment of the partnership
debts.
"(ff) The court may permit the proof of
the claim of the partnership estate against
the individual estates, and vice versa, and
may marshal the assets of the partnership
estate and individual estates so as to pre-
vent preferences and secure the equitable
distribution of the property of the several
estates.
251 V. S.
1919.
MERGENTUALEK LINOTYPE CO. v. DAVIS.
255, 25 tf
Hence the distinction between individ-
ual and firm debts is a matter of sub-
stance, and must depend upon the essen-
tial character of the transactions out of
which they arise. And since, in this
case, the tort was done in the course of
the partnership business, for the benefit
of the firm and without benefit to the
partners as individuals, no legal or
equitable claim as against the individ-
uals that might be deemed to arise out
of it, by waiver of the tort or otherwise,
can displace the equities of other cred-
itors, recognized in the Bankruptcy Act,
and put petitioners in a position of
equality with others who actually were
creditors of the individual partners,
and of preference over other firm cred-
itors. Reynolds v. New York Trust Co.
39 L.R.A.(N.S.) 391, UO C, C. A. 409,
188 Fed. 611, 619, 620.
Decree af&rmed.
[2561 MERdENTHALER LIKOTYPE
COMPANY, Plff. In Err.,
.V.
SAMUEL W. DAVIS and W. B. Hayes.
(See 8. C. Reporter's ed. 256-259.)
Error to state court — when Judgment
is that of highest state court.
1. A judgment of a Missouri court of
Mpeals which reversed the judgment below
alter the state supreme court had, on cer-
tiorari, quashed a prior judgment of affirm-
ance in the court of appeals, and had re-
manded the cause to that court for deci-
sion, is a judgment of the highest state
court for purposes of a writ of error from
the Federal Supreme Court.
[For other cases, see Appeal and Error, 1140-
1167. 2616-2634, In Digest Sup. Ct. 1908.1
Bn;or to state court — Federal question
•— when raised too late.
2. A Federal question first raised on
motion for rehearing in a state appellate
court comes too late to serve as t)ie basis
of a writ of error from the Federal Supreme
Court.
CBV>r other cases, see Appeal and Error, 1262-
1310. in Digest Sup. Ct. 1908.]
Error to state court — - Federal question
— error or certiorari.
3. The assertion of a title, right, priv-
il^e, or immunity under the Federal Con-
stitution may afford the basis for a writ of
certiorari from the Federal Supreme Court
to a state court, but it constitutes no groimd
for a writ of error.
[No. 192.]
Submitted on motion to dismiss December
8, 1919. Decided January 5, 1920.
IN ERROR to the Springfield Court of
Appeals of the State of Missouri to
review a judgment which, conformably
to the mandate of the Supreme Court of
the state, reversed a judgment of the
Circuit Court of Buckner County in
favor of plaintiff, a foreign jjorporation,
in a suit for rentals under a lease of a
machine. Dismissed for want of juris-
diction.
See same case below, in Supreme
Court, 271 Mo. 476, 196 S. W. 1132; in
Court of Appeals, — Mo. App. — , 202
S. W. 300.
The facts are stated in the opinion.
Note. — ^As to when judgment sought
to be reviewed in Federal Supreme
Court is that of highest state court —
see note to Norfolk & S. Tump. Co. v.
Virginia, 56 L. ed. U. S. 1082.
As to when Federal question is raised
in time to sustain appellate jurisdiction
of the Federal Supreme Court over
state courts — see note to Chicago, I. &
L. R. Co. V. McGuire, 4d L. ed. U. S.
414.
On the general subject of writs of
error from the United States Supreme
Court to state courts — see notes to
Martin v. Hunter, 4 L. ed. U. S. 97;
EEamblin v. Western Land Co. 37 L. ed.
U. S. 267; Re Buchanan, 39 L. ed. U. S.
884 and Kipley v. Illinois 42 L. ed. U. S.
998.
On what adjudications of state courts
ean be brought up for review in the
Supreme Court of the United States by
writ of error to those courts — see note
•4 Jj. ed.
to Apex Transp. Co. v. Garbade, 62
L.R.A. 513.
On how and when questions must be
raised and decided in a state court in
order to make a case for a writ of error
from the Supreme Court of the United
States — see note to Mutual L. Ins. Co.
V. McGrew, 63 KR.A. 33.
On what the record must show re-
specting the presentation and decision
of a Federal question in order to confer
jurisdiction on the Supreme Court of
the United States on a writ of error to
a state court — see note to Hooker v.
Los Angeles, 63 L.R.A. 471.
On what questions the Federal Su-
preme Court will consider in reviewing
the judgments of state courts — see note
to Missouri ex rel. Hill v. Dockery, 63
L.R.A. 571.
On certiorari to state courts — see
notes to Andrews v. Virmiian R. Co. 63
L. ed. U. S. 236; and Bruce v. Tobin,
62 I^ ed. U. S. 123.
SI PUKMK COURT OF THE UXITKI) STATES.
Oct. Term,
Mr. Bradford Butler submitted the
cause for plaintiff in error:
AVhere the record shows that the con-
stitutional question was treated by the
state court as being involved in the
ease, and is distinctly passed upon by
it, it will be held to be open to exam-
ination by the United States Supreme
Court on writ of error.
Mvles Salt Co. v. Iberia & St. M.
Drainage Dist. 239 U. S. 478, 60 L. ed.
392, L.R.A.1918E, 190, 36 Sup. Ct. Rep.
204; Cleveland & P. R. Co. v. Cleveland,
235 U. -S. 50, 59 L. ed. 127, 36 Sup. Ct.
Rep. 21; Mallinckrodt Chemical Works
V. Missouri, 238 U. S. 41, 59 L. ed. 1192,
35 Sup. Ct. Rep. 671; Miedrich v.
Lauenstein, 232 U. S. 236, 58 L. ed. 584,
34 Sup. Ct. Rep. 309; North Carolina R.
Co. v. Zachary, 232 U. S. 248, 58 L. ed.
591, 34 Sup. Ct. Rep. 305, Ann. Cas.
1914C, 159, 9 N. C. C. A. 109; Carlson
v. Washington, 234 U. S. 103, 58 L. ed,
1,237, 34 Sup. Ct. Rep. 717; Grannis v.
Ordean, 234 U. S. 385, 58 L. ed. 1363,
34 Sup. Ct. Rep. 779; Kentucky Union
Co. V. Kentucky, 219 U. S. 140, 55 L. ed.
137, 31 Sup. Ct. Rep. 171; Appleby v.
Buffalo, '221 U. S. 524, 55 L. ed. 838, 31
Sup. Ct. Rep. 699; Illinois C. R. Co. v.
Kentucky, 218 U. S. 551, 54 L. ed. 1147,
31 Sup. Ct. Rep. 95 ; Chambers v. Bal-
timore & 0. R. Co. 207 U. S. 142, 52
L. ed. 143, 28 Sup. Ct. Rep. 34; Mon-
tana ex rel. Haire v. Rice, 204 U. S.
291, 51 L. ed. 490, 27 Sup. Ct. Rep. 281 ;
Cincinnati, P. B. S. & P. Packet Co. v.
Bay, 200 U. S. 179, 50 L. ed. 428, 26
Sup. Ct. Rep. 208; Mutual L. Ins. Co.
V. McGrew, 188 U. S. 291, 47 L. ed. 480,
63 L.R.A. 33, 23 Sup. Ct. Rep. 375;
Farmers' & M. Ins. Co. v. Dobney, 189
U. S. 301, 47 L. ed. 821, 23 Sup. Ct. Rep.
565; Sweringen v. St. Louis, 185 U. S.
38, 46 L. ed. 795, 22 Sup. Ct. Rep. 569;
Erie R. Co. v. Purdy, 185 U. S. 148, 46
L. ed. 847, 22 Sup. Ct. Rep. 605; Mal-
lett V. North Carolina, 181 U. S. 590>
45 L. ed. 1015, 21 Sup. Ct. Rep. 730, 15
Am. Crim. Rep. 241.
The writ of error in this case was
properly directed to the judgment of
the Springfield court of appeals, as that
was the only final judgment in the ac-
tion, and under the Missouri Constitu-
tion, as construed by the Missouri
supreme court, this was the judgment
of the highest court of the state in
which a determination in the matter
could be had.
Mitchell V. Joplin Nat. Bank — Mo.
256
— , 201 S. W. 903; Hawkins v. St. Louis
& S. F. R. Co. — Mo. App. — , 202 S. W.
1060; State v. Chicago, M. & St. P. R.
Co. 272 Mo. 520, 199 S. W. 121 ; Knapp
Bros. Mfg. Co. V. Kansas City Stock-
yards Co. — Mo. — , 199 S. W. 168;
Lewis V, New York L. Ins. Co. — Mo.
— , 201 S. W. 851; Non-Royalty Shoe
Co. V. Phcenix Assur. Co. — Mo. — ,
210 S. W. 37; State v. Swift & Co. 270
Mo. 694, 195 S. W. 996; State v. Wild,
— Mo. — , 190 S. W. 273; State v,
Evertz, — Mo. — , 190 S. W. 287 ; Don-
oho v. Missouri P. R. Co. — Mo. — ^
184 S. AV. 1149; Schmohl v. Travelers'
Ins. Co. — Mo. — , 197 S. W. 60; Curtis
V. Sexton, 252 Mo. 221, 159 S. W. 512:
State ex rel. Arel v. Farrington, 272
Mo. 157, 197 S. W. 912; State ex rel.
Miles V. Ellison, 269 Mo. 151, 190 S. W.
274; Harrison v. Jackson County, —
Mo. — , 187 S. W. 1183; Roeder v.* Rob-
ertson, 202 Mo. 522, 100 S. W. 1086:
Bruce v. Tobin, 245 U. S*. 18, 62 L. ed.
123, 38 Sup. Ct. Rep. 7; Qv&ys Harbor
Logging Co. V. Coats-Fordney Logging
Co. (Washington ex rel. Gravs Harbor
Logging Co. V. Superior Ct.),*243 U. S.
251, 61 L. ed. 702, 37 Sup. Ct. Rep. 295;
Louisiana Nav. Co. v. Oyster Commis-
sion, 226 U. S. 99, 57 L. ed. 138, 33 Sup.
Ct. Rep. 78; Norfolk & S. Tnrnp. Co. v.
Virginia, 225 U. S. 264, 56 L. ed. 1082,
32 Sup. Ct. Rep. 828; Western U. Teleg.
Co. v. Crovo, 220 U. S. 364, 55 L. ed.
498, 31 Sup. Ct. Rep. 399; Cornell S. B.
Co. V. Phcenix Constr. Co. 233 U. S. 593,
58 L. ed. 1107, 34 Sup. Ct. Rep. 701.
Messrs. Ernest A. Oreen and J. 0.
Sheppard submitted the cause for de-
fendants in error. Mr. A. L. Sheppard
was on the brief:
This court is without jurisdiction to
review the decision of the Springfield
court of appeals of the state of Mis-
souri upon a writ of error.
Philadelphia* & R. Coal & I. Co. v.
Gilbert, 245 U. S. 162, 62 L. ed. 221, 38
Sup. Ct. Rep. 58.
The assertion of a right, title, priv-
ilege, or immunity under the Federal
Constitution must be specially set up or
claimed in the state court in order to
authorize a review in this court.
Eastern Bldg. & L. Asso. v. Welling,
181 U. S. 47, 45 L. ed. 739, 21 Sup. Ct.
Rep. 531; Michigan Sugar Co. v. Mich<
igan (Michigan Sugar Co. v. Dix), 185
U. S. 112, 46 L. ed. 829, 22 Sup. Ct. R^.
581; F. G. Oxley Stave Co. v. Butler
251 r. 8.
1919.
MERGKNTUALKK IJNOTiPK CO. v. DAVl.s.
257, 2r*8
County, 166 U. S. 648, 41 L. ed. 1149,
17 Sup. Ct. Rep. 709.
Asaifpiment of errors cannot be
availed of to import questions into a
cause which the record does not show
were raised in the court below.
Ansbro v. United States, 159 IT. S.
695, 698, 40 L. ed. 310, 311, 16 Sup. Ct.
Rep. 187; Muse v. Arlington Hotel Co.
168 U. S. 430, 435, 42 L. ed. 531, 532, 18
Sup. Ct. Rep. 109; Cornell v. Green, 163
U. S. 75, 41 D. ed. 76, 16 Sup. Ct. Rep.
969.
This court is without jurisdiction of
this writ of error because certiorari
would be the only proper method of re-
viewing this judgment, since there is no
question involved in this case as to the
^constitutionality of a state statute.
Hartford L. Ins. Co. v. Johnson, 249
IT. S. 490, 63 L. ed. 722, 39 Sup. Ct Rep.
336.
The writ of error should be dismissed
because not sued out from the highest
court of the state of Missouri in which
a final decision in this suit and matter
was had.
Craycroft v. Atchison, T. & S. F. R.
Co. 18 Mo. App. 487; State ex rel.
Dugan V. Kansas City Ct. of Appeals, 106
Md. 299, 16 S. W. 853; State ex rel.
Mulholland v. Smith, 141 Mo. 1, 41 S.
W. 906; Collins v. German American
Mut. Life Asso. 85 Mo. App. 242;
Woody V. St. Louis & S. F. R. Co. 173
Mo. 549, 73 S. W. 475; State ex rel.
Kansas City Loan Guarantee Co. v.
Smith, 176 Mo. 44, 75 S. W. 468; Loh-
meyer v. St. Louis Cordage Co. 214 Mo.
685, 113 S. W. 1108; Ejreyling v.
O^Reilly, 97 Mo. App. 384, 71 S. W.
372; Hartzler v. Metropolitan Street R.
Co. 218 Mo. 562, 117 S. W. 1124; State
V. Metcalf, 65 Mo. App. 681; Kirkwood
V. Meramec Highlands Co. 94 Mo. App.
637, 68 S. W. 761; Shewalter v. Mis-
souri P. R. Co. 152 Mo. 544, 54 S. W.
224; Missouri, K. & T. R. Co. v. Smith,
154 Mo. 300, 55 S. W. 470; Harburg v.
Arnold, 87 Mo. App. 326; Thompson v.
Irwin, 76 Mo. App. 418; Sage v. Reeves,
17 Mo. App. 210; Mt. Vernon- Wood-
berry Cotton Duck Co. v. Alabama In-
terstate Power Co. 240 U. S. 31, 60 L.
ed. 510, 36 Sup. Ct. Rep. 234; Stratton
V. Stratton, 239 U. S. 55, GO L. ed. 142,
36 Sup. Ct. Rep. 26; Atlantic Coast
Line R. Co. v. Mims, 242 U. S. 535, 61
L. ed. 479, 37 Sup. Ct. Kep. 188, 17 N.
C. C. A. 349; Cleveland & P. R. Co. v.
Cleveland, 235 U. S. 53, 59 L. ed. 128,
35 Sup. Ct. Rep. 21.
64 Ti. od.
[257] Mr. Justice McBeynolds de-
livered the opinion of the court:
Dismissal of this writ is asked — first,
because it does not run to a final judg-
ment '4n the highest court of the state
in which a decision in the suit could be
had," second, because there was not
properly drawn in question below "the
validity of a treaty or statute of, or an
authority exercised under the United
States," or "the validity of a statute of,
or an authority exercised under any
state, on the ground of their being re-
pugnant to the Constitution, treaties, or
laws of the United States." Judicial
Code, § 237, Act September 6, 1916,
chap. 448, 39 Stat, at L. 726, Comp. Stat.
§ 1214, Fed* Stat. Anno. Sxxpp. 1918, p.
411; Coon v. Kennedy, 248 U. S. 457, 63
L. ed. 358, 39 Sup. Ct Rep. 146; God-
chaux Co. V. Estopinal, decided Decem-
ber 22, 1919 [251 U. S. 179, ante, 213,
40 Sup. Ct. Rep. 116].
The trial court, proceeding without
jury, gave judgment for rentals due the
Linotype Company under written lease
of a machine, etc. The Springfield court
of appeals affirmed that action. There-
upon the supreme court took jurisdiction
by writ of certiorariyrendered an opin-
ion, quashed the jud^ent of affirmance,
and remanded thcfause to the court of
appeals for decision. 271 Mo. 475, 196
S. W. 1132.
Following the supreme court's opinion,
the court of appeals ordered the judg-
ment of the tfial court "reversed, an-
nulled, and for naught held and es-
teemed; that the said appellants be
restored to all they have lost by reason
of the said judgment; that the said ap-
pellants recover of the said respondent
costs and charges herein expended, and
have execution therefor." A motion
there for rehearing having been over-
ruled, without more, this writ of error
was sued out.
The assignments of error here chal-
lenge the validity of §§ 3037-3040 and
§ 3342, Revised Statutes of Missouri
1909, because in conflict with the Federal
Constitution. This claim was first set
up in the court of appeals upon the mo-
tion for rehearing.
[258] The Missouri Constitution
gives the supreme court "superintend-
ing control over the courts of ap-
peals by mandamus, prohibition, and
certiorari/' and provides that "the last
previous rulings of the supreme court
on anv question of law or equity shall,
17*
2.>4
2o8, 259
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
in all oases, be controlling authority in
said courts of appeals." In State ex
rel. Atchison, T. & S. P. R. Co. v. Elli-
son, 268 Mo. 225, 238, 186 S. W. 1076,
a proceeding upon a certiorari, the
court declared: "We can undo what the
court of appeals has done; . . . and
we can send the record back to them to
be heard anew by them, . . . but
in the Kansas City court of appeals
alone lies the jurisdiction to hear and
to correctly and finally determine the
case to which the instant proceeding is
ancillary." See also State ex rel. Miles
V. Ellison, 269 Mo. 151, 190 S. W. 274;
Schmohl V. Travelers' Ins. Co. — Mo.
— , 197 S. W. 60.
In the present cause, the supreme
court said: ^'This is an original pro-
ceeding by certiorari. . . . It is urged
by relator as his ground for quashal,
that the opinion of the court of appeals
is ii^ conflict with the case of United
Shoe Machinery Co. v. Bamlose, 210 Mo.
631, 109 S. W. 567. .. . If this de-
cision be opposed to what we said, or
the conclusion which we reached upon
similar facts (if the facts are similar)
in the Ramlose Case, we ought to quash
the judgment of the court of appeals.
This is the sole question to be deter*
mined."
Under the Missouri practice and cir-
cumstance9 here disclosed, we think the
judgment of the Springfield court of ap-
peals was final within the meaning of
§ 237, Judicial Code. No suggestion is
made that further review by the supreme
court could be had, as matter of discre-
tion or otherwise.
The only ground mentioned in the as-
signments of error upon which this writ
could be sustained is conflict between
specified sections of the Missouri stat-
utes relating to 4;ransaetions by foreign
corporations and the Federal Constitu-
tion. But this point came too late, being
first [250] advanced below on the mo-
tion for rehearing. Gk)dchaux Co. t.
Estopinal, supra.
The claim that the lease contract was
made in course of interstate commerce,
and therefore not subject to state stat-
utes, was insufScient to challenge the
validity of the latter; at most it but
asserted a "title, right, privilege, or im-
munity" under the Federal Constitution
which might afford basis for certiorari,
but constitutes no ground for writ of
error from this court.
Dismissed.
2.'S8
SOUTHERN PACIFIC COMPANY, Petl
tioner,
V.
INDUSTRIAL ACCIDENT COIUMISSIOK
of the State of California and Mary £.
Butler and Albert Nelson Butler, a
Minor, by Mary £. Butler, His Quardiao
ad Litem.
(See S. C. Reporter's ed. 259-263.)
Master and servant — employers* lia-
bility — when servant is engaged in
interstate commerce.
1. Generally, when the applicability of
the Federal Employers' Liability Act is un-
certain, the character of the employment in
relation to commerce may be aaeqnately
tested by inquiring whether, at the time ai
the injury, the employee was enga^ged ia
work so closely connected with interstate
transportation aa practically to be a part
of it.
[For other cases, see Matter and Serrant, n.
a, 2, \>, in Digest Sup. Ct. 1908.]
Master and serrant — employers' lia-
bility — when servant is engaged in
interstate commerce •— electric lin^
2. The work of an electric lineman in
wiping ineulatora on one of the main elec-
tric cables of an interstate railway carrier-
running from a power house to a redne-
tion and transforming station, whence the
current ran to the trolley wires and thence
to the motors of the carrier's oars engaged
in both intrastate and interstate oommerosy
is so directly and intimately connected witli
interstate teansportation as to reader a
state workmen's compensation law inappU*
cable, where' the lineman was killed as the
result of an electric shock received wkile to
engaged.
[For other cases, see Master and Serraat, U.
a, 2, b; Commerce, I. c, in Digest SagK Ct
1908.1
[No. 118.]
Submitted December 18, 1919. Decided
January 5> 1920.
ON WRIT of Certiorari to the Supreme
Court of the State of California to
review a judgment which affirmed an
award of the state Industrial Accident
Commission. Reversed and remanded
for further proceedings.
See same ease below, 178 CaL 20, 171
Pac. 1071.
The facts are stated in the opinion.
Note. — On the constitutionality, ap-
plication, and effect of the Federal
Employers' Liability Act — see notes to
Lamphere v. Oregon R. & Nav. Co. 47
L.R.A.(N.S.) 38; and Seaboard Air
Line R. Co. v. Horton, LJI.A.1915C, 47.
251 V. 8.
iixD.
' o
SOUTHERN P. CO. v. INDUSTRIAL ACCl. COM.
Messrs. Henky 0: Booth and William
F. Herrin sabmitted the cause for pe-
titioner:
The writ of certiorari was properly
granted.
Philadelphia & B. Coal & I. Co. v.
GUbert, 245 U. S. 162, 62 L. ed. 221, 38
Sup. Ct. Rep. 58; Stadelman v. Miner,
346 U. S. 544, 62 L. ed. 875, 38 Sup. Ct.
Bep. 359; Cave v. Missouri, 246 U. S.
650, 62 L. ed. 921, 38 Sup. Ct. Rep.
334; North^n P. B. Co. v. Solum, 247
U. S. 477, 481, 62 L. ed. 1221 1225, 38
SiqpL Ct Bep. 550; Ireland v. Woods, 246
U. 8. 323-330, 62 L. ed. 745-750, 38 Sup.
Ct Bep. 319.
The instant case falls under the Fed-
eral Emjrfoyers' Liability Act because
deceased was doing the act for the pur-
pose of farthering the work of inter-
state eommerce (Louisville & N. R. Co.
V. Pariter, 242 U. S. 13, 14, 61 L. ed.
119, 120, 37 Sup. Ct. Rep. 4), and was
engaged in keeping in usable condition
an instrument then in use in such inter-
state transportation (Shanks y. Del*
aware, L. & W. R. Co. 239 U. S. 556-
560, 60 L. ed. 436-439, L.B.A.1916C,
797, 36 Sup. a. Rep. 188), and was
keeping instrumentalities- in a propter
state of repair while used in interstate
commerce, which service is so closely re-
lated to such commerce as to be in prac-
tice and legal contemplation a part of
it (Pedersen v. Delaware, L. ft W. B.
Co. 229 U. S. 149-151, 57 L. ed. 1127,
1128, 33 Sup. Ct Bep. 648, Ann. Caa.
1914C, 153, 3 N. C. C. A. 779).
All section men and track laborers,
while working on or repairing any part
of the track or switches used by a com-
mon carrier or railroad indiscriminately
for both interstate and intrastate com-
merce, are employed in interstate com-
merce within the meaning of the Fed-
eral Employers' Liability Act.
New York C. B. Co. v. Winfleld, 244
U. S. 147, 61 L. ed. 1045, L.B.A.1918C,
439, 37 Sup. Ct. Rep. 546, Ann. Cas.
1917D, 1139, 14 N. C. C. A. 680; St. Jo-
seph & G. I. R. Co. V. United States, 146
C. C. A. 397, 232 Fed. 349; Philadelphia,
B. & W. R. Co. V. McConnell, 142 C. C.
A. 555, 228 Fed. 263; Columbia & P. S.
R, Co. V. Sauter, 139 C. C. A. 150, 223
Fed. 604; Lombardo y. Boston & M. B.
Co. 223 Fed. 427; Tralich v. Chicago, M.
& St P. B. Co. 217 Fed. 675; San Pedro,
L A. & S. L. R. Co. V. Davide, 127 C. C.
A. 454, 210 Fed. 870; Central B. Co. ▼.
Colasurdo, 113 C. C. A. 379, 192 Fed.
901; Zikos v. Or^;on B. & Nav. Co. 179
Fed. 893.
In Southern B. Co. v. McGuin, 153
CI L. ed.
C. C. A. 447, 240 Fed. 649, it is held
that a section man who was working
with a road engineer in setting stakes,
with the view of improving a curve by
a slight change in track, was employed
in interstate commerce.
In St. Louis, S. F. & T. R. Co. v.
Scale, 229 U. S. 156, 57 L. ed. 1129, 33
Sup. Ct. Rep. 651, Ann. Cas. 1914C, 156,
a clerk was held to be employed in in-
terstate commerce when he was on his
way through a railroad yard to meet
an inbound interstate freight train, and
to mark the cars so that the switching
crew would know what to do with them
when breaking up the train.
Messrs. Ohristopher M. Bradley and
Warren H. PiUsbury submitted the
cause for respondents:
The deceased employee was not en-
gaged in interstate commerce within the
meaning of the Federal Employers' lia-
bility Act
Shanks v. Delaware, L. & W. B. Go.
239 U. S. 556, 60 L. ed. 436, L.B.A.
1916C, 797, 36 Sup. Ct Bep. 188; re-
versing 214 N. Y. 413, 108 N. E. 64^
Ann. Cas. 1916E, 467; Illiriois C. B. Co.
V. Cousins, 241 U. S. 641, 60 L. ed. 1216,
36 Sup. Ct. Bep. 446, reversing 126
Minn. 172, 148 N. W. 58, 6 N. C. C, A.
182; Lehigh VaUey B. Co. v. Barlow,
244 U. S. 183, 61 L. ed. 1070, 37 Sup. Ct
Bep. 515, reversing 214 N. Y. 116, 107
N. E. 814; Minneapolis & St L. B. Go.
V. Winters, 242 U. S. 353, 61 L. ed. 358,
37 Sup. Ct Bep. 170, Ann. Cas. 1918B,
54, 13 N. C. C. A. 1127; Baltimore ft G.
B. Co. V. Branson, 242 U. S. 623, 61 L.
ed. 634, 37 Sup. Ct. Bep. 244, reversing
128 Md. 678, 98 Atl. 225; Pedersen y.
Delaware, L. & W. B. Co. 229 U. S. 146,
57 L. ed. 1125, 33 Sup. Ct. Bep. 648,
Ann. Cas. 1914C, 153, 3 N. C. C. A. 779;
New York C. B. Co. v. White, 243 U. 8.
188, 61 L. ed. 667, L.B.A.1917D, 1, 37
Sup. Ct Bep. 247, Ann. Cas. 1917D, 629,
13 N. C. C. A. 943; Minneapolis & St L.
B. Co. V. Nash, 242 U. S. 619, 61 L. ed.
531, 37 Sup. Ct. Bep. 239; Baymond ▼.
Chicago, M. & St. P. B. Co. 243 U. S.
43, 61 L. ed. 583, 37 Sup. Ct. Bep. 268;
Delaware, L. & W. B. Co. v. Yurkonis,
238 U. S. 439, 59 L. ed. 1397, 35 Sup. Ct
Bep. 902; Chicago, B. & Q. B. Co. v.
Harrington, 241 U. S. 177, 60 L. ed. 941,
36 Sup. Ct. Bep. 517, 11 N. C. C. A. 992;
Barker v. Kansas City, M. & O. B. Co.
94 Kan. 176, 146 Pac. 358; Giovio v.
New York C. B. Co. 176 App. Div. 230,
162 N. Y. Supp. 1026; Zavitovsky v.
Chicago, M. & St. P. B. Co. 161 Wis.
461, 154 N. W. 974, 14 N. C. C. A. 1004.
250
2G2-264
SUPREME COUICT OF THE UNITED STATES.
Oct. Teru,
note; Gallaglier v. New York C. R. Co.
180 App. Djv. 88, 167 N. Y. Supp. 480;
Kelly V. Pennsylvania R. Co. 151 C. C.
A. 171, 238 Fed. 95.
Mr. Justice McBeynolds delivered the
opinion of the court :
William T. Butler, husband of re-
spondent Mary E. Butler, was killed at
Oakland, California, while employed by
the Southern Pacific Company as an elec-
tric lineman. The supreme court of the
state affirmed an award rendered by the
California Industrial Commission against
the company, and the cause is properly
here ])y writ of certiorari.
The fatal accident, which occurred
June 21, 1917, arose out of and happened
in the course of deceased's employment.
He "received an electric shock while
wiping insulators, which caused him to
fall from a steel power pole, producing
injury which proximately caused his
death." At that time the company, a
common carrier by railroad, maintained
a power house at Fruit vale, California,
where it manufactured the electric cur-
rent which moved its ears engaged in
both interstate and intrastate commerce.
From the generators this current passed
along main lines or cables, through a re-
duction and transforming station, to the
trolley wires, and thence to the motors.
THien he received the electric shock, de-
ceased was engaged in work on one of
the main lines necessary to keep it in
serviceable condition. If such work was
part of interstate commerce, the Work-
men's Compensation Act of the state is
inapplicable and the judgment below
must be reversed. Otherwise, it must
be affirmed. Emplovers' Liabilitv Act,
[263] April 22, 1908, chap. U9, 35
Stat, at L. 65, Comp. Stat. § 8657, 8
Fed. Stat. Anno. 2d ed. p. 1208; New
York C. R. Co. v. Winfield, 244 U. S.
147, 61 L. ed. 1045, L.R.A.1918C, 439,
37 Sup. Ct. Rep. 546, Ann. Cas. 1917D,
1139, 14 N. C. C. A. 680; New York C.
R. Co. V. Porter, 249 U. S. 168, 63 L. ed.
536, 39 Sup. Ct. Rep. 188.
Generally, when applicability of the
Federal Employers' Liability Act is un-
certain, the character of the eraplovTnent,
in relation to commerce, may be ade-
quately tested by inquiring whether, at,
the time of the injury, the employee was
engaged in work so closely connected
with interstate transportation as practi-
,allv to bo a part of it. Pederscn v. Dela-
ware, L. & W. R. Co. 229 U. S. 146, 151,
57 L. ed. 1125, 1127, 33 Sup. Ct. Rep.
648, Ann. Cas. 1914C, 153, 3 N. C. C. A.
779; Shanks v. Delaware, L. & W. R.
2A0
Co. 239 U. S. 556, 558, 60 L. ed. 436, 438,
L.R.A.1916C, 797, 36 Sup. Ct. R«p. 188 ;
New York C. R. Co. v. Porter, supra;
KinzeU v. Chicago, M. & St. P. R. Cx>.
250 U. S. 130, 133, 63 I^ ed. 893. 896, 39
Sup. Ct. Rep. 412.
Power is no less essential than tracks
or bridges to the movement of cars. The
accident under consideration occurred
while deceased was wiping insulators
actually supjK)rting a wire which then
carried electric power so intimately con-
nected with the propulsion of cars that
if it had been short-circuited through
his body, they would have stopped in-
stantly. Applying the suggested test,
we think these circumstances suffice to
show that his work was directly and im-
mediately connected with interstate
transportation, and an essential part of
it.
The judgment of the court below is re-
versed and the cause remanded for fur-
ther proceedings not inconsistent with
this opinion.
Reversed and remanded.
Mr. Justice Clarke dissents.
[264] JACOB RUPPEUT, a Corporation,
Appt.,
V.
FRANCIS G. CAFFEY, United States At-
torney for the Southern District of New
York.* and Richard J. MrElligott, Acting
and Deputy Collector of Internal Revenue
of the Third District of New York.
(See S. C. Reporter's ed. 264-«10.)
War — power of Congress — passing of
war onierg<»nc.v — war-llme proliiliio
tion.
1. The war enu*rjjoncy had not passed
so as to invalidate as new legislation tlie
provision of the Volstead Act of OctolK»r
28, 1919, extending the prohibition of the
Act of Nouembor 21, 1018, against the manu
facturc and nale of intoxicating liquors, tt)
malt liquors, whether in fact intoxicating
or not. with an alcoliolic content of a?* mndi
as i of 1 per cent of alcohol by vol nine.
Note. — For a discussion of police
power, generally — see notes to State v
Marshall, 1 L.R.A. 51; Re Gannon, 5
L.R.A. 359; State v. Schlemmer, 10
L.R.A. 135; Ulinan v. Baltimore, 11
L.R.A. 224; Electric Improv. Co. v. San
Francisco, 13 L.K.A. 131; and Barbier
V. Connolly, 28 L. ed. U. S. 923.
As to what constitutes due process of
law, generally — .sec notes to People v.
O^Bricn. 2 L.R.A, 255; Kuntz v. Sump-
251 IT. S.
nay.
KL PPKKT V. CAFFEY.
War — power of Conj^ress — war-time
prohibition.
2. The implied war power of Congress
over intoxicating liquors extends to the en-
actment of la\V8 which 'will not merely pro-
hibit the sale of intoxicating liquorsi but
will effectually prevent their sale.
StAtes — relation to Federal govern-
ment — police power.
3. When the United States exerts any
of the poweza conferred upon it by the Con-
stitution, no valid objection can be based
upon the fact that such exercise may be
attended by tiie same incidents which at- [
t«nd an exercise by a state of its police
power.
[For other cases, see States, IV. d, In Digest
Sup. Ct. 1908.]
W«r — power of Congress — war-time
prohibition — nonintoxicating malt
liquors.
4. Congress, in the exercise of the war
power, could, in order to make effective the
existing war-time prohibition against the
manufacture and sale of intoxicating
liquors, enact the provisions of the Volstead
Act of October 28, 1919, extending <euch pro-
hibition to malt liquors, whether in fact
intoxicating or not, with alcoholic content
of as much as i of 1 per cent of alcohol by
volume.
Constitutional law — due process of law
— war-time prohibition.
5. Congress could, consistently with the
due process of law clause of U. S. Const.,
5th. Amend., make effective forthwith the
provisions of the Volstead Act of October
2B, 1919, extending the existing war-time
prohibition a^nst the manufacture and
sale of intoxicating liquors to nonintoxi-
cating malt liquors with alcoholic content
of as much as i of 1 per cent by volume,
without making any compensation to the
owner of such liquors acquired before the
passage of the act, and which before that
time he could lawfully have sold.
£Por other cases, see Cfoostltutional I^w, IV.
b, 4, in Digest Sup. Ct. 1908.J
[No. 603.]
Argued November 20 and 21, 1919. De-
cided January 5, 1920.
A PPEAL from the District Court of
A the United States for the Southern
District of New York to review a decree
which dismissed the bill in a suit to en-
join the enforcement of the Volstead *
tion, 2 L.R.A. (555; Re Gannon, 5 L.R.A.
359; Dlman v. Baltimore, 11 L.R.A. 224;
Oilman v. Tucker, 13 L.R.A. 304; Pear-
son V. Yewdall, 24 L. ed. U. S. 436; and
Wilson v. North Carolina, 42 L. ed. U.
S. 865.
As to constitutionality of statute pro-
hibiting the manufacture of intoxicating
liquor — see note to Schmitt v. •Cook
Brewing Co. 3 A.L.R. 285.
As to constitutional right to prohibit
%4 Li. ed.
Act against nonintoxicating malt liquors.
Affirmed.
The facts are stated in the opinion.
Messrs. Elihu Eoot and Williain D.
Guthrie argued the cause, and, with Mr.
William L. Marbury, Hied a brief for
appellant :
There can be no doubt that the war
powers of the United States under the
Federal Constitution are complete and
suflBcient for all war purposes, and com-
prehend the right to employ any appro-
priate means found necessary and prop-
er for prosecuting a war, and plainly
adapted to that end. Recent decisions
of the courts have emphasized and illus-
trated the broad nature and scope of
these powers.
Selective Draft Law Cases (Arver v.
United St.ates), 245 U. S. 306^ 377, 62
L, ed. 352, 353, L.R.A.1918C, 361, 38
Sup. Ct. Rep. 159, Ann. Cas. 1918B, 856;
Northern P. R. Co. v. North Dakota,
250 U. S. 135, 149, 63 L. ed. 897, 903,
P.U.R.1919D, 705, 39 Sup. Ct. Rep. 502;
Salamandra Ins. Co. v. New York L.
Ins. & T. Co. 254 Fed. 852.
The war powers of the United States,
however, are clearly ' divided between
Congress and the President. Whilst all
legislative power in connection with
war measures is vested exclusively in
Congress, all executive power exercis-
able in connection with the waging or
conducting of war is vested exclusively
in the President by virtue, not only of
his office as President, but of his powers
as Commander in Chief of the Army
and Navy of the United States.
Ex parte Milligan, 4 Wall. 2, 139, 18
L. ed. 281, 301.
Any incidental war power of prohi-
bition, which would necessarily inter-
fere with the liberties and property
rights of the people of the United
States and the governmental powers re-
served to the several states, can be ex-
ercised only in cases of existing war
emergency or military necessity. In
other words, the rights of the states
cannot be even temporarily violated
unless a war emergency reasonably war-
sale of intoxicating liquor — see note to
State V. Durein, 15 L.R.A.(N.S.) 908.
On the question as to whether stat-
utes forbidding the sale of a certain
class or classes of liquor include nonin-
toxicating liquor — see notes to State v.
Hemrich, L.R.A.1917B, 974; Ex parte
Lockman, 46 L.R.A.(N.S.) 759; Bowling
Green v. McMullen, 26 L.R.A. (N.S.)
895; and Luther v. State, 20 L.R.A.
(N.S.) 1146.
261
SUPREME COURT OF THE UNITED STATES.
OoT. Tebm,
rants such action. This follows from
the very nature of our Federal system
and the duty of Congress and the Pres-
ident not to violate the express reser-
vations of powers to the states, embodied
in the 10th Amendment to the Consti-
tution of the United States, or the con-
stitutional rights of the individual.
Hammer v. Dagenhart, 247 U. S. 251,
273, 276, 62 L. ed. 1101, 1106, 1107, 3
A.L.R. 649, 38 Sup. Ct. Rep. 529, Ann.
Cas. 1918E, 724; Keller v. United
States, 213 U. S. 138, 144, 53 L. ed. 737,
738, 29 Sup. Ct. Rep. 470, 16 Ann. Cas.
1066; Vance v. W. A. Vandercook Co.
170 U. S. 438, 444, 42 L. ed. 1100, 1103,
18 Sup. Ct. Rep. 674; Blidd v. Pearson,
128 U. S. 1, 24, 32 L. ed. 346, 36l, 2
Inters. Com. Rep. 232, 9 Sup. Ct. Rep.
6; M'Culloch v. Maryland, 4 Wheat.
316, 405, 4 L. ed. 579, 601; Houston v.
I Moore, 5 Wheat. 1, 48, 5 L. ed. 19, 30.
The rights and liberties guaranteed
by the Constitution of the United
States are not suspended and do not
eease to be effective guaranties during
a period of war, and are not subject to
denial or curtailment by war measures,
whether by the Congress or the Pres-
ident, unless an actual war emergency
or military necessity so requires, and
then only during the period of such war
emergency or military necessity.
Mitchell V. Harmony, 13 How. 116,
149, 14 L. ed. 75, 90; Ex parte Milligan,
4 WaU. 2, 121, 18 L. ed. 281; 295; Ray-
mond V. Thomas, 91 U. S. 712, 716, 23
L. ed. 434, 435.
It was undoubtedly the intention of
the framers of the Constitution of the
United States to vest in the President
the broadest war powers, and to render
him independent of Congress in respect
of the exercise of those powers in the
actual conduct of a war. They did not
wish to permit a repetition of the in-
terference by Congn^ess which did so
much to embarrass Washington as Com-
mander in Chief during the Revolution.
Hamilton, Federalist (No. 74 Ford's
ed. p. 496); 1 Kent, Com. 282; Story,
Const. § 149; Pom. Const. Law §§ 703-
714; Von Hoist, Const. Law (Mason's
translation), pp. 164, 192-195.
The existence of a war emergency
must be the basis and warrant for the
exercise of an implied war power which
tends to deny the rights of an individ-
ual or a state, and the courts are not
concluded by the mere declaration of
Congress, whether express or implied,
that such an emergency actually exists,
or shall be presumed to continue for
fome indefinite period in the future.
t62
Ex parte Milligan, 4 Wall. 2, 18 L. ed.
281 ; Mitchell v. Harmony, 13 How. 115,
135, 14 L. ed. 75, 84; Raymond v.
Thomas, 91 U. S. .712. 716, 23 L. ed.
434, 435; Milligan v. Hovey, 3 Bira. 13,
Fed. Cas. No. 9,605; Re Egan, 5
Blatchf. 319, Fed. Cas. No. 4,303; Mc-
Laughlin V. Green, 50 Miss. 453; John-
son V. Jones, 44 111. 154, 92 Am. Dec
159; Griffin v. Wilcox, 21 Ind. 370;
State ex rel. Nance v. Brown, 71 W. Va;
524, 45 L.R.A.(N.S.) 996, 77 S. E. 243,
Ann. Cas. 1914C, 1; United States v.
Hicks, 256 Fed. 707; Legal Tender
Cases, 12 WaU. 457, 540, 20 L. ed. 287,
308.
Congress is not the exclusive judge of
the existence of a war emergency when
exercising incidental war powers.
Hepburn. V. Griswold, 8 Wall. 603,
617, 19 L. ed. 513, 524; M'CuUoch v.
Maryland, 4 Wheat. 316, 421, 4 L. ed.
579, 605.
The constitutionality of any statute,
whether criminal or not, must be de-
termined as of the time and in the light
of the circumstances existing when it
is sought to be enforced against the in-
dividual. The time of actual incidence
is always the test, since the effect upon
the -accused is alone the concern of the
courts.
Castle V. Mason, 91 Ohio St. 303, 110
N. E. 463. Ann. Cas. 1917A, 164; Lin-
coln Gas & E, h. Co. V. Lincoln, 250 U.
S. 256, 269, 63 L. ed. 968, 977, 39 Sup.
Ct. Rep. 454; Minnesota Rate Cases
(Simpson v. Shepard), 230 U. 8. 352,
473, 57 L. ed. 1511, 1571, 48 L.R.A.
(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann.
Cas. 1916A, 18; Missouri Rate Cases
(Knott V. Chicago, B. & Q. a Co.), 230
U. S. 474, 508, 57 L. ed. 1571, 1594, 33
Sup. Ct. Rep. 675; Knoxville v. Blnox-
ville Water Co. 212 U. S. 1, 18, 63 L. ed.
371, 382,* 29 Sup. Ct. Rep. 148; WiUcox
V. Consolidated Gas Co. 212 U. 8. 19.
54, 53 L. ed. 382, 400, 48 L.RA.(N.S.)
1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas.
1034; Municipal Gas Co. v. Public Serv-
ice Commission, 225 N. Y. 95, P.U.R.
1919C, 364, 121 N. E. 772; Johnson v.
Gearlds, 234 U. S. 422. 446, 58 L. ed.
1383, 1393. 34 Sup. Ct. Rep. 794; Perrin
V. United States, 232 U. S. 478, 486, 58
L. ed. 691, 695, 34 Sup. Ct. Rep. 387.
The cases of Northern P. R. Co. v.
North Dakota, 250 U. S. 135, 63 L. ed.
897, P.U.R.1919D, 705, 39 Sup. Ct. Rep.
502; Dakota Cent. Teleph. Co. v. South
Dakota, 250 U. S. 163, 63 L. ed. 91D, 4
A.L.R* 1623, P.U.R.1919D, 717, 39 Sup.
Ct. Rep. 507; Burleson v. Dempcy, 250
U. S. 191, 63 L. ed. 929, 39 Sup. Ct.
251 U. S.
1919.
RUPPERT V. CAFFEY.
Rep. 511; and Macleod v. New England
Teleph. & Teleg. Co. 250 U. S. 195, 63
L. ed. 934, 39 Sup. Ct. Rep. 511, decided
June 2, 1919, in no way sustain the prop-
osition that any implied declaration by
Congress would be conclusive as to the
existence of a present necessity justify-
ing* the prohibition in question.
The case of Commercial Cable Co. v.
Burleson, 255 Fed. 99 (reversed by this
<x>urt because rendered moot by the vol-
untary act of the defendants, 250 U. S.
360, 63 L. ed. 1030, 39 Sup. Ct. Rep.
512), did not involve a question
analogous to that now under consider-
ation, but arose rather under the ezer-
dse of the powers of eminent domain.
The joint resolution there in question
was passed on July 16, 1918, at the
height of the war, and it expressly del-
egated to the President the power, as
Commander in Chief of the Army and
Navy, to determine if and when an act-
ual war emergency or necessity arose,
and he so determined. The court was
in effect asked to overrule the decision
of the Commander in Chief. An
analogous question would be presented
in the ease at bar if title I. of the
National Prohibition Act had vested in
the President the duty of ascertaining
and determining the existence of a war
emergency or necessity as a question of
fact at the time the act was to be en-
forced, as did the joint resolution in-
volved in the Commercial Cable Co.
Case. And even then, if power had
been so vested, it certainly could not be
exercised arbitrarily. Interstate Com-
merce Commission v. Louisville & N. R.
Co. 227 U. S. 88, 91, 57' L. ed. 431, 433,
33 Sup. Ct. Rep. 185; American School
V. McAnnulty, 187 U. S. 94, 47 L. ed.
90, 23 Sup. Ct. Rep. 33.
In view of the war powers and re-
sponsibilities of the President, and his
express duty to inform Congress as to
the state of the Union, it must be clear
that it is especially fit and proper that
he should determine officially as to the
existence or continuance of a war emer-
gency, and that, in the absence of other
proof, his declarations as to this ques-
tion of fact or actual state and condi-
tion should be deemed the best evidence
and the most certain criteria. It in-
volves a matter peculiarly within his*
knowledge and jurisdiction, and in such
a matter the decision of the President,
as Exeeative and Commander in Chief,
ought to be accepted as conclusive, in
the absence of any other proof or cri-
teria
Story, Const. § 1561; Martin v. Mott,
«4 li. ed.
12 Wheat. 19. 6 L. ed. 537; Luther v.
Borden, 7 How. 44, 12 L. ed. 599;
Prize Cases, 2 Black, 635, 17 L. ed. 459 ;
The Protector (Freeborn v. The Pro-
tector), 12 Wall. 700, 702, 20 L. ed. 463,
464.
A statute must be construed, if fairly
possible, so as to avoid not only the
conclusion that it is unconstitutional,
but also grave doubt upon that score.
United States v. Jin Fuey Moy, 241
U. S. 394, 401, 60 L. ed. 1061, 1064, 36
Sup. Ct. Rep. 658; United States ex rel.
Atty. Gen. v. Delaware & H. Co. 213 U.
S. 366, 407, 53 Ji. ed. 836, 848, 29 Sup.
Ct. Rep. 527.
It is a matter of ordinary construc-
tion, where several words are followed
by a general expression as here, which
is as much applicable to the first and
other words as to the last, that that ex-
pression is not limited to the last, but
applies to all.
Great Western R. Co. v. Swindon &
C. R. Co. L. R. 9 App. Cas. 808, 53
L. J. Ch. N. S. 1075, 32 Week, Rep. 957.
Effect must be given, if possible, to
every word, clause, and sentence of a
statute.
Washington Market Co. v. Hoffman,
101 U. S. 112, 115, 25 L. ed. 782, 783.
The Act of Congress of October 28,
1919, is new and afltenative legislation,
and the validity and effect thereof must
therefore be determined as of the date
of its passage.
Jaehne v. New York, 128 U. S. 189,
32 L. ed. 398, 9 Sup. Ct. Rep. 70;
Cooley, Const. Lim. 7th ed. p. 137;
Stockdale v. Atlantic Ins. Co. 20 Wall.
323, 332, 22 L. ed. 348, 350.
Congress may not ban nonintoxicants
under the war power.
Hammer v. Dagenhart, 247 U. S. 251,
273, 276, 62 L. ed. 1101, 1106, 1107, 3
A.LJt. 649, 38 Sup. CL Rep. 529, Ann.
Cas. 1918E, 724.
The Constitution merely confers upon
Congress the right to exercise powers
incidental to enumerated powers if nec-
essary and proper; not the, right to
exercise powers incidental to implied in-
cidental powers. Any other theory
would strip the states of all their pow-
ers; for, if* each implied incidental
power breeds new powers by added im-
plication, there is no point at which
the process can be halted, but the re-
sult must in time be one consolidated
government in place of our present
Federal system.
7 Ford's Jefferson, p. 44; M'Culloch
V. Maryland, 4 Wheat. 316, 411, 4 L. ed.
579, 602; 3 Hamilton's Works, Lodge's
26.S
SL PREME COURT OF THE UNITED STATES.
Oct
ed. p. 192; 1 Congressional Debates, p.
1899; 22 Annals of Congress, p. 212;
Kept. No. 1143, House of Rep. Feb. 26,
1919, pp. 7, 9.
In cases challenging the constitu-
tionality of a statute, whether passed
by Congress or by a state legislature,
equity has jurisdiction to restrain de-
fendant officers, who are charged by the
law with its enforcement, where it ap-
pears that irreparable injury to busi-
ness and property of a complainant is
reasonably to be apprehended, even
though some of the acts sought to be
restrained are anticipated criminal pro-
ceedings. Jurisdiction over controver-
sies similar to that now presented has
been frequently sustained by this court.
Osbom V. Bank of United States, 9
Wheat. 738, 6 L. ed. 204; Dobbins v.
Los Angeles, 195 U. S. 223, 241, 49 L.
ed. 169, 177, 25 Sup. Ct. Rep. 18; Ex
parte Young, 209 U. S. 123, 155, 52 L.
ed. 714, 727, 13 L.R.A.(N.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764;
Western U. Teleg. Co, v. Andrews, 216
U. S. 165, 166, 54 L. ed. 430, 431, -30
Sup. Ct. Rep. 286; Herndon v. Chicago,
R. I. & P. R. Co. 218 U. S. 135, 155, 54
L. ed. 970, 976, 30 Sup. Ct. Rep. 633;
Philadelphia Co. v. Stimson, 223 U. S.
605, 619, 56 L. ed. 570, 576, 32 Sup. Ct.
Rep. 340; Truax v. Raich, 239 U. S.
33, 37, 60 L. ed. 131, 133, Ii.R.A.1916D,
545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B,
283 ; Wilson v. New, 243 U. S. 332, 61
L. ed. 755, L.R.A.1917E, 938, 37 Sup. Ct.
Rep. 298, Ann. Cas. 1918 A, 1024; Ham-
mer v. Dagenhart, 247 U. S. 251, 62 L.
ed. 1101, 3 A.L.R. 649, 38 Sup. Ct.
Rep. 529, Ann. Cas. 1918E, 724; Munic-
ipal Gas Co. V. Public Service Commis-
sion, 225 N. Y. 101, P.U.R.1919C, 364,
121 N. E. 772.
According to a settled rule of stat-
utory interpretation, effect must, if pos-
sible, be accorded to every word in a
statute, and the word "other** cannot be
treated as superfluous, void, or insig-
nificant, but its use must be assumed to
indicate a .purpose on the part of Con-
gress to qualify the words ^'beer*' and
"wine" immediately preceding, so thut
they should connote "intoxicating beer"
and "intoxicating wine," respectively,
and not "beer" and "wine" whether or
not intoxicating.
Washington Market Co. v. Hoffman,
101 U. S. 112, 115, 25 L. ed. 782, 783;
United States v. Lexington Mill &
Elevator Co. 232 U. S. 399, 410, 58 L.
ed. 658, 662, L.R.A.1915B, 774, 34 Sup.
Ct. Rep. 337.
The mere fact that, under the appol-
lant's interpretation, the words "beer**
and "wine" would not serve any distinct
and separate purpose that would not be
comprehended within the phrase "intox-
icatmg, malt, or vinous liquor," would
not warrant the disregard of the word
"other." The use of unnecessary words
has long been quite common in statutes
and even in Constitutions.
United States v. Bassett, 2 Story, 404,
Fed. Cas. No. 14,539; United States v.
Fisher, 2 Craneh, 358, 387, 2 L. ed. 304,
313.
The case of United States v. Chase,
135 U. S. 255, 34 L. ed. 117, 10 Sup. Ct.
Rep. 756, 8 Am. Crim. Rep. 649, direct-
ly rules the point of statutory interpre-
tation that, in, such a form of phrasing
as is now presented for interpretation,
the word "other" must be interpreted as
urged by the appellant.
• See also United States v. Loftis, 12
Fed. 671; Grimm v. United States, 156
U. S. 604, 39 L. ed. 550, 15 Sup. Ct.
Rdp. 470; Andrews v. United States,
162 U. S. 420, 40 L. ed. 1023, 16 Sup.
Ct. Rep. 798; United States v. United
Verde Copper Co. 196 U. S. 207, 49
L. ed. 449, 25 Sup. Ct. Rep. 222; Potts
V. United States, 114 Fed. 52; Gridley
v. Northwestern Mut. L. Ins. Co. 14
Blatchf. 108, Fed. Cas. No. 5,808, af-
firmed in 100 U. S. 614, 25 L. ed. 746;
Sinclair v. Phoenix Mut. L. Ins. Co. Fed.
Cas. No. 12,896; Bowling Green v. Mc-
Mullen, 134 Ky. 742, 26 L.R.A.(N.S.)
895, 122 S. W. 823; State v. Virgo, 14
N. D. 295, 103 N. W. 610; People v.
S trickier, 25 CcA. App.- 60, 142 Pac.
1121.
Assistant Attorney General Frierson
and Solicitor General King argued the
cause and filed a brief for appellees:
"Beer," without qualification, is plain-
ly prohibited unless the word "intox-
icating" is HLade to relate back and
modify it. It will be insisted that this
modifying result is accomplished under
the rule ejusdem generis. But to make
this application of that rule is to give
it a meaning exactly the opposite of
that which it has. The rule is that gen-
eral words which follow an enumeration
by words of a particular meaning are
not to be construed in their widest ex-
tent, but are to be held as applying only
to persons or things of the same gen-
eral kind or class as those specifically
mentioned. We have here an enumer-
ation of beer and wine by words of a
particular and specific meaning, fol-
lowed by the general words "or other
intoxicating malt or vinous liquors."
251 U. 8.
1919.
KUl'lHari V. CAFFEV.
278-280
Under the rule referred to, the meaning
of these general words may take color
from the words used in the enumeration
which they follow. But there is no rule
of construction under which words of a
(>articular and specific meaning, used iu
an enumeration^ are to be given a dif-
ferent meaning by reason of general
langruage following them, and intended
to describe other articles or persons.
Thusy the words "other intoxicating*'
may be given a meaning reflected by
the preceding words "beer" and "wine,"
and may be held to mean intoxicating
in the general sense, or to the extent
that beer and wine are intoxicating or
alcoholic. But certainly the word
*^beer'' cannot be taken in an unusual
or strained sense by reason of any gen^
eral language describing other liquors
intended to be included. The rule in
question leads to the conclusion that
any malt or vinous liquor which is in-
toxicating in the sense that beer and
wine are intoxicating is prohibited; but
it cannot be so applied as to exclude
any beverage which would ordinarily be
included under the word "beer." Clear-
ly, the intention was to prohibit all bev-
erages which are commonly known as
beer. The courts of the various states
have almost uniformly g^ven this con-
struction to similar language.
United States v. Cohn, 2 Ind. Terr.
492, 52 S. W. 38; State v. Ely, 22 S. D.
487, 118 N. W. 687, 18 Ann, Cas. 92;
La FoUette v. Murray, 81 Ohio St. 474,
91 N. E. 294; Fuller v. Jackson, 97 Miss.
237, 30 L.R.A.(N.S.) 1078, 52 So. 873;
Purity Extract & Tonic Co. v. Lynch,
100 Miss. 650, 56 So. 316; Marks v.
State, 159 Ala. 71, 133 Am. St. Rep. 20,
48 So. 864; Re Lockman, 18 Idaho, 465,
46 L.R.A.(N.S.) 759, 110 Pac. 253;
Brown v. State, 17 Ariz. 314, 152 Pac.
578.
Mr. Justice Brandeis delivered the
opinion of the court:
By the Act of August 10, 1917, chap.
53, § 15, 40 Stat, at L. 276, 282, Comp.
Stat. §§ 3115Je, 3115J1, Fed. Stat. Anno.
Supp. 1918, pp. 181, 188, a war measure
known as the Lever Act, Congress pro-
.hibited the use after September 9, 1917,
of food materials or feeds in the pro-
duction of distilled spirits for beverage
purposes, and authorized the President
to limit or prohibit their use in the pro-
duction of malt or vinous liquors for
beverage purposes, so far as he might,
from time to time, deem it essential to
assure an adequate supply of food, or
deem it helpful in promoting the national
«4 li. cd.
security or defense. Under the power
so conferred the President, by proclama-
tion of December 8, 1917 [40 Stat, at L.
84], prohibited the production after Jan-
uary 1, 1918, of any "malt liquors except
ale and porter'' containing more than
2.75 per centum of alcohol by weight.
By proclamation of September IG, 1918
[40 Stat, at L. 204], the prohibition was
extended to "malt liquors, including near-
beer, for [279] beverage purposes,
whether or not such malt liquors con-
tain alcohol}*' and bv proclamation of
March 4, 1919 [40 Stat, at L. 293], the
prohibition was limited "to intoxicating
malt liquors." Under § 2 of tW act the
duty of enforcing the above provisions
was assigned to the Commissioner of
Internal Revenue. This act contained
no provision prohibiting the sale of in-
toxicating or other liquors.
On November 21, 1918, the so-called
War-time Prohibition Act (chap. 212,
40 Stat, at L. 1045, Comp. Stat.
§ 3115^H2ff ) was approved. It provided
that:
"After May first, nineteen hundred
and nineteen, until the conclusion of tHe
present war and thereafter until the ter-
mination of demobilization, the date of
which shall be determined and pro-
claimed by the President of the United
States, no grains, cereals, fruits, or other
food product shall be used in the manu-
facture or production of beer, wine, or
other intoxicating malt or vinous liquor
for beverage purposes. After June thir-
tieth, nineteen hundred and nineteen,
until the conclusion of the present war
and thereafter until the termination of
demobilization, the date of which shall
be determined and proclaimed by the
President of the United States, no beer,
wine or other intoxicating malt or vinous
liquor shall be sold for beverage pur-
poses except for export. . . ."
On February 6, 1919, the Commis-
sioner of Internal Revenue ruled (Treas-
ury Decision, 2788) that a beverage con-
taining as much as ^ of 1 per centum of
alcohol by volume would be regarded as
intoxicating within the intent of the Act
of November 21, 1918; and that after
IVfay 1, 1919, persons would not be i>er-
mitted to qualify as brewers, if the alco-
holic content of their product equaled
or exceeded that percentage. In so rul-
ing the Commissioner adopted and ap- *
plied to this prohibitory act the same
classification of malt liquors which had
been applied in administering the laws
concerning the taxation of beer and
other similar fermented liquors. [280]
For since 1002 (Treasur\' Decision, 514)
•J80-282
SUPREME COURT OF IHK UNITED STATES.
Oct. Tkrm,
fermented liquor containing as much as
i of 1 per centum of alcohol had been
treated as taxable under Revised Stat-
utes, §§ 3339 and 3242, Comp. Stat. §§
6143, 5965, and this classification was
expressly adopted in the War Revenue
Act of October 3, 1917, chap. 63, § 307, 40
Stat, at L. 311, Comp. Stat. 6144b, Fed.
Stat. Anno. Supp. 1918, p. 300. The
correctness of this construction of the
act was promptly and earnestly contro-
verted by the brewers, who insisted that
Congress had intended to prohibit the
production only of such beer or other
malt liquors as were in fact intoxicat-
ing. The attempt was then made to re-
move the doubt by new Ic^slation before
May 1, 1919, when the act would by its
terms become operative. On February
26 the House Committee on the Judi-
ciary reported favorably an Amendment
to H. R. 13,581, providing: "The words
'beer, wine, or other intoxicating malt
or vinous liquors' in the War Prohibi-
tion Act shall be construed to mean any
liquors which contain in excess of i of
1 per centum of alcohol." The Sixty-
fifth Congress ended on March 4 with-
out acting on this bill; and the Sixty-
sixth Congress did not convene in extra
session until May 19. On June 30, the
House Committee on the Judiciary re-
ported substantially the same provision
as § 1 of title I. of H. R. 6810; but it
was not enacted until October 28, 1919,
when, as the Volstead Act, it was passed
over the President's veto.*
[28^1] Immediately after the passage
of the Volstead Act, this suit was
brought in the district court of the
United States for the southern district
of New York by Jacob Ruppert against
Caffey, United States attorney, and Mc-
EUigott, acting collector of internal rev-
enue, to enjoin the enforcement as
against the plaintiff of the penalties
provided in the War-time Prohibition
Act as amended by the Volstead Act.
It was heaVd below on plaintiff's motion
for a preliminary injunction and de-
fendants' motion to dismiss; and having
been dismissed, was brought here by
direct appeal under § 238 of the Judicis^
Code [36 Stat, at L. 1157, chap. 231,
Comp. Stat. § 1215, 5 Fed. Stat. Anno.
2d ed. p. 794]. The bill alleged that
plaintiff, the owner of a brewery and
appurtenances, was on October 28, 1919 »
engaged in the manufacture of a beer
containing more than i of 1 per oentum
of alcohol by volume and less than 2.75
per centum by weight, or 3.4 per centum
by volume, and had then on hand a
large quantity of such beer; and that
this beer was not in fact intoxieating.
Plaintiff contended (1) that the Aet of
November 21, 1918, had becotaie void, or
had expired by its own terms before the
bill was filed; (2) that its prohibition
by its terms was limited to beer which
was in fact intoxicating; (3) that the
Act of October 28, 1919, title L, § 1,
which purported to extend the prohibi-
tion to the manufacture and sale of beer
not in fact intoxicating, exceeded the
war power of Congress ; and that thereby
violation of rights guaranteed to plain-
tiff by the 5th Amendment was threat-
ened.
This case was heard and decided be-
low with Dryfoos v. Edwards [251 U. S.
146, ante, 194, 40 Sup. Ct. Rep. 106],
and it was argued here on the same day
with that case and Hamilton v. Ken-
tucky Distilleries & Warehouse Co. de-
cided December 15, 1919 [251 U. S. 146,
ante, 194, 40 Sup. Ct Rep. 106]. For
the reasons set forth in [282] the opin-
ion in those oases, the Act of Norember
21, 1918, was and remained valid a«
against the plaintiff, and had not ex-
pired. For the same reason § 1 of title
1. of the Act of October 28, 1919, was
not invalid merely because it was new
legislation. But it is insisted that this
legislation is nevertheless void as
against the plaintiff, because Congress
could not, even under its full war pow-
er^, prohibit the manufacture and sale
of nonintoxicants, and, at all events,
could not, without making compensa-
tion, extend the prohibition to nonin-
NoTE (a) : —
**The term *War Prohibition Act' used
in this act shall mean the provisions of
any act or acts prohibiting the sale and
manufacture of intoxicating liquors until
the conclusion of the present war and there-
after imtil the termination of demobiliza-
tion, the date of which shall be determined
and proclaimed by the President of the Unit-
ed States. The words *bcer, wine, or other
intoxicating malt or vinous liquors' in the
War Prohibition Act shall be hereafter con-
Btrued to mean any other beverages which
contain ^ of 1 per centum or more of
266
alcohol by volume: Provided, That th^
foregoing definition shall not extend to de-
alcoholized wine nor to any beverage or
liquid produced by the process by which
heRTf aie, porter, or wine is produced, if it
contains less than i of 1 per centum of
alcohol by volume, and is made aa pre-
scribed in § 37 of title II. of this act, and
is otherwise denominated than as beer,
ale, or porter, and is contained and sold
in, or from, such sealed and labeled bottles,
casks, or containers as the GommiMioner
may by regulation prescribe."
S61 U. 0.
I5»19.
KLIPPtKX V. CAKFKY.
2S2-284
toxicaticg liquor acquired before the
passage of the act. These objections
require eonsideration.
First : May the plaintiff show as a
basis for relief that the beer manufao-
tured by it with alcoholic content not
greater than 2.75 per centum in weight
and 3.4 per centum in volume is not
in fact intoxicating f The government
insists that the fact alleged is immaterial
sinee the passage of the Volstead Act,
by whieh the prohibition of the manu-
facture and sale is extended to all beer
and other malt liquor containing as
much as i of 1 per centum of alcohol
by volume.
If the war power of Congress to effec-
tively prohibit the manufacture and sale
of intoxioating liquors in order to pro-
mote the nation's efficiency in men, mu-
nitions, and supplies is as full and com-
plete as tiie police power of the states
to effectively enforce such prohibition
in order to promote the health, safety,
and morals of the community, it is clear
thmt this provision of the Volstead Act
is valid. and has rendered immaterial the
question whether plaintiff's beer is in-
toxicating. For the legislation and de-
cisions of the highest courts of nearly
all of the states establish that it is
deemed impossible to effectively enforce
either prohibitory laws or other laws
merely regulating the manufacture and
sale of intoxicating liquors, if liability
or inclusion within the law is made to
depend upon the issuable fact whether
or not a particular liquor made or sold
as a beverage is intoxicating. In other
words, it clearly appears [283] that a
liquor law, to be capable of effective
enforcement, must, in the opinion of the
legislatures and courts of the several
states, be made to apply either to all
liquors of the species enumerated, like
beier, ale, or wine, regardless of the
presence or degree of alcoholic content;
or, if a more general description is used,
such as distilled, rectified, spirituous,
fermented, malt, or brewed liquors, to
all liquors within that general descrip-
tion, * regardless of alcoholic content;^
or to such of these liquors as contain
[284] a named percentage of alcohol;
and often several such standards are
combined so that certain specific and
generic liquors are altogether forbidden
and such other liquors as contain a
given percentage of alcohol.
A test often used to determine whether
a beverage is to be deemed intoxicating
within the meaning of the liquor law is
whether it contains } of 1 per cent of
alcohol by volume. A survey of the liq-
uor laws of the states reveals that in
sixteen states the test is either a list of
enumerated beverages without regard to
whether they contain any alcohol, or the
Non (5):—
Caaas to this effect are Marks v. State,
159 Ala. 71, 133 Am. 8t. Rep. 20, 48 So.
864; Brown v. State, 17 Ariz. 314, 152 Pac.
578; Bradshaw v. State, 76 Ark. 562, 89
a W. 1051 ; Seibert v. State, 121 Ark. 268,
180 8. W. 990; Re Lockman, 18 Idaho,
465, 46 LJLA.(N.S.) 759, 110 Pac. 253;
Hansberg v. State, 120 111. 21, 23, 60 Am.
Rep. 649, 8 N. £. 857 (dictum) ; Kurz v.
State, 70 Ind. 488; Sawyer v. Botti, 147
Iowa, 453, 27 L.R.A.(N.S.) 1007, 124 N.
W. 787; State v. CJolvin, 127 Iowa, 632, 103
N. W. 968; State v. Miller, 92 Kan. 994,
L.R^.1917F, 238, 142 Pac. 979, Ann. Cas.
1916B, 365; State v. Trione, 97 Kan. 365,
155 Pac. 29; Com. v. McGrath, 185 Mass. 1,
69 N. E. 340; State v. Centennial Brewing
Ob. 55 Mont. 500, 179 Pac. 296; Luther v.
State, 83 Neb. 455, 20 L.RA.(N.S.) 1146,
120 N. W. 125; State v. Thornton, 63 N. H.
114; People v. Cox, 106 App. Div. 299, 94
y. Y. Supp. 526; People ex rel. Lanci v.
O'Reilly, 129 App. Div. 522, 114 N. Y. Supp.
258; La Follette v. Murray, 81 Ohio St.
474, 91 N. E. 294; State v. Waldcr, 83
Ohio St 68, 93 N. E. 531; State v. Fargo
BottliDg Works, 19 N. D. 397, 26 L.R.A.
(N.S.) 872, 124 N. W. 387; SUte v. Ely,
22 S. D. 487, 118 N. VV. 687, 18 Ann. Cas.
92; State v. Oliver, 26 W. Va. 422, 427,
53 Am. Rep. 79 (dictum) ; Pennell v. State,
141 Wis. 35, 123 N. W. 115; United States
•4 L, ed.
▼. Cohn, 2 Ind. Terr. 474, 52 N. W. 38;
^Purity" Extract ft Tonic Co. v. Lynch, 226
I U. S. 192, 57 L. ed. 184, 33 Sup. Ct. Rep.
* 44, affirming 100 Miss. 650, 56 So. 316.
Contra: — Bowling Green v. McMuUen,
334 Ky. 742, 26 L.R.A.(N.S.) 895, 122 a
W. 823; Reisenberg v. State, — Tex. Crim.
Rep. —, 84 S. W. 585; State ▼. Olsen, 95
Minn, 104, 103 N. W. 727; Intoxicating-
Liquor Cases, 25 Kan. 751, 37 Am. Rep.
284; State v. Virco, 14 N. D. 293, 103 N.
W. 610 ; SUte v. Maroun, 128 La. 829, 55
So. 472; Howard v. Acme Brewing Co. 143
Ga. 1, 83 S. E. 1096, Ann. Cas. 1917A, 91.
In Kansas, the les^islature overruled this
decision by Laws of 1909, chap. 164, § 4,.
see State V. Trione, 97 Kan. 3C5, 155 Pac
29; in Minnesota made the prohibition ap*
ply to all malt liquors containing as much
as i of 1 per cent of alcohol by volume,
Laws of 1919, chap. 455, p. 537; in North
Dakota, by Laws of 1909, chap. 187, p. 277,
see State v. Fargo Bottling Works Co. 19
N. D. .397, 26 L.R.A.(N.S.) 872, 124 N. W.
387, the prohibition applied to all liquors
which retained "the alcoholic principle;'' in
Louisiana, Acts of 1914, Nos. 146, 211, op-
erated to cut down the per cent of alcohol
to 1.59; see State v. George, 136 La. 906,
67 So. 953. In Georgia, Acts of 1919, p.
931, changed the rule of Howard v. Aeme
Brewing Co. supra; see note (d) 4.
S«7
284
SUPREME COURT OF THE UNITED STATES.
Oct. Temm,
presence of any alcohol in a beverage, regardless of quantity ; ^ is eighteen states
Note (o) : —
1. Alabama: — Gen. Laws, Sp. Seas. 1907,
No. 53, § 1, p. 71, made it unlawful to sell
**any alcoholic^ spirituous, vinous, or malt
liquors, intoxicating beverages or bitters,
or other liquors or beverages . . . which
if drimk to excess will produce intoxica-
tion."
Marks v. State, 159 Ala. 71, 133 Am. St.
Rep. 20, 48 So. 867, stated that "or other
liquors or beverages which, if drunk to ex-
cess, will produce intoxication," did not
modify or limit the prohibition of the
liquors enumerated. Any unenumerated
liquor, however, must be proved to be in-
toxicating if drunk to excess.
Gen. Laws 1919, Act 7, p. 6, in terms pro-
hibits all liquors containing any alcohpl.
2. Arizona: — Constitution, art. 23, § 1,
prohibits "ardent spirits, ale, beer, wine, or
intoxicating liquor, or liquors of whatever
kind."
Brown v. State, 17 Ariz. 314, 152 Pac.
678, held that "beer" was prohibited wheth-
er or not it >vas intoxicating.
3. Arkansas: — ^Acts of 1917. Act 13, p.
41, as amended by Acts of 3919, Act 87, p.
75, prohibits "any alcoholic, vinous, malt,
spirituous, or fermented liquors."
Seibert v. State, 121 Ark. 258, 180 S.
W. 990, held that the enumerated liquors
are prohibited whether they are intoxicat-
ing or not if they contained any alcohol.
An earlier act contained the words "or
other intoxicating liquors" following "or
fermented liquors." It was held in Brad-
shaw v. State, 76 Ark. 662, 89 S. W. 1061,
that this clause did not modify the enu-
merated liquors, and that they were pro-
hibited whether intoxicating or not.
4. Colorado: — Sess. Laws 1916, chap. 98,
§ 30 — (prohibition) — ^as amended by Sess.
Laws 1919, chap. 141, prohibits "intoxicat-
ing liquors ... no matter how small the
percentage of alcohol they may contain."
4i. Hawaii:— Rev. Laws 1915, § 2101
(License Law). "Intoxicating liquors'
. . . shall be held to include spirituous
liquors, and any beverage in which may be
found any percentage of distilled spirits,
spirits, alcohol and alcoholic spirit aa de-
fined by the laws of the United States, and
any sake, beer, lager beer, ale, porter and
malt or fermented or distilled liquors."
5. Idaho: — Sess. Laws 1909, p. 18 (I^cal
Option ) . "Spirituous, vinous, malt, and
fermented liquors . . . and other drinks
that may be used as a beverage and produce
intoxication."
Re Lockman, 18 Idaho, 405, 46 L.R.A.
(N.S.) 759, 110 Pac. 253, held that the
enumerated liquors are within the act,
whether or not they are intoxicating.
Constitutional Amendment of November
7, 1916 (Prohibition). Sess. Laws 1917,
p. 628. The Enforcement Laws are cumu-
lative, including Sess. I^tws 1916, chap. 28;
Sess. Laws 1915, chap. 11 (see § 23) ; Sess.
Laws 1911, chap. 15; and Seas. Laws 1909,
p. 18. Thus the definition and interpreta-
tion above are retained.
2ff8
6. Iowa:— Rev. Code (1897-1915) § 2382.
Prohibits "any intoxicating liquor, which
term shall be construed to mean alcohol,
ale, wine, beer, spirituous, vinous, and malt
liquor, and all intoxicating liquor what-
ever."
State V. Certain Intoxicating Liquors, 76
Iowa, 243, 2 L.R,A. 408, 41 X. W. 6 (1888)
and State v. Colvin, 127 Iowa, 632, 103 N.
W. 988 (1905) ; Sawyer v. Botti, 147 Iowa,
463, 27 L.R.A.(N.S.) 1007, 124 N. W. 787
(1910), held that liquor containing any
alcohol whatever is prohibited.
7. Kansas: — Laws of 1881, eliap. 128, § 1
(Gen. Stat. 1916, § 5498). Prohibits "any
spirituous, malt, vinous, fermented, or oth-
er intoxicating liquors."
Intoxicating-Liquor Cases, 25 Kan. 751,
37 Am. Rep. 284, held that in every case
the question of the intoxicating quality of
the beverage must go to the jury.
Laws of 1909, chap. 164, § 4 (Gen. Stat.
1915, § 5501). amended the Act of 1881
as follows: "All liquors mentioned in § 1
of this act shall be construed and held to
be intoxicating within the meaning of this
act."
State V. Miller, 92 Kan. 994, L.R.A.1917F,
238, 142 Pac. 979, Ann. Cas. 1916B, 365;
State V. Trione, supra, declared that the
former case is no longer the law, and that
the mere presence of the liquors mentioned
makes the substance intoxicating for pur-
poses of the prohibition statu tt»8.
See also Laws of 1917, chap. 216, 216.
"Bone Dry Prohibition Law."
8. Maryland: — Laws of 1914, chap. 831.
§ 1, p. 1569 (Prohibition in Certain Coim
ties), forbids "any spirituous, vinous, fer-
mented, malt, or intoxicating liquors, or
any mixture thereof containing alcohol for
beverage purposes. . . ."
Laws of 1916, chap. 389, § 1, p. 786. Pro-
hibits in a certain county "any kindred
preparation or beverage, having the appear-
ance or taste of lager beer . . . except
those beverages that are labeled
stating that the beverage is free of alcohol."
See also Note d (9) ; and Note h. These
citations are not exhaustive of the Mary-
land county prohibition statutes.
9. Michigan:— Public Acts 1919, No. 53,
§ 3, p. 81. " 'Intoxicating liquors' . . .
include any vinous, malt, brewed, ferment-
ed, or spirituous liquors . . . and all
liquids . . . which contain any alcohol
and are capable of being used as a l>ever-
age."
10. Mississippi:— Code of 1906. § 174(1. ai
amended by Laws of 1908, chap. 115, p.
116 (Code 1917, § 2086) . Prohibits the sale
of "any vinous, alcoholic, malt, intoxicat-
ing, or spirituous liquors, or intoxicating
bitters, or other drinks which if drank to
exfcMs will produce intoxication."
Fuller V. Jackson. 97 Mis^. 237, 30 L.R.A.
(N.S.) 1078, 52 So. 873; Puritv Extract &
Tonic Co. V. Lynch, 100 Miss.>i50, 56 So.
316. All the enumerated drinks are pro-
hibited whether they contain alcohol or are
intoxicating or l)oth or neither.
251 n. S.
1919. RUPPKRT V. CAFFEY. 285
It [285] is the presence of as much as or more than J of 1 per ceut of alcohol;*'
Laws of 1918. chap. 189. 8 1. p. 210. Rev. Code 1919. 8 10.237. " *Intoxicatine
Laws of 1918, chap. 189, § 1, p. 210.
Prohibits '^spirituous, vinous, malted, fer-
fx^nted, or other intoxicating liquors of
an J kind."
11. New Mexico:— Stat. 1915, § 2874.
*A11 persons who make for sale fermented
liquors of any name or description from
malt, wholly or in part, or from any sub-
:<titute therefor, shall be considered brew-
ers,** Sec. 2937. "The words 'intoxicating
liquors' . . . include all malt, vinous,
and spirituous liquors."
Constitutional Amendment, proposed by
legislature of 1917, Laws of 1917, p. 352,
prohibits 'fardent spirits, ale, beer, alcoliol,
wine, or liquor of any kind whatsoever con-
taining alcohol."
12. New York:— Laws of 1897, chap. 312,
§ 2; and Laws of 1903, chap. 486, § 2,
as amended by Laws of 1905, chap. 679.
S 2, defining intoxicating liquors as ''all
distilled, or rectified spirits, wine, fer-
mented, and malt liquors."
People V. Cox, 106 App. Div. 299, 94 N.
Y. Supp. 526, held that Malt Rose, contain-
ing .74 per cent of alcohol and made from
malt, was within the meaning of the act.
People ex rel. Lanci v. OHeilly, 129 App.
Div. 622, 114 N. Y. Supp. 258, affirmed in
194 N. Y. 692, 88 N. E. 1128, holds that
beer comes within the act, whether intoxi-
cating or not, and declares that an earlier
line of cases holding that the intoxicating
quality is always for the jury to decide are
no longer applicable where liquors are
named in the act.
Laws of 1917, chap. 624, § 2, p. 1835.
Citv Local Option Law. Continues the defi-
nition.
13. Ohio:— Rev. Stat. 1906, § 4364-9, laid
a tax on the business of '/trafficking in
spirituous, vinous, malt, or any intoxicat-
ing liquors."
La Follette v. Murray, 81 Ohio St. 474,
91 N. E. 294, held that "Friedon Beer," a
malt liquor containing .47 per cent of alco-
hol, and not intoxicatiQg, was within the
statute.
State v. Walder, 83 Ohio St. 68, 93 N. E.
531.
Laws of 1919, § 6212-15, p. 388 (Prohi-
bition ) . ". . . 'liquor* and 'intoxicating
liquors' include any distilled, malt, spiritu-
ous, vinous, fermented, or alcoholic liquor
and also any alcoholic liquid ... . which
. . . capable of being used as a bever-
age."
14. South Dakota: — Sess. Laws of 1890,
chap. 101, § 6, p. 229 (Prohibition), intoxi-
. eating liquors include "all spirituous, malt,
vinous, fermented, or other intoxicating
liquors, or mixtures . . . tliat will pro-
duce intoxication."
Rev. Pol. Code 1903, § 2834, requires a
license to sell "any spirituous, vinous,
malt, brewed, fermented, or other intoxicat-
ing liquors."
SUte V. Ely, 22 S. D. 487, 118 N. W. 687,
18 Ann. Cas. 92, held that the liquors named
rome within the act, whether or not they
are intoxicating.
64 Ij. ed.
Rev. Code 1919, § 10,237. " 'Intoxicating
liquors' . . . include whisky, alcohol,
brandy, gin, rum, wine, ale, beer, absinthe,
cordials, hard or fermented cider, . . .
and all distilled, spirituous, vinous, malt,
brewed, and fermented liquors and every
other liquid . . . containing alcohol
. . . and is capable of being used as a
beverage."
14i. United States: — Act of March 1,
1895, 28 Stat, at L. 697, § 8, chap. 145
(Indian Territory Prohibition), prohibits
"any vinous, malt, or fermented liquors, or
any other intoxicating drinks."
United States v, Cohn, 2 Ind. Terr. 474,
52 S. W. 38, held that the act prohibits all
malt liquors whether or not they are in-
toxicating.
See also Act of February 14, 1917, 39
Stat, at L. 903, chap. 53, Comp. Stat. §
3643b, Fed. Stat. Anno. Supp. 1918, p. 61
(Alaska Proliiuitiou) ; and Act of March 3,
1917, 39 Stat, at L. 1123, chap. 165, Comp.
Stat. § 342Ua (District of Columbia Pro-
hibition ) ,• both of which prohibit "all malt
liquors."
15. Washington:— Code 1912, title 267,
§ 46 (Local Option). "'Intoxicating li-
quor* . . . shall include whisky, brandy,
rum, wine,, ale, beer, or any spirituous, vi-
nous, fermented, malt or any other liquor
containing intoxicating properties . . .
except preparations compounded by a regis-
tered pharmacist, the sale of which would
not subject him to the payment of the
special liquor tax required by the laws of
the United States.".
Sess. Laws of 1915, chap. 2, § 2 (Prohibi-
tion ) . " 'Intoxicating liquors' shall in-
clude whisky, etc., (as above) and all
liquids . . . which contain any alco-
hol, which are capable of being used as a
beverage."
State V. Hemerich, 93 Wash. 439, L.R.A.
1917B, 962, 161 Pac. 79.
16. WiFcdnsin:— Gen. Stat. 1911, § 1565c
(Local Option), "any spirituous, malt,
ardent, or intoxicating liquors or drinks."
Pennell v. State, 141 Wis. 35, 123 N.
W. 115, holds that the statute forbids fer-
mented mall liquors containing alcohol,
whether intoxicating or not.
See also Montana, Note (^) 2. j
Note {d) : —
1. Connecticut: — ^Public Acts 1919, chap.
241, p. 2917, defines intoxicating liquors,
". . . all beer manufactured from hops
and malt or from hops and barley, and all
beer on the receptacle containing which the
laws of the United States require a revenue
stamp to be affixed . . . .[but it] . . .
shall not include beverages which contain
no alcohol, . . ."
2. Delaware: — Laws of 1917, chap. 10,
p. 19 (Local Option Enforcement), defines
as follows: . . . "all liquid mixtures
. . . containing so much as ^ of 1 per
cent of alcohol by volume shall be deemed
liquors and shall be embraced in the word
'liquor* as hereinafter used in this act."
269
SUPREME COURT OF TUE UNITED STATES.
Oct. T
3. Florida; — ^Acts of Sp. Sess. 1918, chap.
7736, § 7, as amended by Acts of 1919,
chap. 7890, defines intoxicating liquor,
which it prohibits, as all beverages con-
taining "i of 1 per cent of alcohol or more
by volume."
4. Georgia: — Acts of 1915, Sp. Sess. pp.
77, 79 (Park's Anno. Code, Supp. 1917,
Penal Code, § 448 (b)), defines *^prohibited
liquors" as ". . . beer, . . . near-
beer, . . . and . . , beverages con-
taining 1 of 1 per cent of alcohol or more
by volume."
5. Illinois:— Rev. Stat. 1874, chap. 43, §
1 ("Dram Shop Act"), defines a dram shop
as a place "where spirituous or vinous or
malt liquors are retailed . . . and in-
toxicating liquors shall be deemed to in-
clude all such liquors."
Hansberg v. State, 120 III. 21, 23, 60 Am.
Rep. 649, 8 N. E. 857. Indictment for sell-
ing "intoxicating liquors." Proof of selling
**beer." The court said: "No evidence
whatever was offered or admitted for the
purpose of explaining or showing what
'beer' was made of, or what its xrharaeter-
istics were, or whether it was malt, vinous,
or intoxicating."
Laws of 1919, p. 931 (Search and Seizure
Law). "Intoxicating liquor* or liquors'
shall include all distilled, spirituous, vinous,
fermented or malt liquois which contain
more than i of 1 per cent by volume of
alcohol."
e. Indiana:— Rev. Stat. 1881, § 2094,
"whoever . . . sells . . . any spirit-
uous, vinous, malt, or other intoxicating
liquors."
Kurz v. State, 79 Ind, 488. 490 : "It de-
Tolves on the state, therefore, to {>rove that
the beer sold was either a malt liquor, t>T
that it was in fact an intoxicating liquor."
Laws of 1911, chap. 119, § 29 (Saloon
Regulation Act). "The words 'intoxicating
liquors' shall apply to any spirituous, vi-
nous, or malt liquor, or to any intoxicating
liquor whatever which is used ... as a
beverage and which contains more than f of
1 per cent of alcohol by \olume."
Laws of 1917, chap. 4, § 2 (Prohibition
Act). "The words 'intoxicating liquor,' as
used in this act, shall be construed to mean
all malt, vinous, or spirituous liquor con-
taining BO much as i of 1 per cent of alcohol
by volume."
7. Maine :--Rev. Stat. 1916, chap. 127, §
21 (Prohibition Act), declares "wine, ale,
porter, strong beer, lager beer, and all other
malt liquors and cider when kept or deposit-
ed with intent to sell the same for tippling
purposes, . . . are declared intoxicating
within the meaning of this act."
State V. Frederickson, 101 Me. 37, 6 L.R.A.
(N.S.) 186, 115 Am. St. Rep. 295, 63 Atl.
535, 8 Ann. Cas. 48, holds tliat cider comes
within the net, whether or not it is in fact
intoxicatiuc.
State V. Piche, 98 Me. 348, 66 Atl. 1052,
holds that in case of a liquor not enumerat-
ed, the jury must find the question of in-
toxicating quality.
Laws of 1919, chap. 235, § 21, prohibits
270
"a« well as any beverage containing a per-
centage of alcohol which by Federal enact-
ment or by decision of the Supreme Court
of the United States, now or hereafter de-
clared, renders a beverage intoxicating.'*
8. Maryland: — Laws of 1917, Ex. Scss.
chap. 13, § 1 (Prohibition in Prince Georg^e
County). "Malt liquors shall be construed
to embrace porter, ale, beer, and all malt or
brewed drinks, whether intoxicating or not,
containing as much as i of 1 per cent of
alcohol by volume; and that the words *in-
toxi eating liquors' . . . shall . .
embrace ooth spirituous liquors and malt
liquors and . . ., all liquid mixtures,
. . . containing so much as ^ of 1 per
cent of alcohol by volume." See also Note
c (3), and Note h,
9. Minnesota:— (jen. Stat. 1913, § 3188,
and Gen. Stat. Supp. 1917, § 3161, provide
that "the terms 'intoxicating liquor' and
'liquor' . . . shall include distilled, fer-
mented, spirituous, vinous, and malt liquor.^
State V. GHI, 89 Minn. 602, 95 N. W. 449,
held that onl^ those malt liquors which
were intoxicating were within the meaning
of the act.
Laws of 1919, chap. 456, p. 637 (Prohi-
bition). "'Intoxicating liquor* and liquor'
shall include and mean ethyl alcohol and
any distilled, fermented, spirituous, vinous,
or malt liquor or liquid of any kind potable
as a beverage, whenever any of said liquors
or liquids contain i of 1 per cent or more of
alcohol by volume."
10. Missouri r—Rev. Stat. 1909, < 7243.
"If a majority of the votes . . . shall
be 'against the sale of intoxicating liquors,^
it shall be unlawful for any person . . .
(to sell) . . . any kind of intoxicating
liquors or beverage containing alcohol in
any quanti^ whatever."
State V. €famma, 149 Mo. App. 694, 129 8.
W. 734; State v. Burk, 161 Mo. App. 188,
131 S. W. 883; State v. Wills, 164 Mo. App
605, 136 S. W. 25.
Laws of 1919, chap. —, § 16. "The phraee
'intoxicating liquor* or 'intoxicating liquors'
whenever used in this act shall be con-
strued to mean and include any distilled,
malt, spirituous, vinous, fermented, or al-
coholic liquors, all alcoholic liquids . . .
which contain i of 1 per cent of alcohol by
volume . . . ; Provided, however, that
when the above-mentioned phrases . .
are defined in the laws of the United States,
then such definition of Congress shall super-
sede and take the place of the definition
. . . in this section."
11. Nebraska: — Cobhey's Compiled Stat.
1907, § 7161, forbids the sale of "malt,
spirituous, or vinous liquors or any intoxi-
cating drinks" without a license.
Luther v. State, 83 Neb. 465, 20.L.R.A.
(N.S.) 1146, 120 N. W. 126, holds that all
nuilt liquors fall within the meaning of the
statute, whether or not they are intoxicat-
ing.
Laws of 1917, chap. 187, § 1 (Prohibi-
tion). " 'Intoxicating liquors* ... em-
brace all malt, fermented, vinous or spirit-
uous liquors, wine, porter, beer, ale. or any
251 U. S.
ilHi>.
UUPPERl V. CAJj'FEV.
285
10 six states, 1 per cent of alcohol; ' in one state, the presence of the '^alco-
intoxicating drink, . . . and all malt or
brewed drinks, and all mixtures .
which will produce intoxication, and in ad-
dition thereto, such liquors of a different
character and not hereinbefore enumerated
capable of use as a beverage containing
over i of 1 per cent of alcohol by volume."
12. Nevada: — Laws of 1919, chap. 1, § 1
(Prohibition). **The word^i •liquors' . . .
$haU embrace all malt, vinous, or spirituous
liquors, wine, porter, ale, beer, or any other
intoxicating drink . . . , and all malt
or brewed drinks, whether intoxicating or
aot> shall be deemed malt liquors within the
meaning of this act . . . and all bever-
ages containing so much as 1 of 1 per cent
of alcohol by volume, shall be deemed spirit-
uous liquors.**
State ex rel. Thatcher ▼. "Beao Brewing
Co. 42 Nev. 397, 178 Pac. 902.
13. Oklahoma :— Sess. Laws of 1913, chap.
^6, § 6, and Sess. Laws of 1917, chap. 186
(Prohibition), both define intoxicating liq-
uors as ''spirituous, vinous, ferment^ or
m< liquors ... or any liquors which
contain as much as } of 1 per cent of alcohol
by volume."
Estes V. State, 13 Okla. Crim. Rep. 604, 4
A.L.R. 1135, 166 Pac. 77, held that the
•tate, to secure conviction for violation of
the act, must prove either that the liquor
contained more than i of 1 per cent of alco-
hol or that it was in fact intoxicating.
14. Oregon: — ^Laws of 1905, chap. 2 (Lo-
cal Option), used only the term "intoxicat-
ing liquors."
State V. Carmody, 50 Or. 1, 12 L.RJl.
<N.S.) 828, 94 Pac. 446, 1081, held that the
court will judicially recognize that "beer" is
intoxicating in an indictment for selling
"intoxicating liquors."
Laws of 1915, chap. 141, § 2, p. 161. " 'In-
toxicating liquors' . . . embrace all spir-
ituous, malt, vinous, fermented, or other in-
toxicating liquors, and all mixtures . . .
which contain in excess of } of 1 per cent
of alcohol bv volume shall be deemed to be
embraced within the term independently of
any other test of their intoxicating charac-
ter."
15. Tennessee: — Acts of 1917, chap. 4, p.
6 (Anno. Code 1918. § 6798a34). Clubs,
etc., may not have on their premises any liq-
uor ''containing more than i of 1 per cent
of alcohol."
16. Utah:— Laws of 1911, chap. 106, § 2;
Laws of 1913, chap. «1, § 2 (License Laws),
"any spirituous, vinous, fermented or malt
liquor that may be used ns a beverage and
produce intoxication."
Laws of 1917, chap. 2, ^ 2 (Prohibition).
"'Liquors' . . . embrace all fermented,
malt, vinous, or spirituous liquors, alcohol,
wine, porter, ale, beer, absinthe or any other
intoxicating drink . . . and all malt or
brewed drinks; and all liquids . . . which
will produce intoxication; . . . and all
beverages containing in excees of i of 1 per
cent of alcohol by volume."
17. Virginia:— Code of 1887, § 587 (Local
6i li. ed.
Option), "any wine, spirituous or malt liq-
uors, or any mixture thereof."
Savage«v. Com. 84 Va. 582, and 619, 5 S.
E. 563, 565, held that a sale of "ginger ex-
tract," in order to be illegal, requires the
proof that the extract is intoxicating.
Acts of 1916, chap. 146, § 1, p. 216, "ar-
dent spirits . . . embrace alcohol, brandy,
whisky, rum, gin, wine, porter, ale, beer, ail
malt liquors, absinthe, and all compounds
. • ; and all beverages containing more
than i of 1 per cent of alcohol by volume."
18. West Virginia: — Code, chap. 32, % 1,
as amended by Acts of 1877, chap. 107, pro-
hibits the sale of "spirituous liquors, wine,
porter, ale, beer, or any drink of a like
nature . . . and all mixtures . • •
.known as fitters' . • • which will pro-
duce intoxication . • • shall be deemed
intoxicating liquors."
Slate T. Oliver, 26 W. Va. 422, 427. 53
Am. Kep. 79, in a dictum declares that beer
is prohibited whether it is intoxicating beer
or not.
Code of 1906, chap. 32, 1 1» is substantial-
ly the same.
"State v. Henry, 74 W. Va. 72, 4 AX.R.
1132, 81 S. K 569, on indictment for sellinfi:
'intoxicating liquors' held that evidence ^
sale Of Imvo' containing 1.31 per cent of
alcohol sufficient to sustain a conviction."
Acts of 1913, chap. 13, | 1. "^Liquors'
. • . embrace all malt, vinous, spirituous
or liquors, wine, porter, ale, beer, or any
other intoxicating drink . . . ; and all
malt or brewe.d (kinks whether intoxicating
or not shall be deemed malt liquors . . .
and all beverages containing so much as i
of 1 per cent of alcohol by volume."
NoTB («) :—
1. California:— Stat. 1911, ehap. 831, § 21
(Local Option and License). "'Alcoholic
liquors' . . . include spirituous, vinous
and malt liquors, and any other liquor
. . . which contains 1 per cent" of alcohol
or more.
People ▼. Strickler, 25 Cal. App. 60, 142
Pac. 1121, held that the clause "and any
other liquor which shall contain 1 per cent
of alcohol or more" modified the enumerated
liquors, so that a malt liquor containing less
than 1. per cent of alcohol, and not in-
toxicating, did not fall within the act.
2. Massachusetts: — Rev. . Laws 1902,
chap. 100, § 2 (Local Option and License).
"Ale, porter, strong beer, lager beer, cider,
all wines, any beverage which contains more
than 1 per cent of alcohol by volume . . .
shall be deemed to be intoxicating."
Com. V. McGrath, 185 Mass. 1, 69 N. E.
340, held that cider fell within the act,
whether it contained 1 per cent of alcohol or
was intoxicating or neither.
Com. V. Bios, 116 Mass. 56, held that a
liquor not enumerated in the statute is not
prohibited unless it falls within the general
definiti9n, which is a question for the jury.
Supp. to Rev. Laws, 1908, chap. 100, § 1,
retains th^ same definition..
3. New Uampshirc:— Gen. Laws 1878,
271
286
SLPHKMK COUKT OF TilK UNITED STATES.
Oct. Term,
holic principle ;'^ ^ and in two states,
2 per cent of alcohol. ^ Thus in [286]
forty-two of the forty-eight states —
Marylahd appears in two classes above
— a malt liquor containing over 2 per
cent of alcohol by weight or volume is
chap. 109, § 15, restricted the sale'of "lager
beer or other malt liquors."
State V. Thornton, 63 N. H. 114, held that
all malt liquors come within the meaning of
the act, whether or not they are intoxicat-
ing.
Supp. to Pub, Stat, and Sess. Laws 1901-
1913, p. 7, defines intoxicating liquors as "all
distilled liquors or rectified spirits; vinous,
fermented, brewed and malt liquors; and
any beverage . . . containing more than
1 per cent of alcohol by volume/'
Laws of 1917, chap. 147, § 60 (Prohibi-
tion). "By the words spirit, liquor, spirit-
uous liquor, intoxicating liquor ... (is
meant) ... all distilled spirits or recti-
fied spirits; vinous, fermented, brewed and
malt liquors; and any beverage .
containing more than 1 per cent of alcohol
by volume."
4. South Carolina:— Rev. Stat. 1893,
Crim. Stat. § 437; Code 1902, Crim. Code, §
555; Code 1912, Crim. Code, § 794, pro-
hibit any spirituous^ malt, vinous, fer-
mented, brewed or other liquors and
beverages, or any, conipoun4 or mixture
raefe6i which contains alcohol.
Acts of 1917, No. 94, prohibits **any spir-
ituous, malt, vinous, fermented, brewed, or
other liquors and beverages, or any com-
pound or mixture thereof which contains
alcohol in excess of 1 per cent."
5. Vermont: — Rev. Laws 1880, § 3800,
prohibited the sale of cider- at places of
amusement.
State y. Spaulding, 61 Vt. 605, 17 Atl.
844, held that the prohibition covered all
cider, whether intoxicating or not.
Laws of 1902, Nb. 90, % 1, p. 94 (Gen.
Laws 1917, § 6452 ) . *' Intoxicating liquors'
. . . shall mean ale, porter, beer, lager
beer, cider, all wines, and beverage which
contains more than 1 per cent of alcohol by
volume."
6. Wyoming:— Comp. Stat. 1910, § 2838.
"Any person who shall sell . . . any
liquors, either spirituous, vinous, fermented,
or malt, without a license, etc."
Sess. Laws of 1919, chap. 25, § 2 (Prohi-
bition). "Intoxicating liquor*
include any distilled, malt, spirituous, vi-
nous, fermented, or alcoholic liquor and all
alcoholic liquids . . . capable of being
used as a beverage, which shall contain more
than 1 per cent of alcohol."
Note (/) : —
North Dakota :--Rev. Code 1895, § 7598,
contains a proviso to the effect that ferment-
ed and alcoholic liquors containing less than
2 per cent of alcohol by volume shall not be
deemed to be intoxicating.
Laws of 1897, chap. 65, § 10. "Courts
will t^ke judicial notice that beer is a malt
liquor and intoxicating."
State V. Currie, 8 N. D. 645, 80 N. W.
475 (1899), held that the statute meant
that beer is to be presunted to be intoxicat-
ing until proved not to be so.
272 ■
Rev. Code 1899, § 7598, prohibits "all
spirituous, malt, vinous, fermented, or other
intoxicating liquors or mixtures thereof
. . . that produce intoxication, or any
liquors sold as. a bevera<^e and which con-
tain . . . methyl alcohol, aravl alcohol,
etc."
State V. Virgo, 14 X. D. 293, 103 N. W.
610 (1905), held that the act only applied
to such liquors as were in fact intoxic^ing.
T^aws of 1909, chap. 187> p. 277. Intoxi-
cating liquors include alcohol, brandy, rum,
beer, ale, porter, wine, and hard cider, also
all spirituous, malt, etc., liquors, which will
produce intoxication in any degree; or any
mixture of such or any kind of beverage
whatsoever which, while preserving the alco-
holic principle or any other intoxicating
quality, may be used as a beverage and mav
become a substitute for the ordinary intoxi-
cating beverages.
State V. Fargo Bottling Works Co. 19 N.
D. 397, 26 LR.A.(N.S.) 872, 124 N. W.
387, held that "Purity Malt," containing
1.75 per cent of alcohol, "preserved the al-
coholic principle," and whether or not it
was intoxicating, it might not lawfully be
sold.
Note (^) : —
1. Louisiana: — Shreveport Ice ft Brewing
Co. V. Brown, 128 La. 408, 54 So. 923, held
that a statute regulating the sale of "spirit-
uous and intoxicating liquors" includes only
intoxicating liquors.
Acts of Sxtra Session, 1910, No. 171, de-
fines "grog-shop" as a place where "intoxi-
cating, spirituous, vinous, or malt liquors
are sold" (and forbids them in prohibition
territory ) .
State v.-Maroun, 128 La. 829, 66 So. 472,
held that the malt liquors must be in-
toxicating to be within the meaning of the
statute.
Acts of 1914, No. 146, repeats a similar
definition of grog-shop or blind tiger. Acts
of 1914, No. 211, forbids the manufacture of
near-beer with more than 1.59 per cent of
alcohol by weight or 2 per cent by volume;
and prohibits the sale of the near-beer thus
made under the same roof where any other
beverage is sold.
State V. George, 136 La. 906, 67 So. 953,
seems to hold that this near-beer may be
sold in prohibition territory where the
"grog-shops" are not allowed.
2. Montana: — Laws of 1917, chap. 143, §
2. " * Intoxicating liquors' . . . include
whisky, brandy, gin, rum, wine, aK-, and
spirituous, vinous, fermented, or malt liq-
uors or liquid . . . which contain as
much as 2 per cent of alcohol by volume and
is capable of being used as a beverage.**
State V, Centennial Brewing Co. 55 Mont.
500, 179 Pac. 296, holds specifically men-
tioned liquors prohibited regardless of al-
coholic content.
251 U. 8.
jyia.
KUPPERT V. CAFFEV.
286-293
deemed, for the purpose of regulation
or prohibition, intoxicating as a [287]
matter of law. Only one state has
adopted a test as high as 2.75 per cent
by weight or 3.4 per cent by volume. *
Only two states permit the question of
the intoxicating character of an enum-
erated liquor to be put in issue.* tn
[288] three other states the matter has
not been made clear either by decision
or legislation.^ The decisions of the
courts as well as the action of the legis-
latures make it clear — or, at least, fur-
nish ground upon which Congress
[289] reasonably might conclude — that
a rigid classification of beverages is an
essential of either effective regulation
or effective prohibition of intoxicating
liquors.*
Purity Extract & Tonie Co. v. Lynch,
226 U. S. 192, 67 L. ed. 184, 33 Sup. Ct.
Rep. 44, determined that state legisla-
tion of this character is valid, and set
forth [290] with clearness the consti-
tutional ground upon which it rests:
"When a state, exerting its recognized
authority, undertakes to suppress what
it is free to regard as a public evil, it
may adopt such measures having rea-
sonable relation to that end as it may
deem necessary in order to make [iSOl]
its action effective. It does not follow
that because a transaction separately
considered is innocuous, it may not be
included in a prohibition the scope of
which is regarded as essential in the
legislative judgment to accomplish a
[292] purpose within the admitted
power of the government. [P. 201.]
. . . It was competent for the legis-
lature of Mississippi to recognize the
difficulties besetting the administration
of laws aimed at the prevention of
traffic in intoxicants. [293] It prohibit-
ed, among other things, the sale of *malt
liquors.' In thus dealing with a class of
Note (h) : —
Rhode Island: — ^Pnb. Laws of 1887, chap.
634, § 2. " intoxicating liquors' . . .
include wine, rum, or other strong, or malt
liquors, or any liquor or mixture which shall
contain more than 2 per cent by weight of
alcohol,** and this is not to be construed to
{M^mit the sale of liquors containing less
tlun 2 pA* cent if intoxicating.
Public Laws 1910, chap. 1740, § 1 (amend-
ing Gen. Laws, chap. 123, § 1 ) . " 'Nonin-
toxicating beverages' as used in this act, in-
cludes and means all distilled or rectified
spirits, wines, fermented and malt liquors
which contain 1 per centum and not more
than 4 per centum by weight of alcohol.
"Sec. 2. No person shall manufacture or
sell or suffer to be manufactured or sold, or
keep or suffer to be kept on his premises or
possessions or under his charge for the pur-
poses of sale and delivery, any nunintoxicat-
ing beverages, unless as hereinafter provid-
"Sec. 5. The electors of the several cities
and towns . . . shall . . . cast
their ballots for or against the granting of
licenses for the sale of nonintoxicating bev-
erages pursuant to this act. . . ."
Maryland: — Laws of 1918, chap. 219, p.
580 (prohibiting at night the sale of in-
toxicating liquors to be carried away from
the place of sale). Expressly excludes from
the operation of the act "malt liquors con-
taining less than 4 per cent of alcohol by
weight."
'Hi is provision, however, is not attempt-
ing to make a classification of intoxicating
liquors. For laws of this state which do
that, see Note o (7) and Note d (9).
1. Kentucky:— Statutes of 1903, § 2654,
as amended by Laws of 1906, chap. 21, for-
bids the sale in dry territory of '^spirituous,
vinous or malt liquors." Bowlinj? Oreen v.
64 L. ed.
McMullen, 134 Ky. 742, 26 L.R.A.(N.S.)
895, 122 S. W. 823, held that the liquors
named must be intoxicating in fact to be
forbidden by the act.
2. Texas:— Rev. Stat. 1895, art. 5060a,
taxes the selling of "spirituous, vinous, or
malt liquors, or medicated bitters capable
of producing intoxication."
Ex parte Gray, — Tex. Crim. Rep. — ,
83 S. W. 828; Reisenberg v. State, — Tex.
Crim. Rep. — , 84 S. W. 585, held that non-
intoxicating malt beverages may be sold
without a license.
Gen. Laws 1918, chap. 24 (Prohibition),
uses the same terms as the older statute and
is cumulative, so presumably it has the same
meaning.
3. Louisiana: — See Note / (1). The test
of 2 per cent applies only to near-beer. Pre-
sumably a^ vinous liquor must be proved in-
toxicating in fact under the decisions.
Note (;) : —
1. New Jersey: — Laws of 1918, chap. 2,
§ 1 (Local Option). "The term *intoxicat-
ing liquor' . . . shall mean any spirit-
uous, vinous, malt, brewed, or any other
intoxicating liquor."
No interpretations.
2. North Carolina: — Sp. Sess. 1908, chap.
71, § 1. Prohibits the sale of "any spirit-
uous, vinous, fermented, or malt liquors, or
intoxicating bitters."
Pub. Laws 1909, chap. 438, Schedule B,
§§ 26 and 63, imposed a license tax on the
sale of "near-beer or any drinks containing
i of 1 per cent alcohol or more."
Parker v. Griffith, 151 N. C. 600, 66 S. E
665; State v. Danenberg, 151 N. C. 718, 26
L.R.A.(N.S.) 890. 66 S. E. 301, held that
the sale of near-beer containing 1^ per cent
of alcohol was lawful.
3. Pennsylvania : — No definition.
IH
Note (k) : —
Hev Xote b, 'snpra.
273
29a-299
SUPREME COUKT OF THE UNITED STATES.
Oct. T
beverages which in general are regarded
as intoxicating, it was not bound to re-
sort to a discrimination with respect to
ingredients and processes of manufac-
ture which^ in the endeavor [294] to
eliminate innocuous beverages from the
condemnation, would facilitate subter-
fuges and frauds and fetter the enforce-
ment of the law. A contrary conclu-
sion logically pressed would save the
nominal power while preventing its ef-
fective exercise. [P. 204.] . . . The
state, [295] within the limits we have
stated, must decide upon the measures
that are needful for the protection of
its people^ and, having regard to the
artifices which are used to promote the
sale of intoxicants under the guise of
innocent [296] beverages, it would
constitute an unwarrantable departure
trom accepted principle to hold that the
prohibition of the sale of all malt li-
quors, including the beverage in ques-
tion, was beyond its reserved power."
P. 205.
[297] That the Federal government
would, in attempting to enforce a pro-
hibitory law, be confronted with difA-
culties similar to those encountered by
the states, is obvious; and both this
experience of the states and the need
of the Federal government of legislation
defining intoxicating liquors, as was
done in the Volstef^ Act, was clearly
set forth in the reports of the House
Committee on the Judiciary in report-
ing the bill to the 65th Congress, 3d
Session, Report 1143, February 26, 1919,
and to the 66th Congress, 1st Session,
Report 91, June 30, 1919. Further-
more, recent experience of the mil-
itary forces had shown the neces-
sity [298] of fixing a definite alcoholic
test for the purpose of administering
the limited prohibitory law included in
the Selective Service Act of May 18,
1917, chap. 15, § 12, 40 Stat, at L. 76,
82, Comp. Stat. § 2019a.' And the At-
torney General, calling attention specifi-
cally to the claim made in respect to the
2.75 per cent beer, had pointed out to
Congress that definition of intoxicating
liquor by fixed standards was essential
to effective enforcement of the Prohibi-
tion Law."* It is therefore [299] cle«r
both that Congress might reasonably
have considered some l^islative defini-
tion of intoxicating liquor to be essen-
tial to effective enforcement of prohi-
bition, and also that the definition pro-
vided by the Volstead Act was not an
arbitrary one.
Plaintiff's argument is equivalent to
saying that the war power of Congress
to prohibit the manufacture and sale of
intoxicating liquors does not extend to
the adoption of such means to this end
as in its judgment are necessary to the
None (I) : —
That statute made it "unlawful to sell
any intoxicating liquor, including beer, ale
or wine, to any officer or member of the
military forces while in uniform." The
Judge Advocate General having been applied
to for an opinion concerning its administra-
tion advised that: In matters of military
inquiry, the War Department regards a bev-
erage that contains 1.4 per cent of alco-
hol as intoxicating liquor within the mean-
ing of § 12 of the Selective Service Act of
May 18, 1917, and the regulations of the
President and the Secretary of War made
thereunder; whether bevf rages are intoxi-
cating liquors ... in prosecution of
civilians is a question for the civil courts.
Opinions of Judge Advocate General, 250.
Dec. 4, 1918— Digest of 1918, p. 360. See
also Opinion of March 3, 1919— Digest of
1919, p. 289.
Note (m) : —
Referring to the proposed definition: "I
do not think the wisdom of such action on
the part of Congress admits of doubt: It
goes without saying, I think, that if a law
merely prohibits intoxicating liquors and
leaves to the jury in each cAse, from the evi-
dence produced, to determine whether the
liquor in question is, in tact, intoxicating
or not, its efficient and uniform administra-
tion will be impossible. The term *into\i-
274
eating* is too indefinite and uncertain to
produce anything like uniform reeulta in
such trials. Of course, there are certain
liquors so generally known to be intoxicat-
ing that any court would take judicial no-
tice of this fact. But in the absence of a
definition by Ckmgress there will be innum-
erable beverages as to which the claim will
be made that they do not contain enough
alcohol to render them intoxicating, lliese
contentions will produce endless confusion
and uncertainty. These, I think, are sub-
stantially the reasons why Congress should
itself provide a definition.
"The importance of this matter has been
very much emphasized by our present ef-
forts to enforce the War Prohibition Act.
The claim is beine made that beer contain-
ing as much as 2} per cent of alcohol is
not intoxicating. And if this must be made
a question of fact to be derided by each jury,
but little in the way of practical results
can be expected. I am, however, most earn-
estly insisting that, in view of the rulings
for many years by the Internal Revenue De-
partment, Congress meant when it used the
word *boer' a beverage of the class generally
known as beer if it contained as much as
1 of 1 per cent of alcohol." Letter of At-
torney General to Senator Morris Shep-
herd, July 23, 1919, read in Senate, Septem-
ber 6, 1919, 68 Congressional Record, .>i85.
851 U. 6.
1919.
RUPPERT V. CAFFEY.
299-301
effective administration of the law. The
<H>ntention appears to be, that since the
power to prohibit the manufacture and
sale of intoxicating liquors is not ex-
pressly granted to Congress, but is a
power implied under § 8 of article 1 of
the Constitution, which authorizes Con-
gress ''to make all laws which shall be
necessary and proper for carrying into
execution^ powers expressly enumerat-
ed, the power to prohibit nonintoxicants
would be merely an incident of the
power to prohibit intoxicants; and that
it cannot be held to exist, because one
implied power may not be grafted upon
another implied power. This argument
is a mere matter of words. The police
X>ower of a state over the liquor traffic
is not limited to the power to prohibit
the sale of intoxicating liquors, support-
. ed by a sepalrate implied power to pro-
hibit kindred nonintoxicating liquors so
far as necessary to make the prohibition
of intoxicants effective; it is a single
broad power to make such laws, by way
of prohibition, as may be required to
effectively suppress the traffic in intoxi-
cating liquors. Likewise the implied
[300] war power over intoxicating liq-
uors extends to the enactment of laws
which will not merely prohibit the sale
of intoxicating liquors, but will effeet-
. ually prevent their sale. Furthermore,
as stated in Hamilton v. Kentucky Dis-
tilleries & Warehouse Co. [251 U. S.
146, ante, 194, 40 Sup. Ct. Rep. 106],
while discussing the implied power to
prohibit the sale* of intoxicating liq-
uors: ''When the United States exerts
any of the powers conferred upon it by
the Constitution, no valid objection can
be based upon the fact that such exer-
cise may be attended by the same inci-
dents which attend the exercise by a
state of its police power."
The distinction sought to be made by
plaintiff between the scope or incidents
of an express power and those of an im-
plied power has no basis in reason or au-
thority. Thus, the Constitution confers
upon Congress the ei^press power "to
establish postoffices and post roads" (art.
1, § 8, clause 7). From this is implied
the power to acquire land for postoffices
in the several states (Battle v. United
States, 209 U. S. 36, 52 L. ed. 670, 28
Sup. Ct. Rep. 422) ; and as an incident
of this implied power to acquire land,
the further power is implied to take it
by right of eminent domain (Kohl v.
United States, 91 U. S. 367, 23 L. ed.
449). Likewise, the Constitution confers
by clause 3 the express power "to regu-
late commerce among the several I
«4 li. ed.
states;" but there is implied for this
purpose Also the power to grant to in-
dividuals franchises to construct and
operate railroads from state to state
(CaUfornia v. Central P. R. Co. 127 U.
S. 1, 39, 32 L. ed. 150, 157, 2 Inters.
Com. Rep. 153, 8 Sup. Ct, Rep. 1073).
Incidental to this implied power to con-
struct or authorize the construction of &
railroad is the further implied power
to regulate the relations of the railroad
with its employees (Second Employers'
Liability Cases (Mondou v. New York,
N. H. & H. R. Co.) 223 U. S. 1, 47, 56
L. ed. 327, 345, 38 L.R.A.(N.S.) 44, 32
Sup. Ct. Rep. 169, 1 N. C. C. A. 875) ;
to require safety appliances upon cars,
even when used in intrastate commerce
(Southern R. Co. v. United States, 222
U. S. 20, 56 L. ed. 72, 32 Sup. Ct. Rep.
2, 3 N. C. C. A. 822) ; and to regulate
freight rates even to the extent of affect-
ing intrastate rates (American Exp. Co.
v. South Dakota, 244 U. S. 617, 61 L.
ed. 1352, P.U.R.1917F, 45, 37 Sup. Ct
Rep. 656). Whether it be for purposes
of national defense, or for the purpose
[301] of establishing postoffices and
post roads^ or for the purpose of reg-
ulating commerce among the seveiil
states, Congress has the power "to
make all laws necessary and proper
for carrying into execution" the duty
so reposed in the Federal government.
While this is a government of enu-
merated powers, it has full attributes
of sovereignty within the limits of
those powers. Re Debs, 158 U. S.
564, 39 L. ed. 1092, 15 Sup. Ct. Rep.
900. Some confusion of thought might
perhaps have been avoided, if, instead
of distinguishing between powers by the
term "express and implied," the term
"specific and general," had been used.
For the power conferred by clause 18 of
§ 8 "to make all laws which shall be
necessary and proper for carrying into
execution" powers specifically enumerat-
ed is also an express power. Since Con-
gress has power to increase war effi-
ciency by prohibiting the liquor traffic,
no reason appeal's why it should be de-
nied the power to make its prohibition
effective.
Second: Does the fact that title 1 of
the Volstead Act took effect upon its
passage render § 1 invalid as against
the plaintiff? Prohibition of the manu-
facture of malt liquors with alcoholic
content of i of 1 per cent or more is
permissible only because, in the opinion
of Congress, the war emergency demands
it. If, in its opinion, the particular
emergency demands the immediate dis-
275
301-303
SrPREME COURT OF THE UNITED STATES.
Oct. Term,
continuance of the traflSc, Congress must
have the power to require suoh discon-
tinuance. To limit the power of Con-
j^s3 so that it may require discontinu-
ance only after the lapse of a reasonable
time from the passage of the act would
seriously restrict it in the exercise of
the war powers. Hardship resulting
from making an act take effect upon its
passage is a frequent incident of per-
missible legislation ; but whether it shall
be imposed rests wholly in the discretion
of the law-making body. That the pro-
hibition of the manufacture of nonin-
toxicating beer, if permissible at all, may
be made to take effect immediately, fol-
lows necessarily from the principle acted
upon in Mugler v. Kansas, 123 [802]
U. S. 623, 669, 31 L. ed. 205, 213, 8 Sup.
Ct. Rep. 273, since the incidents at-
tending the exercise by Congress of
the war power to prohibit the liquor
traffic are the same as those that
attend the states' prohibition under
the police power. In the Mugler Case,
also, the breweries were erected at a
time when the state 'did not forbid
the manufacture of malt liquors; and
there it was alleged that the prohibi-
tion, which became effective almost im-
mediately, would reduce the value of one
of the breweries by three fourths and
would render the other of little value.
Here, as there, the loss resulting to the
plaintiff from inability to use the prop-
erty for brewery purposes is an incident
of the peculiar nature of the property
and of the war need which, we must as-
sume, demanded that the discontinuance
of use be immediate. Plaintiff cannot
complain because a discontinuance later
would have caused him a smaller loss.
This, indeed, appears to be conceded so
far as concerns the brewery and appur-
tenances. The objection on the ground
that the prohibition takes effect inmie-
diately is confined to the prohibition of
the sale of the beer on hand at the time
of the passage of the act. But as to
that also we cannot say that the action
of Congress was unreasonable or arbi-
trary.
Plaintiff contends, however, that even
if immediate prohibition of the sale of
its nonintoxicating beer is within the war
power, this can be legally effected only
provided compensation is made; and it
calls attention to the fact that in Bar-
bour V. Georgia, 249 U. S. 454, 459, 63
L. ed. 704, 707, 39 Sup. Ct. Rep. 316,
following some earlier cases, the ques-
tion was reserved whether, under the
police power, the states could prohibit
the sale of liquor acquired before the
376
enactment pf the statute. It should^
however, be noted that, among the judg-
ments affirmed in the Mugler Case, was
one for violation of the act by selling
beer acquired before its enactment (see
pp. 625, 627) ; and that it was assumed
without discussion that the same rule
applied to the brewery and its product
(p. 669). But we are not required to
determine here the limits [803] in
this respect of the police power of
the states; nor whether the principle
is applicable here under which the
Federal government has been declared
to be free from liability to an owner
**for private property injured or de-
stroyed during the war, by opera-
tions of armies in the field, or by
measures necessary to their safety and
efficiency" (United States v. Pacific R.
Co. 120 U. S. 227, 239, 30 L. ed. 634, 638, .
7 Sup. Ct. Rep. 490) ; in analogy to that
by which states are exempt from liabil-
ity for the demolition of a house in the
path of a conflagration, see Lawton v.
Steele, 152 U. S. 133, 136, 38 L. ed. 385,
888, 14 Sup. Ct. Rep. 499; or for garbage
of value taken, California Reduction Co.
V. Sanitary Reduction Works, 199 U. S.
306, 50 L. ed. 204, 26 Sup. Ct. Rep. 100 ;
Gardner v. Michigan, 199 U. S. 325, 50
L. ed. 212, 26 Sup. Ct. Rep. 106 ; or for
unwholesome food of value destroyed.
(North American Cold Storage Co. v. -
Chicago, 211 U. S. 306, 53 L. ed. 196, 29
Sup. Ct. Rep. 101, 16 Ann. Cas. 276;
Adams v. Milwaukee, 228 U. S. 672, 584,
57 L. ed. 971, 977, 33 Sup. Ct. Rep. 610)
for the preservation of the public health.
Here, as in Hamilton v. Kentucky Dis-
tilleries & Warehouse Co. supra, there
was no appropriation of private prop-
erty, but merely a lessening of value due
to a permissible restriction imposed upon
its use.
It is urged that the act is particularly
oppressive in respect to the beer on
hand, because the plaintiff was engaged
in manufacturing and selling a nonin-
toxicating beverage expressly authorized
by the President in his Proclamation
of December 8, 1917 [40 Stat, at L. 84],
and prohibited by him later, only when
conservation of all the food products of
the country became necessary. The
facts afford no basis on which to rest
the claim of an equity in the plaintiff's
favor. The specific permission from the
President to manufacture 2.75 per cent
beer was not on the ground that such
beer was nonintoxicating; nor was it a
declaration by him that this beer was
in fact nonintoxicating. The permission
extendod to all *^ale and porter," which.
2.51 r. s.
1919.
HUPPERT V. COFFKV.
303-30ti
everyone knows, are intoxicating liq-
uors.'"^ This permission to [304] make
2.75 per cent beer wa^ withdrawn
December 1, 1918, under proclamation
of September 16, 1918 |^40 Stat, at
Li. 204]; and no permission to man-
ufacture specifically 2.75 per cent beer
was ever thereafter given by the Pres«
ident. His later proclamation (March
4, 1919 [40 Stat, at L. 293]) merely
limited the' prohibition of the use of
foodstuffs to use in the production
of "intoxicating liquors." Whether
2.75 per cent beer was intoxicating
was thus left by the President not
only without a decision, but without
even an intimation. The statement of
plaintiff that the 2.75 per cent beer on
hand was manufactured under permis-
sion of the President is wholly un-
founded. It was not until July 1, 1919,
-when the War-time Prohibition Act of
November 21, 1918 [40 Stat, at L. 1045,
chap. 212] became operative in this re-
spect that there was any prohibition of
the sale of any liquors. So far as ap-
pears, all the beer which the plaintiff
bad on hand at the time of the passage
of the Volstead Act was manufactured
by the plaintiff long after the President
had ceased to have any authority to for-
bid or to permit.
Decree affirmed.
Mr. Justice McBeynolds, with whom
concurred Mr. Justice Day and Mr. Jus-
tice Van Devanter, dissenting:
I cannot accept either the conclusion
announced by the court or the reasons
advanced to uphold it. The importance
of the principles involved impels a dis-
sent.
We are not now primarily concerned
with the wisdom or validity of general
legislation concerning liquors, nor with
the intoxicating qualities of beer, nor
with measures taken by a state under its
inherent and wide general powers to
provide for public safety and welfare.
Our problem concerns the power of Con-
gress and rights' of the citizen after a
declaration of war, but when active
[305] hostilities have ended and de-
mobilization has been completed.
The government freely admits, since
the present cause stands upon motion to
Note in) : —
Webflter defines ale as: "An intoxicatin<]^
liquor made from an infusion of malt by
fermentation and the addition of a bitter,
usually fiops;" and porter as: "A malt
liquor, of dark color and moderately bitter
taste, possessing tonic and intoxieatin«f (|ual-
ities."
€4 li. ed.
dismiss a bill which plainly alleges that
the beer in question is nonintoxicating,
we must accept that allegation as true
and bevond controversy. In United
States V. Standard Brewery, decided this
day [251 U. S. 210, ante, 229, 40 Sup. Ct.
Rep. 139], we rule in effect that for
many months prior to the Volstead A<ct,
passed October 28, 1919, no law of
the United States forbade the produc-
tion or sale of nonintoxicating malt
liquors. And so the question for
decision here distinctly presented is
this: Did Congress have power on
October 28, 1919, directly and instantly
to prohibit the sale of a noninfoxicating
beverage, theretofore lawfully produced
and which until then could hsLve been
lawfully vended, without making any
provision for compensation to the own-
er?
The Federal government has only those
powers granted by the Constitution.
The 18th Amendment not having become
effective, it has no general power to pro-
hibit the manufacture or sale of liquors.
But by positive grant Congress has been
empowered: "To declare war," "to raise
and support armies," "to provide and
maintain a navy," "to make rules for
the goyemment and regulation of the
land and naval forces," "to make all
laws which shall be necessary and proper
for carrying into execution the foregoing
powers;" and to these it is attempted
to trace the asserted power to prohibit
sale of complainant's beer. See, con-
cerning implied powers, Cooley, Const.
Law, 105 ; Story, Const. 4th ed. § 1243.
The argument runs: This court has
held in Hamilton v. Kentucky Distil-
leries & Warehouse Co. (decided Decem-
ber 8th) [251 U. S. 146, ante, 194, 40
Sup. Ct. Rep. 106], that under a power
implied because necessary and proper to
carry into execution the above-named
powers relating to war, in October,
1919, Congress could prohibit the sale
[306] of intoxicating liquors. In or-
der to make such a prohibition effective
the sale of nonintoidcating beer must
be forbidden. Wherefore, from the im-
plied power to prohibit intoxicants the
further power to prohibit this nonin.
toxicant must be implied.
The query at once arises: If all this
be true, why may not the second im-
plied power engender a third, under
which Congress may forbid the planting
of barley or hops, the manufacture of
bottles or kegs, etc., etc.? The mis-
chievous consequences of such reason-
277
auo oos
SI PRKME COURT OF THE UNITED STATES.
Oct. X
ing were long ago pointed out in Kidd
V. Pearson, 128 U. S. 1, 21, 32 L. ed.
346, 350, 2 Inters. Com. Re'p. 232, 9
Sup. Ct. Rep. 6, where, replying to a
suggestion that under the expressly
nranted power to regulate commerce.
Congress might control related matters,
it was said:
"The result would be that Congress
would be invested, to the exclusion of
the states, with the power to regulate
not only manufactures, but also agricul-
ture, horticulture, stock raising, domes-
tic fisheries, mining, — in short, every
branch of human industry. For is there
one of tfiem that does not contemplate,
more or less clearly, an interstate or
foreign market f'
For sixty years Ex parte Milligan, 4
WaU. 2, 120, 126, 18 L. ed. 281, 296,
297, has been regarded as a splendid ex-
emplification of the protection which
this court must extend in time of war
to rights guaranteed by the Constitution,
and also as decisive of its power to as-
certain whether actual military neces-
sity justifies interference with * such
rights. The doctrines then clearly — I
may add, courageously — announced con-
flict with the novel and hurtful theory
now promulgated. A few pertinent quo-
tations from the opinion will accentuate
the gravity of the present ruling:
"Time has proven the discernment of
our ancestors; for even these provisions,
expressed in such plain English words
that it would seem the ingenuity of man
could not evade them, are now, after
the lapse of more than seventy years,
sought to be avoided. Those great and
[807] good men foresaw that troub-
lous times would arise, when rulers
and people would become restive under
restraint, aiid seek by sharp and de-
cisive measures to accomplish ends
deemed just and proper; and that
the principles of constitutional lib-
erty would be in peril, unless estab-
lished by irrepealable law. The his-
tory of the world had taught them
that what was done in the past might
be attempted in the future. The Con-
stitution of the United States is a law
for rulers and people, equally in war
and in peace, and covers with the shield
of its protection all classes of men, at
all times, and under all circumstances'.
No doctrine, involving more pernicious
consequences, was ever invented by the
wit of man than that any of iti provi-
sions can be suspended during any of the
arrest exigencies of government. Such
278
a doctrine leads directly to anarchy or
despotism, but the theory of necessity on
which it is based is false; for the gov-
ernment, within the Constitution, has all
the powers g;ranted to it which are nec-
essary to preserve its existence; as has
been happily proved by the result of the
great effort to throw off its just author-
ity.
"This nation, as experience has proved,
cannot always remain at peace, and has
no right to expect that it will always have
wise and humane rulers, sincerely at-
tached to the principles of the Constitu-
tion. Wicked men, ambitious of power,
with hatred of liberty and contempt of
law, may fill the place once occupied by
Washington and Lincoln; and if this
right is conceded, and the calamities of
war again befall us, the dangers to hu-
man liberty are frightful to oontem-
plate. If our fathers had failed to pro-
vide for just such a contingency, they
would have been false to the trust re-
posed in them. They knew — ^the history
of the world told them — the nation they
were founding, be its existence short or
long, would be involved in war; how
often or how long continued, human
foresight could not tell; and that unlim-
ited power, wherever lodged [808] at
such a time, was especially hazardous to
freemen. For this, and other equally
weighty reasons, they secured the in-
heritance they had fought to maintain,
by incorporating in a written constitu-
tion the safeguards which tiw^ had
proved were essential to its preservation.
Not one of these safeguards can the
President, or Congress, or the Judiciary
disturb, except the one concerning the
writ of habeas corpus."
By considering the circumstances ex-
isting when the War-time Prohibition
Act of November 21, 1918 [40 Stot at
L. 1046, chap. 212], was challenged, in
order to reach the conclusion announced
in Hamilton v. Kentucky Distilleries &
Warehouse Co. supra, this court as-
serted its right to determine the rela-
tionship between such an enactment and
the conduct of war; the decision there
really turned upon an appreciation of
the facts. And that the implied power
to enact such a prohibitive statute does
not spring from a mere technical state
of war, but depends upon some existing
necessity directly related to actual war-
fare, was recognized. Treating that
opinion as though it asserted the exis-
2&1 V. 8.
1919.
RUPPERT V. COFFEY.
308-310
ienee <^ a general power delegated to
Congress to prohibit intoxicants, certain
eases which declare our inabili^ to in-
terfere with a state in the exercise of
its police power (Purity Extract & Tonic
Co. V. Lynch, 226 U. S. 192, 67 L. ed.
184, 33 Sup. Ct. Rep. 44; New York
ex rel. Silz v. Hesterberg, 211 U. S. 31,
etc., 53 L. ed. 76, 29 Sup. Ct. Rep. 10)
are now cited, and it is said they af-
ford authority fox upholding the chal-
lenged statute. But those cases are es-
sentially different from the present one,
both as to facts and applicable prin-
ciples; the power exercised by the states
was inherent, ever present, limited only
by the 14th Amendment, and there was
DO arbitrary application of it; the pow-
er of Congress recognized in Hamilton
V. Kentucky Distilleries & Warehouse
Co., and here relied upon, must be in-
ferred from others expressly granted,
and diould be restricted, as it always
has been heretofore, to actual necessities
consequent upon war. It can only sup-
port a measure directly relating to such
necessities, and only so long as the re-
lationship continues. Whether these
[809] essentials existed when a meas-
ure was enacted or challenged, pre-
sents a question for the courts; and,
accordingly, we must come to this
ultimate inquiry: — Can it be truth-
fully said, in view of the well-known
taets existing on October 28, 1919,
that general prohibition immediately
after that day of the sale of non-
intoxicating beer theretofore lawfully
manufactured could afford any direct
and appreciable aid in respect of the war
declared against (Germany and Austria t
What were the outstanding circum-
stances t During the nineteen months —
April, 1917, to November, 1918— when
active hostilities were being carried on»
and for almost a year thereafter. Con-
gress found no exigency requiring it to
prohibit sales of non intoxicating beers.
The armistice was signed and 'actual hos-
tilities terminated November U, 1918.
Our military and naval forces, with very .
few exceptions, had returned and de-
mobilization had been completed. The
production of war material and supplies
had ceased long before and huge quanti-
ties of those on hand had been sold. The
President had solemnly declared: "The
war thus comes to an end; for having
accepted these terms of armistice, it will
be impossible for the German command
to renew it.** Also — "That the object of
the war is attained." "The quiet of
peace and tranquillity of settled hop^s
•4 li. ed.
has descended upon us.'' July 10, 1919^
he announced: "The war ended in No-
vember, eight months ago;" and in a
message dated October 27, 1919, he de-
clared that war emergencies which might
have called for prohibition '^ave been
satisfied in the demobilization of the
Army and Navy." Food supplies were
abundant, and there is no pretense that
the enactment under consideration was
intended to preserve them. Finally, the
statute itself contains no declaration
that prohibition of nonintoxicants was
regarded as in any way essential to the
propter conduct or conclusion of the war
or to restoration of peace.
[310] Giving consideration to this
state of affairs I can see no reason-
able relationship between the war
declared in 1917, or the demobiliza-
tion following (both of which in es-
sence if not by formal announcement
terminated before October, 1919), or
restoration of peace (whose quiet had
already descended upon us), and de-
struction of the value of complain-
ant's beverage, solemnly admitted in
this record to be nonintoxicating, and
which it manufactured, held, and desired
to sell in strict compliance with the laws
of New York. Nor can I discover any
substantial ground for holding that such
destruction could probably aid in an ap-
preciable way the enforcement of any^
prohibition law then within the compe-'
tency of Congress to enact. It is not
enough merely to assert such a prob-
ability; it must arise from the facts.
Moreover, well-settled rights of the in-
dividual in harmless property and pow-
ers carefully reserved to the states
ought not to be abridged or destroyed by
mere argumentation based upon sup-
posed analogies. The Constitution should
be interpreted in view of the spirit which
pervades it, and always with a steadfast
purpose to give complete effect to every
part according to the true intendment, —
none should suffer emasculation by any
strained or unnatural construction. And
these solemn words we may neither for-
get nor ignore: "Nor shall any person
. . . be deprived of life, liberty, or
property without due process of law ; nor
shall private property be taken for pub-
lic use, without just compensation."
[6th Amend.] "The powers not dele-
gated to the United States by the Con^
stitution, nor prohibited by it to the
states, are reserved to the states respec-
tively, or to the people." [10th Amend.]
^Ir. Justice Clarke also dissents.
S7»
3U-ai3
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
[311] WILLIAM DUHNE, Complainant,
V.
STATE OF NEW JERSEY et al.
(See S. C. Reporter's ed. 311-314.)
Sapremc Court of the United States
— original jurisdiction — suit by
citizen of state ag^ainst Federal offi-
cers.
1. The Federal iSiipreme Court may not
entertain original jurisdiction of a suit
brought by a citizon of a state against offi-
cers of the United States.
[For other cases, see Supreme Court of the
United States, I. a, in Digest Sup. Ct. 1008.]
States — immunity from suit — Fed-
eral courts.
2. The judicial power granted by the
Constitution to the United States does not
embrace the authority to entertain a suit
brought by a citizen against his own btate,
without its consent.
[For other cases, see States, IX. b, 2, in Di-
gest Sup. Ct. 190B.]
Supreme Court of the United States —
original jurisdiction ^ suit against
state.
3. A suit brought by a citizen against
his own state witliout its consent is not
drawn within' the original jurisdiction *of
the Federal Supreme Court by the provi-
sion of U. S. Const, art. 3, § 2, clause 2,
conferring original jurisdiction upon that
court in all cases in which a state shall
be a party, since this clause merely dis-
tributes into original and appellate juris-
diction, the jurisdiction previously con-
ferred, and does not itself grant any new
Jurisdiction..
[For other cases, see Supreme Court of the
United States. I. b, 4, In Digest Sup. Ct.
H*08.]
[No. , Original.]
Argued January 6, 1920. Decided January
12, 1920.
ON RULE to. show cause why leave
should not be granted to a citizen
of New Jersey to file an original bill
against Federal officers and the State
of New Jersey, to enjoin the enforce-
ment of the ISth Amendment to the
Federal Constitution. Rule discharged.
Mr. Everett V. Abbot argued the
cause, and, with Messrs. George W.
Tucker, Benjamin Tuska, and Edward
Hollander, filed a brief for complainant :
The state of New Jersey may be sued
in this court as a soveieign entity.
Cunningham v. Macon & B. R. Co. 109
U. S. 446, 451, 27 L. ed. 992, 994, 3 Sup.
Ct. Rep. 292, 609; Cohen v. Virginia, 6
Wheat. 264, 5 L. ed. 257.
Mr. Thomas F. McCran, Attorney Gen-
eral of New Jersey, argued the cause
and filed a brief for the state of New
Jersey :
The state of New Jersey cannot com-
pulsorily be made a suitor in an original
action in the Supreme Court of the
United States, instituted by a citizen
of said state.
Louisiana v. Texas, 176 U. S. 16, 44
L. ed. 353, 20 Sup. Ct, Rep. 251; Cali-
fornia V. Southern P. Co. 157 U. S. 229,
39 L. ed. 683, 15 Sup. Ct. Rep. 591 ; Hans
V. Louisiana, 134 U. S: 1, 33 L. ed. 842,
10 Sup. Ct. Rep. 504; North Carolina
V. Temple, 134 U. S. 22, 33 L. ed. 849.
10 Sup. Ct. Rep. 509; Fitts v. McGhee,
172 U. S. 516-524, 43 L. ed. 535-539, 19
Sup. Ct. Rep. 269; Osbom v. Bank of
United States, 9 Wheat. 846, 6 L. ed.
229.
Solicitor General Eang argued the
cause, and, with Assistant Attorney Gen-
eral Frierson, filed a brief for defend-
ants other than . the state of Ne^
Jersey :
As to controversies between a state
and citizens of other states, the 11th
Amendment denies to the United States
court jurisdiction where such suit is
brought against the state as a defend-
ant.
Hans V. Louisiana, 134 V. S. 1, 15, 33
L. ed. 842, 847, 10 Sup. Ct. Rep. 504.
The United States cannot be sued in
any cotirt except when it has consented
thereto.
Stanley v. Schwalby, 162 U. S. 255,
269, 270, 40 L. ed. 960, 965, 16 Sup.
Ct. Rep. 754.
Memorandum opinion by Mr. Chief
Justice White, by direction of the court :
The complainant, a citizen of New Jer-
sey, asked leave to file an original bill
against the Attorney General of the
[313] United States, the Commissioner
of Internal Revenue thereof, and the
United States District Attorney for the
Note. — On suit against Federal officer
or agent as suit against United States —
see notes to Louisiana v. Ghurfleld, 53 L.
ed. U. S. 92, and Wells v. Roper, 62
L. ed. U. S. 756.
On suits against state officers as suits
against a state — see notes to Sanders
V. Saxton, 1 L.R.A.(N.S.) 727; Ex parte
Young, 13 L.R.A.(N.S.) 932; Louisville
2H0
& N. R. Co. v. Burr, 44 L.R.A.(N.8.)
189; and Beers v. Arkansas, 15 L. ed.
U. S. 99L
Generally, on suits against a state —
see notes to Hans v. Louisiana, 33 L. ed.
U. S. 842; Beers v. Arkansas, 15 Ij. ed.
U. S. 991; Carr v. State, 11 L.R.A. 370:
and Murdoek Parlor Grate Co. v. Com.
8 L.R.A. 399.
251 U. S.
1019.
WESTERN U. TELEU. CO. v. BOEGLI.
3i3-:nr>
District of New Jersey, as well as
against the state of New Jersey.
The bill sought an injunction restrain*
ing the United States of&cials named
and the state of New Jersey, its
ofScers and agents, from in any
manner directly or indirectly enfqre-
ing the 18th Amendment to the Consti*
tution of the United States, any law of
Congress or statute of the state to the
contrary, on the ground that that amend-
ment was void from the beginning and
formed no part of the Constitution.
Answering a rule to show cause why
leave to file the bil*i should not be grant-
ed, if any thera was, the defendants, in-
cluding thd state of New Jersey, denied
the existence of jurisdiction to entertain
the cause, and this is the first question
for consideration.
So far as the controversy concenjs the
officials .of the United States, it is ob-
vious that the bill presents no question
within the original jurisdiction of this
court, and in effect that is not disputed,
since in substance it is conceded that the
bill would not present a case within our
original jurisdiction if it were not for
the presence of the state of New Jersey
as a defendant. But it has been long
since settled that the whole sum of the
judicial power granted by the Consfitu-
tion to the United States does not em-
brace the authority to entertain a suit
brought by a citizen against his own state
without its consent. Hans v. Louisiana,
134 U. S. 1, 33 L. ed. 82, 10 Sup. Ct. Rep.
504; North Carolina v. Temple, 134 U.
S. 22, 33 L. ed. 849, 10 Sup. Ct. Rep.
509; California v. Southern P. Co. 157
U. S. 229, 39 L. ed. 683, 15 Sup. Ct. Rep.
591; Fitts V. McGhee, 172 U. S. 516, 524,
43 L. ed. 535, 539, 19 Sup. Ct. Rep. 269.
It is urged, however, that although
this may be the general rule, it is not
true as to the original jurisdiction of
this court, since the second clause of
§ 2, article 3, of the Constitution, cen-
ters original jurisdiction upon this court
''in all cases affecting ambassadors,
other public ministers and consuls, and
those in which a state shall be a
party, . . ." In [314] other words
the argument is that the effect of the
clause referred to is to devest every
state of an essential attribute of its
sovereignty by subjecting it without its
♦'onsen t to be sued in every case if
only the suit is originally brought in
this court. Here again the error
arises from treating the language of
the clause as creative of jurisdiction
instead of confining it to its merely
distributive significance according to the
<4 L. cd.
rule long since announced, as follows:
"This second clause distributes the juris-
diction conferred in the previous one into
original and appellate jurisdiction, but
does not profess to confer any. The orig-
inal jurisdiction depends solely on the
character of the parties, and is confined to
the cases in which are those enumerated
parties, and those only." Louisiana v.
Texas, 176 U. S. 1, 16, 44 L. ed. 347,
353, 20 Sup. Ct. Rep. 251. That is to
say, the fallacy of the contention con-
sists in overlooking the fact that the
distribution which the clause makes re-
lates solely to the grounds of Federal
jurisdiction previously conferred, and
hence solely deals with cases in which
the original jurisdiction of this court
may be resorted to in the exercise of the
judicial power as previously given. In
fact, in view of the rule now so well set-
tled as to be elementary, that the Fed-
eral jurisdiction does not embrace the
power to entertain {i suit brought
against a state without its consent, the
contention now insisted upon comes to
the proposition that the clause relied up-
on provides for the exercise by this
court of original jurisdiction in a case
where no Federal judicial power is con-
ferred.
As the want of jurisdiction to enter-
tain the bill clearly results, it follows
that the permission to file must be and it
is denied, and our order is, rule dis-
charged.
[8161 WESTERN UNION TELEGRAPH
COMPANY, Plff. in Err.,
V.
PETER BOEGLI.
(See S. C. Reporter's ed. 315-317.)
Commerce — conflicting: state and Fed-
eral r<*gaIations — construction of
Federal statute — reserved power of
state.
1. A narrow construction need not, ii\
order to preserve the reserved power of a
state, be given to the provisions of the Act
of June 18, 1910. bringing telegraph com-
panies under the Act to Regulate Com-
Note. — On state regulation of inter-
state or foreign commerce — see notes to
Norfolk & W. R. Co. v. Com. 13 L.R.A.
107, and Gloucester Ferry Co. v. Penn-
sylvania, 29 L. ed. U. S. 158.
On the power of Congress to regulate
commerce — see notes to State ex rcl.
Corwin v. Indiana & O. Oil, Gas &
Min. Co. 6 L.R.A. 579; BuUard v. North-
ern P. R. Co. 11 L.R.A. 246; Re Wilson,
281
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
merce, as well i^s placing them under the
administrative control of the Interstate
Commerce Commission.
[For other cases, see Commerce, I. c; III. o.
In Digest Sup. Ct. 1008.]
Commerce ^ conflicting state and Fed-
eral regulations « interstate tele-
grams — prompt delivery.
2. Congress has so far taken possession
of the field by enacting the provisions of the
Act of June 18, 1910, bringing telegraph
companies under the Act to Regulate Com-
merce, as well as placing them under the
administrative control of the Interstate
Commerce Commission, as to prevent a state
from thereafter penalizing the negligent
failure of a telegraph company to deliver
promptly an interstate telegram in that
state.
(For other cases, see Commerce, I. c; III. o.
In Digest Sup. Ct. 1908.]
[No. 83.]
Submitted December 19, 1919. Decided
January 12, 1920.
IN ERROR to the Supreme Court of
the State of Indiana to review a judg-
ment which afi&rmed a judgment of the
Circuit Court of Allen County in that
state, imposing a penalty upon a tele-
graph company for failure promptly to
deliver an interstate telegram. Reversed
and remanded for further proceedings.
See same case below, — Ind. — , 115
K. E. 773.
The facts are stated in the opinion.
Messrs. Rush Taggart and Francis
Raymond Stark submitted the cause for
plaintiff in error:
The states are no longer free to ad-
minister their varying local policies with
respect either (1) to the validity of the
limitations of liability in the contract
for the transmission of an interstate
telegram, or (2) the elements of damage
which are to be recognized apart from
such contractual limitations; but, as to
both such matters, they are bound, as
are interstate carriers of goods and
passengfers, to recognize and apply the
Federal rule.
Gardner v. Western U. Teleg. Co. 145
C. C. A. 399, 231 Fed. 405, 243 U. S.
644, 61 L. ed. 944, 37 Sup. Ct. Rep. 405 ;
Williams v. Western U. Teleg. Co. 203
Fed. 140; Western U. Teleg. Co. v. Dant,
42 App. D. C. 398, L.RA.1915B, 685,
Ann. Cas. 1916A, 1132; Western U.
Teleg. Co. v. Hawkins, — Ala. — , 73
So. 973; Western U. Teleg. Co. v. Comp-
ton, 114 Ark. 193, 169 S. W. 946; West-
em U. Teleg. Co. v. Johnson, 115 Ark.
564, 171 S. W. 859; Western U. Teleg.
Co. V. Simpson, 117 Ark. 156, 174 S. W.
232; Western U. Teleg. Co. v. Holder,
117 Ark. 210, 174 S. W. 552; Western
U. Teleg. Co. v. Culpepper, 120 Ark. 319,
179 S. W. 494; Western U. Tel^. Co.
V. Petteway, 21 Ga. App. 725, 94 S. E.
1032; Bailey v. Western U. Teleg. Co.
97 Kan. 619, 156 Pac. 716, affirmed on
rehearing, 99 Kan. 7, 160 Pac. 985;
Kirsch v. Postal Teleg. , Cable Co. 100
Kan. 250, 164 Pac. 267; Western U.
Teleg: Co. v. Lee, 174 Ky. 210, 192 S.
W. 70, Ann. Cas. 1918C, 1026, 15 N. C
C. A. 1; Haskell Implement & Seed
Co. v. Postal Teleg. Cable Co. 114 Me.
277, 96 AtL 219; Dettis v. Western U-
Teleg. Co. 141 Minn. 361, 170 N. W.
334; Poor v. Western U. Teleg. Co.
196 Mo. App. 557, 196 S. W. 28 ;
Diffenderffer v. Western U. Tel^.
Co. 199 Mo. App. 48, 200 S. W. 706;
Jacobs V. Western U. Teleg. Co. 196 Mo.
App. 300, 196 S. W. 31 ; Kerns v. West-
em U. Teleg. Co. — Mo. App. — , 198
S. W. 1132; Meadows v. Postal Telej?.
& Cable Co. 173 N. C. 240, 91 S. E. 1009 :
Bateman v. Western U. Teleg. Co. 174
N. C. 97, L.R.A.1918A, 803, 93 S. E.
467; Norris v. Western U. Teleg. Co. 174
N. C. 92, 93 S. E. 465; Askew v. Western
U. Teleg. Co. 174 N. C. 261, 93 S. E.
773; Johnson v. Western U. Teleg. Co.
175 N.C. 588, 96 S. E. 36; Postal Teleg.
Cable Co. v. Jones, 7 Ohio App. 90;
Western U. Teleg. Co. v. Bank of
Spencer, 53 Okla. 398, 156 Pac 1175;
Westem U. Telepr. Co. v. Orr, 60 Okla. 39,
158 Pac. 1139; Westem U. Teleg. Co. v.
Kaufman, — Okla. — , 162 Pac. 708;
Strause Gas Iron Co. v. Westem U.
Teleg. Co. 23 Pa. Dist. R. 291, affirmed
in 59 Pa. Super. Ct. 122; Hall v. West-
12 L.R.A. 624; Gibbons v. Ogden, 6 L.
ed. U. S. 23; Brown v. Maryland, 6 L.
ed. U. S. 678; Gloucester Ferry Co. v.
Pennsylvania, 29 L. ed. U. S. 158; Rat-
terman v. Westem U. Teleg. Co. 32
L. ed. U. S. 229; Harmon v. Chicago,
37 L. ed. U. S. 216; and Cleveland, C.
C. & St. L. R. Co. V. Backup 38 L. ed.
U. S. 1041.
On state law affecting telegraphs as
regulation of interstate commerce — see
^82
note to Westem U. Teleg. Co. v. Com-
mercial Mill. Co. 36 L.R.A.(N.S.) 220.
On power of states to impose burdens
upon interstate telegpraph and telephone
companies — see note to Postal Teleg.
Cable Co. v. Baltimore, 24 L.R.A. 161.
On validity of state statute imposing
penalty for default or mistake in trans-
mission or delivery of interstate tele-
gram— see note to Westem U. Teleg. Co.
V. Crovo, 55 L. ed. U. S. 499.
251 V. 55.
.*j]tf.
WESTERN U. TELEG. CO. v. BOEGLl.
em U. Teleg. Co. 108 S. C. 502, 94 S. E.
S70 ; Berg V. Western U. Teleg. Co. 110
S. C. 1G9, 96 S. E. 248; Western U.
Teleg. Co. v. Schade, 137 Tenn. 214, 192
S. W. 924; Boyce v. Western U. Teleg.
Co. 119 Va. 14, 89 S. E. 106; H. W.
Williams & Sons v. Postal Teleg.-Cable
Co. 122 Va. 675, 95 S. E. 436; Durre v.
Western U. Teleg. Co. 165 Wis. 190, 161
N. W. 755.
With the exception of the judgment
now nnder review, there has been no de-
cision sustaining a state penalty statute
as applied to an interstate message sent
since the Act of 1910. The invalidity
of such statutes, as applied to such
messages, has been uniformly recognized
by the state courts.
Western U. Teleg. Co. v. Bassett, 111
Miss. 468, 71 So. 750 ; Davis v. Western
U. Teleg. Co. 198 Mo. App. 692, 202
8. W. 292; Taylor v. Western U. Teleg.
Co. 199 Mo. App. 624, 204 S. W. 818;
Leftridge v. Western U. Teleg. Co. 277
Mo. 90, 210 S. W. 18; Western U. Teleg.
Co. V. Bilisoly, 116 Va. 562, 82 S. E. 91 ;
Western U. Teleg. Co. v. First Nat.
Bank, 116 Va. 1009, 83 S. E. 424; West-
em U. Teleg. Co. v. Boiling, 120 Va.
413, 91 S. E. 154, Ann. Cas. 1918C, 1036;
Western U. Teleg. Co. v. Mahone, 120
Va. 422, 91 S. E. 157; Western U. Teleg.
Co. v. Bowles, 124 Va. 730, 98 S. E.
645.
•
Mr. Arthur W. Parry submitted the
eauae for defendant in error:
The Indiana statute applies to inter-
state messages only where the act of
negligence occurs within the state of
Indiana, and in the entire absence of
partiality or bad faith.
Western U. Teleg. Co. v. Ferguson,
167 Ind. 37, 60 N. E. 679; Western U.
Teleg. Co. v. Braxtan, 165 Ind. 165, 74
N. E. 985; Western U. Teleg. Co. v. Mc-
Clelland, 38 Ind. App. 578, 78 N. E.
672; Western U. Teleg. Co. v. Sefrit, 38
Ind. App. 565, 78 N. E. 638.
The state, in the exercise of its police
power, has the right to impose penalties
upon telegraph companies for the failure
to deliver messages promptly within the
limits of the state, even where the mes-
sages are sent from another state. 8tat-
ntes like the Indiana statute are a valid
exercise of the police power of the state,
and affect interstate commerce in only
an incidental sense, being an aid to it
rather than a burden or regulation upon
it, and as such will remain in full force
and effect until such time as Congress
may pass an act on the same subject
in direct and positive couflict with the
act of the state.
Western U. Teleg. Co. v. James, 162
U. S. 650, 40 L. ed. 1105, 16 Sup. Ct.
Rep. 934, 90 Ga. 254, 16 S. E. 83 ; West-
ern U. Teleg. Co. v. Crovo, 220 U. S.
364, 55 L. ed. 498, 31 Sup. Ct. Kep. 399;
Western U. Teleg. Co. v. Wilson, 213
U. S. 52, 53 L. ed. 693, 29 Sup. Ct. Rep.
403; Western U. Teleg. Co. v. Carter,
156 Ind. 531, 60 N. E. 305; Western U.
Teleg. Co. v. Gilkison, 46 Ind. App. 29;
Western U. Teleg. Co. v. Lark, 95 Ga.
806, 23 S. E. 118; Western U. Teleg. Co.
V. Howell, 95 Ga. 194, 30 L.R.A. 158, 5
Inters. Com. Rep. 516, 51 Am. St. Rep.
68, 22 S. E. 286; Western U. Teleg.
Co. V. Tyler, 90 Va. 297, 4 Inters. Com.
Rep. 481, 44 Am. St. Rep. 910, 18
S. E. 280; Western U. Teleg. Co.
V. Hughes, 104 Va. 240, 51 S. E.
225; Western U. Teleg. Co. v. Reyn-
olds, 100 Va. 459, 93 Am. St. Rep.
971, 41 S. E. 856; Western U. Tel^.
Co. V. PowelL 94 Va. 268, 26 S. E. 828;
Western U; Teleg. Co. v. Bright, 90 Va,
778, 20 S. E. 146; Western U. Tel^. Co.
V. Mellon, 96 Tenn. 66, 33 S. W. 725;
Western U. Teleg. Co. v. Mellon, 100
Tenn. 429, 45 S. W. 443; Vermilye v.
Postal Teleg. Cable Co. 205 Mass. 598,
30 L.R.A.(N.S.) 472, 91 N. B. 904, 207
Mass. 401, 93 N. E. 635; Connell v.
Western U. Teleg. Co. 108 Mo. 459, 18
S. W. 883; Postal Teleg. Cable Co. v.
Umstadter, 103 Va. 742, 50 S. E. 259, 2
Ann. Cas. 511.
The states have surrendered to the
United States the right to regulate in-
terstate conmierce, but the states have
retained the right, known as the police
power, to pass laws for the protection
and convenience of their citizens, even
though such laws may incidentally af-
fect interstate commerce. The United
States, within its sphere, is sovereign;
but each state, within its sphere, is
equally sovereign. Therefore, a law en-
acted by Congress within its lawful
power will not supersede an act of the
state, enacted within its lawful power,
unless the act of Congress covers the
precise and particular subject-matter
covered by the act of the state. It does
not invalidate the state statute merely
because the two relate to the same gen-
eral subject.
Pittsburgh, C. C. & St. L. R. Co. v.
State, 172 Ind. 147, 87 N. E. 1034,
affirmed in 223 U. S. 713, 56 L. ed. 626,
32 Sup. Ct. Rep. 520 ; Pittsburgh C. C.
& St. L. R. Co. V. State, 180 Ind. 245.
L.R.A.1915D, 458, 102 X. E. 25; Savage
V. Jones, 225 U. S. 501, 56 L. ed. 1182,
32 Sup. Ct. Rep. 715.
18S
S( PREME COURT OF THE UNITED STATES.
Oct. Tebm^
Where the subject-matter of a statute
is not of such a national character as to
require uniform regulation or legislation,
applicable to all states alike, the power
of Congress is not exclusive, and a stat-
ute of a state, enacted in pursuance of
its police power, will be permitted to
stand until Congress sees fit to enter the
particular field and actually legislate
upon the precise subject-matter em-
braced by the terms of the state statute.
Pittsburgh C. C. & St. L. R. Co. v.
State, 180 Ind. 245, L.R.A.1915D, 468,
102 N. E. 25; Missouri K. & T. R. Co.
V. Haber, 169 U. S. 613, 42 L. ed. 878,
18 Sup. Ct. Rep. 488; Pennsylvania R.
Co. V. Hughes, 191 U. S. 477, 48 L. ed.
268, 24 Sup. Ct. Rep. 132, affirming 202
Pa. 222, 63 L.R.A. 513, 97 Am. St. R«p.
713, 51 Atl. 990, 12 Am. Neg. Rep. 185;
Reid V. Colorado, 187 U. S. 137, 47 L. ed.
108, 23 Sup. Ct. Rep. 92, 12 Am. Crim.
Rep. 92; Atlantic Coast Line R. Co. v.
Mazursky, 216 *U. S. 122, 54 L. ed. 411,
30 Sup. Ct. Rep. 378; Pittsburgh, C. C.
& St. L. R. Co. V. Hartford City, 170 Ind.
674, 20 L.R.A.(N.S.) 461, 82 N. E. 787,
85 N. E. 362 ; Lasater v. St. Louis, L M.
& S. R. Co. 177 Mo. App. 534, 160 S. W.
818; Pennsylvania R. Co. v. Ewing, 241
Pa. 581, 49 L.R.A.(N.S.) 977, 88 Atl.
.775, Ann. Cas. 1915B, 157.
Inaction by Congress upon subjects
of a local nature or operation, unlike its
inaction upon matters affecting all the
states, and requiring uniformity of reg-
ulation, is not to be taken as a declara-
tion that nothing shall be done with
respect to them, but is rather to be
deemed a declaration that, until it sees
fit to legislate upon the precise subject-
matter embraced in the state statute,
that subject-matter may be regulated by
state authority.
Pittsburgh, C. C. & St. L. R. Co. v.
State, 172 Ind. 147, 87 N. E. 1034, 223
U. S. 713, 56 L. ed. 626, 32 Sup. Ct. Rep.
520; Mobile County v. Kimball, 102 U. S.
691, 698, 26 L. ed. 238, 240; Chicago, M.
& St. P. R. Co. V. Solan, 169 U. S. 133,
42 L. ed. 688, 18 Sup. Ct. Rep. 289;
Vamville Furniture Co. v. Charleston &
W. C. R. Co. 98 S. C. 63, 79 S. E. 700;
A statute enacted in execution of a
reserved power of a state is not to be
regarded as inconsistent with an act of
Congress passed in execution of a clear
power under the Constitution, unless the
re]>ugnance or conflict is so direct and
positive that the two acts cannot be rec-
onciled or stand together.
Savage v. Jones, 225 U. S. 501, 56 L.
ed. 1182, 32 Sup. Ct. Rep. 715; Standard
Stoi'k Food Co. V. Wright, 2*jr) V. S.
28 1
540, 56 L. ed. 1197, 32 Sup. Ct. Rep.
784; Asbell v. Kansas, 209 U.* S. 251, 52
L. ed. 778, 28 Sup. Ct. Rep. 485, 14
Ann. Cas. 1101; Crossman v. I^rman,
192 U. S. 189, 48 L. ed. 401, 24 Sup.
Ct. Rep. 234; Chicago, R. I. & P. R. Co.
V. Arkansas, 219 L. S. 453, 55 L. ed.
290, 31 Sup. Ct. Rep. 275.
The mere delegation to the Interstate
Commerce Commission of power to pass
regulations for the purpose mentioned
in the act does not, of itself, supersede
state statutes making regulations on the
same subjects, and^ until specific -action
by the Commission or Congress, they will
remain in full force.
Missouri P. R. Co. v. Larabee Flour
Mills Co. 211 U. S. 612, 53 L. ed. 352,
29 Sup. Ct. Rep. 214.
The case of Western U. Teleg. Co. v.
BiUsoly, 116 Va. 562, 82 S. E. 91, as
well as the other cases cited by plaintiff
in error, so far as they hold that the
mere placing of telegraph companies
under the supervision of the Interstate
Commerce Commission has deprived the
state of power to enforce penalties for
negligence in delivering messages, are in
direct conflict with, and are therefore in
effect overruled by, the United States
Supreme Court in the case of Missouri
P. R. Co. v. Larabee Flour Mills Co.
supra; and, so far as they hold that the
Interstate Commerce Act, by entering
the general field of regulation of tele-
graph companies and providing penalties
for intentional discrimination, although
admittedly not touching the precise sub-
ject of negligence in delivery of mes-
sages, has superseded the state statute
as to that subject, the cases relied upon
by the plaintiff in error are in direct
conflict with, and, therefore, in effect
are overruled by, the law as determined
by the United States Supreme Court in
the cases of:
Savage v. Jones, 225 U. S. 501, 56 L.
ed. 1182, 32 Sup. Ct. Rep. 715 ; Standard
Stock Food Co. v. Wright, 225 U. S. 540,
56 L. ed. 1197, 32 Sup. Ct. Rep. 784;
Asbell V. Kansas, 209 U. S. 251, 52 L.
ed. 778, 28 Sup. Ct. Rep. 485, 14 Ann.
Cas. 1101; Crossman v. Lurman, 192 U.
S. 189, 48 L. ed. 401, 24 Sup. Ct. Rep.
234; Chicago, R. I. & P. R. Go. v. Ar-
kansas, 219 U. S. 453, 55 L. ed. 290, 31
Sup. Ct. Rep. 275; Pittsburgh, C. C. &
St. L. R. Co. V. State, 223 U. S. 713, 56
I^ ed. 626, 32 Sup. Ct. Rep. 520; Chi-
cago, M. & St. P. R. Co. V. Solan, 169
U. S. 133, 42 L. ed. 688, 18 Sup. Ct. Rep.
289 ; Reid v. Colorado, 187 U. S. 137, 47
I L. ed. 108, 23 Sup. Ct. Rep. 92, 12 Am.
' Crim. Rep. 506; Pennsvlvania R. Co. v.
251 U. S.
1919.
WESTERN U. TELKCi. CU. v. BOEGLl.
ai5, 310
Hughes, 191%. S. 477, 48 L. ed. 268, 24
bup. Ct. Rep. 132; Missouri, K. & T. R.
(^o. V. Haber, 169 U. S. 613, 42 L. ed.
87S, 18 Sup. Ct. Rep. 488.
Congress has not, by the amendment
of June 18, 1910, to the Interstate Com-
merce Act, superseded stat« statutes
providing a penalty against tel^raph
companies for negligence in delaying de-
livery of messages within the limits of
the respective states.
Western U. Teleg. Co. v. Boegli, —
Ind. — , 115 N. E. 773.
And it has also been held in carefully
reasoned cases that the amendments to
the Interstate Commerce Act have not so
occupied the field of regulation of tele-
graph companies as to render void the
statutes of the various states, providing
that damages might be recovered for
mental anguish caused by negligence
in the delivery of telegrams, and ^the
statutes which make void the customary
stipulations by which a telegraph com-
pany seeks ostensibly to limit, but, in
fact, to exempt itself from, its liability
for negligence in the deUvery of mes-
sages, but that such statutes still remain
valid.
Western U. Teleg. Co. v. Bailey, 108
Tex. 427, 196 S. W. 516, — Tex. Civ.
App. — , 171 S. W. 839,— Tex. Civ. App.
— , 184 S. W. 519; Western U. Teleg.
Co. V. Piper, — Tex. Civ. App. — , 191
S. W. 817; Dickerson v. Western U.
Teleg. Co. 114 Miss. 115, 74 So. 779;
Warren-Gk)dwin Lumber Co. v. Postal
Teleg.-Cable Co. 116 Miss. 660, 77 So.
601; Des Arc Oil Mill v. Western U.
Teleg. Co. 132 Ark. 335, 6 A.L.R. 1081,
201 S. W. 273; Bowman & B. Co. v.
Postal Teleg.-Cable Co. 290 HI. 155, 124
N. E. 851.
Although the Interstate Commerce Act
regulated railroads in considerable de-
tail, it did not, prior to the Carmack
Amendment in 1906, render invalid state
statutes either imposing penalties on
certain defaults of the railroad or ren-
dering void limitations contained in bills
of lading seeking to limit their liability.
And the Carmack Amendment had that
effect only because it specifically covered
1 that exact subjfect.
Pennsylvania R. Co. v. Hughes, 191
U. S. 477, 48 L. ed. 268, 24 Sup. Ct. Rep.
132; Atlantic Coast Line R. Co. v. Ma-
zursky, 216 U. S. 122. 54 L. ed. 411, 30
Sup. Ct. Rep. 378; Adams Exp. Co. v.
Croninger, 226 U. S. 491, 57 L. ed. 314,
44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep.
148; Kansas Citv Southern R. Co. v.
Carl, 227 U. S. 630. 57 L. ed, 683, 331
Sup. Ct. Rep. 391.
64 li. ed.
But the Carmack Amendment does not
apply to telegraph companies.
Western U. Teleg. Co. v. Bailey, 108
Tex. 427, 196 S. W. 516.
Mr. Chief Justice White delivered the
opinion of the court:
The telegraph company challenged
the right to subject it to a penalty fixed
by a law of Indiana for failure to de-
liver promptly in that state a telegram
sent there from a point in Illinois, on
the ground that the Act of Congress
of June 18, 1910, amending the Act to
Regulate Commerce (36 Stat, at L. 539,
545, chap. 309, Comp. Stat. § 8563) had
deprived the state of all power in the
premises. The court, conceding that if
the act of Congress [316] dealt with
the subject, the state statute would be
inoperative, imposed the penalty on the
ground that the Act of 1910 did not
extend to thftt field. The correctness
oi this conclusion is the one controversy
with which the arguments are con-
cerned.
The proposition that the Act of 1910
must be narrowly construed so as to
preserve the reserved power of the state
over the subject in hand, although it is
admitted that that power is in its nature
Federal, and may be exercised by the
state only because of nonaction by Con-
gress, is obviously too conflicting and
unsound to require further notice. We
therefore consider the statute in the
light of its text, and, if there be am-
biguity, of its context, in order to give
effect to the intent of Congress as mani-
fested in its enactment.
As the result of doing so, we are of
opinion that the provisions of the stat-
ute bringing telegraph companies under
the Act to R^^ate Conmierce, as well
as placing them under the administra-
tive control of the Interstate Conmierce
Commission, so clearly establish the pur-
pose of Congress to subject such com-
panies to a uniform national rule as to
cause it to be certain that there was no
room thereafter for the exercise by the
several states of power to regulate, by
penalizing the negligent failure to de-
liver promptly an interstate telegram,
and that the court below erred, there-
fore, in imposing the penalty fixed by
the state statute.
We do not pursue the subject further,
since the effect of the Act of 1910 in tak-
ing possession of the field was recently
determined in exact accordance with the
conclusion we have just stated. Postal
Teleg.-Cable Co. v. Warren-Godwin Lum-
ber Co. 251 U. S. 27, ante, 118, 40
316, 317
SUPREME COURT OF THE UNITED STATES.
Oct. 1ebm»
Sup. Ct. Rep. 69. That case, indeed,
was concerned only ,with the operation,
after the passage of the Act of 1910,
of a state statute rendering illegal a
clause of a contract for sending an in-
terstate telegram limiting the amount
of recovery under the conditions stated
in ease of an unrepeated message; but
the [317] ruling that the effect of the
Act of 1910 was to exclude the possibility
thereafter of applying the state law was
■rested, not alone upon the special provi-
sious of the Act of 1910, relating to un-
repeated messages, but upon the neces-
sary effect of the general provisions of
that act, bringing telegraph companies
under the control of the Interstate Com-
merce Act. The contention as to the
continuance of state power here made is
therefore adversely foreclosed. Indeed,
in the previous case the principal au-
thorities here relied upon to sustain the
oontinued right to exert state power
after the passage of the Act of 1910
were disapproved, and various decisions
of state courts of last resort to the con-
trary, one or more dealing with the sub-
ject now in hand, were approvingly
dted.
Reversed and remanded for further
proceedings not inconsistent with this
opinion.
BIBOBFORBES COMPANY, Petitioner,
V.
CARL R. HEYE.
(See 8. C. Reporter's ed. 817-325.)
War « alien enemies — remedies.
1. The exietence of war did not make it
improper for a circuit court of appeals
to affirm, with a modification that the sum
recovered be paid over to the Alien Prop-
erty Custodian, a money judgment in favor
of aa alien enemy, recovered in the district
court before war was declared, the collection
of which was delayed by defendant's act
in carrying the case up to the higher court.
[For other casei, aee War, V. in Digest Sup.
Ct. 1908.)
Appeal — following decision below —
res Judicata.
2. The Federal Supreme Court will not
ordinarily disturb the decision of the trial
court, made after both parties moved for a
directed verdict, that a certain issue was
determined in a former suit tried by the
same judge.
[F\>r other cases, see Appeal and Error, VIIL
a» in Digest Sup. Ct 1908.]
Judgment « res Judicata « matters
concluded.
3. A judgment for plaintiff in a suit to
recover the amoimts of certain arbitration
awards which he had paid on defendant's
account, though limited to sums which
plaintiff had then paid, must be regarded
a9 a conclusive adjudication as to the valid*
i^ of the awards in a second suit to recover
the sums paid by plaintiff, not embraced
in the first judgment, where, in the first
suit, the awards were dealt with as a whole,
objections to them being general, and the ob-
jections were overruled, the court 'assuming
that the awards were obligatory, but cutting
down the amount to be recovered to the
sum that had been paid.
(EV>r other cases, see Judgment, IIL 1, 4, la
Digest Sap. Ct. 1908.]
Deposition « of party.
4. The objection that the deposition of
a pariy could not be taken, if valid at all,
is not fairly open where there is no attempt
to fish for information, and an agreement
was made that ''time notice and copy are
hereby waived," and that "the officer may
proceed to ta)ce and return the depositions
of the witness on the original direct and
cross interrogatories, but commission is not
waived."
[For other cases, see Depositions, n. t. la
Digest Bap. Ct 1908.]
Depositions — return.
6. Depositions of foreign witnesses are
not inadmissible because tiie mode of re-
turn did not follow strictlv the state stat-
ute, in that the officer to whom the commia>
sion was directed did not put the dejKNd-
tions into the mail and certify on the en-
velop that he had done so, where the course
was impossible, owing to war, and the officer
did transmit the depositions in the only
practicable way, giving them to an Ameri-
can consul, and having them transmitted to
the Department of State, and then through
the mail to the clerk of court, — ^the integrity
of the depositions not being questioned.
[F6r other cases, see Depodtlons, III. •, In
Digest Sup. Ct 1908.]
liimitation of actions — foreign statute.
6. The six months' limitation pre-
scribed by the German Civil Code, $ 477, for
claims for defect of quality, did not apply
where the claims had been submitted to
bitration and passed upon.
Note. — On alien enemies as litigants —
see notes to Taylor v. Albion Lumber Co.
L.R.A.1918B, 189, and Krachanake v.
Acme Mfg. Co. L.R.A.1918E, 809.
On effect of war on dealings between
citizens of belligerent powers — see note
to Scholefield v. Eichelberger, 8 L. ed.
U. S. 793.
On effect of war on agency — see note
286
to New York L. Ins. Co. v. Davis, 24
L. ed. U. S. 453.
On effect of war on contracts with
alien enemies — see note to Zinc Corp. v.
Hirsch, L.R.A.1917C, 662.
On effect of war on litigation pending
at the time of its outbresik — see note to
Watts, \V. & Co. v. Unione Austriaca di
Navigazione, 3 A.L.R. 327.
251 U. 8.
imu.
BIROE-FORBKS CO. v. HKYE.
Evidence — presnmptlons — Talue —
German mark.
7. In a suit bj a German agent against
his American principal to recover the
Amounts of certain arbitration awards
vhich the former had paid on the latter's
Account, the Talue of the German mark in
vhich such payments were made will be
taken at par, in the absence of evidence that
it had depreciated at the time t>f such pay-
ments.
[For other cases, see Evidence* II. k» 6, In
Dlsest Sap. Ct 1908.]
[No. 76.]
ArgiMd November 13 and 14, 1919. Decided
January 12, 1920.
AN WRIT of Certiorari to the United
v/ States Circoit Court of Appeals for
the Fifth Cironit to review a judgment
which affirmed, with a modification that
tiie snm recovered be paid over to the
Alien Plroperty Custodian, a money judg-
ment of the District Court for the
Eastern District of Texas in favor of
an alien enemy, recovered before the
war with (Germany was declared. Af-
finned*
See same case below, 160 C. C. A* 536,
248 Fed. 636.
The facts are stated in the opinion.
Mr. Henry O. Head aligned the cause,
and, with Mr. Jesse F. Holt, filed a brief
for petitioner:
The circuit court of appeals erred in
not sustaining plaintiff in error's motion
to abate this suit and postpone the con-
sideration thereof until the termination
of the present war between the United
States and the (German Empire.
Hanger v. Abbott, 6 Wall. 532, 18 L.
ed. 939; Bishop v. Jones, 28 Tex. 294;
Plettenberg v. Kalmon, 241 Fed. 605 ; 1
C. J. 117; Howes v. Chester, 33 Ga. 89.
The court erred in admitting the dep-
ositions of Heye and Polletin.
Hanks Dental Asso. v. International
Tooth Crown Co. 194 U. S. 303, 48 L. ed.
989, 24 Sup. Ct. Rep. 700; Union P. R.
Co. V. Botsford, 141 U. S. 250, 35 L. ed.
734, 11 Sup. Ct. Rep. 1000; Ex parte
Piske, 113 U. S. 724, 28 L. ed. 1121, 5
Sup. Ct Rep. 724; Frost v. Barber, 173
Fed. 847; Simkins Fed. Eq. Suit, 3d ed.
506; Pullman Co. v. Jordan, 134 C. C. A.
301, 218 Fed. 573; Gamer v. Cutler, 28
Tex. 175; Laird v. Ivens, 45 Tex. 621;
Barber v. Greer, 94 Tex. 584, 63 S. W.
1007; Smiley v. Kansas, 196 U. S. 447,
49 L. ed. 546, 25 Sup. Ct. Rep. 289; Con-
solidated Rendering Co. v. Vermont, 207
U. S. 541, 551, 52 L. ed. 327, 334, 28
Snp. Ct. Rep. 178, 12 Ann. Cas. 658.
A judgment is res judicata in a second
«4 h. ed.
suit only as to matters that were direct-
ly presented and decided in the tirst;
and is not res judicata as to matters
which might have been decided, but
were not in fact passed upon, no matter
how conclusive the evidence may have
been.
Russell V. Place, 94 U. S. 606, 24 L.
ed. 214; Landon v. Clark, 137 C. C. A.
399, 221 Fed. 841; Re William S. Butler
& Co. 125 C. C. A. 233, 207 Fed. 705;
Smith V. Mosier, 169 Fed. 446; Mc Anally
V. Haynie, — Tex. Civ. App. — , 42 S. W.
1049.
If it be held that the claims of the
parties in whose favor the original
awards were rendered were barred both
as to the principal and the surety when
defendant in error made the payment,
was the circuit court of appeals correct
in holding that defendant in error waa
not required to take advantage of the
statute, but could make the payments
and compel plaintiff in error to reim-
burse himt
Faires v. Cockerell, 88 Tex. 428, 28
L.R.A. 528, 31 S. W. 190, 639; 23 Cyc.
259; Wills v. Tyer, — Tex. Civ. App.
— , 186 S. W. 862; Stone v. Hanmiell, 83
Cal. 547, 8 L.R.A. 425, 17 wim. St. Rep.
272, 23 Pac. 703; Glasscock v. Hamilton,
62 Tex. 143.
The burden is on the one who sues
upon an obligation payable in a foreign
currency to allege, and prove as a piurt
of his case, the value of the foreign
currency in the currency of the country
where the trial is being had.
Kermott v. Ayer, 11 Mich. 181; Moda-
well V. Holmes, 40 Ala. 391; Feemester
V. Ringo, 6 T. B. Mon. 336; Hogue v.
Williamson, 85 Tex. 553, 20 L.R.A. 481,
34 Am. St Rep. 823, 22 S. W. 580; 2
Whart. Ev. 3d ed. § 335; 13 Enc Ev.
425; 23 Cyc pp. 791, 792.
Mr. Robert M. Rowland argued the
cause, and, with Mr. Newton Hance Las-
siter, filed a brief for respondent :
The motion to suspend consideration
of the case until the end of the war
was properly overruled by the circuit
court of appeals.
Hanger v. Abbott, 6 Wall. 532, 18 L.
ed. 939; Owens v. Hanney, 9 Cranch,
180, 3 L. ed. 697; HoweS v. Chester, 33
Ga. 89; Kershaw v. Kelsey, 100 Mass.
661, 1 Am. Rep. 142, 97 Am. Dec. 124;
Buckley v. Lyttle, 10 Johns, 117.
In view of the agreements or waivers
signed by counsel for the Birge-Forbes
Company, under which the depositions of
Heye and Polletin were taken, and in
view of the fact that the company, bv
287
SUPREME COURT OF THE UNITED STATES.
Oct. Tekm,
its attorneys, propounded cross inter-
rogatories to these witnesses without
reserving any" objections, and in view
of the further fact that the manner of
taking and returning these depositions
was substantially regular, and wholly
tree from any suspicion of unfairness,
the trial court properly refused to sup-
press the depositions, and properly al-
lowed them to be used as evidence, and
the circuit court of appeals committed
no error in sustaining such action of the
trial court.
Mechanics Bank v. Seton, 1 Pet. 299,
7 L. ed. 152; Shutte v. Thompson, 15
Wall. 151, 21 L. ed. 123; Buddicum v.
Kirk, 3 Cranch, 293, 2 L. ed. 444; Rich
V. Lambert, 12 How. 347, 13 L. ed. 1017;
United States v. 50 Boxes & Packages of
Lace, 92 Fed. 601 ; 4 C. J. 805 : Missouri,
0. & G. R. Co. V. Love, — Tex. Civ.
App. —, 169 S. W. 922.
The judgment of May 23, 1913, fully
established the validity of tlie Bremen
awards as a whole, the undisputed
amount of which awards was 312,749.30
German marks, the equivalent of which
in American money was about $74,820.52.
In the trial of the first case between
Heye and the Birge-Forbes Company,
which went to judgment May 23, 1913,
all the arbitration awards for the cotton
season of 1910-1911 were involved to-
gether, were in exactly the same' cate-
gory, had exactly the same status, were
subjected to exactly the same attacks,
and under the issues made were neces-
sarily required to stand as a whole or
fall as a whole. They stood as a whole,
and the only reason for not then render-
ing judgment for the full amount of all
the awards and interest theredn was that
the suit was premature to the extent of
the amount not actually paid by Heye
at that time on the awards, he being
held to be a surety or guarantor for the
Birge-Forbes Company, and his cause of
action not ripe until actual payment by
him. Therefore, it being shown by the
undisputed evidence that he had made
partial payments, a^regating $36,610.90,
he was given judgment for that amount
(plus a small sum for other items not of
interest here), and was denied a recov-
ery for the rest until he should pay the
re.st.
Southern P. R. Co. v. United States,
168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct.
Rep. 18; New Orleans v. Citizens' Bank,
167 U. S. 371, 42 L. ed. 202, 17 Sup. Ct.
Rep. 905; Mason Lumber Co. v. Buchtel,
101 U. S. 633, 638, 25 L. ed. 1072, 1074 ;
Johnson Steel Street R. Co. v. Wharton,
152 U. S. 253, 38 L. ed. 430. 14 Sup.
288
Ct. Rep. 608; Last Chance Min. Co. v.
Tyler Min. Co. 157 U. S. 683, 38 L. ed.
859, 15 Sup. Ct. Rep. 733, 18 Mor. Min.
Rep. 205; Beloit v. Morgan, 7 Wall. 619,
19 L. ed. 205; Hanrick v. Gurley, 93
Tex. 458, 54 S. W. 347, 55 S. W. 119,
56 S. W. 330 ; Webster v. Mann, 56 Tex.
119, 42 Am. Rep. 688; 23 Cyc. 1288, 1294,
1295, 1306, 1322; Washington Ga^ Light
Co. v. District of Columbia, 161 U. S.
316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564;
Harshman v. County Ct. 122 U. S. 306,
30 L. ed. 1152, 7 Sup. Ct. Rep. 1171;
New York L. Ins. Co. v. Bangs, 103 U. S.
780, 26 L. ed. 608; New York C. & H. R.
R. Co. V. Fraloff, 100 U. S. 24, 25 L. ed,
531; 2 Foster, Fed. Pr. 5th ed. p. 1556.
The court was well warranted in find-
ing that the reclamation claims, which, ,
when established by arbitration at Bre-
men, Heye became liable for as guaran-
tor, and afterwards paid, were not
barred by limitation at the time he paid
them; and, moreover, such finding in-
volved a matter of fact not reviewable
on writ of error.
Dainese v. Hale, 91 U. S. 13, 23 L. ed.
190; Hudson River Pulp & Paper Co.
V. Warner & Co. 39 C. C. A. 452, 99 Fed.
187; Eastern Bidg. & L. Asso. v. Eb^igh,
185 U. S. 114, 46 L. ed. 830, 22 Sup. Q.
Rep. 566; Coram v. Davis, 216 Mass.
448, 103 N. E. 1027; 4 C. J. 644-647, 843,
844; Copper River & N. W. R. Co. v.
Phillips, 116 C. C. A. 148, 196 Fed. 328;
New York C. & H. R. R. Co. v. Fraloff,
100 U. S. 24, 25 L. ed. 531 ; 2 Foster, Fed.
Pr. 5th ed. p. 1556 ; 2 Jones, Ev. §§ 390,
391; 3 Bouvier's, Law Diet. 3325; Sena
V. American Turquoise Co. 220 U. S.
497, 55 L. ed. 559, 31 Sup. Ct. Rep. 488;
Melton V. Pensacola Bank & T. Co. Ill
C. C. A. 166, 190 Fed. 126.
Inasmuch as the court cotld take ju-
dicial notice of the value of a German
mark, expressed in terms of American
money, and inasmuch as the evidence on
the trial showed without substantial dis-
pute that such value was 23.8 cents, the
court properly took such value as the
basis for determining the amount of the
verdict to be directed. Furthermore, de-
fendant, by moving the court for a
directed verdict in its favor, waived and
surrendered any right to claim that
there were issues that should go to the
jur>'.
7 Enc. Ev. 906; Hogue v. Williamson,
85 Tex. 553, 20 L.R.A. 481, 34 Am. St.
Rep. 823, 22 S. W. 580; 2 Foster, Fed.
Pr. 5th ed. p. 1556; Sena v. American
Turquoise Co. 220 U. S. 497, 55 L. ed.
559, 31 Sup. Ct. Rep. 488; Melton v.
Pensacola Bank & T. Co. supra.
531 V. S.
1»10.
BIRGEFORBES CO. v. HEYE.
322-324
Mr. Justice Holmes delivered the
opinioii of the court :
This is a suit by Heye, a cotton broker
io Bremen^ against the petitioner, cot-
ton exporter in Texas, to recover sums
that Heye had to pay on its account.
The payments were made upon cotton
sold by Heye as the petitioner's ag^nt,
to different buyers, for alle-jed failure
of the cotton to correspond to the de-
scription upon which the price was
based. In pursuance of the contracts
and the rules of the Bremen Cotton Ex-
change the claims of the buyers were
submitted to arbitration, which resulted
in awards against the plaintiff for a
total of 312,749.30 German marks, al-
leged to be equal to about $74,820.52.
Before the present suit was brought
another one had been carried to judg-
ment in the same district, in which that
amount was claimed. At that time Heye
had paid only $36,610.96 of the awards.
The judge directed a verdict for the sum
that the plaintiff had paid and another
item not now in issue. Heye now has
paid the whole, and brings this suit to
recover the amount of the later payment
not embraced in the former judgment.
He prevailed in the district court, and
the judgment was affirmed with a modi-
fication as to payment by the circuit
court of appeals. 160 C. C. A. 536, 248
Fed. 636. The main question on the
merits is whether the former judgment
was conclusive as to the validity of the
awards, but that upon which the cer-
tiorari was granted was a preliminary
one, as is shown by the fact that certi-
orari was denied in the former suit. 234
U.S. 759, 58 L.ed.1580,34 Sup. Ct. Rep.
676. After the case had been [323]
taken to the circuit court of appeals a
motion was made to dismiss or suspend
the suit on the ground that Heye had
become an alien enemy by reason of the
declaration of war between Germany and
the United States. The circuit court of
appeals, however, affirmed the judgment
with the modification that it should be
paid to the clerk of the trial court and
by him turned over to the Alien Property
Custodian, with further details not ma-
terial here.
Upon the last-mentioned question, al-
though it seemed proper that it should
be set at rest, we can feel no doubt.
The i^aintiff had got his judgment be-
fore war was declared, and the defend-
ant, the petitioner, had delayed the col-
iectioB of it by taking the case up. Such
•4 Ij. ed.
a case was disposed of without discussion
by Chief Justice Marshall, speaking for
the court in Owens v. Hanney, 9 Cranch,
180, 3 L. ed. 697; Kershaw v. Kelsev,
100 Mass. 661, 664, 97 Am. Dec. 124, *1
Am. Rep. 142. There is nothing "mys-
teriously noxious" (Coolidge v. Inglee,
13 Mass. 26, 37) in a judgment for an
alien enemy. Objection to it in these
days goes only so far as it would give
aid and conifort to the other side.
Hanger v. Abbott, 6 Wall. 632, 536, 18
L. ed. 939, 941; M'Connell v. Hector, 3
Bos. & P. 113, 114, 127 Eng. Reprint, 61,
6 Revised Rep. 724. Such aid and com-
fort were prevented by the provision
that the sum recovered should be paid
over to the Alien Property Custodian,
and the judgment in thitf respect was
correct. When the alien enemy is de-
fendant, justice to him may require the
suspension of the case. Watts, W. &
Co. V. Unione Austriaca di Navigazione,
248 U. S. 9, 22, 63 L. ed. 100, 101, 3
A.L.R. 323, 39 Sup. Ct. Rep. 1.
On the merits the first question is
whether the former judgment was con-
clusive as to the validity of the awards,
assuming them to have been identified
as the same that were sued upon in the
former case. Taking merely the former
declaration and judgment, it could not be
said with certainty that some of the
awards might not have been held invalid,
and that the defendant h A not satisfied
the [324] whole obligation found to ex-
ist. But we have before us the fact that
the court directed a verdict and the
charge. From the latter, as also from the
answer, apart from a general denial, it
appears that the awards were dealt with
as a whole, and that the objections to
them were general. The objections were
overruled, and the court assumed that,
the awards were obligatory, but cut
down the amount to, be recovered to the
sum that had been paid. The case went
to the circuit court of appeals, and the
same things appear in the report of the
case there. 128 C. C. A. 628, "212 Fed.
112. Certiorari denied in 234 U. S. 759,
58 L. ed. 1580, 34 Sup. Ct. Rep. 676.
In the present case both parties moved
the court fo direct a verdict. Beuttell
V. Magone, 157 U. S. 154, 157, 39 L. ed.
654, 655, 15 Sup. Ct. Rep. 566; Empire
State Cattle Co. v. Atchison, T. &.
S. F. R. Co. 210 U. S. 1, 8, 52 L. ed.
931, 936, 28 Sup. Ct. Rep. 607, 15 Ann.
Cas. 70. Taking that and the fact that
the same judge seems to have presided
19 28»
324-326
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm
in both suits into account, we should be
slow to disturb his decision that the is-
sue was detennined in the former one
if we felt more doubt than we do. But
we are satisfied the decision of the two
courts below was right.
We shall deal summarily with two or
three highly technical arguments urged
against the affirmation of the judgment.
One is that the depositions of Heye and
a witness were not returned, as required
by the Texas statute providing for tak-
ing them, with a suggestion that, as
Heye was a party^ his deposition could
not be taken at all. As to the latter
point it is to be noticed that it did not
present an attempt to fish for informa-
tion from the opposite party, and that
an agreement -was made that 'Hime notice
and copy are hereby waived," and that
''the officer may proceed to take and
xetum the depositions of the witness on
the original direct and cross interroga-
tories, but commission is not waived.''
Whatever may be the general rule (as
to which see Blood v. Morrin, 140 Fed.
918), we think that this objection is not
fairly open. As to the mode of return
not having followed strictly the Texas
[325] statute, because the officer to
whom the commission was directed did
not put the depositions into the mail
and certify on the envelops that he had
done so, a sufficient answer is that that
course was impossible, owing to the war,
and that the officer did transmit the dep-
ositions in the only practicable way.
He gave them to an American consul and
had them transmitted to the Depart-
ment of State, and then through the
mail to the clerk. The integrity of the
depositions is not questioned, the statute
was complied with in substance, and
.justice is not to be defeated now by a
matter of the barest form.
We see no error in the finding that §
477 of the Gertnan Civil Code did not
bar the claim. Assuming the question
to be open, the court was warranted in
finding that a six months' limitation to
claims for defect of quality did not ap-
ply where the claims had been submitted
to arbitration and passed upon. The
same is true with regard to 'the taking
the value of the German mark at par
in the absence of evidence that it had
depreciated at the time of the plaintiffs
payments. On the whele case our con-
clusion is that the judgment should be
affirmed.
Judgment affirmed.
290
[S26] NORTHERN PACIFIC RAILWAY
COMPANY, Appt.,1
V.
UNITED STATES. ( No. 109. )
SEABOARD AIR LINE RAILWAY, Appt.,
V.
UNITED STATES. (No. 132.)
NEW YORK CENTRAL & HUDSON
RIVER RAILROAD COMPANY, Appt.,
V.
UNITED STATES. (No. 133.)
KANSAS CITY, MEXICO, & ORIENT
RAILWAY COMPANY OP TEXAS,
Appt.,
v.
UNITED STATES. (No 232.)
(See S. C. Reporter's ed. 326-342.)
Postoffice — oompensatlon for carrying
mails — weighing.
Railway companies carrying the
mails after the Postmaster Qeneral had, by
a readjustment order, directed that compen-
sation be based upon a calculation of aver-
age weight, made by taking the whole num-
ber of days included in the weighing period
as a divisor for obtaining the average
weieht per day, instead of the number of
working or week days, as was the former
practice, are bound by such order, either
because the Postmaster General had the
discretionary power to make the order, as
is held by four justices, or because, as is
held by two justices, the railway companies
by their conduct in fact accepted the terms
offered by the Postmaster General by trans-
porting the mails and accepting the stated
compensation.
[For other cases, see Postoffice, IV. c. In
Digest Sup. Ct. 1908.]
[Nos. 109, 132, 133, and 232.]
Argued December 17, 18, and 19, 1919.
tided January 12, 1920.
rX)UR APPEALS from the Court of
J^ Claims to review judgments rejeeting
claims for increased compensation for
carrying the mkils. Afiirmed.
See same case below, 53 Ct. CL 258.
The facts are stated in the opinion.
Mr. Alexander Britton argued the
cause, and, with Messrs. C. W. Bunn
and Evans Browne, filed a brief for ap-
pellant in No. 109.
1 Rej)orted by the Official Reporter under
the title of "The Mail Divisor Cases."
Note. — On power of courts to inter-
fere with rulings of Postoffice Depart-
ment— see note to United States ex rel.
Reinach v. Cortelyou, 12 L.R.A.(N.S.)
166.
251 U. S.
1919.
NORTHKRN l\ R. CO. v. UMUED STATES.
328-330
Messrs. William R. Harr and Charles
H. Bates filed a brief as amiei euriie on
bekalf of the £1 Paso k Southwestern
Railroad Coidpany et al.
Messrs. Abram R. Ser\'en and Burt E.
Bajrlow filed a brief as amici curi® on
behalf of the Chicago, Burlington, &
Quincy Railroad Company.
. Mr. Benjamin Garter argued the
cause, and, with Mr. James F. Wright,
filed a brief for appellant in No. 132.
Mr. L. T. Michener filed a brief as
amicus curi® for the Minneapolis, St.
Paul, & Sault Sainte Marie Railway
Company.
Mr. B. Stuart &napp filed a brief in
behalf of the Bellefonte Central Rail-
road Company.
Mr. Frederic D. McKenney argued the
cause, and, with Mr. John Spalding
Flannery, filed a brief for appellant in
No. 133.
Mr. F. Garter Pope argued the cause
and filed a brief for appellant in No.
Solicitor General King and Mr. La
Rue Brown argued the cause, and, with
Mr. Joseph Stewart, filed a brief for the
United States.
Solicitor Qeneral King, Messrs. Frank
DaviSy tlr., and J. Robert Anderson also
filed a brief for the United States.
Mr. Justice HobneB announced the
judgment of the court, and delivered the
following opinion, concurred in by
the Chikf Justice and Justices Braadeifl
and Glarke:
These are claims for compensation for
carrsdng the. mails above the amounts
allowed and paid by the Postmaster (Gen-
eral. The four cases are independent of
one another, [829] but as the claims all
depend for their validity upon a denial
of the Postmaster QeneraPs power to
pass a certain order, they may be con-
sidered together. They were rejected by
the court of claims. The question, short-
ly stated, is this : The pay for carrying
the mails is determined by the average
weight carried. To ascertain this aver-
age the mails are weighed for a certain
number of consecutive days, and for
aome time before 1907 the total weight
was divided by the number of working
days: if the number of days was thirty-
five, it was divided by thirty; if one
hundred and five, by ninety. But on
June 7, 1907, the Postmaster General is-
sued an order, No. 412, ''that when the
•4 li. ed.
weight of mail is taken on railroad
routes, the whole number of days in-
cluded in the weighing period shall be
used as a divisor for obtaining the aver-
age weight per day." This, of course,
diminishes tfie average weight, and
therefore the pay of the railroads. They
deny the authority of the Postmaster
General to make the change, and sue for
the additional sum that, under the old
practice, they would have received.
The texts to be discussed begin with
an Act of 1873, but it should be observed,
as furnishing a background for that
and the following statutes, that from
the beginning of the government the
Postmaster General, as the head of a
great business enterprise, always has
been intrusted, as he must be, with a
wide discretion concerning what con-
tracts he should make, with whom, and
upon what terms. It is needless to go
into the early statutes, or to do more
than to refer to Rev. $tat. § 3999, Comp.
Stat. § 7478, 8 Fed. Stat Anno. 2d ed.
p. 189, which authorises him to make
other arrangements if he cannot con-
tract for the carriage of the mail upon
a railway route at a compensation not
exceeding the maTJmnm rates then es-
tablished, or for what he deems reason-
able and fair. The limitations upon the
power were in the interest of the busi-
ness, the principal one being that the
pay per mile per annum should not ex-
ceed certain rates. Act of June 8, 1872,
chap. 336, § 211, 17 [330] Stat, at L.
283, 309, Comp. Stat. § 567, 3 Fed. Stat.
Anno. 2d ed. p. 250, Rev. Stat. §§ 3998,
4002, Comp. Stat. § 7483, 8 Fed. Stat.
Anno. 2d ed. p.l95. The language plainly
showed and the decisions have estab-
lished that the Postmaster General, if it
seemed to him reasonable, could refuse
to pay the maximum and insist upon
some lesser rate as a condition of deal-
ing with a road. Atchison, T. & S. F. R.
Co. V. United States, 225 U. S. 640, 649,
56 L. ed. 1236, 1239, 32 Sup. Ct. Rep.
702.
The Act of March 3, 1873, chap. 231,
17 Stat, at L. 556, 558, Comp. Stat.
§ 7483, 8 Fed. Stat. Anno, 2d ed. p. 195,
appropriates $500,000, or so much there-
of as may be necessary, ''for increase of
compensation for the transportation of
mails on railroad routes upon the con-
dition and at the rates hereinafter men-
tioned.'' Then, after providing for due
frequency and speed and suitable ac-
commodations for route agents, — mat-
ters on which obviously the Postmaster
General is the person to be satisfied^ — it
enacts that ''the pay per mile per annum
991
330-332
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
shall not exceed the following rates,
namely: On routes carrying their whole
length an average weight of mails per
day of two hundred pounds, fifty dol-
lars; five hundred pouncls, seventy-five
dollars," etc., etc. So far it will be
seen that, although the object is to per-
mit an increase of compensation, still
the discretion of the Postmaster Gen-
eral under the earlier acts remains, and
that he could decline to pay the maxi-
mum rates, however^ ascertained, or any
sum greater than he should deem reason-
able. It is argued, to be sure, that the
rates were fixed at the maximum, and
the Act of July 12, 1876, chap. 179, 19
Stat, at L. 78, 79, Comp. Stat. § 7484,
8 Fed. Stat. Anno. 2d ed. p. 198, reducing
the compensation "ten per centum per
annum from the rates fixed and allowed,"
is thought to help the conclusion. But
no argument can obscure the meaning of
the words "shall not exceed." The rates
were fixed and reduced in their maxima,
but that was all that was done with re-
gard to them. United States v. Atchison,
T. & S. F. R. Co. 249 U. 8. 451, 454, 63
L. ed. 703, 704, 39 Sup. Ct. Rep. 325.
The question is whether, for any reason,
the control over the compensation thus
undeniably given to him [331] with-
out imposing any downward limit as to
the money rates is wholly withdrawn
from, his judgment in the preliminary
stage of determining the basis to which
the money rates are to be applied.
The next words of the statute are:
"The average weight to be ascertained
in every case by the actual weighing of
the mails for such a number of succes-
sive working days, not less than thirty,
at such times," etc., "and the result to
be stated and verified in such form and
manner as the Postmaster General may
direct." The pay, it will be remembered,
was to be per mile per annum, and as
it was not practicable to weigh all the
mails throughout the year and so to
find out the total actual weight of the
mails and the exact number of miles
that they were carried in the year, the
result had to be arrived at approximate-
ly by finding the average weight carried
on days assumed to resemble the other
days of the 365. The average to be
reached was not an average for the
thirty days, but an average weight per
day for the year. This interpretation
is shown to be the understanding of Con-
gress by the Act of July 12, 1876, chap.
179, 19 Stat, at L. 78,*79, Comp. Stat.
§ 7484, 8 Fed. Stat. Anno. 2d ed. p. 198,
which reduces the compensation 10 per
centum per annum from the rates fixed
292
and allowed by the Act of 1873 "for the
transportation of mails on the basis o£
the average weight" This must mean
the average weight for the year con-
cerned. Again, by the Act of March 3,
1905, chap. 1480, 33 Stat, at L. 1082,
1088,. 8 Fed. Stat. Anno. 2d ed. p. 204,
"the average weight [i. e., of course, the
average weight for the year] shall be
ascertained by the actual weighing of
the mails for such a number of succes-
sive working days, not less than ninety,*'
etc., the increase in the number of days
manifestly being for the purpose of more
nearly hitting the average for the whole
time. The statutes do not mention the
divisor to be used in order to get the
average desired. In 1873 mails were
not carried on Sundays except over a
comparatively small proportion of
routes, and therefore six was the fairest
single divisor. [332] Now, on the oth-
er hand, it is said that the mileage of
the seven-day routes is much greater
than that of the six days. Therefore
now to weigh for Sundays as well as
other days, and to divide by seven, is
the fairest single rule that can be found.
But it is said that when an average is
directed to be reached by weighing for.
say, thirty working days, it is implied
that you are to get the average by using
the number of working days on which
the mails were weighed as a divisor, that
working days mean week days, and that
if in fact Sundays are used as working
days, the divisor is not affected because
the statute only contemplated six for a
week. But the supposed implication of
the statute disappears when it is remem-
bered that the average wanted is not
the average for the weighing days only,
but the average for the year. It is plain,
too, that, whether "working davs" be
read to mean week days or the days on
which work was done in fact, the stat-
ute contemplates the working days and
the weighing days as identical, and
therefore affords no ground for demand-
ing the advantage of a dividend of seven
and a divisor of six, which is what the
railroads want.
Various makeweights are thrown in
to help the construction desired by the
roads, but they seem to us insufficient to
change the result that is reached by
reading the words. It is said that down
to 1907 the Postofflce Department con-
strued the Acts of 1873 and after as
entitling the railroads to the maximum
rates *for full service as defined, and to
the minimum divisors, and that this oon-
struction must be taken to have been
adopted in silence, by the later stat-
251 U. 6.
1919.
NORTHERN P. R. CO. v. UNITED STATES.
332-333
utes. But the exercise of power in the
way deemed jnst while the conditions
stated to have existed in and after 1873
continued was not a construction, but
the exercise of discretion in determining
the amount of pay, — a discretion which,
as we have seen, undeniably was given in
the form of a right to regulate [333]
rates, and which therefore there could be
no reason for withholding, beyond the ex-
press words of the act, at the other end.
It is true that in 1884 an Assistant At-
torney General gave an opinion that any
departure from the practice would de-
feat the intention of the law and cause
no little embarrassment, and that there-
after an order made by a previous Post-
master for taking the number of weigh-
ing days as the divisor was revoked. But
the letter of the Postmaster General thus
answered merely stated what had been
the practice as to the divisor, ^nd asked
whether it was in violation of law* It
did not state that the Postoffice con-
sidered itself bound to follow that way.
The order that was revoked only pur-
ported to affect seven-day routes, and is
of little or no importance to the question
before us now.
It is said that the rate was fixed by
the Act of March 2, 1907, ch^. 2513, 34
Stat, at L. 1205, 1212, Comp. Stat. §
7487. 8 Fed. Stat. Anno. 2d ed. p. 205,
if not before, by a reduction to "five per
centum less than the present rates'' on
certain routes. But as we have stated,
we understand this to mean a reduction
of the rates fixed by statute, — that is,
the maximum rates. We do not under-
stand it to refer to rates specifically al-
lowed. It is not likely that Congress
considered the latter in detail.
Finally, much is made of the fact that
before the passage of the Act of March
3, 1905, and again before the passage of
the Act of March 2, 1907, provisos were
stricken out that in e£tect required the
<li visor to be the number of the weighing
days. A similar thing happened before
the passage of the act making appropria-
tions for the fiscal year ending June 30>
1909. We do not go into the particu-
lars of these matters, because whatever
way have been said by individuals, the
provisos might as well have been rejected
for the purpose of leaving the choice
between the two divisors to the judg-
ment of the Postmaster General as for
any other reason. On the other hand, we
are not disposed to lay much stress on the
fact [334] that the appropriations by
Congrress accepted the Postmaster Gen-
eral's estimates even when it had been
notified that the railroad-; were dissatis-
e4 Ti. ed.
fied with Order No. 412. The Act of
March 3, 1875, chap. 128, 18 Stat, at L.
340, 341, Comp. Stat. §§ 7221, 7489, 8
Fed. Stat. Anno. 2d ed. pp. 52, 197, or-
dered the Postmaster General to have the
weighing done thereafter by the employ-
ees of the Post office Department, and to
"have the weights stated and verified to
him by said employees under such in-
structions as he may consider just to
the Postoffice Department and the rail-,
read companies.'' Possibly this might
be construed to recognize the power now
in dispute, but this suggestion also we
are content to leave on one side. We al-
so leave unconsidered the great difficul-
ties that the railroads encounter in the
effort to show that their conduct did
not amount to an acceptance of the Post-
master General's terms within the deci-
sion in New York, N. H. & H. R. Co. v.
United States, Dec. 8, 1919, 251 U. S.
123, ante, 182, 40 Sup. Ct Bep. 67. The
construction of the statutes disposes of
all the cases without the need of going
into further details.
Judgments affirmed.
Mr. Justice Day and Mr. Justice
VanDevanter dissent. Mr. Justice Mc-
Bes^olds took no part in the decision of
the cases.
Mr. Justice Pitney, with whom con-
curred Mr. Justice McKenna:
1 concur in the affirmance of the judg-
ments of the court of claims in these
cases, but upon grounds somewhat dif-
ferent from those expressed in the opin-
ion of Mr. Justice Holmes.
AH the claims arose under the law as
it stood after the Act of March 2, 1907,
chap. 2513, 34 Stat, at L. 1205, 1212, and
before that of July 28, 1916, chap. 261,
39 Stat, at L. 412, 429, by which the
carriage of mail matter by the railways
was made compulsory. The act about
which the principal [333] controversy
turns is that of March 3, 1873; chap.
231, 17 Stat, at L. 556, 558, the dis-
puted portion of which was carried
into § 4002, U. S. Rev. Stat.
Comp. Stat. § 7483, 8 Fed. Stat.
Anno. 2d ed. p. 195. By it the Post-
master General was "authorized and
directed to readjust the compensation
hereafter to be paid for the transporta-
tion of mails on railroad routes upon
the conditions and at the rates herein-
after mentioned: . . . Second, That
the pay per mile per annum shall not
exceed the following rates, namely: On
routes carrying their whole length an
average weight of mails per day of two
203
ns.j— 337
81 PUEME COURT OF THE UNITED STATES.
Oct. 'Iebsj:,
hundred pounds, fifty dollflt^; . . •
five thousand ]>ounds, two hundred dol-
lars, and twenty-five dollars additionaf
for every additional two thousand
pounds, the average weight to be ascer-
tained, in every case, by the actual
weighing of the mails for such a num-
ber of successive working days, not less
than thirty, at such times . . . and
not less frequently than once in every
four years, and the result to be stated
and verified in such form and manner
as the Postmaster General may direct."
In my opinion, the rates of pay per
mile per annum were maximum rates,
and the Postmaster Oeneral had a dis-
cretion to contract at less if the rail-
roads agreed ; but under § 210 of the Act
of June 8, 1872, chap. 336, 17 Stat, at
L. 283, 309, U. S. Rev. Stat. § 3997, he
was under a duty to arrange the routes
into classes according to the size of the
mail, and the speed, frequency, and im-
portance of the service, "so thifct each
railway company shall receive, as far
as practicable, a proportionate and just
rate of compensation, according to the
service performed."
But I think that in the clause ^'the
average weight to be Ascertained, in
every case, by the actual weighing of
the mails for such a number of suc-
cessive working days, not less than
thirty," etc., the words ^'successive work-
ing days" by proper interpretation,
mean successive week days; and since
the aggregate weight for the weighing
'period must be subjected to division in
order to ascertain the [336] average
weight per day, it naturally follows that
the divisor should be the same number of
**working days" (that is, week days)
that are included in the period. The
previous history of the mail service
shpws abundant reason for this, and for
more than thirty years thereafter the
provision was uniformly so construed by
the Department. Upon a large number
of the railway routes, mails were car-
ried six days each week, none being car-
ried on Sunday; while on other rotltes
they were carried on every day in the
week. The aggregate weight of mails
carried was not affected by the fre-
quency of the service, since the six-day
routes carried the Sunday accumulations
on Mondays. This explains whv a cer-
tain number of "working days" (week
days) was made the measure of the
weighing period, and at the same time
shows that the week-dav divisor was
necessary in order to deal equitably with
both the six-dav and the seven-dav
routes. From the passage of the Act
294
of 1873 down to the promulgation o£
Order No. 412 in the year 1907, the
practice of the Department was in ac-
cord with the above interpretation. It wa^
explained in a communication from the
Postmaster General to the Senate Janu-
ary 21, 1885, Senate Ex. Doc. No. 40,
48th Cong., 2d Sess., p. 68: "The present
rule is, on those roads carrying the mails
six times a week, to weigh the mails on
thirty consecutive days on which the
mails are carried, which would cover a
period of thirty-five days; dividing the
aggregate thirty weighings by thirty will
give the daily average. On those roads
carrying the mails seven times per week
the weighing is done for thirty-five con-
secutive days (including Sundays) and
the aggregate divided by thirty for a
basis of pay. It is evident that the
period during which the weighing is con-
tinued covers, in both cases, all the mails
carried for thirty-five days. If, in the
second case, we should take our basis
from an average obtained by dividing
the aggregate weight by thirty-five, we
should commit the absurdity of putting a
[837] premium upon inefficiency; for
evidently if the Sunday train were cut
off, we should virtuallv have the same
mails less frequently carried, and there-
fore with a higher daily average, and
therefore a higher pay basis than in the
case where the seventh train was run and
the greater accommodation rendered. The
present method gives no additional pay
for the additional seventh train, but the
other method would cause a reduction
on account of better service, and prac-
tically would operate as a fine on all
those* roads carrying the mails daily, in-
cluding Sunday."
The Act of March 3, 1906, chap. 1480,
33 Stat, at L. 1082, 1088, 8 Fed. Stat.
Anno. 2d ed. p. 204, changed the mini-
mum weighing period so as to require
the inclusion of at least ninety, instead
of thirty, successive working days, but
made no other change. Under this act
one hundred and five calendar days nec-
essarily were included in the weighing
period in order to take in ninety suc-
cessive working days. In my opinion,
this act, like that of 1873, by fair con-
struction, required that the week-day
divisor be employed. And so it was of-
ficially construed until 1907.
But while I regard this method of
determining the average weight to have
been prescribed, and not left to the dis-
cretion of the Postmaster General, still
I think the statute in this respect was
only directory, and not mandatory. Con-
sidering the provision in its relation to
101 V. s.
1919.
NORTliEKX P. R. CO. v. UNITED STATES.
337-339
thfi context and subject -mat ter^ it will
be seen to be but an aid to the making
of fair contracts within the maximum
rates allowed, and an aid to the Post-
master General in fixing the rate of
compenitation upon land-grant routes,
and in so arranging routes that each rail-
iway company shall receive a proportion-
ate and just rate of compensation ac-
cording to the service performed.
Hence, it seems to me that a failure
strictly to comply with the prescribed
method of ascertaining the average
'weight did not of itself render the ac-
tion of the Postmaster General ultra
vires and void.
[338] The principal controversy in
the present cases is over his Order No.
412 (June 7, 1907), which provid-
ed ^that when the weight of mail
is taken on railroad routes the
whole number 'of days included in the
weighing period shall be used as a
divisor for obtaining the average
weight per day." While I regard it as
embodying an erroneous view of the
statute, this is not sufficient, in my opin-
ion, to vitiate' a contract voluntarily
made by a railway mail carrier, based
upon a calculation of average weight
made and known to have been made in
conformity with the order. All the pres-
ent claims originated after the promul-
gation of the order, and arose out of the
carriage of mails under arrangements
made with the Postmaster General after
express notice of its provisions.
It is contended that although the Act
of 1873 (U. S. Rev. Stat. § 4002, Comp.
Stat. § 7483, 8 Fed. Stat. Anno. 2d ed.
p. 195), in providing that the pay per
mile per annum should "not exceed" the
specified rates, conferred upon the Post-
master General a discretion to pay less
rates, this was modified bv the language
of the Act of Julv 12, 1876, chap. 179,
19 Stat, at L. 78, 79, Comp. Stat. § 7484,
8 Fed. Stat. Anno. 2d ed. p. 198, which
reduced the compensation 10 per centum
from **the rates fixed and allowed . . .
[by the Act of 1873] for the transporta-
tion of mails on the basis of the average
weight;" by that of the Act of June 17,
1878, chap. 259, 20 Stat, at L. 140, 142,
Comp. Stat. §§ 7548, 7486, 8 Fed. Stat.
Anno. 2d ed. pp. 226, 199), where, how-
ever, the expression is: "By reducing
the compensation to all railroad compa-
nies for the transportation of mails five
per centum per annum from the rates
for the transportation of mails, on the
basis of the average weight fixed and
allowed/' etc. ; or bv the provision of the
Act of March 2, 1907, chap. 2513, 34
64 li. ed.
Stat, at L. 1205, 1212, Comp. Stat. §
7487, 8 Fed. Stat. Anno. 2d ed. p. 205,
readjusting compensation on railroad
routes carrying an average weight per
day exceeding 5,000 pounds, "by making
the following changes in the present
rates per mile per annum for the trans-
portation of mail on such routes, and
hereafter the rates on such routes shall
6e as follows," etc. I am not convinced
that these amendments, or any of them,
had [339] the effect of impliedly re-
pealing that part of the Act of 1873
(U. S. Rev. Stat. § 4002), "shall not
exceed,'^ etc., from which alone, in my
view, the Postmaster General derived
any serviceable discretion about read-
justing the compensation.
Therefore, he still had liberty of ac-
tion within the maximum rates pre-
scribed. And the railroad companies,
other than such as had been aided by
grants of lands or otherwise, were free
to carry the mails at rates offered, or
refuse them, as they chose. Eastern R.
Co. V. United States, 129 U. S. 391, 396,
32 L. ed. 730, 732, 9 Sup. Ct. Rep. 320;
Atchison. T. & S. F. R. Co. v. United
States, 225 U. S. 640, 650, 56 L. ed.
1236, 1239, 32 Sup. Ct. Rep. 702; Dela-
ware, L. & W. R. Co. V. United States,
249 U. S. 385, 388, 63 L. ed. 659, 661,
39 Sup. Ct. Rep. 348; New York, N. H.
& H. R. Co. V. United States, Dec. 8,
1919, 251 U. S. 123, ante, 182, 40 Sup.
Ct. Rep. 67.
I'urthermore, by § 212 of the Act of
June 8, 1872, chap. 335, 17 Stat, at L.
283, 309, U. JS. Rev. Stat. § 3999, Comp.
Stat. § 7478, 8 Fed. Stat. Anno. 2d ed.
p. 189, if, because of the refusal of the
railway companies, the f^ostmaster Gen-
eral was unable to make contracts at a
compensation "not exceeding the maxi-
mum rates," or for what he deemed a
reasonable and fair compensation, he
was at liberty to use other means of
carriage.
From the findings of the court of
claims it appears that in all of these
cases there were express contracts; and
I concur in the view of that court (53
Ct. CI. 258, 308, 315, 318, 319) that the
contracts arose not out of the Distance
Circular in which the Postmaster Gener-
al specially called notice to Order No.
412, and to which some i>i the claim-
ants responded with protests, more or
less explicit, that they would not be
boimd by that order; but arose out of
what subsequently hap|>ened. The Post-
master General in every case informed
the protesting carriers that he would not
enter into contract with anv railroad
29.%
339-342
StPKEME COURT OF THE UNITED STATES.
Oct. Iebm,
company excepting it from the opera-
tion of any postal law or regulation.
The mails were weighed and the average
weight ascertained in accordance with
Order No. 412, [340] as all the claim-
ants had been notified would be done;
thereafter the Postmaster Qeneral, upon
the basis of the weight tlius ascer-
tained, caused the maximum statutory
rate to be calculated, issued orders
naming certain amounts thus arrived
at as the compensation for the service,
and gave notice in proper form to
the carriers, specifying in terms
the readjusted pay that would be
allowed, '^subject to future orders and
to fines and deductions." Thereafter
the carriers received and transport-
ed the mails as offered, periodically ac-
cepted compensation in accordance with
the readjustment notices, and proceeded
thus without further objection or pro-
test until the end of the respective quad-
rennial periods. In short, although in
some cases they declared they would not
consent to the ascertainment of average
weights on the basis of Order No. 412,
th^y did not insist upon their objection
in the face of the Postmaster General's
declaration that he would not accede to
it. Had they refused to carry the mails
on the terms proposed, he might have
exercised his discretion as to the rate of
pay per mile, so that instead of agreeing
to give them, as he did, the maximum
pay based on the average weight ascer-
tained under Order No. 412, he might
have acceded to their contention by em-
ploying the week-day divisor, but have
carried into effect his own view as to
the amount that ought to be allowed by
reducing the rate of pay per mile. Or,
as already shown, he might have refused
to make the contracts and have proceed-
ed under § 3999.
I deem it clear, therefore, that the
claimants in fact accepted the Postmas-
ter GeneraFs offers as contained in the
readjustment notices, by proceeding to
perform the prescribed service in ac-
cordance therewith and accepting the
compensation due to them therefor. And
so the court of claims held (53 Ct. CI.
258, 308, 313, 315, 318, 319).
Some of the routes of the Seaboard Air
Line and of the Northern Pacific Rail-
way Company were over lines that had
been aided by government land grants,
and hence [341] were subject to provi-
sions of law summed up in § 214 of the
Act of June 8, 1872 (U. S. Rev. Stat. §
4001, Comp. Stat. § 7482, 8 Fed. Stat.
Anno. 2d ed. p. 194), by which they were
obliged to **earry the mail at such prices
296
I as Congress may by law provide ^ and,
I until such price is fixed by law, the Post-
master General may fix the rate of eom-
pensation." The Seaboard Air line
makes no point of this; but in behalf of
the Northern Pacific it is contended that
claimant, not being in the position of' a
free agent, ought not to be regarded as
having voluntarily accepted the terms
proposed by the Postmaster General.
But the effect of .the findings is that it
did so accept; and this result cannot be
overturned by raising an argument about
the circumstances that went to make up
the evidence upon which the findings
were based; and the present contention
amounts to no more than this.
Were it otherwise, nevertheless it ap-
pears that Congress had not provided
the compensation for the land-grant
routes, except that it had authorized and
directed the Postmaster General to read-
just all railway mail pay in the manner
set forth in § 4002 and within the maxi-
ma prescribed therein and in the amend-
atory Acts of 1876, 1878, and 1907, above
mentioned, and had provided by § 13 of
the Act of July 12, 1876; chap. 179, 19
Stat, at L. 78, 82, "that railroad com-
panies whose railroad was constructed in
whole or in part by a land grant made
by Congress on the condition that the
mails should be transported over their
road at such price as Congress should
by law direct 'shall receive only eighty
per centum of the compensation author-
ized by this act," besides other legisla-
tion concerning the land-grant routes
that may be referred to, but need not
be recited (Acts of March 2, 1907, chap.
2513, 34 Stat, at L. 1205, 1212; May 12,
1910, chap. 230, 36 Stat, at L. 355, 362;
July 28, 1916, chap. 261, 39 Stat, at L.
412, 426). Assuming, therefore, that
there was no contract affecting the land-
grant lines of the Northern Pacific, their
compensation must be at the rate fixed
by the Postmaster General in the exer-
cise [342] of the power and discretion
conferred upon him by this legislatioii ;
and so long as he exercised this power
and discretion reasonably, not fixing a
noncompensatory rate or otherwise act-
ing arbitrarily, the carrier was concluded
by his action. There is no finding that he
acted arbitrarily; on the contrary, be
had, in support of Order 412, a consid-
ered opinion of the Attorney General
under date September 27, 1907 (26 Ops.
Atty. Gen. 390) ; and, so far as appears,
he treated the land-grant routes like
others, not reducing them below the 80
per centum contemplated by § 13 of the
Act of 1876, or otherwise violating the
251 r. s.
H»il»
MARYLAND CASUALTY CO. v. UNITED STATES.
342
statutes. There is no finding nor any
contention that the amounts allowed
them were not compensatory; and, upon
the whole, it seems to me that although
he erred in failing to apply the week-day
■divisor to the weighings, this did not
render the readjustment based thereon
wholly void, or permit the carrier, after
transporting the mails and accepting the
stated compensation without further ob-
jection, afterwards to treat the readjust-
ment orders as nullities.
Mr. Justice McKenna concurs in this
opinioiL.
MARYLAND CASUALTY COMPANY,
Appt.,
V.
UNITED STATES.
(See S. C. Reporter's ed. 342-355.)
Internal revenne — corporation excise
Uuc — income tax — income received
or accrned.
1. With respect to domestic corpora-
tions no change was. intended by the use in
the Income Tax Act of October 3, 1913, of
the expression income "arising or accruing**
instead of income "received," as used in the
Corporation Excise Tax Act of August 6,
1900, and the tax should be levied imder
both acts upon the income "received" dur-
ing the year.
(For other cases, see Internal Revenue, II. b,
in Digest Sup. Ct. 1918 Supp.]
Internal revenne — corporation excise
tax — incomo tax — insurance com-
panies — gross income.
2. Insurance premiums collected by the
local agents of an insurance company, but
wliich, conformably to the agency contracts,
were not transmitted to the company*B
treasurer within the calendar year, were
nevertheless a part of the gross income of
the company received by it during such year
within the meaning of the Corporation Ex-
cise Tax Act of August 5, 1909, and the
Income Tax Act of October 3, 1913.
[For other, cases, see Internal Revenue, II. b,
in Digest Sup. Ct. 1918 Supp.]
Internal revenne — corporation excise
tax — income tax — insurance com-
panies — deductions — loss claims
reserve.
3. An insurance compan3r'B "loss claims
reserve." intended to provide for liquida-
tion of claims for urjiettled losses (other
than those provided for by the reserve for
liability losses) which had accrued at the
■end of the tax year for which the return
was made and the reserve computed, is one
required by law to be maintained, within
the meaning of the provision in both the
Corporation Excise Tax Law of August 5,
1909, and the Income Tax Act of October
3, 1913, that "the net addition, if any, re-
quired bv law to be made witliin the vear
«4 L. ed.
to reserve funds," may be deducted from
g:ros8, in determining the amount of net,
income to be taxed, where a state insur-
ance department, piu-suant to statute, has,
at all times since and including 1909, re-
quired the company to keep on hand, as a
condition of doing business in tliat state
"assets as reserves sufficient td cover out-
standing losses.*'
[For other cases, see Internal Revenue, II. b,
in Digest Sup. Ct. 1918 Supp.]
Internal revenne — corporation excise
tax — income tax — insurance com-
panies — deductions — reserves re-
quired by state insurance depart-
ments.
4. An insurance company's reserves re-
quired by rules or regulations of state in-
surance departments, promulgated in the
exercise of an appropriate power conferred
by statute, are "required by law,*' within the
meaning of the provision in both the Cor-
poration Excise Tax Act of August 5, 1909,
and the Income Tax Act of October 3, 1913,
that "the net addition, if any, required by
law to be made within the year to reserve
funds,*' may be deducted from gross, in
determining the amount of net, income to
be taxed.
[For other cases, see Internal Revenue, II. b,
in Digest Sup. Ct. 1918 Supp.]
Internal revenne — corporation excise
tax — income tax — insurance com-
panies — deductions — reserves or
assets.
5. Unpaid taxes, salaries, brokerage,
and reinsurance due other companies at the
end of each tax year may not be deducted
from the gross income of an insurance com-
pany, under the provision either in the Cor-
poration Excise Tax Act of August 5, 1909,
or the Income Tax Act of October 3, 1913,
that "the net addition, if any, required by
law to be made within the year to reserve
funds,** may be deducted from gross, in de-
termining the amoimt of net, income to be
taxed, although various state insurance de-
partments require that "assets as reserves"
be maintained to cover "all claims,'* "all in-
debtedness,*' "all outstanding liabilities,"
where these departments in these expres-
sions plainly used the word "reserves'* in a
nontechnical sense as equivalent to "assets."
[For other cases, see Internal Revenue, II. b,
in Digest Sup. Ct. 1918 Supp.]
Insnrance — what are reserves.
6. The term "reserve" or "reserves" in
the law of insurance means in general a
sum of money variously computed or esti-
mated, which, with accretions from interest,
is set aside, "reserved," as a fund with
which to mature or liquidate either by pay-
ment or reinsurance with other companies,
future unaccrued and contingent claims,
and claims accrued but contingent and in-
definite as to amount or time of payment.
Internal revenue — corporation excise
tax — income tax — insnrance com-
panies — gross income — released
reserves.
7. A decrease in the amount of reserves
required by law of an in8\u*ance company
for the year 1913 from the amount re-
297
1
SIPREME COURT OF THE UNITED STATES,
Oct. Te&m,
quired in 1012, unless olearly ahown to be
due to excessive reserves in prior years,
or to some other cause by which the free
assets of the company were increased dur-
ing the year 1913, cannot be treated by the
government as "released reserve" and
charged to the company as income for 1913,
taxable under the Corporation Excise Tax
Act of August 5, 1909, and the Income Tax
Act of October 3, 1913.
[For other cases, see Int<»rnal Revenue, II. b,
in Digest Sup. Ct. 1J)18 Supp.]
Tnternal revenue — suit to recover back
excessive tax — appeal to Coiumis-
sioner — limitation.
8. The right to recover back excessive
corporation excise tax payments is barred
where the corporation failed to appeal to
the Commissioner of Internal Revenue, as
required by U. S. Rev. Stat. § 3226, and
also failed to observe the requirement of
§ 3227, that suit be begun within two years
after the cause of action accrued.
[For other cases, see Internal Revenue, VII. ;
Limitation of Actions, III. b, in Digest Sup.
Ct. 1908.1
Internal revenue — suit to recover back
excessive tax — appeal to Commis-
sioner — limitation — amended re-
turn.
9. The filing by the government of
amended returns for the assessment of an
insurance company under the Corporation
Excise Tax Act of August 5, 1909, cannot be
said to constitute the beginning of new pro-
ceedings which so superseded the original
returns as to release the company from its
entire failure to observe the statutory re-
quirement for review of the latter, where
in each case the purpose and effect of such
amended returns was to increase the pay-
ment which the company was requirea to
make under the law, though in dealing with
the same items the basis of computation
was in some -cases varied, and where the
payments made on the original returns were
credited on the amounts computed as due
on the returns as amended. ^
[For other cases, see Internal Revenue, VII.;
Limitation of Actions, III. b, in Digest Sup.
Ct. 1908]
[No. 73.]
Argued November 13, 1919. Decided Janu-
• ary 12, 1920.
APPEAL from the Court of Claims to
review a judgment allowing a re-
covery of a part of certain corporation
excise and income taxes alleged to have
been unlawfully collected. Modified,
and, as modified, affirmed.
See same case below, 52 Ct. CI. 201,
288, 53 Ct. CI. 81.
The facts are stated in the opinion.
Mr. Burt E. Barlow argued the cause,
aud, with Mr. Abram R. Serven, filed a
brief for appellant:
Income, in its ordinary sense, means
that which comes in or is received, and
necessaril}* means cash or its equivalent.
298
Mutual Ben. L. Ins. Co. v. Herold,
198 Fed. 214; United States v. Schil-
linger, 14 Blatchf. 71, Fed. Cas. No. 16,-
228; Re Murphy, 80 App. Div. 238, 80
N. Y. Supp. 533; 22 Cyc. 66.
All words used in statutes are modi-
fied by and vary according to the cir-
cumstances and time of use.
Towne v. Eisner, 245 U. S. 418-425, 62
L. ed. 372-376, L.R.A.1918D, 254, 38
Sup. Ct. Rep. 158.
Under the Act of 1909 only income
received during the taxable year should
be included in the income of tiie corpo-
ration for the taxable year.
Hays V. Gauley Mountain Coal Co.
247 U. S. 189-191, 62 L. ed. 1061-1063,
38 Sup. Ct. !lep. 470.
The term "income" has no broader
meaning in the 1913 act than in that of
1909.
Southern P. Co. v. Lowe, 247 U. S.
330, 62 L. ed. 1142, 38 Sup. Ct. Rep.
540.
The relation between appellant and its
agents is determined by the contract
existing between it and its agents. The
agent has no greater authority or larger
powers than are provided in the con-
tract of agency.
Parsons v. Armor, 3 Pet. 413, 7 L. ed.
724.
Payment to agent, as between princi-
pal and agent, is not receipt of payment
by the principal.
Mutual Ben. L. Ins. Co. v. Herold,
198 Fed. 214; Crookson Bros. v. Fur-
tado, Nov. 2 and Dec. 8, 1910, vol. 5.
Great Britain Tax Cas. pp. 602-618.
Money in the hands of an agent for
remittance to his principal is not subject
to attachment, because it is not strictly
the money of the principal until paid
over bv the agent to the principal.
Maxwell v. McGee, 12 Cush. 137.
The action of trover does not ordina-
rily lie in favor of a principal against an
agent.
Vandelle v. Rohan, 36 Misc. 239, 73
N. Y. Snpp. 285; Hazelton v. Locke, 104
Me. 164, 20 L.R.A.(N.S.) 35, 71 Atl. 661,
15 Ann. Cas. 1009.
A discharge in bankruptcy, secured by
an agent who had in his hands funds
for which an accounting was due to his
principal, dischar^res the agent from all
liabilitv thereon.
Henuequin v. Clews, 111 U. S. 676,
28 L. ed. 5a5, 4 Sup. Ct. Rep. 576.
The popular or received import of
words furnishes a general rule for the
interpretation of public laws as well as
of private and social transactions.
Maillnrd v. Lawrence, 16 How. 251.14
25 1 r. 8.
19 lO.
MARYLAND CASCALTY CO. v. UNJTEU 5TATKS.
Li. ed 925; Arthur v. Morrison, 96 U. S.
lOS-111, 24 L. ed. 764, 765; Greenleaf
V. Ooodrich, 101 U. S. 278-284, 25 L. ed.
S4^^7; Cadwalader v. Zeh, 151 U. S.
17X-.176, 38 L. ed. 115-117, 14 Sup. Ct.
Rep. 288; Glover v. United States, 164
U. S. 294-297, .41 L. ed. 440, 441, 17
Sup. Ct. Rep. 95.
The legislature must be presumed to
ha.ve intended to use language in it^
ordinary meaning, unless it would mari-
festly defeat the object of the provi-
sion.
Minor v. Mechanics Bank, 1 Pet. 46,
7 L. ed. 47.
The statute should be read according
to the natural and obviou3 import of its
language, without resorting to subtle
and forced construction. For the pur-
pose of either limiting or extending its
operation, and when the language is
plain, words or phrases should not be
inserted so as to incorporate in the
statute a new and distinct provision.
United States v. Temple, 106 U. S. 97,
26 L. ed. 967; United States v. Graham,
110 U. S. 219, 28 L. ed. 126, 3 Sup. Ct.
Rep. 582; United States v. Hill, 120 U.
S. 169-180, 30 L. ed. 627-631, 7 Sup.
Ct. Rep. 510; United States v. Lynch,
137 U. S. 280^285, 34 L. ed. 700-702, 11
Sup. Ct. Rep. 114; Houghton v. Payne,
194 U. S. 88-100, 48 L. ed. 888-«91, 24
Sup. Ct. Rep. 590.
The term "reserve funds" should
mean any fund held in reserve, as is the
♦'ommonly accepted meaning of the
term "reserve."
Dawson Life Ins. p. 183; Webster's
Int. Diet. "Reserve;" Century, Diet.
•'Reserve."
Appellant was legally required to
maintain reserves equal to its outstand-
ing liabilities as a condition of its doing
business in the state of New York.
Further, in case appellant did not main-
tain such reserves, its license to con-
tinue business in the state of New York
oould be by the superintendent of in-
surance revoked, or, at the beginning of
any year, the superintendent could re-
fuse to issue it.
The power of the superintendent of
insurance, under the New York statutes,
to exercise his discretion in declining to
issue a certificate of authority to tran-
sact business in the state of New York,
has been decided affirmatively by the
New York courts.
People ex rel. Hartford Life & A, Ins.
Co. V. Faiman, 91 N. Y. 385, 12 Abb. N.
C. 259; People ex rel. Equitable F. &
M. Ins. Co. V. Fairman, 12 Abl). N. C.
269; Stem v. Metropolitan L. Ins. Co.
61 li. ed.
169 App. Div. 217, 154 X. Y. Supp; 472,
217 N. Y. 626, 111 N. E. 1101.
Inasmuch as the state courts of New
York have decided that the New York
legislature did not exceed its powers in
authorizing the superintendent of in-
surance to exercise his discretion in
granting insurance companies licenses
to transact business in New York, such
question is not an open one in this
court, and this court will follow the de-
cision of the New York court.
Drever v. Illinois, 187 U. S. 71-84, 47
L. ed. 7^85, 23 Sup. Ct. Rep. 28, 15 Am.
Crim. Rep. 253.
When appellant maintained its re-
serves by order of the insurance super-
intendent, it was by law required to do
so, and in determining what were its
net additions to reserve funds, appellant
was by law required to include in its
computation for any year all reserve
funds which it was required to main-
tain by the superintendent of insurance.
Ferris v. Higley, 20 Wall. 375, 22 L.
ed. 383; United States v. Eaton, 144 U.
S. 677-688, 36 L. ed. 591-594, 12 Sup.
Ct. Rep. 764; United States v. Smith, 1
Sawy. 277, Fed. Cas. No. 16,341; Ralph
V. United States, 11 Biss. 88, 9 Fed.
693; United States v. Hearing, 26 Fed.
744; United States v. Breen, 40 Fed.
402; United States v. Hardison, 135
Fed. 419; Van Gesner v. United States.
82 C. C. A. 180, 153 Fed. 46; United
States V. Nelson, 199 Fed. 464; United
States V. Bailey, 9 Pet. 238, 9 L. ed.
113; United States v. Smull, 236 U. S.
405, 59 L. ed. 641, 35 Sup. Ct. Rep. 349;
United States v. Birdsall, 233 U. S. 224,
58 L. ed. 930, 34 Sup. Ct. Rep. 512;
United States v. Grimaud, 220 U. S. 506,
55 L. ed. 563, 31 Sup. Ct. Rep. 480; Re
KoUock, 165 U. S. 526, 41 L. ed. 813, 17
Sup. Ct. Rep. 444; Caha v. United
States, 152 U. S. 211, 38 L. ed. 416, 14
Sup. Ct. Rep. 513; United States v.
Morehead, 243 U. S. 607-611, 61 L. ed.
926-929, 37 Sup. Ct. Rep. 458; Stone v.
Farmers' Loan & T. Co. 116 U. S. 307,
29 L. ed. 636, 6 Sup. Ct. Rep. 334, 388,
1191; Stone v. Illinois C. R. Co. 116 V,
S. 347, 29 L. ed. 650, 6 Sup. Ct. Rep.
348; Stone v. New Orlea^is & N. E. R.
Co. 116 U. S. 352, 29 L. ed. 651, 6 Sup.
Ct. Rep. 349, 391 ; Red **C" Oil Mfg. Co.
V. Board of Agriculture, 222 U. S. 380,
56 L. ed. 240, .32 Sup. Ct. Rep. 152.
Appellant was entitled to deduct from
gross income the net additions to resene
funds which the insurance department
of the state of Wisconsin required it to
maintain as a condition of its doing
business in that state.
209
344, 345
sr PRK.NJK COUKT OF THE UNITED STATES.
Oct. Term,
«New York ex rcl. Lieberman v. Van
De Carr, 199 U. S. 552, 50 L. ed. 305, 26
Sup. Ct. Rep. 144; McCoach v. Insur-
ance Co. of N. A. 244 U. S. 585, 61 L.
ed. 1333, 37 Sup. Ct. Rep. 709.
Only such tax can be laid as is speci-
fied in the taxing act, and only such
property is subject to tax as is specify
ically set forth in the taxing act.
United States v. Wiggles worth, 2
Story, 369, Fed. Cas. No. 16,690;
Spreckels Sugar Ref. Co. v. McClain,
192 U. S. 397-416, 48 L. ed. 496-503, 24
Sup. Ct. Rep. 376.
None of the Statutes of Limitations
apply to the claims made by appellant
in its suit for recovery for taxes illegal-
ly collected.
' Stewart v. Barnes, 153 U. S. 466, 38
L. ed. 781, 14 Sup. Ct. Rep. 849; De
Bary v. Dunne, 162 Fed. 961 ; Cheatham
V. United States (Cheatham v. Norvelk)
92 U. S. 85, 23 L. ed. 561.
The Act of September 8, 1916, re-
moved any bar that might have existed.
Campbell v. Holt, 115 U. S. 620, 29
L. ed. 483, 6 Sup. Ct. Rep. 209; Sage v.
United States, 260 U. S. 33, 63 L. ed.
828, 39 Sup. Ct. Rep. 415; Dodge v.
Brady, 240 U. S. 122-125, 60 L. ed. 560,
561, 36 Sup. Ct. Rep. 277.
Assistant Attorney General Frierson
argued the cause and filed a brief for
appellee :
Appellant can, in any event, recover
only such specific sums as it has shown
were illegally included in the amount
which it was required to pay on the
basis of the final assessment.
United States v. Rindskopf, 105 U. S.
418, 422, 26 L. ed. 1131, 1132.
In reporting the amount of premiums
each year, appellant reported the
amount of premiums written, and then
deducted what it claimed was the
amount uncollected at the end of the
year. But it included in the deduction
premiums collected but not reported by
its agents, the amount of which does
not appear. There are, therefore, no
facts in the record upon which a judg-
ment for any amount could rest.
Mutual Ben. L. Ins. Co. v. Herold,
198 Fed. 199; Crookston Bros. v. Fur-
tado, 5 Great Britain Tax Cas. 602.
Mr. Justice Clarke delivered the opin-
ion of the court:
Under warrant of the Act of Congress
ai^roved August 6, 1909 (36 Stat, at L.
11, 113, chap. 6), the government col-
lected from the claimant, a corporation
organized as an insurance company yn-
der the laws of Maryland, an excise tax
for the years 1909, 1910, 1911, and 1912,
and, under warrant of the Act of Con-
gress of October 3, 1913 (38 Stat, at I*.
114, 166, chap. 16, Comp. Stat. § 5291,
2 Fed. Stat. Anno. 2d ed. p. 724), it like-
wise collected an excise .tax for the first
two months of 1913, and an income tax
for the remaining months of that year.
This suit, instituted in the court of
claims, to recover portions of such pay-
ments claimed to have been unlawfully
collected, is here for review upon appeal
from the judgment of that court.
The claimant was engaged in casualty
liability, fidelity, guaranty, and surety
insurance, but the larger part of its
business was employers' liability, acci-
dent, and, in the later of the years un-
der consideration in this case^ workmen's
compensation insurance.
By process of elimination the essential
questions of difference between the par-
ties ultimately became three, viz. :
(1) Should claimant be charged, as a
part of its gross income each year, with
premiums collected by agents, but not
transmitted by th^m to its treasurer
within the year?
(2) May the amount of gross income
of the claimant be reduced by the ag-
gregate amount of the taxes, salaries,
brokerage, and reinsurance unpaid at the
end of each year, imder the provisions
in both the excise and income [345]
tax laws allowing deductions of '*net
addition, if any, required by law to bo
made within the year to reserve funds?''
(3) Should the decrease in the amoun<t
of reserve funds required by law for th«»
year 1913 from the amount required for
1912 be treated as "released reserve,"
and charged to the company as income
for 1913?
Of these in the order stated:
First: Section 38 of the Excise Tax
Act (36 Stat, at L. 112, chap. 6, 4 Fed.
Stat. Anno. 2d ed. p. 260) provides that
every corporation, organized under the
laws of any state as an insurance com-
pany, "shaU be subject to pay annually
a special excise tax with respect to th«
carrying on or doing business . . .
equivalent to one per centum upon the
entire net income . . . received by
it from all sources during such year.'*
The Income Tax Act (38 Stat, at L.
172, chap. 16, 4 Fed. Stat. Anno. 2d ed. p.
245) provides (§ G, paragraph (a)) that
the tax shall be levied upon the entire
"net income arising or accruing from
all sources during the preceding calendar
year." But in paragraph (b), providing
for deductions, gross income is described
2K1 V. 8.
1919.
MARVLAM) CASUALTY CO. v. LMTED STATES.;
345-348
AS that ''received within tlie year from
all sources.'' So that, with respect to
domestio corporations, it is clear enough
that no change was intended by the use
of the expression "arising or accruing,"
in the Income Tax Act» and that the tax
should be levied under both acts upon
the income "received" during the year.
Southern P. Co. v. Lowe, 247 U. S. 330,
335, 62 L. ed. 1142, 1147, 38 Sup. Ct
Rep. 540.
The claimant did business in many
states, through many agents, with whom
it had uniform written contracts which
allowed them to extend the time for pay-
ment of the premiums on policies, not to
exceed thi]:ty days from the date of pol-
icy, and required that on the fifth day
of each calendar month they should pay
or remit, in cash or its equivalent, the
balance due claimant as shown by the
last preceding monthly statement ren-
dered to it.
[S46] Under the provisions of such
contracts obviously the agents were not
required to remit premiums on policies
written in November until the 5th of
January of the next year, and on poli-
cies written in December, not until the
following February.
Much the largest item of the gross in-
come of the company was premiiuna col-
lected on policies of various kinds. Omit-
ting reference to earlier and tentative
returns by the claimant and amendments
by the government, it came about that
claimant took the final position that the
only premiums with which it could prop-
erly be charged as net income 'deceived
by it . . . during each year*' were
such as were collected and actually paid
to its treasurer within the year. This
involved omitting from gross income
each year "premiums in course of col-
lection by agents, not reported on De-
cember 31st," which varied in amount
from $584,000 in one year to $1,020,-
000 in another. The amount, if deduct-
ed one year, might appear in the return
of the claimant for the next year, but the
rate might be different.
The government, on the other hand,
contended that the claimant should re-
turn the full amount of premiums on
policies written in each year, whether
actually collected or not.
The court of claims refused to accept
the construction of either of the par-
tiesy and held that the claimant should
have returned, not all premiums written
by it, but all which were actually re-
ceived by it during the year, and that
receipt by its agents was receipt by the
64 L. ed.
company, within the meaning of the act
of Congress.
The claimant contends that premiums
paid to its agents, but not remitted to
its treasurer, were not "received by it
during the year," chiefly for the reason
that while in possession of the agents
the money could not be attached as the
company *s property (Maxwell v. McGee,
12 Cush. 137), and because money, while
thus in [347] the possession of agents,
was not subject^to beneficial use by the
claimant, and therefore cannot, with
propriety, be said to have been received
by it, within the meaning of the act.
On the other hand, it is conclusively
argued: That payment of the premium
to the agent discharged the obligation
of the insured and called into effect the
obligation of the insurer as fully as pay-
ment to the treasurer of the claimant
could have done; that in the popular or
generally accepted meaning of the words
"received by it" (which must be given
to theuL Maillard v. Lawrence, 16 How.
251, 14 L. ed. 925), receipt by. an agent
is regarded as receipt by his principal;
that, under their contract, collected
premiums in possession of the agents of
the claimant were subject to use by it
in an important respect before they were
transmitted to the treasurer of the com-
pany, for the agency contract provided
that "the agent will pay on demand, out
of any funds collected by him for ac-
count of premium, and not remitted to
the company, such drafts as may be
drawn on him by the company . . .
for the purpose of settling claims, de-
ducting the amount from the next suc-
ceeding monthly remittance;" and that
only imperative language in the statute
would justify a construction which
would place it in the power of the claim-
ant, by private contract with its agents,
to shift payment of taxes from one tax-
ing year into another.
The claimant withheld from its re-
turns collections in the custody of its
agents at the end of each year, and be-
cause in its amendments the government
had included all premiums written in
each year, whether or not collected, the
court of claims, having reached the con-
clusion thus approved by us, allowed the
claimant ninety days in which to show
the amount of premiums received by it
and its agents within each of the years
in controversy, but the claimant failed
to make such a showing, and thereupon
the court treated the return of premiums
[348] written as the correct one, and
very properly, so far as this item is con-
cerned, dismissed claimant's petition.
301
348-350
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Second : In the same words the Excise
and Income Tax Acts provide that "the
net addition, if any, required by law to
be made within the year to reserve
funds," may be deducted from gross, in
determining the amount of net, income
to be taxed.
Finding its authority in this provision
of the law, the claimant in all of its re-
turns treated as "reserves," for the pur-
pose of determining whether the aggre-
gate amount of them each year was
greater or less than in the preceding
year, and of thereby arriving at the "net
addition to reserve funds" which it was
authorized to deduct from gross income,
the following, among others, viz.: "Re-
serve for unearned premiums," "Special
reserve for unpaid liability losses," and
"Loss claims reserve." Unearned pre-
mium reserve and special reserve fo'r un-
paid liability losses are familiar types
of insurance reserves, and the govern-
ment, in its amended returns, allowed
these two items, but rejected the third,
"Loss claims reserve."
The court of claims, somewhat ob-
scurely, held that the third item should
also be allowed. This "loss claims re-
serve" was intended to provide for the
liquidation of claims for unsettled loss-
es (other than those provided for by
the reserve for liability losses) which
had accrued at the end of the tax year
for which the return was made and the
reserve computed. The finding that the
insurance department of Pennsylvania,
pursuant to statute, has at all times
since and including 1909 required claim-
ant to keep on hand, as a condition of
doing business in that state, "assets as
reserves sufiScient to cover outstanding
losses," justifies the deduction of this
reserve as one required by law to be
maintained, and the holding that it
should have been allowed for all of the
years involved is approved.
[349] But the court of claims ap-
proved the action of the government in
rejecting other claimed . deductions of
reserves for "unpaid taxes, salaries,
brokerage, and reinsurance due other
companies." The court gave as its
reason for this conclusion that the
"net addition, if any, required by
law to be made within the year
to reserve funds" which the act of
Congress permitted to be deducted from
gross income, was limited to reserves re-
quired by express statutory provision,
and did not apply to reserves required
by the rules and regulations of state in-
surance departments, when promulgated
802
in the exercise of an appropriate power
conferred by statute.
In this the* court of claims fell into
error. It is settled by many recent de-
cisions of this court that a regulation
by department of government, addressed
to and reasonably adapted to the en-
forcement of an act of Congress, the
administration of which is confided to
such department, has the force and ef-
fect of law if it be not in conflict i«rith
express statiltory provision. United
States v: Grimaud, 220 U. S. 506, 55 L.
ed. 663, 31 Sup. Ct. Rep. 480; United
States V. Birdsall, 233 U. S. 223, 231. 58
L. ed. 930, 934, 34 Sup. Ct. R^p. 512;
United States v. SmuU, 236 U. S. 405,
409, 411, 59 L. ed. 641-643, 35 Sup. Ct.
Rep. 349; United States v. Morehead,
243 U. S. 607, 61 L. ed. 926, 37 Sup. Ct.
Rep. 458. The law is not different with
respect to the rules and regulations of
a department of a state government.
But it is contended by the claimant
that it was required to provide "re-
serves'' for the payment of the rejected
items of liability: because the court of
claims found that, pursuant to statutes,
the insurance department of Pennsyl-
vania required the company, as a condi-
tion of doing business in that state, to
keep on hand "assets as reserves" suffi-
cient to cover all claims against the
company, "whether due or accrued;"
because the department of- New York
r€fquired it to maintain '^reserves suffi-
cient to meet all of its accrued but un-
paid itidebtedness in each year;'' and
because the department of WiBconsin
required it to carry "sufficient reserves
to cover all of its outstanding liabili-
ties."
[830] Whether this contention of
the claimant can be justified or not de-
pends upon the meaning which is to be
given to the words "reserve funds" in
the two acts of Congress we are consid-
ering.
The term "reserve" or "reserves" has
a special meaning in the law of insur-
ance. While its scope varies under dif-
ferent laws, in general it means a sum
of money, variously computed or esti-
mated, which, with accretions from in-
terest, is set aside, "reserved,*' as a fund
with which to mature or liquidate, ei-
ther by payment or reinsurance with
other companies, future unaccrued and
contingent claims, and claims accrued,
but contingent and indefinite as to
amount or time of payment.
In this case, as we have seen, the term
includes 'Unearned premium reserve"
to meet future liabilities on policie.«,
851 r. s.
l'Ji9.
MARYLAND CASUALTY CO. v. LNITED STATES.
350-352
'•liability reserve" to satisfy claims^ in-
definite in amount and as to time of pay-
ment, bat accrued on liability and work-
men's compensation policies, and **re-
serre for loss claims" accrued on
policies other than those provided for in
the "liability reserve," but it has no-
where been held that "reserve/' in this
technical sense, must be maintained to
pro\ide for the ordinary running ex-
pense.s of a business, definite in amount,
and which must be currently paid by
every company from its income if its
business is to continue, such as taxes,
salaries, reinsurance, and unpaid bro-
kerage.
The requirements relied upon, of the
insurance departments of New York,
Pennsylvania, and Wisconsin, that "as-
sets as reserves" must be maintained to
cover "all claims," "all indebtedness,"
^all outstanding liabilities," in terms
might include the rejected items we are
considering; but plainly the departments,
in these expressions, used the word "re-
serves" in a nontechnical sense as equiv-
alent to "assets," as is illustrated by
the Massachusetts requirement that each
company shall "hold or reserve assets"
for the payment of all claims and obliga-
tions. [351] The distinction between
the ^'reserves" and general assets of a
company is obvious and familiar, and
runs through the statements of claimant
and every other insurance company. That
provision for the payment' of ordinary'
expenses such as we are considering was
not intended to be provided for and in-
cluded in "reserve funds," as the term
is used in the acts of Congress, is plain
from the fact that the acts permit de-
ductions for such charges from income
if paid within the year, and the claimant
was permitted in this case to deduct
large sums for such ordinary expenses
of the business, — specifically, large sums
for taxes. The claimant did not regard
any such charges as properly covered
by "reserves," and did not so include
them in its statement for 1909. In its
1910 return "unpaid taxes" and "sala-
ries" first appear as "reserves," and in
1911 "brokerage" and "reinsurance" are
added. This earlier, though it is now
claimed to have been an uninstructed or
inevpert, interpretation of the language
of the acts, was nevertheless the candid
and correct interpretation of it, and the
judgment of the court of claims in this
respect is approved.
Third: The year 1913 was the only
one of those under consideration in
which the aggregate amount of wscrves
•4 I/, ed.
which the claimant was required by law
to keep fell below the amount so re-
quired for the preceding year. The gov-
ernment allowed only "unearned premi-
um" and "unpaid liability loss" reserves
to be considered in determining deduc-
tions. In 1913 the "unpaid liability
loss reserve" decrease exceeded the **un-
eamed premium reserve" increase by
over $270,000, and this amount the gov-
ernment added to the gross income of
the claimant for the year, calling it "re-
leased reserve" on the theory that the
difference in the amount of the re8er\'es
for the two years released the decrease
to the claimant so that it could use it
for its general purposes, and therefore
constituted free income for the year
1913, in which the decrease occurred.
[852] This theory of the government
was accepted by the court of claims, and
the addition to the gross income was ap-
proved.
The statute does not in terms dispose
of the question thus presented.
Reserves, as we have seen, are funds
set apart as a liability in the accounts
of a company to provide for the pay-
ment or reinsurance of specific, contin-
gent liabilities. They are held not only
as security for the payment of claims,
but also as funds from which payments
are to be made. The amount "reserved"
in any given year may be greater than
is necessary for the required purposes,
or it may be less than is necessary, but
the fact that it is less in one year than
in the preceding year does not neces-
sarily show either that too much or too
little was reserved for the former year,
— it simply shows that the aggregate re-
serve requirement for the second year
is less than for the first, and this may
be due to various causes. If, in this
case, it were due to an overestimate of
reserves for 1912, with a resulting ex-
cessive deduction for that year from
gross income, and if such excess was re-
leased to the general uses of the com-
pany and increased its free assets in
1913, to that extent it should very prop-
erly be treated as income in the year in
which it became so available, for the
reason that in that vear, for the first
time, it became free income, under the
system for determining net income pro-
vided by the statute, and the fact that
it came into the possession of the com-
pany in an earlier year in which it could
be used only in a special manner, which
permitted it to become nontaxable,
would not prevent its being considered
SOS
352-355
SUPREME COURT OF THE UMTKD STATES.
Uci. Ie&m>
as received in 1913 for the purposes of
taxation, within the meaning of the act.
The findings of fact in this case, how-
ever, do not show that the diminution in
the amount of required reserves was
due to excessive reserves in prior years
or to any other cause by which the free
assets of the company were increased
[353] in the year 1913, and the follow-
ing finding of fact makes strongly
against such a conclusion :
"The decrease in employers' liability
loss reserve for 1913, designated as 're-
leased reserve,' did not in any* respect
affect or change claimant's gross income
or disbursements, as shown by the state
insurance reports."
It would not be difficult to suggest
conditions under which the statutory
permit to deduct net additions to reserve
funds would result in double deduction
in favor of an insurance company, but
such deductions can be restored to in-
come again only where it is clearly
shown that subsequent business condi-
tions have released the amount of them
to the free ben^cial use of the company
in a real, and not in a mere bookkeep-
ing, sense. If this seemingly favorable
treatment of insurance companies is to
be otherwise corrected or changed, it is
for Congress, and not for the courts, to
amend the law.
Since the findings of fact before us
do not make the clear showing, which
must be required, that the statutory de-
duction of net reserves in prior years
was restored to the free use of the
claimant in 1913, it should not have been
charged as income with the decrease in
that year, and, on the record before us,
the holding of the court of claims must
be reversed.
There remains the question as to the
Statute of Limitations.
The government concede3 that the case
is in time with respect to the amended
returns, but claims that it is barred by
Rev. Stat. §§ 3226-3228, Comp. Stat. §§
5949-5951, 3 Fed. Stat. Anno. 2d ed.
pp. 1034, 1037, with respect to taxes
paid on the original returns for all of
the years but 1913. The claimant made
its original returns without protest ex-
cept for the year 1909, and, without ap-
peal to the Commissioner of Internal
Revenue, voluntarily paid the taxes
computed on them for each of the years.
Payment was made for 1909 in June,
1910; for 1910 in June, 1911; for 1911 in
June, 1912 ; for 1912 in June, 1913. No
[354] claim for a refund of any of
these payments was made until April 30,
.*$04
1915, and then the claim was in general
terms.
"For amounts paid by it in taxes
which,, iihrough lack of information as to
requirements of law, or by error in com-
putation, it may have paid in excess of
the amount legally due."
This claim was rejected subsequent to
the institution of this suit, which was
commenced on February 8, 1916.
This statement shows the right of the
claimant plainly barred by its failure to
appeal to the Commissioner of Internal
Revenue, Rev. Stat. § 3226 [this is
fundamental, King's County Sav. Inst. v.
Blair, 116 U. S. 200, 29 L. ed. 657, 6
Sup. Ct. Rep. 353], and also by its
failure to institute suit within two years
after the cause of action accrued, Rev.
Stat. § 3227.
The claimant contends that the amend-
ed returns filed by the Conunissioner of
Internal Revenue were not amendments
or modifications of the original returns,
but were based upon a d^erent prin-
ciple, and, within the scope of Cheatham
V. United States (Cheatham v. Norvekl)
92 U. S. 85, 23 L. ed. 561, constituted
new assessments from which i^peals
were taken in time.
But they are denominated ^'amended
returns," and while, in dealing with the
same items, the basis of computation
was in some cases varied, in each case
the purpose and effect of them was to
increase the payment which the claim-
ant was required to make under the law,
and the payments made on the original
returns were credited on the amounts
computed as due on the returns as
amended.
The inapplicability of Cheatham y.
United States, supra, is obvious, and the
contention that the filing of the amended
returns constituted the beginning of new
proceedings which so superseded the
original returns as to release the claim-
ant from its entire failure to observe
the statutory requirement for review of
the latter is so unfounded [355] that
we cannot consent to enter upon a de-
tailed discussion of it. This conclusion
renders § 14 of the Act of Congress of
September 8, 1916 (39 Stat, at L. 772,
chap. 463, Comp. Stat. § 6336n, Fed.
Stat. Anno. Supp. 1918, p. 335), inap-
plicable.
It results that the judgment of the
Court of Claims is modified, and as so
modified affirmed, and the case is re-
manded to that court for proceedings in
accordance with this opinion.
851 V. 6.
lllft. EASTERN EXTENSION, A. & C. TELEG. CO. v. UNITED STATES.
EASTERN EXTENSION, AUSTRALASIA
k CHINA TELEGRAPH COMPANY,
Limited, Appt.,
V.
UNITED STAIES.
(See 8. C. Reporter's ed. 355-366.)
CImlms -r against United SCates — im-
plied contract — cable subsidies.
No contract, express or implied, on
the part of the United States, justiciable
in the court of claims, to pay the annual
subsidies provided for in a Spanish conces-
sion for the construction ana operation of
submarine cables in the Philippine Islands,
ran be deduced from the use of such cables
by the United States government at the
reduced rate prescribed in such concession
for official despatches, where this was the
full rate demanded by the cable company,
nor from the acceptance by suboroinate
officials of the Philippine government of
the tax on receipts from messages computed
a<i required by such concession, nor from a
statement of account showing a balance fa-
vorable to the United States which was paid
to and accepted by the treasurer of the
Philippine government, which statement
was prepared without suggestion of de-
mand from the government of the United
••states, or even from the Philippine govem-
meht, and in which, in order to give it the
form of an account, the company was
obliged to treat as unpaid, charges for tolls
over the Hongkong-Manila ci^>le, all of
wbich had been paid by the United States
jTovernment and accepted by the company.
[For other cases, see Clalmi, 105-127, In Di-
fett Sup. Ct. 1908.]
[No. 357.]
Argued December 15, 1919. Decided Janu-
ary 12, 1920.
\PPEAL from the Courf of Claims to
review the dismissal of a petition
seeking to recover an annual cable sub-
sidy from the United States. Affirmed.
The facts are stated in the opinion.
Mr. Louis Marshall argued the cause
and filed a brief for appellant:
Under general principles of jurispru-
dence the facts as found create an obli-
<:ration on the part of our government
to the claimant to pay the subsidy
provided for in the concession, it having
availed itself of the general and special
rights and privileges which have ac-
crued to it under the terms of the con-
cession.
Stewart v. Long Island R. Co. 102 N.
Y. 607, 55 AuL Eep. 844, 8 N. E. 200;
Walton V. Stafford, 14 App. Div. 312,
43 N. Y. Supp. 1049; Cameron v. Nash,
41 App. Div. 532, 58 N. Y. Supp. 643;
Prank v. New York L. E. & W. R. Co.
322 N. Y. 197, 25 N. E. 332; Pollard v.
64 li. ed.
Shaaffer, 1 Ball. 210, 1 L. ed. 104, 1 Am.
Dec. 239; Pennell v. Guffey, 155 Pa. 38,
25 Atl. 785; Burnett v. Lvnch, 5 Bam.
& C. 589, 108 Eng. Reprint', 220, 8 Dowl.
& R. 368, 4 L. J. K. 274, 29 Revised
Rep. 343; Astor v. Lent, 6 Bosw. 612;
Schoellkopf v. Coatsworth, 55 App. Div.
331. 66 N. Y. Supp. 979, affirmed in 166
N. Y. 77, 59 N. E. 710; Greason v.
Keteltas, 17 N. Y. 491; Cobb v. Hatfield,
46 N. Y. 536 ; Anderson v. Caldwell, 242
Mo. 207, 146 S. W. 444; Highway
Comrs. V. Bloomington, 253 HI. 164, 97
N. E. 284, Ann. Cas. 1913A, 471; United
States V. Russell, 13 Wall. 623, 20 L. ed.
474 ; Hollister v. Benedict & B. Mfg. Co.
113 U. S. 59, 28 L. ed. 901, 5 Sup. Ct.
Rep. 717; United States v. Palmer, 128
U. S. 262,. 32 L. ed. 442, 9 Sup. Ct. Rep.
104; Coleman v. United States, 152 U.
S. 99, 38 L. ed. 369, 14 Sup. Ct. Rep.
473; Cavaliere, "The Doctrine of Suc-
cession of a State by a State," Pisa,
1910, p. 135.
This case must be treated precisely as
it would be if the questions now pre-
sented had arisen as between private
individuals.
Rhode Island v. Massachusetts, 12
Pet. 737, 738, 9 L. ed. 1265, 1266; Peo-
ple V. Stephens, 71 N. Y. 549.
It has been held that even where a
state has been induced to enter into a
contract by fraud, if it nevertheless,
with knowledge of the fraud, continues
to take the benefits of the contract, it is
not thereafter permitted to repudiate it.
but is bound .to* perform its provisions ;
thus placing it, in this regard, on a par-
ity with private individuals:
People V. Stephens, 71 X. Y. 527;
Masson v. Bovet, 1 Denio, 69, 43 Am.
Dec. 651; Vemol v. Vernol, 63 N. Y. 45;
Mills V. Hoffman, 92 N. Y. 190 ; Baird v.
New York, 96 N. Y. 589.
Assistant Attorney General Davis
argued the cause, and, with Mr. W. F.
Norris, filed a brief for appellee:
Appellant has failed to establish any
implied contract on the part of the
United States.
Wisconsin C. R. Co. v. United States,
164 U. S. 205, 41 L. ed. 404, 17 Sup. Ct.
Rep. 45; United States v. Harmon, 147
U. S. 275, 37 L. ed. 167, 13 Sup. Ct. Rep.
327; Chorpenning v. United States, 94
U. S. 399, 24 L. ed. 127; Hooe v. United
States, 218 U. 8. 322, 54 L. ed. 1055, 31
Sup. Ct. Rep. 85; United States v. Buf-
falo Pitts Co. 234 U. S. 228, 58 L. ed.
1290, 34 Sup. Ct. Rep. 840; United
SUtes v. Doullut, 130 C. C. A. 243, 213
Fed. 729.
20 305
3r)D-3.>tJ
SL PREME COURT OF THE UNITED STATES.
Oct. Teem,
Mr. Justice Clarke delivered the opin-
ion of the court :
The appellant, claimant^ is the grantee
from the government of Spain of three
concessions to lay down and operate
submarine cables. The first one, in 1879,
was for the exclusive privilege, for forty
years, of constructing and operating a
cable between the island of Luzon and
Hongkong. It was landed at Bolinao,
on the northerly coast of Luzon, and
despatches were transmitted to Manila
and other places by government-owned
land lines, which^ were subject to in-
terruption. This concession required
that official messages be transmitted free
and be given precedence. In 1898 a
second concession, supplemental to the
first, empowered the claimant 'to extend
its cable to Manila, and the t«rm of the
prior exclusive grant was extended
twenty years, with the same priority for
official despatches, but, with the provi-
sion that they were to be [357] trans-
mitted free, only for the first ten .years
from the date of this second grant.
Li 1897 a third concession, the one
with which this case is chiefly concerned,
authorized the claimant to lay down and
operate three submarine cables, connect-
ing the island of Luzon with three
Visayas islands, — Panay, Negros, and
Cebu. This grant required the claimant :
to operate the cables for twenty years;
to give precedence to official despatches
and to charge for them at one half the
rates charged for private messages; to
pay a tax of 10 per cent on receipts in
excess of expenses, not to exceed £6,000
per annum, an additional tax of "50 cen-
times of a franc" per word on telegrams
transmitted, and a surtax of "5 centimes
of a franc" per word on telegrams be-
tween the four islands named in the
grant and others of the archipelago.
The government of Spain, on its part,
agreed to pay the claimant, in equal
monthly instalments, an annual subsidy
of £4,500 during the term of the grant.
All of the cables were promptly laid
down and put in use and those of the
third grant are designated in the record
as the "Visayas cables" and the grant
as the "Visayas concession." This suit
is to recover the amount of the subsidy
provided for in the third concession,
which had accrued when the petition
was filed.
The United States denied all liability,
and the judgment of the court of claims,
dismissing the petition, is before us for
review.
The case was here before on appeal
and this court hold (231 U. S. 326, 58
ao6
L. ed. 250, 34 Sup. Ct. Rep. 57) that
the case as then stated in the petition
was not within the jurisdiction of the
court of claims, whether viewed as as-
serting an obligation growing directly
out of the treaty with Spain or one im-
posed by principles of international law
upon the United States as a co]:\8equenoe
of the cession of the Islands by the
treaty. The court, however, referring to
certain general and indefinite [358] al-
legations in the petition, suggested that
the implication might be drawn from
them that there may have been action on
the part of officials of the government of
the United States since it had assumed
sovereignty over the Islands, which, if
properly pleaded and proved, would give
rise to an implied contract with the
claimant outside the treaty, which
would be within the jurisdiction of the
court of claims, and, to the end that the
right to have such a claim adjudicated
might be saved, if it really existed, the
case was remanded for further proceed-
ings in conformity with the opinion.
Doubtless inspired by the suggestion
from the court, an amended petition was
filed, in which claimant alleged with
much detail, (hat the government of the
United States had used the cables exten-
sively for official messages, which had
been given precedence and had been
transmitted, as required by the terms of
the two concessions, over the Hong-
kong cable free until 1908, and there-
after at one fourth of the regular rate,
and over the Visayas cables at one half
the rate charged for private despatches;
that the claimant had paid and the gov-
ernment accepted the 10 per cent tax
on receipts from messages, computed as
required by the third concession; that
since the American occupation the serv-
ice over the Visayas cables had been
extended and improved at large expense
by arrangement with duly authorized
officers of the government; and that in
August, 1905^ the claimant had paid and
the government had accepted a balance
due on an account stated in a form
indicating an adoption of the terms of
the concessions. By this course of con-
duct, it was averred, the United States
"assumed and adopted" all of the obliga-
tions imposed on the government of
Spain by the concessions, and agreed
with the claimant to discharg? and per-
form all of them, and especially agreed
to pay the annual subsidy of £4,5(H), as
required by art. 10 of the third conces-
sion.
[869] Trial by the court of claims re-
sulted in findings of fact, as follows:
251 V. 8.
VjVJ, eastern extension, a. k C. TELEG. CO. v. UNITED STATES. 359 361
That the concessions were made to claim-
ant as alleged and that all of the cables
were completed and in nse when the
treaty with Spain was signed, Deeember
10, 1898; that the government nsed the
eables extensively for official despatches,
which were given priority in transmis-
sion, but that thi^ was in accordance
with the International Telegraph Con-
vention, as well as in compliance with
the terms of the concessions; that the
claimant charged the government for
messages over the Yisayas cables at one
half the rate charged for • private de-
spatches^ which is the rate prescribed by
the third concession, but that it "has
paid the fall rates charged by the claim-
ant for messages over any of the lines,''
and claimant had authority to make its
own rates; and that it is not true that
the claimant transmitted messages over
the Hongkong cable free of charge:
'^he United States government has paid
full established rates on the Hongkong-
Manila cable."
It is further found that since Decem-
ber, 1901, the claimant has made claim to
the subsidy in annual statements to the
authorities of the Philippine govern-
laent, in which the terms of the conces-
sion granting it were referred to, and in
which the United States was charged
with the amount of it then accrued.
With respect to these, except as here-
inafter noted, the court finds that
whether any reply was made to them
**does not appear from the record."
Much significance is attached by the
claimant to the statement presented on
June 11, 1905. The finding with respect
to this is that on that date the daim-
juit's representative forwarded to "the
secretary of finance and justice," an of-
ficer of the Philippine government at
Manila, a communication, with an at-
tached statement, purporting to show
the amount "due to the United States
government in the Philippines on account
of transmission [360] of all United
States government traffic over the
Manila-Hongkong cable, as per the con-
cession granted to .us for laying the
same, up to and including Deeember 31,
1904."
In this statement the government is
credited (as if the amount had not been
paid) with what it had paid for service
over the Hongkongr-Manila cable, laid
under the first an<l second concessions,
from August 21, 1898, to December 31,
1904, and it is charged with "Visayas
subsidy," under the third concession,
£4,500 per annum to December, 1904.
Thus a balance was arrived at of
«4 Ti. ed.
£4,712.10.6 in favor of the United
States, as to the disposal of which "I
shall be glad to receive your instruc-
tions," wrote the representative of the
claimant.
In reply to this the auditor of the
government of the Philippine Islands, to
whom it had been referred, wrote to
claimant's representative at Manila, ac-
knowledging receipt of his letter, in
which it was stated, "There is due the
insnlar government under your conces-
sion the sum of £4,712.10.6," and the
auditor added: "It is respectfully re-
quested that said amount be deposited
with the Insular treasury as miscellane-
ous revenue." Payment was made and
receipt given by the treasurer of the
government of the Philippine Islands for
the amount as "due government, as per
statement of account rendered by East-
em Extension &c. Tel. Co. to See. Fi-
nance and Justice, June 5, 1911."
Each year after 1905 the claimant sent
a statement to the "secretary of finance
and justice" at Manila in the form fol-
lowing: "The United States government
at Manila in account with the Eastern
Extension Australasia & China Tel. Co.,
Limited. . . . Free transmission of
American government telegrams over
Hongkong-Manila section." Then follow
credits for messages passing over the
Hongkong-Manila cable, as if they had
not been paid for, and a debit of the
"Visayas [361] subsidy" accrued to
the date of the statement. * To these no
reply appears to have been made.
It is expressly found that :
"Except the payment above referred
to in 1905, the claimant has never paid
anything into the treasury of the Philip-
pine government. It does not appear
that any part of said sum was paid into
the Treasurv of the United States. Nor
has the claimant paid any sum to the
United States government."
The only pa>Tnent of the 10 per cent
tax under the third concession was that
made in 1905, £184.17.2, and the state-
ment showing this balance in favor of
the United States concluded:
"I therefore have the honor to request
that the necessary permission be given
to the treasurer to receive these
amounts, now standing to the credit of
the United States sfovernment in the
Philippines."
Of its own motion the claimant, in
1899, made extensions of the Visaya?
cables at a considerable expense. But
the finding with respect to this is:
"These extensions were carried out
with the approval of the militarv au-
361-3G4
SUPREME COURT OF THE UNITED STATES.
Oct. Tekm^
thorities in control of the Philippines at
the time, and by the sanction o£ the
United States government, but without
prejudice to, and with the reservation of,
all rights of the government of the
United States."
The following is from the court's find-
ing of fact No. IX. :
"Between the 10th day of December,
1898, and March, 1899, considerable cor-
respondence was exchanged between the
government of the United States and
the claimant regarding the transmission
of official telegrams over the Hongkong-
Manila cable at reduced rates.
"On the Ist of March, 1899, the Sec-
retary of War transmitted to the chair-
man of the claimant company a telegram,
stating that the War Department 'ac-
cepts the courteous offer of your com-
pany to transmit messages [362] free
between Hongkong and Manila, provid-
ing that this acceptance leaves in abey-
ance Spanish concession which is now
under consideration.' On the following
day claimant's reply was transmitted to
the War Department, stating that the
foregoing telegram had been received
and the reservation therein noted, and
that 'the company have pleasure in af-
fording all possible facilities to the Unit-
ed States government in connection with
the transmission of their telegrams.' On
the 28th jof March, 1899, a written com-
munication was transmitted by the War
Department to the duly authorized rep-
resentative of the claimant company, to
the effect that, 'upon careful reconsidera-
tion of the subject it is deemed inad-
visable for the Department to avail
itself of your company's offer. I beg to
state, therefore, that the Department
will pay the established rates on official
cable messages, and all accounts of this
character presented to the United States
will be paid.' This communication con-
cluded with a renewal of thanks 'for
the voluntary reduction in rates which
your company has so courteously ten-
dered.' The United States government
has paid full established rates on Hong-
kong-Manila cable, and has paid the es-
tablished rates on the Visayas cables on
its messages."
Upon these findings of fact and upon
principles and analogies derived from
the law of private contract, the court
must proceed to judgment. For it was
determined by this court on the former
appeal, that any right in the defendant
derived directly from the treaty with
Spain, or any obligation imposed upon
^e United States by principles of inter-
national law as a consequence of the
30S
cession of the Islands, would not be
within the jurisdiction of the court of
claims, and counsel for claimant, ex-
pressly disclaiming the assertion of any
right under the Treaty of Paris of De-
cember 10, 1898 [30 Stat, at L. 1754],
urge that the case be treated "exactly
as it would be if it arose between two
private citizens."
[863] So regarding the case. It is
obvious that no express contract by the
United States to adopt and be bound by
the third or any of the concessions can
be made out from the findings of fact^
and it is equally clear that such an im-
plied contract, using the words in any
strict sense, cannot be derived from the
findings, for it is plain that there is
nothing in them tending to show that
any official with power, express or im-
plied, to conmiit that government to such
a contract, ever intended to so commit it.
The contention of the claimant must
be sustained, if at all, as a quasi con-
tract,— ^as an obligation imposed by law
independent of intention on the part of
any officials to bind the government, —
one which in equity and good conscience
the government should discharge because
of the conduct of its representatives in
dealing with the subject-matter.
It is argued that the United States
should be held to have assumed the bur-
den of the concession because it derived
benefits and advantages from the use
of the cables.
These cables were in operation when
the United States government assumed
jurisdiction over the Islands. It ex-
tended a much more efficient govern-
mental protection over the lines than
they had before, but left the claimant
in full ownership and control over them,
with the power to determine rates for
service. The government, to be sure,
availed itself of the advantages of com-
munication which the cables afforded,
but for such service it paid the rates
which the claimant demanded, and which
it must be assumed were adequate.
From such circumstances as these, very
clearly, the law will not raise an obliga-
tion on the part of the government to
assume the burden of the subsidy on the
principle of undue enrichment or of
advantage obtained. It used the cables
as other customers used them, and from
such a use, paid [364] for at the full
rate demanded, no obligation can be de-
rived by implication.
It is further contended that the terms
and conditions of the concession shoold
be imposed on the government beeanto
the officials of the Pluliopine government
261 U. S.
1919. EASTERN EXTENSION, A, 4; C. TELEU. CO. v. UNITED STATES. 364-360
\
a<N^epted taxes eompnted as provided for
by the third grant.
The finding of the court of elaims is
not that the Philippine government de-
manded or exacted the small amount o{
taxes that was paid, but that the claim-
ant itself computed the amount in the
manner which it thought was provided
for in the concession and tendered pay-
ment, which, after repeated urging, was
accepted by local officers of the Philip-
pise government, so subordinate in char-
acter that it is impossible to consider
them as empowered to commit the gov-
ernment of the United States to the
large responsibilities now claimed to
spring from their conduct.
The finding with respect to extension
of the cables in 1899 excludes all sug-
gestion of the assumption of any liability
by the United States on account of the
expenditure involved.
The form of the statement of account
of December 31, 1904, showing a balance
favorable to the United States, which
was paid to and accepted by the treas-
urer of the Philippine government, and
from which so much is claimed, is not
impressive as creating the asserted lia-
bility.
Here again the claimant, without sug-
gestion of demand from the government
of the United States or even from the
Philippine government, prepared a state-
ment, and, in order to give it the form
of an account, was obliged to treat as
unpaid, charges for tl)lls over the Hong-
kong-Manila cable, all of which had been
paid by the United States government
and accepted by the claimant.
A separate government, sustained by
its own revenues, has been maintained
for the Philippine Islands ever since
they were ceded to the United States.
At first military, [365] it became a
civil government on July 1, 1902, organ-
ized as provided for by an act of Con-
gress (32 Stat, at L. p. 691, chap. 1369,
Comp. Stat. § 3804, 7 Fed. Stat. Anno.
2d ed. p. 1133), with a governor general,
and executive, legislative* and judicial
departments, all subject to the super-
vision of the Secretary of War of the
United States.
It is surprising that the claimant,
when it desired to have these important
concessions, with their large obligations,
adopted by the government of the United
States, did not make application for
that purpose directly to that government
or to its Secretary of War, or at least to
the governor general or legislative de-
«4 I., ed.
partment of the Philippine govemmebt,
instead of relying for its adoption by
implication, as it has done, chiefly upon
the fomi in which the accounts were
presented to the secretary of finance
and justice of the Philippine govern-
ment.
The action of a department head of
the Philippine government (inconsistent
with the position taken by the Secretary
of War in 1899, with respect to the
subject-matter) in accepting a voluntary-
payment of $23,000 cannot be made the
sufficient basis for implying an obliga-
tion on the part of the government of
the United States to pay a bonus of a
total aggregate of almost $440,000.
If doubt could be entertained as to
the correctness of this conclusion it
would be disposed of by the fact that
when the claimant, in March, 1899, ten-
dered to the Secretary of War, so far
as appears the only official of the United
States with large powers, who consid-
ered the subject, the privilege of free
transmission of messages over its Hong-
kong-Manila cable, as was provided for
in the first concession, the offer was po-
litely but firmly declined, with the state-
ment that '^the Department will pay
the established rates on official cable
messages and all accounts of this char-
acter presented to the United States
will be paid'' — a promise which the
findings show that he and his succes.sors
in office have faithfully kept.
In the jurisdiction given to the court of
claims Congress [366] has consented
that contracts, express or implied, may
be judicially enforced against the govern-
ment of the United States. But such a
liability can be created only by some
officer of the government lawfully in-
vested with power to make such con-"
tracts or to perform, acts from which
they mav be lawfully implied. Lang-
ford V. United States, 101 U. S. 341, 345,
25 L. ed. 1010, 1012; United States v.
Buffalo Pitts Co. 234 U. S. 228, 58 L.
ed. 1290, 34 Sup. Ct. Eep. 840; Tempel
V. United States, 248 U. S. 121, 63 L.
ed. 162, 39 Sup. Ct. Rep. 56; Ball En-
gineering Co. V. J. G. White A Co. 250
U. S. 55, 63 L. ed. 840, 39 Sup. Ct. Rep.
393.
The foregoing discussion makes it pal-
pably plain that no eontraet, express
or implied, to pay the disputed subsidy,
was made by any officer of. the United
States, and the judgment of the Court
of Claims is therefore affirmed.
SOU
81 PKK-ME COURT OF THE UNITED STATES.
Ucr. iLBi:,
XAPA VALLEY ELECTRIC COMPANY,
Appt.,
V.
RAILROAD COMMISSION OF THE STATE
OF CALIFORNIA et al.
(See S. 0. Reporter's ed. 366-373.)
Jndffment — res Judicata — clenyinir i^-
view — decision on merits.
The dfeirhrr ^' the Ualifornia supreme
court, without opinion, of ilie petition of a
public service corporation for the review,
conformably to the California Public Utili-
ties Act, § 67, of an order of the state Rail-
rofid Commission, sought upon the ground
that such order deprived the corporation
of its constitutional rights, is the equivalent
of a decision adverse to the claims asserted
in such petition, and bars a subsequent suit
by the corporation to enjoin the cnforce-
.ment of such order on the same grounds.
[For other caseo. seo Judgment, III. j, in Di-
gest Sup. Ct. 190S.]
[No. 401.]
Argued December 12, 1919. Decided Janu-
ary 19, 1920.
i PPEAL from the District Court of
-A the United States for the Northern
District of California to review a de-
cision dismissing the bill in a suit by a
public service corporation to enjoin the
enforcement of an order of the state
Railroad Commission. Affirmed.
See same case below, P.U.R.1917E,
471, 257 Fed. 197.
The facts are slated in the opinion.
Mr. D. L. Beard argued the cause,
and Mr. Milton T. U'Ren filed a brief
for appellant:
The controversy is not res judicata.
Homer v. United States, 143 U. S.
570, 36 L. ed. 266, 12 Sup. Ct. Rep. 522;
Montgomery, Fed. Proc. : Williams v.
Bruffy, 102 U. S. 248, 26 L. ed. 135;
Prentifl v. Atlantic Coast Lin« Co. 211
U. S. 210, 53 L. ed. 150, *29 Sup. Ct.
Rep. 67; Detroit & M. R. Co. v. Michi-
gan R. Commission, 235 U. S. 402, 59
L. ed. 288, 35 Sup. Ct. Rep. 126; 1 Free-
man, Judgm. 4th ed. S§ 247, 260; 2
Note. — On conclusiveness of judg-
ments, generally — see notes to Sharon
V. Terry, 1 L.R.A.572; Jk)llongv. Schuy-
ler Nat. Bank, 3 L.R.A. 142; Wiese v.
San Francisco Musical Fund Soc. 7
L.R.A. 577; Monill v. Morrill, 11
L.R.A. 155; Shores v. Hooper, 11 L.R.A.
308; Bank of United States v. Beverly,
11 L. ed. U. S. 76; Johnson Co. v. Whar-
ton, 38 L. ed. U. S. 429; and Southern
P. Co. V. United States, 42 L. ed. U. S.
:^35.
Black, Judgm. §§ 548, 693, 699, 703;
Valentine v. Mahoney, 37 Cal. 389;
Hughes V. Walker, 14 Or. 481, 13 Pac.
450; 1 Van Fleet, Former Adjudication^
§ 1; Windsor v. McVeigh, 93 U. S. 274,
23 L. ed. 914; Hovey v. Elliott, 167 U.
S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep.
841; 23 Cyo. 1131, 1136, 1226, 1230;
Denny v. Bennett, 128 U. S. 489, 32 L.
ed. 491, 9 Sup. Ct. Rep. 134; Russell v.
Place, 94 U. S. 606, 24 L. ed. 214.
The rights relied upon by plaintiff are
rights guaranteed by the United States
Constitution, and no decision of a state
court can preclude the Federal court
from enforcing those rights.
Mitchell V. Dakota Cent. Teleph. Co.
246 U. S. 396, 62 L. ed. 793, 38 Sup.
Ct. Rep. 362; Hendrickson v. Appersou,
246 U. S. 105, 62 L. ed. 178, — A.L,R.
— , 38 Sup. Ct. Rep. 44; Foster, Fed. Pr.
p. 66; Bank of Kentucky v. Stone, 88 Fed.
383, 174 U. S. 799, 43 L. ed. 1187, 19
Sup. Ct. Rep. 881; 12 Cyc. 389; Con-
solidated Wyoming Gold Min. Co. v.
Champion Min. Co. 62 Fed. 945; Nation-
al Bank v. Brooklyn City, 14 Blatchf.
242, Fed. Cas. No. 10,039, 102 U. S. 14,
26 L. ed. 61; Jefferson Branch Bank v.
Skelly, 1 Black, 437, 17 L. ed. 173 ; Sun-
set Teleph. & Teleg. Co. v. Pomona, 164
Fed. 561; Knapp v. Bullock Tractor Co.
242 Fed. 543; Orr v. Allen, 245 Fed.
486; Webb v. Southern R. Co. 160 C.
C. A. 518, 248 Fed. 619; Detroit & M.
R. Co. V. Michigan R. Commission, 235 U.
S. 402, 59 L. ed. 288, 35 Sup. Ct. Rep.
126.
The orders of tte Railroad Commis-
sion are not a proper exercise of the
police power of the state, in that no
rights of the public are affected there-
by in any way.
Marin Water & P. Co. v. Sausalito,
168 Cal. 587, 143 Pac. 767; Beale & W.
Railroad Rate Regulation, 2d ed. §§ 347,
842, 899; Munn v. Illinois, 94 U. S. 113,
24 L. ed. 77; Georgia R. & Bkg. Co. v.
Smith, 128 U. S. 174, 32 K ed. 377,
9 Sup. Ct. Rep. 47; 33 Cyc. 48, not« 53;
Reeder, Validitv of Rate Regulation, ^
198; Atchison, t. & S. F. R. Co, v. Rail-
road Commission, 173 Cal. 577, 2 A.L.R.
975, P.U.R.1917B, 336, 160 Pac. 828;
Allen V. Railroad Commission, 179 Cal.
68, 8 A.L.R. 249, P.r.R.1919A, 398, 175
Pac. 466.
Mr. Douglas Brookman argued the
cause and tiled a brief for appellees:
The validity of an order of the Rail-
road Commission in a proceeding fixing
the rates of a public utility becomes a
justiciable question from the moment
251 r. s.
191D.
NAPA VALLEY ELKC. CO. v. RAILKOAD COMMLSSION.
307, 30S
the Bailroad Commission aets finally on
the petition for rehearing filed with it
in such proceeding. At that moment the
legislative act of rate fixing is complete,
and resort may he had to either the Fed-
eral court or the state supreme court to
test the validity of the rate-fixing order.
Pacific Teleph. & Teleg Co. v. Eshle-
man, 166 Cal. 640, 50 L.R.A.(N.S.) 652,
137 Pac. 1119, Ann. Cas. 1915C, 822;
Prentis v. Atlantic Coast Line Co. 211
U. S. 210, 53 L. ed. 150, 29 Sup. Ct.
Rep. 67 ; Bacon v. Rutland R. Co. 232 U.
S. 134, 58 L. ed. 538, 34 Sup. Ct. Rep.
283; Palermo Land & Water Co. v.
Railroad Commission, P.U.R.1916B, 437,
227 Fed. 708.
The Napa Valley Electric Company
having elected to present its cause to
the supreme court of California, which
court is competent to determine the mat-
ter, the company is precluded, under the
doctrine of res judicata, from seeking a
second adjudication of the same ques-
tion in the Federal court.
Pacific Teleph. & Teleg. Co. v. Eshle-
man, supra; Detroit & M. R. Co. v.,
Michigan R. Commission, 203 Fed. 864;
Detroit & M. R. Co. v. Michigan R.
Commission, 235 U. S. 402, 59 L. ed.
288, 35 Sup. Ct. Rep. 126.
The fact that the supreme court of
California made its order denying the
petition of the Napa Valley Electric
Company to review and reverse the or-
der of the Railroad Commission, with-
out setting the petition for hearing,
iloes not preclude the application of the
doctrine of res judicata.
Ghriest v. Railroad Commission, 170
Cal. 63, 148 Pac. 195; Mt. Konocti Light
& P. Co. v. Thelen, 170 Cal. 468, P.U.R.
1915E, 291, 150 Pac. 359; E. Clemens
Horst Co. V. Railroad Commission, 175
Cal. 660, P.U.R.1917F, 893, 166 Pac. 804;
r. A. Jlooper & Co. v. Railroad Commis-
sion, 175 Cal. 811,. P.U.R.1917E, 997;
165 Pac. 689; Santa Monica v. Railroad
Commission, 179 Cal. 467, P.U.R.1919C,
308, 177 Pac. 989; Williams v. Bruffy,
102 U. S. 248, 26 L. ed. 135; Chaffin v.
Taylor, 114 U. S. 309, 29 L. ed. 198, 5
Sup. Ct. Rep. 924, 962; Hart Steel Co.
V. Railroad Supply Co. 244 U. S. 294, 61
L. ed. 1148, 37 Sup. Ct. Rep. 506.
The Railroad Commission has power
to hx the wholesale rates for puhlic
utilitv senioe, and can exercise the
power irrespective of existing contracts
specif jring the rate for such service.
Pacific Teleph. & Teleg. Co. v. Eshle-
man, supra; Munn v. Illinois, 94 U. S.
113, 24 L. ed. 77; German Alliance Ins.
Co. V. Lewis. 233 U. S. 389, 413, 58 L.
114 li. etl.
ed. 1011, 10-22, LJEt.A.1915C, 1189, 34
Sup. Ct. Rep. 612; Brass v. North Da-
kota, 153 U. S. 391, 403, 38 L. ed. 757.
761, 4 Inters. Com. Rep. 670, 14 Sup.
Ct. Rep. 857; Union Dry, Goods Co. v.
Georgia Pub. Service Corp. 248 U. S.
372, 63 L. ed. 309, 9 A.L.R. 1420, P.U.R.
1919C, 60, 39 Sup. Ct. Rep. 117; At-
lantic Coast Line R. Co. v. (}oldsboro,
232 U. S. 548, 58 L. ed. 721, 34 Sup. Ct.
Rep. 364; Limoneira Co. v. Railroad
Commission, 174 Cal. 232, P.U.R.1917D,
183, lp2 Pac. 1033; Southern P. Co. v.
Spring Valley Water Co. 173 Cal. 291,
L.R.A.1917E, 677, 159 Pac. 865.
Mr. Justice McKenna delivered the
opinion of the court:
Appeal from decree of the district
court, dismissing bill of appellant^ here-
in called the Electric Company, upon
motion of appellees, herein called the
Commission.
The ground of the motion and the de-
cree sustaining it was that it appeared
from the averments of the bill that the
controversy it stated was res judicata.
The bill is long, but the grounds of it
can be stated with fair brevity. The
Electric Company is a California cor-
poration and has been engaged for more
than ten years in supplying electricity
(called in the bill electric energy) for
domestic use in the town of St. Helena
and vicinity, and the Calistoga Electric
Company, also a California corporation,
has been for seven years a distributing
agency of the Electric Company, and the
latter is not, as to the Calistoga Com-
pany, a public utility. By virtue of cer-
tain circumstances the Electric Company
entered into a contract with one E. L.
Armstrong, by which it agreed not to
extend its lines into Calistoga terri-
tory, and Armstrong agreed to buy from
it all of the electricity to be sold by him
for eighteen years. At that time the
Electric Company, under the [3681
laws of California, had a right to ex-
tend its lines and become a competitor
of other companies or individuals.
September 14, 1911, the Calistoga Com-
pany became the successor in interest of
Armstrong and to his rights and obliga-
tions under the contract with the Elec-
tric Company, and the Calistoga Com-
pany acknowledged the fact of such suc-
cession and continued to buy its elec-
tricity from the Electric Company at
the rates set forth in the contract, until
November 18, 1913, when it petitioned
the Commission to set aside the contract
and compel the Electric Com pan v to ac-
:{6S-370
Sl'PREME COURT OF THE UNITED STATES.
Oct. Tcbm,
eept other rates than those mentioned
in the contract.
The Electric Company answered the
petition, set np the contract, and alleged
that any change in its rates would be a
violation of § 10, article 1, of the Con-
stitution of the United States, and the
14th Amendment thereto.
January 24, 1914, the Commission in-
stituted an investigation on its own mo-
tion which, with the petition of the Cal-
istoga Company, was consolidated. The
petitions were heard together upon evi-
dence and submitted.
The Commission subsequently made an
order fixing rates much less than those
of the contract.
June 20, 1914, the Electric Company
filed a petition for rehearing, setting up
its rights under the Constitution of the
United States. A rehearing was denied.
May 1, 1914, the Electric Company and
the Calistoga Company entered into an
agreement fixing rates subject to the ap-
proval of the CoDomission, which' the Cal-
istoga Company agreed to secure. It
did secure an informal approval of them
and paid them until June 27, 1916.
The rates fixed by the Commission
never became effective, and therefore
the Electric Company did not petition
for a review of them by the supreme
court of the state, nor commence pro-
ceedings in any court of the United
States to enjoin the order establishing
them, or to have it set aside as null and
void.
[369] June 27, 1916, the Calistoga
Company again petitioned the Commis-
sion to establish other rates than those
fixed in the agreement of that company
with the Electric Company. The latter
company filed a counter petition to have
established the rates fixed in the con-
tract of May 1, 1914 (reduced to writ-
ing September 15, 1914), and the peti-
tion and that of the Calistoga Company
came on to be heard, and after evidence
adduced the Commission, November 15,
1916, reduced the rates fixed in the
written contract of September 15, 1914,
and made the reduced rates effective De-
cember 20, 1916.
xV rehearing was denied May 24, 1917,
and on June 20, 1917, the Electric , Com-
pany duly filed a petition in the supreme
court of the state of California, pray-
ing that a writ of review issue command-
incr the Commission, on a day named, to
certify to the court a full and complete
record of the proceedings before it, the
Commission, and that upon a return of
the writ the orders and decisions of the
Commission be reversed, vacated, and
312
annulled upon the ground that they vio-
lated the compan^s rights under the
Constitution of the United States, par-
ticularly under § 10, article 1, and under
§ 1 of article 14 of the Amendments
thereto. The supreme court of Cali-
fornia denied the "petition for writ of
review, and refused to issue a writ of re-
view, as prayed for in said petition."
On or about January 27, 1918, the
California Light & Telephone Company
became a party to the contracts between
the Electric Company and the Calistoga
Company by reason of conveyances from
the latter company.
In the present bill it is alleged that the
orders and decisions of the Commission
were illegal, were in excess of its juris-
diction, and that the Electric Company
has no adequate remedy at law, and
prays a decree declaring the orders and
decisions null and void, that they be
enjoined of enforcement, or made the
basis of suits against the company to
enforce them.
[370] The Commission and other de-
fendants moved to dismiss on the
ground that it appeared from the alle-
gations of the bill that "the subject-
matter thereof was res judicata," and
that there was no ground stated enti-
tling the company to the relief prayed.
The motion was granted, and to the de-
cree adjudging a dismissal of the bill
this writ of error is directed.
The district court (Judge Van Fleet)
bfised its ruling upon the allegations of
the bill that the Electric Company filed
in the supreme court a petition for a re-
view of the decision and order of the
Commission and for their annulment,
and that the supreme court denied the
petition.
The Electric Company to the ruling of
the court opposes the contention that the
supreme court denied the company's "pe-
tition for a preliminary writ, and re-
fused to even cause the record in the
case, certified by the Commission, to b«
brought up," and therefore "simply re«
fused to entertain jurisdiction of the
controversy." And it is the further con-
tention that the court could neither
affirm nor set aside the ordei*s of the
Commission until the record was certi-
fied U) it and the parties were before it,
and after formal hearing in the matter.
The contention is based on § 67 of the
Public Utilities Act of the state. The
section is too long to quote. It is part
of the procedure provided by the state
for the execution of its policy in regard
to the public utilities of the state, and
affords a review of the action of the
251 r. s.
lUiU.
NAPA VALLEY ELEC. CO. v. RAILROAD COMMISSION.
370-373
<V>m mission regulating them. It is quite
«-ir<niinstantial and explicit. It provides
tor a review of the action of the Com-
mission by writ of certiorari or review
liroiu the supreme court of the state,
which ^^shall direct the Commission to
certify its record in the case to the
court," the cause to ''be heard on the
record of the Commission as certified
by it." No other evidence is to be re-
ceived, and the review is confined to an
inquiry ''whether the Commission has
r^^Iarly pursued its authority" or
[371] whether its order or decision
"violates any right of the petitioner un-
der the Constitution of the United States
or <;: the state of California*" The find-
ings and conclusions of the Commission
on questions of fact are to be final. The
Commission and the parties have the
right of appearance, and upon the hear-
ng the court "shall enter judgment either
affirming or setting aside the order or
decision of the Commission." The Civil
Code of the state is made applicable so
far as it is not inconsistent with the pre-
scribed proceedings, and no court of the
state except the supreme court to the
extent specified shall have jurisdiction
over any order or decision of the Com-
mission except "that the writ of manda-
mus shall lie from the supreme court to
the Commission in all proper cases."
These provisions, counsel insist, were
not observed, and that therefore there
was not and could not have been "an ad-
judication of the controversy" by the su-
preme court. There was nothing, it is
insisted, but the Electric Company's pe-
tition before the court, and that none of
the essential requirements of § 67 were
observed. No writ of review was issued,
— none certified by the Commission or
returned, no return day fixed or hearing
had on a certified record, no appearance
of the parties, no order of the court af-
firming or setting aside of the Commis-
sion's order. In other words, the sub-
stance of the contention is that the court,
instead of hearing, refused to hear; in-
stead of adjudicating, refused to adjudi-
cate; and that from this negation of ac-
tion or decision there cannot be an asser-
tion of action or decision with the estop-
ping force of res judicata assigned to it
by the district court.
Counsel, to sustain the position that he
has assumed and contends for, insists up-
on a literal reading of the statute and a
ilisoussion of the elements of res judicata.
We need not follow counsel into the lat-
ter. They are [372] familiar and neces-
sarily cannot be put out of mind^ and the
insistence upon the literalism of the stat-
64 Tj. ed.'
ute meets in resistance the common, and,
at times, necessary, practice of courts
to determine upon the face of a pleading
what action' should be taken upon it.
The petition is not in the record. We
may presume it was circumstantial in its
e^>osition of the proceedings before the
Commission and of the latter's decisions
and orders, and exhibited and submitted
to the court the questions it was author-
ized to entertain, — whether the Commis-
sion "pursued its authority, including a
determination of whether the order or
decision" violated "any right" of the
company "under the Constitution of the
United States or of the state of Cali-
fornia."
Whether, upon such an exhibition of
the proceedings and questions, the couzt
was required to pursue the details of the
section or decide upon the petition was
a matter of the construction of the sec-
tion and the procedure under it. And
the supreme court has so decided.
Ghriest v. Railroad Commission, 170 Cal.
63, 148 Pac. 195; Mt. Konocti Light &
P. Co. V. Thelen, 170 Cal. 468, P.U.R.
1915E, 291, 150 Pac. 359; E. Clemens
Horst Co. V. Railroad Commission, 175
Cal. 660, P.U.R.1917F, 893, 166 Pac. 804;
C. A. Hooper & Co. v. Railroad Commis-
sion, 175 Cal. 811, P.U.R.1917E, 997, 165
Pac. 689. In those cases the applications
for writs of certiorari were denied, which
was tantamount to a decision of the
court that the orders and decisions of
the Commission did not exceed its au-
thority or violate any right of the sev-
eral petitioners under the Constitution
of the United States or of the state of
California. And so with the denial of
the petition of the Electric Company, —
it had like effect and was the exercise
of the judicial powers of the coiirt.
And we repeat, to enable the invocation
of such powers was the purpose of § 67,
and they could be exercised upon the dis-
play in 'the petition of the proceedings
before the Commission and of the
grounds upon which they were assailed.
And [373] we agree with the district
court that "the denial of the petition was
necessarily a final judicial determina-
tion, based on the identical rights" as-
serted in that court and repeated here.
Williams v. Bruffy, 102 U. S. 248, 255,
26 L. ed. 135, 137. And further, to
quote the district court, '^Such a deter-
mination is as effectual as an estoppel as
would have been a formal judgment upon
issues of fact." Calaf y Fugural v. Cal-
af V Rivera, 232 U. S. 371, 58 L. ed. 642,
34 Sup. Ct. Rep. 411; Hart Steel Co. v.
Railroad Supplv Co. 244 U. S. 294, 299.
313
373
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
61 L. ed. 1148, 1153, 37 Sup. Ct. Rep.
506.
The court held, and we concur, that
absence of an opinion by fhe supreme
court did not affect the quality of its de-
cision or detract from its efficacy as a
judgment upon the questions presented,
and its subsequent conclusive effect upon
the rights of the Electric Company.
Therefore the decree of the District
Court is affirmed.
CHIPMAN, Limited, Plff. in Err.,
V.
THOMAS B. JEFFERY COMPANY.
. (See S. C. Reporter's ed. 373-380.)
Writ and process — service on foreign
corporation — designated agent —
withdrawal from state.
The unrevoked designation by a for-
eign corporation, conformably to the New
York statute, of an agent upon whom serv-
ice may be made, does not give the corpo-
ration a constructive presence in the state,
so as to render it amenable to service of
process there after it has ceased to do busi-
ness within the state, in an action leased
upon contracts made and to be performed
outside the state, there being no allegation
of performance within the state, nor that
the causes of action arose out of acts or
transactions within the state, although it is
asserted that at all of the times of the
duration of the contracts sued on and their
lireaches the corporation was doing busi-
ness in the state, and at any time had the
right to transact business therein, and that
the contracts contemplated that they might
he performed within the state.
[For other oaHes, see Writ and Process, III. c.
2, b, in Digest Sup. Ct. 1908.]
[No. 616.]
Submitted December 8, 1919. Decided Janu-
ary 19, 1920.
IN ERROR to the District Courf of the
United States for the Southern Dis-
trict of New York to review an order
setting aside service of summons on a
foreign corporation and dismissing the
complaint for lack of jurisdiction of the
person of the defendant. AflBrmed.
See same case below, 260 Fed. 856.
The facts are stated in the opinion.
■ * — ^^— —
Note. — On service of process, iu ac-
tion not arising out of busines.s trans-
acted within the state, upon the agent
of a foreign corporation, appointed pur-
suant to statute to receive service — see
note to Bagdon v. Philadelphia & R.
Goal & I. Co. L.R.A.1916F. 410.
314
Mr. Daniel P. Hays submitted the
cause for plaintiff in error. Mr. Ralph
Wolf was on the brief:
The defendant having filed an expre^ss
consent that made service upon its
designated agent the equivalent of per-
sonal service, no constitutional question
is involved.
Pennsylvania F. Ins. Co. v. Gold Issue
Min. & Mill. Co. 243 U. S. 93, 61 L. ed.
610, 37 Sup. Ct. Rep. 344; Gibbs v.
Queen City Ins. Co. 63 N. Y. 114, 20
Am. R^p. 513; Cable v. United States L.
Ins. Co. 191 U. S. 288, 48. L. ed. 188, 24
Sup. Ct, Rep. 74; Lancaster v. Amster-
dam Improv. Co. 140 N. Y. 588, 24
L.R.A. 322, 35 N. E. 964; Olcott v.
Tioga R. Co. 20 N. Y. 210, 75 Am. Dec.
393; Wehrenberg v. New York, N. H. &
H. R. Co. 124 App. Div. 205, 108 N. Y.
Supp. 704; Bagdon v. Philadelphia & R.
Coal & I. Co. 217 N. Y. 432, L.R.A.
1916F, 407, 111 N. E. 1075; Ann. Cas.
1918A, 389 ; Smolik v. Philadelphia & R.
Coal & I. Co. 222 Fed. 148.
It is not open to argument that the
supreme court of the state of New
York has jurisdiction of an action by
plaintiff, a domestic corporation,
against the defendant, a foreign corpo-
ration, for a cause of action based on
contract.
Tauza v. Susquehanna Coal Co. 220
N. Y. 268, 116 N. E. 915; Grant v.
Cananea Consol. Copper Co. 189 N. Y.
241, 82 N. E. 191.
It is equally clear that the service of
the summons upon the designated agent
gave to the court jurisdiction over the
person of the defendant.
Bagdon v. Philadelphia & R. Coal &
I. Co. 217 N. Y. 432, L.R.A.1916F, 407,
111 N. E. 1075, Ann. Cas. 1918A, 389;
Woodward v. Mutual Reserve L. Ins.
Co. 178 N. Y. 485, 102 Am. St. Rep. 619,
71 N. E. 10; Johnston v. Mutual Re-
serve L. Ins. Co. 104 App. Div. 550, 93
N. Y. Supp. 1052 ; Mutual Reserve Fund
Life Asso. v. Phelps, 190 U. S. 147, 47
L. ed. 987, 23 Sup. Ct. Rep. 707 ; Hill v.
Empire State-Idaho Min. & Developing
Co. 156 Fed. 797; Chehalis River Lum-
ber & Shingle Co. v. Empire State Sure-
ty Co. 206 Fed. 559; Johnston v. Trade
Ins. Co. 132 Mass. 432; Wilson v.
Martin-Wilson Automatic Fire Alarm
Co. 149 Mass. 27, 20 N. E. 318; Ben
Franklin Ins. Co. v. Gillett, 54 Md. 212;
Reeves v. Southern -R. Co. 121 Ga. 561,
70 L.R.A. 513, 49 S. E. 674, 2 Ann. Cas.
207; Hawkins v. Fidelity & C. Co. 123
Ga. 722, 51 S. E. 724; Groel v. United
Electric Co. 69 X. J. Eq. 397, 60 Atl.
822; Rishmiller v. Denver & R. G. R.
251 r. s.
1919.
CHIP3HAX V. JEFFERY CO.
370, 377
Co. 134 Minn. 261, 159 N. W. 272;
demumia Ins. Co. v. Ash by, 112 Ky.
303, 99 Am. St. Rep. 296, 66 S. W. 611 ;
State ex rel. Watkins v. North Ameri-
can Land & Timber Co. 106 La. 621, 87
Am. St. Rep. 309, 31 So. 172; Patton v.
Continental Casualty Co. 119 Tenn. 364,
104 S. W. 305 ; Grant v. Cananea ConsoL
Copper Co. 189 N. Y. 247, 82 N. E. 191.
Bv reason of its failure to revoke its
certificate, it had a principal place of
business, as well as an agent, within the
state. This was sufficient to bring the
oorporatiou within the state, so as to
render it amenable to process.
Tausa v. Susquehanna Coal Co. 220 N.
Y. 269, 116 N. E. 915; Washington-
Virginia R. Co. V. Real Estate Trust Co.
238 U. S. 186, 59 L. ed. 1262, 35 Sup.
€t. Rep. 818.
Messrs. Philip B. Adams and ThomaB
M. Kearney submitted the cause for de-
fendant in error:
The prohibition contained in the stat-
ute emphasizes the construction that its
whole subject-matter pertains only to
business transacted within the state.
Penn Collieries Co. v. McKeever, 183
N. Y. 98, 2 L.R.A,(N.S.) 127, 75 N. E.
935.
The extraterritorial .extension of the
o{>eration of this statute would read into
it ail addition that was foreign to the
purpose of the legislature.
United States v. Kirby, 7 Wall. 482,
486. 19 L. ed. 278, 280.
A corporation, after it has ceased to
do business within a state, may not be
ioiupslled to answer in the courts of
that state a cause of action that- had its
origin and arose without that state.
Smolik V. Philadelphia & R. Coal &
I. Co. 222 Fed. 151; Simon v. Southern
R. Co. 236 U. S. 115, 130, 59 L. ed. 492,
600, 35 Sup. Ct. Rep. 255.
Mr. Justice McKenna delivered the
opinion of the court :
Plaintiff in error was plaintiff in the
courts below; defendant in error was de-
fendant; and we shall refer to them
respectively as plaintiff and defendant.
The action was brought in the supreme
court of the state of New York and re-
moved upon motion of the defendant to
the district court of the United States
for the southern district of New York.
In the latter court defendant made a
motion for an order vacating and setting
aside the service of summons, and dis-
missing the complaint for lack of juris-
diction of the person of the defendant.
414 li. ed.
The motion was granted and the case is
here on the jurisdictional question only.
A brief summary of the grounds of
action and the proceedings upon the mo-
tion to dismiss is all that is necessary.
Plaintiff is a New York corporation, de-
fendant one under the laws of Wiscon-
sin, and a manufacturer and seller of
motor cars known as the "Jeffrey" and
"Rambler" and parts thereof, and motor
trucks and parts thereof. By contracts,
in writing, made in Wisconsin by the
plaintiff and defendant, it was agreed
that the former should have the sole
right to sell the motor cars and parts
[377] thereof (first cause of action)
and the motor trucks and parts thereof
(second cause of action) of defendant in
Europe and certain other foreign places
and to receive certain designated per-
centages. The contracts as to motor cars
and their parts, and the trucks and their
parts, provided that they (cars, truck.s.
and parts) should be sold and delivered
to plaintiff (called in the contracts the
"distributor") at Kenosha, Wisconsin,
for sale at the designated places by
plaintiff, defendant reserving the right
to fill the orders of plaintiff (distrib-
utor) for the cars, trucks, and parts,
from any of its, defendant's, depots in
New York city. Cars and trucks pur-
chased under the contracts to be paid f(»r
at Kenosha. Both contracts continued
in effect to July 31, 1916.
There are allegations of perfonnance
of the contracts by plaintiff, their non-
performance by defendant, whereby
plaintiff on one cause of action was en-
titled, it is alleged, to $280,000 and upon
the other, $600,000. Judgment is prayed
for their sum, to wit, $880,000.
The district court has certified three
questions, but as the first includes tht*
other two, we give it only, as it suffi-
ciently presents the question at issue:
'^Whether in the service of summons as
shown by the record herein upon Philip
B. Adams, this court acquired jurisdic-
tion of the person of the defendant."
Plaintiff contends for an affirmative
answer and adduces the New York stat-
ute which requires of corporations not
organized uhder the laws of New York,
as a condition of doing business in the
state, to file in the office of the secretarv
of state a stipulation designating "a
place .within the state which is to be its
principal place of business, and desig-
nating a person upon whom process
against the corporation may be served
within the state," and the person desig-
nated must consent, and the designation
3ir>
377-a80
SUPREME COURT OF THE UNITED STATES.
Ocr. Iesu,
*^8bkll continue in force until revoked
by an instrument in writing" designat-
ing some other person.
[378] Defendant complied with the
requirements of the statute July 6, 1914,
designating 21 Park Row, New York, as
its place of business, and Philip B.
Adams as its agent upon whom process
might be served. The designation and
appointment have not been revoked.
It is not denied, however, that defend-
ant had removed from the state before
service on Adams, and as we have stated,
the contracts sued on made the place of
their performance Kenosha, Wisconsin.
But in emphasis of the requirement of
the statute, it is urged that at all of the
times of the duration of the contracts
sued on and their breaches defendant
was doing business in the state, and at
any time had the right to transact busi-
ness in the state. It is further urged
that the contracts contemplated they
might be performed within the state.
There is no all^^tion of such perform-
ance, nor that the present causes of ac-
tion arose out of acts or transactions
within the state. The other circum-
stances of emphasis may be disregarded,
as the validity of the service depends
upon the statute, assuming it to be con-
trolling; that is, whether, under its re-
quirements, the unrevoked designation
of Adams as an agent of defendant gave
the latter constructive presence in the
state. And making that assumption of
the control of the statute, which we do
in deferen^'-e to counsel's contention, for
light we must turn to New York de-]
cisions, and there is scarcely ambiguity
in them, though the facts in none of
them included an actual absence from
the state of the corporation with which
they, the cases, were concerned.
Bagdon v. Philadelphia & R. Coal &
I. Co. 217 N. Y. 432, L.R.A.1916F, 407,
111 N. E. 1076, Ann. Cas. 1918A, 389,
passed upon the effect of a cause of ac-
tion arising out of the state, the corpora-
tion, however, doing business within the
state, and having complied with the stat-
ute in regard to its place of business and
the designation of an agent upon whom
process could be served. But the court,
throughout the opinion, with conscious
solicitude [379] of the necessity of
making the ground of its decision the
fact that the corporation was doing
business in the state, dwelt upon the
fact, and distinguished thereby Old
316
Wayne Mut. Life Asso. v. McDonough^
204 U. S. 8, 51 L. ed. 345, 27 Sup. Ct.
Rep. 236, and Simon v. Southern R. Co.
236 U. S. 115, 59 L. ed. 492, 35 Sup.
Ct. B^p. 255, in both of whieh the
causes of action were based on transac-
tions done outside of the states in which
the suits were brought.
Tauza v. Susquehanna Coal Co. 220 X.
Y. 259, 115 N. £. 915, is nearer in
principle of decision than the case just
commented upon. The question of the
doing of business within the state by the
coal company was in the case and was
discussed. But the question was uneon-
nected with a statutory designation of a
place of business or of an agent to re-
ceive service of process. However, there
was an implication of agency in the coal
company's sales agent under other pro-
visions of the Code of Civil Procedure of
the state, and it was considered that the
principle of Bagdon v. Philadelphia &
R. Coal & I. Co. supra, applied. But
the court went further and left no doubt
of the ground of its decision. It said:
"Unless a foreign corporation is engaged
in business within the state, it is not
brought- within the state by the presence
of its agents," citing and deferring to
St. Louis Southwestern R. Co. v. Alex-
ander, 227 U. S/ 218, 57 L. ed. 486, 33
Sup. Ct. Rep. 245, Ann. Cas. 1915B, 77.
And further said: "The essential thing
is that the corporation shall have come
into the state." If prior cases have a
different bent, they must be considered
as overruled, as was recognized in Rob-
ert Dollar Co. v. Canadian Car & Foun-
dry Co. 220 N. Y. 270, 277, 115 N. E.
711.
In resting the case on New York 'de-
cisions we do not wish to be understood
that the validity of such service as here
involved would not be of Federal cog-
nizance, whatever the decision of a state
court, and refer to Pennoyer v. Neff, 95
U. S. 714, 24 L. ed. 565; St. Louis South-
western R. Co. V. Alexander, supra;
Philadelphia & R. R. Co. v. McKibbin,
243 U. S. 264, 61 L. ed. 710, 37 Sup. Ct.
Rep. 280; Meisukas v. Greenough Red
[380] Ash Coal Co. 244 U. S. 54, 61 L.
ed. 987, 37 Sup. Ct. Rep. 593; People's
Tobacco Co. v. American Tobacco Co.
246 U. S. 70, (>2 L. ed. 587, 38 Sup. Ct.
Rep. 223, Ann. (as. 1918C, 537.
It follows that the District Court did
not have jurisdiction of defendant, and
its order and judgment dismissing the
complaint are affirmed.
251 U. S.
Idl9.
STROUD V. UNITED STATKS.
380-^82
EGBERT F. STROUD, Plflf. In Err.,
V.
UNITED STATES.
(See 8. 0. Reporter's ed. 380-382.)
Appeal » lia rill less error » refusing
cballenfire of Juror for cause.
Any error in overruling defendant's
challenge /of a juror for caui^e in a homi-
eide case could not have prejudiced the ac-
cused, where such juror was excluded on
peremptory challenge, and the accused was
allowed one more than the statutory num-
ber of peremptory cliallenges, and had
other peremptory challenges which he might
use alter the ruling and challenge to this
jaror» — the record not disclosing that other
than an impartial jury sat on the trial.
CFor other cases, see Appeal and Error, YIII.
m, 6, In Digest Sup. Ct. 1908J
[No. 276.]
Petition for rehearing rsceived January 6,
1920. Decided January 19, 1920.
p
ETITION for rehearing. Denied.
See ante, 103.
Messrs. Isaac B. Eimbrell and Martin
J. O'Donnell for plaintiff in error on pe-
tition for rehearing.
Memorandum opinion by direction of
the court, by Mr. Justice Day:
In this proceeding on November 24,
1919, this court affirmed the judgment of
the United States district court for the
district of Kansas, rendered upon a ver-
dict convicting the plaintiff in error of
murder in the first degree.
A petition for rehearing has been pre-
sented. It has been considered, and we
find occasion to notice only so [381]
much thereof as refers to the refusal of
the court below to sustain the plaintiff
in error's challenge for cause as to the
juror Williamson. The other grounds
Qi^g^d have been examined and found to
be without merit.
Williamson was called as a juror, and,
as we said in our former opinion, was
ehallencred for cause by the plaintiff in
error. This challenge was overruled, and
the juror was then challenged peremp-
torily by the accused. The testimony of
Williamson made it reasonably certain
Note. — As to challenges to jurors-
see notes to Harrison v. United States,
41 L. ed. U. S. 104, and Gulf, C. & S. F.
B. Co. V. Shane, 39 L. ed. U. S. 727,
44 L. ed.
that, in the event of conviction for mur-
der in the first degree, he would render
no other verdict than one which required
capital punishment. Granting that this
challenge for cause should -have been
sustained, and that this ruling required
the plaintiff in error to use one of his
peremptorj' challenges to remove the
juror from the panel, we held that the
refusal to sustain the challenge was not
prejudicial error, as the record disclosed
that the defendant was allowed twenty-
two peremptory challenges, when the law
allowed but twenty.
In the petition for rehearing it is al-
leged that the record discloses that in
fact the accused was allowed twenty
peremptory challenges and no more, and
this allegation is accompanied by an affi:
davit of counsel giving the names of
twenty persons challenged peremptorily
by the plaintiff in error, and stating that
no other peremptory challenges were al-
lowed to him at the trial. In this state-
ment the counsel is mistaken. An exami-
nation of the original transcript, as also
the printed transcript, shows that a ju-
ror, H. A. Shearer, was called and
examined upon his voir dire (printed
transcript, page 79) and later was per-
emptorily challenged by the plaintiff in
error (printed transcript, page 143), and
excused from the panel. H. A. Shearer's
name does not appear upon the list of
those as to whom peremptory challenges
were made and sustained in plaintiff in
error's behalf as given in the petition
and affidavit for [882] a rehearing. It
does appear in the transcript that plain-
tiff in error was allowed twenty-one
peremptory challenges, and it follows
that his right to exercise such challenges
was not abridged to his prejudice by the
failure to allow the single challenge for
cause which, in our opinion, should
have been sustained by the trial judge.
Furthermore, the record shows that aft-
er the ruling and challenge as to
Williamson, the plaintiff in error had
other peremptory challenges which he
might have used; 'and the record does
not disclose that other than an impar-
tial jur>' sat on the trial. See Spies v.
lUinois. 123 U. S. 131, 168, 31 L. ed. 80.
86, 8 Sup. Ct. Rep. 21, 22, and cases
cited.
It follows that the petition for rehear-
ing mnst be denied.
So ordered.
St7
382-384
SUPREME COUKT OF THE UNITED STATES.
Oct. Tebm,
MARY E. REX, Administratrix of James
A. Ivie, Deceased, Appt.,
V.
UNITED STATES and the Ute Indians.
(See S.-C. Reporter's cd. 382-384.)
Claims — for Indian depredations ^
rei nstatement.
1. A claim for Indian depredations
which was dismissed by the court of claims
on the ground that the band committing
the depredations was not in amity witli the
United States was not reinstated by the
Act of January 11, 1915, amending the Act
of March 3, 1891, so that in all claims for
property of citizens or inhabitants of the
United States taken or destroyed by Indians
belonging to any tribe in amity with and
subject to the jurisdiction of the* United
States the alienage of the claimant will not
be a defense, with a proviso that claims dis-
missed for want of proof of citizenship or
alienage shall be reinstated.
[For other cases, see Claims, 145-163, in
Digest Sup. Ct. 1908.]
liimltation of actions — claims against
United States — Indian depredations.
2. Considered as a new claim, a suit
brought since the amendment of January
11, 1915, to the Act of March 3, 1891, to
recover for depredations committed by a
hostile band from an Indian tribe in amity
with the United States, is barred by the
three years' limitation in the original act.
[Limitation of Actions, III. k, In Digest 8ap.
Ct 1908.1
[No. 126.]
Argued January 13, 1920. Decided January
26, 1920.
APPP AL from the Court of Claims to
review a judgment dismissing on de-
murrer the petition in a suit to recover
for Indian depredations. Affirmed.
See same case below, 53 Ct. CI. 320.
The facts are stated in the opinion.
Mr. Harry Peyton argued the cause
and filed a brief for appellant.
Assistant Attorney General Davis
argued the cause, and, with Mr. George
T. Stormont, filed a brief for appellees.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an appeal f^om a judgment of
the court of claims dismissing the ap-
pellant's petition upon demurrer. The
claim is for depredations committed on
June 10, 1866, by a band of the Ute tribe
of Indians, known as Blackhawk's band.
The Act of March 3, 1891, chap. 538, §
1, 26 Stat, at L. 851, gave jurisdiction
to the court of claims over all claims for
prc^erty of citizens taken or destroyed
by Indians belonging to any band, tribe,
318
or nation in amitv with the United
States. See Rev. Stat. § 2156, Act of
June 30, 1834, chap. 161, § 17, 4 Stat, at
L. 729, 731, Comp. Stat. § 4159, 3 Fed.
Stat. Anno. 2d ed. p. 816. The appel-
lant's intestate filed his claim, but on
June 13, 1898, the court of claims held
that the Blackhawk band of Utes was
not in amity with the United States, and
dismissed the petition. The present pe-
tition relies uix)n the Act of January 11,
1915, chap. 7, 38 Stat, at L. 791, amend-
ing the first section of the Act of 1891
so that in all claims for property of
citizens or inhabitants of the United
States, taken or destroyed by Indians be-
longing to a^y tribe in amity with and
subject to the jurisdiction of the United
States, etc., the alienage of the claimant
shall not be a defense to said claims,
with provisos to be mentioned The pres-
ent petition, filed September 21, 1917, al-
leges that the tribe of Utes was in amity
with the United States.
The claimant contends that the amend-
ment had two purposes, — not merely to
give inhabitants the same rights as citi-
zens, but also to admit claims for dam-
age done by hostile bands from a tribe
that maintained its amity, subject to a
proviso that suit had been brought upon
them [384] theretofore in the court of
claims. It is said that claims of that
nature that still were pending in the
court have been awarded judgment un-
der the new jurisdiction. Another
proviso in the act is that claims that
have been dismissed by the court for
want of proof of citizenship or alien-
age shall be reinstated, and the pe-
tition prays that the former claim be
consolidated with this suit, and that
judgment be awarded upon the evidence
filed in the former case. It is pointed
out as an anomaly that the case of a
neighbor of the intestate who suffered
damage from the same band on the same
day was reinstated and passed to judg-
ment, his claim having been dismissed at
an earlier date because he was not a
citizen at the time.
But we are of opinion that the judg-
ment of the court of claims was plainly
right. The emphasis and primary in-
tent, at least, of the Act of 1915, was
to remove the defense of alienage. When
it goes on by an express proviso to re-
instate claims dismissed upon that
ground, and says nothing as to the otiier
class, it is impossible to extend the
words. According to the claimant's nec-
essary argument, Congress had claims
for damage by hostile bands before its
eyes. On the face of the act it had
951 V. S.
1919.
SILVERTHORNE LUMBER CX). v. LMXED STATES.
384, 383
before them also the matter of reinstate-
ment. Yet it did not purport to rein-
state claims of the present elass. Ac-
cording to the claimant's account there
wa« something for the act to operate on
in the way of damage by hostile bands,
and the words cannot be carried fur-
ther than they go. The court of claims
rightly held that the old claim was not
reinstated, and that, considered as a new
claim, the present suit was barred by the
three years' limitation in the orig^al
act.
Judgment affirmed.
[3851 SILVERTHORNE LUMBER COM-
PANY, Inc., and Frederick W. Silver-
thorne, Plffs. in Err.,
V.
UNITED STATES OF AMERICA.
(See 8. C. Reporter's ed. 385-392.)
*
Search and selsare — pse of evidence
wrongfdlly obtained — oonipelling
production of papers.
1. The "knowledge gained by the Federal
government's own wrong in seizing papers
in violation of the owners* constitutional
protection against unlawful searches and
seizures cannot be used by the government
in a criminal prosecution by serving sub-
poenas upon sudi owners to produce the
original papers, which it had returned after
copies had been made, and by obtaining a
court order commanding compliance with
such subpcenas.
[ For other -cases, see Search and Selsure : Evi-
dence, VIII. in Digest Sup. Ct. 1908.]
Search and seizure — protection of cor-
poration — (^ompnlsory production of
papers.
2. The rights of a corporation against
unlawful searches and seizures are to be
protected, even if the same result might
have been achieved in a lawful way, i. e., by
an order for the production of its books
and papers.
[For orher cases, see Search and Seisure, in
Digest Sup. Ct. 1908.]
[No. 358.]
Argued December 12, 1919. Decided Janu-
ary 26, 1920.
I
N ERROR to the District Court of the
United States for the Western Dis-
trict of New York to review a judgment
imposing fine and imprisonment for a
contempt of court. Reversed.
The facts are stated in the opinion.
Mr. William D. Guthrie argued the
cause, and, with Messrs. Henry W.
Killeen and James 0. Moore, filed a
brief for plaintiffs in error:
There is no longer any doubt that a
corporation is protected by the guaranty
of the 4th Amendment against unrea-
sonable searches and seizures in as full
a measure as any natural person.
Hale V. Henkel, 201 U. S. 43, 75, 76,
60 L. ed. 652, 665, 666, 26 Sup. Ct. Rep.
370; Re Tri-State Coal & Coke Co. 253
Fed. 605; United States v. McHie, 194
Fed. 898; United States v. McQuade, U.
S. D. C. E. D. N. Y. Thomas, D. J. (not
yet reported); Coastwise Lumber &
Supply Co. V. United States, 259 Fed.
849; Re Pacific R. Commission, 32 Fed.
265.
The same considerations of funda-
mental policy which protect corpora-
tions in their property and guarantee
them the equal protection of the laws,
liberty and due process of law, operate
to preserve them from the oppression
and lawlessness that inhere in an illegal
and unreasonable search and seizure of
private papers and effects by a public
official. An orderly constitutional gov-
ernment can require of its^ officers and
grant to its citizens no less.
Veeder v. United States, — C. C. A.
— , 252 Fed. 418, 246 U. S. 675, 62 L.
ed. 933, 38 Sup. Ct. Rep. 428.
In the case at bar the officers who
perpetrated the search of the Lumber
Company's premises, and the seizure of
its books, papers, and documents, were
armed with no search warrant or other
process which purported to authorize
any of them to make any search or sei-
zure whatever. They did not even hold
an invalid search warrant. All that
they had was a void subpoena duces
tecum; and, under the color of that,
they ransacked the company^s premises
and stripped it of all its books, papers,
and documents, and carried them away.
A subpoena duces tecum may never be
served or executed in any such manner.
Hale V. Henkel, 201 U. S. 43, 80, 50
Kote. — On admissibility against de-
fendant of document or articles taken
from him — see notes to Blaeksburg v.
Beam, L.R.A.1916E, 716; Weeks v.
United States, L.R.A.1915B, 834; Peo-
ple V. Campbell, 34 L.R.A.(N.S.) 58;
SUte V. Fuller, 8 L.R.A.(N.S.) 762; and
State V. Edwards, 59 L.R.A. 465.
•4 Ii» ed.
As to unreasonable search and seizure
— see note to Levy v. Superior Ct. 29
L.R.A. 818.
On compulsory production of books
and papers as unreasonable search and
seizure — see note to Consolidated Ren-
dering Co. V. Vermont, 52 L. ed. U. S.
327.
SUPREME COUKT OF THE UNITED STATES.
Oct. Term,
L. ed. 652, 667, 26 Sup. Ct. Rep. 370;
Elting V. United States, 27 Ct. CI. 164;
Banks v. Connecticut R. & Lighting
Co. 79 Conn. 118, 64 Atl. 14.
If this procedure is to Iqfe tolerated^ it
will in effect nullify the protection of
the 4th Amendment and place a premi-
um upon lawless and unconstitutional
official conduct.
Brown v. Maryland, 12 Wheat. 419,
444, 6 L. ed. 678, 687; Cummings v.
Missouri, 4 Wall. 277, 325, 329, 18 L.
ed. 356, 363, 364; Weeks v. United
States, 232 U. S. 383, 58 L. ed. 652,
L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341,
Ann. Cas. 1915C, 1117; Flagg v. United
States, 147 C. C. A. 367, 233 Fed. 481;
Fitter v. United States, 169 C. C. A.
507, 258 Fed. 567; Re Tri-State Coal &
Coke Co. 253 Fed. 605; United States
V. Mounday, 208 Fed. 186; United
States V. Wong Quong Wong, 94 Fed.
832; United States v. McQuade, E. D.
N. Y. Thomas, D. J. (not reported) ;
State V. Sheridan, 121 Iowa, 166, 96 N.
W. 730; Coastwise Lumber & Supply
Co. V. United States, — C. C. A. — , 259
Fed. 847.
Messrs. William D. Guthrie, Frederic
D. McKenney, Myer Cohen, Henry W.
Killeen, and James 0. Moore also filed
a brief for plaintiffs in error in opposi-
tion to the motion to dismiss or affirm.
Assistant Attorney General Stewart
argued the cause, and, with Mr. W. C.
Herron, filed a brief for defendant in
error:
The terms of the subpcenas were not so
broad as to constitute, for that reason
alone, an unreasonable search and
seizure.
Consolidated Rendering Co. v. Ver-
mont, 207 U. S. 541, 553, 554, 52 L. ed.
327, 335, 336, 28 Sup. .Ct. Rep. 178, 12
Ann. Cas. 658; Wilson v. United States,
221 U. S. 361, 65 L. ed. 771, 31 Sup. Ct.
Rep. 538, Ann. Cas. 1912D, 558; Wheel-
er V. United States, 226 U. S. 478, 67
L. ed. 309, 33 Sup. Ct. Rep. 158.
The validity of an arrest or seizure of
either persons or property is to be de-
termined by the condition obtaining at
the time objection to the arrest or sei-
zure is made. If at that time the arrest
or seizure is valid, the fact that a
prior arrest or seizure, effective in
bringing about the valid action, was
entirely or partially illegal, is immate-
rial, and tenders a merely collateral
issue.
Gelston v. Hoyt, 3 Wheat. 246, 310,
4 L. ed. 381, 397; Wood v. United
States, 16 Pet. 342, 359, 10 L. ed. 987,
320
994; Mahon v. Justice, 127 U. S. 700, 32
L. ed. 283, 8 Sup. Ct. Rep. 1204; Petti-
bone V. Nichols, 203 U. S. 192, 61 L. ed.
148, 27 Sup. Ct. Rep. Ill, 7 Ann. Cas.
1047; Kelly v. Griffin, 241 U. S. 6, 60 L.
ed. 861, 36 Sup. Ct. Rep. 487; People v.
Adams, 176 N. Y. 358, 63 L.R.A. 406, 98
Am. St. Rep. 675, 68 N. E. 636, 192 U.
S. 585, 594r-598, 48 L. ed. 575, 579, 580, 24
Sup. Ct. Rep. 372.
The Federal courts may, under the
authority of U. S. Rev. Stat. § 716,
Comp. Stat. § 1239, impound documents
which they deem relevant testimony in
a criminal case, no matter how they may
have come into their possession.
Perlman Rim Corp. v. Firestone Tite
& Rubber Co. 244 Fed. 304; Perlman v.
United States, 247 U. S. 7, 62 L. ed. 950,
38 Sup. Ct. Rep. 417; United States v.
Hart, 214 Fed. 655; Stroud v. United
States, 251 U. S. 15, ante, 103, 40 Sup. Ct.
Rep. 50; Kerrch v. United States, 96 C.
C. A. 258, 171 Fed. 368; Johnson v.
United States, 228 U. S. 467, 57 L. ©d.
919, 47 L.R.A.(1^.S.) 263, 33 Sup. Ct.
Rep. 572; United States v. Wilson, 163
Fed. 338; New York C. & H.'R. R. Co.
V. United States, 91 C. C. A. 519, 165
Fed. 833: United States v. Mcffie, 196
Fed. 586; Re Rosenwasser Bros. 254
Fed. 171.
Certain decisions where a motion to
return papers was granted or an im-
pounding order refused can all, with one
exception, be explained upon the
ground that the papers in question
would not have been admissible in evi-
dence as against a claim of immunity
under the 5th Amendment, and hence to
bring them into or retain them in the
custody of the court would have been
an idle thing, serving no legitimate pur-
pose. Such cases are: United States
V. Mills, 186 Fed. 318; United States v.
McHie, 194 Fed. 894; United States v.
Mounday, 208 Fed. 186; United States
V. Jones, 230 Fed. 262; United States v.
Abrams, 230 Fed. 313; United States v.
Friedburg, 233 Fed. 313; Veeder v.
United States, — C. C. A. — , 252 Fed.
414; Re Marx, 265 Fed. 344. The one
exception is the case of Re Tri-State
Coal & Coke Co. 253 Fed. 605, where
the court clearly overlooked the rule
that a corporation cannot plead immu-
nity from self-incrimination, and there-
fore the books, etc., in question, in so
far as relevant, should have been re-
tained by the court, irrespective of the
invalidity of the search warrant.
Solicitor jGeneral King filed a brief
in support of the motion to dismiss or
affirm.
251 V. S.
ldi9.
SILVERTHORNE L131BER CO. v. U:NITED STATES.
390-392
Mj. Justice Holmes delivered the opin-
ion of the court :
This is a writ of error brought to re-
verse a judgment of the district courts
fining the SUverthome Ltunber Company
$250 for contempt of court, and order-
ing Frederick W. Silverthome to be im-
prisoned until he should purge himself
of a similar contempt. The contempt in
question was a refusal to obey subpoenas
and an order of court to produce books
and documents of the company before
the grand jury, to be used in regard to
alleged violation of the statutes of the
United States by the said Silverthome
and his father. One ground of the re-
fusal was that the order of the court in-
fringed the rights of the parties under
the 4th Amendment of the Constitution
of the United States.
The facts are simple. An indictment
upon a single specific charge having been
brought against the two Silverthomes
mentioned, they both were arrested at
their homes early in the morning of Feb-
ruary 26, and were detained in custody
a number of hours. While they were
thus detained representatives of the De-
partment of Justice and the United
States marshal, without a shadow of au-
thority, weat to the oflSce of their com-
pany and made a clean sweep of all the
books, papers, and documents found
there. All the employees were taken or
directed to go to the office of the dis-
trict attorney of the United States, to
which also the books, etc., were taken
at once. An application was made as soon
as might be to the district [391] court
for a return of what thus had been
taken unlawfully. It was opposed by
the district attorney so far as he had
found evidence against the plaintiffs in
error, and it was stated that the evidence
so obtained was before the grand jury.
Color had been gh^en by the district at-
torney to the approach of those con-
cerned in the act by an invalid subpoena
for certain documents relating to the
charge in the indiotment then on file.
Thus the case is not that of knowledge
acquired through the wrongful act of a
stranger, but it must be assumed that
the government planned or at all events
ratified the whole performance. Photo-
graphs and copies of material papers
were made and a new indictment was
framed, based uix)n the knowledge thus
obtained. The district court ordered a
return of the originals, but impounded
the photographs and copies. Subpoenas to
produce the originals then were served,
aod on the refusal of the plaintiffs in I
error to produce them the court made an
•4 li. ed. 2
order that the subpoenas should be com-
plied with, although it had found that
all the papers had been seized in viola-
tion of the parties' constitutional rights.
The refusal to obey this order is the
contempt alleged. The government now,
while in form repudiating and condemn-
ing the illegal seizure, seeks to maintain
its right to avail itself of the knowledge
obtained by that means which otherwise
it would not have had.
The proposition could not be presented
more nakedly. It is that although of
course its seizure was an outrage which
the government now regrets, it may
study the papers before it returns them,
copy them, and then may use the knowl-
edge that it has gained to call upon the
owners in a more regular form to pro-
duce them; that the protection of the
Constitution covers the physical* posses-
sion, but not any advantages that the
government can gain over the object of
its pursuit by doing the forbidden act.
Weeks v. United States, 232 U. S. 383,
68 L. fed. 652, L.R.A.1915B, 834, 34 Sup.
Ct. Rep. 341, Ann. Cas. 1915C, 1117, to
be sure, had established that laying the
papers directly before the grand jury was
[392] imwarranted, but it is taken to
mean only that two steps are required
instead of one. In our opinion such is
not the law. It reduces the 4th Amend-
ment to a form of words. 232 U. S.
393. The essence of a provision forbid-
ding the acquisition of evidence in a cer-
tain way is that not merely evidence so
acquired shall not be used before the
court, but that it shall not be used at
all. Of course this does not mean that
the facts thus obtained become sacred
and inaccessible. If knowledge of them
is gained from an independent souree
they may be proved like any others, but
the knowledge gained by the govern-
ment's own wrong cannot be used by it
in the way proposed. The numerous de-
cisions, like Adams v. New York, 192 U.
S. 586, 48 L. ed. 575, 24 Sup. Ct. Rep.
372, holding that a collateral inquiry in-
to the mode in which evidence has been
got will not be allowed when the question
is raised for the first time at the trial,
are no authority in the present proceed-
ing, as is explained in Weeks v. United
States, 232 U. S. 383, 394, 396, 58 L.
ed. 652, 656, 657, L.R.A.1915B, 834, 34
Sup. Ct. Rep. 341, Ann. Cas. 1915C,
1117. Whether some of those decisions
have gone too far, or have given wrong
reasons, it is unnecessary to inquire; the
principle applicable to the present case
seems to us plain. It is stated satisfac-
torily in Flagg v. United States, 147
1 321
392, 393
8LPKKME COURT OF THE UNITED STATED.
Oct. Ie&h,
C. C. A. 367, 233 Fed. 481, 483. In Linn
V. United States, 163 C. C. A. 470, 251
Fed. 476, 480, it was thought that a dif-
ferent rule applied to a corpoiration, on
the ground that it was not privileged
from producing its books and papers.
But the rights of a corporation against
unlawful search and seizure are to be
protected even if the same result might
have been achieved in a lawful way.
Judgment reversed.
The Chief Justice and Mr. Justice
Pitney dissent.
[393] CHARLBS L HENRY, Executor
under the Will of Arthur T. Hendricks,
Deceased, Appellant.
V.
UNITED STATES.
(See S. G. Reporter's ed. 393-396.)
Federal suocesslon tax ^ vested or con-
tingent interest — refunding.
1. The interest of legatees in legacies
paid over to them or to a trustee for them
by the executor prior to July 1, 190:2, al-
though not demandable by them as of right
until after that date, because the time for
proving claims against the estate had not
expired, had become absolutely vested in
possession of such legatees prior to such
date, within the meaning of the Act of
June 27, 1902, providing for the refunding
of taxes collected on contingent beneficial
interests not vested prior to July 1, 1902,
notwithstanding the remote possibility
that Uie amoimts so paid might have to be
returned to the executor for payment of
debts.
[For other cases, see Internal Revenue, III. h,
in Dlgejit Sap. Ct. 1908.]
Federal saccesslon tax — vested or con-
tingent interest — refunding*
2. The interest in a fund transferred
from an estate to a trustee for ascertained
persons was vested in possession although
they had received no income from it prior
to July 1, 1902, within the provision of the
Act of June 27, 1902, for the refimding of
taxes collected on a contingent beneficial
interest not vested prior to such date.
[For other cases, see Internal Revenue, III. h,
in Digest Sup. Ct. 1908.]
[No. 162.]
Argued January 21, 1920. Decided Febru-
ary 2, 1920.
APPEAL from the Court of Claims to
review a judgment disallowing a
claim for the refunding of taxes paid on
legacies. Affirmed.
See same case bolow, 53 Ct. CI. 641.
The facts are stated in the opinion.
:)22
Mr. Simon Lyon argued the cause,
and, with Mr. R. B. H. Lyon, filed a brief
for appellant :
No interest bequeathed by this will
could be construed as having vested in
absolute possession or enjoyment prior
to July 1, 1902, but, to the contrary,
they were all contingent and on that
date refundable.
Robinson v. Adams, 30 Misc. 537, 63
N. Y. Supp. 817 ; Re Te Culver, 22 Misc.
217, 49 N. Y. Supp. 823; Re Underbill,
117 N. Y. 471, 22 N. E. 1120; Re Rob-
ertson, 51 App. Div. 117, 64 N. Y. Supp.
387; Re Hodgman, 140 N. Y. 430, 35 N.
E. 660 ; Lang v. Stringer, 144 N. Y. 275,
39 N. E. 363; Vanderbilt v. Eidman, 196
U. S. 480, 49 L. ed. 563, 25 Sup. Ct Rep.
331; United States v. Jones, 236 U. S.
108, 59 L. ed. 489, 35 Sup. Ct. Rep. 261,
Ann. Cas. 1916A, 316; McCoach v.
Pratt, 236 U. S. 562, 567, 59 L. ed. 720,
721, 35 Sup. Ct. Rep. 421; Johnson v,
M'Intosh, 8 Wheat. 543, 5 L. ed. 681;
Uterhart v. United States, 240 U. S.
598, 60 L. ed. 819, 36 Sup. Ct. Rep. 417;
Coleman v. United States, 250 U. S. 30,
63 L. ed. 826, 39 Sup. Ct. Rep. 414;
Sage V. United States, 250 U. S. 33, 63
L. ed. 828, 39 Sup. Ct. Rep. 415; United
States V. Fidelity Trust Co. 222 U. S.
158, 56 L. ed. 137, 32 Sup. Ct. Rep. 59.
Solicitor General King argued the
cause, and, with Mr. A. F. Myers, filed
a brief for appellee :
The funds on which the taxes here in
question have been assessed and collect-
ed were vested in possession or enjoy-
ment prior to July 1, 1902.
Hyland v. Baxter, 98 N. Y. 610;
Thorn v. Gamer, 113 N. Y. 198, 21 N.
E. 149; Re Butler, 1 Connoly, 58, 9 N.
Y. Supp. 641; Re Underbill, 117 N. Y.
471, 22 N. E. 1120; Uterhart v. United
States, 240 U. S. 598, 60 L. ed. 819, 36
Sup. Ct. Rep. 417; United States v. Fi-
delity Trust Co. 222 U. S. 158. 56 L. ed.
137, 32 Sup. Ct. Rep. 59; Carleton v.
United States, 51 Ct% CI. 60; Deford v.
United States, 52 Ct. CI. 225.
Mr. Justice Holmes delivered the
opinion of the court:
This is a suit to rectiver taxes paid
under the Spanish War Revenue Act of
June 13, 1898, chap. 448, §§ 29, 30, 30
Stat, at L. 448, 464, 465, repealed by the
Act of April 12, 1902, chap. 500, § 7, 32
Stat, at L. 96, 97, the repeal to take
effect on July 1, 1902. By the Act of
June 27, 1902, chap. 1160, '§ 3, 32 Stat.
251 r. s.
Idl9.
BROOK S-SC AN LON CO. v. RAILROAD COMMISSION.
393-396
at Lu 406, 4 Fed. Stat. Anno. 2d ed. p.
232, the Secretary of the Treasury was
directed to refund taxes upon le^cies
collected upon contingent beneficial in-
terests that should not have become
vested before July 1, 1902, and this
claim is made under the last-mentioned
aot. The claim was held by the court of
[S&l] claims to be barred by the Stat-
ute of Limitations. In view of the de-
cision in Sage v. United States, 250 U.
S. 33, 63 L. ed. 828, 39 Sup. Ct. Rep. 415,
it is admitted by the government that
the judgment cannot be sustained on that
ground, and therefore that matter need
not be discussed; but it is contended that
the judgment was right because the lega-
cies taxed had become vested before
July 1, 1902. Whether they had become
vested within the meaning of the Re-
funding Act is the only question in the
case.
The facts are these: Arthur Hendricks
died domiciled in New York on March
5, 1902, and his will was proved on
March 17, 1902. The claimant was execu-
tor and trustee under the will. By that
instrument the sum of $50,000 was left
to the claimant in trust for Florence Les-
ter, for life, the remainder to go to the
residue. The residue was left to the
testator's five sisters. On July 1, 1902,
the time for proving claims against the
estate had not expired, but before that
date the executor, having correctly es-
timated that a large sum would be left
after all debts, paid over $135,780 to the
five sisters in equal shares, and ''estab-
lished the trust fund'' for Florence Les-
ter; that is, as we understand the find-
ing, tran^erred the sum of $50,000 to
his separate account as trustee. The
taxes in question were levied on these
two amounts.
There is no doubt that if the claimant
had retained the funds in his hands, as
he had a legal right to do, the interest
of the legatees would not have been
vested in possession within the meaning
of the statute, whatever the probabili-
ties and however solvent the estate.
United States v. Jones, 236 U. S. 106,
59 L. ed. 488, 35 Sup. Ct. Rep. 261,
Ann. Cas. 1916A, 316; McCoach v. Pratt,
236 U. S. 562, 59 L. ed. 720, 35 Sup.
Ct. Rep. 421. He contends that the
same is true if he saw fit to pay over
legacies before the time came when they
could be demanded as of right. We will
assume that, if the estate had proved
insufficient, the executor not only would
have been responsible, but could have
recovered such portion of his payments
as was needed to pay debts. [395] Still
€4 1j. ed.
the consequence asserted does not fol-
low. There can be no question that the
interest of the sisters was held in pos-
session, and so was that of the trustee,
although he happened to be the same
person as the executor. The interest
was vested also in each case. The law
uses familiar legal expressions in their
familiar legal sense, and the distinction
between a contingent interest and a vest-
ed interest subject to be devested is
familiar to the law. Gray, Perpetuities,
§ 108. The remote jpossibility that the
funds in the hands or the legatees might
have to be returned no more prevented
their being vested in possession and tax-
able than the possibility that a life es-
tate might end at any moment prevented
one that began before July 1, 1902, being
taxed at its full value as fixed by the
mortuary tables. United States v. Fidel-
ity Trust Co. 222 U. S. 158, 160, 56 L.
ed. 137, 141, 32 Sup. Ct. Rep. 59. In
that case it was contended that the life
estate was contingent so far as not actu-
ally enjoyed.
It is argued with regard to the trust
for Florence Lester that the case stands
differently, because the life tenant re-
ceived no income from it before July 1,
1902. But for the purposes of this act
the interest in a fund transferred frOm
an estate to a trustee for ascertained
persons is vested in possession no less
than when it is conveyed directly to
them. See United States v. Fidelity
Trust Co., supra.
Judgment affirmed.
[396] BROOKS•SCA^fLON COMPANY,
Petitioner,
V.
RAILROAD COMMISSION OP LOUISI-
ANA.
(See 8. C. Reporter'ii ed. 396-400.)
Carriers — state regulation — compel-
ling operation of railroad.
1. A corporation which, in connection
with its sawmill and lumber business, has
operated a railroad on which it has done a
small business as a common carrier, cannot
be compelled to continue the operation of
the railroad after it has ceased to be profit-
able, merely because a profit would be de-
Note. — As to effect of fact that re-
turn as a whole is reasonable on right
to require railroad to transport com-
modity for less than reasonable compen-
sation— see note to Northern P. R. Co.
V. North Dakota, L.R.A.1917F, 11,58.
S23
SUPREME COURT OF THE UNITED STATES.
Oct. Tekm,
rived from the entire business, inclading
the operation of the railroad.
[For other cases, see Carriers* III. in Digest
Sup. Ct. 1908.]
Carriers — right to cease operation of
road.
2. A corporation carrying on a sawmill
aod lumber business, which has |p*anted to
the public an interest in a railroad op-
erated in connection with its business by
doing a small business as a common carrier
thereon, may withdraw its grant by dis-
continuing the use of the road when such
use can be kept up only at a loss.
[E*or other cases, see Carriers, III. in Digest
Sup. Ct. 1008.]
Constitntional law — due process of
law — compelling^ operation of rail-
road at a loss.
3. The operation at a loss of a railroad
osed in connection with a sawmill and lum-
ber business on which a small amount of
business as a common carrier has been done
cannot be compelled by the court or state
Railroad CommissiQn on the ground that
the owner had failed to petition the Cmn-
mission for leave to di8(K>ntinue the busi-
ness of the railroad, as required by a local
law, where the compulsory operation of the
railroad would amount to a taking of prop-
erty without due process of law.
[For other cases, see ConstitutioDal Law, lY. b,
5, In Digest Sup. Ct. 1908.]
[No. 386.]
Argued January 6, 1920. Decided Febru-
ary 2, 1920.
ON WRIT of Certiorari to the Su-
preme Court of the State of Louisi-
ana to review a judgment which re-
versed a judgment of the Twenty-second
Judicial District of East Baton Rouge^
holding void an order of the Louisiana
Railroad Commission requiring the op-
eration of a narrow-gauge railroad. Re-
versed.
See same case below, 144 La. 1086^
P.U.R.1919E, 1, 81 So. 727.
The facts are stated in the opinion.
Messrs. J. Blapc Monroe and Robert
R. Raid argued the cause, and, with Mr.
Monte M. Lemann, filed a brief for pe-
titioner:
A state railroad commission may not
compel a railroad to operate at a loss.
Northern P. R. Co. v. North Dakota,
236 U. S. 596, 69 L. ed. 741, L.R.A.
1917F, 1148, P.U.R.1915C, 277, 36 Sup.
Ct. Rep. 429, Ann. Cas. 1916 A, 1;
Northern P. R. Co. v. Washington Ter-
ritory, 142 U. S. 494, 35 L. ed. 1092, 12
Sop. Ct. Rep. 283; Munn v. Illinois, 94
U. S. 113, 24 L. ed. 77; Wilson v. New,
243 U. S. 336, 61 L. ed. 755, L.R.A1917E,
938, 37 Sup. Ct. Rep. 298; South Caro-
lina ex rel. Cunningham v. Jack, 76 C.
Z24
C. A. 165, 145 Fed. 286, 113 Fed. 823;
Ohio & M. R. Co; V. People, 120 HI. 200,
11 N. E. 347; Denver v. Denver Union
Water Co. 246 U. S. 195, 62 L. ed. 662,
P.U.R.1918C, 640, 38 Sup. Ct. Rep. 278 ;
Mississippi R. Commission v. Mobile &
0. R. Co. 244 U. S. 391, 61 L. ed. 1219,
37 Sup. Ct. Rep. 602; Southern R. Co.
V. St. Louis Hay & Grain Co. 214 U, S.
301, 63 L. ed. 1006, 29 Sup. Ct. Rep.
678; Atlantic Coast Line R. Co. v. North
Carolina Corp. Commission, 206 U. S.
1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585,
11 Ann. Cas. 398; Missouri P. R. Co.
V. Tucker, 230 U. S. 340, 57 L. ed. 1607,
33 Sup. Ct. Rep. 961; Minnesota Rate
Cases (Simpson v. Shepard) 230 U. S.
433, 57 L. ed. 1556, 48 L.R.A.(N.S.)
1161, 33 Sup. Ct. Rep. 729, Ann. Cas.
1916A, 18; Chicago, M. & St. P. R. Co.
V. Wisconsin, 238 U. S. 491, 59 L. ed.
1423, L.R.A.1916A, 1113, P.U.R.1916D,
706, 35 Sup. Ct. Rep. 869; Railroad
Commission Cases, 116 U. S. 331, 29 L.
ed. 644, 6 Sup. Ct. Rep. 334; Smythe v.
Ames, 169 U. S. 466, 42 L. ed. 819, 18
Sup. Ct. Rep. 418; Central Bank & T. **
Corp. V. Cleveland, — CCA. — , 262
Fed. 530 ; Iowa v. Old Colony Trust Co.
L.R.A.1915A, 649, 131 C C A. 581, 215
Fed. 313; New York Trust Co. v. Ports-
mouth & E. Street R. Co. 192 Fed. 730;
Amesbury v. Citizens' Electric Street R.
Co. (Stiles V. Citizens' Electric Street
R. Co.) 199 Mass. 400, 19 L.R.A.(N.S.)
865, 85 N. E. 419; Union Trust Co. v.
Curtis, 182 Ind. 73, L.R.A.1915A, 699,
106 N. E. 562; Moere v. Lewisburg & R.
Electric R. Co. 80 W. Va. 661, L.R.A.
1918A, 1028, 93 S. E. 762.
Mr. Wylie M. Barrow argued the
cause, and, with Mr. A. V. Coco, At-
torney General of . Louisiana, filed a
brief for respondent:
A corporation engaged in the oper-
ation of a common carrier railroad
cannot dispose of its property and
franchise without legislative authority.
York & M. Line R. Co. v. Winans, 17
How. 30, 15 L. ed. 27; Thomas v. West
Jersey R. Co. 101 U. S. 71, 25 L. ed.
950; Central Transp. Co. v. Pulhnan's
Palace Car Co. 139 U. S. 24, 35 L. ed.
55, 11 Sup. Ct. Re{J. 478; Earlc v.
Seattle, L. S. & E. R. Co. 56 Fed. 909;
Indianapolis v. Consumers* Gas Trust
Co. 75 C C A. 442, 144 Fed. 640;
Georgia R. & Bkg. Co. v. Haas, 127 Ga.
187, 119 Am. St. Rep. 327, 56 S. E. 313,
9 Ann. Cas. 677; Kelley v. Fornev, 80
Kan. 146, 101 Pac. 1020; Brunswick
Gaslight Co. v. United Gas, Fuel, &
Light Co. 85 Me. 532, 36 Am. St. Rep.
951 V. H.
1919.
BROOKS-SCANLON CO. v. RAILROAD COMMISSION.
397
.385. 27 Atl. 525; Richardson v. Sibley,
11 Allen, 65, 87 Am. Dec. 700; Middle-
sex R. Co. V. Boston & C. R. Co. 115
Mass. 347: Weld v. Gas & E. L. Comrs.
197 Mass. 556, 84 N. E. 101; Black v.
Delaware & R* Canal Co. 24 N. J. Eq.
455, reversing 22 N. J. Eq. 130 ; Turner
V. Southern Power Co. 154 N. C. 131, 32
L.R.A.(N.S.) 848, 69 S. E. 767; Coe v.
Columbus, P. & I. E. Co. 10 Ohio St,
372, 75 Am. Dec. 518; Susquehanna
Canal Co. v. Bonham, 9 Watts & S. 27,
42 Am. Dec. 315; Naglee v. Alexandria
& P. R. Co. 83 Va. 707, 5 Am. St. Rep.
308, 3 S. E. 369; Ricketts v. Chesapeake
& O. R. Co. 33 W. Va. 433, 7 L.R.A.
354, 25 Am. St. Rep. 901, 10 S. E. 801.
The 14th Amendment is not violated
by the order in controversy.
Chicago & N. W. B. Co. v. Ochs, 249
U. S. 416, 63 L. ed. 679, P.U.BJ919D,
498, 39 Sup. Ct. Rep. 343; Wisconsin,
M. A P. R. Co. V. Jacobson, 179 U. S.
287, 302, 45 L. ed. 194, 201, 21 Sup. Ct.
Rep. 115; Minneapolis & St. L. R. Co.
T. Minnesota, 193 U. S. 53, 48 L. crd. 614,
24 Sup. Ct. Rep. 396; Atlantic Coast
Line R. Co. v. North Carolina Corp.
Commission, 206 U. S. 1, 26, 27, 51 L.
ed. 933, 945, 27 Sup. Ct. Rep. 585, 11
Ann. Cas. 398; Missouri P. B. Co. v.
Kansas, 216 U. S. 262, 278, 279, 54. L.
ed. 472, 479, 480, 30 Sup. Ct. Rep. 330;
Washington ex rel. Oregon R; & Nav.
Co. V. Faixchild, 224 U. S.'510, 529, 56
L. ed. 863, 870, 32 Sup. Ct. Rep. 535;
Michigan C. R. Co. v. Michigan R. Com-
mission, 236 U. S. 615, 631, 59 L. ed.
750, 756, P.U.R.1915C, 263, 35 Sup. Ct.
Rep. 422; Chesapeake & 0. R. Co. v.
Public Service Commission, 242 U. S.
603, 61 L. ed. 520, 37 Sup. Ct. Rep. 234.
A railroad operated in Louisiana as
a conmion carrier cannot be abandoned
without the consent of the state.
York & M. Line R. Co. v. Winans, 17
How. 31, 15 L. ed. 27; Lake Erie & W.
B. Co. v. State Public Utilities Commis-
sion, 249 U. S. 422, 63 L. ed. 684,
P.U.R.1919D, 459, 39 Sup. Ct Rep.
345; Eel lUver R. Co. v. State, 155
Ind. 456, 57 N. E. 396; St. Louis v. St.
Louis Gaslight Co. 5 Mo. App. 530;
Black V. Delaware & R. Canal Co. 22
N. J. Eq. 399; James v. Western North
Carolina R. Co. 121 N. C. 528, 46 L.R.A.
306, 28 S. E. 538; Russell v. Texas & P.
R. Co. 68 Tex. 652, 5 S. W. 690; New
York, N. H. & H. R. Co. v. Bridgeport
Traction Co. 65 Conn. 423, 29 L.R.A.
367, 32 Atl. 953; Flint & P. M. R. Co. v.
Rich, 91 Mich. 293, 51 N. W. 1001;
State ex rel. Nay lor v. Dodge City, M.
€4 li. ed.
& T. R. Co. 53 Kan. 377, 42 Am. St.
Rep. 295, 36 Pao. 747; Railroad Com-
mission v. Kansas City Southern R. Co.
Ill La. 133, 35 So. 487; State ex rel.
Tate V. Brooks-Scanlon Co. 14S La. 539,
78 So. 847; People ex rel. Walker v.
Louisville & N. R. Co. 120 111. 48, 10 N.
E. 657; New York & G. L R. Co. v.
State, 50 N. J. L. 303, 13 Atl. 1, affirmed
in 53 N. J. L. 244, 23 Atl. 168; Inter-
national & G. N. R. Co. V. Anderson
County, 246 U. S. 424, 62 L. ed. 807, 38
Sup. Ct. Rep. 370.
A private corporation owning a com-
mon carrier railroad may be com-
pelled* to operate the railroad. The ob-
ligation to discharge that duty mu9t be
considered in connection with the busi-
ness as a whole.
Missouri P. R. Co. v. Kansas, 216 U.
S. 262, 54 L. ed. 472, 30 Sup. Ct. Rep.
330; Munn v. Illinois, 94 U. S. 113, 24
L. ed. 77; People v. Budd, 117 N. Y.
18, 5 L.R.A. 566, 15 Am. St. Rep. 472,
22 J^. E. 676; Budd v. New York, 143
U. S. 547, 36 L. ed. 256, 4 Inters. Com.
Rep. 45, 12 Sup. Ct. Rep. 468; Cotting
V. Kansas City Stock Yards Co. (Cotting
v. Godard) 183 U. S. 79, 46 L. ed. 92, 22
Sup. Ct. Rep. 30; Atlantic Coast Line
R. Co. V. North Carolina Corp. Conmiis-
sion, 206 U. S. 1, 26, 27, 51 L. ed. 933,
945, 27 Sup. Ct. Rep. 585, 11 Ann. Cas.
398 ; People ex rel. Cantrell v. St. Louis,
A. & T. H. R. Co. 176 111. 512, 35 L.R.A.
656, 45 N. E. 824, 52 N. E. 292; Ran-
dolph County V. Post, 93 U. S. 507, 23
L. ed. 957; Westport Stone Co. v.
Thomas, 175 Ind. 324, 35 L.R.A. 646, 94
N. E. 408; State ex rel. Ellis v. Atlantic
Coast Line R. Co. 53 Fla. 676, 13 L JLA.
(N.S.) 320, 44 So. 213, 12 Ann. Cas.
359; Overcash v. Charlotte Electrie R.
light & P. Co. 12 Ann. Cas. 1047, note ;
Talcott v. Pine Grove, 1 Plipp. 120, Fed.
Cas. No. 13,735; Gates v. Boston & N.
Y, Air Line R. Co. 53 Conn. 333, 342,
5 Atl. 695; State ex rel. R. Comrs. v.
Bullock, — Fla. — , 8 A.L.R. 232, P.U.R.
1920A, 406, 82 So. 866.
Mr. Justice Holmes delivered the
opinion of the court:
This is a suit by the Brooks-Scanlon
Company, a Minnesota corporation or-
ganized to manufacture and deal in lum-
ber and to carry on other incidental busi-
ness, against the Railroad Commission
of Louisiana. It seeks to set aside an
order (Number 2228) of the Commission
requiriiig the plaintiff, either directly or
through arrangements made with the
Kentwood & Eastern Railway Company,
sa5
397-399
SL'IMIEME COURT OF THE UNITED STATES.
Oct. Tebm,
to operate its narrow-gauge railroad be-
tween Kent wood and Hacklev, in Louisi-
ana^ upon schedules and days to be
approved by the Commission. The plain-
t'lfl alleges that the order cannot be coin-
plied with except at a loss of more than
$1,500 a month, and that to compel com-
pliance would deprive the plaintiff of its
property without due process of law,
contrary to the 14th Amendment of the
Constitution of the United States, with
other objections not necessary to be men-
tioned here. The defendant denies the
plaintiff's allegations and in reconven-
tion prays for an injunetion against the
tearing up or abandoning of the road,
and for a mandate upholding the order.
In the court oi first instance a prelim-
inary injunction was issued in favor of
the Commission, but was dissolved up-
on bond. Subsequently a judgment was
entered den3ring a motion of the Com-
mission to set aside the order dissolving
the injunction, and after a trial on
the merits judgment was entered for the
plaintiff, declaring the order void. The
defendant appealed from both judgments
to the supreme court of the state. That
court reversed the decision below and
reinstated the injunction granted on the
defendant's prayer.
[398] It seems that the Banner Lum-
ber Company, a Louisiana corporation,
formerly owned timberlands, sawmills,
and this narrow-gauge railroad. The
' road was primarily a logging road, but
it may be assumed, to have done busi-
ness for third persons as a common
carrier. The Banner Lumber Company
sold the whole property to the Brooks-
Scanlon Lumber Company on November
1, 1905, the stockholders of which
obtained a charter for the railroad
as the Kentwood & Eastern Railway
Company on December 5 of the same
year. In the interim it was man-
aged by them with separate accounts.
An oral lease of the road was made
to the new company, and soon after-
wards the Brooks-Scanlon Lumber Com-
pany transferred its property to the
Brooks-Scanlon Company, the plaintiff
in error. On the first of July, 1906, the
Brooks-Scanlon Company made a written
lease of the road to the railway company,
and sold to it all the rolling stock and
personal property used in connection
with the road. Thereafter the road was
run as before, doing a small business as
a common carrier, but depending upon
t he oarr\'ing of logs and lumber to make
.^2 0
it a profitable rather than a losing con-
I cem. In course of time the timber of
the Brooks-Scanlon Company was cut
and it terminated the lease to the rail-
way company, which discontinued busi-
ness on April 22, 1918, with the assent
of the Railroad Commission, and sold its
rolling stock. At that time the Commis-
sion, being advised that it had no power,
did nothing more. But later, subsequent
to a decision by the supreme court in
May, it issued notice to the Brooks-Scan-
lon Company and the railway to show
cause why the road should not be oper-
ated, gave a hearing, and issued the
order complained of here. The supreme
court, after saying that the two corpora-
tions were one under different names,
stated that the only question left for
determination was whether .the plaintiff
could be compelled by the Commission
to- operate [399] its railroad, and con-
cluded that although the railroad
showed a loss, the test of the plaintiff's
rights was the net result of the whole
enterprise, — ^the entire business of the
corporation, — and on that ground made
its decree.
We are of opinion that the test ap-
plied was wrong under the decisions of
this court. A carrier cannot be com-
pelled to carry on even a branch of
business at a loss, ^much less the whole
business of carriage. On this point it
is enough to refer to Northern P. R. Co.
V. North Dakota, 236 U. S. 585, 595, 599,
600, 604, 59 L. ed. 735, 741, 743-745.
L.R.A.1917F, 1148, P.U-R.1915C, 277, 35
Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1,
and Norfolk & W. R. Co. v. West Vir-
ginia, 236 U. S. 605, 609, 614, 59 L. ed.
745, 747, 749, P.U.R.1915C, 293, 35 Sup.
Ct. Rep. 437. It is true that if a rail-
road continues to exercise the power
conferred upon it by a charter from a
state, the state may require it to fulfil
an obligation imposed by the charter,
even though fulfilment in that particular
may cause a loss. Missouri P. R. Co. v.
Kansas, 216 U. S. 262, 276, 278, 54 L.
ed. 472, 478, 479, 30 Sup. Ct. Rep. 330.
But that special rule is far from throw-
ing any doubt upon a general principle
too well established to need further
argument- here. The plaintiff may be
making money from its sawmill and lum-
ber business, but it no more can be com-
pelled to spend that than it can be com-
pelled to 8j)end any other money to
maintain a railroad for the benefit of
others who do not care to pay for it. If
251 U. S.
1919.
BOARD OF PUBLIC UTILITY COMRS. v. YXCHAUSTI Si CO. 399 401
the plaintiff be taken to have granted to
the public an interest in the use of the
railroad, it may withdraw its grant by
discontinuing the use when that use* can
be kept up only at a loss. Munn v. Illi-
nois, 94 I'. S. 113, 126, 24 L. ed. 77, 84.
The principle is illustrated by the many
oases in which the constitutionality of a
rate is shown to depend upon whether it
3delds to the parties concerned a fair
return.
While the decision below goes upon
the ground that we have stated, it is
thrown in at the end as a makeweight
that the order of the Commission caUs
upon the plaintiff "to submit a new
schedule for transportation which may
be operated at much less expense to it
than [400] the former schedule cost,
and at a profit for plaintiff." This is
merely the language of hope. We can-
not take it to be a finding of fact, for
we perceive nothing in the evidence
that would warrant such a finding. ' The
assumption upK>n which the court made
its ruling was that the plaintiff's other
business was successful enough to stand
a loss on the road.
Finally a suggestion is made in argu-
ment that the decision rested also upon
another ground that cannot be recon-
sidered here. At the end of the opinion it
is stated that the plaintiff has not peti-
tioned the Railroad Commission for leave
to discontinue this business, and that
until it has done so the courts are with-
out jurisdiction of the matter. It is not
im{K>ssible that this is an oversight, since
it seems unlikely that after the Commis-
sion has called the plaintiff before it on
the question, and, against its strenuous
<>bjection, has required it to go on, ^uch
an empty form can be required. But in
any case it cannot be meant that the
previous discussion, which occupies the
whole body of the opinion, is superfluous
and irrelevant to the result reached ; nor
ean the words be taken literally, since
the court proceeded to take jurisdiction
and reinstated an injunction in favor of
the defendant. Whatever may be the
forms required by the local law, it can-
not give the court or Commission power
to do what the Constitution of the Unit-
ed States forbids, which is what the
order and injunction attempt. Pennsyl-
vania R, Co. V. Public Service Commis-
sion, November 10, 1919, 250 U. S. 666,
63 L. ed. 1142, P.U.R.1920A, 909, 40 Sup.
€t. Bep. 36.
Decree reversed.
44 li. ed.
[401] BOARD OF PUBLIC UTILITY
COMMISSIONERS, Petitioners,
v.
YNCHAUSTI k COMPANY et al.
(See S. C. Reporter's ed. 401-407.)
Ck>n8titutlonal law — due process of
law — taking property without com-
pensation — regalatlngf Philippine
coastwise trade — free carriage of
mails.
1. Neither the guaranty of the Philip-
pine Bill of Rights of due process of law
nor its prohibition against the taking of
private property for public use without
compensation can be said to have been vio-
lated by a Philippine law which imposed
upon vessels engaged in the coastwise trade,
for the privil^e of so engaging, the duty
to cari^ the mails free to and from their
ports of touch, in view of the plenary power
which the Philippine government had al-
ways possessed and exercised, and which
was recognized in the A^t of Congress of
April 15, 1904, to limit the right to engage
in the coastwise trade to those who agree
to carry the mails free.
[For other cases, 'see Constitntlonal Law, IV.
hk 4; IV. V, 7, a, in Digest Sup. Ct 1908.]
Congress — constitutional limitations
upon power — Insular possessions.
2. The constitutional limitations of
power which operate upon the authority of
Congress when legislating for the United
States are inapplicable and do not control
Congress when it comes to exert, in virtue
of the sovereignty of the United States,
legislative power over territory not form-
ing a part of the United States, because not
incorporated therein.
[For other cases, see Territories, II. in Digest
Sap. Ct. 1908.]
[No. 190.]
Argued January 27, 1920. Decided March
1, 1920.
0
N WRIT of Certiorari to the Su-
preme Court of the Philii^me Is-
Note. — ^As to what constitutes due
process of law, generally — see notes to
People V. O'Brien, 2 L.R.A. 256; Kuntz
V. Sumption, 2 L.R.A. 655; Re G^annon,
5 L.R.A. 359; Ulman v. Baltimore, II
L.R.A. 224; Gilman v. Tucker, 13 L.R.A.
304; Pearson v. Yewdall, 24 L. ed. U.
S. 436; and Wilson v. North Carolina,
42 L. ed. U. S. 865.
Generally,' as to what constitutes a
taking of private property for public
use — see notes to Memphis & C. R. Co.
V. Birmingham, S. & T. R. Co. 18 L.R.A.
166; D. M. Osborne & Co. v. Missouri P.
R. Co. 37 L. ed. U. S. 156; Sweet v.
Rechel, 40 L. ed. U. S. 188; and A.
Backus, Jr. & Sons v. Fort Street Union
' Depot Co. 42 L. ed. U. S. 853.
317
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
lauds to review a judgment which re-
versed an order of the Board of Public
Utility Commissioners directing compli-
ance with a law which imposed upon
vessels engaged in the coastwise trade,
for the privilege of so engaging, the
duty to carry the mails free to and from
their ports of touch. Reversed.
The facts are stated in the opinion.
Mr. Chester J. Oerkin argued the
cause and filed a brief for petitioners:
The respondents having applied for
and accepted licenses authorizing them
to operate vessels in the Philippine
coastwise trade subject to the law re-
quiring them to carry mail without
charge, in consideration of privileges
and benefits accorded them by the gov-
ernment in granting them the right to
engage in said business, have no cause
for complaint regarding the conditions
prescribed and obligations voluntarily
assumed.
International & G. N. R. Co. v. An-
derson County, 246 U. *S. 424, 433, 62
L. ed. 807, 816, 38 Sup. Ct. Rep. 370;
Kansas City, M. & B. R. Co. v. Stiles,
242 U. S. Ill, 117, 61 L. ed. 176, 186,
37 Sup. Ct. Rep. 58; Com. v. Interstate
Consol. Street R. Co. 187 Mass. 436, 11
L.R.A.(N.S.) 973, 73 N. E. 530, 2 Ann.
Cas. 419, aflSrmed in 207 U. S. 79, 62 L.
ed. Ill, 28 Sup. Ct. Rep. 26, 12 Ann. Cas.
555; 2 Wyman, Pub. Serv. Corp. p.
1151 ; Pullman Co. v. Kansas, 216 U. S.
56, 66, 67, 54 L. ed. 378, 385, 386, 30
Sup. Ct. Rep. 232; Hanulton v. Dillin,
21 Wall. 73, 91, 22 L. ed. 528, 532.
A change of sovereignty does not af-
fect existing municipal law.
VUas V. Manila, 220 U. S. 345, 55 L. ed.
491, 31 Sup. Ct. Rep. 416; Compania
General de Tabacos v. Alhambra Cigar
& C. Mfg. Co. 249 U. S. 72, 75, 76, 63 L.
ed. 484, 488, 489, 39 Sup. Ct. Rep. 224.
If the present city of Manila is in
every kgal sense the successor of the
old, and as such entitled to the property
and rights of the predecessor corpora-
tion (Vilas V. Manila, 220 U. S. 345,
361, 55 L. ed. 491, 497, 31 Sup. Ct. Rep.
416), the same is certainly true of the
central government of the Philippine
Islands (Philippine Islands v. Monte de
Piedad, 35 Philippine, 728). • A right of
any validity before the cession is equal-
ly valid afterwards (Ely v. United
States, 171 U. S. 220, 223, 43 L. ed. 142,
143, 18 Sup. Ct. Rep. 840).
Under Spanish law the seashore is
the property of the state.
Ker V. Couden, 223 U. S. 268, 277, 56
L. ed. 432, 435, 32 Sup. Ct. Rep. 284.
328
The same legal doctrine obtains in
this countr}\
Shively v. Bowlby, 152 U. S. 1, 11, 38
L. ed. 331, 336, 14 Sup. Ct. Rep. 548.
The government of the Philippine Is-
lands possesses like plenary power over
its coastwise trade as does Congress over
the coastwise trade of the United Stated,
— that is, complete control over this
commerce. It may open and close ports
to vessels at will; and may entirely ex-
clude them from the privilege of carry-
ing on this trade.
Gloucester: Ferry Co. v. Pennsylvania,
114 U. S. 196, 29 L. ed. 158, 1 Inters.
Com. Rep. 382, 5 Sup. Ct. Rep. 826; The
William Bagaley, 5 Wall. 377, 409, 18
L. ed. 583, 590.
As no limitation has been' imposed
upon it in the premises, the Philippine
legislature has the same power as Con-
gress over the Philippine coastwise
trade. The constitutional inhibitions
regarding the deprivation of property
rights apply equally to both lawmaking
bodies.
Alaska Pacific Fisheries v. Alaska,
149 C. C. A. 262, 236 Fed. 59 ; Ochoa v.
Hernandez y Morales, 230 U. S. 139, 57
L. ed. 1427, 33 Sup. Ct. Rep. 1033.
With reference to the exercise of an-
other governmental power (the deporta-
tion of aliens), this court in Tiaco v.
Forbes, 228 U. S. 549, 57 L. ed. 960, 33
Sup. Ct. Rep. 585, held that, as Con-
gress is not prevented by the Constitu-
tion, the Philippine government can-
not be prevented by the Bill of Rights
incorporated in the Act of July 1,
1902.
In enacting laws for the Philippines,
Congress and the Philippine legislature,
to which it has del^ated general legis-
lative power, are limited only by the*
provisions of the fundamental law; they
have all the powers, both of national
and of municipal government, since
there can be no conflict with the re-
served power of the states.
Shivelv V. Bowlby, 152 U. S. 1, 38 L.
ed. 331, 14 Sup. Ct. Rep. 648 ; Wilson v.
Shaw, 204 U. S. 24, 35, 51 L. ed. 351,
357, 27 Sup. Ct. Rep. 233.
The action of each and all of the co-
ordinate departments of our govern-
ment in dealing with the Philippine Is-
lands clearly shows that it was not the
intention to deprive the government of
the latter of authority formerly exer-
cised over its coastwise trade, or of the
usual powers possessed by the Federal,
state, and territorial governments re^
specting the granting of licenses to pub-
lic service corporations.
251 V. S.
1019.
BOARD OF PL'HJ.IC ITILITV COMKS. v. YNCHAUSTl & CO.
Perez v. Fernandez, 202 U. 8. 80, 50
L. ed. 942, 26 Sup. Ct. Rep. 5(U.
The carnage of the mails is a govern-
ment monopoly in which no element of
competition can enter; it is a function
assumed and controlled by the state.
There is no analogy between the trans-
portation of mail and that of freight or
passengers. The basis for the distinc-
tion made is obvious and folly justified.
It has been held that a transportation
company is not a common carrier in re-
spect to such service when carrying
mail — either as a duty imposed by a
statute or imder a contract with the
government.
Bankers' Mut. Casualty Co. v. Minne-
apoUs, St. P. & S. Ste. M. R. Co. 65
L.R.A. 397, 54 C. C. A. 608, 117 Fed.
434; United States v. Hamburg- Amerir
kanische Packetfahrt Actien Gesell-
schaft, L.R.A.1917C, 1103, 128 C. C. A.
496, 212 Fed. 43; Atchison, T. & S. F.
R. Co. v. United States, 225 U. S. 640,
649, 56 L. ed. 1236, 1239, 32 Sup. Ct.
Rep. 702.
Bvery political entity endowed with
general governmental powers possesses
authority to regulate the transaction of
local business within its borders. The
source of this authority is said to be the
police power, which inheres in govern-
ments of all grades.
Gundling v. Chicago, 177 U. S. 183,
188, 44 L. ed. 725,- 728, 20 Sup. Ct. Rep.
6^; Wiggins Ferry Co. v. East St.
Louis, 102 m. 567; License Tax Cases,
5 Wall. 462, 470, 18 L. ed. 497, 500.
A license or franchise which author-
izes its recipient to engage in a given
business is in the nature of a special
privilege, not a right common to all.
Gibbons v. Ogden, 9 Wheat. 1, 214, 6
L. ed. 23, 74.
A legitimate distinction exists be-
tween the granting of free service to the
state and to private individuals.
Sutton V. New Jersey, 244 U. S. 258,
61 L. ed. 1117, P.U.R.1917E, 682, 37 Sup.
Ct. R^. 508; Willcox v. Consolidated
Gas Co. 212 U. S. 19, 53 L. ed. 382, 48
L.R.A.(N.S.) 1134, 29 Sup. Ct. Rep. 192;
Interstate ' Commerce Commission v.
Baltimore & 0. R. Co. 145 U. S. 263, 36
L. ed. 699, 4 Inters. Com. Rep. 92, 12
Sup. Ct. Rep. 844; National Water-
works Co. v. School Dist. 4 McCrary,
198, 48 Fed. 523; New York Teleph. Co.
V. Siegel-Cooper Co. 202 N. Y. 502, 36
L.R.A.(N.8.) 560, 96 N. E. 109; Belfast
V. Belfast Water Co. 115 Me. 234, L.R.A.
1917B, 908, .P.U.R.1917A, 313, 98 Atl.
738; Superior v. Douglas Count v Teleph.
Co. 141 Wis. 363, 122 N. W. 1023;
• 4 L. ed.
Boise City v. Artesian Hot & Cold
Water Co. 4 Idaho, 351, 39 Pac. 562.
Every vessel employed in navigation
must have a register and the protection
of a flag.
Whitens Bank v. Smith (White's
Bank v. The Robert Enmiett) 7 Wall.
646, 655, 656, 19 L. ed. 211, 213.
The right to engage in the coastwise
trade is everywhere treated as a valui
able privilege.
Gibbons v. Ogden, 9 Wheat. 1, 232, 6
L. ed. 23, 78.
Long-continued legislative usage is of
controlling weight upon the constitu-
tionality of an act.
Rhode Island v. Massachusetts, 4
How. 591, 638, 11 L. ed. ni6, 1137;
United States v. Midwest Oil Co. 236 U.
S. 459, 472, 473, 59 L. ed. 673, 680, 681,
35 Sup. Ct. Rep. 309; Downes v. Bid-
well, 182 U. S. 244, 45 L. ed. 1088, 21
Sup. Ct. Rep. 770; Great Northern R.
Co. V. United States, 149 C. C. A. 485,
236 Fed. 433; ling Su Fan v. United
States, 218 U. S. 302, 54 L. ed. 1049, 30
L.R.A.(N.S.) 1176, 31 Sup. Ct. Rep. 21;
Ibanez de Aldecoa y Palet v. Hong-
kong & S. Bkg. Corp. 246 U. S. 621, 626,
627, 62 L. ed. 907, 908, 38 Sup. Ct. Rep.
413.
The customs and usages of a commu-
nity are proper factors for consideration
in determining the constitutionality of
legislation.
Interstate ConsoL Street R. Co. v.
Massachusetts, 207 U. S. 79, 87, 52 L.
ed. Ill, 115, 28 Sup. Ct. Rep. 26, 12 Ann.
Cas. 555; State v. Sutton, 83 N. J. L.
49, 84 Atl. 1059, affirmed in 244 U. S.
258, 61 L. ed. 1117, P.U.R.1917E, 682,
37 Sup. Ct. Rep. 508.
He who would successfully, assail a
law as unconstitutional must come show-
ing that the feature of the act com-
plained of operates to deprive him of
some constitutional right (Aikens v.
Kingsbury, 247 U. S. 484, 489, 62 L. ed.
1226, 1229, 38 Sup. Ct. Rep. 558), and
must bring himself within the class af-
fected by the unconstitutional feature
(Arkadelphia Mill. Co. v. St. Louis
Southwestern R. Co. 249 U. S. 134, 149,
63 L. ed. 517, 526, P.U.R.1919C, 710,
39 Sup. Ct. Rep. 237).
The test for determining whether
legislation is confiscatory is its effect
upon the entire revenues of the utility
concerned. It is not enough to show
that no profit may come from a partic-
ular service.
New York ex rel. New York & Q. Gas
Co. V. McCall, 245 U. S. 345, 62 L. ed. 337,
P.r.R.1918A, 792, 38 Sup. Ct. Rep. 122;
829
(SUPREME COURT OF THE UNITED STATES.
»CT. Tebm,
Puget Sound Traction, Light & P. Co.
V. Reynolds, 244 U. S. 574, 61 L. ed.
1325, 5 A.L.R. 1, P.U.R.1917F, 57, 37
Sup. Ct. Rep. 705; Willcox v. Consoli-
dated Gas Co. 212 U. S. 19, 53 L. ed.
382, 48 L.R.A.(N.S.) 1134, 29 Sup. Ct.
Rep. 192, 15 Ann. Cas. 1034; Com. v.
Boston & N. Street R. Co. 212 Mass. 82,
98 N. E. 1075.
It is not even claimed that the re-
spondents are not securing adequate re-
turns from their business. And the
matter of the different status of the gov-
ernment and the individual patron is
one in which these carriers rightfully
have no interest as long as they secure
the requisite return upon their property.
Willcox V. Consolidated Qas Co. 212
U. S. 19, 54, 53 L. ed. 382, 400, 48 L.R.A.
(N.S.) 1134, 29 Sup. Ct. Rep. 192, 15
Ann. Cas. 1034; Re Portland Water
Dist P.U.R.1917D, 915.
One cannot invoke to defeat a law an
apprehension of what might be done
tmder it, and which, if done, might not
receive judicial approval.
Lehon v. Atlanta, 242 U. S. 53, 56, 61
L. ed. 145, 150, 37 Sup. Ct. Rep. 70.
The legislative branch is primarily
invested with authority to determine
what laws are in the public interest.
Dominion Hotel Co. v. Arizona, '249 U.
S. 265, 268, 63 L. ed. 597, 598, 39 Sup.
Ct. Rep. 273; Hebe Co. v. Shaw, 248* U.
S. 297, 303, 63 L. ed. 255, 258, 39 Sup.
Ct. Rep. 125; Tanner v. Little, 240 U. S.
369, 386, 60 L. ed. 691, 702, 36 Sup. Ct.
Rep. 379.
Mr. Edward S. Bailey also argued the
cause for petitioners.
Mr. Alexander Britten argued the
cause, and, with Mr. Evans Browne,
filed a brief for respondents:
The specific act and legislation in
question, resulting in the taking of re-
spondents' property, is null and void
and of no effect, under the provisions of
the Philippine Organic Act of July 1,
1902, as amended, containing a Bill of
Rights for the Philippine Islands, for-
bidding the taking of private property
for public use without just compensa-
tion.
Kepner v. United States, 195 U. S.
100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797,
1 Ann. Cas. 655; Serra v. Mortiga, 204
U. S. 470, 51 L. ed. 571, 27 Sup. Ct.
Rep. 343; Carino v. Philippine Islands,
212 U. S. 449, 53 L. ed. 449, 29 Sup. Ct.
Rep. 334; Weems v. United States, 217
U. S. 349, 54 L. ed. 793, 30 Sup. Ct. Rep.
544, 19 Ann. Cas. 705; Railroad Commis-
sion Cases, 116 U. S. 331, 29 L. ed. 644,
3S0
6 Sup. Ct. Rep. 334, 388, 1191; Dow
V. Beidelman, 125 U. S. 689, 31 L. ed.
841, 2 Inters. Com. Rep. 56. 8 Sup. Ct.
Rep. 1028; Chicago, M. & St. P. R. Co.
V. Minnesota, 134 U. S. 418. 458, 33 L.
ed. 970, 981, 3 Inters. Com. Rep. 209, 10
Sup. Ct. Rep. 462, 702; Reagan v.
Farmers' Loan & T. Co. 154 U. S. 362,
38 L. ed. 1014, 4 Inters. Com. Rep. 560,
14 Sup. Ct. Rep. 1047: Ex parte Gard-
ner, 84 Kan. 264, 33 L.R.A. (N.S.) 956,
113 Pac. 1054; State v. Missouri, K &
T. R. Co. 272 Mo. 507, L.R.A.1915C, 778,
172 S. W. 35, Ann. C^s. 191 6E, 949;
Lake Shore & M. S. R. Co. v. Smith, 173
U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep.
565; Elliott, Railroads, § 672; Atchison,
T. & S. P. R. Co. V. Campbell, 61 Kan.
439, 48 L.R.A. 251, 78 Am. St. Rep. 328,
59 Pac. 1051 ; Atchison, T. & S. F. R. Co.
V. United States, 225 U. S. 640, 56 L. ed.
1236, 32 Sup. Ct. Rep. 702; Great North-
em R. Co. V. United States, 149 C. C. A.
485, 236 Fed. 433; Lake Superior & M.
R. Co. V. United States, 93 U. S. 442,
23 L. ed. 965; United States v. Union P.
R. Co. 249 U. S. 354, 63 L. ed. 643, 39
Sup. Ct. Rep. 294; Willcox v. Consoli-
dated Gas Co. 212 U. S. 19, 53 L. ed.
382, 48 L.R.A.(N.S.) 1134, 29 Sup. Ct.
Rep. 192, 10 Ajin. Cas. 1034; Sutton v.
New Jersey, 244 U. S. 258, 61 L. ed.
1117, P.U.R.1917E, 682, 37 Sup. Ct. Rep.
508.
The act in question .gains no support
or validity from the Spanish laws and
customs prior to the assumption of
sovereignty by the United States and
the enactment by Congress of the Phil-
ippine Bill of Rights.
Kepner v. United States, 195 U. S.
100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797,
1 Ann. Cas. 655; Weems v. United
States, 217 U. S. 349, 54 L. ed. 793, 30
Sup. Ct. Rep. 544, 19 Ajin. Cas. 705;
Tiaco V. Forbes, 228 U. S. 549, 57 L. ed.
960, 33 Sup. Ct. Rep. 585.
The legislation here in question is not
aided by any alleged conduct or acqui-
escence on the part of respondents, nor
are respondents foreclosed from con-
testing .the ill validity of such legisla-
tion.
Interstate Consol. Street R. Co. v.
Massachusetts, 207 U. S. 7t>, 52 L. ed.
Ill, 28 Sup. Ct. Rep. 26, 12 Ann. Cas.
555; Kansas City, M. & B. R. Co. v.
Stiles, 242 U. S. Ill, 61 L. ed. 376, 37
Sup. Ct. Rep. 58; International & G.
N. R. Co. V. Anderson County, 246 U. S.
424, 62 L. ed. 807, 38 Sui>. Ct. Rep. 370.
By reason of the aet m question re^
spondents are deprived of definite and
unmistakable proi>ertv rights, for which
251 r. s.
ituu.
BOARD OF PLBLK- UTILITY COMRS. v. YXCHAUSTl & CO. 402, 4U3
they receive no compensation what-
ever.
Friend v. United States, 30 Ct CI. 94;
Pumpelly v. Qreen Bay & M. Canal Co.
13 Wall. 166, 20 L. ed. 557; West River
Bridge Co. v. Dix, 6 How. 507, 12 L. ed.
535; Peabody v. United States, 43 Ct.
CL 5; Sprii^ Valley Waterworks v.
San Francisco, 124 Fed. 574; Atchison,
T. & S. F. R. Co. V. Campbell, 61 Kan.
439, 48 L.R.A. 251, 78 Am. St. Rep. 328,
59 Pac. 1051; New York ex rel. New
York & Q. Gas Co. v. McCaU, 245 U. S.
346, 62 L. ed. 337, P.U.R.1918A, 792, 38
Sup. Ct Rep. 122; Puget Sound Trac-
tion, Light & P. Co. v. Reynolds, 244 U.
S. 574, 61 L. ed. 1325, 5 A.LJI. 1, P.U.R.
1917F, 57, 37 Sup. Ct. Rep. 705; WiU-
cox V. Consolidated Gas Co. 212 U. S.
19, 53 L. ed. 382, 48 L.R.A.(N.S.) 1134,
29 Sup. Ct. Rep. 192, 15 Ann. Cas. 1034;
Monongahela Nav. Co. v. United States,
148 U- 8. 312, 327, 37 L. ed. 483, 468,
13 Sup. Ct Rep. 622; Charles River
Bridge v. Warren Bridge, 11 Pet. 420,
571, 9 L. ed. 773, 833; Isom v. Mississippi
C. B. Co. 36 Miss. 300 ; Re Rugheimcr, 36
Fed. 376; District of Columbia v. Pros-
pect Hill Cemetery, 5 App. D. C. 497;
Maryland & W. R. Co. v. Hiller, 8 App.
D. C. 289.
[402] Mr. Chief Justice White de-
livered the opinion of the court:*
Was error committed by the court
below in deciding that the Philippine
law, which imposed upon vessels engaged
in the coastwise trade, for the privilege
of so engaging, the duty to carry the
mails free to and from their ports of
touch, was void for repugnancy to the
Philippine Bill of Rights, is the ques-
tion which comes before us for decision
as the result of th^ allowance of a writ
of certiorari.
The issue will be clarified by a brief
reference to the antecedents of the
controversy. Under the Spanish law as
enforced in the Philippine Islands be-
fore the American domination the duty
of free carriage as stated existed* Upon
the cession of the Islands to the Unit-
ed States and the establishment there
of a military government, the existing
condition of the subject was continued
in force. It thus continued until the
government passed into the hands of
the Philippine Commission and was by
that body specifically recognized and its
further enforcement directed. Thus it
prevailed without interruption until
1902, when the first act of Congress,
providing a general system of civil gov-
ernment for the Islands, was passed,
61 li. ed.
and it further remained operative until
1904, when Congress passed the act of
that year, specifically dealing with the
authority of the Philippine government
to provide for the coastwise trade, as
follows (Act of April 15, 1904, 33 Stat,
at L. 181, chap. 1314) :
''Until Congress shall have authorized
the registry as vessels of the United
States of vessels owned in the Philip-
pine Archipelago the government of the
Philippine Islands is hereby autHorized
to adopt, from time to time, and en-
force regulations governing the trans-
portation of merchandise and passen-
gers between ports or places in the
Philippine Archipelago."
In fact, the continued operation of the
obligation to [403] carry the mails free,
which arose from engaging in the coast-
wise trade, it may be taken for granted,
remained in force until 1916, since the
obligation was recognized as being yet
in existence and the duty to ei^orce
it for the future was directed by article
310 of the Administrative Code of that
year, in which Code were also stated the
existing provisions as to the registry,
licensing, etc., of Philippine vessels.
That the requirement continued opera-
tive thereafter results from the further
fact that it was re-expressed in § 658
of the Administrative Code of 1917,
which Code was adopted to meet the
exigencies created by the later Organic
Act of the Philippine Islands, enacted
by Congress August 29, 1916 (39 Stat,
at L. 545, chap. 416, Comp. Stat. 3804a,
Fed. Stat. Anno. Supp. 1918, p. 592).
We have not stopped to refer to the
Spanish law, to the military orders, to
the reports of civilian officials, and to
the action of the Philippine Commis-
sion on the subject, as above stated,
because the references to them were
made below in Marginal Note A, which
Mr. Justice Carson made a part of his
dissenting opinion ( — Philippine,* — ).
It is undoubted that during all this
period vessels were permitted to engage
in the coastwise trade only upon the is-
suance to and the acceptance by them
of licenses the enjoyment of which de-
pended upon the performance of the
legal duty of the free carriage of the
mails.
The respondents were in 1916 the
owners of steam vessels of Philippine
registry, licensed to engage in the coast-
wise trade upon the condition stated,
and the controversy before us arose in
consequence of a notice given by them
to the Philippine director of posts that
after a date designated they would no
831
-MI3-406
SIPKKME COURT OF THE UNITED STATES.
Oct. Term,
longer comply with the duty to carry
the mails free. That official sought its
enforcement at the hands of the Board
of Public Utility Commissioners. Be-
fore that board the respondents, the li-
censees, relied upon the assertion that
the section of the Administrative Code
imposing the duty of free mail carriage
was in conflict with the provisions of the
Philippine Bill of Rights, [404] guaran-
teeing due process and prohibiting the
taking of private property for public
use without just compensation. The
board overruled the defense and award-
ed an order directing compliance with
the law, and therefore prohibited the
carrying out of the intention to dis-
continue. In reaching this conclusion
the board held that its sole duty was
to ascertain whether the law imposed
the obligation to carry the mails free,
and if it did, to enforce it without re-
gard to the defense as to the repug-
nancy of the statute to the Bill of
Rights, since that question was proper
only to be disposed of by judicial ac-
tion.
The supreme court, to which the con-
troversy was taken, not differing as to
the existence of the statutory duty, re-
versed the order on the ground that
such duty could not be exacted consist-
ently with the clauses of the Bill of
Rights relied upon. No opinion stating
the reasons for this conclusion was ex-
pressed, but a member of the court dis-
sented and stated his reasons in an
elaborate opinion.
It is impossible to conceive how either
the guaranty by the Bill of Rights of
due process, or its prohibition against
the taking of private plroperty for pub-
lic use without compensation, can have
the slightest application to the case if
the Philippine government possessed
the plenary power, under the sanction
of Congress, to limit the right to en-
gage' in the coastwise trade to those
who agree to carry the mails free. It
must follow that the existence of such
power is the real question which is re-
quired to be decided. In saying this
we put out of view as obviously er-
roneous the contention that, even
though the Bill of Rights applied and
limited the authority of the government
60 as to prevent the exaction by law
of the free carriage of the mails, that
result is not I4)plicable here, because,
by accepting a license, the shipowners
voluntarily assumed the obligation of
free carriage. Southern P. Co. v. Den-
ton, 146 U. S. 202, 207, 36 U ed. 943,
945, 13 Sup. Ct. Rep. 44; Western U.
332
Teleg. Co. v. Kansas, 216 U. S. 1, 27-30,
54 L. ed. 355, 366, 367, 30 Sup. Ct. Rep.
190; Pullman Co. v. [405] Kansas, 216
U. S. 56, 70, 54 L. ed. 378, 387, 30 Sup.
Ct. Rep. 232; Meyer v. Wells, F. & Co.
223 U. S. 298, 300, 301, 56 L. ed. 445,
447, 448, 32 Sup. Ct. Rep. 218; Kansas
City, Ft. S. & M. R. Co. v. Botkin, 240
U. S. 227, 233, 234, 60 L. ed. 617, 619,
620, 36 Sup. Ct. Rep. 261; Western U.
Teleg. Co. v. Foster, 247 U. S. 105, 114,
62 L. ed. 1006, 1016, 1 A.L.R. 1278,
P.U.R.1918D, 865, 38 Sup. Ct. Rep. 438.
To what extent the Bill of Bights
limits the authority of the government
of the Philippine Islands over the sub-
ject of the free carriage of the mails
is, then, the determinative factor. Be-
yond doubt Congress, in providing a Bill
of Rights for those Islands, intended its
provisions to have.thbre the settled con-
struction they have received in the
United States. But it must be and is
indisputable that when the provisions
of such Bill come to be applied to gov-
ernmental powers in the Philippine Is-
lands, the result of their application
must depend upon the nature and char-
acter of the powers conferred by Con-
gress upon the government of the Is-
lands. To illustrate: where a particular
activity in the Philippine Islands is, as
the result of power conferred by Con-
gress, under governmental control to
such an extent that the right to engage
in it can be made by the Philippine gov-
ernment dependent upon the perform-
ance of a particular duty, it is obvious
that the exaction of such a duty, as such
prerequisite condition, can be neither a
denial of due process nor a taking of
'property without compensation.
Coming to the proposition to which
the case is therefore lUtimately reduced,
we see no reason to doubt that the
Philippine government had the power
to deal with the coastwise trade so as
to permit its enjoyment only by those
who were willing to comply with the
condition as to free mail carriage; and
therefore that no violation of individ-
ual right could have resulted from giv-
ing effect to such condition. We reach
this conclusion because the possession
and exercise of such power in the Is-
lands before their cession to the United
States, its exertion under the military
government of the United States whieh
followed the cession, and its continu-
ance by every form of civil [406] gov-
ernment created by Congress, for the
Islands, compel to that view in the ab-
sence of any law expresslv providing to
351 r. 8.
1919.
UNITED STATK8 v. THOMPSON.
406, 407
the contrary, or which, by reasonable
implication, leads to that result.
Indeed, the conclusion that the power
was possessed does not rest alone upon
The general consideration stated, since
it is additionally sustained by recalling
the express provision of the Act of Con-
gress of 1904, to which we have previ-
ously referred, giving authority for the
registry of Philippine vessels, and rec-
o^izing the power of the government
of the Philippine Islands to deal
with the coastwise trade, — an authority
which, as it contains no provision tend-
ing to the oontraryi must be construed
as applicable to and sanctioning the
power which had been exerted from the
very inception of the American domi-
nation, to provide as to that trade for
the free carriage of the mails. In other
wordsy in view of the power to impose
the burden in question, exerted in the
Philippine Islands from the beginning,
and which was then being exerted under
the authority of Congress, the confer-
ring by Congress upon the Philippine
government by the Act of 1904 of the
authority to make regulations concern-
ing sueh trade was a recognition of the
right to make the regulation theretofore
made, which was then in force, and
which continued to be in force up to the
time of the bringing of this suit, without
disapproval or change by Congress.
When the authority which the Act of
1904 gave is borne in mind, it makes it
clear that the mistake which underlies
the entire argument as to the nonexist-
ence of power here relied upon arises
from the erroneous assumption that the
eoBstitutional limitations of power
which operate upon the authority of
Congress when legislating for the Unit-
ed States are applicable and are con-
trolling upon Congress when it comes to
exert, in virtue of the sovereignty of the
United States, l^slative power over
territory not forming part of the United
States, because not [407] incorporated
therein. Downes v. Bid well, 182 U. S.
244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770 ;
Hawaii v. Mankichi, 190 U. S. 197, 220,
47 L. ed. 1016, 1023, 23 Sup. Ct. Rep.
787, 12 Am. Crim. Rep. 465; Dorr v.
United States, 195 U. S. 138, 49 L. ed.
128, 24 Sup. Ct. Rep. 808, 1 Ann. Cas.
697; Dowdell v. United States, 221 U.
S. 325, 332, 55 L. ed. 753, 757, 31 Sup.
Ct. Rep. 590; Ocampo v. United States,
234 U. S. 91, 98, 58 L. ed. 1231, 1234,
34 Sup. Ct. Rep. 712.
The error which thus underlies the
whole argument becomes more conspicu- 1
ously manifest by recalling that Con-
64 li. ed.
gress, in the Act of 1904, expressly pro-
vided that the authority which that act
gave should exist only until Congress
should otherwise provide; and, besides,
that before the passage of that act, the
Act of July 1, 1902, § 86 (32 Stat, at
L. 691, 712, chap. 1369, Comp. Stat.
§ 3804, 7 Fed. Stat. Anno. 2d ed. pp.
1133, 1150), provided "that aU laws
passed by the government of the Philip-
pine Islands shall be reported to Con-
gress, which hereby reserves the power
and authority to annul the same."
Judgment reversed.
UNITED STATES, Plff. in Err.>
V.
JOSIAH V. THOMPSON.
(See S. C. Reporter's ed. 407-417.)
Appeal — review by government Id
criminal case — order quashing In-
dictment.
1. A mling taking the form of a grant
of a motion to quash an indictment on the
ground that the charges, having been sub-
mitted to a previous grand jury which
failed to indict, were resubmitted to a
later grand jury by the Federal district
attorney without leave of court first ob-
tained, is a "decision or judgment sustain-
ing a special plea in bar when the defend-
ant has not been put in jeopardy/' within
the meaning of the Criminal Appeals Act
Note. — On appellate review by govern-
ment in criminal case — see notes to
United States v. Comyns, 63 L. ed. V.
S. 287; United States v. New South
Farm & Home Co. 60 L. ed. U. S. 890;
and United States v. Stevenson, 54 L.
ed. U. S. 153.
Bight of grand jury to reconsider, or
district attorney to resubmit, a
charge that has onoe been acted upon
by the grand jury and ''not a true
bill" found.
It is a generally accepted princij^e, in
the absence of a contrary statutory rule»
that the fact that a grand jury has once
investigated an alleged offense and re-
fused to indict therefor does not invali-
date an indictment for the same ofitense,
subsequently returned by the same or a
subsequent grand jury. United States
V. Martin, 50 Fed. 918; State v. Green,
111 Mo. 585, 20 S. W. 304; Fitch v.
State, 18 S. C. L. (2 Nott. & M'C.) 558.
The fact that a grand jury which had
voted not to find a bill against the ae-
cused, afterwards reconsidered its de-
termination and voted to find the bill
SIPKEMK COURT OF THE UNITED STATES.
Oct. Term,
of Mardi 2, 1907, granting the government
a right to review in a criminal case.
(For other cases, see Appeal and Error, I. c,
in Digest Sup. Ct. 190 S.]
Grand Jury — powers — exhausting by
failure to act.
2. The power and duty of the grand
jury to investigate is Original and com-
plete, susceptible of exercise upon its own.
motion, and upon such knowledge as it
may derive from any source which it may
deem proper, and is not, therefore, depend-
ent for its exertion upon the approval or
disapproval of the court, and such power
is continuous, and is therefore not exhaust-
ed or limited by adverse action taken by
a grand jury or by its failure to act, and
hence may thereafter be exerted as* to the
same instances by the same or a subse-
quent grand jury.
[For other cases, see Grand Jury, in Digest
Sup. Ct. 1908.]
District attorney — powers — presenting
charges without leave of court.
3. The United States district attorney,
in virtue of his official duty, and to the
extent that criminal charges are susceptible
of being preferred by information, has the
power to present such informations without
the previous approval of the court, and his
duty to direct the attention of the grand
jury to crimes which he thinks have been
committed is coterminous with the au-
thority of the grand jury to entertain such
charges.
[For other cases, see District Attorney, III.
in Digest Sup. Ct. 1908.]
without, SO far as appears, any new evi-
dence being presented, furnishes no
ground for quashing fhe indictment.
United States v. Simmons, 46 Fed. 65.
It is stated in Knott v. Sargent, 125
Mass. 95, that the mere retigm of "no
bill" by the grand jury does not oper-
ate as a l^al discharge of the accused,
and does not necessarily import that the
same or a subsequent grand jury may
not find a bill upon the same complaint.
It appears, however, in this case, that
because of the absence of material wit-
uesses, the charge against the accused
was not acted upon, but was continued
or postponed.
But it has been held that a grand jury
which has returned a bill with the in-
dorsement "not a true bill," of which
finding a record is made, cannot. have
the bUl returned to it for reconsidera-
tion, and by striking out the word "not"
make of such bill a valid indictment.
State V. Brown, 81 N. C. 568. It is
stated ii^ this case that in every such
instance a new bill should be sent, and it
is assumed that the grand jury has au-
tnority to reconsider its action and
return a new bill. In the subsequent
case of State v. Harris, 91 N. C. 656, it
is expressly held that after a bill has
been "ignored" by a grand jury, a new
bill may be sent for the same offense
and before the same grand jury, and ad-
ditional evidence laid before the g^and
jury to supi^ort it, upon which the grand
jury may return a true bill. The hold-
ing in State v. Harris corresponds with
an obiter statement in State v. Branch,
68 N. C. 186, 12 Am. Rep. 633. There is,
however, the qualification in the state-
ment of State V. Branch, that the state
solicitor, upon a suggestion to the
court that he has procured further evi-
dence, may be allowed to send another
bill to the same grand jury, charging
the same offense, thus making the con-
334
sent of the court necessary to a resub-
mission.
And see the Pennsylvania cases, infra.
In England it has been held that if
the grand jury ignores a bill, it cannot
find another bill against the same per-
son, for the same offense, at the same
assizes or sessions. Reg. v. Humphreys,
Car. & M. 601; Reg. v. Austin, 4 Cox,
C. C. 385. On the contrary, it has been
held in that jurisdiction that a grand
jury which has ignored a bill may find
another for the same offense. Reg. ▼.
Simmonite, 1 Cox, C. G. 30; Reg. v.
Newton, 2 Moody & R. 503. The court
in Reg. v. Simmonite states that though
some inconvenience may arise by per-
mitting a gn^and jury which has ignored
one bill to find another for the same of-
fense, there is no objection in principle
to its being done; that it is clear an-
other bill might *be sent to another
grand jury, and there is no reason why
it should not be sent before the same.
By statute in some states a dismissal
of a charge by the grand jury is a bar to
any subsequent prosecution.
In Georgia the finding of "no bOls" by
grand juries at two several* terms is a
bar. The Code provision that two "no
bills" shall be a '^ar to another indict-
ment unless they have been procured by
the fraudulent conduct of the person
charged, on proof of which or of newly
discovered evidence the judge may allow
a third bill to be presented, found, and
prosecuted," does not entitle the person
charged to an order that he be dis-
charged from the offense or crime there-
in contained, and go hence without bail,
since such an order would, perhaps, if
g^ranted, bar a third indictment, even
under the conditions provided for.
Christmas v. State, 53 Ga. 81.
The highest evidence of the action of
the grrand jur\' in such a matter is the
return of a "no bill," entered upon the
261 U. 8.
191J.
UNITED STATES v. THOMPSON.
Dis^Crict attorney — second presentation
of charge to grand jury — leave of
crourt.
4. A Federal district attorney may,
without first obtaining leave of court, pre-
sent to one grand jury ehargei^ which a
previous grand jury has ignored.
(For other cases, see District Attorney, III. in
Digest Sup. Ct. 1908.)
Federal courts — rules of procedure —
criminal prosecution — state prac-
tice.
5. A state rule of law which forbids
Hr district attorney, without first obtaining
leave of court, to present to one grand jury
charges which a previous grand jury has
ignored, can have no application by virtue
of U. S. .Rev. Stat. § 722, to a prosecution
in the Federal courts for a crime against
the United States, committed vfithin such
state, in view of the existence of a con-
trolling Federal rule which would be over-
thrown by applying the state rule.
tFor other cases, see Courts, V. e, 8; VII. c,
21, In Digest Sup. Ct. 1908.]
[No. 260.]
Argued January 27 and 28, 1920. Decided
March i; 1920.
IN ERROR to the District Court of the
United States for the Western Dis-
trict of Pennsylvania to review a judg-
ment granting a motion to quash an in-
dictment on the ground that the charges,
court's minutes; but in the absence of
this degree of proof resort may be had
to other competent testimony. Individ-
ual grand jurors having knpwledge of
the facts are competent witnesses to
testify that a bill or presentment had
been preferreii^ voted upon, and re-
turned, "not proved." Elliott v. State,
1 Ga. App. H3, 67 S. JS. 972.
A statute governing the resubmission
of a chai^ to the same or another
grand jury after a demurrer is sus-
tained to an indictment, which provides
that in case the next grand jury fails to
find a new indictment, the accused shall
be discharged, does not make the fail-
ure of the next grand jury to indict a
bar to further prosecution; an indict-
ment returned by the fourth succeeding
grand jurv is sufficient. Ex parte Job,
17 Nev. 184, 38 Pac. 699.
But an indictment returned by a
grand jury after it 'had made a report
of "no true bill*' was held voidable in
State V. Towers, 37 Nev. 94, 139 Pac.
776, Ann. Cas. 1916D, 269, although the
charge was ordered resubmitted by the
court.
The necessity of an order of court to
authorize a consideration of an offense
which had once been investigated and no
indictment found has not been consid-
ered in many cases. The necessity of
an order of court raises two questions:
(1) The right of the grand jury on its
own motion to consider an offense which
has once been investigated and no in-
dictment found; and (2) the right of
the district or prosecuting attorney to
again submit the matter for consider-
ation.
A statute providing that the dismis-
sal by a grand jury of a chaige does not
prevent it being again submitted to the
grand jur^' as often as the court may di-
rect, but without such direction it can-
not again be submitted, does not, ;
•4 li. ed.
according to some courts, prevent the
grand jury on its own motion consider-
ing a charge that has once been dis-
missed. This has been held where the
grand jury which returned the indict-
ment was the same jury which had
previously dismissed the charge (Mar-
shall V. State, 84 Ark. 88, 104 S. W. 934),
and also where the indictment was re-
turned by a grand jury subsequent to
the jury which investigated and dis-
missed the charge (State v. Collis, 73
Iowa, 542, 85* N. W. 625; State v.
Brown, 128 Iowa, 24, 102 N. W. 799).
The reasoning by which the courts
have reached this conclusion is well ex-
pressed by the supreme court of Iowa,
in State v. Collis, supra, in language
which is approved by the supreme court
of Arkansas in Marshall v. State, 84
Ark. 88, 104 S. W. 934, as follows:
"The question in the case is whether the
last clause of the section prohibits the
grand jury from finding an indictment
on a charge which has once been dis-
missed, but which has not been resubmit-
ted to it by the court. We think it does
not. The provision relates merely to
the matter of the submission of such
causes to the grand jury. After they
have been once dismissed they can be re-
submitted only by direction of the
court; that is, the court can require the
grand jury to again investigate the
charge only by directing it to be resub-
mitted. But the power of the grand
jury in the premises is not dependent
upon the order or direction of the
court; its powers and duties are pre-
scribed by other provisions of statute."
The Iowa court then refers to the duty
of the grand jury to make diligent in-
quiry and prove presentment of all pub-
lic offenses committed or triable within
the county of which they have or can
obtain legal evidence, and states that
3n.5
SUPREME COURT OF THE UNITED STATES.
Oct. Te&m,
having been submitted to a previous
grand jury which failed to indict, were
resubmitted to another grand jury by
the Federal district attorney without
leave of court first obtained. Reversed
and remanded for further proceedings.
The facts are stated in the opinion.
Mr. W. 0. Herron argued the cause,
andy with Assistant Attorney General
Stewart and Solicitor Qeneral King,
filed a brief for plaintiff in error :
The name given to a pleading does
not determine its true character under
the Act of March 2, 1907.
United States v. Barber, 219 U. S. 72.
78, 55 L. ed. 99, 101, 31 Sup. Ct. R«p
209.
Of course, the quashing of a bad in-
dictment is no bar to a prosecution upon
a good one, but a judgment for the de-
fendant upon the ground that the prose-
cution is barred goes to his liability as
matter of substantive law, and one
judgment that he is free as matter of
substantive law is as good as another.
United States v. Oppenheimer, 242 U.
S. 85, 87, 61 L. ed. 161, 164, 3 A.L.R.
516, 37 Sup. Ct. Rep. 68.
this duty is in no wise qualified or lim-
ited by the section above referred to.
Neither the Iowa nor the Arkansas
courts referred the limitation of power
contained in the statute to a restriction
of the authority of the district attorney.
Unless the restriction was meant to ap-
ply to the district attorney, it is dif&-
erilt to give the statute any effect at all.
According to these decisions it is no re-
striction or limitation upon the author-
ity of the grand jury, nor is it a limita-
tion upon the authority of the court.
Both the Iowa and Arkansas courts- as-
sume that the court has* authority and
power to submit the cause as often as it
desires. Unless, therefore, as above stat-
ed, the limitation is upon the authority of
the district attorney, the statute is ren-
dered of no effect.
Not all courts agree with the above
construction of such a statute. The
Kentucky court in Sutton v. Com. 97
Ky. 308, 30 S. W. 661, expresses an
obiter opinion contrary to the holding
of the Iowa and Arkansas courts, under
an identical statute.
In the Kentucky case a joint indict-
ment had been returned against two
persons: one of the persons moved to
set aside the indictment upon the
ground that although he was held by an
examining court to answer to the charge
before a stated grand jury, there had
been two terms of court at which grand
juries were summoned and impaneled
before an indictment was found against
him, and that there was no order of
court submitting the charge to the
grand jury that did find the indictment;
this motion was sustained and the per-
son discharged from custody. The oth-
er person indicted stood trial and the
jury disagreed; subsequently he was
convicted, and after this made a motion
to set aside the indictment for the same
reason the indictment of the person
jointly charged with him was dismissed.
The court states that the failure of the
grand juries to find an indictment
against the accused was equivalent to a
direct refusal to indict, and that, as
two terms of court had intervened be-
fore the indictment under which the
appellant was convicted had been found,
and it was then done without direction
of the court, it should have been set
aside upon proper motion, but that the
appellant waived his right to have it set
aside by standing, trial.
Under a statutory provision that if
the grand jurors shall not concur in
finding an indictment or presentment,
the charge shall be dismissed, ''but such
dismissal shall not prevent its being
again submitted to a grand jury as often
as the court shall direct," it is stated in
State V. Young, 113 Minn, 96, 129 N. W.
148, Ann. Cas. 1912A, 163, that a report
to the court of no indictment found, in
a matter which had been regularly sub-
mitted to and considered by the grand
jury, is a complete termination of the
authority of the jury in respect to the
particular charge so reported upon;
that the matter of resubmission rests
with the court. It was held in this case
that a petition charging that the grand
jury failed to give proper consideration
to certain charges before them was not
a contempt when filed after the final re-
port of the grand jury, for the reason
that its authority had then been termi-
nated.
The court has authority under the?e
statutes to refer the charge to a subse-
quent grand jury and issue a warrant
for the arrest of the accused. Monroe
V. Berry, 29 Ky. L. Rep. 602. 94 8. W.
38.
It has been held that the power of
the court to permit charges again to be
submitted to a grand jury should be
sparingly and discriminatingly used:
that a resubmission of such charges will
not be ordered where the district at-
torney was of the opinion that thie grand
jury which dismissed the charges misun-
251 U. 6.
1919.
UNITED STATES v. THOMPSON.
The grand jury is an independent
body; charged merely with the duty of
investigating and presenting all viola-
tions of law supposed to have happened
"within its jurisdiction.
1 Houldsworth, History of English
Ijaw, p. 148; Maitland, History of Eng-
lish Const. Law^ pp. 211, 212 ; 1 Stephen,
History of Crim. Law, pp. 263, 273, 274;
Co. Litt. 126b; Hale, P. C. Ist Am. ed.
1847, p. 161; 2 Hawk. P. C. chap. 25, p.
299.
The fundamental power of the grand
jury to make presentments or indict-
ments in regard to alleged violations of
law brought to their attention through
proper channels not soiled by malice,
bias, or mere suspicion is not subject to
a power in the court of rejection of such
presentments or indictments.
Shaftesbury's Case, 8 How. St. Tr.
771; State v. Fasset, 16 Conn. 467;
Burr's Trial, Robertson's ed. pp. 172,
176; Com. v. Knapp, 9 Pick. 496, 20
Am. Dec 491, 7 Am. St. Tr. 410; Hale
V. Henkel, 201 U. S. 43, 69, 66, 60 L.
ed. 662, 669, 662, 26 Sup. Ct. Rep. 370;
Blair v. United States, 260 U. S. 273, 63
L. ed. 979, 39 Sup. Ct. Rep. 468.
The pendency of a prior indictment is
derstood the law, and that if the charge
were again submitted, an indictment
might be found, and where, so far as ap-
pears, the evidence against the persons
against whom indictments were sought
was fully brought to the attention of
the grand jury. People v. Neidhart, 36
Misc. 191, 71 N. Y. Supp. 691.
There is very little authority upon
the right of the district attorney to re-
submit a bill. See State v. Branch, 68
X. C. 186, 12 Am. Rep. 633, supra. In
Pennsylvania a bill once dismissed by a
grand jury cannot be resubmitted to the
same or a subsequent grand jury with-
out leave of court. This proposition
was established in Rowand v. Com. 82
Pa. 406 (see infra for facts. See cases
infra in which leave of court was grant-
ed, and in which this was assumed to be
necessary). But a subsequent prosecu-
tion may be begun as an original matter
and submitted to a subsequent grand
jury without leave of court first ob-
tained. In such a case the indictment
will not be quashed. The distinction
between reconsidering a bill once dis-
missed and beginning a new prosecu-
tion is very clearly stated in Com. v.
Snyder, 13 Pa. Dist. R. 27. In that
case an indictment was returned by the
grand jury ignored to a subsequent
grand jury. On another complaint
charging the defendant with what was
alleged to be the same offense, an in-
dictment was returned. A motion to
quash the indictment was filed for the
reason that the offense was the same as
that contained in the charge which was
ignored by the former grand jury, and
that no special leave was granted for its
presentment to the subsequent grand
jury. The court states: "There seems
to me to be quite a distinction between
the sending of a bill based upon the
same complaint, the second time, to the
same grand jury, after it has been
ignored by them, and an original prose- i
•4 L. ed.
cution for the same offense returned to
another grand jury at another session.
In the £&st instance the complaint is
dead, unless the court sees fit to revive
it by permitting the case to be again
sent to the same or a subsequent grand
jury. In the latter case the prosecutor
makes a new complaint, and the case
comes again into the court to be passed
upon, the prosecutor being liable, how-
ever, to answer in an action for malicious
prosecution, in case it is ascertained that
he acted maliciously and without prob-
able cause in making the second com-
plaint." The court then refers to the
dif&culty of ascertaining whether the of-
fenses charged in the two instances are
the same, and states that for this reason
the motion to quash should be refused;
but adds that the decision is based upon
the broader ground that the court has no
right to qua^ an indictment brought un-
der such circumstances, upon a new com-
plaint, for any such reason.
In Com. V. Whitaker, 26 Pa. Co. Ct.
42, where the court refused to resubmit
a bill which had once been dismissed by
the grand jury, it is stated that the
prosecutor, if he deems himself ag-
g^eved, has his remedy by instituting
a prosecution de novo.
The court has discretion to permit the
district attorney to submit a new bill
after the first indictment has been
ignored. Com. v. Stoner, 70 Pa. Super.
Ct. 366; Com. v. Leigh, 38 Phila. Leg.
Int. 184. But the court will recommit a
bill which' has once been ignored only in
urgent cases. Com. v. Whitaker, supra.
The court in Com. v. Allen, 14 Pa. Co.
Ct. 646, refused, upon the application
of private counsel, to recommit a bill
which had been ignored by a previous
grand jury where there was no allegation
or proof that the bill was ignored in con-
sequence of oversight, mistake, or fraud,
or improper action on the part of the
grand jury, the court stating that, under
22 337
SUPREME COURT OF THE UNITED STATES.
Oct. Term.
not a good plea to a subsequent indict-
ment for the same offense.
Withipole's Case, Cro. Car. 147, 79
Eng. Reprint, 730; Post. C. L. 104, 106; 2
Hale, P. C. p. 239; 2 Hawk. P. C. chap.
34, p. 523 ; Reg. t. Goddard, 2 Ld. Raym.
920, 92 Eng. Reprint, 114; Rex v. Webb,
3 Burr. 1468, 97 Eng. Reprint, 931 ; Rex
V. Wynn, 2 East, 226, 102 Eng. Reprint,
355; People ex rel. Barron v. Monroe,
Oyer & Terminer, 20 Wend. 108 ; Com.
V. Drew, 3 Cush. 282; Smith v. Com.
104 Pa. 341.
The pendency of such an indictment
or of an information is not a good plea
in bar to a subsequent information for
the same offense.
Rex V. Pumell, 1 Wm. Bl. 37, 96 Eng.
Reprint, 20; Rex v. Stratton, 1 Dougl.
K. B, 239, 99 Eng. Reprint, 156; Rex
V. Alexander, Archbold, Crim. PI. 24th
ed. pp. 149, 157; Reg. v. Mitchell, 3
Cox, C. C. 93, 6 St. Tr. N. S. 545.
The ignoring of an indictment by a
grand jury is not a good plea to a sub-
sequent information for the same of-
fense.
Zenger's Case, 17 How. St. Tr. 675;
2 St. Tr. N. S. 945 ; Rex v. Green, 1 Ld.
Kenyon, 379, 96 Eng. Reprint, 1028; Ex
parte Moan, 65 Cal. 218, 3 Pac. 644;
State V. Ross, 14 La. Ann. 367; State v.
Vincent, 36 La. Ann. 770; State v.
Whipple, 57 Vt. 639; State v. Roberts,
166 Ind. 590, 77 N. E. 1093; HaU v. State,
178 Ind. 448, 99 N. E. 733; Rex v.
Philipps, 3 Burr, 1564, 97 Eng. Reprint,
983; United States v. Maxwell, 3 Dill.
275, Fed. Cas. No. 15,750; Ex parte Wil-I
son, 114 U. S. 417, 424, 425, 29 L. ed.
89, 91, 92, 5 Sup. Ct. Rep. 935, 4 Am.
Crim. Rep. 283; Weeks v. United
States, L.R.A.1915B, 651, 132 C. C. A.
436, 216 Fed. 297, Ann. Cas. 1917C, 524,
22 Cyc. 261 ; Ex parte Wilson, 114 U. S.
417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935,
4 Am. Crim. Rep. 283; United States v.
Nagle, 17 Blatchf. 258, Fed. Cas, No.
15,852.
It is settled by the common law, as in-
terpreted by the English courts, that a
charge may be resubmitted to a subse-
quent grand jury after it has been ig-
nored by a previous one.
4 Bl. Com. p. 305; 1 Chitty, Crim.
Law, p. 325; R«x v. Killminster, 7 Car.
& P. .228; Reg. v. Humphreys, Car. & M.
327; Reg. v. Newton, 2 Moody & R. 503;
Reg. V. Simmonite, 1 Cox, C. C. 30; Reg.
V. Austin, 4 Cox, C. C. 385; Archbold
Cr. PI. & Pr. 24th Eng. ed. 103; 9 Laws
of England, Halsbury, p. 347.
The decisions in this country are, so
far as we can discover, all to the same
effect, in the absence of statute.
Fitch V. State, 11 S. C. L. (2 Nott. &
M'C.) 558; Knott v. Sargent, 125 Mass.
95; Com. v. Woods, 10 Gray, 479;
Christmas v. State, 53 Ga. 81; State v.
Brown, 81 N. C. 568; State v. Harris,
91 N. C. 656; Ex parte Clarke, 54 Cal.
412; State v. Green, 111 Mo. 585, 20 S.
W. 304; State v. CoUis, 73 Iowa, 542,
35 N. W. 625; State v. Reinhart, 26 Or.
466, 38 Pac. 822; Marshall v. State, 84
Ark. 88, 104 S. W. 934; People v.
Rosenthal, 197 N. Y. 400, 46 L.R.A.
(N.S.) 31, 90 N. E. 991; Whiting v.
these circumstances, there is no such
grave emergency or urgent public neces-
sity as justifies the court in the action
desired.
In Com. V. Priestly, 24 Pa. Co. Ct.
543, the court refused to resubmit a biU
upon the motion of private counsel in
the absence of any allegation of irregu-
larity, oversight, mistake, or fraud.
As stated above, the Pennsylvania
doctrine was established by the court in
Rowan v. Com. supra. Relief was, how-
ever, denied to the accused in that case.
Here charges were investigated by a
grand jury which ignored the same, and
ordered the county to pay costs. At a
suosequent grand jury new bills, pre-
cisely like the former ones, based upon
the same information, which were held
to be substantially the same as return-
ing the old ignored bills to be reconsid-
ered by the new grand jury, were sub-
mitted and indictments found. Upon a
morion to qunsh the indictments the
.188
trial court expressed grave doubt as to
the legality of the proceeding, and em-
phatically condemned the practice which
sustained it, but overruled the motion
to' quash. Upon appeal to the supreme
court, that court states that 'Vhere a
defendant has been onoe discharged on
a return of 'ignoramus,' a new bill sent
up without a fresh hearing and without
the leave of the court should be prompt-
ly quashed in the absence of affirmative
proof that the course taken was re-
quired to meet some grave eniei-gency,
or to provide for some urgent public
need." But it is held that the trial court
must be assumed to have approved the
action of the district attorney; that, the
defendant having been tried, convicted,
and sentenced on the bills sent to the
second grand jury, if there was a wrong,
it was one which the trial court could
alone redress, and that the supreme
court was powerless to interpose.
251 U. S.
VJ19.
UNITED STATES v. THOMPSON.
State, 48 Ohio St. 230, 27 N. E. 96;
Com. V. Snyder, 13 Pa. Dist. R. 27;
United States v. Martin, 50 Fed. 918;
United States v. Bopp, 232 Fed. 177;
Burton v. United States, 202 U. S. 344,
380, 50 L. ed. 1057, 1070, 26 Sup. Ct.
Hep. 688; Hale v. Henkel, 201 U. S. 43,
50 L. ed. 652, 26 Sup. Ct. Rep. 370;
Blair v. United States, 250 U. S. 273, 63
L. ed. 979, 39 Sup. Ct. Rep. 468.
Mr. J. E. B. Cnnningham argued the
<^ause, and, with Messrs. R. M. Gibson
and W. C. McKean, filed a brief for de-
fendant in error:
•
The United States has no general
right to prosecute the writ of error.
Byrne, Fed. Crim. Proc. 220, 222;
United States v. Perrin, 131 U. S. 65,
33 L. ed. 88, 9 Sup. Ct. Rep. 681; United
states V. Stevenson, 54 L. ed. U. S. 153,
note; United States v. Dickinson, 213 U.
S. 92, 53 L, ed. 711, 29 Sup. Ct. Rep.
485.
Where it does not appear that the de-
cision or judgment of the court below
turned upon any controverted construc-
tion of the statute, the Supreme Court
is without jurisdiction under the first
division or classification of the Crimi-
nal Appeals Act.
United States v. Carter, 231 U. S. 492,
58 L, ed. 330, 34 Sup. Ct. Rep. 173;
United States v. Moist, 231 U. S. 701,
58 L. ed. 444, 34 Sup. Ct. Rep. 255;
United States v. Stevenson, 215 U. S.
190, 54 L. ed. 153, 30 Sup. Ct. Rep. 35.
The sufficiency of the indictment upon
general principles of criminal law is not
open for review in the Federal Supreme
Court on the writ of error to a Federal
district court, authorized on behalf of
the government by the Act of March 2,
1907.
United States v. Mason, 213 U. S. 115,
53 L. ed. 725, 29 Sup. Ct. Rep. 480.
The essential nature of a plea in bar,
such as a plea of the Statute of Limita-
tions, is not changed by designating it a
plea in abatement, and such designation
does not defeat an appeal by the United
States under this act.
BjTTie, Fed. Crim. Proc. 223; United
States V. Barber, 219 U. S. 72, 55 L. ed.
99, 31 Sup. Ct. Rep. 209.
Dilatory' pleas are such as delay the
plaintiff's remedy, by questioning, not
the cause of action, but the propriety of
the suit, or the mode in which the rem-
edy is sought.
2 Bouvier's Law Diet. 9th ed. p. 342.
Peremptory pleas are in bar of the
action.
2 Bouvier's Law Diet. 9th ed. p. 340;
64 li. ed.
Stephen, PI. 63; 1 Chitty, PI. 425;
Lawes, PI. 36.
A plea ia abatement belongs to the
dilatory class.
2 Bouvier's Law Diet. 9th ed. pp. 340,
341; Stephen PL 70, 71; Black's Law
Diet. 2d ed. 903; 1 Standard Proc. p. 38.
Special pleas in bar are thbse which
go to the merits of the indictment, and
give a reason why the prisoner .ought
not to answer it at all, nor put himself
upon his trial for the crime alleged.
•4 Bl. Com. 334.
The defendant's motion to quash the
indictment was, strictly spealang, nei-
ther a plea in bar nor a plea in abate-
ment.
Agnew V. United States, 165 U. S. 36,
41 L. ed. 624, 17 Sup. Ct. Rep. 235;
United States v. Gale, 109 U. S. 65, 27
L. ed. 857, 3 Sup. Ct. Rep. 1; United
States V. Celestine, 215 U. S. 278, 54 L.
ed. 195, 30 Sup. Ct. Rep. 93; United
States V. Barber, 219 U. S. 72, 55 L. ed.
99, 31 Sup. Ct. Rep. 209; 12 Cyc. 348.
To now urge in the Supreme Court
that defendanfs motion was a special
plea in bar — one that not only strikes
down the present indictment, but as
well destroys the action itself and bars
all other and future indictments — is to
abandon and reject the position taken in
the trial court.
Unifed States v. George, 228 U. S. 14,
57 L.' ed. 712, 33 Sup. Ct. Rep. 412.
Federal courts will follow and be
governed by the practice of state courts
in matters- not otherwise provided for
in Federal procedure, where the same is
not inconsistent with the Constitution
and laws of the United States. The
order or judgment of the court below in
quashing the indictment in question was
entirely in keeping with the general rule
of law, and particularly with the practice
in such matters in the Pennsylvania
courts, wherein the exercise of such
supervisory power is recog^nized as a
justifiable and proper act of judicial dis-
cretion.
United States v. Kilpatrick, 16 Fed.
765;. United States v. Wells, 163 Fed.
313; Crowlev v. United States, 194 U. S.
461, 48 L. ed. 1075, 24 Sup. Ct. Rep. 731;
United States v. Clune, 62 Fed. 798;
United States v. Mitchell, 136 Fed. 896;
United States v. Eagan, 30 Fed. 608;
Rowand v. Com. 82 Pa. 405; Com. v.
Stoner, 70 Pa. Super. Ct. 365; Com. v.
Allen, 14 Pa. Co. Ct. 546; Com. v. Whit-
aker, 25 Pa. Co. Ct. 42; Com. v. Priest-
ly, 24 Pa. Co. Ct. 543; Joyce, Indict-
ments, § 117; Wharton. Crim. PI. & Pr.
§ 446; United States v. Martin, 50 Fed.
389
SUPREMK COURT OF THE UNITED STATES.
Oct. Texm,
corporation as an alleged violator of the
Slierman Anti-trust Act, should consider,
not what the corporation had power to do
or did, but what it now has power to do
and is doing.
[For other cases, see Monopoly, II. In Digest
Hup. Ct. 1908.1
Monopoly — under Anti-trust Act »
expectation or realization.
2. The Sherman Anti-trust Act is di-
rected against monopoly; not against an
expectation of it, but against its realiza-
tion.
{For other cases, tee Monopoly, II. In Digest
Sup. Ct. 1908.3
Monopoly — under Anti-trust Act —
size of corporation — nnezerted pow-
ers.
3. The mere size of a corporation, or
the existence of unexerted power unlaw-
fully to restrain competition, does not of
itself make such a corporation a violator
of the Sherman Anti-trust Act.
[For other cases, see Monopoly, II. in Digest
Sup. Ct. 1908.]
Monopoly — steel trust — Intent —
past practices — dissolution » public
interest.
4. A holding corporation which by its
formation united under out control com-
peting companies in the steel industry, but
which did not achieve monopoly, ana only
attempted to fix prices through occasional
appeals to and confederation with compet-
itors, whatever there was of wrongful in-
tent not having been executed, and what-
ever there was of evil effect having been
discontinued before suit was brought,
should not be dissolved nor be separated
from some of its subsidiaries at the suit of
the government, asserting violations of the
Sherman Anti-trust Act, — especially where
the court cannot see that the public interest
will be served by yielding to the govern-
nicnt*R demand, and does see in so yielding
a risk of injury to the public interest, in-
cluding a material disturoance of, and, per-
haps, serious detriment to, the foreign
trade.
(For other oases, see Monopoly, II. in Digest
Sup. Ct. 1908.]
[No. 6.]
Argued March 9, 12, 13, and 14, 1917. Re-
stored to docket May 21, 1917. Re-
argued October 7, 8, 9, and 10, 1919.
Decided March 1, 1920.
APPEAL from the District Court of
the United States for the District of
New Jersey to review a decree dismiss*
ing the bill in a suit to dissolve the
United States Steel Corporation and its
subsidiaries. Affirmed.
See same case below, 223 Fed. 55.
The facts are stated in the opinion.
Assistant to the Attorney General
Todd, Special Assistant to the Attorney
(reneral Oolton, and Solicitor General
Davis, argued the cnuse on original
.14 1
argument, and, with Attorney General
Gregory and Mr. Robert Szold, filed a
brief for appellant:
It has never been doubted that combi-
nations of this type, embracing a domi-
nant proportion of those engaged in a
particular industry, and formed for the
express purpose of suppressing compe-
tition between them^ are combinations in
restraint of trade.
Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211, 44 K ed. 136, 20
Sup. Ct. Rep. 96; Swift & Co. v. United
States, 196 U. S. 375, 394, 49 L. ed. 518,
523, 25 Sup. Ct. Rep. 276; Dr. Miles
Medical Co. v. John D. Park & Sons Co.
220 U. S. 373, 408, 55 L. ed. 502, 518, 31
Sup. Ct. Rep. 376.
Nor is it material, their purpose and
effect being what they were, that the
combinations here assailed were created
in corporate form instead of by loose
agreement.
United States v. American Tobacco
Co. 221 U. S. 106, 176, 181, 55 L. ed.
663, 692, 694, 31 Sup. Ct. Rep. 632.
Indeed, where, as here^ corporations
simply exchange their plants and busi-
nesses for stock in a consolidated corpo-
ration, the resulting combination is in
no respect different in principle from a
combination in the form of trust which
the statute specifically prohibits.
Northern Securities Co; v. United
States, 193 U. S. 197, 326, 327, 48 L. ed.
679, 695, 696, 24 Sup. Ct. Rep. 436;
United States v. Reading Co. 226 U. S.
324, 352-363, 57 L. ed. 243, 252-256, 33
Sup. Ct. Rep. 90, 183 Fed, 470; Patter-
son V. United States, 138 C. C. A. 123,
222 Fed. 619; Noyes, Intercorporate Re-
lations, § 354; Eddy, Combinations, §
622.
No more powerful instrument of mo-
nopoly could be used, said Mr. Justice
Holmes, in Swift & Co. v. United States.
196 U. S. 375, 402, 49 L. ed. 518, 527, 25
Sup. Ct. Rep. 276, than an advantage in
the eost of transportation.
See also Standard Oil Co. v. United
States, 221 U. S. 1, 42, 43, 76, 55 L. ed.
619, 638, 651, 34 L.R.A.(N.S.) 834, 31
Sup. Ct. Rep. 502, Ann. Cas. 1912D,
734; Pipe Line Cases (United SUtes v.
Ohio Oil Co.) 234 U. S. 548, 58 L. ed.
1459, 34 Sup. Ct. Rep. 956; New York,
N. H. & H. R. Co. V. Interstate Com-
merce Commission, 200 U. S. 361, 393,
50 L. ed. 515, 522. 26 Sup. Ct. Rep. 272;
United States v. Reading Co. 226 U. S.
324, 359, 57 L. ed. 243, 254, 33 Sup. Ct.
Rep. 90; United States v. Delaware, L.
& W. R. Co. 238 U. S. 516, 533, 59 L.
ed. 1438, 1445, 35 Sup. Ct. Rep. 873.
251 r. s.
1919.
UNITED STATES v. UNITED STATES STEEL CORP.
The porposes of illegal oombinations
are 8<ddom capable of proof by direct
testimony, but must be inferred from
circumstances.
Eastern States Retail Lumber Dealers
Asso. V. United States, 234 U. S. 600,
612, 58 L. ed. 1490. 1499, L.R.A.1915A,
788, 34 Sup. Ct. Rep. 951; Beilley v.
United States, 46 C. C. A. 25, 106 Fed.
896; United States v. Saeia, 2 Fed. 757;
Beg. V. Murphy, 8 Car. & P. 297.
The union of so many previously in-
dependent business units, about 130,
with such vast aggregate resources, $1,-
800^000,000, controlling so gireat a pro-
portion of the entire industry, approxi-
mately half, with the next li^gest com-
petitor controlling less than 6 per cent,
are factors from which this court has
repeatedly inferred the existence of a
specific intent to suppress competition.
Standard Oil Co. v. United States,
221 U. S. 1, 75, 55 L. ed. 619, 650, 34
L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502,
Ann. Cas. 1912D, 734; United States v.
Terminal R. Asso. 224 U. S. 383, 394,
56 L. ed. 810, 813, 32 Sup. Ct. Rep. 507;
United States v. Reading, 226 U. S. 324,
370, 57 L. ed. 243, 259, 33 Sup. Ct Rep.
90; United States v. Patten, 226 U. S.
525, 543, 57 L. ed. 333, 341, 44 L.R.A.
(N.S.) 325, 33 Sup. Ct. Rep. 141.
The distinction between a mere pur-
ehaise of a competing business and a
combination of competing businesses,
clothed in the form of purchases, is
sharply drawn in Shawnee Compress Co.
V. Anderson, 209 U. S. 423, 52 L. ed.
865, 28 Sup. Ct. Rep. 572.
See also Noyes, Intercorporate Rela-
tions, § 35^
In three leading cases in this court
the holding company, as a means of
combining able competitors, has been
adjudged illegal.
Northern Securities Co. v. United
States, 193 U. S. 197, 48 L. ed. 679, 24
Sap. Ct. Rep. 436; Standard Oil Co. v.
United States, 221 U. S. 1, 55 L. ed. 619,
34 L.R.A.(N,S.) 834, 31 Sup. Ct. Rep.
502, Ann. Cas. 1912D, 734; Temple Iron
Co. V. United States, 226 U. S. 324, 57
L ed. 243, 33 Sup. Ct. Rep. 90, 183 Fed.
427.
A transaction which the law prohib-
its is not made lawful by an innocent
motive or purpose.
United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 341, 41 L.
ed. 1007, 1027, 17 Sup. Ct. Rep. 540;
Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211, 234, 243, 44 L. ed.
136, 145, 148, 20 Sup. Ct. Rep. 96;
Swift &• Co. V. United States, 196 U. S.
•4 L. ed.
375, 396, 49 L. ed. 518, 524, 25 Sup. Ct.
Rep. 276.
The intent to violate the law, im-
plied from doing what the law prohib-
its, renders immaterial every other in-
tent, purpose, or motive.
Bishop, New Crim. Law, § 343;
Holmes, Common Law, p. 52.
A contract or combination, by its own
inherent nature or effect, without more,
may restrain trade within the purview
of the statute.
United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 341, 41 L.
ed. 1007, 1027, 17 Sup. Ct. Rep. 540;
United States v. Joint TraflSc Asso. 171
U. S. 505, 561, 43 L. ed. 259, 284, 19
Sup. Ct. Rep. 25; Addyston Pipe &
Steel Co. V. United States, 175 U. S. 211,
234, 243, 44 L. ed. 136, 145, 20 Sup. Ct.
Rep. 96; Northern Securities Co. v.
United States, 193 U. S. 197, 328,
331, 48 L. ed. 679, 696, 697, 24 Sup. Ct.
Rep. 436; Harriman v. Northern Securi-
ties Co. 197 U. S. 244, 291, 298, 49 L.
ed. 739, 761, 764, 25 Sup. Ct. Rep. 493 ;
United States v. American Tobacco Co.
221 U. S. 106, 179, 55 L. ed. 663, 693, 31
Sup. Ct. Rep. 632; Standard Oil Co. v.
United States, 221 U. S. 1, 65, 55 L. ed.
619, 647, 34 L.R.A.(N.S.) 834, 31 Sup.
Ct. Rep. 502, Ann. Cas. 1912D, 734;
Standard Sanitary Mfg; Co. v. United
States, 226 U. S. 20, 49, 57 L. ed. 107,
117, 33 Sup. Ct. Rep. 9; United States
V. Union P. R. Co. 226 U. S. 61, 92, 93,
57 L. ed. 124, 135, 136, 33 Sup. Ct. Rep.
53 ; United States v. Reading Co. 226 U.
S. 324, 57 L. ed. 243, 33 Sup. Ct. Rep
90; United States v. Patten, 226 U. S.
525, 57 L. ed. 333, 44 L.R.A.(N.S.) 325,
33 Sup. Ct. Rep. 141; International
Harvester Co. v. Missouri, 234 U. S. 199,
209, 58 L. ed. 1276, 1281, 52 L.R.A.
(N.S.) 525, 34 Sup. Ct. Rep. 859; Ches-
apeake & 0. Fuel Co. V. United States.
53 C. C. A. 256, 115 Fed. 623.
Congress rightly believed that the ad-
vantages of large business units, in so
far as they are real and substantial,
would inevitably assert themselves by
normal growth. It closed the short cut
to those advantages — monopolistic com-
bination— because danger lies that way.
If there is evil in this, it is accepted as
less than that which may result from
the unification of interest, and the pow-
er such unification gives.
National Cotton Oil Co. v. Texas, 197
U. S. 115,. 129, 49 L. ed. 689, 694, 25
Sup. Ct. Rep. 379.
Competition is worth more to society
than it costs.
345
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
corporation as an alleged violator of the
Siierman Anti-trust Act» should consider,
not wliat the corporation bad power to do
or did, but what it now has power to do
and is doing.
[For other cases, see Monopoly, II. In Digest
«up. Ct. 1908.1
Monopoly — under Anti-trust Act ^
expectation or realization.
2. The Sherman Anti-tru^t Act is di-
rected against monopoly; not against an
expectation of it, but against its realiza-
tion.
[For other cases, fee Monopoly* II. in Digest
Sup. Ct. 1908.]
Monopoly — under Anti-trust Act —
siie of corporation — unexerted pow-
ers.
3. The mere size of a corporation, or
the existence of unexerted power unlaw-
fully to restrain competition, does not of
itself make such a corporation a violator
of the Sherman Anti-trust Act.
[For other cases, see Monopoly, II. in Digest
Sup. Ct. 1908.]
Monopoly — steel trust — intent —
past practices — dissolution ^ public
interest.
4. A holding corporation which by its
formation united under ond control com-
pefting companies in the steel industry, but
which did not achieve monopoly, and only
attempted to iix prices through occasional
appeals to and confederation with compet-
itors, whatever there was of wrongful in-
tent not having been executed, and what-
ever there was of evil effect having been
discontinued before suit was brought,
should not be dissolved nor be separated
from some of its subsidiaries at the suit of
the government, asserting violations of the
Sherman Anti-trust Act, — especially where
the court cannot see that the public interest
will be served by yielding to the govern-
ment's demand, and does see in so yielding
a risk of injury to the public interest, in-
cluding a material disturbance of, and, per-
haps, serious detriment to, the foreign
trade.
[For other cases, see Monopoly, II. in Digest
Sup. Ct. 1908.]
[No. 6.]
Argued March 9, 12, 13, and 14, 1917. Re-
stored to docket May 21, 1917. Re-
argued October 7, 8, 9, and 10, 1919.
Decided March 1, 1920.
APPEAL from the District Court of
the United States for the District of
New Jersey to review a decree dismiss-
ing the bill in a suit to dissolve the
United States Steel Corporation and its
subsidiaries. Affirmed.
See same case below, 223 Fed. 65.
The facts are stated in the opinion.
Assistant to the Attorney General
Todd, Special Assistant to the Attorney
Creneral Oolton, and Solicitor General
Davis, argued the cause on original
argument, and, with Attorney General
Gregory and Mr. Robert Szold, filed a
brief for appellant:
It has never been doubted that combi-
nations of this type, embracing a domi-
nant proportion of those engaged in a
particular industry, and formed for the
express purpose of suppressing compe-
tition between them, are combinations in
restraint of trade.
Addyston Pipe & Steel Co. v. United
States, 176 U. S. 2U, 44 L. ed. 136, 20
Sup. Ct. Rep. 96; Swift & Co. v. United
States, 196 U. S. 376, 394, 49 L. ed. 518,
523, 25 Sup. Ct. Rep. 276; Dr. MUes
Medical Co. v. John D. Park & Sons Co.
220 U. S. 373, 408, 55 L. ed. 502, 518, 31
Sup. Ct. Rep. 376.
Nor is it material, their purpose and
effect being what they were, that the
combinations here assailed were created
in corporate form instead of by loose
agreement.
United States v. American Tobacco
Co. 221 U. S. 106, 176, 181, 55 L. ed.
663, 692, 694, 31 Sup. Ct. Rep. 632.
Indeed, where, as here^ corporations
simply exchange their i^ants and busi-
nesses for stock in a consolidated corpo-
ration, the resulting combination is in
no respect different in principle from a
combination in the form of trust whieh
the statute specifically prohibits.
Northern Securities Co; v. United
States, 193 U. S. 197, 326, 327, 48 L. ed.
679, 695, 696, 24 Sup. Ct. Rep. 436;
United States v. Reading Co. 226 U. S.
324, 352-363, 67 L. ed. 243, 252-256, 33
Sup. Ct. Rep. 90, 183 Fed. 470; Patter-
son V. United States, 138 C. C. A. 123,
222 Fed. 619; Noyes, Intercorporate Re-
lations, § 364; Eddy, Combinations, §
622.
No more powerful instrument of mo-
nopoly could be used, said Mr. Justice
Holmes, in Swift & Co. v. United States.
196 U. S. 375, 402, 49 L. ed. 618, 527, 25
Sup. Ct. Rep. 276, than an advantage in
the cost of transportation.
See also Standard Oil Co. v. United
States, 221 U. S. 1, 42, 43, 76, 55 L. ed.
619, 638, 661, 34 L.R.A.(N.S.) 834, 31
Sup. Ct. Rep. 602, Ann. Cas. 1912D,
734; Pipe Line Cases (United SUtes v.
Ohio Oil Co.) 234 U. S. 548, 58 L. ed.
1459, 34 Sup. Ct. Rep. 956; New York,
N. H. & H. R. Co. V. Interstate Com-
merce Commission, 200 U. S. 361, 393,
50 L. ed. 515, 622, 26 Sup. Ct. Rep. 272;
United States v. Reading Co. 226 U. S.
324, 359, 67 L. ed. 243, 254, 33 Sup. Ct.
Rep, 90; United States v. Delaware, L.
& W. R. Co. 238 U. S. 616, 533, 59 L.
ed. 1438, 1445, 35 Sup. Ct. Rep. 873.
251 V. 8.
1919.
UNITED STATES v. UNITED STATES STEEL CORP.
The purposes of illegal oombinations
are sddom capable of proof by direct
testimony, but must be inferred from
circumstances.
Eastern States Retail Lumber Dealers
As8o. V. United States, 234 U. 8. 600,
612, 58 L. ed. 1490. 1499, L.BA.1916A,
788, 34 Sup. Ct. B^. 951; Beilley v.
United States, 46 G. G. A. 25, 106 Fed.
896; United States v. Saeia, 2 Fed. 757;
Reg. V. Murphy, 8 Gar. & P. 297.
The union of so many previously in-
dependent business units, about 130,
with such vast aggregate resources, $1,-
800,000,000, controlling so gi^eat a pro-
portion of the entire industry, i^proxi-
inately half, with the next lai^est com-
petitor controlling less than 6 per cent,
are factors from which this court has
repeatedly inferred the existence of a
specific intent to suppress competition.
Standard Oil Go. v. United States,
221 U. S. 1, 75, 56 L. ed. 619, 650, 34
L.R^(N.S.) 834, 31 Sup. Gt Rep. 502,
Ann. Gas. 1912D, 734; United States v.
Terminal R. Asso. 224 U. S. 383, 394,
56 L. ed. 810, 813, 32 Sup. Gt. Rep. 507;
United States v. Reading, 226 U. S. 324,
370, 57 L. ed. 243, 259, 33 Sup. Gt. Rep.
90; United States v. Patten, 226 U. S.
525, 543, 57 L. ed. 333, 341, 44 L.R.A.
(X.S.) 325, 33 Sup. Gt. Rep. 141.
The distinction between a mere pur-
eha^se of a competing business and a
combination of competing businesses,
clothed in the form of purchases, is
sharply drawn in Shawnee Gompress Go.
V. Anderson, 209 U. S. 423, 52 L. ed.
865, 28 Sup. Ct. Rep. 572,
See also Noyes, Intercorporate Rela-
tions, § 354*
In three leading cases in this court
the holding company, as a means of
combining able competitors, has been
adjudged illegal.
Northern Securities Go. v. United
States, 193 U. S. 197, 48 L. ed. 679, 24
Sop. Ct. Rep. 436; Standard Oil Co. v.
United States, 221 U. S. 1, 55 L. ed. 619,
34 LR.A.(N.S.) 834, 31 Sup. Ct. Rep.
502, Ann. Gas. 1912D, 734; Temple Iron
Co. V, United States, 226 U. 8. 324, 57
L. ed. 243, 33 Sup. Ct. Rep. 90, 183 Fed.
427.
A transaction which the law prohib-
its is not made lawful by an innocent
motive or purpose.
United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 341, 41 L.
ed. 1007, 1027, 17 Sup, Ct. Rep. 540;
Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211, 234, 243, 44 L. ed.
136, 145, 148, 20 Sup. Ct. Rep. 96;
Swift & Co. V. United States, 196 U. S.
•4 L. ed.
375, 396, 49 L. ed. 518, 524, 25 Sup. Ct.
Rep. 276.
The intent to violate the law, im-
plied from doing what the law prohib-
its, renders immaterial every other in-
tent, purpose, or motive.
Bishop, New Grim. Law, § 343;
Holmes, Common Law, p. 52.
A contract or combination, by its own
inherent nature or effect, without more,
may restrain trade within the purview
of the statute.
United States y. Trans-Missouri
Freight Asso. 166 U. S. 290, 341, 41 L.
ed. 1007, 1027, 17 Sup. Ct. Rep. 540;
United States v. Joint Traffic Asso. 171
U. S. 505, 561, 43 L. ed. 259, 284, 19
Sup. Gt. Rep. 25; Addyston Pipe &
Steel Co. V. United States, 175 U. S. 211,
234, 243, 44 L. ed. 136, 145, 20 Sup. Ct.
Rep. 96; Northern Securities Co. v.
United States, 193 U. S. 197, 328,
331, 48 L. ed. 679, 696, 697, 24 Sup. Ct.
Rep. 436; Harriman v. Northern Securi-
ties Go. 197 U. S. 244, 291, 298, 49 L.
ed. 739, 761, 764, 25 Sup. Gt. Rep. 493;
United States v. American Tobacco Co.
221 U. S. 106, 179, 55 L. ed. 663, 693, 31
Sup. Ct. Rep. 632; Standard Oil Go. v.
United States, 221 U. S. 1, 65, 55 L. ed.
619, 647, 34 L.R.A.(N.S.) 834, 31 Sup.
Gt. Rep. 502, Ann. Cas. 1912D, 734;
Standard Sanitary Mfg. Co. v. United
States, 226 U. S. 20, 49, 57 L. ed. 107,
117, 33 Sup. Gt. Rep. 9; United States
V. Union P. R. Go. 226 U. S. 61, 92, 93,
57 L. ed. 124, 135, 136, 33 Sup. Ct. Rep.
53; United States v. Reading Co. 226 U.
S. 324, 57 L. ed. 243, 33 Sup. Ct. Rep
90; United States v. Patten, 226 U. S.
525, 57 L. ed. 333, 44 L.R.A.(N.S.) 325,
33 Sup. Ct. Rep. 141; International
Harvester Co. v. Missouri, 234 U. S. 199,
209, 58 L. ed. 1276, 1281, 52 L.R.A.
(N.S.) 525, 34 Sup. Ct. Rep. 859; Ches-
apeake & 0. Fuel Go. v. United States,
53 C. C. A. 256, 115 Fed. 623.
Congress rightly believed that the ad-
vantages of large business units, in so
far as they are real and substantial,
would inevitably assert themselves by
normal growth. It closed the short cut
to those advantages — monopolistic com-
bination— because danger lies that way.
If there is evil in this, it is accepted as
less than that which may result from
the unification of interest, and the pow-
er such unification gives.
National Cotton Oil Co. v. Texas, 197
U. S. 115,. 129, 49 L. ed. 689, 694, 25
Sup. Ct. Rep. 379.
Competition is worth more to society
than it costs.
345
SUPREMK COURT OF THE UNITED STATES.
Oct. Tebm,
forporation as an alleged violator of the
iSiierman Anti-trust Act, should consider,
not what the corporation had power to do
or did, but what it now has power to do
Htxd is doing.
[For other cases, see Monopoly, II. in Digest
«up. Ct. 1908.1
Monopoly — under Anti-tritst Act ^
expectation or realization.
2. The Sherman Anti-trust Act is di-
rected against monopoly; not against an
expectation of it, but against its realiza-
tion.
[For other cases, tee Monopoly, II. In Digest
Sup. Ct. 1908.]
Monopoly — under Anti-trust Act —
siie of corporation ^ unexerted pow-
ers.
3. The mere size of a corporation, or
the existence of unexerted power unlaw-
fully to restrain competition, does not of
itself make such a corporation a violator
of the Sherman Anti-trust Act.
[For other cases, see Monopoly, II. in Digest
Sup. Ct. 1908.]
Monopoly — steel trust — intent —
past practices — dissolution — public
interest.
4. A holding corporation which by its
formation united under end control com-
peting companies in the steel industry, but
which did not achieve monopoly, and only
attempted to ^x prices through occasional
appeals to and confederation with compet-
itors, whatever there was of wrongful in-
tent not having been executed, and what-
ever there was of evil effect having been
discontinued before suit was brought,
should not be dissolved nor be separated
from some of its subsidiaries at the suit of
the government, asserting violations of the
Sherman Anti-trust Act, — especially where
the court cannot see that the public interest
will be served by yielding to the govern-
ment's demand, and does see in so yielding
a risk of injury to the public interest, in-
cluding a material disturbance of, and, per-
haps, serious detriment to, the foreign
trade.
[For other cas^s, see Monopoly, II. In Digest
Sup. Ct. 1908.]
[No. 6.]
Argued March 9, 12, 13, and 14, 1917. Re-
stored to docket May 21, 1917. Re-
argued October 7, 8, 9, and 10, 1919.
Decided March 1, 1920.
APPEAL from the District Court of
the United States for the District of
New Jersey to review a decree dismiss-
ing the bill in a suit to dissolve the
United States Steel Corporation and its
sub.sidiaries. Affirmed.
See same case below, 223 Fed. 55.
The facts are stated in the opinion.
Assistant to the Attorney General
Todd, Special Assistant to the Attorney
Creneral Oolton, and Solicitor General
Davis, argued the caune on original
.14 1
argument, and, with Attorney General
Gregory and Mr. Robert Szold, filed a
brief for appellant:
It has never been doubted that combi-
nations of this type, embracing a domi-
nant proportion of those engaged in a
particular indnstry, and formed for the
express purpose of suppressing compe-
tition between them, are combinations in
restraint of trade.
Addyston Pipe & Steel Co. v. United
States, 175 U. S. 2U, 44 L. ed. 136, 20
Sup. Ct. Rep. 96; Swift & Co. v. United
States, 196 U. S. 376, 394, 49 L. ed. 518,
523, 25 Sup. Ct. Rep. 276; Dr, MUes
Medical Co. v. John D. Park & Sons Co.
220 U. S. 373, 408, 55 L. ed. 502, 518, 31
Sup. Ct. Rep. 376.
Nor is it material, their purpose and
effect being what they were, that the
combinations here assailed were created
in corporate form instead of by loose
agreement.
United States v. American Tobacco
Co. 221 U. S. 106, 176, 181, 55 L. ed.
663, 692, 694, 31 Sup. Ct. Rep. 632.
Indeed, where, as here^ corporations
simply exchange their plants and busi-
nesses for stock in a consolidated corpo-
ration, the resulting combination is in
no respect different in principle from a
combination in the form of trust which
the statute specifically prohibits.
Northern Securities Co: v. United
States, 193 U. S. 197, 326, 327, 48 L. ed.
679, 695, 696, 24 Sup. Ct. Rep. 436;
United States v. Reading Co. 226 U. S.
324, 352-363, 67 L. ed. 243, 252-256, 33
Sup. Ct. Rep. 90, 183 Fed. 470; Patter-
son V. United States, 138 C. C. A. 123,
222 Fed. 619; Noyes, Intercorporate Re-
lations, § 354; Eddy, Combinations, §
622.
No more powerful instrument of mo-
nopoly could be used, said Mr. Justice
Holmes, in Swift A Co. v. United States.
196 U. S. 376, 402, 49 L. ed. 518, 527, 25
Sup. Ct. Rep. 276, than an advantage in
the cost of transportation.
See also Standard Oil Co. v. United
States, 221 U. S. 1, 42, 43, 76, 55 L. ed.
619, 638, 651, 34 L.R.A.(N.S.) 834, 31
Sup. Ct. Rep. 502, Ann. Cas. 1912D,
734; Pipe Line Cases (United States v.
Ohio Oil Co.) 234 U. S. 548, 58 L. ed.
1459, 34 Sup. Ct. Rep. 956; New York,
N. H. & H. R. Co. V. Interstate Com-
merce Commission, 200 U. S. 361, 393,
50 L. ed. 515, 522. 26 Sup. Ct. Rep. 272;
United States v. Reading Co. 226 U. S.
324, 359, 57 L. ed. 243, 254, 33 Sup. Ct.
Rep. 90; United States v. Delaware, L.
& W. R. Co. 238 U. S. 616, 533, 59 L.
ed. 1438, 1445, 35 Sup. Ct. Rep. 873.
251 r. 8.
1919.
UNITED STATES v. UNITED STATES STEEL CORP.
The purposes of illegal oombinations
are seldom capable of proof by direct
testimony, but must be inferred from
circumstances.
Eastern States Retail Lumber Dealers
Asso. V. United States, 234 U. 8. 600,
612, 58 L. ed. 1490, 1499, L.BA.1915A,
788, 34 Sup. Ct Rep. 951; Beilley v.
United States, 46 C. C. A. 25, 106 Fed,
896; United States v. Saeia, 2 Fed. 757;
R^. V. Murphy, 8 Car. & P. 297.
The union of so many previously in-
dependent business units, about 130,
>vith such vast aggregate resources, $1,-
800,000,000, controlling so gireat a pro-
portion of the entire industi^, approxi-
mately half, with the next largest com-
petitor controlling less than 6 per cent,
are factors from which this court has
repeatedly inferred the existence of a
specific intent to suppress competition.
Standard Oil Co. ▼. United States,
221 U. S. 1, 75, 56 L. ed. 619, 650, 34
L.B.A.(N.S.) 834, 31 S^. Ct. Rep. 502,
Ann. Cas. 1912D, 734; United States v.
Terminal B. Asso. 224 U. S. 383, 394,
56 L. ed. 810, 813, 32 Sup. Ct. Rep. 507;
United States v. Reading, 226 U. S. 324,
370, 57 L. ed. 243, 259, 33 Sup. Ct. Rep.
90; United States v. Patten, 226 U. S.
525, 543, 57 L. ed. 333, 341, 44 L.R.A.
(N.S.) 325, 33 Sup. Ct. Rep. 141.
The distinction between a mere pur-
chase of a competing business and a
combination of competing businesses,
clothed in the form of purchases, is
sharply drawn in Shawnee Compress Co.
V. Anderson, 209 U. S. 423, 52 L. ed.
865, 28 Sup. Ct. Rep. 572.
See also Noyes, Intercorporate Rela-
tions, § 354
In three leading cases in this court
the holding company, as a means of
combining able competitors, has been
adjudged illegal.
Northern Securities Co. v. United
States, 193 U. S. 197, 48 L. ed. 679, 24
Sup. Ct. Rep. 436; Standard Oil Co. v.
United States, 221 U. S. 1, 55 L. ed. 619,
.34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep.
502, Ann. Cas. 1912D, 734; Temple Iron
Co. V. United States, 226 U. 8. 324, 57
L. ed. 243, 33 Sup. Ct. Rep. 90, 183 Fed.
427.
A transaction which the law prohib-
its is not made lawful by an innocent
motive or purpose.
United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 341, 41 L.
ed. 1007, 1027, 17 Sup. Ct. Rep. 540;
Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211, 234, 243, 44 L. ed.
136, 145, 148, 20 Sup. Ct. Rep. 96;
Swift &• Co. V. United States, 196 U. S.
•4 L. ed.
375, 396, 49 L. ed. 518, 524, 25 Sup. Ct.
Rep. 276.
The intent to violate the law, im-
plied from doing what the law prohib-
its, renders immaterial every other in-
tent, purpose, or motive.
Bishop, New Crim. Law, § 343;
Holmes, Common Law, p. 52.
A contract or combination, by its own
inherent nature or effect, without more,
may restrain trade within the purview
of the statute.
United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 341, 41 L.
ed. 1007, 1027, 17 Sup. Ct. Rep. 540;
United States v. Joint Traffic Asso. 171
U. S. 505, 561, 43 L. ed. 259, 284, 19
Sup. Ct. Rep. 25; Addyston Pipe &
Steel Co. v. United States, 175 U. S. 211,
234, 243, 44 L. ed. 136, 145, 20 Sup. Ct.
Rep. 96; Northern Securities Co. v.
United States, 193 U. S. 197, 328,
331, 48 L. ed. 679, 696, 697, 24 Sup. Ct.
Rep. 436; Harriman v. Northern Securi-
ties Co. 197 U. S. 244, 291, 298, 49 L.
ed. 739, 761, 764, 25 Sup. Ct. Rep. 493;
United States v. American Tobacco Co.
221 U. S. 106, 179, 55 L. ed. 663, 693, 31
Sup. Ct. Rep. 632; Standard Oil Co. v.
United States, 221 U. S. 1, 65, 55 L. ed.
619, 647, 34 L.R.A.(N.S.) 834, 31 Sup.
Ct. Rep. 502, Ann. Cas. 1912D, 734;
Standard Sanitary Mfg; Co. v. United
States, 226 U. S. 20, 49, 57 L. ed. 107,
117, 33 Sup. Ct. Rep. 9; United States
V. Union P. R. Co. 226 U. S. 61, 92, 93,
57 L. ed. 124, 135, 136, 33 Sup. Ct. Rep.
53; United States v. Reading Co. 226 U.
S. 324, 57 L. ed. 243, 33 Sup. Ct. Rep
90; United States v. Patten, 226 U. S.
525, 57 L. ed. 333, 44 L.R.A.(N.S.) 325,
33 Sup. Ct. Rep. 141; International
Harvester Co. v. Missouri, 234 U. S. 199,
209, 58 L. ed. 1276, 1281, 52 L.R.A.
(N.S.) 525, 34 Sup. Ct. Rep. 859; Ches-
apeake & 0. Fuel Co. v. United States,
53 C. C. A. 256, 115 Fed. 623.
Congress rightly believed that the ad-
vantages of large business units, in so
far as they are real and substantial,
would inevitably assert themselves by
normal growth. It closed the short cut
to those advantages — monopolistic com-
bination— because danger lies that way.
If there is evil in this, it is accepted as
less than that which may result from
the unification of interest, and the pow-
er such unification gives.
National Cotton Oil Co. v. Texas, 197
U. S. 115, 129, 49 L. ed. 689, 694, 25
Sup. Ct. Rep. 379.
Competition is worth more to society
than it costs.
315
SlPllEMK COUBT OF THE UNITED STATES.
Oct. Terai,
Veo:eIahn v. Guntnerj 167 Mass. 106,
35 L.R.A. 722, 44 X. E. 1077.
Furthermore, even if it would have
)>eei\ lawful for the many independent
businesses combined through this hold-
ing: company to unite to some extent to
develop foreign trade (by joint selling
agencies, for example), that cannot jus-
tify the complete and permanent sup-
pression of competition between them in
domestic trade.
United States v. Corn Products Ref.
Co. 234 Fed. 1016; United States v.
Union P. R. Co. 226 U. S. 61, 93, 57 L.
ed. 124, 135, 33 Sup. Ct. Rep. 53.
In order to vitiate a contract or com-
bination, it is not essential that its re-
sult should be a complete monopoly; it
is sufficient if it really tends to that end,
and to deprive the public of the ad-
vantages which flow from free competi-
tion.
United States v. E. C. Knight Co. 156
U. S. 1, 16, 39 L. ed. 325, 330, 15 Sup. Ct.
Rep. 249; Chesapeake & O. Fuel Co. v.
United States, 53 C. C. A. 256, 115 Fed.
610.
The test of the legality of a combina-
tion is not its present effect upon prices,
wages, etc., nor its present conduct
toward the remaining competitors, but
its effect upon competition. If its effect
is unduly to restrict competition, then it
is immaterial that, for the time being,
the combination may exercise its power
benevolently.
United States v. Union P. R. Co. 226
U. S. 61, 88, 57 L. ed. 124, 134, 33 Sup.
€t. Rep. 53; Northern Securities Co. v.
United States, 193 U. S. 197, 327, 48 L.
ed. 679, 696, 24 Sup. Ct. Rep. 436 ; Har-
riiuan v. Northern Securities Co. 197
U. S. 244, 291, 49 L. ed. 739, 761, 25 Sup.
Ct. Rep. 493 ; Addvston Pipe & Steel Co.
V. United States, 175 U. S. 211, 238, 44
L. ed. 136, 146, 20 Sup. Ct. Rep. 96;
United States v. Trans-Missouri Freight
Asso. 166 U. S. 290, 324. 41 L. ed. 1007,
1021, 17 Sup. Ct. Rep. 540; Pearsall v.
Great Northern R. Co. 161 U. S. 646,
676, 677, 40 L. ed. 838, 848, 849, 16 Sup.
Ct. Rep. 705; United States v. Standard
Oil Co. 173 Fed. 196; Atty. Gen. v.
Great Northern R. Co. 29 L. J. Ch. N.
S. 799, 6 Jur. N. S. 1006, 8 Week. Rep.
556; International Harvester Co. v.
Missouri, 234 U. S. 199, 209, 58 L. ed.
1276. 1281, 52 L.R.A.(N.S.) 525, 34 Sup.
Ct. Rep. 859, affirmins: 237 Mo. 394, 141
S. W. 672.
Messrs. Richard V. landabury, David
A. Reed, and Oordenio A. Severance
argued the cau^^e. and, with Mr. Ravnal
346
C. Boiling, filed a brief for appellees on
original argument:
As to the meaning of the terms *'mo-
nopolize" and "restraint of trade," as
used in the Anti-trust Act, see 2 Hoar,
Autobiography of Seventy Years, ji.
364; United States v. Du Pont De
Nemours, 188 Fed. 150; United States v.
Trans-Missouri Freight Asso. 166 U. 8.
290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540;
Gibbs V. Consolidated Gas Co. 130 U. S.
396, 408, 32 L. ed. 979, 984, 9 Sup. Ct.
Rep. 553; Northern Securities Co. v.
United States, 193 U. S. 197, 337, 48 L.
ed. 679, 700, 24 Sup. Ct. Rep. 436;
Standard Oil Co. v. United States, 221
U. S. 1, 55 L. ed. 619, 34 L.R.A.(N.S.)
834, 31 Sup. Ct. Rep. 502, Ann. Cas.
1912D, 734; United States v. American
Tobacco Co. 221 U. S. 106, 179, 55 L. ed.
663, 693, 31 Sup. Ct. Rep. 632; United
States V. Terminal R. Asso. 224 U. S.
383, 394, 56 L» ed. 810, 813, 32 Sup. Ct.
Rep. 507 ; Nash v. United States, 229 U.
S. 373, 57 L. ed. 1232, 33 Sup. Ct. Rep.
780.
Competition depends not upon the
manufacture of common products, but
upon the extent of their sale in com-
mon territory.
Addyston Pipe & Steel Co. v. United
States, 175 U. S. 211, 44 L. ed. 136, 29
Sup. Ct. Rep. 96.
The mere combination of manufactur-
ing concerns not in competition with
each other is not a violation of the
An ti- trust Act, no matter how large
their percentage of the country's pro-
duction may be.
United States v. Winslow, 227 U. S.
202, 217, 57 L. ed. 481, 485, ?3 Sup. Ct.
Rep. 253.
It cannot in reason be said that a
combination of manufacturing con-
cerns whose competition did not exceed
that shown in this case, whose percent-
age of the production did not exceed
50.1, and whose acquisition of a raw ma-
terial supply did not exceed its reason-
able requirements, and did not approach
to a monopoly, must necessarily have
operated to restrain trade, or, in and of
itself, must necessarily have amounted
to a monopoly or an attempt at monoix)-
lization.
Swift & Co. V. United States, 196 U.
S. 375, 49 L. ed. 518, 25 Sup. Ct. Rep.
276; United States v. Standard Oil Co.
173 Fed. 183, 221 U. S. 75, 55 L. ed. 650.
34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep.
502, Ann. Cas. 1912D, 734; Unite<l
States v. American Tobacco Co. 164
Fed. 719, 221 U. S. 157, 55 L. ed. 685,
31 Sup. Ct. Rep. 632; United States v.
251 U. S.
VJVJ.
UNITED STATES v. UNITED SI ATJtS STEEL CORP.
430, 437
Heading Co. 226 U. S. 324, 370, 57 L.
ad. 243, 259, 33 Sup. Ct. Rep. 90.
If the corporation was organized- iot
legritimate business purposes and with-
out intent to monox)olize, then, even if
it had power to monopolize (which the
evidence in this case shows it has not),
still, the mere incidental acquisition of
such power constitutes no threat or of-
fense under the Anti-trust Act.
Standard Oil Co. v. United States, 221
U. S. 1, 55 L. ed. 619, 34 L.R.A.(N.S.)
834, 31 Sap. Gt. R^p. 502, Ann. Gas.
1912D, 734; United States v. Terminal
B. Asso. 224 U. S, 383, 56 L. ed. 810, 32
Sup. Ct. Rep. 507.
The law is not concerned with compe-
tition as such, but with the injury to
the public resulting either from arti-
ficially stimulating or unduly limiting or
suppressing competition. In other
woi^s, it was the intent of Congress in
enacting the Anti-trust Act to require
that business should be conducted
along normal lines, with full opportu-
nity for the play of competitive forces.
When this situation exists, all of the
public, whether producers, traders, or
consumers, ate protected. The evils
legislated against may be brought
about:
(a) Bv a voluntary combination em-
bracing a sufficient number of otherwise
competing concerns to enable the par-
ties to the same to interrupt the usual
operation of the law of supply and de-
mand by controlling prices or produc-
tion, thus unduly limiting or suppress-
ing competition, as in United States v.
Trans-Mjssouri Freight Asso. 166 U. S.
290, 41 L. ed. 1007, 17 Sup. Gt. Rep. 540;
United States v. Joint Traffic Asso. 171
U. S. 505, 43 L. ed. 259, 19 Sup. Ct. Rep.
25; Addvston Pipe & Steel Co. v. Unit-
ed States. 175 U. S. 211, 44 L. ed. 136,
20 Sup. Ct. Rep. 96; Swift & Co. v.
United States, 196 U. S. 375, 49 L. ed.
518, 25 Sup. Ct. Rep. 276; Shawnee
Compress Co. v. Anderson, 209 U. S.
423, 52 L. ed. 865, 28 Sup. Ct. Rep. 572 ;
Continental Wall Paper Co. v. Louis
Voight & Sons Co. 212 U. S. 227, 53 L.
ed. 486, 29 Sup. Ct. Rep. 280; Standard
Sanitan' Mfg. Co. v. United States, 226
U. S. 20, 57 L. ed. 107, 33 Sup. Ct. Rep.
f) ; United States v. Union P. R. Co. 226
U. S. 61, 57 L. ed. 124, 33 Sup. Ct. Rep.
53; United States v. Reading Co. 226
U. S. 324, 57 L. ed. 243, 33 Sup. Ct. Rep.
90; or
(b) By a combination which carries
on what Mr. Justice Holmes, in his dis-
senting opinion in the Northern Securi-
ties Case, terms "the ferocious extreme
64 L. ed. •
of competition," through which rivals
are kept out of business, and those al-
ready in are driven out; as in Standard
Oil Co. V. United States, 221 U. S. 1, 55
L. ed. 619, 34 L.R.A.(N.S.) 834, 31 Sup.
Ct. Rep. 502, Ann. Gas. 1912D, 734;
United States v. American Tobacco Co.
221 U.* S. 106, 55 L. ed. 663, 31 Sup. Ct.
Rep. 632, — the combination thus draw-
ing to itself, by excluding others, a
monopolistic power over prices and pro-
duction, and in that way unduly limit-
ing competition, and thus thwarting the
usual operation of the law of supply
and demand; or
(c) Through the enforcement of a
boycott by a combination which is at-
tended by the same results, as in W. W.
Montague & Co. v. Lowry, 193 U. S. 38,
48 L. ed. 608, 24 Sup. Gt. Rep. 307;
Loewe v. Lawlor, 208 U. S. 274, 52 L.
ed. 488, 28 Sup. Gt Rep. 301, 13 Ann.
Gas. 815; Eastern States Retail Lum-
ber Dealers' Asso. v. United States, 234
U. S. 600, 68 L. ed, 1490, L.R.A.1915A,
788, 34 Sup. Ct. Rep. 951.
Mr. George Welwood Mnrray also
argued the cause on original argument,
and filed a brief for defendants John D.
Rockefeller and John D. Rockefeller,
Jr.
Assistant to the Attorney General
Ames and Special Assistant to the At-
torney General Oolton for appellant on
reargument.
Messrs. Richard V. Lindabory, David
A. Reed, Oordenio A. Severance, and
George Welwood Mnrray for appellees.
Mr. Justice McKenna delivered the
opinion of the court:
Suit against the Steel Corporation and
certain other companies which it directs
and controls by reason of the jownership
of their stock, it and they being sepa-
rately and collectively charged as viola-
tors of the Sherman Anti-trust Act
[Act of Julv 2, 1890, 26 Stat, at L. 209,
chap. 647, Comp. Stat.* § 8820, 9 Fed.
Stat. Anno. 2d ed. p. 644].
It is prayed that it and they be dis-
solved because engaged in illegal re-
straint of trade and the exercise of
monopoly.
Special charges of illegality and mo-
nopoly are made and special redresses
and remedies are prayed; among others,
that there be a prohibition of stock own-
ership and exercise [487] of rights
under such ownership and that there
shall be such orders and distribution of
the stock and other properties as shall
be in accordance with equitv and good
437-440
.SIPUKMK COURT OF THE UNITED STATES.
Oct. Tk|UC»
conscience, and /'shall effectuate the
purpose of the Anti-trust Act." Gener-
al relief is also prayed.
The Steel Corporation is a holding
company only; the other dbmpanies are
the operating ones, manufacturers in the
iron and steel industry, twelve in num-
ber. There are, besides, other corpora-
tions and individuals more. or less con-
nected in the activities of the other
defendants that are alleged to be instru-
ments or accomplices in their activities
and offendings; and that these activities
and offendings (speaking in general
terms) extend from 1901 to 1911, when
the bUl was filed, and have illustrative
})eriod8 of significant and demonstrated
illegality.
Issue is taken upon all these charges,
and we see at a glance what detail of
circumstances may be demanded, and we
may find ourselves puzzled to compress
them into an opinion that will not be
of fatiguing prolixity.
The case was heard in the district
court by four judges. They agreed that
the bill should be dismissed; they dis-
agreed as to the reasons for it. 223 Fed.
55. One opinion (written by Judge Buff-
ington and concurred in by Judge Mc-
Pherson) expressed the view that the
Steel Corporation was, not formed with
the intention or purpose to monopolize
or restrain trade, and did not have the
motive or effect "to prejudice the public
interest by unduly restricting competi-
tion or unduly obstructing the course of
trade." The corporation, in the view of
the opinion, was an evolution, a natural
consummation of the tendencies of the
industry on account of changing condi-
tions,— practically a compulsion from
"the metallurgical method of making
steel and the physical method of handling
it," — this method, and the conditions
consequent upon it, tending to combina-
tions of capital and energies rather than
diffusion in independent action. And
the [438] concentration of powers (we
are still represe'hting the opinion) was
only such as was deemed necessary, and
immediately manifested itself in im-
proved methods and products and in an
increase of domestic and foreigfu trade.
Indeed, an important purpose of the
organization of the corporation was the
building up of the export trade in steel
and iron, which at that time was spo-
radic,— the mere dumping of the prod-
ucts upon foreign markets.
Not monopoly, therefore, was the pur-
pose of the organization of the corpora-
tion, but concentration of efforts with
resultant economies and benefits.
The tendency of the industry aiid the
purpose of the corporation in yielding
to it was expressed in comprehensive
condensation by the word "int^prsetion,''
which signifies continuity in the proc-
esses of the industry from ore mines to
the finished product.
All considerations deemed pertinent
were expressed and their infiuenoe was
attempted to be assigned; and, while
conceding that the Steel Corporation,
after its formation in times of financial
disturbance, entered into informal agree-
ments or understandings with its com-
petitors to maintain prices, they termi-
nated with their occasions, and, as they
had ceased to exist, the court was not
justified in dissolving the corporation.
The other opinion (by Judge WooUey,
and concurred in by Judge Hunt, 223
Fed. 161) was, in some particulars, in
antithesis to Judge Buffington's. The
view was expressed that neither the
Steel Corporation nor the preceding
combinations, which were in a sense its
antetypes, had the justification of in-
dustrial conditions, nor were they or it
impelled by the necessity for integration,
or compelled to nnite in comprehensive
enterprise because such had become a
condition of success under the new order
of things. On the contrary, that the or-
ganizers of the corporation and the pre-
ceding companies had iUegal purpose
from the very beginning, and the corpo-
ration [480] became "a combination of
combinations by which, directly or in-
directly, approximately 180 independent
ooncems were brought under one busi-
ness control," which, measured by the
amount of production, extended to 80
per cent or 90 per cent of the entire
output of the country, and that its pur-
pose was to secure great profits, which
were thought possible in the light of the
history of its constituent combinations,
and to accomplish permanently what
those combinations had demonstrated
could be accomplished temporarily, and
thereby monopolize and restrain trade.*
[440] The organizers, however (we
are still representing the opinion), uu-
1 As bearing upon the power obtained
and what the corporation did, we give
other citations from Judge Woolley's opin-
ion, as follows:
**The ore reserves acquired by the cor-
poration at and subsequent to its organi-
zation, the relation which such reserves
bear to ore bodies then existing and sub-
sequently discovered, and their bearing up-
on the question of monopoly of raw ma-
terials, are matters which have been dis-
cussed in the preceding opinion, and with
. 251 V. S.
1919.
LMTED STATES v. UNITED STATES STEEL CORP.
440, 441
^restimatcd the opposing conditions,
^iid at the very beginning the corpora-
tion, instead of rel34ng upon its own pow-
er, sought and obtained the assistance
and the co-operation of its competitors
(the independent companies). In other
words, the view was expressed that the
testimony did "not show that the corpo-
ration, in and of itself, ever possessed or
exerted sufficient power when acting
alone to control prices of the products of
the industry." Its power was efficient only
when in co-operation with its competi-
tors, and hence it concerted with them
in the expedients of pools, associationSi
trade meetings, and finally in a system
of dinners inaugurated in 1907 by the
president of the company, E. H. Gary,
and called "the Gary dinners." The din-
ners were con^egations of producers,
and "were nothing but trade meetings,"
successors of the other means of associ-
ated action and control through sneh
action. They were instituted first in
**stress of panic," but their potency be-
ing demonstrated, they were afterwards
called to control prices "in periods of
industrial calm." "They were pools with-
out penalties" and more efficient in
stabilizing prices. But it was the fur-
ther declaration that ?*when joint action
was either refused or withdrawn, the
corporation's prices were controlled by
competition."
The corporation, it was said, did not
at any time abuse the power or ascend-
ancy it possessed. It resorted to none of
the brutalities or tyrannies that the cases
illustrate of [441] other combinations.
It did not secure freight rebates;
it did not increase its profits by
reducing the wages of its em-
ployees,— ^whatever it did was not at
the expense of labor; it did not in-
crease its pijofits by lowering the quali-
ty of its products, nor create an artificial
scarcity of them; it did not oppress or
coerce its competitors, — its competition,
though vigorous, was fair; it did not
undersell its competitors in some locali-
ties by reducing its prices there below
those maintained elsewhere, or require
its customers to enter into contracts
limiting their purchases or restricting
them in resale prices; it did not obtain
customers by secret rebates or depar-
tures from its published prices; there
was no evidence that it attempted to
crush its competitors or drive them out
of the market, nor did it take customers
from its competitors by unfair means,
and in its competition it seemed to make
no difference between large and small
competitors. Indeed, it is said in many
ways and illustrated that "instead of
relying upon its own power to fix and
maintain prices, the corporation, at its
very beginning, sought and obtained the
assistance bf others." It combined its
power with that of its competitors. It
did not have power in and of itself, and
the control it exerted was only in and
by association with its competitors. Its
offense, therefore, such as it was, was
not different from theirs, and was dis-
tingnisjied from "theirs only in the lead-
ership it assumed in promulgating and
perfecting the i>olicy." This leadership
it gave up, and it had- ceased to offend
; gainst the law before this suit was
the reasoning as well as with the conclu-
sion that the corporation has not a mo-
nopoly of the raw materials of the steel
industry, I am in entire accord."
"Further inquiring whether the corpo-
ration inherently possesses monopolistic
power, attention is next given to its pro-
.portion of the manufacture and sale of
finished iron and steel products of the in-
dustry. Upon this subject there is a great
volume of testimony, a detailed considera-
tion of which in an opinion would be quite
inexcusable. As a last analysis of this
testimony, it is sufficient to say it shows
that, large as was the corporation, and
substantial as was its proportion of the
business of the industry, tne corporation
was not able In tho first ten vears of its
history to maintain its position in the
increase of trade. During that period, its
proportion of the domestic business de-
creased from 50.1 por cent to 40.9 per cent,
and its increase of business during that
period was but 40.6 per cent of its original
volume. Its increase of business, measured
by percentage, was exceeded bv eight of its
• 4 li. ed.
competitors, whose increase of business,
likewise measured by percentl^B^e, ranged
from 63 to .3779. This disparity in the in-
crease of production indicates that the pow-
er of the corporation is not commensurate
j with its size, and that the size and the con*
3 lent power of the corporation are not
cient to retard prosperous growth of
efficient competitors."
'Trom the va,^t amount of testimony,
it is conclusively shown that the Steel
Corporation did not attempt to exert a
power, if such it possessed, to oppress and
destroy its competitors, and it is likewist*
disclosed by the history of the industry
subsequent to the organization of the cor-
poration that if it had made such an
attempt it woiild have failed. It is also
shown by the testimony that, acting inde-
pendently and relying alone upon m pow-
er and wealth, great as they were, the cor-
poration has never been able to dominate
the steel industry by controlling the sup-
ply of raw materials, restraining produc-
tion of finished products, or enhancing and
maintaining the prices of either."
S49
441-444
slpki:mk cuuirr of the united states.
Oct. Tebm,
))rought. It was hence concluded that it
should be distinguished from its organ-
izers, and that their intent and unsuc-
cessful attempt should not be attributed
to it; that it '4n and of ^itself is not
now and has never been a monopoly or
a combination in restraint of trade,"
and a decree of dissolution should not
be entered against it.
This sunmiary of the opinions, given
necessarily in paraphrase, does not ad-
equately represent their ability [442]
and strength, but it has value as indicat-
ing the contentions of the parties, and
the ultimate propositions to which the
contentions are addressed. The opinions
indicate that the evidence admits of dif-
ferent deductions as to the genesis of the
corporation and the purpose of its or-
ganizers, but only of a single deduction
as to the power it attaint and could
exercise. Both opinions were clear and
confident that the power of the corpo-
ration never did and does not now reach
to monopoly, and their review of the
evidence, and our independent examina-
tion of it, enables us to elect between
their respective estimates of it, and we
concur in the main with that of Judges
WooUey and Hunt. And we add no com-
ment except, it may be, that they under-
estimated the influence of the tendency
and movement to integration, the ap-
preciation of the necessity or value of
the continuity of manufacture from the
ere to the finished product. And there
was such a tendency, and though* it can-
not be asserted it had become a neces-
sity, it had certainly become a facility
of industrial progress. There was, there-
fore, much to urge it and give incentive
to conduct that could accomplish it.
From the nature and properties of the
industry, the processes of production
were something more than the stage and
setting of the hupian activities. They
determined to an extent those activities,
furnished their motives, and gave test of
their quality; not, of course, that the
activities could get any, immunity from
size or resources or energies, whetiier ex-
erted in integrated plants or diversified
ones.
The contentions of the case, therefore,
must be judged by the requirements of
the law, not by accidental or adventi-
tious circumstances. But* what are such
circumstances t We have seen that it
was the view of the district court that
size was such a circumstance and had no
accusing or excusing influence. The con-
tention of the government is to the con-
trary. Its assertion is that the »ize of
the corporation, being the result of a
350
^'combination [443] of powerful and
able competitors," had become ^'substan-
tially dominant" in the industry, and il-
legal. And that this was determined. The
companies combined, is the further as-
sertion, had already reached a high de-
gree of efficiency, and in their indef>end-
ence were factors in production and
competition, ceased to be such when
brought under the regulating control
of the corporation, which, by uniting
them, offended the law; and that the
organizers of the corporation ''had in
mind the specific purposes of the re-
straint of trade and the enormous prof-
its resulting from that restraint."
It is the Contention of the corporation
opposing those of the government and
denying the illegal purposes charged
against it, that the industry demanded
qualities and an enterprise that lesser
industries do not demand, and must
have a corresponding latitude and fa-
cility. Indeed, it is insisted that the in-
dustry had practically', to quote the
words of Judge Buffington, he quoting
those of a witness, '''reached the limit
or nearly at which economies from a
metallurgical or mechanical standpoint
could be made effective,'" and "'that
instead, as was ^hen the practice, of
having one mill make ten or twenty or
fifty products, the greatest economy
would result from dne mill making one
product, and making that product con-
tinuously.'" In other words, that there
was a necessity for integration and res-
cue from the old conditions, — from their
I improvidence and waste of effort, — and
that in redress of the conditions the cor-
poration was formed, its purpose and
effect being "salvage, not monopoly," to
quote. the words of counsel. It was, is
the insistence, the conception of ability,
"a vision of a great business which
should embrace all lines of steel and all
processes of manufacture, from the ore
to the finished product, and which, bj-
reason of the economies thus to be effect-
ed and the diversity of products it
would be able to offer, could successfully
compete in all the markets of the world.**
[444] It is urged further that to the
discernment of that great possibility
was added a courage that dared attempt
its accomplishment, and the conception
and the courage made the formation of
the corporation notable, but did not
make it illegal.
We state the contentions; we do not
have to discuss them, or review the ar-
guments advanced for their acceptance
or repulsion. That is done in the opin-
ions of the district judges, and we may
251 V. S.
i:>19.
UNITED STATES v. UNITED STATES STEEL COKP.
444-440
well despair to supplement the force of
their representation of the conditions
antecedent to the formation of the cor-
f>oration, and in what respect and extent
its formation changed them. Of course,
in that representation and its details
there is giddance to decision, but they
must be rightly estimated to judge of
what they persuade. Our present pur-
ix)se is not retrospect for itself, however
instiTiotive, but practical decision upon
existing conditions, that we may not, by
their disturbance, produce, or even risk,
consequences of a concern that cannot
now be computed. In other words, our
consideration should be of not what the
corporation had power to do or did, but
what it has now power to do and is do-
ing, and what judgment shall be now
pronounced, — whether its dissolution, as
the government prays, or the dismissal
of the suit, as the corporation insists.
The alternatives are perplexing, in-
volve conflicting considerations, which,
regarded in isolation, have diverse ten-
dencies. We have seen that the judges
of the district court unanimously con-
curred in the view that the corporation
did not achieve monopoly, and such is
our deduction, and it is against monopoly
that the statute is directed; not against
aa expectation of it, but against its
realization; and it is certain that it was
not realized. The opposing conditions
were underestimated. The power at-
tained was much greater than that pos-
sessed by any one competitor, — ^it was
not greater than that possessed by all of
them. Monopoly, therefore, was not
achieved, and [445] competitors had to
be persuaded by pools, associations, trade
meetings, and through the social form of
dinners, all of them, it may be, viola-
tions of the law, but transient in their
purpose and eifect. They were scattered
through the years from 1901 (the year of
the formation of the corporation) until
1 911 ; but, after instances of success and
failure, were abandoned nine months be-
fore this suit vas brought. There is no
evidence that the abandonment was in
prophecy of or dread of suit; and the
illegal practices have not been resumed,
nor is there any evidence of an intention
to resume them, and certainly no ^'dan-
gerous probability" of their resimiption,
the test for which Swift & Co. v. United
States. 196 U. S. 396, 49 L. ed. 524, 25
Sup. Ct. Rep. 276, is cited. It is our
conclusion, therefore, as it was that of
the judges below, that the practices were
abandoned from a conviction of their
futility, from the operation of forces
that were not understood or were under-
64 I>. ed.
estimated, .and the case is not peculiar.
And we may say in passing that the
government cannot fear their resump-
tion, for it did not avail itself of the
offer of the district court to retain juris-
diction of the cause in order that, if il-
legal acts should be attempted, they
could be restrained.
What, then, can now be urged against
the corporation? Can comparisons in
other regards be made with its competi-
tors, and by such comparisons guilty or
innocent existence be assigned itf It is
greater in size and productive power
than any of its competitors, equal or
nearly equal to them all, but its power
over prices was not and is not commen-
surate with its power to produce.
It is true there is some testimony tend-
ing to show that the corporation had
such power, but there was also testimony
and a course of action tending strongly
to the contrary. The conflict was by
the 'judges of the district court unani-
mously resolved against the existence of
that power, and in doing so they but gave
effect to the greater weight of the evi-
dence. It is certain that no such power
[446] was exerted. On the contrary, the
only attempt at a fixation of prices was,
as already said, through an appeal to and
confederation with competitors, and the
record shows besides that when competi-
tion occurred it was not in pretense, and
the corporation declined in productive
powers, — the competitors growing either
against or in consequence of the com-
petition. If against the competition, we
have an instance of movement against
what the government insists was an ir-
resistible force; if in consequence of
competition, we have an illustration of
the adage that "competition is the life
of trade" and is not easily repressed.
The power of monopoly in the corpora-
tion under either illustration is an un-
tenable accusation.
We may pause here for a moment to
notice illustrations of the government of
the purpose of the corporation; instan-
cing its acquisition after its formation of
control over the Shelby Steel Tube
Company, the Union Steel Company,
and, subsequently, the Tennessee Com-
pany. There is dispute over the reasons
for these acquisition^ which we shall not
detail. There is, however, an important
circumstance in connection with that of
the Tennessee Company which is worthy
to be noted. It was submitted to Presi-
dent Roosevelt and he gave it his approv-
al. His approval, of course, did not make
it legal, but it gives assurance of its
legality, and we know from his earnest-
.'(51
446-449
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
ness in the public welfare he would have
approved of nothing that had even a
tendency to its detriment. And he testi-
fied he was not deceived and that he be-
lieved that ^^the Tennessee Coal & Iron
people had a property which was almost
worthless in their hands, nearly worth-
less to them, nearly worthless to the
communities in which it was situated,
and entirely worthless to any financial
institution that had the securities the
minute that any panic came, and that the
only, way to give value to it was to put
it in the hands of people whose posses-
sion of it [447] would be a guaranty
that there was value to it." Such
being the emergency, it seems like
an extreme accusation to say that
the corporation which relieved it,
and, perhaps, rescued the company and
the communities dependent upon it
from disaster, was urged by un-
worthy motives. Did illegality attach
afterwards, and howt And what was
the corporation to do with the property?
Let it decay in desuetude, or develop its
capabilities and resources? In the de-
velopment, of course, there would be
profit to the corporation, but there would
be profit as well to the world. For this
reason President Roosevelt sanctioned
the purchase, and it would seem a dis-
tempered view of purchase and result
to regard them as violations of law.
From this digression we return to the
consideration of the conduct of the cor-
poration to its competitors. BeQides the
circumstances which we have mentioned,
there are others of probative strength.
The company's officers, and, as well, its
competitors and customers, testified that
its competition was genuine, direct, and
vigorous, and was reflected in prices and
production. No practical witness was
produced by the government in opposi-
tion. Its contention is based on the size
and asserted dominance of the corpo-
ration,— alleged power for evil, not the
exertion of the power in evil. Or, as
counsl put it, '^ a combination may be
illegal because of its purpose; it may be
illegal because it acquires a dominating
power, not as a result of normal growth
and development, but as a result of a
combination of competitors." Such com-
I>osition and its resulting power consti-
tute, in the view of the government, the
olTense against the law, and yet it is ad-
mitted "no competitor came forward and
said he had to accept the Steel Corpora-
tion's prices." But this absence of com-
plaint counsel urge against the corpora-
tion. Competitors, it is said, followed
the corporation's prices because they
352
made money by the imitation. Indeed, the
imitation is urged as [448] an evidence
of the corporation's power. "Universal
imitation," counsel assert, is "an evidence
of power." In this concord of action, the
contention is, there is the sinister domi-
nance of the corporation, — "its extensive
control of the industry is such that the
others [independent companies] follow."
Counsel, however, admit that there was
"occasionally" some competition, but re-
ject the suggestion that it extended
practically to a war between the cor-
poration and the independents. Counsel
say, "They [the corporation is made a
plural] called a few — they called two
hundred witnesses out of some forty
thousand customers, and they expect
with that customer evidence to overcome
the whole train of price movement shown
since the corporation was formed." And
by ■ "movement of prices," counsel ex-
plained, "as shown by the published
prices . . . they were the ones that
the competitors were maintaining all dar-
ing the interval."
It would seem that "two hundred wit-
nesses" would be fairly representative.
Besides, the balance of the "forty thou-
sand customers" was open to the govern-
ment to draw upon. Not having done so,
is it not permissible to infer that none
would testify to the existence of the in-
fluence that the government asserts? At
any rate, not one was called, but, instead,
the opinion of an editor of a trade jour-
nal is adduced, and that of an a;Uthor and
teacher of economics whose philosophical
deductions had, perhaps, fortification
from experience as Deputy Commissioner
of Corporations and as an employee in
the Bureau of Corporations, ffis deduc-
tion'was that when prices are constant
through a definite period an artificial in-
fluence is indicated; if they vary during
such a period it is a consequence of com-
petitive conditions. It has become an
aphorism that there is danger of decep-
tion in generalities, and in a case of this
importance we should have something
surer for judgment than speculation, —
something more than a deduction equiv-
ocal of itself, even though the [449]
facts it rests on or asserts were not
contradicted. If the phenomena of
production and prices were as easily
resolved as the witness implied, much
discussion and much literature have
been wasted, and some of the problems
that are now distracting the world
would be given composing solution. Of
course, competition affects prices, but
it is onlv one among other influences, and
251 V. S.
1919.
UNITED STATES v. UNITED SPATES STEEL CORP.
440-451
do6B not, more than they, register itself
in definite and legible effect.
We magnify the testimony by its con-
sideration. Against it competitors, deal-
ers, and customers of the corporation
testify in multitude that no adventitious
interference was employed to either fix
or maintain prices, and that they were
constant or varied according to natural
conditions. Can this testimony be mini-
mieed or dismissed by inferring that, as
intimated, it is an evidence of power, not
of weakness, and power exerted not only
to suppress competition, but to compel
testimony, is the necessary inference,
iihading into perjury to deny its exer-
tion? The situation is indeed singular,
and we tnay wonder at it, — wonder that
the despotism of the corporation, so
baneful to the world in the representa-
tion of the government, did not produce
protesting victims.
But there are other paradoxes. The
government does not hesitate to present
contradictions, though only one can be
true, such being, we were told in our
school books, the 'principle of contra-
iliction.'' In one, competitors (the inde-
pendents) are represented as oppressed
by the superior power of the corporation;
in the other, they are represented as as-
cending to opulence by imitating that
power's prices, which they could not do
if at disadvantage from the other condi-
tions of competition; and yet confederat-
ed action is not asserted. If it were, this
suit would take on another cast. The com-
petitors would cease to be the victims of
the corporation, and would become its ac-
complices. And there is no other alterna-
tive. The suggestion [450] that lurks in
the c]:ovemment's contention that the ac-
ceptance of the corporation'^s prices is
the submission of impotence to irresis-
tible power is, in view of the testimony
of the competitors, untenable. They, as
we have seen, deny restraint in any meas-
ure or Illegal influence of any kind. The
government, therefore, is reduced to the
assertion that the size of the corpora-
tion, the power it may have, not the ex-
ertion of the power, is an abhorrence to
the law; or, as the government says, "the
combination embodied in the corporation
unduly restrains competition by its nec-
essary effect [the italics are the emphasis
of the government], and therefore is un-
lawful regardless of purpose." "A
wrongful purpose," the government adds,
is "matter of aggravation." The illegal-
ity is statical, purpose or movement of
any kind only its emphasis. To assent
to that, to what extremes should we be
led? Competition consists of business
«4 L. ed.
activities and ability, — they make its
life; but there may be fatalities in it.
Are the activities to be encouraged when
militant, and suppressed or regulated
when triumphant because of the domi-
nance attained? To such paternalism the
government's contention, which regards
power rather than its use the determin-
ing consideration, seems to conduct.
Certainly conducts, we may say, for it is
the inevitable logic of the government's
contention that competition must not
only be free, but that it must not be
pressed tQ the ascendancy of a competi-
tor, for in ascendancy there is the men-
ace of monopoly.
We have pointed out that there are
several of the government's contentions
which are difficult to represent or meas-
ure; and the one we are now considering,
that is, the power is "unlawful regard-
less of purpose/' is another of them. It
seems to us that it has for its ultimate
principle and justification that strength
in any producer or seller is a menace to
the public interest and ill^^ because
there is potency in it for mischief. The
regression is extreme, but [451] short
of it the government cannot stop. The
fallaoy it conveys is manifest.
The corporation was formed in 1901;
no act of aggression upon its competi-
tors is charged against it; it confederat-
ed with them at times in offense against
the law, but abandoned that before this
suit was brought, and since 1911 no act
in violation of law can be established
against it except its existence be such
an act. This is urged, as we have seen,
and that the interest of the public is in-
volved, and that such interest is para-
mount to corporation or competitors.
Granted, — though it is difficult to see
how there can be restraint of trade when
there is no restraint of competitors in
the trade nor complaints by customers,
— how can it be worked out of the situa-
tion and through what proposition of
lawt Of course it calls for nothing other
than a right application of the law, and,
to repeat what we have said above, shall
we declare the law to be that size is an
offense, even though it minds its own
business, because what it does is imitat-
ed? The corporation is undoubtedly of
impressive size, and it takes an effort of
resolution not to be affected by it or
to exaggerate its influence. But we must
adhere to the law, and the law does not
make mere sine an offense or the exist-
ence of unexerted power an offense. It,
we repeat, requires overt acts, and trusts
to its prohibition of them and its power
■o repress or punish them. It does not
23 85a
451-454
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
compel competition, nor require all that
is possible.
Admitting, however, that there is per-
tinent strength in the propositions of the
government, and in connection with
them, we recall the distinction we made
in the Standard Oil Co. Case (221 U. S.
1, 77, 55 L. ed. 619, 652, 34 L.R.A.(N.S.)
834, 31 Sup. Ct. Rep. 502, Ann. Cas.
1912D, 734) between acts done in viola*
tion of the statute and a condition
brought about which, "in and of itself,
is not only a continued attempt to mo-
nopolize, but also a monopolization.'' In
such case, we declared, ^^the duty to en-
force the statute" required "the appli-
cation of broader and more controUing"
remedies [452] than the other. And
the remedies applied conformed to
the declaration; ' there was prohi-
bition of future acts and there
was dissolution of "the combination
found to exist in violation of the stat-
ute'' in order to "neutralize the ex-
tension and continually operating
force which the possession of the power
imlawfuUy obtained" had "brought"
and would "continue to bring about."
Are the case and its precepts appli-
cable heret The Steel Corporation by its
formation united under one control com-
peting companies, and thus, it is urged,
a condition was brought about in viola-
tion of the statute, and therefore illegal,
and became a "continually operating
force," with the 'possession of power
unlawfully obtained."
But there are countervailing consid-
erations. We have seen whatever there
was of wrong intent could not be ex-
ecuted ; whatever there was of evil effect
was discontinued before this suit was
brought, and this, we think, determines
the decree. We say this in full realiza-
tion of the requirements of the law. It
is clear in its denunciation of monopo-
lies, and equally clear in its direction
that the courts of the nation shall pre-
vent and restrain them (its language
is "to prevent and restrain violations
of" the act), but the command is neces-
sarily submissive to the conditions
which may exist and the usual powers of
a court of equity to adapt its remedies
to those conditions. In other words, it
is not expected to enforce abstractions
and do injury thereby, it may be, to the
purpose of the law. It is this flexibility
of discretion — indeed, essential function
— that makes its value in our jurispru-
dence,— value in this case as in others.
We do not mean to say that the law is
not its own measure, and that it can be {
disregarded, but only that the appro-
354
priate relief in each instance is remitted
to a court of equity to determine; not,
and let us be explicit in this, to advance
a policy contrary to that of the law, but
in submission to the law and its policy,
and in execution of both, and it is cer-
tainly a [453] matter for consideration
that there was no l^al attack on the
corporation until 1911, ten years after its
formation and the commencement of its
career. We do not, however, speak of the
delay simply as to its time, or Bay that
there is estoppel in it because of its
time, but on account of what was done
during that time, — the many millions of
dollars spent, the development made,
and the enterprises undertaken; the in-
vestments by the public that have been
invited and are not to be ignored. And
what of the foreign trade that has been
developed and exists? The government,
with some inconsistency, it seems to lis,
would remove this from the decree of
dissolution. Indeed, it is pointed out
that under congressional legislation in
the Webb Act the foreign trade of the
corporation is reserved to it. And fur-
ther, it is said, that the corporation has
constructed a company called the Prod-
ucts Company which can be '^ery eas-
ily preserved as a medium through
which the steel business might reach the
balance of the world," and that in the
decree of "dissolution that could be pro-
vided." This is supplemented by the
suggestion that not only the Steel Cor-
poration, 'Hiut other steel makers of the
country, could function through an in-
strumentality created under the Webb
Act."
The propositions and suggestions do
not commend themselves. We do not
see how thcf Steel Corporation oan be
such a benefieial instrumentality in the
trade of the world and its beneficence be
preserved, and yet be such an evil in-
strumentality in the trade of the United
States that it must be destroyed. And
by whom and how shall all the adjust-
ments of preservation or destruction
be madef How can the corporation be
sustained and its power of control over
its subsidiary companies be retained
and exercised in the foreign trade and
given up in the domestic trade f The
government presents no solution of the
problem. CounseF realize the difficulty
and seem to think that its solution or
its evasion is in the suggestion [454]
that the Steel Corporation and "other
steel makers could function through an
instrumentality created under the Webb
Act." But we are confronted with the
neccssitv of immediate judicial action
251 V. S.
19)0.
UNITED STATES v. UNITED STATES STEElr CORP.
454-45(i
under existing laws, not action under
<.*onceptions which may never be capable
of legal execution. We must now de-
cide, and we see no guide to decision in
the propositions of the government.
The government, however, tentatively
presents a proposition which has some
tangibility. It submits that certain of
the subsidiary companies are so mechan*
ically equipped and so officially directed
as to be released and remitted to inde-
pendent action and individual interests
and the eompetition to whic^ such inter-
ests prompt, without any disturbance to '
business. The companies are enumer-
ated. They are the Carnegie Steel Com-
pany (a oombination of the old Carnegie
Company, the National Steel Company,
and the American Steel Company), the
Federal Steel Company, the Tennessee
Company, and the Union Steel Company
(a combination of the Union Steel Com-
pany of Donora, Pennsylvania, Sharon
Stec4 Company of Sharon, Pennsyl-
vania, and Sharon Tin Plate Company).
They are fully integrated, it is said,
possess their own supplies, facilities of
transportation and distribution. They
are subject to the Steel Corporation is,
in effect, the declaration, in nothing but
its control of their prices. We may say
parenthetically that they are defend-
ants in the suit and charged as
offenders, and we have the strange cir-
cumstance of violators of the law be-
ing urged to be used as expedients of
the law.
But let us see what guide to a proced-
ure of dissolution of the corporation
and the dispersion as well of its sub-
sidiary companies, for they are asserted
to be illegal combinations, is prayed.
And the fact must not be overlooked or
underestimated. The prayer of the gov-
ernment calls for not only a disruption of
present conditions, but the restoration
of the conditions of twenty years ago;
if [455] not literally, substantially.
Is there guidance to this in the Stand-
ard Oil Oo, Case and the American To-
baoco Co. Case, 221 U. S. 106, 55 L. ed.
663, 31 Sup. Ct. Rep. 632 1 As an ele-
ment in determining the answer we shall
have to compare the cases with that at
bar, but this can only be- done in a gen-
eral way. And the law necessarily must
be kept in mind. No other comment of
it is necessary. It has received so much
exposition that it and all it prescribes
and proscribes should be considered as
a Consciously directing presence.
The Standard Oil Company had its
origin in 1882, and through successive
forms of combinations and agencies it
94 Tj. ed.
progressed in illegal power to the day
of the decree, even attempting to cir-
cumvent by one of its forms the deci-
sion of a court against it. And its
methods in using its power was of the
kind that Judge Woolley described as
''brutal,'^ and of which practices, he said,
the Steel Corporation was absolutely
guiltless. We have enumerated them,
and this reference to them is enough.
And of the practices, this court said, no
disinterested mind could doubt that the
purpose was ''to drive others from the
field and to exclude them from their
right to trade, and thus accomplish the
mastery which was the end in view.''
It was further said that what was done
and the final culmination "in the plan
of the New Jersey corporation" made
''manifest the continued existence of the
intent . . . and impelled the expan-
sion of the New Jersey corporation."
It was to this corporation, which repre-
sented the power and purpose of all that
preceded, that the suit was addressed
and the decree of the court was to ap-
ply. What we have quoted contrasts
that case with this. The contrast is
further emphasized by pointing out how,
in the case of the New Jersey corpora-
tion, the original wrong was reflected
in and manifested by the acts which fol-
lowed the organization, as described by
the court. It said: "The exercise of
the power which resulted from that or-
g^ization fortifies the foregoing conclu-
sions [as to monopoly, etc.], since the
[456] development which came, the ac-
quisition here and there which ensued
of every efficient means by which com-
petition could have been asserted, the
slow but resistless methods which fol-
lowed by which means of transportation
were absorbed and brought under con-
trol, the system of marketing which was
adopted, by which the country was di-
vided into districts and the trade in
each district in oil was turned over to
the designated corporation within the
combination and all others were exV
cluded, all lead the mind up to a convic-
tion of a purpose and intent which we
think is so certain as practically to
cause the subject not to be within the
domain of reasonable contention."
The American Tobacco Co. Case has
the same bad distinctions as the Stand-
ard Oil Co. Case. The illegality in
which it was formed [there were two
American Tobacco Companies, but we
use the name as designating the new
company, as representing the combina-
tions of the suit] continued, indeed,
progressed in intensity and defiance to
355
456-458
SUPREME COUKT OF THE UNITED STATES.
OOT. TSEMf
the moment of decree. And it is the
intimation of the opinion, if not its di-
rect assertion, that the formation of the
company (the word "combination" is
used) was preceded by the intimidation
of a trade war, "inspired by one or more
of the minds which brought about and
became parties to that combination."
In other words, the purpose of the com-
i)ination was signaled to competitors,
and the choice presented to them was
submission or ruin, — to become parties
to the illegal enterprise or be driven
•'out of the business." This was the
purpose and the achievement, and the
processes by which achieved, this court
enumerated to be the formation of new
companies, taking stock in others to
"obscure the result actually attained,
but always to monopolize and retain
power in the hands of the few and mas-
tery of the trade; putting control in the
hands of seemingly independent corpo-
rations as barriers .to the entry of others
into the trade; the expenditure of mil-
lions upon millions in buying out plants,
not to utilize them, but to close them;
by constantly [457] recurring stipula-
tions by which numbers of persons,
whether manufacturers, stockholders, or
employees, were required to bind them-
selves, generally for long periods, not
to compete in the future. In the
American Tobacco Co. Case, there-
fore, as in the Standard Oil Co. Case,
the court had to deal with a per-
sistent and systematic lawbreaker,
masquerading under legal forms, and
which not only had to be stripped of its
disguises, but arrested in its illegality.
A decree of dissolution was the mani-
fest instrumentality, and inevitable.
We think it would be a work of sheer
supererogation to point out that a de-
cree in that case or in the Standard Oil
Co. Case furnishes no example for a de-
cree in this.
In conclusion, we are unable to see
that the public interest will be served
by yielding to the contention of the
government resi>ecting the dissolution
of the company or the separation from
it of some of its subsidiaries; and we do
see in a contrary conclusion a risk of in-
jury to the public interest, including a
material disturbance of, and, it may be,
serious detriment to, the foreign trade.
And in submission to the policy of the
law and its fortif>dng prohibitions the
public interest is of paramount regard.
We think, therefore, that the decree of
the District Court should be affirmed.
So ordered.
356
Ulr. Justice McEeynoldB and Mr. Jus-
tice Brandeis took no part in the con-
sideration or decision of the case.
Mr. Justice Day, dissenting:
This record seems to me to leave no
fair room for a doubt that the defend-
ants, the United States Steel Corpora-
tion and the several subsidiary corpora-
tions which make up that organization,
were formed in violation of ihe Sher-
man Act [Act of July 2, 1890, 20 Stat,
at L. 209, chap. 647, Comp. Stat, § 8820,
-9 Fed. Stat. Anno. 2d ed. 644]. I m
unable to accept the conclusion [458J
which directs a dismissal of the bill in-
stead of following the well-settled prac-
tice, sanctioned by previous decisions of
this court, requiring the dissolution of
combinations made in direct violation
of the law.
It appears to be thoroughly estab-
lished that the formation of the corpora-
tions here under consideration constitut-
ed combinations between competitors, in
violation of law, and intended to remove
competition and to directly restrain
trade. I agree with the concliisions of
Judges Woolley and Hunt, expressed in
the court below (223 Fed. 161 et seq.),
that the combinations were not submis-
sions to business conditions, but were
designed to control them for illegal pur-
poses, r^ardless of other consequences,
and "were made upon a scale that was
huge and in a manner that was wild,"
and^ "properties were assembled and
combined with less regard to their im-
portance as integral parts of an inte-
grated whole than to the advantages
expected from the elimination of the
competition which theretofore existed
between them." Those judges found
that the constituent companies of the
United States Steel Corporation, nine
in number, were themselves combina-
tions of steel manufacturers, and the
effect of the organization of these com-
binations was to give a control over the
industry at least equal to that thereto-
fore possessed by the constituent com-
j>anies and their subsidiaries. Tiiat the
Steel Corporation was a combination of
combinations by which, directly or in-
directly, 180 independent concerns were
brought under one control, and in the
language of Judge Woolley (p. 167) :
"VVithout referring to the great mass
of figures which beai*s upon this aspect
of the case, it is clear to me that com-
binations were created by acquiring
competing producing concerns at figures
not based upon their physical or busi-
ness values, as independent and sepa-
251 V. S.
ItlJO.
UNITED STATHS v. UNITED STATES STEEL CORP.
46&-ldl
rate producers, but upon their values in
combination; that is, upon their values
as manufacturing plants and business
[459] concerns with competition elimi-
nated. In many instances, capital stock
was issued for amounts vastly in excess
of the values of the properties pur-
I* based, thereby capitalizing the antici-
pated fruits of combination. The con-
trol acquired over the branches of the
industry to which the combinations
partictilarly related,-, measured by the
amount of production, extended in
some instances from 80 per cent to
95 per cent of the entire output of
the country, resulting in the imme-
diate increase in prices, in some cases
double and in others treble what they
were before, yielding large dividends
upon greatly inflated capital.
''The immediate, as well as the nor-
mal, effect of such combinations, was in
all instances a complete elimination of
competition between the concerns ab-
sorbed, and a corresponding restraint of
trade.**
The enormous overcapitalization of
companies and the appropriation of
$100,000,000 in stock to promotion ex-
penses were represented in the stock
issues of the new organizations thus
formed, and were the basis upon which
large dividends have been declared from
the profits of the business. This record
shows that the power obtained by the
corporation brought under its control
large competing companies which were
of themselves illegal combinations, and
succeeded to their power; that some of
the organizers of the Steel Corporation
were parties to the preceding combina-
tions, participated in their illegality,
and, by uniting them under a common
direction, intended to augment and per-
petuate their power. It is -the irresist-
ible conclusion from these premises that
great profits to be derived from unified
control were the object of these organi-
zations.
The contention must be rejected that
the combination was an inevitable evolu-
tion of industrial tendencies compelling
union of endeavor. Nothing could add
to the vivid accuracy with which Judj2:e
Woolley,- speaking for himself [460]
and Juc^e Ilunt, has stated the illegal-
ity of the organization, and its purpose
♦o i»ombine in one great corporation the
previous combinations by a direct vio-
lation of the purposes and terms of the
Sherman Act.
For many years, as the record dis-
closes, this unlawful organization ex-
♦*rted its power to control and maintain
a4 Ij. ed.
prices by pools, associations, trade meet-
ings, and as the result of discussion and
agreements at the so-called "Gary din-
ners," where the assembled trade op-
ponents secured co-operation and joint
action through the machinery of special
committees of competing concerns, and
by prudent provision took into account
the possibility of defection, and the
means of controlling and perpetuating
that industrial harmony which arose
from the control and maintenance of
prices.
It inevitably follows that the cor-
poration violated the law in its forma-
tion and by its immediate practices.
The power, thus obtained from the com-
bination of resources almost unlimited
in the aggregation of competins: organ-
izations, had within its control the dom-
ination of the trade, and the ability to
fix prices and restrain the free flow of
commerce upon a scale heretofore unap-
proached in the history of corporate or-
ganization in this country.
These facts established, as it seems to
me they are by the record, it follows
that if the Sherman Act is to be given
efficacy, there must be a decree undoing,
so far as is possible, that which has
been achieved in open, notorious, and
contitaued violation of its provisions.
I agree that the act offers no objec-
tion to the mere size of a corporation,
nor to the continued exertion of its law-
ful power, when that size and pjower
have been obtained by lawful means and
developed by natural growth, although its
resources, capital, and strength may give
to such corporation a dominating place
in the business and industry "with which
it is concerned. It is entitled to main-
tain its size and the power that legiti-
mately goes with it, provided [461] no
law has been transgressed in obtaining
it. But I understand the reiterated deci-
sions of this court construing the Sher-
man Act to hold that this power may
not legally be derived from conspiracies,
combinations, or contracts in restraint
of trade. To permit this would be to
practically annul the Sherman Law by
judicial decree. This principle has been
so often declared by the decisions that
it is only necessary to refer to some of
them. It is the scope of such combina-
tions, and their power to suppress and
stifle competition and create or tend to
create monopolies, which, as we have
declared so often as to make its reitera-
tion monotonous, it was the purpose of
the Sherman Act to condemn, including
all combinations and conspiracies to re-
strain the free and natural flow of trade
357
461-463
SUPREME COURT OF THE UNITED STATES.
Got. Tibm,
in the channels of interstate commerce.
Pearsall v. Great Northern R. Co. 161
U. S. 646, 676, 677, 40 L. ed. 838, 848,
849, 16 Sup. Ct. 'Rep. 706; Trans-Mis-
souri Freight Asso. Case, 166 U. S. 290,
324, 41 L. ed. 1007, 1021, 17 Sup. Ct.
Rep. 540 J Northern Securities Case, 193
U. S. 197, 48 L. ed. 679, 24 Sup. Ct. Rep.
436; Addyston Pipe & Steel Co. v.
United States, 175 U. S. 211, 238, 44
L. ed. 136, 146, 20 Sup. Ct. Rep. 96;
Harriman v. Northern Securities Co.
197 U. S. 244, 291, 49 L. ed. 739, 761,
26 Sup. Ct. Rep. 493; Union Pacific
R. Co. Case, 226 U. S. 61, 88, 57 L. ed.
124, 134, 33 Sup. Ct. Rep. 63. While it
was not the puipose of the act to con-
demn normal and usual contracts to law-
fully expand business and further legit-
imate trade* it did intend to effectively
reach and control all conspiracies and
combinations or contracts of whatever
form which unduly restrain competition
and unduly obstruct the natural course
of trade, or which, from their nature or
effect', have proved effectual to restrain
interstate commerce. Standard Oil Co.
V. United States, 221 U. S. 1, 66 L. ed.
619, 34 L.R.A.(N.S.) 834, 31 Sup. Ct.
Rep. 602, Ann. Cas. 1912D, 734; United
States y. American Tobacco Co. 221 U.
S. 106, 66 L. ed. 663, 31 Sup. Ct. Rep.
632; United States v. Reading Co. 226
U. S. 324, 57 L. ed. 243, 33 Sup. Ct. Rep.
90 ; Straus v. American Publishers* Asso.
231 U. S. 222, 68 L. ed. 192, L.R.A.
1916A, 1099, 34 Sup. Ct. Rep. 84, Ann.
Cas. 1915A, 369 ; Eastern. States Retail
Lumber Dealers' Asso. v. United States,
234 U. S. 600, 68 L. .ed. 1490, L.R.A.
1916A, 788,- 34 Sup. Ct. Rep. 951.
This statute has been in force for
nearly thirty years. It has been fre-
quently before this court for considera-
tion, and the nature and character of the
relief to be granted [462] against
combinations found guilty of violations
of it have been the subject of much
consideration. Its interpretation has
become a part of the law itself, and if
changes are to be made now in its con-
struction or operation, it seems to me
that the exertion of such authority rests
with Congress, and not with the courts.
The 4th section is intended to give to
courts of equity of the United States
the power to effectively control and re-
strain violations of the act. In none of
the cases which have been before the
courts was the character of the relief to
be granted, where organizations were
found to be within the condemnation of
the act, more thoroughly considered than
in the Standard Oil and American To-
S58
bacco Co. Cases reported in 221 U. S.
In the former case, considmag the
measure of relief to be granted in the
case of a eombination, certainly not
more obnoxious to the Sherman Act
than the court now finds the one under
consideration to be, this court declared
that it must be twofold in character (221
U. S. 78) : "1st. To forbid the doing in
the future of acts like those which we
have found to have been done in the
past which would be violative of the
statute. 2d. The exertion of such meas-
ure of relief as will effectually dissolve
the combination found to exist in viola-
tion of the statute, and thus neutralize
the extension and continually operating
force which the possession of the power
unlawfully obtained has brought and
will continue to bring about."
In the American Tobacco Co. Case
the nature of the relief to be granted
was again given consideration, and it
was there concluded that the only effect-
ual remedy was to dissolve the combina-
tion and the companies comprising it,
and for that purpose the cause was re-
manded to the district court to hear the
parties and determine a method of dis-
solution and of recreating from the ele-
ments composing it "a new condition
which should be in honest harmony with,
and not repugnant to, the law." In that
[463] case the corporations dissolved
had long been in existence, and the of-
fending companies were organised years
before the suit was brought and before
the decree of dissolution was finally
made. Such facts were considered no
valid objection to the dissolution of
these powerful organizations as the only
effective means of enforcing the pur-
poses of the Sherman Anti-trusit Act.
These eases have been frequently fol-
lowed in this court, and in the lower
Federal courts, in determining the na-
ture of the relief to be granted, and I
see no occasion to depart from them
now.
As I understand the conclusions of the
court affirming the decree directing dis-
missal of the bill, they amount to this:
that these combinations, both the hold-
ing company and the subsidiaries which
comprise it, although organized in plain
violation and bold defiance of the pro-
visions of the act, nevertheless are im-
mune from a decree effectually ending
the combinations and putting it out of
their power to attain the unlawful pur-
poses sought, because of some reasons of
public policy requiring such conclusion.
I know of no public policy which sanc-
tions a violation of the law, nor of anv .
251 V. 8.
1919.
UNITED STATKS v. LTNITED STATES STEEL CORP.
463-400
inconvenience to trade, domestic or for-
eign, which should have the effect of
placing combinations, which have been
able to thus organize one of the greatest
industries of the country in defiance of
law, in an impregnable position above
the control of the law forbidding such
combinations. Such a conclusion does
violence to the policy which the law was
intended to enforce, runs counter to the
decisions of the court, and necessarily
results in a practical nullification of the
act itself.
There is no mistaking the terms of the
act as they have hitherto been interpret-
ed by this court. It was not intended
to merely suppress unfair practices, but,
as its history &nd terms amply show, it
was intended to make it criminal to form
combinations or engage in conspiracies
or contracts in restraint of interstate
trade. The remedy by injunction, at the
instance of the Attorney General, was
[464] given for the purpose of ena-
bling the courts, as the statute states, to
prolubit such conspiracies, combinations,
and contracts, and this court, interpret-
ing its provisions, has held that the prop-
er enforcement of the act requires decrees
to end combinations by dissolving them
and restoring as far as possible the com-
petitive conditions which the combina-
tions have destroyed. I am unable to
see force in the suggestion that public
4>olioy, or the assumed disastrous effect
ui)on foreign trade of dissolving the un-
lawful combination, is sufficient to en-
title it to immunity from the enforce-
ment of the statute.
Nor can I yield assent to the proposi-
tion that this combination has not ac-
quired a dominant position in the trade
which enables it to control prices and'
production when it sees fit to exert its
power. Its total assets on December 31,
1913, were in excess of $1,800,000,000;
its outstanding capital stock was $868,-
583,600; its surplus $151,798,428. Its
cash on hand ordinarily was $75,000,-
000 ; this sum alone exceeded the total
capitalization of any of its competitors,
and, with a single exception, the total
capitalization and surplus of any one of
them. That such an organization, thus
fortified and equipped, could, if it saw
fit, dominate the trade and control com-
petition, would seem to be a business
proposition too plain to require extended
argument to support it. Its resources,
strength, and comprehensive ownership
of the means of production enable it to
adopt measures to do again as it has
done in the past; that is, to effectually
dominate and <*ontrol the st<»el business
44. fj. cd.
of the country. From the earliest de-
cisions of this court it has been declared
that it was the effective powAr of such
orgfuiizations to control and restrain
competition and the freedom of trade
that Congress intended to limit and con-
troL That the exercise of the power
may be withheld, or exerted with for-
bearing benevolence, does not place such
combinations beyond the authority of
the statute which was intended to pro-
hibit their formation, [4651 and, when
formed, to deprive them of the power
unlawfully attained.
It is said that a complete monopoliza-
tion of the steel business was never at-
tained by the offending combinations.
To insist upon such result would be be-
yond the requirements of the statute,
and in most cases practically impossible.
As we said in dealing with the packers'
combination in Swift & Co. v. United
States, 196 U. S. 396, 49 L. ed. 524, 25
Sup. Ct. Rep. 276 : **Where acts are not
sufficient in themselves to produce a re-
sult which the law seeks to prevent, —
for instance, the monopoly, — ^but require
further acts in addition to the mere
forces of nature to bring that result to
pass, an intent to bring it to pass is
necessary in order to produce a danger-
ous probability that it will happen.
Com. V. Peaslee, 177 Mass. 267, 272, 59
N. E. 55. But when that intent and
the consequent dangerous probability
exist, this statute [Sherman Act] like
many others and like the common law in
some cases, directs itself against that
dangerous probability as well as against
the completed result."
It is affirmed that to grant the govern-
ment's request for a remand to the dis-
trict court for a decree of dissolution
would not result in a change in the con-
ditions of the steel trade. Such is not
the theory of the Sherman Act. That
act was framed in the belief that at-
tempted or accomplished monopoliza-
tion, or combinations which suppress
free competition, were hurtful to the
public interest, and that a restoration
of competitive conditions would benefit
the public. We have here a combina-
tion in control of one half of the steel
business of the country. If the plan
were followed, as in the American To-
bacco Co. Case, of remanding the case
to the district court, a decree might be
framed restoring competitive conditions
as far as practicable. See United States
V. American Tobacco Co. 191 Fed. 371.
In that case the subject of reconstruc-
tion so as to restore such conditions was
elaborated and carefully [466] consid-
4G6
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
ered. In my judgi^ent the principles there
laid down, if followed now, would make a
very material difference in the steel in-
dustry. Instead of one dominating^ cor-
poration, with scattered competitors,
there would be competitive conditions
throughout the whole trade which would
carry into effect the policy of the law.
It seems to me that if this act is to be
given effect, the bill, under the findings
of fact made by the court, should not be
dismissed, and the cause should be re-
manded to the district court, where a
plan of effective and final dissolution of
the corporations should be enforced by
a decree framed for that purpose.
Mr. Justice Pitney and Mr. Justice
Clarke concur in this dissent.
PETER SCHAEFER, Plff. in Err.,
v.
UNITED STATES. (No. 270.)
PAUL VOGEL, Plff. in Err.,
v.
UNITED STATES. (No. 271.)
LOUIS WERNER, Plff. in Err.,
v.
UNITED STATES. (No. 272.)
MARTIN DARKOW, Plff. in Err.,
V.
UNITED STATES. (No. 273.)
HERMAN LEMKE, Plff. in Err.,
V.
UNITED STATES. (No. 274.)
(S«e S. G. Reporter's ed. 466-501.)
Jury — right to, In erlmlnal case •—
several defendants ^ peremptory
cUallenges.
L The constitutional rights of several
defendants tried jointly are 'not infringed
by the requirement of a Federal statute
that, in cases where there are several de-
fendants, they shall be treated as a single
party for the purpose of peremptory chal-
lenges.
[For other cases, see Jury, 1. d, 2, In Digest
Sup. Ct. 1908. J
Appeal — prejudicial error — Instruc-
tions — eyldeiice — judicial notice.
2. No valid objection can be urged
against that part of a charge to the jury,
in a prosecution under the Espionage Act
of June 15, 1917, for publishing and con-
spiring to publish false news despatches
with intent to interfere with the military
and naval success of the United States
and promote the success of its enemies, to
cause insubordination in the military or
naval forces, and to obstruct the recruiting
or enlistment service, in which the minds
of the jurors were directed to the gist of
the case, which was despatches received
and then changed to expr€>s3 falsehood, to
the detriment of the success of the United
States, and they were told that, in passing
upon the questions of the falsity oi these
publications and of whether the United
States was at war, and any other questions
which were, in like manner, a matter of
public knowledge and of general informa-
tion, they might call upon the fund of gen-
eral information which was in their keep-
inir.
[For other cases, see Appeal and Error, VIII.
m, 4, a, in Digest Sup. Ct. 1908.]
Constitutional law — freedom of speech
and press — Espionage Act.
3. The freedom of speech and press
guaranteed by the Federal Constitution
was not violated by the provisions •f the
Espionage Act of June 15, 1917, under
which convictions may he had for publish-
ing in the German language, during th^
war with (Germany, articles derisively, con-
temptuous of the war activities of the
United States, and intended to convey the
idea that the war was not demanded by
the people, was the result of the machina-
tions of the executive power, and which
in effect justified the German aggressions.
[For other cases, see ConBtitutlonal Law, IV.
d. In Digest Sup. Ct. 1908.]
'Evidence — sufficiency to support con-
viction — several counts in indict-
ment.
4. The evidence introduced in a crimi-
nal case need not have been sufficient as to
all the counts in the indictment in order
to support a judgment upon a verdict of
guilty, where the sentence imposed does
]N'ote. — On right to trial by jury, gen-
erally— see notes to Justices of Supreme
Court V. United States, 19 L. ed. U. S.
658; Eilenbecker v. District Ct. 33 L.
ed. U. S. 801; Gulf, C. & S. F. R. Co. v.
Shane, 39 L. ed. U. S. 727; and Perego
V. Dodge, 41 L. ed. U. S. 113.
As to challenges to jurors — see notes
to Harrison v. United States, 41 L. ed.
U. S. 104, and Gulf, C. & S. F. R. Co.
v. Shane, 39. L. ed. U. S. 727.
On the right of jurors to act on their
own knowledge — see notes to State v.
Oaynion, 31 L.R.A. 489, and Solberg v.
Robbins Lumber Co. 37 L.R.A.(N.S.)
790.
On constitutional freedom of speech
and of the press — see note to Cowan v.
Fairbrother, 32 L.R.A. 829.
As to validity of legislation directed
against social or industrial propaganda
deemed to be of a dangerous tendency —
see note to State v. Moilen, 1 A.L.R.
336.
For a review of decisions under the
Espionage Act of June 15, 1917, — see
note to United States v. Krafft, L.R.A.
191 8F, 410.
251 V, 8.
1919.
SCHAEfER V. UNITED STATES.
468, 469
not exceed that which might lawfully have
been imposed under any single count. It
suffiees that the evidence be sufficient to
sustain any one of the counts.
{ For other cases, see ETldence, XII. n ; Trial*
IX. b. In Digest Sop. Ct. 1908.]
[Nos. 270, 271, 272, 273, and 274.]
Argued October 21, 1019. Decided March
1, 1920.
CTVE WRITS of Error to the Dis-
J^ tnet Court of the United States for
the Eastern District of Pennsylvania to
review convictions under the Espionage
Act. Judgments in Nos. 272, 273, and
274 affirmed; in Nos. 270 and 271 re-
versed and remanded for further pro-
ceedings.
See same case below, 254 Fed. 135.
The facts are stated in the opinion.
Mr. Wmiam A. Chray argiied the
c&uae and filed a brief for plaintiffs in
error.
Mr. Henry John Nelson also argued
the cause and filed a brief for plaintiffs
in error Schaefer and Vogel.
Assistant Attorney General Stewart
argued the cause, and, with Solicitor
General King and Mr. W. C. Heron,
filed a brief for defendant in error.
[468] Mr. Justice McKenna delivered
the opinion of the court:
Indictment in nine counts under the
Espionage Act [June 15, 1917, 40 Stat.
at L. 217, chap. 30, Comp. Stat. §
10,212a, Fed. Stat. Anno. Supp. 1918,
p. 120]. Preliminary to indicating the
special offenses, we may say that the
indictment charges that at the dates
mentioned therein the Philadelphia
Tag^blatt and the Philadelphia Sonn-
tagsblatt were newspapers printed and
published in the Q«rman lang^oage in
Philadelphia by the PhiladelpMa Tago-
blatt Association, a Pennsylvania cor-
poration of which defendants were
officers; Peter Schaefer being president,
Vogel treasurer, Werner chief editor,
Darkow manag^g editor, and Lemke
business manager.
That on the dates mentioned in the
indictment the United States was at
war with the Imperial German Govern-
ment, and the defendants '%iowingly,
wilfully, and unlawfully" "caused to be
printed, published, and circulated in
and through" one or other of those
newspapers, false reports and state-
ments of certain news items or de-
spatches purporting to be from foreign
places, or otherwise violated the Espion-
•4 L. ed.
age Act through editorials or other pub-
lished matter.
In count one the charge is that the
intent was '^to promote the success of
the enemies of the United States ; to
wit, the said Imperial German Govern-
ment."
In counts two, three, and four the
charge is the obstruction of the "re-
cruiting and enlistment service of the
United States, to the injury of the
Umted States."
In count five the purpose of publica-
tion is charged to be the making of
false reports and statements with intent
to promote the success of the enemies of
the United States.
In counts six, seven, and eight there
are charges of intent to like purpose.
Count nine charges a conspiracy en-
tered into by defendants, to be executed
through the agency of the two [4691
newspapers, for the purpose (a) to
make false reports and statements with
intent to interfere with the military
and naval operations and success of the
United States and to promote the suc-
cess of its enemies; (b) to cause in-
subordination, disloyalty, and mutiny
in the Inilitary and naval forces of the
United States; (c) to obstruct the re-
cruiting and enlistment service of the
United States. And there were specifi-
cations in support of the charges.
Demurrers were opposed to the in-
dictment, which stat^ in detail the in-
sufficiency of the indictment to consti-
tute offenses. The demurtrers were over-
ruled, the court considering that the
grounds of attack upon the indictment
could be raised at the trial.
The defendants were then arraigned
and pleaded not guilty, and, when called
for trial, moved for a severance, ui^-
ing as the reason that the courts had
ruled that defendants, when tried joint-
ly, must join in "their challenge to
jurors." Counsel in effect said they
contested the ruling, and considered the
statute upon which it was based to be
"in derogation of the individuaPs rights,
guaranteed to him by the Constitution."
Other grounds for severance were
urged, but the court denied the motion,
and to the ruling each of the defend-
ants e^fcepted. In fortification of the
motion for severantce, at the selection of
the jury, counsel, in succession for each
defendant, challenged particular jurors
peremptorily, expressing at -the same
time the acoeptanee by the other de-
fendants of the challenged jurors.
After fen such challenges had been
3«1
4U9 472
SUPREME COURT OF THE UNITED STATES.
Oct. Tcbm,
made, counsel interposed a peremptory
challenge to other jurors in behalf of
all of the defendants, stating as rea-
sons that they "collectively" were not
"bound by what their codefendants may
have done with respect to any particu-
lar juror, and that, therefore, they are
still within their rights." The court
denied the challenge, ruling that, under
the provisions of the act of Congress,
"all the defendants will be deemed a
single party, [470] and ten challenges
having been exercised in the aggregate,
the right of challenge is exhausted."
Defendants excepted and the trial
proceeded, resulting in a verdict as fol-
lows: Schaefer and Vogei guilty on
count nine only; Werner on counts one,
two, four, and nine; Darkow on one,
three, five, six, and nine; Lemke on
count nine only.
Motions for arrest of judgment and
for a new trial were made and over-
ruled, and defendants were sentenced to
various terms of imprisonment.
The case is here upon writ of error
directly to the district court, as involv-
ing constitutional questions.
It is conceded that the constitutional-
ity of the Espionage Act has been sus-
tained (Sugarman v. United States, 249
U. S. 182, 63 L. ed. 550, 39 Sup. Ct.
Rep. 191), but the constitutionality of
the Act of March 3, 1911, chapter 231,
§ 287 [36 Stat, at L. 1166, Comp. Stat.
§ 1264, 6 Fed. Stat Anno. 2d ed. p.
1078], by which several defendants may
be treated as -one party for the pur-
pose of peremptory challenges, is
attacked. Its constitutionality is estalv
lislied by Stilson v. United States, de-
cided November 10, 1919, 250 U. S. 583,
63 L. ed. 1154, 40 Sup. Ct. Rep. 28.
The other assignments of error are:
(1) The government failed to prove the
charge of making false statements as
the same was made in the indictment,
and that therefore the court erred in
refusing to instruct the jury to acquit
upon the counts charging the offense.
(2) "In passing upon the question of
falsity of the despatches as published
by appellants, and in passing upon any
other questions which are a matter of
public knowledge and general informa-
tion," the court erred in instructing the
jury that "they had a right to call upon
the fund of knowledge which was in
their keeping." (3) The court erred
in refusing to instruct the jury to ren-
der a verdict of not gr^ilty upon all
of the counts in case of each of the
defendants.
Assignments one and three may be
.362
I considered together. They both depend
I upon an appreciation of the evidence,
[471] although assignment one is more
particular as to the offense charged. But
neither can be discussed without a re-
view of the evidence, and a detailed
estimation of its strength, direct and in-
ferential. That, however, is impossible,
as the evidence occupies over three hun-
dred pages of the record, and counsel
have not given us an analysis or com-
pendium of it, but have thrust upon us
a transcript of the stenographer's notes
of the trial which, counsel for the gov-
ernment aptly says, "presents" of tJie
case "a picture of a certain sort, but it
is a picture which is constantly out of
focus, being either larger than the real-
ity or smaller." However, we have ac-
cepted the labor it imposed, and have
considered the parts of the evidence in
their proper proportions and rdation,
and brought them to an intelligible
focus, and are of opinion that the court
rightfully refused Uie requested instme-
tions except as to the defendants
Schaefer and Vogel. As to them we do
not think that there was substantial evi-
dence to sustain the conviction. They
were acquitted, we have seen, of all the
individual and active offenses, and found
guilty only on the ninth count — the
charge of conspiracy.
The second assignment of error is
somewhat confusedly expressed. It,
however, presents an exception to the
chai^ of the court as to i^iat the
jurors were entitled to consider as Blat-
ters of public knowledge and genera)
information. Counsel apparently urge
against the charge that it submitted all
the accusations of the indictment to the
proof of the public knowledge and gen-
eral information that the jurors pos-
sessed. The chaise is not open to the
contention, and, as discussion is pr^
eluded except through a consideration
of the instructions in their entirety, we
answer the contention by a simple dec-
laration of dissent from it, based, how-
ever, we may say, on a consideration
of the instructions as a whole, not in
fragments, detached and isolated from
their explanations and qualifications.
Counsel at the trial attempted [472] to
assign to the charge the generality they
now assert, and it was rejected.
It is difficult to reach or consider the
particulars of counsel's contention, the
foundation of whicli seems to be that
the indictment charged the falsification
of the "despatches," and that, therefore,
the government must prove the falsifica-
tion of them. What counsel mean by
251 U. 8.
li»19.
SCllAKKKK V. LXITKD STATKS.
472-474
•'fakitw'ation" is not easy to represent,
iliey eouceding there was proof tbat
•*the articles which were published differ
from the articles in the papers from
which they were copied/' but contending
that no evidence was offered of what
was contained in the original despatches
of which the publications purported to
be eopies. And again counsel say:
**The falsity, as it has been called,
which was proven against the defend-
ants, was that the articles which were
published differed from the articles in
the pwers from which they were copied."
The charge and proof, therefore, were
of alterations, — giving the "despatches"
by a change or characterization a mean-
ing that they did not originally bear, —
a meaning tiiat weakened the spirit of
reemiting and destroyed or lessened
that aeal and animation necessary or
helpful to raise and operate our armies
in the then pending war. And there
could be no more powerful or effective
instruments of evU than two German
newspapers organized and conducted as
these papers were organized and con-
dneted.
Sneh being the situation, and the de-
fendants having testified in their own
behalf, and having opportunity of ex-
planation of the changes they made of
the articles which they copied, the eourt
instmeted the jury as follows: 'In
paaeiiig. upon this question of falsity,
and in passing upon this question of in-
tent, and in passing upon, of course,
the question of whether or not we are
at war, yon are permitted to use your
general knowledge. I will withdraw the
referenee to the 'intent,' but in passing
upon tae question of the falsity of these
pnblieations, in passing upon the ques-
tion [478] whether we are at war, and
in pasang upon any other questions
which are in like manner a matter of
public knowledge and of general infor-
mation, you have the right to call upon
the fund of general information which
is in your keeping."
The criticism counsel make of the
charge is that ''without any proof what-
soever he [the judge] permitted them
[the jury] to apply their general knowl-
edge in determining whether the de-
spatches published by the defendants
contained false statements." Indeed,
counsel go further, and insist that the
eliarge gave to the jury an unlimited
ripfht to use any general information at
th^ir disposal in reaching their verdict.
The charge itself refutes such sweeping
characterization. Xor is it justified.
The^ court said : '*The real offense with
•4 li. ed.
which these defendants are charged is
in putting out these false statements.
They received them from a source. That
source purported to be the report of
a despatch, and the evidence in this
case would seem to direct your minds
in at least some of these instances,
perhaps in many of them, to just
where the report of the despatch ap-
peared. They took that report as it
came to them, and the charge is,
in plain words, that they garbled it,
sometimes by adding something to it
and sometimes by leaving things out,
and sometimes by a change of words.
But the substantial thing which you
are to pass upon is, was the report or
statement that they put out false t
Was it wilfully and knowingly false t
Was it put out thus falsified with the
intent to promote the success of the
enemies of the United States t" In
other words, the minds of the jurors
were directed to the gist of the case,
which was despatches received and then
changed to express falsehood, to the
detriment of the success of the United
States, and the fact and effect of change
the jurors might judge of from the testi-
m<my as presented, and '^rom the fund
of information which was in" their
"keeping." That is, from the fact of
the source [474] from which the de-;
spatches were received, from the fact of
war, and what was necessary for its
spirited and effective conduct, and how
far a false cast to the despatches re-
ceived was depressing or detrimental to
patriotic ardor. See Stilson v. United
States, supra.
This disposes of the case on the
exceptions which are argued. Excep-
tions one and two are specific and we
have discussed them. Exception three
is general and involves not only the
points we have discussed and selected by
counsel for discussion, but involves be-
sides every other objection to the in-
structions and the sufficiency of the
evidence, in all the aspects they can be
viewed and estimated.
And as being within its comprehension
we are confronted with a contention that
the indictment and conviction are vio-
lative of the freedom of speech and qt
the press protected by the Constitution
of the United States. The contention is
a serious one, and, in its justification,
it is urged that the power of Congress
to interfere with the freedom of speech
and of the press must be judged by an
exercise of reason on the circumstances.
Therefore, in justice to the tribunal he-
S63
I
474-470
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
low, indeed, to ourselves, we must give emed whose juries, chosen from among
the great body of the people, cannot
give due consideration to cases of this
kind, and who cannot give to any de-
fendant a fair and impartial trial, and
render a just verdict. I know of no
greater service an American citizen can
perform for his country than to manifest
by his attitude in cases of this kind that
we are a people who [476] are gov-
erned by law, and who follow unswerv-
ingly that sense of justice which we
should follow. Calling up just that
spirit of justice, and breathing its very
atmosphere, let us go to a consideration
of the real merits of this ease."
Did the admonition fulfil the duty of
the court, or should the court, as it is
intimated, have taken the case from the
juryt To do so is sometimes the duty of
a court, but it is to be remembered a
jury is a tribimal constituted by law as
the court is, its function has as definite
sanction as that of the court, and it
alone is charged with the consideration
and decision of the facts of a case. And
the duty is of such value as to have been
considered worthy of constitutional
provision and safeguard. See Capital
Traction Co. v. Hof , 174 U. S. 1, 43 L.
ed. 873, 19 Sup. Ct. Rep. 680.
If it be said this commeot is but the
expression of commonplaces, we reply
that commonplaces are sometimes neces-
sary to be brought forward lest earnest-
ness or interest disr^:ard them and
urge too far the supervising power of the
court, which, we repeat, is subordinate
to that of the jury on questions of fact,
and certainly ''a rule of reason" cannot
be asserted for it upon a mere difi^^nce
in judgment. All the prineiples and
practices of the law are the other way.
May such rule be urged in an appellate
court against the concurrence of court
and jury in the trial court, or, if there
be division in the appellate oourt, for
which view may a satisfaction of the
rule be asserted f Passing by presump-
tions that may be challenged, an an-
swer in this case may be left to the
facts. But first as to the law.
The indictment is based on the Es-
pionage Act, and that was addressed to
the condition of war, and its restraints
are not excessive nor ambiguous.^ We
attention to the contention.
) It is not very susceptible of measure-
ment. It is difficult to separate, in view
of the contentions that are made, a
judgment of the law from a judgment of
conviction under the law, and keep free
from confusing considerations. Free
speech is not an absolute right, and
when it or any right becomes wrong by
excess is somewhat elusive <>f definition.
However, some admissions may be made.
. That freedom of speech and of the press
are elements of liberty all will acclaim.
Indeed, they are so intimate to liberty
in everyone's convictions — we may say
feelings — that there is an instinctive and
instant revolt from any limitation of
I them either by law or a charge under
the law, and judgment must be sum-
moned against the impulse that might
condemn [475] a limitation without
consideration of its propriety. But,
notwithstanding this instant jealousy of
any limitation of speech or of the press,
there is adduced an instance of oppres-
sion by the government, and, it is said,
to hold that publications such as those
in this case ''can be suppressed as false
reports, subjects to new perils the con-
stitutional liberty of the press, already
I seriously curtailed in practice imder
powers assumed to have been conferred
upon the postal authorities."
I If there be such practice, this case is
not concerned with it. The assertion of
its existence, therefore, we are not
called upon to consider, as there is noth-
ing before us to justify it. Therefore,
putting it aside and keeping free from
exaggerations, and alarms prompted by
an imagination of improbable conditions,
w£ bring this case, as it should be
brought, like other criminal cases, to no
other scrutiny or submission than to the
sedate and gliding principles of crimi-
nal justice. And this was the effort of
the trial court, and was impressed on
the jury.
The court drew the attention of the
jury to "the features which gave import-
ance'' to the case, but admonished it
that they brought a challenge to a sense
of duty and a sense of justice, and that
while the enforcement of any law made
a "strong call" upon oourt and jury, it
could not "override the obligation of the
other call, which is to make sure that
no man is found guilty of a crime un-
less the evidence points to his guilt with
the degrree of certainty which the law
requires."
Again, and we quote the words of the
court, "No people is fit to be self-gov-
864
l"Sec 3. Whoever, when the United
States is at war, shall wilfully make or con-
vey false reports or false staleraents with
intent to interfere uith the operation or
success of the military' or naval forces of
the United States, or to promote the sue
cess of its enemies and whoever, when the
I nited States is at war, shall wilfully cause
251 V. S.
J919.
SCUAEFEU V. UNITED STATES.
476-479
need not enumerate [477] them. They
were direeted against conduct — speech
or writings — that was designed to ob-
struct the' recruitment or enlistment
service, or to weaken or debase the
spirit of our armies, causing them, it
might be, to operate to defeat, and the
immeasurable horror and calamity of it.
But, simple as the law is, perilous to
the country as disobedience to it was,
offenders developed, and, when it was
exerted against them, challenged it to
decision as a violation of the right of
free speech assured by the Constitution
of the United States. A curious spec-
tacle was presented : that great ordi-
nance of government and orderly liberty
was invoked to justify the activities of
anai'chy or of the enemies of the United
States, and by a strange perversion of
its preeepts it was adduced against it-
self. In other words and explicitly,
though it empowered Congress to declare
war, and war is waged with armies,
their formation (recruiting or enlisting)
could be prevented or impeded, and
the morale of the armies when formed
could be weakened or debased by ques-
tion or calumny of the motives of au-
thority, and this could not be made a
mme, — that it was an impregnable at-
tribute of free speech upon which no
curb could be put. Verdicts and judg-
ments of conviction were the reply to
the challenge, and when they were
brought here our response to it was un-
hesitating and direct. We did more
than reject the contention: we fore-
stalled all shades of repetition of it, in-
cluding that in the case at bar. Schenck
V. United States, 249 U. S. 47, 63 L. ed.
470, 39 Sup. Ct. Rep. 247; Frohw^k v.
United States, 249 U. S. 204, 63 L. ed.
561, 39 Sup. Ct. Rep. 249; Debs v.
United States, 249 U. S. 211, 63 L. ed.
566, 39 Sup. Ct. Rep. 252; Abrams v.
United States, decided November 10,
1919, 250 U. S. 616, 63 L. ed. 1173, 40
Sup. Ct. Rep. 17. That, however, though
in some respects retrospect, [478] is a
pertinent introduction to the facts of
the pending case.
The charges of the indictment were
against certain articles or editorials in
the newspapers published by defendants
in German, and intended to be circulated
in families and read by persons who
understood that language. The articles
were adapted to the situation, and, we
may say, allusion and innuendo could be
as effective as direct charge, and "coarse
or heavy humor," when accompanied by
sneering headlines and derision of
America's efforts, could have evil influ-
ence. And such was the character of the
article upon Jvirhich count three of the
indictment was based. It had the fol-
lowing headlines:
'Tankee Bluff."
Trofessor Jenny Does Not Take the
American Preparations for War Seri-
ously."
'^Ambassador Page Assures England
That We Will Send Ten Million Men."
The following, with some other com-
ments, was in the body of the arrticle:
"The army of ten million and the hun-
dred thousand airships which were to
annihilate Qermany have proved to be
American boasts, which will not stand
washing. It was worthy of note how
much the Yankees can yell their throats
out without spraining their mouths.
This is in accord with their spiritual
quality. They enjoy a capacity for ly-
ing, which is able to conceal to a re-
markable deg^e a lack of thought be-
hind a superfluity of words." Coarse,
indeed, this was, and vulgar to us, but*
it was expected to produce, and, it may
be, did produce, a different effect upon
its readers. To them its derisive con-
tempt may have been truly descriptive
of American feebleness ana inability to
combat Germany's prowess, and thereby
chill and check the ardency of patriot-
ism and make it despair of success, and,
in hopelessness, relax energy both in
preparation and action. If it and the
other articles, which we shall presently
refer to, [470] had not that purpose,
what purpose had theyf Were they
the mere expression of peevish discon-
tent,— aimless, vapid, and innocuous f
We eannot so conclude. We must take
them at their word, as the jury did,
and ascribe to them a more ac-
tive- and sinister purpose. They
were the publications of a newspaper,
deliberately prepared, systematic, al-
ways of the same trend, more specifle
in some instances, it may be, than
in others. Their effect on the persons
affected could not be shown, nor
was it necessary. The tendency of the
articles and their efficacy were enough
for offense, — their "intent" and "at-
tempt," for those are the words of the
or attempt to cause insubordination, dis-
loyalty, mutiny, or refusal of duty, in the
military or naval . forces of the United
States, or Bliall wilfully obstnict the re-
cruiting or enlistment service of the United
64 I., ed.
States, to the injury of the service or of
the United States, shall be punished. . . ."
[Act of June 15, 1917, 40 Stat, at L. 219,
chap. 30, Comp. Stat. § 10,2120, Fed. Stat.
Anno. Snpp. 1918, p. 120.]
365
470-481
SUPREME COUItT OB' THE UNITED STATES.
Oct. Tkbm,
law, and to have required more would
have made the law useless. It was
[)assed in precaution. The incidence of
its violation might not be immediately
seen, evil appearing only in disaster, the
result of the disloyalty engendered and
the spirit of mutiny. •
The article was preceded by one July
4, 1917, headed, **For the Fourth of
July,'^ in which it was declared that
*Uhe Fourth of July celebration, which
has long been an empty formality, will
this year become a miserable farce."
England was represented as the enemy
of the United States, carrying a hostil-
ity watchful of opportunity from the
time of the Revolution through all crises
until the United States ^^had becopie so
strong that nothing could be undertaken
against her." And further: "The rul-
ing classes of England have always de-
spised and hated the United States, and
to-day, while they fatter them, they still
cherish the same feeling toward them."
The emphasis of a paragraph was given
to the statement that "under Wilson's
regime the United States" had "sprung
to the side of England as its savior in
time of need. They provided it with
*means to carry on the war and when
that wasn't enough, they sprang into the
war themselves. History will sometime
pronounce its judgment upon this."
The ai'd so asserted to have been ren-
dered to England by President Wilson
was represented to have been in [480]
opposition to the wishes of the people,
expressed "by the unwillingness of their
(the United States) young men to offer
themselves as volunteers for the war.
But it will not rest there. The call for
peace will come from the masses and
will demand to be heard. And the
sooner the better. No blood has be^n
shed yet, no hate or bitterness has yet
arisen against Germany, who has never
done this country any harm, but has
sent millions of her sons for its up-
building. The sooner the American
people come to their senses and demand
peace, the better and more honorable it
will be for this country."
The animus of the article and the
effect expected of it need no comment
to display. It was followed, supple-
mented, we may say, and reinforced by
another article July 7, 1917. It (the
latter) had for headlines the words
"Failure of Recruiting," and recruiting
failed, was its representation, notwith-
standing an "advertising campaign was
worked at high pressure" and "all sorts
of means were tried to stir up patriot-
ism." Its further declaration was that
3li«
**Germany was represented as a violator
of all human rights and all international
law, yet all in vain. Neither the re-
sounding praises nor the obviously false
accusations against Germany were of
any avail. The recruits did not mate-
rialize." The cause was represented to
be "that the American who was not a
coward" did "not care to allow himself
to be shot to satisfy British lust for the
mastery of the world." And "the peo-
ple instinctively recognized and felt"
that "the pro-British policy of the gov-
ernment is an error, which can bring
nothing but injury upon this country."
It was then added that "the nation,
therefore," was doing the only thing it
could still do, "since its desires were
not consulted at first." It refused "to
take part."
The purpose is manifest, however the
statements of the article may be esti-
mated, whether as criminal means'—vio-
lations of law, — or the exercise of free
speech and of the [481] press. And its
statements were deliberate and wilfully
false, the purpose being^ to represent
that the war was not demanded by the
people, but was the result of the jnachi-
nations of executive power, and thus to
arouse resentment to it and what it
would demand of ardor and effort. In
final eonmient we may say that the
article in effect justified the German ag-
gressions.
We do not deem it necessary to ad*
duce the other charges of the indictment.
We may, however, refer to the plausi*
bility of- the excuse of the alteration of
Senator La Follette's speech, and re-
mark that it disappears when the
speedi is considered in connection with
the articles that preceded and fol-
lowed it. The alterations were, it is
true, of two words only, but words of
different import than those the Senator
used. The Senator urged that the bur-
den of taxation made necessary by the
war be imposed upon those who might
profit by the war, in order to relieve
those who might suffer by it and be
brought to "bread lines." The article
changed the words to **bread riots;"
that is, changed the expression of ac-
ceptance of what might come as a con-
sequence of the war, to turbulent resist-
ance to it, and thus giving the article
the character of the others, with a defi-
nite illustration of the op}K>sition to the
war by a Senator and his prophecy of
a riotous protest by the people. It
will be recalled that in other articles the
antagonism of the people to the war
was declared, and in one of them it was
251 r. s.
1919.
SCUAEFER V. UNITED KTATES.
481-484
^aid that the war was commenced ''under
Wilson's regime" and "without their
(the people's) consent."
In conclusion we may add that there
are in the record what are called "in-
tent" articles which supplement and
emphasize the charges of the indictment,
and it is to be remembered that defend-
ants were witnesses and had the oppor-
tunity of explanation, .and to preclude
any misapprehension of the German
originals or defect in their translation.
And the jury could judge of the de-
fendants by their presence.
[482] We have not deemed it neces-
sary to consider the articles commented
on with reference to the verdicts; the
Abrams Case has made it unnecessary.
On any count of which any defendant.
was convicted he could have been sen-
teneed to twenty years' imprisonment.
The highest sentence on any defendant
was five years.
Farther comment is unnecessary, and
our oonelusion is that the judgment
must be affirmed as to Werner, Darkow,
and Lemke, but reversed as to Schaef er
and Vogel; as to them the case is re-
manded for' further proceedings in ac-
eordance with this opinion.
So ordered.
Mr. Justice Brandeis delivered the
following opinion, in which Mr. Justice
Holmes concurred:
With the opinion and decision of this
court reversing the judgment against
Schaefer and Vogel on the ground that
there wffs no evidence legally connect-
inj:: them with the publication I concur
fully. But I am of opinion that the
judirments against the other three de-
fendants should also be reversed because
<-ither the demurrers to the several
counts should have been sustained, or a
verdict should have been directed for
each defendant on all of the counts.
The extent to which Congress may,
under the Constitution, interfere with
•free speech, was in Schenck v. United
States, 249 U. S. 47, 52, 63 L. ed. 470,
473, 39 Sup. Ct. Rep. 247, declared by
a unanimous court to be this: "The
<lucation in every case is whether the
words are used in such circumstances
jind are of such a nature as to create a
elear and present danger that they will
bring about the substantive evils that
Congress has a right to prevent. It is
a question of proximity and degree."
This is a rule of reason. Correctly
applied, it will preserve the right of
free speech both from suppression by
t>Trannous, well-meaning majorities, and
64 If. ed.
from abuse by irresponsible, fanatical
minorities. Lake many other rules for
human conduct, it can be applied cor-
rectly only by the [483] ejtereise of
good judgment; and to the exercise of
good judgment, calmness is, in times of
deep feeling and on subjects which excite
passion, as essential as fearlessness and
honesty. The question whether, in a par-
ticular instance, the words spoken or
written fall within the permissible cur-
tailment of free speech, is, under the
rule enunciated by this court, one of de-
gree. And because it is a question of
degree, the field in which the jury may
exercise its judgment is, necessarily, a
wide one. But its field is not unlimited.
The trial provided for is one by judge
and jury; and the judge may not abdi-
cate his function. If the words were of
such a nature and were used under such
circumstances that men, judging in
calmness, could not reasonably say that
they created a clear and present danger
that they would bring about the evil
which Congress sought -and had a right
to prevent, then it is the duty of the
trial judge to withdraw the case from
the consideration of the jury; and if he
fails to do so, it is the duty of the
appellate court to correct the error. In
my opinion^ no jury acting in calmness
could reasonably say that any of the
publications set forth in the indictment
was of such a character or was made
under such circumstances as to create a
clear and present danger either that
they would obstruct recruiting, or that
they would promote the success of the
enemies of the United States. That they
could have interfered with the military
or naval forces of the United States or
have caused insubordination, disloyalty,
mutiny, or refusal of duty in its mili-
tary or naval services was not even sug-
gested; and there was no evidence of
conspiracy except the co-operation of
editors and business manager in issuing
the publications complained of.
The nature and possible effect of a
writing cannot be properly determined
by culling here and there a sentence and
presenting it separated from the con-
text. In making such determination, it
should be read as a whole; at least, if it
is short, like these news items and edi-
torials. Sometimes [484] it is necessary
to consider, in connection with it, other
evidence which may enlarge or other-
wise control its meaning, or which mav
show that it was circulated under cir-
cumstances which gave it a peculiar sisr-
nificance or effect.^ But no such evi-
dence was introduced bv the government.
484-486
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
The writings here in question must speak
for themselves. Fifteen publications
.were set forth in the indictment; and
others were introduced in evidence. To
reproduce all of them would unduly pro-
long this opinion. Four are selected
which will illustrate the several con-
tentions of the government. That at
least three of these four were deemed
by it of special importance is shown by
the fact that each of the three was
made the subject of a separate count.
First : There were convictions on three
counts of wilfully obstructing the re-
cruiting and enlistment service. The con-
viction of the news editor of so ob-
structing rested wholly upon his hav-
ing inserted the following reprint from a
Berlin paper in the Tageblatt:
Yankee Bluff.
Professor Jenny Does Not Take the
American Preparations for War Seri-
ously.
Ambassador Page Assures England
That We Will Send Ten Million Men.
London, Aug. 6. — ^Ambassador Page
followed Lloyd George at Guild Hall in
Plymouth, with a great speech. He de-
clares there that the differences between
England and the United States in former
times were only of a superficial nature,
and that both peoples are now united
inseparably, to fight for freedom and
against the hydra of militarism. He
assures his hearers that the United States
is ready for all sacrifices in order to
end the war victoriously, and that if
necessary it will send ten million men
to France.
Berlin, Aug. 6. — ^In the "Taglishe
Rundschau," Professor Jenny writes un-
der the title "Americanism" as [485]
follows: — ^Americans think in exaggera-
tions and talk in superlatives. Even
Ambassador Andrew White in his Mem-
oirs falls into superlatives in compara-
tively insignificant cases. He speaks of
them as the most important events of
his life and maintains that certain peo-
ple have made an indelible impression on
him, whom others consider to be ordi-
nary, average men.
The army of ten million men has
dwindled to a voluntary army of 120,-
000; while the new conscripted army of
565,000 will not even be ready to begin
drilling for the front in six mctfiths.
The hundred thousand airships were re-
duced to 20,000 and then to 3,000, which
the Americans hope to have ready for
next summer if they find the right
3«S
model for them. As for the thousands
of ships that were to be sent across the
ocean, America, six months after the
declaration of war, has not yet decided
whether they are to be wood or steel
ships; so far not even the keel of one
ship has been laid. It amounts to this,
that now when the Americans can scrape
some tonnage together, the troops are
not ready, and when they have the
troops ready, the tonnage will not be
available.
The army of ten million and the hun-
dred thousand airships which were to
annihilate Germany, have proved to be
American boasts which will not stand
washing. It is worthy to note how
much the Yankees can yell their throats
out without spraining their mouths.
This is in accord with their spiritual
quality. They enjoy a capacity for
lying, which is able to conceal to a re-
markable degree a lack of thought behind
a superfluity of words.
But some fine day, if they do not
stop their boasting and bluffing, it might
happen to them that they get the lock-
jaw, for which there is no better relief
than a good box on the ear.. Moreover
it is not to be assumed that the Amer-
icans are really in earnest with the war.
No one would be surprised if they found
a thousand and one excuses for taking
no active part in the European War.
[486] It is not apparent on a reading
of this article — which is not unlike many
reprints from the press of Germany to
which our patriotic societies gave cir-
culation in order to arouse the American
fighting spirit — how it could rationally
be held to tend even remotely or in-
directly to obstruct recruiting. But as
this court has declared, and as Professor
Chafee has shown in his ''Freedom of
Speech in War Time," 32 Harvard L.
Rev. 932, 963, the test to be applied —
as in the case of criminal attempts and
incitements — is not the remote or pos-
sible effect. There must be the clear
and present danger. Certainly men judg-
ing in calmness and with his test pre-
sented to them could not reasonably have
said that this coarse and heavy humor
immediately threatened the success of
recruiting. Compare United States v.
Hall, 248 Fed. 150; United States v.
Schutte, 252 Fed. 212; Von Bank v.
United States, 165 C. C. A. 267, 253
Fed. 641; Balbas v. United States, 168
C. C. A. 229, 257 Fed. 17; Sandberg v.
United States, 168 C. C. A. 593, 257 Fed.
643; Kammann v. United States, 170 C.
C. A. 260, 250 Fed. 192; Wolf v. United
251 U. S.
i919.
SCHAEFER v. UNITED STATES.
486-48B
States, 170 C. G. A. 364, 259 Fed. 388,
391, 392.
Second: There were convictions on
three counts of wilfully conveying false
reports and statements with intent to
promote the success of the enemies of
the United States. The Tageblatt, like
many of the. smaller newspapers, was
without a foreign or a national news
service of any kind and did not pur-
port to have any. It took such news
usually from items appearing in some
other paper theretofore published in the
Qerman or the English language. It did
not in any way indicate the source of
its news. The item, if taken from the
English press, was, of course, translated.
Sometimes it was copied in full; some-
times in part only; and sometimes it
was rewritten ; or editorial comment was
added. The government did not attempt
to prove that any statement * made in
any of the news items published in the
Tageblatt was false in fact. Its evidence,
[487] under each count, was limited to
showing that the item as published there-
in varied in some particular, from the
item as it appeared in the paper from
which it had been copied; and no at-
tempt was* made to prove the original
despatch to the latter paper. The gov-
ernment contended that solely because
of variation from the item copied it
was a false report, although the item
in the Tageblatt did not purport to re-
produce, an item from another paper,
and in no way indicated the source of
the news. Each of the three items fol-
lowing illustrates a different method by
which the variation was effected:
1. The publication for which the news
editor was convicted on the fifth count
by reason of an addition to the item
copied :
(The translation of the Tageblatt
. item as set forth in the indictment.)
Further Economies.
Amsterdam, September 2. — ^It has
' been reported here that permission to
export the wheat and flour on the ships
held in New York has been refused. In-
formation to this effect is contained in
an official proclamation of the latest cut
in bread rations and of the need for
economy which has reached the civil
authorities. This document says: "We
know now with certainty that we can-
not count upon the import of breadstuffs
from America and that we must strive
to make our own provisions suffice. In
64 Ij. e<1. 2
initiated circles it is said that under ao
conditions can the new American pro-
posal be accepted, and that the food-
stuffs may rot before the ships will be
unloaded."
(The original Tageblatt item as set
forth in the indictment.)
Scttcte Ctnf^fSntitttacB*
Vmftettidm* % Sept Ci loir^
iUf ^mtJbti, baft feet QfP^ fon Sci«
^n iin5 SUfH auf feen In 9tcS9 Doxl $at
xM^W^ntn ^c^fen MMcciQect imltbe.
fine Mei&>^anf4e 9Kit«^trun( ift in
ekiet Amili^en 'QxWknnq feet iiliiiifKcii
9roftatiimeii'9erciiigertiiig iin> feet
9ufforfeetitni| attt giafdWwftwg ctil|al«
Hth taxUit fecn Qkmetnfecfe^Vhfetn in*
gine. ;{n berfel^cR 4eitt ei: •SBfeioif«
fen igin teii|mm^ feofc iolt ouf feie €iii«
fi4t tMNi StoiQelreifee auM VmetHa n!4t
te^(iuii fdnaen, unfe feaft isit aiil*lttmil#
kin mQIfem mU feeti eigeneii (totrSiQeii
Streifm 9eifet ci« fedft man onf tei aetien
Voi^i^raa Vmerifat tttdft yefsuii Unu
fianfeen cisteVn unfe W QWcdfec 4et
t^attfeii (offen iMb^ oU ^ «M»ifft
att4nt<tbeit
[488] The fajsifieation charged is
said to consist in having added, to the
despatch which was copied from the
Staatszeitung the words: '^In initiated
circles it is said that under no condi-
tions can the new American pro-
posal be accepted, and that the
foodstuffs may rot before the ships
will be unloaded." But it is obvious,
upon comparing the English transla*
tion with the German original, that
the defendant did no such thing.
What occurred was this: The sentence
referred to was not made a part of the
despatch in the Tageblatt. It followed
the despatch; it was not within the quo-
tation marks; and was separated from
it by a dash; — a usual method of in-
dicating that what follows is comment
or an addition made by the editor. In
the English translation, as set forth in
the indictment, this sentence, through
some inadvertence of the government's
translator or draftsman, was included as
part of the despatch and brought with
the quotation 'therein. Evidently both
the jury and the trial judge failed to
examine the German original.
2. One of the publications for which
the news editor was convicted on the
4 3fli>
4HJ5-490
SUPREME COUKT OF THE UNITED STATES.
Oct. Tiaii,
fii%t count because of an omission from because of the change of a word in the
the item copied:
Ready for the Frayt
St. Petersburg, September 7th.— The
Russian Baltic fleet will defend Kron-
stadt and Reval, and through them the
Russian capital itself. The comman-
ders of the two fortresses have made
this report to the provisional govern-
ment. A large part of the Baltic fleet
was under control of the Maximalists
who hitherto have opposed Kerensky.
The commanders of Sveaborg and Hel-
sing^ors have also telegraphed their as-
surance to the government that the Bal-
tic fleet has expressed its willingness to
offer desperate resistance, in case the
Germans should make a nistval attack
upon the strongholds between Riga and
the capital.
Investigation of the Pall of Riga.
The Russians devastated the land
through which [439] they retreated
from Riga in or/ler to impede the
German advance. Roads were broken
up, bridges destroyed, and provisions
burned. A special commission has
been set" up by Premier Kerensky to
investigate the fall of Riga. As far
as reports have so far been permit-
ted to appear, it is * established that
only two regiments gave up their posi-
tions without fighting, and the others
offered the attacking Germans bold re-
sistance. The retreat • was carried out
in an orderly manner, in spite of pur-
suit by the German armies. The first of
these, advancing along the coast in the
region of Dunaburg, is apparently en-
deavoring to reach Berna, on the Gulf
of Kij^a. The second German army is
pressing along the Pskoff road to exe-
cute a turning movement, while the
third is energetically pushing in a north-
easterly direction against Ostroff. The
Germans are showing signs of nervous-
ness in advancing through this marshy
lake-strewn country, which are increased
by the Russian resistance.
The falsification here is said to con-
sist in the omission from the end of
the first paragraph of the following sen-
tence, which appeared in the paper from
which the item was taken: "From this
it can be concluded that the fall of
Riga has united the opposing political
factions in Russia."
3. The publication for which the news
f'ditor was convicted on the sixth count
370 *
item 'copied :
War of the Rich.
Senator La Follette Thinks They Ought
Not to Make a Cent of Profit.
Hot Fight in the Senate Over Increased
Taxation of War Profits.
Washington, August 21. — Taxation of
riches in su<sh a measure that the bur-
dens of the cost, of the war will be taken
from the shoulders of the poor man was
recommended to-day in the Senate by
Senator La Follette in a long speech. He
declared that the proposed two billion
[490] dollar bill as drawn up in the
Senate's Committee on Financial Affairs
is impractical because it covers less than
17 per cent of the war expenses of the
first year and from this would result the
necessity of issuing bonds for billions of
dollars. Bonds, however, mean the same
as an increased cost of living, and one of
the consequences would be that next
winter bread riots could be expected in
the big cities. He recommended the ac-
ceptance of amendments by which fur-
ther taxation of large incomes and big
war profits would be effected, which
would bring the total amount of the
bill to about $3,500,000,000.
t'^«.,#^« x.n Follette declared that
wealth had never, in any war, offered
itself on the altar of patriotism. He
attacked the proposed issue of bonds and
prophesied that the Liberty bonds
would eventually find their way Into the
hands of the rich, if they had not al-
ready done so. "But," he continued,
"this is not all, for war, and principally
the sale of bonds, leads inevitably to
inflation. This raises prices and through
that the cost of living for the great mass
of people is raised. Reason and ex-
perience teach us that the policy of
financing- a war for the most part by
borrowing tRe necessary money is in it-
self one of the worst financial burdens
that war imposes upon men. But wealth
is always a powerful factor in the gov-
ernment. It fattens on war loans and
war contracts as well as on specula-
tion, which is not wanting in time of
war. Upon these grounds the rich are
always in favor of war, and when they
have succeeded in bringing on a war,
they are often powerful enough with
I ministers of war and parliaments and
• congresses to force the maximum of
loans and to -reduce taxation to a mini-
' mum by "every possible intrigue and
I argument.
251 U. 6.
1919.
SCHAJ-U'^KU V. I NITKD STATES.
490-493
*'Aiid that is the case with us in this
war. Within thirty days after the dec-
laration of war wealth had precipitated
us into bond issues of unheard-of size.
Morgan came to the city, the press
urged ity the administration [491]
commanded it, and' Congress authorized
the issue of five billions of untaxable
government bonds and two billions of
interest-bearing Treasury notes."
Senator La Follette attacked the pro-
gram of the administration under which
a new tax measure will be introduced
next winter. "Of what use is the post-
ponement t" he asked. "Whose interest
is served if taxes on incomes and war
profits are kept down and the masses
are delivered over to the money lenders
as security for an enormous and wicked-
ly disproportionate issue of bonds f" He
insisted that the policy of financing the
^ar should at once be decided upon.
'*To-day the way is clear," he ex-
plained; "hesitation to provide now for
heavy taxes would not be a mistake, it
would be something worse."
Senator -La Follette reviewed the
financial history of previous American
wars. "We must not repeat such mis-
takes," he said; "it would be blind mad-
ness if we did not learn from the mis-
takes that were made in previous. wars.
A mistake that we make now may be
fatal. It would certainly cost us untold
millions of dollars and thousands upon
thousands of lives, as by it we would
prolong the war unnecessarily.
"As long as one man can be found
who makes war profits, I am in favor
of taking away in taxes such part of
• those profits as the government requires,
and the government needs the whole of
such profits before adding a penny to
the taxation of people who are already
staggering under heavy burdens by rea-
son of the higher prices occasioned by
the war. This may be a new principle
in war financing, but it is the least that
one can do for the mass of the' people,
and it is considerably less than simple
justice would demand for them.
"The great mass of the people bear
the costs of war, although they may not
be directly taxed one dollar. The great
mass of the people pay in higher prices
and prolonged [492] hours of labor.
They pay in service, not alone on the
battle field, but wherever men and
women work hard all day long. But
more than all this, they pay the cost of
war with their blood and their lives,
and what is the greatest sacrifice of all,
with the blood and lives of their loved
ones.
64 ti. cd.
"If bread lines are a familiar sight
in every city in the land, as they un-
doubtedly will be if the present prices
of the most necessary supplies for liv-
ing hold firm during the coming winter,
if cold and hunger become daily guests
with thousands of families who, until
now, have only known comfort, a con-
dition which is certain to come about
during the coming winter months if no
help against the present level of prices
can be found, then it is my opinion that
the members of this Congress will do
little enough if they come to realize that
they are adding to the privations and
pains of the mass of the people if they
hesitate to place even a fairly moderate
portion of the financial burden upon the
rich."
Falsification is charged solely because
the word "Brot-riots" (translated as
"bread-riots") was used in the eleventh
line of the article instead of the word
"Brodreihen" (translated as "bread
lines").
The act punishes the wilful making
and conveying of "false reports and
false statements with intent to inter-
fere with the operation or success of
the military or naval forces of the Unit-
ed States or to promote the success of its
enemies." Congress sought thereby to
project the American people from being
wilfully misled to the detriment of their
cause by one actuated by the intention
to further the cause of the enemy. Wil-
fully untrue statements which might
mislead the people as to the financial
condition of the government and there-
by embarrass it; as to the adequacy of
tlie preparations for war or the sup-
port of the forces; as to the suflBciency
of the food supply; or wilfully untrue
statements or reports of military opera-
tions [493] which might mislead public
opinion as to the competency of the
Army or Navy or its leaders (see "The
Relation between the Army and the
Press in War Time," War College
Publication, 1916) ; or wilfully untnie
statements or reports which might mis-
lead ofiicials in the execution of the
law, or military authorities in the dis-
position of the forces. Such is the
kind of false statement, and the only
kind which, under any rational con-
struction, is made criminal by the act.
Could the ipilitary and naval forces of
the United States conceivably have been
interfered with or the success of the
enemy conceivably have been promoted
by any of the three publications set
forth above? Snrdv, neither the addi-
S7I
493-495
SUPREME COURT OF THE UNITED STATES.
OOT.TllM,
tion to the first, nor the omission from
the second, constituted the making of a
false statement or report. The mis-
translation of "bread lines" in one pass-
age of the third, if it can be deemed a
false report, obviously could not have
promoted the success of our enemies.
The other publications set out in the
indictment were likewise impotent to
produce the evil against which the stat-
ute aimed.
Darkow, the news editor, and Werner,
the editor, were each sentenced to five
years in the penitentiary; Lemke, the
business manager, to two years. The
jury which found men guilty for pub-
lishing news item^ or editorials like
those here in question must have sup-
posed it. to be within their province to
condemn men not merely for disloyal
acts, but for a disloyal heart; provided
only that the disloyal heart was evi-
denced by some utterance. To prosecute
men for such publications reminds of
the days when men were hanged for
con^ructive ' treason. And, indeed, the
jury may well have believed from the
charge that the Espionage Act [June 15,
1917, 40 Stat, at L. 217, chap. 30, Comp.
Stat. § 10,212a, Fed. Stat. Anno. Supp.
1918, p. 120] had in effect restored the
crime of constructive treason.* To hold
that such harmless additions [494] to
or omissions from news items, and such
impotent expressions of editorial opin-
ion, as were shown here, can afford the
basis even of a prosecution, will doubt-
less discourage criticism of the policies
of the government. To hold that such
publications can be suppressed as false
reports subjects to new perils the consti-
tutional liberty o^ the press, already seri-
ously curtailed in practice under powers
assumed to have been conferred upon
the postal authorities. Nor will this grave
danger end with the passing [495] of
the war. The constitutional right of
free speech has been declared to be the
same in peace and in war. In peace,
too, men may differ widely as to what
loyalty to our country demands; and an
intolerant majority, swayed by passion
oir by fear, may be prone in the future,
as it has often been in the past, to stamp
as disloyal opinions with which it dis-
agrees. Convictions such as these, be-
sides abridging freedom of speech,
threaten freedom of thought and of be-
lief.
Mr. Justice Olarke, dissenting:
On a single indictment, containing
nine counts, five men, Peter Schaefer,
Paul Vogel, Louis Werner, Martin Dar-
kow, and Herman Lemke, were convicted
and sentenced to the penitentiary for
printing seventeen articles, in a German
language newspaper, published at Phila-
delphia, between June 24 and September
17, 1917.
Schaefer was president and Vogel was
treasurer of the company which pub-
lished the paper, but their entire time
was given to the 'service of labor unions,
which had loaned* money to the com-
pany, and they were given these official
iThe presiding judge, in charging the
jury, said of the act: ". . . its general
purpose is to protect our military strength
and efficiency, to protect ourselves against
anything which would promote the success
of our enemies bv undermining our morale,
lessening our will to win, or, as it is gen-
erally expressed, our will to conquer . . .
creating divisions among our people . . .
''These acts which are prohibited are
treasonable in the sense in which that word
is used in the common speech of the people.
Indeed, they may constitute legal treason as
defined in some jurisdictions, but they are
not treason against the United States, for
the simple reason that there is a provision
in our Constitution (which, of course, the
acts of Ck)ngre8s follow) that treason
against the United States — ^u will ob-
serve that it does not say 'treason gen-
erally,' but treason against the United
States — shall consist only in making war
upon them, or in adhering to their enemies,
giving them aid and comfort, and there
is another provision to the effect that no
person sliall be convicted of the crime of
treason unless tliere are two witnesses to
the same overt art, making, as you will
372
see, it perfectly clear that mere words,
whether published or not, as long as they,
are mere words, do not constitute the crime
of treason, but they must be words uttered
and published under such circumstances as
to become deeds or acts in themselves, as
'words' may be. So that words, unless there
is something to which they may attach,
and unless Uie direct, natural, and reason-
ably to be expected consequences of them
would be to aid the enemy, do not consti-
tute the crime of treason. Every man will
observe, however, that even mere words may
be fraught with consequences which, al-
though too remote to constitute the crime
of treason, may nevertheless be words which
are fraught with most awful consequences
. . . and that therefore it is properly
within the province of the law to prohibit
. . . and make it a crime even to utter
them. This is, in substance, what the law
does. Congress could not call some mere
words treason, because tlie Constitution
prohibits it; but there is no constitutional
limitation on the power of Congress to de-
clare those things a crime against the law
whicli Congress has done in this act.
2S1 U. 8.
1919.
SOHAEFER v. UNITED STATES.
495-498
positions for the purpose of enabling
them to keep informed as to its business
progress and the disposition of its earn-
All the members of the court agree
that there was no substantial evidence
that Schaefer or Vogel were in any re-
spect responsible for the publications
complained of, and that as to them the
judgment must be reversed.
In this conclusion I cordially concur,
but I go further and am clear that a
similar reversal should be entered as to
Hennan Lemke, who was convicted, as
Schaefer and Vogel were, on only one
of the nine counts of the indictment.
Lemke was given the sounding title
of '^business manager," but, as a matter
of fact, he was a mere bookkeeper,
[496] of a small business, with very
limited authority. The newspaper led a
precarious financial existence and
Lemke's duties were restricted to mak-
ing out and collecting bills for adver-
tising and circulation, to paying some
bills, and to turniiig over the re-
mainder of the money,- if any
remained, to the treasurer, Vogel. Lemke
himself and two or three other wit-
nesses testified that he had nothing
whatever to do with deciding what
should be published in the newspaper,
and that he never wrote for it except-
ing that, when a reporter was ill, he
occasionally reported a concert. There
was no evidence to the contrary.
On such a record it is very clear that
a man holding such a position as Lemke
held could not, and did not, have any-
thing to do with determining what
should be published in the papier. He
had no more to do with the policy of
the paper than a porter would have
with determining the policy of a rail-
road company. Li my judgment the
failure of proof as to Lemke was as
complete as it was to Schaefer and
Vogel, and I cannot share in permitting
him to be imprisoned in the penitentiary
for a year for publications which he was
powerless either to authorize or prevent
A different ease is made against Wer-
ner and Darkow. Werner was a writer
of political editorials for the paper, and
Darkow was the news editor. Werner
was found guilty on four counts and not
guilty on five. Darkow was found guilty
on ^ve counts and not guilty on four.
Twe of the articles written, or caused
to be published, by Werner, and one, or
perhaps two, of those caused to be pub-
lished by Darkow, were of a character
such that they might have been fairly
convicted of violating the act under
64 li. ed.
which they were indicted, but none of
these articles was included in count one,
and only one of them was included in
count nine, and with respect to this one
article in count nine Werner was found
not guilty when charged with its publi-
cation in count three. The charge of the
court did [497] not distinguish between
these really offending publications and
the many innocent ones the publication
of which was charged to be criminal,
with the result that it failed to give
such direction to the deliberations of the
jury as I think every person accused of
crime is entitled to have given.
The denial of separate motions to in-
struct the jury to render a verdict of not
guilty as to Werner and Darkow' on the
first and ninth counts seems to me to
constitute error so fundamental and per-
vasive as to render the entire trial un-
fair and unjust, to a degree which re-
quires the granting of a new trial to
each- of them.
I shall state my reasons for this con-
clusion as briefiy as I may.
The first count charges that the de-
fendants 'knowingly, wilfully, and un-
lawfully made and conveyed false re-
ports and statements, with intent to
promote the success of the enemy of
the United States, to wit, the Lnperia)
German Government."
The indictment and the record in gen-
eral make it very plain that the dis-
trict attorney, in framing the indict-
ment, and during the trial, believed that
the statute prohibiting the making and
conveying of a false report and state-
ment would be violated by the publica-
tion of any article which had been pub-
lished elsewhere if, in the publication^
it was changed, either by addition or
omission, and this without any proof
that the original publication was true
and the seoond publication false, and
seemingly without regard to whether or
not the publication had any tendency to
promote the success of the enemy. The
trial court accepted this construction of
the statute and submitted the first count
to the jury on this theory of the law.
I cannot doubt that this was gravely
erroneous, for the real purpose of the
statute is to punish published, not sup-
pressed, reports and statements, whether
original or [498] copies, made with the
intent to promote the success, and which
were of a nature reasonably likely to
promote the success, of the enemy of
the United States, by discouraging our
own people or encouraging the enemy.
The first of the thirteen false reports
which it is charged in the first count
S7S
\
y-'- '
VJS 000
SL rilEME COUKT OF XlJE UMTKD STATES.
Oct. Tebm,
were published, is typical of the others,
and will sufficiently explain my position.
It purported to be a despatch from
London, and, translated, reads as fol-
lows :
The Crisis.
Is Advancing in Russia with Rapid
Strides. The Coalition Government
Will Probably Not Last Long.
Its Position in Foreign Affairs Is Con-
demned.
London, June 23. — The Petrograd
correspondent of the Chronicle tele-
graphs to-day that a great crisis is in
progress in Russia. (By that he means
apparently that the unstable and weak
coalition government will soon be got
rid of. It seems to obey unwillingly the
instructions of the Workmen's and Sol-
diers' Council to request the allies to re-
vise their war aims. The workmen will
not stand for this much longer. It is
highly significant too that not a word
hi^ been reported for four days about
the great general congress of the Work-
men's and Soldiers' delegates; apparent-
ly because its behavior does not please
the allies.)
The correspondent of the Chronicle
quotes an extract from Maxim Gorky's
newspaper "New life" which says that
people all over the world are to under-
stand that Russia rejects the aggressive
war aims of the allies. The correspond-
ent sees a sign in this that the Socialists
of Russia will not wait much longer.
Obviously there is nothing in this, as
published, which could either discour-
age Americans or encourage the German
enemy, and the indictment does not
claim. that there is. That which the in-
dictment charges makes the publication
criminally false is that there was omit-
ted from it '^a [499] proposal by Maxim
Gk)rky that Russia wage a separate war
against Germany." Thus the charge is
that the crime consisted not in publish-
ing something which tended to encourage
German enemies, but in omitting to
publish something which it is conceived
might have discouraged them. It is
not chained that what was printed was
harmful, but that something which was
unfavorable to Germany was not pub-
lished.
This is characteristic of all but *wo
of the thirteen articles in the first count,
and to these, additions were made .so in-
consequential as in my judgment not to
deserve notice.
It seems to me very dear that the
•statute could n«»t Ik* vio'atod bv pub-
Si I
lishing reports and statements harmless
in themselves, and which were not shown
to be false, merely because they had
been published in a different form in
another paper, — and this is the extent
to which the proof in this case goes as
to all of the publications complained
of in the first count. Without more dis-
cussion, I am so clear that the requested
instruction for the defendants Werner
and Darkow as to the first count should
have been granted, that I think the re-
fusal of it entitles them to a new trial.
The ninth count consists of a charge
of conspiracy on the part of the entire
five defendants to wilfully make and
convey false reports and false state-
ments with intent to interfere with the
operation and success of the military
and naval forces of the United States;
with wilfully causing and attempting to
cause insubordination, disloyalty, and
mutiny in the military and naval forces
of the United States, and with wilfully
obstructing the recruiting and enlisting
service of the United States by the pul^
lication of. various articles referred to,
but not quoted, in the indictment. With
a single exception these articles are the
same as those incorporated in the first
count, and this exception purported to
be a despatch from the Hague, giving the
[500] reasons for the unrest in Ger-
many, from which it is charged there was
omitted a statement that one of the rea-
sons for such unrest was the failure of
the submarine campaign carried on by
the German government. Even in this
ninth count it is not charged that the
publications as actually made were
harmful, but it proceeds, as does the
first count, upon the implication that
they .might have been more discouraging
than they were to the German enemy
if the omitted statements had been in-
corporated into them, and that for this
reason they violated the statute. In
other words, it comes to this: that the
ninth count charges as criminal, not a
conspiracy to publish the articles com-
plained of, which were innocent, but a
conspiracy to suppress certain state-
ments which were published in other
newspapers in connection with or as a
part of the published articles, and which,
it is argued, might have been harmful
to the German cause if they had been
published. It is impossible fof me to
think that the statute could be violated
in any such manner.
It was clearly proved that the news-
paper was so poor financially that it was
not able to have telegraphic service of
any character, and, morning paper that
2i&i U. 8.
1919.
CARBON STKEL CO. v. LKVVELLVX.
500, 501
it ivas, it filled its news columns with
clippings from the evening papers of the
ni^fat before and from early editions of
the morning papers when it could pro-
cure them before its hour for going to
press. It did not print nearly as many
columns as the newspapers ^om which
it obtained its news, and for this reason
it was necessarily obliged to cut and con-
dense, both headlines and the body of
tlie articles. In several of the instances
complained of these exigencies of pub-
lication plainly caused the omissions
complained of.
Convinced as I am that the requested
instructions to the jury that \Vemer and
Darkow could not be found guilty on the
first and ninth counts should have been
given, and that the charge of the court
was so utterly unadapted to the case as
it would have been if they had been
[501] given, as to be valueless or
worse as a direction to the jury, I think
that the least {hat can be done, in the
interest of the orderly administration of
justice, is to grant a new trial and let a
new juiy, properly instructed, pass upon
the case.
I eannot see, as my associates seem to
see, that the disposition of this case in-
volves a g^at peril either to the main-
tenance of law and order and govern-
mental authority, on the one hand, or to
the freedom of the press, on the other.
To me it seems simply a case of flagrant
mistrial, likely to result in disg^^ce and
great injustice, probably in life impris-
onment for two old men, because this
court hesitates to exercise the power,
which it undoubtedly possesses, to cor-
rect, in this calmer time, errors of law
which would not have been committed
.but for the stress and strain of feeling
prevailing in the early months of the
late deplorable war.
CARBON STEEL COJklPANY, Petitioner,
V.
G G. LEWELLYN, Collector of Internal
Revenue.
(See S. 0. Reporter's ed. 601-506.)
Internal revenne — mnnltions tax ■•
who is manufacturer.
1. A corporation which, having con-
tracted to manufacture and deliver to a
foreign go\'crnment high explosive shells,
enters into contracts with others for the
performance of the necessary operations to
produce a completetl shell, doing none of
the work itseli except the manufacturing
of steel in bar form suitahlc for the shells,
and the furnishing its sulxtrntractors with
• 4 Ti. c<1.
certain other materials such as ''transit
plugs,** "fixing screws,*' and "copper tub-
ing,'* is subject to the munitions manu*
facturers* tax imposed by the Act of Sep-
tember 8, 1016, § 301, upon every person
manufacturing projectiles, shells, or tor-
pedoes of any kind.
Internal revenue — munittons tax —
manufacturers and subcontractors.
2. The question whether the subcon-
tractors of a corporation which has con-
tracted to manufacture and deliver to a
foreign government high explosive shells
were correctly assessed under the munitions
tax imposed by the Act of September 8,
1016, § 301, does not concern the corpo-
ration in its efforts to resist such a tax
on the profits made by it.
•
[No. 535.]
Argued January 12, 1920. Decided March
1, 1920.
ON WRIT of Certiorari to the Unit-
ed States Circuit Court of Appeals
for the Third Circuit to review a judg-
ment which affirmed a judgment of the
District Court for the Western District
of Pennsylvania in favor of defendant
in a suit to recover back a munition
manufacturer's tax paid under protest.
Affirmed.
See same case below, 169 C. C A.
473, 258 Fed. 633.
The facts are stated in the opinion.
Mr. H. V. Blazter argued the cause^
and, with Messrs. Frederick De C. Faust
and Henry O'Neill, filed a brief for pe-
titioner:
The statute levies an excise tax.
Pollock V. Fanners' Loan & T. Co. 167
U. g. 429, 39 L. ed. 769, 16 Sup. Ct. Rep.
673; Knowlton v. Moore, 178 U. S. 41,
88, 44 L. ed. 969, 988, 20 Sup. Ct. Rep.
747; Pacific Ins. Co. v. Soule, 7 Wall
433, 19 L. ed. 95.
The absence of any definition of
'Manufacturing" implies its ordinary
acceptation.
Dewey v. United States, 178 U. S. 510,
44 L. ed. 1170, 20 Sup. Ct. Rep. 981;
United States v. Wigglesworth, 2 Story,
369, Fed. Cas. No. 16,690.
The provisions of statutes levying
taxes will not be extended by implica-
tion. In cases of doubt the construc-
tion will be in favor of the citizen.
. Gould y. Gould, 245 U. S. 161, 62 I>.
ed. 211, 38 Sup. Ct. Rep. 63; United
States V. Watts, 1 Bond, 580, Fed. Cas.
No. 16,653; American Net & Twine Co.
V. Worthington, 141 U. S. 468, 474, 35
L. ed. 821, 824, 12 Sup. Ct. Rep. 55:
Bcnzigor v. United States, 102 U. S. 38.
375
502-504
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
55, 48 L. ed. 331, 338, 24 Sup. Ct. Rep.
189.
Assistant Attorney General Frierson
argued the cause and filed a brief for
respondent.
Mr. Justice McEenna delivered the
opinion of the court:
Petitioner brought this action against
Lewellyn, who is collector of internal
revenue for the 23d district of Pennsyl-
vania, to recover the sum of $271,062.62,
with interest from December 29, 1917,
paid to him, under a demand made by
bim as collector, for an excise tax
assessed under § 301 of title III. of the
Act of September 8, 1916 [39 Stat, at
L. 781, chap. 463, Comp. Stat. § 6336ib,
Fed. Stat. Anno. Supp. 1918, p. 350],
known as munition manufacturers' tax.
Petitioner made a verified return un-
der protest, reciting its belief that the
tax should be abated for the following
reasons: (1) It, petitioner, did not
manufacture munitions; (2) the muni-
tions taxed were manufactured by cer-
tain independent contractors; (3) the
profit derived by petitioner was from the
sale of the munitions, not from their
manufacture.
The tax was not abated and petition-
er paid it under protest.
[503] The facts are stipulated: Pe-
titioner, through its president, who went
to England, entered into three contracts
with the British government, dated, re-
spectively, January 26, September 29,
and October 7, 1915, for the manufac-
ture and delivery f . a. s. New York, of a
certain number of high explosive shells.
The work to complete the shells con-
sisted of the following operations: (1)
Obtaining suitable steel in bar form:
(2) cutting or breaking the bars to
proper length; (3) converting the bars
or slug^ into a hollow shell forging by
means of a hydraulic press; (4) turn-
ing the shell upon a lathe to exact di-
mensions; (5) closing one end of the
forging to form the nose of the shell;
(6) drilling out the case of the shell
and inserting a base plate; (7) thread-
ing the nose of the shell and inserting
the nose bushing, and inserting in the
nose bushing a wooden plug to protect
the thread thereof; (8) cutting a groove
around the circumference of the shell
and inserting thereon a copper driving
bancl, and turning the band to required
dimensions; (9) varnishing, greasing,
and crating the completed shell.
Petitioner was not equipped, nor did
it have facilities, for doing any of the
3741
described work exoept the manufacture
of steel suitable for the shells in bar
form, and, therefore, to procure the
manufacture of the shells, it, petitioner,
did certain work and entered into nu-
merous contracts u\ relation to the vari-
ous steps in making a completed shell.
These steps are not necessary to give.
The question in the case is not a broad
one, and all of the details of the stipu-
lation are not necessary to its decision.
The essential elements of fact we have
given, and whether they bring petitioner
within the Munitions Tax Act we shall
proceed to consider!
The act is as follows: "Sec. 301. (1)
That every person manufacturing . . . ;
(c) projectiles, shells, or torpedoes of
any kind ... ; or (f ) any part of
any of the articles mentioned . . . ;
(c) . . . shall pay [504] for each
taxable year, in addition to the income
tax imposed by title I., an excise tax of
twelve and one half peV centum upon
the entire net profits actually received
or accrued for said year from the sale or
disposition of such articles manufac-
tured within the United States: . . ."
The act is explicit in its declaration;
perplexity and controversy come over
its Application. One must be a '^person
manufacturing" to incur the tax, but
who is to be regarded as such person
in the sense of the actt Or, to put it
another way, when is 'Manufacturing''
(the word of the act) done, and when is
"manufactured" (the word of the act)
attained t In elucidation of the words,
the specifications enumerate qlne opera-
tions to produce a shell; that is, a com-
pleted shell (except for explosive charge
and detonating device), such as petition*
er contracted to deliver to the British
government. And all of the operations
are asserted to be necessary, and all must
be performed seemingly by the same
person in order that he may be designat-
ed as a "person manufacturing." We
put aside, for the purpose of testing the
contention, the provision of the act mak-
ing a person manufacturing "any part
of any of the articles mentioned" sub-
ject to "a tax."
The contention reduces the act to n
practical nullity on account of the ease
of its evasion. Besides, petitioner miiii-
mizes what it did. It was the contractor
for the delivery of shells, made the
profits on them, and the profits neces-
sarily reimbursed all expenditures on ac-
count of the shells. It was such profit?
that the act was intended to reach, —
profits made out of the war and taxed
to defray the expense of the war. Or.
251 17. 8.
1919.
WORTH BROTHERS 00. v. LEDERER.
504-50'
as expressed by the court of appeals,
Congress "felt that the large abnormal
profits incident to these war contracts
created a remunerative field for tempo-
rary taxation." Petitioner, it is true,
used the services of others, but they
were services necessary to the discharge
of its obligations and to the acquisition
of the profits of such discharge. And pe-
titioner kept control [505] throughout,
— never took its hands off, was at pains
to express the fact, and retained its own-
ership of all of the materials furnished
by it, and the completed shell belonged
to it until delivered to the British gov-
ernment. And further, the steel fur-
nished by it was advanced above a crude
state — advanced to slugs. The nicking
by an outside company we consider of
no consequence, for after .nicking they
were redelivered to petitioner and by
it **broken or separated" into slugs.
And petitioner supplied its respective
subcontractors with other materials, —
"transit plugs," "fixing screws," and
"copper tubing." It is, of course, the
contention of i>etitioner that this was
famishing, not manufacturing, and that
the Uteral meaning of words can be in-
sisted on in resistance to a taxing stat-
ute. We recognize the rule of construc-
tion, but it cannot be carried to reduce
the statute to empty declarations. And,
as we have already said, petitioner's con-
tention would so reduce it. How uni-
versal must the manufacturing bet Will
the purchase of an elemental part de-
stroy itt And how subsidiary must the
work of the subcontractor be not to re-
lieve the contractor — take from him the
character of a "person manufacturing"?
And such is the tangle of inquiries we
encounter when we undertake to distin-
guish between what a contractor to de-
liver a thing does himself, and what he
does through others as subsidiary to
his obligation.
It is, after all, but a question of the
kind or degree of agency, — the differ-
ence, to use counsel's words, between
'^servants and general agents" and
**brokei:^, dealers, middlemen, or fac-
tors." And this distinction between the
agents counsel deems important, and ex-
presses it another way, as follows:
"*Every person manufacturing' means
the person doing the actual work indi-
vidually, or through servants or general
agents, and that the ownership of the
materia] worked upon does not alter this
meaning of the word."
[506] We are unable to assent to this
meaning of the word. It takes from the
act a great deal of utility and makes it
C4 Jj, ed.
miss its puqjose. Of course it did not con-
template ' that "person manufacturing'^
should use his own hands, — it contem-
plated the use of other aid and instru-
mentalities, machinery, servants, and
general agents, availing thereby of the
world's division of labor, but it con-
templated also the world's division of
occupations; and, in this comprehensive
way, contemplated that all of the world's
efficiency might be availed of, and when
availed of for profits, the latter could
not thereby escape being taxed. And
where, indeed, was the hardship of itt
The tax was on profits and measured by
them.
It is, however, alleged, and the stipu-
lation shows, that the subcontracting
companies paid a tax on their profits,
and profits were testified to be the dif-
ference between what was paid the
subcontracting companies for the work
and their cost in doing it. And it
thus appears, it is urged, that petitioner
has been taxed upon the theory that it
manufactured the shells, and the con-
tracting companies "have been taxed for
actually performing all the manufactur-
ing necessary to complete the same
shells."
But it is a sufficient answer to say
that the tax here in issue is the tax on
the profits of the x>etitioner, not on the
profits of the subcontractors. The ques-
tion whether such subcontractors were
correctly assessed concerns them, and
not the petitioner, who is resisting a tax
on the profits actually made by him,
and none other.
We consider further discussion un-
necessary.
Judgment affirmed.
Mr. Justice Day and Mr. Justice Van
Deyanter dissent.
[5071 WORTH BROTHERS COMPANY
V.
EPHRAIM LEDERER, Collector of In-
ternal Revenue for the First District of
Pennsylvania.
(See S. C. Reporter's ed. 507-511.)
Internal revenue — inanitions tax —
who Is manufacturer.
A corporation which, under inspec-
tion in behalf of the French government,
made the steel for, and did the forginp on,
certain shell 1>odie9 under an order from
anotlier corporation, to enable the latter
to carry out it« contract with 8uch govern-
ment for certain explosive shells, was on-
gaged in manufacturing a part of Muh
SUPREME COURT OF THE U^'ITED STATES.
OoT. Tesm,
shells within the meaning of the Munition
Manufacturers* Tax Act of September 8,
1916, imposing a tax upon the profits of
every person manufacturing projectiles,
shells, or torpedoes, or any part of any
of such articles.
[No. 626.]
Argued January 8 and 9, 1920.
March 1, 1920.
Decided
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Third Circuit to review a judgmept
which affirmed a judgment of the Dis-
trict Court for the Eastern District of
Pennsylvania in favor of a collector of
internal revenue in a suit to recover
back a munitions tax paid under pro-
test. Affirmed.
See same case below, 169 C. C. A. 473,
258 Fed. 633.
The facts are stated in the opinion.
Mr. A. H. Wintersteen argued the
cause, and, with Mr. William Wallace,
Jr., filed a brief for petitioner:
The word "part" in taxing statutes
means a practically finished part, where
there are no qualifying words in the
particular statute indicating to the con-
trary.
United States v. 31 Boxes, Fed. Cas.
So. 16,465a; He Blumenthal, 51 Fed. 76,
affirmed in 4 C. C. A. 680, 1 U. S. App.
680; Treasury Dec. 16,977— G. A. 3405;
United States v. Simon, 84 Fed. 154;
Treasury Dec. 35,678— G. A. 7749; Unit-
ed States V. Reisinger, 36 C. C. A. 626,
94 Fed. 1002; Treasury Dec. 21,719— G.
A. 4590; Treasury Dec. vol. 2, p. 616;
Treasury Dec. 23,296 (Abstract No.
28,094) 1912; Hunter v. United States,
67 C. C. A. 343, 134 Fed. 361 ; Treasury
Dec. vol. 29, p. 203, Treasury Dec. 35,697
—G. A. 7771; Treasury Dec. vol. 29, p.
796, Abstract No. 38,991; Fenton v.
United States, 1 Ct. Cust. App. 529;
Redden & Martin v. United States, 5
Ct. Cust. App. 485, 489; Lyon & Healy
v. United States, 4 Ct. Cust. App. 438;
Richard & Co. v. United States, 4 Ct.
Cust. App. 470.
Shell forgings are not parts of shells
according to the Treasury Department's
own definition of the word "part," in
construing the Revenue Act, and cer-
tain of its rulings thereunder.
Treasury Dec. 2384, art. 13; Treasury
Dec. 2647, Oct. 26, 1917.
The fundamental idea of a manufac-
tured article is that it must be so near-
ly completed as to be serviceable for
the purpose for which it was designed.
United States v. Potts, 6 Cranch, 284,
3 L. ed. 102; Lawrence ▼. Allen, 7 How.
785, 12 L. ed. 914; Hartranft v. Wieg-
mann, 121 U. S. 609, 616, 30 L. ed. 1012,
1014, 7 Sup. Ct. Rep. 1240; De Jonge v.
Magone, 159 U. S. 562, 568, 40 L. ed. 260,
262, 16 Sup. Ct. Rep. 119; Anheuser-
Busch Brewing Asso. v. United States,
207 U. S. 556, 562, 52 L. ed. 336, 338, 28
Sup. Ct. Rep. 204; Robertson v. Gerdan,
132 U. S. 454, 33 L. ed, 403, 10 Sup. Ct.
Rep. 119; Worthington v. Robbins, 139
U. S. 337, 338, 35 L. ed. 181, 182, 11
Sup. Ct. Rep. 581; Saltonstall v. Wie-
busch & Hilger, 156 U. S. 601, 603, 39
L. ed. 649, 650, 15 Sup. Ct. Rep. 476;
United States v. Semmer, 41 Fed. 326;
Tide Water OU Co. v. United States,
171 U. S. 210, 43 L. ed. 139, 18 Sup. Ct.
Rep. 837; Allen v. Smith, 173 U. S. 389,
43 L. ed. 741, 19 Sup. Ct. Rep. 446;
Burden Cent. Sugar Ref. Co. v. Payne,
167 U. S. 127, 42 L. ed. 105, 17 Sup. Ct.
Rep. 764.
There is no difference in kind between
customs duties and excise duties such as
would, even a priori, require any dif-
ferent rule of interpretation to be ap-
plied in respect of tbe meaning of
"parts" of shells.
Pacific Ins. Co. v. Soule, 7 Wall 433,
445, 19 L. ed. 95, 99 ; Nicol v. Ames, 173
U. S. 609, 619, 43 L. ed. 786, 793, 19
Sup. Ct Rep. 522 ; Patton v. Brady, 184
U. S. 608, 617, 618, 46 L. ed. 713, 718,
719, 22 Sup. Ct. Rep. 493; Flint v. Stone
Tracy Co. 220 U. S. 107, 160, 151, 55 I^
ed. 389, 413, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 1312.
The cases fixing the meaning of the
word ''part" in a composite article run
back well into the era of the prevalence
of the tariff-f or-revenue doctrine ; and in
no case has it been asserted, or made a
ratio decidendi, that the meaning of the
word is to be determined with a view to
having it fit in with any tariff-for-
protection view.
See United States ▼. 31 Boxes, Fed.
Cas. No. 16,466a.
In none of the later cases where the
''part" has come up for interpretation,
so far as we have been able to find, has
anjrthing but resort to the natui^
meaning of the word been found neces-
sary to interpret it, — excepting only
when Congress, in terms or by imnlicH-
tion, in enacting any particular statute,
divorced the word from its natural
meaning. This is in accord with the
settled doctrine that the natural, ob-
vious meaning must be given to the
language of a statute where there is no
ambiguity in it.
251 U. 8.
1919.
WORTH BROTHERS 00. v. LEDERER.
507-r»0f>
Bate Refrigerating Co. v. Sulzberger,
157 U. S. 1, 36, 39 L. ed. 601, 611, 16
Sup. Ct. Rep. 508.
The lower court was wholly in error
in its assumption that the meaning of
the words we are considering was fixed
for it exclusively in the customs tariff
cases, and that that meaning must be
confined to such cases.
Burdon Cent. Sugar Ref . Co. v. Payne,
167 U. 8. 127, 42 L. ed. 105, 17 Sup. Ct.
Rep. 754; Allen v. Smith, 173 U. S. 389,
43 L. ed. 741, 19 Sup. Ct. Rep. 446 ; Tide
Water Oil Co. v. United States, 171 U.
S. 210, 43 L. ed. 139, 18 Sup. Ct. Rep.
837; Re I. Rheinstrom. & Sons Co. 207
Fed. 130; Central Trust Co. v. Lueders,
137 C. C. A. 387, 221 Fed. 838.
The essential inquiry was not what
Congpress intended, but what is the
meaning of the words it used to express
that intent; and that meaning, when
ascertained, not only determines the
meaning of the statute, but the congres-
sional intent in enacting it.
United States v. Goldenberg, 168 U. S.
96, 102, 42 L. ed. 394, 398, 18 Sup. Ct.
Rep. 3; Bate Refrigerating Co. v. Sulz-
berger, 157 U. S. 1, 37, 39 L. ed. 601,
611, 15 Sup. Ct. Rep. 608; Dewey v.
United States, 178 U. S. 610, 621, 44 L.
ed. 1170, 1174, 20 Sup. Ct. Rep. 981.
A tax is never imposed on a citizen
wheB the question of his liability is at
all doubtfoL
Bate Refrigerating Co. v. Sulzberger,
167 U. S. 1, 36, 39 L. ed. 601, 611, 15
Sup. Ct Rep. 608; 36 Cyc. 1114; Rice v.
United States, 4 C. C. A. 104, 10 U. S.
App. 670, 63 Fed. 912; Spreckles Sugar
Ref. Co. V. McClain, 192 U. S. 397, 416,
48 L. ed. 496, 603, 24 Sup. Ct. Rep. 376 ;
Benziger v. United States, 192 U. S. 38,
56, 48 L. ed. 331, 338, 24 Sup. Ct Rep.
189; Eidman v. Martinez, 184 U. S. 678,
583, 46 L. ed. 697, 701, 22 Sup. Ct. Rep.
515; Gould v. Gould, 245 U. S. 161, 153,
62 L. ed. 211, 213, 38 Sup. Ct. Rep. 63.
Assistant Attorney General Frierson
argued the cause and filed a brief for
respondent.
Mr. Justice McKenna delivered the
opinion of the court:
This writ is directed to the judgment
of the circuit court of appeals, affirm-
ing a judgment of the district court for
I«derer, to whom we shall refer as the
collector, [508] in an action by peti-
tioner to recover from him the sum of
$74,857.07, exacted as a tax under § 301
of the Munitions Manufacturers Tax
Act of September 8, 1916 (39 Stat, at L.
76e, 781, chap. 463, Comp. Stat. §§
64 L. ed.
6336a, 6336ib, Ted. Stat. Anno. Supp.
1918, pp. 312, 350), and paid by peti-
tioner under protest.
A detail of the imposition of the tax
and the protest of its payment is un-
necessary to give. The other facts were
stipulated, and it appears from the
stipulation that during the taxable year
1916 petitioner made the steel for and
did the forging on certain shell bodies
under an order from the Midvale Steel
Company, to enable the latter company
to carry out a contract which it had
with the government of France for cer-
tain explosive shells. The steel was
made and the forging done by petitioner
in accordance with specifications re-
quired by the French government, which
specifications were attached to the order
from the Midvale Steel Company to peti-
tioner.
Inspectors employed by the French
government inspected the work done by
petitioner, testing the steel and examin-
ing the forgings as they passed through
petitioner's hands. ''Up to the time
when the blooms of steel were sliced
partly through into billets, the right of
insi>ection was exercised by the French
inspector in chief, only whenever he de-
sired to exercise it." Some forgings
were rejected, and those that were
passed were so marked by the inspector.
This was done in accordance with an
understanding between petitioner and
the Midvale Steel Company.
The profits upon which the tax claimed
in this case was imposed were derived
solely from the sale of the above-men-
tioned forgings.
The Munitions Tax Act provides (§
301, 39 Stat, at L. chap. 463, p. 781,
Comp. Stat. § 6336ib, Fed. Stat. Anno.
Supp. 1918, p. 350) "that every person
manufacturing" certain articles and
"shells," "or any part of any of the ar-
ticles mentioned . • . shall pay for
each taxable year, in addition to the in-
come tax imposed by title I., an excise
tax of twelve and one half per centum
upon the entire net [509] profits ac-
tually received or accrued for said year
from the sale or disposition of such
articles manufactured within the Unit-
ed States."
The question is the simple and direct
one whether a shell forging under the
stipulation and evidence is "any part of
a shell within the meaning of the law.
The argument of petitioner, in support
of a negative answer, is very diffuse,
pressing considerations which we do not
think are relevant.
A shell is a definite urticlc, constituted
S79
509-611
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
of materials of a certain* kind and qual-
ity, assembled and fitted and finished so
as to be adequate for its destructive
purposes. Is not every element (we use
the word for want of a better) in the
aggregation or composition or amalga-
mation (whichever it is) of a shell, a
part of itt If not, what is it? And
what is the test to distinguish a part
from not a partt We use the negative
as an antithetic word does not occur
to us to express that something neces-
sary to constitute a thing is not a part
of it. Petitioner surmounts the diffi-
culty by contending that the law, by its
words "any part" of any of the "shells,"
implies a substantially finished part, as
related to the whole structure and to the
purpose it is intended to subserve.
"Otherwise," counsel say, "the word
[part] loses all precision, and becomes
equivalent to the words ^ingredient' or
'material composing or making up.'"
And to sustain this view they take us to
the dictionaries and to an enumeration of
the processes to which the material must
be subjected to make a forging, and
those afterwards to prepare it for a
shell. In this enumeration letters of
the alphabet are used of which "A, B,
C, and H represent stages of develop-
ment of the material prior to delivery"
to the Midvale Company, and "D, E,
F, G, H, I, and K represent stages of de-
velopment by Midvale after delivery to
it." It is quite obvious, of coarse, as
counsel declare, that the forgings were
"not sheila; since a shell is a composite
structure of several parts." But [510]
counsel go farther and say that the forg-
ings were "not parts of shells, in any
practical and legal sense, because their
development was so far short — 80 per
cent — of the point where they could be
related to or combined with any other
component of the shell structure, that
they could not satisfy any fair meaning
of the shell body unit as entering into the
composite shell as a whole." We give
counsel's words because we fear that
by paraphrasing them we might not cor-
rectly represent their meaning and con-
tention.
We reject the contention. Congress
did not intend to subject its legislation
to such artificialities and make it de-
pend upon distinctions so refined as to
make a part of a shell not the taxable
"part" of the law. Besides, petitioner
understates its work. It did not deliver
raw material to the Midvale Company.
Certain processes had been performed on
the material, giving it a shape adapted
to its destination. It was made evlin-
380
drical, hollow, with one end closed. It
was rough, it is true, but an advance
upon the raw material
The progressive processes need not be
enumerated. The lower courts have
enumerated them, and the court of ap-
peals, describing them, said that the
"steps," "six in all," were progressive ad-
vances toward the chemical constituents,
the shape and dimensions required by
and essential to, the manufacturer of
shells in compliance with the contract.
And the court distinguished the effect
of the steps. With the fourth, it was
said, the inspection by the French gov-
ernment began; the fifth took the fiuid
metal [the result of the second step]
from the possibility of use for general
commercial purposes, and by a forging
process restricted the steel to the field
of use for shells. By the sixth step this
forging "was drawn to a length, and to
an inside and outside diameter which
enabled the Midvale Company to carry
forward its twenty-nine progressive
steps, which the six" of [511] petition-
er "were required to complete the man-
ufactured shell of the contract."
"Manifestly," as counsel for the col-
lector says, "the shell body was not com-
pletely manufactured by either of the
companies which were engaged in its
production," but "by the two acting to-
gether." And each, therefore, is liable
for the profit it made, and judgment is
affirmed.
Mr. Justice Day and Mr. Justice Van
Devanter dissent.
.5
FORGED STEEL WHEEL COMPANY;
Petitioner,
V.
0. a. LEWELLYN, Collector of Internal
Revenue.
(Sec S. C. Reporter's ed. 511-616.)
Internal revenne — munitions tax — >
who is mannfacturer.
1. The net pro tits received by a corpo-
ration from the manufacture and sale of
certain steel forgings to be used by the
vendee to fulfil the latter's contract to
supply a foreign government with high ex-
plosive shells are taxable under the Mu-
nition Manufacturer's Tax Act of Septem-
ber 8, 3916, imposing a tax on any person
manufacturing shells or any part of them.
Appeal — review — question not raised
below — reverJMil without remanding
for new trial.
2. The action of a Federal cireuit
court of appeals in simplv reversing the
251 V. 8.
•1
1919.
FORGED STEEL WHEEL CO. v. LEWELLYN.
iudgment of a district court against a col-
lector of internal revenue for the recovery
back of certain taxes paid under protest
without remanding the case for a new trial
is not open to attack in the Federal Su-
preme Court where there was no objection
made to that action and no request for a
remand of the case, — especially where there
vrm nothinf^ to retry, the case involving
only propositions of law.
[For other cases, see Appeal and Error, VIII.
j, 9; IX. i, 1, b, in Digest Snp. Ct. 1008.]
[No. 526.]
Argued January 8 and 0, 1020. Decided
March 1, 1020.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Third Circuit to review a judgment
which reversed a judgment of the Dis-
trict Court for the Western District of
Pennsylvania against a collector of in-
ternal revenue for the recovery back of
a munition manufacturer's tax paid
under protest. Affirmed.
See same case below, 169 C. C. A. 47B,
258 Fed. 533.
The facts are stated in the opinion.
Messrs. Ckorge B. Gordon and Ckorge
Sutherland argued the cause, and, with
Messrs. William Watson Smith, James
MeKirdy, and S. G. Nolin, filed a brief
for petitioner:
The intent of Congress is to be de-
rived from the meaning of the words
used t6 express that intent; and that
meaning, when ascertained, not only de-
termines the meaning of the statute, but
the congressional intent in enacting it.
United States v. Goldenberg, 168 U.
5. 95, 102. 42 L. cd. 394, 398, 18 Sup.
Ct. Rep. 3; Hamilton v. Rathbonef, 175
U. S. 414, 421, 44 L. ed. 219, 222, 20
Sup. Ct. Rep. 155; United States v.
Fisher. 2 Cranch, 358, 386, 2 L. ed. 304,
313; The Abbotsford, 98 U. S. 440, 25
L. ed. 168; Hadden v. The Collector
(Hadden v. Barney) 5 Wall. 107, 111,
18 L. ed. 518, 519; Dewey v. United
State?, 178 U. S. 510, 521, 44 L. ed. 1170,
1174, 20 Sup. Ct. Rep. 981 ; McDermon
V. Southern P. Co. 122 Fed. 675; Bate
Refrigerating Co. v. Sulzberger, 157 U.
6. 1, 36, 39 L. ed. 601, 611, 15 Sup. Ct.
Rep. 516.
Revenue laws are designed to operate
upon the public at large, and are sup-
posed to use words in the sense belong-
ing to the familiar language of common
life and commercial busine.<;B.
United States v. Wigglesworth, 2
Story, 369, Fed. Cas. Xo. 16,690.
In every case of doubt, such revenue
statntes are construed roost stronglv
•4 li. ed.
against the government, and in favor of
the subjects or citizens.
Gould V. Gould, 245 U. S. 151, 62 L.
ed. 211, 38 Sup. Ct. Rep. 53; United
States V. Wigglesworth, supra; Rice v.
United States, 4 C. C. A. 104. 10 U. S.
App. 670, 53 Fed. 910; Partington v.
Atty. Gen. L. R. 4 H. L. 122, '38 L. J.
Exch. N. S. 205, 21 L. T. N. S. 370.
The fundamental idea of a manufac-
tured article is that it must be so neaVly
completed as to be serviceable for the
purpose for which it was designed.
United States v. Potts, 5 Cranch, 284,
287, 3 L. ed. 102, 103; Lawrence v.
Allen, 7 How. 785, 794, 12 L. ed. 914,
917; Hartranft v. Wiegmann, 121 U. S.
609, 615, 30 L. ed. 1012, 1014, 7 Sup. Ct.
Rep. 1240; De Jonge v. Magone, 159 U.
S. 562, 568. 40 I4. ed. 260, 262, 16 Sup.
Ct. Rep. ll9; Anheuser-Busch Brewing
Asso. V. United States, 207 U. S. 556,
562, 52 L. ed. 336, 338, 28 Sup. Ct. Rep.
204; Re Blumenthal, 51 Fed. 76; United
States V. Reisinger, 36 C. C. A. 626, 94
Fed. 1002; Hunter v. United States, 67
C. C. A. 343, 134 Fed. 361 ; Tide Water
Oil Co. v. United States, 171 U. S. 210.
43 L. ed. 139, 18 Sup. Ct Rep. 837;
United States v. Semmer, 41 Fed. 326;
Erhardt v. Hahn, 5 C. C. A. 99, 14 U.
S. App. 117, 55 Fed. 273; Robertson v.
Gerdan, 132 U. S. 454, 33 L. ed. 403, 10
Sup. Ct. Rep. 119; Worthington v. Rob-
bins, 139 U. S. 337, 35 L. ed. 181, 11
Sup. Ct. Rep. 581; Saltonstall v. Wie-
busch & Hilger, 156 U. S. 601, 39 L. ed.
549, 15 Sup. Ct. Rep. 476; Allen v.
Smith, 173 U. S. 389, 43 L. ed. 741, 19
Sup. Ct. Rep. 446;. Burden Cent. Sugar
Ref. Co. V. Payne, 167 U. S. 127, 42 L.
ed. 105, 17 Sup. Ct. Rep. 754; Schover-
ling V. United States, 142 Fed. 302 ;
Norris Bros. v. Com. 27 Pa. 494; Re
First Nat. Bank, 81 C. C. A. 260, 152
Fed. 67, 11 Ann. Cas. 355; Central
Trust Co. V. Lueders, 137 C. C. A. 387,
221 Fed. 829; Vandejrrift v. United
States, 164 Fed. 69; United States v.
Thomas Prosser & Sou, 177 Fed. 571;
Bromlev v. United States, 154 Fed. 400,
84 C. C. A. 458, 156 Fed. 958.
A part of a thing means a substan-
tially finished part.
United States v. 31 Boxes, Fed. Cas.
16,405a; Vanacker v. Spalding, 24 Fed.
88; United States v. Simon, 84 Fed.
154; Grempler v. United States, 46 C.
C. A, 557, 107 Fed. 688; Boker v. United
States, 38 C. C. A. 114, 97 Fed. 205;
Re Reiss Bros. & Co. Treasury Dec.
16.977, G. A. 3405, 1896, p. 273; Treas
ury Dec. 21,719, G. A. 4590; Treasury
Dec. vol. 2, p. 615; Treasury Dec. 32,396;
SSI
509-611
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
of materials of a certain* kind and qual-
ity, assembled and fitted and finished so
as to be adequate for its destructive
purposes. Is not every element (we use
the word for want of a better) in the
aggregation or composition or amalga-
mation (whichever it is) of a shell, a
part of itt If not, what is it? And
what is the test to distinguish a part
from not a partt We use the negative
as an antithetic word does not occur
to us to express that something neces-
sary to constitute a thing is not a part
of it. Petitioner surmounts the diffi-
culty by contending that the law, by its
words "any part" of any of the "shells,"
implies a substantially finished part, as
related to the whole structure and to the
pui*pose it is intended to subserve.
"Otherwise," counsel say, "the word
[part] loses all precision, and becomes
equivalent to the words ^ingredient' or
'material composing or making up.' "
And to sustain this view they take us to
the dictionaries and to an enumeration of
the processes to which the material must
be subjected to make a forging, and
those afterwards to prepare it for a
shell. In this enumeration letters of
the alphabet are used of which "A, B,
C, and n represent stages of develop-
ment of the material prior to delivery"
to the Midvale Company, and "D, E,
F, G, H, I, and K represent stages of de-
velopment by Midvale after delivery to
it." It is quite obvious, of course, as
counsel declare, that the forgings were
"not shells; since a shell is a composite
structure of several parts." But [510]
counsel go farther and say that the forg-
ings were "not parts of shells j in any
practical and legal sense, because their
development was so far short — 80 per
cent — of the point where they could be
related to or combined with any other
component of the shell structure, that
they could not satisfy any fair meaning
of the shell body unit as entering into the
composite shell as a whole." We give
counsel's words because we fear that
by paraphrasing them we might not cor-
rectly represent their meaning and con-
tention.
We reject the contention. Congress
did not intend to subject its legislation
to such artificialities and make it de-
pend upon distinctions so refined as to
make a part of a shell not the taxable
"part" of the law. Besides, petitioner
understates its work. It did not deliver
raw material to the Midvale Company.
Certain processes had been i>erformed on
the material, giving it a shape adapted
\o its destination. It was made evlin-
380
drical, hollow, with one end closed. It
was rough, it is true, but an advance
upon the raw material.
The progressive processes need not he
enumerated. The lower courts have
enumerated them, and the court of ap-
peals, describing them, said that the
"steps," "six in all," were progressive ad-
vances toward the chemical constituents,
the shape and dimensions required by
and essential to, the manufacturer of
shells in compliance with the contract.
And the court distinguished the effect
of the steps. With the fourth, it was
said, the inspection by the French gov-
ernment began; the fifth took the fluid
metal [the result of the second step]
from the possibility of use for general
commercial purposes, and by a forging
process restricted the steel to the field
of use for shells. By the sixth step this
forging "was drawn to a length, and to
an inside and outside diameter which
enabled the Midvale Company to carry
forward its twenty-nine progressive
steps, which the six" of [511] petition-
er "were required to complete the man-
ufactured shell of the contract."
"Manifestly," as counsel for the col-
lector says, "the shell body was net com-
pletely manufactured by either of the
companies which were engaged in its
production," but "by the two acting to-
gether." And each, therefore, is Uable
for the profit it made, and judgment is
affirmed.
Mr. Justice Day and Mr. Justice Van
Deyanter dissent.
FORGED STEEL WHEEL OOMPANT;
Petitioner,
V.
0. a. LEWELLYN, Collector of Intcrntl
Revenue.
(See S. C. Reporter's ed. 511-616 J
Internal rcvenne — munitions tax ->
who Is manufactnrer.
1. The net profits received by a corpo-
ration from the manufacture and sale of
certain steel forgings to be used by the
vendee to fulfil the latter's contract to
supply a foreign government with high ex-
plosive sheila are taxable under the Mu-
nition Manufacturer's Tax Act of Septem-
ber 8, 3916, imposing a tax on any person
manufacturing shells or any part of them.
Appeal — review — question not raised
below — reversal without remanding
for new trial.
2. The action of a Federal circuit
court of appeals in simplv reversing the
25J U. 8.
1919.
FORGED STEEL WHEEL CO. v. LEWELLYN.
ludgment of a district court against a col*
lector of internal revenue for the recovery
back of certain taxes paid under protest
without remanding the case for a new trial
is not open to attack in the Federal Su-
preme Court where there was no objection
made to that action and no request for a
remand of the case, — especially where there
was nothinf^ to retry, the case involving
only propositions of law.
[For other cases, see Appeal and Error, VIII.
j. 9; IX. i, 1, b, In Digest Sup. Ct. 1008.]
[No. 626.]
Argued January 8 and 9, 1020. Decided
March 1, 1020.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Third Circuit to review a judgment
which reversed a judgment of the Dis-
trict Court for the Western District of
Pennsylvania against a collector of in-
ternal revenue for the recovery back of
a munition manufacturer's tax paid
under protest. Affirmed.
See same case below, 169 C. C. A. 473|
258 Fed. 633.
The facts are stated in the opinion.
Messrs. Ckorge B. Gordon and George
Sutherland argued the cause, and, with
Messrs. William Watson Smith, James
MoKirdy, and S. G. Nolin, filed a brief
for petitioner:
The intent of Congress is to be de-
rived from the meaning of the words
used t6 express that intent; and that
meaning, when ascertained, not only de-
termines the meaning of the statute, but
the congressional intent in enacting it.
United States v. Goldenberg, 168 U.
S. 95, 102. 42 L. ed. 394, 398, 18 Sup.
Ct. Rep. 3; Hamilton v. Rathbone', 175
U. S. 414, 421, 44 L. ed. 219, 222, 20
Sup. Ct. Rep. 165; United States v.
Fisher. 2 Cranch, 358, 386, 2 L. ed. 304,
313; The Abbotsford, 98 U. S. 440, 25
L. ed. 168; Hadden v. The Collector
(Hadden v. Barney) 5 Wall. 107, 111,
18 L. ed. 518, 519; Dewey v. United
States, 178 U. S. 510, 521, 44 L. ed. 1170,
1174, 20 Sup. Ct. Rep. 981; McDermon
V. Southern P. Co. 122 Fed. 675; Bate
Refrigerating Co. v. Sulzberger, 157 U.
S. 1, 36, 39 L. ed. 601, 611, 15 Sup. Ct.
Rep. 516.
Revenue laws are designed to operate
upon the public at large, and are sup-
posed to use words in the sense belong-
ing to the familiar language of common
life and commercial business.
United States v. Wigglesworth, 2
Story, 369, Fed. Cas. No. 16,090.
In every case of doubt, such revenue
Btatntes are construed raost strong! v
64 li. ed.
against the government, and in favor of
the subjects or citizens.
Gould v. Gould, 245 U. S. 151, 62 L.
ed. 211, 38 Sup. Ct. Rep. 53; United
States V. Wigglesworth, supra; Rice v.
United States, 4 C. C. A. 104, 10 U. R.
App. 670, 53 Fed. 910; Partington v.
Atty. Gen. L. R. 4 H. L. 122, 38 L. J.
Exch. N. S. 205, 21 L. T. N. S. 370.
The fundamen);al idea of a manufac-
tured article is that it must be so neaVly
completed as to be serviceable for the
purpose for which it was designed.
United States v. Potts, 5 Cranch, 284,
287, 3 L. ed. 102, 103; Lawrence v.
Allen, 7 How. 785, 794, 12 L. ed. 914,
917; Hartranft v. Wiegmann, 121 U. S.
609, 615, 30 L. ed. 1012, 1014, 7 Sup. Ct.
Rep. 1240; De Jonge v. Magone, 159 U.
S. 662, 668. 40 U ed. 260, 262, 16 Sup.
Ct. Rep. 119; Anheuser-Busch Brewing
Asso. V. United States, 207 U. S. 556,
562, 52 L. ed. 336, 338, 28 Sup. Ct. Rep.
204; Re Blumenthal, 51 Fed. 76; United
States v. Reisinger, 36 C. C. A. 626, 94
Fed. 1002; Hunter v. United States, 67
C. C. A. 343, 134 Fed. 361 ; Tide Water
Oil Co. V. United States, 171 U. S. 210.
43 L. ed. 139, 18 Sup. Ct. Rep. 837;
United States v. Semmer, 41 Fed. 326;
Erhardt v. Hahn, 5 C. C. A. 99, 14 U.
S. App. 117, 55 Fed. 273; Robertson v.
Gerdan, 132 U. S. 454, 33 L. ed. 403, 10
Sup. Ct. Rep. 119; Worthington v. Rob-
bins, 139 U. S. 337, 35 L. ed. 181, 11
Sup. Ct. Rep. 581; Saltonstall v. Wie-
busch & Hilger, 156 U. S. 601, 39 L. ed.
549, 15 Sup. Ct. Rep. 476; Allen v.
Smith, 173 U. S. 389, 43 L. ed. 741, 19
Sup. Ct. Rep. 446;.Burdon Cent. Sugar
Ref. Co. V. Payne, 167 U. S. 127, 42 L.
ed. 105, 17 Sup. Ct. Rep. 754; Schover-
ling V. . United States, 142 Fed. 302 ;
Norris Bros. v. Com. 27 Pa. 494; Re
First Nat. Bank, 81 C. C. A. 260, 152
Fed. 67, 11 Ann. Cas. 355; Central
Trust Co. V. Lueders, 137 C. C. A. 387,
221 Fed. 829; Vandej-rift v. United
States, 164 Fed. 69; United States v.
Thomas Prosser & Son, 177 Fed. 571;
Bromlev v. United States, 154 Fed. 400,
84 C. C. A. 458, 156 Fed. 958.
A part of a thing means a substan-
tially finished part.
United States v. 31 Boxes, Fed. Cas.
16,4G5a; Vanacker v. Spalding, 24 Fed.
88; United States v. Simon, 84 Fed.
154; Grempler v. United States, 46 C.
C. A, 557, 107 Fed. 688; Boker v. United
States, 38 C. C. A. 114, 97 Fed. 205;
Re Reiss Bros. & Co. Treasury Dec.
16,977, G. A. 3405, 1896, p. 273;* Treas-
ury Dec. 21,719, G. A. 4590; Treasury
Dec. vol. 2, p. 615; Treasury Dec. 32,396;
SSI
512, 513
SUPREME COURT OF THE UNlTEl? STATES.
Oct. TmM,
Re United States Exp. Co. Treasury
Dee, 36,697; Treasury Dec. vol. 29, p.
203; Re Benedict Weiss, Treasury Dec.
vol. 29, p. 796; Parts of Musical Instru-
ments, Treasury Dec. 27,207; Treasury
Dec. 2547, p. 1208, § 6526; Treasury
Dec. 2570, p. 1215; Fenton v. United
States, 1 U. S. Ct. Cust. App. 532.
The government contends that the
cases cited by us are npt controlling be-
caiise they are import duty cases, while
this tax is not on the article, but on the
business. There is no such distinction
m the cases
Allen V. Smith, 173 U. 5. 389, 43 L.
ed. 741, 19 Sup. Ct. Rep. 446; Burdon
Cent. Sugar Ref. Co. v. Payne, 167 U.
S. 127, 42 L. ed. 105, 17 Sup. Ct. Rep.
754; Box-Shook Case (Tide Water Oil
Co. v. United States) 171 U. S. 210, 43
L. ed. 139, 18 Sup. Ct. Rep. 837; Norris
Bros. V. Com. 27 Pa. 494.
So, when the question has arisen un-
der the bankruptcy or insolvency acts,
as to whether the bankrupt was a man-
ufacturer, identically the same test has
been applied, and the same cases ap-
pealed to as authority.
Re Krst Nat. Bank, 81 C. C. A. 260,
152 Fed. 64, 11 Ann. Cas. 355; Re I.
Rheinstrom & Sons Co. 207 Fed. 119;
Central Trust Co. v. Lueders, 137 C. C.
A. 387, 221 Fed. 829; Smith v. Rhein-
strom, 13 C. C. A. 261, 31 U. S. App.
271, 65 Fed. 984; Erhardt v. Hahn, 5
C. C. A. 99, 14 U. S. App. 117, 55 Fed.
275.
Assistant Attorney General Frierson
argued the cause and filed a brief for
.respondent.
Mr« Justice McKenna delivered the
opinion of the court :
Action brought by petitioner against
Lewellyn, collector of internal revenue
in the district court for the western dis-
trict of Pennsylvania, to recover the sum
of $246,920.18, exacted from petitioner
as a tax under the Munitions Tax Act,
and paid under protest. Interest was
also prayed from November 27, 1917.
The tax was exacted upon the ground
(and it was so alleged) that that sum
was the tax on the amount of the net
profits received by petitioner from the
manufacture and sale of certain steel
forgings used in the manufacture of
shells.
The circumstances said to show the
tax to have been illegally exacted were
detailed, of which there was denial by
the collector, and, upon issues thus
formed, the case was tried to a jury,
S82
which, in submission to the instructions
of the court, returned a verdict for peti-
tioner for the amount prayed. Judg-
ment upon the verdict for the sum of
$263,258.06 was reversed by the circuit
court of appeals.
The court of appeals considered in
one opinion this case and Carbon Slecl
Co. V. Lewellyn, 251 U. S. 501, ante, 375,
40 Sup. Ct. Rep. 283, and Worth Bros.
Co. V. Lederer, 251 U. S. 507, ante, 377,
40 Sup. Ct. Rep. 282. The last two eases
we have just decided, and we can im-
mediately say, that if this case does not
differ from them in its facts, it does not
in principle. It will turn, as they did,
upon the construction of § 301 of the
Munitions Tax Act (Sept. 8, 1916, 39
Stat, at L. 756, 781, chap. 463, Comp.
Stat. §§ 6336a, 6336Jb, Fed.- Stat. Anno.
Supp. 1918, pp. 312, 350), which im-
poses upon "every person manufactur-
ing . . . shells . . . , [518] or
any part'' [italics ours] of them, a tax
of 12i per cent for each taxable year
upon the entire net profits received or
accrued" for such years from the sale or
disposition of the shells manufactured in
the United States. The contention in the
Worth Case was explicitly as it is in
this case, that the words "any part,** as
used in the act, "means a substantially
finished part;" a part, as there said,
which has relation "to the whole struc-
ture and to the purpose it is intended
to subserve." Here it is said, "The
fundamental idea of a manufactured
article is that it must be so nearly
completed as to be serviceable for the
purpose for which it was designed."
The reasoning of the Worth Case
covers, therefore, the contention here,
and rejects it, if, as we have said, the
facts be the same, and we think they
are. There are some circumstances of
complexity, but they are easily resolved,
and do not disturb the principle of de-
cision. Of the facts, the court of ap-
peals said:
• "From the proofs it appears the Brit-
ish government made contracts with cer-
tain persons whereby the latter agreed
to supply it with high explosive shells
in compliance with the specifications, re-
quirement, and inspection of the said
government. To fulfil such shell con-
tract the contractor made subcontracts
with the Forged Steel Wheel Company,
by which the latter agreed to manu-
facture and furnish to said contractor,
rough steel shell forgings of the char-
acter provided in the contract as to
chemical constituents, tensile strength,
size, shape, etc. To fulfil its contract,
251 U. S.
1919.
FORGED STEEL WHEEL CO. v. LEWELLYN.
513-616
the Forged Steel Wheel Company either
made, had madei or bought in the mar-
ket, the grade of steel required. This
steel was of a common commercial type
known as rounds. These rounds it
nicked and broke into 18-inch lengths,
which it then heated and put through
two foi^ng processes, by the first of
which a hole was pierced from one end
of the round to within 2 inches of the
other; by the second, the round was
lengthened by drawing [514] it through
thiee successive rings of a hydraulic
press. The output of the Forged Steel
Wheel Company's work was a hollow
steel body or shell form, of a suitable
composition, shape, and length from
which to make, to the British government
standards, the high explosive projectiles
contracted for. The weight of such
shell forms was about 170 pounds. To
make this shell form suitable for use
as a shell, the contractor, to whom the
Forged Steel Wheel Company then de-
livered it, was required to dress, bore,
and machine it down to 77 pounds; this
required some 27 distinct and separate
processes.*'
The court, after further comment on
the facts^ and consideration of the opin-
ion of the district court and its reason-
ing, and distinguishing the cases that
influenced the district court, said:
''But in the excise law in question, Con-
gress is dealing with the imposing of
taxes as the main object, and with the
work done as a mere incident to aid in
determining the tax. In that aspect the
quantum of the work done is imma-
teriaL" And again, "The crucial ques-
tion is not the quantum of the manu-
facture, measured by steps, but the fact
of manufacture, resulting in profits."
Replying to the contention that the
purpose of Congress was not to tax
anyone but the manufacturer of a com-
pleted shell or the maker of a completed
part of a shell, and that the forging
of the Wheel Company was not a com-
pleted part of a shell, the court of ap-
peals said: "It is manifest that, stand-
ing alone, the statute neither expresses
nor implies any warrant or implication
for limiting the broad, inclusive, generic
words 'any part' to the restricted,
specific, qualiHed term, 'any completed
part.' "
The court of appeals also considered
the rule of construction that statutes
levying taxes should not be extended by
implication beyond the clear import of
their language and the cases from which
the rule was deduced. The rule was
64 L. edr
conceded; its application to the present
controversy was denied.
[515] For the sake of brevity we
consider only the cited decisions of this
court. They are Tide Water Oil Co. v.
United States, 171 U. S. 210, 218, 43 L.
ed. 139, 141, 18 Sup. Ct. Rep. 837 ; Worth-
ington V. Robbins, 139 U. S. 337, 36
L. ed. 181, 11 Sup. Ct. Rep. 581; An-
heuser-Busch Brewing Asso. v. United
States, 207 U. S. 556, 52 L. ed. 336, 28
Sup. Ut. Rep. 204. These were customs
cases and the statutes were given an
interpretation on account of their pur-
pose. They are, besides, not in point.
In the first one the statute had the
words "wholly manufactured," and,, giv-
ing effect to them, it was decided that
boxes made from shooks imported from
Canada, though nailed together, and the
sides of the boxes thus formed trimmed
in the United States, were not boxes
"wholly manufactured" in the United
States, and entitled, upon being export-
ed, to a drawback under a statute
which allowed a drawback on articles
"wholly manufactured of materials im-
ported." The Worthington Case was
cited. In that case a duty was exacted
upon "white hard enamel" under a stat-
ute which imposed a duty of 25 per cent
upon "watches, watch cases, watch
movements, parts of watches, and watch'
materials." This on the contention of
the government that the enamel fell
under the head of "watch materials."
The contention was rejected, it being
conceded, that the enamel was used for
many other purposes than for watch
faces. In the Anheuser-Busch Brewing
Asso. Case a claim of drawback upon
corks exported with bottled beer was
rejected. The gpround of the claim was
that the corks were subjected to a
special treatment to be fit for use, and
hence it was contended that they should
be regarded as "imported materials
. used in the manufacture of
articles manufactured or produced in
the United States;" that is, the bottled
beer. We replied: "A cork put
through the claimant's process is still a
cork." The cases, therefore, do not sus-
tain the contention for which they are
cited.
Objection is made to the action of
the Circuit Court of Appeals in simply
reversing the judgment of the District
Court, and not remanding the case for
a new trial. There [olo] was no ob-
jection made to that action, and no re-
quest for a remand of the case; and,
883
519
SUPREME COURT OF THE UNITSD STATES.
Oct. Tun.
other oases are opposed to the conten-
tioiiy and that, besides, no constitutional
rights can be based on the error of
prior decisions.
Judgment affirmed.
SOUTH COAST STEAMSHIP COMPANY,
Claimant of the Steamer ''South Coast,"
Petitioner,!
▼.
J. 0. EUDBACH.
(See S. C. Reporter's ed. 519-523.)
Marittme Itens — supplies — chartered
▼essel » authority of master.
A person furviishing* supplies on the
master's order to a chartered vessel in a
domestic port on ^e credit of the vessel,
although notified by the owner not to do
so, is entitled to a lien therefor where the
charter party recognizes that liens may be
imposed by the charterers and allowed to
sta[nd for less than one month, in view of
the Act of June 23, 1910, which in § 1
gives a maritime lien for such suppli^,
and in § 3 declares the presumption that
a master appointed by a charterer has au-
thority to procure them, although the stat-
ute further provides that nouiing in it
shall be considered to give a lien where
the furnisher knew, or, by the exercise
of reasonahle diligence, could have ascer-
tained, that, because of the terms of the
charter party, or for any other reason, the
person ordering necessaries was without
authority to bmd the vessel, since if the
assumption expressed in the words of the
charter partv, that the charterers had
power to authorize the master to impose
the Hen, was not equivalent to a grant of
power, it at least cannot be taken to have
excluded it, and there was nothing from
which the furnisher could have ascertained
tliat the master did not have power to bind
the ship.
[For other cases, see Marl time Liens, II. Is
in Digest Sup. Ct. 1908.]
[No. 68.]
• Reported by the Official Reporter under
the title of •*The South Coast."
Note. — ^As to maritime liens, generally
— see notes to Blaine v. The Charles
Carter, 2 L. ed. U. S. 636; The General
Smith, 4 Lu ed. U. S. 609 ; and The Pal-
myra, 6 L. ed. U. S. 531.
As to who is liable for repairs, neces-
saries, and supplies furnished to a ship
— see notes to The General Smith, 4 L.
ed. U. S. 609, and Harmony v. United
States, 11 L. ed. 239.
As to what contracts will support a
maritime lien — see note to Chamberlain
Transp. Co. v. Ashland Nat. Bank, 70
L.RA. 363.
S8«
Submitted November 10, 1919. Decided
March 1, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Ninth Circuit to review a decree
which affirmed a decree of the District
Court for the Northern District of Cali-
fornia, enforcing a maritime lien for
supplies furnished to a vessel. Affirmed.
See same case below, 159 C. C. A. 302,
247 Fed. 84.
The faots are stated in the opinion.
Mr. Oliver Dibble submitted the cause
for petitioner. Messrs. Marcel E. Cerf
and C. H. Sooy were on -the brief:
A charter party which requires
the charter to furnish supplies to the
ship withdraws from the master the pow-
er to order supplies for which the ma-
terialman, with knowledge of the
terms of the charter party, may assert
a lien.
The Columbus, 5 Sawy. 487, Fed Cas.
No. 3,044; The William Cook, 12 Fed.
919; The S. M. Whipple, 14 Fed. 354;
The Secret, 15 Fed. 480; Stephenson ▼.
The Francis, 21 Fed. 725; The Cumber-
land, 30 Fed. 449 ; The Ellen Holgate, 30
Fed. 125; The International, 30 Fed.
375; The Samuel Marshall, 49 Fed. 760,
54 Fed. 398; The Kate, 164 U. S. 458, 41
L. ed. 512, 17 Sup. Ct. Rep. 135; Tha
Valencia, 165 U. S. 264, 272, 273, 41 L.
ed. 710, 714, 17 Sup. Ct. Rep. 323; The
Alvira, 63 Fed. 156; The Rosalie, 76
Fed. 29; The H. C. Grady, 87 Fed. 232;
The Robert Dollar, 115 Fed. 219; The
North Pacific, 40 C. C. A. 610, 100 Fed.
490; The George Farwell, 43 C. C. A.
373, 103 Fed. 882; The Underwriter, 119
Fed. 713; The Vigilant, 81 C. C. A. 371,
151 Fed. 751; Northwestern Fuel Co. y.
Dunkley-Williams Co. 98 C. C. A. 95,
174 Fed. 121 ; The City of Milf brd, 199
Fed. 956; The Thomas W. Rodgers, 197
Fed. 772; The Ha Ha, 195 Fed. 1013;
The J. Doherty, 207 Fed. 997; The
Malola, 214 Fed. 308; The Francis J.
O'Hara, Jr. 229 Fed. 312; The Oceana,
233 Fed. 139 ; The Yankee, 147 C. C. A.
593, 233 Fed. 925; The Oceana, 156 C.
C. A. 508, 244 Fed. 80.
Surely it cannot be said that any^
principle of law justifies the conclusion
that a man's property is not immune
from lien for a debt which the man him-
self is not required to pay.
The Sarah Cullen, 45 Fed. 511; The
Iris, 40 C. C. A. 301, 100 Fed. 109.
The provision of the charter party re-
quiring the charterer to hold the owner
harmless from any lien asserted for
251 U. 8.
1919.
SOUTH COAST STEAMSHIP CO. v. RLDBACH.
sii|>plies furnished the ship is not tanta-
mount to a declaration by the owner
that such liens may be asserted.
The Oceana, 156 C. C. A. 508, 244 Fed.
81; NorUiwestem Fuel Co. v. Dunkley-
Williams Co. 98 C. C. A. 95, 174 Fed,
121; The City of Milford, 199 Fed. 966;
The Gen. J. A. Dumont, 158 Fed. 312;
The Golden Rod, 80 C. C. A. 246, 151
Ffed. 6.
By the terms of the charter party in
the instant case, and by virtue of the
notice which the trial judge found was
given libellant, the charterer and his
masters and his agent, Mr. Mills, were
without authority to bind the vessel for
the supplies ordered by them respec-
tively.
The 8arah Cullen, 45 Fed. 511; The
Underwriter, 119 Fed. 713; The Francis
J. (yHara, Jr. 229 Fed. 312; The J.
Doherty, 207 Fed. 997.
Supplies furnished a chartered vessel
when she is not in distress or in such
a position that the supplies availed jthe
owner as well as the charterer cannot
constitute the basis of a lien, if the
vessel were held under a charter party
which required the charterer to furnish
the 'supplies, and the furnisher knew the
facts, or, by the exercise of reasonable
diligence, could have ascertained them.
Ajid this is so even though the supplies
were furnished at the instance of the
master.
The Columbus, 5 Sawy. 487, Fed. Cas.
No. 3,044^ The William Cook, 12 Fed.
919; The S. M. Whipple, 14 Fed. 354;
The Ell^B fiolgate, 30 Fed. 125; The
Cumberland, 30 Fed. 449; The Sarah
Cullen, supra; The Samuel Marshalll, 49
Fed. 754; The Burton, 84 Fed. 999; The
Tillie A. 84 Fed. 685; The H. C. Grady,
87 Fed. 232; The Algonquin, 88 Fed.
319; The North Pacific, 40 C. C. A. 510,
100 Fed. 490; The Underwriter, supra;
The 0. H. Vessels, 106 C. C. A. 107, 183
Fed. 562; The City of Milford, 199 Fed.
959; The J. Doherty, 207 Fed. 1001;
The Francis J. O'Hara, Jr., supra; The
Kate, 164 U. S. 458, 41 L. ed. 512, 17
Sup. Ct. Rep, 136; The Mary A. Tryon,
93 Fed. 221.
. The charter party, by requiring the
charterer to hold the owner harmless
from liens upon the vessel, does not
concede to the charterer the authority
to bind the vessel for the supplies fur-
nished by libellant.
Northwestern Fuel Co. v. DunUey-
Williams Co. 98 C. C. A. 95, 174 Fed.
121; The City of Milford, 199 Fed. 956;
The Golden Rod, 80 C. C. A. 246, 151
64 li. ed.
I Fed. 6; The Gen. J. A. Dumont, 158 Fed.
'314.
There is no doubt that a charter party
may be oral.
The J. Doherty, 207 Fed. 1001; The
H. C. Grady, 87 Fed. 232; James v.
Brophy, 18 C. C. A. 49, 33 U^ S. App.
330, 71 Fed. 310.
The terms upon which the vessel was
held are not those delineated literally
by the charter party, but those which
the parties believed and declared were
the true facts of the case, as evidenced
not alone by the formal charter party,
but by all of their writings and transac*
tions.
Raymond v. Tyson, 17 How. 53, 15 L.
ed. 47; James v. Brophy, 18 C. C. A. 49,^
•33 U. S. App. 330, 71 Fed. 310; Barreda
V. Silsbee, 21 How. 146, 16 L. ed. 86.
The presumption is that the legisla-
ture does not intend to change or modify
the law beyond what it declares in (ex-
press terms, or by unmistakable impli-
cation.
The Dredge A, 217 Fed. 617.
It is the general principle of the mari-
time law that an admiralty lien is to be
construed stricti juris, and cannot be
extended by construction, analogy, or
inference.
The James T. Furber, 157 Fed. 129;
Pratt V. Reed, 19 How. 359, 361, 15 L.
ed. 660, 661; The Lottawanna (Rodd v»
Heartt) 21 Wall. 558, 22 L. ed. 654;
The Aurora, 194 Fed. 559; Vandewater
V. Mills, 19 How. 82, 15 L. ed. 554;
The Dixie, 236 Fed. ^08.
The terms of a charter party or agree-
ment for the sale of a vessel are not the
exclusive source of a charterer's inabil-
ity to create liens upon the vessel. ;
The Valencia, 165 U. S. 264, 272, 273,
41 L. ed. 710, 714, 17 Sup. Ct. Rep. 323;
The Sinaloa, 209 Fed. 288; The Dredge
A, 217 Fed. 628; The Yankee, 147 C. C.
A. 593, 233 Fed. 925; Pratt v. Reed, 19
How. 359, 361, 15 L. ed. 660, 661; The
Lottawanna (Rodd v. Heartt) 21 Wall.
558, 22 L. ed. 654; The Aurora, 194 Fed.
559; The James T. Furber, 157 Fed. 129;
Vandewater v. Mills, 19 How. 82, 15 L.
ed. 554; The Dixie, 236 Fed. 608; Taylor
V. Weir, 110 Fed. 1005; The Havana, 87
Fed. 488; The Kate, 164 U. S. 463^ 465,
471, 41 L. ed. 515, 516, 518, 17 Sup. Ct
Rep. 135; The Oceana, 233 Fed. 139. ^
Mr. S. Hasket Derby submitted the
cause for respondent. Mr. Ira S. Lil-
lick was on the brief:
A provision in a charter party re-
quiring a charterer to pay the operating
expenses is not equivalent, under the
9 387
522-624
SUPREME COURT OF THE UNITED STATES.
Got. Tbkm,
recent statute, to a limitation in the
charter party on the authority of the
charterer to bind the vessel.
The Surprise, 64 C. C. A. 309, 129
Fed. 873; The Oceana, 233 Fed. 146;
The Bud III. 250 Fed. 918.
Mr. Justice Holmes delivered the
opinion of the court:
This is a libel against the steamer
South Coast, belonging to the claimant,
a California corporation, and registered
in San Francisco, for necessary sup-
plies furnished in San Pedro, California.
The answer denies the authority of the
master to bind the steamer. The bare
vessel at the .time was under charter to
one Levick, the contract stipulating that
Levick was to pay all charges and to
save the owner harmless from all liens
or expenses that it might be put to in
consequence of such liens. There was
also a provision that the owner might
retake the vessel in case of failure of
Levick to discharge within thirty days
any debts which w^re liens upon it, and
another for surrender of the vessel free
of all liens upon Levick's failure to
make certain payments. When the sup-
plies were ordered, representatives of
the owner in San Pedro warned the
libellant that the steumer was under
charter, and that he must not furnish
the supplies on the credit of the vessel.
He replied that he would not furnish
them in any other way, but the reply
does not affect the case, because, by the
terms of the charter, the master who or-
dered them, although appointed by the
owner, was under the orders of Levick.
It is agreed by both courts below that
if the owner had power to prevent the
attaching of a lien by its warning, it
had done so. Both courts, however,
held that the charter gave the master
power to create the lien. 233 Fed. 327;
159 C. C. A. 302, 247 Fed. 84.
[523] By the Act of June 23, 1910,
chap. 373, § 1, 36 Stat, at L. 604, Comp.
Stat. § 7783, 9 Fed. Stat. Anno. 2d ed. p.
346, a maritime lien is given for such
supplies, and by § 3 a presumption is de-
clared that a master appointed by a
charterer has authority from the* own-
er to procure them. It is true that the
act goes on that nothing in it shall be
considered to give a lien where the fur-
nisher knew, or, by the exercise of rea-
sonable diligence, could have ascer-
tained, that, because of the terms of a
charter party, or for any other reason,
the person ordering the necessaries was
without authority to bind the vessel.
But the authority of the owner to prohib-
388
it or to speak was displaced, so far as the
charter went, by that conferred Hi)On
the charterers, who became owners pro
hac vice, and therefore, imless the char-
ter excluded the master's power, the
owner could not forbid its use. The
charter party recognizes that liens may
be imposed by the charterers and al-
lowed to stand for less than a month,
and there seems to be no sufficient rea-
son for supposing the words not to re-
fer to all the ordinary maritime liens
recognized by the law. The statute had
given a lien for supplies in a domestic
port, and therefore had made that one
of these ordinary liens. Therefore the
charterer was assunled to have power to
authorize the m'\ster to impose a lien
in *a domestic port, and if the assump-
tion expressed in words was not equiva-
lent to a grant of power, at least it
cannot be taken to have excluded it.
There was nothing from which the fur-
nisher could have ascertained that the
master did not have power to bind the
ship.
Decree affirmed.
Mr. Justice McKenna, Mr. Justice
Pitney, and Mr. Justice Olarke dissent.
[5241 JOHN T^ BATES, Receiver of the
National City Bank of Cambridge, Massa-
chusetts, Appt.,
v.
SUMNER DRESSER, Administrator of the
Estate of Edwin Dresser, Deceased. (No.
165. )
SUMNER DRESSER, Administrator.
Appt.,
V.
JOHN L. BATES, Receiver. (No. 150.)
JOHN L. BATES, Receiver, Appt.,
V.
JOHN M. DEAN, Executor of George W.
Gale, Deceased, Sumner Dresser, and
David A. Barber. (No. 157.)
JOHN h, BATES, Receiver, Appt.,
V.
CLARENCE ALFRED BUNKER and John
D. Hardy, Administrators, etc., of George
E. Richardson, Deceased. (No. 158.)
(See S. C. Reporter's ed. 624-532.)
National banks — llabHity of dlrecton*
— negligence' — defalcation by em-
ployee.
1. The directors of a national bank
Kote. — Generally, as to liability of
directors for defalcations by executive
Sftl V. 8.
11*19.
HATKS V. DRESSER.
526, 527
did not necessarily so nt^glect their duty
as to be answerablp for thefts by a teller
and bookkeeper, concealed by overcharging
a depositor, or by a false addition in the
column of drafts or deposits in the de-
positors' ledger, merely because they ac-
cepted the cashier's statement of liabilities
and did not inspect the depositors' ledger,
*>ven after an apparent shrinkage in de-
}»osits, where the cashier's statements of
assets always were correct, the semiannual
examination by the government examiners
had disclosed nothing pointing to mal-
feasance, and they were encouraged in their
belief tiiat all was well by the president,
whose responsibility as executive officer,
interest as large stockholder and depositor,
and knowledge from long daily presence
in the bank were. greater than theirs.
(For other cases, soe Banks, IV. e, 3, in Di-
gest Sup. Ct 1008.]
National banks — liability of president
— negligence — defalcation by em*
ployee.
2. The failure of the president and
executive officer of a national bank to heed
hints and warnings, including an apparent
shrinkage in deposits, which, however little
they may have pointed to the specific facts
of theft by a teller and bookkeeper, would,
if accepted, have led to an examination of
the dcQ[>oeitors' ledger, thereby disclosing
past and preventing future thefts, may be
treated by the courts as such negligence
as renders him liable for thefts by such
employee after he had the warnings which
should have led to steps that would have
made fraud impossible, even though the
precise form that the fraud would take
hardly could have been foreseen.
[For other cases, see Banks, IV. e« 8, In Di-
gest Sop. Ct. 1908.]
Interest — on judgment.
3. The reduced amount which a circuit
conrt of appeals, modifying a decree of a
district court, finds to be due the receiver
of. a national bank from its president on
account of the latter's failure to guard
against thefts by a teller and bookkeeper
should bear interest from the date of the
decree of the district court until the re-
ceiver interposed a delay by appealing to
the Supreme Ck)urt from the decree of
the circuit court of appeals.
I For otb.^r cases, see Interest, 11. c^ in Di-
g«nit .* >p. Ct. 1908.]
[Nos. 156, 166, 167, and 168.]
Argued January 19 and 20, 1920. Decided
March 1, 1920.
ofiEicer or employee — see note to Besse-
lieu V. Brown, 2 A.L.R. 867.
As to liability of bank for misappro-
priation of collections by its officers or
employees — see note to Minnesota Mut.
L. Ins. Co. V. Tagus State Bank, L.11.A.
1917A, 522.
As to liability of directors of bank
•4 li. ed.
FOUR APPEALS from the United
States Circuit Court of Appeals for
the First Circuit to review a decree
which reversed in part a decree of the
District Court for the District of Massa-
chusetts in f^vor of the receiver of a
national bank in a suit to charge its
former president and directors with a
loss of assets through the theft of an
employee. Modified by allowing inter-
est upon the sum found to be due^ and,
as so modified, affirmed.
See same case below, 162 C. C. A. 541,
250 Fed. 525.
The facts are stated in the opinion.
Mr. Frank K. Kay argued the cause,
and, with Mr. William A. Kneeland,
filed a brief for John L. Bates:
As a matter of law, the directors of a
bank may be liable for their negligence
in handling the affairs of the bank, even
when no dishonesty is to be imputed to
them.
. 1 Michie, Banks & Bkg. p.* 267, Y
53; 1 Bolles, Bkg. p. 276; 1 Morawetz,
Priv. Corp. § 561 ; 2 Thomp. Corp. 1909
ed.§§1268, 1273,1274, 1276,1277; Ran-
kin V. Cooper, 149 Fed. 1010; Williams v.
Brady, 221 Fed. 121; Briggs v. Spauld-
ing, 141 U. S. 132, 35 L. ed. 662, 11 Sup.
Ct. Rep. 924; Preston v. Prather, 137
U. S. 610, 34 L. ed. 790, 11 Slip. Ct. Rep,
162, 1 Am. Neg. Cas. 599; Martin v.
Webb, 110 U. S. 15, 28 L. ed. 52, 3 Sup.
Ct. Rep. 428; Campbell v. Watson, 62
N. J. Eq. 396, 50 Atl. 120; Ellis v. H.
P. Gates Mercantile Co. 103 Miss. 660,
43 L.R.A.(N.S.) 982, 60 So. 649, Ann.
Cas. 1915B, 526; Gibbons v. Anderson,
80 Fed. 345; Warner v. Penoyer, 44
LJi.A. 761, 33 C. C. A. 222, 61 U. S.
App. 372, 91 Fed. 587; Williams v.
McKay, 40 N. J. Eq. 189, 53 Am. Rep.
775; Cockrill v. Cooper, 29 C. C. A. 529,
57 U. S. App. 576, 86 Fed. 7; Robinson
V. Hall, 12 C. C. A. 674, 25 U. S. App.
48, 63 Fed. 222.
Of course, technically, the directors
of a national bank are not trustees,
since they have no title to the assets of
the bank; but the tendency of modern
decisions has been to hold that they act
in a fiduciary capacity. See Greenfield
Sav. Bank v. Abercrombie, 211 Mass.
252, 39 L.R.A.(N.S.) 173, 97 N. E. 897,
for default or negligence of cashier —
see note to Mason v. Moore, 4 L.R.A.
(N.S.) 597.
As to care required of bank directors
— see note to Swentzel v. Penn Banic, 15
L.R.A. 305.
As to interest on judgments — see note
to Rockwell V. Butler, 17 L.R.A. 612.
8S9
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
Ann. Cas. 1913B, 420. See also the fol-
lowing cases on the general question of
the fiduciary relationship between di-
recto!^ and their corporation:
Henry L. Doherty & Co. v. Rice, 186
Fed. 204; Asheville Lumber Co. v. Hyde,
172 Fed. 730; Canton Roll &' Mach. Co.
V. Rolling Mills Co. 93 C. C. A. 621, 168
Fed. 465; Field v. Western Life Indem-
nity Co. 166 Fed. 607; Singers-Bigger v.
Young, 91 C. C. A. 510, 166 Fed. 82;
Pepper v. Addicks, 153 Fed. 383;
McCourt V. Singers-Bigger, 76 C. C. A.
73, 145 Fed. 103, 7 Ann. Cas. 287; Kes-
eler & Co. v. Ensley Co. 129 Fed. 397;
McGourkey v. Toledo & 0. C. R. Co. 146
U. S. 536, 36 L. ed. 1079, 13 Sup. Ct.
Bep. 170; West v. Camden, 135 U. S.
607, 34 L. ed. 254, 10 Sup. Ct. Rep. 838)
Woodstock Iron Co. v. Richmond & D.
Extension Co. 129 U. S. 643, 32 L. ed.
819, 9 Sup. Ct. Rep. 402; Hollins v.
Brierfield Coal & L Co. 150 U. S. 371,
87 L. ed. 1113, 14 Sup. Ct. Rep. 127,.
Thomas v. Brownville, Ft. K. & P.
R. Co. 109 U. S. 522, 27 L. ed. 1018,
3 Sup. Ct. Rep. 315; Wardell v.
Union P. R. Co. 103 U. S. 651, 26 L. ed.
609, 7 Mor. Min. Rep. 144; Twin-Lick
Oil Co. V. Marbury, 91 U. S. 587,
23 L. ed. 329, 3 Mor. Min. Rep. 688;
Williams v. Brady, 221 Fed. 118, s. c.
232 Fed. 740; Klotz v. Pan-American
Match Co. 221 Mass. 41, 108 N. E. 764,
Ann. Cas. 1917D, 895.
An examination by officials of a de-
partment of the government does not
relieve a corporation or concern ex-
amined from liability for negligence.
O'Connor v. Armour Packkig Co. 16
L.R.A.(N.S.) 812, 85 C. C. A. 459, 158
Fed. 241, 14 Ann. Cas. 66; Ketterer v.
Armour & Co. L.R.A.1918D, 798, 160
C. C. A. Ill, 247 Fed. 921; Witters v.
Bowles, 32 Fed. 764.
Ordinarily a by-law of a corporation
has all the force of a requirement of
statute law as regards the directors and
officers of a corporation. By-laws are
not trivial things, are binding on both
directors and stockholders of a corpora-
tion, and are not to be disregarded.
9 C. J. pp. 1112, 1113; 7 C. J. pp. 686,
687, §§ 214, 218, and notes; Cockrill v.
Cooper, 29 C. C. A. 529, 57 U. S. App.
676, 86 Fed. 13.
Where a man violates the law and an-
other suffers as a result thereof, as
stockholders and depositors did in this
case, the sufferer has the right to hold
the violator fully responsible. If this
by-law is binding on the directors, the
same rule should apply.
390
Parker v. Barnard, 135 Mass. 120, 46
Am. Rep. 450.
A neglect is not sanctioned by the
fact that it has existed a long time and
has become a part of the routine.
Minor v. Mechanics' Bank, 1 Pet. 69-
72, 7 L. ed. 57, 58.
Interest should be allowed in this
case.
Arnold v. Maxwell, 230 Mass. 445,
119 N. E. 776; De La Rama v. De La
Rama, 241 U. S. 154, 60 L. ed. 932, 36
Sup. Ct Rep. 518, Ann. Cas. 1917C, 411 ;
Kneeland v. American Loan & T. Co.
138 U. S. 509, 34 L. ed. 1052, 11 Sup.
Ct. Rep. 42er; Illinois C. R. Co. v. Tur-
riU, 110 U. S. 301, 28 L. ed. 154, 4 Sup.
Ct. Rep. 5; Oelwerke Teutonia v. Er-
langer, 248 U. S. 521, 63 L. ed. 399, 39
Sup. Ct. Rep. 180.
Mr. Robert G. Dodge argued the
cause, and, with Messrs. Harold S.
Davis, John B. Sullivan, Jr., Paul Dud-
ley Dean, and Robert M. Morse, filed a
brief for Sumner Dresser and John M.
Dean:
The master alone saw and heard the
witnesses, and therefore was in a liiuoh
better position to reach a correct con-
clusion than were the judges. His re-
port should obviously be given great
weifirht
Adamson v. Gilliland, 242 U. 8. 360,
353, 61 L. ed. 356, 358, 37 Sup. Ct. Rep.
169; Tilghman v. Proctor, 125 U. S. 136,
149, 31 L. ed. 664, 668, 8 Sup. Ct. Bep.
894; Kimberly v. Arms, 129 U. S. 512,
32 L. ed. 764, 9 Sup. Ct. Rep. 355; Cam-
den V. Stuart, 144 U. S. 104, 118, 36 h.
ed. 363, 368, 12 Sup. Ct. Rep. 585; Davis
V. Schwartz, 165 U. S. 631, 636, 39 L.
ed. 289, 291, 15 Sup. Ct. Rep. 237.
A liability of this kind should not be
lightly imposed in the absence of any
element of positive misfeasance.
Briggs V. Spaulding, 141 U. S. 132, 36
L. ed. 662, 11 Sup. Ct. Rep. 924; Pres-
ton V. Prather, 137 U. S. 604, 34 L. ed.
788, 11 Sup. Ct. Rep. 162, 1 Am. Neg.
Cas. 599; Spering's Appeal, 71 Pa. 20,
10 Am. Bep. 684; Warner v. Penoyer,
44 L.R.A. 761, 33 C. C. A. 222, 61 U. S.
App. 372, 91 Fed. 587; Overend & G. Co.
V. Gibb, L. R. 5 H. L. 480, 42 L. J. Ch.
N. S. 67; Foutz v. Miller, 112 Md. 468,
76 Atl. 1111 ; Citizens Bldg. Loan & Sav.
Asso. V. Coriell, 34 N. J. Eq. 392; North
Hudson Mut. Bldg. & L. Asso. v. Cfailds,
82 Wis. 476, 33 Am. St. Rep. 67, 62 N.
W. 600; Bailey v. Babcock, 241 Fed.
501; Swentzel v. Penn Bank, 147 Pa.
140, 160, 15 L.R.A. 305, 30 Am. St Rep.
718, 23 Atl. 406.
1919.
BATES V. DRESSER.
Unless there is some unusual reason
for suspecting irregularities, the direc-
tors of a bank are under no obligation to
examine or verify the books and ao-
counts, and may rely upon the cashier's
supervision of these matters.
Warner v. Penoyer, 44 L.R.A« 761, 33
C. C. A. 222, 61 U. S. App. 372, 91 Fed.
587; Re National Bank [1899] 2 Ch.
629, 68 L. J. Ch. N. S. 634, 48 Week.
Rep. 99, 81 L. T. N. S. 363, 15 Times
L. R. 517; Dovey v. Cory [1901] A. C.
477, 6 B. B. C. 179, 70 L. J. Ch. N. S.
753, 50 Week. Rep. 65, 85 L. T. N. S.
257, 17 Times L. R. 732, 8 Manson, 346;
Land Credit Co. v. Fermoy, L. R. 5 Ch.
763, 23 L. T. N. S. 439, 18 Week. Rep.
1089; Grimwade v. Mutual Soc. 52 L. T.
N. S. 409; London Financial Asso. v.
Kelk, L. R. 26 Ch. Div. 107, 53 L. J. Ch.
N. S. 1025, 50 L. T. N. S. 492; Re Den-
ham, L. R. 25 Ch. Div. 752, 50 L. T. N.
S. 523, 32 Week. Rep. 487; Prefontaine
v. Grenier, Rap. Jud. Quebec, 15 B. B.
143; -Savings Bank v. Caperton, 87 Ky.
306, 12 Am. St. Rep. 488, 8 S. W. 885;
Mason v. Moore, 73 Ohio St. 276, 4
L.R.A.(N.S.) 597, 76 N. E. 932, 4 Ann.
Cas. 24Q; Thomas v. Taylor, 224 U. S.
73, 56 L. ed. 673, 32 Sup. Ct. Rep. 403;
Jones Nat. Bank v. Yates, 240 U. S. 541,
5S(,7, 60 L. ed. 788, 799, 36 Sup. Ct Rep.
429.
Directors are entitled, in the absence
of substantial evidence to the contrary,
to proceed on the assumption that the
bank's employees are honest, and not to
subject them to a system of espionage.
Scott V. Depeyster, 1 Edw. Ch. 513;
Briggs V. Spaulding, 141 U. S. 162, 35
L. ed. 674, 11 Sup. Ct. Rep. 921; Warner
v. Penoyer, 44 L.B.A. 761, 33 C. C. A.
222, 61 U. S. App. 372, 91 Fed. 690;
Mason v. Moore, 73 Ohio St 297, 4
UR^.(N.S.) 597, 76 N. E. 932, 4 Ann.
Cas. 240; Ricker v. Hall, 60 N. H. 592,
45 Atl. 556; Prefontaine v. Qrenier
[1907] A. C. Ill, 76 L. J. P. C. N. S.
4, 95 L. T. N. S. 623, 23 Times L. R.
27, 13 Manson, 401.
In the absence of an express vote or
well-established usage, the president of
a national bank has no greater powers
or responsibilities than the other di-
rectors, except as he is the presiding of-
ficer at meetings of the board and of
the stockholders, and is charged by
statute with certain specific duties
which are of' no consequence in this
case. With relation to the other di-
rectors, the president is simply primus
inter pares.
United States v. Britton, 108 U. S.
193, 197, 27 L. ed. 701, 702, 2 Sup. Ct.
«4 li. ed.
Rep. 626; Baird v. Bank of Washing-
ton, 11 Serg. & R. 415; Putnam v. Unit-
ed States, 162 U. S. 687, 713, 40 L. ed.
1118, 1128, 16 Sup. Ct. Rep. 923; Com-
mercial Nat. Bank v. First Nat. Bank,
97 Tex. 543, 104 Am. St. Rep. 879, 80
S. W. 601 ; First Nat. Bank v. Lucas, 21
Neb. 285, 31 N. W. 805; Montgomery
Bank & T. Co. v. Walker, 181 Ala. 380,
61 So. 951.
On the other hand, the cashier of a
bank is ordinarily its chief executive,
and all matters connected with the de-
tails of its business, including the su-
pervision of the employees and of the
books, are properly intrusted to him.
Merchants' Nat. Bank v. State Nat.
Bank, 10 Wall. 604, 649, 19 L. ed. 1008,
1019; Warner v. Penoyer, 44 L.R.A.
761, 33 C. C. A. 222, 61 U. S. App. 372,
91 Fed. 590; Baldwin v. Bank of New-
bury, 1 Wall 234, 240, 17 L. ed. 534,
535; Fleckner v. Bank of United States,
8 Wheat 338, 360, 361, 5 L. ed. 631,
636; Security Sav. Bank v. Smith, 144
Iowa, 207, 122 N. W. 825; Arnold v.
National Bank, 126 Wis. 366, 3 L.R.A.
(N.S.) 680, 105 N. W. 828.
It is, of course, possible for the presi-
dent of a bank to be made by the di-
rectors its executive head, and this is
often the case with large banks in
which the president devotes his whole
time to the affairs of the bank, and re-
ceives a salary propo]H;ionate to the re-
sponsibilities thus assumed. But such a
situation is to be sharply distinguished
from the ordinary case of a small bank,
whose president receives only a nomi-
nal compensation, if any, and is engaged
primarily in other business.
6 Cyc. 463; Ex parte Rickey, 31 Nev.
100, 135 Am. St. Rep. 651, 100 Pac. 134;
First State Bank v. Morton, 146 Ky.
294, 142 8. W. 694; Dunn v. Kyle, 14
Bush, 142; Prefontaine v. Grenier
[1907] A. C. 101, 76 L. J. P. C. N. S.
4, 95 L. T. N. S. 623, 23 Times L. R.
27, 13 Manson, 401.
Whatever the measure of responsibil-
ity, neither Edwin Dresser nor any oth-
er director can be held liable for any
damage not the proximate result of the
acts or omissions complained of.
Atchison, T. & S. F. R. Co. v. Cal-
houn, 213 U. S. 1, 53 L. ed. 671, 29 Sup.
Ct. Rep. 321; Milwaukee & St. P. R. Co.
V. Kellogg, 94 U. S. 469, 24 L. ed. 256;
Chicago, B. & Q. R. Co. v. Gelvin,
L.R.A.1917C, 983, 151 C. C. A. 90, 238
Fed. 14; Briggs v. Spaulding, 141 U. S.
132, 151, 35 L. ed. 662, 670, 11 Sup. Ct.
Rep. 924: Wallach v. Billings, 277 111.
218, L.R.A.1918A, 1097, 115 N. E. 3S^i
SUPREME COURT OF THE UNITED STATES.
Got. Tbbm,
Ann. Cas. 1913B, 420. See also the fol-
lowing cases on the general question of
the fiduciary relationship between di-
rectol^ and their corporation:
Henry L. Doherty & Co. v. Rice, 186
Fed. 204; Asheville Lumber Co. v. Hyde,
172 Fed. 730 j Canton Roll & Mach. Co.
V. Rolling Mills Co. 93 C. C. A. 621, 168
Fed. 465; Field v. Western Life Indem-
nity Co. 166 Fed. 607; Singers-Bigger v.
Young, 91 C. C. A. 610, 166 Fed. 82;
Pepper v. Addicks, 153 Fed. 383;
McCourt V. Singers-Bigger, 76 C. C. A.
73, 145 Fed. 103, 7 Ann. Cas. 287; Kes-
eler & Co. v. Ensley Co. 129 Fed. 397;
McGourkey v. Toledo & 0. C. R. Co. 146
U. S. 636, 36 L. ed. 1079, 13 Sup. Ct.
B^p. 170; West v. Camden, 136 U. S.
607, 34 L. ed. 254, 10 Sup. Ct. Rep. 838 ;
Woodstock Iron Co. v. Richmond & D.
Extension Co. 129 U. S. 643, 32 L. ed.
819, 9 Sup. Ct. Rep. 402; Hollins v.
Brierfield Coal & L Co. 150 U. S. 371,
87 L. ed. 1113, 14 Sup. Ct. Rep. 127-,.
Thomas v. Brownville, Ft. K & P.
R. Co. 109 U. S. 622, 27 L. ed. 1018,
3 Sup. Ct. Rep. 315; Wardell v.
Union P. R. Co. 103 U. S. 661, 26 L. ed.
609, 7 Mor. Min. Rep. 144; Twin-Lick
Oil Co. V. Marbury, 91 U. S. 587,
23 L. ed. 329, 3 Mor. Min. Rep. 688;
Williams ▼. Brady, 221 Fed. 118, s. c.
232 Fed. 740; Klotz v. Pan-American
Match Co. 221 Mass. 41, 108 N. E. 764,
Ann. Cas. 1917D, 896.
An examination by officials of a de-
partment of the government does not
relieve a corporation or concern ex-
amined from liability for negligence.
O'Connor v. Armour Paokmg Co. 16
L.R.A.(N.S.) 812, 86 C. C. A. 459, 168
Fed. 241, 14 Ann. Cas. 66; Ketterer v.
Armour & Co. L.R.A.1918D, 798, 160
C. C. A. Ill, 247 Fed. 921; Witters v.
Bowles, 32 Fed. 764.
Ordinarily a by-law of a corporation
has all the force of a requirement of
statute law as regards the directors and
officers of a corporation. By-laws are
not trivial things, are binding on both
directors and stockholders of a corpora-
tion, and are not to be disregarded.
9 C. J. pp. 1112, 1113 ; 7 C. J. pp. 686,
687, §§ 214, 218, and notes; Cockrill v.
Cooper, 29 C. C. A. 629, 67 U. S. App.
676, 86 Fed. 13.
Where a man violates the law and an-
other suffers as a result thereof, as
stockholders and depositors did in this
case, the sufferer has the right to hold
the violator fully responsible. If this
by-law is binding on the directors, the
same rule should apply.
390
Parker v. Barnard, 135 Mass. 120, 46
Am. Rep. 450.
A neglect is not sanctioned by the
fact that it has existed a long time and
has become a part of the routine.
Minor v. Mechanics' Bank, 1 Pet. 69-
72, 7 L. ed. 57, 58.
Interest should be allowed in this
case.
Arnold v. Maxwell, 230 Mass. 445,
119 N. E. 776; De La Rama v. De La
Rama, 241 U. S. 154, 60 L. ed. 932, 36
Sup. Ct. Rep. 518, Ann. Cas. 1917C, 411;
Kneeland v. American Loan & T. Co.
138 U. S. 509, 34 L. ed. 1052, 11 Sup.
Ct. Rep. 42er; Illinois C. R. Co. v. Tur-
riU, 110 U. S. 301, 28 L. ed. 154, 4 Sup.
Ct. Rep. 5; Oelwerke Teutonia v. Er-
langer, 248 U. S. 521, 63 L. ed. 399, 39
Sup. Ct. Rep. 180.
Mr. Robert G. Dodge argued the
cause, and, with Messrs. Harold S.
Davis, John B. Sullivan, Jr., Paul Dud-
ley Dean, and Robert M. Morse, filed a
brief for Sumner Dresser and John M.
Dean:
The master alone saw and he^d the
witnesses, and therefore was in a ihuoh
better position to reach a correct con-
clusion than were the judges. His re-
port should obviously be g^ven great
weifirht
Adamson v. Gilliland, 242 U. 8. 360,
353, 61 L. ed. 366, 358, 37 Sup. Ct. Rep.
169; Tilghman v. Proctor, 125 U. S. 136,
149, 31 L. ed. 664, 668, 8 Sup. Ct. Rep.
894; Kimberly v. Arms, 129 U. S. 512,
32 L. ed. 764, 9 Sup. Ct. Rep. 356; Cam-
den V. Stuart, 144 U. S. 104, 118, 36 h.
ed. 363, 368, 12 Sup. Ct. Rep. 686; Davis
V. Schwartz, 165 U. S. 631, 636, 39 L.
ed. 289, 291, 15 Sup. Ct. Rep. 237.
A liability of this kind should not be
lightly imposed in the absence of any
element of positive misfeasance.
Briggs V. Spaulding, 141 U. S. 132, 35
L. ed. 662, 11 Sup. Ct. Rep. 924; Pres-
ton V. Prather, 137 U. S. 604, 34 L. ed.
788, 11 Sup. Ct. Rep. 162, 1 Am. Neg.
Cas. 699; Spering's Appeal, 71 Pa. 20,
10 Am. Rep. 684; Warner v. Penoyer,
44 L.R.A. 761, 33 C. C. A. 222, 61 U. S.
App. 372, 91 Fed. 587; Overend & G. Co.
V. Gibb, L. R. 6 H. L. 480, 42 L. J. Ch.
N. S. 67; Poutz v. Miller, 112 Md. 468,
76 Atl. nil ; Citizens Bldg. Loan & Sav.
Asso. ▼. Coriell, 34 N. J. Eq. 392; North
Hudson Mut. Bldg. & L. Asso. v. Childs,
82 Wis. 476, 33 Am. St. Rep. 67, 62 N.
W. 600; Bailey v. Babcock, 241 Fed.
601; Swentzel v. Penn Bank, 147 Pa.
140, 150, 16 L.R.A. 305, 30 Am. St Rep.
718, 23 Atl. 405.
1919.
BATES V. DRESSER.
Unless there is some unusual reason
for suspecting irregularities, the direc-
tors of a bank are under no obligation to
examine or verify the books and ae-
counts, and may rely upon the cashier's
supervision of these matters.
Warner v. Penoyer, 44 L.R.A« 761, 33
C. C. A. 222, 61 U. S. App. 372, 91 Fed
587; Re National Bank [1899] 2 Ch.
629, 68 L. J. Ch. N. S. 634, 48 Week.
Rep. 99, 81 L. T. N. S. 363, 15 Times
L. R. 517; Dovey v. Cory [1901] A. C.
477, 6 B. B. C. 179, 70 L. J. Ch. N. S.
753, 50 Week. Rep. 65, 85 L. T. N. S.
257, 17 Times L. R. 732, 8 Manson, 346;
Land Credit Co. v. Fermoy, L. R. 5 Ch.
763, 23 L. T. N. S. 439, 18 Week. Rep.
1089; Grimwade v. Mutual Soc. 52 L. T.
N. S. 409; London Financial Asso. v.
Kelk, L. R. 26 Ch. Div. 107, 53 L. J. Ch.
X. S. 1025, 50 L. T. N. S. 492; Re Den-
ham, L. R. 25 Ch. Div. 752, 50 L. T. N.
S. 523, 32 Week. Rep. 487; Pr^fontaine
V. Grenier, Rap. Jud. Quebec, 15 B. B.
143; Savings Bank v. Caperton, 87 Ky.
306, 12 Am. St. Rep. 488, 8 S. W. 885;
Mason V. Moore, 73 Ohio St. 276, 4
L.R.A.(N.S.) 597, 76 N. E. 932, 4 Ann.
Cas. 24Q; Thomas v. Taylor, 224 U. S.
73, 56 L. ed. 673, 32 Sup. Ct. Rep. 403;
Jones Nat. Bank v. Yates, 240 tJ. S. 641,
55i7> 60 L. ed. 788, 799, 36 Sup. Ct. Rep.
429.
Directors are entitled, in the absence
of substantial evidence to the contrary,
ta proceed on the assumption that the
bank's employees are honest, and not to
subject them to a system of espionage.
Scott v. Dcpeyster, 1 Edw. Ch. 513;
Briggs V. Spaulding, 141 U. S. 162, 35
L. ed. 674, 11 Sup. Ct. Rep. 921; Warner
V. Penoyer, 44 L.B.A. 761, 33 C. C. A.
222, 61 U. S. App. 372, 91 Fed. 590;
Mason v. Moore, 73 Ohio St 297, 4
L.R.A.(N.S.) 597, 76 N. E. 932, 4 Ann.
Cas. 240; Ricker v. Hall, 69 N. H. 592,
45 Atl. 656; Prefontaine v. Grenier
[1907] A. C. Ill, 76 L. J. P. C. N. S.
4, 95 L. T. N. S. 623, 23 Times L. R.
27, 13 Manson, 401.
In the absence of an express vote or
well-established usage, the president of
a national bank has no greater powers
or responsibilities than the other di-
rectors, except as he is the presiding of-
ficer at meetings of the board and of
the stockholders, and is charged by
statute with certain specific duties
which are of no consequence in this
case. With relation to the other di-
rectors, the president is simply primus
inter pares.
United States v. Britton, 108 U. S.
193, 197, 27 L. ed. 701, 702, 2 Sup. Ct.
€4 li. ed.
Rep. 626; Baird v. Bank of Washing-
ton, 11 Serg. & R. 415; Putnam v. Unit-
ed States, 162 U. S. 687, 713, 40 L. ed.
1118, 1128, 16 Sup. Ct. Rep. 923; Com-
mercial Nat. Bank v. First Nat. Bank,
97 Tex. 543, 104 Am. St. Rep. 879, 80
S. W. 601 ; First Nat. Bank v. Lucas, 21
Neb. 285, 31 N. W. 805; Montgomery
Bank & T. Co. v. Walker, 181 Ala. 380,
61 So. 951.
On the other hand, the cashier of a
bank is ordinarily its chief executive,
and all matters connected with the de-
tails of its business, including the su-
pervision of the employees and of the
books, are properly intrusted to him.
Merchants' Nat. Bank v. State Nat.
Bank, 10 Wall. 604, 649, 19 L. ed. 1008,
1019; Warner v. Penoyer, 44 L.R.A.
761, 33 C. C. A. 222, 61 U. S. App. 372,
91 Fed. 590 ; Baldwin v. Bank of New-
bury, 1 Wall. 234, 240, 17 L. ed. 534,
635; Fleckner v. Bank of United States,
8 Wheat. 338, 360, 361, 6 L. ed. 631,
636; Security Sav. Bank v. Smith, 144
Iowa, 207, 122 N. W. 825; Arnold v.
National Bank, 126 Wis. 366, 3 L.R.A.
(N.S.) 580, 106 N. W. 828.
It is, of course, possible for the presi-
dent of a bank to be made by the di-
rectors its executive head, and this is
often the case with large banks in
which the president devotes his whole
time to the affairs of the bank, and re-
ceives a salary propoi^tionate to the re-
sponsibilities thus assumed. But such a
situation is to be sharply distinguished
from the ordinary case of a small bank,
whose president receives only a nomi-
nal compensation, if any, and is engaged
primarily in other business.
6 Cyc. 463; Ex parte Rickey, 31 Nev.
100, 135 Am. St. Rep. 661, 100 Pac. 134;
First State Bank v. Morton, 146 Ky.
294, 142 8. W. 694; Dunn v. Kyle, 14
Bush, 142; Prefontaine v. Grenier
[1907] A. C. 101, 76 L. J. P. C. N. S.
4, 96 L T. N. S. 623, 23 Times L. R.
27, 13 Manson, 401.
Whatever the measure of responsibil-
ity, neither Edwin Dresser nor any oth-
er director can be held liable for any
damage not the proximate result of the
acts or omissions complained of.
Atchison, T. & S. F. R. Co. v. Cal-
houn, 213 U. S. 1, 53 L. ed. 671, 29 Sup.
Ct. Rep. 321 ; Milwaukee & St. P. R. Co.
V. Kellogg, 94 U. S. 469, 24 L. ed. 256;
Chicago, B. & Q. R. Co. v. Gelvin,
L.R.A.1917C, 983, 151 C. C. A. 90, 238
Fed. 14; Briggs v. Spaulding, 141 U. S.
132, 151, 35 L. ed. 662, 670, 11 Sup. Ct.
Rep. 924; Wallach v. Billings, 277 III.
218, L.R.A.1918A, 1097, 115 N. E. 382;
n9i
527-530
SUPREME COURT OF THE UNITED STATES.
Oct. Tcbia,
checks for the amount he wanted, ex-
change checks with a Boston broker,
get cash for the broker's check, and,
when his own check came to the bank
through the clearing house, would ab-
stract it^ from the envelop, enter the
others on his book, and conceal the
difference by a charge to some other
account or a false addition in the col-
umn of drafts or deposits in the de-
positors' ledger. He handed to the
cashier only the slip from the clearing
house that showed the totals. The cash-
ier paid whatever appeared to be due
and thus Coleman's checks were hon-
ored. So far as Coleman thought it
necessary, in view of the absolute trust
in him on the part of all concerned, he
took care that his balances should agree
with those in the cashier's book.
[528] By May 1, 1907, Coleman had
abstracted $17,000, concealing the fact
by false additions in the column of total
checks, and false balances in the de-
posit ledger. Then for the moment a
safer concealment was effected by charg-
ing the whole to Dresser's account.
Coleman adopted this method when a
bank examiner was expected. Of course
when the fraud was disguised by over-
charging a depositor it could not be
discovered except by calling in the pass
books, or taking all the deposit slips
and comparing them with the depositors'
ledger in detail. By November, 1907,
the amount taken by Coleman was
$30,100^ and the eharge on Dresser's
account was $20,000. In 1908 the sum
was raised from $33,000 to $49,671. In
1909 Coleman's aetivity began to in-
crease. In January he took $6,829.26;
in March, $10,833.73; in June, his pre-
vious stealings amountiiig to $83,390.94,
he took $5,152.06; in July, $18,050; in
August, $6,250; in September, $17,350;
in October, $47,277.08; in November,
$51,847; in December, $46,956.44; in
January, 1910, $27,395.53; in February,
$6,473.97; making a total of $310,143.02,
when the bank dosed on February 21,
1910. As a result of this the amount
of the monthly deposits seemed to de-
cline noticeably and the directors con-
sidered the matter in September, but
concluded that the falling off was due
in part to the springing up of rivals,
whose deposits were increasing, but was
parallel to a similar decrease in New
York. An examination by a bank
examiner in December, 1909, disclosed
nothing wrong to him.
In this connection it shoidd be men-
tioned that in the previous semiannual
oxaminations by national bank exam-
iners nothing was discovered pointing:
to malfeasance. The cashier was honest
and everybody believed that they could
rely upon him, although in fact he re^
lied too much upon Coleman, who also
was unsuspected by all. If Earl had
opened the envelops from the clearing:
house, and had seen the checks, or had
examined the deposit' [529] ledger with
any care, he would have found out what
was going on. The scrutiny of anyone
accustomed to such details would have
discovered the false additions and other
indicia of fraud that were on the face
of the book. But it may be doubted
whether anything less than a continue
ous pursuit of the figures through pages
would have done so except by a lucky
chance.
The question of the liability of the
directors in this ease is the question
whether they neglected their duty by
accepting the cashier's statement of
liabilities and failing to inspreet the
depositors' ledger. The statements of
assets always were correct. A by-law
that had been allowed to become obso-
lete or nearly so is invoked as estab-
lishing their own standard of conduct.
By that a committee was to be appoint-
ed every six months ''to examine into
the affairs of the bank, to const its
cash, and compare its assets and liabili-
ties with tile balances on the general
ledger, for the purpose of ascertaining
whether or not the books are correctly
kept, and the condition of the bank
in a sound arid solvent condition." Of
course, liabilities as well as assets must
be known to know the condition, and, as
this case shows, peculations may be con
cealed as well by a false understate-
ment of liabilities as by a false show of
assets. But the former is not the direc-
tion in which fraud would have been
looked for, Especially on the part of
one who, at the time of his principal
abstractions, was not in contact with the
funds. A debtor hardly expects to have
his liability understated. Some animals
must have given at least one exhibition
of dangerous propensities before the
owner can be held. This fraud was a
novelty in the way of swindling a bank,
so far as the knowledge of any experi-
ence had reached Cambridge before
1910. We are not prepared to reverse
the finding of the master and the cir-
cuit court of appeals that the directors
should not be held answerable for tak-
ing the cashier's statement of liabilities
to be as correct as the [530] statement
of assets always was. If he had not been
negligent without their knowledge* it
251 U. 8.
1»1«.
BATK8 V. DRKSSKR.
530-532
would have been. Their confidence
seemed warranted by the semiannual
examinations by the government exami-
ner, and they were encouraged in their
belief that all was well by the presi-
dent, whose responsibility as executive
officer, interest as large stockholder and
depositor, and knowledge, from long
ilaily presence in the bank, were greater
than theirs. They were not bound by
virtue of the office gratuitously assumed
by them to call in the pass books and
compare them with the ledger, and,
until the event showed the possibility,
they hardly could have seen that their
failure to look at the ledger opened a
way to fraud. See Briggs v. Spaulding,
141 U. S. 132, 35 L. ed. 662, 11 Sup.
Ct. Rep. 924; Warner v. Pen(Jyer, 44
L.R.A. 761, 33 C. C. A. 222, 61 U. S.
App. 372, 91 Fed. 587. We are not
laying down general principles,* how-
ever, but confine our decision to the
circumstances of the particular case.
"the position of the president is dif-
ferent. Practically he was tbe master
of the situation. He was daily at the
bank for hours, he had the deposit
ledger, in his hands at times, and might
have had it at any time. He had had
hints and warnings in addition to those
th^t we have mentioned, — warnings that
slipul.d not be magnified unduly, but still
that; taken with the auditor^s report
of 1903| the unexplained shortages, the
tnljg^^tion of the teller. Cutting, in 1905,
ai^d ihe final seeming rapid decline in
deposits, would have induced scrutiny
b.nt for an invincible repose upon the
status quo. In 1908 one Fillmore
leari^ed that a package containing $150
left with the bank for safekeeping was
not tp be found^ told Dresser of the
1qjS3, wrote to him that he could but
conclude that the package had been
d^troyed or removed by someone con-
nected with the bank, and in later con-
versation said that it was evident that
there was a thief in the bank. He
added that he would advise the presi-
dent to look after Coleman, that he
believed he was living at a pretty fast
pace, and that he [531] had pretty good
authority for thinking that he was sup-
porting a woman. In the same year,
or the year before, Coleman, whose pay
wnij never more than $12 a week, set
\ip an automobile, as was known to
Dresser and commented on unfavorably
to him. There was also some evidence
of' notice to Dresser that Coleman was
deaiing in copper stocks. In 1909 came
the great and inadequately explained
seeming shrinkage in the deposits.. No
•4 I^* ed.
doubt plausible explanations oi his con-
duct came from Coleman and the notice
as to speculations may have been slight,
but, taking the whole story of the re-
lations of the parties, we are not ready
to say that the two courts below erred
in finding that Dresser had been put
upon his guard. However little the
warnings may have pointed to the
specific facts, had they been accepted,
they would have led to an examination
of the depositors' ledger, a discovery of
past and a prevention of future thefts.
We do not perceive any ground for
applying to this case the limitations of
liability ex contractu adverted to in
Globe Ref. Co. v. London Cotton Oil
Co. 190 U. S. 540, 47 L. ed. 1171, 23
Sup. Ct. Rep. 754. In accepting the
presidency Dresser must be taken to
have contemplated responsibility for
losses to the bank, whatever they were,
if chargeable to his fault. Those that
happened were chargeable to his fault,
after he had warnings that should have
led to steps that would have made fraud
impossible, even though the precise form
that the fraud would take hardly eould
have been foreseen. We accept witl^
hesitation the date of December 1, 1908,
as the beginning of Dresser's liability,
but think it reasonable that interest
should be charged against his estate,
upon the sum found by the circuit court
of appeals to be due. It is a question
of discretion, not of right (Lincoln v.
Claflin, 7 Wall. 132, 19 L. ed. 106;
Drumm-Flato Commission Co. .v. Ed-
misson, 208 U. S. 534, 539, 52 L. ed.
606, 609, 28 Sup. Ct. Rep. 367) ; but to
the extent that the decree of the district
court was affirmed (Kneeland v. Ameri-
can Loan ft T. Co. 138 U. S. 509, 34
L. ed. 1052, 11 Sup. Ct. Rep. 426; De
la Rama v. [532] De la Rama, 241 U. S.
1§4, 159, 60 L. ed. 932, 934, 36 Sup. Ct.
Rep. 518, Ann. Cas. 1917C, 411), it
seems to us just, upon all the circum*
stances, that it should run until the
receiver inter|>osed a delay by his ap-
peal to this court (The Scotland, 118
U. S. 507, 520, 30 L. ed. 153, 156, 6
Sup. Ct. Rep. 1174). Upon this, as
upon the other points, our decision is
confined to the specific facts.
Decree modified by charging the es-
tate of Dresser with interest from Feb-
ruary 1, 1916, to June 1, 1918, upon the
sum found to be due, and afiGirmed.
Mr. Justice McEenna and Mr. Justice
Pitney dissent, upon the ground that
not only the administrator of the presi-
dent of the bank, but the other direc-
305
532
SUPREME COURT OF THE UNITED STATES.
Ooi. Tbb&c,
torSi oi^ht to be held liable to the ex-
tent to which they were held by the
district court (229 Fed. 772).
Mr. Justice Van Devanter and Mr.
Justice Brandeis took no part in the de-
cision.
FORT SMITH LUMBER COMPANY, Plff.
in Err.,
V.
STATE OF ARKANSAS EX REL. JOHN
D. ARBUCKLE, Attorney General.
(See 8. C. Reporter's ed. 632-534.)
Gonstitutlonal law — due process of
law — equal protection of! the laws
— doable taxation.
1. The 14th Amendment to the Fed-
eral Constitution no more forbids double
taxation than it does doubling the amount
of the tax, short of confiscation or pro-
ceedings unconstitutional on other grounds.
(For other cases, see Constitutionnl Law, 292-
886, 628-553, in Digest Sap. Ct. 1908.]
Oonstitntlonal law — due process of
law — equal protection of the laws
•- taxes — discrimination against
oorporatlon.
2. A state may, so far as the Federal
Constitution is concerned, tax its own cor-
porations in respect of the stock held by
them in other domestic corporations, al-
though unincorporated stocicholders are
exempt.
(Fbr other cases, see Constitutional Law, 202-
386, 623-553, in Digest Sup. Ct. 190S.]
Constitutional law — due process of
law — equal protection of the laws
— taxes — discrimination against
oorporatlon.
8. Confining the recovery of back taxes
to those due from corporfTtions does not
offend against the Federal Constitution.
(For other cases, see Constitutional Law, 202-
886, 523-553, in Digest Sup. Ct. 1908.]
[No. 394.]
Submitted under the 20th Rule, January 5,
1920. Decided March 1, 1920.
IN ERROR to the Supreme Court of
the State of Arkansas to review a
jud^ent which affirmed a judgment of
the Chancery Court of Sebastian county,
in that state, for the recovery of cer-
tain back taxes alleged to be dae from a
corporation. AflBrmed.
See same case below, 131 Ark. 40, 198
S. W. 702.
The facts are stated in the opinion.
Messrs. Joseph M. Hill and Henry L.
Fitzhngh submitted the cause for plain-
tiff in error:
A taxing act which discriminates be-
tween properties on account of owner-
ship violates the equality and due
process clauses of the 14th Amendment.
State ex rel. Atty. Gen. v. Bodcaw
Lumber Co. 128 Ark. 522, 194 S. W;
692 J Bradley v. Richmond, 227 U. S.
477, 57 L. ed. 603, 33 Sup. Ct. Rep. 318 ;
Winova & St. P. Land Co. v. Minne-
sota, 159 U. S. 526, 40 L. ed. 247, 16
Sup. Ct. Rep. 83.
Taxing by a uniform rule requires
uniformity not only in the rate of tax-
ation, but also uniformity of the mode
of the assessment upon the taxable
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 tax-
ation.
Greene v. Louisville & Interurban B.
Co. 244 U. S. 499, 61 L. ed. 1280, 37
Sup. Ct. Rep. 673, Ann, Cas. 1917Ey.88.
The mode of assessment which ae-
quires a corporation to pay taxes upon
corporate shares which have in them
taxable value derived from ownership
in shares of another corporation, which
qther corporation is by law required to
separately assess and pay taxes upon the
value in those shares, is duplicate tax-
ation, inimical to the equality and due
process clauses of the 14th Amend-
ment.
Indian Territory Illuminating Oil Co.
V. Oklahoma, 240 U. S. 522, 60 L. ed.
779, 36 Sup. Ct. Rep. 453; Delaware, L.
& W. R. Co. V. Pennsvlvania, 198 U. S.
341, 49 L. ed. 1077, 25 Sup. Ct. Rep. 669 ;
Louisville & J. Ferry Co. v. Kentucky,
Kote. — As to what constitutes due
process of law, generallv — see notes to
People V. O'Brien, 2 L.R.A. 255; Knntz
V. Sumption, 2 L.R.A. 655; Re Gannon,
5 L.R.A. 359; Ulman v. Baltimore, 11
L.R.A. 224; Oilman v. Tucker, 13 L.R.A.
304; Pearson v. Yewdall, 24 L. ed. U.
S. 436; and Wilson v. North Carolina,
42 ii. ed. U. S. 865.
A6 to constitutional equality of privi-
leges,* immunities, and protection, gen-
erallv— see note to Louisville Safetv
3»«*
Vault & T. Co. V. Louisville & N. R,. Co.
14 L.R.A. 579.
On taxation of shares of stock and
corporate assets as double taxation —
see notes to East Liverraore v. Liver-
more Palls Trust & Bkg. Co. 15 L.R.A.
(N.S.) 952, and State Bd. v. People, 58
L.R.A. 589.
On constitutional equality in the
United States in relation to corporate
taxation — see note to Bacon v. State
Tax Comrs. 60 L.R.A. 321.
251 U. 8.
1919, FORT SMITH LUMBER CO. v. ARKANSAS EX REL. ARBUCKLE.
188 U. S. 38S, 47 L. ed. 513, 23 Sup. Ct.
Rep. 463.
To say that the two taxes levied, one
on the value o£ the capital stock of the
Port Smith Lumber Company, including
in that value the value o£ the stock
owned by the Lumber Company in the
Railway Company and the Investment
Company, are valid because a taxation
of different persons, the Railway Com-
pany and the Investment Company al-
ready being taxed as such, serves to
emphasize a plain 'disr^ard of the Con-
stitution, which is construed by the su-
preme court of Arkansas as authorizing
a taxation once, and only once, against
the value inhering in the capital stock
of any corporation.
Bank of California v. Richardson, 248
U. S. 476, 63 L. ed. 372, 39 Sup. Ct. Rep.
166.
Mr. John D. ArbucUe, in propria
persona. Attorney General of Arkansas,
and Mr. Ckorge Vaughan submitted the
cause for defendant in error:
The general background, chronology
of legislation, and the contemporaneous
unrest of the times reflect and con-
firm the court's interpretation of the
revenue laws of Arkansas as applicable
to corporations:
Pike V. State, 5 Ark. 204; Hempstead,
History of Arkansas, pp. 326, 334f Clay-
ton, Aftermath of the Civil War in
Arkansas, pp. 41, 44; St. Louis, I. M. &
S. R. Co. v. Berry, 113 U. S. 465, 28 L.
ed. 1055, 5 Sup. Ct. Rep. 529; Hunting-
ton V. Worthen, 120 U. S. 97, 30 L. ed.
588, 7 Sup. Ct. Rep. 469; 5 Wilson,
History of the American People, pp. 166
et seq.
Corporations are judicially recognized
as a distinct and appropriate legislative
class.
Flint V. Stone Tracy Co. 220 U. S. 107,
55 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 1312; 1 Fletcher, Cyc. Priv.
Corp. p. 42.
In matters relating to its internal rev-
enues a state's legislative discretion is
supreme.
Hawley v. Maiden, 232 U. S. 1, 58 L.
ed. 447, 34 Sup. Ct. Rep. 201, Ann. Cas.
1916C, 842; State Railroad Tax Cases,
92 U. S. 575, 23 L. ed. 663; Travelers'
Ins. Co. V. Connecticut, 185 TJ. S. 364,
46 L. ed. 949, 22 Sup. Ct. Rep. 673;
Cony V. Baltimore, 196 U. S. 467, 49
L. ed. 557, 25 Sup. Ct. Rep. 297; Michi-
gan C. R. Co. V. Powers, 201 U. S. 245,
50 L. ed. 744, 26 Sup. Ct. Rep. 459.
Holding companies occupy a peculiar
legal status, and the 'law of the case,"
04 ]j. ed.
as clearly pointed out (State ex rel.
I Atty. Gen. v. Bodcaw Lumber Co. 128
! Ark. 505, 194 S. W. 692; Dallas County
V. Home Fire Ins. Co. 97 Ark. 254, 113
S. W. 1113; Crossett Lumber Co. v.
State, — Ark. — , 214 S. W. 43), and
the construction thereof by the state
court, are controlling upon Federal
courts (Commercial Nat. Bank v.
Chambers, 182 U. S. 556, 45 L. ed. 1227,
21 Sup. Ct. Rep. 863; Webster v. Coop-
er, 14 How. 488, 14 L. ed. 610; Snare &
T. Co. V. Friedman, 40 L.R.A.(N.S.)
444, note).
In such a field the 14th Amendment is
not an iron rule of equality.
Bell's Gap ll. Co. v. Pennsylvania, 134
U. S. 232, 33 L. ed. 892, 10 Sup. Ct.
Rep. 533 ; Nicol V. Ames, 173 U. S. 509,
515, 516, 43 L. ed. 786, 791, 792, 19 Sup.
Ct. Rep. 522; Connolly v. Union Sewer
Pipe Co. 184 U. S. 540, 562, 46 L. ed.
679,' 690, 22 Sup. Ct. Rep. 431 ; Kidd v.
Alabama, 188 U. S. 730, 732, 47 L. ed.
669, 672, 23 Sup. Ct. Rep. 401; St. Louis,
L M. & S. R. Co. V. Worthen, 52 Ark.
529, 7 L.R.A. 374, 13 S. W. 254; Schaefer
V. Werling, 188 U. S. 516, 47 L.'ed. 570,
23 Sup. Ct. Rep. 449; Florida G. & P. R.
Co. V. Reynolds, 183 U. S. 471, 475, 46
L. ed. 283, 286, 22 Sup. Ct. Rep. 176;
Clement Nat. Bank v. Vermont, 231 U.
S. 120, 134, 58 L. ed. 147, 156, 34 Sup.
Ct. Rep. 31; Michigan C. R. Co v. Pow-
ers, 201 U, S. 245, 293, 50 L. ed. 744,
761, 26 Sup. Ct. Rep. 459; Wright v.
Louisville & N. R. Co. 195 U. S. 219, 49
L. ed. 167, 25 Sup. Ct. Rep. 16; Gulf C.
ft S. F. R. Co. V. Ellis, 165 U. S. 160,
155, 41 L. ed. 666, 668, 17 Sup. Ct. Rep.
255; Merchants' & M. Nat. Bank v.
Pennsylvania, 167 U. S. 461, 42 L. ed.
236, 17 Sup. Ct. Rep. 829; American
Sugar Ref. Co. v. Louisiana, 179 U. S.
89, 45 L. ed. 102, 21 Sup. Ct. Rep. 43;
Clark V. Titusville, 184 U. S. 329, 46 L.
ed. 569, 22 Sup. Ct. Rep. 382; St. Louis,
L M. & S. R. Co. V. Paul, 64 Ark. 83, 37
L.R.A. 504, 62 Am. St. Rep. 154, 40 S.
W. 705, affirmed in 173 U. S. 404, 43 L.
ed. 746, 19 Sup. Ct. Rep. 419; Giozza v.
Tieman, 148 U. S. 657, 659, 37 L. ed.*
599, 601, 13 Sup. Ct. Rep. 721; Tucker,
Const, pp. 862-864; Home Ins. Co. v.
New York, 134 U. S. 594, 606, 33 L. ed.
1025, 1032, 10 Sup. Ct. Rep. 593.
Retrospective laws are not new, but
are of recognized validity.
Sturges V. Carter, 114 U. S. 511, 29 L.
ed. 240, 5 Sup. Ct. Rep. 10J4; 37 Cyc.
1020; State ex rel. Moose v. Kansas City
& M R. & Bridge Co. 117 Ark. 606, 174
S. W. 248; League v. Texas, 184 U. S.
156, 49 L. ed. 478, 22 Sup. Ct. Rep. 475 ;
807
533
SUPREME COURJ OF THE UNITED STATES.
Oct. Tsem,
Winona & St. P. Land Co. v. Minnesota,
159 U. S. 626, 40 L. ed. 247, 16 Sup. Ct.
Rep. 83; King v. Mullins, 171 U. S. 404,
43 L. ed. 214, 18 Sup. Ct. Rep. 925;
Weyerhaueser v. Minnesota, 176 U. S.
550, 44 L. ed. 583, 20 Sup. Ct. Rep. 485 ;
Florida C. & P. R. Co. v. Reynolds, 183
U. S. 471, 46 L. ed. 283, 22 Sup. Ct. Rep.
176; Security Trust & S. V. Co. v.
Lexington, 203 U. S. 323, 51 L. ed. 204,
27 Sup. Ct. Rep. 87; Citizens' Nat. Bank
V. Kentucky, 217 U. S. 443, 54 L. ed. 832,
30 Sup. Ct. Rep. 532; Kentucky Union
Co. V. Kentucky, 219 U. S. 140, 55 L. ed.
137, 31 Sup. Ct. Rep. 171.
The constitutionality of the Arkansas
amended act is not impaired because
leveled at corporations only.
Florida C. & P. R. Co. v. Reynolds,
183 U. S, 471, 46 L. ed. 283, 22 Sup. Ct.
Rep. 176; Dartmouth College v. Wood-
ward, 4 Wheat. 518, 638, 4 L. ed. -629,
659; People ex rol. Bank of Watertown
V. Assessors, 1 Hill, 620; Wilson v.
United States, 221 U. S. 361, 382, 55 L.
ed 771, 780, 31 Sup. Ct. Rep. 538, Ann.
Cas. 1912D, 558; Ozan Lumber Co. v.
Biddie, 87 Ark. 587, 113 S. W. 796;
6tate ex reL Norwood v. New York L.
Ina. Co. 119 Ark. 328, 171 S. W. 871,
173 S. W. 1099; Cook, Corporation
Problem, pp. 2, 3, 89, 106, 201, 203, 204;
Wilfus, Federal Incorporation, 27 Am.
Bar. Asso. fiep. pp. 694, 703; Mathews,
Principles of American State Adminis-
tration, pp. 253, 254; Hadley, Econom-
ics, pp. 93, 454, 504; Lyon, Principles of
Taxn. pp. 118, 119; Industrial Commis-
sion of Washington, 1902, vol. 19, pp.
F, pp.
, 179
1066, 1067; New York v. Barker
U. S. 279, 45 L. ed. 190, 21 Sup. Ct. Rep.
121.
The act itself does not impinge upon
the 14th Amendment.
State ex rel. Moose v. Kansas City &
M. R. & Bridge Co. 117 Ark. 606, 174
8. W. 248; Florida C. & P. R. Co. v.
Reynolds, 183 U. S. 471, 46 L. ed. 283,
22 Sup. Ct. Rep. 176 r 7 Fletcher, Cyc.
Priv. Corp. § 4017; Williams v. Albany
County, 22 Blatchf. 302, 21 Fed. 99, 122
U. S. 154, 30 L. ed. 1088, 7 Sup. Ct. Rep.
1244; Sturges v. Carter, 114 U. S. 511,
29 L. ed. 240, 5 Sup. Ct. Rep. 1014; St.
Louis, L M. & S. R. Co. v. Paul, 64 Ark.
83, 37 L.R.A. 504, 62 Am. St. Rep. 154,
40 S. W. 705, affirmed in 173 U. S. 404,
43 L. ed. 746, 19 Sup. Ct Rep. 419;
Chicago, R. L & P. R. Co. v. State, 86
Ark. 412, 111 S. W. 456, affirmed in 219
U. S. 453, 55 L. ed. 290, 31 Sup. Ct. Rep.
275; Ozan Lumber Co. v. Biddie, 87 Ark.
687, 113 8. W. 796; Aluminum Co. of
North America v. Ramsey, 89 Ark. 522,
S98
117 S. W. 568, affirmed in 222 U. S. 261,
56 L. ed. 185, 32 Sup. Ct. Rep. 76, 1 N.
C. C. A. 251; Gallup v. Schmidt, 183 U.
S. 300, 46 L. ed. 207, 22 Sup. Ct. Rep.
162; Savings & L. Soc. v. Multnomah
County, 169 U. S. 421, 42 L. ed. 803, 18
Sup. Ct. Rep. 392; Ozan Lumber Co. v.
Union County Nat. Bank, 76 CCA.
218, 145 Fed. 344, 7 Ann. Cas. 390,
reversed in 207 U. S. 251, 52 L. ed. 196y
28 Sup. Ct. Rep. 89; Hammond Packing
Co. V. State, 81 Ark. 519, 126 Am. St.
Rep. 1047, 100 S. W.'407, 1199, 212 U.
S. 322, 53 L. ed. 530, 29 Sup. Ct. Rep.
370, 15 Ann. Cas. 645; St. Louis South-
western R. Co. V. State, 106 Ark. 321,
152 S. W. 110, 235 U. S. 350, 69 L. ed.
265, 35 Sup. Ct. Rep. 99; Stanton v.
Baltic Min. Co. 240 U. S. 103, 60 L.
ed. 546, 36 Sup. Ct. Rep. 278; State ex
rel. Moose v. Kansas City & M. R. A
Bridge Co. 117 Ark. 606, 174 S. W. 248 ;
State ex rel. Atty. Gen. v. Bodcaw Lum-
ber Co.. 128 Ark. 505, 194 S. W. 692;
State ex rel. Atty. Gen. v. Ft. Smith
Lumber Co. 131 Ark. 40, 198 S. W. 702,
138 Ark. 581, 211 S. W. 662.
Mr. Justice Holmes delivered the
opinion of the court:
This is a suit by the state of Arkan-
sas against the plaintLS in error, a eor-
poraffon of the state, to recover back
taxes alleged to be due upon a proper
valuation of its capital stock. The cor-
poration owned stock in two other cor-
porations of the state, each of which
paid full taxes, and it contended that
it was entitled to omit the value of snoh
stock from the valuation of its ow^
This omission is the matter in dispute.
The corporation defends on the ground
that incQviduals are not taxed for such
stock or subject to suit for back taxes,
and that the taxation is double, setting
up the 14th Amendment. The case was
heard on demurrer to the answer and
agreed facts, and the statute levying
the tax was sustained by the supreme
court of the state.
The objection to the taxation as
double may be laid on one side. That
is a matter of statfe law alone. The 14th
Amendment no more forbids double
taxation than it does doubling the
amount of a tax, short of confiscation
or proceedings unconstitutional on other
grounds. Davidson v. New Orleans, 96
U. S. 97, 106, 24 L. ed. 616, 620; Ten-
nessee v. Whitworth, 117 U. S. 129, 136.
137, 29 L. ed. 830, 832, 6 Sup. Ct. Rep.
045; St. Louis Southwestern R. Co. v.
Arkansas, 235 U. S. 350, 367, 368, 59
L. ed. 265, 273, 274, 35 Sup. Ct. Bep.
Sftl V. s.
19X«. POET SMITH LUMBER CO. v. ARKANSAS EX REL. ARBUCKLE. 533, 534
99. We are of opinion that it aldo is
wltlun the power of a state, so far as
the Constitution of. the United States
is eoncemedy to tax its own corporations
in respeet of the stock held by them
[£^34] in other domestic corporations,
although unincorporated stockholders
are exempt. A state may have a policy
in taxation. Quong Wing v. Kirkendall,
223 U. S. 69, 63, 56 L. ed. 350, 352, 32 Sup.
Ct. Rep. 192. If the state of Arkansas
wished to discourage, but not to forbid,
the holding of stock, in one corporation
by another, and sought to attain the
result by this tax, or if it simply saw
fit to make corporations pay for the
privilege, there would be nothing in the
Constitution to hinder. A discrimina-
tion between corporations and individu-
with regard to a tax like this cannot
be pronounced arbitrary, although we
may not know the precise ground of
policy that led the state to insert the
distinction in the law.
The same is true with regard (o oon-
«4 L. ed.
fining the recovery of back taxes to those
due from corporations. It is to be pre-
sumed, until the contrary appears, that
there were reasons for more strenuous
efforts to collect admitted dues from
corporations than in other cases, and
we cannot pronounce it an unlawful
policy on the part of the state. See
New York v. Barker, 179 U. S. 279,
283, 45 L. ed. 190, 193, 21 Sup. Ct.
Rep. 121. We have nothing to do with
the supposed limitations upon the pow-
er of the state legislature in the Con-
stitution of the state. Those must be
taken to be disposed of by the decisions
of the state court. As this case prop-
erly comes here by writ of error, an
application for a writ of certiorari that
was presented as a precaution will be
denied.
Judgment afftrmed.
Mr. Justice McKenna, Mr. Justice
Day, Mr. Justice Van Devaiiter, and
Mr. Justice McBeyndds dissent.
•ft
MEMORA.lSrr>^
OF.
Cases Disposed of Without Opinions.
William J. Gsart^ Plaintiff in Error, v.
Alice Gsart. [No. 182.]
Error to state eonrt — error or certiorari.
In Error to liie Supreme Court of the
State of Nebraska to review a decree
whieh affirmed a decree of the District
Court, of Wayne County, in that state,
for the support of certain minor children
in a suit in which defendant set up as a
defense a divorce decree of an Iowa court.
See same case below, 102 Neb. 611, —
.A.L.R. — , 167 N. W. 778.
Mr. T. M. Zink for plaintiff in error.
Mr. R. E. Evans for defendant in error.
November 17, 1919. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code,
as amended by the Act of September 6,
1916 (39 Stat, at L. 726, chap. 448, Comp.
Stat § 1214, Fed. Stat. Anno. Supp. 1918,
p. 411), § 2.
JosLiN Manufacturing Company, Plain-
tiff in Error, v. City op Providence et
al. [No. 183]; Scituate Light &
Power Company, Plaintiff in Error, v.
City op Providence et al. [No. 184] ;
and Theresa B. Joslin, Plaintiff in
Error, v. City op Providence et al.
[No. 186.]
Error to state court — final judgment.
Three Writs of Error to the Supreme
Court of the State of Rhode Island to
review its action in deciding certain con-
stitutional questions certified to it hy the
Superior Court of Providence County, in
that state.
See same case below, 41 R. I. 350, 103
Atl. 935.
Messrs. Robert H. McCarter, Francis
I. McCanna, Alfred 6. Chaffee, and J.
Jei*ome Halm for plaintiffs in error.
Messrs. Albert A. Baker and Elmer S.
Cliace for defendants in error.
November 17, 1919. Per Curiam:
6 I L. ed.
Dismiased for want of jurisdiction upon
the authority of Haseltine v. Central Nat
Bank, 183 U. S. 130, 46 L. ed. 117, 22
Sup.- Ct. Rep. 49 ; Schlosser v. Hemphill,
198 U. S. 173, 49 L. ed. 1000, 25 Sup.
Ct. Rep. 654; Coe v. Armour Fertiliser
Works, 237 U. S. 413, 418, 59 L. ed. 1027,
1029, 36 Sup. Ct. Rep. 625 j Bruce v. To-
bin, 245 U. S. 18, 19, 62 L. ed. 123, 124,
38 Sup. Ct. Rep. 7; and see Collard v.
Pittsburgh, C. C. & St. L. R. Co. 246 U.
S. 653, 62 L. ed. 922, 38 "Sup. Ct. Rep.
336. Petition for certiorari denied.
[536] J. W. Thompson, Plaintiff in
Error, v. R. B. Day, Sheriff and Tax
CoUeetor, et aL [No. 286.]
Error to state court — frivolous Federal
question.
In Error to the Supreme Court of the
State of Louisiana to review a judgment
which affirmed a judgment of the District
Court for the Parish of East Baton Rouge,
in that state, dismiasing a suit to cancel
an assessment for taxes levied on a
wrecked steamship.
See same case below, 143 La. 1086, 8
A.L.R. 660, 79 So. 870.
Mr. William C. Marshall for plaintiff
in error.
Mr. Harry P. Sneed for defendants in
error.
November 17, 1919. Per Curiam : Dis-
missed for want of jurisdiction upon the
authoritv of Goodrich v. Ferris, 214 U. S.
71, 79, 53 L. ed. 914, 917, 29 Sup. Ct.
Rep. 580; Brolan v. United States, 236
U. S. 216, 218, 59 L. ed. 544, 547, 35
Sup. Ct. Rep. 285; United Surety Co. v.
American Fruit Product Co. 238 U. S.
140, 142. 59 L. ed. 1238, 1239, 35 Sup. Ct.
Rep. 828; Sugarman v. United States,
249 U. S. 182, 184, 03 L. ed. 550, 551, 39
Sup. Ct Rep. 101.
6 101
/
o3(), 637
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
National Coukoil, Junior Ordeb
Unitujd American Mechanics, Plain*
tiff in Error, v. Catherine A. Nicode-
Mus. [No. 354.]
Error to state court — Federal question —
service of process.
In Error to the Supreme Court of the
State of Colorado to review a judgment
which affirmed a judgment of the County
Court for the City and County of Denver)
in that state, in favor of plaintiff in a
suit against a foreign insurance corpo-
ration.
Mr. George P. Steele for plaintiff in
error.
Mr. Fred Herrington for defendant in
error.
November 17, 1919. Per Curiam : Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code, as
amended by the Act of September 6, 1916
(39 Stat, at L. 726, chap. 448, Comp.
Stat. § 1214, Fed. Stat Anno. 8upp. 1918,
p. 411), § 2.
RuD^PH Ernbst Tiedbmann, Plaintiff in
Error, v. Gertrude Eleanor Tiede-
MANN. [No. 438.]
Error to state court — error or certiorari.
In Error to the Supreme Court of the
State of New York in and for the County
of New York to review a judgment en-
tered pursuant to the mandate of the
Court of Appeals of that state, which had
affirmed a judgment of the Supreme
Cfoort, Appellate Division, First Depart-
ment, modifying, and affirming as modi-
fied, a judgement of the Supreme Court,
Special Term, in favor of plilintiff in a
suit upon a foreig^n divorce decree.
See same case below, in supreme eourt,
172 App. Div. 819, 168 N. Y. Supp. 861;
in court of appeals, 225 N. Y. 709, 122
N. £. 892, reargument denied in 226 N. Y.
658, 123 N. E. 891.
Messrs. Homer S. Cummings and Nash
Rockwood for plaintiff in error.
Messrs. Elijah N. Zoline and Louis J.
Vorhaus for defendant in error.
November 17, 1919. Per Curiam:
Dismissed for want of jurisdiction upon
the authority of § 237 of the Judicial
Code, as amended by the Act of Septem-
ber 6, 1916 (39 Stat, at L. 726, chap. 448,
Comp. Stet. § 1214, Fed. Stat. Anno.
Supp. 1918, p. 411), § 2.
402
[537] Bert Bucker, Plaintiff in Error.
v. Marion A. Tatlow. [No. 59.]
Error to state court— Federal question —
body execution.
In Error to the Supreme Court of the
State of Kansas to review a judgment
which affirmed an order of the District
Court of Shawnee County, in that state,
for the issuance of an execution against
the person of a judgment debtor.
See same case below, 101 Kan. 26, —
A.L.R. — , 165 Pac. 835.
Messrs. Joseph M. Stark and Joseph G.
Waters for plaintiff in error.
• Messrs. Lee Monroe and C. M. Monroe
for defendant in error.
November 17, 1919. Per Curiam:
Dismissed for want of jurisdiction upon
the authority of Goodrich v. Ferris, 214
U. S. 71, 79, 63 L. ed. 914, 917, 29 Sup.
Ct. Rep. 580; Brolan v. United States,
236 U. S. 216, 218, 69 L. ed. 544, 547, 36
Sup. Ct. Rep. 285 ; United Surety Co. v.
American Fruit Product Co. 238 U. S.
140, 142, 69 L. ed. 1238, 1239, 35 Sup.
Ct. Rep. 828; Sngarman v. United States,
249 U. S. 182, 184, 63 L. ed. 556, 651, 39
Sup. Ct. Rep. 191.
Edward E. O^rien et aL, Plaintifla in
Error, v. Public Serviob CoMicissioir
OP THE First District of the Stati
OP New York, etc. [No. 69.]
Error to state court — ^Federal question.
In Error to the Supreme Court of the
State of New York in and for the County
of Kings, to review a judgment entered
pursuant to the mandate of the Court of
Appeals of that state, which had aflirmed
a judgment of the Supreme Court, Ap-
pellate Division, Second Department, oon-
nrming the report of appraisers in con-
demnation proceedings.
See same case below, in supreme court,
167 App. Div. 908, 151 N. Y. Supp. 766;
in court of appeals, 217 N. Y. 61, 111
N. E. 658.
Mr. Robert H. Elder for plaintiffs in
error.
Mr. William P. Burr for defendant in
error.
November 17, 1919. Per Curiam : Dis-
missed for want of jurisdiction upon the
authority of
(1) California Powder Works v. Davis.
151 U. S, 389, 393, 38 L. od. 206.
207, 14 Sup. Ct. Rep. 350; Say-
ward V. Denny, 158 U. S. 180. 183, 39 L.
ed. 941, 942, 15 Sup. Ct. Rep. 777 ; Hard-
ing V. Wilson, 196 U. S. 78, 86, 49 L, ed.
394, 396, 25 Sup. Ct. Rep. 176.
15 1 V. S.
1»19.
MEMORANDA CASES.
537-539
(2) Thomas v. Iowa, 209 U. S. 258,
263, 52 L. ed. 782, 783, 28 Sup. Ct. Rep.
487; Bowe v. Scott, 233 U. S. 658. 664. 58
L. ed. 1141, 1145, 34 Sup. Ct. Rep. 769;
and see El Paso Sash & Door Co. v. Car-
raway, 245 U. S. 643, 62 L. ed. 528, 38
Sup. Ct. Rep. 222.
Margaret H. Sanger, Plaintiff in Error,
V. People of the State of New York.
[No. 75.]
Error to state court — ^Federal question.
In Error to the Court of Special Ses-
sions of the City of New York for the
County of Kings, State of New York, to
review a judgement entered pursuant to the
mandate of the Court of Appeals of that
state, which had affirmed a judgement of
the Supreme Court, Appellate Division,
Second Department, affirming a convic-
lion in the trial court for selling articles
and giving information for the purpose
of preventing conception.
See same case below, in supreme court,
179 App. Div. 939, 166 N. Y. Supp. 1107;
in court of appeals, 222 N. Y. 192, 118
N. E. 637.
Mr. Jonah J. Gk>ldstein for plaintiff in
error.
Mr. Harry G. Anderson for defendant
in error.
November 17, 1919. Per Curiam:
Dismissed for want of jurisdiction upon
the authority of
(1) California Powder Works v.
DaTis, 151 U. S. 389, 393, 38 L. ed.
296, 207, 14 Sup. Ct. Rep. 350; Say-
ward V. [588] Denny, 158 U. S. 180, 183,
39 L. ed. 941, 942, 15 Sup. Ct. Rep. 777 ;
Harding v. WUson, 196 U. S. 78, 86, 49
L. ed. 394, 396, 25 Sup. Ct, Rep. 176.
(2) Thomas v. Iowa, 209 U. S. 258, 263,
62 L. ed. 782, 783, 28 Sup. Ct. Kep. 4oi ;
Bowe V. Scott, 233 U. S. 658, 664, 58 L^
ed. 1141, 1145, 34 Sup. Ct. Rep. 769;
and see El Paso Sash db Door Co. v; Car-
raway, 245 U. S. 643, 62 L. ed. 528, 38
Sup. Ct. Rep. 222.
Gulf, Colorado, & Santa Fe Railway
Company et al., Plaintiffs in Error, v.
George H. Bowles. [No. 78.]
Federal courts — ^jurisdiction — suit arising
under Federal statute.
In Error to the District Court of the
United States for the Southern District
ef Texas to review a judgment dismissing,
for want of jurisdiction, an action by a
$4 Ij. ed.
carrier to recover freight charges on an
interstate shipment.
Messrs. Alexander Britton, J. W. Terry,
and John G. Gregg for plaintiffs in error.
No appearance for defendant in error.
November 17, 1919. Per Curiam: Re-
versed upon the authority of Louisville &
N. R. Co. V. Rice, 247 U. S. 201, 62 L. ed.
1071, 38 Sup. Ct. Rep. 429.
GiOROiA M. Houston, Administratrix,
etc, Plaintiff in Error, v. Seaboard
Am LiKB Railway Company. [No.
188.]
Error to state court — Federal c]uestion.
In Error to the Supreme Court of Ap-
peals of the State of Virginia to review a
judgment which affirmed a judgment of
the Circuit Court of Norfolk County, in
that state, sustaining a demurrer to the
evidence in an action under the Federal
Employers' Liability Act.
See same case below, 123 Ya. 290, 96
S. E. 270.
Mr. R. Randolph Hicks for plaintiff
in error.
Mr. G. Hatton for defendant in error.
November 24, 1919. Per Curiam:
Dismissed for want of jurisdiction upK>n
the authority of § 237 of the Judicial
Code, as amended by the Act of Septem-
ber 6, 1916 (39 Stat, at L. 726, chap. 448,
Comp. Stat. § 1214, Fed. Stat Anno.
Supp. 1918| p. 411), § 2.
Missouri Pacific Railroad Company,
Plaintiff in Error, v. G. W. Bollis.
[No. 544.]
Error to state court — error or certiorari.
In Error to the Supreme Court of the
State of Tennessee to review a judgment
which, in effect, affirmed a judgment of
the Court of Civil Appeals of that state,
affirming a judgment of the Circuit Court
of Shelby County, in favor of plaintiff in
a personal-injury action.
Messrs. J. W. Canada and Edward J.
White for plaintiff in error.
Messrs. Julian C. Wilson and Walter
P. Armstrong for defendant in error.
[539] November 24, 1919. Per Curiam :
Dismissed for want of jurisdiction upon
the authority of § 237 of the Judicial
Code, as amended by the Act of Septem-
ber 6, 1916 (39 Stat, at K 726, cjiap. 488.
403
539, 540
SUPREME COURT OF THE UNITED STATES.
Oct. TceM;
Comp. Stat. § 1214, Fed. Stat. Anno.
Supp. 1918, p. 411), § 2. PetiUon for
writ of certiorari herein denied.
Southern Pac^ipic Company, Plaintiff in
Error, v. Lko L. D'Utassy. [No.
334.]
Error to state court — error or certiorari.
In Error to the Supreme Court of the
State of New York in and for the County
of New York to review a judgment en-
tered pursuant to the mandate of the
Court of Appeals of that state, which had
affirmed a judgment of the Supreme
Court, Appellate Division, First Depart-
ment, afiOb*miDg a judgment of the Trial
Term in f 4vor of plaintiff in a suit against
a carrier for the loss of an interstate ship-
ment.
See same case bdow, in supreme court,
174 App. Div. 647, 161 N. Y. Supp. 222;
in court of appeals, 225 N. Y. 694, 122
N. E. 879.
Afr. Fred H. Wood for plaintiff in er-
ror.
Messrs. Wilson 'A. Tipple and Arthnr
W. Clement for defendant in error.
November 24, 1919. Per Curiam:
Dismissed for want of jurisdiction upon
the authority of § 237 of the Judicial
Code, as amended by the Act of Septem-
ber 6, 1916 (39 Stat, at L. 726, chap.
448, Comp. Stat. § 1214, Fed. Stat. Anno.
Supp. 1918, p. 411), § 2. See writ of
certiorari denied, 1918 term, No. 944,
260 U. S. 639, 63 L. ed. 1184, 39 Sup. Ct.
Rep. 490.
Jefferson C. Powers et al., Plaintiffs in
Error, v. City of Richmond. [No.
116.]
Error to state court — Federal question.
In Error to the Supreme Court of Ap-
peals of the State of Virginia to review a
decree which affirmed a decree of the
Chancery Court of the City of Richmond,
enforcing a tax lien against the interests
of remaindermen.
See same case below, 122 Va. 328, 94
S. E. 803.
Mr. Robert H. Talley for plaintiffs in
error.
Mr. H. B. Pollard for defendant in
error.
December 8, 1919. Per Curiam: Dis-
jnissed for want of jurisdiction upon the
authoritv of Castillo v. McConnico, 168
U. S. 674, 42 L. ed. 622, 18 Sup. Ct. Rep.
229.
404
United States of America, Plaintiff in
Error, v. Mill Creek & Mike Hill
Navigation db Railroad Company to
Use of Philadelphia & Reading Rail-
way Company, Lessee [No. 103];
[540] United States of America,
Plaintiff in Error, v. North Pennsyl-
vania Railroad Company to Use of
Philadelphla & Reading Railway
Company, Lessee [No. 104] ; and Unit-
ed States of America, Plaintiff in Er-
ror, v. Delaware & Bound Brook Rail-
road Company to Use of Philadel-
phia & Reading Railway Company,
Lessee [No. 105],
Error to district court — afi&rmanee.
Three Writs of Error to the District
Court of the United States for the Eastern
District of Pennsylvania to review judg-
ments for the recovery of taxes paid un-
der protest.
See same case below, 246 Fed. 1013.
Assistant Attorney General Prierson
for plaintiff in error.
Mr. William Clarke Mason for defend-
ants in error.
December 8, 1919. Per Curiam: Af-
firmed upon the authority of United
States V. Larkin, 208 U. S. 333, 52 L. ed.
617, 28 Sup. Ct. Rep. 417 (Mr. Justice
Pitney took no part in the decision of
these cases).
Sarah J. Briggs, Administratrix, ete^
Plaintiff in Error, v. Union Pacific
Railroad Company. [No. 116.]
Error to state court — error or certiorari.
In Error to the Supreme Court of the
State of Kansas to review a judgment
which affirmed a judgment of the Dis-
trict Court of Shawnee County, in that
state, in favor of defendant in a suit
brought under the Federal Employers'
Liability Act.
See same case below, 102 Kan. 441, 175
Pac. 105.
Mr. Joseph G. Waters for plaintiff in
error.
Messrs. N. H. Loomis and T. M. Lil-
lard for defendant in error.
December 8, 1919. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code,
as amended by the Act of September 6,
1916 (30 Stat, at L. 726, chap. 448, Comp.
Stat. § 1214, Fe([. Stat. Anno. Supp.
1918. p. 411), § 2.
2M V. S.
1019.
MEMORANDA CASE.S.
640-542
AliE3ULNDER BeRKMAK V. A. CaMINETTI,
Commissioner of Immigration; etc. [No.
Application for Writ of Error of Ap-
peal, for admission to bail and for a stay
order.
Mr. Harry Weinberger for petitioner.
'Assistant Attorney General Stewart for
respondent.
December 11, 1919. Denied.
(541] George J. Twohy, Executor, etc.,
Plaintiff in Error, v. E. J. Doran, Com-
missioner of the Revenue, et al. [No.
251].
Error to state conrt — ^Federal question —
error or certiorari.
In Error to the Supreme Court of Ap-
peals of the State of Virginia to review
a judgment which affirmed a judgment of
the Corporation Court of the City of Nor-
folk, denying redress against certain tax
assessments.
Mr. George Ma^n Dillard for plaintiff
in error.
Messrs. John R. Saunders and J. D.
Hank, Jr., for defendants in error.
January 6, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code,
as amended by the Act of September 6,
1916 (39 Stat, at L. 727, chap. 448, Comp.
Stat. § 1214, Fed. Stat. Anno. Supp.
1918, p. 411), § 2.
W. W. Harris, Plaintiff in Error, v.
State of Kansas. [No. 239.]
Error to state court — Federal question —
raising on rehearing.
In Error to the Supreme Court of the
State of Kansas to review a judgement
which affirmed a conviction of arson, ren-
dered in the District Court of Barton
County, in that state.
See same case below, 103 Kan. 347, 175
Pac. 153.
Mr. Chester H. Krum for plaintiff in
error.
The Attorney General for defendant in
error.
January 12, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Consolidated Tump. Co. v.
Norfolk & O. V. R'. Co. 228 U. S. 326,
334, 57 L. ed. 857, 862, 33 Sup. Ct. Rep.
510; St. Louis & S. F. R. Co. v. Shepherd,
240 U. S. 240, 241, 60 L. ed. 622, 624, 36
Sup. Ct. Rep. 274; Bilby v. Stewart, 246
U. S. 255, 257, 62 L. ed. 701, 702, 38 Sup.
Ct. Rep. 264.
•4 Ij. ed.
Matty McLaughlin, Plaintiff in Error,
v. United States of America. [No.
591.]
Error to district court — crimiaal case.
In Error to the District Court of the
United States for the Northern District of
Ohio to review a commitment for con-
tempt of an injunction order.
Mr. Daniel L. Cruice for plaintiff in
error.
Solicitor General King and Mr. A. F.
Myers for defendant in error.
January 12, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of
(1) Toledo Newspaper Co. v. United
States, 247 U. S. 402, 410, 411, 62 L. ed.
1186, 1189, 1190, 38 Sup. Ct. Rep. 560;
Bessette v. W. B. Conkejr Co. 194 U. S.
324, 328-337, 48 L. ed. 997, 1002-1005,
24 Sup. Ct. Rep. 665; O'Neal v. United
States, 190 U. S. 36, 37, 38, 47 L. ed. 945,
946, 23 Sup. Ct. Rep. 776, 14 Am. Crim.
Rep. 303.
(2) Carey v. Houston & T. C. R. Co.
150 U. S. 171, 37 L. ed. 1042, 14 Sup.
Ct. Rep. 63; Maynard v. Hecht, 151 U.
S. 324, 38 L. ed- 179, 14 Sup. Ct. Rep.
353; Courtney v. Pradt, 196 U. S. 89,
49 L. ed. 398, 25 Sup. Ct. Rep. 208.
(3) Re Lennon, 160 U. S. 393, 399-
401, 37 L. ed. 1120, 1122, 1123, 14 Sup.
Ct. Rep. 123.
(4) Itow V. United States, 233 U. S.
581, 58 L. ed. 1102, 34 Sup. Ct. Rep.
699; Sugarman v. United States, 249
[542] U. S. 182, 184, 63 L. ed. 550, 551,
39 Sup. Ct. Rep. 191.
Ohio Valley Water Company, Plain-
tiff in Error, v. Ben Avon Borough
et al. [No. 128.]
In Error to the Supreme Conrt of the
State of Pennsylvania.
See same case below, 260 Pa. 289, 103
Atl. 744.
Messrs. George B. Gordon, William
Watson Smith, and John G. Buchanan
for plaintiff in error.
Messrs. Berne H. Evans, Leonard K.
Gniler, David L. Starr, and Albert G.
Liddell for defendants in error.
January 12, 1920. Per Curiam: Re-
stored to the docket for reargument. The
attention of counsel is directed to the
question of whether, under the state law,
the right to review the action of the
Commission was limited by the state
statutes to the particular remedy whicli
was here resorted to, or whether such
statutes left open the right to invoke
judicial power by wav of independent
405
542-514
SUPREHE COURT OF THE UNITED STATES.
Oct. Term,
suit for the purpose of redressing wrongs
d(>emcd to have resulted from action
taken by the Commission.
E. Gouge et al., Appellants, v. John M.
Hart, Collector of Internal Revenue,
et al. [No. 136.]
Appeal — from district court — jurisdiction
below.
Appeal from the District Court of the
United States for the Western District of
Virginia to review the dismissal, for want
of jurisdiction, of the bill in a suit to re-
move a cloud on title.
See same case below, 250 Fed. 802.
Messrs. J. S. Ashworth, John W. Price,
and C. J. St John for appellants.
Solicitor General King and Assistant
Attorney General Frierson for appellees.
January 19, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Courtney v. Pradt, 196 U. S.
89, 91, 49 L. ed. 398, 399, 25 Sup. Ct.
Rep. 2^8; Farmgia v. Philadelphia & R.
R. Co. 233 U. S. 352, 353, 58 L. ed. 997,
34 Sup. Ct Rep. 591 ; Louisville & N. R.
Co. V. [543] Western U. Teleg. Co. 234
U. S. 369, 371, 372, 58 L. ed. 1356, 1358,
34 Sup. Ct. Rep. 810; Male v. Atchison,
T. & S. F. R. Co. 240 U. S. 97, 99, 60 L.
ed. 544, 545, 36 Sup. Ct. Rep. 351.
Ex paste: In the Matter of James F.
Bishop, Administrator, etc., Petitioner.
[No. — , Original.]
Motion for leave to file petition for a
writ of prohibition of mandamus herein.
Mr. Harry W. Standidge for petitioner.
No appearance for respondent
January 19, 1920. Denied.
Harmon P. McKnight v. Unfted
States. [No. — .]
Application for leave to proceed in
forma pauperis for the purposes of a
petition for certiorari to and on appeal
from the District Court of the United
States for the District of Massachusetts.
January 20, 1920. Per Curiam: The
prayer to be allowed to proceed in forma
pauperis for the purpose of an applica-
tion for certiorari to review the judg-
ment below, as well as for the purpose
of an appeal asked to review a refusal
to release on habeas corpus, made to the
Chief Justice, and by him submitted to
the court for its action, us hereby denied.
406
EvANSviLLB db Bowling Qreen Packet
Company, Plaintiff in Error, v. M. M.
Logan et al., etc. [No. 152.]
Error* to state court — error or certiorari.
In Error to the Court of Appeab of
the State of Kentucky to review a decree
which, on a second appeal, affirmed a de-
cree of the Circuit Court of Franklin
County, in that state, dismissing the peti-
tion in a suit to enjoin the collection of a
franchise tax.
See same case below, on first appeal,
178 Ky. 716, 199 S. W. 1059; on re-
hearing, 179 Ky. 710, 201 S. W. 2; on
second appeal, 180 Ky. 216, 202 S. W.
492.
. Mr. J. P. Hobson for plaintiff in error.
Mr. William T. Fowler for defendants
in error.
January 26, 1920. Per [544] Curiam :
Dismissed for want of jurisdiction, upon
the authority of § 237 of the Judicial
Code, as amended by the Act of Septem-
ber 6, 1916 (39 Stat, at L. 726, chap.
448, Comp. Stat. § 1214, Fed. Stat. Anno.
Supp. 1918, p. 411), § 2.
V. & S. Bottle Company, Plaintiff in
Error, v. Mountain Gas Compakt.
[No. 176.]
Error to state court — ^Federal qneation.
In Error to the Supreme Court of the
State of Pennsylvania to review a decree
which afiKrmed a decree of the Court of
Common Pleas of Potter County, in that
state, dismissing the bill in a suit to en^
join a public service corporation from
shutting off the supply of gas to a eos-
tomer.
See same case below, 261 Pa. 523, 104
AU. 667.
Messrs. C. La Rue Munson and W. K.
Swetland for plaintiff in error.
Mr. Churchill Mehard for defendant in
error.
January 26, 1920. Per Curiam: Dis-
missed for want of jurisdiction, upon the
authority of California Powder Works v.
Davis, 151 U. S. 389, 393, 38 L. ed. 206,
207, 14 Sup. Ct. Rep. 350; Sayward v.
Denny, 158 U. S. 180, 183, 39 L. ed. 941,
942, 15 Sup. Ct. Rep. 777; Harding v.
Illinois, 196 U. S. 78, 80, 49 L. ed. 394,
25 Sup. Ct. Rep. 176; Seaboard Air Line
R. Co. V. Duvall, 225 U. S. 477, 481, 56
L. ed. 1171, 1174, 32 Sup. Ct. Rep. 790;
Cleveland & P. R. Co. v. Cleveland, 235
U. S. 50, 53, 59 L. ed. 127, 128, 35 Sup.
Ct. Rep. 21.
151 V. 8.
1919.
MEMORANDA CASES.
.-,44-:, j(;
Superior & PrarsBiRGn Copper Com-
pany, Plaintiff in Error, v. Steve
Davidovich, Sometimes Known as
Steve Davis. [No. 180.]
Constitutional law — due process of law —
equal protection of the laws — employ-
ers' liability.
In Error to the Supreme Court of the
State of Arizona to review a judgpnent
which affirmed a judgment of the Superior
Court of Cochise County, in that state, in
faifor of an employee in an action under
the state Employers' Liability Law.
See same case below, 19 Ariz. 402, 171
Pac. 127, 16 N. C. C. A. 801.
Mr. Cleon T. Knapp for plaintiff in
error.
Mr. Samuel H^rick for defendant in
error.
January 28, 1920. Per Curiam: Af-
firmed upon the authority of Arizona Em-
ployers' Liability Cases (Arizona Copper
Co. V. Hammer) 260 U. S. 400, 63 L. ed.
1058, 6 A.L.B. 1537, 39 Sup. Ct. Rep. 553.
[545] Oertrudb Minnhs Jones, Plaintiff
in Error, v. Max Hii/psoher. [No.
181.]
Error to state court — ^Federal question.
In Error to the Supreme Court of the
State of New Mexico to review a judg-
ment which reversed, with directions to
enter judgment for plaintiff, a judgment
of the District Court of Sierra County,
in that state, in favor of defendant in a
suit to quiet title.
See same case below, 23 N. M. 674, 170
Pac. 884.
Messrs. W. Martin Jones and Harry
P. Owen forplaintiff in error.
Messrs. Edward D. Tittma^m and
Charles T. Tittmann for defendant in
error.
January 26, 1920. Per Curiam: Dis-
naissed for want of jurisdiction upon the
authority of § 237 of the Judicial Code,
as amended by the Act of September 6,
1916 (39 Stat, at L. 726, chap. 448, Comp.
Stat. § 1214, Fed. Stat. Anno. Supp.
1918, p. 411), § 2.
BAEiTiMORB k Ohio Railroad Cohpaky,
Plaintiff in Error, v. John S. Coff-
LAHD. [No. 189.]
Error to state court — ^Federal question —
final judgment.
In Error to the Court of Appeals, Har-
rison County, Seventh AppeUate District
of the State of Ohio, to review a judg-
ment which reversed a judgment of the
Tourt of Common Pleas of Harrison
County, in that state, in favor of defend-
•4* li. oa.
ant in a suit by a shipper against a car-
rier to recover damages for injuries to
shipment.
Mr. D. A. HoUingsworth for plaintiff
in error.
Mr. Ernest Sidney McNamee for de-
fendant in error.
January 26, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of
(1) Schlosser v. Hemphill, 198 U. S.
173, 176, 49 L. ed. 1000, 1002, 25 Sup.
Ct. Rep. 654; Louisiana Nav. Co. v. Oys-
ter Commission, 226 U. S. 99, 101, 57 L.
ed. 138, 140, 33 Sup. Ct. Rep. 78 ; Gray's
Harbor Logging Co. v. Coats-Fordney
^gS^g Co. (Washington ex rel. Gray's
Harbor Log^ng Co. v. Superior Ct.) 243
U. S. 251, 255, 61 L. ed. 702, 705, 37
Sup. Ct. Rep. 295 ; Bruce v. Tobin, 246
U. S. 18, 19, 62 L. ed. 123, 124, 38 Sup.
Ct. Rep. 7.
(2) § 237 of the Judicial Code, as
amended by the Act of September 6, 1916
(39 Stat, at L. 726, chap. 448, Comp.
Stat. § 1214, Fed. Stat. Anno. Supp. 1918,
p. 411), §2..
Mountain States Telephonb & Telib-
GRAPH Company et al., Plaintiffs in
Error, v. City and County of Dbnvbl
[No. 596.]
Error to state court — Federal question.
In Error to the Supreme Court of the
State of Colorado to review a judgment
which reversed an order of the state Pub-
lic Utilities Commission, increasing tele-
phone rates.
See same case below, — Colo. — , 184
Pac. 604.
Messrs. Charles R. [546] Brock and
Milton Smith for plaintiffs in error.
Messrs. J. A. Marsh and Norton Mont-,
gomery for defendant in error.
February 2, 1920. Per Curiam: Dis-
missed for want of jurisdiction, upon the
authority of Pawhuska v. Pawhuska O^
& Gas Co. 250 U. S. 394, 63 L. ed. 1054,
P.U.R.1919E, 178, 39 Sup. Ct. Rep. 526.
See Chicago v. Dempcy, 250 U. S. 651,
63 L. ed. 1189, 40 Sup. Ct. Rep. 53, de-
cided November 10, 1919.
Ex parte: In the MATtER of J. E.
Broussard et al.. Petitioners. [No.
— , Original.]
Motion for leave to file petition for
Writ of Mandamus herein.
Messrs. A. D. Lipscomb and Frederick
S. Tyler for petitioners.
Mr. Horace Chilton for resp^ondent
Februarv 2, 1920. Denied.
407
.346-548
81 PKExME COURT OF THE UNITED STATES.
Oct. Tism»
Ex PARTE : In the Matter of the Unit-
ed States, Petitioner. [No. — , Orig-
inal.]
Motion for leave to file petition for
Writs of Mandamus and Prohibition.
Solicitor General King and Assistant
Attorney General Stewart for petitioner.
Messrs. J. E. B. Ciinningliam, R. M.
Gibson, and W. C. McKean for respond-
ent.
March 1, 1920. Denied.
ATiiANTic Coast Link Railroad Com-
pany, Appellant, v. United States.
[No. 163.]
Postoffice — railway mail service-compen-
sation.
Appeal from the Court of Claims to re-
view a judgment adverse to the claim of
a railway company for compensation for
railway mail service.
See same case below, 53 Ct. CI. 638.
Messrs. F. Carter Pope and Benjamin
Carter for appellant.
Assistant Attorney General Davis for
appellee.
March 1, 1920. Per Curiam : Affirmed
upon the authority of Atchison, T. & S.
P. R. Co. V. United States, 225 U. S. 640,
56 L. ed. 1236, 32 Sup. Ct. Rep. 702.
City of Fui/ton, Plaintiff in Error, v.
Public Service Commission op Mis-
souri, etc., et al. [No. 218.]
Error to state court — Federal question.
In Error to the Supreme [547] Court
of the State of Missouri to review a judg-
ment which affirmed a judgment of the
Circuit Court of Cole County, in that
state, affirming an order of the state Pub-
lic Service Conmiission, increasing tele-
phone rates.
See same ease below, 275 Mo. 67, 204
8. W. 386.
Messrs. Eugene C. Brokmeyer and John
Robison Baker for plaintiff in error.
Mr. James D. Lindsay for defendants
in error.
March 1, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Pawhuska v. Pawhuska Oil
A Gas Co. 250 U. S. 394, 63 L. ed. 1054,
P.U.R.1919E, 178, 39 Sup. Ct. Rep. 626.
See Chicago v. Dempcy, 250 U. B. 651,
63 L. ed. 1189, 40 Sup. Ct. Rep. 53, de-
cided November 10, 1919.
40ft
State op Missouri at thb Relation op
THE City op Sedalia, Plaintiff in
Error, v. Public Service Commis-
sion OP Missouri, etc. [No. 215.]
Error to state court — Federal question.
In Error to the Supreme Court of the
State of Missouri to review a judgment
which affirmed a judgment of the Circuit
Court of Cole County, in that state, af-
firming an order of the state Public Serv-
ice Commission, increasing water rates.
See same case below, 275 Mo. 201, 204
S. W. 497.
No brief was filed for plaintiff in
error.
Mr. James D. Lindsay for defendant in
error.
March 1, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Pawhuska v. Pawhuska Oil
& Gas Co. 250 U. S. 394, 63 L. ed. 1054,
P.U.R.1919E, 178, 39 Sup. Ct Rep. 526-,
Chicago V. Dempcy, 250 U. S. 651, 63
L. ed. 1189, 40 Sup. Ct. Rep. 53, decided
November 10, 1919.
Laporest L. Simmons, Plaintiff in Error,
v. Joe Duart. [No. 277.]
Error to state court — error or certiorari.
In Error to the Superior Court of the
State of Massachusetts to review a judg-
ment entered pursuant tp the mandate of
the Supreme Judicial Court of that state,
which affirmed a judgment of the Superior
Court in favor of plaintiff in a personal-
injury action.
See same case below, in supreme judi-
cial court, 231 Mass. 313, 121 N. E. 10.
Mr. Edward C. Stone for plaintiff in
error.
Mr. David R. Redovsky for defendant
in error.
March 1, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code,
as amended by the Act of September 6,
1916 (39 Stat, at L. 726, chap. 448, Comp.
Stat. § 1214^ Fed. Stat. Anno. Supp.
1918, p. 411), I 2.
Kosta Kism, Petitioner, v. State op
Calipornia. [No. — .]
On Petition for a Writ of Certiorari
to the Superior Court of the State of
California in and for the County of Con-
tra Costa.
Mr. Kosta Kisin in propria persona,
petitioner.
[5481 March 1, 1920. Per Curiam : The
motion for leave to proceed in forma pau-
peris in this case, and that the clerk of
this court be directed to file the petition
for a writ of certiorari herein, is denied.
251 r. 8.
1919.
MEMORANDA CASEa
548-650
Sl&TB C. Abchbr/ Administratrix of
Geoige F. Archer, Deceased, et al.,
Appellants, v. United States [No.
125] ; and United States, Appellant, v.
Kats C. Archer^ Administratrix of
George F. Archer, Deceased, et al.
[No. 220.]
Appeals from the Court of Claims.
See same case below, 53 Ct. CI. 405.
Solicitor G^eral King for appellant.
Messrs. T. M. Miller and Percy Bell
for appellees.
March 1, 1920. Judgment affirmed by
an equally divided court.
Union Paoifio Railroad Company, Pe-
titioner, V. Jambs J. £. Burke^ [No.
668.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of New York,
bee same ease below, 178 App. Div. 783,
166 N. Y. Supp. 100.
Messrs. D. Roger Englar and Oscar R.
Houston for petitioner.
Messrs. Arthur W. Clement and Wilson
E. Tipple for respondent.
November 17, 1019. Granted.
[549] Missouri, ELansas^ & Texas
Railway Cokpahy et al.. Plaintiffs in
Error, v: Hannah L. Zubeb. [No. 5Q2.]
Petition for a Writ of Certiorari here-
in.
Messrs. Joseph M. Bryson, Clifford L.
Jackson, Gh^rdmer Lathrop, J. R. Cot-
tingham, Samuel W. Hayes, C. S. Burg,
and AJezander Britton for plaintiffs in
error.
Mr. Charles W. Smith for defendant
VOL error.
December 15, 1919. Granted.
LiiiLiAN B. Pkicbleton, Petitioner, v.
• Illinois Commercial Men's Associa-
tion. [No. 625.]
Petition for a Writ of Certiorari to
the Supreme Court of the State of Illi-
nois.
See same case below, 289 111. 99, 124
N. E. 365.
Messrs. Harrison Musgrave and Wil-
liam S. Oppenheim for petitioner.
Mr. James G. Condon for respondent.
January 5, 1920. Granted.
1 Death of George F. Archer suggested,
and appearance of Kate C. Archer, as ad-
ministratrix of the o?tate of George F.
Archer, dcci^ased. as ji party, filed and en-
tered Jannary 13. 1020. on motion of coun-
Hcl for Kate C. Art-hcr.
€4 L. cd.
Yeb Won, Petitioner, v. Edward Whito,
as Commissioner of Immigration, Port
of San Francisco. [No. 634.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 170 C. C. A. 86,
258 Fed. 792.
Mr. W. E. Harvey for petitioner.
No appearance for respondent.
January 19, 1920. Granted.
Chicago, Milwaukee, & St. Paul Rail-
way Company, Petitioner, v. McCaull-
DiNSHORE Company. [No. 628.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 171 C. C. A. 561,
260 Fed. 835.
Messrs. H. H. Field, 0. W. Dynes, and
F. W. Root for petitioner.
No appearance for respondent.
Januaiy 26, 1920. Granted.
Western Union Telegraph Company,
Petitioner, V. Eugene E. Southwick.
[No. 638.]
Petition for a [550] Writ of Certio-
rari to the Court of Civil Appeals for
the Seventh Supreme Judicial District
of the State of Texas.
See same case below, — Tex. Civ. App.
-^, 214 S. W. 987.
Messrs. Rush Taggart and Francis
Raymond Stark for petitioner.
No appearance for respondent.
January 26, 1920. Ghranted.
Yazoo & Mississippi Valley Railroad
Company et al.. Petitioners, v. Nichols
& Company. [No. 655.]
Petition for a Writ of Certiorari to
the Supreme Court of the State of Mis-
sissippi.
See same case below, 120 Miss. 690, 83
So. 5.
Messrs. Charies N. Burch, H. D. Minor^
and Blewett Lee for petitioners.
Messrs. John W. Cutrer and Frederick
S. Tyler for respondent.
January 26, 1920. Granted.
Norfolk- Southern RxniROAD Company,
Petitioner, v. M. R. Owens. [No. 674.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of North
Carolina.
See same case below, 178 N. C. 325,
100 S. E. 617.
Messrs. W. B. Rodman and W. B. Rod-
man, Jr., for petitioner.
No appearance for respondent.
March 1, 1920. Granted.
40»
550-552
SUPREME COURT OF THE UNITED STATES.
Oct. Teim,
Birmingham Trust & Savings Com-
pany, as Trustee, etc., Petitioner, v.
United States op America. [No.
410.]
[551] Petition for a Writ of Certio-
rari to the United States Circuit Court
of Appeals for the Fifth Circuit.
See same case below, 169 C. C. A. 502,
258 Fed. 562.
Mr. John P. Tillman for petitioner.
Assistant Attorney General Brown for
respondent.
November 17, 1919. Denied,
Michael Tomasoo, Petitioner, v. Deijl-
WARE, Lackawanna, & Western Rail-
road Company. [No. 427.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same case below, 167 C.'C. A. 286,
256 Fed. 14.
Mr. George Clinton for petitioner.
Mr. Maurice C. Spratt for respondent.
November 17, 1919. Denied.
Armour & Company et al., Petitioners, v.
Texas & Pacific Railway Company et
al. [No. 466.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit.
See same case below, 169 C. C. A. 253,
258 Fed. 185.
Messrs. James Manson McCormick and
Francis Marion Etheridge for petitioners.
Mr. Thomas J. Freeman for respond-
ents.
November 17, 1919. Denied.
Fbey & SoK, Incorporated, Petitioner, v.
Welch Grape Juice Company. [No.
572.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fourth Circuit
See same case below, 171 C. C. A. 664,
261 Fed. 68.
Mr. Horace T. Smith for petitioner.
No appearance for respondent.
November 17, 1919. Denied.
410
Oregon-Washington Railroad db Navi-
gation Company, Petitioner, v. Grace
F. Fuller, as Administratrix, etc. [No.
561.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Oregon.
See same case below, 92 Or. 443, 181
Pac. 345; on rehearing, 93 Or. 180, 181
Pac. 991.
[552] Mr. Arthur C. Spencer for pe-
titioner.
No appearance for respondent.
November 17, 1919. Denied.
W. L. Bruce, as Administrator, etc., et al.,
Petitioners, v. William Tobin. [No.
530.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of South
Dakota.
See same case below, — S. D. — , 171
N. W. 603.
Mr. L. H. Salinger for petitioners.
No brief was filed for respondent.
November 17, 1919. Denied.
Kansas City Southern Railway Com-
pany, Petitioner, v. Robert W. Smith.
[No. 557.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Missouri.
See' same case below, — Mo. — , 213
S. W. 481.
Messrs. Samuel W. Moore and Cyrus
Crane for petitioner.
Mr. Alfred N. Gossett for respondent.
November 17, 1919. Denied.
Frank Shaffer, Petitioner, v. United
States of America. [No. 449.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Ninth Circuit.
See same case below, 167 C. C. A. 206,
255 Fed. 886.
Messrs. David A. Baer and John J.
Sullivan for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely.for respondent.
November 24, 1919. Denied.
Inter-Urban Railway Company et al..
Petitioners, v. Mrs. Fred Smith. [No.
563.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Iowa.
See same case below, — Iowa, — , 171
N. W. 134.
Messrs. Frank J. Hogan and James L.
Parrish for petitioners.
Mr. R. M. Haines for respondent.
November 24, 1919. Denied.
1919.
MEMORANDA CASES.
. 563, 654
[553] Basoom C. Thompson, Petitioner,
V. United States of America. [No.
598.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 169 C. C. A. 264,
258 Fed. 196.
Mr. P. H. CuUen for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Bidgely for respondent.
November 24, 1919. Denied.
Chioaoo, Dxtluth, & Gbobgian Bay
Transit Comprint, Owner of Steam-
ship South America, Petitioner, v.
Charles T. Moore et al. [No. 594.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Sixth Circuit.
See same ease below, 170 C. C. A. 483,
259 Fed. 507.
Mr. Charles E. Kremer for petitioner.
Mr. (George E. Brand ;for respondents.
December S, 1919. Denied.
Toledo & Cincinnati Railroad Company
et al., Petitioners, v. Equitable Trust
Company of New York et al. [No.
595.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Sixth Circuit.
See same case below, 170 C. C. A. 613,
259 Fed. 813.
Messrs. John Randolph Schindel and
Morison R. Waite for petitioners.
Mr. Murray Seasong^ood for respond*
ents.
December 8, 1919. Denied.
Louis Draoo, Petitioner, t. Central
Railroad CbMPANY of New Jersey.
[No. 583.]
Petition for a Writ of Certiorari to
the Circuit Court of Hudson County,
State of New Jersey.
See same case below, 93 N. J. L. 176,
106 Atl. 803.
Mr. Alexander Simpson for petitioner.
Mr. James D. Carpenter, Jr., for re-
spondent.
December 15, 1919. Denied.
•4 L. ed.
State op Washington, Petitioner, v.
Isaac Belknap. [No. 590.]
Petition for a Writ of Certiorari to the
[554] Supreme Court of the State of
Washington.
See same case below, 104 Wash. 221,
176 Pac. 6, 182 Pac. 570.
Messrs. L. L. Thompson and W. V.
Tanner for petitioner.
No appearance for respondent.
December 15, 1919. Denied.
Howard Brown, Petitioner, v. United
States op America. [No. 605.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 168 C. C. A. 653,
257 Fed. 703.
Mr. R. P. Henshall for petitioner.
Assistant Attorney (General Stewart and
Mr. Harry S. Ridgely for respondent.
December 15, 1919. Denied.
Reward Oil Company, Petitioner, ▼. Pe-
troleum Rectifying Company of
California. [No. 606.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Ninth Circuit.
See same case below, 171 C. C. A. 213,
260. Fed. 177.
Mr. William K. White for petitioner.
Messrs. Frederick P. Fish, John H.
Miller, and J. H. Brickenstein for re-
spondent.
December 15, 1919. Denied.
J. R. Smith and B. J. Ostrander, Pe-
titioners, V. The Steamer J. J. Hill,
etc., Pittsburgh Steamship Company,
Claimant. [No. 611.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Seventh Circuit.
See same case below, 171 C. C. A. 419,
260 Fed. 655.
Messrs. Harvey D. Gk)ulder and Charles
E. Kremer for petitioners.
Messrs. Hermon A. Kellej- and G. W.
Cottrell for respondent.
December 15, 1919. Denied.
411
554 556
SUPREME COURT OF THE UNITED STATES.
Oct.
Emma Pell Fetters, Petitioner, v. Unit-
ed States op America. [No. 616.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Ninth Circuit.
See same case below, 171 C. C. A. 178,
260 Fed. 142.
[555] Mr. Marshall B. Woodworth for
petitioner.
Assistant Attorney General Stewart and
Mr. Harry S. Ridgely for respondent.
December 15, 1919. Denied.
Will Maynard et al., Petitioners, v.
United Thacker Coal Company.
[No. 624.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fourth Circuit.
See same case below, 262 Fed. 478.
Mr. Ed. Noonchester for petitioners.
No appearance' for respondent.
December 15, 1919. Denied.
Arthur C. Gilson and Thomas J. Duffy,
Petitioners, v. United States op
America. [No. 505.]
Petition for a Writ of Certiorari to the
Unite4 States Circuit Court of Appeals
for the Second Circuit.
See same case below, 169 C. C. A. 528,
268 Fed. 588.
Mr. William A. Smith for petitioners.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respond-
ent.
December 22, 1919. Denied
Charles F. Goodspeed, Petitioner,* v.
Herbert E. Law. [No. 613.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Ninth Circuit.
See same case below, 171 C. C. A. 299,
260 Fed. 497.
Mr. Peter F. Dunne for petitioner.
Messrs. Frank D. Madison, E. S. Pills-
bury, Alfred Sutro, H. D. Pillsbury, and
Osoar Sutro for respondent.
December 22, 1919. Denied.
Ellsworth J. Trader, Petitioner, v.
United Statbs. [No. 617.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Third Circuit.
See same case below, 260 Fed. 923.
Messrs. H. Ralph Burton and Blaine
Mallan for petitioner.
Assistant Attorney General Stewart
and Mr. W. C. Ilerron for respondent.
December 22, 1919. Denicnl.
4ta
[556] Carlos L. Byron, Petitioner, v.
United States op America. [No. 604.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 170 C. C. A. 347,
259 Fed. 371.
Mr. Edward M. Comjns for petitioner.
Assistant Attorney General Nebeker
and Mr. H. L. Underwood for respondent
January 5, 1920. Denied.
Baltimore Dry Dock & Ship Buildiko
Company, Petitioner, v. New York &
Porto Bioo Steamship Compakt,
Owner and Claimant of the Steamship
Isabella, et al. [No. 626.]
Petition for a Writ of Certiorari to.
the United States Circuit Court of Ap-
peals for the Fourth Circuit
See same case below, 262 Fed. 485.
Mr. George Weems Williams for peti-
tioner.
Messrs. George Forbes and Ray Rood
Allen for respoi^dent New York i P. R.
S. S. Co.
Assistant Attorney General Spellacj
and Mr. J. Frank Staley for the United
States.
January 5, 1920. Denied.
HuRNi Packing Company, Petitioner, y.
Mutual Life Insurance Company of
New York. [No. 608.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 171 C. C. A. 405,
260 Fed. 641.
Mr. Deloss C. ShuU for' petitioner.
Messrs. Frederick L. Allen and Fred-
eric D. McKenney for respondent
January 12, 19i20. Denied.
Norma Mining Company, Petitioner, ▼.
Hugh Mackay. [No. 619.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 169 C. C. A. 634,
258 Fed. 914; on rehearing, 169. C. C. A.
672, 258 Fed. 991.
Mr. George Lull for petitioner.
Mr. Frederick A. Williams for re-
spondent.
January 12, 1920. Denied.
2ftl U. 6.
1019.
MEMORANDA CASES.
556-659
Wadb C. KiLMiBB, Trustee, etc.^ Petition-
er, V. First Savings akd Banking
Company. [No. 623.]
* [557] Petition for a Writ of Certiorari
to the United States Circuit Court of Ap-
peals for the Fourth Circuit.
See same case below, 262 Fed. 497.
Messrs. C. H. Syme and F. H. Stephens
for petitioner.
Mr. Clarence E. Martin far respondent.
January 12, 1920. Denied.
ViBOiNiA- Western Power Cokpany, Pe-
titioner, V, COMHONWEAI/FH OF VlRGIN-
lA AT THE Relation of the City of
Clifton Forge [No. 629]; Virginu-
WfiSTERN Power Company, Petitioner,
V. Commonwealth of Virginia at the
Relation op the City of Buena Vista
[No. 630]; Virginia- Western Power
Company, Petitioner, v. Common-
WRALTH OF VIRGINIA AT THE RELATION
OF THE Town of Covington [No. 631] ;
and ViRGiNU- Western Power Com-
pany, Petitioner, v. ComUonwealth
of Virginia at the Relation of the
Town op Lexington. [No. 632.]
Petitions for Writs of Certiorari to the
Supreme Court of Appeals of the State
of Virginia.
See same case below, — Va. — > 9
A.L.R. 1148, 99 S. E. 723.
Messrs. F. W. King and J. M. Perry
for petitioner.
Messrs. O. B. Harvey, Wm. A. Ander-
son, Fi^ok Moore, and 0. C. Jackson for
respondent.
January 12, 1920. Denied.
Emil Herman, Petitioner, v. United
States of America. [No. 639.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case helow, 168 C. C. A. 551,
257 Ffed. 601.
Mr. C. E. S. Wood for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respondent.
January 12, 1920. Denied.
Erie Railroad Company, Petitioner, v.
Jahes B. Connors. [No. 635.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Sixth Circuit.
See same case below, 261 Fed. 303.
Messrs. C. D. Hine and Paul J. Jones
for petitioner.
Mr. W. J. Kenealy for respondent.
January 12, 1920. Denied.
Edward Hines Lijmber Company, Peti-
tioner, V. American Car & Foundry
Company. [No. 637.]
Petition [558] for a Writ of Certiorari
to the United States Circuit Court of
Appeals for the Seventh Circuit.
See same case below, 262 Fed. 757.
Messrs. Jacob Newman, C. H. Poppen-
husen, Henry L. Stern, and Edward R.
Johnston for petitioner.
Mr. William D. McKenzie for respond-
ent.
January 12, 1920. Denied.
64 I<. ed.
Consolidated Window Glass Company,
Petitioner, v. Window Glass Ma-
chine Company et al. [Nos. 641 and
642]; Pennsylvania Window Glass
Company, Petitioner, v. Window Glass
Machine Company et al. [Nos. 643
and' 644] ; and EIane Glass Company,
Petitioner, v. Window Glass Machine
Company et al. [Nos. 645 and 646.]
Petitions for Writs of Certiorari to the
United States Circuit Court of Appeals
for the Third Circuit.
See same case below, 261 Fed. 362.
Messrs. Marshall A. Christy and
Charles Neave for petitioners.
Messrs. George H. Parmelee, Clarence
P. Byrnes, and Livingston Giftord for re-
spondents.
January 12, 1920. Denied.
Arctic Iron Company, Petitioner, v.
Cleveland-Cliffs Iron Company et
al. [No. 648.]
Petition for a Writ of Certiorari to
United States Circuit Court of Appeals
for the Sixth Circuit.
See same case below, 171 C. C. A. 611,
261 Fed. 15.
Messrs. Otto C. Sommerich and Edwin
M. Borchard for petitioner.
Messi*s. A. C. Duskin, Horace Andrews,
and W. P. Bel den for respondents.
January 12, 1920. Denied.
[559] W. F. Hallowell, Petitioner, v.
United States op America. [No. 600.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 165 C. C. A. 345,
253 Fed. 865 ; on rehearing, 169 C. C. A.
303, 258 Fed. 237.
Mr. William P. Richardson for peti-
tioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respond-
ent.
January 19, 1920. Denied.
41S
55^561
SUPREME COURT OF THE UNITED STATES.
Oct. Iebm,
American Guaranty Company, Petition-
er, V. American Fidelity Company.
[No. 660.]
Petition for a Writ of Certiorari to
the United States Circuit Conrt of Ap-
peals for the Sixth Circuit.
See same case below, 260 Fed. 897.
Messrs. Smith W. Bennett, Ralph £.
Westfall, and Hugh M. Bennett for peti-
tioner.
Mr. H. B. Arnold for respondent.
January 19, 1920. Denied.
Morris & Cummings Dredging Company,
Petitioner, v. Cornell Steamboat
Company. [No. 663.]
Petition for a Writ of Certiorari to
the United States Circuit Conrt of Ap-
peals for the Second Circuit.
I^ee same case below, 261 Fed. 897.
Meesrs. Chauncey I. Clark and (George
Noyes Slayton for petitioner.
Messrs. J. Parker Elirlin and Robert S.
Brskine for respondent.
January 19, 1920. Denied.
Jeono Qtjby How, Petitioner, v. Edward
White, as Commissioner of Immigra^
tion at the Port of San Francisco. [No.
664.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 170 C. C. A. 72,
268 F.ed. 618.
Mr. Jackson H. Ralston for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respondent.
January 19, 1920. Denied.
A'HiANTA Terminal Company, Petitioner,
V. United States op America. [No.
647.]
Petition for a Writ of Certiorari [560]
to the United States Circuit Court of Ap-
peals for the Fifth Circuit
See same case below, 171 C. C. A. 605,
260 Fed. 779.
Messrs. Mark Bolding and Arthur Hey-
man for petitioner.
Assistant Attorney General Frierson
for respondent.
January 26, 1920. Denied.
414
James G. Wilson, Trustee, etc.. Petition-
er, V. A. J. Benham et al. [No. 658.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 171 C. C. A. 658,
261 Fed. 62.
Mr. James G. Wilson for petitioner.
No appearance for respondents.
January 26, 1920. Denied.
Marie Equi, Petitioner, v. United States
OF America. [No. 666.]
Petition for a Writ of Certiorari to
the Utiited States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 171 C. C. A. 649,
261 Fed. 63,
Messrs. C. E. S. Wood and James E.
Fenton for petitioner.
Assistant Attorney Genertil Stewart
and Mr. Harry S. Ridgely for respond-
ent.
January 26, 1920. Denied.
Edwin Bietz, Petitioner, v. United
States of America. [No. 675.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 169 C. C. A. 19,
257 Fed. 731.
Mr. Louis W. Crofoot for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for responds
ent.
January 26, 1920. Denied.
J. E. Broussard et al.. Petitioners^ ▼.
Walter J. Crawford, Trustee. [No.
640.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fifth Circuit.-
See same case below, 171 C. C. A. 158,
260 Fed. 122.
Messrs. A. D. Lipscomb and Frederick
S. Tyler for petitioners.
Mr. Horace Chilton for respondent.
February 2, 1920. Denied.
[561] Continental Bank op New
York, Petitioner, v. Ezra P. Prentice,
Trustee, etc. [No. 662.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, 261 Fed. 858.
Mr. Myron T. Lesser for petitioner.
Mr. James N. Rosenberg for respond-
ent.
February 2, 1920. Denied:
251 r. 8.
1919.
MEMORANDA CASES.
661-66?
LuoiAV C. LAVOBTEBy Potitioiicr, V. Unit-
ed States ov Amtcbtoa. [No. 665.]
Petition 'for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fifth Circuit.
See same ease below, 171 C. C, A. 664,
261 Fed. 68.
Mr. Theodore Mack for petitioner.
Assistant Attorney General Frierson
for respondent
February 2, 1920. Denied.
Gulf & Ship IsiiAND Railroad Company
et al.| Plaintiffs in Error, v. Cabl
Boone, Robert Boone, et al., etc. [No.
669.]
Petition for a Writ of Certiorari to
the Supreme Court of the State of Mis-
sissippi.
See same ease below, 120 Miss. 632, 82
So. 335.
Messrs. B. E. Eaton and T. J. Wills
for plaintiffs in error.
Mr. George Anderson for defendants
in error.
February 2, 1920. Denied.
A. J. Paktan et al., Petitioners, v. Unit-
ed States op America. [No. 670.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 261 Fed. 515.
Mr. Thomas Mannix for petitioners.
Assistant Attorney General Stewart
and Mr. Hany S. Ridgely f or respondent.
February 2, 1920. Denied.
Clarence E. Reed, Petitioner, v.
Hughes Tool Company. [No. 659.]
Petition for a Writ of Certiorari to
[562] the United States Circuit Court
of Appeals for the Fifth Circuit.
See same case below, 261 Fed. 192.
Messrs. Melville Church, Edwin T.
Merrick, and William F. Hall for peti-
tioner.
Mr. Frank Andrews for respondent.
March 1, 1920. Denied.
Gutierrez Hermanos, Petitioner, v. In-
sular Collector of Customs. [No.
661.]
Petition for a Writ of Certiorari to the
Supreme Court of the Philippine Islands.
Messrs. David A. Baer and S. W.
O'Brien for petitioner.
Messrs. Dana T. Gallup, Laurence H.
Hedrick, and Charles Marvin for respond-
ent.
March 1, 1920. Denied.
•4 L. ed.
Wabash Railway Company, Petitioner,
V. Charlotte Sheehan, Administra-
trix, etc. [No. 673.]
Petition for a Writ of Certiorari to the
Appellate Court, Third District, of the
State of Dlinois.
See same case helow, 214 lU. App. 347.
Mr. Frederic D. McKenney for peti-
tioner.
Mr. Charles C. Le Forgee for respond-
ent.
March 1, 1920. Denied.
Postal Telegraph-Cable Company, Pe-
titioner, V. Bowman & Bull Company.
[No. 687.] .
Petition for a Writ of Certiorari to the
Supreme Court of the State of Illinois.
See same case helow, 290 IlL 155, 124
N. E. 85L
Messrs. Jacoh E. Dittus, Leon A.
Bereznia^, and W. W. Millan for peti-
tioner.
Mr. Edwin H. Cassels for respondent.
March 1, 1920. Denied.
Malleable Iron Range Company, Peti-
tioner, V. Fred E. Lee, as Administra-
tor, etc. [No. 688.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Seventh Circuit.
See same case helow, 263 Fed. 896.
Messrs. Thomas A. Banning [563]
and Samuel Walker Banning for peti-
tioner.
Messrs. Harry C. Howard and Fred L.
Chappell for respondent.
March 1, 1920. Denied.
Robert L. Frink, Petitioner, v. Okmul-
gee Window Glass Company. [No.
695.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Eighth Circuit.
See same case helow, 171 C. C. A. 195,
260 Fed. 159.
Mr. E. N. Huggins for petitioner.
Mr. William M. Matthews for respond-
ent.
March 1, 1920. Denied.
Herman M. Wartell, Petitioner, v.
Ralph S. Moorb, Trustee, etc. [No.
700.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Sixth Circuit.
See same case below, 261 Fed. 762.
Mr. James McNamara for petitioner.
Mr. Benjamin Vosper for respondent.
March 1, 1920. Denied.
415
567-509
Sl'PREMK CQURT OF THE UNITED STATES.
Oct. T:bem^
EvERGiiAOES Drainage Lkagle et aL, Ap-
pellants, V. Kapoleon B. Broward
Drainage District et aL [No. 216.]
Appeal from the District Court of the
United States for the Southern District
of Florida,
See same case below, 253 Fed. 246.
Mr. Clair D. Vallette for .appellants.
Mr. William Glenn Terrell for appel-
lees.
January 30, 1920. Dismissed with
costs on motion of counsel for the ap-
pellants.
Jost Lopez Garcia, Appellant, v. Orval
P. TowNSHEKD, Commanding Officer,
Camp Las Casas. [No. 223.]
Appeal from the District Court of the
United States for Porto Rico.
Mr. Francis H. Dexter for appellant.
No appearance for appellee.
[568] January 30, 1920. Dismissed
witb costs, on motion of counsel for the
appellant
State of New York, Complainant, v.
International Nickel Company.
[No. 14, Original.]
Messrs. F. La Guardia, Edgar Brom-
berger, Merton E. Lewis, and*Cortlandt
A. Johnson for complainant.
Messrs. W. J. Curtis and Ligon John-
son for respondent.
March 1^ 1920. Dismissed, per stipu-
lation.
State of New * York, Complainant, v.
Standard Oil . Compa:ny. [No. 15,
Original.]
Messrs. F. La Guardia, Edgar Brom-
berger, Merton E. Lewis, and Cortlandt
A. Johnson for complainant.
Mr. Chester O. Swain for respondent.
March 1, 1920. Dismissed, per stipu-
lation.
418
Wysong & Miles Company et aL, Plain-
tiffs in Error, v. Planters National
Bank of Richmond. [No. 477.]
In Error to the Supreme Court of the
State of North Carolina.
See sarnie case below, 177 N. C. 380, 99
J3. E. 199.
Mr. Thomas J. Jerome for plaintiffs
in error.
Messrs. Garland S. Ferguson, Jr., and
Ashbel B. Kimball for defendant in
eiror.
March 1, 1920. Dismissed, per stipu-
lation.
Wysong & Miles Company et aL, Plain-
tiffs in Error, v. Bank of North
America, Philadelphia, Pa. [No. 478.]
In Error to the Supreme Court of the
State of North Carolina.
See same case below, 177 N. C. 394^
99 S. E. 207.
Mr. Thomas J. [569] Jerome for
plaintiffs in error*
Messrs. Garland S. Fexguaon, Jr., and
Ashbel B. Kimball for defendant in error.
March 1, 1920. Dismissed, per stipu-
lation.
Fred S. Thompson, Appellant, v. Alkz-
ANDBR H. Nichols. [No. 612.]
Appeal from the District Court of the
United States for the District of Maine.
S^ same ease below, 264 Fed.' 973. *
Mr. Franklin H. Hough for appellant.
Mr. Charles Henry Butler foir appel-
lee.
March 1, 1920. Dismissed, per stipola-
tion. Mandate granted ' on ' mdtioii of
counsel for the defendant in eiror.
a&i u« s.
CASES
ARGUED AND DECIDED
IMTHB
SUPREME COURT
OF THB
UNITED STATES
▲1
OCTOBER TEBM, 1919.
Vol. 252.
•4 li. ed.
419-
\
THE DECISIONS
OF THB
Supreme Court of the United States
AT
OCTOBER TERM, 1 91 9.
JSrr BROTHERS DISTILLING COM-
PANY, Plff. in Err.,
T.
CITY OF CARROLLTON.
(See S. 0. Reporter's ed. 1^7.)
Error to Atate oonrt — Federal question
— TallcUty of state statute or aathor-
!• The mere objection to an exercise of
Authority under a Btate statute whose yalid-
i^ is not attacked cannot be made the basis
of a writ of error from the Federal Supreme
Court to a state court since the amendment
of September 6, 1916, to the Judicial Code,
I 237. There must be a substantial chal-
lenge of the validity of the statute or au-
thori^ upon the claim that it is repugnant
to the Federal Constitution, treaties, or
laws, so as to require the state court to de-
cide the question of validity in disposing of
the contention.
(For other eases, see Appeal and Error, 1645^
1710, In Digest Sup. Ct. A908.]
Error to state court — Federal ques-
tioii — raising by petition for re-
hearing.
2. The overruling by the highest court
of a state without opinion of a petition for
rehearing eannot be made the basis of a
writ of error from the Federal Supr
Court.
[For other cases, see Appeal and Error, 1292-
1310, In Digest Sup. Ct. 1908.]
[No. 108.]
Argued December 19, 1919. Decided March
1, 1920.
IN ERROE to the Court of Appeals of
the State of Kentucky, to review a
judgment whieh affirmed in part a judg-
ment of the Circuit Court of Carroll
County, in that state, in favor of a mu-
nicipality in a suit to recover taxes. Dis-
missed for want of jurndietion. *
See same case below, 178 Ky. 561, 199
S. W. 37.
The facts are stated in the* (pinion.
Mr. Haim Bruce amied the cause,
and, with Mr. George S. Winslow, filed
a brief for plaintiff in error:
The general rule in this court is that
a Federal question made for the first
time in a petition for a rehearing, after
delivery of an opinion by the supreme
court of the state, is not made in proper
time, unless the state court actually de-
X
iybte> .(hi the general subject of writs
of error from the United States Su-
preme Court to state courts — see notes
to Martin v. Hunter, 4 L. ed. U. S. 97;
Hamlin v. Western Land Co. 37 L. ed.
U. S. 267; Re Buchanan, 39 L. ed. U. S.
884; aad Kipley v. Illinois, 42 L. ed. U.
S. 99&
On what adjudications of state courts
can be brought up for review in the Su-
•4 li. ed.
preme Court of the United States by
writ of error to those courts — see note
to Apex Transp. Co. v. Qarbade, 62
L.R.A. 513.
On how and when questions must be
raised and decided in a state court in
order to make a case for a writ of error
from the Supreme Court of the United
States — see note to Mutual L. Ins. Co. v.
]Me(irew, G3 L.R.A. 33.
42t
3, 4
SUPREME COURT OF THE UNITED STATES.
OoT. Tebm,
cides the question, in whicli event this
court will take jurisdiction.
Leigh V. Green, 193 U. S. 79, 48 L. ed.
623, 24 Sup. Ct. Rep. 390; IMcKav v.
Kalyton, 204 U. S. 458, 51 L. ed. 56(j, 27
Sup. Ct. Rep. 346.
The reason for holding that a Federal
question made for the first time in t
petition for a rehearing is not generally
sufficient is that, as a general rule, new
grounds for decisions will not be al-
lowed to be presented in a petition for
a rehearing; and therefore if the state
court, in ovemding the petition for a
rehearing, is silent on the subject of a
Federal question, it will not be pre-
sumed that it passed on the Federal
question.
Texas & P. R. Co. v. Southern P. Co.
137 U. S. 48, 53, 34 L. ed. 614, 616, 11
Sup. Ct. Rep. 10.
But in Kentucky new grounds for de-
cision are allowed to be presented by a
petition for a rehearing, and if the
points thereby made are well taken, the
court will change its ruling.
Elsey V. People's* Bank, 168 Ky. 701,
182 S. W. 873.
It has often been held that where a
Federal question is distinctly made in
the court of original jurisdiction, and
where the court of last resort in the
state must necessarily have decided the
question in order to make the decision it
did make, this is sufficient to give this
court jurisdiction, even though the
state court was silent on the subject.
Steines v. Franklin County, 14 Wall.
15, 21, 20 L. ed. 846, 848.
Mr. A. £. Stricklett argued the cause,
and, with Messrs. J. L. Donaldson, J. A.
Donaldson, and G. A. Donaldson, filed a
brief for d^endant in error:
A Federal question raised fqf the first
time in a petition for rehearing after
judgment comes too late, and will not
be considered by the Federal Supreme
Court on a writ of error.
Chappell V. Bradshaw, 128 U. S. 132,
32 L. ed. 369, 9 Sup. Ct. Rep. 40 ; Loeber
V. Schroeder, 149 U. S. 574, 37 L. ed.
856, 13 Sup. Ct. Rep. 934.
Mr. Justice Day delivered the opinion
of the court :
The city of Carroll ton brought suit
against Jett Brothers Distilling Com-
pany to recover balances alleged to be
due as taxes upon distilled spirits be-
longing to the company, held in a bond-
ed warehouse in that city. The faxes
sued for were those for the year? 1907
to 1916, inclusive. It appears that dur-
422
ing those years the city assessor under-
took to assess for taxation the distilled
spirits in the bonded warehouse, and the
city taxes were paid as thus assessed.
This suit was brought to recover taxes
for the above-mentioned years upon
the theory that duripg that period the
spirits should have been valued by the
state board of valuation and £(8sessment,
as provided by the statutes of Kentucky.
Ky. Stat. §§ 4105, 4114. It was alleged
that the valuation by the city assessor
was without authority of law, by mis-
take^ and for a liuch lees snm than that
fixed for each of said years by the state
board. It was also alleged that the com-
pany had notice of the valuation fixed
by the state board ; that the city assessor
was without authority to assess spirits
in bonded warehouses; that the value
fixed by him was an inconsiderable sum,
and much less than that fixed by the
state board in accordance with the Ken-
tucky statutes. The Distilling Company .
took issue upon the petition. It pleaded
the original levies for the years in ques-
tion, and the payment of the taxes for
each and all of the said years. It plead-
ed that the whisky which it was sought
to tax under the new levy of 1915-1916
had been removed from the bonded ware-
house of the company, and was no
longer its property, and that it eould
no longer protect itself, as it oould have
done had the tax been levied while ' the
spirits were in its possession.
[4] In the nineteenth paragraph of
the answer a defense was set up upon a
ground of Federal right under the Con- •
stitution. It was averred that daring
all the years covered by the amended
petition it bad been the rule, custom,
habit, practice, and system in the city
of Carrollton to assess and cause to be
assessed the real estate therein af; an
average of not more than 40 per cent of
its fair cash value, and to assess and
cause to be assessed personal property
in that city at an average of not more
than 30 per cent of its fair cash value;
that the assessment made by the state
board upon which taxes were sought to
be recovered was made at 100 per cent
of the fair cash value of the whisky, and
that the attempt of the plaintiff to col-
lect the same was in violation of the
defendant's rights under the Constitu-
tion of the state of Kentucky and the
14th Amendment of the Constitution of
the United States. •
The circuit court gave judgment in
favor of the city for the amounts
claimed under the new levy of 1916,-gri\'ing
credit for the amounts paid under the
252 U. 6.
19M.
JETT BROTHERS DISTILLING CO. v. CAURULLTON.
4~r,
original levied for the preceding years.
The coifipany appealed to the court of
appeals of Kentucky, where the judg-
ment of the circuit court was affirmed.
178 Ky. 661, 199 S. W. 37. There was
no other reference to the Federal CoU'*
stitution than that contained in the
answer, so far as we have been able to
discover, and the court of appeals dealt
with the Federal question, deemed to be
before it, as follows (178 Ky. 566, 199
8. W. 37) :
*1t is further asserted that the recenj;
<^a8es of Greene v. Louisville A InteruiC
ban R. Co*, and Greene v. Tvouisville R.
Co. decided by the Supreme Court of
the United States and reported in 244
U. 8. 499, 61 L. ed. 1280, 37 Sup. Ct.
Rep. 673, Ann. Cas. 1917E, 88, uproot
the contention that the act is constitu-
tional, and hold that the state board of
valuation, and the 'city assessor and
board of supervisors, acting independent-
ly of each other, and tixing different
valuations [5] of the same property,
work a discrimination, inimical both to
the Federal and state Constitutions. In
this, however, appellant is in error. It
must be borne in mind that complaint is
only made of the assessment. The ware-
houseman had his remedy, in case of an
excessive or unfair valuation, by appear-
ing before the board of valuation and
assessment at the time he received no-
tice of the valuation fixed, and there
make complaint, as provided in § 4107,
Kentucky Statutes. This appellant
failed to xlo, but acquiesced in the assess-
ment by paying taxfes both to the county^
and state on the valuation fixed by the
state board. This being true, it cannot
be heard to complain now.^'
The ease is brought here by the al-
lowance of a writ of error. As the judg-
ment was rendered after the Act of Sep-
tember 6, 1916, chap. 448, 39 Stat, at L.
726, Judicial Code, § 237, Comp. Stat.
§ 1214, Fed. Stat. Anno. Supp. 1918,
p. 411, became effective, that act must
determine the right to have a review in
this court.
If the case can come here by writ of
error, it is because there was drawn in
question the validity of a statute or
authority exercised under the state on
the ground of their being repugnant to
the Constitution, laws, or treaties of the
United States. Before the petition for
rehearing, the contentions based upon
constitutional grounds, by the plaintiff
in error, were those embraced in the
nineteenth paragraph of the answer, to
which we have referred, and such as
were deemed to be before the court of
€4 L. ed.
appeals of Kentucky in the portion of
the opinion from which we have quoted.
Neither the answer nor the opinion of
the court of appeals shows that any
claim under the Federal Constitution
was made, assailing the validity of a
statute of the state, or of an authority
exercised under the state, on the ground
of repugnancy to the Federal Constitu-
tion. The answer, in the nineteenth
paragraph, set up discrimination beoause
of different valuations of the property
of others, claimed to violate [6] rights
secured by the 14th Amendment to the
Constitution of the United States. The
opinion of the court of appeals likewise
discussed the discriminatory action al-
leged by the plaintiff in error.
Drawing in question the validity of a
statute or authority as the basis of ap>-
pcllate review has long been a subject
of regulation in statutes gf the United
States, as we had occasion to point out
in United States ex rel. Champion Lum-
ber Co. V. Fisher, 227 U. S. 445, 450,
451, 57 L. ed. 591, 593, 594, 33 Sup. Ct.
Rep. 329. What is meant by the validity
of a statute or authority was discussed
by this court in Baltimore & P. R. Co.
V. Hopkins, 130 U. S. 210, 32 L. ed. 908,
9 Sup, Ct. Rep. 503, in which this court,
speaking by Mr. Chief Justice Fuller,
said: "Whenever the power to enact a
statute as it is by its terms, or is made
to read by construction, is fairly open
to denial and denied, the validity of such
statute is drawn in question, but not
otherwise.!' And the Chief Justice add-
ed, upon the authority of Millingar v.
Hartupee, 6 Wall. 258, 261, 262, 18 L.
ed. 829, 830, that the word "authority"
stands upon the same footing.
In order to give this court jurisdic-
tion by writ of error under amended
§ 237, Judicial Code, it is the validity
of the statute or authority which must
be drawn in question. The mere objec-
tion to an exercise of authority under a
statute whose validity is not attacked
cannot be made the basis of a writ' of
error from this court. There must be
a substantial challenge of the validity
of the statute or authority, upon a claim
that it is repugnant to the Federal Con-
stitution, treaties, or laws, so as to re-
quire the state court to decide the ques-
tion of validity in disposing of the con-
tention. Champion Lumber Co. v. Fish-
er, supra, and cases cited.
In the present case no such claim of
the invaliditv of a state statute or an-
thority was raised in a manner requir-
ing the court below to pass upon the
question in disposing of the rights as-
433
0. 7
SI PUKiU: CUUKT OF THE UNITED STATES.
Oct. Tom,
serted. As we have i^aid, whatever the
effect of a petition for rehearing, it came
too late [7] to make the overruling of
ity in the absence of an opinion, the
basis of review by writ of error. It fol-
lows that the allowance of the writ of
error in the present case did not rest
upon a decision in which was drawn in
question the validity of a statute of the
state, or any authority exercised under
it, because of repugnancy to the Federal
Constitution, and the writ of error must
be dismissed, and it is so ordered.
Dismissed.
HENRY FARNCOMB, Emma Donahue,
Henry Lorie, et al., Plffs. in Err.,
V.
CITY AND COUNTY OF DENVER et al.
(See S. C. Reporter's ed. 7-12.)
Brror to state court — following de-
cision below — construction of state
statute.
1. The Federal Supreme Court, when
dealing with the constitutionality of state
statutes challenged under U. S. Const., 14th
Amend., accepts the meanin|^ of such stat-
utes as construed by the highest court of
the state.
[For other cases, tee Appeal aDd Error, 2124-
2161, in Digest 8up. Ct. 1908.]
Constitutional law ^ due process oC
law — hearing on assessment for
public improvement.
2. The hearing by a board of supervis-
ors, sitting as a board of equalization, of all
complaints and objections respecting assess-
ments for public improvements, which was
provided for by a city charter, satisfies the
requirement of due process of law, although
such board apparently is given power only
to make recommendations to the board of
public works for relief, where such charter
provision is construed by the state courts
as not taking away the legislative power
and discretion of the board of supervisors
and vesting it in the board of pubUc works,
but as empowering the former qoju4 to pass
an assessing ordinance charging property
with the cost of an improvement whichy ac-
cording to its judgment, would be just and
equitable.
[For otber cases, see Constitutional Law. 746-
7tt3, Id Digest Sup. Ct 1908.J
[No. 110.]
Argued January 14, 1920. Decided March
1, 1920.
IN ERROR to the Supreme Court of the
State of Colorado to review a deeree
which affirmed a decree of the District
Court of the City and County of Denver^
in that state, dismissing a suit to enjoin
the enforcement of certain assessments for
public improvements. Aiftrmed.
■See same case below, — Colo. — , 171
Pac. 66.
The facts are stated in the opinion.
Mr. T. J. O'Donnall argued the eanse^
and, with Mr. J. W. Graham, filed a
brief for plaintiffs in* error:
An opportunity to be heard before a
body or tribunal which has no power to
decide does not afford due proeees of
law under the Federal Constitntion.
Davidson v. New Orleans, 96 U. 8. 97^
104, 24 L. ed. 616, 619; Pennoyer v.
Neff, 96 U. S. 714, 733, 24 L. ed. 665,
672; Holden v. Hardy, 169 U. 8. 366^
389, 42 L. ed. 780, 790, 18 Sup. Ct Rep.
383; Moss v. Whitzel, 108 Fed. 582;
Charles v. Marion, 100 Fed. 538; Em-
bree v. Kansas City & L. B. Road Dist.
240 U. S. 242, 251, 60 L. ed. ^24, 629,
36 Snp. Ct. Rep. 317; Shumaker 4 L.
Jurisdiction, Cyo. Law Diet. 1912;
Bigham v. Henrici, — Pa. — , 16 AtL
618; Bassick Min. Co. v. Schoolfield, 10
Colo. 46, 14 Pac. 65; Re Mahany, 29
Colo. 442. 68 Pac. 235; Bennett y. Wil-
son, 133 Cal. 379, 85 Am. St Bep. 2107,
65 Pao. 883; Central P. R. Co. y. Beard
Note. — ^Aa to state decisions and laws
as rules of decision in Federal courts —
see* notes to Clark v. Graham, 5 L. ed.
U. S. 334; Elmendorf v. Taylor, 6 L. ed.
U. S. 290; Jackson ex dem. St. John v.
Chew, 6 L. ed. U. S. 583; Mitchell v.
Burlington, 18 L. ed. U. S. 361; United
States ex rel Butz v. Muscatine, 19 L.
ed. U. 8. 490; Forepaugh v. Delaware,
L. 4 W. R. Co. 6 L.R.A. 508; and Snare
& T. Co. V. Friedman, 40 L.R.A.(N.S.)
380.
As to what constitutes due process of
law, generally — see notes to People v.
O'Brien, 2 L.R.A. 255; Kuntz v. Sump-
tion, 2 L.R.A. 655; Re Gannon, 5 L.R.A.
359; Ulman v. Baltimore, 11 L.R.A. 224;
424
Gilman v. Tucker, 13 L.R.A. 304; Pear-
son V. Yewdall, 24 L. ed. U. S. 436; and
Wilson V. North Carolina, 42 L. ed. U.
S. 865.
On notice and hearing required gen-
erally to constitute due process of law —
see notes to Kuntz v. Sumption. 2 LJLA.
657; Chauvin v. Valiton, 3 L.ILA. 194;
and Ulman v. Baltimore, 11 L.R.A. 225.
As to tax or assessment for public
improvements on highway — see note to
Graham v. Detroit, 44 L.R.A.(N.S.) 836.
On landowner's right • to notice and
hearing for assessment on a pubHe im-
provement— see note to Chicago^ M. &
St. P. R. Co. V. Janesville, ^ L.R.A.
(N.S.) 120L
252 V. 6.
1M9.
FARXCOMB V. CITY AND COUNTY OF DENVER.
3, >*
<»f Equalization, 43 Gal. 368; Alexander
▼. Archer, 21 Nev. 22, 24 Pac. 376;
Templeton v. Ferguson, 89 Tex. 47, 33
S. W. 332; Robertson v. State, lOd Ind.
79, 10. N. E. 682, 643 ; Herman, Estoppel,
§ 69; Santa Cruz Rook Pavement Co. v.
Broderiek, 113 Cal. 628, 45 Pac. 863.
The qnaetion presented was not de-
termined in Londoner v. Denver, 210 U.
S. 373, 52 L. ed. 1103, 28 Sup. Ct. Rep.
708.
The privileges and immunities of citi-
zens are abridged by taking private
property for public use without com-
pensation.
Norwood V. Baker, 172 U. S. 269, 43
L. ed. 443, 19 Sup. Ct. Rep. 187 ; Cowley
V. Spokane, 99 Fed. 840; Zehnder v.
Barber Asphalt Paving Co. 106 Fed.
103; New York L. Ins. Co. v. Prest, 71
Fed. 817; St. Louis & K. C. Land Co. v.
Kansas City, 241 U. S. 419, 429, 60 L.
«d. 1072, 1079, 36 Sup. Ct. Rep. 647;
Charles v. Marion, 100 ^ed. 538.
Mr. James A. Marsh argued the cause,
and, with Mr. Norton Montgomery, filed
a brief for defendants in error:
The construction of the highest ju-
dicial tribunal of the state forms a part
of its statute law as much as an enact-
ment of the legislature.
Castillo V. MeConnico, 168 U. S. 674,
680, 42 L. ed. 622, 624, 18 Sup. Ct. Rep.
229; St Louis & K. C. Land Co. v.
Kansas City, 241 U. S. 419, 427, 60 L.
«d, 1072, 1078, 36 Sup. Ct. Rep. 647;
Baltimore Traction Co. v. Baltimore
Belt R. Co. 151 U. S. 137, 38 L. ed. 102,
14 Sup. Ct. Rep. 294; Green v. Neal, 6
Pet. 291, 8 L. ed. 402; Paulsen v. Port-
land, 149 U. S. 30, 37 L. ed. 637, 13 Sup.
Ct. Eep. 760.
In this case there were two forums
provided by the charter, either of which
oould have granted relief against the ob-
jections complained of, but as no objec-
tions were filed before either forum,
plaintiffs are not now in a position to
seek relief in equity and claim that due
procesB of law was not afforded.
Voigt ▼. Detroit, 184 U. S. 115, 122,
46 L. ed. 459, 462, 22 Sup. Ct Rep. 337;
Goodrich v. Detroit, 184 U. S. 432, 438,
46 L. ed. 627, 631, 22 Sup. Ct. Rep. 397;
Londoner v. Denver, 210 U. S. 373, 52
L. ed. 1103, 28 Sup. Ct. Rep. 708; Paul-
sen V. Portland, 149 U. S. 30, 37 L. ed.
637, 13 Sup. Ct Rep. 760; Spalding v.
Denver, 33 Colo. 176, 80 Pac. 126.
[S] Mr. Justice Day delivered the
4>piiikm of the court:
Suit was brought in the district court
«4 Ij. ed.
of the city and county of Denver by the
plaintiffs in error to enjoin the city from
enforcing an assessment ordinance
passed to raise the * necessary means to
pay for certain park improvements and
the construction of boulevards and
streets in the city of Denver.
The charter of the citv of Denver
was before this court in Londoner v.
Denver, 210 U. S. 373, 52 L. ed. 1103,
28 Sup. Ct. Rep. 708. Sections 298 and
299 of the charter provided that the
board of local improvements shall pre-
pare a statement showing the costs of
improvements, interest, cost of collec-
tion, etc., and apportion the same up-
on each lot or tract of land to be
assessed, shall cause the same to be cer-
tified by the president, and filed in the
office of the clerk. The clerk shall
then, by advertisement in some news-
paper of general circulation, published
in the city and county, notify the own-
ers of the real estate to be assessed, and
all persons interested, that said improve-
ments have been or will be completed,
and shall specify the whole cost of the
improvement, and the share so appor-
tioned to each lot, or tract of land, or
person, and any complaint or objection
that may be made in writing by such per-
sons or owners to the board of super-
visors, and filed with the clerk within
sixty days from the first publication of
such notice, shall be heard and deter-
mined by the board of supervisors at its
first regular meeting after sixty days,
and before the passage of any ordinan<^e
assessing the cost of the improvements.
Section 300 provides : "At the meeting
specified in said notice, or any adjourn-
ment thereof, the board of supervisors,
sitting s^s a board of equalization, shall
hear and determine all such complaints
and objections, and may recommend to
the board of public works any modifi-
cation of their apportionments; the
board of public [9] works may there-
upon make such modifications and
changes as to them may seem equitable
and just, and may confirm the first ap-
portionment and shall notify the council
of their final decision; and the council
shall thereupon, by ordinance, assess
the costs of said improvements against
all the real estate in said district and
against such persons, respectively, in
the proportions above mentioned."
Section 328 of the charter provides:
''When the cost of any such park site
or parkway is definitely determined,
the park commission shall prepare, cer-
tify and file with the clerk a statement
showing the cost thereof as required in
425
SUPREME CX)rRT OF THE UNITED STATES.
Oct. TBftM,
Lawrence v. Grand Rapids, 166 Mich.
144, 131 N. W. 581; Mt. St. Mary's
Cemetery v. MuUins, 248 U. S. 501/505,
63 L. ed. 383^ 387, 39 Sup. Ct. Rep. 173.
The findings of fact made by the trial
court are conclusive, and may not be
aided by additional findings. If they
are insuMcient to support the judgment
of the trial court, that judgment should
be reversed.
Downing v. Bourlier, 21 Mo. 150; Al-
lison ▼. Darton, 24 Mo. 343; Abeles v.
Pillman, 261 Mo. 376, 168 S. W. 1180;
Sun Mut. Ins, Co. v. Ocean Ins. Co. 107
U. S. 485, 600, 27 L. ed. 337, 342, 1
Sup. Ct. Rep. 582; Parleigh v. Cadman,
159 N. Y. 175, 53 N. E. 808; 38 Cyc.
1954, 1964, 1968.
The conclusions of law upon which
the trial court based its judgment were
erroneous, and are g^round for the re-
versal of that judgment —
(1) Because the omission of the park
property from the sewer district war-
ra,nted a finding of fact that the mem-
bers of the municipal assembly were
actuated by motives which constitute
legal fraud; and
(2) Because the motives of the munic-
ipal assembly were inmiaterial.
Soon Hing v. Crowley, 113 U. S. 703,
710, 28 L. ed. 1145, 1147, 6 Sup. Ct. Rep.
730; Brown v. Cape Girardeau, 90 Mo.
383, 59 Am. Rep. 28, 2 S. W. 302;
Kansas City ▼. Hyde, 196 Mo. 507, 7
L.R.A.(N.S.) 639, 113 Am. St. Rep. 766,
96 S. W. 201; Kerfoot v. Chicago, 195
lU. 232, 63 N. E. 101; Potter v. Mc-
Dowell, 31 Mo. 69.
The refusal of division No. 2 of the
supreme court of Missouri to transfer
this cause to the court en banc was
arbitrary, and violated § 1 of the 14th
Amendment to the Constitution of the
United States.
Moore v. Missouri, 159 U. S. 673, 40
L. ed. 301, 16 Sup. Ct. Rep. 179.
The action of said division No. 2 was
the action of the state, within the pur-
view of the Federal Constitution, and,
if arbitrary, violated said § 1 of the
14th Amendment.
Ex parte Virginia, 100 U. S. 339, 25
L. ed. 676, 3 Am. Crim. Rep. 547 ; Home
Teleph. & Teleg. Co. v. Los Angeles, 227
U. S. 278, 289, 57 L. ed. 510, 515, 33 Sup.
Ct Rep. 312; Hovey v. Elliott, 167 U. S.
409, 417, 418, 42 L. ed. 215, 221, 17 Sup.
Ct. Rep. 841; Ex parte Nelson, 251 Mo.
IH 157 S. W. 794.
Moreover, if no Federal question had
been involved, the supreme court of
Missouri would have had no jurisdiction
of this case.
429
Barber Asphalt Paving Co. v. Hezel,
138 Mo. 228, 39 S. W. 781; Smith v.
Westport, 174 Mo. 394, 74 S. W. 610;
Piatt V. Parker- Washington Co. 235 Mo.
467, 139 S. W. 124.
And if the judgment of the supreme
court was rendered without jurisdiction,
then that, in itself, constituted a taking
of property without due process of law.
Scott V. McNeal, 154 U. S. 34, 45, 46,
38 L. ed. 896, 901, 902, 14 Sup. Ct Rep.
1108; Pennoyer v. Neff, 95 U. 8. 714,
733, 24 L. ed. 565, 572; Lent v. TiUson,
140 U. S. 316, 331, 35 L. ed. 419, 426,
11 Sup. Ct Rep. 825; Old Wayne Mut
Life Asso. v. McDonongh, 204 U. S. 8,
15, 51 L. ed. 345, 348, 27 Sup. Ct. Rep.
236.
Mr. mckman P. Bodgers argued the
cause; and, with Messrs. A. R. Taylor
and Howard Taylor, filed a brief for de-
fendant in error:
In the absence of evidence of fraud,
oppression, or palpable injustice, the
exercise of the discretion confided to the
city to pass ordinances establishing sew-
ers and sewer districts is conclusive, and
not subject to collateral attack.
McGhee v. Walsh, 249 Mo. 286, 155 S.
W. 445; Heman v. Allen, 156 Mo. 543,
57 S. W. 559.
If there was connection made with
this sewer after the sewer was con-
structed and tax bill issued, it in no
manner affects the validity of the tax
bill.-
Heman v. Schulte, 166 Mo. 417, 66 S.
W. 163; Prior v. Buehler & C. Constr.
Co. 170 Mo. 451, 71 S. W. 205; McGhee
v. Walsh, and Heman v. Allen, supra.
The 14th Ameudment means that no
person or class of persons shall be de-
nied the same protection of the laws
which is enjoyed by other persons or
other classes in the same place and un-
der like circumstances.
Missouri v. Lewis (Bowman v. Lewis)
101 U. S. 22, 25 L. ed. 989.
But it was not designed to interfere
with the power of the state to protect
the lives, liberty, or property of its citi-
zens, nor with the exercise of that pow-
er in the adjudication of the oouris of
the state in administering the process
provided by the law of the state.
Re Converse, 137 U. S. 624, 34 L. ed.
796, 11 Sup. Ct. Rep. 191.
The refusal of the supreme court of
Missouri to gnmt a rehearing en bftiie is
not a denial of due process of law when
an opinion of a division is adverse to a
claim made under the Federal Consti-
tution, but is correct
9ftt U. 8.
1919.
GOLDSMITH v. PHKNDEKGAJST CONSTULCXION CO.
14*16
State V. Moore, 121 Mo. 514, 42 Am.
St. Bep. 542, 26 S. W. 346, affirmed in
159 U. S. 675, 40 L. ed. 302, 16 Sup. Ct.
Bep. 179.
Mr. Justice Day delivered the opinion
of the court:
Suit was brought in the circuit court
of the city of St. Louis by the Con-
struction Company to recover upon a
special tax bill issued by the city of
St. Louis for the construction of the
sewer in what is known as Manchester
Road Sewer District No. Ill, city of
St. Louis. The Construction Company
recovered a judgment on the lax bills
against the plaintiffs in error, who were
owners of abutting property. Upon ap-
peal to the supreme court of Missouri
the judgment below was affirmed upoil
hearing and rehearing. 273 Mo. 184,
201 S. W. 354.
The record discloses that the sewer,
for the construction of which the assess-
ment was made, was constructed in a
certain boulevard known as Kingshigh-
way boulevard. On the east of this
boulevard, and fronting on the same for
a considerable distance, is a tract be-
longing to the city, and known- as Tow-
er Grove park; this property was not
assessed for the building of the sewer.
This omission is alleged to be of such an
arbitrary and discriminatory character
as to render the ordinance making the
assessment void as a deprivation of Fed-
eral constitutional rights [15] secured
to the plaintiffs in error by the due
process and equal protection clauses of
the 14th Amendment.
The oirenit court made findings of
fact in which it found that there was
00 evidence .that the municipal assembly
of tli^e city of St. Louis, in passing the
ordinances in question, was actuated by
motives of fraud or oppression; that
such . motives, if any, must be inferred
solely from the failure to incorporate
parcels or tracts of land in the sewer
district, the topography of which might
render it necessary or expedient to
then, or thereafter, drain the water or
sewage therefrom into the sewer. The
court recites the nature of the title of
the tract known as Tower Grove park.
It appears that the park had been
conveyed to the city, the grantor re-
serving therefrom a strip 200 feet wide,
surrounding the same. The court found
that the western front of the tract thus
conveyed to the city included the west-
em gate or entrance of the park and
the strip of 200 feet in width, surround-
ing the park proper, and embraced a
64 I/, ed.
totnl frontage along Kingshighway of
about 1,470 feet, and that noqe of the
property included -within Tower Grove
park and the strip of 200 feet in width,
reserved for residence property, was
included within the taxing district for
such sewer construction. The court also
finds that witii the exception of an area
composing some 300 feet, each way,
located at the southwestern comer of
the park, the western part of the park
for a distance of some 600 feet east of
Kingshighway is of an elevation higher
than I^ngshighway between Arsenal
street and Magnolia avenue, and the nat-
ural drainage thereof is, in the main,
westwardly towards Kingshighway, and
that before the building of the sewer
in question surface water and hydrants
drained from said part of the park
through drains and gutters under said
street and sidewalk to a point west of
Kingshighway. That whatever drains
for surface and hydrant water existed in
said western and northwestern [16] por-
tion of the park led into that section of
the sewer in question, situated in Kings-
highway, adjoining the park; but the
court finds that it is unable to deter-
mine from the evidence as to when such
connection, with said sewer was accom-
plished, or by whom. The court also
finds that at the time the work in
question was performed, it was provid-
ed by the revised ordinances of the city
of St Louis that water draining from
roofs of houses should not flow ov^r
sidewalks, but should be conducted
through pipes to a sewer, if available,,
and ^ not, then through pipes below
the sidewallc, and into the open gutter
of the street. The court does not find
from the- evidence that it was not pos-
sible or feasible to drain the surface
water falling upon or collected from that
portion of Tower Grove park, and the
reserved strip of 200 feet, which is high-
er than and inclined towards Kingshigh-
way, from the surface of said land, in
any other manner than through, or by the
district sewer constructed in Kings-
highway, and that sewage from houses
upon said reserved strip, if any ther^
ever be, cannot be disposed of by means
other than said sewer.
As conclusions of law the court finds
that it was within the powers of the
municipal assembly, in the passage of
the ordinances establishing the sewer
district wherein the work sued for was
performed, to embrace and designate
therein only such real estate as, in their
judgment, should be benefited thereby;
that the discretion vested in the munic-
420*
1^18
SUPREME COURT OF THE UNITED STATM.
Oct. Teem,
ipal legislature was not subject to re-
view by this court, unless the powers of (
the legislature were affirinaiiTely shown
to have been exercised fraudulently, op-
pressively, or arbitrarily. And the
court found that the mere omission of
the lands from said district which
might, at one time, be reasonably in-
cluded in the sewer district in question,
or as to which it is reasonable to as-
sume that the same would be more con-
veniently served by the sewer in ques-
tion than any other, did not justify
[17] the court in concluding that the
municipal assembly, in omitting said
lands from the sewer district in ques-
tion, was actuated by motives of fraud
or oppression; or that the prima facie
liability of defendants, established by
the certified special tax bill, is thereby
rebutted and overturned.
On the facts and conclusions of law
the judgment was affirmed by the su-
preme court of Missouri.
I The establishment of sewer districts
was committed to local authorities by
the charter of the city of St. Louis,
which had the force and effect of a stat-
ute of the state. That charter provided
that, within the limits of the district
prescribed by ordinance reconmiended
by the board of public improvements,
the municipal assembly might establish
^wer districts, and such sewers may be
-connected with a sewer of any class,
'^r with a natural course of drainage.
"See Woemer's Revised Code of St.
Louis, 1907, p. 410, § 21.
|. The mere fact that the court found
that a part of Tower Grove park might
ihave been drained into the sewer, it was
field by the Missouri courts, under all
the circumstances, did not justify judi-
cial interference with the exercise of
the discretion vested in the municipal
authorities. The court commented on
the fact that it was not shown that any
considerable amount of surface water
was conducted away from the park by
this sewer. Much less do such findings
afford reason for this court, in the exer-
cise of its revisory power under the
'Federal Constitution, to reverse the ac-
tion of the state courts, which fully
considered the facts, and refused to in-
validate the assessment.
A9 we have frequently declared, this
court only interferes with such assess-
ments on the ground of violation of con-
stitutional rights secured by the 14th
Amendment, when the action of the
«tate authorities is found to be nrbi-
trarA', or wholly unequal in operation
^ndolTect. [18] We need but reter to
4.10
some of the cases in which this principle
has been declared: Embree v. Kansas
City & L. B. Road Dist. 240 U. S. 242, 60
L. ed. 624, 36 Sup. Ct. Rep. 317; With-
nell V. Ruecking Constr. Co. 249 XJ. S.
63, 63 L. ed. 479, 39 Sup. Ct. Rep. 200;
Hancock v. Muskogee, 250 U. S, 454,
63 L. ed. 1081, 39 Sup. Ct. Rep. 528;
Branson v. Bush, decided December 22,
1919, 251 U. S. 182, ante, 215, 40 Sup.
Ct. Rep. 113.
We find BO merit in the contention
that a Federal constitutional right was
violated because of the refusal' to trans-
fer the cause from the division of the
supreme court of Missouri, which heard
it, to the court in banc. See Moore v.
Missouri, 159 U. S. 673, 679, 40 L. ed.
301, 303, 16 Sup. Ct. Rep. 179.
Affirmed.
CHICAGO, ROCK ISI^ND, A PACIFIC
RAILWAY COMPANY and A. J. Carney.
Petitioners,
V.
FRED WARD.
(See S. C. Reporter's ed. 18-23.)
Master and servant — assumpUon of
risk — employers' liability.
1. Assumption of risk is a defense to
which a defendant sued under the Federal
Employers' Liability Act is entitled, where
the injury was caused otherwise than by
the violation of some statute enacted to
promote the safety of employees.
[For other cases, see Mastt^r and SerTtnt, II.
b, in Digest Sup. Ct. 190S.]
3Iaster and servant — assumption of
risk — extraordinary hazard — em-
ployers* liability.
2. So far aa extraordinary hazards
are concerned, an interstate' railway em-
Eloyee may assume that the employer and
is agents have exercised proper care with
respect to his safety until notified to the
contrary, unless the want of care and dan-
gers arising from it are so obvious that an
ordinarily careful person, under the circum-
stances, would^ observe and appreciate them.
[For other cases. Bee Muster aud Servant.
II. b, In Digest Sup. Ct. 1908.]
-- — ■
Note. — Generally, as to servant's as-
sumption of risk — see notes to Pidcock
V. Union P. R. Co. 1 L.R.A. 131; Foley
V. Pettee Maeh. Works, 4 L.R.A. 61;
Howard v. Delaware & H. Canal Co. 6
L.R.A. 76; Hunter v. New York, 0. &
W. R. Co, 6 L.R.A. 246; Georgia P. R.
Co. V. Dooly, 12 L.R.A. 342; Kehler v.
Schwenk, 13 L.R.A, 374; and Southern
P. Co. V. Seley, 38 L. ed. U. S. 391.
On the constitutionality, application,
and effect of the Federal Employer?'
252 U. S.
1019.
CHICAGO, U. I. & P. R. CO. v. WARD.
Master and servant — assumption of
risk — eniployer^i* liability.
3. llie Federal Employerfi' Liability
Act places a coeraployee'b negli^nce, ^\'hen
it is the ground oi the action, in the same
relation as that *of the employer upon, the
matter of the assumption of risk.
[For other casen. see Ma«tor and Servant, 11.
b, la Digest Sup. Ct. 1908.]
Master and servant — assamption of
risk — extraordinary hazard.
4. A switchman riding on a cut of
freight cars whicli he was to check by ap-
plying a brake when these cars should oe
cut off from the engine does not assxunc the
risk of sudden precipitation from the front
end of a car by the abrupt checking' result-
ing from the failure of the engine foreman
to make the disconnection at the proper
time.
tFor other casos, sec Master and Servant, II.
b, in Digest Sap. Ct. 1908.]
Appeal — harmless error -* instruc-
tions.
6. The inaccuracy of a charge on the
assumption of risk could have worked no
barm to the defendant where the situation
did not make the doctrine of assumed risk
a defense to the action.
[For other cases, see Appeal and Error, VIII.
m, 4, a, in Digest Sup. Ct. 1908.]
Appeal — harmless error — instrao
tions.
6. A charge that contributory negli-
gence would prevent a recovery under the
Federal Employers* Liability Act could not
have prejudiced the defendants, being more
favorable to them than they were entitled
to.
[Fw other cases, see Appeal and Error, VIII.
m, 4, a. In Digest Sup. Ct. 1908.]
Jury — infringement of right — non-
unanimous Terdict — employers' lia-
bility.
7. State courts, when enforcing rights
under the Federal Employers' Liability Act,
may give effect to a local practice permit-
ting a less than unanimous verdict.
(For other eases, see Jury, I. d, 2, la Digest
Sup. Ct 1908.]
[No. 198.]
Submitted January 28, 1020. Decided
March 1, 1920.
ON WRIT of Certiorari to the Suprane
Court of the State of Oklahoma to
review a judgment which affirmed a judg-
ment of the Superior Court of Pottawa-
tomie County, in that state, in favor of
plaintiff in a personal-injury action
brought under the Federal Employers'
Liability Act. Affirmed.
See same case below, — Okla. — , 173
Pac. 212.
The facts are stated in the opinion.
Messrs. B. J. Eoberts,* W. H. Moore,
Thomas P. Littlepage, Sidney F. Talia-
ferro, and W. F. Dickinson submitted
the cause for petitioners. Messrs. C. 0.
Blake and J. E. Du Mars were on the
brief :
The proof is sufficient to bring the
case under the Federal Employers' Li-
ability Act.
Seaboard Air Line R. Co. v. Duvall,
225 U. S. 476, 482, 56 L. ed. 1171. 1174,
32 Sup. Ct. Rep. 790; Missouri, K. & T.
R. Co. V. Wulf, 226 U. S. 570, 57 L. ed.
355, 33 Sup. Ct. Rep. 135, Ann. Cas.
1914B, 134; Troxell v. Delaware, L. &
W. B. Co. 227 U. S. 434, 57 L. ed. 586,
33 Sup. Ct. Rep. 274; St. Louis, S. F.
& T. R. Co. v. Scale, 229 U. S. 156, 161,
57 L, ed. 1129, 1134, 33 Sup. Ct. Rep.
651, Ann. Cas. 1914C, 156; Taylor v.
Taylor, 232 U. S. 365, 370, 68 L. ed. 639,
641, 34 Sup. Ct. Rep, 350, 6 N. C. C. A.
436; Grand Trunk Western R. Co. v.
Lindsay, 233 U. S. 42, 49, 58 L. ed. 838,
842, 34 Sup. Ct. Rep. 581, Ann. Cas.
1914C, 168; Wabash R. Co. v. Hayes,
234 U. S. 88, 90, 58 L. ed. 1226, 1230,
34 Sup. Ct. Rep. 729, 6 N. C. C. A. 224;
Central Vermont R. Co. v. White, 238 U.
S. 507, 513, 59 L. ed. 1433, 1437, 35 Sup.
Ct. Rep. 865, Ann. Cas. 1916B, 252; At-
lantic Coast Line R. Co. v. Mims, 242
U. S. 532, 61 L. ed. 476, 37 Sup. Ct. Rei>.
188, 17 N. C. C. A. 349.
Plaintiff assumed the risk of the in-
jury he received as one incident to the
service in which he was engaged.
Seaboard Air Line R. Co. v. Horton,
233 U. S. 492. 58 L. ed. 1062, L.R.A.
1915C, 1, 34 Sup. Ct. Rep. 635, Ann. •
Cas. 1915B, 475, 8 N. C. C. A. 834; Chi-
cago, R. L & P. R. Co. V. Houston, 95
U. S. 697, 24 L. ed. 542,
Plaintiff assumed the risk of injury as
Liability Act — see notes to Lamphere v.
Oregon R. & Nav. Co. 47 L.R.A.(N.S.)
38, and Seaboard Air Line R. Co. v.
Horton, L.R.A.191?C, 47.
On volenti non fit injuria as defense
to action by injured servant — see note
to O'Malev v. South Boston Gaslight*
Co. 47 L.R.A. 161.
. As to whether servant may assume the
risk of dangers created by the master's
negligence — see note to Scheurer v.
«4 L. ed.
Banner Rubber Co. 28 L.R.A.(N.S.)
1215.
As to servant's assumption of risk of
dangers imperfectly appreciated — see
note to Tuckett v. American Steam &
H. Laundry, 4 L.R.A.(X.S.) 990.
On number and agreement of jurors
necessary to constitute a valid verdict —
see notes to Silsby v. Foote, 14 L. ed.
U. S. 394, and State v. Bates, 43 L.R.A.
33.
431
SUPKEME COURT OF THE UNITED STATES.
Oct. Tebic,
one resulting from the alleged negli-
gence, of which he knew, or which was
so obvious as to be apparent to an ordi-
nary man under such cirenmstances.
Northern P. R. Co. v. Freeman, 174 U.
S. 380, 43 L. ed. 1014, 19 Sup. Ct. Rep.
763; Chesapeake & 0. B. Co. v. De Atky,
241 U. S. 310, 60 L. ed. 1016, 36 Sup. Ct.
Rep. 664.
Defendants were deprived of Federal
gfuaranties by en*oneous instructions on
assumption of risk which were preju-
dicial.
Seaboard Air Line R. Co. v. Horton,
233 U. S. 492, 58 L. ed. 1062, L.R.A.
1915C, 1, 34 Sup. Ct. Rep. 635, Ann.
Cas, 1915B, 475, 8 N. C. C. A. 834;
Texas & P. R. Co. v. Archibald, 170 U.
S. 665,- 42 L. ed. 1188, 18 Sup. Ct. Rep.
777, 4 Am. Neg. Rep. 746; Choctaw, O.
& G. R. Co. V. :McDade, 191 U. S. 65, 48
L. ed. 96, 24 Sup. Ct. Rep. 24, 15 Am.
Neg. Rep. 230 ; Schlemmer v. Buffalo, R.
& P. R. Co. 205 U. S. 1, 51 L. ed. 681,
27 Sup. Ct. Rep. 407; Kreigh v. West-
inghouse, C. K. & Co. 214 U. 8. 249, 53
L. ed. 984, 29 Svip. Ct. Rep. 619 ; Schlem-
mer V. Buffalo, R. & P. R. Co. 220 U. S.
690, 55 L. ed. 596, 31 Sup. Ct. Rep. 561 ;
Texas & P. R. Co. v. Harvey, 228 U. S.
319, 57 L. ed. 852, 33 Sup. Ct. Rep. 518 ;
Southern R. Co. v. Crockett, 234 U. S.
725, 58 L. ed. 1564, 34 Sup. Ct. Rep.
897; Yazoo & M. Valley B. Co. v.
Wright, 235 U. S. 376, 379, 59 L. ed.
277, 278, 35 Sup. Ct. Rep. 130; Toledo,
St. L. & W. R. Co. v. Slavin, 2361 U. S.
454, 468, 59 L. ed. 671, 673, 35 Sup. Ct.
Rep. 306; Reese v. Philadelphia & R. R.
Co. 239 U. S. 463, 60 L. ed. 384, 36 Sup.
Ct. Rep. 134, 10 N. C. C. A. 926; Jacobs
V. Southern R. Co. 241 U. S. 229, 60 L.
ed. 970, 36 Sup. Ct. Rep. 588; Chesa-
peake & 0. R. Co. V. Proffitt, 241 U. S.
462, 60 L. ed. 1102, 36 Sup. Ct. Rep. 620 ;
Chicago & N. W. R. Co. v. Bower, 241
• U. S. 470, 60 L. ed. 1107, 36 Sup. Ct.
Rep. 624; Boldt v. Pennsylvania R. Ca
245 U. S. 441, 62 L. ed. 385, 38 Sup. Ct,
Rep. 139; Missouri, K. & T. R. Co. v.
Wilhoit, 87 C. C. A. 401, 160 Fed. 440;
District of Columbia v. McElligott, U7
U. S. 621, 29 L. ed. 946, 6 Sup. Ct. Rep.
884; Kane v. Northern C. R. Co. 128 U.
S. 91, 32 L. ed. 339, 9 Sup. Ct. Rep. 16;
Jones V. East Tennessee, V. & Q. R. Co.
128 U. S. 443, 32 L. ed. 478, 9 Sup. Ct.
Rep. 118; Texas & P. R. Co. v. Swear-
ingen, 196 U. S. 51, 49 L. ed. 382, 25
Sup. Ct. Rep. 164, 17 Am. Neg. Rep.
422; Osage Coal & Min. Co. v. Sperra,
42 Okla. 726, 142 Pac. 1040; Guthrie v.
482
Swan, 3 Okla. 116, 41 Pao. 84; Okla-
homa City B. Co. v. Diah, 30 Okla, 32,
118 Pac. 361; Oklahoma City R. Co. v.
Barkett, 30 Okla. 28, 118 Pac. 360; St.
Louis & S. F. R. Co. v. Krai, 31 Okla.
624, 122 Pac 177; Muskogee Electric
Traction Co. v. Staggs, 34 Okla. 161, 126
Pac. 481; Metropolitan R. Co. v. Fon-
ville, 36 Okla. 76, 126 Pac. U26; St.
Louis & S. F. R. Co. v. Elsing, 37 Okla.
333, 132 Pac. 483; Chicago, R. L & P. R.
Co. V. Pitchford, 44 Okla. 197, 143 Pac.
1146; Gila Valley, G. & N. R. Co. v.
Hall 232 U. S. 94, 58 L. ed. 621, 34 Sup.
Ct. Rep. 229.
The instructions either state that con-
tributory negligence is a bar, which
shows clearly that the instructiona are
based upon the Constitution and statutes
of Oklahoma, or omit reference to it al-
together; in which case the jury would
necessarily be misled by erroneous in-
structions.
Norfolk & W. R. Co. v. Earnest, 22^
U. S. 114, 57 L. ed. 1096, 33 Sup. Ct
Rep. 654, Ann. Cas. 1914C, 172; Grand
Trunk Western R. Co. v. Lindsay, 233
U. S. 42, 68 L. ed. 838, 34 Sup. Ct. Rep.
581, Ann. Cas. 1014C, 168; Seaboard Air
Line R. Co. v. Horton, 233 U. B. 492,
58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup.
Ct. Rep. 635, Ann. Cas. 1915B, 475, 8
N. C. C. A. 834; Toledo, St. L. A W. R.
Co. V. Slavin, 236 U. S. 454, 458, 69 L.
ed. 671, 673, 35 Sup. Ct. Rep. 306.
Mr. W. S. Pendleton submitted the
cause for respondent. Mr. T. Q. Cutlip
was on the brief:
This court is without jurisdiction.
Atlantic Coast Line R. Co. v. Mima,
242 U. S. 532, 61 L. ed. 476, 37 Sup. Ct
Rep. 188, 17 N. C. C. A. 349 ; St Louis,
I. M. & S. R. Co. V. Hesterly, 228 U. S.
702, 57 L. ed. 1031, 33 Sup. Ct. Rep.
703 ; Baldwin v. Kansas, 129 U. S. 52, 32
L. ed. 640, 9 Sup. Ct. Rep. 193; F. G.
Oxley Stave Co. v. Butler Countv, 166
U. S. 648, 41 L. ed. 1149, 17 Sup. Ct
Rep. 709.
The alleged errors of the trial eonrt in
giving instructions as to assumed risk
and contributory negligence were harm-
less, and not prejudicial misdirections.
Chesapeake & 0. R. Co. v. Proffitt,
241 U. S. 462, 60 L. ed, 1102, 36 Sup.
Ct. Rep. 620; Great Northern R. Co. v.
Knapp, 240 U. S. 464, 60 L. ed. 745, 36
Sup. Ct Rep. 399; Yazoo & M. Valley
R. Co. V. Wright, 235 U. S. 376, 59 L. ed.
277, 35 Sup. Ct. Rep. 130; Illinois C. R.
Co. V. Nelson, 128 C. C. A. 525, 212 Fed.
69.
262 U. S.
1910.
CHICAGO, R. 1. & P. R. 00. v. WARD.
19-21
Mr. Justice Day delivered the opinion
of the oourl:
Soil was brought in the superior
eourt, * Pottawatomie county, Oklahoma,
against the Chicago^ Rock Iriand, &
Paeifl« Railway Company and A. J.
Carney to recover damages for injuries
alleged to have been received by Ward
whiJ^ he was employed as a switchman
. of the railway company in its - yards
at Shawnee. He recovered a judgment
whieh was affirmed by the supreme court
of Oklahoma (— Okla. —, 173 Pae.
212). The gronnd upon which recovery
was sought against the railway company
and Carney, who was an engine fore-
man, was that Ward, while engaged in
his duty as a switchman, was suddenly
thrown from the top of a box car upon
which he was about to apply a brake.
The petition alleged, and the testimony
tended to show, that Ward was engaged
as a switchman [20] on a cut of cars
which it was the duty of the engine fore-
man to cut loose from the engine pushing
the cars in order that Ward might gradu-
ally stop the cars by applying the brake.
It appears that, at the time of the in-
jury to Ward, the cut of cars had been
pu^ed up an incline by the engine,
over an elevation, and as the cars ran
down the track the effect was to cause
the slack to run out between them,
permitting them to pull apart sufficient-
ly to be uncoupled, at which time it
was the duty of the engine foreman to
uncouple the cars. The testimony tend-
ed to support the allegations of the
petition' as to the negligent manner in
which this operation was performed at
the time of the injury, showing the fail-
ure of the engine foreman to properly
cut off the cars at the time he directed
the engineer to retard the speed of the
engine, thereby causing them to slow
down in such manner that when the
cheek reached the car upon which
Ward was about to set the brake, he
was suddenly thrown from the top of
the car, with the resulting injuries for
which he brought this action.
The railway company and Carney took
issue upon the allegations of the peti-
tion, and set up contributory negligence
and assumption of risk as defenses. The
trial court left the question of negli-
gence on the part of the company and
the engine foreman to the jury, and also
instructed it as to assumption of risk
by an employee of the ordinary hazards
of the work in which he was engaged,
and further charged the jury as fol-
lows:
64 Ij. eiL
*^You are further instructed that while
a servant does not assume the extraor-
dinary and unusual risks of the em-
ployment, yet on accepting employment
he does aasame all the ordinary and
usual risks and perils incident thereto,
whether it be dangerous or otherwise,
and also all risks which he knows or
should, in the exercise of reasonable
care, know to exist. He does not, how-
ever, assume such risks as are created
by the master's negligence, nor such as
are latent, or are only discoverable at
[21] the time of the injurv. The doctrine
of an assumption of risk is wholly de-
pendent upon the servant's knowledge,
actual or constructive, of the dangers
incident to his employment. Where he
knew, or, in the exercise of reasonable
and ordinary care, should know, the risk
to which he is exposed, he will, as a rule,
be held to have assum^ them; but where
he either does not know, or, knowing,
does not appreciate such risk, and his
ignorance or nonappreciation is not due
to negligence or want of care on his
part, there is no assumption of risk on
the part of the servant, preventing a
recovery for injuries."
Treating the case, as the court be-
low did, as one in which the injury
occurred while the petitioners and re-
spondent were engaged in interstate
commerce, this chaise as to the assump-
tion of risk was not accurate, in stat-
ing without qualification that the serv-
ant did not assume the risk created by
the master's negligence. We have had
occasion to deal with the matter of
assumption of risk in cases where the
defense is applicable under the Federal
Employers' Liability Act, being those
in which the' injury was caused others
wise than by the violation of some stat-
ute enacted to promote the safety of
employees. As this case was not one
of the latter class, assumption of risk
was a defense to which the defendants
below were entitled. Seaboard Air Line
R. Co. V. Horton, 233 U. S. 492, 68 L.
ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct.
Rep. 635, Ann. Gas. 1915B, 476, 8 N.
C. C. A. 834; Jacobs v. Southern R.
Co. 241 U. S. 229, 60 L. ed. 970, 36 Sup.
Ct. Rep. 588.
As to the nature of the risk assumed
by an employee in actions brought
under the Employers' Lialulity Act, we
took occasion to say in Chesapeake &
O. R. Co. V. De Atley, 241 U. S. 310,
316, 60 L. ed. 1016, 1020, 36 Sup. Ct.
Rep. 564: '^According to our decisions,
^he settled rule is not that it is the-
28 4sa
21-23
sri'liKMK LOLUT OF THK INITEU STATES.
Oct. Teem,
duty of an employee to exercise care to
discover extraordinary dan^^ers that may
arise from the negligence of the em-
ployer or of those lor whose conduct
the employer is resi)onsible^ but that the
• employee may assume that the employer
or his agents have exercised proper
care with respect to his safety until
[22] notified to the contrary, unless the
want of care and the danger arising
from it are so obvious that an ordinarily
careful person, under the circumstances,
would observe and appreciate them."
The Federal Employers' Liability Act
places a coemployee's negligence, when
it is the ground of the action, in the
same relation as that of the employer
upon the matter of assumption of risk.
241 U. S. 313. See also Chesapeake &
O. R. Co. v. Proffitt, 241 U. S. 462, 468,
60 L. ed. 1102, 1106, 36 Sup. Ct. Rep.
620; Erie R. Co. v. Purucker, 244 U. S.
320, 61 L. ed. 1166, 37 Sup. Ct. Rep. 629.
Applying the principles settled by
these decisions to the facts of this case,
the testimony shows that AVard had
neither warning nor opportunity to
judge of the danger to which he was
exposed by the failure of the eng^ine
foreman to cut off the cars. In the
absence of notice to the contrary, and
the record shows none, Ward had the
right to act upon the belief that the
usual method would be followed and
the cars cut off at the proper time by
the engine foreman, so that he might
safely proceed to perform his duty as
a switchman by setting the brake to
check the cars which should have been
detached. For the lack of proper care
on the part of the representative of the
railway company while AVard was in
the performance of his duty, he was
suddenly precipitated from the front
end of the car by Xhe abrupt checking
resulting from the failure to make the
disconnection. This situation' did not
make the doctrine of assumed risk a
defense to an action for damages be-
<»use of the negligent manner of oper-
ation which resulted in AVard's injury,
and the part of the charge complained
of, though inaccurate, could have worked
DO harm to the petitioners. It was a
sudden emergency, brought about by the
negligent operation of that j^articular
cut of cars, and not a condition of dan-
ger, resulting from the master's or his
representatives' negligence, so obvious
that an ordinarily pnident person in the
situation in which Ward was placed,
had opportunity to know and appreciate
it, and therebv assume the risk.
434
I [23] The trial court also charged that
j contributory negligence by A/7ard would
prevent a recovery. This charge was
more favorable to the petitioners than
they were entitled to, as, under the Fed-
eral Employers' Liability Act, contrib-
utory negligence is not a defense, and
only goes in mitigation of damages.
The giving of this charge could not have
been prejudicial error requiring a re-
versal of the judgment.
Another assignment of error, dealt
with by the supreme court of Oklahoma,
that a jury of less than twelve returned
the verdict, conforming to the state
practice, does not seem to be pressed
here. In any event, it is disposed of
I by St. Louis & S. F. R. Co. v. Brown,
241 U. S. 223, 60 L. ed. 966, 36 Sup. Ct.
Rep. 602.
We find no error in the judgment of
the Supreme ('ourt of Oklahoma, and
the same is affirmed.
PENNSYLVANIA GAS COMPANY, Plff.
in Err.,
V.
PLTBLIC SERVICE COM^nSSION. Second
District, of the State of New York, tb^
City of Jamestown, New York, et al.
(See S. C. Reporter's ed- 23-31.)
Commerce ^ what is ^ transportatiOB
of nattiral gas.
1. The direct transmission of natural
gas from the source of supply outside the
state to local consumers in mtmicipalities
within the state is interstate commerce.
[For other casoB, see Commerce, I. b, in Di-
gest 8up. Ct. IOCS.]
Commerce — state regulation * con-
gressional inaction — natural gas
rates.
2. Until Conpress acts under its su-
perior authority by regulating the subject-
matter for itself, the exorcise of authority
conferred by a state upon a public service
conimisbion to re<^'ulatc rates for natural
j^as transmittid directly from the source
of supply outj<idc the state to local con-
sumers in municipalities within the state
does not offend against the commerce clause
of the Federal Constitution.
[For other cases, see Commerce, I. c; 111. c
in Digest Slip. Ct. 1908.]
[No. 330.]
Note. — State regulation of natural gas
rates as affected by the commeroe
clause of the Federal ConstitutioiL
It is settled that the transportation of
I gas through pipe lines from one state to
1 another is interstate commerce. West
252 U. S.
1919.
PENNSYLVANIA GAS ( u. v. 1*1 KLK SKilX IC K COMMISSION.
Argued December 8 and 0. 1919. DecitU-d
March 1, 1920.
IN ERROR to the Supreme Coui-t of the
State of New York in and for the
County of Ulster to review a .indpmoiit
entered porsnant to the mandate of the
Court of Appeals of that state, which
aflfirmed a judgment of the Appellate
Division of the Supreme Court, Third De-
partment, reversing" an order of the Spe-
cial Term, granting a writ of prohibition
to restrain the state Public Service Com-
mission from regulating natural gas rates.
Affirmed.
See same case below in appellate divi-
sion, 184 App. Div. 556, P.U.R.1919A,
372, 171 N. y. Supp. 1028; in court of
appeals, 225 N. Y. 397, P.U.R.1919C, 663,
122 N. E. 260.
The facts are stated in the opinion.
Mr. John E. Mullin argued the cause,
and, with Mr. Marion H. Fisher, filed a
brief for plaintiff in error:
Natural gas is a legitimate article of
commerce, and the transportation there-
of bv pipe line from one state for sale
in another is interstate commerce.
West V. Kansas Natural Gas Co. 221
U. S. 229, 55 L. ed. 716, 35 L.R.A.(N.S.)
1193, 31 Sup. Ct. Rep. 564; Kansas
Natural Gas Co. v. Haskell, 172 Fed.
545; Haskell v. Kansas Ndtural Gas Co.
224 U. S. 217, 56 L. ed. 738, 32 Sup. Ct.
Rep. 442; Haskell v. Co wham, 109 C. C.
A. 235, 187 Fed. 403;.Landon v. Public
Utilities Commission, P.U.R.1918A, 31,
242 Fed. 682.
The facts at bar present a much
stronger ease for the protection of the
commerce clause than those to which the
protection of the "original package"
doctrine is commonly given. The gae
company cannot be deprived of this pro-
tection merely because its business can-
not be tested by some particular phrase
originally used by the court in applying
the Constitution to the facts before it
at a time when the natural gas business
was not even dreamed of. To give to
such phrases the binding force of in-
flexible law is to nullify the boasted
flexibility of the Federal Constitution.
V. Kansas Natural Gas Co. 221 U. S.
229, 55 L. ed. 716, 35 L.R.A.(N.S.) 1193,
31 Sup. Ct. Rep. 564; Public Utilities
Co. V. Landon, 249 U. S. 236, 63 L. ed.
577, P.U.R.1919C, 834, 39 Sup. Ct. Rep.
268, decree modified on another point in
249 U. S. 590, 63 L. ed. 791, 39 Sup. Ct.
Rep. 389; Pennsylvania Gas Co. v. Pub-
i.TC Service Commission (reported here-
with) ante, 434; State ex rel. Caster v.
Flannelly, 96 Kan. 372, P.U.R.1916C,
810, 152 Pac. 22; West Virginia & M.
Gas Co. V. Towers, — Md. — , P.U.R.
1919D, 332, 106 Atl. 265; Traders &
Labor Council v. Fayette County Gas
^ Co. P.U.R.1918B, 165.
This principle, however, does not pre-
vent all regulation of the rates by the
state in which the gas is sold. The
theory followed in Pennsylvania Gas
Co. v. Public Service Commission, that,
in the absence of action by Congress, re-
lating thereto, the states may regulate
rates tor natural gas transmitted from
other states, had been anticipated in
several decisions. Manufacturers' Light
& Heat Co. v. Ott, 215 Fed. 940; State
ex reL Caster v. Flannelly, 96 Kan. 372,
P.U.R.1916C, 810, 152 Pac. 22; State ex
rel. Bristow v. Landon, 100 Kan. 593,
165 Pac. 1111.
Where the gas is produced in several
stutes and commingled in pipe lines;,
from which it is sold, some doubt has
been expressed as to its beins: interstate
commerce.
«4 ti. ed.
In Manufacturers' Light & Heat Co.
V. Ott, supra, corporations from West
Virginia, Ohio, and Pennsylvania had
united their operations in pumping gas
into a common system of pipes supply-
ing customers in the three states. The
action involved the right of the West
Virginia Public Service Commission to
regulate the rates charged to customers
in West Virginia. The court says that
although the fact that this system of
operation may have resulted in some gas
from Ohio and Pennsylvania coming
into West Virginia, it is undisputed that
a much larger quantity of gas went out
of West Virginia into Ohio and Penn-
sylvania; and further, that this inter-
flow of gas from one state to another, ac-
cording to the pressure from the main
gas pipe at common reservoirs, cannot
affect the power of the state of West
Vii^inia to make reasonable regulations
as to the rates for gas furnished to its-
own citizens. But it is further stated
that it is imnecessary to decide whether
Congress may not regulate charges for
natural gas under such conditions, and
that. Congress having taken no action, it
was clearly within the power of the state
legislature to provide for the protection
of its own citizens against excessive
charges.
In State ex rel. Caster v. Flannellv,
96 Kan. 372, P.U.R.1916C, 810, 152
Pac. 22, it is said not to be inter-
i state commerce to sell natural gas to the
48S
sl'i*im:mk i(»i kt of xiit: i nited states.
OOT. TXBMr
Re Debs, 158 U. S. 564, 590, 39 L. ed.
1092, 1104, 15 Sup. Ct. Rep. 900; 1 Wat-
son, Const, pp. 496, 497; 2 Willoughby,
Const. §§ 300, 301, pp. 644, 650.
The breaking of an original package
of an interstate shipment before the de-
livery of the articles therein to the per-
sons for whom they were ultimately in-
tended when shipped, the delivery of
some of the articles from the broken
package to persons for whom they were
intended when shipped, the further
transportation within the state of re-
maining articles from the broken pack-
age, and the delivery of them to various
persons for whom they were intended
when shipped, do not deprive the entire
transaction of its character as inter-
state commerce, or subject any part of
it to state law.
Western Oil Ref . Co. v. Lipscomb, 244
U. S. 346, 61 L. ed. 1181, 37 Sup. Rep.
623; Caldwell v. North Carolina, 187 U.
S. 622, 47 L. ed. 336, 23 Sup. Ct Bep *
229; Rearick v. Pennsylvania, 203 U. S
507, 51 L. ed. 295, 27 Sup. Ct. Rep. 169;
Swift & Co. V. United States, 196 U. S.
398, 49 L. ed. 525, 25 Sup. Ct. Rep. 276 ;.
Dozier v. Alabama, 218 U. S. 124, 54 L.
ed. 965, 28 L.R.A.(N.S.) 264, 30 Sap. Ct.
Rep. 649 ; Crenshaw v. Arkansas, ^ U»
S. 389, 57 L. ed. 565, 33 Sup, Ct. Rep.
294; Stewart v. Michigan, 232 U. S. 666^
58 L. ed. 786, 34 Sup. Ct. Rep. 476;
United States v. Illinois C. R. Co. 230
Fed. 940; Western U. Teleg. Co. v.
Foster, 247 U. S. 105, 62 L. ed. 1006, 1
A.L.R. 1278, P.U.R.1918D, 865, 38 Sup.
Ct. Rep. 438.
The power to regulate interstate com-
merce granted by the commerce clause
to the Federal government is not only
paramount, but exclusive of any power
in the states, and the inaction of Con-
gress is an expression of its intention
that such commerce shall be free from
consumers thereof in Kansas, where the
gas sold was produced in Kansas and
Oklahoma, and that produced in Okla-
homa, after being conveyed in pipe lines
to Kansas, was so commingled in the
pipe lines conveying the same with the
gas produced in Kansas that it was im-
possible to separate or distinguish the
two, and, after being so commingled, it
was conveyed from city, to city through-
out the state, and there sold to the con-
sumers. The Kansas court seems to
reach this conclusion on the ^'original
package'^ theory, holding that, after the
bulk of the imported gas is broken up
for indiscriminate distribution to indi-
vidual purchasers at retail sales, the in-
terstate commerce is at an end. This
decision, however, seems finally to be
rested upon the principle that the state
may regulate interstate commerce of the
character of natural gas in the absence
of action by Congress. It seems that at
least the same companies were involved
in the foregoing Kansas cases as were
involved in the United States Supreme
Court case of Public Utilities Commis-
sion V. Landon, 249 U. S. 236, 63 L. ed.
577, P.U.R.1919C, 834, 39 Sup. Ct. Rep.
268, where the court emphasizes the sale
by the transporting company to the lo-
cal company as taking it out of the
domain of interstate commerce. The
United States Supreme Court holds that
the sale and delivery of gas to customers
at burner tips by local distributing
companies operating under special fran-
chises, and the payment of two thirds
of their receipts to the natural gas com-
pany furnishing the gas througli inter-
4»«
state pipe lines, do not constitute any
part of interstate commerce so as to ex-
clude state regulation of local rates as
confiscatory and as unduly burdening
such oommerce.
The "original package" doctrine was
invoked by ^he Maryland court of ap-
peals in West Virginia & M. Ga^ Co. v.
Powers, — Md. — , P.U.R.1919D, 332,
106 Atl. 265, although the company
which actually sold the gas to consumers
received it at a point in West Virginia
and transported it across the state line
into Maryland. It appeared in this case
that the gas was transported from the
wells in gathering lines to compresser
stations, where it was compressed and
taken into other pipe lines to the main
compresser station, where it was agaiB
compressed. After leaving this station
and passing through other pipes it ulti- '
mately entered the main pipe line of the
corporation which transferred it into
Maryland. The gas could not be served
to the consumer at the high pressure
necessary for its transmission through
the main line, and its pressure was re-
duced through what was known as a
regulator, and the gas then carried to
the community in low pressure mains
with which the various service lines
were connected. The separation of the
gas from the general bulk of gas, and
confining it in the intermediate pii>e
lines, whence it could not return to the
main pipe line, where it must remain
until consumed, was held to be a break-
ing up of the original package, and a
mingling of the gas with the common
mass of property in the state; hence, its
252 V. S.
1019.
PENNSYLVANIA GAS CO. v. PUBLIC SKRVICE COMMISSION.
the impo^ioii by the states of any sub-
stan^al or material burdeu, restraint,
<ir regulation.
Oibbons v. Ogden, 9 Wheat. 1, 6 L. ed.
23; Brown v. Honston, 114 U. S. 622,
630, 29 L. ed. 257, 260, 6 Sup. Ct. Rep.
1091; Wabash, St. L. & P. R. Co. v.
Illinois, 118 U. S. 557, 572, 30 L. ed. 244,
240, 1 Inters. Com. Rep. 31, 7 Sup. Ct.
Rep. 4; Bowman v. Chicago & N. W. R.
€o. 125 U. S. 498, 507, 31 L. ed. 711, 714,
1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep.
-689, 1062; Covington & C. Bridge Co. v.
Kentucky, 154 U. S. 204, 212, 38 L. ed.
962, 966, 4 Inters. Com. Rep. 649, 14
Sup. Ct. Rep. 1087; Louisville & N. R.
Co. V. Eubank, 184 U. S. 27, 36, 46 L. ed.
416, 420, 22 Sup. Ct. Rep. 277; Southern
P. Co. V. Jensen, 244 U. S. 205, 61 L. ed.
1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep.
524, Ann. Cas. 1917E, 900, 14 N. C. C. A.
596.
The exclusive nature of the Federal
power has not only been asserted in
cases where the state has attempted to
fix interstate rates, but also to prevent
interference by the state with the sale
of commodities moving in interstate
commerce. Attempts by the states to
regulate or restrict the freedom of im-
portation, delivery, and sale of inter-
state commodities have repeatedly been
declared repugnant to the Constitution.
Walling V. Michigan, 116 U. S. 455, 29
L. ed. 694, 6 Sup. Ct. Rep. 454; Leisy v.
Hardin, 135 U. S. 100, 119, 120, 34 L.
ed. 128, 136, 3 Inters. Com. Rep. 36, 10
Sup. Ct. Rep. 681; Lying v. Michigan,
135 U. S. 161, 166, 34 L. ed. 150, 153,
3 Inters. Com. Rep. 143, 10 Sup. Ct. Rep.
725; Caldwell v. North Carolina, 187 U.
S. 622, 625, 627, 47 L. ed. 336, 338, 339,
23 Sup. Ct. Rep. 229; West v; Kansas
Natural Gas Co. 221 U. S. 261, 55 L. ed.
728, 35 L.R.A.(N.S.) 1193, 31 Sup. Ct
Rep. 564; Clark Distilling Co. v. AVest-
sale subjjeet to regulation by the state
-commission. It is doubtful whether the
view of the Maryland court of appeals
is correct in view of the decision in the
reported case (Pennsylvania Gas Co.
V. Public Service Commission, ante,
434), which affirmed a decision of the
<;ourt of appeals of New York (225 N.
Y. 397, P.U.R.1919C, 663, 122 N. E. 260).
In the discussion of the question wheth-
•er the transportation of natural gas
through pipe lines from one state into
another, where it is sold to consumers
by the corporation making the transpor-
tation, amounts to interstate commerce,
the state court says that "there is no
break in the continuity of the transmis-
sion from pumping station in Pennsyl-
vania to home and office and factory in
Jamestown. A different question would
^trise if gas transmitted from Pennsyl-
vania should be stored in reservoirs in
New York, and then distributed to con-
sumers as their needs might afterward
•develop. The quantity stored or the
period of storage might require us to
hold that interstate commerce was at
an end when the place of storage had
been reached. Kehrer v. Stewart, 197
IT. S. 65, 49 L. ed. 666, 25 Sup. Ct. Rep.
403; Brown v. Houston, 114 U. S. 622,
29 L. ed. 257, 5 Sup. Ct. Rep. 1091 (the
transaetions would then be similar to
those common in the oil business). We
•do not now determine the rule that
should govern them. It is enough to
hol4 that where there is in substance no
storage, but merely transmission for im-
mediate or practically immediate use,
direet fh)m seller to consumer, inter-
•64 L. ed.
state commerce does not end till the gas
has reached its goal. That, by the fair
intendment of the petition, is the busi-
ness conducted by this petitioner. It is
not important that consumers do not
signify in advance the precise amount
that they will need. If their wants are
approximately known and the gas ' is
transmitted not to be held, but to be
used, so that any storage that results ih
merely casual and incidental, the trans-
action is to be treated as single and con-
tinuous." The transportation was ae-
cordingly held to be interstate^ commerce.
The district court in Landok v. Public
Utilities Commission, 245 Fed. 950 (re-
versed on other grounds in 249 U. S. 236,
63 L. ed. 577, P.U.R.1919C, 834, 39 Sup.
Ct. Rep. 2()S, the decree in which was
vacated and the judgment modified on
another point in 249 U. S. 590, 63 L. ed.
791, 39 Sup. Ct. Rep. 389), holds that
where any storage which exists is merely
incidental to the transportation of the
gas, the interstate character of the
transportation is not destroyed.
The Pennsylvania Public Service Com-
mission in Duggran v. Fayette County
Gas Co. P.U.R.1918B, 165, held that a
gas company operating in Pennsylvania,
which obtained a part of its gas from
Pennsylvania and part from a AVest
Virginia company, the gas from the
West Virginia company being delivered
to it at the boundary line between the
two states, could not defeat the juris-
tion of the Pennsylvania Public Service
Commission to regulate the rates to
consumers, on the theory that it was en-
gaged in interstate commerce.
437
SUPREME iXilRT OF THE L>'nED STATl'^S.
Oct. Tkrm^
^
ern Maryland R. Co. 242 U. S. 311, 328,
329, 61 L. ed. 326, 339, 340, L.R.A.1917B,
1218, 37 Sup. Ct. R^p. 180, Ann. Cas.
1917B, 845; Western U. Teleg. Co. v.
Foster, 247 U. S. 105, 62 L. ed. 1006, 1
A,L.R. 1278, P.U.R.1918D, 865, 38 Sup.
Ct. Rep. 438.
That 'the action threatened by the
state in this case is a ^'regulation" of in-
terstate commerce within the meaning
of the commerce clause cannot be de-
nied.
Western U. Teleg. Co. v. Foster, 247
U. S. 105, 62 L. ed. 1006, 1 A.L.R. 1278,
P.U.R.1918D, 865, 38 Srp. Ct. Rep. 438;
Western Oil Ref. Co. v. Lipscomb, 244
D. S. 346, 61 L. ed. 1181, 37 Sup. Ct.
Rep. 623; Stewart v. Michigan, 232 U.
S. 665, 58 L. ed. 786, 34 Sup. Ct. Rep.
476; Caldwell v. North Carolina. 187 U.
S. 622, 47 L. ed. 336, 23 Sup. Ct. Rep.
229; Rearick v. Pennsylvania, 203 U. S.
507, 51 L. ed. 295, 27 Sup. Ct. Rep. 159 ;
Brown v. Maryland, 12 Wheat, 419; 447,
6 L. ed. 678, 688; Leisy v. Hardin, 135
U. S. 100, 108, 119, 123, 34 L. ed. 128,
132, 136, 137, 3 Inters. Com. Rep. 36, 10
Sup. Ct. Rep. 681; Clark Distilling Co.
V. Western Maryland R. Co. 242 U. S.
311, 328, 329, 61 L. ed. 326, 339, 340,
L.R.A.1917B, 1218, 37 Sup. Ct. Rep. 180,
Ann. Cas. 1917B, 845; Lyng v. Michigan,
135 U. S. 161, 166, 34 L. ed. 150, 153, 3
Inters. Com. Rep. 143, 10 Sup. Ct. Rep.
725; Bowman v. Chicago & N. W. R. Co.
125 U. S. 507, 31 L. ed. 714, 1 Inters.
Com. Rep. 823, 8 Sup. Ct. Rep. 689,
1062; Judson, Interstate Commerce, §
17; West v. Kansas Natural Gas Co. 221.
U. S. 255, 256, 55 L. ed. 726, 727, 35
L.R.A.(N.S.) 1193, 31 Sup. Ct. R«p. 564;
Western U. Teleg. Co. v. Foster, 247 U.
S. 105, 62 L. ed. 1006, 1 A.L.R. 1278,
P.U.R.1918D, 865, 38 Sup. Ct. Rep. 438;
Brown v. Maryland, 12 Wheat. 419, 439,
6 L. ed. 678, 685; Western U. Teleg. Co.
V. Kansas, 216 U. S. 1, 27, 54 L. ed. 355,
366, 30 Sup. Ct. Rep. 190; Railroad
Commission v. Worthington, 225 U. S.
101, 107, 56 L. ed. 1004, 1007, 32 Sup.
Ct- Rep. 653.
Federal functions may not be usurped
under the police power, nor does the
occupancy of highways by the plaintiff
in error under local franchises author-
ize the state to regulate the price of gas
moving in interstate commerce.
Leisy v. Hardin, 135 U. S. 100, 108,
119-123, 34 L. ed. 128, 132, 136, 137, 3
Inters. Com. Rep. 36, 10 Sup. Ct. Rep.
681; Lvng v. Michigan, 135 U. S. 161-
166, 34 L. ed. 150-153, 3 Inters. Com.
Rep. 143, 10 Sup. Ct. Rep. 725; Wabash,
St. L. & P. R. Co. V. Illinois, 118 U. S.
429
557, 30 L. ed. 244, 1 Inters. Com. R^.
31, 7 Sup. Ct. Rep. 4; West v. Kansas
Natural Gas Co. 221 U. S. 229, 55 L. ed.
710. 35 L.R.A.(N.S.) 1193, 31 Sup Ct.
Rep. 564; Kansas Natural Gas Co. ▼.
Haskell, 172 Fed. 545; Western U.
Teleg. Co. v. Foster, 247 U. S. 105, 62^
L. ed. 1006, 1 A.L.R. 1278, P.U.R.1918D^
865, 38 Sup. Ct. Rep. 438.
The interstate natural gas business
conducted by the plaintiff in error is
national, not local, in character, and the
proposed state regulation thereof is not
local in its operation. Therefore, the
state does not have the power of regu-
lation.
Hall V. De Cuir, 95 U. S. 485,24 L. ed.
547 ; Glouster Ferry Co. v. Pennsylvania,
114 U. S. 196, 29 L. ed. 158, 1 Inters.
Com. Rep. 382, 5 Sup. Ct. Rep. 826;
Wabash, St. L. & P. R. Co. v. Illinois,
118 U. S. 557, 30 L. ed. 244, 1 Inters.
Coih. Rep. 31, 7 Sup. Ct. Rep. 4; Cov-
ington & C. Bridge Co. v. Kentucky, 154
U. S. 204, 38 L. ed. 962, 4 Inters. Com.
Rep. 649, 14 Sup. Ct. Rep. 1087; Louis-
ville & N. R. 'Co. V. Eubank, 184 U. S.
27, 46 L. ed. 416, 22 Sup. Ct. Rep. 277^
Railroad C«)mmission v. Worthington,.
225 U. S. 101, 56 L. ed. 1004, 32 Sup.
Ct. Rep. 653; St. Clair County v. InteF-
state Sand & Car Transfer Co. 192 U. S.
454, 48 L. ed. 518, 24 Sup. Ct. Rep. 300 ;
Western U. Teleg. Co. v. Foster, 247 U.
S. 105, 62 L. ed. 1006, 1 A.L.R. 1278^
P.U.R.1918D, 865, 38 Sup. Ct. Rep. 438^
West V. Kansas Natural Gas Co. 221 U.
S. 229, 55 L. ed. 716, 35 L.R.A.(N.S.)
1193, 31 Sup. Ct. Rep. 564; Kansas
Natural Gas Co. v. Haskell, 172 Fed.
545; Haskell v. Cowham, 109 C. C. A.
235, 187 Fed. 403; Landon v. Public
Utilities Commission, P.U.R.1918A, 31,
242 Fed. 682 ; Haskell v. Kansas Natural
Gas Co. 224 U. S. 217, 56 L. ed. 738, 32
Sup. Ct. Rep. 442.
The power of a state to enforce
common-law duties, or like statutory
duties, of public utilities engaged in in-
terstate commerce, does not extend ta
prescribing rates for interstate com-
merce.
Knoxville v. Knoxville Water Co. 212
U. S. 1, 8, 53 L. ed. 371, 378, 29 Sup. Ct
Rep. 148; Covington 4& C. Bridge Co. v.
Kentucky, 154 U. S. 204, 222, 38 L. ed.
962, 970, 4 Inters. Com. Rep. 649, 14
Sup. Ct. Rep. 1087; Railroad Commis-
sion V. Worthington, 225 U. S. 101, 107,
56 L. ed. 1004, 1007, 32 Sup. Ct. Rep.
653; Minne.sota Rate Cas^ (Simpson v.
Shepard) 230 U. S. 352, 412, 67 L."ed.
1511, 1547, 48 L.R.A.(N.S.). 1151, 33
Sup. Ct. Rep. 729, Ann. Cas. 1916A. 18;
262 U. S.
11^19.
PENNSYLVAi^lA GA« CO. v. TUBLIC JiEKNlCK ( OMM18SION.
Louisville & N. R. Co. v. Eubank, 184 U.
S. 27, 88, 43, 44, 46 L. e<l. 416, 421, 423,
424, 22 Sup. Ct. Rep. 277; Wabash, St.
L. & P. R. Co. V. lUinois, 118 U. S. 557,
575, 30 L. ed. 244, 250, 1 Inters. Com.
Rep. 31, 7 Sup. Ct. Rep. 4.
The least that the plaintiff in error is
entitled to receive for the transporta-
tion and supply of its gas is a rate
which will produce a fair return upon
the fair and reasonable value of its
property used and useful in serving the
public.
Taylor, Due Process of I^w, p. 414;
Smyth V. Ames, 169 U. S. 466, 546, 547,
42 L. ed. 819, 849, 18 Sup. Ct. Rep. 418;
San Diego Land & Town Co. v. National
City, 174 U. S. 739, 755-757, 43 L.
ed. 1154, 1160, 1161, 19 Sup. Ct. Rep.
804; Cotting v. Kansas City Stock
Yards Co. (Cotting v. Godard) 183 U. S.
79, 89, 91, 46 L. ed. 92, 101, 102, 22 Sup.
Ct. Rep. 30; Lincoln Gas & E. L. Co. v.
Lincoln, 223 U. S. 349, 56 L. ed. 4C6,
32 Sup. Ct. Rep. 271; Wilcox v. Con-
soHdated Gas Co. 212 U. S. 19, 53 L. ed.
382, 48 L.R.A.(N.S.) 1134, 29 Sup. Ct.
Rep. 192, 15 Ann. Cas. 1034; Minnesota
Rate Cases (Simpson v. Shepard) 230
U. S. 352, 434, 454, 457, 57 L. ed. 1511,
1555, 1563, 1565, 48 L.R.A.(N.S.) 1151,
33 Sup. Ct. R«p. 729, Ann. Cas. 1916A,
18.
In fixing intrastate rates for an inter-
state public utility, the state has no
right to take into consideration the busi-
ness of the company outside of the
state, or base them on the value of the
property outside the state.
Smyth V. Ames, 169 U. S. 466, 541, 42
L. ed. 819, 847, 18 Sup. Ct. Rep. 418;
Judson, Interstate Commerce, § 134; 2
Willoughby, Const. § 343, pp. 730, 731;
Wood V. Vandalia R. Co. 231 U. S. 1, 7,
58 L. ed. 97, 100, 34 Sup. Ct. Rep. 7;
Missouri Rate Cases (Knott v. Chica'go,
B. & Q. R. Co.) 230 U. S. 474, 498, 504,
57 L. ed. 1571, 1590, 1593, 33 Sup. Ct.
Rer). 975; Minnesota Rate Cases (Simp-
son v. Shepard) 230 U. S. 352, 459, 467,
471, 57 L. ed. 1511. 1565, 1568, 1570,
48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep.
729, Ann. Cas. 1916A, 18.
Where state regulations necessarily
operate on interstate commerce they are
void, regardless of the motive or assert-
ed purpose of the state.
Galveston, H. & S. A. R. Co. v. Texas,
210 U. S. 217, 227, 52 L. ed. 1031, 1037,
28 Sup. Ct. Rep. 638; Stockard v.
Morgan, 185 U. S. 27, 37, 46 L. ed. 785,
794, 22 Sup. Ct. Rep. 576; Asbell v.
Kansas, 209 U. S. 251, 254, 256, 52 L.
ed. 778, 780, 781, 28 Sup. Ct. Rep. 485,
64 li. od.
14 Ann. Cas. 1101; Western U. Teleg.
Co. v. Kansas, 216 U. S. 1, 22, 46, 54
L. ed. 355, 363, 374, 30 Sup. Ct Rep.
190; Illinois C. R. Co. v. Greene, 244 U.
S. 555, 61 L. ed. 1309, 37 Sup. Ct, Rep.
697; Union P. R. Co. v. Public Service
Commission, 248 U. S. 67, 63 L. ed. 131,
P.U.R.1919B, 315, 39 Sup. Ct. Rep. 24.
K this case be regarded as involving
a conflict between the principle that a
state may make certain regulations in-
volving interstate commerce, and the
vital principle that, in the absence of
action by Congress, a state may not
make any regulation which impedes in-
terstate commerce, the Federal rule must
prevail.
Houston, E. & W. T. R. Co. v. United
States, 234 U. S. 342, 351, 58 L. ed. 1341,
1348, 34 Sup. Ct. Rep. 833; Landon y.
Public Utilities Commission, 245 Fed.
950.
In fixing the gas rates, the state neces-
sarily regulates the rate or return for
the interstate transportation of the gas,
and that is beyond its power.
West V. Kansas Natural Gas Co. 221
U. S. 229, 55 L. ed. 716, 35 L.R.A.(N.S.)
1193, 31 Sup. Ct. Rep. 564; Railroad
Commission v. Worthington, 225 U. S.
101, 56 L. ed. 1004, 32 Sup. Ct. Rep.
653 ; Kirmeyer v. Kansas, 236 U. S. 568,
59 L. ed. 721, 35 Sup. Ct. Rep. 419;
Kellev V. Rhoads, 188 IT. S. 9, 47 L. ed.
363, 23 Sup. Ct. Rep. 259; Pipe Line
Cases (United States v. Ohio Oil Co.)
234 U. S. 548, 58 L. ed. 1459, 34 Sup. Ct
Rep. 956.
The protection of interstate commerce
from state regulation afforded by the
conmierce clause is not limited to com-
mon carriers.
International Paper Co. v. Massa-
chusetts, 246 U. S. 135, 142, 64 L. ed
624, 629, 38 Sup. Ct. Rep. 292, Ann. Cas,
1918C, 617; Looney v. Crane Co. 245
U. S. 178, 62 L. ed. 230, 38 Sup. Ct. Rep.
85; International Text-book Co. v. Pigg,
217 U. S. 91, 54 L. ed. 678, 27 L.R.A.
(N.S.) 493, 30 Sup. Ct. Rep. 481, 18
Ann. Cas. 1103; Brennan v. TitusviUe,
153 U. S. 289, 38 L. ed. 719, 4. Inters.
Com. Rep. 658, 14 Sup. Ct. Rep. 829.
The finding of the court of appeals
that the transaction in its entirety is in-
terstate commerce is a finding of fact,
based on the evidence (the pleadings),
and is conclusive.
Interstate Amusement Co. t. Albert,
239 U. S. 560, 60 L. ed. 439, 36 Sup. Ct
Rep. 168; German Sav. & L. See. v.
Dormitzer, 192 U. S. 125, 48 L. ed. 373,
24 Sup. Ct. Rep. 221 ; Minneapolis & St.
L. R. Co. V. Minnesota, 193 U. S. 53, 48
43»
8UPREMK Cut'llT OF THE UNITED STATES.
Oct. Tebm,
L. ed. 614, 24 Sup. Ct. Rep. 396; Ker-
foot V. Farmers' & M. Bank. 218 U. S.
281, 288, 54 L. ed. 1042, 1044, 31 Sup.
Ct. Rep. 14.
Even if the determinatiou by the
oburt of appeals that the transaction in
its entirety is interstate commerce
should be regarded as a conclusion of
law instead of a finding of fact, it is a
conclusion necessarily resulting from the
finding of fact by the court of appeals.
Western U. Teleg. Co. v. Foster, 247
U. S. 106, 62 L. ed. 1006, 1 A.L.R. 1278,
P.UJ1.1918D, 866, 38 Sup. Ct. Rep. 438.
Mr. Ledyard P. Hale argued the cause
and filed a brief for the Public Scnice
Commission :
The decision of the court in Public
Utilities Commission v. Landon, 240 U.
8. 236, 63 L. ed. 677, P.U.R.1919C, 834,
39 Sup. Ct Rep. 268, is conclusive un-
less the fact that the Pennsylvania Gas
Company is a foreign corporation gives
it a privilege* in the state of New York
which a domestic corporation engaged
in the same service could not claim.
See also West Virginia & M. Gas Co.
v. Towers, — Md. —, P.U.R.1919D, 332,
106 Atl. 266; People v. Budd. 117 N. Y.
1, 6 L.R.A. 559, 16 Am. St. Rep. 460, 22
N. E. 670, affirmed in 143 U. S. 517, 36
L. ed. 247, 4 Inters. Com. Rep. 45, 12
Sup. Ct. Rep. 468; Munn v. Illinois, 94
U. S. 113, 24 L. ed. 77; Minnesota Rate
Cases (Simpson v. Shepard) 230 U. S.
352, 432, 67 L. ed. 1611, 1555, 48 L.R.A.
(N.S.) 1161, 33 Sup. Ct. Rep. 729, Ann.
Cas. 1916A, 18; Vandalia R. Co. v. Pub-
* lie Service Commission, 242 U. S. 255,
268, 260, 61 L. ed. 276, 285, 286, P.U.R.
1917B, 1004, 37 Sup. Ct. Rep. 93.
The Pennsylvania Gas Company is en-
gaged in a public service at Jamestown,
Falconer, and Ellicott which is subject
to the regulation of the state of New
York, limited Only by the 14th Amend-
ment of the Federal Constitution and
the Bill of Rights embodied in the state
Constitution.
Saratoga Springy v. Saratoga Gas, E.
ti. & P. Co. 191 N. Y. 134, 18 L.R.A.
(N.S.) 713, 83 N. E. 693, 14 Ann. Cas.
606; Munn v. Illinois, 94 U. S. 125, 24
L. ed. 84; Budd v. New York, 143 U. S.
535, 36 L. ed. 252, 4 Inters. Com. Rep.
45, 12 Sup. Ct. Rep. 468.
A foreign corporation may not engage
«tn a "business in New York that is for-
bidden to a New York corporation; nor
■may it escape a regulation lawfully pre-
scribed for a New York corporation.
Paul V. Virginia, 8 AVall. 168, 19 L.
^. 367; Horn Silver Min. Co. v. New
440
York, 143 U. S. 306, 314, 316, 36 L. ed.
164, 168, 4 Inters. Com. Rep. 67, 12 Sup.
Ct. Rep. 403; German-American Coffee
Co. V. Diehl, 216 N. Y. 67, 109 N. E. 875.
Mr. Lonia L. Thrasher argued the
cause and filed a^ brief for the city of
Jamestown et al. :
The state may regulate this matter in
the absence of legislation by the Fed-
eral government.
Gibbons v. Ogden, 9 Wheat. 196, 6 L.
ed. 70; Red "C^^ Oil Mfg. Co. v. Board
of Agriculture, 222 U. S. 380, 66 L. ed.
240; 32 Sup. Ct. Rep. 152; Wilson v.
Black Bird Creek Marsh Co. 2 Pet. 245,
7 L. ed. 412; Gilman v. Philadelphia, 3
Wall. 713, 18 L. ed. 96 ; Pound v. Turck,
95 U. S. 459, 24 L. ed. 625; Keokuk
Northern Line Packet Co. v. Keokuk, 95
U. S, 80, 24 L. ed. 377; Minnesota Rate
Cases (Simpson v. Shepard) 230 U. S.
362, 67 L. ed. 1611, 48 L.R.A.(N.S.)
1151, 33 Sup. Ct. Rep. 729, Ann, Cas.
1916A, 18; Missouri, K. & T. R. Co. v.
HaiTis, 234 U. S. 412, 68 L. ed. 1377,
L.R. A.1915E, 942, 34 Sup. Ct. Rep. 790 ;
Vandalia R. Co. v. Public Service Com-
mission, 242 U. S. 255, 61 L. ed. 276,
P.U.R.1917B, 1004, 37 Sup. Ct. Rep. 93 ;
Western U. Teleg. Co. v. Richmond, 178
Fed. 310, afiirmed in 224 U. S. 160, 56
L. ed. 710, 32 Sup. Ct. Rep. 449.
Regulation of the selling price of
natural gas piped from one state to an-
other is not of a character requiring uni-
form national legislation, and hence is
not within that class of cases where the
states are prohibited from legislation,
even though Congress has not acted.
Jamieson v. Indiana Natural Gas &
Oil Co. 128 Ind. 555, 12 L.R.A. 652, 3
Inters. Com. Rep. 613, 28 N. E. 76;
State ex rel. Caster v. Flan nelly, 96 Kan.
372, P.U.R.1916C, 810, 152 Pac. 22.
The delivery and sale of natural gas.
after transportation from one state to
another, is not interstate commerce.
Public Utilities Commission v. Lan-
don, 249 U. S. 236, 63 L. ed. 577,
P.U.R.1919C, 834, 39 Sup. Ct. Rep. 268;
Leisy v. Hardin, 135 U. S. 128, 34 L. ed.
139, 3 Inters. Com. Rep. 36, 10 Sup. Ct.
Rep. 681.
State regulation of the selling price of
gas piped in from another state is not a
regulation of interstate commerce. It
infringes no province of Congress, is
not* a restriction upon interstate com-
merce in any sense, and is an appropri-.
ate exercise of a purely state function.
Manufacturers' Light & Heat Co. v.
Ott, 216 Fed. 940.
The case of Public Utilities Commis-
259 U. S,
iiiltf.
PENNSYLVANIA GAS CO. v. PUBLIC SKRVICE OJADkllSSION.
26-28
sion ▼. LandoD, 249 U. 6. 236, 63 L. ed.
577, P.UJ1.1919C, 834, 30 Sup. Ct. Bep.
268, ifi deeisive of the state's right to fix
and determine the* proper rate to be
charged for gas sold to its inhabitants.
The eonrt below having eorrectly de*
tennined that the Public Serviee Com-
mission of the State of New York has
jurisdioti<m to fix the rates for gas sold
within that state, this court will not dis-
turb that holding, even though a wrong
reason was adopted for such correct re-
sult
Taylor v. Thomas, 195 N. Y. 690, 89
N. E. 1113, affirmed in 224 U, S. 73, 66
L. od. 673, 32 Sup. Ct. Rep. 403; People
ex reL White v. Buffalo, 157 N. Y. 431,
52 N. E. 181; Ward v. Hasbrouck, 169
N. Y. 407, 62 N. E. 434; East Hampton
V. Bowman, 136 N. Y. 621, 32 N. E. 987.
Mr. Justice Day delivered the opinion
of the* court:
This writ of error brings before us
for consideration the question whether
the Public Service Commission of the
State of New York has the power to
regulate rates at which natural gas shall
be furnished by. the Pennsylvania Gas
Company, plaintiff in error, to consum-
ers in the city of Jamestown, in the
state of New York. The court of [87]
appeals of New York (225 N. Y. 397,
P.U.R.1919C, 663, 122 N. B. 260) held
that the Commission had such authority.
The statute of the state of New York,
§ 65, Public Service Commissions Law,
Laws 1910, chap. 480, provides: "Every
gas corporation, every electrical corpo-
ration and every municipality shall fur-
nish and provide such service, instru-
mentalities and facilities as shall be
safe and adequate and in all respects
just and reasonable. All charges made
or demaiided by any such gas corpora-
tion^ electrical corporation or municipal-
ity for gas, electricity or any service
rendered or to be rendered, shall be just
and reasonable and not more than al-
lowed by law or by order of the com-
mission having jurisdiction. Every un-
just or unreasonable charge made or de-
manded for gas, electricity or any such
serviee, or in connection therewith, or
in excess of that allowed by law or by
the order of the commission is pro-
hibited.''
Consumers of gas furnished by the
plaintiff in error in the city of James^
town. New York, filed a complaint de-
manding a reduction of gas rates in that
«4 Jj. ed.
city. The Public Service CommissioB
asserted its jurisdiction, which, as we
haVe said, was sustained by the court
of appeals of New York.
The Federal question presented for
our consideration involves the correct-
ness of the contention of the plaintiff
in error that the authority undertaken
to be exercised by the Commission, and
sustained by the court, was an attempt,
under state authority, to reg^^ate in-
terstate commerce, and violative of the
constitutional power granted to Con-
gress over commerce among the states.
The fadts are undisputed. The plaintiff
in error, the Pennsylvania Gas Company,
is a corporation organized under the
laws of the state of Pennsylvania, and
engaged in transmitting and selling
natural gas in the state of New York
and Pennsylvania. It transports the
gas by pipe lines about 50 miles in
length from the source [28] of supply
in the state of Pennsylvania into th^
state of New York. It sells and delivers
gas to consumers in the city of James-
town, in the town of Ellicott, and in the
village of Falconer, all in Chautauqua
county, New York. It also sells and
delivers natural gas to consumers in the*
cities of Warren, Corry, and Erie, in
Pennsylvania.
We think that the transmission and
sale of natural gas produced in one
state, transported by means of pipe
lines, and directly furnished to consum-
ers in another state, is interstate com-
merce within the principles of the cases
already determined by this court. West
V. Kansas Natural Gas Co. 221 U. S.
229, 55 L. ed. 716, 3j5 L.R.A.(N.S.) 1193,
31 Sup. Ct. Rep. 564; Haskell v. Kansas
Natural Gas Co. 224 U. S. 217, 56 L.
ed. 738, 32 Sup. Ct. Rep. 442; Western
U. Teleg. Co. v. Poster, 247 U. S. 105,
62 L. ed. 1006, 1 A.L.R. 1278, P.U.R.
1918D, 865, 38 Sup. Ct. Rep. 438.
This case differs from Public Utili-
ties Commission v. Landon, 249 U. S.
236, 63 L. ed. 577, P.U.R.1919C, 834,
39 Sup. Ct. Rep. 268, wherein we dealt
with the piping of natural gas from one
state to another, and its sale to inde-
pendent local gas companies in the re-
ceiving state, and held that the retailing
of gas by the local companies to their
consumers was intrastate commerce, and
not a continuation of interstate com-
merce although the mains of the local
companies receiving and distributing the
pras to local consumers were connected
441
28-^
SUPRKMK COrUT OF THE UNITED STATES.
Oct. Term,
>
permanently with those of the trans-
mitting company. Under the circum-
fitanoes set forth in that case we held
that the interstate movement ended
when the gas passed into the local
mains; that the rates to be charged by
the local companies had but an indirect
effect upon interstate commerce, and,
therefore, the matter was subject to
local regulation.
In the instant case the gas is trans-
mitted directly from the source of sup-
ply in Pennsylvania to the consumers in
the cities and towns of New York and
Pennsylvania, above mentioned. Its
transmission is direct, and without in-
tervention of any sort between the
seller and the buyer. The transmission
is continuous and single, and is, in our
opinion, a transmission in interstate
commerce, and therefore [29] subject
to applicable constitutional limitations
which govern the states in dealing with
matters of the character of the one now
before us.
The general principle is well estab-
lished and often asserted in the decisions
of this court that the state may not
directly regulate or burden interstate
<!ommerce. * That subject, so far as leg-
* idative regulation is concerned, has been*
committed by the Constitution to the
control of the Federal Consrress. But
while admitting this general principle,
it, like others of a general nature, is
subject to qualifications not inconsistent
with the general rule, which now are as
well established as the principle itself.
In dealing with interstate commerce it
is not, in some instances, regarded as
an infringement upon the authority dele-
gated to Congress, to permit the states
to pass laws indirectly affecting such
commerce, when needed to protect or
regulate matters of local interest. Such
laws are operative until Congress acts
under its superior authority by regulat-
ing the subject-matter for itself. In
varying forms this subject has* frequent-
ly been before this court. The previous
cases were fully reviewed and deduc-
tions made therefrom in the Minnesota
Rate Cases (Simpson v. Shepard) 230
XJ. S. 352, 67 L. ed. 1511, 48 L.R.A.
(N.S.) 1151, 33 Sup. Ct. Kep. 729, Ann.
•Cas. 191 6 A, 18. The paramount author-
ity of Congress over the regulation of
interstate commerce was again asserted
in those cases. It was nevertheless rec-
ognized that there existed in the states
a permissible exercise of authoritv,
442
which they might use until Congress had
taken possession of the field of regula-
tion. After stating the limitations up-
on state authority, of this subject, we
said (p. 402) : **But •within these limita-
tions there necessarily remains to the
states, until Congress acts, a wide range
for the permissible exercise of power
appropriate to their territorial jurisdic-
tion, although interstate commerce may
be affected. It extends to those matters
of a local nature as to which it is im-
p>ossible to derive from the constitution-
al grant an intention that they should
go uncontrolled [30] pending Federal
intervention. Thus, there are certain
subjects having the most obvious and di-
rect relation to interstate commerce,
which nevertheless, with the acqui-
escence of Congress, have been con-
trolled by state legislation from the
foundation of the government i)ecause
of the necessity that they should not
remain unregulated, and thaf their
regulation should* be adapted to
varying local exigencies; hence, the ab-
sence of regulation by Congress in
such matters has not imported that there
should be no restriction, but rather that
the states should continue to supply the
needed rules until Congress should
decide to supersede them. . . . Our
system of government is a practical ad-
justment by which the national author-
ity, as conferred by the Constitution, is
maintained in its full scope, without un-
necessary loss of local efficiency. Where
the subject is peculiarly one of local
concern, and from its nature belongs to
the class with which the state appro-
priately deals in making reasonable pro-
vision for local needs, it cannot be re-
garded as left to the unrestrained will
of individuals because Congress has not
acted, although it may have such a re-
lation to interstate commerce as tp be
within the reach of the Federal power.
In such case. Congress must be the judge
of the necessitv of Federal action. Its
paramount authority always enables it
to intervene at its discretion for the
complete and effective government of
that which has been committed to its
care, and, for this purpose and fo this
extent, in response to a conviction of
national need, to displace local laws by
substituting laws of its own. The suc-
cessful working of our constitutional
system has thus been made possible.''
The rates of gas companies transmit-
ting gas in interstate commerce are not
353 U. 8.
1919.
MATTEK or TIFFANY.
30-32
only not regulated by Congress, but the
Interstate Commerce Act expressl}' with-
holds the subject from Federal control.
June 18, 1910, chap. 309, § 7, 36 Stat, at
L. 639, 544, Comp. Stat. §§ 993, 8563, 5
Fed. Stat. Anno. 2d ed. p. 1108, 4 Fed.
Stat. Anno. 2d ed. p. 337.
The thing which the state Commission
has nndertaken to regulate, while part of
an interstate transmission, [31] is local
in its nature, and pertains to the furnish-
ing of natural gas to local consumers
within the city of Jamestown, in the
state of New York. The pipes which
reach the customers served are supplied
with gas directly from the main of the
company which brings it into the state;
nevertheless, the service rendered is es-
sentially local, and the sale Of gas is
by the company to local consumers, who
are reached by the use of the streets of
the city in which the pipes are laid,
and through which the gas is conducted
to factories and residences as it is re-
quired for use. The service is similar
to that of a local plant furnishing gas
to consumers in a city.
This local service is not of that char-
acter which requires general and uni-
form regulation of rates by congression-
al action, and which has always been
held beyond the power of the states,
although Congress has Hot legislated up-
on the subject. While the manner in
which the business is conducted is part
of interstate commerce, its regulation
in the distribution of gas to the local
consumers is required in the public in-
terest, and has not been attempted un-
der the superior authority of Congress.
It may be conceded that the local
rates may affect the interstate business
of the company. But this fact does not
prevent the state from making local
regulations of a reasonable character.
Such regulations are always subject to
the exercise of authority by Congress,
enabling it to exert its superior power
under the commerce clause of the Con-
stitution.
The principles announced, often reit-
erated in the decisions of this court,
were applied in the judgment affirmed
by the Court of Appeals of New York,
and we agree with that court that until
the subject-matter is regulated by con-
gressional action, the exercise of author-
ity conferred by the state upon the
Publio Service Commission is not viola-
tive of the commerce clause of the Fed-
eral Constitution.
Affirmed.
44 L. ed.
[321 IN THE MATTER OF THE APPLI-
CATU^N OF RAYMOND J. TIFFANY, as
Receiver Appointed by the Court of
Chancery or New Jersey of Williaxa
Necker, Inc., a Body Corporate, for a
Writ of Mandamus, or, iu the Alterna-
tive, a Writ of 'Prohibition against the
Honorable J. \A'arren Davis, Dibtriet
Judge of the United States for the Dis-
trict of New Jersey.
(See S. C. Reporter's ed. 32-37.)
Appeal — from district court — final
decision.
1. Au order of a Federal district court
which denied the application of a receiver
of an insolvent corpora tion, appointed by
a state chancery court, for an order turn-
ing over to him the assets of the corpora-
ation in the possession of a receiver previ-
ously appointed by the federal court, is a
final decision within the meaning of the
Judicial Code, § 128, governing the appel-
late review in the circuit courts of appeals
of final decisions of the district court.
[For other cases, see Appeal and Error, 1. d,
in Digest Sup. Ct. 1008.]
Mandamus — prohibition — existence
of other remedy.
2. Resort may not be had to the extraor-
dinary writ of mandamus or prohibition
where the petitioner has the right to a
writ of error or appeal.
[For other cases, see Mandamus, II. b; Pro>
hlbition. II. in Digest Sup. Ct. 1008.]
[No. 26, Original]
Argued January 19, 1.020. Decided March
1, 1020.
APPLICATION of the receiver of an
insolvent corporation, appointed by
a Court of Chancery of New Jersey, for
a writ of mandamus, or, in the alterna-
tive, a writ of prohibition to require the
assets of sueh corporation in the hands
of a Federal receiver to be turned over
to the ajjplicant for administration by
him as receiver. Rule discharged.
The facts are stated in the opinion.
Mr. Merritt Lane argued the cause,
and, with Mr. Dougal Herr, filed a brief
for petitioner.
Mr. Samuel Heyman argued the cause
and filed a brief for respondent.
Note.— ^As to when mandamus is the
proper remedy, generally — see notes to
United States ex rel. International Con-
tracting Co. \^ Lament, 39 L. ed. U. S.
IGO; M'Chinv v. Silliman, 4 L. ed. U. S.
263; Fleming v. Guthrie, 3 L.R.A. 64;
Burns ville Tump. Co. v. State, 3 L.R.A.
265; State ex rel. Charleston, C. C. & C.
R. Co. v. Whitcsides, 3 L.R.A. 777; and
Ex parte Hum, 13 L.R.A. 120.
443
34-36
SLPKKME COURT OF THE UNITED STATES.
OOT.
^
Mr. Justice Day delivered the opinion
of the court:
This is an application of J. Raymond
Tiffany, as receiver, appointed by the
court of chancery of New Jersey, of
William Neeker, Inc., for a writ of man-
damus, or, in the alternative, a writ of
prohibition, the object of which is to
require the district iudge and the dis-
trict court of the United States for the
district of New Jersey to order the
assets of the corporation, in the hands
of a Federal receiver, to be turned over i
to applicant for administration by him I
as receiver appointed by the New Jersey I
court of chancery.
An order to show cause why the
prayer of the petition should not be
granted was issued, a return was made
by the district judge, and the matter
was argued and submitted. The per-
tinent facts are: On September 30,
1916, creditors and shareholders of
William Neeker, Inc., a corporation of
the state of New Jersey, filed a bill in
the United States district court of New
Jersey, alleging the [35] insolvency of
the corporation, praying for the ap-
pointment of a receiver, and a distribu-
tion of the corporate assets among the
creditors and shareholders. The bill al-
leged divei'sity of citizenship as a
ground for jurisdiction. The defendant
corporation appeared and answered, ad-
mitting the allegations of the bill, and '
joined in the prayer that its assets be
sold and distributed according to law.
Upon consent, the district court ap-
pointed a receiver. The estate is in-
solvent, and the assets in the hands of
the Federal receiver are insufficient to
pay creditors, and shareholders will re-
ceive nothing. On April 1, 1919, two
and one-half years after the appoint-
ment of the Federal receiver, creditors
of William Neeker, Inc., filed a bill in
the court of chancery of New Jersey,
alleging the corporation's insolvency,
praying that it be decreed to be insol-
vent, that an injunction issue restrain-
ing it from exercising its franchises,
and that a receiver be appointed to dis-
pose of the property, and distribute it
among creditors and shareholders. A
decree was entered in said cause, adjudg- i
ing the corporation insolvent, .' and ap- !
pointing the petitioner, J. Raymond Tif- '■
fany, receiver. Thereupon^Tiffany made j
application to the United States district |
court, asking that its injunction enjoin- 1
ing the corporation and all of its officers,
and all other persons, from interfer-
ing with the possession of the Fed-
eral receiver, be dissolved; that the Fed-
444
eral receivership be vacated, and tliat
the Federal receiver turn over the assets
of the company, then in his hands* less
administration expenses, to the chan-
cery receiver for final distribution, — the
contention being that the appointment
of the chancery receiver and the pro-
ceedings in the state court superseded
the Federal proceeding, and deprived
the Federal court of jurisdiction.
The Federal receiver had made vari-
ous reports and conducted the business
of the corporation up until the time of
the application in the court of chancery
of New [36] Jersey, in which the appli-
cant was appointed receiver. It appears
that the applicants in the state court
also filed their verified claims with the
Federal receiver, and that no creditor or
shareholder made objection to the ex-
ercise of the jurisdiction of the Fed-
eral court until the application in the
state court.
The Federal district court permitted
the chancery receiver to intervene, heard
the parties, and delivered an opinion in
which the matter was fully considered.
As a result of such hearing and consid-
eration an order was entered in which
it was recited that Tiffany, the state
receiver, had made an application to the
Federal district court for an order di-
recting it to turn over to the chancery
receiver all of the assets of the corpo-
ration in the possession of the Federal
receiver, and the district court ordered,
adjudged, and decreed that the said ap-
plication of J. Raymond Tiffany, re-
ceiver jn chancery, "be and the same
hereby is denied."
By the Judicial Code, § 128 [36 Stat,
at L. 1133, chap. 231, Gomp. Stat. §
1120, 5 Fed. Stat, Anno. 2d ed. p. 607],
the circuit court of appeals is given ap-
pellate jurisdiction to review, hy appeal
or writ of error, final decisions in the
district courts, with certain exeeptions
not necessary to be considered. It is
clear that the order made in the district
court, refusing to turn over the prop-
erty to the chancery receiver, was a
final decision within the meaning of the
section of the Judicial Code to which
we have referred, and from which the
chancery receiver had the right to ap-
peal to the circuit court of appeals. By
the order the right of the state receiver
to possess and administer the property
of the corporation was finally denied.
The words, *'final decision in the dis-
trict court," mean the same thing as
'Tmal judgments and decrees/' as used
in former acts regulating appellate
jurisdiction. Loveland, Appellate Juris-
252 V, S.
191t.
SllArFKU V. CARTER.
36, 37
diction of Federal Courts, § 39. .This
conclusion is amply sustained by the
decisions of this court. Savannah v.
Jesup, 106 U. S. 563, 27 L. ed. 276,
1 Sap. Ct. Bep. 512; Gumbel v. Pitkin,
113 U. 8. 545, 28 L. ed. 1128, 5 Sup.
Ct Rep. 616; [87] Krippendorf v.
Hyde, 110 U. S. 276, 287, 28 L. ed. 145,
149, 4 Sap. Ct. Rep. 27. See also a well-
considered case in the circuit court of ap-
peals, ninth • circuit, — Dexter Horton
Nat. Bank v. Hawkins, 111 C. C. A. 514,
190 Fed. 924.
It is well settled that where a party
has the right to a writ of error or
appeal, resort may not be had to the
extraordinary writ of mandamus or pro-
hibition. Ex parte Harding, 219 U. S.
363, 56 L. ed. 252, 37 L.R.A.(N.S.) 392,
31 Sup. Ct. Rep. 324; Re Oklahoma, 220
It. 8. 191, 55 L. ed. 431, 31 Sup. Ct.
Rep. 426. As the petitioner had the
right of appeal to the circuit court of
appeals, he could not resort to the writ
of mandamus or prohibition. It results
that an order mu^ be made discharg-
ing the rule.
Rule dischaiged.
OffARLKS B. SHAFFER, Appt.,
V.
FRANK C. CARTER, State Auditor, and
Abner Bruot, Sheriff of Creek County,
Oklahoma. (No. 531.)
CHARLES B. SHAFFER, Appt,
V.
FRANK C. CARTER, State Auditor, and
Abner Brace, Sheriff of Creek County,
OkUhoma. (No. 580.)
(See 8. 0. Reporter's ed. 37-59.)
Appeal •* tecnk diatrlot oonrt — dl8«
' mteaal •*• InterlooQlory decree —
1. An appeal to the Federal Supreme
Court, taken under the Judicial Code,
§ 266, from the denial hy a district court
of an interlocutory application for an in-
junction to restrain the ^enforcement of a
state statute on constitutional grounds,
must be dismissed where tlie decree as
entered not only disposed of the applica-
tion, but dismissed the action, and another
appeal was later taken from the same de-
cree under § 238, this being the proper
practice, since the denial of the applica-
tion was merged in the final decree.
[For other cases, see Appeal and Error, 860-
993. In Digest Sup. Ct. 1908.]
Equity — JurlBdlction — remedy at law.
2. Statutes which may furnish an ade-
quate legal remedy against taxes assessed
under an unconstitutional law do not bar
resort to equity by a taxpayer, who avers
that the tax lien asserted by virtue of the
levy and tax warrant, itself attacked on
constitutional gromids, creates a cloud on
title, where there appears to be no legal
remedy for the removal of a cloud on title
cast 1^ an invalid lien imposed for a tax
valid m itself.
[For other cases, see Equity, I. e* in Digest
Sup. Ct 1908.1
Eaolty — jurisdiction — doing complete
justice — mnltlpliclty of snlts.
3. Equitable jurisdiction of a suit
which presents one ground for equitable
relief, with no adequate remedy at law, ex-
tends to the disposition of all the questions
raised by the bill, since a eourt of equity
does not do justice by halves, and will
prevent, if possible, a multiplicity of suits.
[For other case% see Bgolty, I. a; I. d, 1, la
Digest Sup. Ct 1908.1
Constitutional law — due process of
law ^ taxing Income of nonresi-
dents.
4. A state may, consistently with due
process of law, impose an annual tax upon
the net income derived by nonresidents
from property owned by them within the
state, and from any business, trade, or pro-
fession carried on by them within its
borders.
[For other cases, see ConntltutJonal Law, IT.
b, 6, a, in Digest Sup. Ct 1908.]
Oonstltutlonal law — due process of
law — taxing Income of nonresi-
dents.
6. The facts that it required the per-
sonal skill and management of a nonresi-
dent to bring his income from producing
Hoto.— On direct review by Federal
Supreme Cdnrt of eirenit or district
court judgments or decrees — see notes
to Qwin y. United States, 46 L. ed. U. S.
741: B. Altman ft Co. v. United States,
56 L. ed. U. S. 894; and Berkman v.
United States, 63 L. ed. U. S. 877.
On the inrisdiction of eqnity where
remedy at law exists — see notes to Mel-
dnun ▼. Meldrum, 11 L.B.A. 65; Dela-
ware, L. & W. R. Co. V. Central Stock
Tarda A Transit Co. 6 L.R.A. 855; and
Tyler ▼. Savage, 36 L. ed. U. S. 83.
Aa to constitntionality of income tax
•4 ti. ed.
— see notes to State ex rel. Bolens v.
Frear, L.R.A.1915B^ 569, and Alderman
V. Wells, 27 L.R.A.(N.S.) 864.
As to state beenses or taxes, gener-
ally, as affeeting interstate commerce —
see notes to Rothermer v. Meyerle, 9
L.R.A. 366; American Fertilizing Co. ▼.
Board of Agriculture, 11 L.R.A. 179;
Gibbons v. Ogden, 6 L. ed. U. S. 23;
Brown v. Maryland, 6 L. ed. U. S. 678;
Ratterman v. Western U. Teleg. Co. 32
L. ed. U. S. 229; Harmon v. Chicago, 37
L. ed. U. S. 217; Cleveland, C. C. & St.
L. R. Co. V. Backus. 38 L. ed. U. S 1041 ;
445
(
SUrUEMK LOIRT OF THE UXUED STATES.
Oct. Tmm,
property within the state to f mil ion, and
that his management was exerted from his
Elace of business tn anotlier state, did not,
T reason of the due process of law clause
of the Federal Constitution, deprive the
former state of jurisdiction to tax the
income which arose within its o\\ni borders.
(For other cases, see Constitutional Law, IV.
b, 6, a, in Digest Sup. Ct. IOCS.]
Constitutional law ^— privileges and
immunities — equal protection of the
la^vs — taxing income of nonresi-
dents — discrimination.
6. Nonresidents are not denied their
constitutional privileges or immunities,
nor the equal protection of the laws, by a
state tax imposed upon the net income
derived by them from property owned with-
in the state, and from ^ny business, trade,
or profession carried on within its borders,
either on the theory that, since the tax is,
as to citizens of the state, a purely per-
I &onaI tax, meabured by their incomes,
r while' as applied to a nonresident, it is
I essentially a tax upon his property and
j business within the state, to which the
property and business of citizens And resi-
dents of the state are not subjected, there
was a discrimination against the nonresi-
dent, or because the taxing statute permits
residents to deduct from their ffrosa in-
come not only losses incurred within the
state, but also those sustained elsewhere,
while nonresidents may deduct only those
incurred within the state.
[For other cases, see Constitutional Law, IT.
a, 4, in Digest Sup. Ct. 1908.]
Commerce ~ state taxation — inoome
of nonresidents.
7. A state income tax upon the net
income of a nonresident from the business
carried on by him in the state is not a
burden on interstate commerce merely be-
cause the products of the businesa are
Postal Tfeleg. Cable Co. v. Adams, 39 L.
ed. U. S. 311; and Pittsburg & S. Coal
Co. V. Bates, 39 L. ed. U. S. 538.
As to constitutioDai equality of priv-
ileges, immunities, and protection, gen-
erally— see note to Louisville Safety
Vault & T. Co. V. Louisville & N. R. Co.
14 L.R.A. 679.
»• '
Validity and construction of statutes
taxing the income of nonresidents
from trade, business^ or other sources
within the state.
The right of a state to levy an income
tax upon income received by a nonresi-
dent from property within the state is
definitely settled in the affirmative by
the decisions in Shaffer v. Carter, and
Travis v. Yale & T. Mfg. Co. post, 460.
The validity- of a state tax upon the
incomes of nonresidents was questioned
in the Income Tax Cases, 148 Wis.
456, L.R.A.1915B, 569, 134 N. W.
673, 135 N. W. 164, Ann. Cas. 1913A,
1147, but was not determined in that
case, which was one to test the act as a
whole, the court stating that the rejec-
tion of any or all of the provisions ob-
jected to could not reasonably be held
to invalidate the whole act. A wht of
error to review the decision of the Wis-
consin court was dismissed by the Unit-
ed States Supreme Court in 231 U. S.
616, 58 L. ed. 400, 34 Sup. Ct. Rep. 272.
But the state cannot arrant to its resi-
dents an exemption which it deuie^ to
nonresidents. Travis v. Yale & T- Mfg.
Co. post, 460. See that case for exemp-
tion involved.
The right of the state to levy a tax in
the nature of an excise tax requiring the
payment of a given per cent on the net
income of corporations doing business
446
within the state, and, in the case of for-
eign corporations apportioned accord-
ing to a fixed rule, was sustained in
Un4erwood Typewriter Co. v. Chamber-
lain, 94 Conn. 47, 108 Atl. 154, where the
apportionment was made dependent in
fact on the value of the corporate
property situated within the state, and
the amount of the tax was not excessive,
regarded as a tax on property within the
state, and where there was no discrim-
ination against interstate commerce in
the measurement or apportionment of
the tax.
Necessarily a great many 'questions
arise over . the construction of suck
statutes.
The income from stocks and bonds of
corporations organized under larWs of
the United States, and from bonds and
mortgages secured upon property in the
United States, — all owned by a nonresi-
dent alien, — which income is collected
and remitted to her by an agent domi-
ciled in the United States who has phys-
ical possession of suoh securities undw
a power of attorney wliieh gives him au-
thority to sell, assign, or transfer any
of them, — and to invest and reinvest the
proceeds of such sales, as he may deem
best in the management of tbe business
affairs of the principal, was income do-
rived from property owned in the Unit-
ed States, within the meaning of the
Federal Act of October 3, 1913 (38 SUt
at L. 166, chap. 16, 4 Fed. Stat. Anno.
2d ed. p. 236), section XL A, subd. 1^
imposing a tax upon the entire net in-
come from all property owned and of
every business, trade, or profession car-
ried on in the United States by persons
residing elsewhere. De Qanay .v. Led-
erer, 250 U. S. 376, 63 L. ed. 1042, 39
Sup. Ct. Rep. 524.
S52 V. 8.
1919.
SIIAFFKll V. CAUTEU.
tldpped out of the state, siuce the tivc,
not being upon gross receipts, but only
ujpon the net proceeds, is plainly suiii tain-
able even if it includes net gains from in-
terstate commerce.
CBV>r other cases, see Commerce, III. d, 3, in
Digest Sap. Ct. 1908.]
Taxes ^ Inoome of nonresident -^ gross
prodacUon tax — implied repeal.
8. The Oklahoma gross prosjiuction tax
bnpoeed upon those engaged in producing
oil or natural gas within the state, in lieu
of aJI taxes imposed by the state, counties,
or munioipalitiea upon the land or the
leases, mining rights, and privileges, and
the machinery, appliances, and equipment
pertaining to sucli production, does not re-
lieve a nonresident of the payment of the
Income tax imposed by that state upon
the net income derived by nonresidents
from oil operations within the state. The
gross production tax was intended as a
substitute for the ad valorem tax, but not
for the income tax, and there is no such
repugnance between it and the income tax
as to produce a repeal by implication.
[For other cases, see Tuxes, I. c, 6 ; Statutes,
III. b, in IJlgest Sup. Ct. 1908.]
Ck>nstitutional law — due process off
law — cqnal protection of the laws —
double taxation.
9. Nothing in the Federal Constitu-
tion or in the 14th Amendment prevents
the states from imposing double taxation
or any other form of unequal taxation so
long as the inequality is not based upon
arbitrary distinctions.
[For other cases, see Constltntlonal law, IV.
a, 4, in Digest Sup. Ct. 1008.]
Constitutional law — due process of
law ^ taxing income of nonresidents
— lien.
10. A nonresident whose entire prop-
erty within the state consists of oii-produo-
But interest due a nonresident on
t>onds of a domestic corporation was
held not income derived from sources
within the state or within the jurisdic-
tion of the state, within the meaning of
the Wisconsin Income Tax Law, in
State ex rel. Manitowoc Gas Co. ▼. Wis-
cousin Tax Commissioui 161 Wis. 111|
152 K W. 848.
A state statute levying a tax upon the
income of a nonresident derived from
sources within the state or within its
jurisdiction does not authorize a tax up-
on the income of a trust estate, — the
trustee and beneficiaries all being non-
residents, and the income not bein^ de-
rived from property located or business
transacted within the state, — merely be-
cause a county court within the state
was administering the trust. Bayfield
County ▼. Pishon, 162 Wis. 466, 156 N.
W. 463.
In some cases the statutes levy the tax
upon business transacted within the
jurisdiction. When business is trans-
act^ or done in a jurisdiction is a ques-
tion that depends upon the facts of the
individual case.
A Canadian company was transacting
business in the United States, where it
sent its agents clothed with power, even
though linaited, to travel about and so-
licit customers or purchasers for its
manufactured products, and paid their
expenses and hired a place of business in
the United States, even though but desk
room, and empowered such salesmen to
make written contracts in part in the
United States, subject to its approval in
Canada, and, when approved, to deliver
theni) and did so ratify and have such
contracts delivered, paid rent, storage
charges, and other expenses and also for
the work sa done, by checks drawn on
•4 li. ed.
a bank in the United States, where it
kept temporarily its funds received for
goods delivered in the United States to
purchasers, and then, to carry out and
perform its written contracts so made,
and which in nearly all cases were to be
perfoirmed in the United States as to de-
livery of goods, and in part as to making
payments therefor, shipped such goods,
consigned tp itself, into the United
States at different points, where it hired
and paid for storage or warehouse
room, and hdd them delivered to itself at
such rooms, where it stored them for it-
self in its own name and at its own risk,
pending delivery to the customer, ana
did this for its own convenience and to
insure delivery according to contract^
and also shipped to the United States
and stored in like manner goods to meet
anticipated demands. Accordingly the
Canadian company was held liable to an
income tax in the United States.
Laurentide Co. v. Durey, 231 Fed. 223.
The English statute of 1853, chap. 34^
§ 2, schedule D, imposes a tax upon
every person, although nonresident of
the United Kingdom, in respect of prof-
its from any trade exercised within the
United Kingdom.
The English court admits the difficulty
of determining when a trade is carried
on within the United Kingdom. Lord
Esher, M. R., states in Werle v.
Colquhoun, L. R. 20 Q. B. Div. 753 : "I
agree with the opinion expressed by the
late Lord Chief Justice Cockbum in
SuUey V. Atty. Gen. [infra] that it is
probably a question of fact where the
trade is carried on. That question is-
di visible into two, — Is there a trade
carried on? If so, is it carried on in
England? If it is a question of fact in
each case it will be impossible to give
44T
I
1
SCFIUOIE COl RT OF THE UNITED STATES.
Oct. Te»m.
)
ing land, oil and gas mining leasoliolds,
and oth^r property used in the production
of oil and gas, and whose entire net in-
come in the gtate was derived from his oil
operations, which he managed in that and
other states as one business, haring pro-
ceeded, with notice of a law of the state
taxing incomes derived by nonresidents
from business carried on within its borders,
to manage the property and conduct the
business out of which arose the income
taxed under such law, cannot claim that
the state exceeded its power or authority
so as to deny due process of law by treat*
ing his property interests and his business
as a single entity, and enforcing payment
of the tax by the imposition of a lien, to
be followed by execution or other appro-
priate process upon all the property em-
ployed by him within the state in the busi-
ness.
(For other cases, see Constitutional Law, lY.
b, 6, a, in Digest Sup. Ct. 1908.]
[Nos. 531 and 680.]
Argued December 11 and 12, 1919. De-
cided March 1, 1920.
APPEAL from the District Court of
the United States for the East-
ern District of Oklahoma to review the
refusal of a temporary injunction to re-
strain the enforcement of an income tax
assessed against a nonresident. Dis-
missed for want of jurisdiction. Also
AN APPEAL from the same decree as
a Qna! decree dismissing the suit.
AflBrmed.
The facts are stated in the opinion*
Mr. Malcolm B. Bosaer argued the
cause, and, with Messrs. Qeorge S.
Ramsey, Edgar A. De Meules, villard
Martin, and J. Berry King, filed a brief
for appellant:
The appellant has no plain, adequate,
and complete remedy at law.
Thompson v. Detroit, 114 Mich. 602,
72 N. W. 320; Weston v. Luce County,
102 Mich. 628, 6l N. W. 16; Chauncey
V. Wass, 36 Minn. 1, 25 N. W. 826, 30
N. W. 830; Dodge v. Osbom, 240 U. S.
118, 60 L. ed. 657, 36 Sup. Ct. Rep. 275;
an exhaustive definition of what, con-
stitutes carrying on a trade. The ques-
tion in each case must be whether the
facts shewn to exist in that particular
ease establish that a trade is carried on
and that it is carried on in England
. . . One way of testing whether this
trade was carried on in England is that
which I enunciated in Erichsen v. Last
[infra] ; that 'wherever profitable con-
tracts are habitually made in England
by or for foreigners, with persons in
England because they are in England, to
do something for or supply something to
those persons, sueh foreigners are exer-
cising a profitable trade in England
even though everything to be done by
them in order to fulfil the contracts is
done abroad.' . . . I think that both
the learned judges who heard that case
expressed the same thing. 'Cotton, L. J.,
said: 'When a person habitually does
and contracts to do a thing capable of
producing profit, and for the purpose of
producing profit, he carries on a trade
or business;' and Jessel, M. R., said:
'There are a multitude of things which
together make up the carryinir on of
trade, but I know no one distinguishing
incident, for it is a compound fact made
up of a variety of things;' and further:
'The company habitually receive money
in this country from English subjects
for messages sent from England to
places abroad, and may transmit those
messages from stations in this country
to places abroad. This, I think, makes
it a carrying on of trade in this countr>'.'
There is no reliance placed on the fact
448
of there being an establishment in Eng-
land, nor upon the fact of the money
being received in England. K both these
facts exist, they are strong circum*
stances to shew that a trade is carried
on in England, but their absenoe is not
conclusive against this." In the same
case, Fry, L. J., states: **Now I shall
not attempt anything like a definition of
exercising a trade within the United
Kingdom. I think it is obvious that tke
late Master of the Rolls was correct
when he said that whatever else those
words may mean, they plainly included
carrying on a trade; ana I also entirely
agree in his observation that the ques-
tion whether a trade is carried on is not
a matter of law, or one in respect of
which you can lay down any one dis-
tinguishing incident, but it is a com-
pound fact, made up of a variety, of
things."
Lord Watson states in Gk«inger v.
Oough [1896] A. C. 326, that the de-
cision of the court of appeal in Werle v.
Colquhoun '^was based upon tlie express
ground that the foreign wine merehant
exercised his trade in England by mak-
ing contracts there for the sale of bis
champagne through bis English agent."
This interpretation put upon the theory
of the court in Werle v. Colquhoun
seems correct It was urged in that
case, however, that the English agent
had no authority to receive orders for
the wine as contracts, but that alL he
could do was to forward them to the
French merchant for acceptance. The
court, however, states that the inference
352 V. S.
i9ia.
SHAFFER V. CAUTKU.
Union P. R. Co. v. Weld County, 247 U.
8. 282, 62 L. ed. 1110, 38 Sup. Ct. Rep.
610; Davis v. Wakelee, 166 U. S. 680,
39 L. ed. 578, 16 Sup. Ct. Rep. 565;
Singer Sewing Mach. Co. v. Benedict,
229 U. S. 481, 57 L. ed. 1288, 33 Sup. Ct.
Rep. 941; Raymond v. Chicago Union
Traction Co. 207 U. S. 20, 62 L. ed. 78,
28 Sup. Ct Rep. 7, 12 Ann. Cas. 767.
Income, for the purpose of taxation
under the Oklahoma law, is a generic or
special subject of taxation.
State ex rel. Bolens v. Frear, 148 Wis.
466, L.R.A.1916B, 669, 134 N. W. 673,
135 N. W. 164, Ann. Cas. 1913A, 1147;
Tax Comr. v. Putnam (Trefry v. Put-
nam) 227 Mass. 622, L.R.A.1917F, 806,
116 N. E. 904; Com. v. Werth,*116 Va.
604, 82 S. E. 696, Ann. Cas. 1916D, 1263;
Brushaber v. Union P. R. Co. 240 U. S.
1, 18, 60 L. ed. 493, 601, L.R.AJL917D,
414, 36 Sup. Ct. Rep. 236, Ann. Cas.
1917B, 713; Pollock v. Farmers' Loan ft
T. Co. 168 U. S. 601, 39 L. ed. 1108, 16
Sup. Ct. Kep. 912; Doyle v. Mitchell
Bros. Co. 247 U. S. 179-185, 62 L. ed.
1064-1059, 38 Sup. Ct. Rep. 467; Stan-
ton V. Baltic Min. Co. 240 U. S. 103, 112,
60 L. ed. 540, 553, 36 Sup. Ct. Rep. 278 ;
Cooley, Taxn. 3d ed. 6; Oliver v. Wash-
ington Mills, 11 Allen, 268; Pacific Ins.
Co. V. Soule, 7 WaU. 433, 19 L. ed. 95 ;
Stratton's Independence v. Howbert, 231
U. S. 399, 68 L. ed. 285, 34 Sup. Ct. Rep.
136.
As to what is net income, see —
Stratton's Independence v. Howbert,
supra; Tax Comr. v. Putnam (Trefry v.
Putnam) 227 Mass. 522, L.R.A.1917F,
806, 116 N. E. 904; State ex rel. Bundv
V. Nygaard, 163 Wis. 307, L.R.A.1917E,
663, 158 N. W. 87; United States Glue
Co. V. Oak Creek, 161 Wis. 211, 163 N.
W. 241, Ann. Cas. 1918A, 421.
The tax is intended as a tax charge-
able to persons rather than to property.
State ex rel. Bolens v. IVear, 148 Wis.
466, L.R.A.1916B, 669, 134 N. W. 673,
is irresistibly to the contraiy; that the
French wine merchant, by virtue of the
oontract made with his agent in London,
undertook to select and despatch the
wine to the address given him in Eng-
land.
See also note to Maguire t. Trefry,
post, — , on the question as to where a
trade is carried on.
A foreign cable company which had
the ends of two cables in England, at
which places it maintained a staff of
servants to manage the same, -and also
maintained an office in London, employ-
ing in all about forty clerks and elec-
tricians, and which transmitted messages
from England to distant foreign ports,
having an arrangement with the post-
office by which messages received in Eng-
land were transmitted to its outlying sta-
tions, the company making no profits by
the transmission of messages over the
land line» in England, was held to be
exercising a trade in England, and there-
fore taxable under the Income Tax Law.
Erichsen v. Last, L. R. 8 Q. B. Div. 414,
45 L. T. N. S. 703, 61 L. J. Q. B. N. 8.
86, 30 Week. Rep. 301, 46 J. P. 367.
A French wine merchant who sup-
plied large quantities of wine in Eng-
land through agents, resident there, who
canvassed for orders for the wine and
transmitted those received to the mer-
chant, who exercised his discretion as to
filling them, the customer purchasing the
wine as it lay in the cellar of the mer-
chant, and paying the cost of packing
and carriage from the cellar, taking all
risks, and receiving an invoice direct I
• 4 Ii. ed. 2
from the French merchant, was held in
Grainger v. Gough, supra, not to be ex-
ercising a trade in England within the
meaning of the Income Tax Law, taxing
nonresidents who exercised a trade with-
in the United Kingdom.
But in Werle v. Colquhoun, L. B. 20
Q. B. Div. 763, 67 L. J. Q. B. N. S. 323,
68 L. T. N. S. 766, 36 Week. Rep. 613, 62
J. P. 644, a French wine merchant who
carried on his business under very simi-
lar conditions was held taxable with re-
spect of profits on his English business.
In Tischler v. Apthorpe, 62 L. T. N. S.
814, 33 Week. Rep. 648, 49 J. P. 372, a
French wine merchant was held subject
to the tax where one of the partners of
the French firm came to England every
year and remained for about four
months, soliciting orders for wines of
the firm, and at the office of an English
agent had a room devoted to his busi-
ness, and occupied by a clerk who rep-
resented him, and the fact that the Eng-
lish agent was a del credere agent was
held not to change this rule.
So, in Pommery v. Apthorpe, 66 L. J.
Q. B. N. S. 155, 66 L. T. N. S. 24, 35
Week. Rep. 307, a French wine merchant
was held subject to taxes on profits de-
rived from his English business where he
established an agency in London, put his
name jover the office, had bankers in
London and his name in the London di-
rectory, describing his business with the
name of his agent added as wine mer-
chants, and where the agent in London
received as many orders as he could get,
filled part of them from a stock which
9 449
^
SClMtKME COURT OF THE UNITED STATES.
Oct. Term,
>
135 N. W. 164, Aun. Cas. 1913A, 1147;
Black, Income Tax, 2d ed. § 197; Ma-
guire V. Tax Comr. 230 Mass. 603, 120 N.
E. 162; Brady v. Anderson, 153 C. C. A.
463, 240 Fed. 665; State ex rel. Mani-
towoc Gas Co. V. Wisconsin Tax Com-
mission, 161 Wis. Ill, 152 N. W. 848;
State ex rel. Sallie F. Moon Co. y. Wis-
consin Tax Commission, 166 Wis. 287,
163 N. W. 639, 165 N. W. 470; United
States Glue Co. v. Oak Creek, 161 Wis.
211, 153 N. W. 241, Ann. Cas. 1918A,
421; William E. Peck & Co. v. Lowe,
247 U. S. 165, 62 L. od. 1049, 38 Sup.
Ct. Rep. 432.
Under the facts of this cose, appel-
lant's income is never in Okhihoma. Its
situs is in Illinois.
Southern P. R. Co. v. Kentucky, 222
U. S. 63, 56 L. ed. 96, 32 Sup. Ct. Rep.
13; Adams v. Colonial & U. S. Mortg.
Co. 82 Miss. 263, 17 L.R.A.(N.S.) 138,
100 Am. St. Rep. 633, 34 So. 482; Pyle
V. Brenneman, 60 C. C. A. 409, 122 Fed.
787; State v. Clement Nat. Bank, 84 Vt.
167, 78 Atl. 947, Ann. Cas. 1912D, 22;.
Marr v. Vienna, 10 U. C. L. J. 275; Re
Ash worth, 7 U. C. L. J. 47; Board of
Assessors v. New York L. Ins. Co. 216
U. S. 517, 54 L. ed. 597, 30 Sup. Ct. Rep.
385.
Oklahoma cannot tax property not in
the state. To do so would be to take
property without due process of law.
M'Culloch V. Maryland, 4 Wheat. 316,
4 L. ed. 579; State Tax on Foreign-held
Bonds, 15 Wall. 300, 21 L. ed. 179; New
York, L. E. & W. R. Co. v. Pennsylvania,
153 U. S. 628, 38 L. ed. 846, 14 Sup. Ct.
Rep. 95P; Union Refrigerator Transit
Co. V. Kentucky, 199 U. S. 194, 50 L. ed.
150, 26 Sup. Ct. Rep. 36, 4 Ann. Cas.
493; Western U. Tel^. Co. v. Kansas,
216 U. S. 1, 38, 54 L. ed. 355, 370, 30
Sup. Ct. Rep. 190; Northern C. R. Co.
V. Jackson, 7 Wall. 262, 267, 19 L. ed.
he kept in London for that purpose, and
the remainder from the stock which the
French wine merchant kept in France
and transmitted to him upon orders.
Payments in this case were made in vari-
ous ways: in cash, in notes, and in some
instances in drafts or bills. It was the
duty of the agent to receive all these
forms of paper, and, when so received,
they were accepted by the English
agent upon the authority of his princi-
pals as payment, unless they should be
dishonored when they came to maturity.
Profits made by a New York firm in
selling goods which it had purchased in
England through a member of the firm
who was resident there are not taxable
in England. Sulley v. Atty. Gen. (1860)
5 Hurlst. A N. 711, 157 Eng. Reprint,
1364, 29 L. J. Exch. N. S. 464, 6 Jur. N.
S. 1018, 2 L. T. N. S. 439, 8 Week. Rep.
472.
A foreign banking corporation which
had a branch bank in London admitted
its liability to an income tax for the
profits realized at its London branch in
Atty. Qen, v. Alexander, L. R. 10 Exch.
20, 44 L. J. Exch. N. S. 3, 31 L. T. N. S.
694, 23 Week. Rep. 255.
Profits derived by what was apparent-
ly an English company from sales in
England on commission of produce
shipped by growers in and under ar-
rangements and contracts made iji New
Zealand for sale by the company were
held not to be income derived from
business in New Zealand within the
meaning of a New Zealand Income Tax-
ing Law, in Lovell & Christmas v. Tax
Comrs, [1908] A, C. 46. The House of
450
Lords admits the difficulty of determin-
ing what is income, but states that "in
the present case their Lordships are of
opiqion that the business which yields
the i)rofit is the business of selling goods
on commission in London. The commis-
sion is the consideration for effecting
such sales. The moneys received by the
appellants out of which they deduct
their commission and from which, there-
fore, their profits come, are paid to them
under the contract of sale effected in
London. The earlier arrangements en-
tered into in New Zealand appear to
their Lordships to be transactions the
object and effect of which is to bring
goods from New Zealand within the net
of the business which is to yield a prof-
it. To make those transactions a
ground for taxing in New Zealand, the
profits -actually realized in London,
would, in their Lordships' opinion, be to
extend the area of taxation further than
the authorities would warranC
A provision in a state income tax law
granting the board of review power to
increase the assessment of a nonresident
without notice, while requiring notice to
be given to a resident, does not violate
§ 2 of article 4 of the Federal Constitu-
tion, which provides that "the citizens
of each state shall be entitled to all
privil^es and immunities of citizens in
the several states." Income Tax Cases,
148 Wis. 456, L.R.A.1915B, 569, 134 N.
W. 673, 135 N. W. 164, Ann. Cas. 1913A,
1147. A writ of error to review this de-
cision was dismissed by the United
States Supreme Court in 231 U. S. 616,
58 L. ed. 400, 34 Sup. Ct. Rep. 272.
252 U. &
I
1919.
SllAFFKIl V. tAKHJ:.
88, 80; Pullman's Palace Car Co. v.
Pennsylvanta, 141 U. S. 18, 35 L. ed. G13,
3 Inters. Com. Rep. 595, 11 Sup. Ct.
Rep. 876; Delaware, L. & W. R. Co. v.
Pennsylvania, 198 U. S. 341, 49 L. cd.
1077, 25 Sup. Ct. Rep. 069.
Inheritance tases rest on an entirely
different basis.
' Blaekstone v. Miller, 188 U. S. 189, 47
L. ed. 439. 23 Sup. Ct. Rep. 277 ; United
States V. Perkins, 163 U. S. 626, 41 L.
ed. 287, 16 Sup. Ct. Rep. 1073; Union
Nat. Bank v. Chicago, 3 Diss. 82, Fed.
Cas. No. 14,374.
The jurisdiction of the Federal gov-
ernment over incomes of aliens is great-
er than that of the states over nonresi-
dents.
United States v. Bennett, 232 U. S.
299, 68 L. ed. 612, 34 Sup. Ct. Rep. 433 ;
Chae Chang Ping v. United States, 130
U. 8. 581, 32 L. ed. 1068, 9 Sup. Ct. Rep.
623; United States ex rel. Turner v.
Williams, 194 U. S. 279, 48 L. ed. 979,
24 Sup. Ct. Rep. 719 ; Willoughby, Const.
§ 124; Fong Yue Ting v. United States,
149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct.
Rep. 1016; Yale & T. Mfg. Co. v. Travis,
262 Fed. 676.
Oklahoma cannot tax the business,
skill, ability, and energy of appellant.
Stratton's Independence v. Howbert,
231 U. S. 399, 68 L. ed. 285, 34 Sup. Ct.
Rep. 136.
There is a difference between corpo-
rations and individuals in this regard.
Adams Exp. Co. v. Ohio State Audi-
tor, 166 U. S. 185, 41 L. ed. 965, 17 Sup.
Ct. Rep. 604.
The provisions of the statute attempt-
ing to create a lien on all of appellant's
property in Oklahoma to secure pay-
ment of the income tax arc void and
create no lien.
Dewey v. Des Moines,. 173 U. S. 193,
43 L. ed. 665, 19 Sup. Ct. Rep. 379 ; New
York v. McLean, 170 N. Y. 374, 63 N. E.
380; Scholey v. Rew, 23 Wall. 331, 23
L. ed. 99.
If the tax is held to be an excise tax,
the payment by appellant of the gross
production tax required by Okla. Laws
1916, chap. 39, relieves him from liabil-
ity. That chapter repeals the Income
Tax Law so far as the income is derived
from the production of oil and gas.
Northwestern Mut. L. Ins. Co. v.
Wisconsin, 247 U. S. 132, 62 L. ed. 1025,
38 Sup. Ct. Rep. 444; Large Oil Co. v.
Howard, — Okla. — , 163 Pac. 537 ; Siler
V. Louisville & N. R. Co. 213 U. S. 175,
63 L. ed. 753, 29 Sup. Ct. Rep. 451; Ohio
Tax Cases, 232 U. S. 576, 58 L. ed. 737,
44 li. ed.
34 Sup. Ct. Rep. 342; Louisville & N. K.
Co. v. Greene, 244 U. S. 522, 61 L. ed.
1291, 37 Sup. Ct. Rep. 683, Ann. Ca.s.
1917E, 07.
If the tax is an excise tax, it is void
because it deprives the appellant of
privileges and immunities enjoyed by
citizens of Oklahoma, and because it de-
nies him the equal protection of the
laws, and takes his property without due
process of law.
Santa Clara County v. Southern P. R.
Co. 9 Sawy. 165, 18 Fed. 385 ; Slaughter-
House Cases, 16 Wall. 36, 21 L. ed. 394 ;
Chalker v. Birmingham & N. W. R. Co.
249 U. S. 522, 63 L. ed. 748, 39 Sup. Ct.
Rep. 366; Ward v. Maryland, 12 Wall.
418, 20 L. ed. 449; Wiley v. Parmer, 14
Ala. 627; Spraglie v. Fletcher, 69 Vt. 69,
37 L.R. A. 840, 37 Atl. 239 ; New York v.
Weaver, 100 U. S. 539, 27 L. ed. 705;
Farmington v. Downing, 67 N. H. 441,
30 Atl. 345; Paul v. Virginia, 8 Wall.
180, 19 L. ed. 360; Crandall v. Nevada, 6
Wall. 35, 18 L. ed. 745; Oliver v. Wash-
ington Mills, 11 Allen, 268; Travellers'
Ins. Co. V. Connecticut, 185 U. 8. 364,
46 L. ed. 949, 22 Sup. Ct. Rep. 673; Fi-
delity & C. Trust Co. v. Louisville, 245
U. S. 54, 62 L. ed. 145, L.R.A.1918C, 124,
38 Sup. Ct. Rep. 40; Southern R. Co. v.
Greene, 216 U. S. 400, 64 L. ed. 536, 30
Sup. Ct. Rep. 287, 17 Ann. Cas. 1247;
Flint V. Stone Tracy Co. 220 U. S. 107,
55 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 1312; Magoun v. Illinois
Trust & Sav. Bank, 170 U. S. 283, 42 L.
ed. 1037, 18 Svtp. Ct. Rep. 594; License
Tax Cases, 5 Wall. 462, 18 L. ed. 497;
Western U. Teleg. Co. v. Kansas, 216 U.
S. 1, 30, 54 L. ed. 355, 367, 30 Sup. Ct.
Rep. 190; Louisville. & N. R. Co. v.
Greene, 244 U. S. 522, 61 L. ed. 1291, 37
Sup. Ct, Rep. 683, Ann. Cas. 1917B, 97.
If the tax is a privilege or excise tax,
it is void because it lays a burden on in-
terstate commerce.
Crew Levick Co. v. Pennsylvania, 245
U. S. 292, 62 L. ed. 295, 38 Sup. Ct. Rep.
126; Postal Teleg. Cable Co. v. Adams,
155 U. S. 688, 696, 39 L. ed. 311, 315, 5
Inters. Com. Rep. 1, 15 Sup. Ct. Rep.
268, 360; Minnesota Rate Cases (Simp-
son v. Shepard) 230 U. S. 352, 57 L. ed.
1511, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct.
Rep. 729, Ann. Cas. 1916A, 18; Kansas
City, Ft. S. & M. R. Co. v. Botkin, 240
U. S. 227, 60 L. ed. 617, 36 Sup. Ct. Rep.
2G1; Western U. Teleg. Co. v. Kansas,
216 U. S. 1, 54 L. ed. 356, 30 Sup. Ct.
Rep. 190; West v. Kansas Natural Gas
Co. 221 U. S. 260, 55 L. ed. 728, 35
L.R.A.(N.S.) 1193, 31 Sup. Ct. Rep. 561.
451
/i
SUPREME COURl OF THE UNITED STATES.
Oct. Tbim,
Mr. S. P. Freeling, Attorney General
of Oklahoma, and Mr. 0. W. Kmg argued
the cause, and, with Mr. W. R. Bleak-
more, filed a brief for appellees:
There is an adequate remedy at law. j
Berryhill v. Carter, 76 Okla. 248, 185
Pac. 93; Baldwin Tool Works v. Blue,
240 Fed. 203; Black v. Geissler, — Okla.
— , 159 Pac. 1124; Singer Sewing Mach.
Co. V. Benedict, 229 U. S. 481, 57 L. ed.
1289, 33 Sup. Ct. Rep. 941; Sutherland,
Stat. Constr. § 284; Black, Interpreta-
tion of Laws, p. 307; Walker v. Chicago,
56 HI. 277; Hammerslough v. Kansas
City, 46 Kan. 40, 26 Pac. 496; Augusta
V. Timmerman, 147 C. C. A. 222, 233
Fed. 216; Dodge v. Osborn, 240 U. S.
116, 60 L. ed. 557, 36 Sup. Ct. Rep. 275;
Shelton v. Piatt, 139 U. 8. 591, 35 L. ed.
273, 11 Sup. Ct. Rep. 646; Black, Income
Tax, 2d ed. 350.
As to the nature of the Oklahoma in-
come tax, see —
Black, Income Tax, 2d ed. 187; Com.
V. Werth, 116 Va. 604, 82 S. E. 695,
Ann. Cas. 1916D, 1263; Tyee Realty Co.
V. Anderson, 240 U. S. 115, 60 L. ed. 554,
36 Sup. Ct. Rep. 281.
The situs of the income is in Okla-
homa.
Adams v. Colonial & U. S. Mortg. Co.
82 Miss. 263, 17 L.R.A.(N.S.) 138, 100
Am. St. Rep. 633, 34 So. 482; Adams
Exp. Co. V. Ohio State Auditor, 166 U.
S. 185, 41 L. ed. 965, 17 Sup. Ct. Rep.
604; Helser v. State, 128 Md. 228, 97
AtL 639; Buck v. MiUer, 147 Ind. 586,
37 L.R.A. 384, 45 N. E. 647, 47 N. E. 8;
Pollock V. Fanners' Loan & T. Co. 158
U. S. 601, 39 L. ed. 1108, 15 Sup. Ct.
Bep. 912; Brushaber v. Union P. R. Co.
240 U. S. 1, 60 L. ed. 493, L.R.A.1917D,
414, 36 Sup. Ct. .Rep. 236, Ann. Cas.
1917B, 713; Com. v. Werth, 116 Va. 604,
82 S. E. 695, Ann. Cas. 1916D, 1263;
State ex rel. Manitowoc Gas Co. v. Wis-
consin Tax Commission, 161 Wis. Ill,
152 N. W. 848; Delaware, L. & W. R. Co.
V. Pennsylvania, 198 U. S, 341, 49 L.
ed. 1077, 25 Sup. Ct. Rep. 669; Hawley
V. Maiden, 232 U. S. 11, 58 L. ed. 477, 34
Sup. Ct. Rep. 201, Ann. Cas. 1916C, 842;
Blakemore ft B. Inheritance Taxes, §
214; Blackstone v. Miller, 188 U. S. 189,
47 L. ed. 439, 23 Sup. Ct. Rep. 277; New
Orleans v. Stempel, 176 U. S. 309, 44 L.
ed. 174, 20 Sup. Ct. Rep. 110.
A state may levy an income tax on
nonresidents.
M'Culloch V. Maryland, 4 Wheat. 316,
429, 4 L. ed. 579, 607; Pollock v. Farm-
ers' Loan & T. Co. 157 U. S. 429, 39 L.
ed. 759, 15 Sup. Ct. Rep. 673. 158 U. S.
601, 39 L. ed. 1108, 15 Sup. Ct. Rep. 912;
452
WilHam E. Peck & Co. v. Lowe, 247 U.
S. 165, 62 L. ed. 1049, 38 Sup. Ct Rep.
432; Crew Levick Co. v. Pennsylvania,
245 U. S. 292, 294, 62 L. ed. 295, 297, 38
Sup. Ct. Rep. 126; Duer v. Small, 4
Blatchf. 263, Fed. Cas. No. 4,116; SUte
Tax on Foreign-held Bonds, 15 Wall.
300, 21 L. ed. 179; Bristol v. Washing-
ton County, 177 U. S. 133, 44 L. ed. 701,
20 Sup. Ct. Rep. 585; Fidelity & C.
Trust Co. v. Louisville, 245 U. S. 54, 62
L. ed. 145, L.R.A.1918C, 124, 38 Sup. Ct.
Rep. 40; Kirtland v. Hotchkiss, 100 U.
S. 491, 25 L. ed. 558; Tappan v. Mer-
chants' Nat. Bank, 19 WaU. 490, 22 L.
ed. 189; Bell's Gap R. Co. v. Pennsyl-
vania, 134 U. S. 232, 33 L. ed. 892, 10
Sup. Ct. Rep. 533; Rogers v. Hennepin
County, 240 U. S. 184, 60 L. ed. 594, 36
Sup. Ct. Rep. 265; New Orleans v.
Stempel, 17'5 U. S. 309, 44 L. ed. 174, 20
Sup. Ct. Rep. 110; Coe v. Errol, 116 U.
S. 517, 524, 29 L. ed. 715, 717, 6 Sup.
Ct. Rep. 475; Knowlton v. Moore, 178 U;
S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep.
747; Blackstone v. Miller, 188 U. S. 189,
205, 47 L. ed. 439, 444, 23 Sup. Ct. Rep.
277..
• The Oklahoma law does not discrimi-
nate against nonresidents nor deny due
process of law.
Black, Income Tax, § 200; Travellers'
Ins. Co. V. Connecticut, 185 U. S. 364, 46
L. ed. 949, 22 Sup. Ct. Rep. 673; State
R. Tax Cases, 92 U. S. 611, 23 L. ed. 673 ;
Bell's Gap R. Co. v. Pennsylvania, 134
U. S. 232, 32 L. ed. 892, 10 Sup. Ct. Rep.
533; Ohio Tax Cases, 232 U. S, 576, 58
L. ed. 737, 34 Sup. Ct. Rep. 372; People
ex rel. Thurher-Whyland v. Barker, 141
N. Y. 118, 23 L.R.A. 95, 35 N. E. 1073, 37
Cyc. 1005; Tischler v. Apthorpe, 52 L.
T. N. S. 814, 33 Week. Rep. 548, 49 J. P.
372, 2 Tax Cas. 89 ; Dowell, Income Tax,
7th ed. 449, 450; Wingate v. Weber, 34
Scot. L. R. 699, 3 Tax Cas. 569 ; McMU-
len V. Anderson, 95 U. S. 37, 24 L. ed.
335.
The instant tax is not a burden on in-
terstate commerce.
12 C. J. 114, § 160 ; United States Glue
Co. V. Oak Creek, 161 Wis. 211, 153 N.
W. 241, Ann. Cas. 1918A, 421; Armour
& Co. V. Virginia, 246 U. S. 1, 62 L. ed.
547, 38 Sup. Ct. Rep. 267; William E.
Peck & Co. V. Lowe, 247 U. S. 165, 62 L.
ed. 1049, 38 Sup. Ct. Rep. 432.
The tax lien on appellant's property
violates no fundamental right.
Dewey v. Des Moines, 173 U. S. 193,
43 L. ed. 665, 19 Sup. Ct. Rep. 379;
Shaffer v. Howard, 250 Fed. 873.
The Income Tax Law was not repealed
252 U. 8.
1919.
SHAFFER V. CARTER.
43-45
or affected by the Gross Production Tax
Act
Large Oil Co. v. Howard, — Okla. — ,
163 Pac 637.
Mr. Justice Pitney delivered the opin-
ion of the court:
These are two appeals, taken under
circumstances that will be explained,
from a single decree in a suit in equity
brought by appellant to restrain the en-
forcement of a tax assessed against him
for the year 1916 under the Income Tax
Law of the state of Oklahoma, on the
ground of the unconstitutionality of the
statute.
A previous suit, having the same ob-
ject, was brought by him in the same
court against the officials then in office,
in which an application for an inter-
locutory injunction, heard before three
judges, pursuant to § 266, Judicial Code
[36 Stat, at L. 1162, chap. 231, Cbmp.
Stat § 1243, 5 Fed. Stat Anno. 2d ed. p.
983], was denied, one judge dissenting.
Shaffer v. Howard, 250 Fed. 873. An
appeal was taken to this court, but,
pending its determination, the terms of
office of the defendants expired, and,
there being no law of the [44] state au-
thorizing a revival or continuance of the
action against their successors, we re-
versed the decree and remanded the
cause, with directions to dismiss the bill
for want of proper parties. 249 U. S.
200, 63 L. ed. 669, 39 Sup. Ct Rep. 266.
After such dismissal the present de-
fendant Carter, as state auditor, issued
another tax warrant and delivered it to
defendant Bruce, sheriff of Creiek coun-
ty, with instructions to levy upon and
sell plaintiff's property in that county
in order to collect the tax in question;
and the sheriff having threatened to pro-
ceed, this suit was commenced. An ap-
plication for an interlocutory injunction,
heard before three judges, was denied
upon the authority of the decision in
250 Fed., and of certain recent deci-
sions of this court. The decree as
entered not only disposed of the ap-
plication, but dismissed the action.
Plaintiff, apparently unaware of this,
appealed to this court under § 266, Judi-
cial Code, from the refusal of the tem-
porary injunction. Shortly afterwards
he took an appeal under § 238, Judicial
Code, from the same decree as a final
decree dismissing the action. The latter
i^3peal is in accord with correct prac-
tice, since the denial of the interlocutory
application was merged in the final de-
cree. The first appeal (No. 531) will be
dismissed.
•4 U ed.
The Constitution of Oklahoma, besides
providing for the annual taxation of all
property in the state upon an ad valorem
basis, authorizes (art. 10, § 12) the em-
ployment of a variety of other means
for raising revenue, among them income
taxes.
The act in question is chap. 164 of the
Laws of 1915.* Its 1st section reads as
follows: "Each and every person in
this state shall be liable to an annual
tax upon the entire net income of such
person arising or accruing from all
sources during the preceding calendar
year, and a like tax ^all be levied, as-
sessed, collected and paid annually upon
the entire net income from all property
owned, arid of every business, trade or
profession carried on in this [45] state
by persons residing elsewhere." Subse-
quent sections define what the term "in-
come" shall include; prescribe how net
income shall be computed; provide for
certain deductions; prescribe varying
rates of tax for all taxable incomes in
excess of $3,000, this amount being de-
ducted (by way of exemption) from the
income of each individual, and for one
living with spouse an additional $1,000,
with further deductions where there are
children or dependents, exemptions be-
ing the same for residents and nonresi-
dents; require (§ 2) a return on or be-
fore March 1st from each person liable
for an income tax under the provisions
of the act for the preceding calendar
year; provide (§ 9) that the state audit-
or shall revise returns and hear and
determine complaints, with power to
correct and adjust the assessment of in-
come; that (§ 10) taxes shall become de-
linquent if not paid on or before the 1st
day of July, and the state auditor shall
have power to issue to any sheriff of the
state a warrant commanding him to levy
the amount upon the personal property
of the delinquent party; and (by § 11) :
"If any of the taxes herein levied be-
come delinquent, they shall become a
lien on all the property, personal and
real, of such delinquent person, and shall
be subject to the same penalties and pro-
visions as are all ad valorem taxes."
Plaintiff, a nonresident of Oklahoma,
being a citizen of Illinois and a resident
of Chicago, in that state, was at the
time of the commencement of the suit
and for several years theretofore (in-
cluding the years 1915 and 1916) en-
gaged in the oil business in Oklahoma,
havin«: purchased, owned, developed, and
operated a number of oil and gas mining
leases, and being the owner in fee of cer-
tain oil-producing land, in that state.
453
(
45-48
SUPKKMK COl UT OF THE UNITED STATP:S.
Ckrr. TfiBii,
Vx.
From properties thus owned and oper-
ated during the year 191G he received a
net income exceeding? $1,500,000, and of
this he made, under protest, a return
>vhich showed that, [40] at the rates
iixed by the act, there was due to the
state an income tax in excess of $76,000.
The then state auditor overruled the pro-
test and assessed a tax in accordance with
the return; the present auditor has put it
in due course of collection ; and plaintiff
resists its enforcement upon the ^ound
that the act, in so far as it subjects the
incomes of nonresidents to the payment
of such a tax, takes their property with-
out due process of law and denies .to
them the equal protection of the laws, in
contravention of § 1 of the 14th Amend-
ment; burdens interstate commerce, in
contravention of the commerce clause
of § 8 of art 1 of the Constitution ; and
discriminates against nonresidents in
favor of residents, and thus deprives
plaintiff and other nonresidents of the
privileges and immunities of citizens and
residents of the state of Oklahoma, in
violation of § 2 of art. 4. He also in-
sists that the lien attempted to be im-
posed upon his property pursuant to §
11, for taxes assessed upon income not
arising, out of the same property, would
deprive him of property without due
process of law.
As ground for resorting to equity, the
bill alleges that plaintiff is the owner
of various oil and gas mining leases cov-
ering lands in Creek county, Oklahoma,
and that the lien asserted thereon by
virtue • of the levy and tax warrant
creates a cloud upon- his title. This en-
titles him to bring suit in equity (Union
P. R. Co. V. Cheyenne (Union P. R. Co.
V. Ryan) 113 U. S. 516, 525, 28 I^ ed.
1098, 1101, 5 Sup. Ct. Rep. 601: Pacific
Exp. Co. V. Seibert, 142 U. S. 339, 348,
35 L. ed. 1035, 1038, 3 Inters. Com. Rep.
810, 12 Sup. Ct. Rep. 250; O^den Citv
V. Armstrong, 168 U.. S. 224, 237, 42 L.
ed. 444, 451, 18 Sup. Ct. Rep. 98; Ohio
Tax Cases, 232 U. S. 576, 587, 58 L. ed.
738, 743, 34 Sup. Ct. Rep. 372; Greene
V. Louisville & I. R. Co. 244 U. S. 49f),
506, 61 L. ed. 1280, 1285, 37 Sup. Ct.
Rep. 673, Ann. Cas. 1917E, 88), unless
the contention that he has a plain, ade-
quate, and complete remedy at law be
well founded.
This contention is based, first, upon
the provision of § 9 of chap. 164, giving
to the state auditor the same power to
correct and adjust an assessment of in-
come that is given to the county board
of equalization in case of ad [47] va-
lorem assessments, taken in conned ion
434
with chap. 107 of the Laws of 1915, which
provides (art. 1, subd.'B, § 2, p. 147) for
an appeal from that board to the district
court of the county. In a recent decision
(Berryhill v. Carter, — Okla. — , 185
Pac. 93), the supreme court of the state
held that an aggrieved income taxpayer
may have an appeal under this section,
and that thus ^'all matters complained
of may be reviewed and adjusted to the
extent that justice may demand.'' But
the fease related to "correcting and ad-
justing an income tax return," and the
decision merely ^stabluihed the appeal
to the district court as the appropriate
remedy, rather than an application to
the supreme court for a writ of certio-
rari. It falls short of indicating — to
say nothing of plainly showing — ^that
this procedure would afford an adequate
remedy to a party contending that the
Income Tax Law itself was repugnant to
the Constitution of the United States.
Secondly, reference is made to § 7 of
subd. B, art. 1, of chap. 107, Oklahoma
Laws 1915, p. 149, wherein it is provided
that where illegality of a tax is alleged
to arise by reason of some action from
which the laws provide no appeal, the
aggrieved person, on paying the tax, may
give notice to the officer collecting it
stating the grounds of complaint and
that suit will be brought against him;
whereupon it is made the duty of such
officer to hold the tax until the final de-
termination of such suit, if brought
within thirty days; and if it be deter-
mined that the tax was illegally collect-
ed, the officer b to repay the amount
found to be in excess of the legal and
correct amount. But this section is one
of several that have particular reference
to the procedure for collecting ad valo-
rem taxes ; and they are prefaced by this
statement (p. 147) : "Subdivision B.
To the existing provisions of law relat-
ing to the ad valorem or direct system
of taxation the following provisions are
added :" Upon this ground, in Gypsy [48]
Oil Co. V. Howard and companion suits
brought by certain oil-producing com-
panies to restrain enforcement of taxes
authorized by the Gross Production Tax
h&w (Sess. Laws 1916, p. 102), upon the
ground that they were an unlawful im-
position upon Federal instrumentalities,
the United States district court for the
western district of Oklahoma held that
the legal remedy provided in § 7 of
chap. 107 applied only to ad valorem
taxes, and did not constitute a hmr to
equitable relief against the production
taxes. Defendants appealed to this
^ court, and assigned this ruling for error,
25S V. B.
1919.
SHAFFER V. CARTER.
4 6 -air
inter alia ; but they did not press the
point, and the decrees were affirmed up-
on the merits of the Federal question.
Howard v. Gipsy OU Go. 247 U. S. 503,
€2 L. ed. 1239, 38 Sup. Ct. Rep. 426.
We deem it unnecessary to pursue fur-
ther the question whether either of the
statutory provisions referred to fur-
nishes an adequate legal remedy against
income taxes assessed under an unconsti-
tutional law, since one of the grounds
•of complaint in the present case is that,
•even if the tax itself be valid, the pro-
-cedure prescribed by § 11 of the Income
Tax Law for enforcing such a tax by im-
posing a lien upon the taxpayer's entire
property, as threatened to be put into
effect against plaintiff's property, for
taxes not assessed against the property
itself, and not confined to the income that
proceeded from the same property, is not
"due process of law," within the require-
ment of the 14th Amendment. For re-
moval of a cloud upon title caused by
an invalid lien imposed for a tax valid
in itself, there appears to be no legal
remedy. Hence, on thi^ ground, at least,
resort was properly had to equity for
relief; and since a court of equity does
not "do justice by halves," and will pre-
vent, if possible, a multiplicity of suits,
the jurisdiction extends to the disposi-
tion of all questions raised by the bill.
Camp V. Boyd, 229 U. S. 530, 551, 652,
57 L. ed. 1317, 1326, 1327, 33 Sup. Ct.
Rep. 785; McGowan v. Parish, 237 U. S.
285, 296, 59 L. ed. 955, 963, 35 Sup. Ct.
Rep. 543.
[49] This brings us to the merits.
tfnder the "due process of law" provi-
sion appellant makes two contentions:
first, that the state is without jurisdic-
tion to levy a tax upon the income of
nonresidents; and, secondly, that the
lien is invalid because imposed upon all
his property, real and personal, without
regard to its relation to the production
of his income.
These are separate questions, and will
be so treated. The tax might be valid,
although the measures adopted for en-
forcing it were not. Governmental ju-
risdiction in matters of taxation, as in
the exercise of the judicial function, de-
pends upon the power to enforce the
mandate of the state by action taken
within its borders, either in personam
or in rem, according to the circumstances
of the ease, as by arrest of the person,
seizure of goods or lands, garnishment
of credits, sequestration of rents and
profits, forfeiture of franchise, or the
like; and the jurisdiction to act remains
even though all permissible measures be
•4 Ii. ei.
not resorted to. Michigan Trust Co. v.
Ferrv, 228 U. S. 346, 353, 57 L. ed. 867,
874, 33 Sup. Ct. Rep. 550 ; Ex parte In-
diana Transp. Co. 244 U. S. 456, 457, 61
L. ed. 1253, 1265, 37 Sup. Ct Rep. 717.
It will be convenient to postpone the
question of the lien until all questions
as to the validity' of the tax have been
disposed of.
The contention that a state is without
jurisdiction to impose a tax upon the
income of nonresidents, while raised in
the present case, was more emphasized
in Travis v. Yale & T. Mfg. Co. decided
this day [252 U. S. 60, post, 460, 40 Sup.
Ct. Rep. 228], involving the Income Tax
Law of the state of New York. There
it was contended, in substance, that
while a state may tax the property of a
nonresident situate within its borders,
or may tax the incomes of its own citi-
zens and residents because of the privi-
leges they enjoy under its Constitution
and laws and the protection they receive
from the state, yet a nonresident, al-
though conducting a business or carry-
ing on an occupation there, cannot [50]
be required through income taxation to
contribute to the governmental expenses
of the state whence his income is de-
rived; that an income tax, as against
nonresidents, is not only not a property
tax, but is not an excise or privil^e tax,
since no privilege is granted; the right
of the noncitizen to carry on his busi-
ness or occupation in the taxing state
being derived, it is said, from the provi-
sions of the Federal Constitution.
This radical contention is easily an-
swered by reference to fundamental
principles. In our system of govern-
ment the states *have general dominion,
and, saving as restricted by particular
provisions of the Federal Constitution,
complete dominion over all persons, prop-
erty, and business transactions within
their borders; they assume and perform
the duty of preserving and protecting
all such persons, property, and busi-
ness, and, in consequence, have the pow-
er normally pertaining to governments
to resort to all reasonable forms of taxa-
tion in order to defray the governmental
expenses. Certainly they are not re-
stricted to property taxation, nor to any
particular form of excises. In well-or-
dered society, property has value chiefly
for what it is capable of producing, and
the activities of mankind are devoted
largely to making recurrent gains from
the use and development of property,
from tillage, mining, manufacture, from
the employment of human skill and
labor, or from a combination of some of
455
aO-52
SUPREME COURT OF THE UNITED STATES.
Oct. TtJUL,
)
these; gains capable of being devoted to
their own support^ and the surplus ac-
cumulated as an increase of capital.
That the state, from whose laws prop-
perty and business and industry derive
the protection and security without
which production and gainful occupation
would be impossible, is debarred from
exacting a share of those gains in the
form of income taxes for the support of
the government, is a proposition so
wholly inconsistent with fundamental
principles as to be refuted by its mere
statement. That it may tax the land
but not the crop, the tree but not the
[51] fruit, the mine or well but not the
product, the business but not the profit
derived from it, is wholly inadmissible.
Income taxes are a recognized method
of distributing the burdens of govern-
ment, favored because requiring contri-
butions from those who realize current
pecuniary benefits under the protection
of the government, and because the tax
may be readily proportioned to their
ability to pay. Taxes of this character
were imposed by several of the states
at or shortly after the adoption of the
Federal Constitution. New York Laws
1778, chap. 17; Report of Oliver Wol-
cott, Jr., Secretary of the Treasury, to
4th Congress, 2d Sess. (1796), concern-
ing direct taxes; American State Papers,
1 Finance, 423, 427, 429, 437, 439.
The rights of the several states to
exercise the widest liberty with respect
to the imposition of internal taxes al-
ways has been recognized in the deci-
sions of this court. In M'Culloch v.
Maryland, 4 Wheat. 316, 4 L. ed. 579,
while denying their power to impose
a tax upon any of the operations of
the Federal government, Mr. Chief
Justice Marshall, speaking for the court,
conceded (pp. 428, 429) that the
states have full power to tax their
own people and their own property,
and also that the power is not con-
fined to the people and property of a
state, but may be exercised upon every
object brought within its jurisdiction,
saying: ^'It is obvious that it is an in-
cident of sovereignty, and is coextensive
with that to which it is an incident.
All subjects over which the sovereign
power of a state extends are objects of
taxation," etc. In Michigan C. R. Co. v.
Powers, 201 U. S. 245, 50 L. ed. 744, 26
Sup. Ct. Rep. 459, the court, by Mr.
Justice Brewer, said (pp. 292, 293) :
"We have had frequent occasion to con-
sider questions of state taxation in the
light of the Federal Constitution, and
the scope and limits of national inter-
456
ference are well settled. There is no
general supervision on the part of the
nation over state taxation, and in
respect to the latter the state has,
speaking generally, the freedom of a
sovereign both as to objects [52] and
methods.'' That a state may tax callings
and occupations as well as persons and
property has long been recognized.
"The power of taxation, however vast in
its character and searching in its extent,
is necessarily limited to subjects within
the jurisdiction of the state. These sub'
jects are persons, property, and busi«
ness. ... It [taxation] may touch
business in the almost infinite forms in
which it is conducted, in professions,
in commerce, in manufactures, and
in transportation. Unless restrained by
provisions of the Federal Constitution,
the power of the state as to the mode,
form, and extent of taxation is un-
limited, where the subjects to which it
applies are within her jurisdiction."
State Tax on Foreign-held Bonds, 15
Wall. 300, 319, 21 L. ed. 179, 186. See
also Welton v. Missouri, 91 U. S.-276,
278, 23 L. ed. 347, 348; Armour A Co.
V. Virginia, 246 U. S. 1, 6, 62 L. ed. 547,
550, 38 Sup. Ct. Rep. 267; American
Mfg. Co. V. St. Louis, 250 U. S. 459, 463,
63 L. ed. 1084, 1087, 39 Sup. Ct. Rep.
522.
And we deem it clear, upon principle
as well as authority, that just as a state
may impose general income taxes upon
its own citizens and residents whose
persons are subject to its control, it may,
as a necessary consequence, levy a duty
of like character, and not more onerous
in its effect, upon incomes accruing to
nonresidents from their property or busi-
ness within the state, or their occupa-
tions carried on therein; enforcing pay-
ment, so far as it can, by the exercise
of a just control over persons and prop-
erty within its borders. This is con-
sonant with numerous decisions of this
court sustaining state taxation of credits
due to nonresidents (New Orleans v.
Stempel, 175 U. S. 309, 320, et seq., 44 L.
ed. 174, 180, 20 Sup. Ct. Rep. 110; Bris-
tol V. Washington County, 177 U. S. 133,
145, 44 L. ed. 701, 707, 20 Sup. Ct. R«p.
585; Liverpool & h, & Q. Ins. Co. v.
Board of Assessors, 221 U. S. 346, 364,
55 L. ed. 762, 767, L.R.A.1915C, 903, 31
Sup. Ct. Rep. 550), and sustaining Fed-
eral taxation of the income of a6 alien
nonresident derived from securities held
in this country (De Qanay v. Lederer,
250 U. S. 376, 63 L. ed. 1042, 39 Sup.
Ct. Rep. 524).
That a state, consistently with the Fed-
252 t7. S.
1919.
SHAFFEK V. CARTER.
o2-5.">
eral Constitution, may not prohibit the
oitijsens of other states from carrying on
legitimate business within its borders
like its own [53] citizens, of course is
granted; but it does not follow that the
business of nonresidents may not be re-
quired to make a ratable contribution in
taxes for the support of the government.
On the contrary, the very fact that a
citizen of one state has the right to hold
property or carry on an occupation or
business in another is a very reasonable
ground for subjecting such nonresident,
although not personally, yet to the ex-
tent of his property held or his occupa-
tion or business carried on therein, to a
duty to pay taxes not more onerous in
effect than those imposed under like cir-
cumstances upon citizens of the latter
state. Sec. 2 of art. 4 of the Constitu-
tion entitles him to the privileges and
immunities of a citizen, but no more ; not
to an entire immunity from taxation,
nor to any preferential treatment as
compared with resident citizens. It pro-
tects him against discriminatory taxa-
tion, but gives him no right to be favored
by discrimination or exemption. See
Ward V. Maryland, 12 Wall. 418, 430,
20 L. ed. 449, 452.
Oklahoma has assumed no power to
tax nonresidents with respect to income
derived from property or business be-
yond the borders of the state. The 1st
section of the act, while imposing a tax
upon inhabitants with respect to their
entire net income arising from all
sources, confines the tax upon nonresi-
dents to their net income from property
owned and business, etc., carried on
within the state. A similar distinction
has been observed in our Federal income
tax laws, from one of the earliest down
to the present.^ The Acts of 1861 (12
Stat, at L. 309, chap. 45) and 1864 (13
Stat, at L. 281, chap. 173, 13 Stat, at L.
417) [54] confined the tax to persons re-
siding in the United States and citizens
residLig abroad. But in 1866 (14 Stat,
at L. 137, 138, chap. 184, Comp. Stat.
§ 6292) there* was inserted by amend-
ment the following: "And a like tax
shall be levied, collected, and paid an-
nually upon the gains, profits, and in-
come of every business, trade, or profes-
sion carried on in the United States by
persons residing without the United
States, not. citizens thereof." Similar
provisions were embodied in the Acts of
1870 and 1894; and in the Act of 1913
(38 Stat. at*L. 16G, 4 Fed. Stat. Anno.
2d ed. p. 236)^ after a clause ifnposing a
tax upon the entire net income arising or
accruing from all sources (with excep-
tions not material here) to every citizen
of the United States, whether residing at
home or abroad, and to every peraon
residing in the United States, though not
a citizen thereof, the following appears :
"And a like tax shall be assessed, levied,
collected, and paid annually upon the
entire net income from all property
owned and of every business, trade, or
profession carried on in the United
States by persons residing elsewhere."
Evidently this furnished the model for
§ 1 of the Oklahoma statute.
No doubt is suggested (the former re-
quirement of apportionment having been
removed by constitutional amendment)
as to the power of Congress thus to im-
pose taxes upon incomos produced with-
in the borders of the United States or
arising from sources located therein,
even though the income accrues to a non-
resident alien. And, so far as the ques-
tion of jurisdiction is concerned, the
due process clause of the 14th Amend-
ment imposes no greater restriction in
this regard upon the several states than
the corresponding clause of the 5th
Amendment imposes upon the United
States.
It is insisted, however, both by ap-
pellant in this case and by the opponents
of the New York law in Travis v. Yale &
T. Mfg. Co. 252 U. S. 60, post, 460, 40
Sup. Ct. Rep. 228, that an income tax is
in its nature a personal tax, or a "sub^
jective tax imposing personal liabil-
ity upon the recipient of the in-
come;" and that as to a [55] non-
lActs of August 5, 1861 (chap. 45, §
49, 12 Stat, at L. 292, 309); June 30,
1864 (chap. 173, § 116, 13 Stat, at L. 223,
281, Comp. Stat. § 6368, 4 Fed. Stat. Anno.
2d ed. p. 324); Julv 4, 1864 (Joint Res.
77, 13 Stat, at L. "417) ; July 13, 1866
(chap. 184, § 9, 14 Stat, at L. 98, 137, 138,
Comp. Stat. § 6292, 9 Fed. Stat. Anno. 2d
«d. p. 391); March 2, 1867 (chap. 169, §
13, 14 Stat, at L. 471, 477, 478, Comp. Stat.
§ 5895, 3 Fed. Stat. Anno. 2d ed. p. 1002) ;
July 14, 1870 (chap. 255, § 6, 16 Stat, at
L. 266, 257, Comp. Stat. § 6971 (1), 3
Fed. Stat. Anno. 2d ed. p. 1045) ; August
•4 li. ed.
27, 1894 (chap. 349, § 27, 28 SUt. at L.
509, 553); October 3, 1913 (chap. 16, §
II. A, subd. 1, 38 Stat, at L. 114, 166,
Comp. Stat. § 5291, 2 Fed. Stat. Anno. 2d
ed. p. 724, 4 Fed. Stat. Anno. 2d ed. p.
236); September 8, 1916 (chap. 463, title
1, pt 1, § 1 (a), 39 Stat, at L. 756, Comp.
Stat. § 6366a, Fed. Stat. Anno. Supp. 1918,
p. 312) ; October 3, 1917 (chap. 63, title 1,
§§ 1 & 2, 40 Stat, at L. 300, Comp. Stat.
§§ 6336aa, 6336aaa, Fed. Stat. Anno. Supp.
1918, p. 336); February 24, 1919 (chap.
18, §§ 210, 213 (c), 40 Stat, at L. 1057,
1062, 1066, Comp. Stat. §§ 6336|e, 6336iflf).
457
oo~o7
SUPREME COLHT OF THE UNITED STATES.
Oct. Tbem,
I
resident the state has no jurisdiction
to impose such a liability. This argu-
ment, upon aBal3'si8y resolves itself into
a mere question of definitions, and has
no legitimate bearing upon any question
raised under the Federal Constitution.
For, where the question is* whether a
state taxing law contravenes rights se-
cured by that instrument, the decision
must depend not upon any mere question
of form, construction, or definition, but
upon the practical operation and effect
of the tax imposed. St. Louis Southwest-
ern R. Co. V. Arkansas, 235 U. S. 350,
362, 59 L. ed. 265, 271, 35 Sup. Ct.
Rep. 99; Mountain Timber Co. v. Wash-
ington, 243 U. S. 219, 237, 61 L. ed.
685, 696, 37 Sup. Ct. Rep. 260, Ann. Cas.
1917D, 642, 13 N. C. C. A. 927; Crew
Levick Co. v. Pennsylvania, 245 U. S.
292, 294, 62 L. ed. 295, 297, 38 Sup. Ct.
Rep. 126; American Mfg. Co. v. St.
Louis, 250 U. S. 459, 463, 63 L. ed. 1084,
1087, 39 Sup. Ct. Rep. 522. The prac-
. tical burden of a tax imposed upon the
net income derived by a nonresident
from a business carried on within the
state certainly is no greater than that
of a tax upon the conduct of the busi-
ness, and this the state has the lawful
power to impose, as we have seen.
The fact that it required the personal
skill and management of appellant to
bring his income from producing prop-
erty in Oklahoma to fruition, and that
his management was exerted from his
place of business in another state, did
not deprive Oklahoma of jurisdiction to
tax the income which arose within its
own borders. The personal element can-
not, by any fiction, oust the jurisdiction
of the state within which . the income
actually arises, and whose authority over
it operates in rem. At most, there
might be a question whether the value
of the service of management rendered
from without the state ought not to be
allowed as an expense incurred in pro-
ducing the income; but no such question
is raised in the present case, hence we
express no opinion upon it.
The contention that the act deprives
appellant and others similarly circum-
stanced of the privileges and immunities
enjoyed by residents and citizens of the
state of Oklahoma, in violation of § 2
of art. 4 of the Constitution, [56] is
based upon two grounds, which are re-
lied upon as showing also a violation of
the "equal protection" clause of the
14th Amendment.
One of the rights intended to be se-
cured by the former provision is that
a citizen of one state may remove to and
45S
I carry on business in another without
I Deing subjected in property or person
:o taxes more onerous than the eitizens
jf the latter starte are subjected to.
Paul V. Virginia, 8 Wall. 168, 180, 19
L. ed. 357, 360; Ward v. Maryland, 12
Wall. 418, 430, 20 L. ed. 449, 452; Max-
well V. Bugbee, 250 U. S. 525, 537, 63
L. ed. 1124, 1130, 40 Sup. Ct, Rep. 2.
The judge who dissented in Shaffer v.
Howard, 250 Fed. 873, 883, concluded
that the Oklahoma Income Tax Law
offended in this regard, upon the
ground (p. 888) that Bince the tax
IS, as to citizens of Oklahoma, a purely
personal tax measured by their incomes,
while, as applied to a nonresident, it is
'essentially a tax upon his property and
l)usiness. within the state, to which the
property and business of citizens and
residents of the state are not subjected,'^
there was a discrimination against the
nonresident. We are unable to accept
this reasoning. It cits in paying too
much regard to theoretical distinetions
and too little to the practical effect and
operation of the respective taxes as lev-
ied; in failing to observe that in effect
citizens and residents of the state are
subjected at least to the same burden as
nonresidents, and perhaps to a greater,
since the tax imposed upon the former
includes all income derived from their
property and business within the state,
and, in addition, any income they may
derive from outside sources.
Appellant contends that there is a
denial to noncitizens of the privileges
and immunities to which they are en-
titled, and also a denial of the equal
protection of the laws, in that the set
permits residents to deduct from their
t^ross income not only losses incurred
within the state of Oklahoma, but also
those sustained outside of that state,
while nonresidents may dednet only
those incurred within the [57] state.
The difference, however, is only such as
arises naturally from the extent of the
jurisdiction of the state in the two class-
es of cases, and cannot be regarded as
an unfriendly or unreasonable discrimi-
nation. As to residents it may, and
does, exert its taxing power over their
income from all sources, whether within
or without the state, and it accords to
them a corresponding privilege of de-
ducting their losses, wherever these ac-
crue. As to nonresidents, the jurisdic-
tion extends only to their property
owned within the state and their busi-
ness, trade, or profession carried on
therein, and the tax is only on such in-
' come as is derived from those sonreea.
252 U. 8.
1919.
SHAFFKR V. CARTER.
67-59
Hence there is no obligation to accord
to them a deduction by reason of losses
elsewhere incurred. It may be re-
marked, in passing, that there is no
showing that appellant has sustained
such losses, and so -he is not entitled to
raise this question.
It is urged that, regarding the tax as
imposed upon the business conducted
within the state, it amounts in the case
of appellant's husine^^s to a burden upon
interstate commerce, because the prod-
ucts of his oil operations are shipped
out of the state. Assuming that it fair-
ly appears that his method of business
constitutes interstate commerce, it is
sufficient to say that the tax is imposed
not upon the gross receipts, as in Crew
licvick Co. V. Pennsylvania, 245 U. S.
292, 62 L. ed. 295, 38 Sup. Ct. Rep.
126, but only upon the net proceeds, and
is plainly sustainable even if it includes
net gains from interstate commerce.
United States Glue Co. v. Oak Creek, 247
U. S. 321, 62 L. ed. 1135, 38 Sup. Ct.
Rep. 499, Ann. Cas. 1918E, 748. Com-
pare William E. Peck & Co. v. Lowe,
247 U. S. 165, 62 L. ed. 1049, 38 Sup.
Ct. Rep. 432.
Reference is made to the Gross Pro-
duction Tax Law of 1915 (chap. 107, art.
2, subd. A, § 1; Sess. Laws 1915^ p. 151),
as amended by chap. 39 of Sess. Laws
1916 (p. 104), under which every per-
son or corporation engaged in producing
oil or natural gas within the state is re-
cpiired to pay a tax equal to 3 per cen-
tum of the gross yalue of such product
in lieu of all taxes imposed by the state,
counties, or municipalities upon the land
or the leases, mining rights, [58] and
privileges, and the machinery, appli-
ances, and equipment pertaining to such
production. It is contended that payment
of the g^ss production tax relieves the
producer from the payment of the in-
come tax. This is a question of stat6
law, upon which no controlling decision
by the supreme court of the state is
cited. We overrule the contention,
deeming it clear, as a matter of con-
struction, that the gross production tax
was intended as a substitute for the ad
valorem property tax, but not for the
income tax, and that there is no such
repugnance between it and the income
tax as to produce a repeal by implica-
tion. Nor, even if the effect of this is
akin to double taxation, can it be re-
garded as obnoxious to the Federal Con-
stitution for that reason, since it is
settled that nothing in that instrument
or in the 14th Amendment prevents the
states from imposing double taxation.
•4 li. ed.
or any other form of unequal taxation,
80 long as the inequality is not based
upon arbitrary distinctions. St. Louis
Southwestern R. Co. v. Arkansas, 235
U. S. 350, 367, 368, 59 L. ed. 265, 273,
274, 35 Sup. Ct. Rep. 99.
The contention that there is a want
of due process in the proceedings for
enforcement of the tax, especially in the
lien imposed by § 11 upon all of the de-
linquent's property, real and personal,
reduces itself to this: that the state is
without powep to create a lien upon
any property of a nonresident for in-
come taxes except the very property
from which the income proceeded; or,
putting it in another way, that a lien
for an income tax may not be imposed
upon a nonresident's unproductive prop-
erty, nor upon any particular produc-
tive property beyond the amount of the
tax ufK)n the income that has proceeded
from it.
But the facts of the case do not raise
this question. It clearly appears from
the averments of the bill that the whole
of plain ti fit's property in the state of
Oklahoma consists of oil-producing land,
oil and gas mining leaseholds, and other
property used in the production of oil
and gas; and that, beginning at least as
early as the year 1915, [5w] when the
act was passed, and continuing without
interruption until the time of the com-
mencement of the suit (April 16, 1919),
he was engaged in the business of de-
veloping and operating these properties
for the production of oil ; his entire busi-
ness in that and other states was man-
aged as one business; and his entire net
income in the state for the year 1916 was
derived from that business. Laying aside
the probability that from time to time
there may have been changes arising
from purchases, new leases, sales, and
expirations (none of which, however, is
set forth in the bill), it is evident that
the lien will rest upon the same property
interests which were the source of the
income upon which the tax was imposed.
The entire jurisdiction of the state over
appellant's property and business and
the income that he derived from them —
the only jurisdiction that it has sought
to assert — is a jurisdiction in rem; and
we are clear that the state acted within
its lawful power in treating his property
interests and business as having both
unity and continuity. Its purpose to im-
pose income taxes was declared in its
own Constitution, and the . precise na-
tnre of the tax and the measures to be
t.iken for enforcing it were plainly set
fortli in the Act of 1915; and plaintiff
159
^
H
59, 60
SUPREMK COURT OF THE UNITED STATES.
Oct. Tbui,
haying thereafter proceeded, with no-
tice of this law, to manage the property
and conduct the business out of which
proceeded the income now taxed, the
state did not exceed its power or au-
thority in treating his property interests
and his business as a single entity, and
enforcing payment of the tax by the
imposition of a lien, to be followed by
execution or other appropriate process,
upon all property employed in the busi-
ness.
No. 531. Appeal dismissed.
No. 680. Decree affirmed.
Mr. Justice McBeynolds dissents.
\
(601 EUGENE M. TRAVIS, as Comp-
troller of the State of New York, Appt.,
V.
YALE & TOWNE MANUFACTURING
COMPANY.
(See S. C. Reporter's ed. 60-«2.)
Constitntiopal law ^ due process of
law — taxing incomes of nonresi-
dents.
1. No violation of due process of law
results from the exercise by the state of
New York of its jurisdiction to tax in-
comes of nonresidents arising from any
business, trade, profession, or occupation
carried on within its borders, and to en-
force payment so far as it can by the ex-
ercise of a just control over persons and
property within the state, and by a gar-
nishment of credits (of which the with-
holding provision of such law is a prac-
tical eauivalent).
[For otner cases, see Constitutional L4iw, IV.
b, 6, a, in Digest Sup. Ct. IOCS.]
Constitutional law — equal protection
of the laws — privileges and iininu-
nities ^ taxing income of nonresi-
dents — discrimination — deduc-
tions.
2. There is no imconstitutional dis-
crimination against citizens of other states
in a state income tax law merely because
it confines the deduction of expenses, losses,
etc., in the case of nonresident taxpayers,
to such as are connected with income aris-
ing from sources within the taxing state.
[For other cases, see Constitutional Law, IV.
a. 4, in Digest Sup. Ct. 1908.)
Note. — On constitutionality of income
t«« — see notes to State ex rel. Bolens v.
Frear, L.R.A.1915B, 569, and Alderman
V. Wells, 27 L.R.A.(N.S.) 864.
On constitutional equality of privi-
leges, immunities, and protection, gen-
erally— see note to Loui.svillo Safety
Vault & T. Co. V. Louisville & N. R. Co.
14 L.R.A. 579.
460
Constitutional law — equal protection
of the laws -^ privileges and immiiiil-
ties — taxing income of nonresidents
— withholding at source.
3. A state income tax law dees not
unconstitutionally discriminate against
noncitizens merely because it cdnflnes the
withholding at source to the income of
nonresidents, since such provision does net
in any way increase the ourden of the tax
upon nonresidents, but merely recognises
the fact that, as to tliem, the state im-
poses no personal liability, and hence
adopts a convenient substitute for it.
[For other cases, see Constitutional Law, IV.
a, 4, in Digest Sup. Ct. 1908.]
Constitutional law » impairing eon-
tract obligations — regalatlng for-
eign corporations — witliholding in*
come tax at source.
4. A foreign corporation doing busi-
ness within the state and elsewhere has no
just groimd of complaint against a stete
income tax, in the absence of any con-
tract limiting the state's power of regular
tion, by reason of being required to ad-
just its system of accounting and paying
salaries and wages to the extent required
to fulfil the duty of deducting and with-
holding the tex from that part of the
salaries and wages of its nonresident em-
ployees which was earned by them within
the state, although the corporation as-
serts that the statute impairs the obliga'
tion of contracte between it and ite em-
ployees, there being no averment, however,
that any such contract, made before the
passage of the statute, required the wa^
or salaries to be paid in the state of m-
corporation, where it has its principal place
of business, or contained other provisions
in anywise conflicting with the withholding
requirement.
[For other cases, see Constitutional Law, IV.
h, in Digest Sup. Ct. 1908.]
Constitutional law — privileges and
immunities ^ taxing income of non-
residents — exemptions.
5. Privileges and immunities of citi-
zens of New York are unconstitutionally
denied to citizens of Connecticut and New
Jersey by the provision of the New York
Income Tax I^iw which denies te all non-
residents, without special reference to citi-
zenship, the exemptions accorded to resi-
dents, viz., $1,000 of the income of a single
person, $2,000 in the case of a married per-
son, and $200 additional for each depend-
ent, although the nonresident, if liable to
an income tax in his own state, including
income derived from sources within New
York, and subject to taxation under the
New York act, is allowed a credit upon the
income tax otherwise payable to New York
by the same proportion of the tax payable
to the stete of his residence as his income
subject to taxation b^ the New York act
bears to his entire income tased it his
own stete, provided that such credit shall
be given only if the laws of said state
grant a substantially similar credit to
residents of New York subject te income
tax under such laws, and although the
252 U. 8.
IflO.
TRAVIS V. YALE & TOWNK MAM FAcTl KING CO.
New York act also excludes from tlic in-
come of nonresident taxpayers annuities,
interest on bank deposits, interest on bonds,
notes, 6r other interest-bearing obligations,
or dividends from corporations, except to
the ejctent to which the same shall be a
part ol income from any business, trade,
profession, or occupation carried on in the
state, subject to taxation under that act.
[For other cases, see Constitutional Law, lY.
a, 4, In Digest Sup. Ct. 1908.]
Constitutional law ^ privileges and
immnntties ^ taxing incomes off non-
residents ^ exemptions.
6. The discrimination against citizens
of Connecticut and New Jersey, produced
by the provision of the New York Income
TbX Law which denies to all nonresidents,
without special reference to citizenship, the
exemptions accorded to residents, viz.,
$1,000 of the income of a single person,
$2,000 in the case of a married person,
and $200 additional for each dependent,
cannot be upheld on the theory that non-
residents have untaxed income derived from
sources in their home states or elsewhere
outside of the state of Now York, corre-
spondine to the amount upon which resi-
dents of the latter state are exempt from
taxation under the act.
[For other cases, see Constitutional Law, IT.
a, 4, in Digest Sap. Ct 1908.]
Constitutional law ^ privileges and
immunities — taxing income off non-
residents — discrimination.
7. A discrimination by the state of
New York in its income tax legislation
against citizens of adjoining states would
not be cured were those states to estab-
lish like discriminations against citizens of
the state of New York.
[For other cases, see Constitutional Law, IV.
a. 4, in Digest Sup. Ct. 1908.]
[No. 648.]
Argued December 15 and 16, lOl^. De-
cided March 1, 1920.
APPEAL from the District Court of
the United States for the Southern
District of New York to review a decree
enjoining the enforcement of the In-
come Tax Law of that state as against
nonresidents. Affirmed.
The facts are stated in the opinion.
See same case below, on motion to
dismiss bill, 262 Fed. 576.
Mr. James S. T. Ivins argued the
cause, and, with Mr. Charles D. New-
ton, Attorney General of New York, and
Mr. £. C. Aiken, filed a brief for ap-
pellant :
The power of taxation, inherent in a
sovereign, includes the power to lay a
tax upon incomes.
M'Culloch V. Maryland, 4 Wheat. 316,
429, 4 L. ed. 579, 607.
Whether a tax levied upon incomes
from all sources is a direct or an in-
64' li. ed.
direct tux was a question of . prime im-
portance in considering the validity of
Federal income taxes, prior to the
adoption of the 16th Amendment, but it
has no importance since the adoption of
that Amendment, and it never had any
importance with' respect to taxes laid by
the states.
Pollock V. Farmers' Loan & T. Co. 157
IJ. S. 429, 39 L. ed. 759, 15 Sup. Ct. Rep.
673, 158 U. S. 601, 39 L. ed. 1108, 15
Sup. Ct. Rep. 912; William E. Peck &
Co. V. Lowe, 247 U. S. 165, 62 L. ed.
1049, 38 Sup. Ct. Rep. 432.
The characterization of a tax by ad-
ministrative officers, by the phraseology
of the statute, or by the opinion of oth-
er courts, is not controlling. This court
will look only at the practical effect of
the tax as it is enforced.
Crew Levick Co. v. Pennsylvania, 245
U. S. 292, 294, 62 L. ed. 295, 297, 38 Sup.
Ct. Rep. 126.
The underlying reason for taxation:
the support of the government in its
protection of the lives, liberty, and
property of those having life, liberty,
or property within its k)rders extends
equally to residents and nonresidents,
citizens and aliens.
Duer V. Small, 4 Blatchf. 263, Fed.
Cas. No. 4A16.
Unless restrained by provisions of the
Federal Constitution, the power of the
state as to the mode, form, and extent
of the taxation is unlimited, where the
subjects to which it applies are within
her jurisdiction.
State Tax on Foreign-held Bonds, 15.
Wall. 300, 319, 21 L. ed. 179, 186.
The doctrine that movable property
follows the person for purposes of tax-
ation has given way to the doctrine that
where property has a situs, there it is
taxable.
Bristol V. Washington CoTinty, 177 U.
S. 133, 44 L. ed. 701, 20 Sup. Ct. Rep.
585; Hawley v. Maiden, 232 U. S. 1, 58
L. ed. 477, 34 Sup. Ct. Rep. 201, Ann.
Cas. 1916C, 842; Corry v. Baltimore, 196
U. S. 466, 49 L. ed. 556, 25 Sup. Ct. Rep.
297; State Tax on Foreign-held bonds,
15 Wall. 300, 21 L. ed. 179; Fidelity &
C. Trust Co. V. Louisville, 245 U. S. 54,
62 L. ed. 145, L.R.A.1918C, 124, 38 Sup.
Ct. Rep. 40; Kirtland v. Hotchkiss, 100
U. S. 491, 25 L. ed. 558; Tappan v.
Merchants' Nat. Bank, 19 WaU. 490, 22
L. ed. 189; Metropolitan L. Ins. Co. v.
New Orleans, 205 U. S. 395, 51 L. ed.
853, 27 Sup. Ct. Rep. 499; Blackstone v.
Miller, 188 U. S. 189, 47 L. ed. 439, 23
Sup. Ct. Rep. 277; New Orleans v.
Stempel, 175 U. S. 309, 44 L. ed. 174, 20
46i
81 PUKMK COUKT OF THK UNITED STATES.
Oct. TsBii,
^
Sup. Ct. Rep. 110; State Assessors v.
Comptoir National D4^]scompte, 191 U.
S. 388, 48 L. ed. 232, 24 Sup. Ct. Rep.
109; Rogers v. Hennepin County, 240
U. S. 184, 191, 60 L. ed. 594, 599. 3() Snp.
Ct. Rep. 265; Liverp)ool & h. & G. Ins.
Co. V. Board of Assessors, 221 U. S. 346, i
355, 55 L. ed. 762, 767, L.R.A.1915C,
903, 31 Sup. Ct. Rep. 550.
The New York Income Tax Law does
not deny to citizens of any state any of
the privil^es or immunities of citizens
of the several states.
La Tourette v. McMaster, 248 U. S.
465, 470, 63 L. ed. 362, 365, 39 Sup. Ct.
Rep. 160; Frost v. Brisbin, 19 Wend.
11, 32 Am. Dec. 423; Chemung Canal
Bank v. Lowery, 93 U. S. 72, 23 L. ed.
806; Field v. Barber Asphalt Paving
Co. 194 U. S. 618, 48 L. ed. 1142, 24
Sup. Ct. Rep. 784; Central Loan & T.
Co. V. Campbell Commission Co. 173 U.
S. 84, 43 L. ed. 623, 19 Sup. Ct. Rep.
346; Blake v. McClung, 172 U. S. 239,
256, 257, 43 L. ed. 432, 438, 439, 19 Sup.
Ct. Rep. 165.
Classification in taxation is a proper
exercise of legislative powei^.
Pacific Exp. Co. v. Seibert, 142 U. S.
339, 351, 35 L. ed. 1035, 1039, 3 Inters.
Com. Rep. 810, 12 Sup. Ct. Rep. 250;
Barrett v. Indiana, 229 U. S. 26, 29, 30,
57 L. ed. 1050-1053, 33 Sup. Ct. Rep.
692; Magoun v. Illinois Trust & Sav.
Bank, 170 U. S. 283, 42 L. ed. 1037, 18
Sup. Ct. Rep. 594; Michigan C. R. Co. v.
Powers, 201 U. S. 245, 50 L. ed. 744, 26
Sup. Ct. Rep. 459; Beers v. Glynn, 211
U. S. 477, 53 L. ed. 290, 29 Sup. Ct. Rep.
186; Bell's Gap R. Co. v. Pennsylvania,
134 U. S. 232, 237, 33 L. ed. 892, 895, 10
Sup. Ct. Rep. 533; Citizens' Teleph. Co.
V. Fuller, 229 U. S. 322, 329, 57 L. ed.
1206, 1213, 33 Sup. Ct. Rep. 833; Inter-
national Harvester Co. v. Missouri, 234
U. S. 199, 210, 58 L. ed. 1276, 1281, 52
L.R.A.(N.S.) 525, 34 Sup. Ct. Rep. 859;
Northwestern Mut. L. Ins. Co. v. Wis-
consin, 247 U. S. 132, 138, 62 L. ed.
1025, 1037, 38 Sup. Ct. Rep. 444; Tan-
ner V. Little, 240 U. S. 369, 382, 383,
60 L. ed. 691, 701, 702, 36 Sup. Ct. Rep.
379.
The classification of residents and
nonresidents by the New York* income
tax is reasonable.
La Tourette v. McMaster, 248 U. S.
465, 63 L. ed. 362, 39 Sup. Ct. Rep. 160 ;
Northwestern Mut. L. Ins. Co. v. Wis-
consin, 247 U. S. 132, 62 L. ed. 1025, 38
Sup. Ct. Rep. 444; Travelers' Ins. Co. v.
Connecticut, 185 U. S. 364, 46 L. ed.
949, 22 Sup. Ct. R«p. 673; Tanner v.
Little, 240 U. S. 369, .60 L. ed. 691. 36
463
Sup. Ct. Rep. 379; Rast v. Van Deman
& L. Co. 240 U. S. 342, 357, 60 L. ed.
079, 687, L.R.A.1917A, 421, 36 Sup. Ct.
Rep. 370, Ann. Cas. 1917B, 455; Ozan
Lumber Co. v. Union County Nat. Bank,
207 U. S. 251, 256, 52 L. ed. 195. 197,
28 Sup. Ct. Rep. 89; Magoun v. Illinois
Trust & Sav. Bank, 170 U. S. 283, 293,
42 L. ed. 1037, 1042, 18 Sup. Ct. Rep.
594; Lindsley. v. Natural Carbonic Gas
Co. 220 U. S. 61, 55 L. ed. 369, 31 Sup.
Ct. Rep. 337, Ann. Cas. 1912C, 160; Citi-
zens' Teleph. Co. v. Fuller, 229 U. S.
322, 329, 57 L. ed. 1206, 33 Sup. Ct R«p.
833.
The different method of collection pro-
vided by the statute for the tax on in-
come received by way of compensation
for personal services by residents and
by nonresidents does not deprive any
person of the equal protection of the
laws
St! John V. New York, 201 U. S. 633,
637, 50 L. ed. 896, 898, 26 Sup. Ct. Rep.
554, 5 Ann. Cas. 909; Tappan v. Mer-
chants' Nat. Bank, 19 Wall. 490, 505,
22 L. ed. 189, 195; District of Columbia
v. Brooke, 214 U. S. 138, 53 L. ed. 941,
29 Sup. Ct. Rep. 560 ; Central Loan ^ T.
Co. V. Campbell Commission Co. 173 U.
S. 84, 97, 98, 43 L. ed. 623, 627, 628, 19
Sup. Ct. Rep. 346; Travelers' Ins. Co. v.
Connecticut, 185 U. S. 364, 46 L. ed. 949,
22 Sup. Ct. Rep. 673; Merchants' &
Mfrs. Nat. Bank v. Pennsylvania, 167
U. S. 461, 42 L. ed. 236, 17 Sup. Ct. Rep.
829.
The New York Income Tax Law does
not deny to any person due process of
law.
People ex rel. Hatch v. Reardon, 204
U. S. 152, 51 L. ed. 415, 27 Sup. Ct. R^.
188, 9 Ann. Cas. 736; Merchante' &
Mfrs. Nat. Bank v. Pennsylvania, 167 U.
S. 461, 42 L. ed. 236, 17* Sup. Ct. Rep.
829; Travelers' Ins. Co. v. Connecticut,
185 U. S. 364, 46 L. ed. 949, 22 Sup. Ct.
Rep. 673; Brushaber v. Union P. R. Co.
240 U. S. 1, 60 L. ed. 493, L.R.A.1917D,
414. 36 Sup. Ct. Rep. 236, Ann. Cas.
191 7B, 713; Michigan C. R. Co. v. Pow-
ers, 201 U. S. 245, 50 L. ed. 744, 26 Sup.
Ct. Rep. 459; Bristol v. Washington
County, 177 U. S. 133, 44 L. ed. 701, 20
Sup. Ct. Rep. 585; Bell's Gap R. Co. v.
Pennsvlvania, 134 U. S. 232, 33 L. ed.
892, 1*0 Sup. Ct. Rep. 533.
The New York Income Tax Law does
not violate the commerce clause of the
Federal Constitution.
United States Glue Co. v. Oak Creek,
247 U. S. 321, 62 L. ed. 1135, 38 Sup.
Ct. Rep. 499, Ann. Cas. 1918E, 748;
William E. Peck & Co. v. Lowe, 247 U.
253 V. 8.
191».
TRAVIS V. YALE & TOWNE MANUFACTURING CO.
S. 165, 62 L. ed. 1049, 38 Sup. Ct. Rep.
432.
The New York income tax does not
impair the obligation of contracts.
Legal Tender Cases, 12 Wall. 457, 20
L. ed[ 287; Tanner v. Little, 240 U. S.
369, 60 L. ed. 691, 36 Sup. Ct. Rep. 379;
Louisville & N. R. Co. v. Mot t ley, 219
U. S. 467, 55 L. ed. 297, 34 L.R.A.(N.S.)
671, 31 Sup. Ct. Rep. 265.
BCr. Jerome L. Cheney also argued the
cause for appellant.
Messrs. Laurence Arnold Tanzer,
William P. Burr, William S. Rann, and
WiHiam J. WalUn filed a brief as amici
curicD:
The difference in the base of the tax
necessarily arises from the difference
between the extent of a state's jurisdic-
tion over residents and over nonresi-
dents, respeetively.
Kirtland v. Hotchkiss, 100 U. S. 491,
499, 25 L. ed. 558, 562; Hawley v. Mai-
den, 232 U. S. 1, 11. 58 L. ed. 477, 482,
34 Sup. Ct. Rep. 201, Ann. Cas. 1916C,
842; Fidelity & C. Trust Co. v. Louis-
ville, 246 U. S. 54, 58, 62 L. ed. 145, 148,
L.R^1918C, 124, 38 Sup. Ct. Rep. 40;
Union Refrigerator Transit Co. v. Ken-
tucky, 199 U. S. 194, 204, 50 L. ed. 150,
153, 26 Sup. Ct. Rep. 36, 4 Ann. Cas.
493; State Tax on Foreign-held Bonds,
15 Wall. 300, 21 L. ed. 179.
The difference in the base of the tax.
being forced upon the state by reason of
its Uuiited jurisdiction, cannot be re-
garded as an arbitrary discrimination.
Maxwell v. Bugbee, 250 U. S. 525, 63
L. ed. 1124, 40 Sup. Ct. Rep. 2 ; Keeney
V. New York, 222 U. S. 526, 535, 56 L.
ed. 299, 306, 38. L.R.A.(N.S.) 1139, 32
Sup. Ct. Rep. 105; District of Columbia
V. Brooke, 214 U. S. 138, 150, 53 L. ed.
041, 945, 29 Sup. Ct. Rep. 560.
The difference in the exemptions and
deductions granted to residents and
nonresidents corresponds to and bears
a reasonable relation to the difference in
the base of the tax.
Travellers' Ins. Co. v. Connecticut,
185 U. S. 364, 46 L. ed. 949, 22 Sup. Ct.
Rep. 673; Maxwell v. Bugbee, 250 U. S.
525, 63 L. ed. 1124, 40 Sup. Ct. Rep. 2;
People ex rel. Thurber-Whvland Co. v.
Barker, 141 N. Y. 122, 23 L.R.A. 95, 35
N. E. 1073; People ex rel. Heeker- Jones-
Jewell Mill. Co. V. Barker, 147 N. Y. 31,
29 L.R.A. 393, 41 N. E. 435.
The statute does not in fact discrimi-
nate against nonresidents as a class.
Travellers* Ins. Co. v. Connecticut,
supra.
44 li. ed.
Possible hardship in individual cases
is not sutTiifient ground foir invalidating
the statute.
Henderson Bridge Co. v. Henderson,
173 U. 8. 592, 616, 43 L. ed. 823, 831, 19
Sup. Ct. Rep. 653; Travellers' Ins. Co.
V. Connecticut, 185 U. S. 364, 369, 40 L.
ed. 949, 953, 22 Sup. Ct. Rep. 673; Max-
well V. Bugbee, 250 U. S. 525, 63 L. ed.
1124, 40 Sup. Ct. Rep. 2.
In the last analysis, the objection is
really to the policy of the law, — a ques-
tion for the legislature, and not for the
courts.
Amoskeag Sav. Bank v. Purdy, 231 U.
S. 373, 393, 58 L. ed. 274, 282, 34 Sup.
Ct. Rep. 114; Travellers' Ins. Co. v. Con-
necticut, 185 U. S. 364, 371, 46 L. ed.
949, 954, 22 Sup. Ct. Rep. 673; District
of Columbia v. Brooke, 214 U. S. 138,
150, 53 L. ed. 941, 945, 29 Sup. Ct. Rep.
560; Flint v. Stone Tracv Co. 220 U. S.
107, 169, 55 L. ed. 389, 420, 31 Sup. Ct.
Rep. 342; La Tourette v. McMaster, 248
U. S. 465, 468, 63 L. ed. 362, 364, 39 Sup.
Ct. Rep. 160; Southern R. Co. v. King,
217 U. S. 524, 534, 54 L. ed. 868, 871, 30
Sup. Ct. Rep. 594; Louisville & N. R.
Co. V. Finn, 236 U. S. 601, 610, 69 L. ed.
379, 384, 35 Sup. Ct. Rep. 140,
P.U.R.1915A, 121. , '
The taxing power of a state extends
over all persons, property, and business
within its jurisdiction.
Lane County v. Oregon, 7 Wall. 71, 76,
77, 19 L. ed. 101, 104, 106; Michigan C.
R. Co V. Powers, 201 U.' S. 245, 293, 60
L. ed. 744, 761, 26 Sup. Ct. Rep. 469.
The power of a state to tax nonresi-
dents on their property and businesH
within the state is so well settled as not
to require extended argument.
New Orleans v. Stempel, 176 U. S.
309, 44 L. ed. 174, 20 Sup. Ct. Rep. 110 ;
Armour Packing Co. v. Lacy, 200 U. S.
226, 50 L. ed. 451, 26 Sup. Ct. Rep. 232;
Metropolitan L. Ins. Co. v. New Cfrleans,
205 U. S. 395, 51 L. ed. 853, 27 Sup. Ct.
Rep. 499; Buck v. BeBch, 206 U. S. 392,
51 L. ed. 1106, 27 Sup. Ct. Rep. 712, 11
Ann. Cas. 732; Liverpool & h. & Q, Ins.
Co. V. Board of Assessors, 221 U. S. 346.
56 L. ed. 762, L.R.A.1915C, 903, 31 Sup.
Ct. Rep. 550 ; Armour & Co. v. Virginia,
246 TJ. S. 1, 62 L. ed. 547, 38 Sup. Ct.
Rep. 267; American Mfg. Co. v. St.
Louis, 250 U. S. 459, 463, 63 L. ed. 1084,
1087, 39 Sup. Ct. Rep. 522; Pollock v.
Farmers' Loan & T. Co. 158 U. S. 635,
637, 39 L. ed. 1125, 1126, 15 Sup. Ct.
Rep. 912; Singer Sewing Mach. Co. v.
Brickell, 2.33 U. S. 304, 58 L. ed. 974, 34
Sup. Ct. Rep. 493; New York ex rel.
Hatch V. Reardon, 204 U. S. 152, 159,
4«S
(
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
162, 61 L. ed. 415, 423, 27 Sup. Ct. Rep.
188.
Power to tax income from property or
business follows from the power to tax
property or business.
Maxwell v. Bugbee, 250 U. S. 525, 63
L. ed. 1124, 40 Sup. Ct. Rep. 2; Society
for Savings v. Goite, 6 Wall. 594, 608, 18
L. ed. 897, 903; Kirtland v. Hotchkiss,
.100 U. S. 491, 499, 25 L. ed. 558, 562;
Maine v. Grand Trunk R. Co. 142 U. S.
217, 228, 35 L. ed. 994, 995, 3 Inters.
Com. Rep. 807, 12 Sup. Ct. Rep. 121,
163; Metropolitan L. Ins. Co. v. New
Orleans, 205 U. S. 395, 51 L. ed. 853, 27
Sup. Ct. Rep. 499; Fidelitv & C. Trust
Co. V. Louisville, 245 U. S.* 54, 58, 62 L.
ed. 145, 148, L.R.A.1918C, 124, 38 Sup.
Ct. Rep. 40; Liverpool & L. & G. Ins.
Co. V, Board of Assessors, 221 U. S. 346,
356, 357, 55 L. ed. 762, 768, 769, L.R.A.
1915C, 903, 31 Sup. Ct. Rep. 550 ; Ameri-
can Mfg. Co. V. St. Louis, 250 U. S. 459,
463, 63 L. ed. 1084, 1087, 39 Sup. Ct.
Rep. 522; State Tax on Foreign-held
Bonds, 15 Wall. 300, 319, 21 L. ed. 179,
186; Scholey v. Rew, 23 Wall. 331, 23 L.
od. 99; Michigan C. R. Co. v. Collector
(Michigan C. R. Co. v. Slack) 100 U. S.
595, 599, 25 L. ed. 647, 648 ; Spreckles
Sugar I^ef. Cq, v. McClain, 192 U. S.
397, 411, 48 L. ed. 496, 501, 24 Sup. Ct.
Rep. 376; Flint v. Stone Tracy Co. 220
U. S. 107, 146, 165, 55 L. ed. 389, 411,
419, 31 Sup. Ct. Rep. 342, Ann. Gas.
1912B, 1312; United States Exp. Co. v.
Minnesota, 223 tJ. S. 335, 343, 345, 56 L.
ed. 459, 464, 465, 32 Sup. Ct. Rep. 211 ;
Doyle v. Mitchell Bros. Co. 247 U. S.
179, 183, 62 L. ed. 1054, 38 Sup. Ct. Rep.
467 ; Pollock v. Farmers' Loan & T. Co.
157 U. S. 429, 581, 582, 39 L. ed. 759,
819, 820, 15 Sup. Ct. Rep. 673 ; State ex
rel. Manitowoc Gas Go. v. Wisconsin
Tax Commission, 161 Wis. Ill, 152 N.
W. 848; United States Glue Go. v. Oak
Creek, 161 Wis. 211, 153 N. W! 241, Ann.
Cas.'1918A, 421, affirmed in 247 U. 8.
321, 62 L. ed. 1136, 38 Sup. Ct. Rep. 499,
Ann. Gas. 1918E, 748; Bayfield County
V. Pishon, 162 Wis. 466, 156 N. W. 463;
Maguire v. Tax Comr. 230 Mass. 503,
120 N. E. 162; Com. v. Werth, 116 Va.
.604, 82 S. E. 695, Ann. Cas. 1916D,
1263; Shaffer v. Howard, 250 Fed. 873.
The validity of the act depends not
upon the theoretical nature of the tax,
but upon its practical operation and
effect.
Tappan v. Merchants' Nat. Bank, 19
Wall. 490, 499, 503, 22 L. ed. 189, 193,
195; Gorry v. Baltimore, 196 U. S. 475,
49 L. ed. 561, 25 Sup. Ct. Rep. 297;
Postal Teleg. Cable Co. v. Adams, 155 U.
464
S. 688, 696, 697, 39 L. ed. 311, 315, 316,
5 Inters. Com. Rep. 1, 15 Sup. Ct. Rep.
268, 360; Adams Exp. Co. v. Ohio State
Auditor, 166 U. S. 185. 225, 41 L. ed.
965, 979, 17 Sup. Ct. Rep. 604; Knowl-
ton V. Moore, 178 U. S. 41, 82, 83, 44 L.
ed. 969, 986, 987, 20 Sup. Ct. Rep. 747;
Nicol V. Ames, 173 U. S. 509, 43 L. ed.
786, 19 Sup. Gt. Rep. 522; Fidelity & C.
Trust Go. V. Louisville, 245 U. S. 54, 59,
62 L. ed. 145, 148, L.R.A.1918G, 124, 38
Sup. Ct. Rep. 40; American Mfg. Co. v.
St. Louis, 250 U. S. 459, 462, 463, 63 L.
ed. 1084, 1087, 39 Sup. Gt. Rep. 622;
Kidd v. Alabama, 188 U. S. 730, 732, 47
L. ed. 669, 672, 23 Sup. Gt. Rep. 401;
Hawley v. Maiden, 232 U. S. 1, 58 L. ed.
477, 34 Sup. Gt. Rep. 201, Ann. Gas.
1916C, 842.
The practical effect of denying or un-
duly limiting the power of a state to tax
nonresidents would be a serious impair-
ment of that power of taxation which is
essential to sovereignty.
Adams Exp. Co. v. Ohio State Audi-
tor, 166 U. S. 185, 41 L. ed. 965, 17 Sup.
Gt. Rep. 604.
Messrs. Louis H. Porter and Archi-
bald Cox argued the cause and filed a
brief for appellee:
The provisions of the stajute relat-
ing to the taxation of nonresidents are
inconsistent with the "due process of
law" clause of the 14th Amendment,
because they tax persons or things out-
side the jurisdiction of the state of New
York, and within the jurisdiction of oth-
er states.
State Tax on Foreign-held Bonds, 15
WaU. 300, 21 L. ed. 179; New York, L.
E. & W. R. Go. V. Penpsylvania, 153 U.
S. 628, 38 L. ed. 846, 14 Sup. Gt. Rep.
952; Union Refrifferator Transit Go. v.
Kentucky, 199 U. S. 19^, 50 L. ei. 150,
26 Sup. Gt. Rep. 36, 4 Ann. Gas. 493;
Western U. Teleg. Co. v. Kansas, 216 U.
S. 1, 54 L. ed. 355, 30 Sup. Gt. Rep. 198;
Delaware, L. & W. R. Co. v. Pennsyl-
vania, 198 U. S. 341, 49 L. ed. 1077, 25
Sup. Ct. Rep. 669; Dewey v. Des Moines,
173 U. S. 193, 43 L. ed. 665, 19 Sup. Gt.
Rep. 379; St. Louis v. Wiggins Ferry
Go. 11 Wall. 423, 430, 20 L. ed. 192, 194;
Coosa, Taxn. pp. 67, 145; Welton v.
Missouri, 91 U. S. 275, 278, 23 L. ed.
347, 348.
The tax here in question is a subjec-
tive tax imposing personal liability
upon the person receiving and enjoying
the "net income," which merely meas-
ures the burden imposed on the taxpayer
in personam.
State ex rel. Sallie F. Moon Co, ▼.
252 IT. S:
1919.
TRAVIS V. YALE i TOWNE MANUFACTURING CO.
WisooDsin Tax. Commission, 166 Wis.
287, 163 N. W. 639, 165 N. W. 470 ; In-
come Tax Cases, 148 Wis. 456, L.B.A.
1916B, 669, 134 K W. 673, 135 N. W.
164, Ann. Cas. 1913A, 1147; Maguire v.
Tax Comrs. 230 Mass. 503, 120 N. E.
162; Brady V. Anderson, 153 C. C. A.
463, 240 Fed. 665.
Since this statute thus imposes a per-
sonal tax on a nonresident of the state,
it is nneonstitutional.
United States v. Erie R. Co. 106 U. S.
327, 27 L. ed. 151, 1 Sup. Ct. Rep. 223;
Michigan C. R. Co. v. Collector (Michi-
gan G. R. Co. V. Slack) 100 U. S. 595,
25 L. ed. 647; Dewey v. Des Moines, 173
U. S. 193, 43 L. ed. 665, 19 Sup. Ct.
Rep. 379; New York v. McLean, 170 N.
Y. 374, 63 N. E. 380 ; Wilcox v. Roches-
ter, 129 N. Y. 247, 29 N, E. 99; Hilton
V. Fonda, 86 N. Y. 340; Mygatt v.
Washburn, 15 N. Y. 316; Litchfield v.
Vernon, 41 N. Y. 123; Dorwin v. Strick-
land, 67 N. Y. 492; Stewart v. Crysler,
100 N. Y. 378, 3 N. E. 471; Maltbie v.
Lobsitz Mills Co. 223 N. Y. 227, 119 N.
E. 389; Bariiyte v. Shepherd, 35 N. Y.
238; Cooley, Taxn. 3d ed. p. 24; Brown,
Jurisdiction of Courts, 2d ed. § 160, pp.
549, 650; State, Potter, Prosecutor, v.
Ross, 23 N. J. L. 521; Crandall v.
Nevada, 6 Wall. 35, 18 L. ed. 745; Rob-
bins V. Taxing Dist. 120 U. S. 489, 30 L.
ed. 694, 1 Inters. Com, Rep. 45, 7 Sup.
Ct. Rep. 592.
The provisions of the statute here
cannot be sustained as a tax on prop-
erty.
Ayer ft L. Tie Co. v. Kentucky, 202
U. S. 409, 50 L. ed. 1082, 26 Sup. Ct.
Rep. 679, 6 Ann. Cas. 205; Morgan v.
Parham, 16 Wall. 471, 21 L. ed. 303;
Buck V. Beach, 206 U. S. 392, 51 L. ed.
1106, 27 Sup. Ct. Rep. 712, 11 Ann. Cas.
732; Union Refrigerator Transit Co. v.
Kentucky, 199 U. S. 194, 50 L. ed. 150,
26 Sup. Ct. Rep. 36, 4 Ann. Cas. 493;
Louisville & J. Ferry Co. v. Kentucky,
188 U. S. 385, 47 L. ed. 513, 23 Sup. Ct.
Rep. 463; Delaware, L. & W. R. Co. v.
Pennsylvania, 198 U. S. 341, 49 L. ed.
1077, 25 Sup. Ct. Rep. 669; Tappan v.
Merchants' Nat. Bank, 19 Wall. 490, 22
L. ed. 189; Bristol v. Washington
County, 177 U. S. 133, 44 L. ed. 701, 20
Sup. Ct. Rep. 585; Liverpool & L. & 6.
Ins, Co. V. Board of Assessors, 221 U. S.
346, 55 L. ed. 762, L.R.A.1915C, 903, 31
Sup. Ct. Rep. 550; New Orleans v.
Stempel, 175 U. S. 309, 44 L. ed. 174, 20
Sup. Ct. Rep. 110; Scottish Union &
Nat. Ins. Co. v. Bowland, 196 U. S. 611,
49 L. ed. 619, 25 Sup. Ct. Rep. 345;
State Assessors v. Comptoir National
•4 Ij. ed.
DT.scompte, 191 U. S. 388, 48 L. ed. 232,
24 Sup. Ct. Rep. 109; Rogers v. Henne-
pin County, 240 U. S. 184, 60 L. ed. 594,
36 Sup. Ct. Rep. 265; Metropolitan L.
Ins. Co. V. New Orleans, 205 U. S. 395,
51 L. ed. 853, 27 Sup. Ct. Rep. 499;
State Tax on Foreign-held Bonds, 15^
WaU. 300, 21 L. ed. 179; Board of As-
sessors V. New York L. Ins. Co. 216 U.
S. 517, 54 L. ed. 597, 30 Sup. Ct Rep.
385; Hawley v. Maiden, 232 U. S. 1, 58
L. ed. 477, 34 Sup. Ct. Rep. 201, Ann.
Cas. 1916C, 842; Fidelity & C. Trust Co.
V. Louisville, 245 U. S. 54, 62 L. ed. 145,
L.R.A.1918C, 124, 38 Sup. Ct. Rep. 40;^
Southern P. Co. v. Kentucky, 222 U. S.
63, 56 L. ed. 96, 32 Sup. Ct, Rep. 13;
Pollock V. Farmers' Loan & T. Co. 158
U. S. 635, 637, 39 L. ed. 1125, 1126, 15
Sup. Ct. Rep. 912; United States v.
Bennett, 232 U. S. 299, 58 L. ed. 612,
34 Sup. Ct. Rep. 433; Michigan C. R.
Co. V. Collector (Michigan C. R. Co. v.
Slack) 100 U. S. 595, 25 L. ed, 647.
The provisions of the statute taxing
nonresidents cannot be sustained as im-
posing a privilege or license tax.
William E. Peck & Co. v. Lowe, 247
U. S. 165, 62 L. ed. 1049, 38 Sup. Ct.
Rep. 432; United States Glue Co. v. Oak
Creek, 247 U. S. 321, 62 L. ed. 1135, 38
Sup. Ct. Rep. 499, Ann. Cas. 1918E, 748;
Sault Ste. Marie v. International Trans-
it Co. 234 U. S. 333, 340, 58 L. ed. 1337^
1340, 52 L.R.A.(N.S.) 574, 34 Sup. Ct
Rep. 826; Provident Sav. Life Assur.
Soc. V. Kentucky, 239 U. S. 103, 60 L.
ed. 167, L.R.A.1916C, 572, 36 Sup. Ct.
Rep. 34; Allgeyer v. Louisiana, 165 U.
S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep.
427; Truax v. Raich, 239 U. S. 33, 60 L.
ed. 131, L.R.A.1916D, 545, 36 Sup. Ct.
Rep. 7, Ann. Cas. 1917B, 283; State
Freight Tax Case, 15 Wall. 232, 21 L. ed.
146; Robbins v. Taxing Dist. 120 U. S.
489, 30 L. ed. 694, 1 Inters. Com. Rep.
45, 7 Sup. Ct. Rep. 592 ; Asher v. Texas,
128 U. S. 129, 32 L. ed. 368, 2 Inters.
Com. Rep. 241, 9 Sup. Ct. Rep. 1;
Leloup V. Mobile, 127 U. S. 640, 32 L.
ed. 311, 2 Inters. Com. Rep. 134, 8 Sup.
Ct. Rep. 1380 ; Walling v. Michigan, 116^
U. S. 446, 29 L. ed. 691, 6 Sup. Ct. Rep.
454.
The statute cannot be sustained on
the theory that the state of New York
has in fact power to collect the tax.
Board of Assessors v. New York L.
Ins. Co. 216 U. S. 517, 54 L. ed. 597, 30'
Sup. Ct. Rep. 385; New York, L. E. &
W. R. Co. V. Pennsylvania, 153 U. S.
628, 38 L. ed. 846, 14 Sup. Ct. Rep. 952;
Morgan v. Parham, 16 Wall. 471, 21 L.
ed. 303; Louisville & J. Ferry Co. v.
0 46&
2, 73
SUPKEMK CUUllT OF TUK IXITED STATK8.
Oct. Teem,
>
Kentucky, 188 U. S. 385, 47 L. ed, 513,
23 Sup. Ct. Rep. 463; United States v.
Bennett, 232 U. S. 299, 58 L. ed. 612, 34
Sup. Ct. Rep. 433; Michip:an C. R. Co. v.
Collector (xMichigan C. R. Co. v. Slack)
100 U. S. 595, 25 L. ed. 647.
The provisions operatinjc to discrimi-
nate against . appellee's nonresident em-
ployees conflict with art. 4, § 2, of the
Constitution and the "privileges and
immunities'' clause of the 14th Amend-
ment.
Paul V. Virginia, S Wall. 168, 180, 19
L. ed. 357, 360; Chalker v. Birmingham
d' N. W. R. Co. 249 U. S. 522, 63 L. ed.
748, 39 Sup. Ct. Rep. 366; Travellers'
Ins. Co. V. Connecticut, 185 U. S. 364, 46
L. ed. 949, 22 Sup. Ct. Rep. 673; La
Tourette v. McMaster, 248 U. S. 465, 63
L. ed. 362, ,39 Sup. Ct. Rep. 160; New
York V. Weaver, 100 U. S. 539. 25 L. ed.
705; Sprague v. Fletcher, 69 Vt. 69, 37
L.R.A. 840, 37 Atl. 239.
Mr. John W. Griggs filed a brief as
amicus curise:
The state of New York has no power
to impose a license, privilege, or excise
tax upon nonresidents carrying on any
trade, business, or occupation within
that state, unless a similar license, privi-
lege, or excise tax is imposed upon citi-
zens of New York.
Slaughter-House Cases, 16 Wall. 36,
21 L. ed. 394.
If the imposition of the tax cannot be
sustained as a privilege tax, upon what
basis can it be sustained?
M'CulIoch v. Maryland, 4 Wheat. 316,
4 L. ed. 579; Pollock v. Farmers' Loan
& T. Co. 157 U. S. 429, 39 L. ed. 759, 15
Sup. Ct. Rep. 673.
One limitation u|>on the power of tax-
ation of any state is that such power
can be l^ally exercised only uiK>n the
assum])tion of an equivalent rendered
to the taxpayer in the protection of his
person or his property.
Union Refrigerator Transit Co. v.
Kentucky, 199 U. S. 194, 50 L. ed. 150,
26 Sup. Ct. Rep. 36, 4 Ann. Cas. 493.
Any person is at liberty to pursue any
lawful calling, and to do so in his own
way, not encroaching upon the rights of
others. This general right cannot be
taken away. It is not competent, there-
fore, to forbid any person or class of
persons, whether citizens or resident
aliens, offering their services in lawful
business, or to subject others to penal-
ties for employing them.
Cooley, Const. Lim. p. 889.
The tax in question is not a property
4««
tax, and has no relation to property
such.
State ex rel. Manitowoc Qns Co. v.
Wisconsin Tax Commission, 161 Wis.
Ill, 152 N. W. 848; State ex rel. Sallie
F. Moon Co. v. Wisconsin Tax Commis-
sion, 166 Wis. 287, 163 N. W. 639, 165
N. W. 470.
That the United States government
taxes the incomes of nonresident aliens
from property or business within the
United States is no justification for tax-
ation by New York of income earned by
a nonresident within the state.
Michigan C. R. Co. v. Collector
(Michigan C. R. Co. v. Slack) 100 U. S.
595, 25 L. ed. 647; United States v. Erie
R. Co. 106 U. S. 327, 27 L. ed. 151, 1
Sup. Ct. Rep. 223; State, Potter, Prose-
cutor, V. Ross, 23 N. J. L. 621; United
States V. Bennett, 232 U. S. 299, 58 L.
ed. 612, 34 Sup. Ct. Rep. 433 ; Shaffer v.
Howard, 250 Fed. 883.
The scheme of the Federal Constitu-
tion was to unite the people of the vari-
ous states in one Federal citizenship,
and to put an end to those local dis-
criminations and impositions by one
state upon the citizens of another state,
which had so seriously impaired the ef-
ficiency of the government under the
Confederation.
Paul v. Virginia, 8 Wall. 168, 180, 19
L. ed. 357, 360.
Mr. Justice Pitney delivered the opin-
ion of the court :
This was a suit in equity, brought in
the district court by appellee against
'appellant as comptroller of the state of
New York to obtain an injunction re-
straining the enforcement of the Income
Tax Law of that state (I^ws 1919, chap.
627) as against complainant, upon the
ground oi' its repugnance to the Consti-
tution of the United States because vio-
lating the interstate commerce clause,
impairing the obligation of contracts, de-
priving citizens of the states of Connec-
ticut and New Jersey, employed by
complainant, of the privileges and im-
munities enjoyed by citizens of the
state of New York, depriving complain-
ant and its nonresident employees of
their [73] property without due process
of law, and denying to such employees
the equal protection of the laws. A mo-
tion to dismiss the bill — equivalent to a
demurrer — was denied upon the ground
that the act violated § 2 of art. 4 of the
'Constitution by discriminating against
nonresidents in the exemptions allowed
from taxable income; an answer was
filed, raising no question of fact; in
252 IT. S.
1919
TKAVIS V. \AJJ-: & TOWNK MANUFACTURING* CO.
73-76
<iue course there was a final decree in
favor of complainant; and det'efidant
took an appeal to this court under ^ 238,
Judicial Code [3C Stat, at L. J 137, chap.
231, Comp. Stat. J^ 1215, 5 Fed. Stat.
Anno. 2d ed. p. 794 J.
The act (§ 351) imposes an annual
tax upon every resident of the state with
respect to liis net income as defined in
the act, at specified rates, and provides
also: "A like tax is hereby imposed
and shall be levied, collected and paid
annually, at the rates specified in this
section, upon and with respect to the
entire net income as herein defined, ex-
cept as hereinafter provided, from all
property owned amd from every busi-
ness, trade, profession or occupation
carried on in this state by natural per-
sons not residents of the state." Section
359 defines gro.ss income, and contains
this paragraph : "3. In the ease of tax-
payers other than residents, gross income
includes only the gross income from
sources within the state, but shall not
include annuities, interest on bank de-
posits, interest on bonds, notes or other
interest-bearing obligations or dividends
from corporations, except to the extent
to which the same shall be a part of in-
come from any business, trade, profes-
sion ' or occupation carried on in this
state subject to taxation under this
article." In § 360- provision is made
for deducting in the computation of net
income expenses, taxes, losses, deprecia-
tion charges, etc.; but, by t 11 of the
same section, "in the case of a taxpayer
other than a resident of the state the
deductions allowed in this section shall
be allowed only if, and to the extent
that, they are connected with income
arising from sources within the state;
. . r By i 362, [74] certain exemp-
tions are allowed to any resident individ-
ual taxpayer, viz., in the case of a single
person a personal exemption of $1,000,
in the case of the head of a family
or a married person living with hus-
band or wife, $2,000; and $200 ad-
ditional for each dependent person
under eighteen years of age or men-
tally or physically defective. The next
section reads as follows: "Sec. 363.
Credit for taxes in case of taxpayers
other than residents of the state. When-
ever a taxpayer other than a resident of
the state has become liable to income
tax to the state or country where he
resides upon his net income for the
taxable year, derived from sources wnth-
in this state and subject to taxation un-
der this article, the comptroller shall
credit the amount of income tax payable
%4 li. ed.
by him under this article with such pro-
portion of the tax so payable by him
I to the state or country where he resides
as his income subject to taxation under
this article bears to his entire income
upon which the tax so payable to such
other state or country was imposed ; pro-
vided that such credit shall be allowed
only if the laws of said state or country
g^ant a substantially similar credit to
residents of this state subject to in-
come tax under such laws." Sec. 366 in
terms requires that every "withholding
agent" (including employers) shall de-
duct and withhold 2 per centum from all
salaries, wages, etc., payable to nonresi-
dents, where the amount paid to any in-
dividual equals or exceeds $1,000 in the
year, and shall pay the tax to the comp-
troller. This applies to a resident em-
ployee, also, unless he files a certificate
showing his residence address within the
state.
Complainant, a Connecticut corpora-
tion doing business in New York and
elsewhere, has employees who are resi-
dents, some of Connecticut, others of
New Jersey, but are occupied in whole
or in part in complainant's business in
New York. Many of them have annual
salaries or fixed compensation exceeding
$1,000 per year, and the [75] amount
required by the act to be withheld by
complainant from the salaries of such
nonresident employees is in excess of
$3,000 per year. Most of these persons
are engaged under term contracts calling
for stipulated wages or salaries for a
specified period.
The bill sets up that defendant, as
comptroller of the state of New York,
threatens to enforce the provisions of
the statute against complainant, requires
it to deduct and withhold from the sala-
ries and wages payable to its employees
residing in Connecticut or New Jersey
and citizens of those states respectively,
engaged in whole or in part in com-
plainant's business in the state of New
York, the taxes provided in the statute,
and threatens to enforce against com-
plainant the penalties provided by the
act if it fails to do so; that the act is
unconstitutional for the reasons above
specified; and that if complainant does
withhold the taxes as required it will
be subjected to many actions by its em-
ployees for reimbursement of the sums
so withheld. No question is made about
complainant's right to resort to equity
for relief; hence we come at once to the
constitutional questions.
That the state of New York has juris-
diction to impose a tax of this kind upon
467
76-78
SUPllEME COURT OF THE IMl'ED STATES.
OOT.TlEK,
)
the incomes of nonresidents arising from
any business, trade, profession, or oc-
cupation earned on within its borders,
enforcing payment so far as it can by
the exercise of a just control over per-
sons and property within the state, as
by garnishment of credits (of which the
withholding provision of the New York
law is the practical equivalent), and
that such a tax, so enforcad, does not
violate the due process of law provision
of the 14th Amendment, is settled by
our decision in Shaffer v. Carter, this
day announced [252 U. S. 37, ante, 445,
40 Sup. Ct. Rep. 221], involving the In-
come Tax Law of the state of Oklahoma.
That there is no unconstitutional dis-
crimination against citizens of pther
states in confining the deduction of ex-
penses, losses, etc., in the case of non-
resident taxpayers, to such as are [76]
connected with income arising from
sources within the taxing state, like-
wise is settled by that decision.
It is not here asserted that the tax is
a burden upon interstate commerce; the
point having been abandoned in this
court.
The contention that an unconstitution-
al discrimination against noncitizens
arises out of .the provision of § 366, con-
fining the withholding at source to the
income of nonresidents, is unsubstantial.
That provision does not in any wise in-
crease the burden of the tax upon ^non-
residents, but merely recognizes the fact
that as to them the . state imposes no
personal liability, and hence adopts a
convenient substitute for it. See BelFs
Gap R. Co. V. Pennsvlvania, 134 U. S.
232, 239, 33 K ed. 892, 895, 10 Sup. Ct.
Rep. 533.
Nor has complainant on its own ac-
count any just ground of complaint by
reason of being ^required to adjust its
system of accounting and paying sala-
ries and wages to the extent required to
fulfil the duty of deducting and with-
holding the tax. This cannot be deemed
an unreasonable regulation of its con-
duct of business in New York. New
York, L. E. & W. R. Co. v. Pennsylvania,
153 U. S. 628, 38 L. ed. 846, 14 Sup. Ct.
Rep. 952, cited in behalf of complainant,
is not in point. In that case the state
of Pennsylvania granted to a railroad
company organized under the laws of
New York and having its principal place
of business in that state the right to
construct a portion of its road through
Pennsylvania, upon prescribed terms
which were assented to and complied
with by the company and were deemed
to constitute a contract, not subject to
468
impairment or modification through sub-
sequent legislation by the state of Penn-
sylvania except to the extent of estab-
lishing reasonable regulations touching
the management of the business done
and the property owned by the company
in that state, not materially interfering
with or obstructing the substantial en-
joyment Qf the rights previously granted.
Afterwards, Pennsylvania undertook by
statute to require [77] the company,,
when making payment of coupons upon
bonds previously issued by it, payable at
its office in the city of New York, to-
withhold taxes assessed by the state of
Pennsylvania against residents of that
state because of ownership of such bonds.
The coupons were payable to bearer,
and when they were presented for pay-
ment it was practically impossible f6r
the company to ascertain who were the
real owners, or whether they were owned
by the same parties who owned the
bonds. The statute was held to be an
unreasonable regulation, and hence to
amount to an impairment of the obliga-
tion of the contract.
In the case at bar complainant, al-
though it is a Connecticut corporation
and has its principal place of business in
that state, is exercising the privilege of
carrying on business in the state of New
York without any contract limiting the
state's power of regulation. The taxes
required to be withheld are payable with
respect to that portion only of the sala-
ries of its employees which is earned
within the state of New York. It might
pay such salaries, or this portion of
them, at its place of busiijess in New
York; and the fact that it may be more
convenient to pay them in Connecticut
is not sufficient to deprive the state of
New York of the right to impose such a
regulation. It is true complainant as-
serts that the act impairs the obligation
of contracts between it and its em-
ployees; but there is no averment that
any such contract made before the pas-
sage of the act required the wages or
salaries to be paid in the state of Con-
necticut, or contained other provisions
in anywise conflicting with the require-
ment of withholding.
The district court, not passing upon
the above questions, held that the act,
in granting to residents exemptions de-
nied to nonresidents, violated the pro-
vision of § 2 of art. 4 of the Federal
Constitution: **The citizens of each
state shall be entitled to all privileges
and immunities of citizens in the sev-
eral states;" and, notwithstanding [78]
the elaborate and ingenious argument
252 U. S.
1919.
TRAVIS V. YALE & TOWNE MANUFACTURING CO.
78-80
6Qfomitt«d by appellant to the contrary,
we are constrained to affirm the ruling.
The purpose of the provision came
cinder <k)n8ideration in Paul v. Virginia,
8 Wall. 168, 180, 19 L. ed. 357, 3G0, where
the court, speaking by Mr. Justice Field,
said: "It was undoubtedly the object
of the clause in question to place the
citizens of each state upon the same
footing with citizens of other states, so
far as the advantages resulting from
citizenship in those states are concerned.
It relieves them from the disabilities of
alienage in other states; it inhibits dis-
criminating legislation against them by
other states; it gives them the right di
free ingress into other states, and egress
from them; it insures to them in other
states the same freedom possessed by
the citizens of those states in the ac-
ijuisition and enjoyment of property and
in the pursuit of happiness; and it se-
cures to them in other states the equal
protection of their laws. It has been
justly said that no provision in the Con-
stitution has tended so strongly to con-
stitute the citizens of the United States
one people as this." And in Ward v.
Maryland, 12 Wall. 418, 20 L. ed. 449,
holding a discriminatory state tax upon
nonresident traders to be void, the court,
by Mr. Justice Clifford, said (p. 430) :
"Beyoi\d doubt those words [privileges
and immunities] are words of very com-
prehensive meaning, but it will be suffi-
cient to say that the clause plainly and
unmistakably secures and protects the
right of a citizen of one state to pass
into any other state of the Union for
the purpose of engaging in lawful com-
merce, trade, or business without mo-
lestation; to acquire personal property;
to take and hold real estate ; to maintain
actions in the courts of the state ; and to
be exempt from any higher taxes or
excises than are imposed by the state
upon its own citizens."
Of course the terms "resident" and
"citizen" are not synonymous, and in
some cases the distinction is important
[79] (La Tourette v. McMaster, 248 U.
S. 465, 470, 63 L. ed. 362, 365, 39 Sup. Ct.
Bep. 160) ; but a general taxing scheme
such as the one under consideration, 'if
it discriminates against all nonresidents,
has the necessary effect of including in
the discrimination those who are citizens
of other states; and, if there be no rea-
sonable ground for the diversity of
treatment, it abridges the privileges and
immunities to which such citizens are
entitled. In Blake v. McClung, 172 U.
8. 239, 247, 43 L. ed. 432, 435, 19 Sup.
Ct. Rep. 165, 176 U. S. 59, 67, 44 L. ed.
• 4 L. ed.
371, 374, 20 Sup. Ct. Rep. 307, the court
held that a statute of Tennessee, de-
claring the terms upon which a foreign
corporation might carry on business and
hold property in that state, which gave
to its creditors residing in Tennessee
priority over all creditors residing else-
where, without special reference to
whether they were citizens or not, must
be regarded as contravening the "privi-
leges and immunities" clause.
The nature and effect of the crucial
discrimination in the present case are
manifest. Section 362, in the case of
residents, exempts from taxation $1,000
of the income of a single person, $2,000
in the case of a married person, and
$200 additional for each dependent. A
nonresident taxpayer has no similar ex-
emption; but by § 363, if liable to an
income tax in his own state, including
income derived from sources within New
York and subject to taxation under this
act, he is entitled to a credit upon the
income tax otherwise payable to the
state of New York by the same propor-
tion, of the tax payable to the state of
his residence as his income subject to
taxation by the New York act bears to
his entire income taxed in his own state;
"provided, that such credit shall be al-
lowed only if the laws of said state
. . . grant a substantially similar
credit to residents of this state subject
to income tax under such law." ^
[80] In the concrete, the particular
incidence of the discrimination is upon
citizens of Connecticut and New Jersey,
neither of which states has an income
tax law. A considerable number of com-
plainant's employees, residents and
citizens of one or the other of those
1 Reading the statute literally, there
would appear to be an additional dis-
crimination against nonresidents in that
under § 366 the "withholding agent" (em-
ployer) is required to withhold 2 per cent
from all salaries, wages, etc., payable to
any individual nonresident amounting to
$1,000 or more in the year; whereas by
§ 351 the tax upon residents (indeed, up-
on nonresidents likewise, so far as this sec-
tion goes) is only 1 per centum upon the
first $10,000 of net income. It is said,
however, that the discrepancy arose through
an amendment mada to § 351 while the bill
was pending in the legislature, no corre-
sponding amendment having been made in
§ 366. In view of this, and taking the
whole of the act together, the attorney
general has advised the comptroller that
§ 306 requires withholding of only 1 per
centum upon the first $10,000 of income.
And the comptroller has issued regulations
to that effect. Hence we treat the dis-
crepancy as if it did not exist.
469
8<^n83
SUPREMK COURT OF TilE UXITKD STATES.
Oct.'Tebm^
I
states, speiul their working time at its
office in the city of New York, and earn
their salaries there. The case is typical;
it being a matter of common knowledge
that from necessity, due to the geogn^aph-
ieal situation of that city, in close
proximity to the neighboring states,
many thousands of men and women,
residents and citizens of those states,
go daily from their homes to the city
and earn their livelihood there. They
pursue their several occupations side by
side with residents of the state of New
York, — in effect competing with them as
to wages, salaries, and other terras of
employment. Whether they must pay
a. tax upon the first $1,000 or $2,000 of
income, while their associates and com-
petitors who reside in New York do not,
makes a substantial difference. Under
the circumstances as disclosed, we are
unable to find adequate ground for the
discrimination, and are constrained to
hold that it is an unwan*anted denial to
the citizens of Connecticut and New
Jersey of the privileges and immunities
enjoyed by citizens of New York. This
is not a case of occasional or accidental
inequality due to circumstances personal
to the taxpayer (see Amoskeag [81]
Sav. Bank v. Purdy, 231 U. S. 373, 393,
394,58 L. ed. 274, 282,283, 34 Sup. Ct.
R«p. 114; Maxwell v. Bugbee, 250 U. S.
525, 543, 63 L. ed. 1124, 1132, 40
Sup. Ct. Rep. 2), but a general rule,
operating to the disadvantage of all non-
residents, including those who are citi-
zens of the neighboring states, and fa-
voring all residents, including those who
are citizens of the taxing state.
It cannot be deemed to be counter-
balanced by the provision of f 3 of § 359,
which excludes from the income of non-
resident taxpayers ''annuities, interest
on bank deposits, interest on bonds,
notes, or other interest-bearing obliga-
tions or dividends from corporations,
except to the extent to which the same
shall be a part of income from any
business, trade, profession or occupation
<?arried on in this state, subject to taxa-
tion under this article." This provision
is not so conditioned as probably to bene-
fit nonresidents to a degree correspond-
ing to the discrimination against them;
it seems to have been designed rather
(as is avowed in appellant's brief) to
preserve the preeminence of New York
city as a financial center.
Nor can the discrimination be upheld,
as is attempted to be done, upon the
theory that nonresidents have untaxed
income derived from sources in their
home states or elsewhere outside of the
470
state of New York, corresponding to-
the amount upon which residents of that
state are exempt from taxation under
this act. The discrimination is not con-
ditioned upon the existence of such un-
taxed income; and it would be rash to
assume that nonresidents taxable in New
York under this law, as a class, are re-
ceiving additional income from outside
sources equivalent to the amount of the
exemptions that are accorded to citizens
of New York and denied to them.
In the brief submitted by the attorney
general of New York in behalf of ap-
pellant, it is said that the framers of the
act, in embodying in it the provision for
unequal treatment of the residents of
other states with [82] respect to the ex-
emptions, looked forward to the speedy
adoption of an income tax by the adjoin-
ing states; in which event, injustice to
their citizens on the part of New York
could be avoided by providing similar
exemptions, similarly conditioned. This,
however, is wholly speculative. New
York has no authority to legislate for
the adjoining states; and we must pass-
upon its statute with respect to its
effect and operation in the existing situa-
tion. But besides, in view of the provi-
sions of the Constitution of the United
States, a discrimination by the state of
New York against the citizens of ad-
joining states would not be cured were
those states to establish like discrimina-
tions against citizens of the state of New
York. A state may not barter away the
right, conferred upon its citizens by the
Constitution of the United States, to-
enjoy the privileges and immunities of
citizens when they go into other states.
Nor can discrimination -be corrected by
retaliation; to prevent this was one of
the chief ends sought to be accomplished
by the adoption of the Constitution.
Decree affirmed.
Mr. Justice McBeynolds concurs in
the result.
[gS] FRANK P. CHESBROUGH, Plff. in
Err.,
v.
XORTHERX TRUST COMPANY, Executor
of Mary Schreiber,! Eva A. Woodworth,^
and Margaret A. Smalley.
( See S. C. Reporter's ed. 83, 84. )
Federal courts — Jurisdiction — amount
in dispute.
After final judgment entered by a
1 Death of Mary Sebreiljer, formerly
Mary I^ Hotehkisa, one of the defendants
252 U. R.
luiy.
UMTEU STATKS v. A. SCllKADER'S SON.
83-b5
Federal district court and afllrnied by a cir-
cuit court of appeals, the trial court s juris-
diction will not ordinarily be denied on the
theory that the requisite jurisdictional
amount was not involved, where the action
was in tort, the alleged damages exceeded
the prescribed amount, the declaration dis-
closes nothing rendering such a recovery
impossible, and no bad faith appears.
(For other casos, #M»ft Courts, 88«-927, in Di-
gest Sup. Ct. 1008.1
[No. 206.]
Argued January 30, 1920. Decided March
1, 1920.
IN ERROR to the United States Circuit
Court of Appeals for the Sixth Cir-
cuit to review a judgment which afiftrmed
a judgment of the District Court for the
Kastem District of Michigan, Northern
Division, in favor of plaintiffs in an ac-
tion by stockholders in a national bank
against a director, to recover damages suf-
fered by reason of his action as such
director. Aflftrmed.
See same case below, — C. C. A. — ^
251 Fed. 881.
Mr. ThoBiM A. E. Weadock argued the
cause and filed a brief for plaintiff in
error.
Mr. Edward S. Olark argued the cause,
and, with Mr. John C. Weadock, filed a
brief for defendants in error.
Memorandum opinion under direc-
tion of the court, by Mr. Justice He-
Reynolds:
Ekich of the three defendants in error
instituted a suit against plaintiff in
error for damages suffered by reason of
his action as a director of the Old Sec-
ond National Bank, Bay City, Michigan.
These were consolidated in the district
court, and thereafter all parties stipu-
lated that, as the facts were approxi-
mately the same as in Wood worth v.
Chesbrough (No. 137), the [84] "causes
shaU in all respects and as to all parties
therein be governed and concluded by
the final result in the said ease,'' and
''that if and when final judgement la en-
tered upon the verdict heretofore ren-
dered in said case Number 137, or on
any verdict that may hereafter be ren-
dered therein, and when proceedings (if
any) for the review of said judgment
have been concluded or abandoned so
that execution may be issued thereon,
then judgment shall be forthwith entered
and execution issued in the above en-
titled causes,'' for specified amounts.
A judgment against Chesbrough in
No. 137 having been affirmed here (244
U. S. 72, 61 L, ed. 1000, 37 Sup. Ct. Rep.
679), the district court, purporting to
enforce the stipulation, entered judg-
ments for defendants in error; and this
action was properly approved by the
circuit court of appeals. — C. C. A.
—, 251 Fed. 881. See 11 G C. C. A. 465^
195 F«d. 875, 137 C. C. A. 482, 221 Fed
912.
Plain provisions of the stipulation
were rightly applied. The objection,
based upon alleged insufficiency of the
amount involved, which plaintiff in error
urges to the district court's jurisdiction
of the cause first instituted by 3Irs.
Smallcy in the state court and there-
after removed upon his petition, is with-
out merit. The action is in tort; al-
leged damages exceed the prescribed
amount; the declaration discloses noth-
ing rendering such a recovery impos-
sible; no bad faith appears. At this
stage of the cause it would require very
clear error to justify a negation of the
trial court's jurisdiction. Smithers v.
Smith. 204 U. S. 632, 642, fti3, 51 L. ed.
656, 660, 661, 27 Sup. Ct. R^p. 297.
The judgment of the court below i»
^affirmed.
[851 tNITED STATES OF AMERICA,
Plff. in Err.,
T.
A. SCHRADER'S SON, Inc.
(See S. C. Reporter's ed. 85-100.)
Monopoly » agreements to control re-
sale prices.
A manufacturer of patented automo-
bile tire accessories violates the Sherman-
Anti-trust Act when it requires all tire
manufacturers and jobbers to whom it sells
to execute uniform contracts which obligate^
them to observe certain fixed resale prices;
Note. — As to the validity of contract
provision seeking to control price at
which an article shall be resold — see
notes to Stewart v. W. T. Rawleigh
Medical' Co. L.R.A.1917A, 1285; Fisher
Flouring Mills v. Swanson, 51 L.R.A.
(N.S.) 522; and Grogan v. Chaffee, 27
L.R.A.(N.S.) 395.
On right of manufacturer, producer,
or wholesaler to control resale price —
see note to United States v. Colgate k
Co. 7 A.L.R. 449.
in error herein, suggested, and appearance
of Northern Tru*»t Company, executor of
the last will of Mary SchreilK^r, deceased,
64 L. eti.
filed and entered as a party defendant in er-
ror, on January 27, 1920, on motion of
counsel for the defendants in error.
471
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
4t would be otherwise if the mapufacturer
had merely specified the resale prices and
refused to deal with anyone who failed to
observe them, but had not entered into any
contract or combination which would obli-
^te the vendees to maintain such prices.
[Fop other caseB, see Monopoly, II. b, In Di-
gest Sup. Ct. 1908.]
[No. 567.]
Argued January 22 and 23, 1920. Decided
March 1, 1920.
IN ERROR to the District Court of the
United States for the Northern Dis-
trict of Ohio to review a judgment which
sustained a demurrer to an indictment
^hai^ing a violation of the Sherman Anti-
trust Act. Reversed and remanded for
further proceedings.
The facts are stated in the opinion.
Special Assistant to the Attorney
General Mitchell and Solicitor General
King argued the cause and filed a brief
for plaintiff in error:
The indictment charei^s an offense
under the decisions of this court.
United States v. Miller, 223 U. S. 599,
•^02, 66 L. ed. 668, 569, 32 Sup. Ct. Rep.
323; United States v. Carter, 231 U. S.
492, 493, 58 L. ed. 330, 331, 34 Sup. Ct.
Rep. 173; Dr. Miles Medical Co. v. John
D. Park & Sons Co. 220 U. S. 373, 55 L.
ed. 502, 31 Sup. Ct. Rep. 376; United
States V. Colgate & Co. 250 U. S. 300, 63
L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep.
465.
The district court erroneously con-
strued § 1 of the Sherman Act, which
prohibits combinations in restraint • of
trade, as only applying where there is a
violation of § 2, which prohibits monop-
olization.
Standard Oil Co. v. United States, 221
U. S. 1, 50, 65 L. ed. 619, 641, 34 L.R.A.
(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann.
Cas. 1912D, 734; Dr. Miles Medical Co.
•V. John D. Park & Sons Co. 220 U. S.
373, 55 L. ed. 502, 31 Sup. Ct. Rep. 376.
Resale price-fixing combinations are
condemned because of their tendency to
injure the public interest.
Dr. Miles Medical Co. v. John D. Park
& Sons Co. supra; Thomsen v. Cayser,
243 U. S. 66, 61 L. ed. 597, 37 Sup. Ct.
Rep. 353, Ann. Cas. 1917D, 322; Central
Ohio Salt Co. v. Guthrie, 35 Ohio St.
666.
Resale price-fixing combinations are
not saved from condemnation by their
advantages to the participants.
Dr. Miles Medical Co, v. John D. Park
& Sons Co. 220 U. S. 408, 55 L. ed. 518,
31 Sup. Ct. Rep. 376.
472
Mr. Frank M. Avery argued the cause,
and, with Messrs. Eugene V. Myers,
Carl Everett Whitney, and Earl A. Darr,
filed a brief for defendant in error:
The indictment is not sufficient in
form or substance to charge the defend*
ant with an offense.
United States v. Colgate & Co. 250 D.
S. 300, 302, 63 L. ed. 992, 994, 7 A.L.B,
443, 39 Sup. Ct. Rep. 465; Board of
Trade v. United States, 246 U. S. 231, 63
L, ed. 683, 38 Sup. Ct. Rep. 242, Ann.
Cas. 1918D, 1207; United States v.
Whiting, 212 Fed. 466; McLatchy v.
King, 250 Fed. 920; United SUtes v.
Quaker Oats Co. 232 Fed. 499; United
States V. Keystone Watch Case Co. 218
Fed. 502; United States v. United States
Steel Corp. 223 Fed. 56; Standard Oil
Co. V. United States, 221 U. S. 1, 65 L.
ed. 619, 34 L.R.A.(N.S.) 834, 31 Sup. Ct.
Rep. 502, Ann. Cas. 1912D, 734; United
States V. American Tobacco Co. 221 U.
S. 106, 65 L. ed. 663, 31 Sup. Ct Rep.
632; North Western Salt Co. v. Elec-
trolytic Alkali Co. [1914] A. C. 461, 7
B. R. C. 630, 83 L. J. K. B. N. S. 530,
110 L. T. N. S. 852, 30 Times L. R. 313,
58 Sol. Jo. 338; Haynes v. Doman
[1899] 2 Ch. 13, 68 L. J. Ch. N. S. 419,
80 L. T. N. S. 569, 15 Times L. B. 354;
Rousillon V. Rousillon (1880) L. R. 14
Ch. Div. 364, 49 L. J. Ch. N. S. 338, 42
L. T. N. S. 679, 28 Week. Rep. 623, 44
J. P. 663.
Where a vendor has a pecuniary in-
terest in maintaining the resale price,
and no monopoly is effected, such vendor
may lawfully contract with vendees who
agree to adhere to fixed prices.
Dr. Miles Medical Co. v. John D. Park
& Sons Co. 220 U. S. 373, 55 L. ed. 502,
31 Sup. Ct. Rep. 376; Fisher- Flouring
Mills Co. V. Swanson, 76 Wash: 649, 61
L.R.A.(N.S.) 522, 137 Pac. 144; Raw-
leigh Medical Co. v. Osborne, 177 Iowa,
208, L.R.A.1917B, 803, 158 N. W. 666.
At common law such agreements as
those in the case at bar are valid; noth-
ing in the Sherman Act makes them il-
legal; and this court has made it clear
beyond question that, in the cases here-
tofore decided, it has decided no more
than was directly in issue in those cases
respectively.
Bauer v. O'Donnell, 229 U. S. 1, 57 L.
ed. 1041, 50 L.R.A.(N.S.) 1185, 33 Sup.
Ct. Rep. 616, Ann. Cas. 1915A, 150;
Adams v. Burke, 17 Wall. 453, 21 L. ed.
700; Boston Stores v. American Graph-
ophone Co. 246 U. S. 8, 62 L. ed. 551,
38 Sup. Ct. Rep. 257. Ann. Cas. 1918C,
447; Bobbs-Merrill Co. v. Straus, 210
U. S. 339, 52 L. ed. 1086, 28 Sup. Ct.
259 V. S.
1II19.
UNITED STATES v. A. SCHRADER*S SON.
94, 9&
fUp. 722; Dr. Miles Medical Co. v. John
D. Park A Sons Co. 220 U. S. 373, 55 L.
ed. 502, 31 Sap. Ct. Rep. 376; Motion
Pietnre Patents Co. ▼. Universal Film
Mfg. Co. 243 U. S. 502, 61 L. ed. 871,
L.B.Aa917E, 1187, 37 Sup. Ct. Rep. 416,
Ann. Cas. 1918A, 959; Straus v. Victor
Talking Mach. Co. 243 U. S. 490, 61 L.
ed. 866, L.R.A.1917E, 1196, 37 Sup. Ct.
Rep. 412j Ann. Cas. 1918A, 955.
A vendor of personal property,
whether patented or unpatented, can
lawfully sell the same on condition that
the purchaser will resell at no less than
fixed prices, provided the vendor has a
direct and substantial property interest
in the resale price.
2 Co. Litt. § 360.
The law favors freedom' of contract,
and he who asserts the invalidity of a
contract in restraint of trade has the
burden of proof.
North Western Salt Co. v. Electrolytic
Alkali Co. [1914] A. C. 461, 7 B. R. C.
530, 83 L. J. K. B. N. S. 530,* 110 L. T.
N. S. 852, 30 Times L. R. 313, 58 Sol.
Jo. 338; Haynes v. Doman [1899] 2 Ch.
13, 68 L. J. Ch. N, S. 419, 80 L. T. N. S.
569, 15 Times L. R. 354.
Price fixing is not illegal per se.
Dr. Miles Medical Co. v. John D. Park
A Sons Co. 220 U. S. 373, 55 L. ed. 502,
31 Sup. Ct. Rep. 376; Fisher Flouring
Mills Co. V. Swanson, 76 Wash. 649, 51
L.R.A.(N.S.) 522, 137 Pac. 144; Raw-
leigh Medical Co. v. Osborne, 177 Iowa,
208, L.R.A.1917B, 803, 158 N. W. 566.
A patentee who fixes the resale price
of his goods on resales made before the
royalty has been paid is doing a perfect-
ly legal thing under the Sherman Act,
and any restraint of trade thereby ef-
fected is a valid restraint.
E. Bement & Sons v. National Har-
row Co. 186 U. S. 70, 46 L. ed. 1058, 22
Sup. Ct. Rep. 747; Bauer v. O'Donnell,
229 U. S. 1, 57 L. ed. 1041, 50 L.R.A.
(N.S.) 1185, 33 Sup. Ct Rep. 616, Ann.
Cas. 1915A, 150; Bloomer v. McQuewan,
14 How. 539, 14 L. ed. 532; Adams v.
Burke, 17 WaU. 453, 21 L. ed. 700;
MitcheU v. Hawley, 16 Wall. 544, 21 L.
ed. 322; JStraus v. Victor Talking Mach.
Co. 243 U. S. 490, 61 L. ed. 866, L.R.A.
1917E, 1196, 37 Sup. Ct. Rep. 412, Ann.
Cas. 1918A, 955 ; Motion Picture Patents
Co. V. Universal Film Mfg. Co. 243 U.
8. 502, 61 L. ed. 871, L.R.A. 1917E, 1187,
37 Sup. Ct. Rep. 416, Ann, Cas. 1918A,
959; Boston Store v. American Grapho-
phone Co. 246 U. S. 8, 62 L. ed. 551, 38
Sup. Ct. Rep. 257, Ann. Cas. 1918C, 447.
«4 L. ed.
Mr. Justice McReynolda delivered the
opinion of the court:
Defendant in error, a New York cor-
poration, manufactured at Brooklyn, un-
der letters patent, valves, gauges, and
other accessories for use in connection
with automobile tires, and regularly
sold and shipped large quantities of these
to manufacturers and jobbers through-
out the United States. It was indicted
in the district court, northern district
of Ohio, for engaging in a combination
rendered criminal by § 1 of the Sherman
Act of July 2, 1890 (chap. 647, 26 Stat.
at L. 209, Comp Stat. § 8820, 9 Fed. Stat.
Anno. 2d ed. p. 644), which declares il-
legal "every contract, combination in the
form of trust or otherwise, or conspiracy,
in restraint of trade or commerce among
the several 6tates, or with foreign na-
tions." After interpreting the indict-
ment as indicated by quotations from its
opinion which follow, the district court
sustained a demurrer thereto, basing the
judgment upon construction of that act
(— Fed. — ) :
"The substantive allegations of this
indictment are that defendant is engaged
in nuinufacturing valves, valve parts,
pneumatic-pressure gauges, and various
other accessories; that it sells and* ships
large quantities of such articles to tire
manufacturers and jobbers in the north-
em district of Ohio and throughout the
United States; that these tire manufac-
turers and jobbers resell and reship large
quantities of these products to (a) job-
bers and vehicle manufacturers, (b) re-
tail dealers, and (c) to the public, both*
within and without the respective statea
into which the products are shipped;
that these acts have been committed
within three years next preceding tha
presentation of this indictment and with-
in this district; that the defendant ex-
ecuted, and [95] caused all the said
tire manufacturers and jobbers to whom
it sold its said products to execute with
it, uniform contracts concerning resalea
of such products; that every manufac-
turer and jobber was informed by the de-
fendant and well knew when executing
such contracts that identical contracts
were being executed and adhered to by
the other manufacturers and jobbers;
that these contracts thus executed pur-
ported to contain a grant of a license
from the defendant to resell its said
products at prices fixed by it to (a) job-
bers and vehicle manufacturers similarly
licensed, (b) retail dealers, and (c) the
consuming public; that all these con-
tracts provided (that the) [concern-
ing] products thus sold to tire manu-
47S
95-97
SL'PRKME COURT OF THE UNITED STATES.
Oct. T£Btf,
I
factnrers and jobbers (provided) that
they should not resell such products
at prices other than . those fixed
by the defendant. Copies of these
contracts are identified by exhibit num-
bers and attached to the indictment. It
is further charged that the defendant
furnished to the tire mannfacturei*s and
jobbers who entered into such contracts
lists of uniform prices, such as are shown
in said exhibits, which the defendant
iixed for the resale of its said products
to (a) jobbers and vehicle manufactur-
-ers, (b) retail dealers, and (c) the con-
suming public, respectively; and that the
<lefendant uniformly refused to sell and
«hip its products to tire manufacturers
and jobbers who did not enter into such
contracts and adhere to the uniform re-
sale prices fixed and listed b5' the defend-
ant. Further, that tire manufacturers
and jobbers in the northern district of
Ohio and throughout the United States
uniformly resold defendant's products at
uniform prices fixed by the defendant
and uniformly refused to resell such
products at lower prices, whereby com-
petition was suppressed and* the prices
of such products to retail dealers and the
consuming public were maintained and
enhanced.
• ••••••
"Thus it will be observed that the con-
tract, combination, [96] or conspiracy
charged comes merely to this: That the
defendant has agreed, combined, or con-
spired with tire manufacturers and with
jobbers by the selling or agreeing to sell
valves, valve parts, pneumatic pressure
gauges, and various accessories, with the
further understanding or agreement that
in making resales thereof they will sell
only at certain fixed prices. It will be
further observed that the retailers, to
whom the jobbers in ordinary course of
trade would naturally sell rather than to
the consuming public, and who in turn
eell and distribute these articles to and
among the ultimate consumers, ai*e not
included within the alleged combination
or conspiracy.
• • , . • • • •
"The so-called license agreements, ex-
hibited with the indictment, are, in my
opinion, both in substance and effect,
only selling agreements. The title to
the valves, valve parts, pneumatic pres-
sure gauges, and other automobile acces-
sories passed to the so-called licensees
and licensed jobbers."
The court further said :
"Defendant urges that there is a mani-
fest inconsistency between the reasoning,
if not between the holdings, of these two
474
eases [Dr. Miles Medical Co. v. Jolin D.
Park & Sons Co. 220 U. S. 373, 55 L. ed.
502, 31 Sup. Ct. Rep. 376, and United
States V. Colgate Co. 250 U. S. 300, 6S
L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep.
465] ; that if the basic principles an-
nounced in the latter case are to be
taken in the ordinary sense imported by
the language, the present case falls with-
in the Colgate Case, and that, properly
construed, neither § 1 nor § 2 of 'the Sher-
man Anti-trust Law makes the defend-
ant's conduct a crime. The Dr, Miles
Medical Co. Case, standing alone, would
seem to require that this demurrer be
overruled and a holding that the Sher-
man Anti-trust Law is violated and a
crime committed, merely upon a showing
of the making by defendant and two or
more jobbers of the agreements set up in
the indictment ; certainly if the jobbers
were competitors in the [97] same terri-
tory. That case has been frequently
cited as establishing this proposition.
. . . The retailers are not in the
present case included. They may com-
pete freely with one another and may
even give away the articles purchased
by them. No restriction is imposed which
prevents them from selling to the con-
sumer at any price, even though it be at
a ruinous sacrifice and less than the price
made to them by the jobber. Personally,
and with all due respect, permit me to
say that I can see no real difference up-
on the facts between the Dr. Miles Med-
ical Co. Case and the Colgate Co. Case.
The only difference is that in the former
the arrangement for marketing its prod-
uct was put in writing, whereas in the
latter the wholesale and retail dealers
observed the prices fixed by the vendor.
This is a distinction without a difference.
The tacit acquiescence of the wholesalers
and retailers in the prices thus fixed is
the equivalent, for all practical purposes,
of an express agreement.
» . . . . .'.
"Granting the fundamental proposition
stated in the Colgate Co. Case, that the
manufacturer has an undoubted right to
specify resale }>rices and refuse to deal
with anyone who fails to maintain the
same, or, as further stated, the act does
not restrict the long-recognized •right of
a trader or manufactuivr ongaflfcd in an
entirely private business freely to ex-
ercise his own inde))eudent discretion as
to the parties with whom he will deal,
and that he, of course, may announce in
advance the circumstances under which
he will refuse to sell, it seems to me that
it is a distinction without a difference
^ to say that? he may do so bv the snbter-
258 V. 8.
in^.
UNIXKD STATES v. A. SCIIRADEU'S SON.
97-100
f ages and devices set forth in the opin-
ion, and not violate the Sherman Ajiti-
trust Act; yet if he had done the same
thing in the form of a written agreement,
adequate only to effectuate the same
purpose, he would be guilty of a viola-
tion of the law. Manifestly, therefore,
the decision in the Dr. Miles Medical Co.
Case must rest upon some other ground
than the mere fact ^hat there were [98]
^agreements between the manufacturer
and the wholesalers.
^Xha point, however, which I wish to
emphasize, is that the allegations of this
indictment, not alleging any purpose, or
facts from which such a pur]X)se can be
inferred, to monopolize interistate trade,
within the prohibition and meaning of
§ 2 of the Sherman Anti-trust Act and
the last clause of § 2 of the Clayton Act
[October 16, 1914, 38 Stat, at L. 730,
^•hap. 323, Comp. Stat. § 8835a, 9 Fed.
Stat. Anno. 2d ed. p. 730], do not
charge a crime under § 1 of the Sherman
Anti-trust Act as that act should be con-
strued."
Our opinion in United States y, Col-
gate Co. declared quite plainly:
That upon a writ of error under the
Criminal Appeals Act (March 2, 1907,
ohap. 2564, 34 Stat, at L. 124G, Comp.
Stat. § 1704, 6 Fed. Stat. Anno. 2d
ed. p. 149) "we have no authority to
revise the mere interpretation of an
indictment, and are confined to ascer-
taining whether the court, in a ease un-
der review, erroneously construed the
statute." "We must accept that court's
interpretation of the indictments and
confine our review to the question of
the construction of the statute involved
in its decision." That we were con-
fronted by an uncertain interpretation
of an indictment itself couched in
rather vague and general language, the
meaning of the opinion below being the
subject of serious controversy. The "de-
fendant maintains that, looking at the
whole opinion, it plainly constinies the
indictment as alleging only recognition
of the manufacturer's undoubted right to
specify resale prices and refuse to deal
with anyone who failed to maintain the
same." ''The position of the defendant
is more nearly in accord with the whole
opinion, and must be accepted. And. as
counsel for the government were careful
to state on the argument that this conclu-
sion would require affirmation of the
judgment below, an exteniled discussion
of the principles involved is unneces-
sary." And further: "The i)ur|>ose of
the Sherman Act is to prohibit monop-
«4 li. ed.
olies, contracts, and combinations which
)robably would unduly interfere with
99] the free exercise of their rights by
hose engaged, or who wish to engage, in
trade and commerce ; in a word, to pre-
serve the right of freedom to trade. In
the absence of any purpose to create or
maintain a monopoly, the act does not
restrict the long-recognized right of
trader or manufacturer engaged in an
entirely private business, freely to exer-
cise his own independent discretion as
to parties with whom he will deal. And,
of course, he may announce in advance
the circumstances under which he will
refuse to sell."
The court below misapprehended the
meaning and effect of the opinion and
judgment in that cause. We had no in-
tention to overrule or modify the doc-
trine of Dr. Miles Medical Co. v. John
D. Park & Sons Co. where the effort was
to destroy the dealers' independent dis-
cretion through restrictive agreements.
Under the interpretation adopted by the
trial court and necessarily accepted by
us, the indictment failed to charge that
Colgate Company made agreements, ei-
ther express or iihplied, which undertook
to obligate vendees to observe specified
resale prices; and it was treated "as al-
leging only recognition of the manufac-
turer's undoubted right to specify resale
prices and refuse to deal with anyone
who fails to maintain the same."
It seems unnecessary to dwell upon
the obvious difference between the situa-
tion presented when a manufacturer
merely indicates his wishes concerning
prices and declines further dealings with
all who fail to observe them, and one
where he enters into agreements —
whether express or implied from a course
of dealing or other circumstances — with
all customers throughout the different
states, which undertake to bind them to
observe fixed resale prices. In the first,
the manufacturer but exercises his in-
dependent discretion concerning his cus-
tomers, and there is no contract or com-
bination which imposes any limitation
on the purchaser. In the second, the
parties [100] are combined through
agreements designed to take away deal-
ers' control of their own affairs, and
thereby destroy competition and restrain
the free and natural flow of trade
amongst the states.
The principles approved in Dr. Miles
Medical Co. v. John D. Park & Sons Co.
should have been applied. The judgment
below must be reversed and the cause
475
100
SUPREME COURT OF THE UNITED STATES.
Oct. TzEii,
remanded for further proceedings in con-
formity with this opinion.
Reversed and remanded.
Mr. Justice Clarke concurs in the re-
sult.
Mr. Justice Holmes and Mr. Justice
Brandeis dissent.
KHLWAUKEE ELECTRIC RAILWAY A
LIGHT COMPANY, Plff. in Err.,
V.
STATE OF WISCONSIN EX REL. CITY
OF MILWAUKEE.
(See S. C. Reporter's ed. 100-106.)
Constitntional law — Impairing con-
tract obligations — street railway
franchise — pavln^r ordinance.
1. A municipal ordinance requiring a
street railway company to bear the cost of
Saving with asphalt upon a concrete foun-
ation, like the rest of a newly paved
street, that part of such street which lies
between the tracks and for a distance of 1
foot outside, does not, although thereto-
fore the street had been paved from curb
to curb with macadam, impair the obliga-
tion of the street railway company's fran-
chise contract under which its duty ex-
tends to keeping '*in good repair the road-
way between the rails and for 1 foot on
the outside of each rail as laid, and the
space between the two inside rails of its
double tracks with the same material as
the city shall have last used to pave or re-
pave these spaces and the street previous
to such repairs/' imless the railway com-
pany and the city shall agree upon some
other material.
[For other cases, see Constitutional Law, 1435-
1439, in Digest Sup. Ct. 1908.]
Constitutional law — due process of
law — requiring: street railway com-
pany to pave street — reducing In-
come.
2. A street railway company's con-
tractual duty to repave that part of a street
which lies between its tracks and for 1
foot outside cannot be evaded on the theory
that this additional burden will reduce ita
income below a reasonable return on the
investment. •
[For other cases, see Constltutlooal Law, lY.
b. 4. in Digest Sup. Ct 1908.]
Constitutional law — equal protection
of tt>e laws — inconsistent judicial
decision.
3. One against whom a judicial de>
cision has been rendered can base no
rights, under the equal protection of the
laws clause of tlie Federal Constitution,
upon a later decision between strangers
which is asserted to be irreconcilable on a
matter of law with the earlier decision.
This constitutional provision does not as-
sure uniformity of. judicial decisions.
[Pop other cases, see Constitutional Law, IT
a, 1, in Digest Sup. Ct. 1008.1
[No. 65.]
Argued November 10, 1919. Decided March
1, 1920.
IN ERROR to the Supreme Court of the
State of Wisconsin to review a judg-
ment which, on a second appeal, afiffrmed
a judgment of the Circuit Court of Mil-
waukee County, in that state, awarding
a peremptory writ of mandamus to com-
pel a street railway company to pave that
part of a street occupied by iU tracks.
Affirmed.'
See same case below, on first appeal,
166 Wis. 230, 161 N. W. 745; on second
appeal, 166 Wis. 163, 164 N. W. 844.
The facts are stated in the opinion.
Nota — Generally, as to what laws are
void as impairing the obligation of con-
tracts— see notes to Franklin County
Grammar School v. Bailey, 10 L.R.A.
405; Bullard v. Northern P. R. Co. 11
L.R.A. 246; Henderson v. Soldiers & S.
Monument Comrs. 13 L.R.A. 169; and
Fletcher v. Peck, 3 L. ed. U. S. 162.
As to when duty assumed by street
railway to repave or repair arises — see
note to Danville v. Danville R. & Elec-
tric Co. 43 L.R.A.(N.S.) 463.
As to what constitutes due process of
law, generally — see notes to People v.
O'Brien, 2 L.R.A. 255; Kuntz v. Sump-
tion, 2 L.R.A. (»55; Re Gannon, 5 L.R.A.
359; Ulman v. Baltimore, 11 L.R.A. 224;
Oilman v. Tucker, 13 L.R.A. 304; IVar-
476
son V. Yewdall, 24 L. ed. U. S. 436; and
Wilson V. North Carolina, 42 L. ed. U. S.
865.
As to returns to which public service
corporations are entitled — see note to
Bellamy v. Missouri & N. A. R. Co.
L.R.A.1916A, 5.
. As to constitutional equality of privi-
leges, immunities, and protection, gen-
erally— see note to Louisville Safety
Vauft & T. Co. V. Louisville & N. R. Co.
14 L.R.A. 579.
As to liability of street railway for
paving assessment — see note to Shreve-
port v. Prescott, 46 L.R.A. 193.
And see note to this case as reported
in 10 A.L.R. — .
252 r. S.
1919. MILWAUKEE E, R. & L. a>. v. WISCOXSIX EX KEL. MILWAUKEE.
Mr. Edwin 8. Mack argued the cause,
and, with Messrs. George P. Miller and
Arthur W. Fairchild, filed a brief for
plaintiff in error:
This court determines the existence or
nonexistence of a contract' and its in-
terpretation.
Detroit United R. Co. v. Michigan, 242
U. 8. 238, • 249, 61 L. ed. 268, 273,
P.U.R.1917B, 1010, 37 Sup. Ct. Rep. 87 ;
Southern Wisconsin R. Co. v. Madison,
240 U. S. 457, 60 L. ed. 739, 36 Sup. Ct.
Rep. 400; Louisiana R. & Nav. Co. y.
Behrman, 235 U. S. 164, 170, 59 L. ed.
175, 180, 85 Sup. Ct. Rep. 62 ; Russell v.
Sebastian, 233 U. S. 195, 202, 58 L. ed.
912, 920, L.R.A.1918E, 882, 34 Sup. Ct.
Rep. 517, Ann. Cas. 1914C, 1282; Grand
Trunk Western R. Co. v. South Bend,
227 U. S. 544, 551, 57 L. ed. 633, 638,
44..L.R.A.(N.S.) 405, 33 Sup. Ct. Rep.
363; Northern P. R. Co. v. Minnesot€^
208 U. S. 683, 590, 52 L. ed. 630, 633,
28 Sup. Ct. Rep. 341; Stearns v. Minne-
sota, 179 U. S. 223, 233, 45 L, ed. 162,
170, 21 Sup. Ct. Rep. 73; Douglas v.
Kentucky, 168 U. S. 488, 502, 42 L. ed.
563, 557, 18 Sup. Ct. Rep. 199; Jefferson
Branch Bank v. Skelly, 1 Black, 436, 17
L. ed. 173.
The matter involved was properly the
subject of contract.
Superior v. Duluth Street R. Co. 166
Wis. 493, 165 N. W. 1081 ; State ex rel.
Milwaukee v. Milwaukee Electric R. &
Light Co. 161 Wis. 520, 139 N. W. 396,
Ann. Cas. 1914B, 123; Madison v.
Southern Wisconsin R. Co. 156 Wis.
352, — A.LJL — , 146 N. W. 492, 240 U.
S. 457, 60 L. ed. 739, 36 Sup. Ct. Rep.
400; State ex rel. Milwaukee v. Mil*
waukee Electric R. & Light Co. 167 Wis.
121, 147 N. W. 232; State ex rel. MU-
waukee v. Milwaukee Electric R. &
Light Co. 165 Wis. 230, 161 N. W. 745,
166 Wis. 163, 164 N. W. 844; State ex
rel. West Ailis v. Milwaukee I^ht, Heat
& Traction Co. 166 Wis. 178, 164 N. W.
837.
A municipal corporation granting the
use of its streets to a private corpora-
tion does so under delegated legislative
anthority, and the grant and acceptance
constitute a contract which the munici-
pal corporation cannot impair.
Superior v. Duluth Street R. Co. 166
Wis. 487, 166 N. W. 1081 ; Detroit v. De-
troit Citizens' Street R. Co. 184 U. S.
S68, 382, 46 L. ed. 592, 605, 22 Sup. Ct.
Rep. 410; Manitowoc v. Manitowoc &
BT. Traction Co. 146 Wis. 13, 140 Am.
St. Rep. 1066, 129 N. W. 925 ; Minneapo-
lis V. Minneapolis Street R. Co. 215 V.
44 Ii..ed.
S. 417, 54 L. ed. 259, 30 Sup. Ct. Rep.
118.
The paving provision of the 1915 ordi-
nance is not a rule or regulation, and the
paving repair provision of the 1900 ordi-
nance is a term of the franchise granted
th^^reby.
Wright V. Milwaukee Electric R. &
Light Co. 95 Wis. 29, 36 L.R.A. 47, 60
Am. St. Rep. 74, 69 N. W. 791; State
ex rel. Atty. Gen. v. Portage City
Water Co. 107 Wis. 441, 83 N. W. 697 ;
Pittsburg Testing Laboratory v. Mil-
waukee Electric R. & Light Co. 110 Wis.
643, 84 Am. St. Rep. 948, 86 N. W. 592 ;
Linden Land Co. v. Milwaukee Electric
R. & Light Co. 107 Wis. 498, 83 N. W.
851; Re Southern Wisconsin Power Co.
140 Wis. 258, 122 N. W. 801 ; La Crosse
V. La Crosse Gas & E. Co. 145 Wis. 420,
130 N. W. 530 ; Manitowoc v. Manitowoc
& N. Traction Co. 145 Wis. 13, 140 Am.
St. Rep. 1056, 129 N. W. 925; Calumet
Service Co. v. Chilton, 148 Wis. 370, 135
N. W. 131; State ex rel. Milwaukee v.
Milwaukee Electric R. & Light Co. 151
Wis. 520, 139 N. W. 956, Ann. Cas.
1914B, 123; Walla WaUa v. WaUa Walla
Water Co. 172 U. S. 1, 43 L. ed. 341, 19
Sup. Ct. Rep. 77; Detroit v. Detroit
Citizens' Street R. Co. 184 U. S. 368, 46
L. ed. 592, 22 Sup. Ct. Rep. 410 ; Minne-
apolis V. Minneapolis Street R. R. Co.
215 U. 8. 417, 64 L. ed. 259, 30 Sup. Ct.
Rep. 118; Southern Wisconsin R. Co. v.
Madison, 240 U. S. 457, 60 L. ed. 739,
36 Sup. Ct. Rep. 400.
Practical construction may always be
resorted to when there is ambiguity.
We submit that the meaning of the lan-
guage used is precisely that for which
we contend. If it be said that there is
any doubt as to our being right, does
the opposite intent cleariy appear? If
it does not, then the construction be-
comes not merely helpful in interpreta-
tion, but conclusive.
State ex rel. Hayden v. Arnold, 151
Wis. 19, 138 N. W. 78; Harrington v.
Smith, 28 Wis. 43; Scanlan v. Childs, 33
Wis. 663; Wright v. Forrestal, 66 Wis.
341, 27 N. W. 52 ; State ex rel. Bashf ord
V. Frear, 138 Wis. 536, 120 N. W. 216, 16
Ann. Cas. 1019; Re Appointment of Re-
visor, 141 Wis. 592, 124 N. W. 670, 18
Ann. Cas. 1176.
The provisions of the 14th Amend-
ment relate to and cover all the instru-
mentalities by which the state acts.
Raymond v. Chicago Union Traction
Co. 207 U. S. 20, 36, 62 L. ed. 78, 87, 28
Sup. Ct. Rep. 7, 12 Ann. Cas. 757 ; Scott
V. McNeal, 154 U. S. 34, 45, 38 L. ed.
896, 901, 14 Sup. Ct. Rep. 1108; Chicago,
477
101, 102
SI rUKMK U)UK1 OF THE UMTED STATES.
Oct. Twxiir
I
B. & Q. B. Co. V. Cliieago, ICG U. S. 226,
41 L. ed. 979, 17 Sup. Ct. Rep. 581;
Atchison, T. & S. F. R. Co. v. Vosburg,
238 U. S. 66, 59, 59 L. ed. 1199, 1200,
L.R.A.1915B, 953, 35 Sup. Ct. Rep. 675.
A corporation is a person within the
meaning of the provision of the 14th
Amendment forbidding any state to
deny to any person within its jurisdic-
tion the equal protection of the laws.
Southern R. Co. v. Greene, 216 U. S.
400, 412, 54 L. ed. 536, 539, 30 Sup. Ct.
Rep. 287, 17 Ann. Cas. 1247; Pembina
Consol. Silver Min. & Mill. Co. v. Penn-
sylvania, 125 U. S. 181, 188, 31 L. ed.
650, 663, 2 Inters. Com. Rep. 24, 8 Sup.
Ct. Rep. 737; Gulf, C. & S. F. R. Co. v.
Ellis, 165 U. S. 150, 154, 41 L. ed. 666,
667, 17 Sup. Ct. Rep. 255.
A regulation must be reasonable; and
this one, being confiscatory, is unreason-
able and void.
• Stafford v. Chippewa Valley Electric
R. Co. 110 Wis. 331, 85 N. W. 1036;
Hayes v. Appleton, 24 Wis. 542; Le
Feber v. West Al!is, 119 Wis. 608, 100
Am. St. Rep. 917, 97 N. W. 203 ; Eastern
Wisconsin R. & Light Co. v. Hackett,
135 Wis. 481, 115 N. W. 376, 1136, 1139;
Denver v. Denver Union Water Co. 246
U. S. 178, 62 L. ed. 649, P.U.R.1918C,
640, 38 Sup. Ct. Rep. 278; Detroit Unit-
ed R. Co. V. Detroit, 248 U. S. 429, 63
L. ed. 341, P.U.R.1919A, 929, 39 Sup. Ct.
Rep. 151; Shreveport Traction Co. v.
Shreveport, 122 La. 1, 129 Am. St. Rep.
345, 47 So. 40; Detroit v. Ft. Wayne &
B. L R. Co. 95 Mich. 466, 20 L.R.A. 79,
35 Am. St. Rep. 580, 54 N. W. 958;
State, Consolidated Traction Co., Prose-
cutor, v. Elizabeth, 58 N. J. L. 619, 32
L.R.A. 170, 34 Atl. 146; Cuyahoga River
Power Co. v. Akron, 240 U. S. 462, 60
L. ed. 743, 36 Sup. Ct. Rep. 402; Grand
Trunk Western R. Co. v. South Bend,
227 U. S. 544, 556, 57 L. ed. 633, 640,
44 L.R.A.(N.S.) 405, 33 Sup. Ct. Rep.
303; Chicago, B. & Q. R. Co. v. Railroad
Commission, 237 U. S. 220, 59 L. ed.
926, P.U.R.1915C, 309, 35 Sup. Ct. Rep.
560; Atlantic Coast Line R. Co. v. North
Carolina Corp. Commission, 206 U. S.
1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585, 11
Ann. Cas. 398; Gladson v. Minnesota,
166 U. S. 427, 41 L. ed. 1064, 17 Sup. Ct.
Rep. 627; Missouri P. R. Co. v. Ne-
braska, 217 U. S. 196, 54 L. ed. 727, 30
Sup. Ct. Rep. 461, 18 Ann. Cas. 989;
Missouri P. R. Co. v. Tucker, 230 U. S.
340, 57 L. ed. 1507, 33 Sup. Ct. Rep. 961 ;
Northern P. R. Co. v. North Dakota,
236 U. S. 586, 59 L. ed. 735, L.R.A.1917F,
1148, P.U.R.1915C, 277, 35 Sup. Ct. Rep.
429, Ann. Cas. 1916A, 1; Chicago, M. &i
478
St. P. R. Co. v. Wisconsin, 238 U. S. 491,
59 L. ed. 14*23, L.R.A.1916A, 1113,
P.U.R.1915D, 706, 35 Sup. Ct. Rep. 860-,
Mississippi R. Commission v. Mobile &
0. R. Co. 244 U. S. 388, 61 L. ed. 1216,
37 Sup. Ct. Rep. 602.
The 1915 ordinance is unconstitution-
al even though plaintiff in error may
apply to the Railroad Commission to
have rates increased.
Chicago, .B. & Q. R. Co. v. Chicago,
166 U. S. 226, 238, 41 L. ed. 979, 986, 17
Sup. Ct. Rep. 581; Louisville & N. R.
Co. v. Central Stock Yards Co. 212 U. S.
132, 63 L. ed. 441, 29 Sup. Ct. R«p. 246;
Cherokee Nation v. Southern Kansas R.
Co. 136 U. S. 641, 660, 34 L. ed. 295,
303, 10 Sup. Ct. Rep. 965; Sweet v.
Rechel, 159 U. S. 380, 40 L. ed. 188, 16
Sup. Ct. Rep. 43; Coe v. Armour Ferti-
lizer Works, 237 U. S. 413, 425, 69 L.
ed. 1027, 1032, 35 Sup. Ct. Rep. 626^
Pum)>elly v. Green Bay & M. Canal Co.^
13 Wall. 166, 20 L. ed. 557; Janesville
V. Carpenter, 77 Wis. 288, 8 L.R.A. 808,
20 Am. St. Rep. 123, 46 N. W. 128;
Monongahela Nav. Co. v. United States,
148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct.
Rep. 622.
Mr. Clifton Williams argued the
cause and filed a brief for defendant in
error:
This case is exactly like the case of
Southern Wisconsin R. Co. v. Madison,
240 U. S. 457-462, 60 L. ed. 739-743, 36
Sup. Ct Rep. 400.
The supreme court of the state of
Wisconsin has not changed its position
in Superior v. Duluth Street R. Co. 166
Wis. 487, 165 N. W. 1081, since it ren-
dered the judgment in the case at bar.
Madison v. Southern Wisconsin R.
Co. 156 Wis. 352, — A.L.R. — , 146 N.
W. 492; State ex rel. Milwaukee v. Mil-
waukee Electric R. & Light Co. 165
Wis. 236, 161 N. W. 745.
Mr. Justice Brandeis delivered the
opinion of the court:
A petition for a writ of mandamus
was brought by the city of Milwaukee
in a lower court of the state of Wiscon-
sin [102] to compel the Milwaukee Elee-
trie Railway & Light Company to pave
at its own expense, with asphalt upon a
concrete foundation, that portion of
Centre street, called the railway zone,
which lies between the tracks and for
1 foot outside of them. The paving had
been specifically ordered on November
8, 1915, by a city ordinance after the
city had laid such a pavement on aJl
of the street except the railway zone.
258 V. 8.
1919. M1LWAUK1::E K. IX. k L. CO. V. WISCXJNSIN EX KEL. MILWAUKEE. 102-104
Tberet<>fore the street had been paved
from eurb to curb witli macadam. The
oomfMuiy admitted that the railway zone
was in need of repaving at that time;
but it insisted that, under an ordinance
of January 2, 1900, which constituted
its franchise to lay tracks on Centre
street, it was entitled to repair with
maeadam, and eeuld not be compelled
to repave with asphalt.
The ease was heard in the trial court
on a demurrer to the amended return.
The demurrer was sustained ; and the de-
cision was affirmed by the supreme court
(165 Wis. 230, 161 N. W. 745). The
eompany having failed, after remittitur,
to file an amended return or take fur-
ther action, judgment was entered by the
trial court awarding a peremptory writ
of mandamus, directing it to pave the
railway zone as directed in the ordi-
nance. This judgment also was affirmed
by the supreme court (166 Wis. 163, 164
N. W. 844). The case comes here on
writ of error under § 237 of the Judicial
Code [36 Stat, at L. 1156, chap. 231,
Gomp. Stat. § 1214, 5 Fed. Stat. Anno.
2d ed. p. 723]. The single question
presented is whether the ordinance of
November 8, 1915, is void either under
§ 10 of article 1 of the FederaLConstitu-
tion, as impairing contract rights of the
company, or under the 14 th Amendment,
as depriving it of property without due
process of law. The ordinance of Janu-
ary 2, 1900, which is the contract al-
leged to be impaired by the later ordi-
nance, provides as follows:
"Sec. 2. ... It shall be the duty
of said railway company at all times
to keep in good repair the roadway be-
tween the rails and for 1 foot on the
outside of each rail [103] as laid, and
the space between the two inside rails of
its double tracks with the same material
as the city shall have last used to pave
or repave these spaces and the street
previous to such repairs, unless the rail-
way eompany and the board of public
works of said city shall agree upon some
other material, and said company shall
then use the material agreed upon. . . "
The eompany contends that when this
section is read in connection with § 9,
it clearly appears that the obligation to
repave cannot be imposed.
First: The supreme court of the
state held that the language of § 2 was
not distinguishable from that involved
in earlier eases in which it had held
that a duty to keep "in proper repair,"
without qualification, was broad enough
to require repaying and repairing with
the same material with which the street
64 li. ed.
was repaved. When this court is called
upon to decide whether state legislation
impairs the obligation of a contract, it
must determine for itself whether there
is a contract, and what its obligation is,
as well as whether the obligation has
been impaired. Detroit United B. Coi
V. Michigan, 242 U. S. »8, 249, 61 L.
ed. 272, 273, P.U.R.1917B, 1010, 37 Sup.
Ct. Rep. 87. But, as stated in Southern
Wisconsin R. Co. v. Madison, 240 U. S.
457, 461, 60 L. ed. 739, 742, 36 Sup. Ct.
Rep. 400, 'Hhe mere fact that, without
the state decision, we might have hesi-
tated, is not enough to lead us to over-
rule that decision upon a fairly doubtful
point." Among the cases relied upon by
the state court is State ex rel. Milwau-
kee v. Milwaukee Electric R. & Light Co.
151 AVis. 520, 139 N. W. 396, Ann. Cas.
1914B, 123, which was cited by this court
in the Madison Case (p. 461) as a "per-
suasive decision [s] that the obligation
to keep the space *in proper repai? . . .
extends to" repaving the railway zone
with asphalt when the rest of the street
is being repaved with that material.
But the company points to the clause
in the ordinance of January 2, 1900^
which provides for repair "with the
same material as the city shall have
last used to pave or repair these spaces
and the 'street," [104] and insists that
its obligation is, in any event, limited to-
repaving with such material as the city
had last used between the rails. This
would put upon the city the burden of
paving the whole street in case of any
innovation in paving save by agreement
of the company and the city. It is not
a reasonable construction of the provi-
sion.
Second: Granted the duty to repave,.
and to repave with material other than
that last used in the space between the-
tracks, was it reasonable for the city
to require that the pavement be of as-
phalt upon a concrete foundation — a
pavement which involved larger ex-
pense? The city alleged in* its petition
that the use of macadam by the railway
was unreasonable, and that it is physi-
cally impossible to make a water-tight
bond between the water-bound macadam
and the asphalt, so as to prevent water
from seeping, through under the asphalt,,
causing it to deteriorate in warm weath-
er and to be lifted by freezing in cold
weather. The allegation was not ex-
pressly admitted by the return, and must
be deemed to have been covered by its
general denial of all allegations not ex-
pressly admitted; but neither party took
steps to have this formal issue disposed
479-
104-106
SLPKEMK COURT OF THE UNITED STATES.
Oct. Tkbm,
of. The case diiTers, therefore, in this
respect from the Madison Case, where
there was an express finding that re-
pavement of the railway zone with stone
would have been unsuitable when the
rest of the street was of asphalt (p.
462). The difference is not material.
As the ordinatft^e did not, as a matter of
contract, preclude regulation in respect
to paving, it was for the city to deter-
mine, in the first instance, what the pub-
lic necessity and convenience demanded.
Compare Fair Haven & W. R. Co. v.
New Haven, 203 U. S. 379, 51 L. ed. 237,
27 Sup. Ct. Rep. 74. We cannot say
that its requirement that the railway
zone be paved like the rest of the street
with asphalt upon a concrete foundation
was inherently arbitrary or unreason-
able.
Third: The company insists that the
ordinance of [105] November 8, 1915,
is unreasonable and void, also, for an en-
tirely different reason. It alleges in its
return that for along time prior to that
date the earnings from its street railway
sjnstem in Milwaukee were considerably
under 6 per cent of the value of the
property used and useful in the business,
and were less than a reasonable return.
It contends that* this allegation. was ad-
mitted by the demurrer; and. that to
impose upon the company the additional
burden of paving with asphalt will re-
duce its income below a reasonable re-i
turn on the investment, and thus deprive
it of its property in violation of the
14th Amendment. The supreme court
of the state answered the contention by
saying: "The company can at any time
apply to the Railroad Commission and
have the rate made reasonable." The
financial condition of a public service
corporation is a fact properly to be con-
sidered when determining the reason-
ableness of an order directing an im-
remunerative extension of facilities, or
forbidding their abandonment. Missis-
sippi R. Commission v. Mobile & O. R.
Co. 244 U. 8. 388, 61 L. ed. 121(), 37
Sup. Ct. Rep. 602; New York ex rel.
New York & Q. Gas Co. v. McCall, 245
U. S. 345, 350, 62 L. ed. 337, 341, P.U.R.
1918A, 792, 38 Sup. Ct. Rep. 122. But
there is no warrant in law for the con-
tention that merely because its business
fails to earn full 6 per cent upon the
value of the property used, the com-
pany can escape either obligations vol-
untarily assumed or burdens imposed in
the ordinary exercise of the police pow-
480
er. Compare Missouri P. R. Co. v. Kan-
sas, 216 U. S. 262, 279, 54 L. ed. 472,
479, 30 Sup. Ct Rep. 330; Chicago, R.
I. & P. R. Co. V. Arkansas, 219 U. S.
453, 55 L. ed. 290, 31 Sup. Ct. Rep. 275;
Missouri P. R. Co. v. Omaha, 235 U. ^.
121, *B9 L. ed. 157, 35 Sup. Ct. Rep. 82.
Fourth: The company also insists
that the ordinance is* void because it
denies equal protection of the laws. The
contention rests upon the fact that since
entry of the judgment below, the su-
preme court of the state has decided
Superior v. Duluth Street R. Co. 166
Wis. 487, 165 N. W. 1081, which the
company alleges is not reconcilable with
[106] its decision in this case. The
similarity of the ordinances and condi-
tions in the two cases does not seem
to us as clear as is asserted. But,
however that may be, the 14th Amend-
ment does not, in guaranteeing equal
protection of the laws, assure unifoite-
ity of judicial decisions (Backus Jr.
& Sons V. Fort Street Union Depot
Co. 169 U. S. 557, 569, 42 L. ed.
853, 859, 18 Sup. Ct. Rep. 445),
any more than, in guaranteeing dae
process, it assures immunity from ju-
dicial error (Central Land Co. v. Laid-
ley, 159 U. S. 103, 40 L. ed. 91, 16 Sup.
Ct. Rep. 80; Tracey v. Ginzberg, 206 U.
S. 170, 51 L. ed. 755, 27 Sup. Ct. Rep.
461). Unlike Gelpcke v. Dubuque, 1
Wall. 175, 17 L. ed. 520, and Muhlker
V. New York, 197 U. S. 544, 49 L. ed.
872, 25 Sup. Ct. Rep. 522, where protec-
tion was afforded to rights acquired on
the faith of decisions later overruled,
the company seeks here to base rights
on a later decision between strangers,
which, it alleges, is irreconcilable on a
matter of law with a decision thereto-
fore rendered against it. The conten-
tion is clearly unsound.
As we conclude that there was a con-
tractual duty to repave, arising from the
acceptance of the franchise, we have
no occasion to consider whether there
was, as contended, also a statutory duty
to do so, arising under^§ 1862, Wiscon-
sin Statute, which provides that street
railways shall "be subject to such rea-
sonable rules and regulations . . .
as the proper municipal authorities may
by ordinance, from time to time, pre-
scribe."
Affirmed.
Mr. Justice Pitney and Mr. Justice
McBesmolds dissent.
959 IT. S.
MoCLOSKBY T. TOBIN.
107
[107] FHANK P. HoCLOSKEY, Plff. in
(See S. C. Beporter'a ed. 107, 108.)
Constitutional law — due process of
l«w ^ equal proiection of th« Inwa
— panishtng barratry.
BighU under U. S. Const., 14th'
Am«Dd,. were not vialftted by a state etat-
ute nhich made it a criminal olTcnBC for
anj person by personal solicitation to seel;
emplo^meDt to proaecute or collect claims.
including unliquidated claims for personal
injuries, although the state may have made
causes of action in tort, as well as in con-
tract, assignable.
[For otter caiPB, see ConBtlliuional Law, IV.
a, e, a ; IV. b, T, in Dleeat Sip. Ct laos.]
IN KKKOR to the Coott of Criminal Ap-
peals o£ tbe State of Tnas to review
a judgment which afflrmed a judgment of
the County Court of Bexar County, in
that state, refnsing a writ of habeas cor-
pus to a person convicted o£ barratry.
Af&rmed.
See same ease below, — Tes. Crim. Rep.
— , 199 S. W. 1101.
The facts are stated in the opinion.
Mr. B. H. Ward submitted the cauoe
for plaintiff in error:
The act in question is un const itu-
Adams V. Tanner, 244 U. S. 595, 61 L.
ed. 1343, L.R.A.1917F. 1163, 37 Sup. Ct.
Rep. 662; Allgrever v. Louisiana, 165 U.
S. 578, 589, 41 L. ed. 832, 835, 17 Sup.
Ct. Rep. 427.
Mr. B. T. Looner, Attorney Qenersl of
Texas, and Mr. Lather Htcicels submit-
ted the cause for defendant in error:
A statute enacted to promote health,
safety, morals, or the public welfare may
be valid, although it will compel diacon-
tinnance of existing bosineageB in whole
or in part,
Powell V. Pennsylvania, 127 TJ. 8. 678,
32 L. ed. 253, 8 Sup. Ct. Rep. 892. 1257;
Austin V. Tennessee, 179 U. S. 343, 45
L. ed. 224, 21 Sup. Ct. Rep. 132; Booth i
Not©.— As to what oonstitules due
process of law, generally — see notes to
People V. O'Brien. 2 L.R.A. 255; Kunts
V. Sumption, 2 L.R.A. 655; Re Gannon,
6 L.R.A. 359; Ulnian v. Baltimore, 11
L.R.A. 224; Oilman v. Tucker, 13 L.R.A. I Waters v. Bferohants' Louisville Ins. Co,
304; Pearson v. Yewdall, 24 L. ed. V. S. I 9 L. ed. U. S, 692,
■»* II. ed. -tl 4S1
V. UUnois, 184 U. S. 425, 46 L. ed. 623,
22 Sup. Ct, Rep. ^5; Otis v, Parker,
187 D. S. 606, 47 L. ed. 323, 23 Sup. Ct.
Eep. 168; Murphy v. California, 225 D.
8. 623, 56 L. ed. .1229, 41 L.R.A.(N.S.)
163, 32 Snp, Ct. Rep. 697; Rast v. Van
Deman & L. Co. 210 U, 6. 342, 368, 60
L. ed, 679, 691, L.R.A.1917A, 421, 36
Sup. Ct. Rep. 370, Ann. Caa. 1917B, 455;
McLean v. Arkansas, 211 U. S. 539, 547,
548, 63 L. ed. 315, 319, 320, 29 Sup. Ct.
Rep. 206; Murphy v. California, 225 U.
S. 623, 628, 66 L. ed. 1229, 1232, 41
L.R.A.<N.S.) 163, 32 Sup. Ct. Rep. 697.
A closely analogous provision of a
Michigan statute was upheld by this
court in BraEee v. Michigan, 241 TJ, S.
340, 343, 60 L. ed. 1034, 1036, 36 Sup.
Ct. R«p. 561, Ann. Cas. 1917C, 622, and
that provision of the Michigan statute
related to an occupation recognized as
highly useful.
Persons who indulge in barrfttry are
described in Blaekstone, vol. 4, p. 125,
as "those pests of civil society that are
perpetually endeavoring to disturb the
repose of their neighbors and ofRciousiy
interfering in other men's quarrels;"
and barratry is elsewhere described as
"the trafficking and merchandising in
quarrels; the huckstering- in litigious
discord." Bonvier's Law Diet. Rawle*B
3d ed. In Traer v. Clews, 116 U. S. 638,
539, 29 L. ed. 467, 470, 6 Sup. Ct. Rep.
165, this court said: "The rule is that
assignment of a'mere right to file a bill
in equity for fraud committed upon the
assignor will be void, as contrary to
public policy and savoring of mainte-
nance:" if the mere assignment itself is
against public policy, what can be said
in favor of the personal, solicitation
thereof by the assigneef
The courts of the various states have
generally disapproved of the practice of
personal solicitation of employment in
the collection of claims, etc., whether
indulged in by atto
Ellis V. Frawley,
W. 364; Holland v
362, 23 L.RA.(N.S
17 Ann. Cas, 687; I r
Neb. 243, 60 L.R.j
Hep. 643, 93 N. W. ;
Ingersoll v. Coul r
Tenn. 263, 9 L.R.A
436; and Wilson v. North Carolina, 42
L. ed. U. S. 865.
As to acts constituting barratry — see
notes to New Orleans Ins. Co. v. E. D.
Alhro Co. 28 L. ed, U. S. 809, and
107-109
.SLPKEME COURT OF THE UNITED STATES.
Oct. Tebi^
,^
f
St. Rep. 1003, 98 S. W. 178, 10 Ann. Cas.
829; Brown v. Eigne, 21 Or. 260, 14
L.R.A. 745, 28 Am. St. Rep. 762, 28 Pac.
11; Dahms v. Sears, 13 Or. 47, 11 Pac.
891; Huber v. Johnson, 68 Minn. 74, 64
Am. St. Rep. 456, 70 N. W. 806.
Mr. Justice Brandeia delivered the
opinion of the court:
Article 421 of the Penal Code of
Texas defined, with much detail, the of-
fense of barratry. In McCloskey v. San
Antonio Traction Co. — Tex. Civ.
App. — , 192 S. W. 1116, a decree for
an injunction restraining the plain-
tiff in error from pursuing the practice
of fomenting and adjusting claims was
reversed on the ground that this section
had superseded the conmion-law offense
of barratry, and that by the Code ''only
an attorney at law is forbidden to solicit
employment in any suit himself or by an
agent." Section 421 was then amended
(Act of March 29, 1917, chap. 133) so
as to apply to any person who ''shall
seek to obtain [108] employment in any
claim, to prosecute, defend, present or
collect the same by means of personal
solicitation of such employment . . J'
Thereafter McCloskey was arrested on
an information which charged him with
soliciting employment to collect two
claims, one for personal injuries, the
other for painting a buggy. He applied
for a writ of habeas corpus, which was
denied both by the county court and the
court of criminal appeals. The case
comes .here under § 237 of the Judicial
Code [36 Stat, at L. 1156, chap. 231,
Comp. Stat. § 1214, 5 Fed. Stat. Anno.
2d ed. p. 723] , McCloskey having claimed
below, as here, that the act under which
he was arrested violates rights guaran-
teed hira by the 14th Amendment.
The contention is, that since the state
had made causes of action in tort as
well as in contract assignable (Galves-
ton, H. & S. A. R. Co. V. Ginther, 96
Tex. 295, 72 S. W. 166), they had become
an article of commerce; that the busi-
ness of obtaining adjustment of claims is
not inherently evil; and that, therefore,
while regulation was permissible, pro-
hibition of the business violates rights
of liberty and property, and denies equal
protection of the laws. The contention
may be answered briefly. To prohibit
solicitation is to reflate the business,
not to prohibit it. Compare Brazee v.
Michigan, 241 U. S. 340, 60 L. ed. 1034,
.36 Sup. Ct. Rep. 561, Ann. Cas. 1917C,
522. The evil against which the regu-
lation is directed is one from which the
English law has long sought to protect
483
the community through proceedings for
barratry and champerty. Co. Litt. p.
368 (Day's ed. 1812, vol. 2, § 701 [368,
b.]); 1 Hawk. P. C. 6th ed. 524; Peek
V. Heurich, 167 U. S. 624, 630, 42 L, ed.
302, 305, 17 Sup. Ct. Rep. 927. Regula-
tion which aims to bring the conduct of
the business into harmony with ethical
practice of the legal profession, to which
it is necessarily related, is obviously
reasonable. Ford v. Munroe, — Tex.
Civ. App. — , 144 S. W. 349. The statute
is not open to the objections urged
against it.
Affirmed.
[1091 B. C. LEE, Petitioner,
V.
CENTRAL OF GEORGIA RAILWAY
COMPANY et aL
(See S. C. Reporter's ed. 109-111.)
Action — misjoinder — employers* Ua*
blllty — concurrent negligence.^
Righta conferred bv Federal law are
not denied by the refusal of a state court
to permit the joinder in a single count
which alleged concurring neffligenee of a
cause of action against a railway company
to recover damages under the Federal Em-
ployers' Liability Act, and of a common-
law action against the railway employee
whose concurrent negligence was alleged
to have contributed m producing the in-
jury.
[For other cases, see Action or Suit, II. :
Master and Servant, II. a; Parties, II. b.
In DlRPSt Sup. Ct. 1»08.]
[No. 160.]
Argued January 16, 1020. Decided March
•1, 1920.
ON WRIT of Certiorari to the Court of
Appeals of the State of Georgia to
review a judgment which, on a second ap-
Note. — On the constitutionality, ap-
plication, and effect of the Federal Em-
ployers' Liability Act — see notes to
Lamphere v. Oregon R. & Nav. Co. 47
L.R.A.(N.S.) 38; and Seaboard Air
Line R. Co. v. Horton, L.R.A.1915C, 47.
Joinder of parties or caoaes of action in
snitB under the Federal Bmplo^rtn'
Liability Act
It was held in Ex parte Atlantic Coast
Line R. Co. 190 Ala. 132, 67 So. 256,
that a plaintiff may join in distinct
counts in one complaint a sufficiently
stated cause of action arising out of the
one transaction for breach of duty un-
S52 V. 8.
1919.
LEE V. CKMKAL 01' GEOKUIA K. CO.
109, 110
peal, affirmed a judgment of tlie City
Court of Savannah, dismissing on demur-
rer a peraonal-injury action brought joint-
ly against the railway company and an
employee. Affirmed.
The facts are stated in the opinion.
See same case below, on first appeal ,
21 Qa. App. 558, 94 S. E. 888 ; on second
appeal, 22 Ga. App. 237, 96 S. E, 718.
Mr. Alexander A. Lawrence argued
the cause, and, with Mr. William W.
Osborne, filed a brief for petitioner.
Mr. H. W. Johnson argued the cause,
and, with Mr. T. M. Cunningham, Jr.,
filed ^ brief for respondents.
Mr. Jnstiee Brandeis delivered the
opinion of the court:
An injured employee brought an ac-
tion in a state court of Georgia jointly
against a railroad and its engineer, and
sought in a single count, which alleged
concurring negligence, to recover dam-
ages from the company under the Fed-
eral Employers' Liability Act, and from
the individual defendant under the
conimon law. Each defendant filed a
special demurrer on the ground of mis-
joinder of causes of action and mis-
joinder of parties defendant. The de-
murrers [110] were overruled by the
trial court. The court of appeals — an in-
termediate appellate court to which the
case went on exceptions — certified to
the supreme^ court of the state the ques-
tion whether such joinder was permis-
sible. It answered in the negative (147
Ga. 428, — A.L.R. — , 94 S. K 558).
Thereupon the court of appeals reversed
the judgment of the trial court (21 Ga.
App. 558, 94 S. E. 888) ; and certiorari
to the supreme court of the state was
refused. The plaintiff then applied to
^s court for a writ of certiorari on
the ground that he had been denied
rights conferred by Federal law, and
the writ was granted.
Whether two canses of action may be
joined in a single count, or whether two
persons may be sued in a single count,
are matters of pleading and practice re-
der the state Employers' Liability Act,
and for breach of duty under the Fed-
eral Employers' Liability Act, but that
he cannot recover under the state act
in a case governed exclusively by the
national i^atute.
A cause of action under, the Federal
Employers' Liability Act may be joined
with a cause of action under the state
laws. Midland Valley R. Co. v. Ennis,
109 Ark. 206, 169 S. W. 214; Pelton v.
IlHnois C. R. Co. 171 Iowa, 91, 150 N.
W. 236. This seems to have been the
theory also of Wabash R. Co. v. Hayes,
234 U. S. 86, 58 L. ed. 1226, 34 Sup. Ct.
Rep. 729, 6 N. C. C. A. 224, affirming
180 lU. App. 511.
Counts at common law and under the
Federal Employers' Liability Act may be
joined in the same complaint in an ac-
tion to recover for alleged negligent in-
jury to a railway employee. Bouchard
V. Central Vmnont R. Co. 87 Vt. 399,
L.R.A.1915C, 33, 89 Atl. 475.
But plaintiff was compelled to elect
whether she would proceed under the
state law or nnder the Federal law in
South Covington & C. Street R. Co. v.
Finan, 153 Ky. 340, 165 S. W. 742, and
Louisville & N. R. Co. v. Strange, 156
Ky. 439, 161 S. W. 239. In the latter case
the petition contained an allegation in
the alternative that the carrier was en-
gaged in interstate "or" intrastate com-
merce, but tha plaintiff did not know
which.
A similar decision appears in Thorap-
«4 li. ed.
son V. Cincinnati, N. 0. & T. P. R. Co.
165 Ky. 256, 176 S. W. 1006, Ann. Cas.
1917A, 1266, where it was also held that
plaintiff, having elected to proceed under
the Federal act, could not join coem-
ployees as defendants.
An employee of a railway company
engaged in interstate commerce cannot
mahitain a joint action agains't the com-
pany and its engineer under the Federal
Employers' Liability Act of 1908^ where
concurring negligence of the interstate
carrier and its engineer in the course of
interstate commerce is alleged as a
cause of the injury to the plaintiff, and
where also a violation of the Safety Ap-
pliance Act of Congress is charged
against the carrier. Lee v. Central of
Georgia R. Co. 147 Ga. 428, — A.L.R. — -,
94 S. E. 558.
In determining the removability of a
cause of action, the court in Kdly t.
Chesapeake & 0. R. Co. 201 Fed. 602,
treats as an improper joinder a suit in
which a cause of action against the cor-
porate defendant nnder the Federal Em-
ployers' Liability Act was joined with
one against an individual defendant
under a state statute.
Recovery may be had in the same ac-
tion both for the injuries sustained by
the deceased and for his death, even
where the action is brought by the rep-
resentative of the deceased, for the ben-
efit of all the beneQciaries. Northern P.
R. Co. V. Maerkl, 117 C. C. A. 237, 198
Fed. 1.
48.^
110-112
iSirilEMl:: COURT OF THE UNITED STATES.
Oct. Term,
lating solely to the form of the remedy.
When they arise in state courts the
final determination of snch matters ordir
narily rests with the state tribunals,
even if the rights there being enforced
are created by Federal law. John v.
Paullin, 231 U. S. 583, 68 L. ed. 381, 34
Sup. Ct. Rep. 178; Nevada-California-
Oregon R. Co. V. Burrus, 244 U. S. 103,
61 L. ed. 1019, 37 Sup. Gt. Rep. 676.
This has been specifically held in cases
arising under the Federal Employers'
Liability Act. Minneapolis & St. L. R.
Co. V. Bombolis, 241 U. S. 211, 60 L. ed.
961, L.R.A.1917A, 86, 36 Sup. Ct. Rep.
696, Ann. Cas. 1916E, 606; Atlantic
Coast Line R. Co. v. Mims, 242 U. S.
632, 61 L. ed. 476, 37 Sup. Ct. Rep. 188,
17 N. C. C. A. 349; Louisville & N. R.
Co. V. Holloway, 246 U. S. 525, 62 L.
ed. 867, 38 Sup. Ct. Rep. 379, 17 N. C. C.
A. 678. It is only when matters nomi-
nally of procedure ar& actually matters
of substance which affect a Federal
right that the decision of the state court
therein becomes subject to review by
this court. Central Vermont R. Co. v.
White, 238 U. S. 507, 59 L. ed. 1433, 35
Sup. Ct. Rep. 865, Ann. Cas. 1916B, 252,
9 N. C. C. A. 265; New Orleans & N. E.
R. Co. V. Harris, 247 U. S. 367, 62 L.
ed. 1167, 38 Sup. Ct. Rep. 636.
The Federal Employers' Liability Act
does not modify in any respect rights of
employees against one another, exiting
at common law. To deny to a plaintiff
the right to join in one count a cause
against another employee with a cause
of action against the employer in no
way abridges any substantive right of
the plaintiff against the [111] employ-
er. The argument that plaintiff has been
discriminated against because he is an
interstate employee is answered, if an-
swer be necessary, by the fact that the
supreme court of Georgia had applied
the same rule in Western & A. R. Co. v.
Smith, 144 Ga. 737, 87 S. E. 1082 (22
Ga. App. 437, 96 S. E. 230), where it re-
fused, under the State Employers' Lia-
bility Act, to permit the plaintiff to join
with the employer another railroad
whose concurrent negligence was alleged
to have contributed in producing the in-
jury complained of. If the supreme
court of Georgia had in this case per-
mitted the joinder, we might have been
required to determine whether, in view
of the practice prevailing in Georgia,
such decision would not impair the em-
ployer's opportunity to make the de-
fenses to which it is entitled by the Fed-
eral law. For, as stated by its supreme
court in this case (147 Ga. 428, 431) :
4S4
'If the carrier and its engineer were
jointly liable under the conditions
stated in the second question, a joint
judgment would result against them, and
they would be equally bound, regardless
of the fact that the duties imposed upon
them are not the same. The jury would
have no power in such a case to specify
the particular damage to be recovered
of each, since Civil Code, § 4612 [pro-
viding for verdicts in different amount:?
against the several defendants], is not
applicable to personal torts."
But we have no occasion to consider
this question. Refusal to permit the
joinder did not deny any right of plain-
tiff conferred by Federal law. Cases
upon which petitioner most strongly re-
lies (Southern R. Co. v. Carson, 194 U.
S. 136, 48 L. ed. 907, 24 Sup. Ct. Rep.
609; Alabama G. S. R. Co. v. Thompson,
200 U. S. 206, 60 L. ed. 441, 26 Sup. Ct.
Rep. 161, 4 Ann. Cas. 1147; Southern
R. Co. V. Miller, 217 U. S. 209, 54 L.
ed. 732, 30 Sup. Ct. Rep. 450) are inap-
plicable to the situation at bar.
Affirmed.
[112] GRAND TRUNK WESTERN RAIL-
WAY COMPANY, Appt.,
V.
tJNITED STATES.
(See S. C. Reporter's ed. 112-125.)
Post^flSce — compensation for carrying
malls — overpayment — deductions.
1. The Postmaster General, having
satisfied himself that overpayments had
been made *to a railway company for
carrying the mails, might, without estab-
lishing the illegality by suit, deduct the
amount of such overpayments from the
moneys otherwise pavable to the railway
company to which tne overpayments had
been made.
[For other cases, see Postofflce, IV. c, in Di-
gest Sup. Ct. 1908.1
Postofflce — compensation for carrying
mails — overpayment — deductions
— time.
2. The balances due to a railway com-
pany for carrying the mails, although aris-
ing under successive quadrennial contracts,
are regarded as running accounts, and
moneys paid in violation of law upon hal-
ances certified by the government account-
ing officers may be recovered by means of
a later debit in these accounts. It does
not matter how long a time elapsed' bef««
the overpayment was discovered, or Uow
long the attempt to recover it was de-
ferred.
[For other cases, . see Postofflce. IV. c. la
Digest Sup. Ct. 190S.7
262 V. 6.
191S),
GRAND TRUNK WESTERN R. CO. v. UNITED STATES.
Po6loffic0 — oompensatloii for carrying
mails — CT^payment — executlTO
construction of statute.
3. The long-continued practice of the
Postoflice Department to pay the full mail
transportation rates to a certain railroad
company, instead of the 80 per cent pay-
able if the construction of the railroad was
land-aided, will not be given effect by the
courts under the rule of long-contmued
executive conetruetion, where such prac-
tice was not due to any construction of the
statute which the Department later sought
to abandon, but to what is alleged to be a
mistake of fact, — due, perhaps, to an over-
sight.
[For other cases, see Postofflce, IV. c; Stat-
utee, II. e, 2. in Digest Sup. Ct. 1008.]
Postofflce — compensation for carrying
mails — land-aided railroad — re-
duced oompenaatlon — charge on
railroad property.
4. The obligation of a land-aided rail-
road, upder the Act of July 12, 1876, § 13,
to carry the mails at 80 per cent of the
rates otherwise payable, affects every car-
rier which may tiiereafter use the rail-
road, whatever the nature of the tenure,
and it is immaterial that the railroad
company which later carries the mail over
such road received none of the land and
obtained no benefit from the grant.
[For other cases, see Postoflace, IV, c, in Di-
gest Sup. Ct. 1008.]
Postoffice — compensation l}or carrying
malls — what is land-aided railroad.
5. Railroad construction cannot be said
not to have been land-aided, within the
meaning of the Act of July 12, 1876,
§ 18, goveminl^ rates for mail transpor-
tation, because in fact it may have been
completed without the aid either of funds
or of credits derived from public lands,
where, before the road had been fully com-
pleted, the railroad company asked that
certain lands be granted to it in aid of
construction, and accepted from the state
a patent for the lands which recited that
such was the purpose of the conveyance,
and expressly assented to the terms and
conditions of the grant which Congress
imposed, and thereafter proceeded to dis-
pose of the lands.
[For other cases, see Postoflace, IT. e> In
Digest Sup. Ct. 1908.1
Postoffice — compensation for carrying
mails — land-aided railroad pr pur*
chaser on foreclosure.
6. The charge upon a railroad with
reference to compensation for carrying the
mails imposed by acceptance of a land
grant with its terms and conditions may
not be invalidated by any illegal act of the
railroad under a mortgage foreclosure, al-
though the mortgage was executed before
the railroad company had applied for the
grant, and it does not appear that tlie
mariggoR purported specifically to cover
public Tanas, where the trustee under the
mortgage clasf^ed these lands as after-ac-
quired property, and the company's in-
terest in them was, by special proceed -
€4 ii. ed.
log, made subject to the foreclosure pro-
ceedings.
[For other cases, see PostoflBcc, IV. c. In Di-
gest Snp. Ct. 1908.1
Postoffice — compensation for carrying
malls — land-aided railroad — condi-
tion subsequent — forfeiture.
7. The requirement in a congressional
grant of public lands to the state in aid
of railroad construction that the railroad
be completed within ten years was a con-
dition subsequently annexed to an estate
in fee, and the title remained valid until
the Federal government should take action
by legislation or judicial proceeding to en-
force a forfeiture of the estate.
[For other cases, see Postofllce, IV. cj Public
Lands, I. c, 2, in Digest Snp. Ct. 1908.)
Postoffice — compensation for carrying
mails — land-aided railroad — ex-
tent of aid.
8. The burden of a land-aided railroad,*
under the Act of June 3, 1856, § 5, to
carry the mails at a price to be fixed by
Congress, attached upon the acceptance of
any aid whatever, no matter how dispro-
portionate to the cost of constructing the
fortion of the road so aided.
For other cases, see Postoflace. IV. c. In Di-
gest Bnp. Ct. 1003.]
Postoffice — compensation for carrying
mails — land-aided railroad — fail-
ure of consideration.
9. The right to have the mails car-
ried at a price to be fixed by Congress,
which was acquired by the Federal gov-
ernment by way of charge upon a railroad
under the Act of June 3, 1866, through
the railroad company's acceptance of a
tract of public land therein granted to the
state in aid of railroad construction, could
not be invalidated by an^ illegal act of the
authorities of the state m issuing a patent
for a wholly different tract.
[For other cases, see PostoflElce, IV. c, la Di-
gest Sap. Ct. 1908.]
[No. 163.]
Argued January 21 and 22, 1920. Decided
March 1, 1920.
APPEAL from the Court of Claims to
review a judgment which dismissed
the petition of a railroad company to re-
cover sums deducted by the Postoffice De-
partment from its mail pay. Affirmed.
See same case below, 53 Ct. 61. 473.
The facts are stated in the opinion.
Mr. T. D. Halpin argued the cause,
and, with Messrs. P. G. Michener, L. T.
Michener, and Harrison Oeer, filed a
brief for appellant:
The basis of the statute requiring
land-grant railroads to transport mails
at 80 per eentum of the prioe allowed
other railroads must be a valid eon-
tract.
Lake Shore & M. 8. R. Oo. ▼. Smith,
173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct.
485
SIPRKME COURT OF THE UXITEU STATES.
Oct. Term,
Rep. 565; Sinking Fund Cases, 99 U. S.
700, 718, 731, 25 L. ed. 496, 501, 505, 3
Hamilton's Works, 518, 519; Jackson-
vUle, P. & M. R. Co. V. United States,
21 Ct. CI. 155, 118 U. S. 626, 30 L. ed.
:273, 7 Sup. Ct. Rep. 48; Rogers v. Port
Huron & L. M. R. Co. 45 Mich. 460, 8
' N. W. 46; Union P. R. Co. v. United
States, 104 U. S. 662, 26 L. ed. 884;
Atchison, T. & S. F. R. Co. v. United
States, 225 U. S. 640, 56 L. ed. 1236, 32
Sup. Ct. Rep. 702; Eastern R. Co. v.
United States, 129 U. S. 395, 32 L. ed.
731, 9 Sup. Ct. Rep. 320; United States
V. Alabama G. S. R. Co. 142 U. S. 615,
35 L. ed. 1134, 12 Sup. Ct. Rep. 306.
Neither Congress nor the state of
Michigan attempted to, nor could they,
force the lands on any person or corpo-
ration. The state of Michigan, as trus-
tee, was acting as a proprietor in selling
the lands. In that capacity it could and
did treat with the purchasers precisely
as any other proprietor might,-offering,
agreeing upon, and accepting terms and
Entering into stipulations from which it
would not be at liberty to depart, and
to which it could not add in the smallest
particular, except with the consent of
the parties with whom it was dealing.
The state as a sovereign could not deal
with the lands otherwise than as it
might between two private citizens.
Robertson v. State Land Office, 44
Mich. 278, 6 N. W. 659.
The attempted contract was void for
♦ illegality.
Bowes v. Haywood, 35 Mich. 241;
Fenn v. Kinsey, 45 Mich. 446, 8 N. W.
64; Schulenberg v. Harriman, 21 Wall.
44, 22 L. ed. 551; Swann v. Miller, 82
Ala. 530, 1 So. 65.
The major part of the consideration
moving to the Port Huron & Lake
Michigan Railroad Company for its ac-
ceptance and promise was void for il-
legality. The consideration was indi-
visible and the whole contract void.
Elliott, Contr. §§ 1076, 1077 ;. Parsons,
Contr. 456; Wald's Pollock, Contr. 321;
Armstrong v. Toler, 11 Wheat. 258, 271,
6 L. ed. 468, 472j Coppell v. Hall, 7 WaU.
542, 558, 19 L. ed. 244, 248 ; Continental
Wall Paper Co. v. Louis Voight & Sons
Co. 212 U. S. 227, 53 L. ed. 486, 29 Sup.
Ct. Rep. 280 ; McMullen v. Hoffman, 174
U. S. 639, 43 L. ed. 1117, 19 Sup. Ct.
Rep. 839; Pullman's Palace Car Co. v.
Central Transp. Co. 171 U. S. 138, 43 L.
ed. 108, 18 Sup. Ct. Rep. 808; Central
Transp. Co. v. Pullman's Palace Car Co.
139 U. S. 24, 35 L. ed. 55, 11 Sup. Ct.
* Rep. 478; Wisconsin C. R. Co. v. United
States, 164 U. S. 190, 41 L. ed. 399, 17 '
48«
Sup. Ct. R«p. 45; Hazelton v. Sheekells,
202 U. S. 71, 50 L. ed. 939, 26 Sup. Ct.
Rep. 567, 6 Ann. Cas. 217; Trist v.
Child (Burke v. Child) 21 Wall. 441, 22
L. ed. 623 ; Lingle v. Snyder, 87 C. C. A.
529, 160 Fed. 627; Horseman v. Horse-
man, 43 Or. 83, 72 Pac. 698; M'Elyea v.
Hayter, 2 Port. (Ala.) 148, 27 Am. Dec.
645; McNamara v. Gargatt, 68 Mich.
462, 13 Am. St. Rep. 355, 36 N. W. 218 ;
La France v. CaUen, 196 Mich. 726, 163
N. W. 101; Mailhot v. Turner, 167 Mich.
167, 133 Am. St. Rep. 333, 121 N. W.
804.
The railroad between. Port Huron aad
Flint, Michigan, was not constructed in
whole or in part by a land grant made
by Congress.
Unit^ States v. Alabama G. S. B. Co.
142 U. S. 615, 35 L. ed. 1134, 12 Sup.
Ct. Rep. 306; 1 Ops. Asst. Atty. Gen.
for the Postoffice Department, 777, 875,
879; 2 Ibid. 312; Coler v. Stanly County,
89 Fed. 257; De Graff v. St. Paul & P. R.
Co. 23 Minn. 144; Chicago, M. & St P.
R. Co. V. United States, 14 Ct. CI. 125,
104 U. S. 687, 689, 26 L. ed. 893, 894.
The appellant is not estopped to
claim that there is no valid contract.
Jones V. United States, 96 U. S. 24,
29, 24 L. ed. 644, 646; Pickard v. Sears,
6 Ad. & El. 474, 112 Eng. Reprint, 181,
2 Nev. & P. 488, 11 Eng. Rul. Cas. 78;
Hawes v. Marchant, 1 Curt. C. C. 144,
Fed. Cas. No. 6,240; Ketchum v. Dun-
can, 96 U. S. 659, 666, 24 L. ed. 868, 871;
Dickerson v. Colgrove, 100 U. S. 578,
580, 25 L. ed. 618, 619 ; Bank of America
v. Banks, 101 U. S. 240, 25 L. ed. 850;
Smythe v. Henry, 41 Fed. 706; Sims v.
Everhardt, 102 U. S. 300, 26 L. ed. 87;
Drury v. Foster, 2 Wall. 24, 17 L. ed.
780; Duval v. United States, 25 Ct. CI.
46; Chicago, M. & St. P. R. Co. v.
United States, 14 Ct. CI. 125, and 104
U. S. 687, 26 L. ed. 893; Coppell v. Hall,
7 Wall. 542, 19 L. ed. 244; Continental
Wall Paper Co. v. Louis Voight & Sons
Co. 212 U. S. 227, 53 L. ed. 486, 29 Sup.
Ct. Rii>. 280; Central Transp. Co. v.
PulIman^s Palace Car Co. 139 U. S. 24,
35 L. ed. 55, 11 Sup. Ct. Rep. 478.
Practical application of the facts and
the statutes was, and is, binding on the
Department and must be maintained
here, it being especially objectionable
that a construction of statutes which is
favorable to the citizen should be
changed in such a manner as to become
retroactive, and to require of him the
repayment of moneys to which he had
supposed himself entitled, and upon the
expectation of which he had made hit
252 IT. a.
1919.
GRAND TRIXK WESTKKN l\. CO. v. UNITKD STATES.
110, 117
eontraets with the government^ as in the
case at bar.
United States v. Alabama G. S. R. Co.
142 U. S. 615, 621, 35 L. ed. 1134, 1136,
12 Sup. Ct. Hep. 306, affirming 25 Ct. CL
30; Houghton v. Payne, 194 U. S. 88,
89, 48 L. ed. 888, 889, 24 Sup. Ct. Rep.
590.
If there be doubt simply as to the
soundness of that practical construction,
and that is the utmost that can be as-
serted here by the government, the ac-
tion, during so many years/ of the De-
partment charged with the execution- of
the statute, should be respected by the
court.
United States v. Finnell, 185 U. 8.
236, 243, 244, 46 L. ed. 890, 893, 22 Sup.
Ct. Rep. 633; McMichael v. Murphy,
197 U. S. 304, 312, 49 L. ed. 766, 769,
25 Sup. Ct. Rep. 460.
If the statutes are ambiguous or of
doubtful import, that practical construc-
tion of them was, and is, binding on the
Department and must be maintained
here, the eourts looking with disfavor
upon any sudden change such as in the
case at bar, whereby parties who have
contracted with the government upon
faith of such construction may be preju-
diced.
United States v. Alabama G. S. R. Co.
142 U. S. 615, 621, 35 L. ed. 1134, 1136,
12 Sup. Ct. Rep. 306, affirming 25 Ct. CI.
36; Hawley v. Diller, 178 U. S. 476, 488,
44 L. ed. 1157, 1161, 20 Sup. Ct. Rep.
986; Houghton v. Payne, 194 U. S. 88,
99, 48 L. ed. 888, 891, 24 Sup. Ct. Rep.
o90«
The practice of an executive depart-
ment through a series of years should '
not be overthrown unless such practice
was obviously and clearly forbidden by
the language of the statutes under which
it proceeded.
Hawley v. Diller, supra; Hewitt v.
Schultz, 180 U. S. 139, 156, 157, 45 L.
ed. 463, 472, 21 Sup. Ct. Rep. 309; Mc-
Michael v. Murphy, 197 U. S. 304, 312,
49 L. ed. 766, 769, 25 Sup. Ct. Rep. 460 ;
United States v. Midwest Oil Co. 236 U.
S. 459, 59 L. ed. 673, 35 Sup. Ct. Rep.
309.
If that practical construe tioi^ of the
statutes by the Department could be
held uith reason to be wrong, it cannot
be said, in view of the language used in
them, to be so plainly or palpably wrong
as to justify the Department, or the
Comptroller, or a court, after the lapse
of so many years, in holding or adjudg-
ing that the Department had miscon-
strued the statutes.
Hewitt V. Schultz, 180 U. S. 139, 156,
«4 r. ed.
157, 45 L. ed. 463, 472, 21 Sup. Ct. Rep.
309; Hawley v. Diller, 178 U. S. 476, ^
488, 44 L. ed. 1157, 20 Sup. Ct. Rep. 986;
McMichael v. Murphy, 197 U. S. 304,
312, 49 L. ed. 766, 769, 25 Sup. Ct. Rep.
460.
Assistant Attorney General Spellacy
argued the cause, and, with Messrs.
Leonard B. Zeisler and Charles H.
Weston, filed a brief for appellee:
Appellant's road from Port Huron to
Flint, Michigan, is land-aided.
Chicago, St. P. M. & 0. R. Co. v.
United States, 217 U. S. 180, 54 L. ed.
721, 30 Sup. Ct. Rep. 470.
The government is not estopped by its
previous treatment of the road as a non-
land-grant road to now treat it as land
aided.
United States v. Alabama G. S. R. Co.
142 U. S. 615, 35 L. ed. 1134, 12 Sup. Ct.
Rep. 306.
Mr. Justice Brandeia delivered the
opinion of the court:
The railroad from Port Huron to
Flint, in Michigan, 60 miles in length,
was completed on December 12, 1871. It
was built by the Port Huron & Lake
Michigan Railroad Company. By fore-
closure of a mortgage executed [117]
by that corporation and several con-
solidations it became on October 31,
1900, the property of the Grand
Tnink Western Railway Company, and
has since been a part • of its sys^
tem. For forty-one years after the
completion of this 60-mile road the
mails were carried over it by the suc-
cessive owners under the usual postal
contracts, and payment was made for the
service quarterly at full rates. In 1912
the Postmaster General, concluding that
this was a land-aided railroad within the
provisions of § 13 of the Act of July 12,
1876, chap. 179, 19 Stat, at L. 78,. 82
Comp. Stat. § 7485, 8 Fed. Stat. Anno.
2d ed. p. 199,* restated the account for
the twelve full years during which the
road had been operated by the Grand
Trunk Western. Twenty per cent of the
mail pay for that period was found to
be $50,359,70; and this amount he de-
ducted from sums accruing to the com-
pany under the current mail contract.
l^Sec 13. That railroad companies
whose railroad was constructed in whole
or in part by a land grant made by Con-
grefts o'h the condition that the mails
should be transported over their road at
such price as Congress should by law di-
rect shall receive only eighty per centum
of the compensation authorized by this
act."
487
117-120
SUPREME COURT OF THE UNITED STATES.
Oct. iMtM,
He al80 redaoed by 20 per cent the
amount otherwise payable under the cur-
* rent contract for carrying the mail over
this part of its system. Thus he de-
ducted* altogether $52^6.87 from the
amount payable on June 30, 1913. The
road had in fact been built without any
aid through grant of public lands. None
had passed to the Grand Trunk Western
when it acquired the road; and, so far
as appears, that company had no actual
knowledge that any of its predecessors
in title had acquired any public land be-
cause of its construction. The com-
pany insisted that the $52,566.87 thus
deducted from its mail pay was with-
held without warrant in law, and
brought this suit in the court of claims
to recover the amount. 53 Ct. CI. 473.
Its petition was dismissed and the case
comes here on appeal. Whether the
company is entitled to relief depends
upon the legal effect of the following
facts I
[118] By Act of June 3, 1856, chap.
44, 11 Stat, at L. 21, Congress granted to
Michigan public land to aid in the con-
struction of certain lines of railroad, a
part extending easterly of Flint to Port
Huron ; another part, westerly of Flint to
Grand Haven. The act contained in § 5
the usual mail provision.' In 1857 the
legislature of Michigan granted these
lands to two companies on condition
that they accept the obligations of the
grant within sixty days. Each company
lied within the specified time a partial
acceptance, refusing to accede to the
taxation features of the grant.. There-
upon the rights of each to any part of
the public lands was declared forfeited
by the state authorities for failure to
comply with the state legislation. Sub-
sequently the companies filed maps of
definite location in the General Land Of-
fice of the Interior Department, which
were approved by that office; and on
June 3, 1863, the Secretary of the Inte-
rior certi6ed to the governor of Michigan
30,998.76 acres of land lying west of
Flint for the company which was to
build the line from Grand Haven to
Flint, — the Detroit & Milwaukee Rail-
way Company. On November 1, 1864,
he certified 6,428.68 acres, all but 97^9100
acres of which lay east of Flint, for the
S'^Sec. 5. And be it further enacted.
That the United States mail shall be trans-
ported over said roads, under the dfrection
of the Postoffioe Department, at sueh price
as Congress may, by law, direct; Provided,
That until such price is fixed by law, the
Postmaster General shall have the power
to determine the same."
4S8
company which was to build the line
from Flint to Port Huron, — the Port
Huron & Milwaukee Railway Company.
Neither company constructed its line nor
received any patent for landi The rights
of way and other property of the Port
Huron & Milwaukee Railway Company
passed through a foreclosure sale to ihe
Port Huron & hake Michigan Railroad
Company; and this corporation built the
road in question during the years 1889,
1870, and 1871. [119] But it made no
application for any part of these lands
until thf ee weeks before the completion
of the road. Then, on November 18, 1871,
it petitioned the state board of control,
which was charged with the disposition
of the public lands, to confer upon it
both the 30,998.76 acres west of Flint and
the 6,428.68 acres east of Flint, which the
Secretary of the Interior had certified;
and in so applying it asked for the land
^^for the purpose of aiding in the con-
struction^' of its contemplated railroad,
which was described as extending from
Grand Haven to Flint and thence to Port
Huron. The board approved of making
the grant ''for the purpose of aiding in
the construction of the road;" but no
further action was taken until May 1,
1873, when, upon a new petition of the
company which recited the former pro-
ceedings and the completion of ''60 miles
of the unfinished portion of said line/'
the board directed the transfer of all
the land to it. The resolution of the
board was followed on May 30, 1873, by
a patent for all the land from the gov-
ernor of the state, its formal acceptance
by the company, subject to the provi-
sions of the Act of Congress of June 3,
1856, and action by it to take possession
of the land and to dispose of it for the
benefit of the company. In 1877 the su-
preme court of Michigan held, in Bowes
V. Haywood, 35 Mich. 241, that the pat-
ent, so far as it purported to transfer
the 30,988.76 acres west of Flint, was
void under the Michigan legislation, be-
cause there had not, in fact, been any
claim or pretense that the company ever
contemplated building the line west of
Flint; and in Fenn v. Kinsey, 45 Mich.
446, 8 N. W..64 (1881), that court held
that an act of the Michigan legislature
passed May 14, 1877, which purported to
ratify the patent, was inoperative so far
as it concerned the lands west of Flint,
because it impaired rights reserved to
the United States by the Act of June 3,
1856. Meanwhile, Congress had relin-
quished to Michigan, by Joint Resolution
of March 3, 1879, No. 15, 20 Stat, at L.
490, its reversiontfy [1^1 interest in
252 r. s.-
1919.
GRAND TRUNK WESIKliN R. I O. v. UNITED STATES.
the lands;* and thereafter the legislature
of Miohier&n (Act of June 9, 1881, Mich.
L&WB, 1881, p. 362) ratified as to ihe
6,000 acres east of Flint, the action
theretofore taken by the state authori-
ties, declaring also that "all deeds and
eODVeyances heretofore executed by the
Port Huron & Lake Michigan Railroad
Compan;" "shall be deemed ol full force
and effect," and that "the rest and resi-
doe of said lands is vested in said com'
pany, its successors and assigna"
Whether there remained then any land
which had not been disposed by that
company or one of its successors does
not appear; but it does appear that
when, in 1875, proceedings were taken to
foreclose the mortgage under which the
appellant claims title to the road, the
trustee to whom the lands had beeil
transferred for the company's benefit
was joined for the purpose of including
all such interest in the property to be
sold.
The Act of June 3, 1856, had contem-
plated a grant of six sections (3,840
acres) per mile of road to be constructed.
That would bare been 230,400 acres for
the 60 miles. The company which buUt
them and those claiming under it re-
ceived at moat 6,428 acres. The case is
one of apparent hardship. Was the judg-
ment of the court of claims denying
relief required by the applicable rules of
lawt
First : If the railroad was land-aided,
payment of more than 80 per cent of the
full rates otherwise provided by law was
unauthorized; and it was the duty of the
Postmaster General to seek to recover
the overpajTuent, Revised [121] Stat-
utes, g 4057, Comp. Stat. § 7606, 8 Fed.
Stat. Anno. 2d ed. p. 252. He was under
no obligation to establish the illegality by
suit. Having satisfied himself of the fact,
he was at liberty to dednct the amount
"of the overpayment from the moneys
otherwise payable to the company to
which the overpayment had been made.
» Resolution of March 3, 1970: "That
the United States hereby releaaes to the
etate of Miohfgan any and all reversionary
inteceat which may remain in the United
states in such of the lands granted tOi
Htid acquired by the Raid state of Mich'
i<{nn by act of Congress of June third,
eighti^n humircd and fifty-six, and certi-
lieit to the »aid state in accordance with
the ssM act. as were granted to aid the
oHiBtruction of the road from Grand
Haven to Flint, and then to Port Huron.
This release shall not in any manner affect
■any legal or equitable rights in said lands,
iriiich have been acquired, but all such
righta shall be and remain unimpnired."
Cl X.. ed.
Wisconsin C. R. Co. v. United States,
164 U. S. 190, 41 L. ed. 399, 17 Sup. Ct.
Rep, 45, There was no attempt to in-
clnde in the deduction any alleged over-
payment to any of appellant's predeces-
sors in title. Balances due for carrying
the mails, although arising under suc-
cessive quadrennial contracts, are re-
garded as maning aoeounts, and moneys
paid in violation of law upon balances
oertifled by the acootmting oEQcers may
be recovered by means or a later debit
in these accounts. It matters not bow
long a time elapsed before the error in
maicing the overpayment was discovered,
or how long the attempt to recover it was
deferred. The Statute of lanii tat ions
does not ordinarily run against the
United States, and would not present
a bar to a suit for the amount. See Unit-
ed States V. Thompson, 98 U. S. 486, 25
L. ed. 194. It is true that when a depart-
ment chatted with the execution of a
statute gives it a construction, and acta
upon that constmotion uniformly for a
series of years, the court will look with
disfavor upon a change whereby parties
who have contracted with the govern-
ment upon the faith of that construction
would be injured. United States v. Ala-
bama d. S. R. Co. 142 U. S. 615, 36 L.
ed. 1134, 12 Sup. Ct. Rep. 306. But
here the practice, long continued, of pay-
ing the full rate, instead of 80 per cent
thereof, was not due to any construction
of a statute which the Department later
sought to abandon, but to what is al-
leged to he a mistake of fact, — due, per-
haps, to an oversight. To such a case
the rule of long-continued construction
has no application. The appellant must
be held to have taken the road with no-
tice of the burdens legally imposed npon
it.
Second: If the road was land-aided,
it is immaterial that the company which
later carried the mail over it received
[132] none of Ihe land and obtained no
benefit from the grant. The obligalion to
carry mails at 8U per cent of rat«s other-
wise payable attached to the road like
an easement or charge; and it affects
every ca '
the railri
tenure.
V. Unitet
721,30 8
expressl;
the mail
the quant
was sma
template
and with
Third: It is contended that this rail-
4»B
122-124
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbh,
road was not land-aided, because it bad,
in fact, been completed without the aid
either of funds or of credit derived from
these public lands. Whether the Port
Huron & Lake Michigan Company, which
built the railroad, was in fact aided by
the land grant in so doing, is immaterial.
Before the road had been folly complet-
ed it asked that the land be granted to
it in aid of the construction, and for this
purpose only could the grant be made
under the act of Congress. It accepted
from the state a patent for the land
which recited that such was the purpose
of the conveyance; and it expressly as-
sented to the terms and conditions of
the grant imposed by the Act of June 3,
1856. Thereafter it proceeded to dispose
of the land. Throughout this period the
Port Huron & Lake Michigan Company
remained the owner of the railroad. It
had been authorized by its charter to
receive the land grant and necessarily
to assent to 'the conditions upon which
alone the grant could be made to it. It
18 true that the mortgage upon its
property, under which appellant claims
title, was executed before the company
had applied for the grant; and.it does
not ap|)ear that the mortgage purported
Hpecifically to cover public lands; but
the trustee under the mortgage claimed
these lands as after-acquired property,
and the company's interest in them was,
by special proceeding, made subject
[128] to the foreclosure proceedings.
The appellant is therefore in no better
position than the Port Huron & Lake
Michigan Company to question the
charge upon the railroad imposed by ac-
ceptance of the grant.
Fourth : Appellant points to the fact
that the patent to the lands lying west
of Flint was later held to be void by the
supreme court of the state; and insists
that thereby the charge or condition con-
cerning the carriage of the mail must be
held to have been relinquished. But the
patent to the lands east of Flint never
was declared void; the company's title
to them never was questioned; and the
* objection to the patent to the western
lands did not apply to them. That ob-
jection was that the Port Huron & Lake
Michigan Railway Company was not a
"competent party" to receive the west-
em lands, within the meaning of the 11th
section of the Michigan Act of 1857, be-
cause it did not propose to construct a
line from Grand Haven to Owosso.
Bowes V. Haywood, 35 Mich. 246. And
490
the attempt by the legislature to make
it a "competent party" through the Act
of 1877 violated the obligations of the
Federal government's grant. Fenn v.
Kensey, 45 Mich. 446, 8 N. W. 64. The
only flaw in the title to the lands east
of Flint lay in the fact that the railway
had not been completed within ten years
of the Act of June 3, 1856, as required by
that act. This requirement, however,
was a condition subsequently annexed to
an estate in fee, and the title remained
valid until the Federal government
should take action by legislation or judi-
cial proceedings to enforce a forfeiture
of the estate. Schulenberg v. Harriman,
21 Wall. 44, 63, 64, 22 L. ed. 551, 555,
556; Iowa R. Land Co. v. Courtright
(Cedar Rapids & M. River R. Co. v.
Courtright) 21 Wall. 310, 316, 22 L. ed.
582, 583. So far from doing so Congress
relinquished . by joint resolution its re-
versionary interest in the land, and
thereby removed all possibility tff objec-
tion on its part to the validity of the
patent; and the state of Michigan later
ratified the pat^it by legislation ad-
mitted to be valid.
Fifth : The appellant urges that the il-
legality of the patent [124] to the west-
ern lands constituted a failure of consid-
eration which voided the contract with
the government. The burden of the mail
clause, it says, could be imposed only by
contract between the government and
Port Huron & Lake Michigan Company.
The contract was for land west as well as
east of Flint; and the land west could
legally be granted only if the company
contemplated building the road westward
to Grand Haven. As there was not even
a pretense that it contemplated such con-
struction, the contract was illegal. The
government's claim under the mail clause
must fail, because no rights can be ac-
quired under an illegal contract. So the
appellant contends. Such a view is the
result of regarding the transaction as a
promise by the railway to the govern-
ment to carry the mail at a price fixed by
Congress, on consideration of 36,000
acres of public land. A contract of this
sort would create a purely personal ob-
ligation attaching "to the company, ^nd
not to the property," — clearly not to a
mere licensee. However, it is settled
that the obligation in question is not
of this nature, but does attach to the
property, even when used by a licensee.
Chicago, Bt P. M. & O. R. Co. v. United
States, 217 U. S. 180, 54 L. ed. 721, ao
S62 V. H.
1919.
CHAPMAN V. WINTROATH.
124-126
Sup. Ct. B^. 470. The obligation of a
iand-aided railway to earry the mail at a
priee fixed by Congress is a charge upon
the property. The pnblio lands were
granted to llfiohigan to aid the constmo-
tioji of certain railways upon certain
conditions. The legislature of Michigan
conld not dispose of the lands except in
accordance with the terms of the grant.
By the Act of February 14, 1857, it ac-
cepted the grant and enacted legislation
to give leg^l effect to the conditions of it.
Section 4 of the act is as follows :
''Said railroads shall be and forever
remain public highways for the use of
the government of the United States,
free from toll or other charge upon the
transportation of any property or troops
of the United States; and the United
States mail shall be transported over
said railroads, [125] under the direc-
tion of the Postoffice Department, at
such price as Congress may by law di-
rect. . . ,"
The order of the board of control of
May 1, 1873, directing the transfer of
the land to the Port Huron & Lake
Michigan Company, and the patent is-
sued by the governor, were founded upon
the authority of § 11 of this act; and
under date of May 30, 1873, the company
accepted the lands with the burdens they
imposed. The railroad, whose owners
and constructors accepted aid derived
from these lands^ became charged by op-
eration of law with the burden of trans-
porting the mails. The question whether
that company would have accepted the
land with its burdens if it had foreseen
the invalidity of the title to the western
lands is wholly immaterial. The burden
attached upon the acceptance of any
aid whatsoever, no matter how dispro-
portionate to the cost of constructing
the portion so aided.
The transaction called illegal was one
between the company and the state au-
thorities. The United States was no
party to it. It had merely supplied prop-
erty which the parties to it used. The
government never objected to the dis-
position made of it; and evidenced its
approval by passage of the Joint Resolu-
tion of March 3, 1879. No reason exists
why riffhts by way of charge upon the
railroad which were acquired by the gov-
ernment through the acceptance of 6,000
acres of public land should be invalidated
by the alleged illegality of the state au-
thorities' action in issuing a patent to a
wholly different tract
Affirmed.
€4 li. ed.
[126] MATHEW T. CHAPMAN aud Mark
C. Chapman, Petitioners,
V.
JOHN A. WINTROATH.
(See S. C. Reporter's ed. 120-139.)
Patents — tnterferenee — limitation.
An inventor whose parent applica-
tion* diacloaes, but does not claim, an in-
vention which conflicts with that of a later
unexpired patent, must, in the absence of
laches, be deemed to have two years f^om
the date of the conflicting patent in which
to file a second application, making con-
flicting claims, in order to have the ques-
tion of priority of invention between the
two determined- in an interference proceed-
ing, in view of U. S. Rev. Stat. § 4886, as
amended by the Act of March 3, 1897»
which ^vea an inventor two years after
patent liaa issued to another for his in-
vention, in which he may file his own appli-
cation, and the time cannot be cut down to
one year on groimds of equity or public
policy, or because of the one-year rule pre-
scribed by § 4894, for further prosecution
of an application after office action there-
on.
[No. 117.]
Argued January 9, 1920. Decided March 1,
1920.
ON WRIT of Certiorari to the Court
of Appeals of the District of Colum-
bia, to review a decree which reversed
a decision of the Commissioner of Pat-
ents in an interference case. Reversed.
See same case below, 47 App. D. C.
428.
The facts are stated in the opinion.
Mr. John L. Jackson argued the
cause, and, with Mr. Albert H. Adams,
filed a brief for petitioners:
An application for patent is a purely
statutory proceeding, and an applicant
is entitled to all the rights conferred by
the patent statutes.
United States v. American fiell
Teleph. Co. 167 U. S. 224, 246, 42 U ed.
144, 156, 17 Sup. Ct. Rep. 809,
Considering Chapman and Chapman's
original triplication merely as proof of
their priority over Wintroath, they are
indubitably the first inventors of the
issue of the interference.
Victor Talking Mach. Co. v. American
Graphophone Co. 76 C. C. A. 180, 145
Fed. 351; Automatic Weighing Mach.
Co. V. Pneumatic Scale Corp. 92 C. C. A.
206, 166 Fed. 288; Sundh Electric Co.
V. IntertMrottgh Rapid Transit Co. 117
C. C. A. 280, 198 Fed. 94; Lemley v.
Dobson-Bvans Co. 156 C. C. A. 171, 243
Fed. 391.
Interferences are authorized for the
491
SUPREME COURT OF THE UNITED STATES.
Oct. Tesii,
)
sole purpose of determining the ques-
tion of priority of invention.
United States ex rel. Lowry v. Allen,
203 U. S. 476, 51 L. ed. 281, 27 Sup. Ct.
Rep. 141; Ewing v. United States, 244
U. S. 1, U, 61 L. ed. 955, 959, 37 Sup.
Ct. Eep. 494.
It follows that, inasmuch as Chapman
and Chapman's applications (divisional
as well as original) were filed less than
two years after the grant of Win-
troath's patent, and their priority over
Wintroath is incontrovertibly estab-
lished, judgment should have been ren-
dered in their favor. .
Ewing V. United States, supra.
Until the amendment of March 3,
1897, to U. S. Rev. Stat. § 4886, Comp.
Stat. § 9430, 7 Fed. -Stat. Anno. 2d ed.
p. 23, which introduced the words "or
more than two years prior to his appli-
cation," a prior uneicpired patent was
never a bar to the grant of a patent to
an applicant who could prove his claim
to priority over it, regardless of when
his application was filed.
Shreeve v. Grissinger, 202 Off. Gaz.
951; C. D. 1914, 49 (p. 51).
Section 4904 of U. S. Rev. Stat. Comp.
Stat. § 9449, 7 Fed. Stat. Anno. 2d ed.
p. 193, provides for the declaration, of
interferences between an application and
any unexpired patent, so that, reading
the latter section in connection with §
4886, when the Commission is of the
opinion that an interference exists be-
tween an application and any unexpired
patent issued not more than two years
before the application was filed, the ap-
plicant has a statutory right to the dec-
laration of such interference, and, on
proving priority, to receive his patent.
Ewing V. United States, supra.
An applicant who prosecutes hia ap-
plication according to law and the
Patent Ofiftce rules is not chargeable
with laches.
United States v. American Bell
Teleph. Co. 167 U. S. 224, 246, 42 L. ed.
144, 156, 17 Sup. Ct. Rep. 809; Crown
Cork & Seal Co. v. Aluminum Stopper
Co. 48 C. C. A. 72, 108 Fed. 845; Colum-
bia Motor Car Go. v. C. A. Duerr & Co.
107 C. C. A. 215, 184 Fed. 895.
The time when a claim is first made
is immaterial, as when made it relates
back to the date of the filing of the ap-
plication; and if made in a divisional
application, it relates back to the date
of the filing of the original or parent
application.
Lotz V. Kenney, 31 App. D. C. 205;
Von Recklinghausen v. Dempster, 34
App. D. C. 474.
492
The patent laws do not recognize such
a thing as the constructive abandon-
ment of an invention for which an ap-
plicant had lawfully filed, and is regu-
larly prosecuting, an application for
patent. Abandonment of an invention
is a question of fact, and must 'be
proven.
Ide V. Trorlicht, D. & R. Carpet Co.
53 C. C. A. 341, 115 Fed. 144; Saunders
V. Miller, 33 App. D. C. 456; Miller v.
Eagle Mfg. Co. 151 U. S. 186, 38 L. ed.
121, 14 Sup. Ct. Rep. 310; Rolfe v.
Hoffman, 26 App. D. C. 340; Kinnear
Mfg. Co. V. Wilson, 74 C. C. A. 232, 142
Fed. 973.
Abandonment of an invention is a
very different thing from abandonment
of an application for patent.
Western Electric Co. v. Sperry Elec-
tric Co. 7 C. C. A. 164, 18 U. S. App.
177, 58 Fed. 191; Hayes- Young Tie
Plate Co. V. St. Louis Transit Co. 70 C.
C. A. 1, 137 Fed. 82; General Electric
Co. V. Continental Fibre Co. 168 C. C.
A. 54, 256 Fed. 660.
Abandonment of an invention com-
pleted and reduced to practice by the
filing of an allowable application for
patent therefor inures to the benefit of
the public, and not to the benefit of a
later inventor.
Ex parte Grosselin, 97 Off. Gaz. 2979 ;
Re Millett, 18 App. D. C. 186. 96 Off.
Gaz. 1241.
The rule as to constructive abandon-
ment in the case of applications for re-
issue, generally, though not invariably,
fixes a limit of two years.
Miller v. Bridgeport Brass Co. 104 U.
S. 350, 26 L. ed. 783 ; lilahn v. Harwood,
112 U. S. 354, 28 L. ed. 665, 5 Sup. Ct.
Rep. 174, 6 Sup. Ct. Rep. 451; Wollen-
sak V. Reiher, 115 U. S. 101, 29 L. ed.
351, 5 Sup. Ct. Rep. 1137.
It was not Chapman and Chapman's
duty, but the commissioner's, to ascer-
tain if there was an interference, and
to declare it.
Ewing V. United States, 244 U. S. 1,
11, 61 L. ed. 955, 959, 37 Sup. Ct. R^p.
494; Bigelow, Estoppel, 5th ed. 26, 28,
585, 594-597.
The apparent disapproval of the court
of f^peals of the existing statutory pro-
visions governing the filing and prosecu-
tion of applications for patent does not
justify legislation by that court to cor-
rect what it conceives to be unwise, or
against public policy. Congress is the
only body endowed under the Constitu-
tion with legislative power.
Boston Store v. American Grapho-
252 V. 8.
1919.
CHAPMAN V. WIMKOATH.
132, 133
phone Co. 246 U. S. 8, G2 L. ed. 551, 38
Sup. Ct. Rep/257, Ann. Cas. 1918C, 447.
The question of actual priority of in-
vention having been foreclosed by Win-
ti*08th'8 admission, the court of appeals
was without jurisdiction on an interfer-
ence appeal to hear and determine
Chapman and Chapman's right to a
patent.
Norling v. Hayes, 37 App. D. C. 169;
United States ex rel. Lowry v. Allen,
203 U. S. 476, 51 L. ed. 281, 27 Sup.
Ct. Rep. 141.
Mr. Melville Church filed a brief as
amicus curisB.
Messrs. John 0. Pennie, Dean S. Ed-
monds, Charles J. O'Neill, and Helge
Murray also filed a brief as amici curiae.
Mr. Paul Synnestvedt argued the
cause, and, with Mr. H. L. Lechner, filed
a brief for respondent :
While the patenting of an invention is
purely statutory, the statute has been
uniformly construed in the light of the
underlying purpose of the patent sys-
tem,— the promotion of the progress of
science and the useful arts.
Kendall v. Winsor, 21 How. 322-328,
16 L. ed. 165-167.
Diligence is axiomatic; and there is a
time limit within which claims to a par-
ticular invention shown, but not claimed
in an application, may be added.
Ex parte Dyson, 232 Off. Gaz. 901;
Re Fritts, 46 App. D. C. 211; Victor
Talking Mach. Co. v. Thomas A. Edison,
144 C. C. A. 281, 229 Fed. 999; Christen-
sen V. Noyes, 15 App. D. C. 94; Bech-
man v. Wood, 15 App. D. C. 484; Skin-
ner V. Carpenter, 36 App. D. C. 178.
The statute itself lays down a pre-
application rule of diligence and a post-
application rule.
Where an applicant has an applica-
tion showing, inter alia, but not at any
time claiming, -a particular feature
pending in the Patent Office for years,
he should proceed at least within one
year after the issuance of a rival patent
for the same invention, to copy claims
therefrom for the purpose of an inter-
ference, by analogy with U. S. Rev. Stat.
§ 4894, Comp. Stat. § 9438, 7 Fed. Stat.
Anno. 2d ed. p. 181.
The issue of a patent is constructive
notice to the public of its contents.
Boyden v. Burke, 14 How. 575-583,
14 L. ed. 648-551.
If Chapman and Chapman's divisional
application be considered independently
of the present application, they are out
of court in. their own admission of a
«4 li. ed.
prior public use of more than two years.
If considered as a continuation of the
parent application, post-application
rules of diligence apply and they are
guilty of lack of diligence.
Chapman and Chapman were never
prosecuting an application for the in-
vention, and there is no basis in the
statute or authority for the proposition
that the mere presence of a drawing or
description of a feature in an applica-
tion constitutes a reduction to practice
thereof such as will defeat a later in-
ventor, but earlier patentee.
Pittsburgh Water Heater Co. v. Beler
Water Heater Co. 143 C. C. A. 196, 228
Fed. 683; Saunders v. Miller, 33 App.
D. C. 456.
Mr. Justice Olarke delivered the opin-
ion of the court:
In 1909 Mathew T. Chapman and
Mark C. Chapman filed an application
for a patent on an ^'improvement in
deep well pumps." The mechanism in-
volved was complicated, the specifica-
tion intricate and long, and the claims
numbered thirty-four. The application
met with unusual difficulties in the Pat-
ent Office, and, although it had been reg-
ularly prosecuted, as required by law
and the rules of the Office, it was still
pending without having been passed to
patent in 1915, when the controversy in
this case arose.
In 1912 John A. Wintroath ffied an
application for a patent on ''new at)d
useful improvements in well mechan-
ism,'' which was also elaborate and intri-
cate, with twelve combination claims, but
a patent was issued upon it on Novem-
ber 25, 1913.
Almost twenty months later^ on June
6, 1915, the Chapmans filed a divisional
application in which the claims of the
Wintroath patent were^ copied, and on
this application such proceedings were
had in the Patent Office that on March
24, 1916, an interference was declared
between it and the Wintroath patent.
The interference proceeding related to
the combination of a fiuid-operated bear-
ing supporting a downward extending
shaft, and auxiliary bearing means for
sustaining any resultant downward or
upward thrust of such shaft. It is suffi-
ciently described in count three of the
Notice of Interference:
[133] "3. In deep well pumping
mechanism, the combination with pump
means including a pump casing located
beneath the surface of the earth and
rotary impeller means in said cas-
ing, of a downwardly extending pow-
4f3
133-135
SUPRKME COURT OF THE UNITED STATES.
Oct. Teem;
er shaft driven from above and
adapted to drive said impeller means,
a fluid-operated bearing oo-operating
to support said shaft, said fluid-oper-
ated bearing being located substan-
tially at the top of said shaft so that
the dhaft depends from the fluid bearing
and by its o^n weight tends to draw it-
self into a substantially straight vertical
line, means for supplying fluid under
pressure to said fluid bearing independ-
ently of the action of the pump means,
auxiliary bearing means for sustaining
any resultant downward thrust of said
power shaft and auxiliary bearing means
for sustaining any resultant upward
thrust of said power shaft."
Wintroath admits that the invention
thus in issue was clearly disclosed in the
parent application of the Chapmans, but
he contends that their divisional applica-
tion, claiming the discovery, should be
denied, because of their delay of nearly
twenty montiis in flling, after the pub-
lication of his patent, ;and the Chapmans,
while asserting that their parent appli-
cation fully disclosed the invention in-
volved, admit that the combination of
the Wintroath patent was not specifically
claimed in it.
Pursuant to notice and the rules of the
Patent Office, Wintroath, on April 27,
1916, filed a statement, declaring that he
conceived the invention contained in the
claims of his patent ''on or about the 1st
of October, 1910," and thereupon, be-
canse this date was subsequent to the
Chapman flling date, March 10, 1909, the
Examiner of Interferences notified him
that judgment on the record would be
entered against him unless he showed
cause within thirty days why such action
shonld not be taken.
Within the rule day Wintroath filed a
motion for judgment in his favor ''on the
record," daimipg that conduct on the
part of the Chapmans was shown, which
estopped [134] them from making the
claims involved in the interference, and
which amounted to an abandonment of
any rights in respect thereto which they
may once have had. The Chapmans con-
tended that such a motion for judgment
could not properly be allowed "until an
opportunity had been granted for the
introduction of evidence." But the
Examiner of Interferences, without
hearing evidence, entered judgment on
the record in favor of Wintroath, and
awarded priority to him, on the ground
that the failure of the Chapmans to
make claims corresponding to the inter-
ference issue for more than one year
after the date of the patent to Win-
4t4
troath constituted equitable laches which
estopped them from successfully making
such claims. This holding, based on the
earlier decision by the court of appeals
in Rowntree v. Sloan, 45 A pp. D. C.
207, was afiirmed by the Examiner in
Chief, but was reversed by the Commis-
sioner of Patents, whose decision, in
turn, was reversed by the court of ap-
p)eals in the judgment which we are re-
viewing.
In its decision the court of appeals
holds that an inventor whose parent
application disclosed, but does not claim,
an invention which conflicts with that of
a later unexpired patent, may file a sec-
ond application, making conflicting
claims, in order to have the question of
priority of invention between the two
determined in an interference proceed-
ing, but only within one year from the
date of the patent, and that longer de-
lay in flling constitutes equitable laches,
which bars the later application. By
this holding the court substitutes a one-
year rule lor a two-year rule which had
prevailed in the Patent Office for many
years before the Rowntree decision, ren-
dered in 1916, and the principal reason
given for this important change is that
the second application should be r^ard-
ed as substantially an amendment. to the
parent application, and that it would be
inequitable to permit a longer time for
flling it than the one year allowed by
Rev. Stat. § 4894, Gomp. Stat. § 9438, 7
Fed. Stat. Anno. 2d ed. p. 181, [185]
for further prosecution of an applica-
tion after office action thereon.
The question presented for decision is,
whether this conclusion is justiflable and
sound; and the answer must be found in
the statutes and rules of the Patent Of-
flee, made pursuant to statute, prescrib-
ing the action necessary to be taken in
order to obtain a patent, — for the whole'
subject is one of statutory origin and
r^ulation.
The statute which is fundamental to
all others in our patent law (Rev. Stat.
§ 4886, as amended March 3, 1897, 29'
Stat, at L. 692, chap. 391, Comp. Stat.
§ 9430, 7 Fed. Stat. Anno. 2d ed. p. 23)
provides with respect to the effect of a
United States patent upon the fllinsr of
a subsequent application for a patent on
the same discovery, which is all we are
concerned with here> that any discoverer
of a patentable invention; not known or
used by others in this country before his
invention oc discovery, may file an appli-
cation for a patent upon it, at any time
within two years after it may have been
patented in this country. Such a prior
S62 IT. S.
1919.
CHAPMAN V. WINTROATII.
135-137
patent is in no sense a bar to the grant-
ing of a seeond patent for the same in-
vention to an earlier inyentor, provided
that his application is filed not more
than two years after the date of the con-
flieting patent. The applicant may not
be able to prove that he wds the first in-
ventor, but the statute gives him two
years in which to claim that he was, and
in which to secure the institution of an
interference proceeding in which the is-
sue of priority between himself and the
patentee may be determined in a pre-
scribed manner.
This section, unless it has been modi-
fied by other statutes, or, in effect, by
decisions of the courts, is plainly not
reconcilable with the decision of the
court of appeals, and should, rule it.
Has it been so modified?
The section of the Revised Statutes
dealing with inventions previously pat-
ented in a foreign country (Rev. Stat.
§ 4887, as amended March 3, 1903, 32
Stat, at L. 1225, chap. 1019, Gomp. Stat.
§ 9431, 7' Fed. Stat. Anno. 2d ed. p.
138) provides that no patent shall be
granted on an [136] application for a
patent if the invention has been patent-
ed in this or any foreign country more
than two. years before the date of the
actual filing of the application in this
country.
Section 4897 of the Revised Statutes
(Act of July 8, 1870, 16 Stat, at L. 202,
chap. 230, § 35, Comp. Stat. § 9443,
7 Fed. Stat. Anno. 2d ed. p. 188), in
dealing with the renewal of an applica-
tion in case of failure to pay the final
fee within six months of notice . that a
patent has been allowed, provides that
another application may be made for the
invention ^^the same as in the case of an
original application.'^ But such applica-
tion must be made within two years after
the allowance of the original application.
And in Rev. Stat. § 4920, Comp. Stat.
§ 9466, 7 Fed. Stat. Anno. 2d ed. 309,
providing for pleadings .and proofs in
infringement suits, it is provided that
when properly pleaded and noticed the
defendant may prove in defense that the
patent declared on had been patented
prior to the plaintiff's supposed inven-
tion, ''or more than two years prior to
bis application for a patent therefor,'^
and also that the subject-matter of the
patent "had been in public use or on
sale in this country for more than two
yeara^' before the plaintiff's application
for, a patent.
Thus through all of these statutes
runs the time limit of two years for the
filnig of an application, there is no mod-
•4 If. ed.
ification in any of them of the like pro-
vision in Rev. Stat. § 4886, as amended,
and no distinction- is made between an
original and a later or a divisional appli-
cation, with respect to this filing right.
A brief reference to the decisions will
show that, tmtil the Bowntree Case, the
courts had left the filing right under
Rev. Stat. § 4886, as untouched as the
statutes thus had left it.
There is no suggestion in the record
that the original application of the
Chapmans was not prosecuted strictly
as required by the statutes and the rules
of the Patent Office, and therefore, it is
settled, their rights may not be denied or
diminished on the ground that such delay
may [187] have been prejudicial to ei-
ther public or private interests. "A party
seeking a right under the patent statutes
may avail himself of all their provisions,
and the courts may not deny him the
benefit of a single one. These are ques-
tions not of natural but of purely stat-
utory right. Congress, instead of fixing
seventeen, had the power to fix thirty
years as the life of a patent. No court
can disregard any statutory provisions
in respect to these matters on the ground
that, in its judgment, they were unwise
or prejudicial to the interests of the ,
public." United States v. American Bell
Teleph. Co. 167 U. S. 224, 246, 42 L. ed.
144, 155, 17 Sup. Ct. Rep. 809.
In reissue cases, where there was no
statutory time prescribed for the mak-
ing of an application for the correction
of a patent, and although unusual dili-
gence is required in sucli cases, this court
adopted the two-year rule as reasonable
by analogy to the law of public use be-
fore an application for a patent. Mahn
V. Harwood, 112 U. S. 354, 363, 28 L. ed.
665, 668, 5 Sup. Ct. Rep. 174, 6 Sup. Ct.
Rep. 461; Wollensak v. Reiher, 115 U.
S. 96, 101, 29 L. ed. 350, 351, 5 Sup. Ct.
Rep. 1137.
To this we must add that not only
have later qr divisional applications not
been dealt with in a hostile spirit by the
courts, but, on the contrary, designed as
they are to secure the patent to the first
discoverer, they have been favored to
the extent that where an invention clear-
ly disclosed in an application, as in this
case, is not claimed therein, but is sub--
sequently claimed in another applica-
tion, the original will be deemed a con-
structive reduction of the invention to
practice, and the later one will be given
the filing date of the earlier, with all of
its priority of right. Smith & G. Mfg.
Co. V. Sprague, 123 U. S. 249, 250. 31
L. ed. 141, 142, 8 Sup. Ct Rep. 122;
49.5
137-140
.SLPREME COURT OF THE UNITED STATES.
Oct. I'emu,
f
Von ReckliBghausen y. Dempster, 34
App. D. C. 474, 476, 477.
These, a few from many, suffice to
show that, prior to the Rowntree Case,
the decisions did not tend to modification
of the statutory two-year rule.
The court of appeals recognizes all
this law as applicable to an original ap-
plication, but it finds warrant for [138]
cutting the time limit to one year in the
case of later applications in three rea-
sons, viz.: Because it is inequitable to
allow so long a time as two years for
filing a new application, claiming a dis-
covery for which a patent has issued;
because such a time allowance is con-
trary to publie policy, as unduly extend-
ing the patent monopoly if the new ap-
plication should prevail; and, finally and
chiefly, as we have pointed out, because,
regarding such a later application as
substantially an amendment to the orig-
inal application, the court discovers, in
analog^ to this time allowed by statute
for amendment to applications (Rev.
SUt. § 4894, Comp. Stat. § 9438, 7 Fed.
Stat. Anno. 2d ed. p. 181), a reason for
holding that the failure for more than
one year to make a later, in this case a
divisional, application, amounts to fatal
laches.
However meritorious the first two of
these grounds may seem to be, they can-
not prevail against the provisions of the
statutes (United States v. American Bell
Teleph. Co. supra), and the third does
not seem to us persuasive because of the
difference in the kind of notice which is
given to the applicant under Rev. Stat.
§ 4894 and that given him when a patent
is issued conflicting with his application.
The one-year proyision of Rev. Stat.
§ 4894, as amended March 3, 1897 (29
Stat, at L. 693, chap. 391, Comp. Stat. §
9438, 7 Fed. Stat. Anno. 2d ed. p. 181), is
that an applicant for a patent, who shall
fail to prosecute his application within
one year after Patent Office action there-
on, '^of which notice shall, have been
given" him, shall be regarded as having
abandoned his application, unless the
Commissioner of Patents shall be satis-
fied that such delay was unavoidable.
But when a conffict between inventions
disclosed in applications escapes the at-
tention of the Patent Office Examiners
(Rev. Stat. § 4904, Comp. Stat. § 9449,
7 Fed. Stat. Anno. 2d ed. p. 193), and a
patent is issued, with claims conflicting
with the disclosures of a pending appli-
cation, the applicant receives only such
notice of the conflict as he is presumed
to derive from the publication of the
patent. In tl^eonecase the notice [^391
49«
is actual and specific; in the other it is
indefinite and constructive only. When
the great number of patents constantly
being issued is considered, many of them
of a voluminous and complicated char-
acter, such as we have in this case, ivitb
many and vatiously worded claims, such
an implied notice must necessarily be
precarious and indefinite to a d^rree
which may well have been thought to be
a sufficient justification for allowing the
long^ two-year period to inventors who
must, at their peril, derive from such no-
tice their knowledge of any conflict with
their applications.
As has been pointed out, the Exam-
iner of Interferences did not permit the
introduction of any evidence with re-
spect to jaches or abandonment, and the
court of appeals rests its judgment, as
he did, wholly upon the delay of the
Chapmans in filing their divisional ap-
plication for more than one year after
the Wintroath patent was issued, as this
appeared "on the face of the record."
While not int^iding to intimate that
there may not be abandonment whioh
might bar an application within the two-
year period allowed for filing, yet upon
this discussion of the statutes and deci-
sions, we cannot doubt that . upon the
case disclosed in this record, the Chap-
mans were within their legal rights in
filing their divisional application at any
time within two years after the publica-
tion of the Wintroath patent, and there-
fore the judgment of the Court of Ap-
peals must be reversed.
Mr. Justice McBeynolds dissents.
[1401 NATIONAL LEAD COMPANY,
Appt.,
V.
UNITED STATES.
(See S. C. Reporter's ed. 140-147.^
Duties -* drawback — following de-
partmental construct ion.
1. The Federal Supreme Court will fol-
low the long-standing ruling of the Treas-
ury Department under wiiich the drawback
provided for by the Act of August 27, 1894,
§ 22, upon the exportation of articles
manufactured from imported dutiable ma-
terials, to be "equal iu amount to the
duties paid on the materials used.'' less 1
per cent, is computed, where linseed oil and
oil cake have both been manufactured from
imported linseed paying a specific duty
and the oil cake has been exported, upon the
basis of the value of the two produeta, and
252 V. 8.
1919.
NATIONAL LEAD CO. v. UXITKD STATES.
not in proportion to their respective
weights.
[For other cases, see Datles. X. c; Statutes,
II. e, 2, in Digest Sup. Ct. 1908.]
Statutes — re-enactment — executive
oonstmctfon*
2. Repeated re-enactment of a statute
without substantial change amounts to an
implied legislative recognition and ap-
proval of an established executive construc-
tion of the statute.
TFor other cases, see Statutes, IV. In Digest
Sup. Ct. 1908.]
Evidence — presumption — legislative
act.
3. Congress is presumed to have legis-
lated with knowledge of an established
u>age of an executive department of the
fovemment.
For other cases, see Evidence, • II. t. 1, in
Digest Sup. Ct. 1908.]
[No. 123.]
Argued January 12 ai^d 13, 1920. Decided
March 1, 1920.
A PpEAL from the Court of Claims to
-^ review a judgment which dismissed
a suit to recover the difference between
the amount of a drawback allowed by
the Federal government and the amount
claimed. Affirmed. .
See came case below, 53 Ct. CI. 635.
The facts are stated in the opinion.
Mr. Alexander Britton argued the
cause, and, with Messrs. Evans Browne
and F. W. Clements, filed a brief for ap-
pellant :
The eonstruction of the act by tlie
Treasury Department cannot change its
intent and purpose so far as the method
of computation of the drawback is con-
cerned.
Campbell v. United States, 107 U. S.
407, 27 L. ed. 592, 2 Sup. Ct. Rep. 769;
Dean Linseed Oil Co. v. United States,
78 Fed. 468, 31 C. C. A. 51, 57 U. S.
App. 716, 87 Fed. 467; St. Paul, M. &
M. R. Co. V. Phelps, 137 U. S. 528, 536,
34 L. ed. 767, 769, 11 Snp. Ct. Rep. 168;
Morrill v. Jones, 106 U. S. 466, 467, 27
L. ed. 267, 268, 1 Sup. Ct. Rep. 423.
Where the language of a statute is
free from ambiguity, the statute must be
literally enforced.
United States v. Fisher, 2 Cranch,
358, 387, 2 L. cd. 314, 315; Denn ex dem.
Scott V. Reid, 10 Pet. 524, 527, 9 L. ed.
519, 520; Lewis v. United States, 92 U.
S. 618, 621, 23 L. ed. 513, 614; Thomley
V. United States, 113 U. S. 310, 313, 28
L. ed. 999, 1000, 5 Sup. Ct. Rep. 491;
T^ke Countv v. Rollins, 130 U. S. 662,
670, 671, 32 L. ed. 1060, 1063, 1064, 9
Sup. ©t. Rep. 661; Bate Refrigerator
Co. V. Sulzberger, 157 U. S. 1, 36, 37, 39
L. ed. 601, 611, 15 Sup. Ct. Rep. 508.
04 li. ed. 3
Where the language of a statute is
clear, executive construction in viola-
tion of its terms is entitled to no weight.
United States v. Temple, 105 U. S. 97,
99, 26 L. ed. 967, 968; Swift & C. & B.
Co. V. United States, 105 U. S. 691, 695,
26 L. ed. 1108, 1109; United States v.
Graham, 110 U. S. 219, 221, 20 L. ed.
126, 127, 3 Sup. Ct. Rep. 582; St. Paul,
M. & M. R. Co. V. Phelps, 137 U. S. 528,
636, 34 L. ed. 767, 769, 11' Sup. Ct. Rep.
168; United States v. Alger, 152 U. S.
384, 397, 38 L. ed. 488, 489, 14 Sup. Ct.
Rep. 635.
The policj^ underlying a statute is an
uncertain guide of construction.
Hadden v. The Collector (Hadden v.
Barney) 5 WaU. l07. 111, 112, 18 L. ed.
518-520; Dewey v. United States, 178 U.
S. 510, 521, 44 L. ed. 1170, 1174, 20 Sup.
Ct. Rep. -981.
It may be conceded that the primary
purpose of that act was, in general, to
raise revenue; but this concession does
not involve an admission that every
section of the act is to be construed to
effectuate that purpose. With regard to
imports comprehended within the draw-
back clause, it was certainly not the
primary purpose to raise revenue by
taxing them upon importation.
Campbell v. United States, 107 U. S.
407, 413, 27 L. ed. 592, 595, 2 Sup. Ct.
Rep. 759.
Assistant Attorney General Pavis
argued the cause, and, with Mr. Charles
F. Jones, filed a brief for appellee:
Where there is doubt as to the mean-
ing of the law, the contemporaneous
construction of those charged with its
execution is conclusive.
Jacobs V. Prichard, 223 U. S. 200, 56
L. ed. 405, 32 Sup. Ct. Rep. 289; Ed-
wards V. Darby, 12 Wheat. 206, 6 L. ed.
603; United States v. Philbrick, 120 U.
S. 52, 30 L. ed. 559, 7 Sup. Ct. Rep. 413 ;
United States v. HiU, 120 TJ. S. 169, 30
L. ed. 627, 7 Sup. Ct. Rep. 510; United
States V. Alexander (United States v
Mayes) 12 WaU. 177, 20 L. ed. 381;
Peabody v. Stark (Peabody v. Draughn)
16 WaU. 240, 21 L. ed. 311; United
States V. Healey, 160 U. S. 13fr-145, 40
L. ed. 369-372, 16 Sup. Ct. Rep. 247;
United States v. Johnston, 124 U. S. 236,
31 L. ed. 389, 8 Sup. Ct. Rep. 446 ; Unit-
ed States V. Falk, 204 U. S. 143, 51 L.
ed. 411, 27 Sup. Ct. Rep. 191 ; Smythe v.
Fiske, 23 WaU. 374, 23 L. ed. 47; United
States V. Moore, 95 U. S. 760, 24 L. ed.
588; United States v. Pugh, 99 U. S.
266-269, 25 L. ed. 322, 323.
We have a right to presume that when
2 i»7
143, 144
8rPnE.ME COURT OF TUE UNITED STATES.
Oct. Teem,
Congress passed the Act of 1894, it did
80 with the full knowledge of the con-
struction placed upon the same provi-
sions in other acts by the Treasury De-
partment, and with the intention that
the language employed should be con-
strued in the same manner and with the
same meaning as the provisions before
mentioned had been construed.
United States v. Bailey, 9 Pet. 238, 9
L. ed. 113 ; United States v. Falk, 204 U.
S. 143, 51 L. ed. 411, 27 Sup. Ct. Rep.
191; United States v. Cerecedo Herma-
nos y Compania, 209 U. S. 337, 52 L. ed.
821, 28 Sup. Ct. Rep. 532; UYiited States
V. Philbrick, 120 U. S. 52, 30 L. ed. 559,
7 Sup. Ct. Rep. 413; United States v.
Whitridge, 197 U. S. 135, 49 L. ed. 696,
25 Sup. Ct. Rep. 406; Merchants' Nat.
Bank v. United States, 214 U. S. 33, 53
L. ed. 90a, 29 Sup. Ct. Rep. 593.
The method of the Treasury Depart-
ment for apportionment of drawback
duty is the only practical method.
Campbell v. United States, 107 U. S.
407, 27 L. ed. 592, 2 Sup. Ct. Rep. 759.
The underlying principle of a tariff
law should be considered.
Arnold v. United States, 147 U. S.
494-497, 37 L. ed. 253-255, 13 Sup. Ct.
Rep. 406 ; Campbell v. United States, 107
U. S. 407, 27 L. ed. 592, 2 Sup. Ct. Rep.
759; Tide Water OU Co. v. United
States, 171 U. S. 210, 216, 43 L. ed. 139,
140, 18 Sup. Ct. Rep. 837; Swan & F.
Co. V. United States, 190 U. S. 143, 146,
47 L. ed. 984, 986, 23 Sup. Ct. Rep. 702.
The construction of this statute and
the reasonable regulation thereunder
have been in effect for over half a cen-
tury; where questioned they have been
approved by the courts; and by constant
re-enactment and failure to make any
change they must be held to have been
approved by Congress, and the question
is no longer open.
Hahn v. United States, 107 U. S. 402,
406, 27 L. ed: 527, 528, 2 gup. Ct. Rep.
494.
*[143] Mr. Justice Clarke delivered
the opinion of the court :
This is a suit to recover the difference
between the amount of drawback allow^
by the government to the appellant, a
corporation, as an exporter of linseed-
oil cake, and the amount to which it
claims to be entitled under § 22 of the
act of Congress, dfective August 27,
1894 (28 Stat, at L. 509, chap. 349),
which reads as follows:
*JThat wliere imported materials on
which duties have been paid are used in
the manufacture of articles manufac-
498
tured or produced in the United States,
there shall be allowed on the exportation
of such articles a drawback equal in
amount to the duties paid on the mate-
rials used, less one per centum of such
duties." . . .
It is further provided in the section
that the drawback due thereon shall be
paid to the manufacturer, producer, or
exporter "under such regulations as the
Secretary of the Treasury shall pre-
scribe."
The appellant imported large quan-
tities of linseed upon which it paid a spe-
cific duty of 20 cents per bushel of 50
pounds. This seed, when treated by a
simple process, yielded about 20 pounds
of linseed oil and about 36 pounds of
linseed-oil cake, to the bushel. The oil
was much more valuable than the oil
cake, the latter being composed of the
solid substance of the seed and a small
amount of oil not recovered, which made
it valuable as a feed for stock, — ^it* is a
by-product, and, except for the small
amount of oil in it, would be mere waste.
Appellant exported large quantities of
oil cake, derived from seed which it had
imported, and made demand in proper
form for the drawback provided for by
the act of Congress.
The law providing for such drawbacks
has differed in form of expression from
time to time, but, since the Act of August
5, 1861 [12 Stat, at L. 292, chap. 45], it
ha!& not differed in [144] substance from
the Act of 1894, as we have quoted it.
The number of articles to which the law
is applicable is very greats among them,
notably, "refined sugar and syrup which
come from imported raw sugar, and re-
fined sugar and syrup which come from
imported molasses."
The court of claims found that:
"From August 5th, 1861, to the pres-
ent time, the practice of the Treasury
Department, where several articles are
manufactured from the same imported
material, has been to calculate and to
pay the drawback by distributing the
duty paid on the imported material be-
tween such articles in proportion to the
value, and not in proportion to their
weight, as well where the imported mate-
rial paid a specific as well as where it
paid an ad valorem duty. Such calcula-
tion and payment had been made under
Treasury' Department regulations."
The claim of the appellant is that the
correct construction of the section relied
upon requires that the drawback should
be computed on the basis of the weights
of* the oil and oil cake derived by the
process of manufacture from the seed,
252 U. S.
1919.
NATIONAL LEAD CO. v. UNITED STATES.
144-140
instead of on the basis of the values of
the two products, as it was computed by
the government; and the question for de-
cision IS whether the Department regula-
tion .is a valid interpretation of the stat-
ute.
The act quoted provides that where
imported materials arc used in this coun-
try in the manufacture of articles which
are exported, a drawback shall be
allowed "equal in amount to the duties
paid on the material used/' less 1 per
centum. What was the amount of duty
paid on the small amount of oil and on
the large amount of solid substance, the
hull and the fiber, which made up the
exported oil cakeT Was it substantially
two thirds of the total, determined by
weight, — on 36 of 56 pounds, — or was it
about one fourth of the total as deter-
mined bv the relative values of the oil
and of the oil cake derived from the
seedf
[145] The terms of the provision
show that the contingency of having one
kind of dntiable material, from which
two or more kinds of manufactured prod-
ucts might be derived, is not specifical-
ly provided for. Obviously only a part,
the least valuable part, of the materials
or ingredients of the linseed, were used
in the making of oil cake, and therefore
the problem of determining the "draw-
back equal in amount to the duty paid''
on the jwirt so used — the solid parts of
the seed and the small amount of oil in
the oil cake— was not a simple or an
easy one.
The statute, thus indefinite if not
ambigruous, called for construction by
the Department, and the r^^lation
adapted to cases such as we have here
commends itself strongly to our judg-
ment.
It does not seem possible that Con-
gress could have intended that two thirds
of the duty should be returned when one
quarter in value of the manufactured
product should be exported; or that the
exporter should retain 20 pounds of oil,
estimated in the findings as worth about
7i cents a pound, derived from each
bushel of seed, and recover two thirds of
the duty paid when he exported 36
pounds of seed cake, worth slightly more
than 1 cent a pound, derived from \he
same bushel of seed. Such results — they
must follow the acceptance of the appel-
lant's contention — should be allowed on-
ly under compulsion of imperative lan-
guage such as is not to be found in the
section we are considering.
We prefer the reasonable interpreta-
tion of the Department, which results in
•4 li. ed.
a refund of one quarter of the duty
when one quarter of the value of the
product is exported.
From Edwards v. Darby, 12 Wheat.
206, 6 L. ed. 603, to Jacobs v. Prichard,
223 U. S. 200, 56 L. ed. 405, 32 Sup. Ct.
Rep. 289, it has been the settled law that
when uncertainty or ambiguity, such as
we have here, is found in a statute, great
weight will be given to the contempo-
raneous construction by Department ofS-
cials, who were called upon to act under
the law and to carry its provisions
[146] into effect, — especially where
such construction has been long con-
tinued, as it was in this case for almost
forty years before the petition was filed.
United States v. Hill, 120 U. S. 169, 30
L. ed. 627, 7 Sup. Ct. Rep. 510.
To this we must add that the Depart-
ment's interpretation of the statute has
had such implied approval by Congress
that it should not be disturbed, partic-
ularly as applied to linseed and its prod-
ucts.
The drawback provision, under which
the construction complained- of originat-
ed, continued unchanged from 1861 until
the revision of the statute in 1870, and
the court of claims finds that the rule for
determining the drawback on oil cake
was applied during the whole of that
period of almost ten years. The Tariff
Act, approved July 14, 1870 (16 Stat,
at L. 256, 265, diap. 255), expressly
provided, in the flaxseed or linseed par-
agraph, "that no drawback shall be
allowed on oil cake made from imported
seed," and this provision was continued
in the Tariff Act of March 5, 1883 (22
Stat, at L. 488, 513, chap. 121), and in
the Act of October 1, 1890 (26 Stat, at
L. 567, 586, chap. 1244). But in the
Act of 1894 (28 Stat, at L. 509, 523,
chap. 349), the prohibition was eliminat-
ed, thus restoring the law on this sub-
ject as applied to this material to what
it was in substance from 1861 to 1870.
United States v. Philbrick, 120 U. S. 52,
59, 30 L. ed. 559, 561, 7 Sup. Ct. Rep.
413. During all the intervening twenty-
four years this rule of the Department
with respect to drawbacks had been
widely applied to many articles of much
greater importance than linseed or its
derivatives, and the practice was con-
tinued, linseed included after 1894, until
the petition in this case was filed. The
re-enacting of the drawback provision
four times, without substantial change,
while this method of determining what
should be paid under it was being con-
stantly employed, amounts to an implied
legislative recognition and approval of
499
146, 147
SUPRKMi: COURT OF THE UNITED STATES.
Oct. T
>
the executive construction of the sta4:ute
(United States v. Philbrick, supra;
United States v. Falk, 204 U. S. 143,
152, 61 L. ed. 411, 414, 27 Sup. Ct. Rep.
191; United States v. Cerecedo [147]
Hermanos y Compafiia, 209 U. S. 337, 52
L. ed. 821, 28 Sup. Ct. Rep. 532), for
Congress is presumed to have legislated
with knowledge of such an established
usage of an executive department of the
government (United States v. Bailey, 9
Pet. 238, 256, 9 L. ed. 113, 120).
This case would not deserve even the
limited discussion which we thus have
given it were it not for the extensive and
long-continued application of the regula-
tion of the Department to imported and
exported materials other than such as
are here involved. This specific case is
sufficiently ruled by the clear and satis-
factory decision of the circuit court of
appeals for the second circuit, rendered
twenty-two years ago, in United States
V. Dean Linseed-Oil Co. 31 C. C. A. 51,
57 U. S. App. 716, 87 Fed. 453, in which
the court of claims found authority for
dismissing the plaintiff's petition. The
judgment of the Court of Claims is
affirmed.
KANSAS CITY SOUTHERN RAILWAY
COMPANY, Appt.,
V.
UNITED STATES.
(See S. C. Reporter's ed. 147-151.)
PoBtofllce 7- carrying malls — power
to penalize delays.
1. The long-continued failure of the
Postmaster (Jeneral to impose fines for de-
lays of less than twenty-four hours in
transporting the mails cannot be asserted
as the equivalent of a departmental decla-
ration that no such power existed in behalf
of a railway company which had notice
before it contracted to carry the mail that
failure to maintain train schedules was
regarded by Congress and by the Post-
office Department as a violation of mail-
carrying contracts, justifying the imposi-
tion of fines or deductions, and that ooth
believed that there was authority under
the customary contracts and the law to
impose such deductions.
[For other cases, see Postofflce, IV. c, in
Digest Sup. Ct. 1908.1
Postoffice — mail transportation — pow-
ers of Postmaster General — failure
to exercise — abrogration.
2. Failure of the Postmaster General
to exercise his power to impose fines for
delays of less than twenty-four hours in
transporting the mails does not make
against the proper use of such power when,
500
in the judgmeD^--of that official, adequate
occasion for its use may arise.
[For other cases, see Postofflce, IV, c, in Dl^
gest Sup. Ct. 1908.]
[No. 154.]
Submitted January 19, 1920. Decided
March 1, 1920.
APPEAL from the Court of Claims to-
re view a judgment which dismissed
a petition by a railway company to re-
cover back deductions withheld by the
Postofflce Department from the contract
price for transporting the mail. Af-
firmed.
See same case below, 53 Ct. CI. 630.
The facts are stated in the opinion.
Messrs. Alexander Britten and Eyans
Browne submitted the ^ause for appel>
lant:
The announcement of* schedules for
the arrival and departure of trains does
not give rise to a contract that, as to a
particular train, the schedule will be
complied with, the liability for not oom-
plying being one based on negligence in
the proper operation of the train in
connection with the business of the
carrier.
6 Cyc. 587.
That rendition of a service of not less
than six round trips a week was and is
the limit of the absolute obligation of
the railroads is recognized by the court
of claims itself in the case of Texas
& P. R. Ca V. United States, 53 Ct. CI.
633, No. 31,550, decided March 25, 1918^
on findings of fact without an opinion.
The decisions show:
(1) That for one year, 1879-1880,
there was a law to impose fines for a
mere failure of a train on any day to
observe its schedule.
(2) That such law and the failures
therein provided for were distinct from
and in addition to the matter for which
U. S. Rev. Stat. § 3962, Comp. Stat. §
7450, 8 Fed. Stat. Anno. 2d ed. p. 163,
provided.
(3) That the Act of June 26, 1906,
only applied to trains under contract ta
observe schedule time, and has no ap-
plication to this case.
(4) That the Act of March 2, 1907,
referred to in the petition, speciiically
required all contractors to maintain
their regular train schedules as to time
of arrival and departure; but the de-
ductions involved in this case were made
prior to the taking effect of this act,
and are not affected thereby.
Jacksonville, P. & M. R. Co. v. United
States, 21 Ct. CL 174; Chicago, M. A St.
2af C. 8.
1019.
KANSAS CITY SOUTHERN R. CO. v. UNITED STATES.
148-150
P. R. Co. V. United States, 127 U. S. 406, ,
32 L. ed.- 180, 8 Sup. Ct. Rep. 1194;
Minneapolis & St. L. R. Co. v. United
States, 24 Ct, CI. 360.
Assistant Attorney General Spellacyj
submitted the cause .for appellee. Spe-
cial Assistants to the Attorney General
Zeisler and Weston were on the brief:
The Postmaster General had power to
enter into a contract with appellant
whereby the latter was bound to main-
tain the train schedules published by it
from time to time.
Jacksonville, P. & M. R. Co. v. United
States, 21 Ct. CI. 156.
Under the contract in question the
appellant agreed, in carrying the mails,
to maintain its train schedules.
LouisvUle & N. R. Co. v. United
States, 53 Ct. CI. 238; Minneapolis &
St. L. R. Co. V. United States, 24 Ct. CI.
350; Eastern R. Co. v. United States,
129 U. S. 396, 32 L. ed. 732, 9 Sup. Ct.
Rep. 320; 27 Ops. Atty. Gen. 108.
The deductions were justified even if
the appellant was not under contract to
maintain its train schedules.
Allman v. United States, 131 U. S. 31,
33 L. ed. 51, 9 Sup. Ct. Rep. 632 ; Parker
V. United States, 26 Ct. CI. 344.
Mr. Benjamin Carter filed a brief as
amicus curias.
Mr. Justice Olarke delivered the opin-
ion of the court:
The appellant, in its petition, alleges:
That in June, 1906, it entered into con-
tracts with the Postoffice Department to
transport the mails over three designated
Toutes "upon the conditions prescribed
by law and the regulations of the De-
partment applicable to railroad mail
service;" that during the fiscal year 1907
(the petition was not filed until Decem-
ber 19, 1912), the Department withheld
from its stipulated pay $3,355.48, "as a
penaltj' imposed on account of late
Arrivals ... of trains, and failure
to perform service on the . . . mail
routes/' and that such deductions were
^'unlawfully withheld.'^ The prayer was
for judgment for the full amount of the
deductions, — which are also designated
in the record as fines or penalties. The
petition was dismissed by the court of
claims.
The appellant acquiesced in the de-
ductions when they were made, accepted
the reduced compensation without pro-
test or objection, except in one instance,
when the item complained of was adjust-
ed to its satisfaction, and continued to
perform the contracts to the end of their
•4 Ii. ed.
[149] four-year periods without com-
plaint as to the reasonableness of- the
deductions involved. And thus it comes
admitting that it freely entered into the
contracts, fully performed them, and ac-
cepted pay for such performance, but
asking judgment for deductions which
it avers were "unlawfully withheld"
more than five years before the petition
was filed.
The contracts were of the type, famil-
iar in many reported cases, evidenced by
"distance circulars," orders establishing
the routes, specific, agreements on the
part of the contractor that it would per-
form the service "upqn the conditions
prescribed by law and the regulations of
the Department applicable to railroad
service," and that the "adjustment"
should be "subject to future orders and
to fines and deductions."
Among:, the applicable "conditions pre-
scribed by law" were Rev. Stat. § 3962,
Comp. Stat. § 7450, 8 Fed. Stat. Anno.
2d ed. p. 163, that the Postmaster Gen-
eral might "make deductipns from
the pay of contractors, for failure to
perform service according to contract,
and impose fines upon them for other
delinquencies;" Rev. Stat. § 4002, Comp.
Stat. § 7483, 8 Fed. Stat. Anno. 2d ed.
p. 195, authorizing contracts for the con-
veyance of the mails "with due frequen-
cy and speed;" and the Act of June 26,
1906 (34 Stat, at L. 467, 472, chap. 3546,
Comp. Stat. § 7297, 8 Fed. Stat. Anno.
2d ed. p. 90), commanding the Postmas-
ter General to require all railroads car-
rying mail to comply with the terms of
their contracts "as to time of arrival and
departure of mails," and "to impose and
collect reasonable fines for delay" when
not caused by unavoidable accidents or
conditions.
It is conceded by the appellant that
the Postmaster General had authority
under Rev. Stat. § 3962, to make deduc-
tions from the pay when a "trip was not
performed" within twenty-four hours of
the stipulated time for performance.
But it is contended that he had no
authority to make deductions or impose
fines for shorter delays, — and this is the
sole question upon wliich this appeal is
pursued into this court.
[150] It is argued for the appellant:
That power to make the disputed deduc-
tions must be found, if at all, in the pro-
vision of Rev. Stat. § 3962, that the
Postmaster General may "make deduc-
tions from the pay of contractors for
failure to perform service according to
contract, and impose fines upon them for
other delinquencies;" that when the con-
501
150-152
SIPRKMK (JOUKT OF THE UNITED STATKS.
Oct. T£bm»
)
tracts were made^ long departmental
construction had limited the failure to
perform service, described .in the act, to
twenty-four hours of delay in the arrival
of trains, and that failure, from 1872,
when the section was enacted, to 1907,- to
impose fines or deductions for shorter de-
lays, amounted to a construction by the
Department that authority to impose fines
upon contractors for delinquencies ^did
not warrant deductions for failure* to
maintain train schedules when .the delay
was less than twenty-four hours.
We need consider only this last con-
tention, and in T^ply it is pointeid out
that the findings of fact show: that the
amount and rates of compensation were
determined by the Department for the
various routes, between the 10th and
26th of September, 1906, though effec-
tive as of the first day of the preceding
July; that in October, 1905, the Post-
master General, "on account of the fail-
ure to observe schedules on routes or
parts of routes," issued an order that de-
ductions should be made, in sums stated,
after December 31, 1905, when trains
arrived at termini or junction points fif-
teen or more minutes late, a designated
number of times in a quarter; and that
the Act of Congress, approved June 26,
1906, referred to, declared it to be the
duty of the Postmaster General to im-
]>ose and collect reasonable fines for fail-
ure of railroads to comply with the terms
of their contracts with respect to the
time of anival and departure of mails.
This act was repealed in the following
year, but the substance of it was imme-
diately re-enacted in a more adaptable
form.
Thus, the appellant had notice before
it made the contracts [151] under dis-
cussion that failure to maintain train
schedules was regarded by Congress and
the Department as. a violation of mail-
carrying contracts, justifying the impo-
sition of fines or deductions, and that
both believed there was authority under
the customary contracts and the law to
impose such deductions. The Act of June
26, 1906, was UQt a grant of new power to
the Postmaster Gefieral to impose such
fines or deductions, but was an imper-
ative direction to him to exercise the
j>ower which, it assumes, he already had
for that purpose.
This action of Congress and of the
Department is sufficient answer to the
claim, if it were otherwise sound, that
failure to exercise the power to impose
fines for such a cause amounted to a
departmental declaration that no such
power existed.
.502
But the oonteutioi> is not sound. Fail-
ure, within moderate limits, to maintain
train schedules, may well have been re-
garded by the Postmaster General as a
necessary evil to be tolerated, and not to
call for the exercise of his power to im-
pose fines under the statute, when more
flagrant neglect to maintain such sched-
ules might very justly require him to ex-
ercise such authority in order to prevent
intolerable public inconvenience. We
cannot doubt that the contracts of the
appellant, and the law which was a part
of them, furnished ample authority for
the action of the Department in this
case, and that omission to exercise such
power did not make against the proper
use of it when, in the judgment of the
Postmaster General, adequate occasiiMi
for its use should arise.
We need not pursue the subject fur-
ther. The principles involved are ade-
quately and admirably discussed by the
court of claims in its opinion, rendered
in the case of Louisville & N. R. Co. v.
United States, 53 Ct. CI. 238, upon au-
thority of which this case was decided.
The judgment of the Court of Claims
is affirmed.
[1521 NEW YORK CENTRAL RAILROAD
COMPANY, Petitioner,
v.
WILBUR H. MOHNEY.
(See S. 0. Reporter's ed. 152-158.)
Carriers — limitation of liability *»
employee riding on pass «• when
transportation is Hot interstate.
1. The mental purpose of a railway
employee traveling on an annual pass, good
only over a line wholly within the state,
to continue his journey into another state,
using another carrier to a point still
within the state, where he expected to find
awaiting him another pass from the first
carrier which would he good for the inter*
state part of his journey, does not make
him an interstate passenger while travel*
Note. — On validity of stipulation in
pass limiting carrier's liability — see
notes to Boering v. Chesapeake Beaeh
R. Co. 48 L. ed. U. S. 742, and Walther
v. Southern P. Co.* 37 L.R,A.(N.S.) 235.
On degree of care owed to free pasaen-
gers in absence of stipulation upon the
subject — see notes to Memphis Street R.
Co. V. Caviness, 46 L.R.A.(N.S.) 142,
and Indianapolis Traction & Terminal
Co. V. Lawson, 5 L.R.A.(N.S.) 721.
See also note to this case as reported
in 9 A.L.R. 496.
252 V. 8.
luxy.
NEW YORK CENTRAL R. CO, v. MOHNEY.
leg on the first pafls, 80 as to validate, con-
trary to local pTiblic policy, a stipulatioxi
in such pass releasing the carrier from
liability for negligence.
[For other cases, see Carriers. II. a; Com-
merce, I. b, in Digest Sup. Ci 1908.)
Carriers — limiting liability ^ wilful
or wanton negligence — gratuitous
passenger.
2. A carrier is liable to a persmi
traveling on a pass who is wilfully or wan-
tonly injured by the carrier's employees,
Notwithstanding a stipulation in such pass
releasing the carrier from liability for
n^igenoe.
FEiSr other cases, see Carriers, II. a, in Di-
gest Sup. Ct 1908.]
[No. 196.]
Argued January 27, 1920. Decided March
1, 1920.
ON WRrr of Certiorari to the Court
of Appeals of Lucas County in the
State of Ohio to review a judgment
which affirmed a judgment of the Court
of Common Pleas of said county in
favor of plaintiff in a personal-injury
action. Affirmed.
The facts are stated in the opinion.
Mr. Howard Lewis argued the cause,
and, with Mr. Frederick W. Gaines,
Hied a brief for petitioner:
The contract, of carriage was inter-
state.
Texas & N. 0. R. Co. v. Sabine
Tram Co. 227 U. S. Ill, 57 L. ed. 442,
33 Sup. Ct. Rqj. 229; Baer Bros. Mer-
cantile Co. V. Denver & R. G. R. Co. 233
U. S. 479, 490, 68 L. ed. 1055, 1001, 34
Sup. Ct Rep. 641; fllinois C. R. Co. v.
De Fuentes, 236 U. S. 157, 163, 59 L. ed.
517, 519, P.U.R.1915A, 840, 35 Sup. Ct.
Rep. 275; McFadden v. Aiabalna G. S.
R. Co. 154 C. C. A. 338, 241 Fed. 562;
Railroad Commission • v. Worthington,
225 U. S. 101, 108, 109, 56 L. ed. 1004,
1008, 32 Sup. Ct Rep. 653; Southern P.
Terminal Co. v. Interstate Commerce
Commission, 219 U. S. 498, 527, 55 L.
ed. 310, 320, 31 Sup. Ct. Rep. 279.
The journey being interstate, rights
and liabilities thereunder are governed
bv the Federal laws exclusively.
Cincinnati, N. 0. A T. P. R. Co. v.
Rankin, 241 U. S. 319, 60 L. ed. 1022,
L.R.A.1917A, 265, 36 Sup. Ct Rep. 555;
St. Louis, S. F. & T. R. Co. v. Seale,
229 U. S. 156, 57 L. ed. 1129, 33 Sup. Ct.
Rep. 651, Ann. Cas. 1914C, 156; Tur-
man v. Seaboard Air Line R. Co. 105 S.
C. 287, 89 S. E. 665; Prigg v. Pennsyl-
vania, 16 Pet. 539, 10 L. ed. 1060 ; South-
em R. Co. v. Prescott, 240 U. S. 632, 60
L. ed. 8:^6, 36 Sup. Ct Rep. 469.
The pass was gratuitous.
€4 r>. ed.
Cincinnati, N. 0. & T. P. R. Co. v.
Rankin, supra; Louisville & N. R. Co. v.
Maxwell, 237 U. S. 94, 59 L. ed. 853,
L.R.A.1915E, 665, P.U.R.1915C, 300, 35
Sup. Ct. Rep. 494; Charleston & W. C.
R. Co. V. Thompson, 234 U. S. 676, 577,
58 L. ed. 1476, 1478, 34 Sup. Ct. Rep.
964.
A carrier may validly stipulate that it
shall not be liable for injuries to the
person to whom the pass is issued.
Charleston & W. C. R. Co. v. Thomp-
son, supra; Boering v. Chesapeake Beach
R. Co. 193 U. S. 442, 448, 48 L. ed. 742,
744, 24 Sup. Ct Rep. 516.
It is apparent that when, on account
of the fog, the engineer did not see the
signals, or disregarded them, he was not
guilty of negligence which was wilful
and wanton. It was not a conscious
failure to observe due care. This omis-
sion of duty, even though constituting
negligence, did not amount to wanton-
ness or wilfulness; and there is no evi-
dence of wilfulness or wantonness in
the record.
7 Thomp. Neg. § 22; White, Personal
Injuries on Railroads, § 14; 1 Shearm.
& Redf. Neg. 6th ed. § 114a; Stewart v.
Burlington & M. River R. Co. 32 Iowa,
562; Fluckey v. Southern R. Co. 155 C.
C. A. 244, 242 Fed. 468; Cleveland, C.
C. & St. L. R. Co. V. Miller, 149 Ind.
502, 49 N. E. 445; King v. Illinois C. R.
Co. 52 C. C. A. 489, 114 Fed. 855; Louis-
ville & N. R. Co. V. Muscat & Lott, 147
Ala. 701, 41 So. 302; Louisville & N. R.
Co. V. Mitchell, 134 Ala. 261, 32 So. 735 ;
Southern R. Co. v. Fisk, 86 C. C. A. 373,
159 Fed. 373.
There being no wilful or wanton neg-
ligence pleaded, no recovery can be had
therefor, even if such had been proved.
Gentry v. United States, 41 C. C. A.
185, 101 Fed. 51 ; Re Rosser, 41 C. C. A.
497, 101 Fed. 562; Re Wood & Hender-
son, 210 U. S. 246, 254, 52 L. ed. 1046,
1049, 28 Sup. Ct. Rep. 621.
Mr. Albert H. Miller argued the
cause, and, with Messrs. A. Jay Miller
and Charles H. Brady, filed a brief for
respondent:
It cannot be logically contended that
Mohney was on anything but an intra-
state journey when he was traveling on
transportation entitling him to ride only
from Toledo, Ohio, to Cleveland, Ohio.
Southern P. R. Co. v. Arizona, 249 U.
S. 472, 63 L. ed. 713, P.U.R.1919D, 462,
39 Sup. Ct Rep. 313; White v. St. Louis
Southwestern R. Co. — Tex. Civ. App.
-^, 86 S. W. 962; Judson, Interstate
Commerce, p. 16, ^ 1; Luken v. Lake
503
152, 153
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
Shore & M. S. R. Co. 248 III. 383, 140
Am. St. Rep. 220, 94 N. E. 176, 21 Ann.
Cas. 82; Gulf, C. & S. F. R. Co. v.
Texa.s 204 U. S. 403, 51 L. ed. 540, 27
Sup. Ct. Rep. 360, affirmed in 97 Tex. 274,
78 S. W. 495 ; New Jersey Fruit Exch. v.
Central R. Co. 2 Inters. Com. Rep. 84;
Mis.'^ouri & I. R. Tie & Lumber Co. v.
Cape Girardeau & &. W. R. Co. 1 Inters.
Com. Rep. 607, 1 I. C. C. Rep. 30; Hope
Cotton Oil Co. V. Texas & P. R. Co. 10
I. C. C. Rep. 703; St. Louis Hay & Grain
Co. V. Chicago, B. & Q. R. Co. 11 Inters.
Com. Rep. 82.
State law regulates state transporta-
tion.
Smith V. Atchison, T. & S. F. R. Co.
114 C. C. A. 157, 194 Fed. 79.
All passes are not free passes.
Norfolk Southern R. Co. v. Chatman,
244 U. S. 276, 61 L. ed. 1131, L.R.A.
1917F, H28, 37 Sup. Ct. Rep. 499;
Tripp V. Michigan C. R. Co. L.R.A.
1918A, 758, 151 C. C. A. 385, 238 Fed.
449; Wiley v. Grand Trunk R. Co. 227
Fed. 127.
Employment was back of the Mohney
pass.
Doyle V. Fitchburg R. Co. 166 Mass.
492, 33 L.R. A. 844, 44 N. E. 611 ; GUI v.
Erie R. Co. 151 App. Div. 131, 135 N. Y.
Supp. 355; Whitney v. New York, N.
H. & H. R. Co. 50 KR.A. 616, 43 C. C.
A. 19, 102 Fed. 850; Dugan v. Blue Hill
Street R. Co. 193 Mass. 431, 79 N. E.
748; Walther v. Southern P. Co. 159
Cal. 769, 37 L.R.A.(N.S.) 235, 116 Pac.
51 : Eberts v. Detroit, Mt. C. & M. C. R.
Co. 151 Mich. 260, 115 N. W. 43; Harris
V. Puget Sound Electric R. Co. 52 Wash.
289, 100 Pac. 838; Indianapolis Trac-
tion & Terminal Co. v. Isgrig, 181 Ind.
216, 104 N. E. 60; Palmer v. Boston &
M. R. Co. 227 Mass. 493, 116 N. E. 899.
Mohney was entitled to some degree
of care.
Chic^o, R. I. & P. R. Co. v. Mauoher,
248 U. S. 359, 63 L. ed. 294, 39 Sup. Ct
Rep. 108; St. Louis, L M. & S. R. Co. v.
Pitcock, 82 Ark. 441, 118 Am. St. Rep.
84. 101 S. W. 725, 12 Ann. Cas. 582.
In Ohio, a stipulation such as appears
on the back of the Mohney pass, exempt-
ing: a railroad from liability caused by
the negligence of itself or its employees,
when such contract is made and en-
forced within the state, is absolutely
void.
Pittsburgh, C. C. & St. L. R. Co. v.
Kinnev, 95 Ohio St. 71, L.R.A.1917D,
041. 115 N. E. 505, Ann. Cas. 1918B,
286, 17 N. C. C. A. 269; Cincinnati, H. &
D. R. Co. V. Pontius, 19 Ohio St. 235, 2
Am. Rep. 391 ; Pittsburgh, C. C. v^' St. L.
504
R. Co. V. Sheppard, 56 Ohio St. 68, 60
Am. St. Rep. 732, 46 N. E. 61, 1 Am.
Neg. Rep. 517; Cleveland, P. & A. R. Co.
V. Curran, 19 Ohio St. 1, 2 Am. Rei).
362; Knowlton v. Erie R. Co. 19 Ohio
St. 263; 2 Am. Rep. 395.
The exempting clause is invalid in
other states.
Gill v. Erie R. Co. 151 App. Div. 131,
135 N. Y. Supp. 355.
Even in jurisdictions wherein such a
contract is held valid, to exempt a car-
rier from liability for ordinary negli-
gence, it is generally held that the
carrier will not be relieved from liabil-
ity for gross negligence^ or for wanton-
ness or for wilfulness.
Illinois C. R. Co. v. Read, 37 111. 484,
87 Am. Dec. 260; Illinois C. R. Co. v;
O'Keefe, 63 111. App. 102; Toledo, W. &
W. R. Co. V. Beggs, 85 lU. 80, 28 Am.
Rep. 613; Indiana C. R. Co. v. Mundv,
21 Ind. 48, 83 Am. Dec. 339; Meuer v.
Chicago, M. & St. P. R. Co. 5 S. D. 568,
25 L.R.A. 81, 49 Am. St. Rep. 898, 59
N. W. 945; Walther v. Southern P. Co.
159 Cal. 769, 37 L.R.A.(N.S.) 235, 116
Pac. 51; Turman v. Seaboard Air Line
R. Co. 105 S. G. 287, 89 S. E. 655; Annas
v. MUwaukee & N. R. Co. 67 Wis. 46,
57 Am. Rep. 388, 30 N. W. 282, 10 Am.
Neg. Cas. 546.
The Ohio law controls.
Smith V. Atchison, T. & S. F. R. Co.
114 C. C. A. 157, 194 Fed. 79; Knowl-
ton V. Erie R. Co. 19 Ohio St. 260, 2
Am. Rep. 395; Pittsburgh, C. C. & St.
L. R. Co. V. Sheppard, 56 Ohio St. 68,
60 Am. St. Rep. 732, 46 N. E. 61, 1 Am.
Neg. Rep. 517; Hughes v. Pennsylvania
R. Co. 202 Pa. 222, 63 L.R.A. 527, 97 Am.
Am. St. Rep. 713, 51 Atl. 990, 12 Am.
Neg. Rep. 185.
The exempting clause is invalid in the
Federal courts.
Southern P. Co. v. Schuyler, 227 U. S.
601, 57 L. ed. 662, 43 L.R.A.(N.S.) 901,
33 St^. Ct. Rep. 277; Pennsylvania R.
Co. V. Hughes, 191 U. S. 477, 48 L. ed.
268, 24 Sup. Ct. Rep. 132; Wiley v.
Grand Trunk R. Co. 227 Fed. 127.
Mr. Justice Olarke delivered the opin-
ion of the court:
The respondent, whom we shall refer
to as the plaintiff, bix)ught suit against
the petitioner, defendant, to recover
damages for severe injuries which he
sustained in a rear-end collision on de-
fendant's railroad, which he averred was
caused by the gross n^ligence of the
engineer of the [153] train following
that on which he wa» a passenger) in fail-
ins: to look for and heed danger signals
252 V. S.
1019.
NEW YORK CENTRAL R. CO. v. *MOHNEY.
153-103
which indieated that the traek ahead
was occupied. The plaintiff was em-
ployed by the defendant as .an engineer,
with a run between Air Line Junction,
at Toledo, and Collinwood, a suburb of
Cleveland, wholly within the state of
Ohio. As an incident to his employment
be was given an annual pass, good be-
tween .Air Line Junction and Collin-
wood, which contained the release fol-
lowing: ^
'^Li consideration of receiving this
free pass, each of the persons named
thereon, using the same, voluntarily
assumes all risk of accidents, and ex-
pressly agrees that the company shall
not be liable under any circumstances,
whether of negligence of itself, its
agents, or otherwise, for any injury jto
his or her person, or for any loss or in-
jury to his or her property; and that as
for him or her, in the use of this pass,
he or she will not consider the company
as a common carrier, and liable to him
or her as such.
''And, as a condition precedent to the
issuing and use thereof, each of the per-
sons named on the face of this pass
states that he or she is not prohibited by
law from receiving free transportation,
and that the pass will be lawfully used.''
Having been informed that his mother
iiad died at her home near Pittsburgh,
Pennsylvania, the . plaintiff, desiring to
attend her funeral, applied to the de-
fendant for and obtained a paias for him-
self and wife from Toledo to Youngs-
town, Ohio, via Ashtabula, and was
promised that another pass for himself
and wife would be left with the agent of
the company at Youngstown, good for
the remainder, the interstate part, of the
journey to Pittsburgh. But the line of
the defendant via Ashtabula to Youngs-
town was much longer and required a
number of hours more for the journey
tlian it did to go via Cleveland, using the
Erie Railroad from that city to Youngs-
town, and for this reason, the record
shows, the plaintiff Mohney, [154] be-
fore leaving home, decided that his wife
should not accompany him, and that he
would make the journey by a train of the
defendant, which used its own rails to
Cleveland, and from Cleveland to
Youngstown used the tracks of the Erie
Railroad Company, and at Youngstown
returned to the road of the defendant,
over which it ran to Pittsburgh. The
titinsportation which h6 had received via
Ashtabula could not be used over the
shorter route, and therefore the plaintiff
presented his annual pass for transpor-
tation from Toledo to Cleveland, intend-
64 I/* ed.
ing to pay his fare from Cleveland to
Youngstown over the Erie Railroad,
leave the train at the Erie station at
Youngstown, inquire by telephone as to
the time and place of the burial of his
mother, and then go *to the New York
Central station, a half mile away, obtain
the pass which was to be left there for
him, and go forward to Pittsburgh on the
next convenient train.
The train on which Mohney was a pas-
senger was wrecked between Toledo and
Cleveland. It had comeJ:o a stop at a
station and the second section of the
train ran past two block signals, indicat-
ing danger ahead, and colUded with the
rear car of the first section, in which
Mohney was riding, causing him serious
injury.
The case was tried on stipulated facts
and the testimony of the plaintiff. The
trial court concluded that Mohney, at
the time he was injured, was on an intra-
state journey, using an intrastate pass,
and that by the law of Ohio, the release
upon it was void as against public pol-
icy. Thereupon, a jury being waived,
the court entered judgment in plaintiff's
favor.
The state court of appeals, differing
with the trial court, concluded that Moh-
ney was an interstate passenger when in-
jured, and that the release on the pass
was valid, under the ruling in Charles-
ton & W. C. R. Co. V. Thompson, 234 U.
S. 676, 58 L. ed. 1476, 34 Sup. Ct. Rep.
964. But the court went further and
af&rmed the judgment on two grounds;
by a divided [155] court, on the ground
that the pass was issued to Mohney as
part consideration of his employment,
and, all judges concurring, for the rea-
son that ^^we are clearly of the opinion
that the negligence in this case, under
the evidence, was wilful and wanton."
For these reasons it was held that the
release on the pass did not constitute a
defense to the action.
The supreme court of the state denied
a motion for an order requiring the court
of appeals to certify the record to it for
review, and the case is here on writ of
c^iorari.
The propriety of the use of the annual
pass by Mohney for sach a personal
journey, and that the release on it was
not valid under Ohio law, were not
questioned, and the sole defense urged
by the railroad company was, and now
is, that his purpose to continue his jour-
ney to a destination in Pennsylvania
rendered him an interstate passenger,
subject to Federal law from the time he
entered the train at Toledo, and that the
5«5
135-157
SUPRKMK COURT OF TUE UNITED STATES.
Oct. iLBif,
t
release on the pass was valid^ under 234
U. S. 576, supra.
The three freight cases on which the
defendant relies for its contention that
the plaintiff was an interstate passenger
when injured, all proceed upon the prin-
ciple that the essential character of the
transportation, and not the purpose, or
mental state, of the shipper, determines
whether state or national law applies to
the transaction involved.
Thus, in Coe v. Errol, 116 U. S. 517,
29 L. ed. 715, ^ Sup. Ct. Rep. 476, the
owner's state of mind in relation to the
logs, his intent to export them, and even
his partial preparation to do so, did not
exempt them from state taxation, be-
cause they did not pass within the do-
main of tlfe Federal law until they had
"been shipped, or entered with a com-
mon carrier for transportation to an-
other state, or had been started upon
such transportation in a continuous
route or journey."
In Southern P. Terminal Co. v. Inter-
state Commerce Commission, 219 U. S.
498, 527, 55 L. ed. 310, 320, 31 Sup. Ct.
Rep. 279, the cotton-seed [156] cake
and meal, although billed to Galveston,
were "all destined for export, and by
their delivery to the Galveston, Harris-
hurg, & San Antonio Railway they must
1)0 considered as having been delivered
to a carrier for transportation to their
foreign destination. . . . Jhe case,
therefore, comes under Coe v. Errol,
eupra." The mental purpose of Young,
and his attempted practice by intrastate
billing, was to keep within the domain
of the state law; but his contracts, ex-
press and implied, brought the discrim-
ination complained of in the case within
the scope of the Interstate Conunerce
Act.
In Railroad Commission v. Worthing-
ton, 225 U. S. 101, 56 L. ed. 1004, 32
Sup. Ct. Rep. 653, the Commission at-
tempted to regulate the rate on "lake
cargo-coal," because it was often billed
from the mines to Huron, or other ports
within the state, but this court found
that the established "lake cargo-coal"
rate was intended to apply, and in prac-
tice did apply, only "to such coal as was
in fact placed on vessels for carriage be-
yond the state," and obviously, "by every
fair test, transportation of this coal from
the mines to upper lake ports is an in-
terstate carriage." For this reason the
enforcement of the order of the State
Commission was enjoined as an attempt
to regulate and control interstate com-
merce. Here again it was the commit-
ting of a designated kind of coal t^ a
506
carrier for transportation in interstate
commerce that rendered the Federal law
applicable.
To what extent the analogy between
the shipments of property and the trans-
portation of passengers may profitably
be pressed, we need not inquire, for in
this case the only contract betwt»en the
carrier defendant and the plaintiff was
the annual pass issued to the latter.
This writttti contract, with its release, is
the sole reliance of the defendant. But
that contract in terms was good only be-
tween Air Line Junction and Collin-
wood, over a line of track wholly within
Ohio, and the company was charged
[157] with notice when it issued the
pass that the public policy of that stat^
rendered the release upon it valueless.
The purpose of the plaintiff to continue
his journey into Pennsylvania would
have been of no avail in securing him
transportation over the Erie line to
Youngstown; for that he must pay the
published fare; and very surely the re-
lease on the pass to Collinwood would not
have attached to the ticket to Youngs-
town. Whether there was a similar re-
lease on the pass to Pittsburgh, which
Mohney expected to get at Youngstown,
the record does not disclose, and it is
of no consequence whether there was
or not. The contract whieh the de-
fendant had with its passenger was
in writing and was for an intrastate
journey, and it cannot be modified
by the purpose of Mohney to continue
his journey into another state, under a
contract of carriage with another carrier,
for which he would have been obliged to
pay the published rate, or by an intend-
ed second contract with the defendant in
terms which are not disclosed. The men-
tal purpose of one of the parties to a
written <fontract cannot change its terms.
Southern P. Co. v. Arizona, 249 U. S.
472, 63 L. ed. 713, P.U.R.1919D, 462, 39
Sup. Ct. Rep. 313. For these reasons
the judgment of the trial court was right
and should have been affirmed.
But the court of appeals affirmed the
judgment on two grounds, one of which
was that all of the judges were "cleariy
of the opinion that the negligence in the
case, under the evidence, was wilful and
wanton." This court does not weigh the
evidence in such cases as we have here,
but it has been looked into sufficiently to
satisfy us that the argument that there is
no evidence whatever in the record to
support such a finding cannot be sus-
tained.
A carrier by rail is liable to a tres-
passer or to a mere licensee witfuUv or
252 IT. S.
idid.
ASH SHEEP CO. v. UNITED STATKS.
157-] ")J»
wantonly injnred by its servants in
charge of its train (Thomp. Neg. §§ 3307,
3308, and 3309^ and the same sections in
White's Supplement thereto), and. a
sound public policy forbids that a less
oMM^ous rule should be applied to a
[158] passenger injured by like negli-
gence when lawfully upK>n one of its
trains. This much of protection was
due the plaintiff as a human being, who
had intrusted his safety to defendant's
keeping. Southern P. Co. v. Schuyler,
227 U. S. 601, 603, 57 L. ed. 662, 43
L.RA.(N.S.) 901, 33 Sup. Ct. Rep. 277;
Chicago, R. I. ft P. R. Co. v. Maucher,
248 U. S. 359, 363, 63 L. ed. 294, 296, 39
Sup. Ct. Rep. 108.
The evidence in the record as to the
terms and conditions upon which the
pass was issued to the plaintiff is so
meager that, since it is not necessary to
a decision of the case, we need not and
tlo not consider the extent to which the
case of Charleston & W. C. R. Co. v.
Thompson, 234 U. S. 576, 58 L. ed. 1476,
34 Sup. Ct. Rep. 964, is applicable to an
employee using a pass furnished to him
seemingly as a necessary incident to his
employment.
The* judgment of the Court of Appeals
is affirmed.
Mr. Justice Day and Mr. Justice Van
Decanter concur in the result, being of
opinion that Mohney was using the an-
nual pass in an interstate journey, and
that to such a use of the pass the Ohio
law was inapplicable, but that the releas-
insr clause on the pass did not cover or
embrace his injury because the latter re-
«iulted from wilful or wanton negligence,
as to which such a clause is of no force
or effect.
tl59] A6H SHEEP COMPANY, Appt.,
V.
UXITED STATES OF AMERICA. (No.
212.)
ASH SHEEP CO.MPAXY, Plff. in Err.,
V.
UNITED STATES OF AMERICA. (Ko.
285.)
(S«e 8. C. Reporter's ed. 159-170.)
Indian lands — trespass — grazing
live sUx^..
1. Lands within that part of the Crow
Indian Reservation in Montana as to which
the Indians released their possessory right
to the United States by an agreement rati-
fied and amended by the Act of April 27^
1904, which contains many provifnons in-
«4 Ii. ed.
tended to secure to the Indians the fullest
possible value for what are referred to in
the grant as ''their lands," and to make
use of the proceeds for their benefit, are
Indian lands within the meaning of U. S.
Rev. Stat. § 2117, forbidding the pastur-
ing of cattle upon lands belonging to any
loSian or Indian tribe without the con-
sent of such tribe.
[For other cases, see Indians, V. In Digest
8np. Ct 1908.1
Indian lands — trespass ^ grazing
sheep.
2. Sheep must be regarded as cattle
within the meaning of U. S. Rev. Stat.
§ 2117, which forbids any person to drive
or otherwis'e convey any stock of horses,
mules, or cattle to range and feed on an\'
land belonging to any Indian or Indian
tribe without the consent of such tribe,
the courts and Department of Justice hav-
ing so interpreted this provision for al-
most fifty years.
[For other cases, see Indians, V. in Digest
Sup. Ct. 1008.1
Judgment — oonelusivenesa — recovery
in equity as bar to reoovery at law.
3. The recovery of nominal damages
in an equity suit to restrain a trespass
does not bar the recovery at law of the
statutory penalty for the same trespass,
the claim for such penalty having been
rejected in the equity suit because pur-
sued in an action in which it could not be
entertained.
[For other cases, see Judgment, III. J, 1, in
Digest Sup. Ct. 1908.]
[Nos. 212 and 286.]
Argued January 30, 1920. Decided March
1, 1920.
APPEAL from the United States Cir-
cuit Court of Appeab for the Ninth
Circuit to review a decree which affirmed
a decree of the District Court for the
District of Montana enjoining the graz-
ing of sheep on lands asserted to be In-
dian lands. Affirmed. Also
IX ERROR to the United States Cir-
cuit Court of Appeals for the Ninth
Circuit to review a judgment which af-
firmed a judgment of the District Court
for the District of Montana in favor of
the United States in a suit to recover a
penalty for the same trespass. Affirmed.
Note. — On conclusiveness of judg-
mentSy generally — see notes to Sharon
V. Terr>', 1 L.R.A. 672; Bollong v.
Schuyler Nat. Bank, 3 L.R.A. 142;
Wiese v. San FranciiMSO Musical Fund
Soc. 7 L.R.A. 677; MorriU v. Morrill, 11
L.R.A. 166; Shores v. Hooper, 11 L.R.A.
.308; Bank of United States v. Beverly,
11 L. ed. U. S. 76; Johnson Steel Street
R. Co. V. Wharton, 38 L. ed. U. S. 429 ;
and Southern P. R. Co. v. United States,
42 L. ed. U. S. 355.
no7
SL'PRKME COURT OF THE UNITED STATES.
Oct. IkbMj
See same case below in Xo. 212, 162
C. C. A. 607, 250 Fed. 591; in No. 285,
166 C. C. A. 469, 254 Fed. 59.
The facts are stated in the opinion.
Mr. Cornelias B. Nolan argued the
cause, and, with Mr. William Scallon,
field a brief for the Ash Sheep Com-
pany :
When the act in question was passed,
the title to the land was in the United
States. The only right that the Indians
had was a possessory right.
Johnson v. M'Intosh, 8 Wheat. 543, 5
L. ed. 681; Spalding v. Chandler, 160 U.
S. 394, 40 L. ed. 469, 16 Sup. Ct. Rep.
360.
This right of occupancy could be
terminated by act of Congress as well as
by treaty or agrefement with the In-
dians.
Beecher v. Wetherby, 95 U. S. 517, 24
L. ed. 440; Buttz v. Northern P. E. Co.
119 U. S. 73, 30 L. ed. 337, 7 Sup. Ct.
Rep. 100; Lone Wolf v. Hitchcock, 187
U. S. 553, 47 L. ed. 299, 23 Sup. Ct. Rep.
216.
When this right of occupancy termi-
nated or was abandoned with the ap-
proval of the United States, all of the
Indian rights were extinguished.
Buttz V. Northern P. R. Co. 119 U. S.
73, 30 L. ed. 337, 7 Sup. Ct. Rep. 100;
United States v. Cook, 19 Wall. 591, 22
L. ed. 210.
It was clearly the intention that every
portion of this land should at all times
be accessible to the public, so that set-
tlements might be made by those intend-
ing to do so under the homestead and
other laws, and the leasing of the same
by the Indian Department necessarily
would interfere with this being done. If
any trust arose at all, it attached to the
money which was to be paid, and not to
the land itself.
United States v. Choctaw Nation, 179
U. S. 494, 45 L. ed. 291, 21 Sup. Ct. Rep.
149.
This matter has been- already under
consideration by this court, and a con-
clusion reached at variance with the
government's contention.
Bean v. Morris, 221 U. S. 485, 55 L.
ed. 821, 31 Sup. Ct. Rep. 703.
The words "public lands" are habitu-
ally used in our legislation to describe
such as are subject to sale or other dis-
posal under general laws.
Newhall v. Sanger, 92 U. S. 761, 23 L.
ed. 769.
The words "public land" have long
had a settled meaning in the legislation
of Congress, and, when a different in-
5oa
tention is not clearly expressed, are
used to designate such land as is subjeet
to sale or other disposal under general
laws.
Northern Lumber Co. v. O'Brien, 71
C. C. A. 598, 139 Fed. 614; United
States V. Blendaur, 63 C. C. A. 636, 128
Fed. 910; Jaekman v. Atchison, T. & S.
F. R. Co. 24 N. M. 278, 170 Pac. 1036.
These lands became public when they
were thrown opes for settlement, if not
before; and such being their character^
the injunction was improperly issued.
Buford V. Houtz, 133 U. S. 320, 33 L.
ed. 618, 10 Sup. Ct. Rep. 305.
The statute in question is a penal one,
and the rule of strict construction ap-
plies. Nothing should be included that
fairly does not come within the express
provisions of the law.
United States v. Lacher, 134 U. S.
624, 33 L. ed. 1080, 10 Sup. Ct Rep.
625; Sarlls v. United States, 152 U. S.
570, 38 L. ed. 556, 14 Sup. Ct. Rep. 720 ;
United States v. Harris, 177 U. S. 305,
44 L. ed. 780, 20 Sup. Ct. Rep. 609;
Bircher v. United States, 95 C. C. A. 87,
169 Fed. 591 ; United States v. Gkwding^
12 Wheat. 460, 6 L. ed. 693; Greely v.
Thompson, 10 How. 225, 13 L. ed. 397^
Baldwin v. Franks, 120 U. S. 678, 30 L.
ed. 766, 7 Sup. Ct. Rep. 656, 763; Tif-
fany V. National Bank, 18 Wall. 409, 21
L. ed. 862.
The term "cattle," as generally un-
derstood, is used in reference to ani-
mals of the bovine species.
State ex reL Esser v. District Ct. 42
Nev. 218, 174 Pac. 1023.
This is true where, in excise laws^
custom duties are imposed on hides.
Rossbach v. United States, 116 Fed.
781; United States v. Schmoll, 154 Fed.
734; United States v. Ash Sheep Co. 22»
Fed. 479 ; Keys v. United States, 2 Okla.
Crim. Rep. 647, 103 Pac. 874.
In construing any part of the United
States Revised Statutes, it is admissible,
and often necessary, to recur to its con-
nection in the act of which it was orig-
inally a part.
United States v. Hirsch, 100 U. S. 33,
25 L. ed. 539; United States v. Bowen,
100 U. S. 508, 25 L. ed. 631; The Con-
queror, 166 U. S. 110, 41 L. ed. 937, 17
Sup. Ct. R«p. 510; United States v.
Lacher, 134 U. S. 624, 33 L. ed. 1080, 10
Sup. Ct. Rep. 625.
In the equitable action that was in-
stituted, the government sought to re-
cover the statutory penalty. It is true,
that no express mention is made of the
fact that tlie damage demanded was by
virtue of the law in question. It is tme,
25i 17. 6.
I91i!».
ASH SHEEP CO. v. UNITED STATES.
163
nevertheless, that the right to recover
the damage under this law was asserted.
In the equitable action the government
insisted that^ regardless of the damage
that was done, the statute fixed the
amount of it, and it was entitled to re-
cover $1 per head. The trial court de-
cided against it, and that decision stands
un appealed from, and has in it the ele-
ment of finality. The decision in that
case, adverse to the United States, as to
its right to recover this money, is de-
terminative of its right to do so in the
present action.
Forsyth v. Hammond, 166 U. S. 506,
41 L. ed. 1095, 17 Sup. Ct. Rep. 665;
Southern P. R. €o. v. United States, 168
U. S. 1, 42 L. ed: 355, 18 Sup. Ct. Rep.
18; Washington Gaslight Co. v. Dis-
trict of Columbia, 161 U. S. 316, 40 L.
ed. 712, 16 Sup. Ct. Rep. 564.
The United States, in demanding dam-
ages, as it did, in the equitable action,
should now be estopped (having recov-
ered damages in that action for the in.'
jury done) from maintaining the present
action to recover additional damages.
Kendall v. Stokes, 3 How. 87, 11 L. ed.
506; Union Cent. L. Ins. Co. v. Drake,
131 C. C. A. 82, 214 Fed. 536.
Assistant Attorney General Kebeker
argued the cause, and, with Mr. W. W.
Dyar, Special Assistant to the Attorney
General, filed a brief for the United
States :
By the Act of Congress of April 27,
1904, the unqualified sale and cession
provided for by the agreement was
converted into a cession and relinquish-
ment in trust to sell and dispose of the
lands for the benefit of the Indians, and
pay over to them the proceeds. The en-
tire beneficial interest remained in the
tribe, and the lands themselves remained
Indian lands until disposed of under the
trust.
Frost V. Wenie, 157 U. S. 46, 50, 39
L. ed. 614, 616, 15 Sup. Ct. Rep. 532;
Minnesota v. Hitchcock, 185 U. S. 373,
46 L. ed. 954, 22 Sup. Ct. Rep. 650;
United States v. Mille Lac Band, 229 U.
S. 498, 57 L. ed. 1299, 33 Sup. Ct. Rep.
811.
Sheep are included in U. S. Rev. Stat.
§ 2117, Comp. Stat. •§ 4107, 3 Fed. Stat.
Anno. 2d ed. p. 795, which imposes a pen-
alty of $1 per head for grazing "any
stock of horses, mules, or cattle" upon
Indian lands without the consent of the
tribe.
United States v. Mattock, 2 Sawy. 148,
Fed. Cas. No. 15,744; Henderson v.
Wabash, S^. L. & P. R. Co. 81 Mo. 605;
44 L. ed.
Davis V. Collier, 13 Ga. 485; United
States V. Freeman, 3 How. 556, 11 L.
ed. 724; United States v. Hartwell, 6
Wall 385> 396, 18 L. ed. 830, 832; Unit-
ed States V. Morris, 14 Pet. 474, 10 L.
ed. 548; Johnson v. Southern P. Co. 196
U. 8. 1, 13, 49 L. ed. 363, 367, 25 Sup.
Ct. Rep. 158, 17 Am. Neg. Rep. 412;
Wimbish v. Tailbois, 1 Plowd. 57, 75
Eng. Reprint, 91; Stowel v. Zouch, 1
Plowd. 366, 75 Eng. Reprint, 555; Unit-
ed States v. Lacher, 134 U. S. 624, 628,
33 L. ed. 1080, 1083, 10 Sup. Ct Rep.
625.
A judgment is not conclusive on any
question which, from the nature of the
case or the form of the action, could
not have been adjudicated in the ease in
which it was rendered.
2 Black, Judgm. § 618; 23 Cyc. 1317.
There are at least three distinct rea-
sons why the question of penalties
could not have been adjudicated in the
equity suit;
(a) Equity never^ under any circum-
stances, lends its aid to enforce a for-
feiture or penalty, or anything in the
nature of either.
Marshall v. Vicksburg, 15 Wall. 146,
149, 21 L. ed. 121, 122; Livingston v.
Tompkins, 4 Johns. Ch. 415, 8 Am. Dec.
598; 2 Story, Eq. § 1319.
The fact that the remedy prescribed
is a civil suit does not prevent § 2117
from being a criminal statute.
United States v. Stevenson, 215 U. S.
190, 54 L. ed. lS3, 30 Sup. Ct. Rep. 35 ;
Lees V. United States, 150 U. S. 476, 37
L. ed. 1150, 14 Sup. Ct. Rep. 163; Boyd
V. United States, 116 U. S. 616, 29 L.
ed. 746, 6 Sup. Ct. Rep. 524.
(b) The case presented by the plead-
ings was solely one of civil damages for
trespass. Penalties were wholly outside
the issues.
Fifield v. Edwards, 39 Mich. 266.
(c) The parties were the same, but
the United States sued in entirely dif-
ferent capacities.
Rathbone v. Hooney, 58 N. Y. 467;
Sonnenberg v. Steinbach, 9 S. D. 518, 62
Am. St. Rep. 885, 70 N. W. 655; Alli-
son V. Little, 93 Ala. 150, 9 So. 388;
Landon v. Townshend, 112 N. Y. 93, 8
Am. St. Rep. 712, 19 N. E. 424, 129 N.
Y. 166, 29 N. E. 71.
[163] Mr. Justice OUrke delivered
the opinion of the court:
These two cases were argued and will
be decided together.
No. 212 is an api>eal from a decree,
entered in a suit in equity, in favor of
ROD
Itf3-165
SUPREME COURT OF THE UNITED STATES.
Oct. itEM,
the government, granting a permanent
injunction restraining the api>ellant
fi*om trespassing upon described lands
in Montana by grazing sheep thereon,
and for nominal damages for such tres-
pass.
No. 285 is a proceeding in error, in
which reversal is sought of a judgment
rendered in an action at law against
plaintiff in error, appellant in the equity
suit, for a penalty for the same trespass.
The validity of the right asserted by
the government, in both cases, turns up-
on whether the lands involved were "In-
dian lands" or '^public lands.'' If they
were the former, the decree in the
equity ease should be affirmed; but in
the law case there would remain the
question as to whether "sheep" were
within the terms of the act under which
the penalty was imposed.
In both cases the government con-
tends that the appellant violated § 2117
of the Revised Statutes of the United
States (Comp. Stat. § 4107, 3 Fed. Stat.
Anno. 2d ed. p. 795) i which reads as
follows :
"Every person who drives or other-
wise conveys any stock of horses, moles,
or cattle, to range and feed on any land
belonging to any Indian or Indian tribe,
without the consent of such tribe, is
liable to a penalty of one dollar for each
animal of such stock."
The company admits that it pastured
5,000 sheep on the described lands with-
out the consent of th€ Crow tribe of
Indians or of the United States, but de-
nies that they were 'Indian lands," and
contends that they were "public lands,"
upon which it was lawful for it to pas-
ture its stock.
Whether the described lands were In-
dian or public lands depends upon the
construction to be given the act of Con-
gress approved April 27, 1904 (33 Stat,
at L. 352, chap. 1624), entitled, [164]
"An Act to Ratify and Amend an
Agreement with the Indians of the
(.'row Reservation in Montana, and
Making Appropriations to Carry the
Same into Effect."
The agreement embodied in this act of
Congress provided for a division of the
Crow Indian Reservation in Montana on
boundary lines which were described,
and the lands involved in this case were
within the part of the Reservation as to
which the Indians, in terms, "ceded,
granted, and relinquished" to the United
States all of their "right, title, and in-
terest."
The argument of the Sheep Company
is, that the United States being owner
510
of the fee of the land before the agree-
ment, the effect of this grant and release
of their possessory right by the Indians
was to vest the complete and perfect
title in the government, and thereby
make the territory a part of the public
lands, with the interest of the Indians
transferred to the proceeds to be derived
from them. For this conclusion the fol-
lowing cases are cited: United States
V. Choctaw Nation, 179 U. S. 494, 45
L. ed. 291, 21 Sup. Ct. Rep. 149; Bean
V. Morris, 86 C. C. A. 519, 169 Fed.
651, s. c. 221 U. S. 486, 55 L. ed. 821, 31
Sup. Ct. Rep. 703. But in the first of
these cases the Indians parted with
their possessory rights for a cash pay-
ment by the United States (p. 527), and
in the second, the character of the agree-
ment under which the Indian title was
said, incidentally, to have terminated,
does not appear.
Whether or not the government be-
came trustee for the Indians, or acquired
an unrestricted title by the cession of
their lands, depends in each case upon
the terms of the agreement or treaty by
which the cession was made. Minnesota
V. Hitchcock, 185 U. S. 373, 394, 398,
46 L. ed. 954, 965, 967, 22 Sup. Ct. Rop.
650; United States v. Mille Lac Band
of Chippewa Indians, 229 U. S. 498, 509,
57 L. ed. 1299, 1305, 33 Sup. Ct. Rep.
811.
The agreement we have in this case
is elaborate, and, in consideration of the
grant by the Indians of their possessory
right, the government assumed many ob-
ligations with respect to the lands and
the proceeds of them, — notably, [lOT]
that it would sell the land to settlers, ex-
cept sections 16 and 36, for not less than
$4 per acre, and would pay the proceeds
to the Indians, under the direction of the
Secretary of the Interior, in a manner
prescribed. Thus, the government con-
tracted to expend $90,000 of the pro-
ceeds of the land in the extension of the
irrigfation system on the Reservation
remaining; $295,000 in the purchase of
stock to DC placed on the Keservation,
with a further contingent purchase in
contemplation of $200,000; $40,000 in
fencing; $100,000 for schools; and $10,-
000 for a hospital for the Indians, for
the maintenance of which $50,000 ad-
ditional was to be held in trust It was
further provided, that to the extent that
feasible irrigation prospects could be
found, parts of the released lands should
be withdrawn under the Reclamation
Act and be disposed of within five years,
but not for less than $4 an acre.
There were many other like provi-
' 952 V. S.
1919.
ASH SHEEP CO. v. UNITED STATES.
165-167
sions, all intended to secure to the In-
dians the fullest possible value for what
are referred to in the agreement as
*'tbeir lands," and to make use of the
proceeds for their benefit.
It was provided that semiannual re-
ports should be made by the Secretary
of the Interior to the Indians, showing
the amounts expended from time to time
and the amounts remaining in each of
the several funds.
It is obvious that the relation thus
established by the act between the gov-
ernment and the tribe of Indians was
essentially that of trustee and benefi-
i'iarA'y and that the agreement contained
many features appropriate to a trust
agreement to sell lands and devote the
proceeds to the interests Of the cestui
que trust. Minnesota v. Hitchcock,
supra. And that this was precisely the
light in which the Congress regarded
the whole transaction is clear from the
tenns of the concluding section, the
eighth: .
**That nothing in this act contained
shall in any manner bind the United
States to purchase any portion of the
land [166] herein described, except
sections sixteen and thirty-six or the
equivalent in each township, or to dis-
l>08e of said land except as provided
herein, or to guarantee to find purchas-
ers for said lands or any portion thereof,
it being the intention of this act that
the United States shall act as trustee for
said Indians to dispose of said lands
and to expend and pay over the proceeds
received from the sale thereof only as
received, as herein provided." 33 Stat.
chap. 1624, pp. 362, 3ei.
Taking all of the provisions of the
agreement together, we cannot doubt
that while the Indians by the agreement
released their possessory right to the
government, the owner of the fee, so
that, as their trustee, it could make per-
fect title to purchasers, nevertheless,
until sales should be made, any ben-
efits which might be derived from the
use of the lands would belong to the
beneficiaries, and not to the trustee, and
that they did not become ^'public lands"
in the sense of being subject to sale or
other disposition, under the General
Land Laws. Union P. R. Co. v. Harris,
215 U.-S. 386, 388, 54 L. ed. 246, 247,
30 Sup. Ct. Repw 138. They were sub-
ject to sale by the government, to be
sure, but in the manner and for the pur-
. poses provided for in the special agree-
ment with the Indians, which .was em-
bodied in the Act of April 27, 1904 (33
Stat, at L. 352, chap. 1624), and as to
64 Ii« ed.
this point the case is ruled by the Hitch-
cock and Chippewa Cases, supra. Thus,
we conclude that the lands described
in the bill were "Indian lands" when
the company pastured its sheep upon
them, in violation of § 2117 of Revised
Statntes (Comp. Stat. § 4107, 3 Fed.
Stat. Anno. 2d ed. p. 795), and the de-
cree in No. 212 must be affirmed.
There remains the question as to the
construction of Rev. Stat. § 2117.
In the law case it is admitted in the
bill of exceptions that the Sheep Com-
pany, without the permission of the
Crow tribe of Indians or of the United
States, drove, ranged, and grazed 5,000
head of sheep on the land described in
the complaint, and that at the time no
settlement [167] or entries thereon
had been authorized under acts of Con-
gress. The judgment against the com-
pany was for $5,000, — $1 for each sheep
pastured on the land.
The company contends that the judg-
ment should be reversed for the reason
that Rev. Stat. § 2117, imposes the pen-
alty prescribed only for ranging and
feeding on the lands of an Indian tribe
without permission ''any stock of horses,
mules, or cattle," and that "sheep" are
not within its terms.
If this were a recent statute, and if
we were giving it a first interpretation,
we might hesitate to say that by the use
of the word "cattle" Congress intended
to include "sheep."
But the statute is an old one, which
has been interpreted in published re-
ports of the courts for almost fifty
years, and in an opinion by the Attorney
Qeneral of the United States, rendered
in 1884, as fairly comprehending "sheep"
within the meaning of the word "cattle"
as used in it.
The statute first appears as § 2 of an
"Act to Regulate Trade and Intercourse
with the Indian Tribes, and to Preserve
Peace on the Frontiers," enacted in 1796,
and was then applicable only to "any
stock of horses or cattle," etc. (Act
of May 19, 1796* 1 Stat, at L. 469, 470,
chap. 30). The section was re-enacted
without change in 1802 (Act of March
30, 1802, 2 Stat, at L. 139, 141, chap.
13). In 1834 it was given its present
form, which was carried into 4he Re-
vised Statutes, without change in the
wording we are considering (Rev. Stat.
§ 2117).
In 1872 suit was brought in the
United States district court for the dis-
trict of Oregon, claiming that penalties
under the section had been incurred by
pasturing "sheep," as in this case, on
511
167-170
SUPRE>IE COURT OF THE UNITED STATES.
Oct. Teem,
>
Indian lands without the consent of the
tribe. In a carefully prepared and
clearly reasoned opinion Judge Deady
overruled a demurrer to the complaint^
and held that "sheep" were clearly
within the mischief to be remedied, and
fairly within the language of the act.
[168] This case has not been ovemiled
or modified by any later decision. The
court quotes defiiiitions of the word
"cattle" from several dictionaries^ em-
phasizing especially this from the 1837
edition of Webster:
**In its primary sense, the word in-
cludes camels, horses, asses; all the
varieties of domesticated homed beasts
of the bovine genus, sheep of all kinds,
and goats, and perhaps swine. . . .
Cattle in the United States, in common
usage, signifies only beasts of the bovine
genus."
Upon this authority, and applying the
rule that, in determining the legislative
intent, the mischief to be prevented
should be looked to, and saying that "it
will not be denied that sheep are as
much within the mischief to be remedied
as horses or oxen," the court concludes:
^^ have no hesitation in coming to
the conclusion that the word cattle, as
used in the Indian Intercourse Act of
1834 (Act of June 30, 1834, 4 Stat, at
L. 729, chap. 161), includes, and was
intended to include, sheep as well as
cows and oxen." United States v. Mat-
tock, 2 Sawy. 148, Fed. Gas. No. 15,744.
Twelve years later, in 1884, the At-
tornev General of the United States, in
an opinion to the Secretary of War,
regarded the question as so little doubt-
ful that he disposed of it in this single
sentence :
"The standard lexicographers, place
sheep under the head of cattle, and it
would seem to be in derogation of the
manifest intention of Congress to take
the word in a more confined sense." 18
Ops. Atty. Gen. p. 91.
In 1875, in First Nat. Bank v. Home
Sav. Bank, 21 Wall. 294, 22 L. ed. 560,
this court held that the word "cattle"
in a letter of credit guaranteeing
"drafts on shipments of cattle" was com-
prehensive enough to justify the giving
of credit on shipments of "hogs." This
pertinent paragraph is from the opin-
ion:
"That stock of some kind formed part
of the guaranty is quite plain, but is
the word 'cattle' in this connection to
be confined to neat cattle alone, that is,
cattle of the bovine genus? It is often
so applied, but it is [quoting [169]
from Worcester's Dictionary] *also a
512
collective name for dolnestie quadrupeds,
generally, including not only the bovine
tribe, but horses, asses, mules, ' sheep,
goats and swine.' In its liniited sense it
is used to designate the different varieties
of homed animals, but it is also fre-
quently used with a broader signification
as embracing animals in general which
serve as food for maiL In England,
even in a criminal case, where there is
a greater strictness of construction than
in a civil controversy, *pigs' were held
to be included within the words 'any
cattle.' "
The most recent definitions of the
dictionaries are as follows:
Webster's New International Diction-
ary defines "cattle" thus: "Collectively,
live animals held as property or raised
for some use, now usually confined to
quadrupeds of the bovine family, but
sometimes including all domestic quad-
rupeds, as sheep, goats, horses, mules,
asses, and swine, etc."
The Standard Dictionary defines the
word as meaning: "Domesticated bo-
vine animals, as oxen, cows, bulls, and
calves; also, tho seldom now, as com-
pared with former times, any live stock,
kept for use or profit, as horses, camels,
sheep, goats, swine, etc."
Thus, although the word "sheep" is
not in the section, and although in
present-day usage the word "cattle"
would rarely be used with a significa-
tion sufficiently broad to include them,
nevertheless: since the pasturing of
sheep is plainly within the mischief at
\<rhich this section aimed; since the
word "cattle," which is used, may be
given, say all the autliorities, a meaning
comprehensive enough to include them;
and since the courts and the Depart-
ment of Justice for almost fifty years
have interpreted the section as appli-
cable to "sheep," we accept this as the
intended meaning of the section; for,
had it been otherwise, Congress, we
must assume, would long since have cor-
rected it.
[170] It is argued that the rule that
penal statutes must be strictly con-
strued forbids such latitude of construc-
tion. But this is sufficiently and
satisfactorily answered by repeated de-
cisions of this court.
"The admitted rule that penal statutes
are to be strictly construed is not vio-
lated by allowing their words to have
full meaning, or even the more extended
of two meanings, where such construc-
tion best, harmonizes with the context,
and most fully promotes the policy and
I obiects of the legislature." United
252 V. S.
1919.
GAYOK V. McCarthy.
170, 111
states V. Hartwell, 6 Wall. 385, 18 L. ed.
830; United States v. Freeman, 3 How.
556, 565, 11 L. ed. 724, 728; United
States V. Lacher, 134 U. S. 624, 628, 33
li. ed. 1080, 1083, 10 Sup. Ct. Rep. 625.
It is also contended, far from con-
fidently, that the recovery of nominal
damages in the equity suit is a bar to
the recovery of the penalty in the case
at law. While the amount of the stat-
utory penalty for the trespass was
prayed for in the equity suit, yet the
trial court, saying that equity never aids
the collection of such penalties (Mar-
shall V. Vicksburg, 15 Wall. 146, 149, 21
ii. ed. 121, 122), and that no evidence of
substantial damage had been introduced,
Umited the recovery to $1 and costs.
Rejection of a claim because pursued in
an action in which it cannot be enter-
tained does not constitute an estoppel
against the pursuit of the same right in
an appropriate proceeding. We agree
with the court of appeals that ^'a judg-
ment is not conclusive of any question
which, from the nature of the case or
the form of action, could not have been
adjudicated in the case in which it was
rendered."
It results that the decree in No. 212
and the judgment in No. 285 must both
be affirmed*
C1713 ROBERTO GAYON, Appt. and Plff.
in Err.,
V.
THOMAS D. McCarthy, United States
Marshal for the Southern District of
New York, and Samuel M. Hitchcock,
United States Commissioner for the
Southern District of New York.
(See S. C. Reporter's ed. 171-178.)
Criminal law ^ removal to another
Federal district — prima facie case.
1. The introduction in evidence of the
indictment, together with the admission
of the accused that he is the person named
therein, establishes a prima facie case,
in the. absence of other evidence, for the
removal of the accused to the district in
which the indictment was returned.
[For other oases, see Criminal Law, VII. in
Digest Sup. Ct. 1908.]
Neutrality — violations — procuring
enlistment in foreign service.
2. One may be retained in the sense
of the Criminal Code, § 10, providing for
Note. — On removal to another Feder-
al district for trial of persons there
charged with an offense against the
United States — see note to Greene v.
Henkel, 46 I^ ed. IT. S. 177.
64 Li. ed.
the punishment of whoever, within the
territory or jurisdiction of the United
States, hires or retains another to go be-
yond such limits or jurisdiction with in-
tent to be enlisted in the service of another
foreign people, as effectively by a verbal
as by a written promise, by a prospect for
payment in the future as by immediate
payment of cash.
[For other cases, see Neutrality, IV. b, In
Digest Sup. Ct 1908.]
Criminal law — removal to another
Federal district — sufficiency of evi-
dence.
3. Substantial evidence before the
United States commissioner and the court,
tending to show that a penal statute of
the United States had been violated, and
that there was probable cause for believ-
ing the accused guilty of conspiracy to
compass that violation within the district
in which the indictment charging such con-
spiracy was returned, justifies an order for
the removal of the accused to that district.
[For other cases, see Criminal Lawt YIL in
Digest Sap.«Ct lOOS.]
[No. 540.]
Argued January 6, 1920. Decided March
1, 1020.
APPEAL from and IN ERROR to the
District Court of the United States
for the Southern District of New York to
review an order for the removal to an-
other Federal district of a person there
charged .with an offense against the
United States. Affirmed.
The facts are stated in the opinion.
Mr. William 8. Bennet argued the
cause, and, with Mr. A. M. Wattenberg,
filed a brief for appellant and plaintS
in error:
The indictment is not conclusive; it is
merely prima facie evidence of probable
cause under U. S. Rev. Stat. § 1014,
Comp. Stat. § 1674, 2 Fed. Stat. Anno.
2d ed..p. 654.
Tinsley v. Treat, 205 U. S. 20, 51 L.
ed. 689, 27 Sup. Ct. Rep. 430.
There was no hiring or retaining by
defendant within the meaning of §10
of the Penal Code.
United States v. Kazinski, Fed. Cas.
No. 15,508; United States v. Hertz,
Fed. Cas. No. 15,357; United States v.
Blair-Murdock Co. 228 Fed. 77.
Assistant Attorney General Stewart
argued the cause, and, with Mr. W. C.
Herron, filed a brief for appellees and
defendants in error:
The entire case is determined ad-
versely to the plaintiff in error by the
decision of this court in Henry v.
Henkel, 235 U. S. 219, 59 L. ed. 20*3, 35
Sup. Ct. Rep. 54. See also Daeche v.
3S 51S
171-173
SUPREME COURT OF THE UNITED STATES.
Oct. Terua^
BoUschweiler, 241 U. S. 641, 60 L. ed.
1217, 36 Sup. Ct. Rep. 446; Rumely v.
McCarthy, 250 U. S. 283, 288, 289, 63
L. ed. 983, 986, 987, 39 Sup. Ct. Rep.
483; Harlan v. McGourin, 218 U. S. 442,
448, 54 L. ed. 1101, 1105, 31 Sup. Ct.
Rep. 44, 21 Ann. Cas. 849; Re Gregory,
219 U. S. 210, 214, 55 L. ed. 184, 189, 31
Sup. Ct. Rep. 143; Joplin Mercantile
Co. V. United States, 236 U. S. 531, 535,
636, 59 L. ed. 705, 707, 708, 35 Sup. Ct.
Rep. 29.
Mr. Justice Clarke delivered the opin-
ion of the court:
The appellant, Qayon, was iifdicted
in the southern district of Texas for
conspiring (§ 37 of the Criminal Code
[35 Stat, at L. 1096, chap. 321, Comp.
Stat. § 10,201, 7 Fed. Stat. Anno. 2d
ed. p. 534]) wjth one Naranjo, of San
Antonio, Texas, and with one Mendoza,
of Laredo, Texas, about Jdnuary 1st,
1919, to hire and retain Foster Averitt,
a citizen of the United States, to go to
Mexico, there to enlist in military forces
organized in the interest 6f Felix Diaz,
then in revolt against the ^vemment
of Mexico, with which the United [172]
States was at peace, in violation of § 10
of the Criminal Code, as amended May
7, 1917 (40 Stat, at L. 39, chap. 11,
Comp. Stat. § 10,174, Fed. Stat. Anno.
Supp. 1918, p. 679).
Gayon was arreted in New York, and,
after a full hearing before a commis-
sioner of the United States, was held
subject to the order of the district court
for his removal to Texas.
Thereupon, by petition for writs of
habeas corpus and certiorari, the case
'v^as removed to the district court for
the southern district of New York, and,
upon a hearing on a transcript of the
evidence before the commissioner, that
court discharged the writ of habeas
corpus and entered an order that a war-
rant issue for the removal of the appel-
lant to Texas. An appeal brings this
order here for review.
The principles and practice applicable
to this case are abimdantly settled:
Greene v. Henkel, 183 U. S. 249, 261,
46 L. ed. 177, 189, 22 Sup. Ct. Rep. 218;
Beavers v. Haubart, 198 U. S. 77, 49 L.
ed. 950, 25 ISup. Ct. Rep. 573; Hyde v.
Shine, 199 U. S. 62, 84, 50 L. ed. 90,
97, 25 Sup. Ct. Rep. 760; Tinsley v.
Treat, 205 U. S. 20. 51 L. ed. 689,
27 Sup. Ct. Rep. 430; Haas v. Hen-
kel, 216 U. S. 462, 475, 54 L. ed. 569,
575, 30 Sup. Cti Rep. 249, 17 Ann. Cas.
1112; Price v. Henkel, 216 U. S. 488,
490, 54 L. ed. 581, 585, 30 Sup. Ct. Rep.
514
257; Hyde v. United States, 225 U. S.
347, 56 L. ed. 1114, 32 Sup. Ct. Rep.
793, Ann. Cas. 1914A, 614; Brown v.
ElUott, 225 U. S. 392, 56 L. ed. 1136, 32
Sup. Ct Rep. 812; Henry v. Henkel^
235 U. S. 219, 59 L. ed. 203, 35 Sup. Ct.
Rep. 54.
Of many errors assigned only two are
argued, viz.: That the court erred in
holding: (1) That the acts committed
by the appellant "of which there waa
any evidence before the commissioner''
constituted a crime under § 10 of the
Penal Code, and (2) that the evidence
before the* commissioner showed prob-
able cause for believing the defendant
guilty of the crime charged in the in-
dictment. ,
By these assignments of error the cor-
rect rule of decision is recognized, that
if there was before the commissioner ot
district court evidence showing probable
cause for believing the defendant guilty
of having conspired with Naranjo or
Mendoza, when either was in the south-
em district of Texas, to hire or retain
Averitt to go to Mexico to enlist in the
insurgent forces operating under Qen- *
era] Diaz against the Mexican govern-
ment, the order of the district eonrt
must be affirmed.
[178] The evidence before the com-
missioner, carried to the district court,
may be summarized as follows:
The government introduced the indict-
ment, and, with the admission by Gayon
that he was the person named thertin,
rested. This established a prima facie
case in the absence of other evidenee.
Tinsley v. Treat, 205 U. S. 20, 31, 51 L.
ed. 689, 694, 27 Sup. Ct. Rep. 430, and
cases cited.
Thereupon the testimony of the ac-
cused and of one Del Yillar was in-
troduced by appellant, a^d that of
Averitt by the government, which we
condense into narrative form:
For five years before the arrest, Del
Villar, a political exile from Mexico,
had maintained offices in New York,
from which he had conducted a system-
atic propaganda in the interest of Felix
Diaz and against the Mexican govern-
ment.
The accused, Gayon, is a Mexican citi-
zen, and during several administrations
prior to that of Carranza had served as
ponsul for the Mexican government at
Roma, Texas, and at other places within
and without the United States. For
about two years he had been secretary"
to Del Villar, and for some time prior
to his arrest was in the joint service
and pav of Del Villar and General An-
2. 52 r. s
1919.
GAYON V. McCarthy.
173-176
relio Blanquet, the latter then in Mexico,
serving with the forces of Diaz.
Naranjo was editor and publisher of
a newspaper at San 'Antonio, Texas,
called "Revista Mexicana" (Mexican
Review), which was opposed to the es-
tablished Mexican govefnment, and fa-
vorable to the revolutionists operating
in the interest of Diaz.
On December 12, 1918, Gayon wrote
from New York to Naranjo at San An-
tonio to secure an advertisement in the
Review for ''my work *E1 General Blan-
quet,"' saying: ''There are some rea-
sons that you may know in the next few
days why I want a big circulation of
the book,'' asking if he might send some
copies io be sold at the newspaper
[174J <^ce, and concluding: "I will
uwait your letters, hoping to give you
good news in my next letter."
On December 23, 1918, Gayon wrote
Naranjo, addressing him as "My dear
Friend," and saying that he had received
his letter of the 18th instant. In this
letter a discussion of the sale of his
book, "El General Blanquet," is followed
by comment on the activities of other
persons, in which he discourages new
projects and urges joining "with the Na-
tional Union Committees," which he
states had already passed the embryonic
state and now constitute a reality. He
condndes: "God grant us, now that we
are on the threshold of success, we may
leave aside our obstinate custom of pro-
jecting, and go ahead to produce results
exclusively."
On January 14, and again on January
21, 1919, he addressed Naranjo as "My
dear Friend," and discussed further ad-
vertising and circulating of his book.
This correspondence makes it clear
enough that Gayon, although in New
York, in December, 1918, and January,
1919, was * in close association with
Naranjo, and that the two were actively
engaged in promoting opposition to the
established Mexican government.
On January 5, 1919, Foster Averitt,
an American citizen, whose home was in
Texas, called at the office of Gayon, and
what passed between them is derived
from the testimony of the two, as fol-
lows:
Averitt had recently resigned from
the United States Naval Academy at
Annapolis, and, being without employ-
ment, says that he called at the office of
Gayon, for the purpose of securing, if
possible, a position in Mexico or Central
America as an engineer. He was wear-
ing his uniform as midshipman of the
United States Navy, and he first showed
64 Ti. ed.
Gayon some official papers, which the
latter did not read, and then said that
he was of the United States Navy, and
that he must go at once to Mexico to see
Generals Diaz and Blanquet personally.
He did not give [175] any reason for
desiring to see these men, but asked for
letters of introduction to them, which
Gayon refused until he could confer
with Del Villar. Averitt returned the
next day, and, after discussing with
Gayon conditions in Mexico, the location
of the several armed forces near the
border, and whether he should go by sea
to Vera Cruz or overland, he again left
for the day. On returning the next day
he received from Gayon two letters, one
addressed to Naranjo, at San Antonio,
and one to "General Aurelio Blanquet,
General Headquarters, Mexico."
Gayon had no knowledge of or ac-
quaintance with Averitt before his first
call at his office, and he did not present
any letters of introduction, but in the
letter to Naranjo Gayon introduced him
as "undertaking a trip to Mexico on
special mission to General Felix Dias
and Aurelio Blanquet," and requested
that he "supply him the necessary in«
formation to enable him to make his trip
as quickly as possible."
The letter which he gave to Averitt
addressed to General Blanquet opena
with this paragraph:
"The bearer, Mr. Foster Averitt, Ma-
rine Guard of the United States, will
inform you about the reasons for his
trip and of the work we are undertaking
here. I kindly request from you, after
meeting Mr. Foster [sic], to be good
enough to introduce him to General
Felix Diaz, as he wants to take up some
matters with both of you." i
The remainder of the letter explains
how he had given publicity to "the re-
cent successful arrival" of the General
in Mexico and the motives inspiring the
movement of reorganization under the
leadership of General Diaz. It predicts
early recognition by our government of
the belligerency of the Diaz insurgents,
and urges the General to write as often
as possible to enable "us to continue our
campaign of propaganda."
Supplied with these letters, Averitt
straightway went to San Antonio and
presented his letter to Naranjo, who,
[176] after some conferences with Imn,
gave him a letter to General Santiago
Mendoza, at Laredo, on the border. This
letter was presented to Mendoza, And
through him arrangements were made
for Averitt's crossing into Mexico with
two or three others, but they were ar-
515
175-178
SUPREME COURT OF THE UNITED STATES.
Oct.
rested by customs guards and the pro-
ceedings we are considering followed.
In the interviews in New York there
was suggestion of payment of expenses
and a commission for Averitt, but Gayon^
saying that the furnishing of either
would violate the neutrality laws
of the United States, told him tl\ere
would be no difficulty in his getting a
commission from General Blanquet on
his arrival in Mexico, and the last thing
he said to him when leaving was '^that
he expected that he should be at least
a colonel when he saw him again down
there." He told him it might be possible
to have his expenses made up to him
when he arrived in Mexico, and, as a
matter of fact, he received $15 from
General Mendoza at Laredo.
The statute which Gayon is charged
with violating provides that "whoever
within the territory or jurisdiction of
the United States • . . hires or re-
tains another ... to go beyond the
limits or jurisdiction of the United
States with intent to be enlisted . • .
in the service of any foreign . . .
people" shall be punished as provided.
And the overt acts charged in the indict-
ment are: that Gayon delivered to
Averitt at New York a letter addressed
to Naranjo, and at the same time gave
him instructions with respect to present-
ing it, and impliedly promised Averitt
that upon his arrival in Mexico he would
be given a commission in the army of
General Blanquet; that at the same time
he delivered to Averitt a letter ad-
dressed to General Blanquet, who was
then in Mexico, in command of revolu-
tionary forces; that Averitt visited and
held conferences with Naranjo, who
gave him a letter to Mendoza, at Laredo,
in the southern district of [177] Texas;
and that Averitt, under instructions re-
ceived from Naranjo, called upon and
conferred with Mendoza at Laredo, and
with him arranged to enter Mexico with
others, with intent to join the forces of
Diaz under General Blanquet.
While the narration of what took
place between Gayon and Averitt does
not show a hiring of the latter in the
ordinary sense of the word, yet, when
taken with the conduct of Averitt in
going immediately to Texas, and in at-
tempting to cross into Mexico, plainly,
it tends to show that Gayon retained
Averitt in the sense of engaging him to
go to Mexico, that he was induced to
516
enter into that engagement by the prom-
ise that he would be given a commission
in the forces of 'Diaz when he arrived
there, and that he would probably be
reimbursed for his expenses.
There was also evidence tending to
show that by communication and con-
certed action between Gayon, Naranjo,
and Mendoza, Averitt was induced to
go from New York to the border, and
would have succeeded in reaching Mexi-
co and joining the insurgent forces but
for the vigilance of the United States
officers who arrested him. The evidence
also is that Mendoza conferred with
Averitt and acted in promotion of the
conspiracy when in the southern dis-
trict of Texas, thus establishing the
jurisdiction of the court to which the
indictment was returned, under Hyde
V. United States, 225 U. S. 347, 66 L. ed.
1114, 32 Sup. Ct. Rep. 793, Ann. Cas.
1914A, 614, and Brown v. Elliott, 225 U.
S. 392, 56 L. ed. 1136, 32 Sup. Ct. Rep.
812.
The word "retain" is used in the stat-
ute as an alternative to "hire,'' and
means something different from the usu-
al employment with payment in money.
One may be retained, in the sense of
engaged, to render a service as effective-
ly by a verbal as by a written promise,
by a prospect for advancement or pay-
ment in the future as by the immediate
payment of cash. As stated long ago
by a noted Attorney General, in an opin-
ion dealing with this statute:
[178] "A party may be retained by
verbal promise or by invitation for a
declared or known purpose. If such a
statute could be evaded or set at naught
by elaborate contrivances to engage
without enlisting, to retain without hir-
ing, to invite without recruiting . , .
it would be idle to pass acts of Congress
for the punishment of this or any other
offense." 7 Ops. Atty. Gen. pp. 367, 378,
379.
This discussion of the record makes
it sufficiently clear that there was sub-
stantial evidence before the commission-
er and the court, tending to show that
§ 10 of the Criminal Code had been vio-
lated, and that there was probable cause
for believing the appellant guilty of
conspiring with Naranjo and Mendoxa
to compass that violation, as charged
in the indictment, and therefore the or-
der of the District Court must be af-
firmed.
151 V. S.
1»1». UNITED STATES* KX KKL. K. C. S. R. CO. v. INTERSTATE COM. COM.
UNITED STATES EX REL. KANSAS
CITY SOUTHERN RAILWAY COM-
PANY, Plff. in Err.,
V.
INTERSTATE COMMERCE COMMISSION.
(See S. C. Reporter's ed. 178-188.)
Interstate Commerce Commission —
physical valuation of railway prop-
erty ^ present cost of condemnation
or purchase ^ disregard of com-
mand of Congress.
The refusal of the Interstate Com-
merce Commission, when making the phys-
ical valuation of railway properties ordered
by the Act of March 1, 1913, § 10a, to
obey the command of ,that statute to in-
vestigate and find the 'present cost of con-
demnation and damages or of purchase in
excess of original cost or present value of
the railway company's lands, cannot be jus-
tified on the theory that such command in-
volves a consideration by the Commission
of matters **beyond the possibility of ra-
tional determination," and calls for "inad-
missible assumptions," and the indulging
in ''impossible hypotheses" as to subjects
"ineapaole of rational ascertainment," even
if it be conceded that the subject-matter
of the valuations in question, which the
statute expressly directed to be made, neces-
sarily opened a wide range of proof, and
called for the exercise of close scrutiny and
of scrupulous analysis and application.
[Matters as to Interstate Commerce Commls-
fllOD, see Interstate Commerce Commission.]
[No. 413.]
Argued December 10, 1010. Decided March
8, 1920.
IN ERROR to the Court of Appeals of
the District of Columbia to review a
jn^;ment which affirmed a judgment of
the Supreme Court of the District, re-
fusing to compel the Interstate Com-
merce Commission by mandamus to in-
vestigate and find the present cost of
condemnation and damages, or of pur-
chase in excess of original cost or pres-
ent value of railway property of which
the Commission was making a physical
valuation. Reversed with directions to
reverse the judgment of the trial court
and to direct that court to grant the
mandamus.
The facts are stated in the opinion.
Messrs. Lonis Marshall and Samuel W.
Moore argued the cause, and, with Mr.
SAmuel Unteruiyer, filed a brief for
plaintiff in error:
Where, as in this case, a plain duty is
imposed upon the Interstate Commerce
Commission, and it deelines to proceed
with "its performance, mandamus lies to
require it to act.
•4 li. ed.
J Interstate Commerce Commission v.
United States, 224 U. S. 474, 56 L. ed.
849, 32 Sup. Ct. Rep. 556; Lane v. Hog-
lund, 244 U. S. 174, 61 L. ed. 1066, 37
Sup. Ct. Rep. 558; Re Simons, 247 U. S.
231, 62 L. ed. 1094, 38 Sup. Ct. Rep.
497; United States ex rel. Louisville
Cement Co. v. Interstate Commerce
Commission, 246 U. S. 638, 62 L. ed. 914,
38 Sup. Ct. Rep. 408; Ex parte Metro-
politan Water Co. 220 U. S. 639, 66 L.
ed. 675, 31 Sup. Ct. Rep. 600; Ex parte
United States, 242 U. S. 27, 61 L. ed.
129, L.R.A.1917E, 1178, 37 Sup. Ct. Rep.
72, Ann. Cas. 1917B, 355; Ex parte
Connaway, 178 U. S. 421, 44 L. ed. 1134,
20 Sup. Ct. Rep. 951 ; Ketchum Coal Co.
V. District Ct. 48 Utah, 342, 4 A.L.R.
619, 169 Pae. 737; 26 Cye. 190.
The fact that there is no other remedy
available to the plaintiff* justifies its
right to seek relief by mandamus.
Ex parte Harding, 219. U. S. 363, 65
L. ed. 252, 37 L.R.A.(N.S.) 392, 31 Sup.
Ct. Rep. 324; Ex parte Park Square
Automobile Station, 244 U. S. 412, 61 L.
ed. 1231, 37 Sup. Ct. Rep. 732; Ex parte
Roe, 234 U. S. 70, 58 L. ed. 1217, 34
Sup. Ct. Rep. 722; Ex parte Slater, 246
U. S. 128, 62 L. ed. 621, 38 Snp. Ct. Rep.
266; Ex parte Hoard, 106 U. S. 578, 26
L. ed. 1176.
The action of the Interstate Commerce
Commission in deliberately disregarding
the mandate of Congress which required
the Commission, in express terms, to in-
vestigate and report separately the orig-
inal and present cost of condemnation
and damages or of purchase in excess of
the original cost or present value of all
lands, right of way, and terminals owned
or used for the purposes of a conunon
carrier, offends the fundamental canons
of statutory construction.
Lewis's Sutherland, Stat. Constr. §
86; Cope v. Cope, 137 U. S. 682, 685, 34
L. ed. 832, 833, 11 Sup. Ct. Rep. 222;
Dewey v. United States, 178 U. S. 510,
521, 44 L. ed. 1170, 1174, 20 gup. Ct.
Rep. 981; Washington Market Co. v.
Hoffman, 101 U. S. 115, 25 L. ed. 782;
United States v. Lexington Mills & Ele-
vator Co. 232 U. S. 399, 68 L. ed. 658.
L.R.A.1915B, 77*4, 34 Sup. Ct. Rep. 337;
Palmer v. Van Santvoord, 153 N. Y. 616,
38 L.R.A. 402, 47 N. E. 916; United
States V. Gooding, 12 Wheat. 460, 6 L.
ed. 693; Early v. Doe, 16 How. 616, 14
L. cd. 1081 ; Rice v. Minnesota & N. W.
R. Co. 1 Black, 379, 17 L. ed. 153; Piatt
V. Union P. R. Co. 99 U. S. 59, 25 L. ed.
427; United States v. Pisher, lOp U. S.
143, 27 L. ed. 885, 3 Sup. Ct. R^. 164;
Knight V. United Land Asso. 142 U. S.
S17
SUPREME COURT OF THE UNTTBD STATES.
Oct. Tebm,
161, 177, 35 L. ed. 974, 979, 12 Sup. Ct.
Rep. 258; Petri v. Commercial Nat. Bank,
142 U. S. 649, 650, 35 L. ed. 1145, 1146,
12 Sup. Ct. Rep. 325; United States v.
Oregon & C. R. Co. 164 U. S. 540, 41
L. ed. 545, 17 Sup. Ct. Rep. 165; Bar-
rett V. United States, 169 U. S. 228, 42
L. ed. 726, 18 Sup. Ct. Rep. 327; Bruns-
wick Terminal Co. v. National Bank, 192
U. S. 386, 396, 48 L. ed. 491, 495, 24 Sup.
Ct. Rep. 314; United States v. United
Verde Copper Co. 196 U. S. 207, 213,
49 L. ed. 449, 451, 26 Sup. Ct. Rep. 222 ;
Blair v. Chicago, 201 U. S. 400, 466, 467,
50 L. ed. 801, 828, 829, 26 Sup. Ct. Rep.
427; Louisville & N. R. Co. v. Mottley,
219 U. S. 467, 56 L. ed. 297, 34 L.R.A.
(N.S.) 671, 31 Sup. Ct. Rep. 265; Klau-
ber V. San Diego Street Car Co. 95 Cal.
353, 30 Pac. 556; The Harriman, 9 Wall.
172, 19 L. ed. 633; Reid v. Alaska Pack-
ing Co. 43 Or. 429, 73 Pac. 339; Hare,
Contr. 639.
The Commission having found the
average acreage market value of adja-
cent lands, and having applied it to the
plaintijFB right of way, and the plain-
tiff having accepted tms finding, it is
an easy and simple process to find the
present cost of condemnation and dam-
ages or of purchase, and the Commission
should be required to do so.
United States v. Grizzard, 219 U. S.
180, 183, 184, 56 L. ed. 165, 166, 31 L.R.A.
(N.S.) 1135, 31 Sup. Ct. Rep. 162; Bau-
man v. Ross, 167 U. S. 648, 574, 42 L.
ed. 270, 283, 17 Sup. Ct. Rep. 966; United
States V. Welch, 217 U. S. 333, 54 L. ed.
787, 28 L.R.A.(N.S.) 386, 30 Sup. Ct.
Rep. 627, 19 Ann. Cas. 680; High Bridge
Lumber Co. v. United States, 16 C. C.
A. 460, 37 U. S. App. 234, 69 Fed. 320;
South Buffalo R. Co. v. Kirkover, 176 N.
Y. 304, 68 N. B. 366; Lincoln v. Com.
164 Mass. 368, 41 N. E. 489; Hamilton
County V. Garrett, 62 Tex. 602; Kansas
City Southern R. Co. v. Second Street
Improv. Co. 256 Mo. 386, 166 S. W.
296; St. Louis, L M. & S. R. Co. v.
Theodore Maxfield Co. 94 Ark. 135, 26
L.R.A.(N.S.) 1111, 126 S. W. 83; Wichita
Falls & N. W. R. Co. v. Munsell, 38
Okla. 266, 132 Pac. 906; Kansas Postal
Teleg. Cable Co. v. Leavenworth Ter-
minal R. ft Bridge Co. 89 Kan. 418, 131
Pac. 143.
Problems much more serious have been
overcome.
Wakeman v. Wheeler & W. Mfg. Co.
101 N. Y. 205, 54 Am. Rep. 676, 4
N. E. 864; Schell v. Plumb, 55 N. Y.
592; Dennis v. Maxfield, 10 Allen, 138;
Simpson v. London & N. W. R. Co. L. R.
'^18
1 Q. B. Div. 274, 46 L. J. Q. B. N. S. 182,
33 L. T. N. S. 805, 24 Week. Rep. 294.
Messrs. W. G. Brantley, Sanford Rob-
inson, and Leslie Craven filed a brief as
amici curisB:
The Commission cannot question the
wisdom of Congress, nor can it refuse to
perform the duty imposed unless such
performance is absolutely impossible.
The Harriman, 9 Wall. 172, 19 L. ed.
633; Beebe v. Johnson, 19 Wend. 500,
32 Am. Dec. 518; Hare, Contr. 639.
The ruling in the Minnesota Rate
Cases, considered as a ruling upon a
principle of constitutional law, does not
affect the duty of the Commission to per-
form the acts specified in the Valuation
Act.
Cohen v. Virginia, 6 Wheat. 264, 6 L.
ed. 257; Kansas City Southern R. Co.
V. United States, 231 U. S. 423, 68 L. ed.
296, 52 L.R.A.(N.S.) 1, 34 Sup. Ot. Rep.
126 ; Northern P. R. Co. v. North Ameri-
can Teleg. Co. L.R.A.1916E, 672, 144 C.
C. A. 489, 230 Fed. 347.
The present cost of condemnation and
damages or of purchase of railroad lands
can be readily and accurately ascertained
in accordance with established legal
precedents.
Lewis, Em. Dom. 3d ed. chap. 20;
United States v. Grizzard, 219 U. S. 180,
183, 184, 55 L. ed. 165, 166, 31 L-RX
(N.S.) 1136, 31 Sup. Ct. Rep. 162; Lin-
coln V. Com. 164 Mass. 368, 41 N. K 489 ;
Rock Island & E. I. R. Co. v. Gordon,
184 111. 466, 56 N. E. 810; 15 Cyc. 722,
723; Lewis, Em. Dom. 3d ed. 705;
Sutherland, Damages, 1 1083; Faulk v,
Missouri River & N. W. R. Co; 28 S.
D. 1, 132 N. W. 233, Ann. Cas. 1913E,
1130; Blue Earth Count v v. St. Paul A
S. C. R. Co. 28 Minn. 503, 11 N. W. 73.
Mr. P. J. Farrell argued the^ cause and
filed a brief for defendant in error:
To estimate the present cost of con-
demnation and damages or of purchase
of lands included in appellant's railroad
is impossible, because it necessarily in-
volves unwarrantable and unlawful as-
sumptions.
Minnesota Rate Cases (Simpson v.
Shepard) 230 U. S. 352, 57 L. ed. 1511,
48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep.
729, Ann. Cas. 1916A, 18.
The court will not, by issuing a writ
of mandamus, require something to be
done which it is impossible to do.
Silsbv Mfg. Co. v. Allentown, 153 Pa.
319, 26* Atl. 646.
The decision of this court in the Min-
nesota Rate Cases is directly in pwit»
and should be given eontroUing influaioa,
951 U. ft.
1019. UNITED STATES EX REL. K. C. S. R. CX). v. INTERSTATE C. C. 182-184
Chicago & N. W. fi. Co. v. Smith, 210
Fed. 632 ; Louisville & N. R. Co. v. Rail-
road Commission, 208 Fed. 42; Ann Ar-
bor R. Co. V. Fellows, P.U.R.1917B, 523,
230 Fed. 392.
This court has approved the Commis-
sion's interpretation of the court's de-
cision in the Minnesota Rate Cases.
Denver v. Denver Union Water Co.
246 U. S. 178, 62 L. ed. 649, P.U.R.1918C,
640, 38 Sup. Ct. Rep. 278.
Mr. Chief Justice White delivered the
opinion of the court:
The Act of Congress of March 1, 1913
(37 Stat, at L. 701, chap. 92, Comp.
Stat. § 8591, 4 Fed. Stat. Anno. 2d ed. p.
495), amending the Act to Regulate Com-
merce, imposed the duty upon the In-
terstate Commerce Commission (§ 19a)
to "investigate, ascertain, and report the
value of all property owned or used by
every common carrier subject to the
provisions of this act." Specifying the
steps to be taken in the performance of
the general duties thus imposed, the
same section commanded as follows:
'^First. In such investigation said
Commission shall ascertain and report
in detail as to each piece of property
owned or used by said carrier for its
purposes as a common carrier • . •
the cost of reproduction new., the cost
of reproduction less depreciation, and
an analysis of the methods by which
these several costs arc obtained, and the
reasons for their differenced, if any
■ «Seio«d. Sueh'investigati'on and re-'
port shall state in detail and separately
from improvements the original eost of
all lands, rights of way, and terminals
owned or used for the purposes of a
conmion carrier, and ascertained as of
the time ^f dedication to public use,
and the present value of the same, and
separately the original and present cost
of condemnation and damages or of pur-
chase in excess of such original cost or
present value.
"Fifth. \ . \ [7th and 8th' par.]
Whenever the Commission shall have
completed the tentative valuation of the
property of any common carrier, as
herein directed, and before such valua-
tion shall become final, the Commission
shall give notice by registered letter to
the said carrier, . . . stating the
valuation placed upon the several [183]
classes of property of said carrier, and
shall allow thirty days in which to file a
protest of the same with the Commis-
sion. .
«4 L. ed
• •
"If notice of protest is filed the Com-
mission shall fix a time for hearing the
same, and shall proceed as promptly as
may be to hear and consider any mat-
ter relative and material thereto . . .
All final valuations by the Commission
and the classification thereof shall be
published and shall be prima facie evi-
dence of the value of the property in
all proceedings under the Act to Regu-
late Commerce as of the date of the fix-
ing thereof, and in all judicial proceed-
ings for the. enforcement of the act
approved February 4th, 1887, commonly
known as *the Act to Regulate Com-
merce,' and the various acts amendatory
thereof, and in all judicial proceedings
brought to enjoin, set aside, annul, or
suspend, in whole or in part, any order
of the Interstate Commerce Commission."
Pursuant to these requirements the
Commission proceeded to investigate and
report the value of the property of the
Kansas City Southern Railway Com-
pany. Upon completing a tentative
valuation, the Commission gave the no-
tice required by the statute to the rail-
way company, which thereupon filed a
protest against such valuation on the
g^und that in making it the Commis-
sion had failed to consider and include
the 'present cost of condemnation and
damages or of purchase in excess of such
original cost or present value.'' Upon
the subject of the protest, the railway
company took a large amount of testi-
mony, and much was also taken by the
Conmiission, both parties having in-
curred considerable expense in the mat-
ter.
Pending this situation, in order that
the excessive expense of taking each in-
dividual parcel and showing what it
would cost to acquire it or a right of
way over it by purchase or condemnation
might be avoided, an agreement [184]
was entered into between the Director of
the Bureau of Valuation of the Com-
mission, C. A. Prouty, and the railway
company, that in the event the Commis-
sion should decide that evidence upon
the cost of acquiring land by purchase
or condemnation would be received by
it, the Bureau of Valuation would recom-
mend to the Commission the percentage
or multiplier of the naked value of the
land, to be used for the purpose of reach-
ing the railway cost of acquiring the
same.
At that time there was also pending
a protest concerning a tentative valua-
tion made bv the Commission as to the
property of the Texas Midland Rail-
road Companv, raising the same ques-
519
184-186
SUPREME COURT OF THE UNITED STATES.
OoT-
tion as to error committed in failing to
carry out the provisions of the statute
concerning the present cost of condem-
nation, etc., in which case the Commis-
sion overruled the protest, holding that
the provision of the statute in question
was not susceptible of being enforced or
acted upon for reasons stated by the
Commission in part as follows (1 Val.
Rep. pp. 54 et seq.) :
"However, the direction in paragraph
entitled 'Second' for the ascertainment
of the present cost of condemnation and
damages or of purchase in effect calls
for a finding as to the cost of repro-
duction of these lands. Must this be
done, and can this be done? It seems
elementary that the cost of reproduc-
tion can be estimated only by assuming
that the thing in question is to be pro-
duced again, and that if it is to be pro-
duced again, it is to be taken as not ex-
istent. It seems sophistry to contend that
the lands of the railroad can be produced
again at a cost to the railroad without
first making the assumption that they
are no longer lands of the railroad; and
this necessary assumption carries with
it the mental obliteration of the railroad
itself.
"Considerable testimony was produced
to the effect that in the acquisition of a
railroad right of way it is necessary for
the carrier to pay sums in excess of the
valhe of [185] the land if measured by
fhe present or market value of similar
contiguous lands, and this because of the
elements which have been enumerated
and embraced in the protest, such as cost
of acquisition, damages to the severed
property, cost of buildings and other
improvements, accrued taxes, and vari-
ous incidental rights.
........
"We are unable to distinguish be-
tween what is suggested by the carrier
in this record and nominally required by
the act and what was condemned by
the court [in the Minnesota Rate Cases
(Simpson v. Shepard) 230 U. S. 352,
57 L. ed. 1511, 48 L.R.A.(N.S.) 1151, 33
Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18]
as beyond the possibility of rational de-
termination; nor is there any essential
difference in the actual methods there
employed and those now urged upon us.
Before we can report figures as ascer-
tained, we must have a reasonable foun-
dation for our estimate, and when, as
here, if the estimate can be made only
upon inadmissible assumptions, and up-
on impossible hypotheses, such as those
pointed out by the Supreme Court in the
opinion quoted, our duty to abstain
r»20
from reporting as an ascertained faet
that which is incapable of rational ascer-
tainment is clear.
........
"Because of the impossibility of mak-
ing the self-contradictory assumptions
which the theory requires when applied
to the carrier's lands, we are unable to
report the reproduction cost of such
lands or its equivalent, the present cost
of acquisition and damages, or of pur-
chase in excess of present value. The
present value of lands as found by ns
appears in the final valuation, appended
hereto.'*
Applying the ruling thus made to the
protest which was pending in this case,
the Commission gave notice to the rail-
way that the agreement made with the
Director of the Bureau of Valuation con-
cerning the method of proof would be
treated as not further operative; and
thereafter, when an offer was made by
the railway before an examiner [186] of
the Commission of further testimony con-
cerning the subject in hand, it was ex-
cluded because in conflict with the rul-
ing announced in the Midland Case. The
Commission sustained this action of the
examiner on the ground that that officer
had rightly held that the ruling in the
Midland Case was controlling; and the
Commission therefore decid^ that no
further testimony on the particular sub-
ject would be heard in this case, and
that it would make no report concerning
that subject.
This suit was then brought to obtain
a mandamus to compel the Commission
to hear the proof and act upon it under
the statute. The amended petition, after
reciting the facts as we have outlined
them and making the appropriate forma)
averments to justify resort to mandamus,
alleged :
"That the refusal of respondent to in-
vestigate and find such present cost of
condemnation and damages or of pur^
chase in excess of original cost or pres-
ent value of relator's lands will result in
great wrong and injury to relator; by
way of illustration, such refusal will re-
sult in a finding by respondent of a value
of but $60,000 with respect to parcels of
land acquired by relator by judicial
award in condemnation proceedings dur-
ing four years immediately preceding
such valuation at an actual cost to rela-
tor of $180,000; and in the aggregate
will result in a finding with respect to
said lands at least $5,000,000 less than
the value so directed by the act of Con-
gress above mentioned to be found.^
It was further averred, with oonsid-
252 r. s.
1019.
EISNER V. MACOMBER.
ibo-J8y
erable elaboration, that the petitioner
stood ready to produce proof to meet the I
requirements of the statute which was
neither speculative nor impossible to be
acted upon, since it would conform to
the character of proof usually received
in judicial proceedings involving the ex-
ercise of eminent domain.
The Commission in its answer, either
stating or conceding [187] the history
of the case as we have recited it, and
summarily reiterating the grounds for
the refusal by the Commission to receive
the proof or report concerning it, chal-
lenged the right to the relief sought. A
demurrer to the answer as stating no
defense was overruled by the trial court,
which denied relief without opinion. In
the court 6f appeals, two judges sitting,
the judgment of the trial court was af-
firmed by a divided court, also without
opinion, and the case is here on writ of
error to review that judgment.
It is obvious from the statement we
have made, as well as from the char-
acter of the remedy invoked, — manda-
mus,— that we are^ required to decide,
not a controversy growing out of duty
performed under the statute, but one
solely involving an alleged refusal to
discharge duties which the statute ex-
acts. Admonishing, as this does, that
the issue before us is confined to a con-
sideration of the face of the statute and
the nonaction of the Commission in a
matter purely ministerial, it serves also
to furnish a ready solution of the ques-
tion to be decided, since it brings out in
bold contrast the direct and express com-
mand of the statute to the Commission,
to act concerning the subject in hand,
and the Commission's unequivooal re-
fusal to obey such command.
It is true that the Commission held
that its nonaction was caused by the
fact that the command of the statute in-
volved a consideration by it of matters
^'beyond the possibility of rational de-
termination,'' and called for 'inadmis-
sible assumptions,'' and the indulging in
^'impossible hypotheses" as to subjects
'^incapable of rational ascertainment,"
and that such conclusions were the nec-
essary consequence of the Minnesota
Rate Cases (Simpson v. Shepard), 230
U. S. 362, 57 L. ed. 1511, 48 L.B.A.(N.S.)
1151, 33 Sup. Ct. Rep. 729, Ann. Cas.
1916A, 18.
We are of opinion, however, that,
considering the face of the statute and
the reasoning of the Commission, it re-
sults that the conclusion of the Com-
mission was erroneous, an error which
was exclusivelv caused by a mistaken
•4 li. ed.*
[188] conception by the Commission of
its relation to the subject, resulting in an
unconscious disregard on its part of the
power of Congress and an unwitting as-
sumption by the Commission of author-
ity which it did not possess. And the
significance which the Commission at-
tributed to the ruling in the Minnesota
Rate Cases, even upon the assumption
that its view of the ruling in those cases
was not a mistaken one, but illustrates
in a different form the disregard of the
power of Congress which we have just
pointed out, since, as Congress indis-
putably had the authority to impose up-
on the Commission the duty in question,
it is impossible to conceive how the
Minnesota Rate ruling could furnish
ground for refusing to carry out the
commands of Congress, the cogency of
which consideration is none the less
manifest though it be -borne in mind
that the Minnesota Rate Cases were de-
cided after the passage of the act in
question.
Finally, even if it be further con-
ceded that the subject-matter of the
valuations in question which the act of
Congress expressly directed to be made
necessarily opened a wide range of proof,
and called for the exercise of close scru-
tiny and of scrupulous analysis in its
consideration and application, such as-
sumption, we are of opinion, affords no
basis for refusing to enforce the act of
Congress, or what is equivalent thereto,
of exerting the general power which the
act of Congress gave, and at the same
time disregarding the essential condi-
tions imposed by Congress upon its ex-
ercise.
The judgment of the Court of Appeals
is therefore reversed with directions to
reverse that of the Supreme Court, and
direct the Supreme Court "to grant a
writ of mandamus in conformity with
this opinion.
(1891 MARK EISNER, as Collector of
United States Internal Revenue for the
Third Diptrict of the State of New York,'
Plff. in Err.,
V.
MYRTLE H. MACOMBKIL
(See S. C. Reporter's ed. 189-238.)
Internal revenue — Income tax — stock
dividends.
1. Congress was given no power by
the income tax amendment to the Federal
ConRtitution to tax, without apportion-
ment, as income of a stooklioldrr in a cor-
^21
SLl'UEME COUKX OF TUK UNITED STATES.
Oct. Tkbii,
poration, a 8tock dividend made lawfully
and in good fffith against accumulated
profits earned by the corporation since the
adoption of such amendment. Such divi-
dends are not income.
[For other casea, see Internal Revenue, I. b ;
III. b, In Digest Sup. Ct. 1008.]
Internul revenue — construction of in-
come tax amendment — apportion-
ment of direct tax.
2. The income tax amendment to the
Federal Constitution should not be extend-
ed by loose construction so as to repeal
or modify^ except as applied to income,
those provisions of the Constitution that
require an apportionment according to
population for direct taxes upon property,
real and personal.
[For other cases, see Internal Revenne, I. b;
III. b. in Digest Sup. Ct. 1908.]
Internal revenue — apportionment of
direct tax — stockholder's Interest
In undivided profits.
3. The constitutional inhibition against
the taxation by Congress without appor-
tionment of a stockholder's interest in
the undivided accumulated earnings of a
corporation is not removed by the* adop-
tion of the income tax amendment.
[For other cases, see Internal Revenue, I. b;
nh b. in Digest Sop. Ct 1008.]
[No. 318.]
Argued April 16, 1919. Restored to docket
for reargument May 19, 1019. Reargued
October 17 and 20, 1919. Decided March
8, 1920.
IN ERROR to the District Court of the
United States for the Soathem Dis-
trict of New York to review a judgment
in favor of plaintiff in an action against
a collector of internal revenue to recover
back the amount of an income tax paid
on a stock dividend. Affirmed.
The facts are stated in the opinion.
Assistant Attorney Qeneral Frierson
a|*gued the cause and filed a brief for
])lain(iff in ^Tror:
Income, in general, as used in both the
Corporation Excise Tax Law of 1909 and
the Income Tax Law of 1913, has been
defined as the gain derived from capital,
from labor, or from both combined.
Strat ton's Independence v. Howbert,
231 U. S. 399, 415, 58 L. ed. 285, 292,
34 Sup.Ct. Rep. 136; Doyle v. Mitchell
Note. — On stock dividends as income —
see notes to Towne v. Eisner, L.R.A.
1918D, 254; Trefry v. Putnam, L.R.A.
1917F, 814; Re Heaton, L.R.A.1916D,
211; Re Osborne, 50 L.R.A.(N.S.) 510;
Newport Trust Co. v. Van Rensselaer,
35 L.R.A.(N.S.) 563; and Holbrook v.
llolbrook, 12 L.R.A. (N.S.) 768.
See also note to this case as reported
in 0 A.I^R. 1594.
522
Bros. Co. 247 U. S. 183, 185, 62 L. ed.
1058, 1059, 38 Sup. Ct. Rep. 467.
Stockholders have such an interest ia
the earnings and profits of a corporation
that the same are within the power of
Congress to tax as income even before
they are divided.
Collector v. Hubbard (Brainard v.
Hubbard) 12 Wall. 1, 20 L. ed. 272;
Southern P. Co. v. Lowe, 247 U. S. 330.
336, 62 L. ed. 1142, 1147, 38 Sup. Ct. Rep.
540; Lynch v. Turrish, 247 U. S. 221, 228,
62 L. ed. 1087, 1092, 38 Sup. Ct. Rep.
537; Bailey v. New York C. & H. R. R.
Co. 22 Wall. 604, 635, 636, 22 L. ed. 840,
848, 849; Lynch v. Hornby, 247 U. S. 339,
343, 62 L. ed. 1149, 1151, 38 Sup. Ct.
Rep. 543.
Congress having the right to tax un-
divided profits, this right cannot be de-
stroyed by the issuance of stock cer-
tificates to represent such undivided
profits, and since the certificates of stock
issued in this case represent earnings of
the corporation accruing subsequent to
March 1, 1913, they are clearly made
taxable as income by the Act of 1916.
Peabody v. Eisner,* 247 U. S. 347, 62
L. ed. 1152, 38 Sup. Ct. Rep. 546; Bailey
V. New York C. & H. R. R. Co. 22 Wall.
604, 635, 22 L. ed. 840, 848 ; Swan Brew-
ery Co. V. Rex [1914] A. C. 234, 83 L. J.
P. a N, B- 134, 110 L. T. N. S. 211, 30
Tjmes lu R. 199.
Towne V. Eisner, 245 U. S. 418, 62 L.
ed. 372, L.R.A.I9I8D, 254, 38 Sup. Ct.
Rep. 158^ does not control this case.
(1) Thi^t case merely decides that the
stock, dividends then before the court,
paid put of earnings accruing prior to
March J., 1913, were not income within
the meaning of the Act of 1913. Noth-
ing said in the opinion can be construed
as* challenging the power of Congress to
tax, aa the income of stockholders, the
profits of a corporation even before they
are divided, and much less to tax a cer-
tificate of stock issued to represent such
profits.
(2) The most that can be said of the
opinion is that it holds that the term
"dividend," in its ordinary acceptation,
does not include st<)ck dividends, and
that since the Act of 1913 used the term
"dividend" without qualification, stock
dividends were not taxable under it.
Gibbons v. Mahon, 136 U. S. 549, 559,
560, 34 L. ed. 525, 527, 528, 10 Sup. Ct.
Rep. 1057.
(3) The Act of 1916, however, expres^r
ly taxes stock dividends, and henee
Towne v. Eisner, supra, is not oontrol-
liug.
tsi V. a.
iUiy,
KISNEK V. MACOMBKlt.
The case of Lynch v. Hornby, 247 U.
S. 339, 62 L. ed. 1149, 38 Sup. Ct. Rep.
543, holding that cash dividends are to
be treated as income for the year in
which received, whether paid out of
earnings accruing before or after March
1, 1913, in view of the reasons stated for
the holding, would not have been incon-
sistent with a holding that stock divi-
dends were taxable when representing
earnings accruing after March 1, 1913,
but not taxable when representing earn-
ings accruing before that date. But
whether such holdings would have been
inconsistent or not, the holding in Lynch
V. Hornby, supra, is not controlling in
this case, since the Act of 1916 makes it
plain that dividends, whether paid in
cash or. stock, are to be taxed only when
they represent earnings accruing after
Maroh 1, 1913.
While Gibbons v. Mahon, supra, holds
that, as between a life tenant and a re-
mainderman, stock dividends are not in-
come, that case arose in the District of
Ck^lmnbia, involves no Federal question,
and is not controlling in similar cases
arising in the state courts. As a matter
of faet, most of the stat^ courts have
adopted a different ruling and hold that
stock dividends are income. In the Act
of 1916| therefore, Congress was clearly
within its power when it declared that
\yy ''diyidends-' it meant either cash or
stock dividends, in accordance with the
meaning of the term as understood and
construed by the courts of most of the
states.
. Piitchitt V. NashviUe Trust Co. 96
Tenn. 472, 33 LJR.A. 856, 36 S. W. 1064;
Thdsias v. Gregg, 78 Md. 645, 28 Atl.
566; McLouth v. Hunt, 154 N. Y. 179,
39 LJIA. 230, 48 N. E. 548; Pabst's WiU,
146 Wis. 330, 131 N. W. 739; Lord v.
Brooks, 52 N. H. 72; Hite v. Hite, 93
Ky. 257, 1^9 L.R.A. 173, 40 Am. St Rep.
189, 20 S. W..778; Moss's Appeal, 83
Pa. 264, 24 Am. Rep. 164; Paris v.
Paris, 10 Ves. Jr. 185, 32 Eng. Reprint,
815; Tax. Comr. v. Putnam (Trefry v.
Putnam) 227 Mass. 522, L.R.A.1917P,
806; 116 N. E. 904; Re Osborne, 209 N.
Y. 450, 50 L.R.A.(N.S.) 510, 103 N. E.
723, 823, Ann. Cas. 1915A, 298; Goodwin
V. McGaughey, 108 Minn. 248, 122 N. W.
6..*
\tr. Oharles £. Hughes argued the
cause, and/ with Mr. George Welwood
Murray, filed a brief for defendant in
en?9E:
•tThe tax is sought to be laid upon the
property in question solely by reason of
ownclrship, and cannot be sustained un-
€4 L. od.
less it is authorized by the 16th Amend-
ment.
Pollock V. Farmers' Loan & T. Co. 158
U. S. 601, 637, 39 L. ed. 1108, 1125, 15
Sup. Ct. Rep. 912; Brushaber v. Union
P. R. Co. -240 U. S. 1, 18, 19, 60 L. ed.
493, 501, 502, L.R.A.1917D, 414, 36 Sup.
Ct. Rep. 236, Ann. Cas. 1917B, 713;
Flint V. Slone Tracy Co. 220 U. S. 107,
55 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 1312; Stratton's Independ-
ence V. Howbert, 231 U. S. 399, 58 L. ed.
285, 34 Sup. Ct. Rep. 136; Doyle v.
Mitchell Bros. Co. 247 U. S. 179, 183,
183, 62 L. ed. 1054, 1058, 1059, 38 Sup.
Ct. Rep. 467; Hays v. Gauley Mountain
Coal Co. 247 U. S, 189, 191, 192, 02 L.
ed. 1061-1063, 38 Sup. Ct. Rep. 470;
Stanton v. Baltic Min. Co. 240 U. S. 103,
60 L. ed. 546; 36 Sup. Ct. Rep. 278; Wil-
liam E. Peck & Co. V. Lowe, 247 U. S.
165, 172, 62 L. ed. 1049, 1050, 38 Sup.
Ct. Rep. 432; Southern P. Co. v. Lowe,
247 U. S. 330, 335, 62 L. ed. 1142, 1147,
38 Sup. Ct. Rep. 540.
The fundamental fact is that there. was
no gain or income to the defendant in
error by virtue of the receipt of the ad-
ditional shares constituting the stock'
dividend. The value of the shares held
by the defendant in error was not in-
creased by the increase in the number of
shares. The shareholder was no richer
than before.
Towne v. Eisner, 245 U. S. 418, 62 L.
ed. 372, L.R.A.1918D, 254, 38 Sup. Ct.
Rep. 158.
The tax cannot be sustained as a tax
laid upon the shareholder's interest in
the undivided profits of the corporation.
Apart from the serious question of ^the
validity of such a tax, as an income tax,
that was not the scheme of the a^t, 'It
is sought to lay the tax in question upon
the so-called "stock dividend" per se;
that is, upon the mere readjustment of
the evidence of a capital interest already
owned.
Collector v. Hubbard (Brainard v.
Hubbard) 12 Wall. 1, 20 L. ed. 272; Gib-
bons V. Mahon, 136 U. S. 549, 560^ 34
L. ed. 525, 527, 10 Sup. Ct. Rep. 1057 ;
Michigan C. R. Co. v. Collector (Mich-
igan C. R. Co. V. Slack) 100 U. S. 695,
698, 25 L. ed. 647, 648; United States v.
Erie R. Co. 106 U. S. 327, 329-331, 27
L. ed. 161, 154, 1 Sup. Ct. Rep. 223;
Barnes v. Philadelphia & R. R. Co. 17*
WaU. 294, 809, 319, 21 L, ed. 644, 648,
551; United States v. Baltimore & 0. R.
Co. 17 Wall. 322, 21 L. ed. 597; Stock-
dale V. Atlantic Ins. Co. 20 Wall. 323,
329, 337, 22 L. ed. 348, 350/ 353; Bailey
V. New York C. & H. R. R. Co. 22 Wall
529
SUPREME COURT OF THE UNITED STATES.
Oct. Term
604, 22 L. ed. 840; Bailey v. New York
C. & H. R. R. Co. 106 U. S. 109, 27 L. ed.
81, 1 Sup. Ct Rep. 62; Memphis & C. R.
Co. V, United States, 108 U. S. 228, 234,
27 L. ed. 711, 71?, 2 Sup. Ct. Rep. 482 ;
United States v. Louisville & N. R. Co.
33 Fed. 831; Pollock v. Farmers' Loan
& T. Co. 157 U. S. 578, 636, 639, 39 L.
ed. 818, 838, 839, 15 Sup. Ct. Rep. 673;
Southern P. Co. v. Lowe, 247 U. S. 330,
336, 62 L. ed. 1142, 1147, 38 Sup. Ct. Rep.
540; Hylton v. United States, 3 Dall. 171,
1 L. ed. 656; Pacific Ins. Co. v. Soule, 7
Wall. 433, 443, 19 L. ed. 96, 98; Veazie
Bank v. Fenno, 8 Wall. 533, 541, 546,
19 L. ed. 482, 485, 487; Brushaber v.
Union P. R. Co. 240 U. S. 1, 19, 60 L. ed.
493, 502, L.R.A.1917D, 414, 36 Sup. Ct.
iEep. 236, Ann. Cas. 1917B, 713; Towne
V. Eisner, 245 U. S. 418, 62' L. ed. 372,
L.R.A.1918D, 254, 38 Sup. Ct. Rep. 158.
So {ar as the present question is con-
eemed, the word "income" in the 16th
Amendment has no broader meaning than
the word "income'^ in the Income Tax
Act of 1913, under which the question
arose in the Towne Case.
• Towne v. Eisner, supra; Lynch v.
Hornby, 247 U. S. 344, 345, 62 L. ed.
1151, 1152, 38 Sup. Ct. Rep. 543; Swan
Brewery Co. v. Rex [1914] A. C. 231, 83
L. J. P. C. N. S. 134, 110 L. T. N. S.
211, 30 Times L. R. 199; Tax Comr. v.
Putnam (Trefry v. Putnam) 227 Mass.
522, LJI.A.1917F, 806, 116 N. E. 904-
Stock dividends of the sort here in
question are not income within the mean-
ing of the 16th Amendment.
People ex rel. Union Trust Co. v.
Coleman, 126 N. Y. 438, 12 L.R.A. 762, 27
N. E. 818; Kaufman v. Charlottesville
Woolen Mills Co. 93 Va. 675, 25 S. E.
1003; Williams v. Western U. Teleg. Co.
93 N. Y. 189; De Koven v. Alsop, 205
111. 309, 63 L.R.A. 587, 68 N. E. 930;
Qray v. Hemenway, 212 Mass. 239, 98
N. E. 789; Spooner v. Phillips, 62 Conn.
68, 16 L.R.A. 461, 24 Atl. 524; Green
V. Bissell, 79 Conn. 551, 8 L.R.A.(N.S.)
1011, 118 Am. St. Rep. 156, 65 Atl. 1056,
9 Ann. Cas. 287; Terry v. Eagle Lock
Co. 47 Conn. 141; Brinley v. Grou, 50
Conn. 66, 47 Am. Rep. 617; Bouch v.
Sproule, L. R. 12 App. Cas. 385, 56 L. J.
Ch. N. S. 1037, 57 L. T. N. S. 345, 36
Week. Rep. 193; Jones v. Evans [1913]
1 Ch. 23, 82 L. J. Ch. N. S. 12, 107 L. T.
N. S. 604, 57 Sol. Jo. 60, 19 Manson, 397;
Carson V. Carson [1915] 1 Ir. R. 321;
Guinne*s8 v. Guinness, 6 Sc. Sess. Cas. 5th
series, 104; Minot v. Paine, 99 Mass. 101,
96 Am. Dec. 705; Davis v. Jackson, 152
Mass. 68, 23 Am. St. Rep. 801, 25 N. E.
21; D'Ooge v. T^eds, 176 Mass. 558, 57
584
N. E. 1025; Hyde v. Holmes, 198 Mass.
287, 84 N. p. 318; Brown's Petition, 14
R. L 373, 51 Am. Rep. 397; Billings v.
Warren, 216 111. 281, 74 N. E. 1050 ; Lan-
caster Trust Co. V. Mason, 152 N. C.
660, 136 Am. St. Rep. 851, 68 S. E. 235 ;
Great Western Min. & Mfg. Co. v. Har-
ris, 63 C. C. A. 51, 128 Fed. 326f Kepner
V. United States, 195 U. S. 100, 124, 49
L. ed, 114, 122, 24 Sup. Ct. Rep. 797,
1 Ann. Cas. 655; Latimer v. United
States, 223 U. S. 501, 504, 56 L. ed. 526,
527, 32 Sup. Ct. Rep. 242.
A genuine dividend constitutes a debt
between the corporation and the share-
holders.
King V. Paterson & H. R. R. Co. 29
N. J. L. 504; Hunt v. O'Shea, 69 N. H.
600, 45 Atl. 480; Lockhart v. Van Al-
styne, 31 Mich. 76, 18 Am. Rep. 156;
Stoddard v. Shetucket Foundry Co. 34
Conn. 542.
Once declared. It may not be rescinded.
Beers v. Bridgeport Spring Co. 42
Conn. 17; Staats v. Biograph Co. L.R.A.
1917B, 728, 149 C. C. A. 506, 236 Fed.
454.
And an action may be brought on the
debt.
King V. Paterson & H. R. R. Co. 29
N. J. L. 504; Hunt v. O'Shea, 69 N. H.
600, 45 Atl. 480; Lockhart v. Van Al-
styne, 31 Mich. 76, 18 Am. Rep. 156;
Stoddard v. Shetucket Foundry Co. 34
Conn. 542.
There has been a general agreement
that stock dividends declared during a
trust life estate, which are based on earn-
ings made by the corp>oration prior to
the creation of the trust, are not income,
— ^a position fatal to the contention th«t
stock dividends are income per se.
Re Osborne, 209 N. Y. 477, 50 L.R.A.
(N.S.) 510, 103 N. E. 723, 823, Ann.
Cas. 1915A, 298; Day v. Faulks, 81 N. J.
Eq. 173, 88 Atl. 384.
When the cash dividend is declared
and the amount is received, the share-
holder obtains something which he owns
and which he may reinvest or not, as he
pleases. He receives property in his ex-
clusive ownership, and he exercises the
freedom of choice. In the case of a
stock dividend he obtains nothing but
an evidence of what he already owns;
he has no freedom to invest or not in-
vest; and the investment is permanently
capitalized. ,
Davis V. Jackson, 152 Mass. 58, 23 Am.
St. Rep. 801, 25 N. E. 21.
Income may be defined as the gain de-
rived from capital, from labor, or from
both combined.
Strat ton's Independence v. Howbort»
258 r. 8.
1919.
EISNER V. MACOMBER.
199, 200
231 U. S. 399, 415, 68 L. ed. 285, 292,
34 Sup. Ct. Rep. 136; Doyle v. Mitchell
Bros. Co. 247 U. S. 179, 185, 62 L. ed.
1054, 1059, 38 Sup. Ct. Rep. 467; Selig-
man, Income Tax, p. 19.
Of course it is not denied that income
may be in the form of property, although
it is well settled that, in construing an
Income Tax Act, income is taken to mean
money in the absence of any special pro-
vision of law to the contrary, and not
the mere expectation of receiving it
(United States v. Schillinger, 14 Blatchf.
71, Fed. Cas. No. 16,228). If, however,
the act reaches property, and not sim-
ply money, it must still be property that
oonstitutes ^n or income. It is not
income simply because it is property.
The courts have always recognized that
mere appreciation in value of capital as-
sets is not to be called income.
Gray v. Darlington, 15 Wall. 63, 66,
21 L. ed. 45, 46; Lynch v. Turrish, 247
U. S. 221, 231, 62 L. ed. 1087, 1093, 38
Sup. Ct. Rep. 537; Baldwin Locomotive
Works V. McCoach, 136 C. C. A. 660, 221
Fed. 59; Lynch v. Hpmby, 247 U. S. 339,
62 L. ed. 1149, 38 Sup. Ct. Rep. 543;
Tehran (Johore) Rubber Syndicate v.
Farmer, S. T. 5 Income Tax Cad.. 658;
Stevens v. Hudson Bay Co. 5 Income Tax
Cas. 424; Assets Co. v. Inland Revenue,
4 Se. Bess. Cas. 4th series, p. 578.
Messrs. George W. Wickersham and
Charles Robinson Smith filed a brief as
amici curisB:
The principle laid down by this court
in two well-considered cases (Gibbons v.
Mahon, 136 U. S. 549, 34 L. ed. 525, 10
Sup. Ct. Rep. 1057, and Towne v. Eisner,
245 U. S. 418, 62 L. ed. 372. L.R.A.1918D.
254, 38 Sup. Ct. Rep. 158), that stock
dividends represent capital, and do not
constitute income, is based on sound ec-
onomic reasoning.
Seligman, Principles of Economics,
7th ed. pp. 16, 17; Fisher, Nature of
Capital & Income, p. 103; Seligman, Are
Stock Dividends Income t reprinted from
September. 1919, number of American
Economic Review; 3 Bulletin of National
Tax Aflso. April-June, 1918, pp. 161, 237,
240.
If gains in general and paper gains
may properly be considered income, then
this would hold true of mere apprecia-
tion in value of real estate or of personal
property that is not sold, — a gain that is
not realized. But this sort of apprecia^
tion or gain in capital value can never
constitute income within the 16th
Amendment.
Gray v. Darlington, 15 Wall. 63, 21
«4 li. ed.
L. ed. 45; Lynch v. Turrish, 247 U. S.
221, 231, 62 L. ed. 1087, 1093, 38 Sup. Ct.
Rep. 537; Baldwin Locomotive Works
V. McCoach, 136 C. C. A. 660, 221 Fed.
59; Towne v. Eisner, 245 U. S. 418, 62
L. ed. 372, L.R.A.1918D, 254, 38 Sup. Ct.
Rep. 158.
It cannot be doubted that the sort of
gain referred to by this court as consti-
tuting income was a realized gain, — not
the gain of mere appreciation in value.
Stratton's Independence v. Howbert,
231 U. S. 399, 415, 58 L. ed. 285, 292, 34
Sup. Ct. Rep. 136; Doyle v. Mitchell
Bros. Co. 247 U. S. 183, 185, 62 L. ed.
1058, 1059, 38 Sup. Ct. Rep. 467.
In the interpretation of statutes levy-
ing taxes, it is the established rule not
to extend their provisions, by implica-
tion, beyond the clear import of the
language used, or to enlarge their oper-
ations so as to embrace matters not spe-
cifically pointed out.
Gould V. Gould, 245 U. S. 151, 153, 62
L. ed. 211, 213, 38 Sup. Ct. Rep. 53.
Language used in a statute which has
a settled and well-knowp meaning sanc-
tioned by judicial decision is presumed
to be used in that sense by the legislative
body.
Latimer v. United States, 223 TJ. S.
501, 504, 56 L. ed. 526, 527, 32 Sup. Ct.
Rep. 242; Kepner v. United States, 195
U. S. 100, 124, 49 L. ed. 114, 122, 24 Sup.
Ct. Rep. 797, 1 Ann. Cas. 655; The Ab-
bottsford, 98 U. S. 440, 25 L. edi 168.
Mr. Justice Pitliey delivered the opin-
ion of the court:
This case presents the question wheth-
er, by virtue of the 16th Amendment,
Congress has the power to tax, as in-
come of the stockholder and without
apportionment, a stock dividend made
lawfully and in good faith against profits
accumulated by the corporation since
March 1, 1913.
It arises under the Revenue Act of
September 8, 1916 (chap. 463, 39 Stat,
at L. 756 et seq., Comp. Stat. § 6336a,
Fed. Stat. Anno. Supp. 1918, p. 312),
which, in our opinion (notwithstanding
a contention of the government that will
be [200] noticed), plainly evinces the
purpose of Congress to tax stock divi-
dends as income.^
1 Title I. — Income Tax.
Part I. — On Individuals.
Sec. 2 (a) That, subject only to such ex-
emptions and deductions as are hereinafter
allowed, the net income of a taxable person
shall include gains, profit*^, and income de-
525
200-202
SUPREME COURT OF THE UNITED STATES.
Oct. Tesu
The facts, in outline, are as follows:
On January 1, 1916, the Standard Oil
Company of California, a corporation of
that state, out of an authorized capital
stock of $100,000,000, had shares of
stock outstanding, par value $100 each,
amounting in round figures to $50,000,000.
In addition, it had surplus and undivided
profits invested in plant, property, and
business, and required for the purposes
of the corporation, amounting to about
$45,000,000, of which about $20,000,000
had been earned prior to March 1, 1913,
the balance thereafter. In January,
1916, in order to readjust the capitaliza-
tion, the board of directors decided to
issue additional shares sufficient to con-
stitute a stock dividend of 50 per cent
of the outstanding stock, and to trans-
fer from 'surplus account- to capital
stock account an amount equivalent to
such issue. Appropriate resolutions
^re adopted, an amount equivalent to
the par value of the proposed new
stock was transferred accordingly, and
the new stock duly issued against it and
divided among the stockholders.
Defendant in error, being the owner
of 2,200 shares of the old stock, received
certificates for 1,100 additional [201]
shares, of which 18.07 per cent, or 198.77
shares, par value $19,877, were treated
as representing surplus earned between
March 1, 1913, and January 1, 1916. She
was called upon to pay, and did pay
under protest, a tax imposed under the
Revenue Act of 1916, based ui>on a sup-
posed income of $19,877 because of the
new shares ; and an appeal to the commis-
sioner of internal revenue having been
disallowed, she brought action against
the collector to recover the tax. In her
complaint she alleged the above facts,
and contended that in imposing such a
tax the Revenue Act of 1916 violated
art. 1, § 2, cl. 3, and art. 1, § 9, cl. 4, of
the Constitution of the United States,
requiring direct taxes to be apportioned
according to population, and that the
stock dividend was not income within
the meaning of the 16th Amendment.
A general demurrer to the complaint
was overruled upon the authoritv of
Towne v. Eisner, 245 U. S. 418, 62 L.
ed. 372, L.R.A.1918D, 254, 38 Sup. Ct.
Rep. 158; and, defendant having failed
to plead further, final judgment went
against him. To review it, the present
writ of error is prosecuted.
The case was argued at the last term,
and reargued at the present term, both
orally and by additional briefs.
We are constrained to hold that the
judgment of the district court must be
affirmed: First, because the question at
issue is controlled by Towne v. Eisner,
supra; secondly, because a re-examina-
tion of the question, with, the addition-
al light thrown upon it by elaborate
arguments, has confirmed the view that
the underlying ground of that decision
is sound, that it disposes of the question
here presented, and that other funda-
mentfld considerations lead to the same
result.
In Towne v. Eisner, the question was
whether a stock dividend made in 1914
against surplus earned prior tp January
1, 1913, was taxable against the stock-
holder under the Act of October 3, 1913
(chap. 16, 38 Stat, at L. 114, 166, Comp.
Stat. § 5291, 2 Fed. Stat. Anno. 2d ed.
p. 724), which provided (§ B, p. 167)
that net income should include "divi-
dends," and also "gains or profits and
income derived [202] from any source
whatever." Suit having been brought by
a stockholder to recover the tax assessed
against him by reason of the dividend,
the district court sustained a demurrer
to the complaint. 242 Fed. 702. The
court treated the construction of the
act as inseparable from the interpreta-
tion of the 16th Amendment; and, hav-
ing referred to Income Tax Cases (Pol-
lock V. Farmers' Loan & T. Co.) 158 U.
S. 601, 3^ L. ed. 1108, 15 Sup. Ct Rep.
912, and quoted the Amendment, pro-
ceeded very properly to say (p. 704) :
"It is manifest that the stock dividend
in question cannot be reached by the
Income Tax Act, and could, not, even
though Congress expressly declared it
to be taxable as income, unless it is in
fact income." It declinrd, however, to
accede to the contention that in Gibbons
V. Mahon, 136 U. S. 549, 34 L, ed. 525.
10 Sup. Ct. Rep. 1057, "stock dividends''
had received a definition suffioiontly
clear to be controlling, treated the lan-
guage of this court in that case as obiter
dictum in respect of the matter then
before it (p. 70G), and examined the
question as re.s nova, with the result
rived . . . , also from interest, rent, divi-
dends, securities, or tlic transaction of any
business carried on for gain or profit, or
gains or profits and income derived from
any source whatever: Provided, That the
terin "dividends" as uped in this title shall
IfO h<^ld to mean any ^ii-trilnit.'on made or
52«
ordered to be made by a corporation, . . .
out of its earnings or profits accrued since
March first, nineteen hundrej and thirteen,
and payable to its shareholders, whether io
cash or in stock of the corporation, . . .
which stock dividend shall be considered
income, to the amount of its cash value.
258 V. 8.
'M9.
EISNER V. MACOMBER.
202-204
stated. When the case came here, after
overmling a motion to dismiss, made
by the government upon the ground that
the only question involved was the con-
struction of the statute, and not its con-
stitutionality, we dealt upon the merits
with the question of construction only,
but disposed of it upon consideration
of the essential nature of a stock divi-
dend, disregarding the fact that the one
in question was based upon surplus
earnings that accrued before the 16th
Amen£nent took effect. Not only so,
but we rejected the reasoning of the
district court, saying (245 U. S. p. 426) :
'^Notwithstanding the thoughtful dis-
cussion that the case received below, we
cannot doubt that the dividend was
capital as well, for the purposes of the
Income Tax Law as for distribution
between tenant for life and remainder-
man. What was said by this court upon
the latter question is equally true forthe
former. 'A stock dividend really takes
nothing from the property of the cor-
poration, and adds nothing to the [203]
interests of the shareholders. Its prop-
erty is not diminished, and their inter-
ests are not increased. . . . The pro-
portional interest of each shareholder re-
mains the same. The only change is in
the evidence which represents that inter-
est, the new shares and the original
shares together representing the same
proportional interest that the original
shares represented before the issue of the
new ones. Gibbons v. Mahon, 136 U. S.
549, 559, 560, 34 L. ed. 525, 527, 528, 10
Sup. Ct. Rep. 1057. In short, the cor-
poration is no poorer and the stockholder
is no richer than they were before. Lo-
gan County V. United States, 169 U. S.
255. 261, 42 L. ed. 737, 739, 18 Sup. Ct.
Rep. 361. If the plaintiff gained any
small advantage by the change, it cer-
tainly was not an advantage of $417,450,
the sum upon which he was taxed. . . .
What has happened is that the plaintiff's
old certificates have been split up in ef-
fect and have diminished in value to the
extent of the value of the new."
This language aptly answered not only
the reasoning of the district court, but
the nrfrument of the Solicitor General in
this court, which discussed the essential
nature of a stock dividend. And if, for
the reasons thus expressed, such a divi-
dend is not to be regarded as "income"
or "dividends" within the meaning of
the Act of 1913, we are unable to see
how it can he brought within the mean-
ing of "incomes" in the 16th Amend-
ment; it being very clear that Congress
intended in that art to exert its power
•4 L. ed.
to the extent permitted by the Amend-
ment. In Towne v. Eisner it was not
contended that any construction of the
statute could make it narrower than the
constitutional grant ; rather the contrary.
The fact that the dividend was
charged against profits earned before
the Act of 1913 took effect, even before
the Amendment was adopted, was neither
relied upon nor alluded to in our con-
sideration of the merits in that case.
Not only so, but had we considered that
a stock dividend constituted income in
any true sense, it would have been held
taxable under the Act of 1913 notwith-
standing it was [204] based upon profits
earned before the Amendment. We ruled
at the same term, in Lynch v. Hornby,
247 U. S. 339, 62 L. ed. 1149, 38 Sup. Ct
Rep. 543, that a cash dividend extraor-
dinary in amount, and in Peabody v.
Eisner, 247 U. S. 347, 62 L. ed. 1152, 38
Sup. Ct. Rep. 546, that a dividend paid
in stock of another company, were tax-
able as income although based upon earn-
ings that aocrued before adoption of the
Amendment. Li the former ease, con-
cerning "corporate profits that accumu-
lated before the act took effect,'' we de-
clared (pp. 343, 344) : ''Just as we deem
the legislative intent manifest to tax the
stockholder with respect to such accumu-
lations only if and when, and to the ex-
tent that, his interest in them comes to
fruition as income, that is, in dividends
declared, so we can perceive no consti-
tutional obstacle that stands in the way
of carrying out this intent when divi-
dends are declared out of a pre-existing
surplus. . . . Congress was at liberty
under the Amendment to tax as income,
without apportionment, everything that
became income, in the ordinary sense of
the word, after the adoption of the
Amendment, including dividends re-
ceived in the ordinary course by a stock-
holder from a corporation, even though
they were extraordinary in amount and
might appear upon analysis to be a mere
realization in possession of an inchoate
and contingent interest that the stock-
holder had in a surplus of corporate
assets previously existing." In Peabody
V. Eisner (pp. 349, 350)^ we observed
that the decision of the district court in
Towne v. Eisner had been reversed "only
upon the ground that it related to a
stock dividend which in fact took noth-
ing from the property of the corporation
and added nothing to the interest of the
shareholder, but merely changed the evi-
dence which represented that interest;"
and we distinguished the Peabody Case
from the To\Vne Case upon the ground
,%2 7
204-207
SUPREME COURT OF THE UNITED STATES.
Oct. Tekm,
)
that "the dividend of Baltimore & Ohio
shares was not a stock dividend, but a
distribution in specie of a portion of the
assets of the Union Pacific."
Therefore, Towne v. Eisner cannot be
regarded as turning [205] upon the
point that the surplus accrued to the
company before the act took effect and
before adoption of the Amendment. And
what we have quoted from the opinion in
that case cannot be regarded as obiter
dictum, it having furnished the entire
basis for the conclusion reached. We ad-
here to the view then expressed, and
might rest the presfent case- there ; not be-
cause that case in terms decided the con-
stitutional question, for it did not; but
because the conclusion there reached as
to the essential nature of a stock divi-
dend necessarily prevents its being re-
garded as income in any true sense.
Nevertheless, in view of the impor-
tance of the matter, and the fact that
Congress in the Revenue Act of 191*6
declared (39 Stat, at L. 757, chap. 463,
Comp. Stat. § 6336b, Fed. Stat. Anno.
Supp. 1918, p. 312) that a "stock divi-
dend shall be considered income, to the
amount of its cash value," we will deal
at length with the constitutional ques-
tion, incidentally testing the soundness
of our previous conclusion.
The 16th Amendment must be con-
strued in connection with the' taxing
clauses of the original Constitution and
the effect attributed to them before the
Amendment was adopted. In Income
Tax Cases (Pollock v. Farmers Loan &
T. Co.) 158 U. S. 601, 39 L. ed. 1108, 15
Sup. Ct. Rep. 912, under the Act of Au-
gust, 27, 1894 (chap. 349, § 27, 28 Stat.
at L. 509, 553), it was held that taxes
upon rents and profits of real estate and
upon returns from investments of per-
sonal property were in effect direct
taxes upon the property from which
such income arose, imposed by reason
of ownership; and that Congress could
not impose such taxes without appor-
tioning them among tbe states according
to population, as required by art. 1, § 2,
cl. 3, and § 9, d. 4, of the original Con-
stitution.
Afterward^, and evidently in recog-
nition of the limitation upon the taxing
power of Congress thus determined, the
16th Amendment was adopted, in words
lucidly expressing the object to be ac-
complished: "The Congress shall have
power to lay and collect taxes on in-
comes, from whatever source derived,
without apportionment among [206] the
several states, and without regard to any
census or enumeration." As repeatedly
.528
held, this did not extend the taxing pow-
er to new subjects, but merely removed
the necessity which otherwise might
exist for an apportionment among the
states of taxes laid on income. Brush-
aber v. Union P. R. Co. 240 U. S. 1, 17-
19, 60 L. ed. 493, 501, 502, L.R.A.1917D,
414, 36 Sup. Ct. Rep. 236, Ann. Cas.
1917B, 713; Stanton v. Baltic Min. Co.
240 U. S. 103, 112 et seq., 60 L. ed. 546,
553, 36 Sup. Ct. Rep. 278; William E.
Peck & Co. V. Lowe, 247 U. S. 165, 172,
173, 62 L. ed. 1049-1051, 38 Sup. Ct.
Rep. 432.
A proper regard for its genesis, as
well as its very clear language, requires
also that this Amendment shall not be
extended by loose construction, so as
to repeal or modify, except as applied
to income, those provisions of the Con-
stitution that require an apportionment
according to population for direct taxes
upon property, real and personal. This
limitation still has an appropriate and
important fimction, and is not to l>e
overridden by Congress or disregarded
by the courts.
In order, therefore, that the clauses
cited from article 1 of the Constitution
may have proper force and effect, save
only as modified by the Amendment,
and that the latter also may have prop-
er effect, it becomes essential to distin-
guish between what is and what is not
"income," as the term is there used;
and to ai^ly the distinction, as cases
arise, according to truth and substance,
without regard to form. Congress can-
not by any definition it may a^lopt con-
clude the matter, since it cannot by
legislation alter the Constitution, from
which alone it derives its power to legis-
late, and within whose limitations alone
that power can be lawfully exercised.
The fundamental relation of "capital"
to "income" has been much discussed by
economists, the former being likened to
the tree or the land, the latter to the
fruit or the crop; the former depicted
as a reservoir supplied from springs, the
latter as the outlet stream, to be meas-
ured by its flow during a period of time.
For the present purpose we require only
a clear definition of the term "income,"
[207] as used in common speech, in
order to determine its meaning in the
Amendment; and, having formed also a
correct judgment as to the nature of a
stock dividend, we shall find it easy to
decide the matter at issue.
After examining dictionaries in com-'
mon use (Bouvier's Law Diet. ; Standard
Diet.; Webster's Int. Diet.; Century
Diet.), we find little to add to the suo-
252 U. 6.
I
1919.
EISNER V. MACOMBER.
207-209
cinct definition adopted in two cases
arising under the Corporation Tax Act
of August 5, 1909 [36 Stat, at L. 11,
chap. 6], (Stratton's Independence v.
Howbert, 231 U. S. 399, 415, 58 L. ed.
285, 292, 34 Sup. Ct. Rep. 136; Doyle v.
Mitchell Bros. Co. 247 U. S. 179, 185, 62
L. ed. 1054, 1059, 38 Sup. Ct. Rep. *467) :
'^Income may be defined as the gain de-
rived from capital, from labor, or from
both combined," provided it be under-
stood to include profit gained through a
sale or conversion of capital assets, to
which it was applied in the Doyle Case
(pp. 183, 185).
Brief as it is, it indicates the char-
acteristic and distinguishing attribute of
income, essential for a correct solution
of the present controversy. The govern-
ment, although basing its argument up-
on the definition as quoted, placed chief
emphasis upon the word ^^gain," which
was extended to include a variety of
meanings; while the significance of the
next three words was either overlooked
or misconceived, — '^derived — from — cap-
Half' — "the gain — derived — from — cap^
Half" etc. Here we have the essential
matter: tMt a gain accruing to capital,
not a growth or increment of value in
the investment; but a gain, a profit,
something of exchangeable value p^o-
ceeding from the property, severed from
the capital, however invested or em-
ployed, and coming in, being "derived/*
that is, received or drawn by the recip-
ient (the taxpayer) for his separate use,
benefit, and disposal; that is income de-
rived from property. Nothing else an-
swers the description.
The same fundamental conception is
clearly sot forth in the 16th Amendment
— '^incomes, from whatever source de-
rived/'— the essential thought being ex-
pressed [208] with a conciseness and
lucidity entirely in harmony with the
form and style of the Constitution.
Can a stock dividend, considering its
essential character, be brought within
the definition? To answer this, regard
must be had to the nature of a corpora-
tion and the stockholder's relation to
it. We refer, of course, to a corpora-
tion such as the one in the case at bar,
organized for profit, and having a capi-
tal stock divided into shares to which a
nominal or par value is attributed.
Certainly the interest of the stock-
bolder is a capital interest, and his cer-
tificates of stock are but the evidence
of it. They state the number of shares
to which he is entitled and indicate their
par value and how the stock may be
transferred. They show that he or his '
Oi L. ed. 3
assignors, immediate or remote^ have
contributed capital to the enterprise,
that he is entitled to a corresponding
interest proportionate to the whole, —
entitled to have the property and busi-
ness of the company devoted during the
corporate existence to attainment of the
common objects, — entitled to vote at
stockholders' meetings, to receive divi-
dends out of the corporation's profits if
and when declared, and, in the event of
liquidation, to receive a proportionate
sliare of the net assets, if any, remain-
ing after paying creditors. Short of
liquidation, or until dividend declared,
he has no right to withdraw any part of
either capital or profits from the com-
mon enterprise; on the contrary, his
interest pertains not to any part, divis-
ible or indivisible, but to the entire as-
sets, business, and affairs of the com-
pany. Nor is it the interest of an owner
in the assets themselves, since the cor-
poration has full title, legal and equi-
table, to the whole. The stockholder has
the right to have the assets employed in
the enterprise, with the incidental rights
mentioned; but, as stockholder, he has
no right to withdraw, only the right to
persist, subject to the risks of the enter-
prise, and looking only to dividends for
his return. If he desires to dissociate
himself [209] from the company, he can
do so only by disposing of his stock.
For bookkeeping purposes, the com-
pany acknowledges a liability in form
to the stockholders equivalent to the
aggregate par value of their stock, evi-
denced by a "capital stock account." If
profits have been made and not divided,
they create additional bookkeeping lia-
bilities under the head of "profit and
loss," "undivided profits," "surplus ac-
count," or the like. None of these, how-
ever, gives to the stockholders as a body,
much less to any one of them, either a
claipi against the going concern for any
particular sum of money, or a right to
any particular portion of the assets or
any share in them unless or until the
directors conclude that dividends shall
be made and a part of the company's
assets segregated from the common fund
for the purpose. The dividend normally •
is payable in money, under exceptional
circumstances in some other divisible
property; and when so paid, then only
(excluding, of course, a possible advan-
tageous sale of his stock or winding-up
of the company) does the stockholder
realize a profit or gain which becomes
his separate property, and thus derive
income from the capital that he or his
predecessor has invested.
4 529
209-212
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
In the present case, the corporation
had surplus and undivided profits in-
vested in plant, property, and business,
and required for the purposes of the
corporation, amounting to about $45,-
000,000, in addition to outstanding cap-
ital stock of $50,000,000. In this the
case is not extraordinary. The profits
of a corporation, as they appear upon
the balance sheet at the end of the year,
need not be in the form of money on
hand in excess of what is required to
meet current liabilities and finance cur-
rent operations of the company. Often,
especially in a growing business, only
a part, sometimes a small part, of the
year's profits, is in property capable of
division; the remainder having been ab-
sorbed in the acquisition of increased
plant, [210] equipment, stock in trade,
or accounts receivable, or in decrease of
outstanding liabilities. When only a
part is available for dividends, the bal-
ance of the year's profits is carried to the
credit of undivided profits, or surplus,
or some other account having like sig-
nificance. If thereafter the company
finds itself in funds beyond current
needs, it may declare dividends out of
such Furplus or undivided profits ; other-
wise it may go on for years conducting
a successful business, but requiring more
and more working capital because of
the extension of its operations, and
therefore unable to declare dividends ap-
proximating the amount of its profits.
Thus the surplus may increase until it
equals or even exceeds the par value of
the outstanding capital stock. This
may be adjusted upon the books in
the mode adopted in the case at bar —
by declaring a "stock dividend." This,
however, is no more than a book ad-
justment, in essence not a dividend but
rather the opposite; no part of the as-
sets of the company is separated from
the common fund, nothing distributed
except paper certificates that evidence
an antecedent increase in the value of
the stockholder's capital interest result-
ing from an accumulation of profits by
the company, but profits so far absorbed
in the business as to render it imprac-
ticable to separate them for withdrawal
and distribution. In order to make the
adjustment, a charge is made against
surplus account with corresponding cred-
it to the capital stock account, equal to
the proposed "dividend;" the new stock
is issued against this and the certificates
delivered to the existing stockholders in
proportion to their previous holdings.
This, however, is merely bookkeeping
that does not affect the aggregate assets
of the corporation or its outstanding
liabilities; it affects only the form, not
the essence, of the "liability" acknowl-
edged by the corporation to its own
shareholders, and this through a read-
justment of accounts on one side of the
balance sheet only, increasing "cap-
ital stock" at the expense of [211] "sur-
plus;" it does not alter the pre-existing
proportionate interest of any stockhold-
er, or increase the intrinsic value of his
holding or of the aggregate holdings of
the other stockholders as they stood be-
fore. The new certificates simply in-
crease the number of the shares, with
consequent dilution of the value of eaofc
share.
A "stock dividend" shows that the
company's accumulated profits have been
capitalized, instead of distributed to the
stockholders or retained as surploa
available for distribution in money or
in kind should opportunity offer. Far
from being a realization of profits of
the stockholder, it tends rather to post-
pone such realization, in that the fund
represented by the new stock has been
transferred from surplus to capital, and
no longer is available for actual distri-
bution.
The essential and controlling fact is
that the stockholder has received noth-
ing out of the company's assets for his
separate use and benefit; on the con-
trary, every dollar of his original in-
vestment, together with whatever ae-
cretions and accumulations have re-
sulted from employment of his money
and that of the other stockholders in
the business of the company, still re-
mains the property of the company, and
subject to business risks which may re-
sult in wiping out the entire investment.
Having regard to the very truth of the
matter, to substance, and not to form,
he has received nothing that answers the
definition of income within the meaning
of the 16th Amendment.
Being concerned only with the true
character and effect of such a dividend
when lawfully made, we lay aside the
question whether in a particular case a
stock dividend may be authorized by
the local law governing the corporation,
or whether the capitalization of profits
may be the result of correct judgment
and proper business policy on the part
of its management, and a due regard
for the interests of the stockholders.
And we are considering the taxability of
bona fide stock dividends only.
[212] We are clear that not only does
a stock dividend really take nothing from
the property of the corporation and add
358 V. S.
1919.
EISNER V. MACOMBEE.
212-214
Qotliiiig to that of the shareholder, , hut
that the antecedent aecumrilation of prof-
its eyidenced thereby, while indicating
that the shareholder is the richer be-
cause of an increase of his capital, at
the same time shows he has not realized
or received any income in the transac-
tion.
It is said that a stockholder may sell
the new shares acquired in the stock
dividend; and so he may, if he can find
a buyer. It is equally true that if he
does sell, and in doing so realizes a prof-
it, such profit, like any other, is in-
come, and so far as it may have arisen
since the 16th Amendment is taxable by
Congress without apportionment. The
same would be true were he to sell some
of his original shares at a profit. But if
k shareholder sells dividend stock, he
necessarily disposes of a part of his
capital interest, just as if he should sell
a part of his old stock, either before or
after the dividend. What he retains no
longer entitles him to the same propor-
tion of future dividends as before the
sale. His part in the control of the
company likewise is diminished. . Thus,
if one holding $60,000 out of a total
$100,000 of the capital stock of a cor-
poration should receive, in common with
other stockholders, a 50 per cent stock
dividend, and should sell his part, he
thereby would be reduced from a major-
ity to a minority stockholder, having
six fifteenths instead of six tenths of the
total stock outstanding. A correspond-
ing and proportionate decrease in cap-
ital interest and in voting power would
befall a minority holder should he sell
dividend stock; it being in the nature
of thingfs impossible for one to dispose
of any part of such an issue without
a proportionate disturbance of the dis-
tribution of the entire capital stock,
and a like diminution of the seller's com-
parative voting jMJwer, — that "right pre-
servative of rights" in the control of a
corporation. [^13] Yet, without selling,
the shareholder, unless possessed of other
resources, has not the wherewithal to
pay an income tax upon the dividend
stock. Nothing could more clearly show
that to tax a stock dividend is to tax
a capital increase, and not income, than
this demonstration that in the nature of
things it requires conversion of capital
in order to pay the tax.
Throughout the argument of the gov-
ernment, in a variety of forms, runs the
fundamental error already mentioned, —
a failure to appraise correctly the force
of the term "income" as used in the 16th '
Amendment, or at least to give practical I
«4 L. cd.
effect to it. Thus, the government con-
tends that the tax "is levied on income
derived from corporate earnings," when
in truth the stockholder has "derived"
nothing except paper certificates which,
so far as they have any effect, deny him
present participation in such earnings.
It contends that the tax may be laid
when earnings "are received by the
stockholder," whereas he has received
none; that the profits are "distributed
by means of a stock dividend/' although
a stoek dividend distributes no profits;
that under the Act of 1916 "the tax is
on the stockholder's share in corporate
earnings," when in truth a stockholder
has no such share, and receives none in
a stock dividend^ that "the profits are
segregated from his former capital, and
he has a separate certificate representing
his invested profits or gains," whereas
there has been no segregation of profits,
nor has he any separate certificate rep-
resenting a personal gain, since the cer-
tificates, new and old, are alike in what
they represent, — a capital interest in the
entire concerns of the corporation. '
We have no doubt of the power or
duty of a court to look through the
form of the corporation and determine
the question of the stockholder's right,
in order to ascertain whether he has
received income taxable by Congfresa
without apportionment. But, looking
through the form, [214] we cannot dis-
regard the essential truth disclosed; ig-
nore the substantial difference between
corporation and stockholder; treat the
entire organization as unreal; look upon
stockholders as partners, when they are
not such; treat them as having in equity
a right to a partition of the corporate as-
sets, when they have none; and indulge
the fiction that they have received and
realized a share of the profits of the
company which in truth they have
neither received nor realized. We must
treat the corporation as a substantial
entity separate from the stockholder,
not only because such is the practical
fact, but because it is only by recop^iiz-
ing such separateness that any dividend
— even one paid in money or property —
can be regarded as income of the stock-
holder. Did we reprard corporation and
stockholders as altogether identical,
there would be no income except as the
corporation acquired it; and while this
would be taxable against the corpora-
tion as income under appropriate provi-
sions of law, the individual stockholders
could not be separately and addi-
tionally taxed with respect to their sev-
eral shares even when divided, since if
581
214-216
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
there were entire identity between them
and the company they could not be re-
garded as receiving anything from it,
any more than if one's money were to
be removed from one pocket to another.
Conceding that the mere issue of a
stock dividend makes the recipient no
richer than before, the government
nevertheless contends that the new cer-
tificates measure the extent to which
the gains accumulated by the corpora-
tion have .made him the richer. There
are two insuperable difficulties with
this: In the first place, it would depend
upon how long he had held the stock
whether the stock dividend indicated
the extent to which he had been enriched
by the operations of the company; un-
less he had held it throughout such oper-
ations, the measure would not hold true.
Secondly, and more important for pres-
ent purposes, enrichment through in-
crease in value [S15] of capital invest-
ment is not income in any proper mean-
ing of the term.
The complaint contains avermentd re-
specting the market prices of stock such
as plaintiff held, based upon sales before
and after the stock dividend, tending
to show that the receipt of the addi-
tional shares did not substantially change
the. market value of her entire hold-
ings. This tends to show that in this
instance market quotations reflected in-
trinsic values, — a thing they do not
always do. But we regard the market
prices of the securities as an unsafe cri-
terion in an inquiry such as the present,
when the question must be, not what will
the thing sell for, but what is it in truth
and in essence.
It is said there is no difference in
principle between a simple stock divi-
dend and a case where stockholders use
money received as cash dividends to
purchase additional stock contemporane-
ously issued by the corporation. But an
actual cash dividend, with a real option
to the stockholder either to keep the
money for his own or to reinvest it in
new shares, would be as far removed
as possible from a true stock dividend,
such as the one we have under consid-
eration, where nothing of value is taken
from the company's assets and trans-
ferred to the individual ownership of
the several stockholders and thereby
subjected to their disposal.
The government's reliance upon the
supposed analogy between a dividend of
the corporation's own shares and one
made by distributing shares owned by
it in the stock of another company calls
for no comment beyond the statement
532
that the latter distributes assets of the
company among the shareholders, while
the former does not; and for no citation
of authority except Peabody v. Eisner,
247 U. S. 347,' 349, 350, 62 L. ed. 1162,
1154, 38 Sup. Ct. Rep. 546.
Two recent decisions, proceeding from
courts of high jurisdiction, are cited in
support of the position of the govern-
ment.
[216] Swan Brewery Co. v. Rex
[1914] A. C. 231, 83 L. J. P. C. N. S. 134,
110 L. T. N. S. 211, 30 Times L. R. 199,
arose under the Dividend Duties Act of
western Australia, which provided that
"dividend" should include "every div-
idend, profit, advantage, or gain intended
to be paid or credited to or distributed
among any members or directors of any
company," except, etc. There was a
stock dividend, the new shares being al-
lotted among the shareholders pro rata;
and the question was whether this was a
distribution of a dividend within the
meaning of the act. The Judicial Com-
mittee of the Privy Council sustained the
dividend duty upon the groimd that, al-
though "in ordinary language the sew
shares would not be called a dividend,
nor would the allotment of them be a
distribution of a dividend," yet, within
the meaning of the act, such new shares
were an "advantage" to the recipients.
There being no constitutional restric-
tion upon the action of the lawmaking
body, the case presented merely a ques-
tion of statutory construction, and mani-
festly the decision is not a precedent
for the guidance of this court when act-
ing under a duty to test an act of Con-
gress by the limitations of a written
Constitution having superior force.
In Tax Comrs. v. Putnam (Trefry v.
Putnam) (1917) 227 Mass. 522, L.R.A.
1917F, 806, 116 N. E. 904, it was
held that the 44th Amendment to the
Constitution of Massachusetts, which
conferred upon the legislature full pow-
er to tax incomes, "must be interpreted
as including every item which by any
reasonable understanding can fairly be
regarded as income" (pp. 526, 531) ;
and that under it a stock dividend was
taxable as income, the court saying (p.
535) : '^n essence the thing wMch has
been done is to distribute a symbol rep-
resenting an accumulation of profits,
which, instead of being paid out in cash,
is invested in the business, thus aug-
menting its durable assets. In this as-
pect of the case the substance of the
transaction is no different from what
it would be if a cash dividend had been
declared, with the privilege of subscrip-
tion to an equivalent amoimt of new
252 IT. 8.
1U19.
EISNEK V. MACOMBER.
217-219
shares." [217] We cannot accept this
reasoning. Evidently, in order to give a
suflBciently broad sweep to the new tax-
ing provision, it was deemed necessary to
take the symbol for the substance, ac-
cumulation for distribution, capital ac-
cretion for its opposite; while a case
where money is paid into the hand of
the stockholder with an option to buy
new shares with it, followed by accept-
ance of the option, was regarded as
identical in substance with a case where
the stockholder receives no money and
has no option. The Massachusetts court
was not under an obligation, like the one
which binds us, of applying a constitu-
tional amendment in the light of other
constitutional provisions that stand in
the way of extending it by construction.
Upon the second argument, the gov-
emment, recognizing the force of the
decision in Towne v. Eisner, 245 U. S.
418, 62 L. ed. 372, L.B.A.1918D, 254,
38 Sup. Ct. Rep. 158, and virtually
abandoning the contention that a stock
dividend increases the interest of the
stockholder or otherwise enriches him,
insisted as an alternative that, by the
true construction of the Act of 1916,
the tax is imposed not upon the stock
dividend, but rather upon the stockhold-
er's share of the undivided profits pre-
viously accumulated by the corporation;
the tax being levied as a matter of con-
venience at the time such profits become
manifest through the stock dividend. If
so construed, would the act be constitu-
tional f
That Congress has power to tax
shareholders upon their property inter-
ests in the stock of corporations is be-
yond question; and that such interests
might be valued in view of the condi-
tion of the company, including its ac-
cumulated and undivided profits, is
equally clear, fiut that this would be
taxation of property because of owner-
ship, and hence would require appor-
tionment under the provisions of the
Constitution, is settled beyond p^erad-
venture by previous decisions of this
eourt.
The government relies upon The Col-
lector V. Hubbard (Brainard v. Hub-
bard) (1870) 12 [218] Wall. 1, 17, 20 L.
ed. 272, 278, which arose under § 117 of
the Act of June 30, 1864 (chap. 173,
13 Stat, at L. 223, 282, Comp. Stat.
§ 6368, 4 Fed. Stat. Anno. 2d ed. p. 324),
providing that "the gains and profits
of all companies, whether incorporated
or partnership, other than the compa-
nies specified in this section, shall be in-
cluded in estimating the annual gains,
04 li. ed.
profits, or income of any person enti-
tled to the same, whether divided or
otherwise." The court held an individ-
ual taxable upop his proportion of the
earnings of a corporation although not
declared as dividends, and although in-
vested in assets not in their nature divis-
ible. Conceding that the stockholder
for certain purposes had no title prior
to dividend declared, the" court neverthe-
less said (p. 18) : "Grant all that, still
it is true that the owner of a share of
stock in a corporation holds the share
with all its incidents, and that among
those incidents is the right to receive
aU future dividends; that is, his pro-
portional share of all profits not then
divided. Profits are incident to the
share to which the owner at once be-
comes entitled provided he remains a
member of the corporation until a divi-
dend is made. Regarded as an incident
to the shares, undivided profits are
property of the shareholder, and as
such are the proper subject of sale, gift,
or device. Undivided profits invested
in real estate, machinery, or raw mate-
rial for the purpose of being manufac-
tured are investments in which the
stockholders are interested, and when
such profits are actually appropriated to
the payment of the debts of the corpo-
ration they serve to increase the market
value of the shares, whether held by the
original subscribers or by assignees."
In so far as this seems to uphold the
right of Congress to tax without appor-
tionment a stockholder's interest in ac-
cumulated earnings prior to dividend
declared, it must be regarded as over-
ruled by Income Tax Cases (Pollock v.
Farmers Loan & T. Co.) 168 U. 8. 601,
627, 628, 637, 39 L. ed. 1108, 1122, 1125,
15 Sup. Ct. Rep. 912. Conceding The
Collector v. Hubbard was inconsistent
with the doctrine of that ease, because
it sustained a direct tax upon property
not apportioned [219] among the states,
the government nevertheless insists that
the 16th Amendment removed this ob-
stacle, so that now the Hubbard Case is
authority for the power of Congress to
levy a tax on the stockholder's share in
the accumulated profits of the cori>ora-
tion even before division by the declara-
tion of a dividend of any kind. Mani-
festly this argument must be rejected,
since the Amendment applies to in-
come only, and what is called the stock-
holder's share in the accumulated profits
of the company is capital, not income.
As we have pointed out, a stockholder
has no individual share in accumulated
profits, nor in any particular part of the
oSS
5^19-221
SUPREME COURT OF THE UNITED STATES.
Got. Tebm^
assets of the corporation, prior to divi-
dend declared.
Thus, from every point of view, we
are brought irresistibly to the conclu-
sion that neither under the 16th Amend-
ment nor otherwise has Congress power
to tax without apportionment a true
stock dividend made lawfully and in
good faith, or the accumulated profits
behind it, as income of the stockholder.
The Revenue Act of 1916, in so far as
it imposes a tax upon the stockholder
because of such dividend, contravenes the
provisions of article 1, § 2, cl. 3, and
article 1, § 9, cl. 4, of the Constitution,
and to this extent is invalid notwith-
standing the 16th Amendment.
Judgment affirmed.
Mr. Justice Holmes, dissenting:
I think that Towns v. Eisner, 245 U.
S. 418, 62 L. ed. 372, L.R.A.1918D, 254,
38 Sup. Ct. Rep. 158, was right in its
reasoning and result, and. that on sound
principles the 9tock dividend was not in-
come. But it was clearly intimated In
that case that the construction of the
statute then before the court might be
different from that of the Constitution.
246 U. S. 425. I think that the word
'^incomes" in the 16th Amendment
should be read in [220] '^a sense most
obvious to the common understanding at
the time of its adoption." Bishop v.
State, 149 Ind. 223, 230, 39 L.R.A. 278,
63 Am. St. Rep. 279, 48 N. E. 1038 ; State
ex reL West v. Butler, 70 Fla. 102, 133, 69
So. 771. For it was for public adoption
that it was proposed. M'Culloch v.
Maryland, 4 Wheat. 316, 407, 4 L. ed.
579, 601. The known purpose of this
Amendment was to get rid of nice ques-
tions as to what might be direct taxes,
and I cannot doubt that most people not
lawyers would suppose when they voted
for it that they put a question like the
present to rest. I am of opinion that
the Amendment justifies the tax. See
Tax Comr. v. Putnam (Trefry v. Put-
nam) 227 Mass. 522, 532, 533, L.R.A.
1917F, 806, 116 N. E. 904.
Mr. Justice Day concurs in this opin-
ion.
Mr. Justice Brandeis delivered the
following dissenting opinion:
Financiers, with the aid of lawyers,
devised long ago two different methods
by which a corporation can, without in-
creasing its indebtedness, keep for cor-
porate purposes accumulated profits,
and yet, in effect, distribute those profits
.among its stockholders. One method is
a simple one. The capital stock is in-
creased; the new stock is paid up wiin
the accumulated profits; and the new
shares of paid-up stock are then distrib-
uted among the stockholders pro rata
as a dividend. If the stockholder pre-
fers ready money to increasing his hold-
ing of the stock in the company, he sells
the new stock received as a dividend.
The other method is slightly more com-
plicated. Arrangements are made for
an increase of stock to be offered to
stockholders pro rata at par, and, at the
same time, for the payment of a ca^
dividend equal to the amount which the
stockholder will be required to pay to
[221] the company, if he avails himself
of the right to subscribe for his pro rata
of the new stock. If the stockholder
takes the new stock, as is expected^ he
may indorse the dividend check received
to the corporation and thus pay for the
new stock. In order to insure that all
the new stock so offered will be taken,
the price at which it is offered is fixed
far below what it is believed will be its
market value. If the stockholder pre-
fers ready money to an increase of his
holdings of stock, he may sell his right
to take new stock pro rata, which is
evidenced by an assignable instrument.
In that event the purchaser of the rights
repays to the corporation^ as the sub-
scription price of the new stock, an
amount equal to that which it had paid
as a cash dividend to the stockholder.
Both of these methods of retaining ac-
cumulated profits while in effect distrib-
uting them as a dividend had been in
common use in the United States for
many years prior to the adoption of the
16th Amendment. They were recog-
nized equivalents. Whether a particular
corporation employed one or the other
method was determined sonietimes by
requirements of the lAw under which
the corporation was organized; some-
times it was determined by preferences
.of the individual officials of the corpora-
tion; and sometimes by stock market
conditions. Whichever method was em-
ployed, the resultant distribution of the
new stock was commonly referred to as
a stock dividend. How these two meth-
ods have been employed may be illus-
trated by the action in this respect (as
reported in Moodys M;niual, 19J8 Indus-
trial, and the Commercial & Financial
Chronicle) of some of the Standard Oil
companies, since the disintegration pur-
suant to the decision of this court in
1911. Standard Oil Co. v. United States,
221 U. S. 1, 55 L. ed. 619, 34 L.R.A.
252 V. 8.
1919.
EISNER V. MACOMBER.
221-224
(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann.
Cas. 1912D, 734.
(a) Standard Oil Co. (of Indiana), an
Indiana eorporatiop. It had on Decem-
ber 31, 1911, $1,000,000 capital stock (all
common), and a large surplus. On May
15, 1912, [222] it increased its capital
stock to $30;000,000, and paid a simple
stock dividend of 2,900 per cent in stock.^
(b) Standard Oil Co. (of Nebraska),
a Nebraska corporation. It had on De-
cember 31, 1911, $600,000 capita] stock
(all common), and a substantial surplus.
On April 15, 1912, it paid a simple stock
dividend of 33} per cent, increasing the
outstanding capital to $800,000. During
the. calendar year 1912 it paid cash divi-
dends aggregating 20 per cent; but it
earned considerably more, and had at
the close of the year again a substantial
surplus. On June 20, 1913, it declared
a further stock dividend of 25 per cent,
thus increasing the capital to $1,000,-
0O0.«
(e) The Standard Oil Co. (of Ken-
tucky), a Kentucky corporation. It had
on December 31, 1913, $1,000,000 cap-
ital stock (all common) and $3,701,710
surplus. Of this surplus $902,457 had
been earned during the calendar year
1913, the net profits of that year having
been $1,002,457 and the dividends paid
only $100,000 (10 per cent). On Decem-
ber 22, 1913, a cash dividend of $200 per
share w&s declared payable on Febru-
ary 14, 1914^ to stockholders of record
January 31, 1914; and these stockhold-
ers were offered the right to subscribe
for an equal amount of new stock at
par, and to apply the cash dividend in
payment therefor. The outstanding
stock was thus increased to $3,000,000.
During the calendar years 1914, 1915,
and 1916, quarterly dividends were paid
on this stock at an annual rate of be-
tween 15 per cent and 20 per cent, but
the company's surplus increased by $2,-
347,614, so that on December 31, 1916,
it had a large surplus over its $3,000,-
000 capital stock. On December 15,
1916, the company issued a circular to
the stockholders, saying:
"The company's business for this year
has shown a [223] very good increase in
volume and a proportionate increase in
profits, and it is estimated that by Janu-
ary 1, 1917, the company will have a
surplus of over $4,000,000. The board
feels justified in stating that if the prop-
osition to increase the capital stock is
acted on favorably, it will be proper in
the near future to declare a cash divi>
dend of 100 per cent; and to allow the
stockholders the privilege pro rata ac-
cording to their holdings, to purchase
the new stock at par, the plan being to
allow the stockholders, if they desire, to
use their cash dividend to pay for the
new stock."
The increase of stock was voted. The
company then paid a cash dividend of
100 per cent, payable May 1, 1917, again
offering to such stockholders the right
to subscribe for an equal amount of new
stock at par and to apply the cash divi-
dend in payment therefor.
Moody s -Manual, describing the tran-
saction with exactness, says first that
the stock was increased from $3,000,000
to $6,000,000, "a cash dividend of 100
per cent, payable May 1, 1917, being
exchanged for one share of new stock,
the equivalent of a 100 per cent stock
dividend." But later in the report, giv-
ing, as. customary in the Manual, the
dividend record of the company, the
Manual says: ^A stock dividend of
200 per cent was paid February 14, 1914,
and ohe of 100 per cent on May 1, 1917."
And in reporting specifically the income
account of the company for a series of
years ending December 31, covering net
profits, dividends paid, and surplus for
the year, it gives, as the aggregate of
dividends for the year 1917, $660,000
(which was the aggregate paid on the
quarterly cash dividend — 5 per oenl
January and April; 6 per cent July and
October); and adds in a note: ^^n. ad-
dition a stock dividend of 100 per cent
was paid during the year."' The Wall
Street Journal of [224] May 2, 1917, p.
2, quotes the 1917 "high" price for
Standard Oil of Kentuc^ as "375 ex.
stock dividend."
It thus appears that cunong financiers
and investors the distribution of tht
stock by whichever method effected =ii
called a stock dividend; that the two
methods by which accumulated profits
are legally retained for corporate pur-
poses and at the same time distributed
1 Moodys. p. 1544: Commercial & Finan-
cial Chronicle, vol. 94, p. 831; vol. 98, pp.
1005, 3070.
2 Moodys, p. 1548; Commorcial &, Finan-
cial Chronicle, vol. 94, p. 771; vol. 96, p.
1428; vol. 97. p. 1434: vol. 98. p. 1541.
^Mooclys, p. 1547: Comniorcial & Finan-
cial Chronicle, vol. 97, pp. 1589, 1827, 1903;
64 T.. ed.
vol. 98, pp. 70, 457; vol. 103, p. 2348.
Poor's Manual of Industrials (1918), p.
2240, in givin;; the "Comparative Income
Account" of the company, describes tht
1914 dividend as *'Stock dividend paid
(200 per cent) — $2,000,000;" and describes
the 1917 dividend as '$3,000,000 spocnal
; cash dividend."
53 5
224-226
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
as dividends are recognized by them to
be equivalents; and that the financial
results to the corporation and to the
stockholders of the two methods are sub-
stantially the same — unless a difference
results from the application of the Fed-
eral Income Tax Law.
Mrs. Macomber, a citizen and resi-
dent of New York, was, in the year 1916,
a stockholder in the Standard Oil Com-
pany (of California), a corporation or-
ganized under the laws of California
and having its principal place of busi-
ness in that state. During that year she
received from the company a stock divi-
dend representing profits earned since
March 1, 1913. The dividend was paid
by direct issue of the stock to her ac-
cording to the simple method described
above, pursued also by the Indiana and
Nebraska companies. In 1917 she was
taxed under the Federal law on the
stock dividend so received at its par
value of $100 a share, as income received
daring the year 1916. Such a stock
dividend is income as distinguished
from capital, both under the law of
New York and under the law of Cali-
fornia; because in both states every
dividend representing profits is deemed
to be income, whether paid in cash or in
stock. It had been so held in New York,
where the question arose as between life .
tenant and remainderman (Lowery v.
Farmers' Loan & T. Co. 172 N. Y. 137,
64 N. E. 796; Re Osborne, 209 N. Y.
460, 50 L.R.A.(N.S.) 510, 103 N. E. 723,
823, Ann. Cas. 1915A, 298); and also,
where the question arose in matters of
taxation (People ex rel. Pullman Co. v.
Glynn, 130 [225] App. Div. 332, 114 N.
Y. Supp. 460, 198 N. Y. 606, 92 N. E.
1097). It has been so held in California,
where the question appears to have
arisen only in controversies between life
tenant and remainderman. Re Duffill,
— Cal. — , 183 Pac. 337.
It is conceded that if the stock divi-
dend paid to Mrs. Macomber had been
made by the more complicated method
pursued by the Standard Oil Company
of Kentucky, that is, issuing rights to
take new stock pro rata and paying to
each stockholder simultaneously a divi-
dend in cash sufficient in amount to en-
able him to pay for this pro rata of new
stock to be purchased, the dividend so
paid to him would have been taxable as
income, whether he retained the cash or
whether he returned it to the corpora-
tion in payment for his pro rata of new
^tock. But it is contended that, because
the simple method was adopted of hav-
ing the new stock issued direct to the
5S6
stockholders as paid-up stock, the new
stock is not to be deemed income, wheth-
er she retained it or converted it into
cash by sale. If such a different result
can flow merely from the difference in
the method pursued, it must be because
Congress is without power to tax as in-
come of the stockholder either the stock
received under the latter method or the
proceeds of its sale; for Congress has,
by the provisions in the Revenue Act
of 1916, expressly declared its purpose
to make stock dividends, by whichever
method paid, taxable as income.
The 16th Amendment, proclaimed
February 25, 1913, declares:
'The Congress shall have power to
lay and collject taxes on incomes fn>m
whatever source . derived, without ap-
portionment among the several states,
and without regard to any census or
enumeration."
The Revenue Act of September 8,
1916, chap. 463, 39 Stat, at L. 756, 767,
Comp. Stat. §§ 6336a, 6336b, Fed. Stat.
Anno. Supp. 1918, pp. 312, 314, pro-
vided :
'That the term 'dividends,' as used in
this title, shall [226] be held to mean
any distribution made or ordered to be
made by a corporation, . . . out of its
earnings or profits accrued since Mareh
first, nineteen hundred and thirteen, and
payable to its shareholders, whether in
cash or in stock of the corporation,
• . . which stock dividend shall be
considered income, to the amount of its
cash value.''
Hitherto powers conferred upon Con-
gress by the Constitution have been
liberally construed, and have been hM
to extend to every means appropriate to
attain the end sought. In determining
the scope of the power the substance of
the transaction, not its form, has been
regarded. Martin v. Hunter, 1 Wheat
304, 326, 4 L, ed. 97, 102; M'CuUoeh v.
Maryland, 4 Wheat. 316, 407, 416, 4 L.
ed. 579, 601, 603; Brown v. Maryland, 12
Wheat 419, 446, 6 L. ed. 678. 688; Craig
V. Missouri, 4 Pet 410, 433, 7 L. ed. 903,
911; Jarrolt v. Moberly, 103 U. S. 580,
585, 587, 26 L. ed. 492-494; Legal Ten-
der Case, 110 U. S. 421, 444, 28 L. ed.
204, 213, 4 Sup. Ct. Rep. 122; Burrow-
Giles Lithographic Co. v. Sarony, 111 U.
S. 53, 68, 28 L. ed. 349, 351, 4 Sup. Ct.
Rep. 279; United States v. Realty Co.
163 U. S. 427, 440, 441, 442, 41 L. ed.
215, 219, 220, 16 Sup. Ct. Rep. 1120;
South Carolina v. United States, 19«) T^.
S. 437, 448, 449, 50 L. ed. 261, 264, 265,
26 Sup. Ct. Rep. 110, 4 Ann. Cas. 737.
Is there anything in the phraseology of
252 V. 8.
1U19.
EISNER V. MACOMBER.
226^228
the 16tb Amendment or in the nature of
corporate dividends which should lead
to a departure from these rules of con-
struction and compel this court to hold
that Congress is powerless to prevent a
result so extraordinary as that here con-
tended for by the stockholder?
First: The term "income," when ap-
plied to the investment of the stockhold-
er in a corporation, had, before the
adoption of the 16th 'Amendment, been
commonly understood to mean the re-
turns from time to time received by the
stockholder fr<Mn gains or earnings of
the corporation. A dividend received by
a stockholder from a corporation may
be either in distribution of capital as-
sets or in distribution of profits.
Whether it is the one or the other is in
no way affeeted by the medium in which
it is paid, nor by the method or means
through which the particular thing dis-
tributed as a dividend was procured. If
the [227] dividend is declared payable
in eash, the money with which to pay it
is ordinarily taken from surplus cash in
the treasury. But (if there are profits le-
gally available for distribution, and the
law under which the company was in-
corporated so permits) the company
may raise the money by discounting ne-
gotiable' paper; or by selling bonds,
scrip, or stock of another corporation
then in the treasury; or by selling its
own bonds, serip, or stock then in the
treasury; or by selling its own bonds,
scrip, or stock issued expressly for that
purpose. How the money s^all be
raised is wholly a matter of financial
management. The manner in which it
is raised in no way affects the question
whether the dividend received by the
stockholder is income or capital; nor can
it conceivably affect the question wheth-
er it is taxable as income.
Likewise, whether a dividend declared
payable from profits shall be paid in
cash or in some other medium is also
wholly a matter of financial manage-
ment. If some other medium is decided
upon, it is also wholly a question of
financial management whether the dis-
tribution shall be, for instance, in bonds,
scrip, or stock of another corporation
or in issues of its own. And if the divi-
dend is paid in its own issues, why
should there be a difference in result de-
pendent upon whether the distribution
was made from such securities then in
the treasury or from others to be creat-
ed and issued by the company expressly
for that purpose? So far as the distri-
bution may be made from its own is-
sues of bonds, or preferred stoek created
•4 li. ed.
expressly for the purpose, it clearly
would make no difference in the decision
of the question whether the dividend
was a distribution of profits, that the
securities had to be created expressly
for the purpose of distribution. If a
dividend paid in securities of that na-
ture represents a distribution of profits,
Congress may, of course, tax it as income
of the stockholder. Is the result differ-
ent where the security distributed is
common stock?
[228] Suppose that a corporation hav^
ing power to buy and sell its own stock
purchases, in the interval between its
regular dividend dates, with moneys de-
rived from current profits, some of its
own common stock as a temporary invest-
ment, intending at the time of purchase
to sell it before the next dividend date,
and to use the proceeds in paying divi-
dends, but later, deeming it inadvisable
either to sell this ^tock or to raise by
borrowing the money necessary to pay
the regular dividend in cash, declares a
dividend payable in this stock: — Can
anyone doubt that in such a case the
dividend in common stock would be in-
come of the stockholder, and constitu-
tionally taxable as such? See Ghreen ▼.
Bissell, 79 Conn. 547, 8 L.B.A.(N.S.)
1011, 118 Am. St. Rep. 156, 65 Ati. 1056,
9 Ann. Cas. 287; Leland v. Hay den, 102
Mass. 542. And would it not likewise
be income of the stockholder, subject to
taxation, if the purpose of the company
in buying the stock so distributed had
been from the beginning to take it off
the market and distribute it among the
stockholders as a dividend, and the
company actually did so? And pro-
ceeding a short step further: Suppose
that a corporation decided to eapitaliaie
some of its accumulated profits by creat-
ing additional common stock and selling
the same to raise working capital, but,
after the stock has been issued and cer-
tificates therefor are delivered to the
bankers for sale, general financial con-
ditions make it undesirable to market
the stock, and the company concludes
that it is wiser to husband, for working
capital, the cash which it had intended
to use in paying stockholders a dividend,
and, instead, to pay the dividend in the
common stock Avhich it had planned to
sell : Would not the stock so distributed
be a distribution of profits, and hence,
when received, be income of the stock-
holder, and taxable as such? If this be
conceded, why should it not be equally
income of the stockholder, and tajcable
as such, if the common stock created by
i>apitalizing profits had been originaUy
228-231
SUPREME COURT OF THE UNITED STATES.
Oct. Tbem,
created for the express purpose of being
distributed [229J as a dividend to the
stockholder who afterwards received itt
Second : It has been said that a divi-
dend payable in bonds or preferred
fttock created for the purpose of distrib-
uting profits may be income and tax-
able as such, but that the case is differ-
ent where the distribution is in common
stock created for that purpose. Vari-
ous reasons are assigned for making this
distinction. One is that the proportion
of the stockholder's ownership to the
aggregate number of the shares of the
company is not changed by the distribu-
tion. But that is equally true where the
dividend is paid in its bonds or in its
preferred stock. Furthermore, neither
maintenance nor change in the propor-
tionate ownership of a stockholder in &
corporation has any bearing upon the
question here involved. Another rea-
son assigned is that the value of the
old stock held is reduced approximately
by the value of the new stock received,
»o that the stockholder, after receipt of
the stock dividend, has no more than he
had before it was paid. That is equally
true whether the dividend be paid in
cash or in other property; for instance,
bonds, scrip, or preferred stock of the
company. The payment from profits
of a large cash dividend, and even a
small one, customarily lowers the then
market value of stock because the un-
divided property represented by each
ftbare has been correspondingly reduced.
The argument which appears to be most
strongly urged for the stockholders is,
that when a stock dividend is made, no
portion of the assets of the company is
thereby segregated for the stockholder.
But does the issue of new bonds or of
preferred stock created for use as a
dividend result in any segregation of
assets for the stockholder t In each case
he receives a piece of paper which en-
titles him to certain rights in the un-
divided property. Clearly, segregation
of assets in a physical sense is not an es-
sential of income. The year's gains of a
-partner are taxable as income, although
Sthere, likewise, no [230] segr^ation of
hm share in the gains from that of his
partners is had.
The objection that there has been no
segregation is presented also in another
form. It is argued that until there is a
segregation, the stockholder cannot
know whether he has really received
gains; since the gaitos may be invested
in p^ant or merchandise or other prop-
erty and perhaps be later lost. But is
dot this equally true of the share of a
partner in the year's profits of the firm,
or, indeed, of the profits of the individ-
ual who is engaged in business alone t
And is it not true, also, when dividends
are paid in cashf The gains of a busi-
ness, whether conducted by an individ-
ual, by a firm, or by a corporation, are •
ordinarily reinvested in large part.
Many a cash dividend honestly declared
as a distribution of profits proves later
to have been paid out of capital, because
errors in forecast prevent correct ascer-
tainment of values. Until a business ad-
venture has been completely liquidated,
it can never be determined with cer-
tainty whether there have been profits
unless the returns have at least exceed-
ed the capital originally invested. Busi-
ness men, dealing with the problem
practically, fix necessarOy periods and
rules for determining whether there
have been net profits, — that is, income
or gains. They protect themselves from
being seriously misled by adopting a
system of depreciation charges and re-
serves. Then, they act upon their own
determination whether profits have been
made. Congress in legislating has wise-
ly adopted their practices as its own
rules of action.
Third : The government urges that it
would have been within the pbwer of
Congress to have taxed as income of the
stockholder his pro rata share of un-
distributed profits earned, even if no
stock dividend representing it had been
paid. Strong reasons may be assigned
for suet a view. See Collector v. Hub-
bard (Brainard v. Hubbard) 12 Wall.
1,. 20 L. ed. 272. The undivided share
of a partner in the year's nndistributed
profits of his firm [281] is taxable as i»
come of the partner, although the share
in the gain is not evidenced by any ae^
tion taken by the firm. Why may not
the stockholder's interest in the gains
of the company t The law finds no diffi-
culty in disregarding the corporate fic-
tion whenever that is deemed necessary
to attain a just result. Linn & L. Tim-
ber Co. V. United States, 236 U. S. 674.
59 L. ed. 725, 35 Sup. Ct. Rep. 440; see
Morawetz, Priv. Corp. 2d ed. §§ 227-
231; Cook, Corp. 7th ed. §§ 663, 664.
The stockholder's interest in the prop-
erty of the corporation differs, not fun-
damentally but in form only, from the
interest of a partner in the property
of the firm. There is much authority
for the proposition that, under our law,
a partnership or joint stock company is
just as distinct and palpable an entity
in the idea of the law, as dii^tinguished
from the individuals coiuposin^ it, as
252 V. 9.
1019.
EISNER V. MACOMBEK.
231-233
is a corporation.^ No reason appears
why Congfress, in legislating: under a
grant of power so comprehensive as that
authorizing the levy of an income tax,
should be limited by the particular view
of the relation of the stockholder to the
corporation and its property which may,
in the absence of legislation, have been
taken by this court. But we have no
occasion to decide the question whether
Congress might have taxed to the stock-
holder his undivided share of the cor-
poration's earnings. For Congress has
in this aet liinited the income tax to that
share of the stockholder in the earnings
which is, in effect, distributed by means
of the stock dividend paid. In other
words, to render the stockholder taxable
there must be both earnings made and a
dividend paid. Neither earnings with-
out dividend, nor a dividend without
earnings, subjects the [2^2] stockholder
to taxation under the Revenue Act of
1916.
. Fourth: The equivalency of all divi-
dends representing profits, whether paid
in cash or in stock, is so complete that
serious question of the taxability of
stock dividends would probably never
have been made if Congress had under-
taken to tax only those dividends which
represented profits earned during the
year in which the dividend was paid, or
in the year preceding. But this court,
construing liberally not only the consti-
tutional grant of power, but also the
Revenue Act of October 3, 1913 [38 Stat,
at L. 114, ehap. 16, Comp. Stat. § 5291,
2 Fed. Stat. Anno. 2d ed. p. 724], held
that Congress might tax, and had taxed,
to the stockholder, dividends received
during the year, although earned by the
company long before, and even prior to
the adoption of the 16th Amendment.
Lynch v. Hornby, 247 U. S. 339, 62 L.
ed. 1149, 38 Sup. Ct. Rep. 543.» That
rule, if indiscriminatingly applied to all
stock dividends representing profits
earned, might, in view of corporate prac-
tice, have worked considerable hardship,
and have raised serious questions. Many
corporations, without legally capitaliz-
ing any part of their profits, had as-
signed definitely some part or all of the
f annual balances remaining after paying
the usual cash dividends, to the uses to
which permanent capital is ordinarily
applied. Some of the corporations doing
this transferred such balances on their
books to "Surplus" account,— distin-
guishing between such permanent **Sur-
plus" and the "Undivided Profits" ac-
count. Other corporations, without this
formality, had assumed that the annual
accumulating balances carried as undis-
tributed profits were to be treated as
capital permanently invested in the
business. And still others, without def-
inite assumption of any kind, had [233]
so used undivided profits for capital pur-
poses. To have made the revenue law
apply retroactively so as to reach such
accumulated profits, if and whenever it
should be deemed desirable to capitalize
them legally by the issue of additional
stock distributed as a dividend to stock-
holders, would have worked great in-
justice. Congress endeavored in the
Revenue Act of 1916 to guard against
any serious hardship which might other-
wise have arisen from making taxable
stock dividends representing accumulat-
ed profits. It did not limit the taxabil-
ity to stock dividends representing prof-
its earned within the tax year or in the
year preceding; but it did limit taxa-
bility to such dividends representing
profits earned since March 1, 1913.
Thereby stockholders were given notice
that their* share also in imdistributed
profits accumulating thereafter was at
some time to be taxed as income. And
Congress sought by § 3 to discourage the
postponement of distribution for the il-
legitimate purpose of evading liability
to surtaxes.
Fifth : The decision of this court, that
earnings made before the adoption of
the 16 th Amendment, but paid out in
cash dividend after its adoption, were
taxable as income of the stockholder, in-
volved a very liberal construction of the
Amendment. To hold now that earnings
both made and paid out after the adop-
tion of the 16th Amendment cannot be
taxed as income of the stockholder, if
paid in the form of a stock dividend,
involves an exceeding narrow construc-
* See **Some Judicial Myths," by Francis
M. Burdick. 22 Harvard t. Rev. 393. 394-
396; The Firm as a Legal Person, by Wil-
liam Hamilton Cowles, 67 Cent. L. J. 343,
348; The Separate Estates of Nonhanknipt
Partners, by J. D. Brannan. 20 Harvard L,
Rev. 589-592; compare 7 Harvard L. Rev.
p. 426; vol. 14, p. 222; vol. 17, p. 194.
• The hardship supposed to have resulted
from tuch a decision has been removed in
•4 li. ed.
the Revenue Act of 1916, as amended, b^
providing in § 31 (b) that such cash divi-'
dends shall thereafter be exempt from taxa-
tion if, before they are made, all earnings
made since February 28, 1913, shall have
been distributed. Act of October 3, 1917,
chap. 63. § 1211, 40 Stat, at L. .^18; Act
of Fcbruarv 24. 1919. chap. 18. § 201 (h),
40 Stat, at' L. 1059, Comp. Stat. § 6336* b.
589
238, 239
SL rilEME COURT OF THE UNITED STATES.
OoT. Term,
496, 501 (1870). See also Legal Tender
Cases. 1^ Wall. 457, 531, 20 L. ed. 287, 305
(1871); Trade Mark Cases, 100 U. S. 82,
96, 25 L. ed. 550, 553 ( 1879 ) . See Amer-
icaD Doctrine of Constitutional Law, by
James B. Thayer^ 7 Harvard L. Rev. 129,
142.
**With the exception of the extraordinary
decree rendered in the Dred Scott Case,
all of the acts or the portions
of the acts of Congress invalidated by the
courts before 1868 related to the organiza-
tion of courts. Denying the power of Con-
gress to make notes legal tender seems to
be the first departure from this rule."
Haines, American Doctrine of Judicial Su-
premacy, p. 288. The first legal tender de-
cision was overruled in part two years
later (1871), Legal Tender Cases, 12 Wall.
457, 20 L. ed. 287, and again in 1884, Legal
Tender Case, 110 U. S. 421, 28 L. ed. 204,
4 Sup. Ct. Rep. 122.
raaPl CLINTON H. pierce, Angelo Creo,
Charles Z. Zeilman, and Charles Nelson,
Plffs. in Err.,
V.
UNITED STATES OF AMERICA.
(See S. C. Reporter's ed. 239-273.)
Error to district court — extending re-
view beyond Federal question.
1. Jurisdiction of a direct writ of
error from the Federal Supreme Court to
a district court once having attached be-
cause of the presence of constitutional
questions continues, although such ques-
tions have since been decided in other cases
to be without merit, for the purpose . of
disposing of other questions raised in the
record.
[Por other cases, see Appeal and Error, 4297-
4800, in Digest Sup. (Jt. lOOS.l
Conspltecy — > to vtolate Espionage Act
— failure to agree upon methods in
advance.
2. A conspiracy to violate the Espio-
I Act of June 15, 1017, made criminal
^7 § 4> provided one or more of the conspira-
tors do any act to effect the object of the
conspiracy, is none the less criminal, if
Note. — On direct review by Federal
Supreme Court of district court judg-
ments or decrees — see notes to Berkman
V. United States, 63 L. ed. U. S. 877, and
B. Altman & Co. v. United States, 56 L.
ed. U. S. 894.
For a review of decisions under the
Espionage Act of June 15, 1917, see note
to United States v. Krafft, L.R.A.1918F,
410.
On the validity of legislation directed
against social or industrial propaganda
deemed to be of a dangerous tendency —
see note to State v. Moilen, 1 A.L.R. 336.
542
nage
thus attempted to be carried into effect,
merely because the conspirators failed to
agree in advance upon tne precise method
in which the law shall be violated.
[For other cases, see Conspiracy, II. in Digest
Sup. Ct. 1908.]
Conspiracy — overt act — necessity of
criminality — aiding averments by
allegations respecting overt acta.
3. While the averment of a conspiracy
cannot be aided by allegations respecting
the overt acts, and while under the Es-
pionage Act of June 15, 1917, § 4, as under
the Criminal Code, § 37, a mere conspiracy
without overt act done in pursuance of it
is not punishable criminally, yet the overt
act need not be, in and of itself, a crimi-
nal act, still less need it constitute the
very crime that is the object of the con-
spiracy*.
[For other cases, see Conspiracy, II. ; Indict-
ment, II. e, 3, b, in Digest Sup. Ct. 1906.]
Indictment — conspiracy — violating
Espionage Act — unlawful motive.
4. Averments in an indictment that de-
fendants, charged with committing and
conspiring to commit acts forbidden by the
Espionagie Act of June 16, 1917, unlaw-
fully, wilfully, or feloniously committed
such forbidden acts, fairly import an un-
lawful motive.
[For other cases, see Indictment, II. €, 8, ^
in Digest Sup. Ct. 1908.]
Criminal law — > indictment — > Buffl-
clency — question for jury.
5. Whether the statements contained in
a pamphlet, the distribution of which it
charged to amount to a violation of the
Espionage Act of June 15, 1917, had a
natural tendency to produce the forbidden
consequences as alleged, was a question to
be determined, not upon demurrer, but 1^
the jury at the trial.
[For other cases, see Criminal Law, III. d;
Trial, VI. c, 28, in Digest Sup. Ct. 1908.]
Evidence — sufficiency to support con*
victions — conspiring to violate E^
pionage Act.
6. Evidence that defendants, acting in
concert, with full understanding of its con-
tents, distributed publicly a highly colored
and sensational pamphlet fairly to be con-
strued as a protest against the further
prosecution by the United States of the
war with Germany, is sufficient to support
convictions of conspiring, contrary to the
Espionage Act of June 15, 1917, to cause
insubordination, disloyalty, and refusal of
dul^ in the military or naval forces, and
to . obstruct the recruiting and enlistment
service of the United States.
[For other cases, see Evidence, XII. n, in Di-
gest Sup. Ct. 1008.]
Trial — question for jury — prosecution '
for violating espionage Act.
7. What interpretation ought to be
placed u]K>n a pamphlet, the distribution of
which by the defendants is alleged to have
violated the Espionage Act of June 15,
1917. and what would be the probable effect
of distributing it in the mode adopted, and
what were defendants' motives m doing
352 TT. S.
1919.
PIERCE V. UKITED STATES.
this, were questions for the jury, not the
court, to decide.
[For other cases, see Trial, VI. c, 28, In Di-
Rest Sup. Ct 1908.]
Trial — question for jury — prosecu-
Uon for Tiolatlng: Espionage Act.
8. Whether the printed words of a pam-
phlet, the distribution of which was alleged
to have violated Uie Espionage Act of June
15, 1917, would in fact produce as a proxi-
mate result a material interference with the
rocniiting or enlistment service, or the op-
eration or success of the United States
forces, was a question for the jury to de-
cide in view of all the circumstances of
the time, and considering the place and
manner of distribution.
[For other cases, see Trial, VI. c, 28, in Di-
gest Sup. Ct 1908.]
Evidence — sufficiency to support con-
viction -^ violation of Espionage Act.
9. A conviction of making or convey-
ing false reports or false statements with
Intent to interfere with the operation or
success of the military or naval forces of
the United States, or to promote the suc-
cess of its enemies, contrary to the Espion-
age Act of June 15, 1917, is sustained by
evidence which warranted the jury in find-
ing that the statements in a pamj>hlet dis-
tributed by defendants during the war with
Germany were fftlse in fact, and Imown to
be so by the defendants, or else were dis-
tributed recklessly without effort to ascer-
tain the truth, and were circulated wilfully
in order to interfere with the success of
the forces of the United States.
[For other cases, see Evidence, XII. n, in Di-
gest Sup. Ct. 1908.]
Trial — province of court and jury —
criminal prosecution — weight of evi-
dence.
10. There being substantial evidence in
stipport of the charges in an indictment, the
trial court would have erred had it per-
emptorily directed an iicquittal upon any
of the counts, and the question whether
the effect of the evidence was such as to
overcome any reasonable doubt of guilt was
for the jury, not the court, to decide.
[For other cases, see Trial, VI. c, 23, in Di-
gest Sup. Ct 1908.]
War — violations of E^spionage Act —
false statements intended to interfere
with war operations.
11. A construction cannot be given to
the provision of the Espionage Act of June
15, 1917, making it criminal, when the
United States is at war, . wilfully to make
or convey false reports or false statements
with intent, to interfere with the success
of the military or naval forces of the Unit-
ed States, or to promote the success of its
enemies, which will exclude statements that
on their face, to the common understand-
ing, do not purport to convey anything new,
but only to interpret or comment on mat-
ters pretended to be facts of public knowl-
edge, or will excuse statements, however
false, and with whatever evil purpose circu-
lated, if accompanied with a pretense of
comment upon them as matters of public
concern.
•4 li. ed.
Appeal — insufficiency of one count In
indictment — validity of sentence
under good counts.
12. The conceded insufficiency of one of
the counts in an indictment does not war-
rant a reversal of a conviction where the
sentence imposed upon the defendants does
not exceed that which might lawfully have
been imposed under the good counts upon
which they were also found guilty.
[For other cases, see Apoeal and Error, VIU.
m, 2; Trial, IX. b. in Digest Sup. Ct. 190S.}
[No. 234.]
Argued November 18 and 19, 1919. Decided
March 8, 1920.
IN ERROR to the District Court of the
United States for the Northern Dis-
trict of New York to review conviotiona
for violating or conspiring to violate the
Espionage Act. Affirmed.
See same case below on demurrer^ 245
Fed. 878.
The facts are stated in the opinion.
Mr. Frederick A. Mohr argued the
cause and filed a brief* for plaintiffs in
error:
The time of the conspiracy should at
least be laid before the time of the overt
act.
United States v. Milner, 36 Fed. 890.
Under this indictment should other
proceedings be taken against defend-
ants for a similar offense, from this rec-
ord they would be unable to plead a
former acquittal or conviction.
Cochran v. United States, 157 U. 8.
286, 39 L. ed. 704, 15 Sup. Ct. Rep. 628;
Sheridan v. United States, 149 C. C. A.
437, 236 Fed. 305.
The whole structure of the alleged
conspiracy rests upon the overt act, and
consists of speculative, deductions from
that admitted fact. The charge cannot
be aided or established by setting forth
the overt act
United States v. Britton, 108 U. S.
199, 27 L. ed. 698', 2 Sup. Ct. Rep. 531.
The indictment should set forth the
factd and circumstances upon which the
allegations of conspiracy rest.
Haynes v. United States, 42 C. C. A.
34, 101 Fed. 818; Pettibone v. United
States, 148 U. S. 197, 37 L. ed. 419, 13
Sup. Ct. Rep. 542.
In cases like this, where the act itself
is, apart from the intent, colorless, the
color of the intent must be proved as any
other element of criminality is proved.
Hibbard v. United States, 96 CCA.
554, 172 Fed. 66, 18 Ann. Cas. 1040.
Assuming the presence of the forbid-
den aims in the minds of the defcndi-mts,
this court has ruled that such a mental
543
240, 241
SUPREME COURT OF THE UNlTEb STATJvS.
Oct. Tebm,
state must concur with a situation in
which the logical and natural ejffect of
the written or spoken words would pre-
cipitate the conduct and consequences
set forth in the statute.
Schenck v. United States, 249 U. S.
47, 63 L. ed. 470, 39 Sup. Ct. Rep. 247 ;
Herman v. United States, 168 C. C. A.
551, 257 Fed. 601; Wells v. United
States, 168 C. C. A. 555, 257 Fed. 605;
Wolf V. United States, 170 C. C. A. 364,
259 Fed. 388. See also Balbas v. United
States, 168 C. C. A. 229, 257 Fed. 17.
Admitting the presence of a criminal
purpose, coupled with such juxtaposition
of circumstances as will permit Congress
to limit the right to freedom of speech
and escape the constitutional prohibition,
the language itself must possess such
character as will clearly show it to be
calculated to produce the effects con-
templated in the law.
Schenck v. United States, 249 U. S. 47,
63 L. ed. 470, 39 Sup. Ct. Rep. 247; Wolf
V. United States, 170 C. C. A. 364, 269
Fed. 388.
Construed in the light most favorable
to the prosecution, it is submitted that
the nature of the article is as consistent
with innocence as with guilt, as a mat-
ter of law.
Scoggins ▼. United States, 3 A.L.R.
1093, 167 C. C. A. 153, 255 Fed. 825.
The statute is highly penal, and re-
quires a high degree of clear and con-
vincing testimony.
People V. Davis, 1 Wheeler, C. C. 235.
Assistant Attorney General Stewart
argued the cause, and, with Mr. W. C.
Herron, filed a brief for defendant in
• error :
The jury was justified in finding that
such circulation of this pamphlet con-
stituted an attempt to cause insubordi-
nation and disloyalty in the military
forces, and an obstruction of recruiting
and enlistment under the second and
sixth counts.
Schenck v. United States, 249 U. S. 47,
63 L. ed. 470, 39 Sup. Ct. Eep. 247;
Frohwerk v. United States, 249 U. S. 204,
63 L. ed. 561, 39 Sup. Ct. Rep. 249 ; Debs
v. United States, 249 U. S. 211, 63 L. ed.
566, 39 Sup. Ct. Rep. 252 ; United States
V. Eastman, 252 Fed. 233.
A mental attitude of indifference to
the truth or falsity of the statement is
the legal equivalent of knowledge of its
falsity.
Rex. V. Long, 4 Car. & P. 440.
A jury may take judicial notice of
facts of general knowledge and interest,
544
equally, within their sphere, with the
judge.
Thayer, Ev. p. 296; Com. v. Peckham,
2 Gray, 514.
It was immaterial whether any person
who had been accepted for the Army
received one of the pamphlets or not.
O'Hare v. United States, 165 C. C. A.
208, 253 Fed. 538 ; Doe v. United States,
166 C. C. A. 3, 253 Fed. 903; United
States V. Krafft, L.R.A.1918F, 402, 162
C. C. A. 117, 249 Fed. 924; Rhuberg v.
United States, 167 C. C. A. 185, 255 Fed.
870; Coldwell ▼. United States, 168 C.
C. A. 151, 256 Fed. 811; Schenck v.
United States, 249 U. S. 47, 52, 63 L. ed.
470, 474, 39 Sup. Ct. Rep. 247. .
If th^ verdict and sentence are good
as to any one coimt, the judgment must
be afiftrmed.
Kirkman v. McClaughry, 152 Fed. 258;
Buessel v. United States, 170 C. C. A.
105, 258 Fed. 821.
Mr. Justice Pitney delivered the opin-
ion of the court:
Plaintiffs in error were jointly in-
dicted October 2, 1917, in the United
States district court for the northern
district of New York, upon 6 counts, of
which the 4th and 5th were struck out
by agreement at the trial and the 1st
is now abandoned by the government.
The 2d count charged that through-
out the period from [241] April 6, 1917,
to the date of the presentation of the in-
dictment, the United States being at
war with the Imperial German Govern-
ment, defendants, at the city of Albanyi
in the northern (^strict of New York,
and within the jurisdiction, etc., unlaw-
fully and feloniously conspired together
and with other persons to the grand
jurors unknown to commit an offense
against the United States; to wit: "The
offense of unlawfully, feloniously, and
wilfully attempting to cause insubor-
dination, disloyalty, and refusal of duty
in the military and naval forces of the
United States when the United States
was at war, and to the injnry of the
United States in, through, and by per-
sonal solicitations, public speeches, and
distributing and publicly circulating
throughout the United States certain
articles printed in pamphlets called 'The
Price We Pay/ which said pamphlets
were to be distributed publicly through-
out the northern district of New York,
and which said solicitations, speeches,
articles, and 'pamphlets would and
should persistently urge insubordina-
tion, disloyalty, and refusal of duty in
the said military and naval forces of
3S8 V. S.
19l»^.
riKRCE V. LXITED STATES.
241-243
the United States, to the injury of tke
United States and its military and nayal
service, and failure and refusal on the
part of available persons to enlist there-
in, and should and would, through and
by means above mentioned, obstruct the
recruiting and enlistment service of the
United States when the United States
was at war, to the injury of that service
and of the United States." For overt
acts it was alleged that certain of the
defendants, in the city of Albany, at
times specified, made personal solicita*
tions and public speeches, and especial-
ly that they published and distributed
to certain persons named and other per-
sons to the grand jurors unknown cer-
tain pamphlets headed ''The Price We
Pay," a copy of which was annexed to
the indictment and made a part of it.
The 3d count charged that during the
same period and on August 26, 1917, the
United States being at war, etc., [242]
defendants, at the city of Albany, etc.,
wilfully and feloniously made, distribut-
ed, and conveyed to certain persons
named and others to the grand jurors
unknown, certain false reports and false
statements in certain pamphlets attached
to and made a part of the indictment and
headed •'The Price We Pay," which false
statements were in part, as shown by
certain extracts quoted from the pam-
phlet, with intent to interfere with the
operation and success of the military
and naval forces of the United States.
The 6th count charged that at the
same place, during the same period, and
on August 27, 1917, while the United
States was at war, etc., defendants wil-
fully and feloniously attempted to cause
insubordination, disloyalty,, mutiny^ and
refusal of duty in the military and naval
service of the United States by means of
the publication, circulation, and distri-
bution of "The Price We Pay" to cer-
tain persons named and others to the
grand jurors unknown.
A general demurrer was overruled,
whereupon defendants pleaded not
guilty and were put on trial together,
with the result that Pierce, Creo, and
1 Extract from Act of Jime 15, 1937,
chap. 30, 40 Stat, at L. 217, 219, Comp.
Stat. §§ 10,212a, 10,212c, 10,212d, Fed. Stat.
Anno. Supp. 1918, p. 120.
Sec 3. Whoever, when the United States
it at war, shall wilfully make or convey
false reports or false statements with in-
tent to interfere with the operation or suc-
cess of the military or naval forces of the
United States or to promote the success
of its enemies and whoever, when the Unit-
ed States is at war, shall wilfully cause
or attempt to cause insubordination, die-
loyal^, mntinv, or refusal of duty, in
•4 li. ed.
Zeilman were found guilty upon the 1st,
2d, 3d, and 6th counts, and Nelson upon
the 3d count only. Each defendant was
separately sentenced to a term of im-
prisonment upon each count on which
ne had been found guilty; the several
sentences of Pierce> Creo, and Zeilman,
however, to run concurrently.
The present direct writ of error was
sued out under § 238, Judicial Code [36
Stat, at L. 1157, chap. 231, Comp. Stat.
§ 1215, 5 Fed. Stat. Anno. 2d ecL 794],
because of contentions that the Selec-
tive Draft Act and the Espionage Act
were .unconstitutional. These have since
been set at rest. Selective Draft Law
Cases (Arver v. United States) 245 U.
S. 366, 62 L. ed. 352, L.B.AJ918C, 361,
38 Sup. Ct. Bep. 159, Ann. Cas. 1918B,
806; Schenck v. United States, 249 U.
S. 47, 51, 63 L. ed. 470, 473, 39 Sup.
Ct. Rep. 247; Frohwerk v. United States,
249 U. S. 204, 63 L. ed. 561, 39 Sup. Ct.
Rep. 249 ; Debs v. United States, 249 U.
S. 211, 215, 63 L. ed. 566, 569, 39 Sup.
Ct. Rep. 252. But our jurisdiction con-
tinues for the purpose of disposing of
other questions raised in the record. Bro-
Ian V. United States, 236 U. S. 216, 59
L. ed. 544, 35 Sup. Ct. Rep. 285. •
[243] It IB insisted that there was
error in jef using to sustain the demurrer,
and this on the ground that (1) the facts
and circumstances upon which the allega-
tion of conspiracy rested were, not stat-
ed; (2) there was a failure to set forth
facts or circumstances showing unlaw-
ful motive or intent; (3) there was a
f&ilure to show a clear and present dan-
ger that the distribution of the pamphlet
would bring about the evils that Con-
gress sought to prevent by the enact-
ment of the Espionage Act; and (4)
that the statements contained in the
pamphlet were not such a^ would natu-
rally produce the forbidden consequences.
What we have recited of the 2d count
shows a sufficiently definite averment of
a conspiracy and overt acts under the
provisions of title I. of the Espionage
Act.* The 4th section makes criminal
the military or naval forces of the United
States, or shall wilfully obstruct the re-
cruiting or enlistment service of the United
States, to the injury of the service or of the
United States, shall be punished by a fine
of not more than $10,000 or iinprisonment
for not more than twenty years, or both.
Sec 4. If two or more persons conspire
to violate the provisions of sections two
or three of this title, and one or more of
such persons does any act to effect the
object of conspiracy, each of the parties
to such conspiracy shall be punished as in
said sections provided in the case of the
35 545
243-246
SUPREME COURT OF THE UNITED STATES.
Oct. Tboi,
a conspiracy '^ violate the provisions
of seetiqps two or three of this title,''
provided one or more of the con^irators
do any act to [244] effect the object of
the conspiracy. Such a conspiracy, thns
attempted to be carried into effect, is
nonetheless punishable because the con-
spirators fail to agree in advance upon
the precise method in which the law shall
be violated. It is true the averment of
the conspiracy cannot be aided by the
allegations respecting the overt acts.
United States v. Britton, 108 U. S. 199,
205, 27 L. ed. 698, 700, 2 Sup. Ct. Rep.
531; Joplin Mercantile C!o. v. United
States, 236 U. S. 531, 536, 59 L. ed. 705,
708, 35 Snp. Ct. Rep. 291. On the other
hand, while under § 4 of the Espionage
Act, as under § 37 of the Criminal Code
[35 Stat, at L. 1096, chap. 321, Comp.
Stat. § 10,201, 7 Fed. Stat Anno. 2d
ed. p. 534], a mere conspiracy, with-
out overt act done in pursuance of it, is
not punishable criminally, yet the overt
act need not be, in and of itself, a crim-
inal act; still less need it constitute the
very crime that is the object of the con-
spiracy. United States v. Rabinowich,
238 U. S. 78, 86, 59 L. ed. 1211, 1214,
35 Snp. Ct. Rep. 682 ; Goldman v. United
States, 245 U. S. 474, 477, 62 L. ed.
410, 413, 38 Sup. Ct. Rep. 166. .
As to the second pomt: Averments
that defendants unlawfully, wilfully, or
feloniously committed the forbidden acts
fairly import an unlawful motive; the
3d count specifically avers such a mo-
tive; the conspiracy charged in the 2d
and the wilful attempt charged in the
6th necessarily involve unlawful mo-
tives.
The third and fourth objections point
to no infirmity in the averments of the
indictment. Whether the statements
contained in the pamphlet had a natural
' tendency to jJroduce the forbidden con-
sequences, as alleged, was a question to
be determined not upon demurrer, but
by the jury at the trial. There was no
error in overruling the demurrer.
Upon the trial, defendants' counsel
moved that the jury be directed to acquit
the defendants, upon the ground that
the evidence was not sufficient to sus-
tain a conviction. Under the exceptions
taken to the refusal of this motion it is
urged that there was no proof (a) of
conspiracy, (b) of criminal purpose or
intent, (c) of the falsity of the state-
ments contained in the pamphlet circu-
lated, [245] (d) of knowledge on de-
fendants' part of such falsity, or (e) <^
circumstances creating a danger that its
circulation would produce the evils whieh
Congress sought to prevent ; and further
(f ) that the pamphlet itself could not
legitimately be construed as tending te
produce the prohibited consequences.
The pamphlet— -"The Price We Pay*'
— was a highly colored and sensational
document, issued by the national office
of the Socialist party at Chicago,
Illinois, and fairly to be construed as a
protest against the further prosecution
of the war by the United States. It
contained much in the way of denuncia-
tion of war in general, the pending war
in particular; something in the way of
assertion that under Socialism things
would be better; little or nothing in the
way of fact or argument to support -the
assertion. It is too long to be quoted
in f ulL The following extracts will suf-
fice, those indicated by italics being the
same that were set forth in the body of
the 3d count :
''Conscription is upon us; the draft
law is a fact!
^'Into your homes the recruiting ofi-
cere are coming. They wUl t<ike your
sons of military age and impress them
into the Army;
''Stand them up in long rows, break
them into squads and platoons, teach
them to deploy and wheel;
"Guns wi]l be put into their hands;
they will be taught not to think, only to
obey without questioning.
"Then they will be shipped thru the
submarine zone by the hundreds of thou-
sands to the bloody quagmire of Europe.
"Into that seething, heaving swamp
of torn flesh and floating entrails they
will be plunged, in regiments, divisions
and armies, screaming as they go.
"Agonies of torture will rend their
flesh from their sinews, will crack their
bones and dissolve their lungs; every
pang will be multiplied in its passage
to you.
[246] "Black death will be a guest at
every American fireside. Mothers and
fathers and sisters, wives and sweet-
hearts will know the weight of fliat
awful vacancy left by the bullet which
finds its mark.
"Jlnd still the recruiting officers wiU
come; seizing age after age, moitntin^ up
doing of the act the accomplishment of
which is the object of such conspiracy.
Except as above provided conspiracies to
commit offenses under this title shall be
punished as provided by section thirty-
54«
seven of the act to codify, revise, and
amend the penal laws ol the United States,
aimroved March fourth, nineteen hundred
and nine.
252 V. 8.
1!>1U.
PIERCE V. UNITED STATES.
240-246
tb the elder ones and taking the younger
ones as they grow to soldier size;
''And still the toll of death will grow.
"The manhood of America gazes at
that seething^ heaving swamp of bloody
carrion in Europe, and say 'Must we —
be that!'
'Ton cannot avoid it; yon are being
dragged, whipped, lashed, hurled into
it; your flesh and brains and entrails
must be crushed out of you and poured
into that mass of festering decay;
'^t is the prioe you pay for your
stupidity — you who have rejected Social-
ism.
• •••.•••
'Tood prices go up like skyrockets;
and show no sign of bursting and com-
ing down.
^The Attorney General of the. United
States is so busy sending to prison men
who do not , stand up when the Star
Spangled Banner is played, that he has
no time to protect the food supply from
gamblers.
''This war began over commercial
routes and ports and rights; and imder-
neaUi all the talk about democracy
versus autocracy, you hear a continuid
note, and undercurrent, a subdued re-
frain:
"*Get ready for the commercial war
that will follow this war.'
^Commercial war preceded this war;
it gave rise to this war; it now gives
point and meaning to this war;
• •*..•••
[247] "This, you say, is a war for the
rights of small nations ; and the first land
sighted when you sail across the Atlan-
tic is the nation of Ireland, which has
suffered from England for three cen-
turies more than what Germany has in-
flicted upon. Belgium for three years.
"But go to it! Believe everything you
are told — ^you always have, and doubt-
less always will, believe them.
"For this war, — ^as everyone who
thinks or knows anything will say,
whenever truth-telling becomes safe and
possible again, — this war is to determine
the question, whether the chambers of
commerce of the allied nations or of the
Central Empires have the superior right
to exploit undeveloped countries.
"It is to detormine whether interest,
dividends and profits shall be paid to
investors speaking German or those
speaking English and French.
*^Our entry into it was determined by
•4 li. ed.
the certainty that if the AUies do not win,
J. P. Morgan^s Uans to the AUies wiU be
repudiated, and those American investors
who hit on his promises would be hooked."
These expressions were interspersed
with suggestions that the war was the
result of the rejection of Socialism, and
that Socialism was the "salvation of the
human race."
It was in evidence that defendants
were members of the Socialist party, — a
party "organized in locals tluroughout
the country," — and affiliated with a local
bmich in the city of Albaay. There
was-evidenee that at a meeting of that
branch, held July 11, 1917, at which
Pierce was present, the question of dis-
tributing "The Price We Pay" was
brought up, sample copies obtained from
the national organization at Chicago
having been pibduced for examination
and consideration; that the pamphlet
was discussed, as well as the question
of ordering a large number of copies
from the national organization for dis*
tribution ; it was stated that criminal pro-
ceedings [248] were pending in the Unit-
ed States district colirt for the district of
Maryland against parties indicted for
distributing the same pamphlet; some of
the members present, one of them an
attorney, advised ajg^st its distribu-
tion, and a motion was adopted not to
distribute it until it was known to be
legal. However,' some action appeturs
to have been taken towards procuring
copies for distribution, for on July 17th
a large bundle of them, said to have been
5,000 copies, was ddivared at Pierce's
house by the literature agent of the Al-
bany local. At* a meeting held July 25 the
subject was again brought up, it having
become known that in the criminal pro-
ceedings before mentioned the court had
directed a verdict of acquittal ; there-
upon the resolution of Jmy 11 was re-
scinded and. distributers were called for.
On July 29, defendants Pierce, Creo, and
Zeilman met at Piercers house about
half past 5 o'clock in the morning, and
immediately began distributing the
pamphlets in large numbers throughout
the city of Albany. Each of them took
about 500 copies, and having agreed
amon^ themselves about the division of
the territory, they went from house to
house, leaving a copy upon each door-
step. They repeated this on successive
Sundays until August 26, when they
were arrested. Nelson acted with them
as a distributer on the latter dato, and
perhaps on one previous occasion.
There was evidence that in some- in-
stances a leaflet entitled "Protect Your
547
.248-251
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
Rights/' and bearing the Chicago ad-
dress of the national office of the Social-
ist party, -was folded between the pages
of the pamphlet. The leaflet was a
fervid appeal to the reader to join the
Socialist party, upon the groond that
it was the only organization that was
opposing the war. It declared, among
other things : 'This organization has op-
posed war and conscription. It is still
opposed to war and conscription. . . .
Do you want to help in this struggle t
. . . The party needs you now as it
never needed you before. You [249]
need the party now as you never needed
it before. Men bre going to give up their
lives for a cause which you are con-
vinced is neither great or noble; will
you then beg^rudge your best efforts to the
cause that you feel certain is both great
and noble and in which lives the only
hope and promise of the future f And
there was evidence of declarations made
by Pierce on the 16th and 17th of Au-
gust, amounting to an acknowledgment
of a treasonable purpose in opposing the
draft, which he sought to excuse on the
ground that he had ''no use for Eng-
land."
It was shown without dispute that
defendants distributed the pamphlet —
"The Price Wo Pay"— with full under-
standing of its contents; and this of it-
sdf furnished a ground for attributing
to 'them an intent to bring about, and
for finding that they attempted to bring
about, any and all such consequences as
reasonably might be anticipated from
its distribution. If its probable effect
was at all disputable, at least the jury
fairly might believe that, under the cir-
cumstances existing, it would have a
tendency to cause insubordination, dis-
loyalty, and refusal of duty in the mili-
tary and nayal forces of the United
States; that it amounted to an obstruc-
tion of the recruiting and enlistment
service; and that it was intended to in-
terfere with the 'success of our military
and naval forces in the war in which the
United States was then engaged. Evi-
dently it was intended, as the jury
found, to interfere with the conscription
and recruitment services; Jto cause men
eligible for the service to evade the
draft; to bring home to them, and
especially to their parents, sisters,
wives, and sweethearts, a sense of im-
pending personal loss, calculated to dis-
courage the young men from entering
the service; to arouse suspicion as to
whether the chief law officer of the gov-
ernment was not more concerned in en-
forcing the strictness of military dis-
548
cipline than in protecting the people
against improper speculation in their
food supply; and to produce a belief
that our [250] participation in the war
was the product of sordid and sinister
motives, rather than a design to protect
the interests and maintain the honor of
the United States.
What interpretation ought to be
placed upon the pamphlet, what would
be the probable effect of distributing it
in the mode adopted, and what were de-
fendants' motives in doing this, were
questions for the jury, not the court,
to decide. Defendants took the witness
stand and severally testified, in effect,
that their sole purpose was to gain
converts* for Socialism, not to inteifere
with the operation or success of the
naval or military forces of the United
States. But their evidence was far
from conclusive, and the jury very rea-
sonably might find — as evidently they
did — that the protestations of innocence
were insincere, and that the real pur-
pose of defendants — indeed, the real ob-
ject of the pamphlet — was to hamper
the government in the prosecution of
the war.
Whether the printed words would in
fact produce as a proximate result a
material interference with the recruit-
ing or enlistment service, or the opera-
tion or success of the forces of the
United States, was a question for the
jury to decide in view of all the circum-
stances of the time, and considering the
place and manner of distribution.
Schenck v. United States, 249 U. S. 47,
52, 63 L. ed. 470, 473, 39 Sup. Ct. Rep.
247; Prohwerk v. United States, 249 U.
S. 204, 208, 63 L. ed. 561, 564, 39 Sup.
Ct. Rep. 249; Debs v. United States, 249
U. S. 211, 215, 63 L. ed. 566, 569, 39
Sup. Ct. Rep. 252.
Concert of action on the. part of
Pierce, Creo, and Zeilman clearly ap-
peared, and, taken in connection with
the nature of the pamphlet and their
knowledge of its contents, furnished
abundant evidence of a conspiracy and
overt acts to sustain their conviction
upon the second count.
The validity of the conviction upon
the third count (the only one that in-
cludes Nelson) depends upon whether
there was lawful evidence of the falsity
of the statements contained in the
pamphlet, and tending to show that,
[251] knowing they were false, or dis-
regarding their probable falsity, defend-
ants wilfully circulated it^ with intent to
interfere with the operation or success
of the military or naval forces of the
2&S V. S.
1919.
PIERCE V. UNITED STATES.
261-253
\
United States. The criticism of the evi-
dence admitted to show the untrath of
the statements about the Attorney Gen-
eral and about J. P. Morgan's loans to
the Allies is not well founded; the evi-
dence was admissible; but we hardly see
that it was needed to convince a rea-
sonable jury of the falsity of these and
other statements contained in the pam-
phlet. Common knowledge (not to men-
tion the President's Address to Congress
of April 2f 1917, and the Joint Rc^lu-
tion of April 6 [40 Stat, at L. 1, chap.
1], dedaring war, which were intro-
duced in evidence) would have sufficed
tor show at least that the statements as
to the causes that led to the entry of
the United States into the war against
Germany were grossly false; and such
common knowledge went to prove also
that defendants knew they were untrue.
That they were false if taken in a literal
sense hardly is disputed. It is argued
that they ought not to be taken literally.
But when it is remembered that the
pamphlet was intended to be circulated,
and, so far as defendants acted in the
matter, was circulated, among readers
of all classes and conditions, it cannot
be said as matter of law that no con-
siderable number of them would under-
stand the statements in a literal sense
and take them seriously. The jury was
warranted in finding the statements false
in fact, and known to be so by the
defendants, or else distributed reckless-
ly, without effort to ascertain the truth
(see Cooper v. Schlesinger, 111 U. S.
148, 155, 28 L. ed. 382, 384, 4 Sup. Ct.
Rep. 360), and circulated wilfully in
order to interfere with the success of
the forces of the United States. This is
sufficient to sustain the conviction of all
of the defendants upon the third count.
There being substantial evidence in
support of the charges, the court would
have erred if it had peremptorily direct-
ed an acquittal upon any of the counts.
The [252] question whether the effect
of the evidence was such as to overcome
any reasonable doubt of guilt was for
the jury, not the court, to decide.
It is suggested that the clause of § 3
— ^'Whoever, when the United States is
at war, shall wilfully make or convey
false reports or false statements with
intent to interfere with the operation or
success of the military or naval forces
of the United States or to promote the
success of its enemies" — cannot be con-
strued to cover statements that, on their
face, to the common understanding, do
not purport to convey anything new,
but onlv to interpret or comment on
«4 Li. eid.
matters pretended to be facts of public
knowledge; and that however false the
stateme&tfl, and with whatever evil pur-
pose circulated, they are not punishable
if accompanied with tf pretense of com-
menting upon, them as niatters of public
concern. We cannot accept such a con-
struction ; it unduly restricts the natural
meaning of the clause, leaves little for
it to operate upon, and disregards the
context and the circumstances under
which the statute was passed. In effect,
it would allow the professed advocate
of disloyalty to escape responsibility for
statements however audaciously false,
so long as he did but reiterate what had
been said before; while his ignorant
dupes, believing his statements, and
thereby persuaded to obstruct the re-
cruiting or enlistment service, would be
punishable by fine or imprisonment
under the same section.
Other assignments of error pointing
to rulings upon evidence and instruc-
tions, given or refused to be given to
the jury are sufficiently disposed of by
what we have said.
The conceded insufficiency of the first
count of the indictment does not war-
rant a reversal, sinee the sentences im-
posed ' upon Pierce, Creo, and Zeilman
did not exceed that which lawfully
might have been imjxwed under the 2d,
3d, or 6th counts, so that the concur-
rent sentence under the 1st count adds
nothing to their punishment. [253]
Claassen v. United States, 142 U. S. 140,
146, 35 L. ed. 966, 968, 12 Sup. Ct. Rep.
169; Evans v. United States (2 Cases)
153 U. S. 584, 595, 608, 38 L. ed. 830,
834, 839, 14 Sup. Ct. Rep. 934, 9 Am.
Crim. Rep. 668; Putnam v. United States,
162 U. S. 687, 714-, 40 L. ed. 1118, 1128, 16
Sup. Ct. Rep. 923; Abrams v. United
States, 250 U. S. 616, Q19, 63 L. ed.
1173, 1175, 40 Sup. Ct. Rep. 28.
Judgments affinned.
Mr. Justice Brandeis delivered the
following dissenting opinion, in which
Mr. Justice Holmes concurs:
What is called ^'distributing litera-
ture" is a means commonly used by the
Socialist party to increase its member-
ship and otherwise to advance the cause
it advocates. To this end the national
organization, with headquarters at Chi-
cago, publishes such ^'literature" from
time to time and sends sample copies to
the local organizations. These, when
they approve, purchase copies and call
upon members to volunteer for service
in making the distribution locally. Some
time before July 11, 1917, a local of the
549
253-255
SUPREME COURT OF THE UNITED STATES.
Oct. fcEM,
Socialist party at Albany, Nqw York^
receiyed from the national organisation
sample copies of a foar-t>age lestflet en-
titled "The Price We Pay," written by
Irwin St. John Tucker, an Episcopal
clergyman and a. man of snlfioient promi-
nence to have been included in the 1916-
1917 edition of **Who's -Who in Ameri-
ca." The proposal to distribute this
leaflet came up for action at a meeting
of the Albany local held on July 11,
1917. A member who was a lawyer
called attention to the fact that the
question whether it was legal to distrib-
ute this leaflet was involved in a case
pending in Baltimore in the district
court of the United States; and it was
voted **not to distribute *The Price We
Pay' until we know if it is legal/* The
case referred to was an indictment under
the Selective Draft Act for eoospiraey
to obstruct recruiting by aewans of dis-
tributing the leaflet. Shortly after tiie
July 11th meeting it became known that
District Judge Rose had directed an ac-
quittal in that case; and at the next
meeting [254] of the local, held July
25th. it was voted to rescind the motion
**against distributing *The Price We Pay'
and call for distributers." Four mem-
bers of the local, two of them tiative
Americans, one a naturalised citizen, and
the fourth a foireigner who had filed his
flrst naturalization papers, volunteered
as distributers. They distributed about
five thousand copies by hand in Albany.
District Judge Rose, in directing an
acquittal, had said of the leaflet iu the
Baltimore case:
**! do not think there is anything to
go to the jury in this case.
'*Yon may have your own opinions
about that circular; I -have very strong
individual opinions about it, and as to
the wisdom ai^ fairness of what is said
there; but so far as I can see it is
principally a circular intended to induce
people to subscribe to Socialist news-
papers and to get reemits for the So-
cialist party. I do not think that we
ought to attempt to prosecute people for
that kind of thing. It may be very un-
wise in its effect, and it may be un-
patriotic at that particular time and
f^aee, but it would be going very far
indeed. — further. I think, than any law
that I know of would justify, — ^to hold
that there has been made out anv case
here even tending to show that there
was an attempt to persuade men not to
obey the law,*'
In New York a different view was
taken; and an indictment in six connts
was foimd aeainst the four distributers.
550
Two of the coimts were eliminated «t
the trial. On the other four there were
convictions, and on each a sentence ef
fine and imprisonment. But one of the
four counts was abandoned by the g^v-
emment in this court. There remain
for consideration count 3, which charges
a violation of § 3 of the Espionage A^
[Act of June 15, 1917, 40 Stat at L.
219, chap. 30, Comp. Stat. § 10,212c,
Fed. Stat Anno. Supp. 1918, p. 120]
by making false reports and false state-
ments, with the intent 'Ho interfere with
the operation and success of the mili-
tary and naval forces -/" and counts 2
and 6, also involving § 3 of the fiq^io-
nage Act, the one for cons|>iring, tke
other for attempting, [255] ^to eaane
insubordination, disloyalty, and refusal
of duty in the military and naval Im^ss.''
Denuurrers to the sevmd eounts and mo-
tions that a verdict be direeted fitM- the
several defendants were overruled.
In eonsidering the several counts it is
important to note that three classes of
c^enses are included in § 3 of the Es-
pionage Act, and that the essentials of
liability under them differ mat^ally.
The first class, under which count 3 is
drawn, is the offense of making or con-
veying false statements or reports with
intent to interfere with the operations
or success of the military and naval
forces. The second, involved in eounts
2 and 6, is that of attempting to cause
insubordination, disloyalty, mutiny, or
refusal of duty. With the third, that
of obstructing the recruiting and enlist-
ment service, we have, since the aban-
donment of the first count, no eonoem
here. Although the uttering or publish-
ing of the words charged be admitted,
there necessarily arises in every case —
whether the offense charged be of the
first class or of the second — the ques-
tion whether the words were used
'binder such eirctmistances and are of
such a nature as to create a clear and
present danger that they will bring
about the substantive evil that Gongreas
has a right to prevent" (Sehenek v.
United States, 249 U. S. 47, 62, 63 L.
ed. 470, 473, 39 Sup. Ct B^. 247);
and also the question whether the aet
of uttering or publishing was done wil-
fully; that is, with the intoit to pro-
duce the result which the Congress
sought to prevent. But in cases of the
first class three additional elements of
the erime must be established, namely:
(1) The statement or report must be
of something capable of being preved
false in fact. The expression of an opin-
1 ion. for instance, whether sound or un-
a&2 r. :$>.
jum
PIERCE V. UNIXEi) STATES.
256— _3{>
aaund,. might conceivably aftord a sof-
6cient basis for the charge of attempt-
ing to cause insubordination, disloyalty,
pr refusal of duty, or for the^ charge of
obstructing recruiting; but, because an
opinion is not capable of being proved
[{{56] false in fact, a statement of it
.cannot' be made the basis of a prosecu-
tion of the first class.
(2) The statement or report must be
proved to be false.
(3) The statement or report must be
known by the* defendant to be false
when made or conveyed.
. In the case at bar the alleged offense
consists wholly in distributing leaflets
which had been written and published
by others. The fact of distribution is
admitted. But every other element of
the two classes of crime charged must
be established in order to justify con-
viction. With unimportant exceptions,
to be discussed later, the only evidence
introduced to establish the several ele-
ments of both of the crimes charged is
the leaflet itself; and the leaflet is un-
affected by extraneous evidence which
might give to words used therein special
meaning or effect. In order to deter-
mine whether the leaflet furnishes any
eyidence to establish any of the above
enumerated elements of the offenses
charged, the whole leaflet must neces-
sarily be read. It is as follows:
The Price We Pay.
By Irwin St. John Tucker,
I.
Conscription is upon us; the draft
law is a fact !
Into your homes the recruiting offi-
cers are coming. They will take your
sons of military age and impress them
into the Army;
Stand them up in long rows, break
them into squads and platoons, teach
them ta deploy and wheel;
Guns will be put into their hands^
they will be taught not to think, only
to obey without questioning.
Then they will be shipped thru the
submarine zone by the hundreds of
thousands to the bloody quagmire of
Europe.
Into that seething, heaving swamp of
torn' flesh and [257] floftting entrails
they will be plunged, in regiments, di-
visions, and armies, screaming as they go.
Agonies of torture will rend their
flesh from their sinews, will crack their
bones and dissolve their lungs; every
pang will be multiplied in its passage to
you.
•4 li. ed.
Black death will be a guest at every
American fireside* Mothers an^ fathers
and sist^s, wives and .sweethearts, will
know the weight of that awful vacancy
left by the bullet which finds its mark.
And still the recruiting officers will
come; seizing age after age, mounting
up to the elder ones and taking the
younger ones as they grow to soldier
size;
And still the toll of death will grow.
Let them comel Let death and deso-
lation make barren every home! Let
the agony of war crack every parent
heart! Let the horrors and miseries of
the world-downfall swamp the happi-
ness of every hearthstone!
Then perhaps you will believe what
we have been telling you! For war is
the price of your stupidity, you who
have rejected Socialism! i
IL
Yesterday I saw moving pictures of
the Battle of the Somme. A company
of Highlanders was shown, young and
handsome in their kilts and brass hel-
mets and bright plaids.
They laughed and joked as they stood
on the screen in their ranks at ease,
waiting the command to advance.
The camera shows rank after rank,
standing strong and erect, smoking and
chaffing with one another;
Then it shows a sign: ''Less than 20
per cent of these soldiers were alive at
the close of the day."
Only one in five remained of all those
laddies, when sunset came;* the rest were
crumpled masses of carrion under their
torn plaids.
Many a Highland home will wail and
croon for many a [258] year, because of
these crumpled masses of carrion,
wrapped in their plaid$, upon a far
French hillside.
I saw a raiment of Germans charging
downhill against machine gunfire. They
melted away like snowflakes falling into
hot water.
The hospital camps were shown, with
hundreds and thousands of wounded men
in all stages of pain and suffering, herd-
ed like animals, milling around like
cattle in the slaughter pens.
All the horror and agony of war were
exhibited; and at the end a flag was
thrown on the screen and a proclama-
tion said: "Enlist for your Country!'*
The applause was very thin and scatter-
ing; and as we went out, most of the
men shook their heads and said:
"That's a hell of a noor recruiting
scheme 1"
ft51
263-265
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbm,
Subscribe to The American Socialist,
published weekly by the National Office,
Socialist party, 803 West Madison
street, Chicago, Illinois, 50 cents per
year, 25 cents for six months. It is a
paper without a muzzle.
Cut this out or copy it and send it to
us. We will see that you promptly re-
ceive the desired information.
To the National Office, Socialist party,
803 W. Madison street, Chicago,
Illinois. I
I am interested in the Socialist party |
and its principles. Please send me ;
samples of its literature.
Name
Address , . . .
City State
First: From this leaflet, which is di-
vided into six [264] chapters, there are
set forth in count 3, five sentences as
constituting the false statements or re-
ports wilfully conveyed by defendants
with the intent to interfere with the
operation and success of the military
and naval forces of the United States.
(a) Two ^ntences are culled from
the first chapter. They follow immedi-
ately after the words: "Conscription is
upon us; the draft law is a faot^ — and
a third sentence culled follows a little
later. Thev are:
''Into your homes the recruiting offi-
cers are coming. They will take your
sons of military age and impress them
into the Army. . . . And still the
recruiting officers will come; seizing age
after age, mounting up to the elder ones
and taking the younger ones as they
grow to soldier size."
To prove the alleged falsity of these
statements the government gravely
called as a witness a major in the regu-
lar army with twenty-eight years' ex- !
perienee, who has been assigned since
July 5, 1917, to recruiting work. He
testified that ''recruiting^ has to do with \
the volunteer service and has nothing to I
do with 'the drafting system^ and that |
the word "impress** has no place in the i
recruiting service. The subject of his
testimony was a matter not of fact, but
of law ; and as a statement of law it was
erroneous. That "recruiting is gaining
fresh supplies for the forces, as weU by
draft as otherwise," had been assumed
by the circuit court of appeals for that
circuit in Masses Pub. Co. v. Patten,
L.RA.1918C, 79, 158 C. C. A. 250, 246
Fed. 24, Ann. Cas. 1918B, 999 (decided
eleven days before this testimony was
given), and was later expressly held by
this court in Schenck v. United States,
249 U. S. 47, 53^ 63 L. ed. 470, 474, 39
Sup. Ct. R^. 247. The third of the
sentences charged as false was obviously
neither a statement nor a report, but a
prediction; and it was later verified.^
That the prediction [265] made in the
leaflet was later verified is, of course,
immaterial; but the fact shows the
danger of extending beyond its appropri-
ate sphere the scope of a chai^ of
falsity.
(b) The fourth sentence set forth in
the 3d count as a false statement was
culled from the third chapter of the
leaflet and is this:
'*The Attorney General of the United
States is so busy sending to prison men
who do not stand up when the Star
Spangled Bannep is played, that he has
not time to protect the food supply from
gamblers."
To prove the falsity of this state-
ment the government called the United
States attorney for that district, who
testified that no Federal law makes it a
crime not to stand up when the '^Star
Spangled Banner" is played, and that
he has no knowledge of anyone being-
prosecuted for failure to do so. The
presiding judge supplemented this testi-
mony by a ruling that the Attorney Geti-
eral, like every officer of the govern-
ment, -is presumed to do his duty and
not to violate his duty, and that this
luresumption should obtain unless evi-
dence to the contrary was adduced. The
Regulations of the Army (No. 378, Edi-
tion of 1913, p. 88) iNTOvide that if the
National Anthem is played in any plaoe»
those present, whether in uniform or in
1 Ob May 20, 1918, ehap. 79, 40 Stat at
L. 557, Congress, by joint resolution, ex-
tended the draft to males who had, since
June 5, 1917, attained the age of twenty-
one, and authorifed the President to ex-
tend it to those thereafter attaining that
Age. Under this act, June 5, 1918, was
fixed as the date for the Second Be^stra-
tion. Subsequently, August 24. 1918, was
fixed for the supplemental registration of
all coming of age between Jun^ 5. 1918, and
554
[August 24, 1918. Augtist 13. 1918, 40
iStat. at L. 1834; May 20. 1918, 40 Stat,
■ at L. 1781. Bv Act of Auguft 31, I91«.
I chap. 166. 40 Stat, at L. 955, Craip.
< Stat. § 2044b, the provisions of the draft
• law were extended to persons between the
ages of eighteen and forty-five. Under thit
, act, September 12, 1918. was fixed as the
I date for the Third Registration, August
. 31, 1918, 40 Stat, at L. 1840.
sat i>. 6i
1»19.
PIEBCE T. UNITED STA'TES:
265-268
oi^lian clothes, shall stand until the.
last note of the anthem. The regulation
is expressly limited in its operation to
those belonging to the military service,
although the practice was commonly ob-
served by civilians throughout the war.
[266] There was no Federal law impose
ing such action upon them. The Attorney
€^eral, who does not enforce Army Reg-
ulations, was, therefore, not engaged in
sending men to prison for that offense.
But' when the passage in question is read
in connection with the rest of the chap-
ter, it seems clear that it was intended,
not as a statement' of fact, but as a
criticism of the Department of Justice
for devoting its efforts to prosecutions
for acts or omissions indicating lack of
sympathy with the war, rather than to
protecting the community from profit-
eering by prosecuting violators of the
Food Control Act. August 10, 1917,
chap. 53, 40 Stat, at L. 276, Comp. Stat.
§ 3115Je, Fed. Stat. Anno. Supp. 1918,
p. 181. Such criticism of governmental
operations, though grossly unfair as an
interpretation of facts, or even wholly
unfounded in fact, are not ''false re-
ports and false statements with intent
to interfere with the operation or suc-
cess of the military or naval forces."
(c) The remaining sentence, set forth
in count 3 as a false statement, was
euUed from the sixth chapter of the
leaflet, and is this:
^'Oiir entry into it was determined by
the certainty that if the Allies do not
win, J. P. Moiigan's loans to the Allies
will be repudiated, and those American
investors who bit on bis promises would
be hooked."
To prove the falsity of this statement
the government introduced the address
made by the President to Congress on
April 2, 1917, which preceded the adop-
tion of the Joint Resolution of April 6,
1017, declaring that a state of war
exists between the United States and the
Imperial German Government (chap. 1,
40 Stat, at L. 1). This so-called state-
ment of fact — which is alleged to be
false — ^is merely a conclusion or a de-
duction from facts. True it is the kind
of conclusion which courts call a con-
clusion of fact, as distinguished from
a conclusion of law; and which is some-
times spoken of as a finding of ultimate
fact as distinguished from an eviden-
tiary fact. But, in its essence, it is the
expression of a judgment — like the
[267] statements of many so-called his-
torical facts. To such concliKdons and
deductions the declaration of this court
•4 I), ed.
in American School v. McAhnulty, 187
U. S. 94, 104, 40 L. ed. 90, 94, 23 Sup.
Ct. Rep. 33, i6 applicable:
''There is no exact standard of abso-
lute truth by which io prove the asser-
tion false and a fraud. We mean by
that to say that the claim of complain-
ants cannot be the subject of proof as
of an ordinary fact ; dt cannot be proved
as a fact to be a fraud or false pretense
or promise, nor can it properly be said
that those who asapme to heal bodily
ills or infirmitiies by a resort . to this
method of cure are guilty of obtaining
money under false pretenses, such as
are intended in the statutes, which evi-
dently do not assume to deal with mere
matters of opinion upon subjects which
are not capable of proof as to their
falsitv."
The cause of a war — as of most
human action — is not single. War is
ordinarily the result of many co-operat-
ing causes, many different conditions,
acts, and motives. Historians rarelv
•
agree in their judgment as to what was
the determining factor in a particular
war, even when they write under cir-
cumstances where detachment and the
availability of evidence from aU sources
minimizes both prejudice and other
sources of error. For individuals, and
classes of individuals, attach significance
to those things which are sigmficant to
them. And, as the contributing causes
cannot.be subjected, like a chemical
combination in a test tube, to qualita-
tive and quantitative analysis so as to
weigh and value the various elements,
the historians differ necessarily in their
judgments. One finds the determining
cause of war in a great man, another in
an idea, a belief, an economic necessity,
a trade advantage, a sinister machina-
tion, or an accident. It is for this rea-
son largely that men seek to interpret
anew in each age, and often with each
new generation, the important events
in the world's history.
That all who voted for the Joint
Resolution of April 6, 1917, [268] did
not do so for the reasons assigned by the
President in his address to Congress, on
April 2 is demonstrated by the discus-
sions in the House and in the .Senate.'
That debate discloses also that both in the
Senate and in the House the loans to
the Allies and the desire to insure their
repayment in full were declared to have
been instrumental in bringing about in
our country the sentiment in favor of
• See 55 Cong.* Rec. 253, 254, 344, 354,
857, 407.
sas
263-265
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Subscribe to Tbe American Socialist,
published weekly by the National Office,
Socialist party, 803 West Madison
street, Chicago, Illinois, 50 cents per
year, 25 cents for six months. It is a
paper without a muzzle.
Cut this out or copy it and send it to
us. We will see that you promptly re-
ceive the desired information.
• «•.....
To the National Office, Socialist party,
803 W. Madison street, Chicago,
Illinois.
I am interested in the Socialist party
and its principles. Please send me
samples of its literature.
Name
Address , . . ,
City State
First: From this leaflet, which is di-
vided into six [264] chapters, there are
set forth in count 3, five sentences as
constituting the false statements or re-
ports wilfully conveyed by defendants
with the intent to interfere with the
operation and success of the military
and naval forces of the United States.
(a) Two ^ntences are culled from
the first chapter. They follow immedi-
ately after the words: '^Conscription is
upon us; the draft law is a faat" — and
a third sentence culled follows a little
later. They are:
*1nto your homes the recruiting offi-
cers are coming. They will take your
sons of military age and impress them
into the Army. . . . And still the
recruiting officers will come; seizing age
after age, mounting up to the elder ones
and taking the younger ones as they
grow to soldier size."
To prove the allejgfed falsity of these
statements the, government gravely
called as a witness a major in the regu-
lar army with twenty-eight years' ex-
perience, who has been assigned since
July 5, 1917, to recruiting work. He
testified that '^recruiting'' has to do with
the volunteer service and has nothing to
do with 'the drafting system, and that
the word "impress" has no plaoe in the
recruiting service. The subject of his
testimony was a matter not of fact, but
of law ; and As a statement of law it was
erroneous. That "recruiting is gaining
fresh supplies for the forces, as well by
draft as otherwise," had been assumed
by the circuit court of appeals for that
circuit in Masses Pub. Co. v. Patten,
L.R.A.1918C, 79, 158 C. C. A. 250, 246
Fed. 24, Ann. Cas. 1918B, 999 (decided
eleven days before this testimony was
given), and was later expressly held by
this court in Schenck v. United States,
249 U. S. 47, 53^ 63 L. ed. 470, 474, 39
Sup. Ct. Rep. 247. The third of the
sentences charged as false was obviously
neither a statement nor a report, but a
prediction; and it was later verified.*
That the prediction [265] made in the
leafiet was later verified is, of course,
immaterial; but the fact shows the
danger of extending beyond its appropri-
ate sphere the scope of a charge of
falsity.
(b) The fourth sentence set forth in
the 3d count as a false statement was
culled from the third chapter of tbe
leaflet and is this:
"The Attorney General of the United
States is so busy sending to prison men
who do not stand up when the Star
Spangled Bannef is played, that he has
not time to protect the food supply from
gamblers."
To prove the falsity of this state-
ment the government called the United
States attorney for that district, who
testified that no Federal law makes it a
crime not to stand up when the ^'Star
Spangled Banner" is played, and that
he has no knowledge of anyone being
prosecuted for failure to do so. The
presiding judge supplemented this testi-
mony by a ruling that the Attorney Geti-
eral, like .^very officer of the govern-
ment, is presumed to do his duty and
not to violate his duty, and that this
presumption should obtain unless evi-
dence to the contrary was adduced. The
Regulations of the Army (No. 378, Edi-
tion of 1913, p. 88) provide that if the
National Anthem is played in any plaoe^
those present, whether in uniform or in
1 On May 20, 1918, chap. 79, 40 Stat, at
Lu 657, Congress, by joint resolution, ex-
tended the draft to males who had, since
June 5, 1917, attained the age of twenty-
one^ and authorized the President to ex-
tend it to those thereafter attaining that
age. Under this act, June 5, 1918, was
fixed as the date for the Second Kegistra-
tion. Subsequently, August 24. 1918, was
fixed for the supplemental registration of
all coming of age between Juntf 5, 1918, and
554
August 24, 1918. August 13. 1918, 40
Stat, at L. 1834; May 20, 1918, 40 Stat,
at L. 3781. By Act of August 31, 191«,
chap. 166, 40 Stat, at L. 955, Camp.
Stat. § 2044b, the provisions of the draft
law were extended to persons between the
ages of eighteen and forty-five. Under this
act, September 12, 1918, was fixed as the
date for the Third Registration. Auguet
31, 1918, 40 Stat, at L. 1840.
a5S v. 6i
1*19.
PIBRCE T. UNITED STATES.
265-268
oitilian olothes, shall stand until the.
last note of the anthem. The regolation
is expressly limited in its operation to
those belonging to the military serviee,
although the practice was commonly ob-
served by civilians throughout the war.
[266] There was no Federal law impose
ing such action upon them. The Attorney
General, who does not enforce Army Reg-
ulationsy was, therefore, not engaged in
spending men to prison for that offense.
But- when the passage in question is read
in connection with the rest of the chap-
ter, it seems clear that it was intended,
not as a statement' of fact, but as a
criticism of the Department of Justice
for devoting its efforts to prosecutions
for acts or omissions indicating lack of
S3nnpathy with the war, rather than to
protecting the community from profit-
eering by prosecuting yiolators of the
Food Control Act. August 10, 1917,
chap. 53, 40 Stat, at K 276, Comp. Stat.
§ 3115ie, Fed. Stat. Anno. Supp. 1918,
p. 181. Such criticism of governmental
operations, though grossly unfair as ui
interpretation of facts, or even wholly
unfounded in fact, are not ''false re-
ports and false statements with intent
to interfere with the operation or suc-
cess of the military or naval forces.''
(o) The remaining sentence, set forth
in count 3 as a false statement, was
culled from the sixth chapter of the
leaflet, and is this:
''Out entry into it was determined by
the certainty that if the Allies do not
win, J. P. Moi^an's loans to the Allies
will be repudiated, and those American
investors who bit on his promises would
be hooked."
To prove the falsity of this statement
the government introduced the address
made by the President to Congress on
April 2, 1917, which preceded the adop-
tion of the Joint Resolution of April 6,
1917, declaring that a state of war
exists between the United States and the
Imperial German Government (chap. 1,
40 Stat, at L. 1). This so-called state-
ment of fact — which is alleged to be
false — is merely a conclusion or a de-
duction from facts. True it is the kind
of conclusion which courts call a con-
clusion of fact, as distinguished from
a conclusion of law; and which is some-
times spoken of as a finding of ultimate
fact as distinguished from an eviden-
tiary fact But, in its essence, it is the
expression of a judgment — like the
[lfi67] statements of many so-ealled his-
torical facts. To such conclusions and
deductions the declaration of this court
•4 IS. ed.
in Ameriean .Sehool v. McAnnulty, 187
U. S. 94, 104, 40 L, ed. 90, 94, 23 Sup.
Ct. Rep. 33, i^ applicable:
^*There is no exact standard of abso-
lute truth by which to prove the asser-
tioin false and a fraud. We mean by
that to say that the claim of complain-
ants cannot be the subject of proof as
of an ordinary fact ; dt cannot be proved
as a fact to be a fraud or false pretense
or promise, nor can it properly be said
that those who assmme to heal bodily
ills or infirmities by a resort . to this
method of cure are guilty of obtaining
money under false pretenses, such as
are intended in the statutes, which evi-
dently do not assume to deal with mere
matters of opinion upon subjects which
are not capable of proof as to their
falsitv."
The cause of a war — as of most
human action — is not single. War is
ordinarily the result of many co-operat-
ing causes, many different conditions,
acts, and motives. Historians rarely
agree in their judgment as to what was
the determining factor in a particular
war, even when they write under cir-
cumstances where detachment and the
availability of evidence from all sources
minimises both prejudice and other
sources of error. For individuals, and
classes of individuals, attach significance
to those things which are significant to
them. And, as the contributing causes
cannot . be subjected, like a chemical
combination in a test tube, to qualita-
tive and quantitative analysis so as to
weigh and value the various elements,
the historians differ necessarily in their
judgments. One finds the determining
cause of war in a great man, another in
an idea, a belief, an economic necessity,
a trade advantage, a sinister machina-
tion, or an accident. It is for this rea-
son largely that men seek to interpret
anew in each age, and often with each
new generation, the important events
in the world's history.
That all who voted for the Joint
Resolution of April 6, 1917, [268] did
not do so for the reasons assigned by the
President in his address to Congress on
Aptil 2 is demonstrated by the discus-
sions in the House and in the .Senate.^
That debate discloses also that both in the
Senate and in the House the loans to
the Allies and the desire to insure their
repayment in full were declared to have
bcK^n instrumental in bringing about in
our country the sentiment in favor of
' ... ...
• See 55 Cong.* Rec. 253, 254, 344, 354,
357, 407.
268-270
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm.
the war.* However strongly we may be-
lieve [260] that these loans were not the
slightest makeweight, much less a deter-
mining factor, in the country's decision,
the fact that some of our representa-
tives in the Senate and the House de-
clared otherwise on one of the most
solemn occasions in the history of the
nation should help us to understand
that statements like that here charged
to be false are in essence matters of
opinion and judgm^t, not matters of
fact, to be determined by a jury upon
or without evidence; and that even the
President's address, which set forth high
moral grounds justifying our entry into
the war, may not be accepted as estab-
lishing beyond a reasonable doubt that
a statement ascribing a base motive was
criminally false. All the alleged false
statements were an interpretation and
discussion of public facts of public in-
terest. If the proceeding had been for
libel, the defense of privilege might have
been interposed. Gandia v. Pettingill,
222 U. S. 452, 56 L. ed. 267, 32 Sup. Ct.
Bep. 127. There is no reason to be-
lieve that Congress, in prohibiting a
special class of false statements, in-
tended to interfere with what was ob-
viously comment as distinguished from
a statement.
The presiding judge ruled that expres-
sions of opinion were not punishable as
false statements under the act; but he
left it to the jury to determine whether
the five sentences in question were state-
ments of fa'cts or expressions of opinion.
As this determination was to be made
from the reading of the Leaflet, unaf-
fected by any extrinsic evidence, the
question was one for the court. To hold
that a jury may make punishable state-
ments of conclusions or of opinion, like
those here involved, by declaring them
to be statements of facts and to be false,
would practically deny members of small
political parties freedom of criticism
and of discussion in times when feelings
run high and the questions involved are
deemed fundamental. [270] There is
nothing in the act compelling or indeed
justifying such a construction of it; and
I cannot believe that Congress in passing,
and the President id approving, it, con-
ceived that such a construction was pos-
sible.
Second: But, even if the passages
from the leaflet set forth in the third
count could be deemed false statements
within the meaning of the act, the con-
victions thereon were unjustified because
evidence was wholly lacking to prove
any one of the other essential elements
of the crime .charged. Thus, there was
not a particle of evidence, that the de-
fendants knew that the statements were
false. They were mere distributers of
the leafiet. It had been prepared by a
man of some prominence. It had been
published by the national organization.
Not one of the defendants was an ofi^er,
even, of the local organization. One of
them, at least, was absent from the
meetings at which the proposal to dis-
tribute the leafiet was discussed. There
is no evidence that the truthfulness of
the statements contained in the leaflet
had ever been questioned before this
indictment was found. The statement
< Discussion in the Senate April 4, 1917 :
**. . . there is no doubt in any mind
but tlie enormous amount of money loaned
to the Allies in this country has been in-
strumental in bringing about a public sen-
timent in favor of our country taking a
course that would make every debt bond
worth a hundred cents on the dollar, and
making the payment of every debt certain
and siu-e." 55 Cong. Rec. p. 213.
Discussion in the House April 5, 1917.
"Since the loan of $500,000,000 was made
by Morgan to the Allies, their efforts have
been persistent to land our soldiers in the
Frendi trenches." 55 Cong. Rec. p. 342.
"Already we have loaned the Allies,
through our banking system, up to De-
cember 31, 1916, tne enormous sum of
$2,325,900,000 in formal loans. Other huge
sums have been loaned and billions have
been added since that date. 'Where your
treasures are, there will be your heart also.'
That is one of the reasons why we are
about to enter this war. No wonder the
Morgans and the munition makers desire
war. . . . Our financiers desire that
56«
Uncle Sam underwrite these and other huge
loans and fight to defend their financial
interests, that there may be no final loss.'*
55 Cong. Rec. p. 362.
"1 believe that all Americans, except thav
limited although infiuential class which is
willing to go on shedding other men's blood
to protect its investments and add to its
accursed profits, have abhorred the thought
of war." 55 Cong. Rec. p. 386.
"Likewise, Mr. Chairman, the J. Pier-
point Morgans, and their associates, who
have floated war loans running into the
millions which they now want the United
States to guarantee by entering the Euro-
pean war. . . ." 55 Cong. Rec. p. 372.
'These war germs are both epidemic and
contagious. They are in the air, but some-
how or other they multiply faster in the
fumes about the munition factories. You
will not find many in our climate. They
also multiply pretty fast in Wall Street and
other money centers. I am opposed to de-
claring war to save the speculators.'* 65
Cong. Rec. p. 376.
252 V. S.
1919.
PIERCK V. UNITED STATES.
270-272
mainly relied upon to sustain the convic-
tion— that concerning the effect of our
large loans to the Allies — was merely a
repetition of what had been declared
with great solemnity and earnestness in
the Senate and in the House while the
Joint Resolution was under discussion.
The fact that the President had set
forth in his noble address worthy
grounds for our entry into the war was
not evidence that these defendants
knew to be false the charge that base
motives had also been operative. The
assertion that the great financial in-
terests exercise a potent, subtle, and
sinister influence in the important de-
cisions of our government had often
been made by m^n high in authority.
Mr. Wilson, himself a historian, said
before he was President, and repeated
in the New Freedom, that "the masters
of the government of the United States
are the combined capitalists and manu-
facturers of the United [271] States.''*
We maybe convinced that the decision
to enter the great war was wholly free
from such base influences, but we may
not, because such is our belief, permit
a jury to flnd, in the absence of evi-
dence, that it was proved beyond a rea-
sonable doubt that these defendants
knew that a statement in this leaflet to
the contrary was false.
Nor was thore a particle of evidence
that these statements were made with
intent to interfere with the operation or
success of the military and naval forces.
So far as there is any evidence bearing
on the matter of intent, it is directly to
the contrary. The fact that the local
refused to distribute the pamphlet until
Judge Rose had directed a verdict of ac-
quittal in the Baltimore case shows that
its members desired to do only that
which the law permitted. The tenor of
the leaflet itself shows that the intent
of the writer and of the publishers was
to advance the cause of Socialism; and
each defendant testifled that this was
his only purpose in distributing the
pamphlet. Furthermore, the nature of
the words used and the circumstances
under which they were used showed af-
firmatively that they did not "create a
clear and present danger*' that thereby
the operations or success of our military
4 Page 57. Then follows: *'It is writ-
ten over every intimate page of the records
of Congress, it is written all through the
history of conferences at the White House,
that the suggestions of economic policy in
this coimtry have come from one source,
not many sources."
•4 li. ed.
and naval forces would be interfered
with.
The gravamen of the third count is
the charge of wilfully conveying, in
time of war, false statements with the
intent to interfere with the operation
and success of our military or naval
forces. One who did that would be'
called a traitor to his country. The
defendants, humble members of the So-
ciaUst party, performed as distributers
of the leaflet what would ordinarily be
deemed merely a menial service. To hold
them guilty under the 3d [272] count is
to convict not them alone, but, in effect,
their party, or at least its responsible
leaders, of treason, as that word is
commonly understood. I cannot believe
that there is any basis in our law for
such a conilemnation on this record.
Third: To sustain a conviction on the
2d or on the 6th count it is necessary to
prove that by co-operating to distribute
the leaflet the defendants conspired or
attempted wilfully to "cause insubordi-
nation, disloyalty, mutiny, or refusal of
duty in the military or naval forces."
No evidence of intent so to do was in-
troduced unless it be found in the leaflet
itself. What has been said in respect to
the 3d count as to the total lack of
evidence of evil intent is equally appli-
cable here.
A verdict should have been directed
for the defendants on these counts also
because- the leaflet was not distributed
under such circumstances, nor was it
of such a nature, as to create a clear
and present danger of causing either
insubordination, disloyalty, mutiny, or
refusal of duty in the military or naval
forces. The leaflet contains lurid and
perhaps exaggerated pictures of the
horrors of war. Its arguments as to the
causes of this war may appear to us
shallow and grossly unfair. The remedy
proposed may seem to us worse than the
evil whicli, it is argued, will be thereby
removed. But the leaflet, far from
counseling disobedience ' to law, points
to the hopelessness of protest, under the
existing system, pictures the irresistible
power of the military arm of the gov-
ernment, and indicates that acquiescence
is a necessity. Insubordination, disloy-
alty, mutiny, and refusal of duty in the
military or naval forces are very seri-
ous crimes. It is not conceivable that
any man of ordinary intelligence and
normal judgment would be induced by
anything in the leaflet to commit them
and thereby risk the severe punishment
prescribed for such offenses. Certainly
557
272, 273
SUPREME COURT OF THE UNITED STATES.
Oct. Tnuc^
there wa6 no dear and present danger
that such would be the result. [273] The
leaflet w^s not even distributed among
those in the military or the naval serv-
ice. It was distributed among civilians;
and sinee the conviction on the 1st count
has been abandoned here by the govern-
ment, we have no occasion to consider
whether the leaflet might have dis-
couraged voluntarj' enlistment or obe-
dience to the provisions of the Selective
Draft Act.
The fundamental right of free men
to strive for better conditions through
new legislation and new institutions will
not be preserved, if efforts to secure it
by argument to fellow citizens may be
construed as criminal incitement to dis-
obey the existing law — mcrehr becaiuse
the argument presented seems ta those
exercising judicial power to be imfair in
its portrayal of existing evils, mistaken
in its assumptions,: unsound in reason-
ing, or intemperate in language. No ob-
jections more serious than these can, in
my opinion, reasonably be made to the
arguments presented in "the Price We
Pay.'*'
STATE OF mXNESOTA, Complainant,
V.
STATE OP WISCpN^N, Defendant.
(See S. C. Reporter's ed. 273-285.*
Boundaries — betiveen staters — navi-
gable waters — month of river.
1. The mouth of the St. Louis river
within the meaning of the ^Nroviftion in the
Wisconsin Enabling Act of August 6, 1846,
describing the state boundary in part as
"thence Twestwardly] through the center
of Lake Superior to the mouth of the St.
Louis river,'* is at the junction of I^ke
Superior and the deep channel between
Minnesota and Wisconsin points. — "The '
Entry."
[For* other cases, see Boundaries, III. b. in
Digest Sup. C.t. 1908.]
Boundaries — between states — navi-
gable waters — thalweg.
2. The middle of the principal channel
of navigation — not necessarily the deepest
channel — is commonly accepted as the
boundary line where navigable water con-
Note. — As to judicial settlement of
state boundaries — see note to Nebraska
V. Iowa, 36 L. ed. U. S. 798.
On rivers and lakes as state boundarj'
— see note to Buck v. Ellenbolt, 15 L.R.A.
187.
On change of channel as change of
state boundary- — see note to State v.
Bowen, 39 L.R.A.CN.S.) 200.
558
stitutes the boundary between two sta^f,
[For other cases, see Boundaries, III. b, ta
Digest Sup. Ct. 1908.]
Bonndarlea -* between states — condl*
tlons existingr at time of erection of
state.
3. The boundary line between WisoMi*
sin and Minnesota in Upper and Lower St.
Louis bays must be ascertained upon a
consideration of the situation existing at
the time of the enactment of the Wisconsin
Enabling Act of August 6, 1846, and acf-
ourately disclosed by the Meade diart.
(For other cases, see Boundaries, III» b, in Di-
gest Sup. Ct. 1908. J
Boundaries ^ between Wisconsin and
Minnesota — navigrable waters.
4. That part of the boundary line* be-
tween Wisconsin and Minnesota ' described
in the Wisconsin Enabling Act of August
6, 1846, as proceeding from the mouth <rf
the St. Louis river *'up the main cha«nel
of said river to the first rapids in the saint*
above the Indian village, according to Ki-
collet's map," is adjudged to run midway
between Rice's point and Connor's point
and through the middle of Lower St. Louis
bay to and with the deep channel leading
into Upper St. Louis bay, and to a pemt
therein immediately south of the southern
extremity of Grassy point, thence westward
along the most direct course, through
water not less than 8 feet dee'p, eastward
of Fisherman's island and approximately 1
mile to the deep channel and immediately
\i*est of the bar therein, thence with such
channel north and west of Big island, up
stream to the fails.
[For other cases, see Boundaries, IIL )h ia
Digest Sup. Ct. 1908.]
[No. 16, Original.]
Argued October 16 and 17, 1910. Decided
March 8, 1920.
ORIGINAL SUIT in equity to estaWiah
a part of the boundary line between
Wisoonsin and Minnesota. Boundary
line adjudged to run midway between
Rice's point and Connor's point and
through the middle of Lower St. Louis
bay to and with the deep channel lead-
ing into Upper St. Louis bay, and to a
point therein immediately south of the
southern extremity of Grassy point,
thence westward along the most direct
course, through water not less than 8
feet deep, eastward of Fisherman's is-
land and approximately 1 mile to the
deep channel and immediately west of
the bar therein, thence with such chan-
nel north and west of Big island up
stream to the falls.
The facts are stated in the opinion.
Messrs. W. D. Bailey and H. B. Fry-
berger argued the cause, and, with
Messrs. Osear Mitchell and Louis
Hanitch, and Mr. Clifford L, Hilton,
253 r. s.
i»id.
MINNKSOTA V. WISCONSIN.
Attoraej General of Minnesota^ filed a
brief for eoznplainant :
The mouth of the river is where the
waters thereof cease to descend, and
reach the level of the waters of the lake,
and become a part thereof. This point
ia at the head of Big island.
Johnson v. State, 74 Ala. 537; Ball v.
Slack, 2 Whart. 508, 30 Am. Dec. 278;
Alabama v. Georgia, 23 How. 505, 16 L.
ed. 556; United States v. Bodgers, 150
U. S. 249, 37 L. ed. 1071, 14 Sup. Ct.
Efcep. 109; People v. Featherly,' 35 N. Y.
S. R. 156, 12 N. Y. Supp. 389; Ainsworth
V. Munoskong Hunting & Fishing Club,
159 Mich. 61, 123 N. W. 803; Ne-pee-
oauk Club v. Wilson, 96 Wis. 290, 71
N. W. 661 ; Jones v. Lee, 77 Mich. 35, 43
N. W. 856; Chamberlain v. Heming^way,
63 Conn. 1, 22 L.R.A. 45, 38 Am. St. Rep.
330, 27 Atl. 239.
As between the states of the Union,
long acquiescence in the assertion of a
particular boundary, and the exercise of
dominion and sovereignty over the terri-
tory within it, should be accepted as
conclusive as to such boundary, and due
weight will be given to maps in common
use or published by the authority of the
respective states, and other evidence of
such acquiescence.
Louisiana v. Mississippi, 202 U. S. 1,
50 L. ed. 913, 26 Sup. Ct. Rep. 408, 571 ;
Viiginia v. Tennessee, 148 U. S. 503, 37
L. ed. 537, 13 Sup. Ct. Rep. 728 ; Indiana
V. Kentucky, 136 U. S. 479, 34 L. ed.
329, 10 Sup. Ct. Rep. 1051; Rhode Is-
land ▼. Massachusetts, 4 How. 591, 11
L ed. 1116.
The rule is settled beyond question
(assuming, for the purpose of argument,
that the waters westerly of Grassy point
are river, and not bay) that the state
line follows the center of the main, navi-
gable and navigated channel at this
point.
Iowa V. Illinois, 147 U. S. 1, 37 L. ed.
55, 13 Sup. Ct. Rep. 239; Arkansas v.
Mississippi, 250 U. S. 39, 63 L. ed. 832,
39 Sup. Ct. Rep. 422; Rowe v. Smith, 51
Conn. 266, 50 Am. Rep. 16.
Bodies of water of an extent which
cannot be measured by the unaided
vision, and which are navigable at all
times and in all directions, and border
on different nations or states or people,
and find their outlet in the ocean, are
seas in fact, however they may be desig-
nated. And seas in fact do not cease to
be such, and become lakes, because, by
local custom, they may be so called.
United States v. Rodgers, 150 TI. S.
249, 37 L. ed. 1071, 14 Sup. Ct. Rep.
109.
f 4 L. ed.
Praotieally all, if not all, the eases
which this court has decided, to the ef-
fect that a state line was not changed
by avulsion, have been cases where the
matter involved was the sudden change
of a river channel so that the diy land
formed on one side of the main channel
was thereby placed on the other side of
the main channel. In practically all, if
not all, of the cases decided by this
court which fixed a state boundary as
through the main navigated and navi-
gable channel of a* river, the decision was
made on the facts as they existed at the
time of the determination by this court,
except where a different line was neces-
sitated by an avulsion which so sudden-
ly changed the eoursie of the stream as
to set off dry Itotd on the other side of
the stream.
Iowa V. Illinois, 147 U. S. 1, 37 L. ed.
55, 13 Sup. Ct. Rep. 239; Franmi v.
Layland, 120 Wis. 72, 97 N.. W. 499;
Arkansas v. Tennessee, 246 U. 8. 158, 62
L. ed. 638, L.R.A.1918D, 258, 38 Sup. Ct.
Rep. 301 ; Washington v. Oregon, 214 U.
S. 215, 63 L. ed. 971, 29 Sup. Ct. Bep.
631.
The argument of counsel for Wiscon-
sin, that the problem before the court is
to determine the state line fixed in
1846, is true only with some such limita-
tion as: ^'Subject to whatever changes
therein that may have been caused, in
the absence of avulsion, by sub8ei]^aent
variations in the navigable and navigat-
ed channel;" otherwise the axgument is
misleading, and ignores the holdings of
this court.
Franzini ▼. Layland, 120 Wis. 72, 97
N. W. 499.
Mr. M. B. Olbrich argued the cause,
and, with Mr. John J. Blaine, Attorney
General of Wisconsin, filed a brief for
defendant : *
"The mouth of the St. Louis river"
was an unambiguous term, definitely un-
derstood, and intended to describe the
space between Wisconsin and Minnesota
points, or the so-called "entry," prior to
the adoption of the Enabling Act in
1846; and continuous practical construc-
tion of the term since then has eon-
firmed this to be its meaning.
Wisconsin ▼. Duluth, 96 U. S. 379,
380, 24 L. ed. 668, 669 ; Norton v. White-
side, 239 U. S. 144, 155, 60 L. ed. 186,
190, 36 Sup. Ct Rep. 97; Norton v.
Whiteside, 188 Fed. 358, 45 L.R.A.(N.S.)
112, 123 C. C. A. 313, 205 Fed. 5; Grid-
ley V. Northern P. R. Co. Ill Minn. 281,
126 N. W. 897; Bright ▼. Superior, 163
Wis. 12, 156 N. W. 600.
SUPREME COURT OF THE UNITED STATES.
Oct. Tbim,
The object of the present inquiry is
not to fix the boundary between Wiscon-
sin and Minnesota, but by such compe-
tenty relevant evidence as may be ob>
tainedy to ascertain where Congress
fixed it in 1846.
Moore v. McGuire, 142 Fed. 792;
Missouri v. Kentucky, 11 Wall. 395, 20
L. ed. 116; Indiana v. Kentucky, 136 U.
S. 479, 34 L. ed. 329, 10 Sup. Ct. Rep.
1051; Moore v. McGuire, 205 U. S. 214,
219, 61 L. ed. 776, 777, 27 Sup. Ct. Rep.
483; Arkansas v. Tennessee, 246 U. S.
158, 177, 62 L. ed. 638, 649, L.R.A.1918D,
258, 38 Sup. Ct. Rep. 301; Washington
V. Oregon, 211 U. S. 127, 136, 53 L. ed.
118, 120, 29 Sup. Ct. Rep. 47; Iowa v.
Illinois, 147 U. S. 1, 13, 37 L. ed. 55,
59, 13 Sup. Ct. Rep. 239 ; Twiss, Nations,
p. 207: 1 Halleck, International Law, p.
182; Reynolds v. M'Arthur, 2 Pet. 417,
440, 7 L. ed. 470, 478.
There being no evidence of the course
of actual navigation north of Big island
in 1846, the line of deepest soundings
governs.
Washington v* Oregon, 211 U. S. 127,
135, 53 L. ed. 118, 120, 29 Sup. Ct. Rep.
47.
There is a presumption that' the condi-
tion in 1861 was the same as in 1846.
Laplante v. Warren Cotton Mills, 165
Mass. 489, 43 N. E. 294; Scott v. Lattig,
227 U. S. 229, 241, 57 L. ed. 490, 495, 44
L.R.A.(N.S.) 107, 33 Sup. Ct. Rep. 242;
United States v. Hutchings, 252 Fed.
845; Wigmore, Ev. 437; Washington, A.
& Mt. V. R. Co. V. Vai^phan, 111 Va.
785, 69 S. E. 1037; Rex v. Burdett, 4
Bam. & Aid. 124, 106 Eng. Reprint, 884,
22 Revised Rep. 539 ; Sandiford v. Hemp-
stead, 97 App. Div. 163, 90 N. Y. Supp.
80; Somerville v. New York, 78 Misc.
203, 137 N. Y. Supp. 924; Adams v.
Junger, 158 Iowa, 449, 139 N. W. 1100.
The line of deepest soundings, hence,
the main channel, conforms to the course
of the curving shore line.
Missouri v. Kentucky, 11 Wall. 395,
410, 20 L. ed. IIQ, 121 ; Davis v. Ander-
son-Tully Co. 164 C. C. A. 521, 252 Fed.
681.
In the absence of prior avulsion or
change of traffic, the middle of the main
channel in 1893 would coincide with the
state line.
Arkansas v. Tennessee, 246 U. S. 158,
173, 62 L. ed. 638, 647, L.R.A.1918D,
258, 38 Sup. Ct. Rep. 301; A. G. Wine-
man & Sons v. Reeves, — A.KR. — , 157
C. C. A. 446, 245 Fed. 254; Whiteside v.
Norton, 46 L.R.A.(N.S.) 112, 123 C. C. A.
313, 205 Fed. 5; Norton v. Whiteside,
560
239 U. S. 144, 60 L. ed. 186, 36 Sup, Ct.
Rep. 97.
The mere fact that a proposed channel
would be more convenient, and result in
less confusion if now adopted as the
state line, is a consideration quite beside
the point.
Indiana v. Kentucky, 136 U. S. 479,
509, 34 L. ed. 329, 332, 10 Sup. Ct. Rep.
1051.
The main channel of the river, as used
in acts determining the boundaries be-
tween states, has come to mean some-
thing possessed of pre-existing identity,
characterized or described as a channel,
to which has been added the element,
from the terminology of the mariner, of
navigation. In other words, to consti-
tute a boundary line there must be a
combination of these two things: first, a
channel; second, navigation in that
channel. And, as pointed out, the deep-
est channel may exist, and yet be un-
suited to navigation and be not navigat-
ed. This would not constitute a bound-
ary. On the other hand, navigation out-
side of or apart from the existence of a
channel in the river would fall equally
short of constituting a boundary. The
two elements must concur.
Buttenuth v. St. Louis Bridge Co. 123
lU. 535, 5 Am. St. Rep. 545, 17 N. E. 439;
Keokuk & H. Bridge Co. v. People, 146
HI. 596, 34 N. E. 482; Washington v.
Oregon, 214 U. S, 205, 216, 53 L. ed. 969,
971, 29 Sup. Ct. Rep. 631.
By ''main track" is meant the main
artery for the movement of traffic be-
tween any two points.
Chicago, P. & St. L. R. Co. v. Jackson-
ville R. & Light Co. 245 111. 155# 91 N.
E. 1027.
For the most part, the information
outside the record is presented to the
court under the full sanction of the
rules laid down.
Rhode Island v. Massachusetts, 14
Pet. 210, 257, 262, 10 L. ed. 423, 445,
447; Tempel v. United States, 248 U. S.
121, 63 L. ed. 162, 39 Sup. Ct. Rep. 56;
Alaska Pacific Fisheries v. United
States, 248 U. S. 78, 86, 89, 63 L. ed.
138, 140, 141, 39 Sup. Ct. Rep. 40; .In-
temational News Service v. Associated
Press, 248 U. S. 215, 63 L. ed. 211, 2
A.LJt. 293, 39 Sup. Ct. Rep. 68; The
Habana, 175 U. S. 677, 712, 44 L. ed.
320, 333, 20 Sup. Ct. Rep. 290 ; Moore v.
McGuire, 205 U. S. 214, 224, 51 L. ed.
776,*779, 27 Sup. Ct. Rep. 483; Trenier v.
Stewart, 101 U. S. 797, 25 L. ed. 1021;
Trenier v. Stewart, 55 Ala. 465.
262 V. S.
1919.
MINNESOTA v. WISCONSIN.
276-278
Mr. Justice McBejrnolds delivered the
opinion of the court:
We are asked to ascertain and estab-
lish the boundary line between the par-
ties in Upper and Lower St. Louis bays.
Complainant claims to the middle of
each bay — halfway between the shores.
The defendant does not seriously, ques-
tion this claim as to the lower bay, but
earnestly maintains that in the upper
one the line follows a sinuous course near
complainant's shore. Since 1893 a deep
channel has been dredged through these
waters and harbor lines have been estab-
lished. According to Wisconsin's insis-
tence, its border crosses and recrosses
this channel and intersects certain docks
extending from the Minnesota shore,
leaving portions of them in each state.
See Wisconsin v. Duluth, 96 U. S. 379,
24 L. ed. 668; Norton v. Whiteside, 239
U. S. 144, 60 Ix ed. 186, 36 Sup. Ct. Rep.
97.
"An Act to Enable the People of Wis-
consin Territory to Form a Constitution
and State Government, and for the Ad-
mission of Such State into the Union,''
approved August 6, 1846 (chap. 89, 9
Stat, at L. 56), described the boundary
in part as follows : "Thence [with the
northwesterly boundary of Michigan]
down the main channel of the Montreal
river to the middle of Lake Superior;
then«e [westwardly] through the center
of Lake Superior to the mouth of the St.
Louis river; thence up the main channel
[276] of said river to the first rapids in
the same, above the Indian village, ac-
cording to Nicollet's map; thence due
south to the main branch of the River
St. Croix," etc., etc. With the bound-
aries described by the Enabling Act,
Wisconsin entered the Union May 29,
1848 (chap. 50, 9 Stat, at L. 233).
"An Act to Authorize the People of
the Territory of Minnesota to Form a
Constitution and State Oovemment, Pre-
paratory to Their Admission in the
Union," approved February 26, 1857
(chap. 60, 11 Stat, at L. 166), specifies a
portion of the boundary thus: "Thence
by a due south line to the north line of
the state of Iowa; thence east along the
northern boundary of said state to the
main channel of the Mississippi river;
thence up the main channel of said river,
and following the boundary line of the
state of Wisconsin, until the same in-
tersects the Saint Louis river; thence
down said river to and through Lake
Superior, on the boundary line of Wis-
consin and Michigan, until it intersects
the dividing line between the United
States and the British possessions."
64 li. ed.
With boundaries as therein described,
Minnesota became a state May U, 1858
(chap. 31, 11 Stat, at L. 285).
The present controversy arises from
conflicting interpretations of the words
— ^"thence [westwardly] through the
center of Lake Superior to fhe mouth of
the St. Louis river; thence up the main
channel of said river to the first rapids
in the same, above the Indian village, ac-
cording to Nicollet's map." The situa-
tion disclosed by an accurate survey
gives much room for differences concern-
ing the location of the "mouth of the
St. Louis river" and "the main channel
of said river." Nicollet's Map of the
"Hydrographical Basin of the Upper
Mississippi River," published in 1843,
and drawn upon a scale of 1 :1,200,000, —
approximately 20 miles to the inch, — is
too small either to reveal or to give
material aid in solving the difficulties. A
sketch from it — approximately on origi-
nal scale — is printed on page 562.
[277] During 1823-1825 Lieutenant
Bayfield of the British Navy surveyed
and sounded the westerly end of Lake
Superior and the lower waters of St.
Louis river. A chart compiled from data
so obtained (1 :49,300,— 4,108 feet to the
inch), and published in 1828, shows the
general configuration and lays the proper
sailing course southward of [278] Big
island. Prior to 1865 this was the only
available chart and navigators often
used it.
* The first accurate map of these waters
was drawn from surveys and soundings
made under direction of Captain George
W. Meade in 1861, and is now on file in
the Lake Survey Office at Detroit. After
being reduced one half, — to a scale of
1:32,000, or approximately 2 inches to a
mile, — ^it was engraved and published in
1865 or 1866. Known i as the Meade
chart, this reproduction is accepted by
both parties as adequately disclosing
conditions existing in 1846. A rough
sketch based upon the chart, — about one
third of its size, — and also a photo-
graphic reproduction of a portion of the
original map, are printed on succeeding
pages [565, 566].
Minnesota and Wisconsin points are
low, narrow strips of sand, — the former
6 miles in length, the latter approxi-
mately 3. Between them there is a nar-
row opening known as "The Entry," and
inside lies a bay (Allouez and Superior),
9 miles long and a mile and a half wide.
A narrow channel between Rice's point
and Connor's point leads into Lower St.
Louis bay, approximately a mile and a
half wide and 3 miles long. Passing
6 '561
258-2G0
SUPREME COURT OF THE UNITED STATES.
OOT. Tkbi|,
For the m^ of this land have been
fed full with horror during the past
three years; and tho the call for volun-
teers has become wild, frantic, desper-
ate; tho the posters scream from every
billboard, and tho parades and red fire
inflame the atmosphere in every town;
The manhood of America gases at
that seething, heaving swamp of bloody
carrion in Europe, and say "Must we —
be that!" .
You c%nnot avoid it; you are being
dragged, whipped, lashed, hurled into it;
vour flesh and brains and entrails must
be crushed out of you and poured into
that mass of festering decay;
It is the price you pay for your
stupidity — ^you who have rejected So-
cialism.
m.
Food prices go up like skyrockets;
and show no sign of bursting and com-
ing down.
Wheat, corn, potatoes, are far above
the Civil War mark; eggs, butter, meat
— all these things are almost beyond a
poor f amil3r's reach.
[21(9] The Attorney General of the
United States is so busy sending to
prison men who do not stand up when,
the Star Spangled Banner is played, that
he has no time to protect the food supply
from gamblers.
Starvation begins to stare us in the
face — and we, people of the richest and
most productive land on earth, are told
to starve ourselves yet further because
our allies must be fed.
Submarines are steadily sending to
the fishes millions of tons of food stuffs;
and still we build more ships, and send
more food, and more and more is sunk;
Frantically we grub in the earth and
sow and tend, and reap; and then as
frantically load the food in ships, and
then as frantically sink with them —
We, the "civilized nations" of the
world I
While the children of the poor clamor
for their bread and the well to do shake
their heads and wonder what on earth
the poor folks are doing;
The poor folks are growling and mut-
tering with savage sidelong glances, and
are rolling up their sleeves.
For the price they pay for their stu-
pidity is getting beyond their power to
pay!
IV.
Frightful reports are being made of
the ravages of venereal diseases in the
army training camps, and in the bar-
552
racks where the girl munition workers
live.
One of the great nations lost more
men thru loathsome immoral diseases
than on the firing line, during the first
eighteen months of the war.
Back from the Mexican border our
boys came, spreading the curse of the
great Black Plague among hundreds of
thousands of homes; blasting the lives
of innocent women and unborn babes;
Over in Europe ten millions of women
are deprived of their husbands, and fifty
millions of babies can never be;
[260] Of those women who will have
their mates given back to them, there are
twenty millions who will have ruined
wrecks of men; mentally deranged,
physically broken, morally rotten ;
Future generations of families are
made impossible; blackness and desola-
tion instead of happiness and love will
reign where the homes of the future
should be;
And all because you believed the silly
lie, that "Socialism would destroy the
home !"
Pound on, guns of the embattled host ;
wreck yet more homes, kill yet more hus-
bands and fathers, rob yet more maidens
of their sweethearts, yet more babies of
their fathers;
That is the price the world pays for
believing the monstrous, damnable, out-
rageous lie that Socialism would destroy
the home!
Now the homes of the world are being
destroyed ; every one of them would have
been saved by Socialism. But you would
not believe. Now pay the price !
V.
This war, you say, is all caused by the
Kaiser; and we are fighting for de-
mocracy against autocracy. Once de-
throne the Kaiser and there will be per-
manent peace.
That is what they said about Napo-
' Seon. And in the century since Napoleon
was overthrown there has been more
and greater wars than the world ever
saw before.
There were wars before Germany ever
existed; before Rome ruled; before
Egypt dominated the ages.
War has been universal ; and the cause
of war is always the same. Somebody
wanted something somebody else pos-
sessed and they fought over the owner-
ship of it.
This war began over commercial
routes and ports and rights; and under-
neath all the talk about democracy ver-
352 V. 6.
1919.
PIERCE V. UNITED STATES.
2C0-2Gn
sua autocracy, you hear a continual note,
and undercurrent, a subdued refsain:
[261] "Get ready for the commercial
war that will follow this war."
Commercial war preceded this war;
it gave rise to this war; it now gives
point and meaning to this war;
And as soon as the guns are stilled
and the dead are buried, commercial
forces will prepare for the next bloody
struggle over routes and ports and
rights, coal mines and railroads;
For these are the essence of this, as
of all other wars!
This, you say, is a wftr for the rights
of small nations; and the first land
sighted when you sail across the At-
lantic is the nation of Ireland, which
has suffered from England for three
centuries more than what Germany has
inflicted upon Belgium for three years.
But go to it ! Believe everything you
are told — ^you always have and doubtless
always will, believe them.
Only do retain this much reason;
when you have paid the price, the last-
and uttermost price; and have not re-
ceived what you were told you were fight-
ing for — ^namely, Democracy —
Then remember that the price you
paid was not the purchase price for jus-
tice, but the penalty price for your stu-
pidity I
VI.
We are beholding the spectacle of
whole nations working as one person
for the accomplishment of a single end
— ^namely, killing.
Every man, every woman, every child,
must **do his bit" in the service of de-
struction.
We have been telling you for, lo, these
many years that the whole nation could
be mobilized and every man, woman, and
child induced to do his bit for the serv-
ice of humanity, but you have laughed
at us.
Now you call every person traitor,
slacker, pro-enemy who will not go
crazy on the subject of killing; and
you [262] have turned the whole energy
of the nations of the world into the
service of their kings for the purpose of
tilling — killing — ^killing.
Why would you not believe us when
ire told >on that it was possible to co-
operate for the saving of life?
Why were you not interested when
we begged you to work all together to
build, instead to destroy? To preserve,
instead of to murder?
Why did you ridicule us and call us
impnvctical dreamers when we prophe-
|« k. ed.
sied a world-state of fellow workers, each
man creating for the benefit of all the
world, and the whole world creating for
the benefit of each man?
Those idle taunts, those thoughtless
jeers, that refusal to listen, to be fair-
minded — you are paying for them now.
— Lo, the price you pay! Lo, the ppce
your children will pay. • Lo, the agony
the death, the blood, the unforgettable
sorrow, —
The price of your stupidity!
For this war — as everyone who thinks
or knows anything will say, whenever
truth-telling becomes safe and possible
again, — this war is to determine the
question, whether the chambers of com-
merce of the allied nations or of the
Central Empires have the superior right
to exploit undeveloped countries.
It is to determine whether interest,
dividends, and profits shall be paid to
investors speaking German or those
speaking English and French.
Our entry into it was determined by
the certainty that if the Allies do not
win, J. P. Morgan's loans to the Allies •
will be repudiated, and those American
investors who bit on his promises would
be hooked.
Socialism would have settled that
question; it would determine that to
every producer shall be given all the
value ofVhat he produces; so that noth-
ing would be left over for exploiters or'
investors.
[263] With that great question set-
tled there would be no cause for war.
Until the question of surplus profits
is settled that way, wars will continue;
each war being the prelude to a still
vaster and greater outburst of hell;
Until the world becomes weary of
paying the stupendous price for its own
folly;
Until those who are sent out to maim
and murder one another for the profit
of bankers and investors determine to
have and to hold what they have fought
for;
Until money is no more sacred than
human blood;
Until human life refuses to sacrifice
itself for private gain*;
Until by the explosion of millions of
tons of dynamite the stupidity of the
human race is blown away, and Social-
ism is known for what it is, the salva-
tion of the human race;
Until then — ^you will keep on paying
the price!
IF THIS INTERESTS YOU, PASS
IT ON.
553
263-265
SUPREME COURT OF THE UNITED STATES.
Oct. Tnii.
Subscribe to The American Socialist,
published weekly by the National Office,
Socialist party, 803 West Madison
street, Chicago, Illinois, 50 cents per
year, 25 cents for six months. It is a
pt^per without a muzzle.
Cut this out or copy it and send it to
us. We will see that you promptly re-
ceive the desired information.
To the National Office, Socialist party,
803 W. Madison street, Chicago,
Illinois.
I am interested in the Socialist party
and its principles. Please send me
samples of its literature.
Name
Address , . . .
City State
First: From this leaflet, which is di-
vided into six [264] chapters, there are
set forth in count 3, five sentences as
constituting the false statements or re-
ports wilfully conveyed by defendants
with the intent to interfere with the
operation and success of the military
and naval forces of the United States.
(a) Two ^ntences are culled from
the first chapter. They follow immedi-
ately after the words: ''Conscription is
upon us; the draft law is a faat** — ^and
a third sentence culled follows a little
later. Thev are:
'Into your homes the recruiting offi-
cers are coming. They will take your
sons of military age and impress them
into the Army. . . . And still the
recruiting officers will come; seizing age
after age, mounting up to the elder ones
and taking the younger ones as they
grow to soldier size."
To prove the alleged falsity of these
statements the, government gravely
called as a witness a major in the regu-
lar army with twenty-eight years' ex-
perienee, who has been assigned since
July 5, 1917, to recruiting work. He
testified that "recruiting^ has to do with
the volunteer service and has nothing to
do with 'the drafting system, and that
the word "impress'' has no place in the
recruiting service. The subject of his
testimony was a matter not of fact, but
of law ; and ds a statement of law it was
erroneous. That "recruiting is gaining
tosh supplies for the forces, as well by
draft as otherwise," had been assumed
by the circuit court of appeals for that
circuit in Masses Pub. Co. v. Patten,
L.ILA.1918C, 79, 158 C. C. A. 260, 246
Fed. 24, Ann. Cas. 1918B, 999 (decided
eleven days before this testimony was
given), and was later expressly held by
this court in Schenck v. United States,
249 U. S. 47, 53^ 63 L. ed. 470, 474, 39
Sup. Ct. R^. 247. The third of the
sentences charged as false was obviously
neither a statement nor a report, but a
prediction; and it was later verified,*
That the prediction [265] made in the
leafiet was later verified is, of course,
immaterial; but the fact shows the
danger of extending beyond its appropri-
ate sphere the scope of a charge of
falsity.
(b) The fourth sentence set forth in
the 3d count as a false statement was
culled from the third chapter of the
leafiet and is this:
"The Attorney General of the United
States is so busy sending to prison men
who do not stand up when the Star
Spangled Bannef is played, that he has
not time to protect the food supply from
gamblers."
To prove the falsity of this state-
ment the government called the United
States attorney for that district, who
testified that no Federal law makes it a
crime not to stand up when the *^taT
Spangled Banner" is played, and that
he has no knowledge of anyone being
prosecuted for failure to do so. The
presiding judge supplemented this testi-
mony by a ruling that the Attorney Gen-
eral, like every officer of the govern-
ment, -is presiuned to do hi^ duty and
not to violate his duty, and that this
presumption should obtain unless evi-
dence to the contrary was adduced. The
R^:ulations of the Army (No. 378, Edi-
tion of 1913, p. 88) iMX>vide that if the
National Anthem is played in any plaoe*
those present, whether in uniform or in
1 On May 20, 1918, chap. 79, 40 SUt at
Lu 557, Congress, by joint resolution, ex-
tended the draft to males who had, since
June 5, 1917, attained the age of twenty-
one, and authorized the President to ex-
tend it to those thereafter attaining that
age. Under this act, June 5, 1918, was
fixed as the date for the Second Ke^istra-
tion. Subsequently, August 24. 1918. was
fixed for the supplemental registration of
all coming of age between Jun^ .3. J 918. and
554
August 24, 1918. August 13. 1918, 40
Stat, at L. 1834; May 20, 1918, 40 Stat,
at L. 3781. Bv Act of Augu«t 31, 1918,
t chap. 166. 40 * Stat, at L. 959, Camp.
I Stat. § 2044b, the provbions of tht draft
i law were extended to persons between th«
ages of eighteen and forty-five. Under this
act, September 12, 1918. %vas fixed a« thf
date for the Third Registration. August
31, 1918, 40 Stat, at L. 184n,
d5S V. St
1*19.
PIERCE T. UNITED STATES.
265-268
civilian olothes, shall stand nntil the.
last- note of the anthem. The regulation
is expressly limited in its operation to
those belonging to the military service,
although the practice was commonly ob-
served by ciiolians throughout the war.
[266] There was no Federal law impos-
ing such action upon them. The Attorney
General, who does not enforce Army Reg-
nlations, was, therefore, not engaged in
sending men to prison for that offense.
But- when the passage in question is read
in connection with the rest of the chap-
ter, it seems clear that it was intended,
not as a statement' of fact, but as a
criticism of the Department of Justice
for devoting its efforts to prosecutions
for acts or omissions indicating lack of
93Pinpathy with the war, rather than to
protecting the community from profit-
eering by prosecuting violators of the
Food Control Act. August 10, 1917,
chap. 53, 40 Stat, at K 276, Comp. Stat.
§ 3116ie, Fed. Stat. Anno. Supp. 1918,
p. 181. Such criticism of governmental
operations, though grossly unfair as an
interpretation of facts, or even wholly
unfounded in fact, are not ''false re-
ports and false statements with intent
to interfere with the operation or suc-
cess of the military or naval forces.''
(o) The remaining sentence, set forth
in count 3 as a false statement, was
onlled from the sixth chapter of the
leaflet, and is this:
"Our entry into it was determined by
the certainty that if the Allies do not
win, J. P. Moi^an's loans to the Allies
will be repudiated, and those American
investors who bit on his promises would
be hooked."
To prove the falsity of this statement
the government introduced the address
made by the President to Congress on
April 2, 1917, which preceded the adop-
tion of the Joint Resolution of April 6,
1917, declaring that a state of war
exists between the United States and the
Imperial German Government (chap. 1,
40 Stat, at L. 1). This so-called state-
ment of fact — which is alleged to be
false — is merely a conclusion or a de-
duction from facts. True it is the kind
of conclusion which courts call a con-
clusion of fact, as distinguished from
a conclusion of law; and which is some-
times spoken of as a finding of ultimate
fact as distinguished from an eviden-
tiary fact. But, in its essence, it is the
expression of a judgment — like the
[2S67] statements of many so-ealled his-
torical facts. To such conclusions and
deductions the declaration of this court
•4 £. ed.
in Ameriean .School v. Me Annuity, 187
U. S. 94, 104, 40 L, ed. 90, 94, 23 Sup.
Ct. Rep. 33, i^ applicable:
''There is no exact standard of abso-
lute tmth by which to prove the asser-
tion false and a fraud. We mean by
that to say that the claim of complain-
ants cannot be the subject of proof as
of an ordinary fact ; dt cannot be proved
as a fact to be a fraud or false pretense
or promise, nor can it properly be said
that those who assmme to heal bodily
ills or infirmities by a resort to this
method of cure are guilty of obtaining
money under false pretenses, such as
are intended in the statutes, which evi-
dently do not assume to deal with mere
matters of opinion upon subjects which
are not capable of proof as to their
falsitv."
•
The cause of a war — as of most
human action — is not single. War is
ordinarily the result of many co-operat-
ing causes, many different condition <;,
acts, and motives. Historians rarelv
•
agree in their judgment as to what was
the determining factor in a particular
war, even when they write under cir-
cumstances where detachment and the
availability of evidence from all sources
minimizes both prejudice and other
sources of error. For individuals, and
classes of individuals, attach significance
to those things which are significant to
them. And, as the contributing causes
cannot , be subjected, like a chemical
combination in a test tube, to qualita-
tive and quantitative analysis so as to
weigh and value the various elements,
the historians differ necessarily in their
judgments. One finds the determining
cause of war in a great man, another in
an idea, a belief, an economic necessity,
a trade advantage, a sinister machina-
tion, or an accident. It is for this rea-
son largely that men seek to interpret
anew in each age, and often with each
new generation, the important events
in the world's history.
That all who voted for the Joint
Resolution of April 6, 1917, [268] did
not do so for the reasons assigned by the
President in his address to Congress, on
April 2 is demonstrated by the discus-
sions in the House and in the Senate.*
That debate discloses also that both in the
Senate and in the House the loans to
the Allies and the desire to insure their
repayment in full were declared to have
been instrumental in bringing about in
our coxmtry the sentiment in favor of
• See 55 Cong/ Rec. 253, 254, 344, 354,
357, 407.
5ft&
268-270
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm.
the war.* However strongly we may be-
lieve [269] that these loans were not the
slightest makeweight, mnch less a deter-
mining f actor, in the country's decision,
the fact that some of our representa-
tives in the Senate and the House de-
clared otherwise on one of the most
solemn occasions in the history of the
nation should help us to understand
that statements like that here charged
to be false are in essence matters of
opinion and judgm^t, not matters of
fact, to be determined by a jury upon
or without evidence; and that even the
President's address, which set forth high
moral gprounds justifying our entry into
the war, may not be accepted as estab-
lishing beyond a reasonable doubt that
a statement ascribing a base motive was
criminally false. All the alleged false
statements were an interpretation and
discussion of public facts of public in-
terest. If the proceeding had been for
libel, the defense of privilege might have
been interposed. Gandia v. Pettingill,
222 U. S. 452, 56 L. ed. 267, 32 Sup. Ct.
Rep. 127. There is no reason to be-
lieve that Congress, in prohibiting a
special dass of false statements, in-
tended to interfere with what was ob-
viously comment as distinguished from
a statement.
The presiding judge ruled that expres-
sions of opinion were not punishable as
false statements under the act; but he
left it to the jury to determine whether
the five sentences in question were state-
ments of f a'cts or expressions of opinion.
As this determination was to be made
from the reading of the leaflet, unaf-
fected by any extrinsic evidence, the
question was one for the court. To hold
that a jury may make punishable state-
ments of conclusions or of opinion, like
those here involved, by declaring them
to be statements of facts and to be false,
would {Mvu^tically deny members of small
political parties freedom of criticism
and of discussion in times when feelings
run hig^ and the questions involved are
deemed fundamentaL [270] There is
nothing in the act compelling or indeed
justifying such a construction of it; and
I cannot believe that Congress in passing,
and the President iA approving, it, con-
ceived that such a construction was pos-
sible.
Second: But, even if the passages
from the leaflet set forth in the third
count could be deemed false statements
within the meaning of the act, the con-
victions thereon were unjustified because
evidence was wholly lacking to prove
any one of the other essential elements
of the crime .charged. Thus, there was
not a particle of evidence, that the de-
fendants knew that the statements were
false. They were mere distributers of
the leaflet. It had been prepared by a
man of some prominence. It had been
published by the national organization.
Not one of the defendants was an oflftcer,
even, of the local organization^ One of
them, at least, was absent from the
meetings at which the proposal to dis-
tribute the leaflet was discussed. There
is no evidence that the truthfulness of
the statements contained in the leaflet
had ever been questioned before this
indictment was found. The statement
* Discttseion in the Senate April 4, 1917 :
*\ . there is no doubt in any mind
bat the enormous amount of money loaned
to the Allies in this country has been in-
strumental in bringing about a public sen-
timent in favor of our country taking a
course that would make every debt bond
worth a hundred cents on the dollar, and
mnVi"g the payment of every debt certain
and sure." 55 Cong. Rec. p. 213.
Discussion in the House April 5, 1917.
"Since the loan of $500,000,000 was made
by MOTgan to the Allies, their efforts have
been persistent to land our soldiers in the
Fren<ui trenches." 55 Cong. Rec. p. 342.
^Already we have loaned the Allies,
through our banking system, up to De-
cemb^ 31. 1916, the enormous sum of
$2,325,900,000 in formal loans. Other huge
sums have been loaned and billions have
been added since that date. 'Where your
treasures are, there will be your heart also.'
That is one of the reasons why we are
about to enter this war. No wonder the
Morgans and the munition makers desire
war. . . . Our financiers d««ire that
55«
Uncle Sam underwrite these and other huge
loans and fight to defend their financial
interests, that there may be no final loss.**
55 Cong. Rec p. 362.
"I b^eve that all Americans, except thav
limited although influential class which is
willing to go on shedding other men's blood
to protect its investments and add to its
accursed profits, have abhorred the thought
of war." 55 Cong. Rec. p. 386.
''Likewise, Mr. Chairman, the J. Pier-
point Morgans, and their associates, who
I have floated war loans running into the
. millions which they now want the United
, States to guarantee by entering the Earo>
I pean war. ..." 55 Cong. Rec. p. 372.
I **These war germs are both epidemic and
' contagious. They are in the air. but some-
how or other they multiply faster in the
fumes about the munition factories. You
will not find many in our climate. TLey
also multiply pretty fast in Wall Street and
other money centers. 1 am opposed to de-
claring war to save the speculators.** 55
Cong. Rec. p. 376.
S5S U. S.
1919.
PIERCE V. UNITED STATES.
270-272
mainly relied upon to sustain the convic-
tion— that concerning the effect of our
large loans to the Allies — was merely a
repetition of what had been declared
with great solemnity and earnestness in
the Senate and in the House while the
Joint Resolution was under discussion.
The fact that the President had set
forth in his noble address worthy
grounds for our entry into the war was
not evidence that these defendants
knew to be false the charge that base
motives had also been operative. The
assertion that the great financial in-
terests exercise a potent, subtle, and
sinister influence in the important de-
cisions of our government had often
been made by m^n high in authority.
Mr. Wilson, himself a historian, said
before he was President, and repeated
in the New Freedom, that "the masters
of the government of the United States
are the combined capitalists and manu-
facturers of the United [271} States.''*
We maybe convinced that the decision
to enter the great war was wholly free
from such base influences, but we may
not, because such is our belief, permit
a jury to flnd, in the absence of evi-
dence, that it was proved beyond a rea-
sonable doubt that these defendants
knew that a statement in this leaflet to
the contrary was false.
Nor was thoj^ a particle of evidence
that these statements were made with
intent to interfere with the operation or
success of the military and naval forces.
So far as there is any evidence bearing
on the matter of intent, it is directly to
the contrary. The fact that the local
refused to distribute the pamphlet until
Judge Rose had directed a verdict of ac-
quittal in the Baltimore case shows that
its members desired to do only that
which the law permitted. The tenor of
the leaflet itself shows that the intent
of the writer and of the publishers was
to advance the cause of Socialism; and
each defendant testifled that this was
his only purpose in distributing the
pamphlet. Furthermore, the nature of
the words used and the circumstances
under which they were used showed af-
firmatively that they did not "create a
clear and present danger*' that thereby
the op^ations or success of our military
*Page 57. Then follows: "It is writ-
ten over every intimate page of the records
of Congress, it is written all through the
history of conferences at the White House,
that the suggestions of economic policy in
this coimtry have come from one source,
not many sources."
•4 li. ed.
and naval forces would be interfered
with.
The gravamen of the third count is
the charge of wilfully conveying, in .
time of war, false statements with the
intent to Interfere with the operation
and success of our military or naval
forces. One who did that would be'
called a traitor to his country. The
defendants, humble members of the So-
cialist party, performed as distributers
of the leafiet what would ordinarily be
deemed merely a menial service. To hold
them guilty under the 3d [272] count is
to convict not them alone, but, in effect,
their party, or at least its responsible
leaders, of treason, its that word is
commonly understood. I cannot believe
that there is any basis in our law for
such a condemnation on this record.
Third: To sustain a conviction on the
2d or on the 6th count it is necessary to
prove that by co-operating to distribute
the leaflet the defendants conspired or
attempted wilfully to "cause insubordi-
nation, disloyalty, mutiny, or refusal of
duty in the military or naval forces."
No evidence of intent so to do was in-
troduced unless it be found in the leaflet
itself. What has been said in respect to
the 3d count as to the total lack of
evidence of evil intent is equally appli-
cable here.
A verdict should have been directed
for the defendants on these counts also
because- the leaflet was not distributed
under such circumstances, nor was it
of such a nature, as to create a clear
and present danger of causing either
insubordination, disloyalty, mutiny, or
refusal of duty in the military or naval
forces. The leaflet contains lurid and
perhaps exaggerated pictures of the
horrors of war. Its arguments as to the
causes of this war m^y appear to us
shallow and grossly unfair. The remedy
proposed may seem to us worse than the
evil whicli, it is argued, will be thereby
removed. But the leaflet, far from
counseling disobedience to law, points
to the hopelessness of protest, under the
existing system, pictures the irresistible
power of the military arm of the gov-
ernment, and indicates that acquiescence
is a necessity. Insubordination, disloy-
alty, mutiny, and refusal of duty in the
military or naval forces are very seri-
ous crimes. It is not conceivable that
any man of ordinary intelligence and
normal judgment would be induced by
anything in the leaflet to commit them
and thereby risk the severe punishment
prescribed for such offenses. Certainly
557
268-270
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm.
the war.* However strongly we may be-
lieve [260] that these loans were not the
slightest makeweight, mnch less a deter-
mining factor, in the country's decision,
the fact that some of our representa-
tives in the Senate and the House de-
clared otherwise on one of the most
solemn occasions in the history of the
nation should help us to understand
that statements like that here charged
to be false are in essence matters of
opinion and judgm^t, not matters of
fact, to be determined by a jury upon
or without evidence; and that even the
President's address, which set forth high
moral grounds justifying our entry into
the war, may not be accepted as estab-
lishing beyond a reasonable doubt that
a statement ascribing a base motive was
criminally false. All the alleged false
statements were an interpretation and
discussion of public facts of public in-
terest. If the proceeding had been for
libel, the defense of privilege might have
been interposed. Gandia v. Pettingill,
222 U. S. 452, 56 L. ed. 267, 32 Sup. Ct.
Rep. 127. There is no reason to be-
lieve that Congress, in prohibiting a
special class of false statements, in-
tended to interfere with what was ob-
viously comment as distinguished from
a statement.
The presiding judge ruled that expres-
sions of opinion were not punishable as
false statements under the act; but he
left it to the jury to determine whether
the five sentences in question were state-
ments of fa'cts or expressions of opinion.
As this determination was to be made
from the reading of the Leaflet, unaf-
fected by any extrinsic evidence, the
question was one for the court. To hold
that a jury may make punishable state-
ments of conclusions or of opinion, like
those here involved, by declaring them
to be statements of facts and to be false,
would practically deny members of small
political parties freedom of criticism
and of discussion in times when feelings
run high and the questions involved are
deemed fundamental. [270] There is
nothing in the act compelling or indeed
justifying such a construction of it; and
I cannot believe that Congress in passing,
and the President ill approving, it, con-
ceived that such a construction was pos-
sible.
Second: But, even if the passages
from the leaflet set forth in the third
count could be deemed false statements
within the meaning of the act, the con-
victions thereon were unjustified because
evidence was wholly lacking to prove
any one of the other essential elements
of the crime .charged. Thus, there was
not a particle of evidence, that the de-
fendants knew that the statements were
false. They were mere distributers of
the leaflet. It had been prepared by a
man of some prominence. It had been
published by the national organization.
Not one of the defendants was an officer,
even, of the local organization. One of
them, at least, was absent from the
meetings at which the proposal to dis-
tribute the leaflet was discussed. There
is no evidence that the truthfulness of
the statements contained in the leaflet
had ever been questioned before this
indictment was found. The statement
< Discussion in the Senate April 4, 1917 :
*'. . . there is no doubt in any mind
but tlie enormous amount of money loaned
to the Allies in this country has been in-
strumental in bringing about a public sen-
timent in favor of our country taking a
course that would make every debt bond
worth a hundred cents on the dollar, and
making the payment of every debt certain
and sure.'' 55 Cong. Rec. p. 213.
Discussion in the House April 5, 1917.
"Since the loan of $500,000,000 was made
by Morgan to the Allies, their efforts have
been persistent to land our soldiers in the
Fr^idi trenches." 55 Cong. Rec. p. 342.
"Already we have loaned the Allies,
through our banking system, up to De-
cember 31, 1916, the enormous sum of
$2,325,900,000 in formal loans. Other huge
sums have been loaned and billions have
been added since that date. 'Where your
treasures are, there will be your heart also.'
That is one of the reasons why we are
about to enter this war. No wonder ti^e
Morgans and the munition makers desire
war. . . . Our financiers desire that
56«
Uncle Sam underwrite these and other huge
loans and fight to defend their financial
interests, that there may be no final loss.**
55 Cong. Rec. p. 362.
"I believe that all Americans, except thav
limited although influential class which is
willing to go on shedding other men's blood
to protect its investments and add to its
accursed profits, have abhorred the thought
of war." 55 Cong. Rec. p. 386.
"Likewise, Mr. Chairman, the J. Pier-
point Morgans, and their associates, who
have floated war loans running into the
millions which they now want the United
States to guarantee by entering the Euro-
pean war. . . .'' 55 Cong. Rec. p. 372.
''These war germs are both epidemic and
contagious. Tliey are in the air, but some-
how or other they multiply faster in the
fumes about the munition factories. You
will not find many in our climate. They
also multiply pretty fast in Wall Street and
other money centers. I am opposed to de-
claring war to save the speculators." 55
Cong. Rec. p. 376.
252 V. S.
1919.
PIERCE V. UNITED STATES.
270-272
mainly relied upon to sustain the convic-
tion— that concerning the effect of our
large loans to the Allies — ^was merely a
repetition o£ what had been declared
with great solemnity and earnestness in
the Senate and in the House while the
Joint Resolution was under discussion.
The fact that the President had set
forth in his noble address worthy
grounds for our entry into the war was
not evidence that these defendants
knew to be false the charge that base
motives had also been operative. The
assertion that the great financial in-
terests exercise a potent, subtle, and
sinister influence in the important de-
cisions of our government had often
been made by m6n high in authority.
Mr. Wilson, himself a historian, said
before he was President, and repeated
in the New Freedom, that "the masters
of the government of the United States
are the combined capitalists and manu-
facturers of the United [271] States."*
We may be convinced that the decision
to enter the great war was wholly free
from such base influences, but we may
not, because such is our belief, permit
a jury to flnd, in the absence of evi-
dence, that it was proved beyond a rea-
sonable doubt that these defendants
knew that a statement in this leaflet to
the contrary was false.
Nor was thore a particle of evidence
that these statements were made with
intent to interfere with the operation or
success of the military and naval forces.
So far as there is any evidence bearing
on the matter of intent, it is directly to
the contrary. The fact that the local
refused to distribute the pamphlet until
Judge Rose had directed a verdict of ac-
quittal in the Baltimore case shows that
its members desired to do only that
which the law permitted. The tenor of
the leaflet itself shows that the intent
of the writer and of the publishers was
to advance the cause of Socialism; and
each defendant testifled that this was
his only purpose in distributing the
pamphlet. Furthermore, the nature of
the words used and the circumstances
under which they were used showed af-
firmatively that they did not "create a
clear and present danger" that thereby
the operations or success of our military
♦ Page 57. Then follows: *'It is writ-
ten over every intimate page of the records
of Congress, it is written all through the
history of conferences at the White Hmise,
that the suggestions of economic policy in
this country have come from one source,
not many sources."
•4 li. ed.
and naval forces would be interfered
with.
The gravamen of the third count is
the charge of wilfully conveying, in
time of war, false statements with the
intent to interfere with the operation
and success of our military or naval
forces. One who did that would be'
called a traitor to his country. The
defendants, humble members of the So-
cialist party, performed as distributers
of the leaflet what would ordinarily be
deemed merely a menial service. To hold
them guilty under the 3d [272] count is
to convict not them alone, but, in effect,
their party, or at least its responsible
leaders, of treason, as that word is
commonly understood. I cannot believe
that there is any basis in our law for
such a condemnation on this record.
Third: To sustain a conviction on the
2d or on the 6th count it is necessary to
prove that by co-operating to distribute
the leaflet the defendants conspired or
attempted wilfully to "cause insubordi-
nation, disloyalty, mutiny, or refusal of
duty in the military or naval forces."
No evidence of intent so to do was in-
troduced unless it be found in the leaflet
itself. What has been said in respect to
the 3d count as to the total lack of
evidence of evil intent is equally appli-
cable here.
•
A verdict should have been directed
for the defendants on these counts also
because the leaflet was not distributed
under such circumstances, nor was it
of such a nature, as to create a clear
and present danger of clausing either
insubordination, disloyalty, mutiny, or
refusal of duty in the military or naval
forces. The leaflet contains lurid and
perhaps exaggerated pictures of the
horrors of war. Its arguments as to the
causes of this war m^y appear to us
shallow and grossly unfair. The remedy
proposed may seem to us worse than the
evil whicli, it is argued, will be thereby
removed. But the leaflet, far from
counseling disobedience ' to law, points
to the hopelessness of protest, under the
existing system, pictures the irresistible
power of the military arm of the gov-
ernment, and indicates that acquiescence
is a necessity. Insubordination, disloy-
alty, mutiny, and refusal of duty in the
military or naval forces are very seri-
ous crimes. It is not conceivable that
any man of ordinary intelligence and
normal judgment would be induced by
anything in the leaflet to commit them
and thereby risk the severe punishment
prescribed for such offenses. Certainly
557
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbm,
where this waa a mere inadvertence and
did not mialead or prejudice anyone.
[For otber cmaes, see Mines, I. c in Digest
Sap. Ct. 1908.]
Internal rerenoe — Talidity of nn*
stamped deeds ' — admissibility in
evidence.
10. The absence of the internal reTcnue
stamps required on deeds by the Act of
October 22, 1914, § 22, neither invalidated
the deeds nor made them inadmissible as
evidence.
(For other cases, see Internal Revenne, III.
l^Eridence. IV. b, 1, in Digest Sup. Ct.
Appeal — reversible error ^ refusal to
direct verdict.
11. The refusal of the trial court to
direct a verdict for defendant will not be
disturbed by the Federal Supreme Court
where that court is of the opinion that
the evidence presented several disputable
questions of fact which it was the province
of the jury to determine, and this was
the view, not only of the judge who pre-
sided at the trial, but of another judge
who overruled a motion for a new trial.
(For other cases, see Appeal and Error, VIII.
m. 6: Trial, VII. d, 3, in Digest Sop. Ct.
1908.]
Evidence — admissions by locator of
mininii: claim — mistalce In posting:
nptice.
12. Placer claimants, by mistakenly
posting a notice stating that they had re-
located the ground as a lode claim, did
not thereby admit the validity of a prior
conflicting lode location, where the mistake
was promptly corrected the next day by
the substitution of another notice stating
that the ground was located as a placer
claim, and no one was misled by the mis-
Uke.
(For otber cases, see Evidence, IX. in Digest
Sop. Ct. 1908.1
Evidence ^ self-serving declarations
— recitals In notice of mining loca-
tion.
13. Recitals of discovery in the record-
ed notices of location of lode mining claims
are mere ex parte self-serving declarations
on the part ol the locators, and are not
evidence of discovery.
(For otber cases, see Evidence, X. d, In Di-
gest Sop. Ct. 1908.]
Appeal — errors waived or cured below
— evidence.
14. Defendant in a suit by placer min-
ing claimants against a conflicting lode
claimant has no right to complain that he
was not permitted, on cross-examination of
a witness for the plaintiffs, to show the
c<mtents of certain assay reports, where,
though some of these reports were at first
excluded, they were all produced under a
new ruling of the court except two, which
covered samples taken from openings made
after the placer claim^ were located, and
defendant did not call for them when the
witness was recalled, or reserve any ex-
ceptions to the new ruling, and it is more
568
than inferable from the record that he ac-
?uiesced in it.
For otber cases, see Appeal aad Error, VIII.
ic, 3. in Digest Bnp. ct. 1908.]
Bflnes ^ lode location — necessity of
• discovery ^ effect of holding and
working.
15. The* necessi^ of a discovery to sus*
tain a lode mining location is not dispensed
with nor may its absence be cured by vir-
tue of the provisions of U. S. Rev. Stat. §
2332, that evidence of holding and working
a mining claim for a period equal to the
time prescribed by the Statute of limita-
tions for mining claims of the state or
territory where the same may be sitiutted
shall be sufficient to establish a right to a
patent thereto in the abseuce of any ad-
verse claim.
(For otber cases, see Mines, I. b. In Digest
Sop. Ct 1908.]
[Kos. 172 and 173.]
Argued December 8, 1919. Decided March
16, 1920.
TWO WRITS of Certiorari to the
United States Circuit Court of Ap-
peals for the Ninth Circuit to review
judgments which reversed judgments of
the District Court for the District of
Nevada in favor of plaintiffs in adverse
suits, and ordered a new trial. Judg-
ment^ of the Circuit Court of Appeals
reversed. Judgments of the District
Court affirmed.
See same case below, 161 C. C. A. 133,
249 Fed. 81.
The facts are stated in the opinion.
Mr. Cteorge B. Thatcher argued the
cause, and, with Mr. William C. Pren-
tiss, filed a brief for petitioners:
It was, only necessary for the defend-
ant to prove discovery to the satisfac-
tion of the jury; if the jury had
returned a special verdict in favor of
discovery on any of the lode claims, the
ground therein would have belonged to
defendant without further finding of any
other fact.
Overman Silver Min. Co. v. Corcoran,
15 Nev. 147, 1 Mor. Min. Rep. 691.
U. S. Rev. Stat. § 2322, Comp. SUt. §
4618, 6 Fed. Stat. Anno. 2d ed. p. 523, is
not a statute of limitations. It is a part
of the chapter on minin^ir ^aid mineral
resources, and merely dispenses with
acts of location and claim, other than
discovery, in the absence of an adverse
claim. It does not dispense with the
necessity of complying with § 2320,
which requires disco verv* as a necessary
prerequisite to the location or appro-
priation of mining ground.
Reavis v. Fianza, 215 U. S. 16, 54
L. ed. 72, 30 Sup. Ct. Rep. 1: Belk v.
25S r. s.
1919.
COLE V. RALPH.
Meagher; 104 U. S. 279, 26 L. ed. 735, 1 ,
Mor. Min. Bep. 510; McCowan v. Mac^
Lay, 16 Mont. 234, 40 Pac. 602;
Humphreys v. Idaho Gold Mines De-
velopment Co. 21 Idaho, 126, 40 L.R.A.
(N.S.) 817, 120 Pac. 826; Upton v.
Santa Bita Min. Co. 14 N. M. 96, 89 Pac.
282; United States v. Midway Northern
Oil Co. 232 Fed. 634.
Location can rest only on actual dis-
covery, and without discovery no right
can he acquired save the right to retain
possession while diligently seeking dis-
covery.
McLemore v. Express Oil Co. 158 Cal.
559, 139 Am. St. Rep. 147, 112 Pac. 59;
King V. 'Amy & S. Consol. Min. Co. 152
U. S. 222, 227, 38 L. ed. 419, 421, 14
Sup. Ct. Rep. 510, 18 Mor. Min. Rep. 76;
Creede & C. C. Min. & Mill. Co. v. Uinta
Tunnel, Min. & Transp. Co. 196 U. S.
337, 345, 49 L. ed. 501, 507, 25 Sup. Ct.
Rep. 266; Jupiter Min. Co. v. Bodie
Consol. Min. Co. 7 Sawy. 96, 11 Fed.
666, 4 Mor. Min. Rep. 411; Steele v.
Tanana Mines R. Co. 78 C. C. A. 412, 148
Fed. 678; Garibaldi v. Grillo, 17 Cal.
App. 540, 120 Pac. 426; Erwin v. Pere-
go, 35 C. C. A. 482, 93 Fed. 611; Book v.
Justice Min. Co. 58 Fed. Ill, 17 Mor.
Min. Bep. 617; Bound Mountain Min.
Co. V. Bound Mountain Sphinx Min. Co.
36 Nev. 543, 560, 138 Pac. 71; United
States V. M'Cutchen, 238 Fed. 575;
United States v. Midway Northern Oil
Co. 232 Fed. 626; Multnomah Min. Mill.
& Development Co. v. United States, 128
C. C. A. 28, 211 Fed. 102; Overman S.
Min. Co. V. Corcoran, 15 Nev. 147, 152,
1 Mor. Min. Bep. 691 ; Gleeson v. Martin
White Min. Co. 13 Nev. 457.
A locator without discovery is a mere
licensee upon the public domain; his ap-
propriation and possession vest only
when he has complied with the require-
ments of the statute. He has no posses-
sion of the mining claim as a whole, and
the most that he can have in the ab-
sence of discovery is pedis possessio
(Gemmell v. Swain, 28 Mont. 331, 98 Am.
St. Bep. 570, 72 Pac. 662, 22 Mor. Min.
fiep. 716), and that only while he is
with diligence prosecuting work for the
purpose of making a discovery.
Ophir S. Min. Co. v. Carpenter, 4
Nev. 538, 97 Am. Dec. 550, 4 Mor. Min.
Rep. 640; McLemore v. Express Oil Co.
158 Cal. 559, 139 Am. St. Rep. 147, 112
Pac. 59; United States v. Midway Oil
Co. 232 Fed. 626.
The Nevada Statute of Limitations
does not undertake to dispense with the
requirements of U. S. Rev. Stat. § 2320,
Comp. Stat § 4615, 6 Fed. Stat. Anno.
•4 Jj. ed.
2d ed. p. 512, as to discovery, but, if it
does so, or such construction be given
it, it is void.
Butte City Water Co. v. Baker, 196
U. S. 119, 49 L. ed. 409, 25 Sup. Ct. Rep.
211; McTamahan v. Pike, 91 CaL 540,
27 Pac. 784; McDonald v. Fox, 20 Nev.
368, 22 Pac. 234; Pickett v. Doe, 74 Ala.
131 ; Pioneer Wood Pulp Co. v. Chandos,
78' Wis. 526, 47 N. W. 662; Ivy v. Yan-
cey, 129 Mo. 501, 31 S. W. 937, 938;
Union Consol. S. Min. Co. v. Taylor, 100
U. S. 37, 25 L. ed. 541, 5 Mor. Min. Rep.
323.
Neither recitals in location notices nor
mere possession and claim for any period
can create a presumption of discovery.
Clipper Min. Co. v. Eli Min. ft Liemd
Co. 194 U. S. 220, 48 L. ed. 944, 24 Sup.
Ct. Rep. 632, 33 Land Dec. 660, 34 Land
Dec. 401.; Round Mountain Min. Co. v.
Round Mountain Sphinx Min. Co. 36
Nev. 543, 138 Pac. 71 ; 2 Lindley, Mines,
3d ed. 8 392; Childers v. Lahann, 19 N.
M. 301, 142 Pac. 924; Thomas v. South
Butte Min. Co. 128 C. C. A. 33, 211 Fed.
107; Brophy v. O'Hare, 34 Land Dec.
596; Purtle v. Steffee, 31 Land Dec. 400;
Multnomah Min. Mill. & Development
Co. V. United States, 128 C. C. A. 2g, 211
Fed. 101 ; Fox v. Myers, 29 Nev. 186, 86
Pac. 793.
So long as one or more of the adverse
claimants and plaintiffs showed an inter-
est in the title, it was inmiaterial to the
respondent whether or not all of the
plaintiffs could show interest in the title,
or whether the whole title was represent-
ed by the plaintiffs or by some of them.
Nesbitt V. Delamar's Nevada Gold Min.
Cn. 24 Nev. 273, 77 Am. St. Bep. 807,
52 Pac. 609, 53 Pac. 178, 19 Mor. Min.
Kep. 286.
One co-owner of a mining claim may
maintain an action for ipossession, and
recover for his own benefit as well as for
the benefit of his co-owner.
Erhardt v. Boaro, 113 U. S. 527, 537,
28 L. ed. 1113, 1116, 5 Sup. Ct. Bep. 560,
15 Mor. Min. Rep. 472.
The question of misjoinder was not
raised by demurrer, answer, or separate
preliminary answer, and the rule is well
settled, both in the state and Federal
courts, that failure to raise the ques-
tion by demurrer, answer, or separate
preliminary answer, and pleading to the
merits, waives all pleas in abatement. ]
Ronnow v. Delmue, 23 Nev. 33, 41 Pac'
1074; Historical Pub. Co. v. Jones Bros.
Pub. Co. 145 C. C. A. 524, 231 Fed. 638.
The validity of the lode claim was not
admitted by the relocation notice. I
5M
SUPREME COUBT OF THE UNITED STATES,
Oct. Inic,
' Zeiger v. Dowdy, 13 Ariz. 331, 114 Pac.
565.
It is nimecesBBry in an adverse suit to
all^e specially each step taken to ac-
quire a location, or for the plaintiff to
point out the defects in the claim of the
applicant for patent.
Tonopah Fraction Min. Co. y, Doug-
lass, 123 fed. 936; Rose v. Riq^mond
Min. Co. 17 Nev. 25, 27 Pac. 1105; Rich-
mond Min. Co. T. Rose, 114 U. S. 576,
29 L. ed. 273, 6 Sup. Ct. Rep. 1055;
Ralph V. Cole, 161 C. C. A. 183, 249 Fed.
84.
The answer may be taken to aid the
complaint, especially after verdict, and
it appears specifically from the answer
that the defendant is in possession.
Cavender v. Cavender, 114 U. 8. 464,
29 L. ed. 212, 5 Sup. Ct. Rep. 955; RiA-
ardson v. Green, 9 C. C. A. 665, 15 U. S.
d. 431 ; Provisional Mu-
man, 6 C. C. A. 349, 13
57 Fed. 329; McManus
I. Co. 4 Nev. 15; Waples
S. 6, 27 L. ed. 632, 1
; Bank of Metropolis v.
Pet. 19, 10 L. ed. 335;
r, 14 How. 29, 14 L. ed.
v. Green, 9 C. C. A. 565,
18, 61 Fed. 431; Meadow
, _ V. Dodds, 6 Nev. 264;
Treadway v. Wilder, 8 Nev. 91.
The Revenue Act of October 22, 1914,
contains no provision that an unBtamped
instrument shall be void, or shall not be
admitted as evidence in the courts. In
any event, it is established by the au-
thorities that the stamps may be affixed
at the time.
Henderson, War Revenue Law ta In-
come Tax, p. 30; Wingert v. Zeigler, 91
Md. 318, 51 L.R.A. 316. 80 Am. St. Hep.
453, 46 Atl. 1074; Brvan v. First Nat.
Bunk, 205 Pa. 7, 54 Atl. 480; Rowe v.
Bowman, 183 Mass. 488. 67 N. E. 636;
Killip V. Empire Mill Co. 2 Nev. 42;
United States v. Griswold, 8 Fed. 556;
Dowell V. Applegate, 7 Fed. 881; Dow-
el! V. Applegate, 7 Sawy. 232, 6 Fed. 698.
The question of nonsuit . when the
plaintiffs rested is foreclosed by the de-
fendant having gone on with bis evi-
dence.
Coeur D'Alcne Lumber Co. v. Goodwin,
144 C. C. A. 413, 181 Fed. 951; Simkins,
Fed. Eq. Suit, 65; Wilson v. Halev Live
Stock Co. 153 V. S. 39, 43, 38 L. ed. 627,
628, 14 Sup. Ct. Rep. 768; Bt^k v. Gas-
sert, 149 U. S. 17, 23, 37 L. ed. 631, 13
Snp. Ct. Rep. 738.
Messrs. Samnsl Henick and P. Q,
Ellis at^ued the cause and, with Mr.
Edwin W. Senior, filed a brief for r»-
spondent :
The question on review is whether the
judgment complained of is oorreot, not
as to the grounds annonnced therefor by
the court below.
M'Clung V. Silliman, 6 Wheat 598, 5
L. ed. 340; Pennsylvania R. Co. v.
Wabash, St. L. & P. R. Co. 157 U. S. 225.
39 L. ed. 682, 15 Sup. Ct. Rep. 576;
Silsby V. Foote, 14 How. 218, 14 L. ed.
394; 4 C. J. g 2557, p. 663, notes, 92, 99.
p. 665, notes 1-11; Young v. Duncan, 218
Mass. 351, 106 N. E. 1 ; Randall v. Fpu-
lesB Motor Car Co. 212 Mass. 352, 99 K.
E. 221. ■
Possession alone and a recorded loca-
tion raisp a prima facie presumption of
title, validity, and due legal compliance,
such as will uphold and sustain a mining
claim until something is alleged and
proved against it. This presumption in-
cludes, of course, the element of mia-
eral discovery.
Campbell v. Rankin, 99 U. S. 261, 25
L. ed. 435, 12 Mor. Min. Rep. 257; Riacb
V. Wiseman, 36 Or. 484, 78 Am. St. Rep.
783, 59 Pac. 1111, 20 Mor. Min. Rep.
409; White v. Martin, 2 Alaska, 496:
Harris v. Equator Min. & Smelting Co.
3 McCrary, 14, 8 Fed. 863, 12 Mor. Min.
Rep. 178; Cheesman v. Hart, 42 Fed..
102, 16 Mor. Min. Rep. 263; Vogel v.
Warsing, 77 C. C. A. 199. 146 Fed. 949;
Ware v. White, 81 Ark. 220, 108 S. W.
834; Cropper v. King, 4 Mont. 367, 1
Pac. 756; Thomas v. South Butte Min.
Co. 128 C. C. A. 33, 211 Fed. 105; Bis-
mark Mountain Gold Min, Co. v. North
Sunbeam Gold Co. 14 Idaho, 516, 95
Pac. 18; Walker v. Southern P. R. Co. 24
Land Dec. 172; Altoona Quicksilver Min.
Co. V. Integral Quicksilver Min. Co. 114
Cal. 100, 45 Pac 1047, 18 Mor. Min. Rep.
410; Strepey v. Stark, 7 Colo. 614, 5 Pat-.
Ill, 17 Mor. Min. Rep. 28; Jantzon v.
Arizona Copper Co. 3 Ariz. 6, 20 Pa<-,
94; Buffalo Zinc & Cornier Co. v. Crump,
70 Ark. 525, 91 Am. St. Rep. 87, 69 S,
W. 576, 22 Mor. Min. Rep. 276; Am-
bei^is Min. Co. v. Dav. 12 Idaho. 108.
85 Pac. 109; Golden Fleece Gold & S.
Min. Co. V. Cable Consol. Gold & S. Min.
Co. 12 Nev. 312, 1 Mor, Min. Rep. 120;
Lebanon Min. Co. v. Consolidated Re-
publican Min, Co. 6 Colo. 371; McGinnb
V. Egbert, 8 Colo. 4G. 15 Mor. Min. Rep,
329, 5 Pac. 652 ; Golden v. Murphy, 31
Nev. 395, 103 Pac. 39". 105 Pac, 99.
The element of a mineral discovery is
included and implied in [be term ''valid
location,"
Creede ft C. C. Min. & Mill. Co. v.
Cinta Tunnel Min, & Transp. Co. 196 U.
S53 r. s.
itt9.
COLE V. RALPH.
S. 342, 343, 49 L. ed. 505, 50.6, 25 Sup.
Ct. Bep. 266; McLemore v. Express Oil
Co.' 168 CaL 559, 139 Am. St. Rep. 147,
112 Pac. 60.
And absence of discQven' cannot be
proved at the trial unless tendered as
an issue in the complaint.
Rnssell v. Hovt, 4 Mont. 412, 2 Pao.
26.
When possession and working for the
period of limitations under U. S. Rev.
Stat. § 2832, Comp. Stat. § 4631, 6 Fed.
Stat4 Anno. 2d ed. p. 580, have been
Superadded to age, record, and transfers,
(he presumption of mineral discovery
and valid location must become conclu-
nire, or the statute has no operation or
effeet at all, and would never be plead-
ed or relied upon.
Belk V. Meagher, 104 U. S.- 279, 287,
28 L. ed. 735, 738, 1 Mor. Min. R^p. 510;
Qlaeier Mountain S. Min. Co. v. Willis,
127 U. S. 471, 32 L. ed. 172, 8 Sup. Ct.
Rep. 1217, 17 Mor. Min. Rep. 127;
Reavis v. Fianza, 215 U. S. 16, 25, 54 L.
)ed. 72, 77, 30 Sup. Ct. Rep. 1 ; Costigan,
Min. Law, § 153, note 52; Buffalo Zinc
& Copper Co. v. Crump, 70 Ark. 525, 91
Am. St. Rep. 87, 69 S. W. 576, 22 Mor.
Min. Rep. 276; Harris v. Equator Min.
A Smelting Co. 3 McCrarv, 14, 8 Fed.
883, 12 Mor. Min. Rep. 1*78; 420 Min.
Co. ▼. Bullion Min. Co. 3.Sawy. 634.
Fed. Cas. No. 4,989; Lindlev, Mines, §
866, note 3, § 688, p. 1722 ; Golden v.
Murphy, 31 Nev. 395, 103 Pac. 394, 105
Pac. 99; Lavagnino v. Uhlig, 26 Utah, 1,
99, Am. St. Rep. 808, 71 Pac. 1046, 22
Mor. Min. Rep. 610; Anthony v. Jillson,
83 Cal. 296, 23 Pac. 419, 16 Mor. Min.
Rep. 26; Altoona Quicksilver Min. Co.
V. Integral Quicksilver Min. Co. 114 Cal.
100, 45 Pac. 1048, 18 Mor. Min. Rep.
410; Upton v. Santa Rita Min. Co. 14
N. M. 96, 89 Pac. 284; Vogel v. Warsing,
77 C. C. A. 199, 146 Fed. 949; Risch v.
Wiseman, 36 Or. 484, 78 Am. St. Rep.
783, 59 Pac. 1111, 20 Mor. Min. Rep.
409; Snyder, Mines, §§ 353, 672; Thomas
V, South Butte Min. Co. 128 C. C. A.
33, 211 Fed. 107.
In the following eases the statute was
applied against the jumper, and the ad-
verse holding occurred before he arrived :
Reavis v. Fianza, 215 U. S. 16, 54 L.
ed. 72, 30 Sup. Ct. Rep. 1 ; Glacier Moun-
tain Silver Min. Co. v. Willis, 127 U. S.
mi, 32 L. ed. 172, 8 Sup. Ct. Rep. 1217,
17 Mor. Min. Rep. 127; Bismark Moun-
tain Gold 'Min. Co. v. North Sunbeam
Gold Co. 14 Idaho, 516, 95 Pac. 14 : Flynn
Group Min. Co. v. Frank Murphv, 18
Idaho, 266, 138 Am. St. Rep. 201, 109
Pac. 866; Buffnlo Zinc & Copper Co. v.
•4 Ij. ed.
Crump, 70 Ark. 525, 91 Am. St. Rep.
87, 69 S. W. 576, 22 Mor. Min. Rep.
276; Harris v. Equator Min. & Smelt-
ing Co. 3 MeCrary, 14, 8 Fed. 863, 12
Mor. Min. Rep. 178; Golden v. Murphv,
31 Nev. 395, 103 Pac. 396, 105 Pac. 99;
Upton V. Santa Rita Min. Co. 14 N. M.
96, 89 Pac. 275; Vogel v. Warsing, 77
C. C. A.. 199, 146 Fed. 949; Rich v. Wise-
man, 36 Or. 484, 78 Am. St. Rep. 783,
69 Pac. 1111, 20 Mor. Min. Rep. 409;
Gropper v. King, 4 Mont. 367, 1 Pac.
755. •
Publication of notice of an adverse
claim in the land office is in the nature
of a summons, and if default be made,
all claims will be cut off, both valid
and invalid.
People ex rel. Darby v. District Ct. 19
Colo. 347, 35 Pac. 731 ; Wolfley v. Leba-
non Min. Co. 4 Colo. 112, 13 Mor. Min.
Rep. 282; Round Mountain Min. Co. v.
Round Mountain Sphinx Min. Co. 36
Nev. 543, 138 Pac. 73; Creede & C. C.
Min. ft' Mill. Co. v. Uinta Tunnel Min.
& Transp. Co. 196 U. S. 337, 353, 355,
49 L. ed. 501, 510, 511, 25 Sup. Ct. Rep.
266; Lawson v. United States Min. Co.
207 U. S. 1, 15, 52 L. ed. 65, 76, 28 Sup;
Ct. Rep. 15.
All that respondent claims for U. S.
Rev. Stat. § 2332, is that compliance
therewith is the equivalent of a valid
location under §§ 2319, 2320, a? held in
Belk ▼. Meagher, 104 U. S. 279, 26 L.
ed. 735, 1 Mor. Min. Rep. 510.
Possession of a mineral patent is con-
clusive proof or adjudication of the fact
of prior mineral discovery
Creede & C. C. Min. & Mill. Co. v.
Uinta Tunnel Min. & Transp. Co. 196 U.
S. 342, 343, 49 L. ed. 505, 506, 25 Sup.
Ct. Rep. 266.
The right to a thing that gives title is
a right to the thing itself.
Reavis v. Fianza, 215 U; S. 16, 54 L.
ed. 72, 30 Sup. Ct. Rep. 1.
Petitioners have no title or right of
action.
Omar v. Soper, 11 Colo. 380, 7 Am, St.
Rep. 246, 18 Pac. 443, 15 Mor. Min. Rep.
496; Healey v. Rupp, 37 Colo. 25, 86
Pac. 1016; Ferris v. McNally, 45 Mont.
20, 121 Pac. 893; Lavagnino ▼. Uhlig,
26 Utah, 1, 99 Am. St. Rep. 808, 71 Pac.
1049, 22 Mor. Min. Rep. 610; Moffat v;
Blue River Gold Excavating Co. 33 Colo.
142, 80 Pac. 139; McMillen v. Ferrum,
Min. Co. 32 Colo. 38, 105 Am. St. Rep.
64, 74 Pac. 461; Kirk v. Meldrum, 28
Colo. 453, 66 Pac. 633, 21 Mor. Min. Rep.
393 ; Lalande v. McDonald, 2 Idaho, 307,
1 13 Pac. 347; Mc Williams v. Winslow, 34
Colo. 341, 82 Pac. 538.
571
SUPREME COURT OF THE UNITED STATES.
Oct. Tcbm,
All the petitioners are out of court on
the Guy Davis elaim by the form of their
relocation notice.
Belk V. Meagher, 104 U. S. 279, 26 L.
ed. 735, 1 Mor. Min. Rep. 510; Wills v.
Blain, 5 N. M. 238, 20 Pac. 798; Provi-
dence Gold Min. Co. v. Burke, 6 Ariz.
323, 57 Pac. 641, 19 Mor. Min. Rep. 625;
Golden v. Murphy, 31 Nev. 395, 103 Pac.
398, 105 Pac. 99; Shattuck v. Costello,
8 Ariz. 22, 68 Pac. 529, 22 Mor. Min.
Rep. 136; Jupiter Min. Co. v. Bodie
Consol. Min. Co. 7 Sawy. 96, 11 Fed. 666,
4 Mor. Min. Rep. 411 ; Zerres v. Vanina,
134 Fed. 614^ 80 C. C. A. 366, 150 Fed.
564; Lindley, Mines, § 404; Quigley v.
Gillett, 101 Cal. 462, 35 Pac. 1040, 18
Mor. Min. Rep. 68; Ware v. White, 81
Ark. 220, 108 S. W. 832; Cunningham v.
Pirrung, 9 Ariz. 288, 80 Pac. 329 ; Jack-
son V. Prior Hill Min. Co. 19 S. D. 453,
104 N. W. 207; Zeiger v. Dowdy, 13 Ariz.
331, 114 Pac. 565.
Possession, which implies title, also
implies every evidential fact necessary
to title, and in the caso of a mining claim
this includes the discovery and posses-
sion of mineral, without which there can
be^no title. This presumption is greatly
emphasized and strengthened to the
point almost of conclusiveness by long-
continued possession, repeated transfers
and conveyances, and substantial im-
provement or development (Jantzon v.
Arizona Copper Co. 3 Ariz. 6, 20 Pac.
93; Cheesman v. Shreeve, 40 Fed. 787;
Cheesman v. Hart, 42 Fed. 98, 16 Mor.
Min. Rep. 263; Thomas v. South Butte
Min. Co. 128 C. C. A. 33, 211 Fed. 107;
Harris v. Equator Min. ik Smelting Co.
3 McCrary, 14, 8 Fed. 863, 12 Mor. Min.
Rep. 178 ; Vogel v. Warsing, 77 C. C. A.
199, 146 Fed. 960; Bevis v. Markland,
130 Fed. 226), and is rendered absolutely
irrebuttable by the running of time
under U. S. Rev. Stat. § 2332, Comp.
Stat. § 4631, 6 Fed. Stat. Anno. 2d ed.
p. 580. But, prior thereto, the presump-
tion of validity, if and when rebuttable,
must be met by a specific aflegation and
proof of the existence of some recognized
statutory ground of invalidity or of le-
gal noncompliance.
R^nshaw v. Switzer, 6 Mont. 464, 13
Pac. 128, 15 Mor. Min. Rep. 345; White
T. Martin, 2 Alaska, 496; Garfield M. &
M. Co. V. Hammer, 6 Mont. 53, 8 Pac.
153; Farrell v. Lockhart, 210 U. S. 148,
52 L. ed. 997, 16 L.R.A.(N.S.) 162, 28
Sup. Ct. Rep. 681; Willison v. Ring-
wood. Ill C. C. A. 401, 190 Fed. 549;
Russell V. Hoyt, 4 Mont, 412, 2 Pac. 26.
Nonsuit also should have been allowed.
Moffat V. Blue River Gold Excavating
572
Co. 33 Colo. 148, 80 Pac. 139; McMiUen
V. Ferrum Min. Co. 32 Colo.. 38, 105 Am.
St. Rep. 64, 74 Pac. 461; Kirk v. Mel-
drum, 28 Colo. 453, 65 Pac. 633, 21 Mor.
Min. Rep. 393; McWilliams v. Winslow,
34 Colo. 341, 82 Pac. 538; Lalande ▼.
McDonald, 2 Idaho, 307, 13 Pac. 347;
Boghk V. Gassert, 149 U. S. 17, 23, 37
L. ed. 631, 634, 13 Sup. Ct. Rep. 738;
Central Transp. Co. v. Pullman's Palace
Car Co. 139 U. S. 24, 39, 35 L. ed. 55, 61,
11 Sup. Ct. Rep. 478; Oscanyan v. Win-
chester Repeating Arms Co. 103 U. 8.
261, 264, 26 L. ed. 539, 541 ; Southern P.
Co. V. Kelley, 10* C. C. A. 659, 187 Fed.
937; United States v. Baltimore & a R.
Co. 107 C. C. A. 586, 185 Fed. 486; Mee-
han V. Valentine, 145 U. S. 618, 36 L.
ed. 839, 12 Sup. Ct. Rep. 972; Coughran
V. Bigelow, 164 U. S. 308, 41 L. ed. 466,
17 Sup. Ct. Rep. 117; Laird v. Moni^
23 Nev. 34, 42 Pac. 11; Tonopah & O.
R. Co. V. Fellanbaum, 32 Nev. 278, L.R.A.
1918D, 584, 107 Pac. 882; Fries-Breslin
Co. V. Bergen, 168 Fed. 360.
There was no evidence disproving prior
mineral discovery in the senior locations.
Cheesman v. Hart, 42 Fed. 98, 16 Mor.
Min. Rep. 263; Clark Montana Realty
Co. V. Ferguson, 218 Fed. 959; Alameda
Min. Co. V. Success Min. Co. 2& Idaho,
618, 161 Pac. 865; Iron S. Min. Co. ▼.
Cheesman, 116 U. S. 529, 535, 29 L. ed.
712, 714, 6 Sup. Ct.Rep. 481; Book ▼.
Justice Min. Co. 58 Fed. 122, 17 Mor.
Min. Rep. 617 ; Jupiter Min. Co. ▼. Bodie
Consol. Min. Co. 7 Sawy. 96, 11 Fed.
675, 4 Mor. Min. Rep. 411; Eureka
Consol. Min. Co. v. Richmond Min. Co.
4 Sawy. 311, 9 Mor. Min. Rep. 578; Hy-
man v. Wheeler, 29 Fed. 353, 15 Mor.
Min. R-ep. 519; Burke v. McDonald, 8
Idaho, 296, 29 Pac. 98; Grand Central
Min. Co. V. Mammoth Min. Co. 29 Utah,
490, 83 Pac. 677; Snyder, Mines, §§ 345,
348, 349; Golden v. Murphy, 31 Nev.
395, 103 Pac. 402, 105 Pac. 99; Chris-
man V. Miller, 197 U. S. 313, 49 L. ed.
770, 25 Sup. Ct. Rep. 468; Castle v.
Womble, 19 Land Dec. 457; Lindley,
Mines, § 336, notes 29, 30; Bonner ▼.
Meikle, 82 Fed. 703, 19 Mor. Min. Rep.
83; Madison v. Octave Oil Co. 154 Cal.
768, 99 Pac. 178; Iron Silver Min. Co. ▼.
Mike & S. Gold & S. Min. Co. 143 U. 8.
394, 404, 430, 36 L. ed. 201, 204, 213, 12
Sup. Ct. Rep. 543, 17 Mor. Min. Rep. 436;
King V. Amv & S. Consol. Min. Co. 9
Mont. 543, 24 Pac. 200, 16 Mor. Min.
Rep. 38; Cheesman v. Shreeve, 40 Fed.
787; Shreve v. Copper Bell Min. Co. 11
Mont. 309, 28 Pac. 320; Buffalo Zinc ft
Copper Co. v. Crump, 70 Ark. 525, 91
Am. St. Rep. 87, 69 S. W. 575, 22 Mor.
252 17. 8.
1919.
COLE V. lULPU.
Min. Bep. 276; North Noonday Min. Co.
V. Orient Min. Co. 6 Sawy. 299, 1 Fed.
531, 9 Mor. Min. Rep. 529; Golden Terra
Min. Co. V. Mahler, 4 Mor. Min. Rep.
390; Duggan v. Davey, 4 Dak. 110, 26
N. W. 887, 17 Mor. Min. Rep. 59 ; Upton
V. Larkin, 7 Mont. 449, 17 Pac. 728, 15
Mor. Min. Rep. 404; Wenner v. McNulty,
7 Mont. 30, 14 Pac. 643; Overman S.
Min. Co. V. Corcoran, 15 Nev. 147; 1
Mor. Min. Rep. 691; Shoshone Min. Co.
V. Rutter, 31 C. C. A. 223, 59 U. S. App.
538, 87 Fed. 807, 19 Moi^ Min. Rep. 356;
Fox V. Myers, 29 Nev. 169, 86 Pac. 793 ;
Lange v. Robinson, 148>Fed. 802; Amber-
gris Min. Co. V. Day, 12 Idaho, 108, 85
Pac 113; McShane v. Kenkle, 18 Mont.
208, 33 L.R.A. 851, 56 Am. St. Rep. 578,
44 Pac. 979 ; Montana C. R. Co. v. Migeon,
68 Fed. 811, affirmed in 23 C. C. A. 156,
44 U. S. App. 724, 77 Fed. 255, 18 Mor.
Min. Rep. 446; Consolidated Wyoming
Gk>ld Min. Co. v. Champion Min. Co. 63
Fed. 544, 18 Mor. Min. Rep. 113 ; Nevada
Sierra Oil Co. v. Home Oil Co. 98 Fed.
673, 20 Mor. Min. Rep. 283 ; Caseaden v.
BortoUs, 89 C. C. A. 247, 162 Fed. 271,
15 Ann. Cas. 625; Harrington v. Cham-
bers, 3 Utah, 94, 1 Pac. 362; Hays v.
Lavagnino, 17 Utah, 185, 53 Pac. 1029,
19 Mor, Min. Rep. 485; 27 Cyc. p. 556,
note 47 ; Score v. Griffin, 9 Ariz. 295, 80
Pac 331; Tuolumne Consol. Min. Co. v.
Maier, 134 Cal. 583, 66 Pac. 863, 21 Mor.
Min. Rep. 678; Armstrong v. Lower, 6
Colo. 393, 15 Mor. Min. Rep. 631; Mc-
Shane v. Eenkle, 18 Mont. 208, 33 L.R.A.
351, 56 Am. St. Rep. 579, 44 Pac. 979;
Walsh V. Mueller, 16 Mont. 180, 40 Pac.
292; Davidson v. Bordeaux, 15 Mont.
245, 38 Pac 1075 ; Meydenbauer v. Stev-
ens, 78 Fed. 787, 18 Mor. Min. Rep. 578;
34 Century Dig. "Mines and Minerals,"
§ 24; Murray v. White, 42 Mont. 423, 113
Pac 756, Ann. Cas. 1912A, 1297 ; Mason
V. Washington Butte Min. Co. 130 C. C.
A. 426, 214 Fed. 32 ; Muldrick v. Brown,
37 Or. 185, 61 Pac. 429 ; Barringer & A.
Mines, § 214; Caseaden v. Bartolis, 77
C. C. A. 496, 146 Fed. 740 ; Charlton v.
KeUy, 84 C. C. A. 295, 156 Fed. 436, 13
Ann. Cas. 518.
The trial court erred in excluding
cross-examination, and in reversing the
legal presumptions and burden of proo£.
Southern Cross Gold & S. Min. Co. v.
Europa Min. Co. 15 Nev. 383, 9 Mor. Min.
Rep. 513; Creede & C. C. Min. & Mill.
Co. V. Uinta Tunnel Min. & Transp. Co.
196 U. S. 337, 345, 348, 352, 49 L. ed.
501, 507, 509, 25 Sup. Ct. Rep. 266 ; Gib-
son V. Hjul, 32 Nev. 360, 108 Pac 759;
Cedar Canyon Consol. Min. Co. v. Yar-
wood, 27 Wash. 271. 91 Am. St. Rep.
•4 Id. ed.
841, 67 Pac. 749, 22 Mor. Min. Rep. 11 ;
Erwin v. Perego, 35 C. C. A. 482, 93 Fed.
608; Jupiter Min. Co. v. Bodie Consol.
Min. Co. 7 Sawy. 96, U Fed. 666, 4 Mor.
Min. Rep. 411; Uinta Tunnel Min. &
Transp. Co. v. Creede & C. C. Min. &
MUl. Co. 57 C. C. A. 200, 119 Fed. 169,
22 Mor. Min. Rep. 445; Tuolumne Consol.
Min. Co. V. Maier, 134 Cal. 583, 66 Pac.
863, 21 Mor. Min. Rep. 678; Treasury
Tunnel Min. & Reduction Co. v. Boss,
32 Colo. 27, 105 Am. St Rep. 60, 74 Pac.
888; Sharkey v. Candiana, 48 Or. 112,
7 L.R.A.(N.S.) 791, 85 Pac 219; Whiting
V. Straup, 17 Wyo. 1, 129 Am. St. Rep.
1093, 95 Pac 849; McShane v. Kenkle,
18 Mont. 208, 33 L.R.A. 851, 56 Am. St.
Rep. 578, 44 Pac. 979; Alameda Min.
Co. v. Success Min. Co. 29 Idaho, 618,
161 Pac 862; 27 Cyc. 556; Healey v.
Rupp, 37 Colo. 25, 86 Pac 1015; Erhardt
V. Boaro, 113 U. S. 528, 28 L. ed. 1113, 6
Sup. Ct. Rep. 560, 16 Mor. Min. Rep.
472; Grand Central Min. Co. v. Mam-
moth Min. Co. 29 Utah, 490, 83 Pac. 649 ;
Ambergris Min. Co. v. Day, 12 Idaho,
108, 85 Pac. Ill; Lindley, Mines, §§ 335,
336; Harrington v. Chambers, 3 Utah, 94,
1 Pac. 362, 111 U. S. 350, 28 L. ed. 452, 4
Sup. Ct. Rep. 428; Caseaden v. BortoHs,
89 C. C. A. 247, 162 Fed. 267, 15 Ann.
Cas. 625.
Assays do not have to be taken to es-
tablish the existence of a vein, or war-
rant a location thereon.
Muldrick v. Brown, 37 Or. 185, 61 Pac.
429; Lange v. Robinson, 148 Fed. 801;
Shreve v. Copper Bell Min. Co. 11 Mont.
309, 23 Pac. 320 ; Bevis v. Markland, 130
Fed. 226; Book v. Justice Min. Co. 58
Fed. 106, 17 Mor. Min. Rep. 617; Migeon
V. Montana C. R. Co. 23 C. C. A. 156,
44 U. S. App. 724, 77 Fed. 249, 18 Mor.
Min. Rep. 446, 68 Fed. 811; Chrisman
V. Miller, 197 U. S. 313, 49 L. ed. 770,
25 Sup. Ct. Rep. 468; Madison v. Octave
Oil Co. 154 Cal. 768, 99 Pac. 178; Cas-
eaden V. Bartolis, 77 C. C. A. 496, 146
Fed. 740 ; Charlton v. KeUy, 84 C. C. A.
295, 156 Fed. 436, 13 Ann. Cas. 518;
Davidson v. Bordeaux, 15 Mont. 252, 38
Pac. 1075 ; Iron Silver Min. Co, v. Chees-
man, 116 U. S. 529, 535, 29 L. ed. 712,
714, 6 Sup. Ct. Rep. 481; Iron Silver
Min. Co. V. Mike & S. Gold & S. Min.
Co. 143 U. S. 404, 36 L. ed. 204, 12 Sup.
Ct. Rep. 543, 17 Mor. Min. Rep. 436;
Snyder, Mines, § 349; Eureka Consol.
Min. Co. V. Richmond Min. Co. 4 Sawy.
302, Fed. Cas. No. 4,548, 9 Mor. Min.
Rep. 578; Shoshone Min. Co. v. Rutter,
31 C. C. A. 223, 59 U. S. App. 538, 87
Fed. 807, 19 Mor. Min. Rep. 356; Score
V. Griffin, 9 Ariz. 295, 80 Pac. 332.
573
288-290
SLPREME COURT OF THE UNITED STATES.
Oct. TmM^
Federal courts must observe and en-
force the acts of Congress which require
revenue stamps.
Sackett v. McCaffrey, 66 C. C. A. 206,
131 Fed. 219.
The accepted rule in the community-
property states (derived from the civil
law) is that the husband may convey to
his wife, either for a consideration or as
a gift, his interest in the community
property, and it thereupon becomes her
separate estate and loses its community
character
21 Cycl 1664, notes 42, 48, p. 1666,
notes 46 and 1901, 1919 Cyc.
The question presented upon a chal-
lenge to the evidence, as this court held
in Coughran v. Bigelow, 164 U. S. 308,
41 L. ed. 446, 17 Sup. Ct. Rep. 117, is not
whether there was literally no evidence
or testimony, but whether there is any
upon which the jury can lawfully pro-
ceed to render a verdict in favor of the
party having the burden of the issue.
Mr. Justice Van Devanter delivered
the opinion of the court:
These suits relate to conflicting min-
ing locations in Nevada and are what
are commonly called adverse suits.
[289] The locations set up on one side
are lode and those on the other placer,
the former being designated as Salt
Lake No. 3, Midas, and Evening Star,
and the latter as Ouy Davis and Home-
stake. Joseph Ralph is the lode claim-
ant and the other parties are the placer
claimants.
Ralph made application at the local
land office for the issue to him of a
patent for the three lode claims, along
with thirteen others not here in ques-
tion, and in due time two adverse claims
were filed in that proceeding, one based
upon the Guy JDavis and covering most
of the ground within the Salt Lake No.
3, and the other based upon the Home-
stake and covering a considerable por-
tion of the ground within the Midas
and Evening Star. These suits were
brought in a state court in support of
the adverse claims, and Ralph, the sole
defendant, caused them to be removed
into the Federal court, the parties being
citizens of different states. Afterwards
some of the original plaintiffs were
eliminated and others brought in, but
the citizenship remained diverse as be-
fore.
The cases were tried together to the
court and a jury, the latter returning
general verdicts for the plaintiffs and
special verdicts finding that when the
placer locatinns -were made no lode had
X74
been discovered within the limits of
any of the lode locations. Judgments
for the plaintiffs were entered upon the
verdicts, and motions by the defendant
for a new trial were overruled. Upon
writs of error the circuit court of appeals
reversed the judgments and ordered a
new trial, one judge dissenting. 161 0.
C. A. 133, 249 Fed. 81. The cases are
here upon writs of certiorari which were
granted because the ground upon which
the circuit court of appeals put its
decision — the construction and appli-
cation of some of the mineral land
laws — was deemed of gexumi intenssl
in the regions where those laws axm
operative.
The defendant does not rely entirely
upon the ground of decision advanced
by the circuit court of appeals, [290]
but urges at length that, if it be not
well taken, the record discloses other
grounds, not considered by that court,
for reversing the judgments and orders
ing a new trial. And he further urges
that, if the decision of the circuit court
of appeals be right, it is not sufficiency
comprehensive to serve as a guide to the
court and the parties upon another trial.
The plaintiffs insist that the judgments
in the district court were right and
should be affirmed.
In the circumstances it is open to us
to deal only with the matter considered
by the circuit court of appeals and to
remand the cases to it for any needed
action upon other questions, or to pro-
ceed ourselves to a complete decisicm.
The latter course seems the better, inas-
much as counsel have united in present-
ing to us all questions thought to arise
upon the record, and the litigation
already has covered a considerable
period.
Criticism is made of the complaints.
As presented in the state court they
fully met the requirements of the local
code, Rev. Laws 1912, § 5526, and there
was no request after the removal into the
Federal court that they be recast to
meet any further requirements prevail-
ing there. Apart from the local eode>
each sufficiently stated a cause of aetion
in the nature of ejectment, save as some
allegations were wanting in precision,
and it was left uncertain whether the
defendant was in possession. The lat-
ter defect was cured by an affirmative
statement in the answer that the de-
fendant was in possession. Texas & N.
O. R. Co. V. Miller, 221 U. S. 408,
416, 55 L. ed. 789, 796, 31 Sup. Ct. Rep.
534. If the other defects embarrassed
the defpudant he should have interposed
252 C 9.
1919.
COLE V. RALPH.
290-293
a timely objection, which doubtless
would have resulted in appropriate
amendments. Instead, he permitted the
matter to pass until the trial was in
progress, and then sought to obtain some
advantage from it. This he could not
do; by his failure to make timely ob-
jection the defects had heen waived. We
here dispose of a related question by
saying that, in our opinion, the [291]
complaints, with the answers, put in
issue the validity of the lode locations,
including the requisite mineral discovery.
Tho defendant insists that necessary
parties did not join in Aling the ad-
verse claims in the land office, that in
the suits there was a misjoinder of plain-
tiffs and a failure to join essential plain-
tiffs, and that deeds showing title in
some of the plaintiffs were erroneously
admitted in evidence, in that they were
without the requisite revenue stamps.
We think this insistence is untenable in
all its phases.
As respects the Gruy Davis placer,
Davis and Faubert were the original lo-
cators, and Faubert soon conveyed a
fraction of ^ his interest to Thatcher.
These three filed the adverse claim and
brought the suit, the title being in them
at the time. Thereafter Faubert trans-
ferred his remaining interest to Cole,
Malley, and Ross, and Thatcher con-
veyed a fraction of his interest to Healey.
Because of these transfers, and with the
court's approval, Faubert was eliminat-
ed as a party and Cole, Malley, Ross,
and Healey came in as plaintiffs. Thus
the changes in title pending the suit
were followed by corresponding changes
in the parties plaintiff.
At all the times mentioned the title
was in a sense affected by an outstand-
ing contract, executed by the original lo-
cators, which invested Thatcher and
Forman with a right to a specified share
in the output or pioeeeds of the claim,
aad possibly with a right to have it
worked and thereby made productive.
The contract was not recorded, but this
is not material, for the contract was
good betwe^i the parties and no sub-
sequent purchaaer is calling it in ques-
tion. See Rev. Laws 1912, §§ 1038-1040.
Unlike Thatcher, Forman had no inter-
est in the claim other than under this
eofitraot. He did not join in filing the
adverse claim or in bringing the suity
but, with the court's approval, came, in
as a plaintiff before the trial. We think
his interest [292] was not such as to
make him an essential party to the ad-
verse claim or to the suit, and yet was,
sBcfa as to make him an admissible party
•4 li. ed.
to either. Of course, the acts of those
having the title in filing the adverse
claim and bringing the suit inured to
his benefit. And had they proceeded
in his absence to a judgment in their
favor, the same would have been true of
it. But this does not prove that he
could not be admitted as a plaintiff.
He had an interest — a real interest — ^in
the maintenance and protection of the
claim which was the subject of the suit,
and in view of the liberal provisions of
the local statute, Rev. Laws 1912, §§
4998, 5000, we think the court did not
err in allowing him to come in as a plain-
tiff. It is not asserted that his presence
was prejudicial to the defendant, and
we perceive no ground for thinking it
could have been.
As respects the Homestake placer,
Murray Scott and John J. Healey were
the original locators and the title was
still in them when the adverse claim was
filed and when the suit was begfun, un-
less there be merit in the defendant's
contention that Scott's interest had
then passed to others under attachment
proceedings, and that Healey's interest
had then passed to his wife. Neither
branch of the contention is, in our opin-
ion, well grounded. The attachment pro-
ceedings, although commenced before
the adverse claim was filed, did not re-
sult in a transfer of Scott's title until
after the present suit was beg^n. The
purported conveyance of Healey^s in-
terest to his wife, to which the defend-
ant directs attention, recites that it was
made upon a consideration paid in
money at the time, and this is in no
wise explained. There is no evidence
that the consideration was paid out of
any separate property of the wife, or
that the conveyance was intended as a
gift to her, or that she eyer listed the
subject of the conveyance as her sep-
arate property. In these circumstances,
according to the laws of the state, the
Healey interest was community prop-
erty, of which the husband had the "en-
tire [293] management and control"
and the "absolute power of disposition."
He could lease or ccmvey it without the
wife's concurrence, and could sue in re-
spect of it in his name alone. Rev.
Laws 1912, §§ 2155-2160; Crow v. Van
Sickle, 6 Nev. 146; Lake v. Bender, 18
Nev. 361, 384, 385, 4 Pac 711, 7 Pac.
74; Adams v. Baker, 24 Nev. 375, 55
Pac. 362; Malstrom v. People's Drain
Ditch Co. 32 Nev. 246, 260, 107 Pac. 98.
There was here a contract with
Thatcher and Forman like that relating
to the Guy Davis, and this gave them a
575
2^3- 295
SI PREMJi: COURT OF THE UNITED STATES.
Oct. Tebic,
real interest in the claim, as already
eiq)lained.
The adverse claim was filed and the
suit was brought by Scott, Healey,
Thatcher, and Forman. Afterwards,
And following the consummation of the
attachment proceedings, the entire in-
terest of Scott was transferred to Cole,
Malley, Boss, and Davis, and by reason
of this, and with the court's approval,
Scott was eliminated as a party, and
Cole, Malley, Ross, and Davis came in
as plaintiffs. Thus there was no mis«
joinder of plaintiffs, nor any failure to
join an essential party. Of course, those
who succeeded to Scott^s interest pend-
ing the suit were entitled to the benefit
of what he had done while he held the
title.
In one of the adverse claims Healey'a
name was given as. Frank J. instead of
John J., but this was a mere inadver-
tence, did not mislead or prejudice any-
one, and rightly was disregarded by the
district court.
As to the absence of revenue stamps,
it is true that the deeds showing title
in some of the plaintiffs — they were
produced in evidence .over the defend-
ant's objection — were without the
stamps required by the Act of October
22, 1914, chap. 331, § 22, Schedule A, 38
Stat, at L. 762. But this neither invali-
dated the deeds nor made them inadmis-
sible as evidence. The relevant provi-
sions of that act, while otherwise
following the language of earlier acts, do
not contain the words of those acts
which made such an instrument invalid
and inadmissible as evidence while not
[294] properly stamped. Those words
were carefully omitted, as will be seen
by contrasting §§ 6, 11, 12, and 13 of the
Act of 1914 with §§ 7, 13, 14, and 15
of the Act of June 13, 1898, chap. 448, 30
Stat, at L. 454, Comp. Stat. §§ 63181,
6318J, 6318k. From this and a compari-
son of the acts in other particulars it is
apparent that Congress in the later act
departed from its prior practice of mak-
ing such instruments invalid or inad-
missible as evidence while remaining un-
stamped, and elected to rely upon other
means of enforcing this stamp provision,
such as the imposition of money penal-
ties, fines, and imprisonment. The deci-
sions upon which the defendant relies
arose under the earlier acts, and were
based upon the presence in them of
what studiously was omitted from the
later one.
As a preliminary to considering other
contentions it will be helpful to refer
576
to some .features of the Mineral Land
Laws, Bev. Stat. §§ 2318 et seq. Comp.
Stat. § 4613, 6 Fed. Stat. Anno. 2d ed.
p. .508, about which there can be no
controversy, and also to what actually
was in dispute at the trial and ivhat
not in dispute.
By those laws public lands containing
valuable mineral deposits are opened to
exploration, occupation, and acquisition
for mining purposes; and as an induce-
ment to effective exploration the dis-
coverer is given the right to locate a
substantial area embracing his discov-
ery, to hold the same and extract the
mineral without payment of rent or
royalty, so long as he puts one hundred
dollars' worth of labor or improvements
— called assessment work — upon the
claim each year, and to demand and re-
ceive a patent at a small sum per acre
after he has put five hundred dollars'
worth of labor or improvements upon
the claim.
In advance of discovery an explorer in
actual occupation and diligently search-
ing for mineral ^ is treated as a licensee
or tenant at will, and no right can be
initiated or [295] acquired through a
forcible, fraudulent, or clandestine intru-
sion upon his possession. But if his oc-
cupancy be rdaxed, or be merely inci-
dental to something other than a diligent
search for mineral, and another enters
peaceably, and not fraudulently or clan-
destinely, and makes a mineral discovery
and location, the location so made is
valid and must be respected according-
ly. Belk V. Meagher, 104 U. S. 279, 287,
26 L. ed. 735, 738, 1 Mor. Min. Rep. 510 ;
Union Oil Co. v. Smith, 249 U. S. 337,
346^348, 63 L. ed. 635, 640, 641, 39 Sup.
Ct. Rep. 308, and cases cited.
A location based upon discovery gives
exclusive right of possession and enjoy-
ment, is property in the fullest sense, is
subject to sale and other forms of dis-
posal, and, so long as it is kept alive by
performance of the required annual
assessment work, prevents any adverse
location of the land. Gwillim v. Don-
nellan, 115 U. S. 46, 49, 29 L. ed. 348,
349, 5 Sup. Ct. Rep. 1110, 15 Mor. Min.
Rep. 482; Swanson v. Sears, 224 U. S.
180, 56 L. ed. 721, 32 Sup. Ct. Rep. 455.
1 As to the status of an explorer or loca-
tor on oil-bearing land in advance of dis-
covery, see the special provisions in Aets
of June 25, 1910, chap. 421, § 2, 36 Stat,
at L. 847, Comp. Stat. § 4524, 8 Fed. Stat.
Anno. 2d ed. p. 657, and March 2, 1911,
chap. 201, 36 Stat, at L. 1015, Comp. SUt.
§ 4637, 6 Fed. Stat. Anno. 2d ed. p. 610.
259 r. 8.
1919.
COLE V. RALPH.
295-i97
While the two kinds of location — ^lode
and placer-^diifer in some respects^' a
discovery within the limits of the claim
ia equally essential to both. But to sus-
tain a lode location the discovery must
be of a vein or lode of rock in place,
bearing valuable mineral (§ 2320 [Comp.
Stat. § 4615, 6 Fed. Stat. Anno. 2d ed.
p. 512] ) ; and to sustain a placer loca-
tion it must be of some other form of
valuable mineral deposit (§ 2329 [Comp.
Stat. § 4628, 6 Fed. Stat. Anno. 2d ed.
p. 575]), one such being scattered par*
tides of gold found in the softer cov-
ering of the earth. A placer discovery
will not sustain a lode location^ nor a
lode discoverv a placer location. As is
said by Mr. Lindley,' § 323 : "Gold oc-
curs in veins of rock in place, and when
so found the land containing it must be
appropriated under the laws applicable
to lodes. It is also found in placers,
and when so found the land containing
it must be appropriated under the laws
applicable to [296] placers;" and again,
§ 419: "It is the mode of occurrence,
whether in place or not in place [mean^
ing in rock in place], which determines
the manner in which it should be
located."
Location is the act or series of acts
whereby the boundaries of* the claim are
marked, etc., but it confers no right in
the absence of discover}-, both being
essential to a valid claim. Waskev v.
Hammer, 223 U. S. 85, 90, 91, 56 L. ed.
359, 362, 363, 32 Sup. Ct. Rep. 187;
Beals V. Cone, 27 Colo. 473, 484, 495,
83 Am. St. Rep. 92, 62 Pac. 948, 20 Mor.
Min. Rep. 591; Round Mountain Min.
Co. V. Round Mountain Sphinx Min.
Co. 36 Nev. 543, 560, 138 Pac. 71 ; New
England & C. Oil Co. v. Congdon, 152
Cal. 211, 213, 92 Pac. 180. Nor does
assessment work take the place of dis-
covery, for the requirement relating to
such work is in the nature of a con-
dition subsequent to a perfected and
valid claim and has "nothing to do with
locating or holding a claim before discov-
ery." Union Oil Co. v. Smith, supra, p.
350. In practice, discovery usually pre-
cedes location, and the statute treats it
as the initial act. But, in the absence
of an intervening right, it is no objec-
tion that the usual and statutory order
8 Clipper Min. Co. v. Eli Min. & Land Co.
194 U. S. 220, 229. 48 L. ed. 944, 951, 24
Sup. Ct. Rep. 632; Webb v. American
Asphaltum Mm. Co. 84 0. C. A 651, 167
Fed. 203; San Francisoo Chemical Co. v.
Duffield, 120 C. C. A. 160, 201 Fed. 830; Re
Harry Lode Min. Claim. 41 Land Dec. 403.
^ Lindley, Mines, 3d ed.
•4 Ij. ed. 37
is reversed. In such a case the location
becomes effective from the date of dis-
covery; but in the presence of an inter-
vening right it must remain of no effect.
Creede & C. Creek Min. & Mill. Co. v.
Uinta Tunnel Min. & Transp. Co. 196
U. S. 337, 34a-351, 49 L. ed. 501, 508.
509, 25 Sup. Ct. Rep. 266, and cases
cited; Union Oil Co. v. Smith, supra, p.
347.
When an application for a patent to '
mineral land is presented at the local
land office and an adverse claim is filed
in response to the notice required bv the
statute (§ 2325 [Comp. Stat. § 4622. 6
Fed. Stat. Anno. 2d ed. p^. 555]), fur-
ther proceedings upon the application
must be suspended to await the deter-
mination by a court of competent juris-
diction of the question whether either
party, and, if so, which, has the exclu-
sive right to the possession arising from
a valid and subsisting location. A suit
appropriate to the occasion must be
brought by the adverse claimant, and in
that suit each party is deemed an [297 J
actor and must show his own title, for
the suit is ^^in aid of the Land Depart-
ment." If neither establishes the req-
uisite title the judgment must so de-
clare. Rev. Stat. § 2326, Comp. Stat. §
4623, 6 Fed. Stat. Anno. 2d ed. p. 563,
Act March 3, 1881. chap. 140, 21 Stat,
at L. 505, Comp. Stat. § 4625, 6 Fed,
Stat. Anno. 2d ed. p. 599; Jackson
V. Robv, 109 U. S. 440, 27 L. ed.
990, 3 Sup. Ct. Rep. 301; Perego v.
Dodge, 163 U. S. 160. 167, 41 L. ed. 113,
118,. 16 Sup. Ct. Rep. 971, 18 Mor. Min.
Rep. 364; Brown v. Gumev, 201 U. S.
184, 190, 50 L. ed. 717, 720| 26 Sup. Ct.
Rep. 509; Healev v. Rupp, 37 Colo. 25,
28, 80 Pac. 1015 ;'^ Tonopah Fraction Min.
Co. V. Douglass, 123 Fed. 936, 941. If
final judgment be given in favor of
either party, — ^whether the applicant for
patent or the adverse claimant, — ^he may
file in the land office a certified copy of
the judgment, and then will be entitled,
as respects the area awarded to him. to
go forward with the patent proceedings
and to have the judgment recognized
and respected as a binding adjudication
of his exclusive right to the possession.
Rev. Stat. § 2336, Comp. Stat. § 4644, 6
Fed. Stat. Anno. 2d ed. p. 587; Rich-
mond Min. Co. V. Rose, 114 U. S. 576,
585, 29 L. ed. 273, 276, 5 Sup. Ct. Rep.
1055; Wolverton v. Nichols, 119 U. S.
485, 489, 30 Ix ed. 474, 475, 7 Sup. Ct.
Rep. 289, 15 Mor. Min. Rep. 309; Iron
SUver Min. Co. v. Campbell. 135 U. 8.
286. 299, 34 L. ed. 155, 160, 10 Sup. Ct.
57
297-299
SUPREME COURT OF THE UNITED STATES.
Oer. TxsM,
R^p. 765, 16 Mor. Min. Bep. 218; Last
Chance Min. Co. v. Tyler Min. Co. 157
U. S. 683, 694, 39 L. ed. 859, 864, 15 Sup.
Ct. Rep. 733, 18 Mor. Min. Rep. 205;
Perego v. Dodge, 163 U. S. 160, 167, 41
L. ed* 113, 118, 16 Sup. Ct. Rep. 971,
18 Mor. Min. Rep. 364; Clipper Min. Co.
V. Eli Min. Co. 194 U. S. 220, 232, 48
L. ed. 944, 952, 24 Sup. Ct. Rep. 632.
The situation developed by the evi-
dence presented and admissions made in
the course of the trial was as follows:
At the outset the land was public and
unappropriated, and it remained such
save as the locations in question or some
of them may have changed its status.
The lode locations were made, one in
1897 and the other two in 1907, and the
placer locations in September, 1913.
The title under the latter already has
been sufficiently traced. That under the
lode locations passed to the Glasgow &
Western Exploration Company soon
after they were made, and the defend-
ant, Ralph, claims under a deed executed
by that company's liquidator in 1914«
The principal controversy was over the
presence or absence of essential dis-
coveries within the lode locations, it be-
ing denied on one hand and affirmed on
the other that a vein or lode of rock in
place, bearing valuable mineral, was dis-
covered [298] in each location before
the placer locations were made. It was
not controverted, but, on the contrary,
conceded, that that point of time was the
important one in the inquiry. Thus,
when the presiding judge indicated his
view by saying, "My idea is that .you
can't take advantage of any discoveries
made since the placer locations; and. I
don't believe there can be any dispute
about that," counsel for the defendant
responded, "Xo, your Honor, there is
none;" and on another occasion counsel
said: "We arfe undoubtedly limited to
proving that there was a discovery of
mineral in place on each of our lode
claims prior to the location of the placer
claims." In all particulars other than
discovery the regularity and perfection
of the lode locations were conceded.
Closely connected with the controversy
over lode discoveries was another over
the applicability and effect of § 2332 of
the Revised Statutes (Coinp. Stat. § 4631,
6 Fed. Stat. Anno. 2d ed. p. 580), but it
will be passed for the moment and sepa-
rately considered later. As to the placer
claims, it was Bhown that they were
based upon adequate discoveries of
placer gold within their limits, and coun-
sel for the defendant annouflced, "We
don't deny this ground is of placer char-
578
acter." Their boundaries were properly
marked and the requisite notices were
posted and certificates recorded. The
only questions respecting their validity
that were presented and need present
mention were, first, whether, at the time
the placer locations were made, the lode
locations had become valid and effective
claims, thereby precluding any adverse
location of the same ground, and next,
if the lode locations had not then be-
come valid and effective, whether the
placer locations were initiated and made
through wrongful intrusions or tres-
passes upon any actual possession of the
lode claimant. The defendant, as is ad-
mitted in his brief in this court, did not
claim that any lode or vein was or
should be excepted from the placer
claims, but only that they were of no
effect for the reasons just indicated.
[290] The evidence bearing upon the
presence or absence of lode discoveries ^
was conflicting. That for the plaintiffs
tended persuasively to show the absence
of any such discovery before the placer
claims were located, while that for the
defendant tended the other way. Sepa-
rately Considered, some portions of the
latter were persuasive, but it was not
without noticeable infirmities, among
them the following: The defendant
testified that no ore was ever mined
upon any of the lode claims, and that
"there was no mineral exposed to the
best of my [his] knowledge which would
stand the cost of mining, transporta-
tion, and reduction at a commercial
profit." In the circumstances this tended
to discredit the asserted discoveries; and
of like tendency was his unexplained
statement, referring to the claims
4 The following extracts from Chrisman
V. Miller, 197 U. S. 313, 322, 49 L. ed. 770,
773, 25 Sup. Ct. Rep. 468, show what con-
stitutes an adequate discovery:
"The mere indication or presence of gold
or silver is not sufficient to efltablisb the
existence of a lode. The mineral must ex-
ist in such quantities as to justify expendi-
ture of money for the development of the
mine and the extraction of the mineral.''
"Where minerals have been found and
the evidence is of such a character that a
person of ordinary prudence would be justK
fied in the further expenditure of his labor
and means, with a reasonable prospect of
success, in developing a valuable mine, the
requirements of the statute have been met."
**The facts which are within the 6bserya-
tion of the discoverer, and which induce
him to locate, should be such as would jua-
tify a man of ordinary prudence, not neces-
sarily a skilled miner, in the expenditure
of his time and money in the development
of the property."
252 U. 8.
1019.
COLE V. RALPH.
299-802
grouped in this patent application, that
^'some of tfa£m have not a smell of ore,
but they can be located and held on the
principle of being contiguous to adjacent
claims/' — an obviously mbtaken view of
the law, — and his further statement, re7
ferring to vein material particularly re-
lied upon as a discovery, that he ^%ould
hate to try to mine it and ship it."
As respects the initiation and working
of the placer [300] claims the plain-
tiffs' evidence indicated that the locators
entered openly, made placer discoveries,
performed the requisite acts of location,
escavated several shafts in the ^wash"
from 35 to 57 feet in depth, ran drifts
from the bottom along the bed-rock, and
mined a considerable amount of placer
^Id; and that these acts covered a pe-
riod of between two and three months.
None of this was contradicted ; and there
was no evidence that the locators met
with any resistance or resorted to any
hostile, fraudulent, or deceptive acts.
But there was -evidence of such owner-
ship of buildings,' comparatively recent
prospecting, and maintenance of a
watchman, on the part of the lode
claimant,^ as made it a fair question
whether he was in actual possession
when the placer locators entered. That
he was in possession of the buildings
and the ground where they stood was
made certain, but that he had any ac-
tual possession beyond that was reason-
ably debatable under the evidence.
The buildings were all on the same
claim apd covered only a part of it.
One was a mill formerly in use, but then
dismantled and stripped o^its machinery.
AH had been used in connection with
mining operations upon other claims,
but the operations had then been sus-
pended. The buildings were not dis-
turbed by the placer locators, nor was
there any attempt to appropriate them.
A watchman was in charge, but, so far
as appears, he made no objection to
what was done. Although a witness for
the defendant and in his employ, he
was not interrogated upon this point.
Of course, ownership of the buildings
did not in itself give the lode claimant
any right in the land, or prevent others
from entering peaceably and in good
faith to avail themselves of privileges
accorded by the Mineral Land Laws;
but the presence of the buildings [301]
and his relation to them did have a bear-
BThe lode claimant at that time was
either the liquidator of the Glasgow &
Western Exploration Company or the com-
pany itielf.
•4 li. ed.
ing upon the question of actual posses-
sion,— a pronounced bearing as respects
the place where the buildings stood, and
a lesser bearing as respects the other
ground*
Even if the lode claimant was in ac-
tual possession of all, it still was a dis-
putable question under the evidence
whether there had not been such ac-
quiescence in the acts of the placer lo-
cators in going upon the ground, making
placer dSaooveries, and marking their lo-
cations, as ganre them the status of law-
ful discoverers and locators rather than
wrongful intruders or trespassers; that
is to say, the status of explorers enter-
ing by permission and then making dis-
coveries. See Grossman v. Pendery, 2
McCrary, 139, 8 Fed. 693, 4 Mor. Min.
Rep. 431.
The questions of fact to which we
have adverted were all submitted to the
jury under a charge which was compre-
hensive, couched in plain terms, and in
substantial accord with the legal princi-
ples hereinbefore stated. And, while the
defendant criticizes some portions of the
charge, we think they neither included
nor omitted anything of which he right-
ly can complain* As has been said, the
jury returned geiieral verdicts for the
plaintiffs, and fdso special verdicts find-
ing that no lode had been discovered
within any of the lode locations before
the placer ones were made.
But it is objected that the court, in-
stead of requiring the plaintiffs to take
the burden of proving the absence of es-
sential lode discoveries, subjected the
defendant to the burden of proving that
there were such discoveries. This is not
in accord with the record. It there ap-
pears that the plaintiffs undertook at
the outset to establish the absence of
any lode discovery, and persisted in that
course, a laige, if not the larger, part of
their case in chief being directed to that
point. When they rested the defendant
moved that the evidence produced by
them ''as to the absence of lodes, or the
failure or inability of the witnesses to
find or discover lodes or mineral-bearing
[302] rock in place" within the lode
locations, be stricken out because not
within the issues tendered by the plain-
tiffs' complaints. The motion was de-
nied, and in that connection the court
observed that the burden ''undoubtedly''
was on the plaintiffs not only to show
their own placer discoveries, acts of loca-
tion, etc., but also "that the ground in
dispute was open to location;" and the
court added: "Plaintiffs have, so far aS'
the record discloses, always insisted that
57t
302^304
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
there was no lode diseoFery, and that the
onlj discovery was of placer." There
was also an admission in the defendant's
requested instructions that the plaintiffs
"in their case in chief' introduced evi-
dence tending to show that *^ihe ground
comprised in the lode mining claims
. . . contained no lodes^ veins, or. min-
eral-bearing rock in place and . . .
that said lode locations were there-
fore invalid.'' And the court, in charg-
ing the jury, said: 'The burden is on
the plaintiff in the first instance to show
that when they went on these claims to
locate the placers the ground was open to
location, and that there was at the time
no valid, subsisting locations where their
discoveries were made." It therefore is
plain that the burden of proof was dealt
with and carried in a manner which does
not admit of criticism by the defendant.
It is objected also that the court re-
fused to direct verdicts for the defend-
ant. But what has been said suflKciently
shows that, in our opinion, the evi-
dence presented several disputable ques-
tions of fact which it was the province
of the jury to determine. This was the
view not only of the judge who presided
at the trial, but of another judge, who,
in overruling the motion for a new trial,
said : **I thmk that not only is there sub-
stantial evidence to support the verdict,
but the preponderance is upon that
side." Were we less satisfied than we
are upon the point, we should hesitate
to disturb the concurring conclusions of
those judges.
[303] It is urged that the court erred
in not holdiog that the placer claimants
had admitted the validity of one of the
lode locations by relocating the ground
as a lode claim. A short statement of
what was done will show, as we think,
that it did not .involve any such admis-
sion. After the placer claimants made
their placer discovery a representative of
theirs posted on the ground a notice
stating that they had relocated it as a
lode claim. The next day he substituted
another notice stating that they had lo-
cated it as a placer claim. The first
notice did not accord with their discov-
ery and the other did. Nothing was done
or claimed under the first, and all the
subsequent steps were in accord with
the other. Evidently the first was post-
ed by mistake and the other as the true
notice. No one was misled by the mis-
take and it was promptly corrected. In
these circumstances, the first notice was
of no effect and no admission could be
predicated of it. Zeiger v. Dowdy. 13
Ariz. 331, U4 Pac. 565.
580
The farther objection ia made that no
probative force was given to recitals of
discovery in the recorded notices of lo-
cation of the lode claims. The notices
were admitted in evidence and no in-
struction was asked or g^ven respecting
the recitals. In one nothing is said
about discovery, and what is said in the
other two is meager. But, passing this,
the objection is not tenable. The gen-
eral rule is that such recitals are mere
ex parte, self-serving declarations on
the part of the locators, and not evi-
dence of discovery. Creede & C. Creek
Min. & MilL Co. v. Uinta Tunnel Min«
ft Transp. Co. 196 U. S. 337, 352, 49 L.
ed. 501, 509, 25 Sup. Ct. Rep. 266; Lind-
ley. Mines, 3d ed. § 392: Mutchmor v.
McCarty, 149 CaL 603, 607, 87 Pac. 85;
Strepey v. Storic, 7 Colo. 614, 619, 5 Pac.
Ill, 17 Mor. Min. Rep. 28; Magruder ▼.
Oregon & C. R, Co. 28 Land Dec. 174.
This rule is recognized and applied in
Nevada. Pox v. Mvers, 29 Nev. 169,
186, 86 Pac. 793; Round* Mountain Min.
Co. V. Round Mountain Sphinx Min. Co.
36 Nev. 543, 560, 138 Pac. 7L
Complaint is made because the de-
fendant was not permitted, [304] on the
cross-examination of a witness tor the
plaintiffs, to show the contents of cer-
tain assay reports. In his examination
in chief the witness told of taking twelve
samples from openings made by the lode
claimant in the lode locations, and of
having the samples assayed. Seven of
the assay reports were produced at the
plaintiffs* request and put in evidence.
They attributed to one sample a mineral
value of 63 cents per ton and to the
other six only a trace of mineral. In
cross-examining the witness the defend-
ant called for the remaining reports or
their contents, but the plaintiffs object-
ed and the objection was sustained. In
other respects the cross-examination
proceeded without restriction and in-
cluded a full interrogation of the wit-
ness about the points from which each
of the twelve samples was taken. Thi>
interrogation disclosed that one of the
reports put in evidence covered a sample
taken from an opening made after the
location of the placer claims: and be-
cause of this that report was stricken
out at the defendant's request and with
the plaintiffs' consent. Near the close
of the trial the court recalled its prior
ruling and announced another more
favorable to the defendant. The wit-
ness was then recalled and. after some
further examination, three of the re-
maining reports were put in evidence.
Thev attributed to one sample a min-
25» r. 8.
11)19.
COLE V. RALPH.
304-307
fral value of $1.34 per ton and to the
other two only a tsace of mineral. Thns
of the twelve reports all but two were
produced. These two, like the one strick-
en out, covered samples taken from
openings made after the plaeer claims
were located. The defendant did not
oall for them when the witness was re-
4'alled or reserve any exception to the
new ruling, and it is more than infer-
able from the record that he acquiesced
in it. Of course, there is no merit in
the present complaint.
What we have said sufficiently dis-
poses of all questions other than that
before mentioned respecting the ai^li-
eability [305] and effect of § 2332 of
the Revised Statutes (Comp. Stat. § 4631,
6 Fed. Stat Anno. 2d ed. p. 580), which
provides :
''Where such person or association,
they and their grantors, have held and
worked their claims for a period equal
to the time prescribed by the Statute
of Limitations foi^ mining claims of the
state or territory where the same may
be situated, evidence of such possession
and working of the claims for such
period shall be sufficient to establish a
right to a patent thereto under this
chapter, in the absence of any adverse
claim.**
The defendant, conceiving that the
section could be invoked in the absence
of a mineral discovery, requested the
4^ourt to instruct the jury that if the
]ode claimant held and worked the lode
claims for a period of two years — the
local prescriptive period for adverse
possession. Rev. Laws 1912, § 4951 — ^be-
fore the placer claims were initiated,
such holding and working were the full
f'quivalent of all that was essential to
the validity of the lode claims, includ-
ing discovery. That request was refused
and others were then presented which
differed from it only in that they treat-
ed discovery as essential by coupling it
with holding and working. These were
also refused, but no complaint is made
of this, — obviously because the jury
were told that, under the evidence, the
lode claims should be regarded as valid,
if only the requisite discoveries were
made at any time before the placer
claims were initiated. The jury, as we
have seen, found as matter of fact that
there was no such discovery.
The effect which must be given to §
2332 in circumstances such as are here
disclosed — whether it substitutes some-
thing else in the place of discovery or
cures its absence — is the matter we have
to consider. That the section is a reme-
•4 L. ed.
I dial provision and designed to make proof
of holding and working for the pre-
scribed period the legal equivalent of
proof of acts of location, recording, and
transfer, and thereby to relieve against
possible loss or [806] destruction of the
usual means of establishing such acts, is
attested by repeated rulings in the Ldstnd
Department and the courts. But those
rulings give no warrant for thinking
that it disturbs or qualifies important
provisions of the Mineral Land Laws,
such as deal with the character of the
land that may be taken, the discovery
upon which a claim must be founded, the
area that may be included in a single
claim, the citizenship of claimants, the
amount that must be expended in labor
or improvements to entitle the claimant
to a patent, and the purchase price to
be paid before the patent can be issued.
Indeed, the rulings have been to the con-
trary.
The view entertained and applied in
the Land Department is shown in the
following exeerpt from a decision by the
Secretary of the Interior:
''One purpose of § 2332, . . . clearly
shown in the history of the proceedings
in Congress attending its consideration
and passage, was to lessen the burden
of proving the location and transfers'
of old claims concerning which the pos-
sessory right was not controverted,
but the record title to which had in
many instances been destroyed by fire,
or otherwise lost because of the insecu-
rity and difficulty necessarily attending
its preservation during the early days
of mining operations. . . .
''The section was not intended as en-
acted, nor as now found in the Revised
Statutes, to be a wholly separate and in-
dependent provision for the patenting of
a mining claim. As carried forward into
the Revised Statutes it relates to both
lode and placer claims, and, being in
pari materia with the other sections of
the Revision concerning such claims, is
to be construed together with them, and
so as, if possible, tbat they may all stand
together, forming a harmonious body of
mining law." Barklage v. Russell, 29
Land Dec. 401, 405, 406.
The views entertained by the courts in
the mining regions are shown in Harris ▼.
Equator Min. & Smelting Co. 3 McCrary,
14, 8 [307] Fed. 863, 866, 12 Mor. Min.
Rq). 178, where the court ruled that hold-
ing and working a claim for a long pe-
riod were the equivalent of necessary
acts of location, but added that "this, of
course, was subject to proof of a lode in
the Ocean Wave ground, of which there
581
307, 308
SUPREME COURT OF THE UNITED STATED.
Oct. Tehm,
was evidence;" in Humphreys v. Idaho
Gold Mines. Development Co. 21 Idaho,
126, 140, 40>,L.E.A.(N.S.) 817, 120 Pac.
823, where the section was held to obvi-
ate th^ necessity for proving the post-
ing etCviOf a location notice, but not to
disi>ense with proof of discovery; in Up-
ton V. Santa Rita Min. Co. 14 N. M. 96,
89 Pac. 275, where the court held that
the section should be construed in con-
nection with other provisions of the Min-
eral Land Laws, and that it did not re-
lieve a claimant coming within its terms
from continuing to do the assessment
work required by another section ; and in
Anthony v. Jillson, 83 Cal. 296, 23 Pac.
419, 16 Mor. Min. Rep. 26, where the
section was held not to change the class
who. ma>^ acquire mineral lands or to dis-
pense with proof of citizenship.
As respects discovery, the section itself
indicates that no change was intended.
Its words, *'have held and worked their
claims," presuppose a discovery; for to
''work" a mining claim is to do something
toward making it productive, sueh as de-
veloping or extracting an ore body after
it has been discovered. Certainly it was
not intended that a right to a patent
could be founded upon nothing more than
holding and prospecting, for that would
Subject nonmineral land to acquisition as
a mining claim. Here, as the verdicts
show, there was no discovery, so the work-
ing relied upon could not have been of
the character contemplated by Congress.
The defendant places some reliance up-
on the decisions of this court in Belk v.
Meagher, 104 U. S. 279, 26 L. ed. 735, 1
Hor. Min. Rep. 510, and Reavis v. Fianza,
215 U. S. 16, 54 L. ed. 72, 30 Sup. Ct.
Bep. 1, but neither contains any state-
ment or su£^estion that the section dis-
penses witli a mineral discovery or cures
its, absence. The opinion in the first
shows affirmatively that there was a dis-
covery, and that in the other shows that
the controversy, although of [308] re-
cent origin, related to "gold mines"
which had been worked for many years.
The only real divergence of opinion
respecting the section has been as to
whether it is available in an adverse suit,
such as these are, or is addressed merely
to the Land Department. Some of the
courts have held it available only in pro-
ceedings in the Department (McCowan v.
Maclay, 16 Mont. 234, 40 Pac. 602), and
others in greater number have held it
available in adverse suits (Upton v. San-
ta Rita Min. Co. supra, and cases cited).
The latter view has received the approval
of this court (Reavis v. Fianza and Belk
V. Meagher, supra).
582
We conclude that the defendant was not
entitled to any instEuction where'by he
could receive the benefit of § 2332 in the
absence of a discovery, and therefore that
the district court rightly refused to give
the one in question. The circuit court
of appeals held that the instruction
should have been given, and in this we
think it erred.
Judgmelits of Circuit Court of Appeals
reversed. Judgments of District Cofart
affirmed.
PAXA:\U railroad company, Plff. in
Err.,
V.
JOSEPH T. TOPPIK.
(See S. C. Reporter's ed. 308-313.)
Master and servant — liability of mas-
ter for criminal act of servant *-
rule in Panama — private action.
1. A railway company is not relieved
from liability in damages under the law
of the Republic of Panama for injuries re-
sulting from the negligence of an employee
merely because the negligent act was also
Funishable as a crime.
For other casM, see Master and Senrant. III.
a, in Digest Sup. Ct. 1908.1
Master and servant » master's liabil-
ity for negrligence of servant — care
In selecting employee — mle in Pan-
ama.
2. The exercise by a railway company
of care in the selection of an employee does
not relieve it, under the law of the Re
public of Panama, from liability in dam-
ages for injuries resulting from the neg-
lippnce of such emplovee.
[For other cases, see Master and Servant, III.
a, in Digest Sup. Ct. 1908.)
Daroaflres — for physical pain — rale
in Panama and in Canal Zone.
3. Damages for physical pain could be
allowed in a personsd-injury action by the
district court of the Canal Zone, irrespec-
tive of whether the law of the Republic
of Panama, the lex loci, or that of the Canal
Zone, the lex fori, controls.
[For other cases, see Damages, VI. J, in Di-
gest Sup. Ct 1908.]
[No. 147.]
Argued and submitted January 16, 1020.
Decided March 15, 1920.
IX ERROR to the United States Cir-
cuit Court of Appeals for the Fifth
Circuit to review a judgment whiefa af-
firmed a judgment of the District Court
o£ the Canal Zone in favor of plaintiff
in a personal-injury action. Affbrmed.
See same case below, 163 C. C. A. 239,
250 Fed. 989.
The facts are stated in the opinion.
252 F. S.
1919.
PANAMA R. CO. V. TOPPIN.
Messt-s. Frank Feuille and Walter P.
Van Dame submitted the cause for plain-
tiff in error:
Corporations under laws and decisions
of the iRepublie of Panama tfre not liable
for the penal acts of their servants.
26 Gaceta Judicial of Republic of
Colombia, No. 1340, p. 61.
The decision of the trial court was
based on common-law principles, and not
on laws of Panama, as applied by courts
of that country.
Northern P. R. Co. v. Freeman, 174
U. S. 379, 383, 43 L. ed. 1014, 1016, 19
Sup. Ct. Rep. 763; Panama R. Co. v.
Beckford, 145 C. C. A. 430, 231 Fed. 436;
Bosse V. Panama R. Co. (Qcinal Zone).
Responsibility of the superior for the
acts of his servants is limited to those
cases in which the superior has failed
to exercise due authority and care over
and in the selection of such servant.
Manresa's Commentaries on the Civil
Code of Spain, vol. 12, pp. 617, 618;
Orozco V. Panama Electric Co. (Panama
Supreme Ct. Oct. 6, 1918).
Even if the development of a latent
disease from a physical injury may be
treated as an element in assessing dam-
ages, it must appear that the germs of
the disease were in the injured person's
system at the time he received the in-
juries.
3 Whart. & S. Med. Jur. p. 196; Lar-
son V. Boston Elev. R. Co. 212 Mass.
262, 98 N. E. 1048 ; Baldwin v. People's
R. Co. 7 Penn. (Del.) 81, 76 Atl. 1088;
Neff V. Cameron, 213 Mo. 350, 18 L.R.A.
(N.S.) 320, 127 Am. St. Rep. 606, 111 S.
W. 1139.
Physical pain and mental anguish are
not elements of damages under the laws
and decisions of the Republic of Panama.
Estndio sobre el Derecho Civil Colom-
biano, por Fernando Velez, vol. 9, pp. 13,
14; Marcelo v. Velasco, 11 Philippine,
287; Orozco v. Panama Electric Co.
(Panama Supreme Ct. Oct 6, 1918) ; Vil-
la veces V. Municipality of Bogota (Sen-
tence of Superior Ct. of Cundinamarca,
Republic of Colombia, May 23, 1918).
Mr. William C. Maclntsnre argued the
cause, and, with Messrs. W. C. Todd and
T. C. Hinckley, filed a brief for defend-
ant in error :
The defendant in error, in the instant
case, has a good right of action against
the plaintiff in error, the empresario of
the railroad, for damage which he re-
ceived in his person by reason of the
service of the railroad, and which dam-
age was imputable to neglect, want of
64 L. ed.
care, or violation of the regulations of
the Police Code.
Cancino v. Railroad of North, 13 Judi-
cial Gazette of Colombia, Nos. 652, 653,
Aug. 16, 1899; Panama R. Co. v. Bosse,
249 U. S. 41, 63 L. ed. 466, 39 Sup. Ct.
Rep. 211; Jurisprudencia Colombiana, p.
661, art. 356; J. V. Concha, Tratado de
Derecho Penal, p. 116, | 145. '
The Panama Railroad Company, by
having in its employ a man who ' would
act in such negligent manner, makes it-
self responsible for his acts, even under
Colombian law, on account of having em-
ployed a man who does not possess the
necessary qualifications for a proper dis-
charge of his duty as a locomotive en-
gineer.
Jurisprudencia Colombiana, p. 561,
art. 356 ; J. V. Concha, Tratado de Dere-
cho Penal, p. 116, % 145.
The fact that a person is predisposed
to tuberculosis, or that his physical con-
dition is such as to yield more readily
to the germs of such disease, so that an
injury caused by a sprained ankle is
greater or different in degree than is
usually to be expected from such a cause,
will not relieve from liability the person
whose negligence caused the injury.
Thomas v. St. Louis, I. M. & S. Co.
187 Mo. App. 420, 173 S. W. 728, 9 N-
C. C. A. 92;
K a person injured is feeble, sick, or
diseased, and the negligence or wrong-
ful act aggravates the illnesB or disease,
or produces conditions that would not
ordinarily or reasonably have existed or
occurred except for the negligence or
wrongful' act, and which are directly at-
tributable to it, the injured party may
recover all the dami^es that flow from
the negligence or wrongful act, including
such as result from illness, sickness, or
disease aggravated by or that are pro-
duced by it, althongh the person inflict-
ing the injury may not at the time know
that the person injured is laboring under
any infirmity, sickness, or disability.
Louisville & N. R. Go. v. Dattgherty,
32 Ky. L. Rep. 1392, 15 L.R.A.(N.S.)
740, 108 S. W. 336.
A child having a latent tubercular
tendency in its knees, which is injured by
a bruise thereon from a defective side-
walk, may hold the municipality liable
for any aggravation of sueh tendency
which is directly caused in natural and
reasonable sequence by the bruise. .
Neff V. Cameron, 213 Mo. 350, 18
L.R.A.(N.S.) 320, 127 Am. St. Rep. 606,
111 S. W. 139.
In a cause of action arising within the
Canal Zone, and tried in the district
S83
309-311
SLPREME COURT OF THE UNITED STATES.
Oct.
court for the Caual Zone, paiu and suf-
fering are proper elements of damage.
Panama B. Co. v. Bosse, 152 C. C. A.
219, 239 Fed. 303; Panama R. Co. v.
Beckford, 145 C. C. A. 430, 231 Fed.
436; Panama R. Co. v. Toppin, 163 C. C-
A. 239, 250 Fed. 989 ; Panama R. Co. v.
Curran, 168 C. C. A.. 114, 256 Fed. 768;
Panama R. Co. v. Robert, 168 C. C. A.
119, 256 Fed. 773; Panama R. Co. v. Pi-
gott, 168 C. C. A. 183, 256 Fed. 837; J. V.
Concha, Tratado de Derecho Penal, p.
114, t ^'^; Ramirez v. Panama R. Co.
Supreme Ct. of Justice of Colombia, 1
Oaceta Judicial, No. 22, p. 170 (June 10,
1887) ; Hanna t. New Gleans R. & light
Co. 126 La. 634, 52 So. 855 ; Lee v. Pow-
ell Bros. & S. Co. 126 La. 51, 52 So. 214;
Englert v. New Orleans R. & Light Co.
128 La. 477, 54 So. 963; Borrero v. Cia
Anonyma de Lu2 Electrica de Ponce, 1
P. R. R. 144 ; Martinez v. .American R.
Co. 5 Porto Rico Fed. Rep. 311; Wood
v.Valdes, 4 Porto Rico Fed. Rep. 165;
Guzman v. Herencia, 4 Porto Rico Fed.
Rep. 105, 8. c 219 U. S. 44, 55 L. ed. 81,
31 Sup. Ct. Rep. 135.
K plaintiif had a clear right of action
under the lex loci, then the trial court
did not «rr in applying the law of the
forum as to the elements to be considered
in the measure of damages.
Slater v. Mexican Nat. R. Co. 194 U. S.
1*20, 48 L. ed. 900, 24 Sup. Ct. Rep. 581;
38 Cvc. 551; Davis v. Mills, 194 U. S.
451, 48 L. ed. 1067, 24 Sup. Ct Rep. 692.
Mr. Justice Brandeis delivered the
opinion of the court :
Toppin was struck by a locomotive of
the Panama Railroad Cranpany while rid-
ing a horse in the city of Colon. He
sued the company for damages in the
district court of the Canal Zone, alleg-
ing negligenee, And recovered a verdict.
The judgment entered thereon was af-
firmed by the eireuit court of appeals
for the fifth circuit (163 C. C. A. 239,
250 Fed. 989), and the case is here on
writ of error.
The main contentions of the company
are here, as in Panama R. Co. v. Bosse,
249 U. S. 41, 63 L. ed. 466, 39 Sup. Ct
Rep. 211, that the trial court erred in
holding applicable the rule of respondeat
"superior and the rule permitting recov-
ery for physical pain suffered. The im-
portant difference in the two cases is
this: There the accident occurred in the
Canal Zone; here, in the Republic of
Panama. The company insists that the
Bosse Case is not controlling, because
'he questions affecting liabUity must
584
here be determined by the law of that
Republic, — the place where the accident
occurred. Slater v. Mexican Nat. R-
Co. 194 U. S. 120, 48 L. ed. 900, 24 Sup.
Ct. Rep. 581; Cuba R. Co. v. Crosby,
222 U. S. 473, 56 L. ed. 274, 38 L.R.A.
(N.S.) 40, 32 Sup. Ct. Rep. 132. The
law [310] of Panama is pleaded by both
parties and evidence thereon was intro-
duced by both; but we are not limited to
this evidence, as they agree that we may
take judicial notice of the law of Pana-
ma existing February 26, 1904, when
the Canal Treaty was proclaimed [33
Stat, at L. 2234], and that, in the ab-
sence of evidence to the contrary, the
law then prevailing there will be pre-
sumed to have continued in force.
First : The company contends that the
jury should have been instructed that
under the law of Panama the company
was not liable if the accident resulted
from a criminal act of its employees,
there being evidence that it was due to
running the* locomotive at a rate of speed
prohibited under penalty by the Police
Code of Panama. That code, known as
Ordinance No. 87 of the year 1896, pro-
vides (articles 488, 489) :
'^When a tramway crosses a town,
as well as when it passes by a gate or
viaduct, it shall not travel at a greater
speed than that of a wagon drawn by
horses at a moderate trot; in ease of an
infraction the conductor or the admin-
istrator of the company subsidiarily
shall pay a fine of 10 to 100 pesos, with-
out prejudice to the responsU>ility, civil
or penal, to which he may be subject by
reason of the damage, fault, or tort.
»
'*This article . . . shall be implied
to railroads when they enter cities or
towns.''
The Panama Law No. 62, of 1887, had
provided in article 5:
^'Railroad companies are responsible
for the wrongs and injuries which are
caused to persons and properties by rea-
son of the service of said railroads and
which are imputable to want of care,
neglect or violation of the respective
police regulations which shall be issued
by the government as soon as the law
is promulgated,"
And article 2341 of the Civil Code pro-
vides:
**He who shall have been guilty of an
offense or fault, which has caused an-
other damage, is obliged to repair it,
[311] without prejudice to tike prinei-
pal penalty which the law imposes for
the fault or offense committed." '
It would seem clear from a reading of
258 V. S.
1919.
PANAMA R. CO. v. TOPPIN.
311-313
these preyisions that the company
would not be relieved from liability in
damages for injuries resulting from the
negligence of its employee, merely be-
cause the negligent act was also punish-
able as a crime. An4 the Colombian au-
thorities to which our attention has been
called tend to confirm this construction.^
There seems to have been a rule of
practice under the Colombian Judicial
Code (art. 1501 «) by which, if the civU
action and the criminal action arising
out of the same acts are iiot brought at
the same time, the civil action cannot
be prosecuted until the conclusion of the
criminal action with the condemnation
of the delinquent. But such rule obvi-
ously can have no application here;
among other reasons, because it refers
to the case where the same person is
liable both civilly and criminally. Here
it is the engineer who is liable criminally
under the Police Code and the company
against whom civil liability is being en-
forced.
Second: The company contends that
by the law of Panama it cannot be held
liable for the injury caused by the neg-
ligence of its engineer if it was care-
ful in selecting him, because the law of
Panama does not recognize liability with-
out fault. This contention was made
and rejected by the supreme court of
Colombia in a case similar to the case
at bar.* There suit was brought against
the empresario of a railway to recover
for the loss of a house by fire due to the
negligent operation of a locomotive.
[312] The court rested the liability up-
on § 2347 of the Civil Code,^ declaring
that all doubt as to the existence of the
necessary dependency was removed by
article 6 of Law 62 of 1887, whiijji, "with-
out in any way mentioning the depend-
ents, employees, or workmen of railway
enterprises, makes their empresarios re-
sponsible lor the damages and injuries
which they may cause to persons or to
property by reason of the service of the
said roads." The court continues : **And
there is not in the record any proof
whatever that any care or precaution,
either on the part of the empresario or
the engineer, had been taken to prevent
the fire, the proof that the empresario
on his part had exercised much care in
the selection of his employees not being
suf^cient in the opinion of the court, be-
cause the diligence and care here treated
of is that which ought to have been ex-
ercised in order to prevent an injury
that could have been easily foreseen."*
This case seems to overrule in effect the
principal authority to which the plaintiff
in error has referred us,* — in fact, it is
not unlikely that such was the object of
article 6 of Law 62 of 1887.
[313] Third : The contention that the
lower courts erred in allowing recovery
for physical pain was made and over-
ruled in Panama R. Co. v. Bosse, supra,
p. 47. As the decision there rested upon
article 2341 of the Civil Code of Panama
it is applicable whether the lex loci, or
the lex fori should be held controlling as
to such damages. Exception was also
taken to the ruling that "if the plain-
tiff has developed tuberculosis of the
spine as a result of the injuries received"
the tuberculosis may be considered as an
element of damages. The instruction
was given with such explanations as to
have been clearly unobjectionable.
Aiftrmed.
1 Cecilia Jaramillo de Cancino v. Railroad
of the North. Supreme Court of Justice
of the Republic of Colombia, XIIL Judicial
Gazette. Nos. 652, 653. Decided December
16. 1897.
«Ruperto Restrepo ▼. Sabana R. Co.
Supreme Court of Justice of the Republic
of Colombia, III. Judicial Gazette, No. 353,
pp. 332-334. Decided July 19, 1892.
3 Cancino v. Railroad of the North, supra,
note 1.
* Article 2347. "Every person is respon-
sible not only for his own actions, for the
purpose of making good the damase, but
fur the act of those who may be under his
care.
**Thu8, the father, and failing him the
mother, is responsible for the act of the
minor children who live in the same house.
*Thu8 the tutor or guardian is respon-
•4 li. ed.
sible for the conduct of tlte pupil who lives
under his protection and care.
"Thus the husband is responsible for the
conduct of his wife.
"Thus the directors of colleges and
schools respond for the acts of students
while they are under their care, and arti-
sans and empresarios for the acts of their
apprentices and dependents in like cases.
"But this responsibility will cease if
with the exercise of the authority and care
which their respective characters prescribe
for and confer on them they could not pre-
vent the act."
» See also Panama R. Co. v. Bosse. 249 U.
S, 41, 47, 63 L. ed. 466, 470, 39 Sup. Ct.
Rep. 211.
• Ramirez v. Panama R. Co. Supreme
Court of Justice of Colombia, 1 Gaceta
Judicial, No. 22, p. 170 (June 10, 1887).
585
SUPREME COURT OF THE UNITED STATES.
Oct. Tbsm,
REDERIAKTIEBOLAGET ATLANTEN,
• Petitioner,!
^''
AKTIESELSKABET KORN-OG FODER-
STOF KOMPAGNIET.
(See S. C. Reporter's ed. 313-316.)
Shipping: — charter parties — arbitra-
tion of disputes.
1. The refusal of the owner to begin
the voyage is not a "dispute^' of the kind
referred to in a clause in the cluirter party
that '*if any dispute arises^ the same to be
settled by two referees, one to be appointed
by the captain and one by charterers .or
their agents, and if necessary, the arbi-
trators to appoint an umpire. The deci-
sion t - • shall be final, and any party
attempting to revoke this submission to
arbitration without leave of a court shall
be liable to pay to the other or others, as
liquidated damages, the estimated amount
of chartered freight."
[For other cases,* see Shipping, IV. a, 2 ; Ar-
bitration. I. in Digest Sup. Ct. 1908.]
Pleading — foreign laws — scope or
construction of contract.
2. The allegation in the answer to a
libel in admiralty, brought by a Danish
against a Swedish corporation, that by the
laws of both Denmark and Sweden an arbi-
tration clause in the charter party is bind-
ing, and that arbitration is a condition
precedent to the right to sue by reason of
any dispute arising under the charter,
means no more than that arbitration agree-
ments will be enforced according to their
intent. It does not extend the scope or af-
fect the construction of an agreement which,
if construed apart from that allegation,
has no application to the present case.
[For other cases, see Pleading, I. J, In Digest
Sup. Ct. 1908.]
Shipping — charter party — limitation
of liability — penalty.
3. The liability of the Swedish owner
of a vessel to answer in damages to the
Danish charterer for a wilful, unexcused
failure to begin the voyage, is not affected
by a provision in the charter party, "pen-
alty for nonperformance of this agreement
to be proved damages, not exceeding esti-
mated amount of freight," even if such
clause can be construed to be a limitation
of liability, and not, as held under the Eng-
lish law, and probably on the Continent,
merely a penal provision, leaving the ordi-
1 Reported by the Official Reporter under
the title of 'The Atlanten."
Note. — On agreements to arbitrate —
see note to Kanney v. Baltimore & 0.
Employees Asso. 15 L.R.A. 142.
On law governing limitation of liabili-
ty of shipowner — see note to Oceanic
Steam Nav. Co. v. Mellor, L.R.A.1916B,
642.
586
nary liability upon the undertakings of tlie
contract unchanged.
[For other cases, see Shippiag, IV. a, 2 ; Dam-
ages, V. in iDlgest Sup. Ct. 190$.]
[No. 171.]
Argued March 10, 1920. Decided March
22, 1920. •
ON WRIT of Certiorari to the Circuit
Court of Api>eals for the Second
Circuit to review a decree which affirmed
a decree of the District Court for the
Southern District of New York in favor
of the libellant in a suit founded on a
breach of the charter party. Affirmed.
See "same case below, 163 C. C. A. 185,
250 Fed. 935, Ann. Cas. 1918E, 491.
The facts are stated in the opinion.
Mr. Clarence Biahop Smith argued the
cause and filed a brief for petitioner:
The court should have refused juris-
diction on the ground that the • ease
should have been arbitrated before re-
sort was had to the decision of the court.
United States Asphalt Ref. Co. v.
Trinidad Lake Petroleum Co. 222 Fed.
1006; Clark v. Hamburg- American Pack-
et Co. (Unreported; D. C. N. Y. Apr. 15,
1913) ; Fox V. Hempfield R. Co. 3 Wall.
Jr. 243, Fed. Cas. No. 5,010; Mittenthal
V. Mascagni, 183 Mass. 19, 60 L.R.A. 812,
97 Am. St. Rep. 404, 66 N. E. 425 ; Daley
V. People's Bldg. Loan & Sav. Asso. 178
Mass. 13, 59 N. E. 452; Hamlvn v. Talis-
ker Distillery [1894] A. C. *202, 6 Re-
ports, 188, 71 L. T. N. S. 1, 58 J. P.
540.
Liability should be limited to the esti-
mated amount of freight.
Watts, W. & Co. V. Mitsui & Co. [1917]
A. C. 227, 86 L. J. K. B. N. S. 873, 116
L. T. N. S. 353, 22 Com. Cas. 242, 33
Times L. R. 262, 61 Sol Jo. 382; Serut-
ton, Charter Parties, 8th ed. p. 90;
Winch V. Mutual Ben. Ice Co. 9 Daly,
181, affirmed in 86 N. Y. 618; Davis v.
Alpha Portland Cement Co. 134 Fed. 280,
affirmed in 73 C. C. A. 388, 142 Fed. 74;
United States v. Bethlehem Steel Co. 205
U. S. 105, 51 L. ed. 731, 27 Sup. Ct. Rep.
450 ; Sun Printing & Pub. Asso. v. Moore.
183 U. S. 642, 46 L. ed. 366, 22 Sup. Ct.
Rep. 240; Wise v. United States, 249 U.
S. 361, 63 L. ed. 647, 39 Sup. Ct. Rep.
303.
Every sentence in the charter party
should be given effect.
9 Cyc. 580; 17 Am. & Enp. Enc. Law,
2d ed. p. 7; Bowes v. Shand, L. R. 2 App.
Cas. 463, 46 L. J. Q. B. N. S. 561, 36 L.
T. N. S. 857, 25 Week. Rep. 730; Nor-
rington v. Wright, 115 U. S. 188, 29 L.
ed. 306, 6 Sup. Ct. Rep. 12; Cleveland-
252 V. S.
1919. KEDERIAKTIEBOLAGET AXLA^CTEX v. AKXIESELSKABET, ETC.
Cliffs Iron Co. v. East Itsaca Min. Co.
76 C. C. A. 698, 146 Fed. 235.
Special attention should be given to
new matter.
W. K. Niver Coal Co. v. Cheronea S.
S. Co. 6 L.R.A.(N.S.) 126, 73 C. C. A.
502, 142 Fed. 404.
Mr. Julius Henry Cohen filed a brief
as amicus curisB:
If the court should be convinced that
public policy favors agreements for the
submission of a commercial controversy
to arbitration, and that the rule of
revocability rests neither in reason nor in
sound precedent, the court should cor-
rect the error.
The Genesee Chief v. Fitzhugh, 12
How. 433, 13 L. ed. 1058; Cohen,. Com-
mercial Arbitration and the Law, chap.
4, p. 39; Klein v. Maravelas, 219 N. Y.
383, L.R.A.1917E, 549, 114 N. E. 809,
Ann. Cas. 1917B, 273 ; People v. Charles
Schweinler Press, 214 N. Y. 395, L.R.A.
1918A, 1124, 108 N. E. 639, Ann. Cas.
1916D, 1059; Pakas v. United States, 245
U. S. 467, 62 L. ed. 406, 38 Sup. Ct. Rep.
148; Holmes, Common Law, pp. 35, 36,
41; Hertz v. Woodman, 218 U. S. 205,
212, 54 L. ed. 1001, 1005, 30 Sup. Ct. Rep.
621 ; Thurston v. Fritz, 91 Kan. 468, 50
L.R.A.(N.S.) 1167, 138 Pac. 625, Ann.
Cas. 1915D, 212.
The doctrine of revocability is based
upon judicial error.
Halfhide v. Fenning, 2 Bro. Ch. 336, 29
Eng. Reprint, 187; Scott v. Avery, 5 H.
L. Cas. 843, 10 Eng. Reprint, 1134, 25 L.
J. Exch. N. S. 308, 2 Jur. N. S. 815, 4
Week. Rep. 746; Drew v. Drew, 2 Macq.
H. L. Cas. 4, 27 Scot. Jur. 237; Russell
V. PeUegrini, 6 El. & Bl. 1020, 119 Eng.
Reprint, 1144, 26 L. J. Q. B. N. S. 75, 3
Jur. N. S. 184, 5 Week. Rep. 71; Horton
V. Sayer, 4 Hurlst. & N. 650, 157 Eng.
Reprint, 996, 29 L. J. Exch. N. S. 28, 5
Jur. N. S. 989, 7 Week. Rep. 735; Dims-
dale V. Robertson, 2 Jones & L. 58, 7 Ir.
Eq. Rep. 536 ; Waters v. Taylor, 16 Ves.
Jr. 10, 33 Eng. Reprint, 658, 13 Revised
Rep. 91 ; Harcourt v. Ramsbottom, 1 Jac.
& W. 505, 37 Eng. Reprint, 460; Norton
v. MascaU, 2 Vem. 24, 23 Eng. Reprint,
626; Browne v. Downing, 2 Kolle, Rep.
194; Brode v. De Ripple, Y. B. 49 Edw.
III. 8, 9 ; Hamlyn & Co. v. Talisker Dis-
tillery, 21 Sc. Sess. Cas, 4th series, 21,
31 Scot. L. R. 642, 2 Scot. L. T. 12,
[1904 ] A. C. 202, 6 Reports, 201, 71 L.
T. N. S. 1, 58 J. P. 540; Caledonian Ins.
Co. V. Gilmour [1893] A. C. 85, 1 Re-
ports, 110, 57 J. P. 228; Trainor v.
PhcBnix Fire Assur. Co. 65 L. T. N. S.
825; Walmsley v. White, 40 Week. Rep.
64 L. ed.
675, 67 L. T. N. S. 433; Joplin v.
Postlethwaite, 61 L. T. N. S. 629; Rus-
sell V. Russell, L. R. 14 Ch. Div. 471, 49
L. J. Ch. N. S. 268, 42 L. T. N. S. 112;
Vawdrey v. Simpson, 65 L. J. Ch. N. S.
369, [1896] 1 Ch. 167, 44 Week. Rep,
123; Belfield v. Bourne, 8 Reports, 61,
[1894] 1 Ch. 521, 63 L. J. Ch. X. S. 104,
69 L. T. N. S. 786, 42 Week. Rep. 189;
Belcher v. Roedean School Site & Build-
ings, 85 L. T. N. S. 468; Jackson V,
Barry R. Co. [1893] 1 Ch. -247, 2 Re-
ports, 207, 68 L. T. N. S. 472; Austrian-
Lloyd S. S. Co. V. Gresham Life Assur.
Soc. [1903] 1 K, B. 249, 72 L. J. K. B.
N. S. 211, 51 Week. Rep. 402, 88 L. T.
N. S. 6, 19 Times L. R. 155; Gaw v.
British Law Fire Ins. Co. [1908] 1 In R.
245; The Cap Blanco [1913] Prob. 130,
83 L. J. Prob. N. S. 23, 109 L. T. N. S.
672, 29 Times L. R. 557, 12 Asp. Mar. L.
Cas. 399; Cameron v. Cuddy [1914] A.
C. 656, 83 L. J. P. C. N. S. 70, 110 L.
T. N. S. 89, 51 Scot. L. R. 591, Ann.
Cas. 1914D, 484; Bright v. Gibson, 32
Times L. R, 533; Smith, Coney, & Bar-
rett V. Becker, G. & Co. [1916] 2 Ch. 86,
8 B. R. C. 432, 84 L. J. Ch. N. S. 865,
112 L. T. N. S. 914. 31 Times L. R. 151 ;
Produce Brokers Co. v. Olympia Oil &
Cake Co. [1916] 1 A. C. 314, 85 L. J.
K B. N. S. 160, 114 L. T. N. S. 94, 32
Times L. R. 115, 60 Sol. Jo. 74; Clough
V. County Live Stock Ins. Asso. 85 L. J.
K B. N. S. 1185, 32 Times L. R. 526, 60
Sol. Jo. 642; Stebbing v. Liverpool & L.
& G. Ins. Co. [1917] 2 K. B. 433, 33*
Times L. R. 395, 117 L. T. N. S. 247, 86
L. J. K. B. N. S. 1155 ; Clements v.
Devon County Ins. Committee [1918] 1
K. B. 94, 87 L. J. K. B. N. S. 203, 118
L. T. N. S. 89, 82 J. P. 71; Re Lobitos
OUfields [1917] W. N. 227, 86 L. J. K.
B. N. S. 1444, 117 L. T. K S. 28, 33
Times L. R. 472, 14 Asp. Mar. L. Cas.
97; Brodie v. Cardiff Corp. [1919] A. C.
337, 88 L. J. K. B. N. S. 609, 120 L. T.
N. S. 417, 83 J. P. 77, 17 L. G. R. 65;
Wulff V. Dreyfus & Co. 117 L. T. N. S.
583, 86 L. J. K B. N. S. 1368, 61 Sol. Jo.
693 ; Woodall v. Pearl Assur. Co. [1919]
1 K. B. 593, 88 L. J. K. B. N. S. 706,
120 L. T. N. S. 556, 83 J. P. 125, 63 Sol.
Jo. 352; Toledo S. S. Co. v. Zenith
Transp. Co. 106 C. C. A. 501, 184 Fed.
391.
The provision in the ordinary contract
of merchants that, in the event of dis-
pute or controversy, there shall be subr
mission to arbitration, is not intended to
oust the courts of jurisdiction, but is
merely expressive of the intent of th(^
I parties to keep out of court if they can,
and to endeavor to compose their dif-
58 7
SCPKEME. COURT OF THE UMTED STATES.
Oct. Term.,
ferences either through conciliation or
arbitration.
Scott V. Avery, 5 H. L. Cas. 849, 10
Eng. Reprint, 1136, 25 L. J. Exch. N. S.
303, 2 Jur. N. S. 815, 4 Week. Rep. 746;
Waters v. Taylor, 15 Ves. Jr. 17, 33 Eng.
Reprint, 661, 13 Revised Rep. 91; Ham-
lyn & Co. V. Talisker Distillery [1894]
A. C. 202, 6 Reports, 201, 71 L. T. N. S.
1, 58 J. P. 540, 21 Sc. Sess. Cas. 4th
series, 21, 31 Scot. L. R. 642, 2 Scot. L.
T. 12; Dalev v. People's Bldg. Loan &
Sav. Asso. 178 Mass. 13, 59 N. E. 452;
Delaware & H. Canal Co. v. Pennsyl-
vania Coal Co. 50 N. Y. 258; McAllister
v. Smith, 17 lU. 334, 65 Am. Dec. 651;
^ Dyke v. Erie R. Co. 45 N. Y. 116, 6 Am.
Rep. 43; Grand v. Livingston, 4 App.
Div. 593, 38 X. Y. Supp. 490; Union Nat.
Bank v. Chapman, 169 N. Y. 645, 57
LJI.A. 513, 88 Am. St. Rep. 614, 62 N.
E. 672 ; Le Breton v. Miles, 8 Paige, 261 ;
The Oranmore, 24 Fed. 922; Penn v.
Baltimore, 1 Ves. Sr. 444, 27 Eng. Re-
print, 1132; Wiseman v. Roper, 1 Rep.
in Ch. 158, 21 Eng. Reprint, 537: Bar-
low V. Ocean Ins. Co. 4 Met. 270 ; Stapil-
ton V. Stapilton, 1 Atk. 3, 26 Eng. Re-
print, 2; Zane v. Zane, 6 Mnnf. 406;
Taylor v. Patrick, 1 Bibb, 168; Fisher v.
Mav. 2 Bibb, 448; Brown v. Sloan, 6
Watts, 421; Stoddard v. Mix, 14 Conn.
12; Rice v. Bixler, 1 Watts & S. 456;
Parsons, Contr. pp. 438, 439; Ez parte
Lucy, 21 Eng. L. & Eq. Rep. 199; Mills
V. Lee, 6 T. B. Mon. 91, 17 Am. Dec.
118; Moore v. Fitzwater, 2 Rand. (Va.)
442; Bennet v. Paine, 5 Watts, 259;
Pierson v. McCahill, 21 Cal. 122; Clark
V. Gamwell, 125 Mass. 428; Flannagan
V. Kilcome, 58 N. H. 443; 5 C. J. p. 53,
note 12a; Fox v. Hempfield R. Co. 3
Wall. Jr. 247, Fed. Cas. No. 5,010;
Northampton Gaslight Co. v. Pamell, 15
C. B. 645, 139 Evtg. Reprint, 572. 3 C.
L. R. 409, 24 L. J. C. P. N. S. 60, 1 Jur.
N. S. 211, 3 Week. Rep. 179; Greve v.
JEtna Live Stock Ins. Co. 81 Hun, 30,
30 N. Y. Supp. 668; Printing & Numeri-
cal Registering Co. v. Sampson, L. R. 19
Eq. 465, 44 L. J. Ch. N. S. 705, 32 L. T.
N. S. 354, 23 Week. Rep. 463, 21 Eng.
RuL Cas. 696 ; Re New York, L. & W. R.
C^. 98 N. Y. 453.
Mr. Boscoe H. Hupper argued the
cause, and, with Mr. George H. Terri-
berry, filed a brief for respondent:
This suit does not properly involve
the arbitration clause of the charter
party because the petitioner canceled
the charter party and made no demand
for arbitration.
Ohio & M. R. Co. V. McCarthv, 96 U.
58S
S. 258, 267, 268, 24 L. ed. 693, 695, 696 ;
Empire Implement Mfg. Co. v. Hench,
219 Pa. 135, 67 Atl. 995; Braithwaite v.
I Foreign Hardwood Co. [1905] 2 K. B.
543, 3 B. R. C. 580, 74 L. J. K. B. N. S.
688, 92 L. T. N. S. 637, 21 Times L. R.
413, 10 Com. Cas. 189, 10 Asp. Mar. L,
Cas. 52; Knickerbocker L. Ins. Co. v.
Pendleton, 112 U. S. 696, 20 L. ed. 866,
5 Sup. Ct. Rep. 314; Grattan v. Metro-
politan L. Ins. Co. 80 N. Y. 281, 30 Am.
Rep. 617; Clarkson v. Western Assur.
Co. 92 Hun, 535, 37 N. Y. Supp. 53;
Hicks v. British America Assur. Co. 13
App. Div. 448, 43 N. Y. Supp. 623 ; Rob-
inson v. Frank, 107 N. Y. 656, 14 N. E.
413; Smith v. Wetmore, 167 N. Y. 234,
60 N. E. 419 ; Honesdale Ice Co. v. Lake
Lodore Improv. Co. 232 Pa. 293, 81 Atl.
306; Jureidini v. National British & L
Millers Ins. Co. [1915] A. C. 505 [1915]
W. N. 6, 84 L. J. K. B. N. S. 040, 112
L. T. N. S. 531, 31 Times L. R. 132, 59
Sol. Jo. 205, Ann. Cas. 1915D, 327;
O'Neill V. Supreme Council, A. L. H. 70
N. J. L. 422, 57 Atl. 463, 1 Ann. Cas. 422 ;
Stroms Bruks Aktie Bolag v. Hutchison,
6 Sc. Sess. Cas. 5th series, 486, 41 Scot.
L. R. 274, 11 Scot. L. T. 664, 10 Asp. Mar.
L. Cas. 138 [1905] A. C. 515, 74 L. J. P.
C. N. S. 130, 93 L. T. N. S. 562, 21 Times
L. R. 718, 11 Com. Cas. 13; Scmtton,
Charter Parties, 8th ed. p. 250 ; Thorley
V. Orchis S. S. Co. [1907] 1 K B. 660, 2
B. R. C. 565, 76 L. J. K. B. N. S. 595.
96 L. T. N. S. 488, 23 Times L. R. 338,
12 Com. Cas. 251, 7 Ann. Cas. 281;
James Morrison & Co. v. ShawSavili &
A. Co. [1916] 2 K. B. 783, 115 L. T. N.
S. 508, 32 Times L. R. 712; Balian y.
Joly, V. & Co. 6 Times L. R. 345; Nash
V. Towne, 5 Wall. 689, 701, 702, 18 L.
ed. 527, 529, 530.
Abritration affects the remedy only,
and therefore the procedure that might
have been followed in Sweden or Den-
mark is immaterial in this case, our law
being that arbitration agreements do not
bar or oust the jurisdiction of our
courts.
Hamilton v. Home Ins. Co. 137 U. S.
370, 34 L. ed. 708, 11 Sup. Ct. Rep.
133; United States Asphalt Ref. Co. v.
Trinidad Lake Petroleum Co. 222 Fed.
1006; Meacham v. Jamestown, F. & C.
R. Co. 211 N. Y. 346, 105 X. E. 653, Ann.
Cas. 1915C, 851.
The courts below correctly decided
that the petitioner's liability was not
limited to the estimated amount of
freight.
Tayloe v. Sandiford, 7 Wheat. 13, 17,
5 L. ed. 384, 385 : Watts v. Camors, 115
U. S. 353, 361, 29 L. ed. 406. 408. 6 Sup.
252 U. 8.
lOlU. REDERIAKTIKBOLAGET ATLA^'T£^' v. AKTIESELSKABET, ETC. 314-316
Ct. Rep. 91; Wall v..Rederiaktiebolaget
Luggude [1915] 3 K. B. 73, [1915] W.
N. 248, 84 L. J. K. B. N. S. 1663, 31
Times L. R. 487; Watts, W. & Co. v.
Mitsui Co. [1917] A. C. 227, 86 L. J. K.
B. N. S. 873, 116 L. T. N. S. 353, 33 Times
L. R. 262, 22 Com. Cas. 242, 61 SoL Jo.
382, [1916] 2 K. B. 826, 85 L. J. K. B.
N. S. 1721, 115 L. T. N. S. 248, 32 Times
L. R. 622; Stroms Bruks Aktie Bolag
V. Hutchison, 6 Sc. Sess. Cas. 5th series,
486, 41 Scot. L. R. 274, 11 Scot. L. T.
664, 10 Asp. Mar. L. Cas. 139, [1905]
A. C. 515, 74 L. J. P. C. N. S. 130, 93
L. T. N. S: 562, 21 Times L. R. 718, 11
Com. Cas. 13; lines v. Atlantic Trans-
port Co. 139 C. C. A. 170, 223 Fed. 624;
Clink V. Radford [1891] 1 Q. B. 627, 60
L. J. Q. B. N. S. 388, 64 L. T. N. S.
491, 39 Week. Rep. 355, 7 Asp. Mar.
L. Cas. 10; Hansen v. Harrold Bros.
[1894] 1 Q. B. 612, 63 L. J. Q. B. N. S.
744, 9 Reports, 316, 70 L. T. N. S. 475,
7 Asp. Mar. L. Cas. 464; Crossman v.
BurriU, 179 U. S. 100, 45 L. ed. 106, 21
Sup. Ct. Rep. 38; Elvers v. W. R. Grace
& Co. 157 C. C. A. 153, 244 Fed. 705.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a libel in admiralty by a Danish
corporation, the respondent here, against
a Swedish corporation, owner of the
steamship Atlanten, for breach of a
charter party made in Denmark, on Sep-
tember 30, I9l4. The voyage was to be
from a southern port in the United
States to Danish ports to be named. On
January 8, 1915, the owner (the petition-
er) wrote to the charterers that, owing
ro the increased war risk and other dif-
ficulties, "we are compelled to cancel
the Atlanten's charter party Pensacola
to Scandinavia, and are ready to take all
the consequences the court after clause
No. 24 in. the charter pwirty will compel
us to pay, not exceeding the 'estimated
amount of freight." It offered to pro-
ceed, however, if the charterers would
pay a higher rate. This libel was
brought five months lator. The owner, in
its answer, admitted the breach, but set
up the clause 24 of the charter, [315]
'^penalty for nonperformance of this
agreement to be proved damages, not ex-
ceeding estimated amount of freight,''
and ckiuse 21, ''If any dieq^nte arises,
the same to be settled by two referees,
one to be appointed by the captain
and one by charterers or their agents,
and, if necessary, the arbitrators to
appoint an umpire. The decision . . .
shall be final, and any party at-
tempting to revoke this submission to
64 l>. ed.
arbitration without leave of a eourt
shall be liable to pay to the other,
or others, as liquidated damages, the
estimated amount of chartered freight."
It is alleged that by the laws of both
Denmark and Sweden such a provision
is binding, and that arbitration is a con-
dition precedent to the right to sue by
reason of any dispute arising under the
charter. The case was heard on excep-
tions to the answer. The district court
made a decree for the libellant for full
damages (232 Fei, 403), and this deci-
sion was affirmed by the circuit court of
appeals. 163 C. C. A. 185, 250 Fed.
935, Ann. Cas. 1918E, 491.
With regar«L to the arbitration clause
we shall not consider the general ques-
tion whether a greater effect should not
be given to such clauses than formerly
was done, since it is not necessary to do
so in order to decide th^ case before us.
For this case it is enough that we agree
substantially with the views of Judge
Learned Hand in the district court and
Judge Hough in the circuit court of ap-
peals. Their opinion was that the owner
repudiated the contract and that the
arbitration clause did not apply. It id
true that it would be inaccurate to say
that the owner repudiated the contract
in toto, for the letter that we have quot-
ed assumed that the contract was l^ind-
ing, and referred to it as fixing the
liability incurred. It meant simply that
the owner would not proceed w^th the
voyage. United States v. McMuUen, 222
U. S. 460, 471, 56 L. ed. 269, 273, 32 Sup.
Ct. Rep. 128. But we agree that such a
refusal was not a '^dispute" of the kind
referred to in the arbitration clause.
As Judge Hand remarked, the with-
drawal was before [816] the voyagre be-
gan, and it is absurd to suppose that the
captain, who might be anywhere in the
world, was to be looked up and to pick
an arbitrator in such a case. The clause
obviously referred to disputes that might
arise while the parties were trying to go
on with the execution of the contract, —
not to a repudiation of the substance of
the contract, as it is put by Lord Hal-
dane in Jnreidini v. National British &
1. M. Ins. Co. [1915] A. C. 499, 505,
[1915] W. N. 6, 84 L. J. K. B. N. S.
640, 112 L. T. N. S. 531, 31 Times L. R.
132^ 59 SoL Jo. 205. The allegation in
the answer as to the law of Denmark
and Sweden we do not understand to
mean more than that arbitration agree-
ments will be enforced according to their
intent. It does not extend the scope or
affect the construction of an agreement
which, as we should construe it apart
.58»
ai6, 317
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
from that allegation, does not apply to
the present case.
Paragraph 24 of the charter, supposed
to limit liability, may be met in similar
and other wa^'s. If it were a limitation
of liability^ it hardly could be taken to
apply to a case of wilful, unexcused re-
fusal to go on with the voyage. It
obviously was not intended to give the
owner an option to go on or stop at
that price. But, furthermore, as was
fully pointed out below, the clause is a
familiar modification of a very old one,
and in the courts of England that have
had frequent occasion to deal with it,
is held to be only a penalty) even in the
present form, and to leave the ordinary
liability upon the undertakings of the
contract unchanged. Wall v. Rederiak-
tiebolaget Luggude [1915] 3 K. B. 66,
[1915] W. N. 248, 84 L. J. K. B. N. S.
1663, 31 Times L. R. 487; Watts, W. &
Co. V. Mitsui & Co. [1917] A. C. 227,
86 L. J. K. B. N. S. 873, 116 L. T. N. S.
353, 33 Times L. R. 262, 22 Com. Cas.
242, 61 Sol. Jo. 382, [1916] 2 K. B. 826,
844, 85 L. J. K. B. N. S. 1721, 115 L. T.
N. S. 248, 32 Times L. R. 622 ; Watts v.
Camors, 115 U. S. 353, 29 L. ed. 406, 6
Sup. Ct. Rep. 91. Presumably this is
also the continental point of view. We
are of opinion that the decree was clearly
right.
Decree affirmed.
[317] J. HARTLEY MANNERS, Peti-
tioner,
V.
OLIVER MOROSCO.
(See S. C. Reporter's cd. 317-331.)
Copyright — license — daratlon.
1. Tlie five years' limitation in a grant
by a playwright of the sole and exclusive
license and liberty to produce, perform, and
represent a copyrighted play within the
territorial limits stated, subject to the
other terms and conditions of the contract,
one of which bound the licensee to produce
the play for at least seventy-five perform-
ances in each ensuing theatrical season for
five years, and another provided for a for-
feiture in case the play should not have
been produced for the stipulated number of
performances in any one theatrical year,
limits all the rights and obligations of both
parties to the contract, — the license to pro-
duce as well as the licensee's obligation to
perform.
[Matters as to copyright, see Copyright, in
Digest Snp. Ct. 1U08.J
Copyright — license » moving-picture
rights.
2. The right to represent a copyrighted
play in moving pictures cannot be deemed
to have been embraced in a grant by a play-
wright of the sole and exclusive license
and liberty to produce, perform, and repre-
sent the play within the territorial limits
stated, subject to the other terms and con-
ditions of the contract, under which the
play is to be continued for seventy-five per-
formances for each ensuing theatrical sea-
son for five years, the royalties provided
for are adapted only to regular stage pres-
entation, and the play is to be presented
in first-class theaters with a competent com-
pany, and with a designated actress in the
title role, there being stipulations against
alterations, eliminations, or additions, knd
Uiat the rehearsals and production of
the play shall be under the direction of the
author, and a further provision that the
play may be released for stock if it fails in
New York city and on the road, or in case
the net profits fall below a stipulated
amount.
[For matters as to copyright, see Copyright,
in Digest Sup. Ct. IDOs.]
Copyright — license — implied covenant
of licensor — destruction of licensee's
estate.
3. There is implied a negative covenant
on the part of the lessor of the right to use
a copyright not to use the ungranted por-
tion of the copyright estate to the detri-
ment, if not destruction, of the licensee's
estate.
[Matters as to copyright, see Copyright, in Di-
gest Sup. Ct. 1908.]
Note. — Copyright license as including
moving-picture rights.
Whether or not the grant of the right
to use a copyrighted play or book gives
moving-picture rights depends upon the
wording of the contract granting the
right.
Thus, a grant of the "exclusive right
of producing such dramatic version on
the stage" was held in Harper Bros. v.
Klaw, 232 Fed. 609, not to give moving-
picture rights.
And in Klein v. Beach, 161 C. C. A.
282, 239 Fed. lOjS, a grant of the "sole
and exclusive right to dramatize the
590
said book for presentation on the stajre"
did not confer motion-picture rights.
These two cases, it will be seen, sup-
port Manners v. Mobosco, which had
under consideration an analogous con-
tract.
On the other hand, an exclusive li-
cense to "produce" a play carries with
it the right of production of motion pic-
tures thereof. Lipzin v. Gordin, 166 N.
Y. Supp. 792.
And the purchaser from the writer of
the exclusive right to "produce or have
produced'' a certain play was held in
Frohman v. Fitch, 164 App. Div. 231,
252 r. s.
1910.
MANNERS V. MOROSCO.
Injunction — a^iiist infringement of
copyright — condition,
4. Injunctive relief to the owner of the
copyright in a play against the \mau-
thorized representation of such play hy his
licensee in moving pictures will only be
granted upon condition that the former
shall also abstain from presenting or au-
thorizing tlie representation of the play in
moving pictures during the life of the
license agreement within the territorial
limits therein stated.
[For other cases, see Injunction, II. b, In Di-
gest Sup. Ct. 1908.]
[No. 370.]
Argued March 2, 1920. Decided March 22,
1920.
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, dismissing the bill in a suit to
enjoin the representation of a copyright-
ed play in moving pictures by the li-
censee of the right to produce the play.
Reversed. Injunction to issue upon con-
dition that plaintiff shall neither repre-
sent nor authorize the representation
of the play in motion pictures while the
license agreement remains in force.
See same case below, 169 C. C. A. 497,
258 Fed. 557.
The facts are stated in the opinion.
Mr. David Gerber argued the cause,
and, with Mr. William J. Hughes, filed
a brief for i>etitioner:
The contract is not a sale of the play,
nor an assignment, but a license only,
circumscribed by terms, conditions, and
limitations.
Keap v. Hartley, L. R. 42 Ch. Div.
461, 58 L. J. Ch. N. S. 790, 61 L. T. N.
S. 538, 38 Week. Bep. 136; London
Printing & Pub. Alliance v. Cox, 7
Times L. R. 738, [1891] 3 Ch. 291, 60
L. J. Ch. N. S. 707, 66 L. T. N. S. 60;
Neilson v. Homiman, 26 Times L, R.
188; Stevens v. Benning, 1 Kay & J.
168, 69 Eng. Reprint, 414; Tuck v.
Canton, 51 L. J. Q. B. N. S. 365.
Whatever was not expressly or by
necessary implication granted was re-
served by and remained in the petition-
er, and respondent's rights were limited
to tfie restrictions of the license.
Lucas V. Cooke, L. R. 13 Ch. Div. 872,
42 L. T. N. S. 180, 28 Week. Rep. 439;
Heap V, Hartley, supra.
A company of actors, engaged to
travel from city to city for a theatrical
season, understand their employment to
cover the period of the accepted season.
Mcintosh V. Miner, 37 App. Dir. 483,
55 N. Y. Supp. 1074.
There is no theatrical season in con-
nection with a photoplay performance.
Law of Motion Picture and the
Theater, p. 119.
The contract contains provisions as
to royalties and their computation, con-
fessedly incapable of application to any
method of producing photoplays.
Harper Bros. v. Klaw, 232 Fed. 609.
How can a provision that there shall
be no eliminations be applied to a per-
formance that eliminates every word of
the dialogue?
Century Diet. p. 5384; 24 Enc. Britan-
nica, 11th ed. p; 306, "Scene ;" Universal
Film Mfg. Co. V. Copperman, 134 C. C.
A. 305, 218 Fed. 578; Photo Drama
Motion Picture Co. v. Social Uplift Film
Corp. 213 Fed. 377; New Fiction Pub.
Co. V. Star Co. 220 Fed. 995; London v.
Biograph Co. 145 C. C. A, 582, 231 Fed.
149 N. Y. Supp. 633, to be entitled to an
injunction enjoining and restraining the
writer from producing the play by
means of motion pictures, and this al-
though neither party to the contract, at
the time the contract was entered into,
may have contemplated production by
lAeans of motion pictures, such pic-
tures not then being common.
In Harper Bros. v. Klaw, 232 Fed.
609, it was held that while the exclusive
right of producing on the stage did not
give 'to the grantee any motion-picture
rights, yet such a grant did raise by im-
plication a negative covenant against
destroying the effect of such a grant by
a motion picture. And Manners v.
MoROSOO, it will be observed, takes the
same view.
64 L. ed.
In Klein v. Beacli, 151 C. C. A. 282,
239 Fed. 108, on the other hand, it was
held that a contract entered into long
after motion pictures had become com-
mon did not, by implication, raise a neg-
ative covenant against destroying the
effect of such a contract by moving pic-
tures. The court pointed out that in
Harper Bros. v. Klaw, the contract was
entered into in 1899, when motion pic-
tures were not conmion, and the distinc-
tion between them and the stage proper
had not become well fixed, and stated
that there was no basis for an implied
negative covenant in H grant made long
after motion pictures had become com-
mon, because the situation was not
changed since the contract was made, su
as to create an unexpected situation.
591
SUPREME COURT OF TflE UNITED STATES.
Oct.
697; Klein v. Bea«h, 151 G. C. A. 282,
239 Fed. 110.
Tke word **represent," used in the con-
tract, cannot be construed as referring
to a. motion picture, as distinct from the
play.
Murray v. Elliston, 5 Bam. & Aid.
667, 106 Eng. Reprint, 1331, 1 Dowl. &
R. 299, 24 Revised Rep. 519, 9 Eng. Rul.
Gas. 868; Duck v. Bates, L. R. 13 Q. B.
Div. 843, 53 L. J. Q. B. N. S. 338, 50
L. T. N. 8. 778, 32 Week. Rep. 813, 48
J. P. 501; Chappell v. Boosey, L. B. 21
Gh. Div. 232, 51 L. J. Gh. N. S. 625, 46
L. T. N. S. 854, 30 Week. Rep. 733, 9
Eng. Rul. Gas. 890.
The fact that petitioner retained the
motion-picture rights is not inconsistent
with a license limited to a representation
of the play as a spoken drama.
Society Des Films Menchen v. Vita-
graph Go. of America, 163 G. G. A. 414,
251 Fed. 258; Photo-Drama Motion Pic-
ture Go. V. Social Uplift Film Gorp. 137
G. G. A. 42, 220 Fed. 449.
In England, a contract covering the
acting rights is held not to include
cinema rights, nor do the words
"English performances" embrace them.
Ganthony v. G. R. J. Syndicate, "The
Author," vol. 26, No. 1, Oct. 1, 1915, p.
17; Wyndham v. A. E. Huebsch & Go.
"The Author," vol. 26, No. 1, of Oct.
1, 1915, p. 16.
The license was not the grant of a
right in perpetuity, as was held by the
coui*t below.
Grant v. Maddox, 15 Mees. & W. 737,
153 Eng. Reprint, 1048, 16 L. J. Exch.
N. S. 227.
Mr. Charles H. TutUe argued the
cause, and, with Mr. William Klein, filed
a brief for respondent:
The contract) as modified, was not an
agreement for personal services or for a
naked license, but was a contract of
bargain and sale, whereby property was
granted and conveyed.
Frohman v. Fitch, 164 App. Div. 233,
149 X. Y. Supp. 633.
Where property is conveyed, the con-
veyance is presumed to be absolute, and
not revocable at will, or for a tempo-
rary period, in the absence of clear
words of limitation.
Western U. Teleg. Go. v. Pennsylvania
Go. 68 LJtA. 968, 64 G. G. A. 285, 129
Fed. 867.
The limitation of time expressed in
paragraph 5 excluded the implication of
any other limitation of time.
Norfolk & N. B. Hosiery Go. v.
Arnold, 64 N. J. L. 254, 45 Atl. 608;
Hart V. Gort, 83 Misc. 46, 144 N. Y.
Supp. 627; Gree v. Bristol, 12 Misc. 1,
33 N. Y. Supp. 19.
Quite apart from the special features
and circumstances, the absolute charac-
ter of this grant, as not limited to ^any
fixed period of years, would follow as a
matter of law.
6 R. G. L. § 281; Western U. Teleg.
Go. V. Pennsylvania Go. 68 L.R.A. 968,
64 G. G. A. 285, 129 Fed. 861; McKell v.
Ghesapeake & 0. R. Go. 99 G. G. A. 109,
175 Fed. 329, 20 Ann. Gas. 1097; White
V. Hoyt, 73 'N. Y. 511; Duryea v. New
York, 62 N. Y. 597.
The granting clause of the contract cf
January 19, 1912, conveyed all the pro-
duction rights. .
Frohman v. Fitch, 164 App. Div. 231,
149 N. Y. Supp. 633; Kalem Go. v.
Harper Bros. 222 U. S. 55, 56 L. ed. 92,
32 Sup. Gt. Rep. 20, Ann. Gas. 1913A,
1285; Photo Drama Motion Picture Go.
V. Social Uplift Film Gorp. 213 Fed.
374, 137 G. G. A. 42, 220 Fed. 448; Daly
V. Palmer, 6 Blatchf . 256, Fed. Gas. No.
3,552.
The expression of certain reservations
in favor of the plaintiff was an exclusion
of all others.
13 G. J. 539.
The courts will not easily accept a
construction which would permit the
plaintiff to produce motion pictures in
competition with the defendant's pro-
duction on the stage.
Harper Bros. v. Klaw, 232 Fed. 609;
Frohman v. Fitch, 164 App. Div. 283,
149 N. Y. Supp. 633; Photo Drama Mo-
tion Picture Co. v. Social Uplift Film
Gorp. 213 Fed. 377; Fleischman v. Fur-
guson, 223 N. Y. 241, 119 N. E. 400.
The unbroken tenor of judicial deci-
sions interpreting similar agreepients
establishes incontestably that the
motion-picture rights were included.
Frohman v. Fitch, 164 App. Div. 231,
149 N. Y. Supp. 633; Klein y. Beach,
151 G. G. A. 282, 239 Fed. 109, 232 Fed.
246; Harper Bros. v. Klaw, 232 Fed.
612; Lipzin v. Gordin, 166 N. Y. Supp.
792; Hart v. Fox, 166 N. Y. Supp. 793;
Photo-Drama Motion Picture Go. v.
Social Uplift Film Gorp. 137 C. G. A. 42,
220 Fed. 448; Kalem Co. v. Harper Bros.
222 U. S. 55, 63, 56 L. ed. 92, 96, 32 Sup.
Gt Rep. 20y Ann. Gas. 1913A, 1285;
Klaw V. General Film Go. 154 N. Y.
Supp. 988; Universal Film Mfg. Go. v.
Gopperman, 212 Fed. 301. 134 G. G. A.
305, '218 Fed. 577; Liebler v. Bobbs-
Merrill Go. 162 App. Div. 900, 146 N. Y.
Supp. 1097; Drone, Cop>-right, p. 588;
Brackett, Theatrical I^w, p. 61; Lee v.
253 r. s.
1919.
MANNERS V. MOROSCO.
323-325
Simpson, 3 C. B. S8I, 136 Bug. Reprint,
353, 4 Dowl. & L. 666, 16 L. J. C. P. N. S.
106, U Jut. 127.
The fact that certain provisions of
the contract have to do with production
in spoken form in no wise limits the
grant.
Dickson v. Wildman, 105 C. C. A. 61g,
183 Fed. 398; 17 Am. & Eng. Enc. Law,
2d ed. 8; Stuart v. Easton, 170 U. S. 383,
:i93, 401, 42 L. ed. 1078, 1081, 1084, 18
Sup. Ct Rep. 650; Mott v. Richtmyer, 57
N. Y. 63; Re Main St. 216 N. Y. 75, 110
X. E. 176; Holmes v. Hubbard, 60 N. Y.
186.
Nothing in the provision forbidding
alterations, eliminations, or additions to
be made in the play without the ap-
proval of the author, prevents motion-
picture productions.
Kalem Co. v. EUurper Bros. 222 U. S.
55, 61, 56 L. ed. 92, 95, 32 Sup. Ct. Rep.
20, Ann. Cas. 1913A, 1285; United
States V. Motion Picture Patents Co.
2*25 Fed. 803, 247 U. S. 524, 62 L. ed.
1248, 38 Sup. Ct. Rep. 578; Parton v.
Prang, 3 Cliff. 537, Fed. Cas. No. 10,784.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a suit by the author of a play
called "Peg 0' My Heart/' to restrain
the defendant, Morosco, fram represent-
ing the play in motion pictures, in vio-
lation of the plaintiff's copyright; and
also, although this is a subsidiary ques-
tion, from producing the play at all. The
defendant justifies under an agreement
of Jannary 19, 1912^ and a supplemental
agreement of July 20, 1914, both set
forth in the bill. The grounds upon
which the right to produce the play in
any way was denied was that the agree-
ment gave rights only for five years.
This construction was rejected by the
district court and the circuit court of
appeals. Both courts held also that the
agreement conveyed the right to repre-
sent the play in moving pictures, and on
that ground dismissed the bill. 254 Fed.
737; 169 C. C. A. 497, 258 Fed. 557.
By the first agreement the plaintiff,
party of the first, "does grant" to Mo-
rosco, the party of the second part, "the
sole and exclusive license and liberty to
produce, perform, and represent the said
play in the United States of America
and the Dominion of Canada," subject to
the terms and conditions of the contract.
Morosco [324] agrees "to produce the
play not later than January 1st, 1913,
and to continue the said play for at
least seventy-five performances during
the season of 1913-1914 and for each
64 Tj, ed.
theatrical season thereafter for a
period of five years." He agrees
further to pay specified percentages
on the gross weekly receipts as royal-
ties, and that "if during any one
theatrical year ... said play has not
been produced or presented for seventy-
five performances, then all rights of the
said party of the second part shall cease
and determine and shall inunediately
revert to the said party of the first part."
Morosco further agrees to present the
play in first-class theaters with compe-
tent companies and with Miss Laurette
Taylor (the stage name of the author's
wife) in the title role; the play to have
a production in New York and to be con-
tinued on the road for at least one season
or longer if considered advisable by both
parties. No alterations, eliminations, or
additions are to be made without the
approval of the author, and the rehears-
als and produetion of the play are to be
under his direction. The author to have
the right to print and publish the play,
but not within six months after* the pro-
! duction of the play in New York city
without consent. Morosco is not to let
or transfer his rights without the au-
thor's consent. "Should the play fail in
New Yori^ eity and on the road, it shall
be released for stock;" i e., let to stock
companies, with an equal division of
royalties between plaintiff and defend-
ant. By an addendum, after Miss Taylor
should have finished her season, her suc-
cessor in the role of "Peg" for any sub-
sequent tours shall be mutually agreeable
to both parties. The contract is declared
binding upon the parties, "their heirs,
executors, assigns, administrators, and
successors."
The second agreement, in order to ad-
just controversies and to modify the first,
authorized Morosco "as long as this con-
tract is in force" "to ppduce, perform,
and represent" the play with or in as
many companies as he saw fit, [325]
without engaging Laurette Taylor, and
without co^nlti]^ the plaintiff as to the
east, rehearsals, or production of the
play. Moroseo also was authorized to let
or sell any of his rights under the con-
tracts, but he was not to be released from
his personal liability to pay the royalties
as specified in the contracts. The play
might be released for stock whenever the
net profits realized from all the eompa^
nies producing the play ^ould be less than
$2,090, and then the royalties received
from the stock theaters were to be di-
vided equally. For four years from date
neither party, without consent of the
other, was to produce or give leave to
^S 598
325-327
SUPREME COURT OF THE UNITED STATES.
Oct. Tebu,
produce the play by moving pictures^ and
after that the rights of the parties were
to be determined by and under the origi-
nal agreement as if the supplemental
agreement had not been made.
As to the duration of the defendant's
rights, we agree with the courts below.
We perceive no ground for converting
the defendant's undertaking to continue
the play for seventy-five performances
during the season of 1913-1914, and for
each season thereafter for five years, in-
to a limit of the plaintiff's grant of
rights. As was said in the district court,
it is a statement of the least that defend-
ant was. to do, not of the most that he
was to have. The plaintiff was secured
sufficiently by the forfeiture in case the
play should not have been produced for
seventy-five performances. The provi-
sions in both contracts as to the release
for stock are somewhat of an additional
indication that it was expected that the
arrangement was to last as long as the
public liked the play well' enough to make
it pay, provided the defendant kept his
half of the bargain performed.
On the question principally argued we
are of opinion that the majority below
was wrong. The thing gfranted was "the
sole and exclusive license and liberty to
produce, perform, and represent" the
play within the territorial limits stated,
subject to the other terms of the con-
tract. [326] It may Jbe assumed that
those words might carry the right to
represent the play in moving pictures if
the other terms pointed that way, but to
our mind they are inconsistent with any
such intent. We need not discuss the
abstract question whether, in view of the
fact that such a mode of representation
was familiar, it was to be expected that
it should be mentioned if it was to be
granted, or should be excluded if it was
to be denied. Every detail shows that
a representation by spoken drama alone
is provided for. The play is to be con-
tinued for seventy-five performances for
the theatrical seasohs named. This ap-
plies only to the regular stage. The roy-
alties are adapted only to that mode of
presentation. Harper Bros. v. Klaw, 232
Fed. 609, 612. The play is to be present-
ed in first-class theaters with a compe-
tent company and with Miss Laurette
Taylor in the title role, which, of course,
does not mean in moving pictures. The
stipulations against alterations, eUmina-
tions, or additions, and that the rehearsals
and production of the play shall be under
the direction of the author, denote the
same thing, and clearly indicate that no
other form of production is contem-
594
plated. The residuary clause, so to speak,
by which the play is to drop to stock
companies, shows the lowest point to
which the author was willing to let it go.
The courts below based their reason-
ing upon the impossibility of supposing
that the author reserved the right to de-
stroy the value of the right granted, how-
ever that right may be characterised, by
retaining power to set up the same play
in motion pictures a few doors off with
a much smaller admission fee. We agree
with the premise, but not with the con-
clusion. The implied assumption of the
contract seems to us to be that the play
was to be produced only as a spoken
drama, with respect for the author's nat-
ural susceptibility concerning a strict
adhesion to the text. We need not am-
plify the argument presented below
against the reservation of the right in
[327] question. As was said by Judge
Hough in a similar case: ''There is im-
plied a negative covenant on the part of
the . . . [grantor] not to use the un-
granted portion of the copyright estate
to the detriment, if not destruction, of
the licensees' estate. Admittedly if
Harper Brothers (or Klaw and Erlanger,
for the matter of that) permitted photo
plays of Ben Hur to infest the country,
the market for the spoken play would be
greatly impaired, if not destroyed."
Harper Bros. v. Klaw, 232 Fed. 609, 613.
The result is that the plaintiff is entitled
to an injunction against the representa-
tion of the play in moving pictures, but
upon the terms that the plaintiff also
shall abstain from presenting or author-
izing the presentation of the play in that
form in Canada or the United States.
Decree reversed. Injunction to issue
upon the condition that the plaintiff shall
neither represent nor authorize the rep-
resentation of the play "Peg 0' My
Heart" in moving pictures whild the con-
tract with the defendant remaikis in
force.
Mr. Justice Olarke, dissenting:
The decision of this case involves the
construction of the written contract of
January 19, 1912, as modified by that of
July 20, 1914, and, centering its atten-
tion upon the claim of the defendant
to moving picture rights, the court dis-
misses in a single paragraph provisions
in these contracts which seem to me to
so clearly limit the rights of the defend-
ant to a term expiring possibly in May,
1918, but certainly not later than May,
1919, that I cannot concur in the conclu-
sion arrived at by my associates.
3S2 U. S.
1919.
MANNERS V. MOROSCX).
327-330
The court says:
^^As to the daration of the defendant's
rights, we agree with the courts below.
We perceive no ground for converting
the defendant's undertaking to continue
the play for seventy-five performances
during the season of 1913-1914, [328]
and for each season thereafter for five
years, into a limit of the plaintiff's
grant of rights. As was said in the dis-
trict court, it is a statement of the least
that defendant was to do, not of the
most that he was to have."
This expression that the third para-
graph of the contract of January 19,
1912, '^is a statement of the least that
defendant was to do, not of the most
that he was to have," is repeated in the
opinion of each of the three courts as the
sufficient reason for concluding, as the
district court said, that the contract
gave to the defendant ''all the rights
mentioned for all time/' It is not the
first time that a catchy phrase has di-
verted attention from less picturesque
realities.
My reasons for concluding that the
rights of the defendant were limited, as
the court says his obligations were lim-
ited, to a term expiring not later than
the close of the theatrical season of 1918-
1919, may be briefly stated.
The grant which it is concluded gave
the defendant ''the exclusive license and
liberty to produce, perform, and repre-
sent" the play involved "for all time" is
in these words :
"First. The party of the first part
hereby grants ... to the party of
the second part, subject to the terms,
conditions, and limitations hereinafter
expressed, the sole and exclusive license
and liberty to produce, perform, and rep-
resent the said play in the United States"
and Canada.
In terms this is a "license," and in
terms also it is subject to "conditions
and limitations" to follow in the con-
tract,— which are found in the third and
fifth paragraphs.
The third paragraph reads:
"The party of the second part — de-
fendant— agrees to produce the play not
later -than January 1st, 1913, and to con-
tinue said play for at least seventy-five
performances [329] during the season
1913-1914 and for each theatrical sea-
son thereafter for a period of five years."
The fifth paragraph provides that if
the defendant shall fail to produce the
play seventy-five times in any one the-
atrical year, "then all rights of the said
party of the second part (the defendant)
shall cease and determine and shall im-
«4 L. ed.
mediately revert to the said party of the
first part"
This third paragraph expresses the
agreement of the parties as to what the
defendant was to do in consideration of
the grant by the plaintiff in the first
paragraph, and reading it and the fifth
paragraph together, as one, we have the
extreme extent and time limit of the de-
fendant's obligation and the penalty, for-
feiture, is provided for the failure to
perform at any time within that limit.
The court says that the third paragraph
expresses "the least (all) that the de-
fendant was to do," so that his obligation
under the contract ended with the five-
year period, which obviously would be
not later than the close of the theatrical
season of 1918-1919. This being true,
when did the reciprocal obligation of the
plaintiff expire?
That the obligation of the plaintiff
continued "for all time" is apparently
derived wholly from the inference, as
stated by the district court, that the par-
ties, if they had intended otherwise,
"could readily have fixed a time limit in
the first paragraph by the a4idition of
words such as 'for ... years from' or
'until' a stated date."
It is very true that the parties could
have written their contract in a different
form, and certainly with much more pre-
cision of statement, than that in which
they did write it, but it is also true that
in making it in their own way and terms
they granted a general license in the
first paragraph, but made it subject to
the "terms, conditions, and limitations"
thereinafter to be expressed, and that
they then went forward and expressed
in the third paragraph the five-year
limitation as we have seen it. The
[380] court holds that this five-year
limitation applies to the defendant's
obligation to perform, but that it
does not apply ta the plaintiff's license
to produce. I think it" applies to
both. Plainly the parties were un-
dertaking to set down in their con-
tract the mutual obligations which each
intended to assume, — those of the one
in consideration of those of the other.
The author granted the privilege of pro-
ducing the play and the defendant agreed
to produce it for at least seventy-five
performances during each of five years.
After that, the court concludes, the de-
fendant was no longer bound by the con-
tract to do anything which could advan-
tage the plaintiff, and therefore, clearly,
the plaintiff should not continue there-
after under obligation to the defendant,
unless the intention to be so bound is
595
333-336
SUPREME COURT OF THE UNITED STATES.
Oct. Tebii,
Since that tipae operating costs have
risen greatly and rates for laundry work
prevailing [834] in 1913 have become
noncompensatory. Accordingly in Janu-
ary, 1918, the eompany moved the Com-
mission to set aside its order of 1913 on
the ground that the laundry business was
not within the purview of § 8239*, that
the company was not a monopoly within
the meaning of that section, and that
the section was void. The Commission
denied this motion and thereafter the
company established rates higher than
those prevailing in 1913. On account of
this it is now threatened with proceed-
ings for contempt. Since the establish-
ment of these higher rates the company
has been summoned before the Commis-
sion to give information as to the cost
of performing laundry service in Okla-
homa City, and information in general to
determine what may be reasonable rates
for laundry service in that city. Upon
these allegations a preliminary injunc-
tion was sought below to restrain the
Commission from* entertaining com-
plaints for violation of its order fixing
rates, and to enjoin it from proceeding
with the investigation regarding the cost
of the service.
The -scope of § 8235 and the prescribed
course of proceedings thereunder, as con-
strued by the supreme court of the state
(Harriss-Irby Cotton Co. v. State, 31
Okla. 603, 122 Pee. 163; Shawnee Gas
& E. Co. v. State, 31 Okla. 505, 122 Pac.
222; Oklahoma Gin Co. v. Love, — Okla.
— , P.U.R.1916C, 22, 158 Pac. 629), in
connection with other legislation (§§
1192 to 1207 of the Revised Code of
1910), and provisions of the state Con-
stitution (article 9, §§ 18 to 23), are,
so far as here material, these: When-
ever any business, by reason of its na-
ture, extent, or the exercise of a virtual
monopoly therein, is such that the pub-
lic must use the same or its services, it
is deemed a public business, and as such
is subject to the duty to render its serv-
ices upon reasonable terms without
discrimination. If any public business
violates such duty the Corporation Com-
mission has power to regulate its rates
and practices. Disobedience to an order
establishing rates may be punished as a
contempt, and the Commission has pow-
er, [335] sitting as a court, to impose a
penalty therefor not exceeding $500 a
day. Each day's continuance of failure or
refusal to obey the order constitutes a
separate offense. The original order
may not be made nor any penalty im-
posed except upon due notice and hear-
ing. Ko court of the state, except the
.%08
supreme court, by way of appeal, may
review, correct, or annul any action of
the Commission within the scope of its
authority, or suspend the execution
thereof; and the supreme court may not
review an order fixing rates by direct
appeal from such order. But in the pro-
ceedings for contempt the validity of the
original order may be assailed; and fo^
that purpose, among others, new evi-
dence may be introduced. When a pen-
alty for failure to obey an order has
been imposed, an appeal lies to the su-
preme court. On this appeal the validity
of the original order ma}^ be reviewed;
the appeal is allowed as of right upon
filing a bond with sureties in double the
amount of the fine imposed ; the filing of
the bond suspends the fine; and the pe-
riod of suspension may not be computed
against a concern in fixing the amount
of liability for fines.
The order of the Commission prohibit-
ing the company from charging, without
its permission, rates higher than those
prevailing in 1913, in effect prescribed
maximum rates for the service. It was,
therefore, a legislative order; and under
the 14th Amendment plaintiff was en-
titled to an opportunity for a review ii\
the courts of its contention that the rates
were not compensatory. Chicago, M. &
St. P. R. Co. v. Minnesota, 134 U. S. 418,
456-458, 33 L, ed. 970, 980, 981, 3 In-
ters. Com. Rep. 209, 10 Sup. Ct. Rep.
462, 702; Ex parte Young, 209 U. S. 123,
165, 166, 52 L. ed. 714, 731, 732, 13
L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441,
14 Ann. Cas. 764. The Constitution of
the state prohibited any of its courts
from reviewing any action of the Com-
mission within its authority except by
way of appeal to the supreme court (art.
9, § 20) ; and the supreme court had
construed the Constitution and appli-
cable provisions of the statutes as not
permitting a direct appeal from [336]
orders fixing rates. Harriss-Irbv Cotton
Co. V. State, 31 Okla. 603, 122 Pac. 163.
On behalf of the Commission it was urped
at the oral argument that a judicial re-
view of the order fixing rates might have
been had also by writ of mandamus or of
prohibition issuing out of the supreme
court of the state. But, in view of the
provision of the state Constitution just
referred to, it must be assumed, in the
absence of a decision of a state court to
the contrary, that neither remedy, even
if otherwise available, could be used to
review an order alleged to be void be-
cause confiscatory. The proviso "that
the writs of mandamus and prohibition
shall lie from the supreme court to the
^S2 17. S.
lUlO.
OKLAHOMA OPERATING CO. v. LOVE.
336-038
Commission in all cases where such wnu,
respectively, would lie to any inferior
court or officer,'' -appears to have no ap-
plication here. The challenge of a pre-
scribed rate as being confiscatory raises
a question not as to the scope of the
Commission's authority, but of the cor-
rectness of the exercise of its judgment.
Compare Hirsch v. Twyford, 40 Okla.
220, 230, 139 Pac. 313.
So it appears that ^he only judicial
review of an order fixing rates possible
under the laws of the state was that
arising in proceedings to punish for con-
tempt. The Constitution endows the
Commission with the powers of a court
to enforce its order by such proceedings.
Art. 9, §§ 18, 19. By boldly violating an
order a party against whom it was direct-
ed may provoke a complaint; and if the
complaint results in a citation to show
cause why he should not be punished for
contempt, he may justify before the
Commission by showing that the order
violated was invalid, unjust, or unrea-
sonable. If he fails to satisfy the Com-
mission that it erred in this respect, a
judicial review is opened to him by way
of appeal on the whole record to the
supreme court. But the penalties which
may possibly be imposed, if he pursues
this course without success, are such as
might well deter even the boldest and
most confident. The penalty for refusal to
[337] obey an order may be $500; and
each day's continuance of the refusal aft-
er service of the order, it is declared,
'^shall be a separate offense." The pen-
alty may apparently be imposed for each
instance of violation of the order. In
Oklahoma Qin Co. v. Oklahoma [252 U.
S. 339, post, 600, 40 Sup. Ct. Rep. 341],
decided this day, it appears that the full
penalty of $500, with the provision for
the like penalty for each subsequent day's
violation of the order, was imposed in
each of three complaints there involved,
although they were merely different in-
stances of charges in excess of a single
prescribed rate. Obviously a judicial
review beset by such deterrents does not
satisfy the constitutional requirements,
even if otherwise adequate, and there-
fore the provisions of the acts relating
to the enforcement of the rates by penal-
ties are unconstitutional without regard
to the question of the insufficiency of
those rates. Ex parte Young, 209 U. S.
123, 147, 52 L. ed. 714, 723, 13 L.R.A.
(N. S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann.
Cas. 764; Missouri P. R. Co. v. Tucker,
230 U. S. 340, 349, 57 L. ed. 1507, 1510,
33 Sup. Ct. Rep. 961; Wadlev Southern
R. Co.* V. Georgia, 235 U. S. 651, 662, 59
64 li. ed.
L. ed. 405, 411, 'P.U.R.1915A, 106, 35
Sup. Ct. Rep. 214.
The plaintiff is entitled to a temporary
injunction restraining the Corporation
Commission from enforcing the penal-
ties* Since this suit was commenced, the
legislature has provided by chap. 52, §
3, of the Laws of 1919 (Okla. Sess. Laws
1919, p. 87) that in actions arising be-
fore the Commission under § 8235 thei^e
shall be the same right of direct appeal
to the supreme court of the state as had
theretofore existed in the case of trans-
portation and transmission companies
under art. 9, § 20, of the Constitution.
But as plaintiff was obliged to resort to
a Federal court of equity for relief, it
ought to retain jurisdiction of the cause
in order to make that relief as full and
complete as the circumstances of the
case and the nature of the proofs may
require. The suit should, therefore, pro-
ceed for the purpose of determining
whether the maximum rates fixed by the
Commission are, under present condi-
tions, confiscatory. If they are found to
be so, a permanent injunction should is-
sue to restrain their [33S] enforcement
either by means of penalties or other-
wise, as through an assertion by custom-
ers of alleged rights arising out of the
Commission's orders. Missouri v. Chi-
cago, B. & Q. R. Co. 241 U: S. 533, 538, 60
L. ed. 1148, 1154, 36 Sup. Ct. Rep. 715. If,
upon final hearing, the maximum rates
fixed should be found not to be confisca-
tory, a permanent injunction should,
nevertheless, issue to restrain enforce-
ment of penalties accrued pendente lite,
provided that it also be found that the
plaintiff had reasonable ground to con-
test them as being ^confiscatory.
It does not follow that the Commission
need be restrained from proceeding with
an investigation *of plaintiff's rates and
practices, so long as its findings and con-
clusions are subjected to the review of
the district court herein. Indeed, such
investigation and the results of it might
with appropriateness be made a part of
the final proofs in the cause.*
These conclusions require that the de-
cree of the District Court be reversed
and that the case be remanded for fur-
ther proceedings in conformity with this
opinion.
Reversed.
2 In Ex parte Young, 209 U. S. 323, 133,
52 L. ed. 714, 718, 13 L.R.A.(N.S.) 032. 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764, the
district court appears to have conftidered
whether the rates were reasonable although
the penal features of the act were declared
void. iMissouri P. R. Co. v. Tucker, 230 U.
599
333-330
SUPREME COURT OF THE UNITED STATES.
Oct. T£BH,
Since that tune operating costs have
risen greatly and rates for laundry work
prevailing [384] in 1913 have become
noncompensatory. Accordingly in Janu-
ary, 1918, the company moved the Com-
mission to set aside its order of 1913 on
the ground that the laundry business was
not within the purview of § 8239", that
the company was not a monopoly within
the meaning of that section, and that
the section was void. The Commission
denied this motion and thereafter the
company established rates higher than
those prevailing in 1913. On account of
this it is now threatened with proceed-
ings for contempt. Since the establish-
ment of these higher rates the company
has been summoned before the Commis-
sion to give information as to the cost
of performing laundry service in Okla-
homa City, and information in general to
determine what may be reasonable rates
for laundry service in that city. Upon
these allegations a preliminary injunc-
tion was sought below to restrain the
Commission from* entertaining com-
plaints for violation of its order fixing
rates, and to enjoin it from proceeding
with the investigation regarding the cost
of the service.
The -scope of § 8235 and the prescribed
course of proceedings thereunder, as con-
strued by the supreme court of the state
(Harriss-Irby Cotton Co. v. State, 31
Okla. 603, 122 Pac. 163; Shawnee Gas
& E. Co. v. State, 31 Okla. 505, 122 Pac.
222 ; Oklahoma Gin Co. v. Love, — Okla.
— , P.U.R.1916C, 22, 158 Pac. 629), in
connection with other legislation (§§
1192 to 1207 of the Revised Code of
1910), and provisions of the state Con-
stitution (article 9, §§ 18 to 23), are,
so far as here material, these: When-
ever any business, by reason of its na-
ture, extent, or the exercise of a virtual
monopoly therein, is such that the pub-
lic must use the same or its services, it
is deemed a public business, and as such
is subject to the duty to render its serv-
ices upon reasonable terms without
discrimination. If any public business
violates such duty the Corporation Com-
mission has power to regulate its rates
and practices. Disobedience to an order
establishing rates may be punished as a
contempt, and the Commission has pow-
er, [335] sitting as a court, to impose a
penalty therefor not exceeding $500 a
day. Each day's continuance of failure or
refusal to obey the order constitutes a
separate offense. The original order
may not be made nor any penalty im-
posed except upon due notice and hear-
in>r. No court of the state, except the
508
supreme court, by way of appeal, may
review, correct, or annul any action of
the Commission within the scope of its
authority, or suspend the execution
thereof; and the supreme court may not
review an order fixing rates by direct
appeal from such order. But in the pro-
ceedings for contempt the validity of the
original order may be assailed; and for
that purpose, among others, new evi-
dence may be introduced. When a pen-
alty for failure to obey an order has
been imposed, an appeal lies to the su-
preme court. On this appeal the validity
of the original order ma}' be reviewed;
the appeal is allowed as of right upon
filing a bond with sureties in double the
amount of the fine imposed ; the filing of
the bond su^ends the fine; and the pe-
riod of suspension may not be computed
against a concern in fixing the amount
of liability for fines.
The order of the Commission prohibit-
ing the company from charging, without
its permission, rates higher than those
prevailing in 1913, in effect prescribed
maximum rates for the service. It was,
therefore, a legislative order; and under
the 14th Amendment plaintiff was en-
titled to an opportunity for a review in
the courts of its contention that the rates
were not compensatory. Chicago, M. &
St. P. R. Co. V. Minnesota, 134 U. S. 418,
456-458, 33 L. ed. 970, 980, 981, 3 In-
ters. Com. Rep. 209, 10 Sup. Ct. Rep.
462, 702; Ex parte Young, 209 U. S. 123,
165, 166, 52 L. ed. 714, 731, 732, 13
L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441,
14 Ann. Cas. 764. The Constitution of
the state prohibited any of its courts
from reviewing any action of the Com-
mission within its authority except by
way of appeal to the supreme court (art.
9, § 20) ; and the supreme court had
construed the Constitution and appli-
cable provisions of the statutes as not
permitting a direct appeal from [336]
orders fixing rates. Harriss-Irbv Cotton
Co. V. State, 31 Okla. 603, 122 Pac. 163.
On behalf of the Commission it was urjred
at the oral argument that a judicial re-
view of the order fixing rates might have
been had also by writ of mandamus or of
prohibition issuing out of the supreme
court of the state. But, in view of the
provision of the state Constitution just
referred to, it must be assumed, in the
absence of a decision of a state court to
the contrary, that neither remedy, even
if otherwise available, could be used to
review an order alleged to be void be-
cause confiscatory. The proviso "that
the writs of mandamus and prohibition
shall lie from the supreme court to the
252 V. S.
1910.
OKLAHOMA OPERATIXG CO. v. LOVE.
836-338
Commission in all cases where such writs,
respectively, would lie to any inferior
court or officer/' appears to have no ap-
plication here. The challenge of a pre-
scribed rate as being confiscatory raises
a question not as to the scope of the
Commission's authority, but of the cor-
rectness of the exercise of its judgment.
Compare Hirseh v. Twyford, 40 Okla.
220, 230, 139 Pac. 313.
So it appears that tjhe only jadioial
review of an order fixing rates possible
under the laws of the state was that
arising in proceedings to punish for eon-
tempt. The Constitution endows the
Commission with the powers of a court
to enforce its order by such proceedings.
Art. 9, §§ 18, 19. By boldly violating an
order a party against whom it was direct-
ed may provoke a complaint; and if the
complaint results in a citation to show
cause why he should not be punished for
contempt, he may justify before the
Commission by showing that the order
violated was invalid, unjust, or unrea-
sonable. If he fails to satisfy the Com-
mission that it erred in this respect, a
judicial review is opened to him by way
of appeal on the whole record to the
supreme court. But the penalties which
may possibly be imposed, if he pursues
this course without success, are such as
might well deter even the boldest and
most confident. The ]>enalty for refusal to
[337] obey an order may be $500; and
each day's continuance of the refusal aft-
er service of the order, it is declared,
''shall be a separate offense." The pen-
alty may apparently be imposed for each
instance of violation of the order. In
Oklahoma Gin Co. v. Oklahoma [252 U.
S. 339, post, 600, 40 Sup. Ct. Rep. 341],
decided this day, it appears that the full
penalty of $500, with the provision for
the like penalty for each subsequent day's
violation of the order, was imposed in
each of three complaints there involved,
although they were merely different in-
stances of charges in excess of a single
prescribed rate. Obviously a judicial
review beset by such deterrents does not
satisfy the constitutional requirements,
even if otherwise adequate, and there-
fore the provisions of the acts relating
to the enforcement of the rates by penal-
ties are unconstitutional without regard
to the question of the insufficiency of
those rates. Ex parte Young, 209 IJ. S.
123, 147, 52 L. ed. 714, 723, 13 L.R.A.
(N. S.) 932, 28 Sup. Ct. Rep. 441, 14 Ann.
Cas. 764; Missouri P. R. Co. v. Tucker,
230 U. S. 340, 349, 57 L. ed. 1507, 1510,
33 Sup. Ct. Rep. 961; Wadlev Southern
R. Co.* V. Georgia, 235 U. S. 651, 662, 59
64 li. ed.
IL. ed. 405, 411, 'P.U.R.1915A, 106, 35
Sup. Ct. Rep. 214.
The plaintiff is entitled to a temporary
injunction restraining the Corporation
Commission from enforcing the penal-
ties. Since this suit was commenced, the
legislature has provided by chap. 52, §
3, of the Laws of 1919 (Okia. Sess. Laws
1919, p. 87) that in actions arising be-
fore the Commission under § 8235 there
shall be the same right of direct appeal
to the supreme court of the state as had
theretofore existed in the ease of trans-
portation and transmission companies
under art. 9, § 20, of the Constitution.
But as plaintiff was obliged to resort to
a Federal court of equity for relief, it
ought to retain jurisdiction of the cause
in order to make that relief as full and
complete as the circumstances of the
case and the nature of the proofs may
require. The suit should, therefore, pro-
ceed for the purpose of determining
whether the maximum rates fixed by the
Commission are, under present condi-
tions, confiscatory. If they are found to
be so, a permanent injunction should is-
sue to restrain their [33S] enforcement
either by means of penalties or other-
wise, as through an assertion by custom-
ers of alleged rights arising out of the
Commission's orders. Missouri v. Chi-
cago, B. & Q. R. Co. 241 U.* S. 533, 538, 60
L. ed. 1148, 1154, 36 Sup. Ct. Rep. 715. If,
upon final hearing, the maximum rates
fixed should be found not to be confisca-
tory, a permanent injunction should,
nevertheless, issue to restrain enforce-
ment of penalties accrued pendente lite,
provided that it also be found that the
plaintiff had reasonable ground to con-
test them as being confiscatory.
It does not follow that the Commission
need be restrained from proceeding with
an investigation "of plaintiff's rates and
practices, so long as its findings and con-
clusions are subjected to the review of
the district court herein. Indeed, such
investigation and the results of it might
with appropriateness be made a part of
the final proofs in the cause.*
These conclusions require that the de-
cree of the District Court be reversed
and that the case be remanded for fur-
ther proceedings in conformity with this
opinion.
Reversed.
2 In Ex parte Young. 209 U. S. 323, 133,
52 L. ed. 714, 718, 13 L.R.A.(N.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764, the
district court appears to have considered
whether the rates were reasonable although
the penal features of the act were declared
void. :Mi9Souri P. R. Co. v. Tucker, 230 U.
599
338, 339
SUPREME COURT OF THE UNITED STATES.
Oct. Tebu,
S. 340, 57 L. ed. 1507,' 33 Sup. Ct. Rep.
961. was an aetion for the penalty; and the
question here raised was not involved. That
it is the penaltv provision, and not the
rate provision, which is void, af^ars from
the cases in which the validity of statutes
was sustained because the objectionable
penalty provisions were severable and there
was no attempt to enforce the penalties.
Willcox V. Consolidated Gas Co. 212 U. S.
19. 53. 53 L. ed. 382, 400, 48 L.R.A.(N.S.)
1134, .29 Sup. Ct. Rep. 192, 15 Ann. Cas.
1034: United States ex rel. Atty. Gen.
V. Delaware A H. Co. 213 U. S. 366,
417, 53 L. ed. 836, 852, 29 Sup. Ct.
Rep. 527; Grenada liunber Co. v. Missis-
sippi, 217 U. S. 433, 443, 54 L. ed. 826,
831. 30 Sup. Ct. Rep. 635; Atchison, T. &
S. F. R. Co. V. O'Connor, 223 U. S. 280, 286,
56 L. ed. 436. 438, 32 Sup. Ct. Rep. 216,
Ann. Cas. 1913C, 1050; Wadley Southern
R. Co. V. Georgia, 235 U. S. 651, 662, 59
L. ed. 405, 411, P.U.R.1915A, 106, 35 Sup.
Ct. Rep. 214.
[3391 OKLAHOMA GIN COMPANY, Plff.
. in Err.,
V.
STATE OF OKLAHOMA.
(See S. C. Reporter's ed. 3^9, 340.)
This case is governed by the decision in
Oklahoma Operating Company v. Love,
ante, 596.
[No. 82.]
Argued January 23 and 24, 1919. Restored
to docket for reargument April 21, 1919.
Submitted October 9, 1919. Ordered re-
stored to docket for oral argument Octo-
ber 20. 1919. Reargued December 17,
1919. Decided March 22, 1920.
IN ERROR to the Supreme Court of the
State of Oklahoma to review a judg-
ment which affirmed an order of the
state Corporation Commission imposing
a fine for violation of a rate-fixing order
made bv such Commission. Reversed.
See same case below, — Okla. — ,
P.U.R.1916C, 22, 158 Pac. 62.0.
The facts are stated in the opinion.
Mr. 0. B. Ames argued the cause, and
filed a brief for plaintiff in error:
The Oklahoma act is invalid because
it prohibits a resort to the courts to
test the reasonableness of the rate in-
volved except at the risk of penalties
and punishment so severe as to amount
to a denial of due process of law.
Chicago, M. & St. P. R. Co. v. Minne-
sota, 134 U. S. 418, 33 L. ed. 970, 3
Inters. Com. Rep. 209, 10 Sup. Ct. Rep.
462, 702 ; Ex parte Young, 209 U. S. 123,
147, 62 L. ed. 714, 723, 13 L.R.A.(N.S.)
932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas.
764; Harriss-Irby Cotton Co. v. State,
31 Okla. 603, 122 Pac. 163; Louisville Sc
N. R. Co. V. Garrett, 231 U. S. 298, 58
L. ed. 229, 34 Sup. Ct. Rep. 48; Missouri
P. R. Co. V. Nebraska, 217 U. S. 196, 207,
54 L. ed. 727, 731, 30 Sup. Ct. Rep. 461,
18 Ann. Cas. 989; Missouri P. R. Co. v.
Tucker, 230 U. S. 340, 349, 67 L. ed.
1507, 1610, 33 Sup. Ct. Rep. 961; Rail
& River Coal Co. v. Yaple, 236 U. S.
338, 350, 59 L. ed. 607, 616, 36 Sup. Ct.
Rep. 359; Shawnee Gas & E. Co. v. State,
31 Okla. 508, 122 Pac. 222; Wadley
Southern R. Co. v. Georgia, 235 U. S.
651, 660, 661, 69 L. ed. 406, 411, P.U.R.
1915 A, 106, 35 Sup. Ct. Rep. 214; Will-
cox V. Consolidated Gas Co. 212 U. S. 19,
53, 63 L. ed. 382, 400, 48 L.R.A.(N.S.)
1134, 29 Sup. Ct. Rep. 192, 16 Ann. Cas.
1034.
Mr. S. P. Freeling^ Attorney General
of Oklahoma, argued the cause, and,
with Mr. Paul A. Walker filed a brief
for defendant in error:
An appeal is not necessary to give due
process of law.
Prentis v. Atlantic Coast Line Co. 211
U. S. 210, 53 L. ed. 150, 29 Sup. Ct. Rep.
67.
Note. — As to what constitutes due
process of law, generally — see note to
People V. O'Brien, 2 L.R.A. 255; Kuntz
V. Sumption. 2 L.R.A. 655; Re Gannon,
5 L.R.A, 359; Ulman v. Baltimore, 11
L.R.A. 224; Gilman v. Tucker, 13 L.R.A.
304: Pearson v. Yewdall, 24 L. ed. U. S.
436; and Wilson v. North Carolina, 42
I^ ed. U. S. 865.
As to constitutional equality of privi-
leges, immunities, and protection, gen- !
600
erallv — see note to Louisville Safety
Vault & T. Co. V. Louisville & N. R. Co.
14 L.R.A. 579.
On excessive penalties as denial of
constitutional rights — see notes to Rail
& River Coal Co. v. Yaple, 59 L. ed. U.
S. 608, and State v. Crawford, 46 L.R.A.
(N.S.) 1039.
As to injunction to restrain acts of
public officers — see note to Mississippi v.
Johnson, 18 L. ed. U. S. 437.
252 U. S.
1«19. HIAWASSEE RIVER P. CO. v. CAROUNA-TEN25ESSEE P. CO. 339-^41
Mr. Justice Brandds delivered the
opinion of the court:
The Corporation Commission of Okla-
homa, having found under § 8235 of the
Revised Statutes, of 1910 that the Okla-
homa Qin Company and four other con-
cerns in the town of Chandler had com-
bined and raised the charges for ginning
cotton, on October 17, 1913, fixed a sched-
ule of rates lower than those then in
force. The company thereafter charged
rates in excess of those so fixed; and
three separate complaints against it, al-
leging violation of the order, were filed
with the Commission. Being summoned
[340] to show cause why it should not
be punished for contempt, the company
admitted violation of the order, but al-
leged that it was void, among other rea-
sons, because § 8235 was in confiict with
the 14th Amendment. After a full hear-
ing, at which new evidence was intro-
duced, the Commission affirmed, on
October 10, 1914, the rates fixed; made
a finding that the violation of the order
was wilful; imposed on the company a
fine of $500 and costs under each of the
three separate complaints; directed re-
fund of all amounts collected in excess
of prescribed rates; and declared also:
**A fine will be imposed for each
day the order has been violated,
and the matter as to the number
of days and the amounts of fines to be
imposed upon defendant, other than those
mentioned in the infoimation, will be left
open for adjustment upon taking of evi-
dence as to the number of days violated."
An appeal was taken by the company to
the supreme court of the state, which af-
firmed the order, and, thereafter, denied
two petitions for rehearing. The case
comes here on writ of error under § 237
of the Judicial Code [36 Stat. at. L. 1156,
chi^. 236, Comp. Stat. § 1214, 5 Fed.
Stat Anno. 2d ed. p. 723], as amended.
This case was argued and submitted
with Oklahoma Operating Co. v. Love
(decided this day 252 U. S. 331, ante,
596, 40 Sup. Ct. Rep. 338). For the
reasons set forth in the opinion in that
case the provision concerning penalties
for disobedience to an order of the Com-
mission was void because it deprived the
company of the opportunity of a judicial
review. The judgment must, therefore,
be reversed. It is unnecessary to consider
other contentions of plaintiff in error.
Reversed.
64 L. ed.
[»41] HIAWASSEE RIVER POWER
COMPANY, Plff. in Err.,
V.
CAROLIXATBNNESSEE POWER COM-
PANY.
(See S. C. Reporter's ed. 341-344.)
Error to state court — Federal question
— presentation to highest state court.
1. The claim in the state trial court
that a ruling was c<mtrary to U. S. Const.,
14th Amend:, affords no basis for a writ
of error from the Federal Supreme Court,
where no such contention was made in the
assignment of errors in the highest court
of the state, nor was ii, so far as appears
by the record, otherwise presented to or
passed upon by that court.
[For other cases, see Appeal and ^rror. 1271-
1279. in Digest Sup. Ct. 1908.]
Error to state court — Federal question
— when raised too late — allowance of
writ.
2. The omission to set up a Federal
question in the highest court of a state is
not cured by the allowance of a writ of
error from the Federal Supreme Court by
the chief justice of the highest state court,
nor by the specific assertion of such ques-
tion in the petition for such writ of error.
Kota. — On the general subject of writs
of error from the United States Supreme
Court to state courts — see notes to Mar-
tin V. Hunter, 4 L. ed. U. S. 97; Hamlin
V. Western Land Co. 37 »L. ed. U. S. 267;
Re Buchanan, 39 L. ed. XJ. S. 884; and
Kipley v. Illinois, 42 L. ed. U. S. 998.
On what adjudications of state courts
can be brought up for review in the Su-
preme Court of the United States by
writ of error to those courts — see note
to Apex Transp. Co. v. Garbade, 62
L.RA.. 513.
On how and when questions must be
raised and decided in a state court in
order to make a case for a writ of error
from the Supreme Court of the United
States — see note to Mutual L. Ins. Co.
V. McGrew, 63 L.RA. 33.
On what the record must show re-
specting the presentation and decision
of a Federal question in order to confer
jurisdiction on the Supreme Court of
the United States on a writ of error to
a state court — see note to Hooker v.
Los Angeles, 63 L.R.A. 471.
On certificate of state court as showing
presence of Federal question — see note
to Cincinnati, P. B. S. & P. Packet Co.
V. Bay, 50 L. ed. U. S. 428.
60t
SUPREME COURT OF THE UNITED STATES.
OoT. TsBM,
L
apd in the assignment of errors filed in the
Federal Supreme Court.
[For other cases, see Aopeal and Error, 12S0-
1287. 1311-1318. 2311-2^39, In Digest Sup.
Ct. 1908.]
[No. 208.]
Argued January 30, 1920. Decided ^March
22, 1920.
IN ERROR to the Supreme Court of
the State of North Carolina to review
a judgment which^ on a second appeal,
affirmed a judgment of tKe Superior
Court of Cherokee County, in that state,
in favor of plaintiff in a suit in the na-
ture of a bill to quiet title. Dismissed
for want of jurisdiction.
See same case below on first appeal,
171 N. C. 248, 88 S. E. 349; on second
appeal, 175 N. C. 668, 96 S. E. 99.
The facts are stated in the opinion.
Mr. Eugene E. Black argued the
cause, and, with Mr. Sanders McDaniel,
filed a brief for plaintiff in error:
That the Federal question relative to
defendant in error^s charter was made
clearly appears from the opinion of the
supreme court of North Carolina; and
the opinion of the state court is a part
of the record and will be considered by
this court for the purpose of ascertain-
ing whether either party claimed, in
proper form, that a state law, upon
which some of the issues depended, was
in contravention^ of the Constitution of
the United States.
Loeb v. Columbia Twp. 179 U. S. 472,
483, 45 L. ed. 280, 287, 21 Sup. Ct. Rep.
174; Savward v. Denny, 158 U. S. 180,
181, 39 *L. ed. 941, 942, 15 Sup. Ct. Rep.
777; United States v. Taylor, 147 U. S.
695. 37 L. ed. 335, 13 Sup. Ct. Rep. 479.
This Federal question was raised in
the trial court and in the supreme court,
and was decided by the supreme court.
This bein^ true, it is immaterial how it
was raised, and under the decisions of
this court, having been raised and decid-
ed by the state supreme court, it comes
witliin the jurisdiction of this court and
will be reviewed by it.
Miedreich v. Lauenstein, 232 U. S.
236, 243, 58 L. ed. 584, 589, 34 Sup. Ct.
Rep. 309; North Carolina R. Co. v.
Zacharv, 232 U. S. 248, 257, 58 L. ed.
591, 595, 34 Sup. Ct. Rep. 305, Ann.
Cas. 1914C, 159, 9 N. C. C. A. 109;
Mallinckrodt Chemical Works v. Mis-
souri, 238 IT. S. 41, 49, 59 L. ed. 1192,
1195, 35 Sup. Ct. Rep. 671; Cissna v.
Tennessee, 246 U. 8. 289, 294, 62 L. ed.
720, 725, 38 Smp. Ct. R^p. 306.
Messrs. Eujrene R. Black, Sanders
602
McDaniel, J. K. Moody, Felix Alley, and
Zebulon Weaver also filed a brief for
plaintiff in error.
Mr. Julius 0. -Martin argued the
cause, and, with Messrs. Thomas 8.
Rollins and George H. Wright, filed a
brief for defendant in error:
No Federal question was involved.
Arkansas Southern R. Co. v. German
Nat. Bank, 207 U. S. 270, 275, 52 U ed.
201, 204, 28 Sup. Ct. Rep. 78; Leathe v.
Thomas, 207 U. S. 93, 98, 52 L. ed. 118,
120, 28 Sup. Ct. Rep. 30; Sauer v. New
York, 206 U. S. 536, 546, 547, 51 L. ed.
1176, 1181, 1182, 27 Sup. Ct. Rep. 686;
Presser v. Illinois, 116 U. S. 270, 29 L.
ed. 664, 6 Sup. Ct. Rep. 587; Harding v. •
Illinois, 196 U. S. 78, 83, 49 L. ed. 394,
395, 25 Sup. Ct. Rep. 176.
Jurisdiction is considered first.
Giles v. Teasley, 193 U. S. 146, 160,
48 L. ed. 655, 658, 24 Sup. Ct. Rep.
359; Continental Nat. Bank v. Buford,
191 U. S. 119, 120, 48 L. ed. 119, 24 Sup.
Ct. Rep. 54; Defiance Water Co. v. De-
fiance, 191 U. S. 184, 194, 48 L. ed. 140,
144, 24 Sup. Ct. Rep. 63; Mansfield, C.
& L. M. R. Co. V. Swan, 111 U. S. 382,
28 L. ed. 462, 4 Sup. Ct. Rep. 510.
The record must show that a Federal
question was involved.
Harding v. lUinois, 196 U. S. 78, 84,
49 L. ed. 394, 395, 25 Sup. Ct. Rep. 176 ;
Ocean Ins. Co. v. PoUeys, 13 Pet. 164,
10 L. ed. 108; Taylor, Jurisdiction, §
242.
A Federal question must be raised by
pleading, motion, exception, or other
action part, or being made part, of the
record, showing that the claim was Re-
sented to the court.
Loeb v. Columbia Twp. 179 U. S. 472,
481, 45 L. ed. 280, 286, 21 Sup. Ct. Rep.
174.
The Federal question is not properly
made when made for the first time in
a petition for rehearing after judgment,
or in the petition for writ of error, or
in the briefs of counsel not made part of
the record.
Sa>'ward v. Denny, 158 U. S. 180, 39
L. ed. 941, 15 Sup. Ct. Rep. 777; Zadig
V. Baldwin, 166 U. S. 488, 41 L. ed. 1088,
17 Sup. Ct. Rep. 639.
The a.ssertion of the Federal right
must be made unmistakably, and not left
to mere inferences.
F. G. Oxley Stave Co. v. Butler
County, 166 U. S. 648, 41 L. ed. 1149, 17
Sup. Ct. Rep. 709.
A Federal question cannot be first
raised by argument in a state supreme
court. •
253 r. s.
1910.
HIAWASSEE RIVER P. CO. v. CAROLINATENNESSEE P. CO.
Loeb V, Columbia Twp. 179 U. S. 472,
483, 45 L. ed. 280, 287, 21 Sup. Ct. Rep.
174; Say ward v. Denny, 158 U. S. 180,
183, 39 L. ed. 941, 942, 15 Sup. Ct. Rep.
777; Baldwin v. Kansas, 129 U. S. 52,
57, 32 L. ed. 640, 642, 9 Sup. Ct. Rep.
193; Maxwell v. Newbold, 18 How. 511,
515, 15 L. ed. 506, 508.
A Federal question cannot be raised
by petition for wyit of error.
Mutual L. Ins. Co. v, McGrew, 188 U.
S. 291, 308, 47 L. ed. 480, 484, 63 L.R.A.
33, 23 Sup. Ct. Rep. 375; Butler v.
Gage, 138 U. S. 52, 56, 34 L. ed. 869, 871,
11 Sup. Ct. Rep. 235 ; Sayward v. Denny,
158 U. S. 180, 183, 39 L. ed. 941, 942, 15
Sup. Ct. Rep. 777; Johnson v. New York
L. Ins. Co. 187 U- S. 491, 495, 47 L. ed.
273, 274, 23 Sup. Ct. Rep. 194.
A Federal question cannot be raised
for the first time in, assignments of error
to this court.
Cleveland & P. R. Co. v. Cleveland,
235 U. S. 50, 53, 59 L. ed. 127, 128, 35
Sup. Ct. Rep. 21; Chapin v. Fye, 179
U. S. 127, 46 L, ed. 119, 21 Sup. Ct. Rep.
71 ; Mailers v. Commercial Loan & T. Co.
216 U. S. 614, 54 L. ed. 638, 30 Sup. Ct.
Rep. 438 ; Harding v. IlUnois, 196 U. S.
78, 84, 49 L. ed. 394, 395, 25 Sup. Ct.
Rep. 176; Hulbert v. Chicago, 202 U. S.
275y 280, 50 L. ed. 1026, 1028, 26 Sup. Ct.
Rep. 617; Appleby v. Buffalo, 221 U. S.
529, 55 L. ed. 840, 31 Sup. Ct. Rep. 699 ;
New York C. & H. R. R. Co. v. New
York, 186 U. S. 269, 273, 46 L. ed. 1158,
1160, 22 Sup. Ct. Rep. 916.
The proper time to raise a Federal
question is in the trial court, whenever
that is required by the state practice.
Mutual L. Ins. Co. v. McGrew, 188 U.
S. 291, 308, 47 L. ed. 480, 484, 63 L.R.A.
33, 23 Sup. Ct. Rep. 375.
The supreme court of North Carolina
considers no question not set out in ex-
ceptions or assignments of error to rul-
ings of the trial court.
Davis V. Council, 92 N. C. 731; Phipps
V. Pierce, 94 N. C. 515; Lvtle v. Lytle,
94 X. C. 524; Anthony v.Estes, 99 N.
C. 598, 6 S. E. 705; Thornton v. Brady,
100 N. C. 40, 5 S. E. 910; Wallace Bros,
v. Robeson, 100 N. C. 210, 6 S. E. 650;
Pegram v. Hester, 152 N. C. 765, 68 S. E.
8: Smith v. Globe Home Furniture Mfg.
Co. 151 X. C. 261, 65 S. E. 1009; Davis
V. Duval, 112 N. C. 834, 17 S. E. 528;
McKinnon v, Morrison, 104 N. C. 361,
10 S. E. 513.
The Federal Supreme Court will not
review questions of fact.
Chrisman v. Miller, 197 U. S. 313, 319,
49 L. ed. 770, 772, 25 Sup. Ct. Rep. 468 ;
Clipper Min. Co. v. Eli Min. & Land Co.
«1 L. ed.
194 U. S. 220, 222, 48 L. ed. 944, 948,
24 Sup. Ct. Rep. 632; Egan v. Hart, 165
U. S. 188, 189, 41 L. ed. 680, 681, 17 Sup.
Ct. Rep. 300; Waters-Pierce Oil Co. v.
Texas, 212 U. S. 97, 53 L. ed. 424, 29 Sup.
Ct. Rep. 220; Smiley v. Kansas, 196 U.
S. 447, 453, 49 L. ed. 546, 550, 25 Sup.
Ct. Rep. 289; Missouri, K..& T. R. Co.
V. Haber, 169 U. S. 613, 639, 42 L. ed.
878, 887, 18 Sup. Ct. Rep. 488; Dower v.
Richards, 151 U. S. 658, 663, 38 L. ed.
305, 307, 14 Sup. Ct. Rep. 452, 17 Mor.
Min. Rep. 704.
When the decision below is founded
upon a state or local question, the writ
of error will be dismissed.
White V. Leovy, 174 U. S. 91, 95, 43
L. ed. 907, 909, 19 Sup. Ct. Rep. 604;
Chicago & N. W. R. Co. v. Chicago, 164
U. S. 454, 457, 41 L. ed. .511, 512, 17
Sup. Ct. Rep. 129; Remington Paper Co.
V. Watson, 173 U. S. 443, 43 L. ed. 762,
19 Sup. Ct. Rep. 456.
Where a case turns on a non-Federal
question, the writ of error must be dis-
missed.
Eustis V. Bolles, 150 U. S. 361, 366, 37
L. ed. 1111, 1112, 14 Sup. Ct. Rep. 131;
California Powder Works v. Davis, 151
U. S. 393, 38 L. ed. 207, 14 Sup. Ct. Rep.
350; Holden Land & Live Stock Co. v.
Inter-State Trading Co. 233 U. S. 636,
541, 58 L. ed. 1083, 1086, 34 Sup. Ct. Rep.
661 ; Leathe v. Thomas, 207 U. S. 93, 98,
99, 52 L. ed. 118, 120, 121, 28 Sup. Ct.
Rep. 30; Giles v. Teasley, 193 U. S. 146,
160, 48 L. ed. 655, 658, 24 Sup. Ct. Rep.
359 ; Rogers v. Jones, 214 U. S. 196, 202,
53 L. ed. 965, 968, 29 Sup. Ct. Rep. 635;
BUby V. Stewart, 246 U. S. 255, 257, 62
L. ed. 701, 702, 38 Sup. Ct. Rep. 264.
The granting of a writ of error by the
chief justice of the state supreme court
is not suf&cient to show that a Federal
question was involved.
Hulbert v. Chicago, 202 U. S. 275,
280, 50 L. ed. 1026, 1028, 26 Sup. Ct.
Rep. 617; Marvin v. Trout, 199 U. S. 212,
223, 60 L. ed. 157, 161, 26 Sup. Ct. Rep.
31; Louisville & N. R. Co. v. Smith, H.
& Co. 204 U. S. 551, 561, 51 L. ed. 612,
617, 27 Sup. Ct.*Rep. 401; Dibble v. Bel-
lingham Bay Land Co. 163 U. S. 63, 41
L. ed. 72, 16 Sup. Ct. Rep. 939; Henkel
V. Cincinnati, 177 U. S. 170, 44 L. ed.
720, 20 Sup. Ct. Rep. 573; Fullerton v.
Texas, 196 U. S. 192, 49 L, ed. 443, 25
Sup. Ct. Rep. 221.
It is solely the province of state courts
to determine the power of state corpora-
tions concerning all local matters.
Taylor, Due Process* of Law, § 428;
Berea College v. Kentucky, 211 U. S. 45,
54, 53 L. ed. 81, 85, 29 Sup. Ct. Rep.
603
342, 343
SUPREME COUltl OF THE U^CITED STATES.
Oct. Ikbm^
33; Home Ins. Co. v. New York, 134 U.
S. 599, 33 K ed, 1029, 10 Sup. Ct. Rep.
593; Horn Silver Min. Co. v. New York,
143 U. S. 305, 313, 36 L. ed. 164, 167,
4 Inters. Com. Rep. 57, 12 Sup. Ct. Rep.
403; Chicago L. Ins. Co. v. Needles, 113
U. S. 574, 579, 580, 28 h. ed. 1084, 1086,
1087, 5 Sup. Ct. Rep. 681; Hancock v.
Louisville & N. R. Co. 145 U. S. 409, 415,
36 L. ed. 755, 757, 12 Sup. Ct. Rep. 969 ;
Bacon v. Walker, 204 U. S. 311, 51 L. ed.
499, 27 Sup. Ct. Rep. 289; Chicago, B.
& Q. R. Co. V. Illinois, 200 U. S. 561,
50 L. ed. 596, 26 Sup. Ct. Rep. 341, 4
Ann. Cas. 1175.
The case of Telluride Power Trans-
mission Co. V. Rio Grande Western R.
Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup.
Ct. Rep. 245, is exactly in point.
See also Telluride Power Transmission
Co. V. Rio Grande Western R. Co. 187
U. S. 569, 47 L. ed. 307, 23 Sup. Ct. Rep.
178.
[M2] Mr. Justice Brandeis delivered
the opinion of the court :
The Carolina-Tennessee Power Com-
pany, a public utility, was incorporated
by a private law of North Carolina with
broad powers, including that of taking
by eminent domain riparian lands of and
water rights in any non-navigable stream
of the state. It filed locations for two
hydroelectric plants on the Hiawassee
river and proceeded to acquire by pur-
chase and by condemnation the lands and
water rights necessary for that develop-
ment. Thereafter the Hiawassee River
Power Company was organized under the
general laws of the state, and threatened
to locate and develop on that river hydro-
electric plants which would necessarily
intei^ere with the development undertak-
en by the Carolina-Tennessee Company.
The latter brought in the superior court
of Cherokee county a suit in the nature of
a bill to quiet title. The case was tried
in that court with the aid of a juiy.
Many issues of fact were raised and
many questions of state law presented. A
decree entered for the plaintiff below was
reversed by the supreme court of the
state and a new trial was ordered (171
N. C. 248, 88 S. E. 349). The second
trial resulted also in a decree for plain-
tiff below, which was affirmed by the state
supreme court (175 N. C. 670, 96 S. E.
99). The case comes here on writ of er-
ror.
The Federal question relied upon as
giving jurisdiction to this court is denial
of the claim that the private law incor-
porating the Carolina-Tennessee Com-
pany is invalid, bec-ause it conferred upon
604
that company broad powers of eminent
domain, whereas the general law, under
which the Hiawassee Company was later
orgatiized, confen*ed no such rig^t; the
contention being that thereby the guar-
anty of the i4th Amendment of privi-
leges and immunities and equal protec-
tion of the laws had been violated. But
this claim was not presented to nor passed
upon by the [343] supreme court of the
state. The only basis for the contention
that it was so presented is the fact that,
when the Carolina-Tennessee Company
offered in evidence at the trial in the su-
perior court the private law as its char-
ter, objection was made to its admission
^'on the ground that the. same was in
terms and effeet a monopoly and a void
exercise of power by the state legislature
which undertook to provide it, it being
opposed and obnoxious to the Bill of
Rights and the Constitution, and in vio-
lation of the 14th Amendment;'' and that
the admission of this evidence is among
the many errors assigned in the supreme
court of the state. The law, whetiier
valid or invalid, was clearly admissible
in evidence, as it was the foundation of
the equity asserted in the bUl. No right
under the Federal Constitution was nec-
essarily involved in that ruling. The
reference to the ^'Bill of Rights and the
Constitution," made when objecting to
the admissibility of the evidence, was to
the state Constitution, and the point was
not again called to the attention of that
court. Compare Hulbert v. Chicago, 202
U. 8. 275, 279, 280, 50 L. ed. 1026, 1028,
26 Sup. Ct. Rep. 617. The claim of in-
validity under the state Constitution was
specifically urged in that court as a rea-
son why the Carolina-Tennessee Com-
pany should be denied relief, and the
claim was passed upon adversely to the
plaintiff in error; but no reference was
made in that eonnection to the 14th
Amendment.
If a general statement that the ruling
of the state court was against the 14th
Amendment were a sufficient specification
of the claim of a right under the Consti-
tution to give this court jurisdiction (see
Clarke v. McDade, 165 U. S. 168, 172, 41
L. ed. 673, 674, 17 Sup. Ct. R«p. 284;
Capital City Dairy Co. v. Ohio, 183 U. S.
238, 248, 46 L. ed. 171, 176, 22 Sup. Ct.
Rep. 120; Marvin v. Trout, 199 U. S.
' 212, 217, 224, 50 L. ed. 157, 150, 161, 26
Sup. Ct. Rep. 31), still t))e basis for a
review by this court is wholly lacking
here. For the 14th Amendment was men-
tioned only in the trial oourt. In the
supreme court of the state uo mention was
made of it in the a^j-iimmect of errors;
352 V. 6.
1019.
ARKANSAS v. MISSISSIPPI.
343-340
nor was it^ so far as appears by the rec-
ord; otherwise presented to or [344]
passed upon by that court. The denial of
the claim was specifically set forth in the
petition for the writ of error to this court
and in the assignment of errors filed here.
But obviously that was too late. Chi-
cago, I. & L. R. Co. V. McGuire, 196 U.
vS. 128, 132, 49 L. ed. 413, 417, 25 Sup.
€t. Rep. 200. The omission to set it
up properly in the supreme court of the
state was not cured by the allowance of
the writ of error bv its chief justice. Ap-
pleby V. Buffalo, 221 U. S. 524, 529, 55
L. ed. 838, 840, 31 Sup. Ct. Rep. 699;
Hulbert v. Chicago, 202 U. S. 275, 280,
50 L. ed. 1026, 1028, 26 Sup. Ct. Rep.
617; Marvin v. Trout, 199 U. S. 212, 223,
50 L. ed. 157, 161, 26 Sup. Ct. Rep. 31.
We have no occasion, therefore, to con-
sider whether the claim of denial of rights
under the 14th Amendment was sub-
stantial in character which is required to
support a writ of error. Equitable Life
Assur. Soc. V. Brown, 187 U. S. 308, 311,
47 L. ed. 190, 192, 23 Sup. Ct. Rep. 123.
Compare Hendersonville Light & P. Co.
V. Blue Ridge Interurban R. Co. 243 U.
S. 563, 61 L. ed. 900, 37 Sup. Ct. Rep.
440.
Dismissed for want of jurisdiction.
STATE OF ARKAJ^SAS, Complainant,
V.
STATE OF MISSISSIPPI.
(See S. C. Reporter's ed. 344-347.)
Boundaries — between Arkansas and
Mississippi — navigable waters ^
aTulsion — appointment of commis-
sioners.
The boundary between Arkansas and
Mississippi adjudged to be the middle of
the main channel of the Mississippi river
as it existed just prior to the avulsion of
1848, and commissioners' appointed to run
such line.
fFor other cases, see Boundaries, III. b, In Di-
gest Sup. Ct. 1908.]
[Xo. 7, Original.]
Motion for entry of interlocutory decree
and for the appointment of commission-
ers submitted March 8, 1920. Adjudica-
tion made March 22, 1920.
ORIGINAL SUIT in Equity between
the states of Arkansas and Missis-
sippi to determine the location of the
boundary line. Boundary decreed to be
the middle of the main channel of the
Mississii^i river as it existed just pre-
44 li. ed.
vious to an avulsion, and commissioners
appointed to run such line.
Mr. George F. Snyder for the motion,
in behalf of Mr. John D. Arbuckle, At-
torney General of Arkansas, and Messrs.
John M. Moore and Herbert Pope, coun-
sel for the state of Ajrkansas, and of
Mr. Frank Boberson, Attorney General
of Mississippi, and Messrs. Gerald Fitz-
gerald, George F. Maynard, Marcellus
Green, and Gamer W. Green, counsel for
the state of Mississippi.
Per Mr. Chief Justice White :
This cause came on to be heard by
this court on the motions and suggestions
of counsel for the respective parties for
the appointment of a commission to run,
locate, and designate the boundary line
between the states of Arkansas and Mis-
sissippi, as indicated in the opinion of
this court delivered on the 19th dav of
May, 1919 [250 U. S. 39, 63 L. ed. *832,
39 Sup. Ct. Rep. 422], and [345] there-
upon and on consideration thereof, it is
ordered, adjudged, and decreed as fol-
lows, viz.:
1. The true boundary line between the
states of Arkansas and Mississippi, at
the places in controversy in this cause,
aside from the question of the avulsion
of 1848, hereinafter mentioned, is the
middle of the main channel of navigation
of the Mississippi river as it existed at
the Treaty of Peace concluded between
the United States and Great Britain in
1783 [Sept. 3, 1783, 8 Stat, at L. 80],
subject to such changes as have occurred
since that time through natural and grad-
ual processes.
2. By the avulsion which occurred
about 1848, and which resulted in the
formation of a new main channel of navi-
gation, the boundary line between said
states was unaffected, and remained in
the middle of the former main channel
of navigation as above dedned.
3. The boundary line between the said
states should now be located along that
portion of said river, or the bed of said
river, which ceased to be the main chan-
nel of navigation as the result of said
avulsion, according to the middle of the
Note. — ^Aa to judicial settlement of
state boundaries — see note to Nebraska
V. Iowa, 36 L. ed. U. S. 798.
On rivers and lakes as state boundary'
— see note to Buck v. EUenbolt, 15 L.R.A.
1S7.
As to change of channel as change of
state boundary — see note to State v.
'Bowen, 39 L.R.A.(N.S.) 200.
603
345-347
SUPREME COURT OF THE UNITED STATES.
Oct. Tehu,
main navigable channel as it existed im-
mediately prior to the time of said avul-
sion.
4. A commission consisting of Samuel
S. Gannett, Washington, District of Co-
lumbia, Charies H. Miller^ Little Rock,
Arkansas, and Stevenson Archer, Jr.,
Greenville, Mississippi, competent per-
sons, is here and now appointed by the
court, to run, locate, and designate the
boundary line between said states along
that portion of said river which ceased
to be a part of the main navigable chan-
nel of said river as the result of said
avulsion, in accordance with the above
principles: Commencing at a point in
said Mississippi river about 1 mile south-
west from Friars point, Coahoma county,
Mississippi, where the main navigable
channel of said river, prior to said avul-
sion, turned and flowed in a southerly
direcJtion, and thence following along the
middle of the former main [346] chan-
nel of navigation by its several courses
and wiiidings to the end of said portion
of said Mississippi river which ceased to
be a part of the main channel of naviga-
tion of said river as the result of said
avulsion of 1848.
5. In the event the said commission
cannot now locate with reasonable cer-
tainty the line of the river as it ran im-
mediately before the avulsion of 1848,
it shall report the nature and extent of
the erosions, accretions, and changes that
occurred in the old channel of navigation
as the result of said avulsion, and in
said report, if necessary to be made in
obedience to this paragraph of the de-
cree, said commission shall give its find-
ings of fact and the evidence on which
same are based.
6. Before entering upon the discharge
of their duties, each of said commission-
'ers shall be duly sworn to perform
faithfully, impartially, and without pre-
judice or bias the duties hereinafter im-
posed; said oaths to be taken before the
clerk of this court, or before the clerk
of any district court of the United
States, or before an officer authorized
by law to administer an oath in the state
of Arkansas or Mississippi, and returned
with their report. Said commission is
authorized and empowered to make ex-
amination of the territory in question,
and to adopt all ordinary and legitimate
methods in the ascertainment of the
true location of the said boundary line;
to examine and consider carefully the
printed record in this cause and the opin-
«o«
ion of this court, delivered on 2tfay 1^,
1919, and to take such additional evi-
dence under oath as may be necessary
and authorized to enable said commis-
sion to determine said boundary* line, but
such evidence shall be taken only upon
notice to the parties, with permission to
attend by counsel and cross-examine the
witnesses; to compel the attendance of
witnesses and require them to testify;
and all evidence taken and all exceptions
thereto and rulings thereon shall be pre-
served, certified, and returned with the
report of said commissioner^ ; and [347]
said commission shall do all other mat-
ters necessary to enable it to discharge
its duties and to obtain the end to be
accomplished conformably to this decree.
7. It is further ordered that should
any vacancy or vacancies occur in said
board of conmiissioners by reason of
death, refusal to act, or inability to per-
form the duties required by this decree,
the Chief Justice of this court is hereby
authorized and empowered to appoint
another conunissioner or commissioners
to supply such vacancy or vacancies, the
Chief Justice acting upon such informa-
tion in the premises as may be satisfac-
tory to him.
8. It is further ordered that said com-
missioners do proceed with all convenient
despatch to discharge their duties con-
formably to this decree, and they are
authorized, if they deem it necessary, to
request the co-operation and assistance
of the state authorities of Arkansas and
Mississippi, or either of those states, in
the performance of the duties hereby im-
posed.
9. It is further ordered that the clerk
of this court shall forward at once to
the governor of each of said states of
Arkansas and Mississippi and to each of
the commissioners hereby appointed a
copy of this decree and of the opinion
of this court, delivered herein May 19,
1919, duly authenticated.
10. Said commissioners shall make a
report of their proceedings under this
decree as soon as practicable on or be-
fore the 1st day of October, 1920, and
shall return with their report an itemizefl
statement of services performed and ex-
penses incurred by them in the perform-
ance of their duties.
11. All other matters are reserved un-
til the coming in of said report, or until
such time as matters pertaining to this
cause shall be properly presented to this
court for its consideration.
252 r. s.
1»19.
STRATilEARN STEAMSHIP CO. v. DILLON.
34 S
E348] STRATHEARX STEAMSHIP COM-
PANY, Limited, Petitioner,
V.
JOHX DILLON.
(See S. C. Reporter's ed. 348-357.)
Statutes — construction — title.
1. The tiUe of an act cannot limit the
plain meaning of its text, although it may
I>e looked to to aid in construction in cases
of doubt.
[For other cases, see Statutes, II. I, In Di-
gest Sup. Ct. 190S.]
Seamen — wages — foreign seamen on
foreign vessels in American ports.
2. Foreign seamen o^ foreign vessels
in American ports are entitled to the bene-
fits of the provisions of the Act of March
4, 1015, § 4, authorizing seamen on Ameri-
can vessels to demand and receive one half
of the wages earned at every port where
such vessel, after the voyage has been
commenced, shall load or deliver cargo
before the voyage is ended, notwithstand-
ing contractual obligations to the contrarv,
and declaring that such section shall apply
to i^eamen on foreign vessels while in
American harbors, and that the Federal
courts shall be open to such seamen for
its enforcement. *
[For other cases, see Seamen, IV. In Digest
Sap. Ct. 1008.)
Constitutional law — due process of
law ^ invalidating wage contracts
^ foreign seamen on foreign vessels.
3. Congress could, as it did in the Act
of March 4, 1915, § 4, make applicable to
foreign seamen on foreign vessels when in
American ports the provisions of that sec-
tion authorizing seamen to demand and
receive one half the wages earned at any
port where the vessel, after tae voyage has
been c<Hnmenced, shall load or deliver cargo
before the voyage is ended, notwithstand-
ing any contractual obligations to the con-*
trary.
[For other cases, see ronstltutlonal Law,
6a'5-607; Seamen, IV. in Digest Sup. Ct
1908.]
Seamen — wages ^ demand — prema-
turity.
4. A foreign vessel need not have been
five days in an American port before sea-
men thereon may make the wage demand
provided for by the Act of March 4, 1015,
§ 4, authorizing seamen to demand and re-
ceive one half of the wages earned at any
port where the vessel, after the voyage has
oeen commenced, shall load or deliver
cargo before the voyage is ended, notwith-
standing contractual obligations to the
contrary, and declaring tluit such section
applies to seamen on foreign vessels while
in American harbors, "provided such a de-
mand shall not be made before the expira-
tion of, nor oftener than once in, five
days."
[For other onftes. see Seamen. IV. in Digest
Sup. Ct. 1908.]
[No. 373.]
Argued and submitted December 9, 1919.
Decided ^larch 29, 1920.
64 li, ed.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Fifth Circuit to review a decree
which reversed a decree of the District
Court for the Northern District of Flor-
ida, dismissing the libel of a seaman /or
wages. AfQrmed.
See same ease below, 168 C. C. A. 25,
256 Fed. 631.
The facts are stated in the opinion.
Mr. Balph James M. Bullowa sub-
mitted the cause for petitioner :
The libellant's case does not fall with-
in the provisions of the statute in ques-
tion because it was not intended to ap-
ply to a foreign seaman entering into a
valid contract in a foreign port for serv-
ice on a foreign vessel.
2 Moore, International Law Dig. p.
335; Wildenhus's Case (Mali v. Keeper
Common Jail) 120 U. S. 1, 30 L. ed. 565,
7 Sup. Ct. Rep. 383; Sandberg v. Mc-
Donald, 248 U. S. 185, 63 L. ed. 200, 39
Sup. Ct. Rep. 84.
Even if the act applies to foreign sea-
men upon foreign vessels who ship at a
foreign port, the libellant's demand for
half wages was premature.
The Italier, 168 C. C. A. 662, 257 Fed.
712.
Messrs. Frederic B. Ooudert and How-
ard Thayer Kingsbury, by special leave,
argued the cause and filed a brief for
the British Embassy as amici curise:
The decision of the circuit court of ap-
peals is at variance with the principles
enunciated by this court in the other
cases arising out of tbe Seamen's Act.
Sanberg v. McDonald, 248 U. S. 185,
63 L. ed. 200, 39 Sup. Ct. Rep. 84; Neil-
son V. Rhine Shipping Co. 248 U. S. 205,
63 L. ed. 208, 39 Sup. Ct Rep. 89.
The statute should not be so construed
or applied as to invalidate contracts law-
fully made between foreigners in a for-
eign jurisdiction.
Church of the Holy Trinitv v. United
States, 143 U. S. 457, 462, 36 L. ed. 227,
229,-12 Sup. Ct. Rep. 511; United States
V. Palmer, 3 Wheat. 610, 631, 4 L. ed.
471, 477; The Ixion, 150 C. C. A. 291,
237 Fed. 142; The ItaUer, 168 C. C. A.
662, 257 Fed. 712 ; The Magna Charta, 2
Low. Dec. 136, Fed. Cas. No. 8,953 ; The
Egyptian Monarch, 36 Fed. 773; Wilson
V. The John Ritson, 35 Fed. 663; The
Belvidere, 90 Fed. 106; The Ucayli, 164
I Fed. 897 ; Rainey v. New York & P. S. S.
Co. L.R.A.1916A, 1149, 132 C. C. A. 509,
216 Fed. 454; The Elswick Tower, 241
Fed. 706.
The laws of no nation can justly ex-
eo7
SUPREME COUKl OF THE L'MXED iiTATE;^.
Oct.
tend beyond its own territories, except
so far as regards its own citizens.
The Apollon, 9 Wheat. 362, 370, 6 L.
ed. Ill, 113; 2 Moore, International Law
Dig. § 197, p. 213.
The British statute is declaratory of
the general maritime law of nations.
Abbott, Merchants, Ships & Seamen,
14th ed. p. 209; The Buhner, 1 Hagg.
Adm. 163; Button v. Thompson, L. R.'
4 C. P. 330, 38 L. J. C. P. N. S. 225, 20 L.
T. N. S. 568, 17 Week. Rep. 1069; The
Baltic Merchant, Edw. Adm. S6.
Prior to the statute now under con-
sideration, it was recognized in this coun-
try that where a seaman has contracted
to serve during a certain voyage, he
must, in order to recover wages, allege
and prove that he had fully performed
his contract, or that he had been pre-
vented from doing so by some circum-
stance amounting to a legal excuse.
Wilcocks V. Palmer, 3 Wash. C. C. 248,
Fed. Cas. No. 17,638; The Leiderhom,
99 Fed. 1001.
This was in accord with the general
rule of the common law that any con-
tract of employment for a definite pe-
riod is an entire contract, and must be
fully performed to entitle the employee
to recover.
Spain V. Amott^ 2 Staride, 256, 19 Re-
vised Rep. 715; Lantry v. Parks, 8 Cow.
63; Faxon v. Mansfield, 2 Mass. 147.
If the act of Congress in question were
the act of a state legislature, it would
manifestly be unconstitutional, as one
impairing the obligation- of contracts
under U. S. Const, art. 1, § 10. This
constitutional prohibition applies specif-
ically to legislation by the states of the
Union, and is not in terms applicable to
the United States. This court has held,
however, in The Sinking Fund Cases, 99
U. S. 700, 718, 25 L. ed. 496. 501, that
although the United States are not in-
cluded within the constitutional prohibi-
tion which prevents states from passing
laws impairing the obligation of con-
tracts, they, equally with the states, are
prohibited from depriving persons or* cor-
porations of property without due proc-
ess of law.
Even if Congress has power to impair
the obligation of contracts, it has no
power to make a new contract between
the parties, — especially when both are
foreigners. As well might it undertake
to impose a fine upon a foreign vessel for
an act done wholly within a foreign ju-
risdiction, and there recognized as law-
ful.
United States v. Freeman, 239 U. S.
117, 60 L. ed. 172, 36 Sup. Ct. Rep. 32.
608
A vested right to an existing defense
is property, and hence within the const i-
tational protection.
Pritchard v. Norton, 106 U. S. 124, 132,
27 L. ed. 104, 107, 1 iSup. Ct. Rep. 102.
Legislation which attempts to take
away a vested right under a contract not
only impairs the obligation of the con-
tract, but is also equivalent to a depri-
vation of property.
Houston & T. C. R. Co. v. Texas, 170
U. S. 243, 261, 42 L. ed. 1023, 1029, 18
Sup. Ct. Rep. 610; Angle v. Chicago, St.
P. M. & 0. R. Co. 151 U. S. 1, 19, 38 L.
ed. 55, 64^ 14 Sup. Ct. Rep. 240.
Where a statute may be so construed
as not to contravene the Constitution^
such construction should be adopted,
thus avoiding the necessity of directly
determining the constitutional question.
Japanese Immigrant Case (Yamataya
V. Fisher) 189 U. S. 86, 101, 47 L. ed.
721, 726, 23 Sup. Ct. Rep. 611 ; €t. Louis
Southwestern R. Co. v. Arkansas, 235
U. S. 350, 369, 59 L. ed. 265, 274, 35
Sup. Ct. Rep. 99; Billings v. United
States, 232 U. S. 261, 279, 58 L, ed. 596,
604, 34 Sup. Ct. Rep. 421; Towne v.
Eisner, 245 U. S. 418, 425, 62 L. ed. 372,
376, L.R.A.1918D, 254, 38 Sup. Ct. Rep.
158.
Messrs. Ctoorge Sutherland and W. J.
Wagnespack argued the cause, and, with
Mr. Silas B. AxteU, filed a brief for re-
spondent:
There being no ambiguity in the stat-
ute, resort to the title or other extrinsic
matters to affect the meaning of the
words used is precluded.
' Price V. Forrest, 173 U. S. 410, 427, 43
L. ed. 749, 755, 19 Sup. Ct. Rep. 434;
United States v. IHsher, 2 Cranch. 358,
366, 2 L. ed. 304, 307; United States v.
Oregon & C. R. Co. 164 U. S. 526, 641.
41 L. ed. 541, 645, 17 Sup. Ct. Rep. 165 ;
ComeU V. Coyne, 192 U. S. 418, 430, 48
L. ed. 504, 609, 24 Sup. Ct. Rep. 383;
Hamilton v. Rathbone, 176 U. S. 414,
421, 44 L. ed. 219, 222, 20 Sup. Ct. Rep.
165;
Not only is there nothing in the con-
text to indicate that Congress did not in-
tend by the use of the word "seamen" to
exclude foreign seamen, a thing which,
as we have seen, must exist to justify
the court in restricting the otherwise
broad application of the term, but the
context is quite to the contrary. The
language of the proviso is followed by
the words ''and the courts of the United
States shall be open to such seamen for
its enforcement." Obviously, if the pro-
viso was intended to apply only to
25f r. 8.
1919.
STRATHEARN STEAMSHIP CX). y. DILLON.
American seamen, there could be no pur-
pose in this last-quoted provision. The
courts of the United States were already
indubitably open in such cases.
The Falls of Keltic, 114 Fed. 357;
The Epsom, 227 Fed. 161 ; The Neck, 138
Fed. 147.
The only doubt, therefore, which there
was the slightest necessity of removing,
was in the case of the foreign seaman.
The jurisdiction in that case, while it
undoubtedly exists (The Belgenland, 114
U. S. 364, 29 L. ed. 155, 5 Sup.' Ct. Rep.
860), is still to be exercised at the dis-
cretion of the court, still more or less
subject tt> the interfering power of the
consul, and the qualifying force of treaty
stipulation (The Topsy, 44 Fed. 635).
However effective to that end it may be,
it seems vei^^ clear that the provision
now under discussion was inserted with
a view of removing all such restrictions
upon, or doubts affecting, the jurisdiction
of the courts in cases brought by foreign
seamen. It was in this view, and for
this purpose, in part, that § 10 of the act
provides for the abrogation of conflict-
ing treaty provisions. Sandberg v. Mc-
Donald, 248 IT. S. 185, 63 L. ed. 200, 39
Sup. Ct. Hep. 84. There was no reason
for Congress to be solicitous respecting
the right of American seamen to invoke
the jurisdiction of the courts of the
United States. Congress, in inserting
the provision, could have had in mind
only foreign seamen.
The proviso, thus construed, is valid
and constitutional.
Chicago, B. & Q. B. Co. v. McGuire,
219 U. S. 549, 55 L. ed. 328, 31 Sup. Ct.
Rep. 259; Louisville & N. R. Co. v. Mott-
ley, 219 U. S. 467, 482, 55 L. ed. 297,
303, 34 LJt.A.(N.S.) 671, 31 Sup. Ct.
Rep. 265; Patterson v. The Eudora, 190
U. S. 169, 173, 47 L. ed. 1002, 1005, 23
Sup. Ct Rep. 821 ; Re Garnett, 141 U. S.
1, 12, 35 L. ed. 631, 633, 11 Sup. Ct. Rep.
840; Southern P. Co. v. Jensen, 244 U.
S. 205, 61 L. ed. 1086, L.R.A.1918C, 451,
^ Sup. Ct. Rep. 524, Ann. Cas. 1917E,
900, 14 N. C. C. A. 596; Wildenhus's
Case (Mali v. Keeper of Common Jail)
120 U. S. 1, 30 L. ed. 565, 7 Sup. Ct.
Rep. 383; The Exchange v. MTaddon,
7 Cranch, 116, 3 L. ed. 287, Story, Confl.
L. §§ 38, 244; The Kensington, 183 U.
S. 263, 46 L. ed. 190, 22 Sup. Ct. Rep.
102; United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 41 L. ed.
1007, 17 Sup. Ct. Rep. 540.
The right to demand half wages at
every port where the vessel shall load
or deliver cargo arises upon the arrival
of the vessel in such a port, provided
64 li. ed. 3
five days have elapsed, to be computed
from the last payment or from the com-
mencement of the voyage, and not from
the arrival of the vessel in port.
The Talus, 242 Fed. 954, 160 C. C. A.
570, 248 Fed. 670 ; The Delagoa, 244 Fed.
835; The Stratheam, 168 C. C. A. 25,
256 Fed. 633.
If this proviso needs construction, it
is elementary that it must be given that
construction which will carry into effect,
and not that construction which will de-
feat, the intention,, purpose, and object
of the legislator.
United States v. Gooding, 12 Wheat.
460, 6 L. ed. 693; Vanderbilt v. Eidman,
196 U. S. 480, 49 L. ed. 563, 25 Sup. Ct.
Rep 331.
It is also elementary that every part
of a statute must be construed with ref-
erence to every other part, and every
word and phrase in connection with its
context, and that that construction must
be sought which will give effect to its
every word, though ambiguous.
Bend v. Holt, 13 Pet. 263, 10 L. ed.
154; Blair v. Chicago, 201 U. S. 400, 50
L. ed. 801, 26 Sup. Ct. Rep. 427.
Solicitor General Kinc by special
leave argued the cause, and, with Mr. A.
F. Myers, filed a brief for the United
States as amici eurue:
A foreign merchant vessel has no
vested right to enter our ports. The act
of entry signifies acceptance of the con-
ditions imposed. The power to impose
such conditions ia an incident to the
sovereignty of the nation.
Vattel, Nations, Chitty's ed. 1863, p.
40.
Congress is empowered to prevent all
foreign vessels from entering the ports
of the country, as in an embargo, and to
admit them only upon conditions within
its uncontrolled discretion.
Patterson v. The Eudora, 190 U. S.
169, 47 L. ed. 1002, 23 Sup. Ct. Rep.
821; Oceanic Steam Nav. Co. v. Strana-
han, 214 U. S. 320, 53 L. ed. 1013, 29
Sup. Ct. Rep. 671. See also Buttfield v.
Stranahan, 192 U. S. 470, 492, 493, 48
L. ed. 525, 534, 535, 24 Sup. Ct. Rep.
349; Weber v. Freed, 239 U. S. 325, 329,
60 L. ed. 308, 310, 36 Sup. Ct. Rep. 131,
Ann. Cas. 1916C, 317; United States ex
rel. Turner v. Williams, 194 U. S. 279,
289, 48 L. ed. 979, 983, 24 Sup. Ct. Rep.
719; Wildenhus's Case (Mali v. Keeper
of Common Jail) 120 U. S. 1, 11, 30 L.
ed. 565, 566, 7 Sup. Ct. Rep. 383.
It is, of course, unnecessary that Con-
gress label its enactment with the words,
9 609
351-353
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm^
''This is a condition." It is plain enon^
from the tenns used.
Oceanic Steam Nav. Co. v. Stranahan,
214 U. S. 320, 53 L. ed. 1013, 29 Sup.
Ct. Eep. 671; Patterson v. The Eudora,
190 U. S. 169, 47 L. ed. 1002, 23 Sup. Ct
Rep. 821.
The statute declares a rule of policy
of the forum, forbidding the enforcement
of contracts providing for the payment
of wages upon the completion of the voy-
age, or at the discretion of the master.
Bond V. Hume, 243 U. S. 15, 61 L. ed.
565, 37 Sup. Ct. Rep; 366 ; The Kensing-
ton, 183 U. S. 263, 46 L. ed. 190, 22 Sup.
Ct. Rep. 102; Oscanyon v. Arms Co. 103
U. S. 261, 26 L. ed. 539; Knott v. Bot-
any Worsted Mills, 179 U. S. 69, 45 L.
ed. 90, 21 Sup. Ct. Rep. 30.
Mr. Justice Day delivered the opinion
of the court:
This case presents questions arising
under the Seamen's Act of March 4,
1915 (38 Stat, at L. 1164, chap. 153,
Comp. Stat. § 8306, 9 Fed. Stat. Anno.
2d ed. p. 145). It appears that Dillon,
the respondent, was a British subject,
and shipped at Liverpool on the 8th of
May, 1916, on a British vessel. The ship-
ping articles provided for a voyage of
not exceeding three years, commencing
at Liverpool and ending at such port in
the United Kingdmn as might be re-
quired by the master, the voyage in-
cluding ports of the United States. The
wages which were fixed by the articles
were made payable at the end of the
voyage. At [352] the time of the de-
mand for one-hall wages* and at the
time of the beginning oi the action, the
period of the voyage had not been
reached. The articles provided that no
cash should be advanced abroad or lib-
erty granted other than at the pleasure
of the master. This, it is admitted, was
a valid contract for the payment of
wages under the laws of Great Britain.
The ship arrived at the port of Pensa-
6ola, Florida, on July 31^ 1916, and while
she was in that port, Dillon, still in the
employ of the ship, demanded from her
master one-half part of the wages there-
tofore earned, and pasonent was refused.
Dillon had received nothing for about
two months, and after the refusal of the
master to comply with his demand for
one-half wages, he filed in the district
court of the United States a libel against
the ship, claiming $125, the amount of
wages earned at the time of demand and
refusal.
The district court found against Dil-
lon upon the ground that his demand was
610
premature. The circuit court of appeals
reversed this decision, and held that Dil-
lon was entitled to recover (168 C. C. A.
25, 256 Fed. 631). A writ of certiorari
brings before us for review the decree
of the circuit court of appeals.
In Sandberg v. McDonald, 248 U. S.
185, 63 L. ed. 200, 39 Sup. Ct. Rep. 84,
and Neilson v. Rhine Shipping Co. 248
U. S. 205, 63 L. ed. 208, 39 Sup. Ct. Rep.
89, we had occasion to deal with § 11 of
the Seamen's Act, and held that it did
not invalidate advancement of seamen's
wages in foreign countries when l^al
where made. The instJant case requires
us to consider now § 4 of the ^ame act.
That section amends § 4530, U. S. Re-
vised Statutes (Comp. Stat. § 8322, 9
Fed. Stat. Anno. 2d ed. p. 158), and so
far as pertinent provides: "Section
4530. Every seaman on a vessel of the
United States shall be entitled to re-
ceive on demand from the master of the
vessel to which he belongs one-half part
of the wages which he shall have then
earned at every port where such vessel,
after the voyage has been commenced,
shall load or deliver cargo before the
voyage is ended and all stipulations in
the contract to the contrary [353]
shall be void : ' Provided, such a demand
shall not be made before the expiration
of, nor oftener than once in five days.
Any failure on the part of the master to
comply with this demand shall release
the seaman from his contract and he
shall be entitled to full payment of wages
earned, . . . And provided further,
that this section shall apply to seamen on
foreign vessels while in harbors of the
United States, and the courts of the
United States shall be open to such sea-
men for its enforcement."
This section has to do with the re-
covery of wages by seamen, and by its
terms gives to every seaman on a vessel
of the United States the right to demand
one-half the wages which he shall' have
then earned at every port where such
vessel, after the voyage has been com^
menced, shall load or deliver .cargo be-
fore the end of the voyage, and stipula-
tions in the contract to the contrary are
declared to be void. A failure of the
master to comply with the demand re-
leases the seaman from his contract, and
entitles him to recover full payment of
the wages, and the section is made ap-
plicable to seamen on foreign vessels
while in harbors of the United States,
and the courts of the United States are
open to such seamen for enforcement of
the act.
This section is an amendment of i 4530
SSS V. s.
I'JIU.
STRATHEARN STEAMSHIP CO. v. DILLON.
353-356
of the Revised Statutes; it was intended
to supplant that section, as amended by
the Act of December 21, 1898 [30 Stat.
at L. 756, chap. 28, § 5, Comp. Stat.
§ 8322, 9 Fed. Stat. Anno. 2d ed. p. 169],
which provided: "Every seaman on a
vessel of the United States shall be en-
titled to receive from the master of the
vessel to which he belongs one-half part
of the wages which shall be due him at
every port where such vessel, after the
voyage has been commenced, shall load or
deliver cargo before the voyage is ended,
unless the contrary be expressly stipu-
lated in the contract," etc.
The section, of which the statute now
under consideration is an amendment,
expressly excepted from the right to re-
cover one half of the wages those cases
in which the [354] contract otherwise
provided. In the amended section all
such contract provisions are expressly
rendered void, and the right to recover is
given the seamen notwithstanding con-
tractual obligations to the contrary^ The
language applies to all seamen on vessels
of the United States, and the second
proviso of the section as it now reads
makes it applicable. to seamen on foreign
vessels while in harbors of the United
States. The proviso does not stop there,
for it contains the express provision
that the courts of the United States
shall be open to seamen on foreign ves-
sels for its enforcement. The latter pro-
vision is of the utmost importance in
determining the proper construction of
this section of the act. It manifests the
purpose of Congress to give the benefit
of the act to seamen on foreign vessels,
and to open the doors of the Federal
courts to foreign seamen. No such pro-
vision was necessary as to American
seamen, for they had the right independ-
ently of this statute to seek redress in
the courts of the United States, and if
it were the intention of Congress to
limit the provision of the act to Ameri-
can seamen, this feature would have
been wholly superfluous.
It is said that it is the purpose to lim-
it the benefit of the act to American sea-
men, notwithstanding this provision giv-
ing access to seamen on foreign vessels
to the courts of the United States, be-
cause of the title of the act, in which its
purpose is expressed "to promote the
welfare of American seamen in the mer-
chant marine of the United States." But
the title is more than this, and not only
declares the purposes to promote the
welfare of American seamen, but, fur-
ther, to abolish arrest and imprisonment
as a penalty for desertion, and to secure
64 li. ed.
the abrogation of treaty provisions in
relation thereto, and to promote safety
at sea. But the title of an act cannot
limit the plain meaning of its text, al-
though it may be looked to to aid in con-.<
struct ion in cases of doubt. Cornell v.
Coyne, 192 U. S. 418, 430, 48 L. ed. 504,
509, 24 Sup. Ct. Rep. 383, and cases cited.
Apart from the text, which we think
plain, it is by [855] no means clear that
if the act were given a construction to
limit its application to American seamen
only, the purposes of Congress would be
subserved, for such limited construction
would have a tendency to prevent the
employment of American seamen, and to
promote the engagement of those who
were not entitled to sue for one-half
wages under the provisions of the law.
But, taking the provisions of the act as
the same are written, we think it plain
that it manifests the purpose of Congress
to place American and foreign seamen
on an equality of right in so far as the
privileges of this section are concerned,
with equal opportunity to resort to the
courts of the United States for the en-
forcement of the act. Before the amend-
ment, as we have already pointed out,
the right to recover one half the wages
could not be enforced in face of a con-
tractual obligation to the contrary. Con-
gress, for reasons which it deemed suffi-
cient, amended the act so as to permit
the recovery upon the conditions named
in the statute. In the case of Sandberg
V. McDonald, supra, we found no pur-
pose manifested by Congress in § 11 to
interfere with wages advanced in foreign
ports under contracts legal where made.
That section dealt with advancements,
and contained no provision such as we
find in § 4. Under § 4 all contracts are
avoided which run counter to the pui*-
poses of the statute. Whether consid-
eration for contractual rights under
engagements legally made in foreign
countries would suggest a different course
is not our province to inquire. It is suffi-
cient to say that Congress has otherwise
declared by the positive terms of this
enactment, and if it had authority to do
so, the law is enforceable in the courts.
We come, then, to consider the con-
tention that this construction renders
the statute unconstitutional as being de-
structive of contract rights. But we
think this contention must be decided
adversely to the petitioner upon the au-
thority of previous cases in this court.
The matter was [356] fully considered
in Patterson v. The Eudora, 190 U. S.
169, 47 L. ed. 1002, 23 Sup. Ct. Rep. 821,
in which the previous decisions of this
6ii
356-358
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
court were reviewed, and the conclusion
reached that the jurisdiction of this gov-
ernment over foreign merchant vessels
in our ports was such as to give author-
ity to Congfress to make provisions of
the character now under consideration;
that it was for this government to de-
termine upon what terms and conditions
vessels of other countries might be per-
mitted to enter our harbors, and to im-
pose conditions upon the shipment of
sailors in our own ports, and make them
applicable to foreign as well as domestic
vessels. Upon the authority of that case,
and others cited in the opinion therein,
we have no doubt as to the authority of
Congress to pass a statute of this sort,
applicable to foreign vessels in our ports,
and controlling the employment and pay-
ment of seamen as a condition of the
right of such foreign vessels to enter
and use the ports of the United States.
But it is insisted that Dillon's action
was premature, as he made a demand up-
on the master within less than five days
after the vessel arrived in an American
port. This contention was sustained in
the district court, but it was ruled other-
wise in the court of appeals. Turning
to the language of the act, it enacts in
substance that the demand shall not be
made before the expiration of five days,
nor of tener than once in five days. Sub-
ject to such limitation, such demand may
be made in the port where the vessel
stops to load or deliver cargo. It is
true that the act is made to apply to
seamen on foreign vessels while in Unit-
ed States ports, but this is far from re-
quiring that the wages shall be earned in
such ports, or that the vessels shall be
in such ports five days before demand
for one half the wages earned is made.
It is the wages of the voyage for which
provision is made, with the limitation of
the right to demand one half of the
amount earned not oftener than once in
five days. The section permits no [357]
demand until five days after the voyage
has begun, and then provides that it may
be made at every port where the vessel
stops to load or deliver cargo, subject to
the five-day limitation. If the vessel
must be five days in port before demand
can be made, it would defeat the pur-
pose of. the law as to vessels not remain-
ing that long in port, and would run
counter to the manifest purpose of Con-
gress to prevent a seaman from being
. without means while in a port of the
United States.
We agree with the circuit court of
appeals of the fifth circuit, whose judg-
ment we are now reviewing, that the
612
demand, was not premature. It is trae
that the circuit court of appeals for the
second circuit held in the case of The
ItaHer, 168 C. C. A. 662, -257 Fed, 712,
that demand made before the vessel had
been in port for five days was prema-
ture; this was upon the theory that the
law was not in force until the vessel had
arrived in a port of the United States.
But the limitation upon demand has no
reference to the length of stay in the
domestic port. The right to recover
wages is controlled by the provisions of
the statute and includes wages earned
from the beginning of the voyage. It
is the right to demand and recover such
wages, with the limitation of the inter-
vals of demand as laid down in the
statute, which is given to the seaman
while the ship is in a harbor of the Unit-
ed States.
We find no error in the decree of the
Circuit Court of Appeds and the same
is -affirmed.
[858] J. M. THOMPSON, Master and
Claimant of the Steamship Westmeath,
etc., Petitioner,
V.
PETER LUCAS and Gustav Blizt.
(See S. C. Reporter's ed. 358-364.)
This case is governed by the decision in
Stratheam Steamship Company v. Dillon,
ante, 007.
[No. 391.]
Argued December 8, 1919. Decided March
29, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals
for the Second Circuit to review a de-
cree which affirmed a decree of the Dis-
trict Court for the Eastern District of
New York in favor of the libellants in
a suit by seamen for wages. Affirmed.
See same case below, 169 C. C. A. 462,
258 Fed. 446.
The facts are stated in the opinion.
Mr. L. De Grove Potter argued the
cause, and, with Mr. John M. Woolsey,
filed a brief for petitioner :
The title of a statute may be consid-
ered as tending to throw light upon the
legislature's intention as to its scope and
operation.
Church of the Holy Trinity v. United
States, 143 U. S. 457, 462, 36 L. ed. 227,
229, 12 Sup. Ct. Bep. 511; United States
V. Fisher, 2 Craneh, 358, 386, 2 L. ed.
ass V. s.
THOMPSON V. LL'CAS.
304, 313; Cooaaw Min. Co. t. South Cato-
Una, 144 U. S. 550, 563, 36 L. ed. 637,
542, 12 Sup. Ct. Rep. 689; Knowlton v.
Moore, 178 U. S. 41, 65, 44 L. ed. 969,
978, 20 Sup. Ct. Rep. 747; United Stales
V. Palmer, 3 Wheat. 610, 631, 4 L. ed.
471, 477.
Where the statute's meaniiig, aa in
thU ease, ia doubtful, or where, as would
be the result in this case, adhrring to the
strict letter would lead to injustice or
contradictory provisions, the duty de-
volves upon the eourt to ascertain the
true meaning. If the iutention of the
legislature cannot be discovered, It is the
dnty of the court to give the statute a
reasonable construction consistent with
the general principles of law and comity.
Chinese Laborer's Case, 13 Fed. 291.
It is a well-recognized rule of construc-
tion, in so far as practicable, to recon-
cile different provisions so as to make
them consistent and harmooioiis.
State, Morris & E. R. Co., Prosecutor,
V. Railroad Taxation Comr. 37 N. J. L.
229; Manuel v. Manuel, 13 Ohio St. 458;
Ogden V. Strong, 2 Paine, 584, Fed. Cas.
No. 10.460.
As this statute is in derogation of the
common law, it should h": construed
strictly.
Sandberg v. McDonald, 248 U. S. 185,
63 L. ed 200, 39 Sup. Ct. Rep. 84; North-
em Securities Co. v. United States, 193
U. S. 361, 48 L. ed. 710, 24 Sup. Ct. Rep.
436; Cope v. Cope, 137 U. S. 682, 685,
34 L. ed. 832, 833, 11 Sup. Ct. Rep. 222;
Fourth Nat. Bank v. Francklyn, 120 U.
S. 747. 753, 30 L. ed. 825, 827, 7 Sup. Ct.
Rep. 757; Shaw v. North Pennsylvania
R. Co. (Shaw V. Merehar.ta' Nat. Bank)
101 U- S. 557, 565, 25 I., ed. 892, 894;
Mebter v, Moore, 96 U. S. 76, 79, 24 L.
ed. 826, 827; Ransom v. WilliamB, 2
Wall. 313, 318, 17 L. ed. 803, 804.
Thia statute is penal, and for that rea-
son should be construed strictlv.
Sandberg v. McDonald, 248 U. S. 185,
63 L. ed. 200, 39 Sup. Ct. Rep. 84; Hardy
V. Sbepard ft M. Lumber Co. 248 U. S.
206, 63 L. ed. 208, 39 Sup. Ct. Rep. 89;
Neilson v. Rhine Shipping Co. 248 U. S.
306, 63 L. ed. 208, 39 Sup. Ct. Rep. 89.
A contract valid where made is valid
everywhere, and ahonld be enforced un-
less against public policy, natural justice,
or morality.
Story, Confl. L. 8th ed. g 242; Molin,
Comment, ad Consuet. Paris, title 1, § 12,
Bouhier, chap. 21 § 190, 2 Boullenios,
obs. 46, p. 458; 2 Kent, Com. 457 ct seq.;
Scudder V. Union Nat. Bank, 91 U. S.
406, 23 L. ed. 245; Northern P. R. Co. v.
Babcock, 154 U. S. 190, 38 L. ed. 958,
•4 1. ed.
14 Sup. Ct Rep. 978; The Antelope, 10
Wheat. 66, 6 L. ed. 268; Tesas & P. R.
Co. V. Coi, 145 U. S. 593, 36 L. ed 829,
12 Sup. Ct. Rep. 905; Smith v. Condry,
1 How. 28, 11 L. ed. 35; The China, 7
Wall. 53, 64, 19 L. ed. 67, 71 ; Dennick
V. Central R. Co. 103 U. S, 11, 26 L. ed.
439; The Scotland (National Steam Nav.
Co. V. Dyer) 105 D. S. 24, 29, 26 L. ed.
1001, 1003; Huntington v. Attrill, 146
U. S. 657, 36 L. ed. 1123, 13 Sup. Ct.
Rep. 224; Wilson v. McNamee, 102 tJ.
S. 572, 26 L. ed. 234; Peninsular ft
Oriental Steam N^v. Co. v. Shand, 3
Moore, P. C. C. N. S. 272, 290, 16 Eng.
Reprint, 110, 6 New Reports, 387, U
Jur. N. S. 771, 12 L.. T. N. S. 808, 13
Week. Rep. 1049; Westlake, Priv. In-
ternational Law, p. 3'*''
The law of nation!
law of the land, and
by the courts of the 1
Talbot V. Seeman, 1
15; Murrav v. The 0
Cranch, 64, 118, 2 L. e<
V. Jennison, 14 Pet. i
579, 593.
This contract is not contrarj' to pub-
lic policy simply because it is in con-
flict with the provisions of U. S, Rev.
Stat, g 4530, Comp. Stat. § 8322, 9 Fed.
Stat. Anno. 2d ed. p. 158.
Northern P. R. Co. v. Babcock, 154 D.
S. 190, 38 L. ed. 958, 14 Sup. Ct. Rep.
978; Sandberg v. McDonald, 248 U. S.
185, 63 L. ed. 200, 39 Sup. Ct. Rep. 84.
The laws and statutes of any state
should not be given extraterritorial
force and effect.
American Banana Co. v. United States
Fruit Co. 213 U. S. 347, 356, 357, 53 L.
ed. 826, 832, 29 Sup. Ct. Rep. 511, 16
Ann. Cas. 1047; Northern P. R. Co. v.
Babcock, 154 U. S. 190, 38 L. ed. 958, 14
Sup. Ct. Rep. 978; Crapo v.' Kelly, 16
Wall. 610, 624, 21 L. ed. 430, 436; Bank
of Augusta V. Earle, 13 Pet. 519, 10 L.
ed. 274; Huntington v. Attrill, 146 U. S.
657, 670, 36 L. ed. 1123, 1128, 13 Sup.
Ct. Rep. 224; Cuba R. Co. v. Crosby, 222
U. S. 473, 56 L. ed. 274, 38 L.R.A.(N.S.)
40, 32 Sup. Ct. Rep. 132; The Belgen-
land, 114 V. S. 365, 370, 29 L. ed. 152,
157, 5 Sup. Ct. Rep. 860; La Boulogne
(Deslions v. La Compagnie OenfraU
Transatlantiqne) 210 U. S. 95, 115, 52
L. ed. 973, 983, 28 Sup. Ct. Rep. 664;
The Eestor, 110 Fed. 449; The Laming-
ton, 87 Fed. 752; Bundell v. La Cora-
pasnie General^ Transatl antique, 49
t.R.A. 92, 40 C. C. A. 625, 100 Fed. 660;
United States v. Palmer, 3 Wheat. 610,
631, 634, 643, 4 L. ed. 471. 477. 480;
United States v. Klintock, 5 Wheat. 144,
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
6 L. ed. 55; The ApoUon, 9 Wheat. 362,
6 L. ed. Ul; The Hamilton (Old Domin-
ion S. S. Ck). V. Gilmore) 207 U. S. 398,
405, 52 L. ed. 264, 270, 28 Sup. Ct. Rep.
1.33; The Scotia (Sears v. The Scotia)
14 Wall. 170, 184, 20 L. ed. 822, 824;
Marshall v. Murgatroyd, L. R. 6 Q. B.
31, 40 L. J. Mag. Cas. N. S. 7, 23 L. T.
N. S. 393, 19 Week. Rep. 72; Oceanic
Steam Nav. Co. v. Mellor, 233 U. S. 718,
732, 68 L. ed. 1171, 1180, L.R.A.1916B,
637, 34 Sop. Ct. Bep. 754; Lloyd v. Gai-
bert, L. R. 1 Q. B. 127, 5 Eng. Rul. Cas.
870, 6 Best k S. 100, 122 £ng. Reprint,
1134, 35 L. J. Q. B. N. S. 74, 13 L. T.
N. 8. 602; The Dio Adelphi, Not. 1879,
91 Jonr. du Palais, 1880, pp. 603, 609.
This eonrt, in the oases that have come
before it, has eonstmed the act under
consideration as not having any extra-
territorial force.
Sandberg v. McDonald, 248 U. S. 185,
63 L. ed. 200, 39 Sup. Ct. Rep. 84; Neil-
son V. Rhine Shipping Co. 248 U. S. 205,
63 L. ed. 208; 39 Sup. Ct. Rep. 89. To
the same effect are: The Italier, 168 C.
C. A. 662, 257 Fed. 712: The Nigretia,
166 C. C. A. 384, 255 Fed. 56; The Bel-
gier, 246 Fed. 966; The State of Maine,
22 Fed. 734.
Where a controversy concerns the
rights and duties of the crew to the ship
or among themselves, and does not in-
volve a breach of the peace on a foreign
vessel on the high seas, or in the port of
another country, the law of the flag of
the vessel governs the rights and liabili-
ties of the parties just as conclusively as
though the controversy had arisen on
land within the territorial jurisdiction
of the country whose flag the vessel flies,
for a ship has long been regarded by the
courts and by writers on international
lai^ as a floating island of the country to
which she belongs.
Wildenhus's Case (Mali v. Keeper of
Common Jail) 120 U. S. 1, 30 L. ed. 565,
7 Sup. Ct. Rep. 383; Liverpool & G. W.
Steam Co. v. Phenix Ins. Co. (The Mon-
tana) 129 U. S. 397, 32 L. ed. 788, 9
Sup. Ct. Rep. 469; The Belgenland 114
U. S. 355, 369, 370, 29 L. ed. 152, 157,
158, 5 Sup. Ct. Rep. 860; The Scotland
(National Steam Nav. Co. v. Dyer) 105
U. S. 24, 29, 26 L. ed. 1001, 1003; Re
Ross, 140 U. S. 453, 35 L. ed. 581, 11
Sup. Ct. Rep. 897; Patterson v. The
Eudora, 190 U. S. 169, 176, 47 L. ed.
1002, 1006. 23 Sup. Ct. Rep. 821; Wil-
son V. McNamee, 102 U. S. 572, 574, 26
L. ed. 234, 235; The Hamilton (Old Do-
minion S. S. Co. V. Gilmore) 207 U. S.
398, 52 L. ed. 264, 28 Sup. Ct. Rep. 133;
Dicey, Confl. L. 2d ed. § 663; Whart.
611
Confl. L. § 473; Minor, Confl. L. § 195;
Bluntschli, International Law, § 317; 1
Calvo, Droit International, 4th ed. 552;
Book 6, § 3; 2 Rutherford, chap. 9; 2
Moore, International Law Dig. §§ 204,
207.
While the history of a statute, from
the time it is introduced until it is final-
ly passed, may afford some aid to its
construction, the views and votes of in-
dividual members, expressed in debate,
are not legitimate aids to its oonstrac-
tion.
United States v. Union P. R. Co. 91
U. S. 73, 23 L. ed. 224; Chureh of the
Holy Trinity v. United States, 143 U. S.
457, 464, 36 L. ed. 226, 229, 12 Sup. Ct.
Rep. 511; United States .v. Traas-
Missonri Freight Asso. 166 U. B. 290,
318, 41 L. ed. 1007, 1019, 17 Sup. Ct.
Rep. 540; Johnson v. Southern P. Co.
196 U. S. 1, 49 L. ed. 363, 25 Sup. Ct.
Rep. 158, 17 Am. Neg. Rep. 412; Downes
V. Bidwell, 182 U. S. 244, 254, 45 L. ed.
1088, 1093, 21 Sup. Ct. Rep. 770.
However, it has been held by this
court in the case of Lincoln v. IJnited
States, 202 U. S. 484, 50 L. ed. 1117, 26
Sup. Ct. Rep. 728, that where an aet of
Congress is passed over opposition of a
minority, as in this case, it is to be con-
sidered that the words of the act rep-
resent all the majority deemed it safe to
ask.
If the provisions of this section which
do not specifically apply to foreign sea-
men on foreign vessels are construed by
this court to apply to the case at bar,
the effect of such a construction would
be tantamount to holding that Congress
may legislate as to contracts made on
foreign soil, and affecting only for-
eigners.
The Apollon, 9 Wheat. 362, 6 L. ed.
Ill; South Carolina v. United States,
199 U. S. 437, 50 L. ed. 261, 26 Sup. Ct.
Rep. 110, 4 Ann. Cas. 737; Brown v.
Duchesne, 19 How. 183, 15 L. ed. 595.
The interference with the liberty to
contract on such terms as may be ad-
visable to the- parties to the contract is
a deprivation of liberty, without dne
process of law.
Allgeyer v. Louisiana, 165 U. S. 578,
41 L. ed. 832, 17 Sup. Ct. Rep. 427.
It is true that, in derogation of the 5th
Amendment, Congress may legislate in
such a manner as to deprive persons of
the liberty of entering into certain oon-
tracts, but the justification for such
legislation has always been motives of
policy based on the exercise of poliee
power.
S5S U. 6.
1919.
THOMPSON V. LUCAS.
363, 364
Patterson y. The Eadora, 190 U. S.
169, 175, 47 L. ed. 1002, 1006, 23 Sup.
Ct. Bep. 821.
In order to justify any legislation un-
der the poliee power it must appear
plainly that the legislation has a tend-
ency to rectify the* conditions which the
legislative body has thoueht it needful
to remedy. The courts wiu look through
the form of any legislative enactment
and get at the substance of the matter.
Booth ▼. lUinois, 184 U. S. 425, 429,
46 L. ed. 623, 626, 22 Sup. Ct Rep. 425.
Althou^ the Federal l^slatnre is
not prohibited from passing laws im-
pairing the obligation of contracts, it
cannot deprive a person of property
without due process of law.
Hepburn v. Oriswold, 8 WaU. 603, 623,
19 L. ed. 613, 526; McCraeken v. Hay-
ward, 2 How. 608, 612, 11 L. ed. 397,
399; Sinking Fund Cases, 99 U. S. 700,
25 L. ed. 496; Cooley, Const. Lim. 7th
ed. 507.
Mr. W. J. Waguespack argued the
cause, and, with Mr. Silas B. Aztell,
iiled a brief for respondents :
Section 4530 of U. S. Revised Stat-
utes, Comp. Stat. § 8322, 9 Fed. Stat.
Anno. 2d ed. p. 158, means what it says.
Seamen on foreign vessels, while in
ports of the United States, have a right
to receive half the wages standing to
their credit, and the courts of the United
States are open to them for collection.
United States v. Fisher, 2 Cranch,
362, 366, 2 L. ed. 306, 307; United States
V. Oregon & C. R. Co. 164 U. S. 526, 541,
41 L. ed. 541, 545, 17 Sup. Ct. Rep. 165;
Cornell v. Coyne, 192 U. S. 418, 430, 48
L. ed. 504, 509, 24 Sup. Ct. Rep. 383;
Hamilton v. Robertson, 175 U. S. 414,
421, 44 L. ed. 219, 222, 20 Sup. Ct. Rep.
155; Re Ivertsen, 237 Fed. 498; The
London, 154 C. C. A. 565, 241 Fed. 863;
The Meteor, 241 Fed. 735; The Talus,
242 Fed. 954; The Delagoa, 244 Fed.
835; The Westmeath, 169 C. C. A. 462,
258 Fed. 446 ; The Stratheam, 168 C. C.
A. 25, 266 Fed. 631 ; The Sutherland, 260
Fed. 247; The Neilson v. Rhine Shipping
Co. 248 U. 8. 205, 63 L. ed. 208, 39 Sup.
Ct. Rep. 89.
Section 4530 is constitutional, and en-
forceable against foreign vessels to the
same extent that it is enforceable against
domestic vessels.
Wildenhus's Case (Mali v. Keeper of
Common Jail) 120 U. S. 1, 30 L. ed. 565,
7 Sup. Ct. Rep. 383; Patterson v. The
Eudora, 190 U. S. 177, 47 L. ed. 1002,
23 Sup. Ct. Rep. 821.
The Seamen's Act in all of its parts
64 Ij. ed.
is remedial in character, and should be
liberally interpreted with a view to ef-
fecting the purposes intended.
Denn ex dem. Scott v. Reid, 10 Pet.
524, 526, 9 L. ed. 519, 520; Parks v.
Turner, 12 How. 39, 13 L. ed. 883;
United States v. Nickerson, 17 How.
204, 209, 15 L. ed. 219, 221; United
States V. Padelford, 9 Wall. 531, 537,
19 L. ed. 788, 790; United States v.
Hodson, 10 Wall. 395, 19 L. ed. 937;
Home L. Ins. Co. v. Dunn, 19 Wall.
214, 224, 22 L. ed. 68, 69; Western U.
Teleg. Co. v. Eyser, 19 Wall. 419, 427,
22 L. ed. 42, 44; Texas v. Chiles, 21 WaU.
488, 491, 22 L. ed. 650, 651 ; McBumey v.
Carson, 99 U. S. 567, 25 L. ed. 378 ; Jones
V. New York Quaranty ft Indemnity Co.
101 U. S. 622, 25 L. ed. 1030; Gertgens
V. O'Connor, 191 U. S. 237, 48 L. ed. 163,
24 Sup. Ct. Rep. 94; Beley v. Naphtaly,
169 XL S. 353, 359, 42 L. ed. 775, 777,
18 Sup. Ct. Rep. 354; New York, N. H.
& H. R. Co. V. Interstate Commerce
Commission, 200 U. S. 36L 50 L. ed. 515,
26 Sup. Ct Rep. 272; Farmers' ft M.
Nat. Bank v. Dearing, 91 U. S. 29, 35,
23 L. ed. 196, 199.
The fact that the contract was made
prior to March 4, 1916, when the act
went into effect on foreign vessels, does
not change the result.
Louisville ft N. R. Co. v. Mottley, 219
U. S. 482, 55 L. ed. 303, 34 L.RJL.(N.S.)
671, 31 Sup. Ct. Rep. 265.
Mr. Justice Day delivered the opinion
of the court :
This case was argued at the same time
as Number 373, just decided [252 U. S.
348, ante, 607, 40 Sup. Ct. Rep. 350]. In
this case the libellants shipped as part
of the crew of the British steamer West-
meath for a voyage not to exceed one
year, before the expiration of which
time the vessel arrived in the harbor
of New York, where she loaded and dis-
charged cargo. A demand was made for
one-half wages under § 4 of the Sea-
men's Act of March 4, 1915 [38 Stat, at
L. 1165, chap. 153, Comp. Stat. § 8322,
9 Fed. Stat. Anno. 2d ed. p. 159]. The
demand was refused, and an action was
begun for full wages. A defense was
set up that the libellants were deserters,
and therefore not entitled to recover.
The district court and the circuit court
of appeals held that the libellants' case
was made out under the statute. 169
C. C. A. 462, 258 Fed. 446.
[364] The case is controlled by prin-
ciples which governed the disposition of
No. 373. The difference being that it ap-
pears in this case that demand was made
615
364-36d
SUPREME COURT OF THE UNITED STATES.
Oct. Twmm,
more than five days after the vessel had
arrived in the United States port. In
all other respects as to the constitution-
ality and constmction of the statute our
judgment in the former case is control-
ling. It follows that the decree of the
Circuit Court of Appeals must be af-
firmed.
Affirmed.
CHARLES GLEN CCH^UNB, Appt.,
V.
FRANK M. MILLER, United States Mar-
shal for the Eastern District of Louiftiana.
(No. 350.)
TOM F. CARLISLE, BrHish Consul Gen-
eral, Appt.,
v.
CHARTiFiS GLEN COLLINS. (No. 351.)
(See S. C. Reporter's ed. 364-371.)
Appeal — question not raised by par-
ties ~ finality of decision below.
1. The fundamental qnestion whether
the judgment apj^ealed from is a final one
must be answered, although not raised try
either party.
[For other cases, tee Appeal and Error, VIII.
a, in Diffest Sup. Ct. 1908.]
Appeal — final Judgment ~ complete
determination of case.
2. A sinffle judgment upon a petition
for a writ of habeas corpus setting forth
a detention of the relator in extradition
proceedings on three separate afSdavits is
not reviewable on appeal^ where such judg-
ment, though directing that the writ be
denied as to the commitment on one of
these affidavits, also declared that the
writs of habeas corpus are granted as to
the commitments on the other two affida-
vits^ and ordered that the case be remand-
ed for further hearing, since only one
branch of the case having been finally dis-
posed of below, none of it is reviewable.
[For other cases, see Appeal and Brror, I. d;
in Digest Sup. Ct. 1908.]
[Nos. 350 and 351.]
Argued December 9, 1919. Decided March
29, 1920.
TWO APPEALS from the District
Court of the United States for the
Eastern District of Ix>uisiana to review
a judgment denying a writ of habeas
corpus to review a commitment on one
Notew — As to what judgements or de-
crees are final for purposes of review —
see notes to Qibbons y. Ogden, 5 L. ed. U«
S. 302; Sehlosser v. Hemphill, 49 L. ed.
U, S. 1001; and Detroit & M. R. Co. v.
Michigan S. E. Commission, 60 L. ed.
U. S. 802.
616
of three afi&davits, and granting the writ
as to the commitments on the other two.
Dismissed for want of jurisdiction.
The facts are stated in the opinion.
Mr. J. Zach. Bpearing argued the
cause, and, with Mr, J. Kesip Bavtlett,
filed a brief for Charlas Qlen Collina.
Mr. Onion Miller also argued the cause
for Charles Glen Collins.
Mr. Oharlis Fox argued the canac,
and, with Mr. Robert H. Marr, filed a
brief for appellee in Ko. 350 and ap|)el-
lant in No. 351.
Mr. Donaldson Caffery also filed a
brief for appellee in No. 350 and appel-
lant in No. 351.
' Mr. Justice Brandeis delivered the
opinion of the court:
These are appeals from a single judg-
ment entered by the district court of
the United States for the eastern dis-
trict of Louisiana on a petition ' for
writs of habeas corpus and certiorari.
The relator had been arrested on extra-
dition proceedings. Each party asks to
have reviewed the construction given
below to provisions of our treaty with
Great Britain, proclaimed August 9^
1842 (8 Stat at Jm 572, 576), and of
the supplementary treaty proclaimed
April 22, 1901 (32 Stat, at L. 1864).
The questions presented are, therefore,
of a character which may be reviewed
upon direct appeal under § 238 of the
Judicial Code [36 Stat, at L. 1157, chap.
231, Comp. Stat § 1215, 6 Fed. Stat.
Anno. 2d ed. p. 794]. Charlton v. Kelly,
229 U. S. 447, 57 L. ed. 1274, 46 LJI.A.
(N.S.) 397, 33 Sup. Ct. Rep. 946. But
this court has jurisdiction on writ of
error and appeal under that section, as
under others, only from final judgments.
McLish V. RoflP, 141 U. 8. 661, 35 L,
ed. 893, 12 Sup. Ct. Hep. 118; Heike ▼.
United States, 217 U. S. 423, 54 L. ed.
821, 30 Sup. Ct. Rep. 539. And the
rule applies to habeas corpus proceed-
ings. Harkrader v. Wadley, 172 U. S. 148,
162, 43 U ed. 399, 404, 19 Sup. Ct Rep.
119. The fundamental question whether
the judgment appealed from [S66] is a
final one within the meaning of t&e rule
has suggested itself to the court; and it
must be answered, although it was not
raised by either party. Defiance Water
Co. V. Defiance, 191 U. S. 184, 194, 48
L. ed. 140, 144, 24 Sup. Ct. Rep. 63. In
order to answer the question it is neces-
sary to describe the proceedings before
the committing magistrate as well as
2Sa V. 3*
1»1».
COLtlNS y. MILLEB.
those in the district court on th« peti-
tion for a writ of habeas cofpns.
In October and November, 1918, the
British Consul Geileral at New Orleans
filed with the Honorable Rnfus E. Fos-
ter, District Judge of the United States
for the Eastern District of Louisiana,
three separate affldayits, eadi char^g
that Charles Glen Collins, who was then
within the jurisdiction of that court, had
eommitted at Bombay, India, the crime
therein described as obtaininj; t>RU>ertj
nnder false protenaes, and that as stood
eherged therewith in the chief presi-
dency magistrate's court at Bombay;
and asking that he be committed as a
fugitive from justice for the purpose of
having him returned to India for trial
Warrants of arrest issued and Collins
moved, as to each affidavit, to dismiss
for want of jurisdiction, contending that
the transactions in question were com-
mercial dealings in which he had merely
failed to pay debts incurred. Hear-
.iogs, entitled, "In the Matter of Extra-
dition Proceedings of Charles Qlen Col-
lins," were had before Jndge Foster, at
which the Consul General and Collins
appeared by counsel. Evidence in sup-
port of each of the three afBdavits was
introduced by the Consul General. Then
Collins, who was sworn at his request,
admitted his identity and that he had
been present in India at the times each
of the alleged crimes was committed.
As to one of the charges, that of obtain-
ing a pearl button from Mohamed Alii
Zaimel ali Raza, be was allowed to tes-
tify further. But he was not permitted
to testify as to matters concerning the
other two, which had been consolidated.
And he was not permitted to introduce
other witnesses in defense of any of the
three [867] affidavits. After the hear-
ings were concluded Judge Foster made
two orders or judgments signed by him
as judge of said United States district
court and entitled in said court. In
these orders he found, as to each
of the affidavits, that he deemed the
evidence sufficient to sustain the charge
nnder the law and the treaty; and
as to each he ordered Collins recom-
mitted to the House of Detention
in the custody of the United States
marshal for that district, to await the
order of the President of the United
States. The two proceedings (which in-
cluded the three affidavits) were then
consolidated. Under date of November
27, 1918, a certificate setting forth his
findings, together with a copy of the
record in all the proceedings, was trans-
mitted to the Secretary of State.
<4 C. ed. '
This petition for writs of habeas cor-
is and certiorari was filed by Collins,
Louisiana."
Neither party took any action in re-
spect to such further proceiedings be-
fore Judge Foster. On March 3, 1919,
Collins petitioned for leave to appeal,
contending that he should have been dis-
charged on all three affidavits, and his
appeal was allowed. This is case 'No.
350 on the docket of this court. Later,
the British Consul General petitioned
for leave to appeal on the ground that
Collins's application should have been
definitely denied also as to the commit-
ment on the other two affidavits. His
appeal, being N *" " ' x&et of
this court, was ; 8, 1919.
First: Was ippealed
from a final one tion for
a writ of babea: ts forth
detention of the i% sepa-
rate affidavits. mitment
on one of thes< entered
by Judge Gmbl :he writ
be "denied." 8 lore ap-
propriately disn . t, would
obviously have been a final judgment,
if it had stood alone. McNamara Vi'
380, 381
SUPREME COURT OF THE UNITED STATES.
Oct. Jolu,
man, 179 Cal. 497, 177 Pac. 461 ; Funk v.
SUte, — Tex. Crim. Eep. — , 208 S. W.
509; United States v. Hirach, 254 Fed.
109.
Solicitor General King and Mr. H. S.
Ridgely filed a brief as amici curias in
behalf of the United States:
The power of Congress is plenary.
Coleman v. Tennessee, 97 U. S. 514, 24
L. ed. 1121; Tarble's Case, 13 Wall. 397,
408, 20 L. ed. 597, 600; Western U.
Teleg. Co. v. Boegli, 251 U. S. 315, ante,
281, 40 Sup. Ct. Rep. 167.
It is to be observed that while Cole-
man V. Tennessee, 97 U. S. 509, 24 L. ed.
1118, under the then-existing Federal
statutes, held that state courts had, in
loyal states, concurrent jurisdiction with
courts-martial, even during the time of
war, the exact question was. Had the
courts of Tennessee such power? And
this was decided against the power. The
cases of Grafton v. United States, 206
U. S. 333, 61 L. ed. 1084, 27 Sup. Ct.
Rep. 749, 11 Ann. Cas. 640, and Franklin
V. United States, 216 U. S. 559, 54 K ed.
615, 30 Sup. Ct. Rep. 434, were what
may be termed peace-time cases. The
assertion, therefore, in the opinions in
those cases, that the civil jurisdiction is
concurrent with that of courts-martial,
may well be taken to refer to peace
times, particularly in view of the per-
missive civil jurisdiction now recognized
in article 74 of the Articles of War,
and of United States ex rel. Drurv v.
Lewis, 200 U. S. 1, 7, 50 L. ed. 343, 345,
26 Sup. Ct. Rep. 229; Selective Draft
Law Cases (Arver v. United States) 245
U. S. 366, 377, 382, 383, 62 L. ed. 349,
352, 355, L.R.A.1918C, 361, 38 Sup. Ct. i
Rep. 159, Ann. Cas. 1918B, 856; Ex'
parte Foley, 243 Fed. 474; Re Wulzen,
235 Fed. 367, Ann. Cas. 1917A, 274;
Trask v. Payne, 43 Barb. 575; Ex parte
Bright, 1 Utah, 154.
By enlistment the citizen becomes a
soldier. His relations to the state and
to the public are changed.
Re Grimley, 137 U. S. 147, 152, 34 L.
ed. 636, 638, 11 Sup. Ct. Rep. 54.
Mr. Chief Justice White delivered the
opinion of the court:
Pending the existence of a state of
war with Germany the appellant, a sol-
dier in the Army of the United States,
serving in a camp in Alabama, was tried
and convicted for the murder of a civil-
ian at a place within the jurisdiction of
the state, and not within the confines
of any camp or place subject to the con-
trol of the civil or military authorities
622
of the United States. The conviction
was reviewed and afi&rmed by the su-
preme court of Alabama, and was re-
examined and reaffirmed on rehearing.
The case is here to reverse the action
of the court below in refusing, on writ
of habeas corpus, a discharge which was
prayed on the ground that, under the
circumstances stated, the sentence was
void because the state court had no ju-
risdiction whatever over the subject of
the commission of the crime, since, under
the Constitution and laws of the United
States, that power was exclusively vest-
ed in a court-martial.
As there was no demand by the mili-
tary authorities for the surrender of
the accused, what would have been the
effect of such a demand, if made, is not
before us. The contention of a total ab-
sence of jurisdiction in the state court
is supported in argument, not only by
the appellant, but also by the United
States in a brief which it has filed as
amicus curie. These arguments, while
differing in fqrms of expression, rest up-
on the broad assumption that Congress,
in re-enacting the Articles of War in
1916, by an exercise of constitutional
authority, vested in the military courts
during a state of war exclusive jurisdic-
tion to try and punish persons in the
military service for offenses [381] com-
mitted by them which were violative of
the law of the several states. • In other
words, the proposition is that under the
Act of August 29, 1916 [39 SUt. at L.
650, chap. 418, Comp. Stat. § 2308a, 9
Fed. Stat. Anno. 2d ed. p. 1243], by mere
operation of % declaration of war, the
states were completely stripped of au-
thority to try and punish for virtually
all offenses against their laws committed
by persons in the military service. As in
both arguments differences between the
provisions of the Act of 1916 and the
previous Articles are relied upon to sus-
tain the accomplishment of the result
contended for, we must briefly consider
the prior Articles before we come to test
the correctness of the conclusion souf^t
to be drawn from the Articles of 1916.
The first Articles of War were adopt-
ed in 1775. By them the generic power
of courts-martial was established as fol-
lows:
'Ti. All crimes, not capita], and all
disorders and neglects, which officers and
soldiers may be guilty of, to the preju-
dice of good order and military disci-
pline, though not mentioned in the
Articles of War, are to be taken cogni-
zance of by general or regimental oourt-
martial, according to the nature and de-
252 U. S.
1919.
CALDWELL v. PARKER.
381-384
gree of the offense, and be punished at
their discretion.'*
It cannot be disputed that the effect
of this gprant was to confer upon courts-
martial as to offenses inherently military
an exclusive authority to try and pun-
ish. In so far, however, as acts which
were criminal under the state law, but
which became subject to military au-
thority because they could also appro-
priately be treated as prejudicial to good
order and military discipline, a concur-
rent power necessarily arose, although
no provision .was made in the Articles
regulating its exercise. But this omis-
sion was provided for in Article 1 of §
10 of the revised Articles adopted in
1776, as follows:
"Whenever an officer or soldier shall
be accused of a capital crime, or of hav-
ing used violence, or of having committed
any offense against the persons or prop-
erty of the good people [382] of any of
the United American states, such as is
punishable by the known laws of the
land, the commanding officer and officers
of every regiment, troop, or party, to
which the person or persons so accused
shall belong, are hereby required, upon
application duly made, or in behalf of
the party or parties, to use his utmost
endeavors to deliver over such accused
person or persons to the civil magistrate;
and likewise to be aiding and assisting to
the officers of justice in apprehending
and securing the person or persons so
accused, in order to bring them to a trial.
If any commanding officer or officers
shall wilfully neglect or shall refuse,
upon the application aforesaid, to deliver
over such accused person or persons to
the civil magistrates, or to be aiding or
assisting to the officers of justice in ap-
prehending such person or persons, the
officer or officers so offending shall be
cashiered."
In view of the terms of this Article, and
the fact that it was drawn from the
British Articles, where the supremacy of
the civil law had long prevailed, it re-
sults that its provisions gave the civil
courts, if not a supremacy of jurisdic-
tion, at least a primary power to pro-
ceed against military offenders violating
the civil law, although the same acts
were concurrently within the jurisdic-
tion of the military courts because of
their tendency to be prejudiciid to good
order and military discipline.
And in harmony with this view, the
Articles in question were applied up to
1806, in which year they were re-enacted
without change as Articles 99 and 33 of
that Revision, and were in force in 1863,
64 Ij. ed.
in the Enrolment Act of which year it
war provided (Act of J^arch 3, 1863,
§ 30, 12 Stat, at* L. 736, chap. 75) :
"That in time of war, insurrection, or
rebellion, murder, assault and battery
with an intent to kill, manslaughter,
mayhem, wounding by shooting or stab-
bing with an intent to commit murder,
robbery, arson, burglary, rape, assault
and battery with an intent to commit
[383] rape, and larceny, shall be pun-
ishable by the sentence of a general
court-martial or military commission,
when committed by persons who are in
the military service of the United States,
and subject to the Articles of War; and
the punishment for such offenses shall
never be less than those inflicted by the
laws of the state, territory, or district
in which they may have been com-
mitted."
It is to be observed that by this section
there was given to courts-martial, under
the conditions mentioned, power to pun-
ish for capital crimes, from which their
authority had been from 1775 expressly
excluded; and power was also given to
deal, under the conditions stated and in
the manner specified, with other enumer-
ated offenses over which they had not,
prior to the passage of the act, had ju-
risdiction, presimiably because such acts
had not in practice been treated as with-
in the grant of authority to deal with
them as prejudicial to good order and
military discipline.
In 1874, when the Articles of War
were revised and re-enacted (Rev. Stat.
§ 1342, Comp. Stat. § 2308a), the generic
grant of power to punish acts prejudicial
to good order and military discipline
was re-expressed in Article 62, sub-
stantially as it existed from 1775. The
provisions of § 30 of the Act of 1863,
supra, were in so many words made to
constitute Article 58; and the duty put
upon military officials, to surrender to
state officers, on demand, persons in the
military service charged with offenses
against the state, was re-enacted in Ar-
ticle 59, qualified, however, with the
words, "except in time of war." Thus
the Articles stood until they were re-
enacted in the Revision of 1916, as fol-
lows:
The general grant of authority as to
acts prejudicial to good order and mili-
tary discipline was re-enacted in Article
96, substantially as it had obtained from
the beginning. The capital offenses of
murder and rape, as enumerated in §
30 of the Act of 1863, were placed in a
distinct Article, [384] and power was
623
384-386
SUPREME COURT OF THE UNITED STATES.
Oct. Tkhic«
given to military courts to prosecute
and punish them, as follows:
"Article 92. Murder — Rape. — Any
person subject to military law who com-
mits murder or rape shall suffer death or
imprisonment for life, as a court-martial
may [be] direct; but no person shall be
tried by court-martial for murder or
rape committed within the geographical
limits of the states of the Union and the
District of Columbia in time of peace."
39 Stat, at L. 664, chap. 418, Comp. Stat.
§ 2308a (92), 9 Fed. Stat. Anno. 2d ed.
p. 1286.
The remaining offenses enumerated in
the Act of 1863 were placed in a sep-
arate Article, as follows:
"Art. 93. Various crimes. — ^Any per-
son subject to military law who commits
manslaughter, mayhem, arson, burglary,
robbery, larceny, embezzlement, perjury,
assault with intent to commit any felony,
or assault with intent to do bodily harm,
shall be punished as a court-martial may
direct." 39 Stat, at L. 664.
And finally, the duty to respond to the
demand of the state authorities for the
surrender of military offenders against
the state criminal laws was re-enacted as
it had prevailed from the beginning, sub-
ject, however, to express regulations to
govern in case of conflict between state
and Federal authority, and again subject
to the qualification, "except in time of
war," as first expressed in the Revision
of 1874, the Article being as follows :
"Art. 74. Delivery of offenders to civil
authorities. — When any person subject
to military law, except one who is held
by the military authorities to answer, or
who is awaiting trial or result of trial,
or who is undergoing sentence for a
crime or offense punishable under these
articles, is accused of a crime or offense
committed within the geographical limits
of the states of the Union and the Dis-
trict of Columbia, and punishable by the
laws of the land, the commanding officer
is required, except in time of war, upon
application duly made, to use his utmost
endeavor to deliver over such accused
person. to the civil [385] authorities, or
to aid the officers of justice in apprehend-
ing and securing him, in order that he
may be brought to trial. Any oommanding
officer who upon such application refuses
or wilfully neglects, except in time of
war, to deliver over such accused person
to the civil authorities or to aid the of-
ficers of justice in apprehending and se-
curing him shall be dismissed from the
service or suffer such other punishment
as a court-martial may direct." 39 Stat.
at L. 662.
624
Comprehensively considering th^e
provisions, it is apparent that they con-
tain no direct and clear expression of a
purpose on the part of Congress, conced-
ing, for the sake of the argument, that
authority existed under the Constitution
to do so, to bring about, as the mere
result of a declaration of war, the com-
plete destruction of state authority and
the extraordinary extension of military
power upon which the argument rests.
This alone might be sufficient to dispose
of the subject, for, as said in Coleman v.
Tennessee, 97 U. S. 609, 514, 24 L. ed.
1118, 1121 : "With the known hostility
of the American people to any interfer-
ence by the military with the regular
administration of justice in the civil
courts, no such intention should be
ascribed to Congress in the absence of
clear and direct language to that effect.**
Certainly, it cannot be assumed that the
mere existence of a state of war begot
of necessity the military power asserted,
since the Articles of War, originally
adopted in 1775, were, as' we have seen,
in the very midst of the War for Inde-
pendence, modified in 1776 to make cer-
tain the preservation of the civil power.
But the contention relied upon is di-
rectly based upon the words, "except in
time of war," as qualif3ring the duty of
the military officers to respond to the
demand by state authority for the sur-
render of military offenders against the
state criminal laws, imposed by Article
74, and the grant in Article 92, expressed
in the form of a negative pregnant, of
authority to courts-martial to try capi-
tal [386] crimes when committed by an
officer or soldier within the geographi-
cal limits of the United States and the
District of Columbia in time of war.
Both these provisions took their origin
in the Act of 1863, and were drawn
from the terms of that act as re-
expressed in the Revision of 1874. By
its very terms, however, the Act of.
1863 was wholly foreign to the de-
struction of state and the enlarge-
ment of military power here relied
upon. It is true, indeed, that by that
act authority was for the first time given,
as pointed out in the Coleman Case, su-
pra, to courts-martial or military com-
missions to deal with capital and other
serious crimes punishable under the state
law. But the act did not purport to
increase the general power of courts-mai^
tial by defining new crimes, or by bring-
ing enumerated offenses within the cate-
gory of military crimes as defined from
the beginning, as we have already point-
ed out, but simply contemplated endow-
S52 U. 8.
1919.
CALDWELL V. PARKER.
386-388
ing the military authorities with power,
not to supplant, but to enforce, the state
law. As observed by Winthrop, in his
work on Military Law, 2d ed. page 1033,
, it was intended to provide, through the
military authorities, means of enforcing
and punishing crimes against the state
law, committed by persons in the mili-
tary service, where^ as the result of the
existence of martial law or of military
operations, the courts of the state were
not open, and military power was there-
fore needed to enforce the state law.
And it was doubtless this purpose indi-
cated by the text, to which we have al-
ready called attention, which caused the
court in the Coleman Case to say that
that statute had no application to terri-
tory where "the civil courts were open
and in the undisturbed exercise of tfeir
jurisdiction." Page 515.
As in 1867 it was settled in Ex parte
Milligan, 4 WaU. 2, 18 L. ed. 281, that
a state of war, in the absence of some
occasion for the declaration of martial
law or conditions consequent on military
operations, gave no power to the military
authorities where the civil courts were
open and capable of performing [387]
their duties, to disregard their authority
or frustrate the exercise by them of their
normal and legitimate jurisdiction, it is
indeed open to grave doubt whether it
was the purpose of Congress, by the
words "except in time of war," or the
cognate words which were used with ref-
erence to the jurisdiction conferred in
capital cases, to do more than to recog-
nize the right of the military authorities,
in time of war, within the areas affected
by military operations^ or where martial
^xw was controlling, or where civil au-
thority was either totally suspended or
obstructed, to deal with the crimes speci-
fied,— a doubt which, if solved against
the assumption of general military pow-
er, would demonstrate not only the juris-
diction of the state courts in this case,
but the entire absence of jurisdiction in
the military tribunals. And this doubt
becomes additionally serious when the
Revision of 1874 is considered, since in
that revision the Act of 1863 was in
terms re-enacted and the words "except
in time of war," appearing for the fiwt
time in Article 59 of that revision,
could have been alone intended to qualify
the time of war with which the act
dealt; that is, a condition resulting from
64 Ij. ed.
a state of war whieh prevented or inter-
fered with the discharge of their duties
by the civil courts.
Into the investigation of the subject of
whether it was intended by the provision
^'except in time of war," contained in the
Articles of 1916, to do more than meet
the conditions exacted by the actual
exigencies of war like those contem-
plated bv the Act of 1863, and which
were within the purview of military au-
thority, as pointed out in Ex parte Mil-
ligan, we do not feel called upon to enter.
We say this because, even though it be
conceded that the purpose of Congress
by the Article of 1916, departing from
everything which had gone before, was
to give to military courts, as the mere re-
sult of a state of war, the power to pun-
ish as military offenses the crimes speci-
fied when committed by those in the
military service, such admission is
[388] here n^Ugible because, in that
view, the regulations relied upon would
do no more than extend the military au-
thority, because of a state of war, to the
punishment, as military crimes, of acts
criminal under the state law, without
the slightest indication of purpose to
exclude the jurisdiction of state courts
to deal with such acts as offenses against
the state law.
And this conclusion harmonizes with
the principles of interpretation applied
to the Articles of War previous to 1916
(United States ex rel. Drury v. Lewis,
200 TJ. S. 1, 50 L. ed. 343, 26 Sup. Ct.
Rep. 229; Grafton v. United States, 206
U. S. 333, 51 L. ed. 1084, 27 Sup. Ct.
Rep. 749, 11 Ann. Cas. 640; Franklin v.
United States, 216 U. S. 559, 54 L. ed.
615, 30 Sup. Ct. Rep. 434, 6 Ops. Atty.
Gen. 413); and is, moreover, in accord
with the decided cases which have con-
sidered the contention of exclusive power
in the military courts as resulting from
the Articles of 1916, which we have here
considered (People v. Denman, 179 Cal.
497, 177 Pac. 461 ; Funk v. State, — Tex.
Crim. Rep. —, 208 S. W. 509; United
States V. Hirsch, 254 Fed. 109).
It follows, therefore, that the conten-
tion as to the enlargement of military
power, as the mere result of a state of
war, and the consequent complete de-
struction of state authority, are without
merit, and that the court was right in so
deciding and henoe its judgment mtost
be and it is affbmed*
40 625
389, 390
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
CUYAHOGA RIVER POWER COMPANY,
Appt.,
V.
NORTHERN OHIO TRACTION & LIGHT
COMPANY and the Northern Ohio Power
Company.
(See S. C. Reporter's ed. 388-399.)
Federal courts — JurlBdlctlon — frivo-
lous Federal question ^ impairing
contract obligations — due process of
law.
The contention that a hydroelectric
company, incorporated under the general
laws of a state, which has adopted a reso-
lution designating certain parcels of land
as appropriated and necessary to carry out
the corporate purpose, had acquired rights
before appropriation was completed, as pro-
vided by the state condemnation laws, of
which it was unconstitutionally deprived by
the use of the designated parcels by other
public utility companies, — is too unsub-
stantial to serve as the basis of Federal ju-
risdiction where, independently of the in-
corporation and resolution, the company
had no rights or property to be taken, and
there was no state legislative or other
action against any charter rights which
such corporation possessed. Whatever con-
troversies or causes of action the corpora-
tion had were against other companies as
rivals in eminent domain, or as owners of
the land, over which a Federal court has
no jurisdiction, diversity of citizenship not
existing.
[For other cases, see Courts, 480-o41, in Di-
gest Sup. Ct. 1908.]
[No. 102.] •
Argued March 17, 1920. Decided April 19,
1920.
APPEAL from the District Court of
the United States for the Northern
District of Ohio to review a decree dis-
missing a bill filed by a hydroelectric
company against other public utility
companies exercising rights in certain
parcels of land over which the complain-
Note. — Generally as to what laws are
void as impairing the obligation of con-
tracts— see notes to Franklin County
Grammar School v. Bailey, 10 L.R.A.
405; BuUard v. Northern P. R. Co. 11
L.R.A. 246; Henderson v. Soldiers & S.
Monument Comrs. 13 L.R. A. 169 ; and
Fletcher v. Peck, 3 L. ed. U. S. 162.
As to what constitutes due process of
law, generally — see notes to People v.
O'Brien, 2 L.R.A. 256; Kuntz v. Sump-
tion, 2 L.R.A. 655; Re Gannon, 5 L.R.A.
359; Ulman v. Baltimore, 11 L.R.A. 224;
Oilman v. Tucker, 13 L.R.A. 304; Pear-
son V. Yewdall, 24 L. ed. U. S. 436; and
Wilson V. North Carolina, 42 L. ed. U.
8. 865.
626
ant corporation asserts exclusive rights.
Affirmed.
Statement by Mr. Justice McKenna ;
The appeal is direct to this court, the
laws and Constitution of the United
States being asserted to be involved.
Upon motion of defendants (appellees)
the bill was dismissed for want of juris-
diction and equity. Its allegations, there-
fore, become necessary to consider.
Plaintiff (appellant) was incorporated
as a hydroelectric power company on
May 29, 1908, for the purposes specified
in the act of the legislature of Ohio,
passed in 1904, and contained in §§ 10,-
128 and 10,134 of the Ohio General Code
of 1910.
The articles of incorporation filed May
29, 1908, with the secretary of state,
specified the streams across which the
dams were to be built and maintained;
that is, the streams in controversy^ the
Big Cuyahoga river and certain of its
tributaries.
By said incorporation a contract was
duly made and entered into between the
state and plaintiff whereby the state
g^ranted to plaintiff a right of way over
and along the [390] Cuyahoga river be-
tween the designated termini, and a
vested right and franchise to construct,
maintain, and operate, within the limits
of the right of way, a hydroelectric plant
for the development of electric current
and energy from the waters of the river,
together with a right or franchise to ex-
ercise the state's power of eminent do-
main in order to appropriate and acquire
property necessary to carry out and per-
form the grant and make it effective.
The grant has not been repealed.
The grants were accepted and are of
great value, and upon the faith of that,
the capital stock of plaintiff was sub-
scribed for, and large expenditures and
investments made and obligations incurred,
including bonds of the par value of
$150,000, and stock to the value of $210,-
000, all in a large part prior to December,
1910.
On June 4^ 1908, plaintiff, by its board
of directors, adopted a specific and de-
tailed plan for the development of the
power and sale of the same to the public,
and definitely located its proposed im-
provements for that purpose upon spe-
cifically described lands, which had pre-
viously been entered upon and surveyed
by its engineers, and then and there de-
dai'ed and resolved that the parcels of
land were necessary to carry out the
purpose of the plaLatifTs organization,
and that it tberebv appropriated and de-
252 V. 6.
1919. CUYAHOGA RIVER POWER (X). v. NORTHERN OHIO T. & L. CO. 390-393
manded tliem for its corporate purposes.
The parcels of land described in the reso-
lution include all that were necessary for
the purpose of the corporation, and the
location of the improvement so fixed by
the resolution was permanent and irrevo-
cable, and conclusive upon' plaintiff and
all other persons except as the same
might be altered by further act of the
state.
June 5, 1908, the plaintiff instituted a
suit in the court of proper jurisdiction,
to condemn or appropriate, in accordance
with the statutes of Ohio, the parcels of
land mentioned in the resolution, and
the persons owning the same were made
parties. The suit was continuously pend-
ing [391] \intil a date subsequent to
July 18, 1911, but at the instance and re-
quest of one of the owners of the par-
cels, and of the Northern Ohio Traction
& Light Company, called the Traction
Company, the suit was not pressed for
trial against them until January, 1911,
up to which date certain negotiations in
regard to the improvement of the com-
pany were proposed, but finally term-
inated in the refusal of the owner of the
land and the Traction Company to sell
the land to plaintiff.
December 20, 1910, pending the suit
and negotiations, the landowner executed
a ' deed of the lands to the Northern
Realty Company^ conveying to it a fee-
simple title.
January 20, 1911, after unsuccessful
negotiations with the Realty Company,
plaintiff instituted another suit for the
condemnation of the land, which suit was
prosecuted in the probate court (the
court of jurisdiction), and is now pend-
ing in the Supreme Court of the United
States, undetermined, to which court it
was carried by a writ of error from the
court of appeals of Ohio.
January 31, 1911, and while the suit
above mentioned was pending, the Realty
Company conveyed the land that had
been conveyed to it, to the Northern Ohio
Power Company, and the latter company
conveyed that and other land which it
had acquired, and all of its properties,
rights, and franchises to the Traction
Company, and the latter company en-
tered upon the lands and now holds pos-
session of them and of the improvements
erected thereon.
Prior to January 20, 1911, no location
or improvement ui>on the lands above
designated was made for the purpose of
utilizing them in the development of pow-
er, and they were actually employed for
no use whatsoever, except a small wooden
structure intended and occasionally used
64 L. ed.
for dances . and roller skating, a smaU
portion of which structure was within all
of the parcels. *
Between January 31, 1911, and Feb-
ruary 24, 1914, there [392] was erected
upon the lands designated, a power house
and other appliances for the generation
of electric current and energy by means
of steam power, also a dam, a power
house, and other appliances for the gen-
eration of electric current and energy by
the flow and fall of the waters of the
river.
(There is an allegation of the capacity
of the plants which may be omitted.
Other allegations in regard to the various
companies and the powers they possess
and do not possess also may be omitted.
It is only necessary to say that it is al-
leged that the Power Company had not,
and the Traction Company lias not, pow-
er to use the designated lands or the
waters of the river to operate the steam
power plant and the hydroelectric plant,
or for the development of such powers,
and, therefore, neither company had
power to exercise eminent domain for
such purposes^ though asserting its right
and intention to do so, and if it should
do so, it would invade and injure rights
of plaintiff, "inflicting upon the plain-
tiff and the persons interested therein a
continuing and irreparable injury, for
which there is no adequate remedy at
law.")
From and after the time of the adop-
tion of the resolution of June 4, 190^,
the designated parcels of land were sub-
jected to plaintiff's public use and its
rights and franchises, exclusive of all
other persons and corporations; that such
nghts and franchises were granted to
plaintiff by the state of Ohio under and
by authority of plaintiff's contract with
the state, and for the protection of which
plaintiff is entitled to, and claims, the
protection of the Constitution of the
United States and of the amendments
thereof, as well as § 6 of article 13 of
the Constitution of the state of Ohio.
The effect and result of the Traction
Company's use of the designated parcels
t>f land and of the waters of the river
is an appropriation by it of the rights
and franchises of plaintiff, and the dep-
rivation of its projierty for private
[898] use without compensation and
without due process of law, contrary to
the 14th Amendment of the Constitution
of the United States, and an impair-
ment of the contract of plaintiff with
the state of Ohio, within the meaning of
article 1 of the Constitution of the
United States.
627
393, 394
SUPREME COURT OF THE UNITED STATES.
Oct.
Plaintiff has at all times, and since its
incorporation, actively and diligently and
in good faith proceeded to carry out and
accomplish its corporate purpose.
In April, 1909, the plaintiff amended
its resolution of June 4, 1908, and en-
larged its proposed plant and the out-
put and product thereof, and obtained a
grant from the state over the additional
portion or section of the Cuyahoga river
so as to carry out the amended plan, and
it provides for the utilization of the des-
ignated parcels of land necessary to the
plain tiflTs rights and franchises. (The
additional capacity is alleged.)
The prayer is that plaintiff's rights
and franchises be established and ad-
judged; that the proceedings complained
of be decreed a violation of the plain-
tiff's rights, and of the Constitution of
Ohio and the Constitution of the United
States, and a taking of its property with-
out due process of law. And that an in-
junction be granted against their further
exercise; that defendants be required to
remove the structures and devices al-
ready erected upon the lands, or to con-
vey them to the plaintiff, and that a
receiver be appointed to take possession
of the lands and structures. An account-
ing is also prayed^ and general relief.
Mr. OarroU G. Walter argued the
cause, and, with Messrs. William Z.
Davis and John L. Wells, filed a brief
for appellant:
The plaintiff has an indefeasible
property right to proceed with its de-
velopment according to the plan adopted
by its board of directors, and a correl-
ative right to exclude rival companies
from the lands of its choice.
Northern Ohio Traction & Light Co.
V. Ohio, 245 U. S. 574, 582-584, 62 L. ed.
481, 486-488, L.R.A.1918E, 865, 38 Sup.
Ct. Rep. 196; 10 Cyc. 226; 33 Cyc. Ill,
127, 138, 139; Lewis, Em. Dom. §§ 503,
504; Elliott, Railroads, §§ 921, 927; Den-
ver & B. G. R. Co. v. Arizona & C. B.
Co. 233 U. S. 601, 58 L. ed. 1111, 34 Sup.
Ct. Rep. 601; Sioux City & D. M. R. Co.
V. Chicago, M. & St. P. R. Co. 27 Fed.
770; Chesapeake & 0. R. Co. v. Deep-
water R. Co. 57 W. Va. 641, 50 S. E.
890; Williamsport * N. B. R. Co. v.
Philadelphia & E. R. Co. 141 Pa. 407,
12 L.R.A. 220, 21 Atl. 645; Rochester,
H. & L. R. Co. V. New York, L. E. & W.
R. Co. 44 Hun, 206, 110 N. Y. 128, 17 N.
E. 680; Suburban Rapid Transit Co. v.
New York, 128 N. Y. 510, 28 N. E.
525; Nicomen Boom Co. v. North Shore
Boom & Driving Co. 40 Wash. 315, 82
Pac. 412; Barre R. Co. ▼. Montpelier &
6S8
W. River R. Co. 61 Vt. 1, 4 LiLA. 785,
15 Am. St. Rep. 877, 17 Atl. 923; Fay-
etteviUe Street R. Co. v. Aberdeen & R.
R. Co. 142 N. C. 423, 55 S. E. 345, 9
Ann. Cas. 683.
Mr. Jotm a Morley argued the cause^
and, with Messrs. S. H. Tolles and T. H.
Hog^ett, filed a brief for appellees:
Inoorporation under the general stat*
utes of Ohio covering the incorporation
of hydroelectric companies did not con-
stitute a contract with the state, or con-
fer any exclusive franchise rights.
State ex rel. Hamilton Gas & Coke
Co. v. Hamilton, 47 Ohio St 74, 23 N.
E. 935; Hamilton Gaslight & Coke Co.
V. Hamilton, 146 U. S. 258, 270, 36 L.
ed. 963, 968, 13 Sup. Ct Rep. 90; Calder
v. Michigan, 218 U. S. 6dl, 54 L. ed.
1163, 31 Sup. Ct. Rep. 122; Ramapo
Water Co. v. New York, 236 U. S. 579,
59 L. ed. 731, 35 Sup. Ct Rep. 442; Le-
high Water Co. v. Easton, 121 U. S. 388,
30 L. ed. 1059, 7 Sup. Ct. Rep. 916; St
Anthony Falls Water Power Co. v. St
Paul Water Comrs. 168 U. S. 349, 42 L.
ed. 497, 18 Stip. Ct. Rep. 157; Pearsall
V. Great Northern R. Co. 161 U. S. 646,
664, 40 L. ed. 838, 844, 16 Snp. Ct Rep.
705; Bank of Commerce v. Tennessee,
163 U. S. 416, 424, 41 L. ed. 2n, 214,
16 Sup. Ct. Rep. 1113; Sears ▼. Akron,
246 U. S. 242, 62 L. ed. 688, 38 Sup. Gt
Rep. 245.
Mr. Joseph 8. Olark also argued the
cause and filed a brief for appellees:
The Federal Courts have no jurisdic-
tion to entertain plaintiff's case.
Underground R. Co. v. New York, 193
U. S. 416, 48 L. ed. 733, 24 Sup. Ct. Rep.
494; Rampo Water Co. v. New York, 236
U. S. 579, 59 L. ed. 731, 35 Sup. Ct Rep.
442.
[394] Mr. Justice McKenna, after
stating the case as above, delivered the
opinion of the court:
As we have said, a motion was made
to dismiss the bill. The grounds of the
motion were that tiiere was no jurisdic-
tion in the court, the controversy not
arising under the Constitution and laws
of the United States, and that the bill
did not state facts sufficient to constitute
a cause of action against defendants or
either of them.
There is an assertion in words, of
rights under the Constitution of the
United States, and the only question now
presented is whether the assertion is jus-
tified by the allegations of the bill
Patting the question concretely, or
rather, the contention which eonstitntes
S5a V. 9^
isie.
CUYAHOGA BIVER POWER CO. v. NORTHERN OHIO T. 4 L. CO. 3l»4-3U8
ita foundation, the district conrt said:
"Xhe contention o£ the plaintifC is that,
b; virtue of ita charter, it has appio-
priated the potentialities of the river and
iU tributaries within the boundaries by
it desigBBted in its resolution of itn-
pravement, and that it is entitled, be-
cause of its inoorporation under the
goieral laws of the state, to exclude any
use of the water power of these streama
of the Dstmre of the ase which it antici-
pates enjoying in the future while it pro-
ceeds, however dilatorily, to make ita
improvements in detail and to complete
its ambitious scheme. In brief, ita prop-
osition is that its charter is equivateut
to a oontract with the state of Ohio,
giving the exclusive right to the em-
ployment of the beneflta which nature
has conferred upon the public through
the forces of these streams, to the aid
that, until it finds itself able to complete-
ly occupy ail the territory which it has
privat«ly designated to be necessary for
ita UG^ the public ahall not have the ad-
vantage of any portion not immediatdy
oocnpied by it, through the employment
of the resources thereof by another pub-
lic utility company."
The court rejected the contention,
holding that it was not tenable
under the law and Constitution of
Ohio. To [S»B] Bustain this view the
court cited prior Ohio eases, and certain
cases on the docket of the court, and, as
an inference from them, declared that it
was "not true in Ohio that the character
of complainant gave to it 'a vested right
seemingly unlimited in time to exclude
the rest of the world from the watersheds
it chose* simply by declaring by resolu-
tion just what territory it hoped in the
future to occupy to carry out ita pur-
poses;" and further, "The terms of §
19, article 1, of the Ohio Constitution,
militates against the plaintiff's claim.
Until appropriation is completed as pro-
vided by the condemnation laws of the
state, the Traction Company's right to
dominion over its holdings is inviolate.
Wagner v. Railway Co. 38 Ohio St. 32."
The court also cited Sears v. Akron, 246
U. S. 242, 62 L. ed, 688, 38 Sup. Ct. Eep.
245 (then just delivered), expressing the
view that if the case had been brought
to the court's attention sooner, a less
extended discussion of the motion to
dismiss could have been made.
We concur with the district court both
in its reasoning and its deductions from
the cited cases. The contention of plain-
tiff i9 certainly a bold one, and seemingly
erects into a legal principle that unex-
ecuted intention, or partly executed in-
64 I., ed.
tention, has the same ^ect as executed
intention, and that the declaration of an
enterprise gives the same right as its
consummation. Of course, there must
be a first step in every project as well as
a last atep, and in enterprises like those
we are consideriug there may be attain-
ment under the local law of a right in-
vulnerable to opposing assertion. And
this plaintiff contends. To be explicit, it
contends that, as against the Power Com-
pany and the Traction Company, they
being ita competitors in the sarae field
of
the plainCiS a right of way over and
along said Cuyahoga river" between the
designated termini, with the rights and
franohiaes which we have mentioned,- to-
gether "with the right or franchise to ex-
ercise the state's power of eminent do-
main in order to appropriate and acquire '
all property necsssary to carry out and
perform said grant and make the same
effective," and that the acts of defend-
ants, having legislative sanction of the
state, impair plaintiff's contract.
It is manifest, therefore, that the deter-
mining and effective element of the
contention is the charter of the state,
and plaintiff has proceeded in confidence
in it, against adverse adjudications. One
of the adjudications is Sears v. Akron,
supra. The elemental principle urged
here was urged there; that is, there was
urged there as here, that the charter of
the company constituted a contract with
the state, and that the contract was to
a conclusive effect eseeuted by the resolu-
tion of the board of directors of plaintiff
on June 4, IdOS, such resolution constitut-
ing an appropriation of the lands de-
scribed therein, they being necessary to
be acquired in order to construct and
maintain the improvement specified in
the plaintiff's charter and resolntion.
The principle was rejected, and it waa
decided that the incorporation of plain-
tiff waa not a contract by the state with
reference to the riparian rights, and that
if plaintiff acquit«d riparian ri' '
39tf-399
SUPKJEME COURT OF THE UNITED STATES.
Oct. Tuuf»
specific rights in the use and flow of the
water, that *Vould be property acquired
under the charter, not contract rights ex-
pressed or implied in the g^rant of the
charter."
The case is determinative of the plain-
tiff's contention bei*e, and it is manifest
if plaintiff has any rights, they [S97]
are against defendants as rival com-
panies, or against them as landowners,
— rights under the charter, not by the
charter, considered as a contract express
or implied. The district court recog-
nized the distinction and confined its de-
cree accordingly. The court refused to
speculate as to what plaintiff might be
able to do hereafter in the assertion of
rights against the Traction Company, but
declared that it was against public policy
to accede to the contention of plaintiff
that, in the absence of specific acquire-
ment, it, plaintiff, could prevent an
owner of property within its territory
from occupying or using the same with-
out condemnation proceedings being had,
and compensation paid or secured for
such property. •
The court, tjierefore, was considerate
of the elements of the case and of plain-
tiff's rights, both against defendants as
rival companies or as landowners; and
necessarily, as we have said, if either or
both of them be regarded as involved in
the case, its or their assei:tion cannot be
made in a Federal court unless there be
involved a Federal question. And a
Federal question not in mere form, but
in substance, and not in mere assertion,
but in essence and effect. The Federal
questions urged in this case do not satisfy
the requirement. The charter as a con-
tract is the plaintiff's reliance primarily
and ultimately. Independent of that it
has no rights or property to be taken;
that is, independently of the resolution
of June 4, 1908, there was no appropria-
tion or condemnation of the land. Wag-
ner v. Railway Co. supra.
Having nothing independently of its
charter and the resolution of June 4,
1908, it could be devested of nothing,
and it must rely upon the assertion of
a contract and the impairment of it by
the state or some agency of the state,
exercising the state's legislative power.
That there is such agency is the conten-
tion, but what it is exactly it is not easy
to say. We, however, pick out of the
confusion of the bill^ with the assistance
of plaintiff's brief, that the rights [398]
it acquired, and by what they are im-
paired, are as follows: By the resolu-
tion of June 4, 1908, the lands described
«80
in the bill (exhibit A) became, and ever
since have been, subjected to plaintiff's
public use and subject to its rights of
way and franchises exclusive of all other
persons or corporations; that the Trac-
tion Company asserts and claims that,
by reason of purchases of the rights and
franchises of the Northern Ohio Power
Company, sanctioned by the orders of
the Public Utilities Commission, as set
forth in the bill, and the construction by
it, the Traction Company, of power
plants upon the designated tracts of
land, they, the tracts of land, have be-
come subject to a public use and cannot
be appropriated by plaintiff. And it is
said (in the brief) that the Traction
Company bases its claim upon the state
laws; that is, the incorporation of the
defendant Power Company and the Pub-
lic Utilities Commission's orders.
It is manifest that there was no state
legislative or other action against any
charter rights which plaintiff possessed.
What the Traction Company may or does
claim cannot be attributed to the state
(its incorporation antedated that of
plaintiff), and it would be a waste of
words to do more than say that the in-
corporation of plaintiff under the general
laws of the state did not preclude the
incorporation of the Power Company un-
der the same general laws. What rights,
if any, the Power Company thereby ac-
quired against plaintiff, is another ques-
tion. There remains, then, only the order
of the Public Utilities Commission, au-
thorizing the conveyance by the Power
Company of the latter's rights and
franchises to the Traction Company, to
complain of as an impairment of plain-
tiffs asserted contract. But here again
we are not disposed to engage in much
discussion. The Commission's order may
or may not have been the necessary con-
dition to a conveyance by the Power
Company of whatever rights it had to
the Traction Company. Page & A. Gen.
[399] Code (Ohio) § 614-60. The
order conferred no new rights upon the
Power Company which that company
could or did convey to the Traction Com-
pany, nor give them a sanction that they
did not have, nor did it affect any rights
of the plaintiff.
From every Federal constitutional
standpoint, therefore, the contentions of
plaintiff are so obviously without merit
as to be colorless; and whatever contro-
versies or causes of action it had were
against the defendant companies as rivals
in eminent domain, or as owners of the
lands; and, diversity of citizenship not
252 IJ. S.
Itls,
SOUTH CX)VINGTON & C. STREET R. CO. v. KENTUCKY.
390
existiiigi the District Court of the United
Sti^ had no jurisdiction.
Decaree afltoied.
Mr. Justice Day and Mr. Justice
Olai^ft took no part in the consideration
or decision of this case.
SOUTH COVINGTON & CINCINNATI
STREET RAILWAY COMPANY, Plff. in
Err.,
V.
COMMONWEALTH OF KENTUCKY.
(See S. C. Reporter's ed. 399-408.)
Oommeroe ^ state regulation ^ street
railways ^ separate coach law.
A Kentucky street raflway may be
required by a statute of that state to fur-
nish either separate cars or separate oom-
partments in the same ear for white and
negro passengers, although its principal
business is the carriage of pasaeugers in
interstate* commerce between Cincinnati,
Ohio, and Kentucky cities across the Ohio*
river. Such a requirement affects interstate
commerce only incidentally, and does not
subject it to unreasonable demands.
[For other cases, see Conunerce, III. a, in Di*
gest Sup. Ct. 1908.1
[No. 252.]
Argued March IS and 19, 1920. Decided
April 19, 1920.
IN ERROR to the Court of Appeals of
the State of Kentucky to review a
judgment which affirmed a judgment of
the Circuit Court of Kenton County, in
that state, convicting a street railway
company of violating the Separate Coach
Law. Affirmed.
See same case below, 181 Ky. 449, 205
S. W. 603.
The facts are stated in the opinion.
Mr. Alfred 0. OasBalt argued the
cause, and, with Messrs. J. C. W. Beck-
ham, Richard P. Ernst, and Frank W.
Cottle, filed a brief for plaintiff in er-
ror:
This court will consider the facts in-
dependently, especially where, as in this
case, there is no conflict of testimony.
Mississippi B. Commission v. Illinois
C. B. Co. 203 U. S. 336^ 344, 346, 61 L.
ed. 209, 214, 216, 27 Sup. Ct. Bep. 90;
Southern P. Co. v. Schuyler, 227 U. S.
601, 611, 57 L. ed. 662, 669, 43 Li&.A.
(N.S.) 901, 33 Sup. Ct Rep. 277; Chi-
cago, B. & Q. R. Co. V. Railroad Com-
mission, 237 U. S. 220, 59 L. ed. 926,
P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560;
Seaboard Air Line R. Co. v. Blackwell,
244 U. S. 310, 61 L. ed. 1160, L.R.A.
1917F, 1184, 37 Sup. Ct. Rep. 640; Mis-
souri, K. & T. R. Co. V. Texas, 245 U.
S. 484, 62 L. ed. 419, L.R.A.1918C, 535,
P.U.R.1918B, 602, 38 Sup. Ct. Rep. 178.
The Separate Coach Law is a direct
and unreasonable regulation of inter-
state commerce.
South Covington & C. Street R. Co.
V. Covington, 235 U. S. 537, 59 L. ed.
350, L.R.A.1915F, 792, P.U.R.1915A, 231,
35 Sup. Ct. Rep. 158; Hall v. DeCuir,
95 U. S. 485, 24 L. ed. 547; Cleveland,
Note. — Separating white and negro
passengers as interference with inter-
state cmnmerce.
Unless considered as limited to street
railways only, the decisions in South
COVIKQTOK & C. StRBBT R. CO. V. KEN-
TUCKY and Cincinnati, C. & E. B* Co. ▼.
Kentucky, 252 U. S. 408, post, 637, 40
Sup. Ct Rep. 381, seem to mark a de-
parture from the generally accepted view
that a state law which requires separate
but equal accommodations to be furnished
for colored and white passengers is void
so far as it applies to interstate com-
merce. This is the doctrine of such
cases as State ex rel. Abbott v. Hicks, 44
La. Ann. 770, 11 So. 74; Anderson v.
Louisville & N. R. Co. 4 Inters. Com.
Rep. 764, 62 Fed. 46; Hart v. State, 100
Md. 695, 60 Atl. 457; State v. Galveston,
H. & 8. A. R. Co. — Tex. Civ. App.
— , 184 S. W. 227.
So, a statute requiring all railroads in
tbe state to furnish equal but separate
accommodations for tbe white and colored
races, and requiring conductors to assign
64 li. ed.
passengers to their respective places,
when applied to a passenger from an-
other state on an interstate railroad line,
invades the powers conferred on Con-
gress by the commerce clause of the Con-
stitution. Carrey v. Spencer, 72 N. Y.
S. R. 108, 36 N. Y. Supp. 886, 6 Inters.
Com. Rep. 636.
And support for this view is found in
the decision in Hall v. DeCuir, 96 U. S.
485, 24 L. ed. 647, that state laws pro-
hibiting any discrimination as to color
between passengers are unconstitutional
in so far as they apply to interstate com-
merce, such as to the carriage of pas-
sengers by vessel making voyages be-
tween different states.
However, in Smith v. State, 100 Tenn.
494, 41 L.R.A. 432, 46 S. W. 566; Ala-
bama Af V. R. Co. V. Morris, 103 Miss.
511, 60 So. 11, Ann. Cas. 1915B, 613',
and Southern R. Co. v. Norton, 112 Miss.
302, 73 So. 1, it was held that a state
statute providing for separate but equal
accommodations for white and colored
631
389, 390
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
CUYAHOGA RIVER POWER COMPANY,
Appt,
V.
NORTHERN OHIO TRACTION & LIGHT
COMPANY and the Northern Ohio Power
Company.
(See 8. C. Reporter's ed. 388-399.)
Federal courts — Jurisdiction — frivo-
lous Federal question — impairing
contract obligations *- due process of
law.
The contention tliat a hydroelectric
company, incorporated under the general
laws of a state, which has adopted a reso-
lution designating certain parcels of land
as appropriated and necessary to carry out
the corporate purpose, had acquired rights
before appropriation was completed, as pro-
vided by the state condemnation laws, of
which it was unconstitutionally deprived by
the use of the designated parcels by other
public utility companies, — is too unsub-
stantial to serve as the basis of Federal ju-
risdiction where, independently of the in-
corporation and resolution, the company
had no rights or property to be taken, and
there was no state legislative or other
action against any charter rights which
such corporation possessed. Whatever con-
troversies or causes of action the corpora-
tion had were against other companies as
rivals in eminent domain, or as owners of
the land, over which a Federal court has
no jurisdiction, diversity of citizenship not
existing.
(For other cases, see Courts, 489-541, in Di-
gest Sup. Ct. 1908.]
[No. 102.] •
Argued March 17, 1920. Decided April 19,
1920.
APPEAL from the Distriet Court of
the United States for the Northern
District of Ohio to review a decree dis-
missing a bill filed by a hydroelectric
company against other public utility
companies exercising rights in certain
parcels of land over which the complain-
Note. — Generally as to what laws are
void as impairing the obligation of con-
tracts— see notes to Franklin County
Grammar School v. Bailey, 10 L.R.A.
405; BuUard v. Northern P. R. Co. 11
L.R.A. 246; Henderson v. Soldiers & S.
Monument Comrs. 13 L.R.A. 169; and
Fletcher v. Peck, 3 L. ed. U. S. 162.
As to what constitutes due process of
law, generally — see notes to People v.
O'Brien, 2 L.R.A. 255; Kuntz v. Sump-
tion, 2 L.R. A. 655 ; Re Gannon, 5 L.R. A.
359; Ulman v. Baltimore, 11 L.R.A. 224;
Oilman v. Tucker, 13 L.R.A. 304; Pear-
son V. Yewdall, 24 L. ed. U. S. 436; and
Wilson V. North Carolina, 42 L. ed. U.
S. 865.
626
ant corporation asserts exclusive rights.
Affirmed.
Statement by Mr. Justice McKenna:
The appeal is direct to this court, the
laws and Constitution of the United
States being asserted to be involved.
Upon motion of defendants (appellees)
the bill was dismissed for want of juris-
diction and equity. Its allegations, there-
fore, become necessarv to consider.
Plaintiff (appellant) was incorporated
as a hydroelectric power company on
May 29, 1908, for the purposes specified
in the act of the legislature of Ohio,
passed in 1904, and contained in §§ 10,-
128 and 10,134 of the Ohio General Code
of 1910.
The articles of incorporation filed May
29, 1908, with the secretary of sUte,
specified the streams across which the
dams were to be built and maintained;
that is, the streams in controversy, the
Big Cuyahoga river and certain of its
tributaries.
By said incorporation a contract was
duly made and entered into between the
state and plaintiff whereby the state
granted to plaintiff a right of way over
and along the [390] Cuyahoga river be-
tween the designated terminii and a
vested right and franchise to construct,
maintain, and operate, within the limits
of the right of way, a hydroelectric plant
for the development of electric current
and energy from the waters of the river,
together with a right or franchise to ex-
ercise the state's power of eminent do-
main in order to appropriate and acquire
property necessary to carry out and per-
form the grant and make it effective.
The grant has not been repealed.
The grants were accepted and are of
great value, and upon the faith of that,
the capital stock of plaintiff was sub-
scribed for, and large expenditures and
investments made and obligations incurred,
including bonds of the par value of
$150,000, and stock to the value of $210,-
000, all in a large part prior to December,
1910.
On June 4, 1908, plaintiff, by its board
of directors, adopted a specific and de-
tailed plan for the development of the
power and sale of the same to the public,
and definitely located its proposed im-
provements for that purpose upon q>e-
cifically described lands, which bad pre-
viously been entered upon and surveyed
by its engineers, and then and there de-
clared and resolved that the paroela of
land were necessary to cany >out the
purpose of the plaintiffs organisation^
and that it thereby appropriated and de-
902 U. 6.
1919.
CUYAHOGA RIVER POWER CX). v. NORTHERN OHIO T. & L. CO. 390-393
manded them for its corporate purposes.
The parcels of land described in the reso-
lution include all that were necessary for
the purpose of the corporation, and the
location of the improvement so fixed by
the resolution was permanent and irrevo-
cable, and conclusive upon' plaintiff and
all other persons except as the same
might be altered by further act of the
state.
June Of 1908, the plaintiff instituted a
suit in the court of proper jurisdiction,
to condemn or appropriate, in accordance
with the statutes of Ohio, the parcels of
land m^itioned in the resolution, and
the persons owning the same were made
parties. The suit was continuously pend-
ing [391] yntil a date subsequent to
July 18, 1911, but at the instance and re-
quest of one of the owners of the par-
cels, and of the Northern Ohio Traction
& Light Company, called the Traction
Company, the suit was not pressed for
trial against them until January, 1911,
up to which date certain negotiations in
regard to the improvement of the com-
pany were proposed, but finally term-
inated in the refusal of the owner of the
land and the Traction Company to sell
the land to plaintiff.
December 20, 1910, pending the suit
and negotiations, the landowner executed
a - deed of the lands to the Northern
Realty Company, conveying to it a fee-
simple title.
January 20, 1911, after unsuccessful
negotiations with the Realty Company,
plaintiff instituted another suit for the
condemnation of the land, which suit was
prosecuted in the probate court (the
court of jurisdiction), and is now pend-
ing in the Supreme Court of the United
States, undetermined, to which court it
was carried by a writ of error from the
court of appeals of Ohio.
January 31, 1911, and while the suit
above mentioned was pending, the Realty
Company conveyed the land that had
been conveyed to it, to the Northern Ohio
Power Company, and the latter company
conveyed that and other land which it
had acquired, and all of its properties,
rights, and franchises to the Traction
Company, and the latter company en-
tered upon the lands and now holds pos-
session of them and of the improvements
erected thereon.
Prior to January 20, 1911, no location
or improvement upon the lands above
designated was made for the purpose of
utilizing them in the development of pow-
er, and they were actually employed for
no use whatsoever, except a small wooden
structure intended and occasionally used
64 L. ed.
for dances . and roller skating, a small
portion of which structure was within all
of the parcels. *
Between January 31, 1911, and Feb-
ruary 24, 1914, there [892] was erected
upon the lands designated, a power house
and other appliances for the generation
of electric current and energy by means
of steam power, also a dam, a power
house, and other appliances for the gen-
eration of electric current and energy by
the flow and fall of the waters of the
river.
(There is an allegation of the capacity
of the plants which may be omitted.
Other allegations in regard to the various
companies and the powers they possess
and do not possess also may be omitted.
It is only necessary to say that it is al-
leged that the Power Company had not,
and the Traction Company lias not, pow-
er to use the designated lands or the
waters of the river to operate the steam
power plant and the hydroelectric plant,
or for the development of such powers,
and, therefore, neither company had
power to exercise eminent domain for
such purposes^ though asserting its right
and intention to do so, and if it should
do so, it would invade and injure rights
of plaintiff, "inflicting upon the plain-
tiff and the persons interested therein a
continuing and irreparable injury, for
which there is no adequate remedy at
law.")
From and after the time of the adop-
tion of the resolution of June 4, 1908,
the designated parcels of land were sub-
jected to plaintiff's public use and its
rights and franchises, exclusive of all
other persons and corporations; that such
rights and franchises were granted to
plaintiff by the state of Ohio under and
by authority of plaintiff's contract with
the state, and for the protection of which
plaintiff is entitled to, and claims, the
protection of the Constitution of the
United States and of the amendments
thereof, as well as § 5 of article 13 of
the Constitution of the state of Ohio.
The effect and result of the Traction
Company's use of the designated parcels
t>f land and of the waters of the river
is an appropriation by it of the rights
and franchises of plaintiff, and the dep-
rivation of its property for private
[393] use without compensation and
without due process of law, contrary to
the 14th Amendment of the Constitution
of the United States, and an impair-
ment of the contract of plaintiff with
the state of Ohio, within the meaning of
article 1 of the Constitution of the
United States.
627
393, 394
SUPREME CX)UBT OF THE UNITED STATES.
Oct. IttM>
Plaintiff has at all times, and since its
incorporation, actively and diligently and
in good faith jyoceeded to carry out and
accomplish its corporate purpose.
In April, 1909, the plaintiff amended
its resolution of June 4, 1908, and en-
larged its proposed plant and the out-
put and product thereof, and obtained a
grant from the state over the additional
portion or section of the Cuyahoga river
so as to carry out the amended plan, and
it provides for the utilization of the des-
ignated parcels of land necessary to the
plaintiff's rights and franchises. (The
additional capacity is alleged.)
The prayer is that plaintiff's rights
and franchises be established and ad-
judged; that the proceedings complained
of be decreed a violation of the plain-
tiff's rights, and of the Constitution of
Ohio and the Constitution of the United
States, and a taking of its property with-
out due process of law. AJid that an in-
junction be granted against their further
exercise; that defendants be required to
remove the structures and devices al-
ready erected upon the lands, or to con-
vey them to the plaintiff, and that a
receiver be appointed to take possession
of the lands and structures. An account-
ing is also prayedj and general relief.
Mr. Carroll G. Walter argued the
cause, and, with Messrs. William Z.
Davis and John L. Wells, filed a brief
for appellant:
The plaintiff has an indefeasible
property right to proceed with its de-
velopment according to the plan adopted
by its board of directors, and a correl-
ative right to exclude rival companies
from the lands of its choice.
Northern Ohio Traction & Light Co.
V. Ohio, 245 U. S. 674, 682-584, 62 L. ed.
481, 486-488, L.B.A.1918E, 865, 38 Sup.
Ct. Rep. 196; 10 Cyc. 226; 33 Cyc. Ill,
127, 138, 139; Lewis, Em. Dom. §§ 503,
504; Elliott, Railroads, §§ 921, 927; Den-
ver & R. G. R. Co. v. Arizona & C. R.
Co. 233 U. S. 601, 58 L. ed. 1111, 34 Sup.
Ct. Rep. 601 ; Sioux City & D. M. R. Co.
V. Chicago, M. & St. P. R. Co. 27 Fed.
770; Chesapeake & 0. R. Co. v. Deep-
water R- Co. 57 W. Va. 641, 60 S. E.
890; Williamsport & N. B. R. Co. v.
Philadelphia & E. R. Co. 141 Pa. 407,
12 L.R.A. 220, 21 Atl. 645; Rochester,
H. & L. R. Co. V. New York, L. E. A; W.
R. Co. 44 Hun, 206, 110 N. Y. 128, 17 N.
E. 680; Suburban Rapid Transit Co. v.
New York, 128 N. Y. 510, 28 N. E.
525; Nicomen Boom Co. y. North Shore
Boom & Driving Co. 40 Wash. 315, 82
Pac. 412; Barre R. Co. v. Montpelier &
628
W. River B. Co. 61 Vt 1, 4 LJSLA. 785,
15 Am. St. Rep. 877, 17 Atl. 923; Fay-
etteville Street R. Co. v. Aberdeen & R.
R. Co. 142 N. C. 423, 55 S. E. 345, 9
Ann. Cas. 683.
Mr. Jdm £. Morley argued the cause,
and, with Messrs. S. H. Tolles and T. IL
Hogsett, filed a brief for appellees:
l^eorporation onder the general stat-
utes of Ohio covering the incorporation
of hydroelectric companies did not oon-
stitute a contract with the state, or con-
fer any exclusive franchise rights.
State ex rel. Hamilton Qas ft Coke
Co. v. Hamilton, 47 Ohio St 74, 23 N.
E. 935; Hamilton Gaslight & Coke Co.
v. Hamilton, 140 U. S. 258, 270, 36 L.
ed. 963, 968, 13 Sup. Ct. Rep. 90; Calder
V. Michigan, 218 U. S. 591, 54 L. ed.
1163, 31 Sup. Ct. Rep. 122; Ramapo
Water Co. v. New York, 236 D. S. 579,
59 L. ed. 731, 35 Sup. Ct. Rep. 442; Le-
high Water Co. v. Easton, 121 U. S. 388,
30 L ed. 1059, 7 Sup. Ct. Rep. 916; St.
Anthony Falls Water Power Co. v. St.
Paul Water Comrs. 168 U. S. 349, 42 L.
ed. 497, 18 Sup. Ct. Rep. 157; Pearsall
V. Great Northern R. Co. 161 U. S. 646,
664, 40 L. ed 838, 844, 16 Sap. Ct Eep.
705; Bank of Commerce v. Tennessee,
163 U. S. 416, 424, 41 L. ed. 211, 214,
16 Sup. Ct. Rep. 1113; Sears ▼. Akron,
246 U. S. 242, 62 L. ed. 688, 38 Sup. GU
Rep. 245.
Mr. Joseph S. Clark also argued the
cause and filed a brief for appellees :
The Federal courts have no jurisdic-
tion to entertain plaintiff's case.
Underground R. Co. v. New York, 193
U. S. 416, 48 L. ed. 733, 24 Sup. Ct. Rep.
494; Rampo Water Co. v. New York, 236
U. S. 579, 59 L. ed. 731, 35 Sup. Ct. Rep.
442.
[394] Mr. Justice McKeua, after
stating the ease as above, delivered the
opinion of the court:
As we have said, a motion was made
to dismiss the bill. The grounds of the
motion were that there was no jurisdic-
tion in the court, the controversy not
arising under the Constitution and laws
of the United States, and that the bill
did not state facts sufficient to constitute
a cause of action against defendants or
either of them.
There is an assertion in words, of
rights under the Constitution of the
United States, and the only question now
presented is whether the assertion is jiis-
tified by the allegations of the biD
Putting the question concretely, or
mther, the contention which eon^tnta^
S5S V. Bl
1919. CUYAHOGA RIVER POWER 00. v. NORTHERN OHIO T. & L. CO. 394-396
its foundation, the district court said:
''The contention of the plaintiff is that,
by virtue of its charter, it has appro-
priated the potentialities of the river and
its tributaries within the boundaries by
it designated in its resolution of im-
provement, and that it is entitled, be-
cause of its incorporation under the
general laws o{ the state, to exclude any
use of the water po^er of these streams
of the nature of the use which it antici-
pates enjoying in the future while it pro-
ceeds, however dilatorily, to make its
improvements in detail and to complete
its ambitious scheme. In brief, its prop*
ofiition is that its charter is equivalent
to a contract with the state of Ohio,
giving the exclusive right to the em-
ployment of the beasts which nature
has conferred upon the public through
the forces of these streams, to the end
that, until it finds itself able to complete-
ly occupy all the territory which it has
privately designated to be necessary for
its us^ the public shall not have the ad-
vantage of any portion not immediately
occupied by it, through the employment
of the resources thereof by another pub-
lic utility company."
The court rejected the contention,
holding that it was not tenable
under the law and Constitution of
Ohio. To [395] sustain this view the
court cited prior Ohio cases, and certain
cases on the docket of the court, and, as
an inference from them, declared that it
was ''not true in Ohio that the character
of complainant gave to it 'a vested right
seemingly unlimited in time to exclude
the rest of the world from the watersheds
it chose' simply by declaring by resolu-
tion just what territory it hoped in the
future to occupy to carry out its pur-
poses;" and further, "The terms of §
19, article 1, of the Ohio Constitution,
militates against the plaintiff's claim.
Until appropriation is completed as pro-
vided by the condemnation laws of the
state, the Traction Company's right to
dominion over its holdings is inviolate.
Wagner v. Railway Co. 38 Ohio St. 32."
The court also cited Sears v. Akron, 246
U. S. 242, 62 L. ed, 688, 38 Sup. Ct. Rep.
245 (then just delivered), expressing the
view that If the case had been brought
to the court's attention sooner, a l^s
extended discussion of the motion to
dismiss could have been made.
We concur with the district court both
in its reasoning and its deductions from
the cited cases. The contention of plain-
tiff id certainly a bold one, and seemingly
erects into a legal principle that unex-
ecuted intention, or partly executed in-
64 L. ed.
tention, has the same effect as executed
intention, and that the declaration of an
enterprise gives the same right as its
consummation. Of course, there must
be a first step in every project as well as
a last step, and in enterprises like those
we are considering there may be attain-
ment under the local law of a right in-
vulnerable to opposing -assertion. And
this plaintiff contends. To be explicit, it
contends that, as against the Power Com-
pany and the Traction Company, they
being its competitors in the same field
of enterprise, its resolution of June 4,
1908, constituted an appropriation of the
waters of the river, and a definite loca-
tion of "its proposed improvement for
that purpose upon specifically described
parcels of land previously entered upon
and surv^ed by its engineers." Whether
the [39o] resolution had that effect
under the Ohio laws we are not called
upon to say. Indeed, we are not so much
concerned with the contention as the
ground of it. Plaintiff alleges as a
ground of it, a contract with the state
of Ohio, by its incorporation, "wherein
and whereby said state duly granted to
the plaintiff a right of way over and
along said Cuyahcga river" between the
designated termini, with the rights and
franchises which we have mentioned,* to-
gether "with the right or franchise to ex-
ercise the stage's power of eminent do-
main in order to appropriate and acquire *
all property necsssary to carry out and
perform said grant and make the same
effective," and that the acts of defend-
ants, having legislative sanction of the
state, impair plaintiff's contract.
It is manifest, therefore, that the deter-
mining and effective element of the
contention is the charter of the state,
and plaintiff has proceeded in confidence
in it, against adverse adjudications. One
of the adjudications is Sears v. Akron,
supra. The elemental principle urged
here was urged there; that is, there was
urged there as here, that the charter of
the company constituted a contract with
the state, and that the contract was to
a conclusive effect executed by the resolu-
tion of the board of directors of plaintiff
on June 4, lfl08, such resolution constitut-
ing an appropriation of the lands de-
scribed therein, they being necessary to
be acquired in order to construct and
maintain the improvement specified in
the plaintiff's charter and resolution.
The principle was rejected, and it was
decided that the incorporation of plain-
tiff was not a contract by the state with
reference to the riparian rights, and that
if plaintiff acquired riparian rights or
O ^ V
390-399
SUPBJEIME COURT OF THE UNITED STATES.
Oct. Term,
specific rights in the use and flow of the
water, that "would be property acquired
under the charter, not contract rights ex-
pressed or implied in the grant of the
charter."
The case is determinative of the plain-
tiff's contention here, and it is manifest
if plaintiff has any rights, they [897]
are against defendants as rival com-
panies, or against them as landowners,
— rights under the charter, not by the
charter, considered as a contract express
or implied. The district court recog-
nized the distinction and confined its de-
cree accordingly, The court refused to
speculate as to what plaintiff might be
able to do hereafter in the assertion of
lights against the Traction Company, but
declared that it was against public i>oIicy
to accede to the contention of plaintiff
that, in the absence of specific acquire-
ment, it, plaintiff, could prevent an
owner of property within its territory
from occupying or using the same with-
out condemnation proceedings being had,
and compensation paid or secured for
such property. .
The court, t)ierefore, was considerate
of the elements of the case and of plain-
tiff's rights, both against defendants as
rival companies or as landowners; and
necessarily, as we have said, if either or
both of them be regarded as involved in
the case, its or their assertion cannot be
made in a Federal court unless there be
involved a Federal question. And a
Federal question not in mere form, but
in substance, and not in mere assertion,
but in essence and effect. The Federal
questions urged in this case do not satisfy
the requirement. The charter as a con-
tract is the plaintiff's reliance primarily
and ultimately. Independent of that it
has no rights or property to be ti^en;
that is, independently of the resolution
of June 4, 1908, there was no appropria-
tion or condemnation of the land. Wag-
ner V. Railway Co. supra.
Having nothing independently of its
charter and the resolution of June 4,
1908, it could be devested of nothing,
and it must rely upon the assertion of
a contract and the impairment of it by
the state or some agency of the state,
exercising the state's legislative power.
That there is such agency is the conten-
tion, but what it is exactly it is not easy
to say. We, however, pick out of the
confusion of the bill, with the assistance
of plaintiff's brief, that the rights [398]
it acquired, and by what they are im-
paired, are as follows: By the resolu-
tion of June 4, 1908, the lands described
680
in the bill (exhibit A) became, and ever
since have been, subjected to plaintiff's
public use and subject to its rights of
way and franchises exclusive of all other
persons or corporations; that the Trac-
tion Company asserts and claims that,
by reason of purchases of the rights and
franchises of the Northern Ohio Power
Company, sanctioned by the orders of
the Public Utilities Commission, as set
forth in the bill, and the construction by
it, the Traction Company, of power
plants upon the designated tracts of
land, they, the tracts of land, have be-
come subject to a public use and cannot
be appropriated by plaintiff. And it is
said (in the brief) that the Tmetion
Company bases its claim upon the state
laws; that is, the incorporation of the
defendant Power Company and the Pub-
lic Utilities Commission's orders.
It is manifest that there was no state
legislative or other action against any
charter rights which plaintiff possessed.
What the Traction Company may or does
claim cannot be attributed to the state
(its incorporation antedated that of
plaintiff), and it would be a waste of
words to do more than say that the in-
corporation of plaintiff under the g^ieral
laws of the state did not preclude the
incorporation of the Power Company un-
der the same general laws. What rights,
if any, the Power Company thereby ac-
<iuired against plaintiff, is another ques-
tion. There remains, then, only the order
of the Public Utilities Commission, au-
thorizing the conveyance by the Power
Company of the latter's rights and
franchises to the Traction Company, to
complain of as an impairment of plain-
tiff's asserted contract. But here again
we are not disposed to engage in rnvteb
discussion. The Commission's order may
or may not have been the necessary con-
dition to a conveyance by the Power
Company of whatever rig^hts it had to
the Traction Company. Page & A. Gen.
[899] Code (Ohio) § 614-60. The
order conferred no new rights upon the
Power Company which that company
could or did convey to the Traction Com-
pany, nor give them a sanction that they
did not have, nor did it affect any rights
of the plaintiff.
From every Federal constitutional
standpoint, therefore, the contentions of
plaintiff are so obviously without merit
as to be colorless; and whatever contro-
versies or causes of action it had were
against the defendant companies as rivals
in eminent domain, or as owners of the
lands; and, diversity of citizenship not
252 r. s.
Itls.
SOUTH COVINGTON & C. STREET R. CO. v. KENTUCKY.
399
ezifltiiigi the District Court of the United
States had no jurisdiction.
Decaree afltoied.
Mr. Justice Day and Mr. Jostice
Olai^ft took no part in the consideration
or decision of this case.
SOUTH COVINGTON & CINCINNATI
STREET RAILWAY COMPANY, Plff. in
Err.,
V.
COMMONWEALTH OF KENTUCKY.
(See S. C. Reporter's ed. 399-408.)
Oommeroe •» state regulation ^ street
railways •» separate coach law.
A Kentucky street raflway may be
required by a statute of that state to fur-
nish either separate cars or separate oom-
p^rtments in the same oar for white and
n^gro passengers, although its principal
business is the carriage of passengers in
interstate* commerce between Cincinnati,
Ohio, and Kentucky cities across the Ohio-
river. Such a requirement affects interstate
commerce only incidentally, and does not
subject it to unreasonable demands.
[For other cases. Bee Commerce, III. a, in DU
gest Sup. Ct. 1908.]
[No. 252.]
Argued March 18 and 19, 1920. Decided
April 19, 1920.
IN ERROR to the Court of Appeals of
the State of Kentucky to review a
judgment which affirmed a judgment of
the Circuit Court of Kenton County, in
that state, convicting a street railway
company of violating the Separate Coach
Law. Affirmed.
See same ease below, 181 Ky. 449, 205
S. W. 603.
The facts are stated in the opinion.
Mr. Alfred 0. Oassatt argued the
eause, and, with Messrs. J. C. W. Beck-
ham, Richard P. Ernst, and Prank W.
Cottle, filed a brief for plaintiff in er-
ror:
This court will consider the facts in-
dependently, especially where, as in this
case, there is no conflict of testimony.
Mississippi B. Commission v. Illinois
C. B. Co. 203 U. S. 335, 344, 346, 51 L.
ed. 209, 214, 215, 27 Sup. Ct. Bep. 90;
Southern P. Co. v. Schuyler, 227 U. S.
601, 611, 57 L. ed. 662, 669, 43 LJl.A.
(N.S.) 901, 33 Sup. Ct. Rep. 277; Chi-
cago, B. & Q. R. Co. V. Railroad Com-
mission, 237 U. S. 220, 59 L. ed. 926,
P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560;
Seaboard Air Line R. Co. v. Blackwell,
244 U. S. 310, 61 L. ed. 1160, L.R.A.
1917F, 1184, 37 Sup. Ct. Rep. 640; Mis-
souri, K. & T. R. Co. v. Texas, 245 U.
S. 484, 62 L. ed. 419, L.RA.1918C, 535,
P.U.RJ.918B, 602, 38 Sup. Ct. Rep. 178.
The Separate Coach Law is a direct
and unreasonable regulation of inter-
state commerce.
South Covington & C. Street R. Co.
v. Covington, 235 U. S. 537, 59 L. ed.
350, L.R.A.1915F, 792, P.U.R.1915A, 231,
35 Sup. Ct. Rep. 158; Hall v. DeCuir,
95 U. S. 485, 24 L. ed. 547; Cleveland,
Ifote.— ^Separating white and negro
passengers as interference with inter-
state commerce.
Unless considered as limited to street
railways only, the decisions in South
Covington & C. Street R. Co. v. Kbn-
TiTCKY and Cincinnati, C. & E. B* Co. v.
Kentucky, 252 U. S. 408, post, 637, 40
Sup. Ct Rep. 381, seem to mark a de-
parture from the generally accepted view
that a state law which requires separate
but equal accommodations to be furnished
for colored and white passengers is void
so far as it applies to interstate com-
merce. This is the doctrine of such
cases as State ex rel. Abbott v. Hicks, 44
La. Ann. 770, 11 So. 74; Anderson v.
Louisville & N. R. Co. 4 Inters. Com.
Rep. 764, 62 Fed. 46; Hart v. State, 109
Md. 595, 60 Atl. 457; State v. Galveston,
H. * S. A. R. Co. — Tex. Civ. App.
— , 184 S. W. 227. .
So, a statute requiring all railroads in
tjie state to furnish equal but separate
accommodations for the white and colored
races, and requiring conductors to assign
64 li. ed.
passengers to their respective places,
when applied to a passenger from an-
other state on an interstate railroad line,
invades the powers conferred on Con-
gress by the commerce clause of the Con-
stitution. Carrey v. Spencer, 72 N. Y.
S. R. 108, 36 N. Y. Supp. 886, 5 Inters.
Com. Rep. 636.
And support for this view is found in
the decision in Hall v. DeCuir, 95 U. S.
485, 24 L. ed. 547, that state laws pro-
hibiting any discrimination as to color
between passengers are unconstitutional
in so far as they apply to interstate com-
merce, such as to the carriage of pas-
sengers by vessel making voyages be-
tween different states.
However, in Smith v. State, 100 Tenn.
494, 41 L.R.A. 432, 46 S. W. 566; Ala-
bama & V. R. Co. V. Morris, 103 Miss.
511, 60 So. 11, Ann. Cas. 1915B, 613 {
and Southern R. Co. v. Norton, 112 Miss.
302, 73 So. 1, it was held that a state
statute providing for separate but equal
accommodations for white and colored
631
390-399
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
specific rights in the use and flow of the
water, that "would be property acquired
under the charter, not contract rights ex-
pressed or implied in the grant of the
charter."
The case is determinative of the plain-
tiff's contention here, and it is manifest
if plaintiff has any rights, they [897]
are against defendants as rival com-
panies, or against them as landowners,
— rights under the charter, not by the
charter, considered as a contract express
or implied. The district court recog-
nized the distinction and confined its de-
cree accordingly, The court refused to
speculate as to what plaintiff might be
able to do hereafter in the assertion of
lights against the Traction Company, but
declared that it was against public i>oIicy
to accede to the contention of plaintiff
that, in the absence of specific acquire-
ment, it, plaintiff, could prevent an
owner of property within its territory
from occupying or using the same with-
out condemnation proceedings being had,
and compensation paid or secured for
such property. .
The court, therefore, was considerate
of the elements of the case and of plain-
tiff's rights, both against defendants as
rival companies or as landowners; and
necessarily, as we have said, if either or
both of them be regarded as involved in
the caj^e, its or their assertion cannot be
made in a Federal court unless there be
involved a Federal question. And a
Federal question not in mere form, but
in substance, and not in mere assertion,
but in essence and effect. The Federal
questions urged in this case do not satisfy
the requirement. The charter as a con-
tract is the plaintiff's reliance primarily
and ultimately. Independent of that it
has no rights or property to be ti^en;
that is, independently of the resolution
of June 4, 1908, there was no appropria-
tion or condemnation of the land. Wag-
ner v. Railway Co. supra.
Having nothing independently of its
charter and the resolution of June 4,
1908, it could be devested of nothing,
and it must rely upon the assertion of
a contract and the impairment of it by
the state or some agency of the state,
exercising the state's legislative power.
That there is such agency is the conten-
tion, but what it is exactly it is not easy
to say. We, however, pick out of the
confusion of the bill, with the assistance
of plaintiff's brief, that the rights [398]
it acquired, and by what they are im-
paired, are as follows: By the resolu-
tion of June 4, 1908, the lands described
«80
in the bill (exhibit A) became, and ever
since have been, subjected to plaintiff's
public use and subject to its rights of
way and franchises exclusive of all other
pnersons or corporations; that the Trac-
tion Company asserts and claims that,
by reason of purchases of the rights and
franchises of the Northern Ohio Power
Company, sanctioned by the orders of
the Public Utilities Commission, as set
forth in the bill, and the construction by
it, the Traction Company, of power
plants upon the designated tracts of
land, they, the tracts of land, have be-
come subject to a public use and cannot
be appropriated by plaintiff. And it is
said (in the brief) that the Traetion
Company bases its claim upon the state
laws; that is, the incorporation of the
defendant Power Company and the Pub-
lic Utilities Commission's orders.
It is manifest that there was no state
legislative or other action against any
charter rights which plaintiff possessed.
What the Traction Company may or does
claim cannot be attributed to the state
(its incorporation antedated that of
plaintiff), and it would be a waste of
words to do more than say that the in-
corporation of plaintiff imder the general
laws of the state did not preclude the
incorporation of the Power Company un-
der the same general laws. What rights,
if any, the Power Company thereby ac-
<]^ired against plaintiff, is another ques-
tion. There remains, then, only the order
of the Public Utilities Commission, au-
thorizing the conveyance by the Power
Company of the latter's rights and
franchises to the Traction Company, to
complain of as an impairment of plain-
tiff's asserted contract. But here again
we are not disposed to engage in mueb
discussion. The Commission's order may
or may not have been the necessary con-
dition to a conveyance by the Power
Company of whatever rights it had to
the Traction Company. Page & A. Gen.
[399] Code (Ohio) § 614-60. The
order conferred no new rights upon the
Power Company which that company
could or did convev to the Traction Com-
pany, nor give them a sanction that they
did not have, nor did it affect any rights
of the plaintiff.
From every Federal constitutional
standpoint, therefore, the contentions of
plaintiff are so obviously without merit
as to be colorless; and whatever contro-
versies or causes of action it had were
against the defendant companies as rivals
in eminent domain, or as owners of the
lands; and, diversity of citizenship not
253 v. S.
^
i91B.
SOUTH CX)VINGTON & C. STREET R. CO. v. KENTUCKY.
399
ezifitiiig, the District Court o£ the United
Statesliad no jurisdiction.
Decree afltoied.
Mr. Justice Day and Mr. Jostiee
OlAite took no part in the consideration
or decision of this case.
SOUTH COVINGTON & CINCINNATI
STREET RAILWAY COMPANY, Plff. in
Err.,
V.
COMMONWEALTH OF KENTUCKY.
(See S. C. Reporter's ed. 399-408.)
Oommerce •» state regulation •» street
railways *- separate coach law.
A Kentucky street raflway may be
required by a statute of that state to fur-
nish either separate cars or separate oom-
partments in the same car for white and
n^gro passengers, although its principal
business is the carriage of passengers in
interstate* commerce between Cincinnati,
Ohio, and Kentucky cities across the Ohic
river. Such a requirement affects interstate
commerce only incidentally, and does not
subject it to unreasonable demands.
[For other cases, see Commerce, III. a, in Di-
gest Sup. Ct, 1908.]
[No. 252.]
Argued March 18 and 19, 1920. Decided
April 19, 1920.
IN ERROR to the Court of Appeals of
the State of Kentucky to review a
judgment which affirmed a judgment of
the Circuit Court of Kenton County, in
that state, convicting a street railway
company of violating the Separate Coach
Law. Affirmed.
See same case below, 181 Ky. 449, 205
S. W. 603.
The facts are stated in the opinion.
Mr. Alfred 0. Oaaaalt argued the
«ause, and, with Messrs. J. C. W. Beck-
ham, Richard P. Ernst, and Prank W.
Cottle, filed a brief for plaintiff in er-
ror:
This court will consider the facts in-
dependently, especially where, as in this
case, there is no conflict of testimony.
Mississippi B. Commission v. Illinois
C. B. Co. 203 U. S. 335^ 344, 346, 61 L.
ed. 209, 214, 216, 27 Sup. Ct. Bep. 90;
Southern P. Co. v. Schuyler, 227 U. S.
601, 611, 67 L. ed. 662, 669, 43 LJI.A.
(N.S.) 901, 33 Sup. Ct. Bep. 277; Chi-
cago, B. & Q. B. Co. v. Bailroad Com-
mission, 237 U. S. 220, 59 L. ed. 926,
P.U.B.1915C, 309, 35 Sup. Ct. Bep. 560;
Seaboard Air Line B. Co. v. Blackwell,
244 U. S. 310, 61 L. ed. 1160, LB.A.
1917F, 1184, 37 Sup. Ct. Bep. 640 ; Mis-
souri, K. & T. B. Co. V. Texas, 245 U.
S. 484, 62 L. ed. 419, L.B.A.1918C, 535,
P.U.B.1918B, 602, 38 Sup. Ct. Bep. 178.
The Separate Coach Law is a direct
and unreasonable regulation of inter-
state commerce.
South Covington & C. Street B. Co.
V. Covington, 235 U. S. 537, 59 L. ed.
350, L.B.A.1915F, 792, P.U.B.1915A, 231,
35 Sup. Ct. Bep. 158; Hall v. DeCuir,
95 U. S. 485, 24 L. ed. 547; Cleveland,
Note.— Separating white and negro
passengers as interference with inter-
state commerce.
Unless considered as limited to street
railways only, the decisions in South
CoviNOTON & C. Street B. Co. v. Ken-
tucky and Cincinnati, C. & E. B. Co. ▼.
Kentucky, 252 U. S. 408, post, 637, 40
Sup. Ct. Bep. 381, seem to mark a de-
parture from the generally accepted view
that a state law which requires separate
but equal accommodations to be furnished
for colored and white passengers is void
so far as it applies to interstate com-
merce. This is the doctrine of such
cases as State ex rel. Abbott v. Hicks, 44
La. Ann. 770, 11 So. 74; Anderson v.
Louisville & N. B. Co. 4 Inters. Com.
Bep. 764, 62 Fed. 46; Hart v. State, 100
Md. 596, 60 Atl. 457; State v. Galveston,
H. & S. A. B. Co. — Tex. Civ. App.
— , 184 S. W. 227. .
So, a statute requiring all railroads in
t)ie state to furnish equal but separate
aceommodations for the white and colored
races, and requiring conductors to assign
64 li. ed.
passengers to their respective places,
when applied to a passenger from an-
other state on an interstate railroad line,
invades the powers conferred on Con-
gress by the commerce clause of the Con-
stitution. Carrey v. Spencer, 72 N. Y.
S. B. 108, 36 N. Y. Supp. 886, 6 Inters.
Com. Bep. 636.
And support for this view is found in
the decision in Hall v. DeCuir, 96 U. S.
485, 24 L. ed. 647, that state laws pro-
hibiting any discrimination as to color
between passengers are unconstitutional
in so far as they apply to interstate com-
merce, such as to the carriage of pas-
sengers by vessel making voyages be-
tween different states.
However, in Smith v. State, 100 Tenn.
494, 41 L.B.A. 432, 46 S. W. 566; Ala-
bama & V. B. Co. V. Morris, 103 Miss.
511, 60 So. 11, Ann. Cas. 1915B, 613}
and Southern B. Co. v. Norton, 112 Miss.
302, 73 So. 1, it was held that a state
statute providing for separate but equal
accommodations for white and colored
631
390-399
SUPBJEIME COURT OF THE UNITED STATES.
Oct. Tikm,
specific rights in the use and flow of the
water, that "would be property acquired
under the charter, not contract rights ex-
pressed or implied in the grant of the
charter.**
The case is determinative of the plain-
tiffs contention here, and it is manifest
if plaintiff has any rights, they [897]
are against defendants as rival com-
panies, or against them as landowners,
— rights under the charter, not by the
charter, considered as a contract express
or implied. The district court recog-
nized the distinction and confined its de-
cree accordingly, The court refused to
speculate as to what plaintiff might be
able to do hereafter in the assertion of
rights against the Traction Company, but
declared that it was against public policy
to accede to the contention of plaintiff
that, in the absence of specific acquire-
ment, it, plaintiff, could prevent an
owner of property within its territory
from occupying or using the same with-
out condemnation proceedings being had,
and compensation paid or secured for
such property. .
The court, therefore, was considerate
of the elements of the case and of plain-
tiff's rights, both against defendants as
rival companies or as landowners; and
necessarily, as we have said, if either or
both of them be regarded as involved in
the case, its or their assertion cannot be
made in a Federal court xmless there be
involved a Federal question. And a
Federal question not in mere form, but
in substance, and not in mere assertion,
but in essence and effect. The Federal
questions urged in this case do not satisfy
the requirement. The charter as a con-
tract is the plaintiff's reliance primarily
and ultimately. Independent of that it
has no rights or property to be taken;
that is, independently of the resolution
of June 4, 1908, there was no appropria-
tion or condemnation of the land. Wag-
ner v. Railway Co. supra.
Having nothing independently of its
charter and the resolution of June 4,
1908, it could be devested of nothing,
and it must rely upon the assertion of
a contract and the impairment of it by
the state or some agency of the state,
exercising the state's legislative power.
That there is such agency is the conten-
tion, but what it is exactly it is not easy
to say. We, however, pick out of the
confusion of the bill, with the assistance
of plaintiff's brief, that the rights [898]
it acquired, and by what they are im-
paired, are as follows: By the resolu-
tion of June 4, 1908, the lands described
«80
in the bill (exhibit A) became, and ever
since have been, subjected to plaintiff's
public use and subject to its rights of
way and franchises exclusive of all other
pnersons or corporations; that the Trac-
tion Company asserts and claims that,
by reason of purchases of the rights and
franchises of the Northern Ohio Power
Company, sanctioned by the orders of
the Public Utilities Commission, as set
forth in the bill, and the construction l^
it, the Traction Company, of power
plants upon the designated tracts of
land, they, the tracts of land, have be-
come subject to a public use and cannot
be appropriated by plaintiff. And it is
said (in the brief) that the Traetion
Company bases its claim upon the state
laws; that is, the incorporation of the
defendant Power Company and the Pub-
lic Utilities Commission's orders.
It is manifest that there was no state
legislative or other action against any
charter rights which plaintiff possessed.
What the Traction Company may or does
claim cannot be attributed to the state
(its incorporation antedated that of
plaintiff), and it would be a waste of
words to do more than say that the in-
corporation of plaintiff under the general
laws of the state did not preclude the
incorporation of the Power Company un-
der the same general laws. What rights,
if any, the Power Company thereby ac-
<iuired against plaintiff, is another ques-
tion. There remains, then, only the order
of the Public Utilities Commission, au-
thorizing the conveyance by the Power
Company of the latter's rights and
franchises to the Traction Company, to
complain of as an impairment of plain-
tiffs asserted contract. But here again
we are not disposed to engage in much
discussion. The Commission's order may
or may not have been the necessary con-
dition to a conveyance by the Power
Company of whatever rights it had to
the Traction Company. Page & A. Gen.
[899] Code (Ohio) § 614-60. The
order conferred no new rights upon the
Power Company which that company
could or did convey to the Traction Com-
pany, nor give them a sanction that they
did not have, nor did it affect any rights
of the plaintiff.
From every Federal constitutional
standpoint, therefore, the contentions of
plaintiff are so obviously without merit
as to be colorless; and whatever contro-
versies or causes of action it had were
against the defendant companies as rivals
in eminent domain, or as owners of the
lands; and, diversity df citizenship not
252 r. s.
Itls.
SOUTH COVINGTON & C. STREET R. CO. v. KENTUCKY.
399
existiiig, the District Court o£ the United
States had no jurisdiction.
Decaree afltoied.
Mr. Justice Day and Mr. Justice
Olarloe took no part in the consideration
or deeision of this case.
SOUTH COVINGTON & CINCINNATI
STREET RAILWAY COMPANY, Plff. in
Err.,
V.
COMMONWEALTH OF KENTUCKY.
(See S. C. Reporter's cd. 39^408.)
Oommeroe •» state regulation ^ street
railways •» separate coach law.
A Kentucky street railway may be
required by a statute of that state to fur-
nish ^ther separate cars or separate oom-
partments in the same car for white and
n^;ro passengers, although its principal
business is the carriage of passengers in
interstate* commerce between Cincinnati,
Ohio, and Kentuckj^ cities across the Ohio-
river. Such a requirement affects interstate
commerce only incidentally, and does not
subject it to unreasonable demands.
[For other cases, see Commerce, III. a, in Di-
gest Sup. Ct. 1908.]
[No. 252.]
Argued March 18 and 19, 1920. Decided
April 19, 1920.
IN ERROR to the Court of Appeals of
the State of Kentucky to review a
judgment which affirmed a judgment of
the Circuit Court of Kenton County, in
that state, convicting a street railway
company of violating the Separate Coach
Law. Affirmed.
See same case below, 181 Ky. 449, 205
S. W. 603.
The facts are stated in the opinion.
Mr. Alfred 0. Oaesatt argued the
eause, and, with Messrs. J. C. W. Beck-
ham, Richard P. Ernst, and Prank W.
Cottle, filed a brief for plaintiff in er-
ror:
This court will consider the facts in-
dependently, especially where, as in this
case, there is no conflict of testimony.
Mississippi B. Commission v. Illinois
C. R. Co. 203 U. S. 336, 344, 346, 61 L.
ed. 209, 214, 216, 27 Sup. Ct. Rep. 90;
Southern P. Co. v. Schuyler, 227 U. S.
601, 611, 67 L. ed. 662, 669, 43 LJI.A.
(N.S.) 901, 33 Sup. Ct. Rep. 277; Chi-
eago, B. & Q. R. Co. v. Railroad Com-
mission, 237 U. S. 220, 59 L. ed. 926,
P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560;
Seaboard Air Line R. Co. v. Blackwell,
244 U. S. 310, 61 L. ed. 1160, L.R.A.
1917F, 1184, 37 Sup. Ct. Rep. 640 ; Mis-
souri, K. & T. R. Co. V. Texas, 245 U.
S. 484, 62 L. ed. 419, L.R.A.1918C, 635,
P.U.R.1918B, 602, 38 Sup. Ct. Rep. 178.
The Separate Coach Law is a direct
and unreasonable regulation of inter-
state commerce.
South Covington & C. Street R. Co.
V. Covington, 235 U. S. 537, 59 L. ed.
350, L.R.A.1915F, 792, P.U.R.1915A, 231,
35 Sup. Ct. Rep. 158; Hall v. DeCuir,
95 U. S. 485, 24 L. ed. 547; Cleveland,
Note.— ^Separating white and negro
passengers as interference with inter-
state commerce.
Unless considered as limited to street
railways only, the decisions in South
CoviNQTON & C. Street R. Co. v. Ken-
tucky and Cincinnati, C. & E. R. Co. ▼.
Kentucky, 252 U. S. 408, post, 637, 40
Sup. Ct. Rep. 381, seem to mark a de-
parture from the generally accepted view
that a state law which requires separate
but equal accommodations to be furnished
for colored and white passengers is void
so far as it applies to interstate com-
merce. This is the doctrine of such
cases as State ex rel. Abbott v. Hicks, 44
La. Ann. 770, 11 So. 74; Anderson v.
Louisville & N. R. Co. 4 Inters. Com.
Rep. 764, 62 Fed. 46; Hart v. State, lOa
Md. 695, 60 Atl. 457; State v. Galveston,
H. & S. A. R. Co. — Tex. Civ. App.
— , 184 S. W. 227.
So, a statute requiring all railroads m
the state to furnish equal but separate
accommodations for the white and colored
races, and requiring conductors to assign
64 li. ed.
passengers to their respective places,
when applied to a passenger from an-
other state on an interstate railroad line,
invades the powers conferred on Con-
gress by the commerce clause of the Con-
stitution. Carrey v. Spencer, 72 N. Y.
S. R. 108, 36 N. Y. Supp. 886, 5 Inters.
Com. Rep. 636.
And support for this view is found in
the decision in Hall v. DeCuir, 96 U. S.
485, 24 L. ed. 547, that state laws pro-
hibiting any discrimination as to color
between passengers are unconstitutional
in so far as they apply to interstate com-
merce, such as to the carriage of pas-
sengers by vessel making voyages be-
tween different states.
However, in Smith v. State, 100 Tenn.
494, 41 L.R.A. 432, 46 S. W. 566; Ala-
bama & V. R. Co. V. Morris, 103 Miss.
511, 60 So. 11, Ann. Cas. 1915B, 613$
and Southern R. Co. v. Norton, 112 Miss.
302, 73 So. 1, it was held that a state
statute provicUng for separate but equal
accommodations for white and colored
631
400
SUPREME COURT OF THE UNITED STATES.
Got. Term,
C. C. & St. L. R. Co. V. Illinois, 177 U.
S. 614, 44 L. ed. 868, 20 Sup. Ct. Rep.
722; Chesapeake & O. R. Co. v. Ken-
tucky, 179 U. S. 388, 45 L. ed. 244, 21
Sup. Ct. Rep. 101.
A state statute or regulation which
operated upon interstate commerce, or
which is interpreted by the state in such
a way as to make it operate on interstate
commerce, is on the defensive, and to be
upheld it must be entirely and affirma-
tively reasonable. The regulation of in-
terstate commerce is the domain of the
Federal government. A state statute
which, as interpreted, in a given case,
regulates or burdens interstate com-
merce, does not have the presumption in
its favor which attends public regula-
tions in general.
Atlantic Coast line R. Co. v. River-
side Mills, 219 U. S. 186, 55 L. ed. 167,
31 L.RJL.(N.S.) 7, 31 Sup. Ct. Rep. 164;
Central of Georgia R. Co. v. Murphey,
196 U. S. 194, 49 L. ed. 444, 25 Sup. Ct.
Rep. 218, 2 Ann. Cas. 514; Welton v.
Missouri, 91 U. S. 282, 23 L. ed. 360;
niinois C. R. Co. v. Illinois, 163 U. S.
142, 154, 41 L. ed. 107, 111, 16 Sup. Ct.
Rep. 1096; Kansas City Southern R. Co.
V. Kaw VaUey Drainage Dist. 233 U. S.
75, 58 L. ed. 857, 34 Sup. Ct. Rep. 664.
Mr. Stephens L. Blakely argued the
cause, and, with Mr. Charles I. Dawson,
Attorney General of Kentucky, filed a
brief for defendant in error:
The statute of Kentucky, as applied
to the facts in this case, was not an un-
lawful and unreasonable interference
with interstate commerce, in violation of
the Federal Constitution.
Chesapeake & 0. R. Co. v. Kentucky,
179 U. S. 388, 45 L. ed. 244, 21 Sup. Ct.
Rep. 101 ; Louisville, N. 0. & T. R. Co.
v. Mississippi, 133 U. S. 587, 33 L. ed.
784, 2 Inters. Com. Rep. 801, 10 Sup.
Ct. Rep. 348.
Mr. Justice McKenna delivered the
opinion of the court:
The railway company was indicted for
a violation of a statute of. Kentu<d[y
which required companies or persons
running or operating radlrdads in the
state to furnish separate coaches or eara
for white and colored passengers.
The statute^ as far as we are concerned
with it, is as follows: All eorporationsi
companies^ or persons ^^engaged in run-
ning or operating any of the railroads of
this state, either in part or whole, either
in their own name or that of others, are
hereby required to furnish separate
coaches or cars for the travel or trans-
portation of the white and colored pas-
sengers on their respective lines of rail-
road. Each compartment of a coadi
divided by a good and substantial wood-
en partition, with a door therein, shall
be deemed a separate coach withm the
meaning of this act, and each separate
coach or compartment shall bear in some
conspicuous place appropriate words in
plain letters indicating the race for which
it is set apart." [Ky. Stat. 1915, § 795.]
races on railroads is a valid police reg-
ulation, and applies both to intrastate
and interstate travel These cases take
the position that the question of the
validity of such statute, as applied to
interstate commerce, is an open one
under the decisions of the Supreme Court
of the United States, pointing out that
in cases where a similar state statute
was before the United States Supreme
Court, the only question under considera-
tion was that of its validity as to intra-
state commerce, the court limiting itself
to an affirmance of the validity of the
statute as interpreted by the state courts
as being aj^licable to intrastate com-
merce only.
The court in the Morris Case said that
''the ultimate settlement of the question
rests with the Supreme Court of the
United States ; and until that great court
decides against the validity of the stat-
ute as construed by us, we feel impelled
to adhere to our belief that the law is not
only beyond criticism from a constitu-
tional standpoint, but is also a reason-
6S2
able and wise exercise of the police
power of the state."
And such statutes refer to sleeping
cars as well as to other cars. Alabama
& Y. R. Co. V. Morris, and Southern R.
Co. V. Norton, supra.
Inaction by Congress is equivalent to
the declaration that a carrier may by
regulation separate its colored and whit^
interstate passengers. Hall v. DeCoir,
95 U. S. 486, 24 L. ed. 547; Chiles v.
Chesapeake & O. R. Co. 218 U. 8. 71, 54
L. ed. 936, 30 Sup. Ct. Rep. 667, 20 Ann.
Cas. 980.
State statutes which have been or may
be construed as applying to intrastate
commerce only have been upheld.
Thus, the requirement of separate
coaches for white and colored passen-
gers, which is made by a Kentucky Stat-
ute, §§ 795-801, does not, at least as ap-
plied to carriage wholly within the state,
violate the interstate commerce or any
other clause of the Federal Constitution,
although the line extends bejrond the
95S U. 8.
1»1B.
SOUTH COVINGTON & C STREET R. CO. v. KENTUCKY. 401, 402
[401] It is also provided that there
shall be no difference or discTimination
in the quality of the coaches or cars. A
violation of the act is made a miBde-
meanor.
Intemrban electric railroads are sub-
ject to the above provisions. We may
say in passing that the railway company
denies that it is intemrban, bat admita
that the fact has been decided a^nat it
and accepts the ruling. It will be con-
sidered, therefore, as intemrban, and, be-
ing 80, it was within the law and the
charge of the indictment. The charge is
that it, the company, at the time desig-
nated, '^en and there had authority and
was nutbonzed to operate a line of rail-
road 10 miles in length between Coving-
ton and Erianger, and beyond, through
and by means of its control, ownership,
and lease of and from the. Cincinnati,
Covington, & Brian ger Railway Com-
pany, a corporation organised under the
jaws of the commonwealth of Kentucky,
an intemrban railroad company author-
ized to construct and operate an electric
railroad 10 miles in length in this coun-
ty between Covington and Erianger and
beyond, and incorporated under the gen-
eral railroad laws of this commonwealth,
said defendant (hen and there operating
said line of railroad, the construction of
which by the Cincinnati, Covington, &
Erianger Railway Company had thereto-
fore been authorized." And having snob
authority and control of the line of rail-
road, the company violated the law of the
state by not observing its requirement as
to separate coaches.
The defense to the action was, and the
contention here is, not that the facts
charged are not true, but that the stat-
ute, so far as it is attempted to be made
applicable to the company, is an inter-
ference with interstate commerce, and
that the defense was made in the trial
court in a motion to dismiss and for a
new trial, and also in the court of ap-
peals.
In suppoi
stated that tl
ness was
[402] carri
Cincinnati
across the C
street cor si
trips from
Covington,
about 5 mitt
cent of the
terstate.
The reply made by the state, and ex-
pressed by the court ot appeals, to the
contention, is that the railway company
is a Kentucky corporation and by its
charter was given authority "to construct,
operate, and manage street railways in
the city of Covington and vicinity;" "and
along such streets and public highways in
the city as the council shall grant the
right of way to;" ''and along suoh roads
or streets out of the city as the compa-
nies or corporations owning the same may
state. Ohio Valley R. Co. v. Lander,
104 Ky. 431, 47 S. W. 344, 882.
And Kentucky Statute 1692, § 1, r*-
quiring separate coaches for white and
colored passengers, was held in Chesa-
peake & 0. R. Co. V. Kentucky, 179 U. S.
388, 45 L. ed. 244, 31 Sup. Ct. Rep. 101,
not to contravene the commerce clause
of the Federal Constitution, since its
constitutionality was sustained hy the
highest court of the state on the ground
that the statute applied only to trans-
portation between points in that state;
or, if not, that the regulation of such
transportation is severable from that as
to interstate business, srhich decision
constitutes a determination of the local
law which is binding on the Supreme
Court of the United States.
And the separate coach provision of
the Oklahoma Act of December 18, 1907,
must be construed as applying to trans-
portation wholly intrastate, in the ab-
sence of a different construction by the
state court, and hence, as not contra-
vening the comriieree clause of the Fed-
«4 L. ed.
eral Constitution. McCabe v. Atchison,
T. & S. F. R. Co. 235 U. S. 151, 59 L. ed.
169, 35 Sup. Ct. Rep. 69,
So, too, the Maryland Act of 1904,
chap. 109, reqairing carriers to provide
separate coaches for white and colored
passengers, is valid in so far as it af-
fects commerce wholly within the state,
but invalid as to, interstate passengers,
and must be constmed aa not applying
to them. Hart v. State, 100 Ud. 595, 60
Atl. 457.
And in State v. Jenkins, 124 Md. 376,
92 Atl. 773, it was held that the Mary-
land Act of 1908, known as the Jim Crow
Law, must be construed to apply only to
intrastate passengers, and not to inter-
state passengers, and hence not to be in
conflict with the commerce clause of the
Federal Constitution.
And the Mississippi Statute of March
2, 1888, having been settled by the su-
preme court of that state to apply sole-
ly to commerce within that state, the
first section of such statute, which re-
quires railroads to provide separate ae-
n3.i
400
SUPREME COURT OF THE UNITED STATES.
Oct. TEBk,
C. C. & St. L. R. Co. V. Illinois, 177 U.
S. 514, 44 L. ed. 868, 20 Sup. Ct. Rep.
722; Chesapeake & 0. R. Co. v. Ken-
tucky, 179 U. S. 388, 45 L. ed. 244, 21
Sup. Ct. Rep. 101.
A state statute or regulation which
operated upon interstate commerce, or
which is interpreted by the state in such
a way as to make it operate on interstate
commerce, is on the defensive, and to be
upheld it must be entirely and affixma-
tively reasonable. The regulation of in-
terstate commerce is the domain of the
Federal government. A state statute
which, as interpreted, in a given case,
regulates or burdens interstate com-
merce, does not have the presumption in
its favor which attends public regular
tions in general.
Atlantic Coast line R. Co. v. River-
side Mills, 219 U. S. 186, 55 L. ed. 167,
31 L.R.A.(N.SO 7, 31 Sup. Ct. Rep. 164;
Central of Georgia R. Co. v. Murphey,
196 U. S. 194, 49 L. ed. 444, 25 Sup. Ct.
Rep. 218, 2 Ann. Cas. 514; Welton v.
Missouri, 91 U. S. 282, 23 L. ed. 350;
niinois C. R. Co. v. Illinois, 163 U. S.
142, 154, 41 L. ed. 107, 111, 16 Sup. Ct.
Rep. 1096; Kansas City Southern R. Co.
V. Kaw Valley Drainage Dist. 233 U. S.
75, 58 L. ed. 857, 34 Sup. Ct. Rep. 564.
Mr. Stephens L. Blakely argued the
cause, and, with Mr. Charles I. Dawson,
Attorney General of Kentucky, filed a
brief for defendant in error:
The statute of Kentucky, as applied
to the facts in this case, was not an un-
lawful and unreasonable interference
with interstate commerce, in violation of
the Federal Constitution.
Chesapeake & 0. K Co. v. Kentucky,
179 U. S. 388, 45 L. ed. 244, 21 Sup. Ct.
Rep. lOl; Louisville, N. 0. & T. R. Co.
V. Mississippi, 133 U. S. 587, 33 L. ed.
784, 2 Inters. Com. Rep. 801, 10 Sup.
Ct. Rep. 348.
Mr. Justi<$e MtKenna delivered the
opinion of the court:
The railway company was indicted for
a violation of a statute of. Kentudqr
which required companies oi^ persons
running or operating railrdads in the
state to furnish separate co^es or ear^
for white and colored passengers.
The statute^ as far as we are concerned
with it, is as^ follows: AU corporations,
companies^ or persons '^engaged in run-
ning or operating any of the railroad of
this state, either in part or whole, either
in their own name or that of others, are
hereby required to furnish separate
coaches or cars for the travel or trans-
portation of the white and colored pas-
sengers on their respective lines of rail-
road. Each compartment of a coach
divided by a good and substantial wood-
en partition, with a door therein, shall
be deemed a separate coach within the
meaning of this act, and each separate
coach or compartment shall bear in some
conspicuous place appropriate words in
plain letters indicating the race for which
it is set apart." [Ky. Stat. 1915, § 795.]
races on railroads is a valid police reg-
ulation, and applies both to intrastate
and interstate travel These cases take
the position that the question of the
validity of such statute, as applied to
interstate commerce, is an open one
under the decisions of the Supreme Court
of the United States, pointing out that
in cases where a similar state statute
was before the United States Supreme
Court, the only question under considera-
tion was that of its validity as to intra-
state commerce, the court limiting itself
to an affirmance of the validity of the
statute as interpreted by the state courts
as being applicable to intrastate com-
merce only. •
The court in the Morris Case said that
''the ultimate settlement of the question
rests with the Supreme Court of the
United States; and until that great court
decides against the validity of the stat-
ute as construed by us, we feel impelled
to adhere to our belief that the law is not
only beyond criticism from a constitu-
tional standpoint, but is also a reason-
632
able and wise exercise of the police
power of the state."
And such statutes refer to sleeping
cars as well as to other cars. Alabama
& V. R. Co. V. Morris, and Southern R.
Co. V. Norton, supra.
Inaction by Congress is equivalent to
the declaration that a carrier may by
regulation separate its colored and white
interstate passengers. Hall v. DeCuir,
95 U. 8. 485, 24 L. ed. 547; Chiles v.
Chesapeake & O. R. Co. 218 U. S. 71, 54
L. ed. 936, 30 Sup. Ct. Rep. 667, 20 Ann.
Cas. 980.
State statutes which have been or may
be construed as applying to intrastate
commerce only have been upheld.
Thus, the requirement of separate
coaches for white and colored passen-
gers, which is made by a Kentucky Stat-
ute, §§ 795-801, does not, at least as ap-
plied to carriage wholly within the state,
violate the interstate commerce or any
other clause of the Federal Constitution,
although the line extends bejrond the
35S V. 8.
SOUTH COVIXGTON &. C STREET R. CO. v. KENTUCKY. 401, 402
[401] It is also provided that there
ahill be no difference or diacrimiDation
in the qualitjr of the coaches or cars. A
violation of the act is made a misde-
Intemrban electric railroads are sub-
ject to the above provisions. We may
say in passing that the railway company
denies that it is intemrban, but admits
that the fact has been decided against it
and aceepts the ruling. It will be con-
sidered, tnerefore, as intemrban, and, be-
ing so, it was within the law and the
charge of the indictment. The charge is
that it, the company, at the time desig-
nated, "then and there had authority and
was authorized to operate a line of rail-
road 10 miles in length between j-
ton and Erianger, and beyond, :h
and by means of its control, oi o,
and lease of and from the Ci i,
Covington, & Erianger Railwi i-
pany, a corporation organized t le
laws of the commonwealth of B y,
an intemrban railroad compan3 r-
ized to construct and operate an electric
railroad 10 miles in length is this coun-
ty between Covington and Erianger and
beyond, and incorporated under the gen-
eral railroad laws o£ this commonwealth,
said defendant Ihcn and there operating
said line of railroad, the coustmction of
which by the Cincinnati, Covington, &
Erianger Railway Company had thereto-
fore been authorized." And haring such
authority and control of the line of rail-
road, the company violated the law of the
state by not observing its requirement as
to separate coaches.
The defense to the action was, and the
contention here is, not that the facts
charged are not true, but that the stat-
ute, so far as it is attempted to be made
applicable to the company, is an inter-
ference with interstate commerce, and
that the defense was made in the trial
court in a motion to dismiss and for a
new trial, and also in the court of ap-
peals,
In support of the contention it is
stated that the company's principal busi-
ness was interstate commerce,— the
[402] carriage o£ passengers between
Cincinnati and the Kentucky cities
across the Ohio river; that the car in
question was an ordinary single truck
street car solely engaged in interstate
trips from Cincinnati, Ohio, through
Covington, Kentucky, and a suburb
about 5 miles distant, and that 80 per
cent of the passengers carried were in-
terstate.
The reply made by the state, and ex-
pressed by the court of appeals, to the
contention, is that the railway company
is a Kentucky corporation and by its
charter was given authority "to constriiet,
operate, and manage street railways in
the city of Covington and vicinity;" "and
along such Etreets and public highways in
the city as the council shall grant the
right of way to ;'' ''and along such roads
or streets out of the city as the compa-
nies or corporations owning the same may
state. Ohio Valley R. Co. v. Lander,
104 Ky. 431, 47 S. W. 344, 882,
And Kentucky Statute 1892, § 1, re-
quiring separate coaches for white and
colored passengers, was held in Chesa-
peake A 0. K. Co. V. Kentucky, 179 U. S.
388, 45 L. ed. 244, 21 Sup. Ct. Bep. 101,
not to contravene the commerce clause
of the Federal Constitution, since its
constitutionality was sustained by the
highest court of the state on the ground
that the statute applied only to trans-
portation between points in that state;
or, if not, that the regulation of such
transportation is severable from that as
to interstate business, arhicb decision
constitutes a determination of the local
taw which is binding on the Supreme
Court of the United States.
And the separate coach provision of
the Oklahoma Act of December 18, 1907,
must be construed as applying to trans-
portation wholly intrastate, in the ab-
sence of a different constraction by the
state court, and hence, as not contra-
vening the commerce clause of the Fed-
«4 L. ed.
eral Constitution. McCabe v. Atchison,
T. ft S. P. E. Co. 236 U. S. 151, 68 L. ed.
169, 35 Sup. Ct. Bep. 69,
So, too, the Maryland Act of 1904,
chap. 109, requiring carriers to provide
separata coaches for white and colored
passengers, is valid in so far as it af-
fects commerce wholly within the state,
but invalid as to. interstate passengers,
and must be eonstmed as not applying
to them. Hart v. State, 100 Ud. 595, 60
Atl. 457.
And in State v. Jenkins. 124 Md. 376,
92 Atl. 773, it was held that the Mary-
land Act of 1908, known as the Jim Crow
Law, must be construed to apply only to
intrastate passengers, and not to inter-
state passengers, and hence not to be in
conflict with the commerce clause of the
Federal Constitution.
And the Mississippi Statute of March
2, 1888, having been settled by the su-
preme court of that state to apply sole-
ly to commerce within that state, the
first section of such statute, which re-
quires railroads to provide separate ac-
B3.-I
402, 403
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
cede the right to the use of." And fur-
ther, "It may at any time, by agreement,
purchase, lease, consolidate with, acquire,
hold, or operate any other street railway,
or intersect therein, in Covington, Cin-
cinnati, Newport, or vicinity," etc.
The court of appeals further declared
that the railway company became in some
way the owner of all of the stocks of the
Cincinnati, Covington, & Erlanger Rail-
way Company^ and that the corporations
are operated under the same general man-
agement, and "that, the elder corporation,
operating in the name of the junior, ac-
tually constructed its road, and has been
operating it from the banning, being
the owner of the cars which are operated
upon the road. The motive power is elec-
tricity, and is the property of the elder
corporation; the cars operated upon the
road are such as are ordinarily used upon
street railroads, and such as the elder
corporation uses upon the street rail-
roads of its system. A fare of 5 cents is
chaiged for passage from any point upon
the road of the Cincinnati, Covington, &
Erlanger Company, to any point on the
system of the South Covington & Cin-
cinnati [403] Street Railway Company,
and from one point to another upon the
entire system of the latter company, and
transfers are given for all connecting
lines. Many persons who take passage
upon the line of the Cincinnati, Coving-
ton, & Erlanger Railway Company, at its
terminus near Erlanger and at other
places along its lines, are transported
without change of cars, into Cincinnati,
in the state of Ohio^ as it connects with
the lines of the South Covington & Cin-
cinnati Street Railway Company, at its
terminus, in the city of Covington.^ [181
Ky. 452, 205 S. W. 603.J Separate
coaches were not provided as required by
the law.
These being the facts, the court of ap-
peals decided that there was no interfer-
ence with or regulation of interstate com-
merce. "Each of the termini,** the court
said, "as well as all the stations of the
Cincinnati, Covingfton, & Erlanger Rail-
way Company's road, is within the state
of Kentucky." And it was concluded that
"the offense charged and for which the**
railway was "convicted was the operation
of the railroad, in an unlawful manner,
within the state, and in violation of one
of the measures enacted under the poKce
powers of the state.**
In answer to, and in Resistance iO| tihe
conclusion of the court, the railway com-
pany contends that it operates a railway
between designated termini, one being in
Kentucky and the other in Ohio, that the
price of a fare may be the single one of
5 cents for the complete trip in the same
coach taken at or terminating at the re*
spective termini, and that therefore the
car and passenger are necessarily inter-
state. Thus viewed they undoubtei^ are,
but there are other considerations. There
was a distinct operation in Kentucky.
An operation authorized and required by
the charters of the companies, and it is
that operation the act in question regu-
lates, and does no more, and therefore is
not a regulation of interstate oommerce.
This is the effect of the ruling in South'
Covington & C. Street R. Co. v. Coving-
ton, 235 U. S. 537, 59 L. ed. 360, LJLA.
commodations for white and colored
races, is within the power of the state,
and is not a regulation of interstate com-
merce, and so does not violate the com-
merce clause of the Constitution. . Louis-
ville, N. 0. & T. R. Co. V. Mississippi,'
133 U. S. 587, 33 L. ed. 784, 2 Inters.
Com. Rep. 801, 10 Sup. Ct. Rep. 348.
The court distinguished Hall v. DeCuir,
supra, stating that the supreme court of
the state of Louisiana held that the act
under consideration in that case applied
to interstate carriers, and required them,
when they came within the limits of the
state, to receive colored passengers into
the cabin set apart for white persons,
and so this court (United States Su-
preme Court), accepting that construc-
tion as conclusive, held that the act was
a regulation of interstate commerce, and
therefore beyond the power of the state.
While in the instant case the supreme
court of Mississippi held that the stat-
634
ute applied solely to commerce within
the state, and that construction, being
the construction of the statute of the
state by the highest court, must be ac-
cepted as conclusive here. If it be a
matter respecting wholly commerce with-
in a state, and not interfering with eom-
merce between the states, then obviously
there is no violation of the commerce
clause of the Federal Constitution. The
court added: "So far as the first sec-
tion is conceited (and it is with that
alone we have to do), its provisions are
fully complied with when to trains with-
in the state is attached a separate car
for colored passengers. This may eause
an extra expense to the railroad com-
pany; but not more so than state stat-
utes requiring certain accommodations at
depots, compelling trains to stop at
crossings of other railroads, and a multi-
tnde of other matters confessedly wthin
the power of the state. No question
259 tJ. 6.
1919.
SOUTH CX>VINGTON ft C. STREET R. CO. v. KENTUCKY.
403-405
1915P, 792, P.UJL1915A, 231, 36 Sup.
Ct Bep. 158. The [404] regolation of
the act affects interstate business inci-
dentally, and does not subject it to un-
reasonable demands.
The cited case points out the equal
necessity, under our system of govern-
ment, to preserve the power of the st&ifiB
withfai their sovereignties as to prevei\t
the power from intrusive exercise within
the national sovereignty, and an interur-
ban railroad company deriving its pow-
ers from the state, and subject to obliga-
tions under the laws of the state, should
not be permitted to exercise the powers
given by the state, and escape its obliga-
tions to the state, under the circumstances
presented by this leeord, by running its
coaehce beyond the state Imes, But we
need not extend the discussion. The cited
case expresses the principle of decision,
and marks the limitation upon the power
of a state, and when its legislation is or
is not an interference with interstate com-
merce. And regarding its principle, we
think, as we have said, the act in contro-
versy does not transcend that limitation.
Judgment afiSrmed.
Mr. Justice Day, dissenting:
If the statute of the state of Kentucky,
here involved, as enforced by the deci-
sion under review, imposes an unreason-
able burden upon interstate commerce,
the conviction diould be reversed. To de-
termine this question it is necessary to
have in mind precisely what the charge
was, and the nature of the traffic to which
it was applied. The South Covington &
charged with the offense of unlawfully
running and operating a coach or car by
electricity on a railroad track within the
state of Kentucky, without causing or
having a separate coach for the trans-
portation of white and colored passengers
on its said line of railroad to bear in
some conspicuous place appropriate words
in plain letters, indicating the race for
which it was set apart, and without hav-
ing its coach or car divided by a good and
substantial [405] wooden partition, or
other partition, dividing the same into
compartments with a door therein, and
each separate compartment bearing in
some conspicuous place appropriate
words in plain letters, indicating the
race for which it was set apart.
There is no conflict of testimony, and
the record shows that the company was
engaged in the operation of a street rail-
way system whose principal business was
interstate commerce, carrying passengers
between Cincinnati and Kentucky cities
across the Ohio river; that the car in
question, described in the indictment, was
an ordinary single truck street car, seat-
ing thirty-two passengers, about 21 feet
in length, inside measurement, solely en-
gaged in interstate trips from Cincinnati,
Ohio, through Covington, Kentucky, and
well-populated territory adjacent thereto,
to a point near Fort Mitchell, a suburb,
about 5 miles distant. Eighty per cent
of the passengers carried were interstate.
Not to exceed 6 per cent of the passengers
carried at any time were colored, and on
a large proportion of the trips no colored
Cincinnati Street Railway Company was passengers were carried.
arises under this section as to the power
of the state to separate in different com-
partments interstate passengers, or to af-
fect in any manner the privileges and
rights of such passengers. All that we
can consider is whether the state has the
power to require that railroad trains
within her limits shall have separate ac-
commodations for the two races. That
affecting only commerce within the state
is no* invasion of a power given to Con-
gress by the commerce clause."
Justice Harlan, dissenting, in refer-
ring to Hall V. DeCuir, 95 U. S. 485, 24
Lr. ed. 547, said: ''In its application to
passengers on vessels engaged in inter-
state commerce, the Liouisiana enactment
forbade the separation of the white and
black races where such vessels were with-
in the limits of that state. The Missis-
sippi statute, in its application to pas-
sengers on railroad trains employed in
interstate commerce, requires such sep-
64 L. ed.
aration of races while those trains are
within that state. I am unable to per-
ceive how the former is a regulation of
interstate commerce and the other is not.
It is difficult to understand how a state
enactment requiring the separation of
the white and black' races on interstate
carriers of .passengers is a regulation of
commerce among the states, while a sim-
ilar enactment forbidding such separa-
tion is not a regulation of that char-
acter."
The Texas Separate Coach Law of
1891 by its terms applies only to rail-
road companies, lessees, managers, or re-
ceivers ''doing business in the state,"
and is therefore in no manner repugnant
to the Federal organie law. Southern
Kansas B. Co. v. State, 44 Tex. Civ. App.
218, 99 S. W. 166. See also note to
Chesapeake & 0. R. Co. v. Kentucky, 45
L. ed. U. S. 244.
635
400-408
SUPREME COURT OF THE UNITED STATES.
Oct. lEBid,
The question for detennination is:
Whether, under such circumstances, the
requirement of the statute of the state
of Kentucky that raihroad companies do-
ing business in that state shall be required
to furnish separate coaches and cars for
the travel or transportation of white and
eolored persons or cars, with compart^
ments, as described in the indictment, is
constitutional? The nature of the traf-
fic of the South Covington & Ciiicinnati
Street Railway Company was considered
by this court in South Covington & C.
Street R. Co. v. Covington, 235 U. S. 537,
59 L. ed. 350, L.R.A.1915F, 792, P.U.R.
1915A, 231, 35 Sup. Ct. Rep. 158, and we
held that the traffic between Kentucky
and Ohio on the same ears, under the
same management, and having a single
fare, constituted interstate commerce.
See 235 U. S., page 545, and oases cited.
In that case we held that an ordinance of
the city of Covington, which undertook
[406] to determine the iiumber of cars
and passengers to be carried in inter-
state transportation, was invalid as a
burden upon interstate commerce; and
that, as to certain regulations affecting
the safety and welfare of passengers,
the ordinance was valid until Congress
saw fit to regulate the interstate trans-
portation involved.
It is true that a portion of the trans-
portation involved in the present case is
over the track of a raikoad company or-
ganized under the laws of Kentucky. But
that road had no cars, conducted no rail-
road operations, and its stock was owned
and it was operated by the South Cov-
ington & Cincinnati Street Railway Com-
pany. The car for which the indictment
was returned and the conviction had, was
operated only in interstate traffic, and
whether over one road or the other, such
operation was interstate commerce, and
plainly within the authority of Congress.
In the absence of congressional regula-
tion the state had power to make reason-
able rules, not bunlening interstate com-
merce, which should be enforced until
Congress otherwise enacted.
The question in this case, then, is:
Was the application of this statute a rea-
sonable regulation? The traffic consists
in running a single car, of tli^ character
already described, i^om Fountain square,
Cincinnati, a distance of about 6 miles, to
Fort Mitchell, a suburb of South Coving-
ton, Kentucky. How could this separate
car or compartment statute be complied
withf It is first suggested a separate
car could be put on for the accommoda-
tion of colored passengers for the dis-
tance of the intrastate run on the Ken-
636
tucky side of the river. In view of the
nature of Uie trimsportation and the mea-
ger patronage, compared with the ex-
pense of such an undertaking, this method
would be impracticable without inter-
rupting travel and entailing a great loss
upon the company. Secondly, it is sug-
gested, and this seems to be the weight
of the argument, that cars could be con-
structed with a separate compartment for
the few colored [407] persons who ride
in the car after it reaches or before it
leaves Kentucky. It is admitted that
this regulation wouM not apply to inter-
state passengers, tfnd colored passengers
going from Kentufeky to Cincinnati, or*
going from Cincinntiti to Kentucky on a
through trip, wouM'bot be subject to the
r^^ulation. The fW colored passengers
traveling exclusively Tii the state of Ken-
tucky in this car would thus be discrim-
inated against by reason of the different
privilege accorded to other colored pas-
sengers on the same car, — a condition not
likely to promote the peace or public wel-
fare.
As this transportation is also subject
to regulation in the state of Ohio (see
Ohio Gen. Code, § 12,940), and as, by
the laws of that state, no such separation
of passengers is permitted, it follows
that upon the same trip the traffic would
be the subject of conflicting regulations,
calculated to be destructive of the public
policy which it is supposed to be tie de-
sign of this statute to promote, — a con-
dition which we said in South Covington
& C. Street R. Co.'s Case, supra, would
breed confusion greatly to the detriment
of interstate traffic.
This case is quite different from Chesa-
peake & 0. R. Co. V. Kentucky, 179 U.
S. 388, 45 L. ed. 244, 21 Sup. Ct. Rep.
101, in which the statute now under con-
sideration was before the court, and
wherein it was held that the law was valid
when applied to a carrier operating an
interstate road. The act was held to be
separable, and capable of being eomplied
with within the state by attaching a ear
for passengers traveling only within the
state. That case presented quite a differ-
ent situation from the operation of the
single street car here involved.
The present indictment is fer running
an ordinary street car upon an interstate
journey of only abont 6 miles, with 80 per
cent of its travel interstate, and not over
6 per cent of the passengers eolored, and
on many trips no colored passengers at
all. As we have indicated, the attach-
ment of the additional car upon the Ken-
tucky side on so short a [408] journey
252 V. S.
1019.
CINCINNATI, C. & E. R. 00. v. KENTUCKY.
408-410
would harden interstate commerce as to
cost and in the practical operation of the
traffic. The provision for a separate com-
partment for the iiBe of only intrastate
colored passengers would lead to con-
fusion and discrimination. The same in-
terstate transportation would be subject
to conflicting regulation in the two states
in which it is conducted.
It seems to me that the statute in ques-
tion, as applied to the traffic here in-
volved, is an unreasonable regulation and
burdensome to interstate commerce, and,
therefore, beyond the power of the state.
I think the judgment should be reversed.
Mr. Justice Vu Paranter and Mr.
Justice Pitney concur in this dissent.
CINCINNATI, COVINGTON, A ERLAN-
GER RAILWAY COMPANY, Plff, in
Err.,
v.*
COMMONWEALTH OF KENTUCKY.
(See 6. 0. Rftporter'fl ed. 408-411.)
Commerce — state regulation — inter-
uiiMin electric railways — separate
coach law.
Interstate traffic over a Kentucky in-
tenirban electric railway may be subjected
to the operation of a statute of that state
requiring separate coaches, or separate com-
partments in the same coach, for white and
negro passengers, without unlawfully inter-
fering with interstate commerce.
(For other cases, see Conmerce, III. a, in Di-
gest Sup. Ct. 1908.]
[No. 253.]
Argued March 18 and 19, 1920. Decided
April 19, 1920.
IN ERROR to the Court of Appeals of
the State of Kentucky to review a
judgment which affirmed a judgment of
the Circuit Court of Kenton County, in
that state, convicting an interurban
railway company of violating the Sep-
arate Coach Law. Affirmed.
See case below, 181 Ky. 449, 205 S. W.
603.
The facts are stated in the opinion.
Mr. Alfred 0. Oassatt argued the
<!ause, and, with Messrs. J. C. W. Beck-
Note. — As to separating white and ne-
gro passengers as interference with in-
terstate commerce — see note to South
Covington & C. Street R. Co. v. Ken-
tucky, ante, 631.
€4 L. ed.
ham, Richard P. Ernst, and Frank W.
Cottle, filed a brief for plaintiff in error.
Mr. Stephens L. Blakely argued the
cause, and, with Mr. Charles I. Dawson,
Attorney General of Kentticky, filed a
brief for defendant in error.
For contentions of counsel, see their
briefs as reported in South Covington &
C. Street R. Co. v. K«itucky, ante, 631.
Mr. Justice McKenna delivered the
opinion of the court:
This case was argued with No. 252,
South Covington & C. Street R. Co. v.
Kentucky [252 U. S. 399, ante, 631, 40
Sup. Ct. Rep. 378]. It was disposed of
by the court of appeals with that case
in one opinion. The company was in-
dicted, as the other company was, for a
violation of the Separate Coach Law of
the state, and found guilty. The facts
are in essence the same as in the other
ease, though the indictment is more elab-
orate. The defenses and contentions
are the same. We have stated them, and
upon what they are based, and the char-
acter and relation of the companies, in
our opinion in the other case.
The company is an interurban road
and the Separate Coach Law is applicable
to it. It was incorporated under the gen-
eral laws of the state, and authority con-
ferred upon it to construct and operate
an electric railway from the city of Cov-
ington to the town of Erlanger, and to
such further point beyond Erlanger as
might be determined. It was constructed
from Covington to a point just beyond
the suburban town called Fort Mitchell, —
a town of a few hundred inhabitants.
The South Covington & Cincinnati
Street Railway Company furnished the
means to build the road, and at the time
covered by the indictment was operating
the road as part of its railway system, as
described in the other case.
The intimate relations of the roads, as
stated by the court of appeals, we have
set forth in the other case, and it is only
necessary to add that the indictment in
the present case charges that the com-
pany in this case was [410] the lessor
of the other company, and "thereby per-
mitted and brought about the acquisition
of its rights and privileges knowing
that" the ot^er company "would not
operate and run separate coaches for its
white and colored passengers." And it is
charged that the other company operat-
ing the lease violated the law, and that
the defendant company, knowing of the
intended method of operation, also vio-
lated the law. These facts and other
637
410, 411
SUPREME COURT OF THE UNITED STATES.
Oct. Twmm,
facts the court of appeals decided made
the companv an offender against the
statute, and decided further that the
statute was not an interference with
interstate commerce. The conviction of
the company* was sustained.
Our reviewing power, we think, is lim-
ited to the last point; that is, the effect
of the law as an interference with inter-
state commerce, and that we disposed of
in the other case. The distinction counsel
make between street railways and other
railways, and between urban and interur-
ban roads, we are not concerned with.
Judgment affirmed.
Mr. Justice Day, dissenting:
This case is controlled by the disposi-
tion made of No. 252 [252 U. S. 399,
ante, 631, 40 Sup. Ct. Rep. 378.] While
it is true that the Erlanger Company
was incorporated under the laws of the
state of Kentucky, the proof shows that
its road was built and (grated by the
South Covington & Cincinnati Street
Railway Company as part of the latter's
system. This is not a proceeding to test
the right to operate the road. The con-
viction is justified because the local com-
pany permitted the principal company
to operate without separate coaches or
compartments for its colored passengers.
The traffic c6nducted is of an interstate
nature, and the same reasons which im-
pel a dissent in No. 252 require a like
dissent in the presnt case.
In my opinion the single traffic over
both railroads being [411] interstate,
the regulation embodied in the statute,
and for which the conviction was had, as
to both roads, is an unreasonable and
burdensome interference with interstate
commerce.
Mr. Justice Van Devaater and Mr.
Justice Pitney concur in this dissent.
THOMAS P. KENNEY, Administrator of
the Estate of Donald A. Kenney, Peti-
tiotier and Plff. in Err.,
V.
SUPREME LODGE OP THE WORLD,
LOYAL ORDER OP MOOSE.
(See & C. Reporter's ed. 411-416.)
Jodgment— foil faith and credit — case
not within Jurisdiction.
1. The fact that the original cause of
action could not have been maintained in
the courts of a state is not an answer to a
6S8
suit upon a judgment rendered by a eourt
of another state.
[For other cases, see Judgment, VI. b, 4, In
Digest Sup. Ct. 1908.]
Judgment — full faith and credit — duty
to enforce foreign Judgment.
2. The constitutional obligation of a
state to give full faith and credit to the
judgments of courts of other states cannot
be escaped by the simple device of denying
jurisdiction in such cases to courts other-
wise competent.
[For otber caseft, see Judgment, VI. b, 4, in
Digest Sup. Ct. 1908.]
Judgment — full faith and credit — duty
to enforce foreign Judgment.
3. A state statute providing that no
action shall be brought or prosecuted in
that state for damages occasioned by death
occurring in another state in consequence
of wrongful conduct contravenes the full
faith and credit clause of the Federal Con-
gtitution when construed by the state courts
as forbidding the maintenance of an action
upon a judgment recovered in a court of*
another state, in conformity with the laws
of that state, for negligently causing the
death of plaintiff's intestate in that state.
[For other cases, see Judgment, VI. h, 4, in
Digest Sup. Ct. 1903.]
Error to state court — error or cer-
tiorari.
4. Writ of error, not certiorari, ia tiie
proper mode of reviewing, in the Federal
Supreme Court, a judgment of the highest
court of a state upholding a state statute
Note. — ^As to full faith and credit to
be given to state records and judicial
proceedings — see notes to Lindley v.
O'Reilly, 1 L.R.A. 79; Cummington v.
Belchertown, 4 L.B.A. 131; Wiese v. San
Francisco Musical Fund Soc. 7 L.R.A.
578; Rand v. Hanson, 12 L.R.A. 574;
Mills v. Dur>ee, 3 L. ed. U. S. 411; Dar-
by V. Mayer, 6 L. ed. U. S. 367; D'Arcy
V. Ketchum, 13 L. ed. U. S. 648; and
Huntington v. Attrill, 36 L. ed U. S.
1123.
On review of decisions of state courts
presenting questions of full faith and
credit — see note to Allen v. Alleghany
Co. 49 L. ed. U. S. 551.
As to questions of local practice and
procedure on writ of error from Federal
Supreme Court to a state court — see
note to Texas & N. 0. R. Co. v. Miller,
55 L. ed. U. S. 790.
On extraterritorial effect of statute
limiting jurisdiction in which action may
be brought — see note to Tennessee Coaly
Iron & R. Co. v. George, L.R.A.1916I),
688.
And see note to this case in Illinois
supreme court, as reiK>rted in 4 A.L.R.
968.
S5S V. 8.
1919.
KENNEY V. LOYAL ORDER OF MOOSE.
ehaUeaged at repugnant to the Federal Con-
stitatioB*
[FVxr otber eaaee, see Appeal and Brror, 1646-
1672, In DlgMt Sup. Ct 1908.]
[Nos. 269 and 303.]
Argued March 23, 1920. Decided April 19,
1920.
ON WRIT of Certiorari and IN ER-
ROR to the Supreme Court of the
State of Illinois to review a judgment
which affirmed a judgment of the Cir-
cuit Court for Kane County in that
state in favor of defendant in an action
brought to enforce a judgment recovered
in Alabama for negligently causing the
death of plaintiff's intestate in that state.
Writ of certiorari dismissed. Judgment
reversed on writ of error.
See same case below, 285 Dl. 188, 4
A.L.R. 964, 120 N. E. 631.
The facts are stated in the opinion.
Mr. Oriffeth B. Harsh argued the
cause and filed a brief for petitioner and
plaintiff in error:
A judgement of a sister state must be
given the same effect it has in the state
where rendered.
Christmas v. Russell, 5 Wall. 290, 18
L. ed. 476; Stewart v. Stewart, 27 W.
Va. 167.
Whenever a cause of action, in the
language bf the law, transit in rem ju-
dicatam, and the judgment thereupon
remains in full force unreversed, the
original cause of action is merged and
gone forever.
Hamer v. New York R. Co. 244 U. S.
272, note 1, 61 L. ed. 1129, note 1, 37
Sup. Ct. Rep. 514, note, 1; 15 R. C. L.
782; Fletcher v. Brown, 220 U. S. 611,
56 L. ed. 609, 31 Sup. Ct. Rep. 716, 105
C. C. A. 425, 182 Fed. 963.
This attempt of the Illinois legislature
violated the full faith and credit clause
of the United States Constitution, and
was therefore void.
Dodge V. Coffin, 15 Kan. 277; Christ-
mas V. Russell, 5 Wall. 290, 18 L. ed.
476; Fauntleroy v. Lum, 210 U. S. 230,
236, 52 L. ed. 1039, 1042, 28 Sup. Ct. Rep.
641 : Beal v. Carpenter, 148 C. C. A. 633,
235 Fed. 273.
The interpretation of Illinois statutes
is for the courts of Dlinois; but if, when
so interpreted (which is then their true
meaning), they deny a right guaranteed
by the Constitution of the United States,
as interpreted by the courts of the
United States, then they must be held
invalid.
Crew Levick Co. v. Pennsylvania, 245
U. S. 292. 62 L. ed. 295, 38 Sup. Ct. Rep.
64 L. ed.
126; Rogers v. Alabama, 192 U. S. 226,
48 L. ed. 417, 24 Sup. Ct. Rep. 257;
General Oil Co. v. Crain, 209 U. S. 224,
62 L. ed. 763, 28 Sup. Ct. Rep. 475;
Fauntleroy v. Lum, 210 U. S. 230, 52 L.
ed. 1039, 28 Sup. Ct. Rep. 641.
Mr. £. J. Henning argued the cause,
and, with Mr. Ralph C. Putnam, filed a
brief for respondent and defendant in
error:
The matter sought to be reviewed by
this court can only be considered upon
writ of certiorari, and not by writ of
error.
Philadelphia & R. Coal & L Co. v. Gil-
bert, 245 U. S. 162, 62 L. ed. 221, 38 Sup.
Ct. Rep. 68; Bruce v. Tobin, 245 U. S.
18, 62 L. ed. 123, 38 Sup. Ct. Rep. 7; Ire-
land V. Woods, 246 U. S. 327, 62 L. ed.
749, 38 Sup. Ct. Rep. 319; Northern P.
R. Co. V. S*lum, 247 U. S. 477, 62 L. ed.
1221, 38 Sup. Ct. Rep. 550.
The assignments of error are too gen-
eral, and no alleged error is specifically
desi&mated.
Scholey v. Rew, 23 Wall. 331, 23 L.
ed. 99; Texas & P. R. Co. v. Archibald,
170 U. S. 665, 42 L. ed. 1188, 18 Sup.
Ct. Rep. 777, 4 Am. Neg. Rep. 746;
Harding v. IlUnois, 196 U. S. 78, 49 L.
ed. 394, 26 Sup. Ct. Rep. 176.
A state court is free to determine its
own jurisdiction absolutely, without ref-
erence to the full faith and credit clause
of the Federal Constitution.
Anglo-American Provision Co. v. Davis
Provision Co. 191 U. S. 373, 48 L. ed.
225, 24 Sup. Ct. Rep. 92; Walton v.
Pryor, 276 lU. 563, L.R.A.1918E, 914,
115 N. E. 2, 16 N. C. C. A. 191 ; Dough-
erty V. American-McKenna Process Co.
255 111. 369, L.R.A.1915F, 955, 99 N. E.
619, Ann. Cas. 1913D, 668 ; Wisconsin v.
Pelican Ins. Co. 127 U. S. 265, 32 L. ed.
239, 8 Sup. Ct. Rep. 1370; Fauntleroy v.
Lum, 210 U. S. 230, 52 L. ed. 1039, 28
Sup. Ct. Rep. 641.
Where an action is brought upon a
judgment of a sister state the court may
always examine the nature of the cause
of action upon which the judgment is
founded, for the purpose of determining
if it would have jurisdiction of the real
subject-matter of the action, and if it
appears that the court would not have
jurisdiction of the original action, it will
not have jurisdiction of an action on the
judgment.
Wisconsin v. Pelican Ins. Co. 127 U.
S. 265, 32 L. ed. 239, 8 Sup. Ct. Rep.
1370 ; Fauntleroy v. Lum, 210 U. S. 230,
62 L. ed. 1039, 28 Sup. Ct. Rep. 641;
' Carpenter v. Beal-McDonell & Co. 222
6S9
413-415
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Fed. 453; Anglo-American Provision Co.
V. Davis Provision Co. 191 U. S. 373, 48
L. ed. 225, 24 Sup. Ct. Rep. 92; Okla-
homa ex rel. West v. Gulf, C. & S. F. R.
Co. 220 U. S. 290, 55 L. ed. 469, 31 Sup.
Ct. Rep. 437, Ann. Cas. 1912C, 524.
The provision of 111. Rev. Stat chap.
70, § 2, that no action shall be brought
or prosecuted in this state to recover
damages for a death occurring outside
of this state, is a jurisdictional pro-
vision.
Walton V. Pryor, 276 111. 563, L.R.A.
1918E, 914, 115 N. E. 2, 16 N. C. C. A.
191; Dougherty v. American McKenna
Process Co. 225 III 369, L.R.A.1915F,
955. 99 N. E. 619, Ann. Cas. 1913D, 568.
This provision is constitutional, and
does not violate the full faith and credit
clause of the Federal Constitution, or
the clause entitling the citizens of each
state to all the privileges and immunities
of the citizens of the several states.
Ibid. : Chambers v. Baltimore & 0. R.
Co. 207 U. S. 142, 52 L. ed. 143, 28 Sup.
Ct. Rep. 34.
The provision of the Alabama statute
that an action for death by wrongful
act shall be brought in a court of com-
petent jurisdiction within the state of
Alabama, and not elsewhere, is juris-
dictional, and no court outside of the
state of Alabama has jurisdiction of the
subject-matter of such an action.
40 Cyc. 28, 46, 81, 87; 22 Enc. PL A
Pr. 786: Eaehus v. Illinois & M. Canal,
17 HI. 534; Ellenwood v. Marietta Chair
Co. 158 U. S. 105, 39 L. ed. 913, 15 Sup.
Ct. Rep. 771 ; Reynolds v. Day, 79 Wash.
499, L.R.A.1916A, 432, 140 Pac. 681, 5
N. C. C. A. 814; Coyne v. Southern P.
Co. 155 Fed, 683 ; 12 C. J. 441 ; Southern
P. Co. V. Dusablon, 48 Tex. Civ. App.
203, 106 S. W. 766; PoUard v. Bailey,
20 Wall. 520, 22 L. ed. 376.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an action of debt, brought in
Illinois upon a judgment recovered in
Alabama. The defendant pleaded [414]
to the jurisdiction that the judgment was
for negligently causing the death of the
plaintilTs intestate in Alabama. The
plaintiff demurred to the plea, setting up
article 4, §§ 1 and 2 of tiie Constitution
of the United States. A statute of Illi-
nois provided that no action should be
brought or prosecuted in that state for
damages occasioned by death occurring
in another state in consequence of wrong-
ful conduct. The supreme court of Illi-
nois held that as, by the terms of the
statute, the original action could not have
640
been brought there, the lUinbis courts
had no jurisdiction of a suit upon the
judgment. The circuit court of Kane
county having ordered that the demurrer
be quashed, its judgment was afiOrmed.
285 III. 188, 4 A.L.R. 964, 120 N. E.
631.
In the court below and in the argu-
ment before us reliance was placed up-
on Anglo-American Provision Co. v.
Davis Provision Co. 191 U. S. 373, 48
L. ed. 225, 24 Sup. Ct. Rep. 92, and lan-
guage in Wisconsin v. Pelican Ins. Co.
127 U. S. 265, 32 L. ed. 239, 8 Sup. Ct.
Rep. 1370, the former, as ^wing that
the clause requiring full faith and credit
to be given to judgments of other state
does not require a state to furnish a
court, and the latter as sanctioning an
inquiry into the nature of the original
cause of action in order to determine the
jurisdiction of a court to enforce a for-
eign judgment founded upon it. But we
are of opinion that the conclusion sought
to be built upon these premises in the
present case cannot be sustained.
Anglo-American Provision Co. v. Davis
Provision Co. was a suit by a foreign
corporation on a foreign judgment
against a foreign corporation. The de-
cision is sufficiently explained without
more by the views about foreign corpo-
rations that had prevailed unquestioned
since Bank of Augusta v. Earle, 13 Pet.
579, 589-591, 10 L. ed. 303, 308, 309,
cited 191 U. S. 375, 48 L. ed. 227, 24
Sup. Ct. Rep. 92. Moreover, no doubt
there is truth in the proposition that the
Constitution does not require the state
to furnish a court. But it also is true
that there are limits to the power of ex-
clusion and to the power to consider the
nature of [415] the cause of action be-
fore the foreign judgment based upon it
is given effect.
Li Fauntleroy v. Lum, 210 U. S. 230,
52 L. ed. 1030, 28 Sup. Ct. Re^. 641, it
was held that the couijts of Mississippi
were bound to enforce a judgment
rendered in Missouri upon a cause
of action arising in Mississippi, and il-
I^al and void there. The policy of Mis-
sissippi was more actively contravened
in that case than the policy of Illinois
is in this. Therefore the fact that here
the original cause of action could not
have been maintained in Illinois is not
an answer to a suit upon the judgment.
See Christmas v. Russell, 5 Wall. 290,
18 L. ed. 475 ; Converse v. Hamilton, 224
U. S. 243, 56 L. ed. 749, 32 Sup. Ct Rep.
415, Ann. Cas. 1913D, 1292. But this being
true, it is plain that a state cannot escape
its constitutional obligations by the sim-
S52 tJ. S.
l^VJ.
.MiSbOLia V. HQLLAXD.
4U, 4l!)
pie device of denyinjjr jurisdiction in such
cases to courts otherwise competent. The
assumption that it could not do so was
the hasis of the decision in International
Textbook Co. v. Pigg, 217 U. S. 91, 111,
112, 54 L. ed. 678, 687, 688, 27 L.R.A.
(N.S.) 493, 30 Sup. Ct. Rep. 481, 18 Ann.
Cas. 1103, and the same principle was
foreshadowed in General Oil Co. v.
Crain, 209 U. S. 211, 216, 220, 228, 52
L. ed. 754, 758, 761, 764, 28 Sup. Ct.
Rep. 475, and in Fauntleroy v. Lum, 210
U. S. 230, 235, 236, 52 L. ed. 1039, 1041,
1042, 28 Sup. Ct. Rep. 641. See Kevser
V. Lowell, 54 C. C. A. 574, 117 Fed. 400;
Chambers v. Baltimore & O. R. Co. 207
U. S. 142, 148, 52 L. ed. 143, 146, 28
Sup. Ct. Rep. 34, and cases cited.
Whether the Illinois statute . should be
construed as the Mississippi act was con-
strued in Fauntleroy v. Lum was for the
supreme court of the state to decide; but
read as that court read it, it attempted to
achieve a result that the Constitution of
the Ignited States forbade.
Some argument was based upon the
fact that the statute of Alabama allowed
an action to be maintained in a court of
competent jurisdiction within the state,
"and not elsewhere." But when the
cause of action is created, the invalidity
of attempts to limit the jurisdiction of
other states to enforce it has been estab-
lished by the decisions of this court.
Tennessee Coal, I. & R. Co. v. Georgia,
233 U. S. 354, 58 L. ed. 997, L.R.A.1916D,
685, 34 Sup. Ct. Rep. 587; Atchison,
T. & S. F. R. Co. V. Sowers, 213 U. S.
55, 53 L. ed. 695, 29 Sup. Ct. Rep. 397;
and had these decisions been otherwise,
[416] they would not have imported
that a judgment rendered exactly as re-
quired by the Alabama statute was not
to have the respect due to Jlher judg-
ments of a sister state.
As the judgment below upheld a stat-
ute that was invalid as construed, the
writ of error was the proper proceeding,
and the writ of certiorari must be dis-
missed.
Judgment reversed.
STATE OF MISSOURI, Appt.,
v.
RAY P. HOLLAND, United States Game
Warden.
(See S. C. Reporter's ed. 416-435.)
States — suit b:ir — necessary interests
L A suit by a state to enjoin a game
warden of the United States from attempt-
ing to enforce the Migratory Bird Treatv
64 li. ed.
Act and the regulation made by the Secre-
tary of Agriculture in pursuance thereof on
the ground that the statute is an unconsti-
tutional interference with the reserved
rights of the states, and that acts of the
defendant, done and threatened under that
authority, invade the sovereign rights of
the state and contravene its will manifested
in statutes, is a reasonable and proper
means to assert the alleged quasi sovereign
rights of the state.
[For other cases, see States, IX. a, in Digest
Sup. Ct. 1908.]
Treaties — validity — infr Increment of
state rights — miipratory birds.
2. The rights of the several states are
not unooBstitutionally infringed by the Mi-
gratory Bird Treaty of December 8, 1916.
and the Act of July 3, 1918, enacted to give
effect to such treaty, under which the kill-
ing, capturing, or selling any of the migra-
tory birds included in the terms of the
treaty are prohibited except as permitted
by regulations compatible with those term^
to be made by the Secretary of Agriculture.
[For other cases, see Treaties, I. in Digest
Sup. Ct. 1908.]
[No. 609.]
Argued March 2, 1920. Decided April 19,
1920.
APPEAL from the District Court of
the United States for the Western
District of Missouri to review a decree
dismissing a suit brought by the state of
Missouri to prevent a game warden of
the United States from attempting to
enforce the Migratory Bird Treaty Act,
and regulations made by the Secretary
of Agriculture in pursuance of that act.
Affirmed.
See same case below, 258 Fed. 479.
The facts are stated in the opinion.
Messrs. J. O. L. Harvey and John T.
Gtose argued the cause, and, with ]Mr.
Frank W. McAllister, Attorney General
■of Missouri, filed a brief for appellant:
If an executive officer, Federal or
state, is committing, or is about to com-
mit, acts unauthorized by or in violation
of law, to the irreparable injury of the
Note. — On suit against Federal officer
or agent {is suit against United States —
see notes to Louisiana v. Garfield, 53 L.
ed. U. S. 92, and Wells v. Roper, 62 L.
ed. U. S. 756.
As to injunction to restrain acts of
public officers — see note to Mississippi
V. Johnson, 18 L. ed. U. S. 437.
On construction and operation of
treaties — see note to United States v.
The Amistad, 10 L. ed. U. S. 826.
On relation of treaty to state and Fed-
eral law — see note to Trott v. State, 4
A.L.R. 1377.
41 041
SUPREME COURT OF THE UNITED STATES.
Oct. Tebu,
property rights of another, such aetion
or threatened action is good ground for
injunctive relief against such-officer.
Philadelphia Co. v. Stimson, 223 U. S.
605, 619, 620, 56 L. ed. 570, 576, 32 Sup.
Ct. Rep. 340; Magruder v. Belle Fourche
Valley Water Users' Asso. 133 C. C. A.
524, 219 Fed. 79; Noble v. Union River
Logging R. Co. 147 U. S. 165, 172, 37 L.
ed. 123, 126, 13 Sup. Ct. Rep. 271 ; School
V. McAnnulty, 187 U. S. 94, 47 L. ed.
90, 23 Sup. Ct. Rep. 33; Dobbins v.
Los Angeles, 195 U. S, 241, 49 L. ed.
177, 25 Sup. Ct. Rep. 18 ; Truax v. Raich,
239 U. S. 37, 60 L. ed. 133, L.R.A.1916D,
545, 36 Sup. Ct. Rep. 7, Ann. Cas. 1917B,
283; Lane v. Watts, 234 U. S. 525, 540,
58 L. ed. 1440, 1456, 34 Sup. Ct. Rep.
965 ; Davis & F. Mfg. Co. v. Los Angeles,
189 U. S. 217, 47 L. ed. 780, 23 Sup. Ct.
Rep. 498; Ex parte Young, 209 U. S.
162, 52 L. ed. 730, 13 L.R.A.(N.S.) 932,
28 Sup. Ct. Rep. 441, 14 Ann. Cas. 764;
United States v. Lee, 106 U. S. 196, 27
L. ed. 171, 1 Sup. Ct. Rep. 240.
In a suit of the character of the one
at bar, mere property rights and loss of
revenue, however, are not the chief con-
sideration. Rights are involved which-
may not be valued in money, but the
infraction of which the state may insist
shall be stopped. An adequate remedy
can only be had in a suit by the state to
enjoin such infraction.
Geoi^ia v. Tennessee Copper Co. 206
U. S. 230, 237, 51 L. ed. 1038, 1044, 27
Sup. Ct. Rep. 618, 11 Ann. Cas. 488;
Missouri V. Illinois, 180 U. S. 208, 45 L.
ed. 497, 21 Sup. Ct. Rep. 331; Kansas
V. Colorado, 185 U. S. 125, 46 L. ed. 838,
22 Sup. Ct. Rep. 552; Glenwood Light &
Water Co. v. Mutual Light, Heat & P.
Co. 239 U. S. 121, 60 L. ed. 174, 36 Sup.
Ct. Rep. 30.
Our government had no prototype in
history. The Federal government and
the states are separate and distinct
sovereignties. The one, within the
sphere of its delegated powers, is su-
preme; the other, within the sphere of
its undelegated and reserved powers, is
no less supreme. It was never intended
that the states should be shorn of their
sovereignty in internal affairs.
Collector v. Day (Buffingtbn v. Dav)
11 Wall. 113, 124, 20 L. ed. 122, 125;
Lane County v. Oregon, 7 Wall. 71, 76,
19 L.. ed. 101, 104; Gordon v. United
States, 117 U. S. 697, 705; Martin v.
Hunter, 1 Wheat. 325, 4 L. ed. 102;
United States ex rel. Turner v. Wil-
liams, 194 U. S. 279, 295, 48 L. ed. 979,
986, 24 Sup. Ct. Rep. 719; M^CuUoch
V. ^farvland, 4 Wheat. 316, 4 L. ed. 579;
642
1 Willoughby, Const, p. 66; South Caro-
lina V. United States, 199 U. S. 447, 50
L. ed. 264, 26 Sup. Ct. Rep. 110, 4 Ann.
Cas. 737.
Under the ancient law, feudal law, and
the common law in England, the absolute
control of wild game was an attribute of
government and a necessary incident of
sovereignty. When, therefore, the
United Colonies became free and inde-
pendent states, with full power to do all
acts and things which independent states
may of right do, the power to control the
taking of wild game passed to the states.
Geer v. Connecticut, 161 U. S. 519,
523, 530, 40 L, ed. 794, 797, 16 Sup. Ct.
Rep. 600 ; Ward v. Race Horse, 163 U. S.
504, 41 L. ed. 244, 16 Sup. Ct. Rep. 1076.
Missouri, upon her admission to the
Union, became entitled to and possessed
of all the rights and dominion and
sovereignty which belonged to the orig-
inal states. She was admitted, and
could be admitted, only on the same
footing with them. Equality of consti-
tutional right and power is the condition
of all the states of the Union, old and
new.
Escanaba & L. M. Transp. Co. v. Chi-
cago, 107 U. S. 678, 688, 27 L. ed. 442,
446, 2 Sup. Ct. Rep. 185; Ward v. Race
Horse, 163 U. S. 504, 513, 41 L. ed. 244,
247, 16 Sup. a. Rep. 1076; Cardwell v.
American River Bridge Co. 113 U. S.
205, 212, 28 L. ed. 959, 961, 5 Sup. Ct.
Rep. 423; Willamette Iron Bridge Co. v.
Hatch, 125 U. S. 1, 31 L. ed. 629, 8 Sup.
Ct. Rep. 811; Pollard v. Hagan, 3 How.
212, 11 L. ed. 565; Withers v. Buckley,
20 How. 84, 92, 15 L. ed. 816, 819; Per-
moli V. New Orleans, 3 How. 589, 11 L.
ed. 739.
This power of the state over wild
game within its borders, which cannot
be questioned and will not be gainsaid,
is derived from the peculiar nature of
such property and its common ownership
by all the citizens of the state in their
collective sovereign capacity. The state,
in its sovereign capacity, is the repre-
sentative of the people in their common
ownership of the wild game within the
borders of the state, and holds the same
in trust for the benefit of all its people.
Geer v. Connecticut, 161 U. S. 519,
529, 530, 40 L. ed. 793, 797, 16 Sup. Ct.
Rep. 600; McCready v. Virginia, 94 U.
S. 391, 24 L. ed. 248; Martin v. Wadddl,
16 Pet. 410, 10 L. ed. 1012; United
States T. Shauver, 214 Fed. 154; United
States V. McCullagh, 221 Fed. 294; Ru-
pert V. United States, 104 C. C. A. ^56,
181 Fed. 90 ; Magner v. People, 97 HI.
333; Gentile v. State, 29 Ind. 417; Ex
252 V. n.
3919.
MISSOURI V. HOLLAND.
parte Maier, 103 CaL 483, 42 Am. St.
Rep. 129, 37 Pac. 402; Chambers Bros.
V. Church, 14 R. L 400, 51 Am. Rep. 410;
Manchester v Massachusetts, 139 U. S.
240, 36 L. ed. 159, 11 Sup. Ct. Rep. 659;
Patsone v. Pennsylvania, 232 U. S. 138,
58 L. ed. 539, 34 Sup. Ct Rep. 281; The
Abby Dodge, 223 U. S. 166, 56 L. ed.
390, 32 Sup. Ct. Rep. 310; Smith v.
Maryland, 18 How. 72, 15 L. ed. 270;
Carey v. South Dakota, 250 U. S. 118, 63
L. ed. 886, 39 Sup. Cf. Rep. 403; New
York ex rel. Site v. Hesterberg, 211 U.
S. 31, 53 L. ed. 75, 29 Sup. Ct. Rep. 10;
Re Deininger, 108 Fed. 623; Heim v.
McCall, 239 U. S. 175, 60 L. ed. 206, 36
Sup. Ct. Rep. 78, Ann. Cas. 1917B, 287.
The power of the state over wild game
within its borders is not dependent sole*
ly upon the authority which the state
derives from eommon ownership and the
trost for the benefit of the people; the
power of the state to control wild game
is a necessary incident of the power of
police. The power of police is an attri-
bute of state sovereignty.
Geer v. Connecticut, 161 U. S. 519,
534, 40 L. ed. 793, 798, 16 Sup. Ct. Rep.
600; New York v. Miln, 11 Pet. 102, 132,
133, 9 L. ed. 648, 650. 660; Pierce v.
State, 13 N. H. 576; New York ex rel.
Cutler v. Dibble, 21 How. 366, 16 L. ed.
149; Federalist, No. XLV. (Hallowell,
1862) pp. 215, 216; Compagnie Francaise
De Navigation a Vapeur v. State Bd.
of Health, 186 U. S. 380, 46 L. ed. 1209,
22 Sup. Ct. Rep. 811 ; Groves v. Slaugh-
ter, 15 Pet. 449, 511, 10 L. ed. 800, 823 ;
Prigg ▼. Com. 16 Pet. 539, 625, 10 L. ed.
1060, 1092; Com. v. Alger, 7 Cush. 84;
Thorpe v. Rutland & B. R. Co. 27 Vt.
149, 62 Am. Dec 625; Boston Beer Co.
V. Massachusetts, 97 U. S. 25, 33, 24 L.
ed; 089, 992; Rupert v. United States,
104 C. C. A. 255, 181 Fed. 90; Cook v.
Marshall County, 196 U. S. 261, 49 L. ed.
471, 26 Sup. Ct. Rep. 233; Re Raher, 140
U. S. 546, 36 L. ed. 572, 11 Sup. Ct. Rep.
866; House v. Mayes, 219 U. S. 270, 281,
282, 65 L. ed. 213, 217, 218, 31 Sup. Ct.
Rep. 234; Brodnax v. Missouri, 219 U. S.
292, 293, 65 L. ed. 223, 224, 31 Sup. Ct.
Rep. 238; New York ex reL Kennedy v.
Becker, 241 U. S. 566, 60 h. ed. 1166, 36
Sup. Ct. Rep. 705; Cantini v. Tillman, 54
Fed. 969; Plumley v. Massachusetts, 165
U. S. 461, 473, 39 L. ed. 223, 227, 5
Inters. Conu Rep. 590, 16 Sup. Ct. Rep.
154.
Upon the authority and principles of
the cases hereinbefore cited, it has been
held that a prior act of Congress, ap-
proved March 4, 1913, — ^which act is
similar to the one now in question, save
64 li. ed.
that it was not made in aid of any
treaty, — ^was unconstitutional and void.
United States v. Shauver, 214 Fed.
154; United States v. McCullagh, 221
Fed. 288.
The fact that the present act of Con-
gress purports to give effect to a treaty
between the United States and Great
Britain cannot. validate such act of Con-
gress when its effect is not only to ac-
complish that which, under the Consti-
tution, Congress has no power to do, but
also to do that which is forbidden to the
entire Federal government in all or any
of its departments, under the terms of
the Constitution. Any and every treaty
must be presumed to be made subject
to the rightful powers of the govern-
ments concerned, and neither the treaty-
making power alone, nor the treaty-
making power in conjunction with any
or all departments of the government,
can bind the government to do that
which the Constitution forbids.
The Federalist, pp. 144, 145, 215, 216;
Works of Calhoun, vol. 1, 203, 204, pp.
249, 250, 252, 263; Qeofrov v. Riggs, 133
U. S. 258, 267, 33 L. ed. 642, 645, 10 Sup.
Ct. Rep. 296; People ex rel. Atty. Gen.
vi Gerke, 5 Cal. 383 ; 2 Tucker, Const,
pp. 725, 726; George v. Pierce, 85 Misc.
105, 148 N. Y. Supp. 237; Compagnie
Francaise de Navigation a Vapeur v.
State Bd. of Health, 51 La. Ann. 662,
56 L.R.A. 795, 72 Am. St. Rep. 458, 25
So. 691, 186 U. 8. 380, 46 L. ed: 1209, 22
Sup. Ct. Rep. 811 ; Cantini v. Tillman, 54
Fed. 969; 1 Butler, Treaty-Making Pow-
er, p. 64; Citizens' Sav. & L. Asso. v.
Topeka, 20 Wall. 666, 662, 663, 22 L.
ed. 455, 461 ; Story, Const. § 1508 ; Duer,
Lectures on Const. Jur. of U. S. 2d ed.
p. 228; Cooley, Const. Law, p. 117; Von
Hoist, Const. Law of U. S. p. 202; 1
Thayer, Cases on Const. Law, p. 373;
Coeke, Const. History of U. S. p. 236;
Jefferson, Manual of Parliamentary Prac-
tice, p. 110, note 3; 3 Elliot, Debates,
pp. 604, 607; Cherokee Tobacco, 11 Wall.
616, 20 L. ed. 227; Siemssen v. Bofer, 6
Cal. 260; People ex rel. Atty. Gen. v.
Naglee, 1 Cal. 246, 62 Am. Dec. 312; 8
Ops. Atty. Gen. 411, 416; Kansas v.
Colorado, 206 U. Sk 46, 80, 51 L. ed.
956. 962, 27 Sup. Ct. Rep. 655; Murphy
V. Ramsey, 114 U. S. 15, 44, 29 L. ed. 47,
67, 6 Sup. Ct. Rep. 747; Head Money
Cases (Edye v. Robertson) 112 U. S.
680, 28 L. ed. 798, 5 Sup. Ct. Rep. 247 ;
Jones V. Meehan, 175 U. S. 1, 32, 44 L.
ed. 49, 61, 20 Sup. Ct. Rep. 1; Fong Yue
Ting V. United States, 149 U. S. 698, 37
[ L. ed. 905, 13 Sup. Ct. Bep. 1016; 2
Butler, Treaty Making Power, pp. 350,
643
SUPREME COURT OF THE UNITED STATES.
Oct. Teem
352; Seneca Nation v. Christie, 126 N.
Y. 122, 27 X. E. 275; Ft. Leavenworth
R. Co. T. Lowe, 114 U. S. 525, 29 L. ed.
264, 5 Sup. Ct. Rep. 996; Pierce v. State,
13 N. H. 576; Cooley, Const, Lim. 7th
ed. p. 11; Martin v. Hunter, 1 YTheat.
304, 326, 4 L. ed. 97, 102; Church of
Jesus Christ of L. D. S. v. United States,
136 U. S. 1, 34 L. ed. 478, 10 Sup. Ct.
Rep. 792.
The Federal government is a govern-
ment not only of enumerated powers,
but it is also a government to which cer-
tain powers are denied. Powers denied
are not to be implied; they are to be ob-
tained, if obtained at all, from, and in
the manner provided by, those who orig-
inally granted the enumerated powers,
but who, at the same time^ denied other
powers, — the people.
Barron v. Baltimore, 7 Pet. 243, 247, 8
L. ed. 672, 674; Kansas v. Colorado, 206
U. S. 46, 89, 90, 51 L. ed. 956, 971, 972,
27 Sup. Ct. Rep. 655; United States v.
Shauver, 214 Fed. 156; Holden v. Joy,
17 WaU. 243, 21 L. ed. 534; United
States V. Rhodes, 1 Abb. (U. S.) 43, Fed.
Cas. No. 16,151; Fairbank v. United
States. 181 U. S. 283, 288, 45 L. ed. 862,
865, 21 Sup. Ct. Rep. 648, 15 Am. Crim.
Rep. 135.
Among those powers denied to the
Federal government until secured by
amendment are those which are reserved
to the states respectively or to the peo-.
pie. These reserved powers include those
over purely internal affairs which con-
cern the lives, liberties, and properties of
the people, and the internal order, im-
provement, and prosperity of the ^tate.
Without exception wild game has been
held to be a part of this mass which is
within the exclusive and absolute power
of the state. When the power of the states
over their purely internal affairs is de-
stroyed, the system of government de-
vised bv the Constitution is de^troved.
Downes v. BidweU, 182 U. S. 244,' 312,
313. 369, 370, 45 L. ed. 1088, 1116, 1117,
21 Sup. Ct. Rep. 770; Pierce v. State, 13
N. H. 576; Hammer v. Dagenhart, 247
U. S. 251, 62 L. ed. 1101, 3 A.L.R. 649,
38 Sup. Ct. Rep. 529, Ann. Cas. 1918E,
724; South Carolina v. United States,
199 U. S. 447, 451, 50 L. ed. 264, 265, 26
Sup. Ct. Rep. 110, 4 Ann. Cas. 737; Col-
lector V. Dav (Buffington v. Dav) 11
Wall. 125, 12*7, 20 L. ed. 122, 126; Tuck-
er, Limitations on Treatv-making Pow-
er, 92, 93, 129, 130; Geofrov v. Riggs,
133 U. S. 258, 267. 33 L. ed. 642, 645,
10 Sup. Ct. Rep. 295; George v. Pierce,
85 Misc. 105, 148 X. Y. Supp. 237; 2
Tucker. Const, pp. 726, 727; Fecier.-ilist,
014
p. 145; People ex reL Atty. Gen. v.
Gerke, 5 Cal. 383.
Those who maintain that the re-
served powers of the states are subject
to treaties, and may be taken from the
states respectively, or the people, by
means of a convention with some for-
eign power, rest their position upon the
assertion that a treaty is the supreme
law of the land. If a treatv be the sa-
preme law of the land, it has become so
by construction, 'for the Constitution, as
ratified by the people, made the supreme
law of the land to consist of three
things: Ist, the Constitution; 2d, the
laws of the United States which shall be
made in pursuance thereof; 3d, all
treaties made or which shall be made
under the authority of the United
States. The Constitution is the godhead
of this trinity. It yields to neither law
nor treaty, nor anything else save and
alone the sovereign will of its creator, —
the people. The powers reserved to the
states respectively or to the people are,
under this Constitution, as sacrea as the
power to make treaties. Are they not
even more so, since they are the object
of specific reservation, and necessarily
limit or restrict the general g^nt of
power made to the treaty-making depart-
ment of the government t
Hamilton's Works, voL 4, p. 342;
Cooley, The Forum, June, 1893, p. 397 ;
Von Hoist, Const. Law of U. S. p. 202;
Duer, Lectures on Const. Jur. of U. S.
2d ed. p. 228: Tucker, Limitations on
Treatv-making Power, pp. 21, 22, 86, 87,
93, 94, 128, 129, 135, 136, 139; People ex
rel. Atty. Gen. v. Naglee, 1 Cal. 247, 52
Am. Dec. 312; Cocke, Const. Historj' of
U. S. p. 235; 5 Moore, Int. Law Dig. p.
168; Compagnie Francaise de Naviga-
tion a Vapeur v. State Bd. of Health, 51
La. Ann. 646, 56 L.R.A. 795, 72 Am. St.
Rep. -458, 25 So. 591, 186 U. S. 380. 46
L. ed. 1209, 22 Sup. Ct. Rep. 811. 1
Butler, Treaty Making Power, p. t>3, §
37, and note: Benjamin Harrison. North
American Review, Jan. 1901, p. 110;
Story, Const. 5th ed. pp. 217, 220: 2
Thorpe, Const. History, chap. 6, p. 199:
Citizens' Sav. & L. Asso. v. Topeka, 20
Wall. 655, 662, 663, 22 L. ed. 455, 461 ;
Jefferson, Manual of Parliamentary Prac-
tice, p. 110, note 3; 4 Elliot, Debates, p.
464; Geofrov v. Riggs, 133 U. S. 266, 267,
33 L. ed. 644, 645, 10 Sup. Ct. Rep. 2%.
Mr. Richard J. Hopkins, Attorney
General of Kansas, and Mr. Samuel W.
Moore, filed a brief as amici curls in be-
half of the state of Kansas:
Everv state possesses the abaoluN-
252 U. S.
1919.
MISSOIRI V. HOLLAND.
right to deal as it may see fit with prop-
erty held by it, either as proprietor, or
is its sovereign capacity as a represent-
ative of the people; and this right is
paramount to the exercise by the nation-
al government of its legislative or
treatv-making power.
State V. Heger, 194 Mo.- 707, 93 S. W.
252; State v. McCullagh, 96 Kan. 786,
— A.L.R. — , 153 Pac. 557; Geer v. Con-
necticut, 161 U. S. 519, 40 L. ed. 793, 16
Sup. Ct. Rep. 600; New York ex rel.
Silz V. Hesterberg, 211 U. S. 31, 53 L.
ed. 7&, 29 Sup. Ct. Rep. 10; Manchester
V. Massachusetts, 139 U. S. 240, 35 L.
ed. 159, 11 Sup. Ct. Rep. 559; The Abby
. Dodge, 223 U. S. 166, 174, 66 L. ed. 390,
392, 32 Sup. Ct. Rep. 310 ; Geer v. Con-
necticut, 161 U. S. 519, 522, 528, 40 L.
ed. 793, 794, 796, 16 Sup. Ct. Rep. 600;
Ward T. Race Horse, 163 U. 8. 604, 41
L. ed. 244, 16 Sup. Ct. Rep; 1076; Pat-
sone V. Pennsylvania, 232 U. S. 138, 58
L. ed. 539, 34 Sup. Ct. Rep. 281; United
States v. McCullagh, 221 Fed. 288;
United States v. Shauver, 214 Fed. 154;
New York ex rel. Kennedy v. Becker,
241 U. 8. 566, 60 L. ed. 1166, 36 Sup.
Ct. Rep. 705; State v. Rodman, 68 Minn.
393, 59 N. W. 1098 ; Smith v. Maryland,
18 How. 71, 76, 15 L. ed. 269, 271; Law-
ton V. Steele, 152 U. S. 133, 38 L. ed.
385, 14 Sup. Ct. Rep. 499; Carey v.
South Dakota, 250 U. S. 118, 63 L. ed.
886, 39 Sup. Ct. Rep. 403.
The constitutional limitation prohib-
iting a state, without the consent of
Congress, from entering into any agree-
ment or compact with any state or with
a foreign power, prohibits the formation
of any combination tending to the in-
crease of political power in the states
which may encroach upon or interfere
with the just supremacy of the United
States. It has no application to agree-
ments or compacts which a state may
. make in the control and regulation of its
oven property or property rights.
Steams v. Minnesota, 179 U. S. 223,
45 L. ed. 162, 21 Sup. Ct. Rep. 73;
Wharton v. Wise, 153 U. S. 155, 38 L.
ed. 669, 14 Sup. Ct. Rep. 783; Virginia
V. Tennessee, 148 U. S. 504, 37 L. ed.
538, 13 Sup. Ct. Rep. 728.
The treaty-making power conferred
]il>on the President and Senate does not
include the right to regulate and control
the property and property rights of an
individual state, held by it in its qnasi-
sovereign capacity.
Story, Const. § 1403; Steams v. Minn-
esota, 179 U. S. 223, 45 L. ed. 162, 21
Sup. Ct. Rep. 73; Wharton v. Wise, 153
TT. S. 155, 38 L. ed. 669. 14 Sup. Ct. Rep.
• •I T^. ed.
783; Virginia v. Tennessee, 148 U. S.
503, 37 L. ed. 637, 13 Sup. Ct. Rep. 728 ;
Holmes v. Jennison, 14 Pet. 540, 10 l».
ed. 579; 38 Cyo. 966.
The lack of legislative power in Con-
gress to devest a state of its property
right and control over the wild game
within its borders cannot be supplied by
making a treaty with Great Britain.
Rawle, Const, p. 66; Chinese Exclusion
Case, 130 U. S. 581, 32 L. ed. 1068, 9
Sup. Ct. Rep. 623; United States v.
Rauscher, 119 U. 8. 407, 30 L. ed. 425, 7
Sup. Ct. Rep. 234, 6 Am. Crim. Rep.
222; Head Money Cases (Edve v.
Robertson) 112 U. S. 680, 28 L. ed. 798,
5 Sup. Ct. Rep. 247; Homer v. United
States, 143 U. 8. 670, 36 L. ed. 266, 12
Sup. Ct. Rep. 622; United States v. Lee
Yen Tai, 186 U. 8. 213, 220, 46 L. ed.
878, 882, 22 Sup. Ct. Rep. 629.
The treaty-makin|^ power of the na-
tional government is limited by other
provisions of the Constitution, including
the 10th Amendment. It cannot, there-
fore, devest a state of its police power,
or take away its ownership or control of
its wild game.
2 Whart. Ini Law Dig. 1 131a;
Monongahela Nav. Co. v. United States,
148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct.
Rep. 622; Prout v. Starr, 188 U. S. 537,
47 L. ed. 684, 23 Snp. Ct. Rep. 398;
Geofroy v. Riggs, 133 U. S. 258, 33 L.
ed. 642, 10 Sup. Ct. Rep. 295; Geer v.
Connecticut, 161 U. S. 519, 40 L. ed. 793,
16 Sup. Ct. Rep. 600; Collector v. Day
(BuflSngton v. Day) 11 WaD. 113, 20 L.
ed. 122: Kansas v. Colorado, 206 U. S.
46, 51 L. ed. 956, 27 Sup. Ct. Rep. 655;
Hammer v. Dagenhart, 247 U. S. 251,
62 L. ed. 1101, 3 AXJl. 649, 38 Sup. Ct.
Rep. 529, Ann. Cas. 1918E, 724; Pierce
V. State, 13 N. H. 576; Ward v. Race
Horse, 163 U. S. 504, 41 L. ed. 244, 16
Sup. Ct. Rep. 1076; Coyle v. Smith, 221
U. S. 559, 56 L. ed. 853, 31 Sup. Ct. Rep.
688; Patsone v. Pennsylvania, 232 U. S.
138, 58 L. ed. 539, 34 Sup. Ct. Rep. 281 ;
Heim v. McCall, 239 U. S. 175, 60 L. ed.
206, 36 Sup. Ct. Rep. 78, Ann. Cas.
1917B, 287; Truax v. Raich, 239 U. S.
33, 60 L. ed. 131, L.R.A.1916D, 545, 36
Sup. Ct. Rep. 7, Ann. Cas. 1917B, 283;
Cantini v. Tillman, 54 Fed. 969; Leong
Mow v. Commissioners for Protection of
Birds, Game & Fish, 185 Fed. 223; Re
Wong Yung Quy, 6 Sawy. 442, 2 Fed.
624; Compagnie Prancaise de Naviga-
tion a Vapeur v. State Bd. of Health, 51
La. Ann. 645, 56 L.R.A. 795, 72 Am. St.
Rep. 458, 25 So. 591, affirmed in 186 U.
S. 380, 46 L. ed. 1209, 22 Suj). Ct. Rep.
811; New York ex rel. Kenne^lv v.
C45
430. 431
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Becker, 241 U. S. 656, 60 L. ed. 1166,
36 Sup. Ct. Rep. 705; George v. Pierce,
85 Misc. 105, 148 N. Y. Supp. 230 ; Bohdi
v' MacKay, 87 Vt. 271, 89 AtL 228, Ann,
Cas. 1916C, 130 ; Downes v. Bidwell, 182
U. S. 318, 45 L. ed. 1118, 21 Sup. Ct.
Rep. 796; Passenger Cases, 7 How. 283,
12 L. ed. 702; Holmes v. Jennison, 14
Pet. 616, 10 L. ed. 619; Tucker, Limita-
tions on Treaty-making, j). 339; House
V. Mayes, 219 U. S. 270, 55 L. ed. 213,
31 Sup. Ct. Rep. 234.
The treaty in this case does not, by its
terms, purport to create a closed season
between December 31st and Mi^rch 10th.
Its executory agreement to pass future
legislation covering this period is not the
supreme law of the land, and cannot
have the effect of giving validity to an
unconstitutional act.
Whitney v. Robertson, 124 U. S. 190,
194, 31 L. ed. 386, 388, 8 Sup. Ct. Rep.
456; Turner v. Ameri<jan Baptist Mis-
sionary Union, 5 McLean, 347, Fed. Cas.
No. 14,251.
Solicitor Oeneral King and Assistant
Attorney General Frierson argued the
cause and filed a brief .for appellee :
The Constitution expressly gprants to
Congress the power to enact such laws
as may be necessary to give effect to
treaties.
United States v. ^Thompson, 258 Fed.
257; United States v. Rockefeller, 260
Fed. 346; Baldwin v. Franks, 120 U. S.
678, 30 L. ed. 766, 7 Sup. Ct. Rep. 666,
763 ; United States v. Jin Fuey Moy, 241
U. S. 394, 60 L. ed. 1061, 36 Sup. Ct.
Rep. 658, Ann. Cas. 1917D, 854; Chinese
Exclusion Case, 130 U. S. 581, 600, 32
L. ed. 1068, 1073j 9 Sup. Ct. Rep. 623;
Foster v. NeUson, 2 Pet. 253, 314, 7 L.
ed. 415, 4S5; United States v. 43 Gallons
of Whiskey (United States v. Lariviere)
, 93 U. S. 188, 196, 23 L. ed. 846, 847.
The power of the state over game is
limited by such powers as have been con-
ferred upon the Federal government.
Geer v. Connecticut, 161 U. S. 519,
528, 40 L. ed. 793, 796, 16 Sup. Ct. Rep.
600.
The power of Congress to legislate to
make treaties effective is not limited to
the subjects with respect to which it is
empowered to legislate in purely domes-
tic affairs.
Cohen v. Virginia, 6 Wheat. 264, 413,
5 L. ed. 257, 293 ; Legal Tender Cases, 12
Wall. 457, 555, 20 L. ed. 287, 313;
Chinese Exclusion Case, 130 U. S. 581,
604, 32 L. ed. 1068, 1075, 9 Sup. Ct. Rep.
623; Hauensteii^ v. Lynbam, 100 U. S.
483, 490, 25 L. ed. 628, 630; Re Ross
(Ross v. Mclntvre) 140 U. S. 453, 463,
35 L ed. 581, 585, 11 Sup. Ct. Rep. 897.
The power of the Federal government
to make and enforce treaties is not a
limitation on the reserved powers of the
states, but is the exercise of a power not
reserved to the states under the 10t4i
Amendment, being both expressly grant-
ed to the United States and prohibited
to the states.
United States v. ' Thompson, 258 Fed.
264; Wildenhus's Case (Mali v. Keeper
of Common Jail) 120 U. S, 1, 17, 30 L.
ed. 565, 568, 7 Sup. Ct. Rep. 383; Ware
v. Hylton, 3 Dall. 199, 1 L. ed. 568;
Chirac v. Chirac, 2 Wheat. 259, 276, 4f
L. ed. 234, 238 ; Geof roy v. Riggs, 133 U.
S. 258, 266, 33 L. ed. 642, 644, 10 Sup.
Ct. Rep. 295 ; Hopkirk v. Bell, 3 Cranch,
454, 2 L. ed. 497; United States v. 43
Gallons of Whiskey (United States v.
Lariviere) 93 U. S. 188, 23 L. ed. 846;
United States v. Winans, 198 U. S. 371,
49 L. ed. 1089, 25 Sup. Ct. Rep. 662.
The treaty-making power of the Unit-
ed States embraces all such power as
would have belonged to the several
states if the Constitution had not been
adopted; in the exercise of that power
the Federal government is the accredit-
ed agent of both the people of the Unit-
ed States and of the states themselves.
Baldwin v. Franks, 120 U. S. 678, 682,
683, 30 L. ed. 766-768, 7 Sup. Ct. Rep.
656, 763.
The treaty-making power applies to
all matters which may properly be the
subject of negotiations between the two
governments.
4 Elliot, Debates, p. 464; Story, Const.
5th ed. § 1508; Ware v. Hylton, 3 DalL
199, 235, 1 L. ed. 568, 583; Geof roy v.
Riggs, 133 U. S. 258, 266, 33 L. ed. 642,
644, 10 Sup. Ct Rep. 295; Re Ross
(Ross V. Mclntyre) 140 U. S. 453, 463,
35 L: ed. 581, 585, 11 Sup. Ct. Rep. 897.
The protection of migratory game is a
proper subject of negotiations and
treaties between the governments of the
countries interested in such game.
United States v. Rockefeller, 260 Fed.
347.
Mr. Louis Marshall filed a brief for
the Association for the Protection of the
Adirondacks, as amicus curiae.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a bill in equity, brought by the
state of Missouri to prevent a game
warden of the United States from at-
tempting to enforce the Migratory Bird
Treaty Act of [431] Julv 3, 1918, chap.
258 U. S.
11>19.
MISSOUUI V. HOLLAND.
431-433
128, 40 Stat, at L. 755, Comp. Stat. §
8837a, Fed. Stat. Anno. Supp. 1918, p.
196, itnd the regulations made by the
Secretary of Agriculture in pursuance of
the same. The ground of the bill is that
the statute is an unconstitutional inter*
ference with the rights reserved to the
states by the 10th Amendment, and that
the acts of the defendant, d6ne and
threatened under that authority, invade
the sovereign right of the state and con-
travene its will manifested in statutes.
The state also alleges a pectiniary inter-
est, as owner of the wild birds within its
borders and otherwise, admitted by the
government to be sufficient, but it is
enough that the bill is a reasonable and
proper means to assert the alleged quasi-
sovereign rights of a state. Kansas t.
Colorado, 185 U. S. 125, 142, 46 L. ed.
838, 844, 22 Sup. Ct. Rep. 552; Georgia v.
Tennessee Copper Co. 206 U. S. 230, 237,
51 L. ed. 1038, 1044, 27 Sup. Ct Rep.
618, 11 Ann. Cas. 488; Marshall Dental
Mfg. Co. v. Iowa, 226 U. S. 460, 462, 57 L.
ed. 300, 302, 33 Sup. Ct. Rep. 168. A
motion to dismiss was sustained by the
district court on the ground that the act
of Congress is constitutional. 258 Fed.
479. United States v. Thompson, 258
Fed. 257; United States v. Rockefeller,
260 Fed. 346. The state appeals.
On December 8, 1916, a treaty between
the United States and Great Britain was
proclaimed by the President. It recited
that many species of birds in their annual
migrations traversed many parts of the
United States and of Canada, that they
were of great value as a sotirce of food
and in destroying insects injurious to
vegetation, but were in danger of exter-
mination through lack of adequate pro-
tection. It therefore provided for
specified close seasons sAid protection in
other forms, and agreed that the two
powers would take op propose to thw
lawmaking bodies the necessary measures
for carrying the treaty out. 39 Stat, at
L, 1702. The above-mentioned Act of
July 3, 1918, entitled, "An Act to Give
Effect to the Convention," prohibited the
killing, capturing, or selling any of the
migratory birds included in the terms of
the treaty except as permitted by regu-
lations compatible ^ith those terms, to
be made by [432] the Secretary of
Agriculture. Regulations were pro-
claimed on July 31, and October 25,
1918. 40 Stat, at L. 1812, 1863, It is
unnecessary to go into any details, be-
cause, as we have said, the question
raised is the general one whether the
treaty and statute are void as an inter-
64 L. ed.
ference with the rights reserved to the
states.
To answer this question it is not
enough to refer to the 10th Amendment,
reserving the powers not delegated to the
United States, because by article 2, § 2,
the power to make treaties is delegated
expressly, and by article 6, treaties made
under the authority of the United States,
along with the Constitution and laws of
the United States, made in pursuance
thereof, are declared the supreme law of
the land. If the treaty is valid, there
can be no dispute .about the validity of
the statute under article 1, § 8, as a nec-
essary and proper means to execute the
powers of the government. The lan-
guage of the Constitution as to the su-
premacy of treaties being general, the
question before lis is narrowed to an
inquiry into the ground upon which the
present supposed exception is placed. ^
It is said that a treaty cannot be valid 7^
if it infringes the Constitution ; that there
are limits, therefore, to the treaty-mak-
ing power; and that one such limit is
that what an act of Congress could not
do unaided, in derogation of the powers
reserved to the states, a treaty cannot
do; An earlier act of Congress that at-
tempted by itself, and not in pursuance
of a treaty, to regulate the killing of
migratory birds within the states, had
been held bad in the district court.
United States v. Shauver, 214 Fed. 154;
United States v. McCullagh, 221 Fed.
288. Those decisions were supported by ^
arguments that migratory birds were'
owned by the states in their sovereign
capacity, for the benefit of their people,
and that under cases like Gker v. Connect-
icut, 161 U. S. 519, 40 L. ed. 793, 16
Snp. Ct Rep. 600, this control was one
that Congress had no power to displace.
The same argument is supposed to apply
now with equal force.
[433] Whether the two cases cited
were decided rightly or not, they cannot
. be accepted as a test of the treaty power.
Acts of Congress are the supreme law
of the land only when made in pursuance
of the Constitution, while treaties are
declared to be so when made under the
authority of the United States. It is
open to question whether the authority
of the United States means more than
the formal acts prescribed to make the
convention. We do not mean to imply
that there are no qualifications to the
treaty-making power; but they must be
ascertained in a different way. It is ob-
vious that there may be matters of the
sharpest exigency for the national well-
647
Wy-435
SUFKKMK COUKT OF TUK IMTED STATES.
Oct. Tebm,
being that an act of Congi*es3 could not
deal with, but^ that a treaty followed by
8uch au act could, and it is not lightly
to be assumed that, in mattei*s requiring
national action^ **a power which must
belong to and somewhere reside in every
civilized government" is not to be found.
Andrews v. Andrews, 188 U. S. 14, 33,
47 L. ed. 366, 370, 23 Sup. Ct. Rep. 237.
Wliat was said in that case with regard
to the powers of the states applies with
equal force to the powers of the nation
in cases where the states individually are
incompetent to act. We are not yet dis-
cussing the particular case before us, but
only are considering the validity of the
test proposed. WiQi regard to that, we
may add that when we are dealing with
words that also are a constituent act, like
the Constitution of thef United States^ we
must realize that they have called into
life a being the development of which
could not have been foreseen completely
by the most gifted of its begetters. It
was enough for them to realize or to hope
that they had created an organism; it
has taken a century and has cost their
successors much sweat and blood to prove
that they created a nation. The case
before us must be considered in the light
of our whole experience, and not merely
in that of what was said a hundred years
ago. The treaty in question does not
(^ntravene any prohibitory words to be
.^\^nd in the Constitution. The only ques-
tion is whether [434] it is forbidden by
' s<Hne invisible radiation from the general
terms of the 10th Amendment. We must
consider what this country has become in
deciding what that amendment has re-
sened.
The stat«, as we have intimated, founds
its claim of exclusive authority upon an
assertion of title to migratory birds, —
an assertion that is embodied in statute.
Xo doubt it is true that, as between a
state and its inhabitants, the state may
regulate the killing and sale of such
)>irds, but it does not follow tiiat its au-
thority is exclusive of paramount powers.
To put the claim of the state upon title
is to lean upon a slender reed. Wild'
birds are not in the possession of anyone ;
aud possession is the beginning of owner-
sliip. The whole foundation of the
state's rights is the presence within their
jurisdiction of birds that yesterday had
not arrived, to-morrow may )>e in another
state, and in a week a thousand miles
away. If we are fo be accurate, we can-
not put the case of the state upon higher
ground than that the treaty deals with
creatures that for the moment are within
ass
I the state borders^ that it must be carried
' out by officers of the United States with-
in the same territory, and tliat, but for
the treaty, the state would be free to
regulate this subject itself.
As most of the laws of the United
States are carried out within the states,
and as many of {hem deal with matters
which, in the silence of such laws, the
state might regulate, such general
grounds are not enough to support Mis-
souri's claim. Valid treaties, of course,
''are as binding within the territorial
limits of the states as they are effjective
throughout the dominion of the United
States." Baldwin v. Franks, 120 U. S.
678, 683, 30 L. ed. 766, 767, 7 Sup. Ct.
Rep. 656, 763. No doubt the great body
of private relations usually falls within
the control of the state, but a treaty may
override its power. We do not have to
invoke the later developments of consti-
tutional law for this proposition; it was
recognized as early as Hopkirk v. Bell,
3 Cranch, 454, 2 L. ed. 497, with regard to
statutes [435] of limitation, and even
earlier, as to confiscation, in Ware v.
Hylton, 3 Dall. 199, 1 L. ed. 568. It was
assumed by Chief Justice Marshall with
regard to the escheat of land to the state
in Chirac v. Chirac, 2 Wheat. 259, 275, 4
L. ed. 234, 238; Hauenstein v. Lynham,
100 U. S. 483, 25 L. ed. 628; Geofrov
V. Riggs, 133 U. S. 258, 33 L. ed. 642, 10
Sup. Ct. Rep. 295; Blythe v. Hincklev,
180 U. S. 333, 340, 45 L. ed. 557, 561,
21 Sup. Ct. Rep. 390. So, as to a limited
jurisdiction of foreign consuls within a
state. Wildenhus's Case (Mali v. Keeper
of Common Jail) 120 U. S. 1, 30 L. ed.
565„ 7 Sup. Ct. Rep. 383. See Re Ross,
140 U. S. 453, 35 L. ed. 581, 11 Sup.
Ct. Rep. 897. Further illustration aeems
unnecessary, and it only remains to eos-
sider the application of established rules
to the present case.
Here a national interest of very nearljv
the first magnitude is involved. It can \
be protected only by national action in 1
concert with that of another power. The !
subject-matter is only transitorily with- /
in the state, and lias no permanent
habitat therein. But for the treaty and/-
the statute, there boon might be no bin^
for any powers to ^deal with. We se«--
nothing in the Constitution that compel*
the government to sit by while a food
supply is cut off and the protectors ot
our forests and of our ci'ops are de-*
stroyed. It is not sufficient to wly
upon the states. The reliance is vain*
and were it otherwise, the question is
whether the United States is forbidden
25i U. S.
li^l'.v
BLLMENMOCK BHl)S. AD. AGENCY v. CURTIS PUB. CO. 430, 4;5o
to act. We are of opinion that the treaty
and statute must be upheld. Gary v.
South Dakota. 250 U. S. 118, 63 L. ed.
886. 39 Sup. Ct. Rep. 403.
Decree affiimed.
Mr. Justice Van Devanter and Mr.
Justice Pitney dissent.
[4061 BLUMENSTOCK BROTHERS AIX-
. VERTISING AGENCY, Plff. in Err.,
V.
CURTIS PUBLISHING COMPANY.
(See S. C. Reporter's ed. 436-444.)
Plea4ins«— Jurisdictional averments.
1. In any case alleged to come within
the Federal juriBdiction, it is not enough
to allege that questions of a Federal char-
acter arise in the case, but it must plainly
appear that the averments attempting to
bring the case within such jiirisdiction are
real and substantial.
(For other cases, see Pleading, II. a. In Digest
Sup. Ct. 1908.]
Federal conrts — jurlsdlctton '^ anb-
otantlal Federal queatlon.
2. Jurisdiction over a subject-matter
limited by Federal law, for which recovery
can be had only in the Federal courts, at-
taches only when the suit presents a sub-
stantial claim under an act of Congress.
[For oth<»r cases, see Courts. V. c, 2, a, la
Digest Sup. Ct. 1908.]
Federal courts ^ jurisdiction — • snb-
sUuitial Federal question — monopoly
of interstate commerce — treble-dam-
age snit.
3. The merely incidental relation to
interstate commerce of transactions con-
cerning advertising in periodicals which are
to be circulated and distributed throughout
the United States will not support the Fed-
eral jurisdiction of a siut brought imder
the provisions of the Sherman Anti*trust
Act of July 2, 1890, § 7, creating a cause
Note. — On monopolies, generally — see
notes to Fowle v. rark, 33 L. ed. U. S.
67. and United States v. Trans-Missouri
Freight Asso. 41 L. ed. U. S. 1008.
As to illegal trusts under modem Anti-
trust Laws — see note to Whitwell v. Con-
tinental Tobacco Co. 64 L.R.A. 689.
As to actions for threefold damages
uDiier the Federal An ti- trust Acts — see
note to American Banana Co. v. United
Fruit Co. 53 L. ed. U. S. 826.
As to what relation a contract or com-
bination mu5it bear to interstate com-
merce in order to bring it within the
h«ope of the F^eral Anti-trust Act — ^see
notes to Loewe v. Lawler, 52 L. ed. U. S.
488, and Pocahontas Coke Co. v. Pow-
hatan Coal & Coke Co, 10 L.R.A.(N.S.)
268.
• 4 L. ed.
of action in favor of any person to recover
by suit in anv Federal district court in the
district in wnich the defendant resides or
ifl found . threefold damagee for injury to
his business or property by reason of any-
thing forbidden and declared unlawful in
the act, on the theory that defendant's con-
duct in respect to such matters is forbid-
den by that act as a monopoly of attempted
monopoly of interstate commerce.
[Por other cases, see Conrts, T. c, 2, a ; Monop-
oly, II. a, in Digest Sup. Ct. 1908.]
[No. 197.1
Submitted January 20, 1920. Decided April
19, 1920.
IN £RBOR to the District Conrt of the
United States for the Northern Dis-
trict of Illinois to review a judgment
dismissing, for want of jurisdiction, a
treble-damage suit bronght under tbe
Sherman Anti-trust Aet. Affirmed.
The facts are stated in the opinion.
Mr. Colin 0. H. Fyffe submitted the
cause for plaintiff in error. Messrs. Paul
N. Dale and David R. Clarke were on the
brief:
The question before this court is
whether the allegations of the declara-
tion, and the contention that they raise
real questions of the interpretation and
application of the Sherman Act, are
frivolous.
Louisville & N. R. Co. v. Rice, 247 U.
S. 201, 203, 62 L. ed. 1071, 1072, 38 Sup.
Ct. Rep. 429; The Fair v. Kohler Die
& Specialty Co. 228 U. S. 32, 25, 57 L.
ed. 716, 717, 33 Sup. Ct. Rep. 410 ; Pub-
lic Service Co. v. Corboy, 250 U. S. 153,
63 L. ed. 905, 39 Sup. Ct. Rep. 440 ; Bos-
ton Store y. American Graphophone Co.
246 U. S. 8, 62 L. ed. 651, 38 Sup. Ct.
Rep. 257, Ann. Cas. 1918C| 447; Odell
V. F. C. Famsworth Co. 250 U. S. 601,
63 L. ed. nil, 39 Sup. Ct. Rep. 516 T
Pratt v. Paris Gaslight & Coke Co. 168
U. S. 255, 259, 42 L. ed. 458, 460, 18
Sup. Ct. Rep. 62; Sutton v. English, 246
U. S. 199, 62 L. ed. 664, 38 Sup. Ct. Rep.
254; Berkman v. United States, 250 U. ,
S. 114, 63 L. ed. 877, 39 Sup. Ct. Rep.
411.
The allegations of the declaration
herein raise a substantial question as to
whether the defendant was engaged in
interstate commerce.
Gibbons v. Ogden, 9 Wheat. 1, 189,
6 L. ed. 23. 68; Brown v. Maryland, 12
Wheat. 419, 6 L. ed. 678; Passenger
Cases, 7 How. 283,- 12 L. ed. 702 ; Pen-
sacola Teleg. Co. v. Western U. Teleg.
Co. 96 U. S. 1, 24 L. ed. 708; Wabash,
St. L. & P. R. Co. V. Illinois, 118 U. S.
I 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31,
«49
SUPREME COUKT OF THE UNITED STATES.
Oct. Tebm,
7 Sup. Ct* Rep. 4; International Text-
book Co. V. Pigg, 217 U. S. 91, 54 L. ed.
678, 27 L.R.A.(N.S.) 493, 30 Sup. Ct.
Rep. 481, 18 Ann. Cas. 1103; McCall v.
California, 136 U. S. 104, 34 L. ed. 391,
3 Inters. Com. Rep. 181, 10 Sup. Ct. Rep.
881; Preston v. Finley, 72 Fed. 859;
State V. J. P. Bass Pub. Co. 104 Me.
288, 20 I:R.A.(N.S.) 495, 71 Atl. 896;
United States y. Associated Bill Posters,
235 Fed. 640; Pueblo v. Lukins, — Colo.
— , L.R.A.1917E, 699, 164 Pac. 1165;
Circular Adv. Co. v. American Mercan-
tile Co. 66 Fla. 96, 63 So. 3; Marienelli
V. United Booking Offices, 227 Fed. 168.
The allegations in the declaration
herein raise a substantial question as to
whether the defendant in error at-
tempted a monopoly of the branch of in-
terstate commerce in which it was en-
firasred.
Standard Oil Co. v. United States, 221
U. S. 1, 55 L. ed. 619, 34 L.R.A.(N.S.)
834, 31 Sup. Ct. Rep. 502, Ann, Cas.
1912D, 734; United States v. Quaker
Oats Co. 232 Fed. 500 ; Buckeye Powder
Co. V. E. I. DupQut de Nemours Powder
Co. 139 C. C. A. 319, 223 Fed. 881, af-
firmed in 248 U. S. 65, 63 L. ed. 123,
39 Sup. Ct. Rep. 38; Swift & Co. v.
United States, 196 U. S. 375, 396, 49 L.
ed. 518, 524, 25 Sup. Ct. Rep. 276;
United States v. United States Steel
Corp. 223 Fed. 162.
Mr. Amos 0. Miller submitted the
cause for defendant in error. Messrs.
Sidney S. Gorham, Henry W. Wales,
and Gilbert Noxon were on the brief:
The district court had no jurisdiction
to entertain this suit unless the declara-
tion of plaintiff in error states a cause
of action under the Sherman Act.
Dueber Watch-Case Mfg. Co. v. E.
Howard Watch & Clock Co. 14 C. C. A.
14, 35 U. S. App. 16, 66 Fed. 641; Ten-
nessee V. Union & Planters' Bank, 152
U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep.
654; Metcalf v. Watertown, 128 U. S.
586, 32 L. ed 643, 9 Sup. Ct. Rep. 173 ;
Newburyport Water Co. v. Newbury-
' port, 193 U. S. 562, 576, 48 L. ed. 795,
799, 24 Sup. Ct. Rep. 553; Defiance
Water Co. v. Defiance, 191 U. S. 184, 191,
48 L. ed. 140, 143, 24 Sup. Ct. Rep. 63;
Underground R. Co. v. New York, 193
U. S. 417, 48 L. ed. 733, 24 Sup. Ct.
Rep. 494; Arbuckle v. Blackburn, 191 U.
S. 406, 48- L. ed. 239, 24 Sup. Ct. Rep.
148; Norton v. Whiteside, 239 U. S. 144,
60 L. ed. 186, 36 Sup.Ct. Rep. 97; Dela-
ware, L. & W. R. Co. V. Yurkonis, 238
U. S. 439, 59 L. ed. 1397, 35 Sup. Ct.
Rep. 902; The Jefferson, 215 U. S. 130,
650
54 L. ed. 125, 30 Sup. Ct. Rep. 54, 17
Ann. Cas. 907 ; The Ira M. Hedges (Le-
high Valley R. Co. v. Cornell S. B. Co.)
218 U. S. 269, 54 L. ed. 1030, 31 Sup.
Ct. Rep. 17, 20 Ann. Cas. 1235; Fred-
eric L. Grant Shoe Co. v. W. M. Laird
Co. 212 U. S. 445, 53 L. ed. 591, 29 Sup.
Ct. Rep. 332; Healy v. Sea Gull Specialty
Co. 237 U. S. 479, 59 L. ed. 1056, 35
Sup. Ct. Rep. 658; Briggs v. United Shoe
Machinery Co. 239 U. S. 49, 60 L. ed.
138, 36 Sup. Ct. Rep. 6; Globe News-
paper Co. V; Walker, 210 U. S. 356, 62
L. ed. 1096, 28 Sup. Ct. Rep. 726.
' In no count of plaintifPs declaration is
a cause of action stated witihin the pro-
visions of that act.
(A) The transactions complained of in
the declaration do not constitute inter-
state commerce.
Hooper v. California, 155 U. S. 648,
39 L. ed. 297, 5 Inters. Com. Rep. 610,
15 Sup. Ct. Rep. 207; Paul v. Virginia,
8 WaU. 168, 19 L. ed. 357; Williams v.
Fears, 179 U. S. 270, 45 L. ed. 186, 21
Sup. Ct. Rep. 128; United States FideH-
ty & G. Co. V. Kentucky, 231 U. S. 394,
58 L. ed. 283, 34 Sup. Ct Rep. 122; Hop-
kins V. United States, 171 U. S. 579, 43
L. ed. 290, 19 Sup. Ct. Rep. 40 ; Ficklen
V. Taxing Dist. 145 U. S. 1, 36 L. ed.
601, 4 Inters. Com. Rep. 79, 12 Sup. Ct.
Rep. 810; United States v. E. C. Knight
Co. 156 U. S. 1, 39 L. ed. 325, 15 Sup.
Ct. Rep. 249; State v. Morgan, 2 S. D.
32, 48 N. W. 314.
(B) Apart from the question of in-
terstate commerce, no cause of action
under the Sherman Act is stated in the
declaration.
Rice V. Standard Oil Co. 134 Fed. 464 ;
CiUey v. United Shoe Mach. Co. 152 Fed.
726; Buckeye Powder Co. v. E. I. Du
Pont De Nemours Powder Co. 196 Fed.
514; Otis Elevator Co. v. Geiger, 107
Fed. 131; McLatchy v. King, 250 Fed.
920; Corey v. Boston Ice Co, 207 Fed.
465; Kash v. United States, 229 U. S.
373, 57 L. ed. 1232, 33 Sup. Ct. Rep. 780 ;
Anderson v. United States, 171 U. S. 604,
43 L. ed. 300, 19 Sup. Ct. Rep. 50 ; Union
Pacific Coal Co. v. United States, 97 C.
C. A. 578, 173 Fed. 737; Patterson v.
United States, 138 C. C. A. 123, 222 Fed.
599; United States v. Whiting, 212 Fed.
466; United States v. Trans-Missouri
Freight Asso. 166 U. S. 320, 41 L. ed.
1020, 17 Sup. Ct. Rep. 540; Northern
Securities Co. v. United States, 193 U. S.
361, 48 L. ed. 710, 24 Sup. Ct. Rep. 436;
Eastern States Retail Lumher Dealers'
Asso. V. United States, 234 U. S. 614, 58
L. ed. 1500, L.R.A.1915A, 788, 34 Sup. Ct.
Rep. 951 ; United States v. Colgate & Co.
252 V. S.
1919.
BLUMENSTOCK BROS. AD. AGKXCV v. CURTIS PUB. CO.
437-439
250 U. S. 300, 63 L. ed. 992, 7 A.L.R.
443, 39 Sup. Ct. Rep. 465; Great Atlan-
tic & Pacific Tea Co. v. Cream of Wheat
Co. 141 C. C. A. 594, 227 Fed. 49.
[437] Mr. Justice Day delivered the
opinion of the court;
This suit was brought by the Blumen-
stock Brothers 'Advertiaing Agency
against the Curtis Publishing Company,
in the district court of the United States
for the northern district of Illinois, to
recover treble damages under § 7 of the
Sherman Anti-trust Act, July 2, 1890,
26 Stat, at L. 209, chap. 647, Comp.
Stat. §§ 8820, 8829, 9 Fed. Stat. Anno.
2d ed. pp. 644, 713. The case here con-
cerns the question of the jurisdiction of
the district court. Judicial Code, § 238
[36 Stat, at L. 1157, chap. 231, Comp.
Stat § 1215, 5 Fed. Stat. Anno. 2d ed.
p. 794]. The plaintifE is a corporatimi
of the state of Missouri, the defendant
a corporation of the state of Pennsylvar
nia. The defendant appeared specially
in the district court and moved to dismiss
the complaint for want of jurisdiction,
the grounds stated being:
1. ''That in each of the oounts of
plaintifPs original declaration, and in the
additional count thereof, it appears that
the plain ti£ is a citizen and resident of
the state of Missouri, and that this de-
fendant is a citizen and resident of the
state of Pennsylvania."
2. "That in none of said counts is a
oauBe of action stated by plaintiff with-
in the provisions of the act of Congress
approved July 2, 1890, entitled, 'An Act
to Protect Trade and Commerce against
Unlawful Restraints and MonopoUes.'"
The court entered judgment dismissing
the suit for want of jurisdiction over the
defendant or the* action.
The record contains a certificate stat-
ing that the court found that it had no
jurisdiction of the defendant and no
jurisdiction to entertain the action. Th6
certificate further states that the ques*
tion involved is whether the transaction
set forth in the several counts of the
declaration involves a question of inter-
state commerce, and whether the aver-
ments in said several counts of the dec-
laration state a cause of action within
the provisions of the Act of July 2, 1890.
The declaration is voluminous, contain-
ing five counts [438] and an additional
count. So far as it is necessary for our
purpose, the cause of action of the plain-
tiff may be said to rest upon the allegiu
tions: That the plaintiff is engaged at
Chicago in conducting an advertising
64 Ti. e«t.
agency. That when customers or prin-
cipals desire to place advertisements in
the magazines and periodicals of the
trade they make plaintiff their agent, and
plaintiff contracts with the defendant
and other publishers and distributers of
magazines; that plaintiff had many cus-
tomers with whom it placed advertise-
ments in the periodicals published and
distributed by the defendant and in
other periodicals of oth^r publishers, all
of which were distributed througl\out the
United States and the several states
thereof; and that the defendant was the
owner and publisher of three periodicals
sold and distributed throughout the Unit-
ed States, known as "The Saturday Even-
ing Post,'' "The Ladies Home Journal,''
and "The Country Gentleman;" that the
business of the defendant in publishing,
selling, and distributing said periodicals
was interstate commerce. The character
of each of the several publications is de-
scribed, and a large circulation is attrib-
uted to each of them; and it is stated
that in publishing and distributing said
periodicals defendant held itself out as
desirous of taking, receiving, printing,
publishing, and distributing throughout
the United States its publications and
advertisements to persons, firms, and cor-
porations concerning their business and
occupation; that in the course of the
business the defendant dealt with the
I^ntiff and other advertising agencies;
that the defendant, in the reg^ar course
of its business, dealt with not only ad-
vertisers, but with advertising agencies
such as tne plaintiff, and it is alleged that
such dealings were transactions of inter-
state commerce, and that the business of
editing, publishing, and distributing
throughout the United States the adver-
tising matter eontained in said publica-
tions, pursuant to contracts made with
its customers and advertising [489]
agencies, was interstate commerce; that
such commerce is dependent for its
operation and growth upon advertising
facilities offered by magazines and
periodicals such as those of the defend-
ant, and that such publications constitute
the chief method of presenting to the
buying public the articles held out for
sale; that the advertising facilities were
necessary to dealers, merchants, and
manufacturers in order to bring their
products to the notice and attention of
purchasers; that the defendant'^ period-
icals, particularly "The Saturday Even-
ing Post," have an important position
among such publications, and are largely
read throughout the United States; that
"The Saturday Evening Post" is the most
651
439-441
SUPKEMK COUKT OF THE UNITED STATES.
Oct. Term
necessary of sdcb advertising mediums
to the customers of the plaintiff; that the
defendant's periodicals, together with
certain other magazines, periodicals, and
publications owned by persons other
than the defendant, had, to a certain ex-
tent, exclusive control of a certain field
of advertising; that the magazines and
other publications which control and do
all the advertising business of the field in
question are few in number; that for the
advertising of goods and merchandise
offerecT for sale in commerce there were
no adequate facilities except those offered
by the defendant and other publishers of
similar magazines; that the d^endant
was desirous of using its preponderant
position in this special field of advertis-
ing as a means of acquiring for itself
and its publications, especially for ^The
Saturday Evening Post," a monopoly of
the publication and distribution of ad-
vertising matter in this restricted field
of advertising throughout the United
States, in violation of the Anti-trust Act;
that the defendant refused, without any
reasonable cause, to accept proper and
ordinary' advertising matter or copy,
offered in the usual way to the defendant
by the plaintiff aiid other advertising
agencies, unless the plaintiff and other
advertising agencies would agree to allow
the defendant to increase its prepond-
erance [440] in said advertising field
by permitting it to control and limit
and reduce, at the will of the defendant,
the amount of advertising given by the
plaintiff and other advertising .agencies
to the owners and publjishers of other
magazines, journals, periodicals, and
other publications afbresaid, which were
competing^ with the defendant in the field
of advertising mentioned and described;
that by reason- of the illegal and wrong-
ful acts done by the defendant in pur-
suance of its attempt and scheme to
create a monopoly for its own benefit in
and to monopolize the advertising busi-
ness, plaintiff lost the business of its cus-
tomers for whom it had been acting as
agent in placing of advertisements with
defendant's and other publications, and
was prevented from making further con-
tracts for the placing of advertising mat-
ter in publications of the defendant, and
in consequence thereof, in any other pub-
lications of a like or similar character,
to the damasre of the plaintiff in the sum
of $25,000.
The declaration contains an alleged
cause of action at conmion law; but, as
either the plaintiff nor the defendant
•side in the distiict in which the suit
>2
was brought, it is conceded that sueii
cause of action, could not be maintained
in that court against the defendant's ob-
jection. Section 51, Judicial Code [36
Stat, at L. 1101, chap. 231, Comp. Stat.
§ 1033, 6 Fed. Stat. Anno. 2d ed. p.
486] .
The Sherman Anti-trust Act {§ 7)
created a cause of action in favor of any
person to recover by suit in any district
court of the United States, in the district
in which the defendant resides or is
found, threefold damages for injury to
his business or property by reason of
an3rthing forbidden and declared unlaw-
ful in the act. In order to maintain a
suit under this act the complaint must
state a substantial case arising thereun-
der. The action, is wholly statutory', and
can cmly be brought in a district court
of the United States, and it is essential
to the jurisdiction of the court in such
cases that a substantial cause of action
within the statute be set up.
[441] In some cases it is difiKcult to
determine whether a ruling dismissing
the complaint involves the merits of the
cause of action attempted to be pleaded,
or only a question of the jurisdiction of
the court. In any case aUeged to come
within the Federal jurisdiction it is not
enough to allege that questions of a Fed-
eral character arise in the case, it must
plainly appear that the averments at-
tempting to bring the case within Feder-
al jurisdiction are real and substantial.
Newburyport Water Co. v. Newburyport,
193 U. S. 662, 576, 48 L. ed. 795, 799, 24
Sup. Ct. Rep. 553.
In cases where, as here, the contro-
versy concerns a subject-matter limited
by a Federal law, for which recoverj-
can be had only in the Federal courts,
the jurisdiction attaches only when the
suit presents a substantial claim under
an act of Congress. This rule has been
applied in bankruptcv cases (Frederic L.
Grant Shoe Co. v. W. M. Laird Co. 212
U. S. 446, 53 L. ed. 591, 29 Sup. Ct.
Rep. 332), in copyright cases (Globe
Newspaper Co. v. Walker, 210 U. S.
356, 52 L. ed. 1096, 28 Sup. Ct. Rep.
726), in patent cases (Healy v. Sea Gull
Specialty Co. 237 U. S. 479, 59 L. ed.
1066, 35 Sup. Ct, Rep. 658), in admiralty
cases (The Jefferson, 215 U. S. 130. 64
L. ed. 125, 30 Sup. Ct. Rep. 64, 17 Ann,
Cas. 907).
We come, then, to inquire whether the
cause of action stated was a substantial
one within § 7 of the Sherman Anti-
trust Act. It is not contended that any
combination, conspiracv, or contract in
2*2 V. S.
ItilO.
BLU-M EX STOCK BROS. AD. AGENCY v. CURTIS PUB. CO.
441-443
restraint of trade is* alleged, such as
would bring liie case within the first sec-
tion of the act. The second section is
relied 'upon, which in terms punishes per-
sons who monopolize or attempt to mo-
nopolize, or. combine with others to mo-
nopolize, any part of trade or commerce
among the several states or with foreign
nations.
The Anti-trust Act, it is hardly neces-
sary to say, derives its authority from
the power of Congress to regulate com-
merce among the states. It declares un-
lawful combinations, conspiracies, and
contracts, and attempts to monopolize
which concern such trade or commerce.
It follows that If the dealings with the
defendant, which [442] form the sub-
ject-matter of complaint, were not trans-
actions of interstate commerce, the dec-
laration states no case within the terms
of the act.
Commerce, as defined in the often
quoted definition of Chief Justice
Marshall, in Gibbons v. Ogden, 9 WReat.
% 189, 6 L. ed. 23, 68, is not traffic
alone, it is intercourse, — "It describes the
commercial intercourse between nations
and parts of nations in all its branches,
and is regulated by prescribing rules for
carrying on that intercourse."
In the present case, treating the al-
legations of the complaint as true, the
subject-matter dealt with was tliQ making
of contracts for the insertion of adver-
tising matter in certain periodicals be-
longing to the defendant. It may be
conceded that the circulation and dis-
tribution of such publications throughout
the country would amount to interstate
commerce, but the circulation of these
periodicals did not depend upon or have
any direct relation to the advertising
i^ontracts which the plaintiff offered and
the defendant refused to receive except
upon the terms stated in the declaration.
The advertising contracts did not involve
any movement of goods or merchandise
in interstate commerce, or any transmis-
sion of intelligence in such commerce.
This case is wholly unlike Internation-
al Text-book Co. v. Pigg, 217 U. S. 91,
54 L. ed. 678, 27 L.R.A.(N.S.) 493, 30
Sup. Ct. Rep. 481, 18 Ann. Cas. 1103,
wherein there was a continuous inter-
state traffic in textbooks and apparatus
for a course of study pursued by means
of correspondence, and the movements
in interstate commerce were held to bring
the subject-matter within the domain of
Federal control, and to exempt it from
the burden imposed by state legislation.
This .case is more nearly analogous to
«4 r,. ed.
such cases as Ficklen v. Taxing Dist. 145
U. S. 1, 36 L. ed. 601, 4 Inters. Com.
Rep. 79, 12 Sup. Ct. Rep. 810, wherein
this court held that a broker engaged m
negotiating sales between residents of
Tennessee and nonresident merchants of
goods situated in another state was not
engaged in interstate commerce; and
within that line of [443] cases in which
we have, held that policies of insurance
are not articles of commerce, and that
the making of suoh contracts is a mere
incident of commercial intercourse. Paul
V. Virginia, 8 Wall. 168, 19 L. ed. 357;*
Hooper v. California, 155 U. S. 648, 39 L.
ed. 297, 5 Inters. Com. Rep. 610, 15
Sup. Ct. Rep. 207; New York L. Ins.
Co. V. Deer Lodge County, 231 U. S.
495, 58 L. ed, 332, 34 Sup. Ct. Rep.
167. We held in Hopkins v. United
States, 171 U. S. 579, 43 L. ed. 290, 19
Sup. Ct. Rep. 40, that the buying and
selling of live stock in the stockyards of
a city by members of the stock exchange
was not interstate commerce, although
most of the live stock was sent from other
states. In Williams v. Fears, 179 U. S.
270, .45 L. ed. 186, 21 Sup. Ct. Rep* 128,
we held that labor agents engaged within
the state of Georgia in hiring persons
to be employed outside the state were not
engaged in interstate commerce. lu
Ware v. Mobile Co. 209 U. 8. 405, 52
L. ed. 855, 28 Sup. Ct. Rep. 526, 14
Ann. Cas. 1031, we held that brokers tak-
ing orders and transmitting them to
other states for the purchase and safe of
grain or cotton upon speculation were
not engaged in interstate commerce; that
such contracts for sale or purchase did
not necessarily result in any movement
of commodities in interstate traffic, and
the contracts were not, therefore, the sub-
jects of interstate commerce. In the re-
cent case of United States Fidelity & 6.
Co. V. Kentucky, 231 U. S. 394, 58 L. ed.
283, 34 Sup. Ct Rep. 122, we held that a
tax upon a corporation engaged in the
business of inquiring into and reporting
upon the credit and standing of persons
in the state was not nnconstitutional as a
burden upon interstate commerce as ap-
plied to a nonresident engaged in select-
ing and distributing a list of guaranteed
attorneys in the United States, and hav-
ing a ' representative in the state. The
contention in that case, which this court
denied, was that the 8«*vice rendered
through the representatives in Kentucky,
and other repreaaitatives of the same
kind, acting as agents of meifhants en-
gaged in interstate commerce, to furnish
them with information through the mails,
or bv telegraph, or telephone, as a result
• 58
443, 444
SI PRKME COLia OF THE UNITED STATfiS.
Oct. Tebm,
of which merchandise might he trau-port-
ed in interstate commerce, [-444] or
withheld from such transportation, ae-
eording to the character of the informa-
tion reported, was so connected with in-
' terstate commerce as to preclude the
state of Kentucky from imposing a
privilege tax upon such business.
Applying the principles of these cases,
it is abundantly estabUshed that there is
no ground for claiming that the trans-
actions which are the basis of the present
salty concerning advertising in journals
*to be subsequently distributed in inter-
state commerce, are contracts which
directly affect such commerce. Their in*
cidentai relation thereto cannot lay the
groundwork for such contentions as are
undertaken to be here maintained under
§ 7 of the Sherman Anti-trust Act. The
court was right in dismissing the suit.
Affirmed.
0. 0. ASKREN, Attorney General of the
State of Kew Mexico, et al., Appts.,
V.
CONTINENTAL OIL COMPANY. (No.
621.)
0. 0. ASKREN, Attorney General of the
State of New Mexico, et al., Appts.,
V.
SINCLAIR REFINING COMPANY. (No.
•" 622.)-
0. a ASKREN, Attorney General of the
State of New Mexico, et al., Appts.,
V.
TEXAS COMPANY. (No. 623.)
(See & C. Reporter's ed. 444-450.)
Commerce — license tax — selling gaso*
lene in orlsliial packages — inspee*
tlon ^ excessive fees.
1. A state tax which is in effect a
privile^ tax upon the business of selling
gasolene in the tank cars or other original
packages in which the gasolene was brought
into the state, and which provides for the
le\'y of fees in excess of the cost of inspec-
tion, is invalid, as amounting to a direct
burden on interstate commerce.
[For other caiies. see Coramerce. IV. b, 3 ; VI.
c, in Digest Sup. Ct. lUOS.]
Commerce — lioeases and taxea •^ retail
sale«.
2. The buainesa of ailing gasolene at
retail in quantities to suit cuatomers, but
not in the original packages, is properly i
taxable by the laws of the btate, although |
the state itself producing no gasolene, it
• 54
must of necessity have been brought into
the state in interstate commerce.
[For othpr cases, see Commerce, IV. b, 1« in
Digest Sup. Ct 1908.1
[Nos. 521, 622, and 523.1
Argued January 5 and 6, 1920. Decided
April 19, 1920.
THREE APPEALS from the District
Court of the United States for the
District of Kew Mexico to review de-
crees enjoining the enforcement of a
state tax upon the sale of gasolene as
amounting to an unlawful r^^ulation of
inter^ate commerce. Aftened.
The facts are stated in the opinion.
•
Mr. A. B. Benehan argued the cause,
and, with Mr. Harry- S. Bowman and
Mr. 0. 0. Askren, Attorney General of
New Mexico, filed a brief for appellants :
The act does not lay an impost or
duty upon imports or exports.
American Steel & Wire Co. v. Speed,
192 U. S. 600, 48 L. ed. 538, 24 Sup. Ct.
Rep." 365; Brown v. Houston, 114 U. S.
622, 29 L. ed. 257, 5 Sup. Ct. Bep. 1091 ;
Hinson v. Lott, 8 Wall. 148, 19 L. ed.
387; New Mexico ex rel. McLean v. Den-
ver &* B. G. R. Co. 203 U. S. 38, 51 L.
ed. 78, 27 Sup. Ct. Rep. 1; Woodruff v.
Parham, 8 Wall. 123, 19 L. ed. 382.
The goods will have reached their des-
tination and ceased to be in interstate
commerce when the tax attaches.
American Steel & Wire Co. v. Speed,
192 U. S. 500, 48 L. ed. 538, 24 Sup. Ct.
Kota. — ^As to state licenses or taxes,
generally, as affecting interstate com-
merce— see notes to Bothermel v. Mey-
erle, 9 L.B JL. 366; American Fertiliz-
ing Co. V. Board of Agriculture, 11
LJl.A- 179; Gibbons v. Ogden, 6 L. ed.
U. S. 23; Brown v. Maryland, 6 L. ed.
U. S. 678; Batterman v. Western U.
Teleg. Co. 32 L. ed. U. S. 229; Harmon
V. Chicago, 37 L. ed. U. S. 217; Cleve-
land, C. C. & St. L. B. Co. V. Backus,
38 L. ed. U. S. 1041; Postal Teleg. Cable
Co. V. Adams, 39 L. ed. XJ. S. 311; and
Pittsburg & S. Coal Co. v. Bates, 39 L.
ed. U. S. 538.
On original-package doctrine — see note
to Postal Teleg. Cable Co. v. Adams, 39
L. ed. U. S. 311.
On inspection laws as regulation of
commerce — see notes to Pure Oil Co. v.
3kIinnesota, 63 L. ed. U. S. 180, and New
Mexico ex rel. McLean v. Denver & R.
G. B. Co. 51 L. ed. U. S. 78.
On validity of state inspection laws as
applied to commodities in interstate com-
merce— see note to State v. Bartles Oil
Co. L.R.A.1916D. 196.
252 U. S.
A8KHEN V. CONTINENTAL OIL 00.
Rep. 365; Arkadelphis Mill. Co. v. St.
loaiB 3oiithwMt«rn R. Co. 2^ U. 8. 134,
63 L. «d. 617, P.U.R1W8C, 710, 39 Sop.
Ct. Bep. 237; Armour PMkin? Co. ▼.
Lacy, 200 U. S. 226, 50 Lc'ed. 451, 2S
Sap. Ct. B^. 232: AaBtin t. TennesBM,
179 n. 8. S43, 45 L ed. 224, 21 Sap. Ct
B^. 132; Bacon ▼. IllinoiB, 227 U. S.
504, 67 L. ed. 615, 33 Sup. Ct. Rep. 299;
Bowman v. Chiaago ft N. W. B. Co. 125
U. S. 465, 31 L. ed. 700, 1 Inters. Com.
Bep. 823, 8 Sap. Ct. Bep. 689, 1062;
Brown v. Houston, 114 U. S. 622, 29 L.
ed. 257, 5 Sup. Ct. Rep. 1091; Brown v.
Maryland, 12 Wheat. 419, 6 L. ed. 678;
Cheney Bros. Co. v. Masaajshnsetts, 246
U. S. 147, 62 L. ed. 632, 38 Sup. Ct. Rep.
295; Cook v. Marshall County, 196 U. S.
261, 49 L. ed. 471, 25 Sup. Ct. Rep. 233;
Dalton Adding Mach. Co. v. Virginia,
246 U. S. 498, 62 L. ed. 851, 38 Sup. Ct.
Bep. 361; General Oil Co. v. Crain, 209
U. S. 211, 52 L. ed. 754, 28 Snp. Ct, Bep.
475; Qen«al B. Sigrnal Co. v. Virginia,
246 U. S. 600, 62 L. ed. 854, 38 Sup. Ct.
Bep. 360; Hammer v. Dageohart, 247
V. S. 251, 62 L. ed. 1101, 3 A.L.R. 649,
38 Snp. Ct. Rep, 529, Ann. Caa. 1919E,
724; Watters t. Michigan, 348 U. S, 65,
63 L. ed. 129, 39 Sup. Ct. R^. 29; Ein-
son V. Lott, 8 Wall. 148, 19 L. ed. 387;
Kehrer v. Stewart, 197 V. S. 60, 49 L.
ed. 663, 25 Sap. Ct. Rep. 403; Leisy t.
Hardin, 135 U, B. 100, 34 L. ed. 128, 3
Inters. Com. Rep. 36, 10 Sup. Ct. Rep.
681; License Cases, 5 How. 594, 12 L.
ed. 296; May v, Kew Orleans, 178 U. S.
496, 44 L. ed. 1165, 20 Snp. Ct. Bep.
976; Pittsburg ft S. Coal Co. t. Bates,
156 U. S, 577, 39 L. ed, 538, 5 Inters.
Com. Bep. 30, 15 Sup. Ct. Rep. 415;
, Public Utilities Commission v. Landon,
2& D. S. 236, 63 L. ed. 577, P.U.R,1919C,
834, 39 Snp. Ct. Rep. 268; Rhodes t.
Iowa, 170 U. 8. 412, 42 L. ed, 1090, 18
Sup. Ct. Rep. 664; SchoIIenberger v.
Pennsylvania, 171 U. S. 1. 43 L. ed. 49,
18 Sup. Ct. Rep. 757; Singer Sewing
Mach. Co. T. Briekell, 233 U. S. 304, 58
L. ed. 974, 34 Sup. Ct. Rep. 493; Stand-
ard Oil Co. V. Graves, 249 U. S. 389, 63
L. ed. 662, 39 Suj). Ct. Rep. 320; West-
ern Oil Ref, Co. T. Lipecomb, 344 U. S.
346, 61 L. ed. 1181, 37 Sup. Ct. Rep. 623;
Woodmff V. Parham, 8 Wall. 123, 19 L.
ed. 3^; Susquehanna Coal Co. v. South
Ambov, 228 U, S. 665, 57 L. ed. 1015, 33
Sup. Ct. Rep. 712.
Occupation, excise, and privilege taxes
ai<e not rendered unconstitutional mere-
ly becaoae Umited to certain designated
classes of business.
American Steel & Wire Co. v. Speed, I
192 U, S. 500, 48 L. ed. 538, 24 Sup. Ct,
B^. 365; American Sugar Ref. Co. v.
Lonisiaaa, 179 U. S. 89, 45 L. ed. 102, 21
Sup. Ct. Rep. 43; Armour Packing Co.
V. Lacy, 200 U. 8. 226, 50 L. ed. 451, 26
Sup. Ct. Bop. 232; W. W. Cai^ll Co. v.
Minnesota, 180 U. S. 452, 45 L. ed. 619,
21 Snp. Ct. Bep. 423; Connolly v. Union
Sewer Pipe Co. 184 U. 8. 540, 46 L. ed.
679, 22 Snp. Ct. Rep. 431; Cook v.
MarshaU County, 106 U. S. 268, 49 L.
ed. 473, 25 Snp, Ct. Bep. 233; Kentucky
B. Tax Cases, 115 U. S. 321, 29 L. ed.
414, 6 Sup. Ct. Bep. 67; Ohio River &
W. B. Co. V. Dittey, 232 U. S. 576, 58 L.
ed. 738, 34 Sup. Ct. Bep. 372; Singer
Sewing Mach. Co. v. Briekell, 233 XJ. S.
304, 58 L. ed. 974, 34 Snp. Ct. Bep. 493;
Southwestern Oil Co. v. Texas, 217 U.
8. 117, 54 L. ed. 691, 30 Snp. Ct. Bep.
496.
The aet will be construed to ^)ply
only to intrastate or local commerce.
Leloup v. MobUe, 127 U. S. 640, 32 L.
ed. 311, 2 Inters. Com. Bep. 134, 8 Sup.
Ct. Rep. 1380; Ohio Biver & W. B. Co.
v. Dittey, 232 U. 8. 590, 68 L. ed. 745,
34 Snp. Ct. Bep. 372; Silver Sewing
Mach. Co. V. Briekell, 233 V. S. 304, 58
L. ed. 974, 34 Sup. Ct. Kep. 493; Trade-
Mark Cases, 100 U. S. 82, 25 L. ed. 550;
United States v. Beese, 92 U. 8. 214, 23
L. ed. 563.
The tax in qnestion is an excise or
^vil^e tax, not a property tax.
Armour A Co. v. Virginia, 246 U. S.
1, 62 L. ed. 547, 38 Sup. Ct, Rep. 267;
Ohio Biver & W. E. Co. v. Dittey, 232
U. S. 690, 68 L. ed. 745, 34 Sup. Ct. Bep,
372; William E. Peck & Co. v. Lowe, 247
U. 8. 165, 62 L. ed. 1049, 38 Sup. Ct.
Rep. 432; Woodruff v. Parham, 8 Wall.
123, 19 L. ed. 382.
Messrs. Charles B. Brock and E. B.
Wright argued the caase, and, with
Messrs. Stephen B. Davis, Jr., Milton
Smith, W. H, Ferguson, and Elmer L.
Brock, filed a bric£ for appellees:
The New Mexico statute constitutes an
unlawful burden upon and discrimina-
tion against inter state
American Steel & \
192 U. S. 500. 48 L. e.
Rep, 365; Armour & C
U. S. 1, 62 L. ed. 547,
267; BacoD v. IllinoiB,
L. ed. 615, 33 Sup. Ct
Enol. 116 U. S. 517, 2£
Ct. Bep. 475: Diamo
Ontonagon, 188 U. S. 82, 47 L. ed. 394,
23 Sup. Ct. Rep. 266; Escanaba & L, M.
Transp. Co. v. Chicago, 107 U. S. 678, 27
L. cd. 442, 2 Snp. Ct. Rep. 185; D. E.
Foote & Co. V. Stanley, 232 U. S. 494,
<K5
SI IHIhAiK CUIKT OF Till:: UMTEo STATES.
Oct. Iekm,
58 L. ed. 098, 34 Sup. Cl. Kep. 377; Gen-
eral Oil Co. v. Craiii, 200 U. S. 211, 52
L. ed. 754, 28 Sup. Ct. Rep. 475; Hin-
son V. Lott, 8 Wull. 148, 19 L. ed. 387;
Kimmish v. Ball, 129 U. S. 217, 32 L. ed.
695, 2 Inters. Com. Rep. 407, 9 Sup. Ct.
Rep. 277; Ldoup v. Mobile, 127 U. S.
640, 32 L. ed. 311, 2 Inters. Com. Rep.
134, 8 Sup. Ct. Rep. 1380; Mobile
Countv V. Kimball, 102 U. S. 691, 26 L.
ed. 238; Brown v. Houston, 114 U. S.
622, 29 L. ed. 257, 5 Sup. Ct. Rep. 1091 ;
Morgan's L. & T. R. & S. S. Co. v. Board
of Health, 118 U. S. 455, 30 L. ed. 237/
6 Sup. Ct. Rep. 1114; ^lugler v. Kansas,
123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct.
Rep. 273; Nashville, C. & St. L. R. Co.
V. Alabama, 128 U. S. 96, 32 L. ed. 362,
2 Inters. Com. Rep. 238, 9 Sup. Ct. R«p.
28; New Mexico ex rel. McLean v. Den-
ver & R. G. B. Co. 203 U. S. 38, 51 L.
ed. 78, 27 Sup. Ct. Rep. 1; Ohio River
& W. B. Co. V. Dittey, 232 U. S. 577, 58
L. ed. 738, 34 Sup. Ct. Rep. 372; Park-
ersburg & 0. River Transp. Co. v.
Parkersburg, 107 U. S. 691, 27 L. ed. 584,
2 Sup. Ct. Rep. 732; Patapsco Guano
Co. V. Board of Agriculture, 171 U. -S.
345, 43 L. ed. 191, 18 Sup. Ct. Rep. 862;
Pittsburg & S. Coal Co. v. Bates, 156 D,
S. 577, 39 L. ed. 538, 5 Inters. Com. Rep.
30, 15 Sup. Ct. Rep. 415 ; Pure Oil Co. v.
Minnesota, 248 U. S. 158, 63 L. ed. 180,
39 Sup. Ct. Rep. 35 ; Red "C" Oil Mfg.
Co. v. Board of Agriculture,^ 222 U. S.
380, 56 L. ed. 240, 32 Sup. Ct. Rep. 152;
Smith V. Alabama, 124 U. S. 465, 31 L.
ed. 508, 1 Inters. Com. Rep. 804, 8 Sup.
Ct. Rep. 564; Southwestern Oil Co. v.
Texas, 217 U. S. 115, 54 L. ed. 690, 30
Sop. Ct Rep. 496; Standard Oil Co. v.
Graves, 249 U. S. 389, 63 L. ed. 662, 39
Sup. ('t. Rep. 320; Susquehanna Coal
Co. V. South Amboy, 228 U. S. 665, 57
L. ed. 1015, 33 Sup. Ct. Rep. 712; Voight
V. Wright, 141 U. S. 62, 35 L. ed. 638, 11
Sup. Ct. Rep. 855; Woodruff v. Parham,
8 Wall. 123, 19 L, ed. 382.
The New Mexico statute singles out
an article of commerce not produced in
the state of New Mexico, and which
reaches that state only by interstate
commerce, and imposes the tax upon the
right to sell or use that article.
Bowman v. Chicago & N. W. R. Co.
125 U. S. 465, 31 L. ed. 700, 1 Inters.
Com. Rep. 823, 8 Sup. Ct. Rep. 689,
1062; Brown v. Maryland, 12 Wheat
419, 6 L. ed. 678; 1 Carson's History of
U. S. Sup. Ct. p. 11; Crew Levick Co.
V. Pennsylvania, 245 U. S. 292, 62 L. ed.
295, 38 Sup. Ct. Rep. 126, Crutcher v.
Kentucky, 141 U. S. 47, 35 L. ed. 649,
11 Sup. Ct. Rep. 851; Galveston, H. &
6.>6
S. A. R. Co. V. Texas, 210 U. S. 217, 52
L. ed. 1031, 28 Sup. Ct. Rep. 638; Gib-
bons V. Ogden, 9 Wheat. 1, 6 L. ed. 23;
Henderson v. New York (Henderson v.
Wickham) W-U. S. 259, 23 L. ed. 543;
International Textbook Co. v. Pigg, 217
U. S. 91, 54 L. ed. 678, 27 h.R.A!(S,S.)
493, 30 Sup. Ct. Rep. 481, 18 Aim. Caa.
1103; Leisy v. Hardin, 135 U. S. 100, 34
L. ed. 128, 3 Inters. Com. Rep. 36, 10
Sup. Ct. Rep. 681; Leloup v. Mobile, 127
U. S. 640, 32 L. ed. 311, 2 Inters, Com.
Rep. 134, 8 Sup. a. Rep. 1380; License
Cases, 5 How. 504, 12 L. ed. 256; Minne-
sota V. Barber, 136 U. S. 313, 34 L. ed.
455, 3 Inters. Com. Rep. 185, 10 Sup. Ct.
Rep. 862; Osborne v. Florida, 164 U. S.
650, 41 L. ed. 586, 17 Sup. Ct. Rep. 214 ;
Passenger Cases, 7 How. 284, 12 L. e<L
702; Standard Oil Co. v. Graves, 249 U.
S. 389, 63 L. ed. 662, 39 Sup. Ct. Rep.
320; Western U. Teleg. Co. v. Alabama
Bd. of Assessment (Western U. Teleg.
Co. V. Seay) 132 U. S. 473, 33 L. ed. 409,
2 Inters. Com. Rep. 726, 10 Sup. Ct Rep.
161; Woodruff v. Parham, 8 Wall. 123,
19 L. ed. 382.
The statute of New Me^co is a mani-
fest violation of what is known as the
original-package rule.
American Steel & Wire Co. v. Speed,
192 U. S. 500, 48 L. ed. 538, 24 Sup. CU
Rep. 365; Austin v. Tennessee, 179 U. S.
343, 45 L. ed. 224, 21 Sup. Ct Rep. 132;
Bacon v. Illinois, 227 U. S. 504, 57 L.
ed. 615, 33 Sup. Ct. Rep. 299; Bowman
V. Chicago & N. W. R. Co. 125 U. S.
465, 31 L. ed. 700, 1 Inters. Com. Rep.
823, 8 Sup. Ct. Rep. 689, 1062; Brown v.
Maryland, 12 Wheat. 419, 6 L. ed. 678;
Cook V. Marshall County, 196 U- S. 261,
49 L. ed. 471, 25 Sup. Ct R^. 233;
May V. New Orleans, 178 U. S. 496, 44
L. ed. 1165, 20 Sup. Ct Rep. 976; Gen-
eral OU Co. V. Crain, 209 U. S. 211, 62
L. ed. 754^ 28 Sup. Ct. Rep. 475; Gibbons
V. Ogden, 9 Wheat. 1, 6 L. ed. 23; Re
Wilson, 10 N. M. 32, 48 L.R.A. 417, 60
Pac. 73; Leisy v. Hardin, 135 U. S. 100,
34 L. ed. 1^, 3 Inters. Com. R^. 36, 10
Sup. Ct. Rep. 681; Lyng v. Michigan, 135
U. S. 161, 34 L. ed. 150, 3 Inters. Com.
Rep. 143, 10 Sup. Ct Rep. 725; License
Cases (Peirce v. New Hampshire) 5 How.
504, 12 L. ed. 256; Rhodes v. Iowa, 170
U. S. 412, 42 L. ed. 1088, 18 Sim. Ct Bep.
664; Schollenberger v. Pennsylvania, 171
U. S. 1, 43 L. ed. 49, 18 Snp. Ct Eep.
757; Standard Oil Co. v. Graves, 249 U.
S. 389, 63 L. ed. 662, 39 Sup. Ct B^.
320; Woodruff v. Parham, 8 Wall 1^
19 L. ed. 382.
The ^pellees cannot be classed as
merely local merchants, nor can their
252 U. S.
ll»19.
ASKREX V. COXTINENTAL OIL U^.
44o, 44<5
particular commodities be said to have
come to rest within I he state as to orig-
inal packages, so as to be subject either
to the license tax or the so-called excise
tax of 2 cents per gallon.
American Steel & Wire Co. v. Speed,
192 U. S. 500, 48 L. ed. 538, 24 Sup. Ct
Rep. 365; Ai-mour Packing Co. v. Lacy,
200 U. S. 226, 50 L. ed. 461, 26 Sup. Ct
Rep. 232; Bacon v. Illinois, 227 U. S. 604,
57 L. ed. 615, 33 Sup. Ct. Rep. 299;
Brown v. Houston, 114 U. S. 622, 29 L.
ed. 257, 5 Sup. Ct. Rep. 1091; Dalton
Adding Mach. Co. v. Virginia, 246 U. S.
498, 62 L. ed. 851, 38 Sup. Ct. Rep. 361 ;
General Oil Co. v. Grain, 209 U. S. 211,
52 L. ed. 754, 28 Sup. Ct. Rep. 476j Gen-
eral R, Signal Co. v. Virginia, 246 U. 8.
500, 62 L. ed. 864, 38 Sup. Ct. Rep. 360;
Hinson v. Lott, 8 Wall. 148, 19 L. ed.
387 ; Kehrer v. Stewart, 197 U. S. 60, 49
L. ed. 663, 26 Sup. Ct. Rep. 403; Public
Utilities Commission v. Landon, 249 U.
S. 236, 63 L. ed. 677, P.U.R.1919C, 834,
39 Sup. Ct Rep. 268; Pullman Co. v.
Kansas, 216 U. S. 56, 64 L. ed. 378, 30
Sup. Ct. Rep. 232; Ex parte Kieffer,
40 Fed. 402 ; Singer Sewing Mach. Co. v.
Brickcll, 233 U. S. 304, 58 L. ed. 974, 34
Sup. Ct. Rep. 493; Standard Oil Co. v.
Graves, 249 U. S. 389, 63 L. ed. 662, 39
Sup. Ct. Rep. 320; Woodruff v. Parham,
8 Wall. 123, 19 L. ed. 382.
The New Mexico statute cannot be
construed as applied only to intrastate
or local commerce.
Crutcher v. Kentucky, 141 U. S. 47, 36
L. ed. 649, 11 Sup. Ct. Rep. 851 ; Galves-
ton, H. & S. A. R.*Co. V. Texas, 210 U.
S. 217, 52 L. ed. 1031, 28 Sup. Ct. Rep.
638; Norfolk & W. R. Co. v. Pennsyl-
vania, 136 U. S. 114, 119, 34 L. ed. 394,
397, 3 Inters. Com. Rep. 178, 10 Sup.
Ct. Rep. 958; Ohio River & W. R. Co.
V. Dittev, 232 U. S. 576, 58 L. ed. 738,
34 Sup. Ct. Rep. 372; Singer Sewing
Mach. Co. V. Brickell, 233 U. S. 304, §8
L. ed. 974, 34 Sup. Ct. Rep. 493; West-
em U. Teleg. Co. v. Kansas, 216 U. S.
1, 54 L. ed. 356, 30 Sup. Ct. Rep. 190;
Williams v. Talladega, 226 U. S. 404,
419, 57 L. ed. 275, 281, 33 Sup. Ct. Rep.
116.
Assuming that the tax is void, as it
imposes a burden upon interstate ship-
ments of gasolene sold in original pack-
ages, will that vitiate the entire act, or
may the court properly declare the law
to be invalid as to interstate shipments
of the character mentioned, and never-
theless sustain it as to intrastate sales,
use. and distribution?
Caldwell v. State, 187 lud. 617, 119
N. H. f>f)0; Hannibal v. Missouri & K.
64 L*. (^d. 4
Teleph. Co. 31 Mo. App. 23; Cooley,
Const. Lim. 5th ed. 213; D. E. Foote &
Co. V. Clagett, 116 Md. 228, 81 Atl. 511 ;
Gilbert- Arnold Land Co. v. Superior, 91
Wis. 353, 64 N. W. 999; International
Textbook Co. v. Pigg, 217 U. S. 91, 64
L. ed. 678, 27 L.R.A.(N.S.) 493, 30 Sup.
Ct. Rep. 481, 18 Ann. Cas. 1103; Martin
V. Tylor, 4 N. D. 278, 25 L.R.A. 838, 60
N. W. 392; Passaic Water Co. v. Pater-
son, 65 N. J. L. 475, 47 Atl. 462; Poin-
dexter v. Greenhow, 114 U. S. 270, 29
L. ed. 185, 5 Sup. Ct. Rep. 903, 962;
Pollock V. Farmers' Loan & T. Co. 158
U. 8. 601, 39 L. ed. 1108, 15 Sup. Ct,
Rep. 912; SUte v. Cumberland &.P. R.
Co. 40 Md. 22; Trade-Mark Cases, 100
U. S. 82, 25 L. ed. 660; Central Branch
Union P. R. Co. v. Atchison, T. & S. F.
R. Co. 28 Kan. 463; Saratoga Springs v.
Van Norder, 76 App. Div. 204, 77 N. Y.
Supp. 1020; Warren ^ Charlestown, 2
Gray, 84; Western U. Teleg. Co. v. Aus-
tin, 67 Kan. 208, 72 Pac. 850; Re Wil-
son, 10 N. M. 32, 48 L.R.A. 417, 60 Pac.
73.
The New Mexico statute is void under
the 14th Amendment.
Armour Packing Co. v. Lacy, 200 U.
S. 226, 60 L. ed. 461, 26 Sup. Ct. Rep. .
232; Bell's Gap R. Co. v. Pennsvlvania,
134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct.
Rep. 633; Connolly v. Union Sewer Pipe
Co. 184 U. S. 640, 662, 46 L. ed. 679, 690,
22 Sup. Ct. Rep. 431; Cook v. Marshall
County, 196 U. S. 268, 49 L. ed. 474, 25
Sup. Ct. Rep. 233; Magonn v. Illinois
Trust & Sav. Bank, 170 U. S. 283, 42 L.
ed. 1037, 18 Sup. Ct. Rep. 594.
Mr. Justice Day delivered the opinion
of the court:
These suits were brought by the three
companies, appellees, in the district court
of the United States for the [446] dis-
trict of New Mexico, to enjoin the en-
forcement of an act of the legislature
of the state, entitled: "An Act Pro-
viding for an Excise Tax upon the
Sale or Use of Gasolene, and for a
License Tax to be Paid by Dis-
tributers and ttetail Dealers therein;
Providing for Collection and Applica-
tion of Such Taxes; Providing for the
Inspection of Gbisolene, and Making It
Unlawful to Sell below a Certain Grade
without Notifying Purchaser Thereof;
Providing Penalties for Violations of
This Act, and for Other Purposes." The
law is found in Session Laws of New
Mexico, 1919, chap. 93, page 182.
The cause came before three judges up-
on an application for temporary injunc-
tion and a countermotion to dismiss the
2 657
44G-448
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
bills of complaint. The temporary in-
junction was granted, and a direct ap-
peal taken to this court.
The provisions of the act, so far as
necessary to be considered, de^e a dis-
tributer of gasolene as meaning ''every
person, corporation, firm, copartnership,
and association who sells gasolene from
tank cars, receiving tanks, or stations, or
In or from tanks, barrels, or packages
not purchased from a licensed distributer
of gasolene in this state.'' A retail deal-
er is defined as meaning: ''A person
other than a distributer of gasolene who
sells gasolene in quantities di 50 gallons
or less," Every distributer is required to
pay an annual license tax of $50 for each
distributing station, or place of business,
and agency. Every retail dealer is re-
quired to pay an annual license tax of $5
for every place of business or agency.
An excise tax is^imposed upon the sale
or use of gasolene sold or- used in the
state after July 1, 1919; such tax to be
2 cents per gallon on all gasolene so sold
or used. Any distributer or dealer who
shall fail to inake return or statement, as
required in the act, or shall refuse, n^-
lect, or fail to pay the tax upon all
jsales or use of gasolene, or who shall
make any false return or statement, or
shall knowingly sell, distribute, or use
any gasolene without the tax upon the
sale or' use thereof [447] having been
paid, as provided in the act, shall be
deemed guilty of a misdemeanor, and
punished by a fine and forfeiture of his
license. It is made unlawful for any
person (except tourists or travelers
to the extent provided in the act)
to use any gasolene Aot purchased
from a licensed distributer or retail
dealer without paying the tax of 2
cents per gallon. Inspectors are pro-
vided for for each of the eight judicial
districts of the state, who are required
to see that the provisions of the act are
enforced, and privileged to examine b^oks
and accounts, of distributers and retail
dealers, or warehousemen or others re-
ceiving and storing gasolene, atd of rail-
road and transportation companies, re-
lating to purchases, receipts, shipments,
or sales of gasolene; their salaries are
provided, and salaries and expense bills
are to be paid out of the state road fund.
Any person who •shall engage or continue
in the business of selling gasolene with-
out a license, or after such license has
been forfeited, or shall fail to render any
statement, or make any false statement
therein, or \^o shall violate any provi-
sion of the act the punishment for which
has not been theretofore provided, shall
be deemed guilty of a misdemeanor, and
upon conviction shall be punished by a
fine or imprisonment, or both. The state
treasurer is required to set aside from
the license fees and taxes collected under
the provisions of the act a sufficient sum
to pay tiie salaries and traveling expenses
of the inspectors out of the money re-
ceived from such collections, and to place
the balance to the credit of the state road
fund, to be used for the construction, im-
provement, and maintenance of public
highways.
It is evident from the provisions of the
act thus stated that it is not an inspec-
tion act merely; indeed, the inspectors
do not seem to be required to make any
inspection beyond seeing that the provi-
sions of the act are enforced, and the ex-
cess of the salaries and fees of the in-
spectors is to be used in making roads
within the state. Considering [m8] its
provisions and the effect of the act, it
is a tax upon the privilege of dealing in
gasolene in the state of New Mexico.
The bills in the three cases are identi-
cal except as to the number of distribut-
ing stations alleged to belong to the com-
panies respectively. As there was no
answer, and the bills i^ere considered
upon application for injunction, and mo-
tion to dismiss, their allegations must be
taken to be true.
Plaintiffs are engaged in the business
of buying and selling gasolene and other
petroleum products. The bills state that
they purchase gasolene in the states of
Colorado, California, Oklahoma, Texas,
and Kansas, and ship it into the state of
New Mexico, there to be sold and de-
livered. The bills describe two classes of
business : first, that they purchase in the
states mentioned, or in some one of said
states, gasolene, and ship it in tank ears
from the state in which purchased into
the state of New Mexico, and there, ac-
cording to their custom and the ordinary
method in the conduct of their business,
sell in tank cars the whole of the con-
tents thereof to a single customer, be-
fore the package or padcages in whidi
the gasolene was shipped have been
broken. In the usual and regular course
of their business they purchase gasolene
in one of the states, other than the state
of New Mexico, and ship it, so purchased,
from that state, in barrels and packages
containing not less than two 5-gallon
cans, into the state of New Mexico, and
there, in the usual and ordinary course of
their business, without breaking the bar-
rels and packages containing the cans,
it is their custom to sell the gasolene in
the orig^al packages and barrels. The
252 U. S.
1019.
CAMERON V. UNITED STATES.
448-450
gasolene is sold and delivered to the
customers in precisely the same form
and condition as when received in the
state of New Mexico; that this man-
ner of sale makes the plaintifts dis-
tributers of gasolene as the term is
defined in the statute, and they are
required to pay the sum of $50 per an-
num for each of their stations [44B] as
an annual license tax for purchasing,
shipping, and selling gasolene as afore-
said.
A second method of dealing in gasolene
18 described in the bills: Tb&t the gaso-
lene shipped to the plaintiff from the
other states, as aforesaid, is in tank cars,
and plaintiff, or plaintiffs, sell such gaso-
lene from such tank cars, barrds, and
packages in such quantities as the pur-
chaser requires.
As to the gfasolene brought into the
state in the tank cars, or in the original
packages, and so sold, we are unable to
discover any difference in plan of im-
portation and sale between the instant
case and that before us in Standard Oil
Co. V. Graves, 249 U. S. 389, 63 L. ed.
662, 39 Sup. Ct. Rep. 329, in which we
held that a tax, which was in effect a
privilege tax, as is the one under consid-
eration, providing for a levy of fees in
excess of the cost of inspection, amounted
to a direct burden on interstate com-
merce. In that case we reafiObrmed what
had often been adjudicated heretofore in
this court, that the direct and necessary
effect of such legislation was to impose a
burden upon interstate commerce; that
under the Federal Constitution the im-
porter of such products from another
state into his own state, for sale in the
original packages, had a right to sell the
same in such packages without being
taxed for the privilege by taxation of
the sort here involved. Upon this branch
of the case we deem it only necessary
to refer to that case, and the cases there-
in cited, as establishing the propositibn
that the license tax upon the sale of
gasolene brought into the state in tank
cars, or original packages, and thus sold,
ia t>eyond the taxing power of the state.
The plaintiffs state in the bills that
their business in part consists in selling
gasolene in. retail in quantities to suit
purchasers. A business of this sort, al-
though the gasolene was brought into the
state in interstate eonuneroe, is properly
taxable by the laws of the state.
Much is made of the fact that New
Mexico does not produce gasolene, and all
of it' that is dealt in within that [450]
state must be brought in from other
•4 L. edi
I states. But, so long as there is no dis-
crimination against the products of
another state, and none is shown from
the mere fact that the gasolene is pro-
duced in another state, the gasolene thus .
stored and dealt in is not beyond the
taxing power of the state. Wagner v.
Covington, decided December 8, 1919
[251 U. S. 95, ante, 157, 40 Sup. Ct. ^ep.
93], and the cases from this court cited
therein*
Sales of the class last mentioned would
be a subject of taxation within the legiti-
mate power of the state. But from the
averments of the bills it is impossible to
determine the relative importance of this
part of the business as compared with
that which is nontaxable, and at this
preliminary stage of the cases we will
not go into the question whether the act
is separable, and capable of being sus-
tained so far as it imposes a tax upon
business legitimately taxable. That
question may be reserved for the final
hearing. The District Court did not err
in granting the temporary injunctions,
and its orders are aflrmed.
RALPH H. CAMERON et al., Appts.,
V.
UNITED STATES.
(See S. a Reporter's ed. 450-465.)
Public lands ^ monnmeat reserve —
Grand Canyon*
1. The Grand Canyon of the Colorado
could be created as a monument reserve by
the President under the power conferred
upon him by the Act of June 8, 1906, to
establish reserves embracing objects of his-
toric or scientific interest.
[For other caees, see PubUc Lanx^n, I. a. In
Digest Sap. Ct. 1908.]
Mines — lode location — > discovery.
2. To make a lode mining claim valid,
or to invest the locator with a right to x>os-
session, it is essential that the lands be
mineral in character, and that there be an
adequate mineral discovery within the lim-
its of the claim as locate^.
[For other cases, see Mines, I. b, in Digest
Sup. Ct. 1908.7
Public lands — withdrawal for monu-
ment reserve — saving claase — lode
mining claim — discovery.
3. To bring a lode mining claim with-
in the savinff clause in the withdrawal of
public lands lor a monument reserve, under
the Act of June 8, 1906, in respect of any
"valid" mining claim theretofore acquired,
Note. — ^As to loetttion of mining claim
see note to Dwinnell v, Dver, 7 L.R.A.
(N.S.) 763.
44G-448
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
bills of complaint. The temporary in-
junction was granted, and a direct ap-
peal taken to this court.
The provisions of the act, so far as
necessary to be considered, define a dis-
tributer of gasolene as meaning '^every
person, corporation, firm, copartnership,
and association who sells gasolene from
tank cars, receiving tanks, or stations, or
in or from tanks, barrels, or packages
not purchased from a licensed distributer
of gasolene in this state." A retail deal-
er is defined as meaning: "A person
other than a distributer of gasolene who
sells gasolene in quantities ot 50 gallons
or less/' Every distributer is required to
pay an annual license tax of $50 for each
distributing station, or place of business,
and agency. Every retail dealer is re-
quired to pay an annual license tax of $5
for every place of business or agency.
An excise tax is^imposed upon the sale
or use of gasolene sold or- used in the
state after July 1, 1919; such tax to be
2 eents per gallon on all gasolene so sold
or used. Any distributer or dealer who
shall fail to make return or statement, as
required in the act, or shall refuse, neg-
lect, or fail to pay the tax upon all
jsales or use of gasolene, or who shall
make any false return X)r statement, or
shall knowingly sell, distribute, or use
any gasolene without the tax upon the
sale or' use thereof [447] having been
paid, as provided in the act, shall be
deemed guilty of a misdemeanor, and
punished by a fine and forfeiture of his
license. It is made unlawful for any
person (except tourists or travelers
to the extent provided in the act)
to use any gasolene not purchased
from a licensed distributer or retail
dealer without paying the tax of 2
cents per gallon. Inspectors are pro-
vided for for each of the eight judicial
districts of the state, who are required
to see that the provisions of the act are
enforced, and privileged to examine b»oks
and accounts of distributers and retail
dealers, or warehousemen or others re-
ceiving and storing gasolene, atd of rail-
road and transt>ortation companies, re-
lating to purchases, receipts, shipments,
or sales of gasolene; their salaries are
provided, and salaries and expense bills
are to be paid out of the state road fund.
Any person who -shaU engage or continue
in the business of selling gasolene with-
out a license, or after such license has
been forfeited, or shall fail to render any
statement, or make any false statement
therein, or who shall violate any provi-
sion of the act the punishment for which
has not been theretofore provided, shall
be deemed guilty of a misdemeanor, and
upon conviction shall be punished by a
fine or imprisonment, or both. The state
treasurer is required to set aside from
the license fees and taxes collected under
the provisions of the act a sufficient sum
to pay tiie salaries and traveling expenses
of the inspectors out of the money re«
ceived from such collections, and to place
the balance to the credit of the state road
fund, to be used for the construction, im-
provement, and maintenance of public
highways.
It is evident from the provisions of the
act thus stated that it is not an inspee-
tion act, merely; indeed, the inspectors
do not seem to be req[uired to make any
inspection beyond seemg that the pro?i-
sions of the act are enforced, and the ex-
cess of the salaries and fees of the in-
spectors is to be used in making roads
within the state. Considering [^Pl8] its
provisions and the effect of the act, it
is a tax upon the privilege of dealing ia
gasolene in the state of New Mexico.
The bills in the three cases are identi-
cal except as to the number of distribut-
ing stations alleged to belong to the com-
panies respectively. As there was no
answer, and the bills i^ere considered
upon application for injunction, and mo-
tion to dismiss, their allegations must be
taken to be true.
Plaintiffs are engaged in the business
of buying and selling gasolene and other
petroleum products. The bills state that
they purchase gasolene in the states of
Colorado, California, Oklahoma, Texas,
and Kansas, and ship it into the state of
New Mexico, there to be sold and de
livered. The bills describe two classes of
business : first, that they purchase in the
states mentioned, or in some one of said
states, gasolene, and ship it in tank cars
from the state in which purchased into
the state of New Mexico, and there, ac-
cording to their custom and the ordinary
method in the conduct of their business,
sell in tank cars the whole of the con-
tents thereof to a single customer, be-
fore the package or packages in whidi
the gasolene was shipped have been
broken. In the usual and regular course
of their business they purchase gasolene
in one of the states, other than the state
of New Mexico, and ship it, so purchased,
from that state, in barrels and packages
containing not less than two 5-gailoQ
cans, into the state of New Mexico, and
there, in the usual and ordinary course of
their business, without breaking the bar-
rels and packages containing the cansr
it is their custom to sell the gasolene in
the original packages and barrels. Tbt
f 52 V. S.
1019.
CAMERON V. UNITED STATES.
448-450
\^
gasolene is sold and delivered to the
customers in precisely the same form
and condition as when received in the
state of New Mexico; that this man*
aer of sale makes the plaintiffs dis-
tributers of gasolene as the term is
defined in the statute, and they are
required to pay the sum of $50 per an-
num for each of their stations [449] as
an annual license tax for purchasing,
shipping, and selling gasolene as afore-
said.
A second method of dealing in gasolene
18 described in the bills: That the gaso-
lene shipped to the plaintiff from the
other states, as aforesaid, is in tank cars,
and plaintiff, or plaintiffs, sell such gaso-
lene from such tank cars, barrds, and
packages in such quantities as the pur-
chaser requires.
As to the gasolene brought into the
state in the tank cars, or in the original
Sackages, and so sold, we are unable to
Lseover any difference in plan of im-
portation and sale between the instant
case and that before us in Standard Oil
Co. V. Graves, 249 U. S. 389, 63 L. ed.
662, 39 Sup. Ct. Rep. 320, in which we
held that a tax, which was in effect a
privilege tax, as is the one under consid-
eration, providing for a levy of fees in
excess of the cost of inspection, amounted
to a direct burden on interstate com-
merce. In that case we reaffirmed what
had often been adjudicated heretofore in
this court, that the direct and necessary
effect of such legislation was to impose a
burden upon interstate commerce; that
under the Federal Constitution the im-
porter of such products from another
state into his own state, for sale in the
original packages, had a right to sell the
same in such packages without being
taxed for the privilege by taxation of
the sort here involved. Upon this branch
of the case we deem it only necessary
to refer to that case, and the cases there-
in cited, as establishing the propositibn
that the license tax upon the sale of
gasolene brought into the state in tank
cars, or original packages, and thus sold,
ia t>eyond the taxing power of the state.
The plaintiffs state in the bills that
their business in part consists in selling
gasolene in retail in quantities to suit
purchasers. A business of this sort, al-
though the gasolene was brought into the
state in interstate conuneroe, is properly
taxable by the laws of the state.
Much is made of the fact that New
Mexico does not produoe gasolene, and all
of it' that is dealt in within that [450]
state must be brought in from other
•4 L. edi
{ states. But, so long as there is no dis-
crimination against the products of
another state, and none is shown from
the mere fact that the gasolene is pro-
duced in another state, the gasolene thus .
stored and dealt in is not beyond the
taxing power of the state. Wagner v.
Covington, decided December 8, 1919
[251 U. S. 95, ante, 157, 40 Sup. Ct. ^ep.
93], and the cases from this court cited
therein.
Sales of the class last mentioned would
be a subject of taxation within the legiti-
mate power of the state. But from the
averments of the bills it is impossible to
determine the relative importance of this
part of the business as compared with
that which is nontaxable, and at this
preliminary stage of the cases we will
not go into the question whether the act
is separable, and capable of being sus-
tained so far as it imposes a tax upon
business legitimately taxable. That
question may be reserved for the final
hearing. The District Court did not err
in granting the temporary injunctions,
and its orders are af&rmed.
RALPH H. CAMERON et al., Appts.,
V.
UNITED STATES.
(See S. a Reporter's ed. 450-465.)
Public lands ^ monnmeat reserve —
Grand Canyon.
1. The Grand Canyon of the Colorado
could be created as a monument reserve by
the President under the power conferred
upon him by the Act of June 8, 1906, to
establish reserves embracing objects of his-
toric or scientific interest.
[For other cases, see Public Lanx^n, I. a. In
Digest Sup. Ct. 1908.]
Mines — lode location — discovery.
2. To make a lode mining claim valid,
or to invest the locator with a right to pos-
session, it is essential that the lands be
mineral in character, and that there be an
adequate mineral discovery within the lim-
its of the claim as located.
[For other cases, see Mines, I. b, in Digest
Sup. Ct. 1908.1
Public lands — withdrawal for monu-
ment reserve — saving clanse •• lode
mining claim r- discovery.
3. To bring a lode mining claim with-
in the savinff clause in the withdrawal of
public lands lor a monument reserve, under
the Act of June 8, 1906, in respect of any
"valid" mining claim theretofore acquired,
Note. — ^As to loetttion of mining claim
see note to Dwinnell v. Dyer, 7 L.R.A.
(N.S.) 763.
es9
44U-448
SUPREME COURT OF TILE UNITED STATES.
Oct. Teem,
bills of complaint. The temporary in-
junction was granted; and a direct ap-
peal taken to this court
The provisions of the act, so far as
necessary to be consideredi define a dis-
tributer of gasolene as meaning ''every
person, corporation, firm, copartnership,
and association who sells gasolene from
tank cars, receiving tanks, or stations, or
in or from tanks, barrels, or packages
not purchased from a licensed distributer
of gasolene in this state." A retail deal-
er is defined as meaning: ''A person
other than a distributer of gasolene who
sells gasolene in quantities of 50 gallons
or less." Every distributer is required to
pay an annual license tax of $50 for each
distributing station, or place of business,
and agency. Every retail dealer is re-
quired to pay an annual license tax of $5
for every place of business or agency.
An excise tax is^imposed upon the sale
or use of gasolene sold or- used in the
state after July 1, 1919; such tax to be
2 cents per gallon on all gasolene so sold
or used. Any distributer or dealer who
shall fail to make return or statement, as
required in the act, or shall refuse, neg-
lect, or fail to pay the tax upon all
jsales or use of gasolene, or who shall
make any false return or statement, or
shall knowingly sell, distribute, or use
any gasolene without the tax upon the
sale or' use thereof [447] having been
paid, as provided in the act, shall be
deemed guilty of a misdemeanor, and
punished by a fine and forfeiture of his
license. It is made unlawful for any
person (except tourists or travelers
to the extent provided in the act)
to use any gasolene not purchased
from a licensed distributer or retail
dealer without paying t)ie tax of 2
cents per gallon. Inspectors are pro-
vided for for each of the eight judicial
districts of the state, who are required
to see that the provisions of the act are
enforced, and privileged to examine b»oks
and accounts, of distributers and retail
dealers, or warehousemen or others re-
ceiving and storing gasolene, atid of rail-
road and transportation companies, re-
lating to purchases, receipts, shipments,
or sales of gasolene; their salaries are
provided, and salaries and expense bills
are to be paid out of the state road fund.
Any person who -shaU engage or continue
in the business of selling gasolene with-
out a license, or after such license has
been forfeited, or shall fail to render any
statement, or make any false statement
therein, or \^o shall violate any provi-
sion of the act the punishment for which
has not been theretofore provided, shall
be deemed guilty of a misdemeanor, and
upon conviction shall be punished by a
fine or imprisonment, or both. The state
treasurer is required to set aside from
the license fees and taxes collected under
the provisions of the act a sufficient sum
to pay the salaries and traveling expenses
of the inspectors out of the money re-
ceived from such collections, and to place
the balance to the credit of the state road
fund, to be used for the construction, im-
provement, and maintenance of public
highways.
It is evident from the provisions of the
act thus stated that it is not an inspec-
tion act, merely; indeed, the inspectors
do not seem to be required to make any
inspection beyond seeing that the provi-
sions of the act are enforced, and the ex-
cess of the salaries and fees of the in-
spectors is to be used in making roads
within the state. Ckmsidering [£l8] its
provisions and the effect of the act, it
is a tax upon the privilege of dealing in
gasolene in the state of New Mexico.
The bills in the three cases are identi-
cal except as to the number of distribut-
ing stations alleged to belong to the com-
panies respectively. As there was no
answer, and the bills i^ere considered
upon application for injunction, and mo-
tion to dismiss, their allegations must be
taken to be true.
Plaintiffs are engaged in the business
of buying and selling gasolene and oth^
petroleum products. The bills state tha^
they purchase gasolene in the states of
Colorado, California, Oklahoma, Texas,
and Kansas, and ship it into the state of
New Mexico, there to be sold and de-
livered. The bills deseribe two classes of
business : first, that they purchase in the
states mentioned, or in some one of said
states, gasolene, and ship it in tank cars
from the state in which purchased into
the state of New Mexico, and there, ac-
cording to their custom and the ordinary
method in the conduct of their business,
sell in tank cars the whole of the con-
tents thereof to a single customer, be-
fore the package or packages in which
the gasolene was shipped have been
broken. In the usual and regular course
of their business they purchase gasolene
in one of the states, other than the state
of New Mexico, and ship it, so purchased,
irom that state, in barrels and packages
containing not less than two 5-galldn
cans, into the state of New Mexico, and
there, in the usual and ordinary course of
their business, without breaking the bar-
rels and packages containing the cans,
it is their custom to sell the gasolene in
the orig^al packages and barrels. The
252 U. S.
1019.
CAMERON V. UNITED STATES.
448-450
gasolene is sold and delivered to the
customers in precisely the same form
and condition as when received in the
state of New Mexico; that this man-
ner of sale makes the plaintifts dis-
tributers of gasolene as the term is
defined in the statute, and they are
required to pay the sum of $50 per an-
num for each of their stations [449] as
an annual license tax for purcbasongi
shipping, and selling gasolene as afore-
said.
A second method of dealing in gasol^ie
is described in the bills : That the gaso-
lene shipped to the plaintiff from the
other states, as aforesaid, is in tank cars,
and plaintiff, or plaintiffs, sell such gaso-
lene from such tank cars, barrds, and
packages in such quantities as the pur-
chaser requires.
As to the gasolene brought into the
state in the tank cars, or in the original
packages, and so sold, we are unable to
discover any difference in plan of im-
portation and sale between the instant
case and that before us in Standard Oil
Co. V. Graves, 249 U. S. 389, 63 L. ed.
662, 39 Sup. Ct. Rep. 32a, in which we
held that a tax, which was in effect a
privilege tax, as is the one under consid-
eration, providing for a levy of fees in
excess of the cost of inspection, amounted
to a direct burden on interstate com-
merce. In that case we reaflftrmed what
had often been adjudicated heretofore in
this court, that the direct and necessary
effect of such legislation was to impose a
burden upon interstate commerce; that
under the Federal Constitution the im-
porter of such products from another
state into his own state, for sale in the
original packages, had a right to sell the
same in such packages without being
taxed for the privilege by taxation of
the sort here involved. Upon this branch
of the case we deem it only necessary
to refer to that case, and the cases there-
in cited, as establishing the propositibn
that the license tax upon the sale of
gasolene brought into the state in tank
cars, or original packages, and thus sold,
ia t)eyond the taxing power of the state.
The plaintiffs state in the bills that
their business in part consists in selling
gasolene in retail in quantities to suit
purchasers. A business of this sort, al-
though the gasolene was brought into the
state in interstate commerce, is properly
tisoable by the laws of the state.
Much is made of the fact that New
Mexico does not produce gasolene, and all
of it that is dealt in within that [450]
state must be brought in from other
•4 L. edt
states. But, so long as there is no dis-
crimination against the products of
another state, and none is shown from
the mere fact that the gasolene is pro-
duced in another state, the gasolene thus .
stored and dealt in is not beyond the
taxing power of the state. Wagner v.
Covi^on, decided December 8, 1919
[251 U. S. 95, ante, 157, 40 Sup. Ct. Rep.
93], and the cases from this court cited
therein.
Sales of the class last mentioned would
be a subject of taxation within the legiti-
mate power of the state. But from the
averments of the bills it is impossible to
determine the relative importance of this
part of the business as compared with
that which is nontaxable, and at this
preliminary stage of the cases we will
not go into the question whether the act
is separable, and capable of being sus-
tained so far as it imposes a tax upon
business legitimately taxable. That
question may be reserved for the final
hearing. The District Court did not err
in granting the temporary injunctionsy
and its orders are aflrmed.
RALPH H. CAMERON et aL, Appts.,
V.
UNITED STATES.
(See S. a Reporter's ed. 450-465.)
Public lands «- monnmeat reserve — •
Grand Canyon.
1. The Grand Canyon of the Colorado
could be created as a monument reserve by
the President under the power conferred
upon him by the Act of June 8, 1906, to
establish reserves embracing objects of his-
toric or scientific interest.
[For other cases, see PubUc lAnds^ L a. In
Digest Sup. Ct. 1908.]
Mines * lode location — discovery.
2. To make a lode mining claim valid,
or to invest tiie locator with a right to pos-
session, it is essential that the lands be
mineral in character, and that there be an
adequate mineral discovery within the lim-
its of the claim as located.
[For other cases, see Mines, I. b, in Digest
Sup. Ct. 1908.}
Public lands — withdrawal for monu-
ment reserve — saving clause — lode
mining claim — discovery.
3. To bring a lode mining claim with-
in the saving clause in the withdrawal of
public lands for a monument reserve, under
the Act of June 8, 1906, in respect of any
"valid" mining claim theretofore acquired.
Note. — As to loetttion of mining claim
see note to Dwinnell v. Dyer, 7 L.R.A.
(N.S.) 763.
• 59
454, 455
SUPREME COURT OF THE UNITED STATES.
<3cT. Tbim,
the discovery must have preceded the. crea-
tion of that reserve.
[For other cases, see Public Lands, I. e, 3, In
Digest Sup. Ct. 1908.]
Miues — lode location — discovery.
4. T9 support a lode mining location
the discovery should be such as would jus-
tify a person of ordinary prudence in the
further expenditure of his time and means
in an effort to develop a paying mine.
I For other oases, see Mines, I. b,- In Digest
Sup. Ot. 1908.1
Mines — Invalid lode locations — avoid-
ance by liand Department.
5. The Secretary of the Interiw, by
virtue of the general powers conferred bv
U. S. Rev. Stat. §§ 441, 453, 2478, may de-
termine, after proper notice and upon ade-
quate hearing, whether an asserted lode
mining location which has not gone to pat*
ent, imder which the locator is occupying
and using a part of the public reserves, is
a valid claim, and, if found to be invalid,
may declare it void and recognize the rights
of the public.
[For other cases, see Mines, I. b, in IMgest
Sup. Ot. 190S.1
Public lands — judicial review of ac-
tion of liAnd Department — matters
concluded.
6. Whether a part of a public reserve
covered by an unpatented lode mining claim
was mineral, and whether there hi^ been
the requisite discovery, were questions of
fact the decision of which by fhe Secretary
of the Interior was conclusive on the courts,
in tlie absence of fraud or imposition.
[For other cases, see Public Lands, I. h, 2, c,
• in Digest Sop. Ct. 1908.]
[No. 205.3
Argued January 29 and ao, 1920. Decided
April 19, 1920.
APPEAL from the United States Cir-
cuit Court Qf Appeals for the Ninth
Circuit to review a decree which affirmed
a decree of the District Court for the
District of Arizona, enjoining the occu-
pation and use of a part of the Grand
Canyon Forest Reserve under an assert-
ed lode mining claim. Affirmed.
See same case below, 163 C. C. A. 193,
250 Fed. 943.
The facts are stated in the opinion.
Mr. William 0. PrentiBS argued the
cause, and, with Messrs. Robert E. Mor-
rison and Joseph E. MoiTison, filed a
brief for appellants.
Assistant Attorney General Nebeker
argued the cause, and, with Mr. H. L.
Underwood, Special Assistant to the
Attorney General, filed a brief for ap-
pellee.
Mr. Justice Vftn Devantar delivered
the opinion of the court:
This is a suit bv the United States to
«6A
enjoin Ralph H. Cameron and others
from occupying, using- for business pur-
poses, asserting any right to, or inter-
fering with the public use of, a tract of
land in Arizona, approximately 1,500
feet long and 600 feet wide, which Cam-
eron is claiming as a lode mining claim^
and to require the defendants to remove
therefrom certain buildings, filth, and
refuse placed thereon in the course of
its use by them as a livery stable site
and otherwise. In the district court
there was a decree for the United States,
and this was affirmed by the circuit court
of appeals. 163 C. C. A. 193, 250 Fed.
943.
The tract is on the southern rim of
the Grand Canyon of the Colorado, is
immediately adjacent to the railroad
[455] terminal and hotel buildings used
by visitors to the canyon, and embraces
the head of the traiP over which visitors
descend to and ascend from the bottom
of the canyon. Formerly it was public
land and open to acquisition under the
Public Land Laws. But since February
20, 1893, it has been within a public
forest reserve' established and continued
by proclamations of the President under
the Acts of March 3, 1891, § 24, 26 Stat,
at L. 1095, 1103, chap. 561, Comp. Stat. §§
5116, 5121, 8 Fed. Stat. Anno. 2d ed. p.
825, 9 Fed. Stat. Anno. 2d ed. p. 579,
and June 4, 1897, chap. 2, 30 Stat, at L.
34-36, 9 Fed. Stat. Anno. 2d ed. pp. 583,
587, and since January 11, 1908, all but a
minor part of it has been within a monu-
ment reserve^ established by a proclama-
tion of the President under the Act of
June 8, 1906, chap. 3060, 34 Stat, at L.
225, Comp. Stat. § 5278, 8 Fed. Stat.
Anno. 2d ed. p. 1017. The forest reserve
remained effective after the creation of
the monument reserve, but, in so far ^
both embraced the same land, the monu-
ment reserve became the dominant one.
January 11, 1908, 35 Stat, at L. 2175.
The inclusion of the tract in the forest
reserve withdrew it from the operation
of the Public Land Laws, other than the
Mineral Laud Law; and the inclusion
of the major part of it in the monument
reserve withdrew that part from the op-
eration of the Mineral Land Law. but
there was a saving clause in respect of
any "valid" mining claim theretofore ac-
quii^d. The United States still has the
paramount legal title to the tract, and
also has the full beneficial ownership if
iThe Bright Angel Trail.
' ^Originally the Grand Canyon Foreet Re-
serve and now the Tusayan National Forest.
K^a-Ued the Grand Canyon NaUonal
Monument.
2&2 V. S.
ldX9.
CAMERON V. UNITED STATES.
4o5-4."»S
Cameron's asserted mining claim is not
The defendants insist that the monu-
ment reserve should be disregarded on
the ground that there was no authority
for its creation. To this we cannot as-
sent. The act under which the President
proceeded empowered him to establish
re8er\'es embracing "objects of historic
or scientific interest.'' The Grand Can-
yon, as stated in his proclamation, "is an
object of unusual soientiiic interest."
[456] It is the greatest eroded canyon
in the United States, if not in the world,
is oyer a mile in depth, has attracted
wide attention among explorers and
scientists, affords an unexampled field
for geologic study, is regarded as one of
the great natural wonders, and annually
draws to its borders thousands of visit-
ors.
The defendants also insist that in
holding the United States entitled to the
relief sought the courts below gave un-
due effect and weight to decisions of the
Secretary' of the Interior dealing with
Cameron's asserted claim and pronounc-
ing it invalid. Rightly to appreciate and
dispose of this contention requires a fur-
ther statement.
The claim in question is known as the
Cape Horn lode cFaim and was located
by Cameron in 1902, after the creation of
the forest reserve, and before the crea-
tion of the monument reserve. To make
the claim valid, or to invest the locator
with a right to the possession,, it was es-
sential that the land be mineral in char-
acter, and that there be an adequate
mineral discovery within the limits of
the claim as located (Rev. Stat. § 2320,
Comp. Stat. § 4615; 6 Fed. Stat. Anno. 2d
ed. p. 612; Cole v. Ralph, 262 U. S. 28^,
ante, 667, 40 Sup. Ct. Rep. 321) ; and to
bring the claim within the saving clause
in the withdrawal for the monument re-
serve, the discovery must have preceded
the creation of that reserve.
Cameron applied to the Land Depart-
ment for the issue to him of a patent for
the claim, and similarly sought patents
for other claims embracing other por-
tions of the trail into the canyon. A
protest was interposed, charging that the
land was not mineral, that there had
been no supporting mineral discoveries,
and that the claims were located and
used for purposes not contemplated by
the Mineitd Land Law; and the Secre-
tary of the Interior directed that a hear-
ing be had in the local land office to
enable the parties concerned — the pro-
testant, Cameron, and the government — to
produce evidence bearing on the rjnes-
€4 L. ed.
tions thus presented. 35 Land Dec. 495,
36 Land Dec. 66. After due notice the
hearing was had, Cameron fully [457J
participating in it. This was shortly
after tne creation of the monument re-
serve. In due course the evidence was
laid before, the Commissioner of the
General Land Office, and he concluded
therefrom that the claims were not
valuable for mining purposes, and there-
fore were invalid. The matter was then
taken before the Secretary of the In-
terior, and that officer rendered a de-
cision in which, after reviewing the evi-
dence, he said:
'^t is not pretended that the applicant
has as yet actually disclosed any bod}- of
workable ore of commercial value; nor
does the evidence reveal such indica-
tions and conditions as would warrant
the belief or lead to the conclusion that
valuable. deposits are to be found, save,
apparently, in the case of the Magician
lode claim. With that possible excep-
tion, the probabilities of such deposits
occurring are no stronger or more evi-
dent at the present time than upon the
day the claims were located. The evi-
dence wholly fails to show that there are
veins or lodes carrying valuable and
workable deposits of gold, silver, or cop-
per, or any other minerals within the lim-
its of the locations. Sufficient time has
elapsed since these claims were located
for a fair demonstration of their mineral
possibilities."
And further:
^^It follows from the foregoing that
each of Cameron's applications for pat-
ent . . . must be rejected and can-
celed, and it is so ordered.
'^It is the further result of the evi-
dence, and the Department holds, that
the several mining locations, with the ap-
parent exception of the Magician lode
claim, do not stand upon such disclos-
ures or indications of valuable mineral
in rock in place therein, prior to the es-
tablishment of the National Monument,
and the withdrawal of the lands therein
embraced, as to bring them within the
saving ckuse of the Executive Order.
The right of Cameron to continue pos-
session or exploration of those claims
[458] is hereby denied, and the land
covered thereby is declared to be and
remain part of the Grand Canyon Na-
tional Monument, as if such locations
had not been attempted."
Directions were given for a further
hearing respecting the Magician claim,
but this is of no moment here.
That decision was adhered to on a mo-
tion for review, and in a later decision
aai
458-460
SUPREME COURT OF THE UNITED STATES.
Oct. Tesm,
denying a renewed application by Cam-
eron for a patent for the claim here in
question the Secretary said:
''As the result of a hearing had after
the creation of the National Monument,
the Department expressly fbund that no
discovery of mineral had been made
within the limits of the Cape Horn loca-
tion, and that there was no evidence be-
fore the Department showing the exist-
ence of any valuable deposits or any min-
erals within the limits of the location.
. . . So far as the portion of the
claim included within the exterior limits
of the National Monument is eoncemed,
no discovery which would defeat the
said monument can have been made since
the date of the previous hearing in this
case, nor do I find that one is claimed
to have been made since the former de-
cision in any part of the alleged loca-
tion."
After and notwithstanding these de-
cisions, Cameron asserted an exclusive
right to the possession and enjoyment of
the tract, as if the lode claim were valid;
and he and his codefendants, who were
acting for or under him, continued to oc-
cupy and use the ground for livery and
other business purposes, and in that and
other ways obstructed its use by the pub-
lic as a part of the reserves. In this
situation, and to put an end to what the
government deemed a continuing trespass,
purpresture, and public nuisance, the
present suit was brought.
The courts below ruled that the deci-
sions of the Secretary of the Interior
should be taken as conclusively determin-
ing the nonmineral character of the land
and the absence of an adequate mineral
discovery, and also as [459] showing
that the matter before the Secretary was
not merely the application for a patent,
but also the status of the claim, — whether
it was valid or was wanting in essential
elements of validity, and whether it en-
titled Cameron to the use of the land as
against the public and the government.
As before statod, the defendants com-
plain of that ruling. The objections
urged agiainst it are, first, that the Sec-
retary's decisions show that he proceeded
upon a misconception of what, under the
law, constitutes an adequate mineral dis-
covery, and, second, that although the-
Secretary had ample authority to deter-
mine whether Cameron was entitled to a
patent, he was without authority to de-
termine the character of the land or the
question of discovery, or to pronounee
the claim invalid.
As to the first objection, little need be
said. A reading of each decision in its
662
entirety, and not merely the excerpts to
which the defendants invite attention,
makes it plain that the Secretary pro-
ceeded upon the theory that to support
a mining location the discovery should
be such as would justify a person of
ordinary prudence in the further ex-
penditure of his time and means in an
effort to develop a paying mine. That
is not a novel or mistaken test, but is
one which the Land Department long
has applied and this eourt has approved.
Chrisman .v. MiUer, 197 U. S. 313, 322,
49 L. ed. 770, 773, 26 Sup. Ct. Rep. 468.
• The second objection rests on the
naked proposition that the Secretary
was without power to determine wheth-
er the asserted lode claim, under whidi
Cameron was occupying and using a part
of the res^ves to the exclusion of the
public and the reserve officers, T^as a
valid claim. We say ^aked proposi-
tion," because it is not objected that
Cameron did not have a full and fair
hearing, or that any fraud was praetised
against him, but only tbat the Secretary
was without any power of decision in the
matter. In our opinion the proposition
is not tenable.
By general statutory provisions the
execution of the [460] laws regulating
the acquisition of fights in the public
lands and the general care of th^e lands
is confided to the Land Department, as a
special tribunal; and the Secretary of
the Interior, as the head of the Depart-
ment, is .charged with seeing that this
authority is rightly exercised to the end
that valid cliuma may be recognized,
invalid ones eliminatod, and the rights
of the public preserved. Bev. Stat. -§§
441, 453, 2478; United States v. Sehiurs,
102 U. S. 378, 395, 26 L. ed. 167, 171;
Lee V. Johnson, 116 U. S. 48, 52, 20 L.
ed. 570, 571, 6 Sup. Ct Rep. 249; Knight
V. United Land Asso. 142 U. a 161, 177,
181, 36 L. ed. 974, 979, 981, 12 Sup. Ct.
Rep. 258; United States ex rel. Riverside
Oil Co. V. Hitehcock, 190 U. S. 316, 47
L. ed. 1074, 23 Sup. Ct. Rep. 698.
A mining location which has not gone
to patent is of no higher quality and no
more immune from attack and investiga^
tion than are unpatented claims under
the homestead and kindred laws. If
valid, it ^ves to the olaimant certain
exclusive possessory rights, and so do
homestead and desert elainis. But no
right arises from an invalid claim of any
kmd. All nnist conform to the law under
which they are initiated; otherwise they
work an unlawful private appropriation
in derogation of the rights of the public
Of course, the Land Department has
2S2 V. S.
1919.
CAMERON V. UNITED STATES.
4tt0-4ti:i
no power to strike down any claim ar-
bitrarily, but so long as the legal title
remains in the government it does have
power, after proper notice and upon ade<
quate hearing, to determine whether the
claim is valid, and, if it be found invalid,
to declare it null and void* This is well
illustrated in Orchard v. Alexander, 157
U. S. 372, 383, 39 L. ed 737, 741, 15 Sup.
Ct. Rep. 635, where, in giving efiteet to
a decision of the Secretary of the In-
terior, canceling a pre-emption claim
theretofore passed to cash entry, but still
unpatented, this court said : '^The party
who makes proofs, which are accepted
by the local land officers, and pays his
money for the land, has acquired an in-
terest of which he cannot be arbitrarily
dispossessed. His interest is subject to
state taxation. Carroll v. Safford, 3 How.
441, 11 L. ed. 671; Witherspoon v. Dun-
can, 4 Wall. 210, 18 L. ed. 339. ' The
[461] government holds the legal title
in trust for him, and he may not be
dispossessed of his equitable rights
without due process of law. Due
process in such case implies notice and
a hearing. But this does not require
that the hearing must be in the courts,
or forbid an inquiry and determination
in the Land Department." And to the
same effect is Michigan Land & Lumber
Co. V. Bust, 168 U. S. 589, 593, 42 L. ed.
591, 592, 18 Sup. Ct. Eep. 208, where, in
giving effect to a decision of the Secre-
tary -canceling a swamp land selection ^y
the state of Michigan, theretofore ap-
proved, but as yet unpatented, it was
said: ''It is, of course, not pretended
that when an equitable title has passed,
the I^uid Department has power to arbi-
trarily destroy that equitable title. It ht»
jurisdiction, however, after proper notice
to the party claiming such equitable title,
and upon a hearing, to determine the
question whether or not such title has
passed. Cornelius .v. Kessel, 128 U. S.
456, 22 L. ed. 482, 9 Sup. Ct. Bep. 122;
Orchard v. Alexander, 157 U. S. 372, 383,
39 L. ed. 737, 741, 15 Sup. Ct. Rep. 635 ;
Parsons v. Venzke, 164 U. S. 89, 41 L.
ed. 360, 17 Sup. Ct. Rep. 27. In other
words, the power of the Department to
inquire into the extent and validity of
the rights claimed against the govern-
ment does not cease until the legal title
has passed."
True, the Mineral Land Law does not in
itself confer such authority on the Land
Department. Neither does it place the
authority elsewhere. But this does not
mean that the authority does not exist
anywhere, for, in the absence of some
direction to the contrary, the general
64 Ij. ed.
statutory provisions before mentioned
vest it in the Land Department. This is
a necessary conclusion from this court's
decisions. By an Act of August 14,
1848 [9 Stat at L. 323, chap. 177], the
title to public land in Oregon then oc-
cupied as missionary stations, not ex-
ceeding 640 acres in any instance, was
c<NuQrmed to the several religious asso-
ciations maintaining those stations, but
the act made no provision for determin-
ing where the stations were, by whom
they were maintained, or the area occu-
pied. The Land Department proceeded
to a determination of these questions in
the [462] exercise of its general author-
ity, and in Catholic Bishop v. Gibbon,
158 U. S. 155, 166, 167, 39 L. ed.
931, 936, 15 Sup. Ct. Bop. 779, where
that determination was challenged as
to a particular tract, it was said;
''While there may be no specific ref-
erence in the Act of 1848 of ques-
tions arising under this grant to the
Land Department, yet its administra-
tion comes within the scope of the gen-
eral powers vested in that Department.
. . . It may be laid down as a general
rule that, in the absence of some specific
provision to the contrary in respect to
any particular grant of public land, its
administration falls wholly and absolute-
ly within' the jurisdiction of the Com-
missioner of the Ckneral Land Office,
under the supervision of the Secretary
of the Interior. It is not necessary that
with each grant there shall go a direc-
tion that its administration shall be un-
der the authority of the Land Depart-
ment. It falls ikere unless there is ex-
press direction to the contrary." And
in Cosmos Exploration Co. v. Gray Eagle
Oil Co. 190 U. S. 301, 308, 47 L. ed.
1064, 1070, 23 Sup. Ct. Bep. 692, 24
Sup. Ct. Bep. 860, where a claimant as-
serting a full equitable title under the
lieu-land provision of the Forest Beserve
Act of 1897 questioned the authority of
the Land Department to inquire into and
pass on the validity of his claim, and
sought to have it recognized and en-
forced by a suit in equity, it was said:
'There can be, as we think, no doubt that
the general administration of the Forest
Beserve Act^ and also the determination
of the various questions which may arise
thereunder before the issuing of any pat-
ent for the selected lands, are vested in
the Land Department. The Statute of
1897 does not in terms refer any question
that might arise under it to that Depart-
ment, but the subject-matter of that act
relates to the relinquishment of land in
the various forest reservations to the
663
462-465
SLPliEME COURT OF THE UNITED STATES.
Oct. Tebm,
United States, and to the selection of
lands, in lieu thereof, from the public
lands of the United States, and the ad-
ministration of the act is to be governed
by the general system adopted by the
United States for the administration of
[463] the laws r^^rding its public
lands. Unless taken away by some
affirmative provision of law, the Liand
Department has jurisdiction over the
subject." There is in the Mineral
Land Law a provision referring to
the courts controversies between rival
mineral claimants arising out of con-
flicting mining locations (Rev. Stat.
§§ 2325, 2326, Comp. Stat. §§ 4622, 4623,
6 Fed. Stat. Anno. 2d ed. pp. 555, 563),
but it does not reach or affect other con-
troversies, and so is without present
bearing. Cfeede & C. C. Min. & Mill. Co.
V. Uinta Tunnel Min. & Trans[). Co. 196
U. S. 337, 356, et seq. 49 L. ed. 501, 511,
25 Sup. Ct. Rep. 266.
It is rightly conceded that in the case
of a coi^ict between a mining location
and a homestead claim, the Department
has authority to inquire into and deter-
mine the validity of both; and, if the
mining location be found invalid and
the homestead claim valid, to declare
the former null and void and to give
full effect to the latter; and yet it is
insisted that the iDepartment is without
authority, on a complaint preferred in
the public interest, to inquire into and
determine the validity of a mining loca-
tion, and, if it be found invalid, to de-
clare it of no effect and recognize the
rights of the public. We think the at-
tempted distinction is not sound. It has
no support in the terms of the Mineral
Land Law, is not consistent with the
general statutory provisions before men-
tioned, and, if upheld, would encourage
the use of merely colorable mining loca-
tions in the wrongful private appropria-
tion of lands belonging to the public.
' Instances in which this power has been
exercised in respect of mining locations
are shown in the Yard Case, 38 Land
Dec. 59, and the Nichols Case (on re-
hearing), 46 Land Dec. 20; instances in
which its exercise has received judicial
sanction are found in Lane v. Cameron,
45 App. D. C. 404, and Cameron v. Bass,
19 Ariz. 246, 168 Pac. 645; and an in-
stance in ' which its existence received
substantial, if not decisive, recognition
bv this court, is found in Clipper ^lin.
Co. V. Eli Miu. & Land Co. 194 U. S.
604
220, 223, 234, 48 L. ed. 044, 948, 953, 24
Sup. Ct, Rep. 632.
[464] The argument is advanced that
the Department necessarily is without
authority to pronounce a mining locatiou
invalid, because it has within itself no
means of executing its decision, such as
dispossessing the locator. But this is
not a proper test of the existence of the
authority, for the Department is without
the means of executing most of its deci-
sions in the sense suggested. When it
issues a patent it has no means of put-
ting the grantee in possession, and yet
its authority to issue patents is beyond
question. When it awards a tract to one
of two rival homestead claimants it has
no means of putting the successful one
in possession or the other one out, and
yet its authority to determine which has
the better claim is settled by repeated
decisions of this court. And a similar
situation exists in respect of most of
the claims or controversies on which the
Department must pass in r^r^ar course.
Its province is that of determining qaea-
tions of fact and rig^t under the Publie
Land Laws, of recognising or disapprov-
ing claims according to their merits, and
of gpranting or refusing patents as the
law maygive sanction for the one or the
other, W^en there is occasion to enforce
its decisions in the sense suggested, this
is done through suits instituted by the
successful claimants or by the govern-
ment, as the one or the other may have
the requisite interest.
Whether the tract covered by Camer-
on's location was mineral and whether
there had been the requisite discovery
were questions of fact, the decision of
which by the Secretary of the Interior
was conclusive in the absence of fraud
or imposition, and none was claimed.
Catholic Bishop v. Gibbon, supra; Bur-
fenning v. Chicago, St. P. M. ft 0. R. Co.
163 U. S. 321, 323. 41 L. ed. 175, 176, 16
Sup. Ct. Rep. 1018. Accepting the Sec-
retary's findings that the tract was not
mineral and that there had been no dis-
covery, it is plain that the location was
invalid, as was declared by the Secre-
tary and held by the courts below.
[465] Of other complaints made by
the defendants, it suffices to say that in
our opinion, the record shows that the
government was entitled to the relief
sought and awarded.
Decree af&rmed.
252 U. .V.
1919.
UMTKD STATES v. SIMPSON.
466
UNITED STATES, Plff. in Err.,
V.
EVERETT L. SIMPSON.
(See S. C. Reporter's ed. 465-468.)
Commerce — transportation of intoxi-
cating liquors — Federal reencilations
— carriage by private antomobile —
personal use.
The transportation by the owner in
his o^n automobile of intoxicating liquors
for his personal use is comprehended by
the prohibition of the Reed Amendment of
March 3, 1917, § 5, against the transporta-
tion of intoxicating liquors in interstate
c<Mlimerce, except for scientific, sacramental,
medicinal, and mechanical purposes, into
any state the laws of which prohibit the
manufacture or sale therein of intoxicating
liquors for beverage purposes.
[For other cases, sec Commerce, I. b; III. c.
In Digest Sup. Ct. 1908.]
[No. 444.1
Submitted March 5, 1920. Decided April
19, 1920.
IN ERROR to the District Court of the
United States for the District of Col-
orado to review a judgment sustaining a
demurrer to an indictment for transport-
ing intoxicating liquors into a prohibi-
tion state. Reversed.
See same case below, 257 Fed. 860.
The facts are stated in the opinion.
Assistant Attorney General Frierson
submitted the . cause for plaintiff in
error :
This case is clearly ruled by United
States V. HiU, 248 U. S. 420, 63 L. ed.
337, 39 Sup. Ct. Rep. 143.
Note. — On transportation by private
means as affecting character of transac-
tion as interstate commerce — see note to
this case as reported in 10 A.L.R. 512.
On the power of Congress to reg-
ulate eommerce — see notes to State ex
rel. Corwin v. Indiana & O. Oil, Gas
& Min. Co. 6 L.R.A. 579; Bullard v.
Northern P. R. Co. 11 L.R.A. 246; Re
Wilson, 12 L.R.A. 624; Gibbons v.
Ogden, 6 L. ed. U. S. 23; Brown v. Mary-
land, 6 L. ed. U. S. 678; Gloucester
Ferry Co. v. Pennsylvania, 29 L. ed. U.
S. 158; Ratterman v. Western U. Teleg.
Co. 32 L. ed. U. S. 229 ; Harmon v. Chi-
cago, 37 L. ed. U. S. 216; and Cleveland,
C. C. & St. L. R. (fo, V. Backus, 38 L.
ed. U. S. 1041.
On power to prohibit the use of intox-
icating liquors irrespective of any inten-
tion to traffic in them — see not^ to State
ex reL Frances v. Moran, 2 A.L.R. 1085.
64 Li, ed.
Transportation, in order to constitute
interstate commerce, need not be by
common carrier, and may consist of the
transportation by one of his own goods.
Hannibal & St. J. R. Co. v. Husen, 95 U.
S. 465, 469, 470, '24 L. ed. 527, 529, 530;
Kirmeyer v. Kansas, 236 U. S, 568, 572,
59 L. ed, 721, 724, 35 Sup. Ct. Rep. 419,
Kelley v. Rhoads, 188 U. S. 1, 47 L. ed.
359, 23 Sup. Ct. Rep. 259; Pipe Line
Cases (United States v. Ohio Oil Co.)
234 U. S. 548, 560, 58 L. ed. 1459, 1470,
34 Snp. Ct. Rep. 956; Rearick v. Penn-
sylvania, 203 U. S. 507, 512, 51 L. ed.
295, 297, 27 Sup. Ct. Rep. 159.
No counsel appeared for defendant in
error.
Mr. Justice Van Devanter delivered
the opinion of the court:
This is an indictment under § 5 of the
Act of March 3, 1917, known as the
Reed Amendment, chap. 162. 39 Stat,
at L. 1069, Comp. Stat. § 8739a, Fed.
Stat. Anno. Snpp. 1918, p. 394, which
declares that ''whoever shall . . .
cause intoxicating liquors to be trans-
ported in interstate commerce, except
for scientific, sacramental, medicinal and
mechanical purposes, into any state
. . . the laws of which . , . pro-
hibit the manufacture or sale therein of
intoxicating liquors for beverage pur-
poses shall- be punished," etc. ; and the
question for decision is whether the stat-
ute was applicable where the liquor — 5
quarts of whisky — was transported by its
owner in his own automobile, and was
for his personal use, and not for an ex-
cepted purpose. The district court an-
swered the question in the negative, and
on that ground sustained a demurrer to
the third count, which is all that is here
in question, and discharged the accused.
257 Fed. 860.
We think the question should have
been answered the other way. The evil
against which the statute was directed
was the introduction of intoxicating
liquor into a prohibition state from an-
other state for purposes other than those
specially excepted, — a matter which Con-
gress could, and the states could not,
control. Danciger v. Cooley, 248 U. S.
319, 323, 63 L. ed. 266, 268, 39 Sup. Ct.
Rep. 119. The introduction could be
effected only through transportation, and
whether this took one form or another,
it was transportation in interstate com-
merce. Kelley v. Rhoads, 188 U. S. 1, 47
L. ed. 359, 23 Sup. Ct. Rep. 259 ; United
States V. Chavez, 228 U. S. 525, 532, 533,
57 L. ed. 950, 952, 953, 33 Sup. Ct. Rep.
€6.5
4t>6-463
SUPKEME COUPvT OF THE UNITED STATES.
Oct. Teem,
595; United States v. Mesa, 228 U. S.
533, 57 L. ed. 953, 33 Sup. Ct. Rep. 597;
Pipe Line Cases (United States v. Ohio
Oil Co.) 234 U. S. 548, 560, 58 L. ed.
1459, 1470, 34 Sup. Ct. Rep. 956; United
States V. Hill, 248 U. S. 420, 63 L. ed.
337, 39 Sup. Ct. Rep. 143. The statute
makes no distinction between different
modes of transportation, and we think it
was intended to include them aU, that
being [467] the natural import of its
words. Had Congress intended to confine
it to transportation by railroads and oth-
er common carriers it well may be as-
sumed that other words appropriate to
the expression of that intention would
ha^;^ been used. And it also may be as-
sumed that Congress foresaw that if the
statute were thus oonfined it could be so
readily and extensively evaded by the
use of automobiles, autotrucks, and other
private vehicles, that it would not be of
much practical benefit. See Kirmeyer v.
Kansas, 236 U. S. 568, 59 L. ed. 721, 35
Sup. Ct Rep. 419. At all events, we
perceive no reason for rejecting the nat-
ural import of its words, and holding
that it was confined to transportation for
hire or by public carriers.
The published decisions show that a
number of the Federal courts have re-
garded the statute as embracing trans-
portation by automobile, and have ap-
plied it in cases where the transporta-
tion was personal and private, as here.
Ex parte Westbrook, 250 Fed. 636 ; Mal-
colm V. United States, 167 C. C. A. 533,
256 Fed. 363; Jones v. United States,
170 C. C. A. 172,* 259 Fed. 104; Berry-
man V. United States, 170 C. C* A. 276,
259 Fed. 208.
That the liquor was intended for the
personal use of the person transporting
it is not material, so long as it was not
for any of the purposes specially except-
ed. This was settled in XJnited States v.
Hill, 248 U. S. 420, 63 L. ed. 337, 39
Sup. Ct Rep. 143.
We conclude that the District Court
erred in construing the statute and sus-
taining the demurrer."
Judgment reversed.
Mr. Justice Clarke, dissenting:
The indictment in this case charges that
the defendant, being in the city of Chey-
enne, Wyoming, "bought, paid for, and
owned" 5 quarts of whis^, and there-
666
after in his own automobile, driven by
himself, transported it into the city of
Denver, Colorado, intending to there de-
vote it to his own personal use. Colorado
prohibited the manufacture [468] and
sale ther3in of intoxicating liquor for
beverage purposes. The oourt decides
that this liquor was unlawfully '* trans-
ported in interstate- commeree" from
Wyoming into Colorado, within the
meaning of the Act of Congress of
March 3, 1917 (39 Stat, at L. 1069, chap.
162, Comp. Stat. § 8739a).
With this conclusion I cannot agree.
By early (Qibbons v. Ogden, 9 Wheat.
1, 193, 6 L. ed. 23, 69) and by reeent
decisions (Second Employers' Liability
Cases (Mondou v. New York, N. H. &
H. R. Co.) 223 U. S. 1, 46, 56 L, ed. 327,
344, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep.
169, 1 N. C. C. A. 875) of this oourt and
by the latest authoritative dictionaries,
interstate commerce, in the constitution-
al sense, is defined to mean commer-
cial— business — ^intercourse, including the
transportation of passengers and prop-
erty, carried on between the inhabitants
of two or more of the United States, —
especially (we are dealing here with prop-
erty) the exchange, bujdng or selling of
commodities, of merchandise, on a large
scale, between the inhabitants of dif-
ferent states. The liquor involved in this
case, after it was purchased, and wfailo
it was being held for the personal use of
the defendant, was certainly withdrawn
from trade or commerce as thus defined.
— it was no longer in the channels of
commerce, of trade, or of business of
any kind, — and when it was carried by
its owner, for his personal use, across a
state line, in my judgment it was not
moved or transported in interstate com-
merce, within the scope of the aet of
Congress relied upon, or of any legisla-
tion which Congress had the constitu-
tional power to enact with respect to it
at the time the Reed Amendment was
approved. The grant of power to Con-
gress is over commerce,— not over iso-
lated movements of small amounts of
private property, by private persons, for
their personal use.
I think the Hill Case, 248 U. S. 420, 63
L. ed. 337, 39 Sup. Ct. Rep. 143, was
wrongly decided, and that the judgment
of the district court in this case should
be affirmed.
252 V. S.
1919.
HOUSTON 1^ ORMES.
409
[4691 DAVID F. HOUSTOK»l SeoreUry of
the Treasury, and John Burke, Treasurer
of the United States, Appta.,
V. • ,
D£ FOREST L. ORMES, Administrator of
the Estate of Belva A. Lockwopd, De-
ceased.
(See 8. 0. Reporter's ed. 469-474.)
United States — Immuuity- from suit —
suit against Fedetral officer^.
1. A suit against Treasury officials to
establish an equitable lien for attorney's
fees upon a fund in the United States
Treasury appropriated by Congress for pay-
ment to a specified person, also made a
party defendant, in satisfaction of a find-
ing of the court of claims, is not one against
the United States, since the suit is one to
compel the performance of a ministerial
duty in which the party complainant has a
particular interest.
(For other cases, see United States, lY. b. In
Digest Sup. Ct. 190S.]
Claims — agatnst United States — regn*
latingr assignment •— effect of suit to
compel payment.
2. The restrictions imposed by U. S.
Rev. Stat '§ 3477, upcm the assignment of
claims against the United States, form no
obstacle to a suit against Treasury officials
to establish an equitable lien for attorney's
fees upon a fund in the United States Treas-
ury appropriated by Congress for payment
to a specified person, also made a party
defendant, in satisfaction of a finding* of
the court of claims.
(For otiier cases, see Claims, !« c. In Digest
Sup. Ct. 1908.]
1 Motion to substitute as one of the ap-
pellants Carter Glass, Secretary of the
Treasury, in place of William G. McAdoo,
former Secretary of the Treasury, granted
October 13, 1919, on motion of counsel for
the apjpellants.
Motion to substitute as one of the appel-
lants David F. Houston, present Secretary
of the Treasury, in the place of Carter
Glass, former Secretary of the Treasury,
granted March 1, 1920, on motion of coun-
eel for the appellants.
.J, i_ m H^^w jj-i-a ■■■■ I II iiiBiiwwiiiiBi I iii-iTT ~--
Note. — On immunity of the United
States from suit — see note to Beers v.
Arkansas, 15 L. ed. U. S. 991.
On suit against Federal officer as
snit against United States — see notes to
Wells V. Roper, 62 L. ed. U. S. 756, and
Louisiana v. Garfield, 53 L. ed. U. S. 92.
As to validity of assignment of claims
'against United States — see note to
I^pes V. United States, 2 L.B.A. 571.
On nower of courts to enforce minis-
terial duties of heads of departments^-
see note to Cooke v. Iverson, 52 L.R.A.
(N.S.) 415.
«I4 L. cil.
Injunction — against Federal officials —
compelling ministerial duty — re-
ceivers.
3. A court of equity may grant relief
against Treasury officials by way of manda-
tory injunction or a receivership to one
who has an equitable right in a fund ap-
propriated by Congress to pay a specified
person, conformably to a finding of the
court of claims, where such person is made
a party to as to bind her, and so that a
decree may afford a proper acquittance to
the government.
[For other cases, see Injunction, I. j ; Re-
ceivers, I. in Digest Sup. Ct. 1908.] .
OomrtB — of District of Colombia — Jn-
riadioUon — suit against Federal of-
ficers — waiver ^- appearance by real*
party in interest.
4. Treasury officials joined with a non-
resident claimant as defendants in a suit to
establish an equitable lien for attorney's
fees upon a fund in the United States
Treasury appropriated by Congress to pay
claimant, conformably to a iindine of the
court of claims, may not successfully chal-
lenge the jurisdiction of the District of
Columbia courts on the groimd that debts
due from the United States have no situs
in the District^ where claimant voluntarily
appeared and answered the bill without ob*
jection, since the decree will bind her, and
constitute a good acquittance to the gov-
ernment.
[For other cases, see Courts, IV.; Appearance,
II. in Digest Sap. Ct 1908.]
[No. 86.1
Argued January 23, 1920. Decided April
19, 1920.
APPEAL from the Court of Appeals
of the District of Columbia to re-
view a decree which af&rmed a decree of
the Supreme Court of the District, grant-
ing equitable relief against TJreasury of-
ficials by way of mandatory injunction
and receivership to one adjudged to have
an equitable r^t in a fund appropri-
ated oy Congress to pay an award of
the Court of Claims. Affirmed.
See same case below, 47 App. D. C.
364.
The facts are stated in the opinion.
Solicitor General EjJig- argued the
cause, and, with Messrs. A. F. Myers
and Morgan H. Beach, filed a brief for
appellants :
The Secretary of the Treasury and the
Treasurer of the United States hold the
fond in question solely in their ofi&cial
capacity. The suit is, therefore, in ef-
fect a suit against the United States.
Philadelphia Co. v. Stimson, 223 U. S.
605, 620, 56 L. ed. 570, 576, 32 Sup. Ct.
Rep. 340; Wells v. Roper, 246 U. S. 335,
337, 62 L. ed. 755, 760, 38 Sup. Ct. Rep.
667
SUPREME COURT 0¥ THE UNITED STATES.
Oct. Tebu,
317; United States ex rel. Parish v.
MacVeagh, 214 U. S. 124, 53 L. ed. 936,
29 Sup. Ct. Rep. 556; Belknap v. Schild,
161 U. S. 10, 40 L. ed. 599, 16 Sup. Ct.
Rep. 443; United States ex rel. Gold-
berg y. Daniels, 231 U. S. 218, 58 L. ed.
191, 34 Sup. Ct. Rep. 84; Morgan v.
Rust, 100 Ga. 346, 28 8, E. 419.
Debts due from the United States have
no situs at the seat of government.
Vaughan v. Northup, 15 Pet. 1, 10 L.
ed. 639; Wyman v. Halstead (Wyman v.
Unit^ States) 109 U. S. 654, 27 L. ed.
1068, 3 Sup. Ct. Rep. 417; Borcherling v.
United States, 35 Ct. CI. 311, 186 U. S.
223, 46 L. ed. 884, 22 Sup. Ct. Rep. 607.
Miss Mary O'Toole argued the cause
and filed a brief for appellee:
The suit is not one against the United
States.
Re Ayers, 123 U. S. 443, 31 L. ed. 216,
8 Sup. Ct. Rep. 164 ; Minnesota v. Hitch-
cock, 185 U. S. 373, 386, 46 L. ed. 954,
962, 22 Sup. Ct. Rep. 650; Philadelphia
Co. V. Stimson, 223 U. S. 605, 56 L. ed.
570, 32 Sup. Ct. Rep. 340.
The trial court had jurisdiction.
Roberts v. Consaul, 24 App. D. C.
551 ; Borcherling v. United States, 35 Ct.
CI. 311, 185 U. S. 223, 46 L. ed. 884, 22
Sup. Ct. Rep. 607; Jones v. Rutherford,
26 App. D. C. 114 ; Price v. Forrest, 173
U. S. 410, 43 L. ed. 749, 19 Sup. Ct. Rep.
434.
The fund in question had a situs with-
in the District of Columbia.
Roberts v. Consaul, 24 App. D. C. 551 ;
Borcherling v. United States, 35 Ct. CI.
311, 185 U. S. 223, 46 L. ed. 884, 22 Sup.
Ct. Rep. 607.
Mr. Chapman W. Maupin filed a brief
as amicus curiie:
There is no doubt that a bill may be
maintained against individuals to es-
tablish an equitable interest in or lien
upon a fund held by the United States
in the capacity of a stakeholder; to en-
join collection of such fund by a claim-
ant thereof; and to compel, by the ap-
pointment of a receiver, the application
of such fund to the satisfaction of the
plaintiff's lien.
Trist V. Child (Burke v. Child) 21
Wall. 441, 22 L. ed. 623; Peugh v.
Porter, 112 U. S. 742, 28 L. ed. 860, 5
Sup. Ct. Rep. 361; Price v. Forrest, 173
U. S. 410, 43 L. ed. 749, 19 Sup. Ct
Rep. 434; United States v. Borcherling,
185 U. S. 223, 46 L. ed. 884, 22 Sup. Ct.
Rep. 607; Roberts v. United States, 176
r. S. 221, 44 L. ed. 443, 20 Sup. Ct. Rep.
376; United States ex rel. Parish v. Mac- i
Veagh, 214 U. S. 124, 53 L. ed. 936, 29
Sup. Ct. Rep. 556; Smith v. Jackson, 346
U. S. 388, 62 L. ed. 788, 38 Sup. Ct.
Rep. 353.
As a consequence of these decisions,
but more particularly of those which ob-
ligate ihe government to make payment
to a duly appointed receiver, it has be-
come a common practice in suits in the
District of Columbia for the enforcement
of an equitable lien upon or interest in a
fund held by the government as a stake-
holder, to* join the head of the Depart-
ment having control of the fund as a
defendant to the bill, and to obtain a
preliminary injunction to prevent dis-
position of the fund by him pending the
suit. The argument in support of this
practice has been that, if it be the mere
ministerial duty of the head of the De-
partment to make payment of the fund
to a receiver, and if performance of that
duty may be compelled by mandamus or
mandatory injunction, it follows that an
injunction will lie to prevent disposition
of the fund pending the suit.
Roberts v. Consaul, 24 App. D. C. 551 ;
Lyttle V. National Surety Co. 43 App. D.
C. 136.
This court has decided, also, that the
surety on the bond of a government con-
tractor has an equitable lien upon or in-
terest in a retained percentage of the
contract price in the hands of the gov-
ernment, which lien or interest relates
back to the moment when the surety
signed the bond, and takes precedence
of any claim to the fund by, through, or
under, the contractor.
Prairie State Bank v. United States,
164 U. S. 227, 41 L. ed. 412, 1.7 Sup. Ct.
Rep. 142; Henningsen v. United States
Fidelity & G. Co. 208 U. S. 404, 52 L.
ed. 547, 28 Sup. Ct. Rep. 389 ; Hardaway
V, National Surety Co. 211 U. S. 552,
53 L. ed. 321, 29 Sup. Ct. Rep. 202.
It is impossible to reconcile Smith v.
Jackson, 246 U. S. 388, 62 L. ed. 788, 38
Sup. Ct. Rep. 353, 154 C. G. A. 449, 241
Fed. 747, with the rulings of the Comp-
troller that the courts have no power to
direct a paypient of public money that is
not sanctioned by him.
Where complainant does not ask the
court to interfere with an officer of the
United States, acting within his official
disci^etion, but challenges his authority
to do the act complained of, the suit is
not against the United States.
Philadelphia Co. v. Stimson, 223 U. 8.*
60.5. 56 L. ed. 570, 32 Sup. Ct. Rep. 340.
Where a government contract has been
fully performed, the accounts of the con-
tractor settled, and nothing remains to
be done except to make payment of such
252 17. S.
1£)11>.
HOUSTON V. 0RME8.
471-473
balance to the proper party^ are the head
of the Department and the Comptroller
of the Treasury charged with the duty of
ascertaining and establishing the rights
of the surety in that balance? Is not
that the exclusive province and duty of
the courts of the land? And is it not
the duty of the head of the Department
to abide by the decision of the court in
that respect, and make payment of such
balance as the court may direct? And
is not the suretv entitled to the aid of
the courts to compel the performance of
that dutv by him?
Kendall v. United States, 12 Pet. 524,
9 L. ed. 1181; Roberts v. United States,
176 U. S. 221, 44 L. ed. 443, 20 Sup. Ct.
R«p. 376; United States ex rel. Parish
V. MacVeagh, 214 U. S. 124, 53 L. ed.
936, 29 Sup. Ct. Rep. 556 ; Smith v. Jack-
son, 246 U. S. 388, 63 L. ed. 788, 38 Sup.
Ct. Rep. 353.
Mr. Justice Pitney delivered the opin-
ion of the court:
This was a suit in equity, brought by
the late Belva A. Lockwood in her life-
time in the supreme court of the District
of Columbia, to establish an equitable
lien for attorney's fees upon a fund of
$1,200 in the Treasury of the United
States, appropriated by Congress (Act
of March 4, 1915, chap. 140, 38 Stat, at
L. 962, 981) to pay a claim found by the
court of claims to be due to one Susan
Sanders, who was made defendant to-
gether with the Secretary of the Treas-
ury and the Treasurer of the United
States. There were appropriate prayers
for relief by injunction and the ap-
pointment of a receiver. Defendant
Sanders voluntarily appeared and an-
swered, denying her indebtedness to
plaintiff; the other defendants answered,
admitting the existence of the fund, and
declaring that, as a matter of comity,
and out of deference to the court, it
.would be retained nnder their control to
await the final disposition of the case;
but objecting to the jurisdiction of the
court over the cause upon the ground
that debts due from the United States
have no situs in the District of Colum-
bia, that there was nothing to show that
either the United States or the defendant
Sanders had elected to make the sum al-
leged to be due from the United States
payable to her in the District, and that,
in the absfence of personal service upon
her, the court could make no decree that
would protect the United States. There
was a final decree adjudging that [472]
the sum of $90 was due from the def end-
«4 li. ed.
ant Sanders to Mrs. Lockwood, with
costs, and appointing a receiver to col-
lect and receive from the Secretary of
the treasury the $1,200 appropriated in
favor of Sanders, directing the Secretary
to pay the latter sum to the receiver, and
decreeing that his receipt should be a
full acquittance to the United States for
any and all claims and demands of the
parties arising out of or connected with
said claim. The Secretary of the Treas-
ury and the Treasurer appealed to the
court of appeals of the District of Co-
lumbia, the defendant Sanders not ap-
pealing. That court affirmed the decree
(47 App. D. C. 364) ; and a further ap-
peal taken by the officials of the Treas-
ure under § 250, Judicial Code [36 Stat,
at L. 1159, chap. 231, Comp. Stat. § 1227,
5 Fed. Stat. Anno. 2d ed. p. 913], brings
the case here.
The principal contention is that be-
cause the object of the suit and the effect
of the decree were to control the action
of the appellants in the performance of
their official duties the suit was in effect
one against the United States. But since
the fund in question has been appro-
priated by act of Congress for payment
to a specified person in satisfaction
of a finding of the court of claims, it is
clear that the officials of the Treasury
are charged with the ministerial duty to
make payment on demand to the person
designated. It is settled that in such a
case a suit brought by the person en-
titled to the performance of the duty
against the official charged with its per-
formance is not a suit against the gov-
ernment. So it has been declared b^^ this
court in many cases relating to state
officers. Board of Liquidation v. Mc-
Comb, 92 U. S. 531, 541, 23 L. ed. 623,
628; Louisiana v. Jumel, 107 U. S. 711,
727, 27 L. ed. 448, 453, 2 Sup. Ct. Rep.
128; Re Avers, 123 U. S. 443, 506, 31
L. ed. 216, 230, 8 Sup. Ct. Rep. 164.
In Minnesota v. Hitchcock, 185 U. S.
373, 386, 46 L. ed. 954, 962, 22 Sup. Ct.
Rep. 650, while holding that a suit
against officers of the United States
might be in effect a suit against the
United States, the court said (p. 386) :
"Of course, this statement has no ref-
erence to and does not include those
cases in which officers of the United
States are sued, in appropriate [473]
form, to compel them to perform some
ministerial duty imposed upon them by
' law, and which they wrongfully neglect
or refuse to perform. Such suits would
not be deemed suits against the United
States within the rule that the govern-
ment cannot be sued except bv its con-
6a9
473-475
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbk,
sent, nor within the rule established in
the Ayers Case." And in United States
ex rel. Parish v. MacVeagh, 214 U. S.
124, 53 L. ed. 936, 29 Sup. Ct. Rep. 556,
the court upheld the right of a claimant,
in whose favor an appropriation had
been made by Congress, to have a man-
damus against the Secretary of the
Treasury, requiring him to pay the claim.
To the same effect, Roberts v. United
States, 176 U. S. 221, 231, 44 L. ed. 443,
447, 20 Sup. Ct. Rep. 376.
In the present case it is conceded, and
properly conceded, that payment of the
fund in question to the defendant San-
ders is a ministerial d^ity, the perform-
ance of which could be compelled by
mandamus. But from this it is a neces-
sary consequence that one who has an
equitable right in the fund as against
Sanders may have relief against the of*
ficials of the Treasury through a man-
datory writ of injunction, or a receiver-
ship, which is its equivalent, making
Sanders a party so as to bind her, and
so that the decree may afford a proper
acquittance to the government. The
practice of bringing suits in equity for
this purpose is well established in the
courts of the District (Sanborn v. Max-
well, 18 App. D. C. 245; Roberts v. Con-
saul, 24 App. D. C. 551, 562; Jones v.
Rutherford, 26 App. D. C. 114; Parish
v. McGowan, 39 App. D. C. 184; a. c. on
appeal, McGowan v. Parish, 237 U. S.
285, 295, 59 L. ed. 955, 963, 35 Sup. Ct.
Rep. 543). Confined, as it necessarily
must be, to cases where the officials of
the government have only a ministerial
duty to perform, and one in which the
party complainant has a particular in-
terest,, the practice is a convenient one,
well supported by both principle and
precedent.
Sec. 3477, Rev. Stat. (Comp. Stat. §
6383, 2 Fed. Stat, Anno. 2d ed. p. 179),
regulating the assignment of claims
against the United States, is not an ob-
stacle. As has been held many times, the
object of Congress in this legislation
[474] was to protect the government,
not the claimant; and it does not stand
in the way of giving effect to an assign-
ment by operation of law after the claim
has been allowed. Erwin v. United
States, 97 U. S. 392, 397, 24 L. ed. 1065,
1067; Goodman v. Niblaek, 102 U. S. 556,
560, 26 L. ed. 229, 231 ; Price v. Forrest,
173 U. S. 410, 423-425, 43 L. ed. 749, 753,
754, 19 Sup. Ct. Rep. 434,
In support of the contention that a
court of equity may not control the action
of an officer of the United States with-
in the scope of his authority, Wells v.
Roper, 246 U. S. 335, 62 L. ed. 755, 38
670
Sup. Ct. Rep. 317, is cited; but it is not
in point; the official duty sought to be
subjected to control in that case was not
ministerial, but required an exercise of
official discretion, as the opinion shows
(p. 338).
It is further objected that debts due
from the United States have no situs at
the ^eat of government, and Vaughan v.
Northup, 15 Pet. 1, 6, 10 L. ed. 639, 641 ;
United States use of Mackey v. Coxe,
18 How. 100, 105, 15 L. ed. 299, 301:
Wyman v. Halstead (Wyman v. United
States) 109 U. S. 654, 657, 27 L. ed.
1068, 1069, 3 Sup. Ct. Rep. 417, are
cited. But in the present case the ques-
tion of situs is not material. K the juris-
diction as to the defendant Sanders had
depended upen publication of process
against her as a nonresident under § 105
of the District Code (Act of March 3,
1901, chap. 854, 31 Stat, at L. 1189,
1206), upon the theory that her claim
against the government was "property
within the District," the point would re-
quire consideration. But the jurisdiction
over her rests upon her having volunta-
rily appeared and answered the bill with-
out objection. Hence there is no ques-
tion that the decree binds her, and so
constitutes a good acquittance to the
United States as against her.
The decree will be affirmed.
[4751 ELIZABETH HULL, AdminUtratrix
of John M. Hull, Deceased, for the Bene-
fit of Elizabeth Hull, Mother of Deceased,
Petitioner,
V.
PHILADELPHIA & READING RAILWAY
COMPANY.
(See S. C. Reporter's ed. 475-484.)
Master and servant — employers* liabil-
ity — wlien servant is in defendant's
employ.
A brakeman in the general employ of
an interstate railway company, which had
Note — ^As to constitutionality, applica-
tion, and effect of Employer^' Liability
Act — see notes to Lamphere v. Or^on
R. & Nav. Co. 47 L.R.A(N.S.) 38; and
Seaboard Air Line R. Co. v, Horton,
L.R.A.1915C, 47.
As to who are employers within the
meaning of the Compensation Statutes —
see note to Claremont Country Club v.
Industrial Acci. Commission, L.B.A.
1918F, 179.
As to who are employees within the
meaning of the Compensation Statutes —
see note to State ex rel. Xienaber v. Dia-
trict Ct. L.R.A.1918F, 20L
352 V. S.
]»ie.
HCLL V. ['HILADELPHIA 4 B. R. CO.
a ctMitract ar range luei it uiUi » connecting
railway ooDipuiiy for iluougli freight secv-
jce without cliaiige of crews, wBs nut in the
employ of the latter coinpany witbin tlie
meuiiiiig of the Federal KmployerB* Liabili-
ty Act while his train was on that com-
pany's line, where, under such contract,
each company retained control of its own
train erewe. what they did upon the lins
of the other railroad was done as a part of
id so
. I f'e
trucks of ilie other company, to its ruk-3,
regulations, discipline, and orders, this was
for the purjwse of co-ordinating their move-
ments to the other operations of the own-
ing company, securing the safety of all con-
cerned, and furthering the general object
of the agreement between the companies.
[For other cMea. see Uuster and Servant, I. a ;
II. a. In Digest Sup, Ct. lOOS.l
[No. 151J
Argued JaniUTf 16, J920. Decided April
O't
^N WRIT of Certiorari to the Court
of Appeals of tlie State of Maryland
to review a judgment which afGrmed a
judgment of the Circuit Court of Wash-
itigtun County, in that state, in favor of
defendant in an action brought under the
Federal Employers' Liability iVct. Af-
firmed.
See same case below, 132 Hd. 540, 104
Atl. 274.
The facts are stated in the opinion.
Mr. Chwles D. W»«Miuul argued the
canee, and, with Messrs. Omer T. Kaylor
and Frank G. Wsgam&n, filed a brief for
petitioner :
Where one in the general serriee of an-
other performs work in which that other
and a third person are both interested,
be remains the servant of that other, or
beeomes the servant of the third person,
according as the work in its doing is
the work of that other, or is, in its do-
ini;, the work of the third person. And
this principle is tme no matter who
hires, pays, or has the power to dis-
charge the MTvatit,
Standard Oil Co. t. Anderson, 212 U.
S. 215, 53 L. ed. 480, 29 Snp. Ct. Rep.
252; Murray v. Onrrie, L. R. 6 C. P. 24,
40 L. J. C. P. N. S. 26, 23 li. T. N. S.
557, 19 Week. Rep. 104; Rourke v. White
Mobs Coliierv Co. L. R, 2 C. P. Div. 205,
46 L. .1. C. P. N. 8. 283, 36 L. T. N. 8.
49, 26 Week. Rep. 263; Byrne t. Kansas
City, Ft. S. & M. R. Co. 24 L.R.A. 693,
9 C. C. A. 66fi, 22 U. 8. App. 220, 61
Fed. 605: Donovan v. Laing, W. & D.
Constr. Syndicate [1893] 1 Q. B. 629,
63 L. X Q. B. N. S. 25. 4 Reports, 317,
66 L. T. N. S. 512, 41 Week. Rep. 455,
57 J. P. 563; Powell v. Virginia Constr.
Co. 88 Tean. 692, 1? Am. St. Rep. 925,
13 S. W. 601; Miller v. Minnesota & N.
W. B. C^. 76 Iowa, 665, M Am. St. Rep.
258, 39 N. W. 186.
The law imposes upon a railroad cor-
poration the nondelegable dnty of the
operation of its road.
Central Tranap. Co. v. Pullman's Pal-
aee Car Co. 139 U. S. 24, 35 L. ed. 55, 11
Snp. Ct. Rep. 478.
One who performs the nondelegable
duty of another with the knowledge and
assent of that other becomes the em-
ploj-ee of him for whom he. is performing
the work.
Atlantic Coast Line R. Co. t. Tread-
way, 120 Va. 735, — A.L.R. — , 93 S. E.
560.
Responsibility of one for the manner
of the performance of the work of an-
other always creates the relation of em-
ployee and employer.
North Carolina R. Co. t. Zaohary, 232 .
U. S. 248, 58 L. ed. 591, 34 Snp. Ct. Rep.
305, Ann. Caa. 1914C, 159, 9 N. C. C. A.
109.
Mr. Henry H. Eeedy, Jr., ai^ed the
cause and filed a brief for respondent :
Plaintiff's decedent was not a sen-ant
or an employee of the defendant, within
the meaning of the Federal Employers'
Liability Act.
Robinson v. Baltimore & 0. R. Co. 237
U. S. 84, 59 L. ed. 849, 35 Sup. Ct. Rep.
491, 8 N. C. C. A. 1 ; Chicago & A. R.
Co. V. Wagner, 239 U. S. 452, 60 L. ed.
379, 36 Sup. Ct. Rep. 135, 11 N. C. C.
A. 1087; Fowler v. Pennsylvania R. Co.
143 C. C. A. 493, 229 Fed. 375; MisBouri,
K. & T. R. Co. V. West, 38 Okla. 581,
134 Pac. 658; Little v. Hatketl, 116 U.
S. 366, 29 L. ed. 652, 6 Sup. Of. Hep.
391; Bentley v. Edwards, 100 Md. 652,
60 Atl. 283; Quarman v. Burnett, 6 Mees. '
& W. 499, 151 Eng. Reprint, 509, 9 L. J.
Exch. N. S. 308, 4 Jur. 969; Zeigter v.
Danbury & N. R. Co. 52 Conn. 543, 2
Atl. 462; Tiemey v. Syracuse, B. & N.
Y. R. Co. 85 Hnn
627; Snllivau v. T
643, 8 Am. St. Re
Bosworth V. Rogei
U. S. App. 620, 8i
Atchison, T. & S.
(N.S.) 323, 92 C.
410; PhilUpa v. CI
Co. 64 Wia. 475, 2i
V. Kansas Ci^ W
App. 540, 164 S. W. 188; Kastl v. Wa-
bash R. Co. 114 Mich. 53, 72 N. W. 28;
Labatt, Mast & 8. 2d ed. 83 note (C);
Philadelphia, W. ft B. R. Co. v. State,
58 Md. 372; Delaware, L. & W. E. Co.
V. Hardy, 59 N. J. L. 35, 34 Atl. 986;
«71
477-479
SUPREME COUliT OB^ THE UNITED STATES.
Oct.
Morgan v. Smith, 159 Mass. 570, 35 X. E.
101; Berrj' v. New York C. & H. R. R.
Co. 202 Mass. 197, 88 N. E. 588.
For the conventional relation of em-
ployer and employee to exist, there must
be a coming together or an agreement
by the parties that the relation shall be
created
Bouviers Law Diet. 360; 2 Bl. Com.
120; Mutual Transit Co. v. United
States, 102 C. C. A. 164, 178 Fed. 668;
Disley v. Dislev, 30 R. I. 366, 75 Atl.
481 ; 4 Kent, Com. 12th ed. p. 25.
•
Mr. Justice Pitney delivered the opin-
ion of the court :
This was an action brought in a state
court of Maryland under the Federal
Emplovers' Liability Act of April 22,
1908 (35 Stat, at L. 65, chap. 149), as
amended April 5, 1910 (36 Stat, at L.
291, chap. 143, Comp. Stat. § 8662,
8 Fed. Stat. Anno. 2d ed. p. 1369),
by petitioner as administratrix of
John M. Hull, deceased, to recover
damages because of his death, occurring,
as alleged, while he was employed by
defendant in interstate commerce. The
trial court directed a verdict in favor of
defendant, the court of appeals of Mary-
land affirmed the resulting judgment up-
on the ground that the deceased, at the
time he was killed, was not in the em-
plov of defendant within the meaning
of the act of Congress (132 Md. 540, 104
Atl. 274), and upon this Federal ques-
tion the case is brought here by cer-
tiorari.
The pertinent facts are not in dispute.
John M. Hull, at the time he was killed
and for a long time before, was in the
general employ of the Western Maryland
Railway Company, an interstate carrier
operating, among other lines, a railway
from Hagerstown, Maryland, to Lurgan,
Pennsylvania, at which point it connect-
ed with a railway owned and operated
by defendant, the Philadelphia & Read-
ing Railway Company, which extended
from Lurgan to Rutherford, in the same
state. Through freight trains were op-
erated from Hagerstown to Rutherford
over these two lines, and Hull was em-
ployed as a brakeman on such a train at
the time he received the fatal injuries.
On the previous day a crew employed by
the Western Maryland Railway Com-
pany, and of which he was a member,
had taken a train hauled by a Western
Maryland engine from Hagerstown to
Rutherford, and at the time in question
the same crew was returning with a train
from Rutherford [478] to Hagerstown.
Before startinsr they received instruc-
672
tions from the yardmaster at Rntker-
ford (an employee of defendant com-
pany) as to the operation of the train,
including directions to pick up sevwi
cars at Harrisburg. Tney proceeded
from Rutherford to Harrisburg, 8toiq>ed
there for the purpose of piekuig up the
seven cars, and while this was being done
Hull was run over and killed by one ot
defendant's locomotives.
The through freight service was con-
ducted under a written agreement be-
tween the two railway companies, which
was introduced in evidence and consti-
tutes the chief reliance of petitioner.
Its provisions, so far as they need to be
quoted, are as follows:
'^. Freight trains to run through be-
tween Hagerstown and Rutherford in
both directions, aiid each company agres
to supply motive power in the above
proportions [based upon mileage] so as
to equalize the service performed.
. . . • •
''4. Crews of each road to run throngh
with their engines over the line of. the
other compan}'.
**5, Each company to compensate the
other for the use of the other^s engines
and crews on their line at the follbwing
rates per hour: . . . Time to begin
at Rutherford and. Hagerstown when
crew is called for. . . . Time to cease
when the engines arrive on the fire track
at Rutherford and Hagerstown. . . .
''6. The division of earnings of the
traffic not to be disturbed or in any wvy
affected by this arrangement.
'^7. Each company to furnish fuel and
other supplies to its own 'engines and
crews ; any furnished by one to the other
to be upon agreed uniform rates.
. • • • •
. ^'9. Neither company to be ezpeeted
to do the engine cleaning and wiping for
the other; where done, a charge of seven-
ty-five (75) cents per epgine to be made.
[479] ^^10. Each company to be re-
sponsible and bear all damage and ex-
penses to persons and property oaiued
by all accidents upon its road.
• • • • «
"16. Each company to relieve and turn
as promptly as practicable the engines
and crews of the other at ends of rons.
"17. Each company to have the right
to object and to enforce objection to anj
unsatisfactory employee of the other
running upon its lines.
"18. All cases of violation of roles
or other derelietions by the employees of
one company while upon the road of the
other shall be promptly investigated bj
the owning company, and the reanlt r»-
959 17. 8.
1919.
HULL ▼. PHILADELPHIA It R. R. 00.
479-481
ported to the employing eompany, with
«r without suggestions for disciplining,
the employing company to report to the
other the action taken.
^19. Accident reports on prescribed
fonns to be promptly made of all such
ocenrrencesy ' and where a crew of one
company is operating upon the road of
the other, a copy must be sent to the
proper officer of each company.
*) M<20. Employees of each company to be
required to report promptly, on notice,
to the proper officer of the other, for
investigations of accid^its, etc., the full-
est co-operation to be given by the one
eompany to the other in all such matters.
^'21. The employees of each company
while upon the tracks of the- other shall
be subject to and conform to the rules,
regulations, discipline, and orders of the
owning company."
We hardly need repeat the statement
North Carolina R. Go. v. Zachary, 232
U. S. 248, 58 L. ed. 591, 34 Sup» Ct. Rep.
305, 9 N. C. C. A. 109, Ann. Cas. 1914G,
159, is cited, but is not in point, since
in that case the relation of the parties
was controlled by a dominant rule of
local law, to which the agreement here
operative has no analog\\
The Court of Appeals of Maryland
did not err- in its disposition of the Fed-
eral question, and hence its judgment is
affirmed.
Mr. Justice Clarke, dissenting:
The '^^^tem Maryland Railroad Com-
pany owned a line of railroad extending
from Hagerstown, Maryland, to Lurgan,
where it connected with the line of the
Reading [481] Company, extending to*
Rutherford, in Pennsylvania. The two
companies entered into a contract by
which through freight trains, nuide nn
made in Robinson v. Baltimore & 0. R. I and manned by crews primarilj em-
Co. 237 U. S. 84, 94, 59 L. ed. 849, 853,
35 Sup. Ct. Rep. 491, 8 N. C. C. A. 1,
that in the Employers' Liability Act Con-
gress used the words "employee" and
"employed'' in their natural sense, and
intended to describe the conventional
relation of employer and employee. The
simple question is whether, under the
[480] facts as recited, and according to
the general principles applicable to the
relation, Hull had been transferred from
the employ of the Western Maryland
Railway Company to that of defendant
for the purposes of the train movement
in which he was engaged when killed. He
was not a party to the agreement be-
tween the railway companies, and is not
shown to have had knowledge of it ; but,
passing this, and assuming the provi-
sions of the agreement can be availed of
by petitioner, it still is plain, we think,
from the whole case, that deceased re-
mained for all purposes — certainly for
the purposes of the act — an employee of
the Western Maryland Company only.
It it clear that each company retained
control of its own train crews ; th^t what
the latter did upon the line o{ the other
road was done as a part of their duty to
the general employer; and that, so far
as they were subject while upon the
tracks of the other company to its rules,
regulations, discipline, and orders, this
was for the purpose of co-ordinating
their movements to the other operations
of the owning company, securing the
safety of all concerned, and furthering
the general object of the agreement be-
tween the companies. See Standard Oil
Co. V. Anderson, 212 U. S. 215, 226, 53
L. ed. 480, 485, 29 Sup. Ct. Rep. 252.
G4 li. ed.
ployed by either, should run through
over the rails of the other company to
Rutherford or Hagerstown, as the case
might be. A crew from either line, ar-
riving at the terminus of the other,
should return with a train made up by
the company operating the latter, to-
gether with any cars which might be
"picked up" on the way.
Thus, for the purposes of operation,
the line over which train crews worked
was 81 miles in length, 34 miles of West-
ern Maryland track and 47 miles of
Reading track, and the relation of the
men to the company, other than the one
which originally employed them, while
on its line, was defined by the contract
quoted from in the opinion of the court.
Five of the paragraphs of this contract
seem to me decisive of what that rela-
tion was, and of this case. viz. :
5. Each company to pay the other an
agreed compensation for the service of
its engines and crews while on its line.
"10. Each company to be responsible
and bear all damage and expenses to
persons and property caused by all acci-
dents on its road."
"17. Each company to have the rigl^J:
to object to, and to enforce objection to,
anv unsatisfactory employee of the
other running upon its lines.
"18. All violations of rules or other
derelictions by employees of one com-
pany while on the road of the other
shall be promptly investigated by the
owning company and the result reported
to the employing company, with or fjoith-
out suggestions for disciplining, the em-
ploying company to report to the other
the action taken."
43 671
4S1-494
SUPB£M£ COURT OF THE UNITED STATES.
Oct. Im,
^*2L The employees of each company
while upon the [482] tracks of the oth-
er shall he subject to and conform to the
rules, regulations, discipline, and orders
of the owning company."
Jhe deceased brakeman. Holly was
kiUed on the Reading tracks at Harris-
borgy 30 miles away from any Western
Maiyland track,, by the alleged negli-
gence of a Beading engineer, when en-
gagedy under the direction of a local
Reading 3rardma8tery in picking up"
cars to be added to a train which was
made up by the Reading Company at
Rutherford and despatched by Reading
officials from that -terminaL
ThuSy when he was killedy Hull was
working on the Reading Railroad, sub-
ject to the '^rulesy r^^ations, discipline,
and orders" of the Reading Company,
and at the moment was acting under
specific direction of a Reading yard-
master. The Reading Company was pay-
ing for the service which he was
rendering when he was killedy it had
authority to cause his discharge if his
service was not satisfactory to it (para-
graphs 17 and 18 of the oontracty supra),
and it had specifically contracted to he
responsible for all damage to persons
and property caused by accidents on its
line growing out of the joint operation.
It is admitted that the service he was
rendering was in the movement of inter-
state commerce, but upon the facts thus
stated it is concluded in the opinion
that he was not within the scope of the
act providing that ^every common car-
rier by railroad while engaging in com-
merce between any of the several states
. . . shall be liable in damages to any
person suffering injury while he is em-
ployed by such carrier in such commerce,
or, in case of death,'' etc. (Act of April
22, 1908, 35 Stat, at L. chap. 149, § 1, p.
*65, Comp. Stat. § 8657, 8 Fed. Stat.
Anno. 2d ed. p. 1208).
I cannot concur in this decision of the
court for the reason that the case seems
to me to be ruled by a conclusion as to
the applicable law, stated in a strongly
reasoned opinion in Standard Oil Co.
V. Anderson, 212 U. S. 215, 53 L. ed. 480,
29 Sup. Ct. Rep. 252, in this paragraph:
"One may be in the general service of
another, and, [483] nevertheless, with
respect to particular work, may be trans-
ferred, with his own consent or acquies-
cence, to the service of a third person,
so that he becomes the servant of that
person with all the legal consequences of
the new relation.''
By the contract of hiring Hull was in |
the general service of the Maryland
• 74
Compaiky, but "by his eoiisent a»d ae-
quiescence," he was transtevrtd %% ikt
service of the Reading Company -wk^-
ever his train passed onto its tfo^tks.
From that moment until his letvn to
the Maryland C!ompany's traeks ag«in he
was engaged excluaivdy in the w^rk af
the Bea^ng Company, that eompusj
paid for his services, he was undiBr ils
"rules, regulations, discipline, aad or-
ders," and it had authority to cause his
discharge if his service was not satis-
factory. He was under the ewitrol of
that company as to what he was to do
and as to the details of the maim&t el
doing it as oompletdy as if he had ■•
other employer. He ceaaed for the tine
being to be the servant of the Maiyiaad
Company and became the servant of the
Reacting Company (212 U. S. 215, 394,
53 L. ed. 480, 484y 29 Sup. Ct Rep. 252).
The Federal Employers' Liabibty Act
does not require that a person shall be
in the exclusive employ of a railroad
common carrier in order to come within
its scope. It provides that such car-
rier shall be "Imble in damages to any
person injured while he is employed (en-
gaged) by it in intersUUe oommeree"
and it is impossible for me to accept the
conclusion that Hull, when in the pay
of the Reading Company, assisting in
operating Reading interstate trains on
Reading tracks, under the direction sole-
ly of Reading officials, general and loeaJ,
was not "employed" by it in interstate
commerce, withm the meaning of this
provision.
We are not dealing here with mat
words or with merely "conventional re-
lations," but with very serious reabties.
Enacted, as the Federal Employers' lia-
bility Act was, to bring the United
States law up to the humanitarian lercl
[484] of the laws of many of the stMct
by abolishing the unjust and irritatiiig
fellow-servant rule, by modifying the
often harsh contributory-neg^igWDce mk,
and by otherwise changing the common-
law liability of interstate rail carrien t«
their employees, it should receive a lib-
eral construction to promote its impoi^
tant purpose. Its terms invite the wlph*
cation of the rule, widely applied hy
other courts and clearly approved by thsB
court, in the ease cited, that a man nay
be in the general service of one, and also,
with respect to a part of his serriee,— to
particular work, — be in the service of
another employer, so that he becomes for
the time being the servant of the latter,
''with all the legal consequences of that
relation." The line of demarcation coaid
not be more clearly drawn than it wa»
252 ¥. S.
lOiU.
UNITED STATES v. CHASE NATIONAL BANK.
484, 48q
Ia this case, and the role seems to m^e to
1m sharply and decismly applicable.
In the opinion of the court it is said:
^It is clear that eaeh company retained
control of its own train crews." Upon
the contrary, it seems to me, it is clear
that neither company retained any con-
trol whatever over the crews primarily
employed by it while they were on the
line of the other company. '|21. The
employees of ^&eh company, while upon
the tracks of the other, shall be subject
to and conform to the rules, regulations,
disdpline, and orders of the owning
cempany," was the contract between the
two companies under which they were
operating when Hull was negligently
lulled.
[485] UNITED STATES OF AMERICA,
PMr. in Err.,
V.
CHASE NATIONAL BANK.
(See S. C. Reporter's ed. 4^5-496.)
Assumpglt — recovering iMck payments*
•^ mistake — forged draft.
The Uni^ States as the drawee of a
forged draft cannot recover as for money
paid out under a mistake of fact the sum
paid by it on such draft to an innocent
collecting bank, even though the signature
of the iiiSorser as well as that of the drawer
was forced.
IWOT Other cases* see Assnn^wlt, II. o^ 1, la
Ettfett Sn», Ct 1908.]
[No. 134.1
Argued January 14 and 15^ 1920. Decided
April 19, 1920.
IM ERROR to the United States Circuit
Court of Appeals for the Second Cir-
enit to review a judgment which afiSrmed
a judgment of the District Court for the
Sonthem District of New York, direct*
ing a verdict in favor of defendant in a
suit by the United States to recover as
for money paid out under a mistake of
fact the sum paid by it to an innocent
Kote. — As to right of drawee of forged
check or draft to recover money paid
thereon — see notes to Farmers' Nat.
Bank v. Farmers & Traders' Bank,
L.B.A.1915A, 77; State Bank v. First
Nat. Bank, 29 L.R.A.(N.S.) 100; Title
Guarantee & T. Co. v. Haven, 25 L.R.A.
(N.S.) 1308; and First Nat. Bank v.
Bank of Wyndmere, 10 L.R.A.(N.S.) 49.
As to recovery of money paid by mis-
take— see note to United States v. Bar-
low, 33 L. ed. U. S. 346.
•4 li. ed.
collecting bank npon a forged draft.
Affirmed.
See same case below, 162 C. C. A. 277,
250 Fed. 105.
The facts are stated in the opinion.
Assistant Attorney General Spellacy
argued the cause, and, with Messrs.
L^nard B. Zeisler and Charles H. Wes-
ton, filed a brief for plaintiff in error:
The plaintiff may recover of the de-
fendant money paid the latter on a
forged check, since the defendant did
not change its position to its prejudice,
in reliance on the fact of payment, and
since its indorser was guilty of acts of
negligence contributing to the success of
the forgery.
Morse, Banks & Bkg. 5th ed. § 391;
First Nat. Bank v. Fn-st Nat. Bank, 151
Mass. 280, 21 Am. St. Rep. 450, 24 N. E.
44; Ford v. People's Bank, 74 S. C. 180,
10 L.R.A.(N.S.) 63, 114 Am. St. Rep.
986, 54 S. E. 204, 7 Ann. Cas. 744; Peo-
ple's Bank v. Franklin Bank, 88 Tenn.
299, 6 L.R.A. 724, 17 Am. St. Rep. 884,
12 S. W. 716 ; Greenwald v. Ford, 21 S.
D. 28, 109 N. W. 516; McCall v. Coming,
3 La. Ann. 409, 48 Am. Dec. 454;
Farmers Nat. Bank v. Farmers &
Traders Bank, 159 Ky. 141, Ii.R.A.1915A,
77, 166 S. W. 986; Canadian Bank v.
Bingham, 30 Wash. 484, 60 L.R.A. 955,
71 Pac. 43 ; National Bank v. Bangs, 106
Mass. 441, 8 Am. Rep. 349; Williams-
burgh Trust Co. V. Turn Suden, 120 App.
Div. 518, 105 N. Y. Supp. 335; Rouvant
V. San Antonio Nat. Bank, 63 Tex. 610;
Ellis V. Ohio Life Ins. & T. Co. 4 Ohio
St. 628, 64 Am. Dec. 610; First Nat.
Bank v. State Bank, 22 Neb. 769, 3 Am.
St. Rep. 294, 36 N. W. 289; Woods v.
Colony Bank, 114 Ga. 683, 56 L.R.A. 929,
40 S. E. 720; Newberry Sav. Bank v.
Bank of Columbia, 91 S. C. 294, 38
L.R.A.(N.S.) 1200, 74 S. E. 615.
The defendant is liable to the plain-
tiff as guarantor of the indorsements
of the check.
Leather Mfrs. Nat. Bank v. Merchants'
Nat. Bank, 128 U. S. 26, 32 L. ed. 342, 7
Sup. Ct. Rep. 3; First Nat. Bank v.
Northwestern Nat. Bank, 152 HI. 296,
26 L.R.A. 289, 43 Am. St. Rep. 247, 38
N. E, 739; Armstrong v. Pomeroy Nat.
Bank, 46 Ohio St. 512, 6 L.R.A. 625, 15
Am. St. Rep. 655, 22 N. E. 866; Ship-
man V. Bank of State, 126 N. Y. 318,
12 L.R.A, 791, 22 Am. St. Rep. 821, 27
N. E. 371; Seaboard Nat. Bank v. Bank
of America, 193 N. Y. 26, 22 L.R.A.
(N.S.) 499, 85 N. E. 829; Boles v. Hard-
ing, 201 Mass. 103, 87 N. E. 481; Jordan
Marsh Co. v. National Shawmut Bank,
675
SUPREME COURT OF THE UNITED STATED.
Oct. Tcbm,
201 Mass. 397, 22 L.R.A.(N.S.) 250. 87
N. E. 740; United States v. National
Bank, 123 C. C. A. 601, 205 Fed. 433,
140 C. C. A. 219, 224 Fed. 679: Floyd
Acceptances (Pierce v. United States) 7
Wall. 666, 19 L, ed. 169 ; Bank of Eng-
land V. Vagliano Bros. [1891] A. C. 107,
60 L. J. Q. B. N. S. 145, 64 L. T. X. S.
353, 39 Week. Rep. 657, 55 J. P. 676, 3
Eng. Rul. Cas. 695; McCall v. Corning,
3 La. Ann. 409, 48 Am. Dec. 454 ; Grand
Lodge, A. 0. U. W. v. Emporia Nat.
Bank, 101 Kan. 369, 166 Pac. 490.
The plaintiff is not barred from re-
covery in this case by negligence in fail-
ing sooner to dispover and notify the
bank of the for^ry.
Leather Mfrs. Nat. Bank v. Morgan,
117 U. S. 96, 29 L. ed. 811, 6 Sup. Ct.
Rep. 657; Frank v. Chemical Nat. Bank,
84 N. Y. 209, 38 Am. Rep. 501; New
York Produce Exch. Bank v. Houston,
95. C. C. A. 251, 169 Fed. 785; Mer-
chants^ Nat. Bank v. Nichols & S. Co.
223 lU. 41, 7 L.R.A.(N.S.) 752, 79 N. E.
38: National Dredging Co. v. Farmers
Bank, 6 Penn. (Del.) 580, 16 L.R.A.
(N. S.) 693, 130 Am. St. Rep. 158, 69
Atl. 607; Brixen v. Deseret Nat. Bank,
5 Utah, 504, 18 Pac. 43; United States
V. National Bank, 123 C. C. A. 501, 205
Fed. 433: First Nat. Bank v. First Nat.
Bank, 151 Mass. 280, 21 Am. St. Rep.
450, 24 N. E. 44.
Mr. Henry Boot Stem argued the
cause and filed a brief for defendant in
error:
The drawee of a forged check or draft
is bound, at his peril, to know the
drawer^s signature, and • cannot, after
pa\'ment of such check to an innocent
holder for value, recover back the
amount of such payment from the latter.
Price V. Neal, 3 Burr. 1354, 97 Eng.
Reprint, 871, 1 W. B. 390, 96 Eng. Re-
print, 221; Bank of United States v.
Bank of Georgia, 10 Wheat. 333, 6 L. ed.
334: United States v. Bank of New York,
Nat. Bkg. Asso. L.R.A.1915D, 797, 134
C. C. A. 579, 219 Fed. 648; National
Park Bank v. Ninth Nat. Bank, 46 N. Y.
77, 7 Am. Rep. 310 ; Bank of St. Albans
V. Farmers & M. Bank, 10 Vt. 141, 33
Am. Dec. 188; First Nat. Bank v. First
Nat. Bank, 58 Ohio St. 207, 41 L.R.A.
584, 66 Am. St. Rep. 748, 60 N. E. 723;
State Nat. Bank v. Bank of Magdalena,
21 N. M. 653, L.R.A.1916E, 1296, 157
Pac. 498, 14 N. C. C. A. 567; Bergstrom
V. Ritz-Carlton Restaurant & Hotel Co.
171 App. Div. 776, 157 N. Y. Supp. 959:
Germania Bank v. Boutell, 00 Mi-n. 189.
6715
27 L.R.A. 636, 51 Am. St. Rep. 519, 62
N. W. 327; Am^, 4 Harvard L. Eev.
297.
This is equally true, even though tiM
indorsement of the purported payee abo
is forged.
Postal Teleg. Cable Co. v. Citisens'
Nat. Bank, 143 C. C. A. 601, 228 Fed.
601; State Bank v. Cumberland Sav. 4b
T. Co. 168 N. C. 606, L.R.A.1915D, 1138,
85 S. E. 6 ; Deposit Bank v. Fayette Nat.
Bank, 90 Kv. 10, 7 L.R.A. 849, 13 S. W.
339; First Nat. Bank v. Marshalltown
State Bank, 107 Iowa, 327, 44 L,R.A
131, 77 N. W. 1045; Howard v. Mississip-
pi Valley Bank, 28 La. Ann. 727, 26 Am.
Rep. 106; Bank of England v. Vagliano
Bros. [1891] A. C. 107, 60 L. J. Q. B. N.
S. 145, 64 L. T. N. S. 353, 39 Week. Rep.
657, 55 J. P. 676, 3 Eng. Rul. Cas. 696;
National Park Bank v. Ninth Nat. Baidc,
46 N. Y. 77, 7 Am. Rep. 310; National
Bank v. United States, 140 C. C. A. 21f ,
224 Fed. 679, s. c. 123 C. C. A. 501. 205
Fed. 433; 2 Parsons, Bills & Notes, 591;
Robinson v. Yarrow, 7 Taunt. 455, 129
Eng. Reprint, 183, 1 J. B. Moore, 150.
'18 Revised Rep. 637; Cooper v. Mever,
10 Bam. & C. 468, 109 Eng. Reprint.
625, 8 L. J. K B. 171 ; Beeman v. Duck.
11 Mees. & W. 261, 162 Eng. Reprint.
796, 12 L. J. Exch. N. S. 198, 4 Eng. Bui.
Cas. 622; Williams v. Drexel, 14 Md.
666.
Inasmuch as the individual drawing
the instrument did not intend that the
person named as payee thei^in should
have any interest in it, or even posses-
sion thereof, such payee was, within the
Negotiable Instruments Law, a fictitious
payee, and hence the instrument wa:^
payable to bearer, and the indorsement
surplusage.
Bank of England v. Vagliano Bros.
[1891] A. C. 107, 60 L. J. Q. B. K. 8.
145, 64 L. T. N. S. 353, 39 Week. Rep.
657, 65 J. P. 676, 3 Eng. RuL Cas. 695;
Trust Co. of America v. Hamilton Bank,
127 App. Div. 515, 112 N. Y. Supp. 84;
Snvder v. Com Exch. Bank, 221 Pa. 599,
128 Am. St Rep. 780, 70 Atl. 876 ; Bart-
lett V. First Nat. Bank, 247 111 490, 93
N. E. 337; Phillips v. Mercantile Nat.
Bank, 140 N. Y. 656, 23 L.R.A. 584, 37
Am. St. Rep. 696, 35 N. E. 982 ; Chitton
V. Attenborough & Sons [1897] A. C. 90,
66 L. J. Q. B. N. S. 1*22, 75 L. T. N. 8.
556, 45 Week. Rep. 276; CoggiU v.
American Exch. Bank, 1 N.. Y. 113, 49
Am. Dec. 310; Phillips v. Ln Thum, 18
C. B. N. S. 694, 144 Eng. Reprint. «I7,
, 11 Jur. N. S. 489, 13 Week. Rep. 760;
, Kohn V. Watkins, 26 Kan, 691, 40 Am.
952 17. 8.
1919.
UNITED STATES v. CHASE NATIONAL BANK.
490, 491
Bcp. 336; Ort v. Fowler, 31 Kan. 478,
47 Am. Rep. 501, 2 Pae. 680 ; Lane v.
Krekle, 22 Iowa, 405; Famsworth y.
Drake, 11 Ind. 101; Blodgett y. Jackson,
40 N. H. 21 ; Re Pendleton Hardware Co.
24 Or. 330, 33 Pac. 544.
The record fails to disclose any facts
sufficient to justify a finding that the
Howard National Bank was negligent.
Dedbam Nat. Bank. v. Everett Nat.
Bank, 177 Mass. 392, 83 Am. St. Rep.
286, 59 N. E. 62.
Both parties having moved for the di-
rection of a verdict, the exception to the
finding of the trial judge in favor of the
defendant does not permit the plaintiff
to raise the question of the negligence of
the Howard National Bank for review by
this court upon writ of error.
4 Wigmore, Ev. § 2552 (c), p. 3693;
Beutell y. Magone, 157 U. S. 154, 39 L.
ed. 654, 15 Sup. Ct. Rep. 566; Williams
V. Vreeland, 250 U. S. 295, 63 L. ed. 989,
3 A.L.R. 1038, 39 Sup. Ct. Rep. 438;
Sena v. American Turquoise Co. 220 U.
S. 497, 55 L. ed. 559, 31 Sup. Ct. Rep.
488 ; Bo wen v. Chase, 98 U. S. 254, 25 L.
ed. 47; Martinton v. Fairbanks, 112 U. S.
670, 28 L. ed. 862, 5 Sup. Ct. Rep. 321;
Kentucky Life & Acci. Ins. Co. v. Hamil-
ton, 11 C. C. A. 42, 22 U. S. App. 386,
548, 63 Fed. 93; Wilson v. Merchants'
Loan & T. Co. 183 U. S; 121, 46 L. ed.
113, 22 Sup. Ct. Rep. 55; Lehnen v. Dick-
son, 148 U. S. 71, 37 L. ed. 373, 13 Sup.
Ct. Rep. 481; Otoe County v. Baldwin,
in U. S. 1, 12, 28 L. ed. 331, 335, 4
Sup. Ct. Rep. 265; Basset y. United
States, 9 Wall. 38, 40, 19 L. ed. 548, 549;
Dooley v. Pease, 180 U. S. 126, 131, 45
L. ed. 457, 460, 21 Sup. Ct. Rep. 329;
Hepburn v. Dubois, 12 Pet. 345, 9 L. ed.
nil.
Even assuming that the Howard Na-
tional Bank was negligent in cashing the
check, such negligence could not be
charged to the defendant bank, which
was a bona fide purchaser for value.
Merchants Nat. Bank v. Santa Maria
Sugar Co. 162 App. Div. 248, 147 N. Y.
Supp. 498; National Park Bank y. Sea-
board Bank, n4 N. Y. 28, 11 Am. St,
Rep. 612, 20 N. E. 632 ; Rickerson Roller-
Mill Co. V. Farrell Foundry & Mach. Co.
23 C. C. A. 302, 43 U. S. App. 452, 75
Fed. 554; National Park Bank v. Ninth
Nat. Bank, 46 N. Y. 77, 7 Am. Rep. 310;
Jones V. Miners & M. Bank, 144 Mo.
App, 428, 128 S. W. 829; Pennington
Countv Bank v. First State Bank, 110
•4 L.^ed.
Minn. 263, 26 L.R.A.(N.S.) 849, 136 Am.
St. Rep. 496, 126 N. W. 119; Raphael v.
Bank .of England, 17 C. B. 161, 139 Eng.
Reprint, 1030, 25 L. J. C. P. N. S. 33, 4
Week. Rep. 10; United States v. Bank
of New York, Nat. Bkg. Asso. L.R.A.
1915D, 797, 134 C. C. A. 579, 219 Fed.
648.
The stipulated facts set forth in the
record establish such negligence on the
part of the plaintiff as will, irrespective
of any other question in this case, pre>
elude its right to recovery. The gen-
eral verdict directed in favor of the de-
fendant necessarily constituted a finding
of such negligence, which this court will
not disturb upon writ of error.
Leather Mfrs. Nat. Bank v. Morgan,
117 U. S. 96, 115, 29 L. ed. 811, 818, 6
Sup. Ct. Rep. 657 ; Marks v. Anchor Sav.
Bank, 252 Pa. 310, LJI.A.1916E, 906,
97 Atl. 399, 14 N. C. C. A. 812 ; Glouces-
ter Bank v. Salem Bank, 17 Mass. 33;
United States v. Central Nat. Bank, 6
Fed.- 134; Salas v. United States, 148 C.
C. A. 440, 234 Fed. 842; United States
v. Bank of New York, Nat. Bkg. Asso.
L.R.A.1915D, 797, 134 C. C. A. 579, 219
Fed. 649.
Mr. Justice McBeyndlds delivered the
opinion of the court :
Plaintiff in error sued the defendant
bank, at law, to recover money paid out
under mistake of fact. The complaint
alleged :
"First That at all times hereinafter
mentioned, the plaintiff was and is a
corporation sovereign, and the defendant
was and is an association organized for
and transacting the business of banking
in the city, state, and southewi district of
New York, under and pursuant to the
provisions of the acts of Congress in
such case made and provided;
"Second. That on or about the 18th
day of December, 1914, the defendant
presented to the Treasurer of the United
States at Washington, District of Co-
lumbia, for payment, a draft in the sum
of $3,571.47, drawn on the Treasurer of
the United States, payable to the order
of E. V. Sumner, 2d Lt., 2d Cav., A. Q.
M., and purporting to be drawn by E. V.
Sumner, Acting Quartermaster, U. S. A.,
and to be indorsed by E. V. Sumner, 2d
Lt., 2d Cay. A. Q. M., the [491] How-
ard National Bank, and the defendant; a
copy of said draft and the indorsements
on the back thereof is hereto attached
677
491-493
SUPREME COURT OF THE UNITED STATES.
Oct. Tmk.
and marked exhibit A^^ and made a part
hereof:
[492] "Third. That at the date of the
presentation of said draft by the defend-
ant to the Treasurer of the United
States, the defendant was a depository
of the funds of the United States of
America, and payment of said draft to
the defendant was thereupea made by
the plaintiff, by passing a credit for the
amount of said draft to the defendant
upon the accounts of the defendant, as
depository for the funds of the plain-
tiff;
"Fourth. That the name of said E.
V. Sumner, 2d Lt., 2d Cav., A. Q. M.,
indorsed upon the back of said draft,
was forged and had been wrongfully
and fraudulently written upon the same'
by a person other than the said £. Y.
Sumner, without his knowledge or con-
sent, and no part of the proceeds of said
draft were ever received by him ;
"Fifth. That the payment of said
draft made by the plaintiff to the de-
fendant, as described in paragraph three
of this complaint, was made under a mis-
take of fact and without knowledge that
the signature of the said E. V. Sumner,
2d Lt., 2d Cav., A. Q. M., payee thereof,
had been forged upon the back of said
draft;
"Sixth. That the plaintiff has duly re-
quested the defendant to repay to it the
amount of said draft, to wit, -$3,571.47,
but the defendant has failed and re-
fused to pay the same or any part there-
of to the plaintiff.
"Wherefore, the plaintiff demands
judgment against the defendant in the
sum of $3,571.47, with interest thereon
from the 18th day of December, 1914,
faBethwr with the costs and
meftta Af tbig aotioiL''
The bank denied liability, «iid
other things claimed that thfi same p^r^
8<m wrote the name £. V. Sumner tipea
the draft both as drawer and indorser.
The facts were stipulated.
It appears : Lieutenant Sumner, Quar-
termaster and Disbursing Officer at
Fort Ethan Allen, near Burlington,
Vermont, had authority to draw on the
United States Treasurer. Seigv^ant
Howard was his finance clerk and so
[493] known at the Howard National
Bank of Burlington. Utilizing the of-
ficial blank form, Howard .manufactured
in toto the draft in question,— exhibit
A. Having forged Lieutenant Sumner'.';
name both as drawer and indorser, he
cashed the instrument over the counter
at the Howard National Bank without
adding his own name. That bank im-
mediately indorsed and forwarded it for
collection and credit to the defendant at
New York city ; the latter promptly pre-
sented it to the drawee (the Treasurer),
received payment, and credited the pro-
ceeds as directed. Two weeks thereafter
the Treasurer discovered the forgery and
at once demanded repa^-ment, which was
refused. Before discovery of the forgery
the Howard National Bank ^withdrew
from the Chase National Bank sums ag-
gregating more than its total balance im-
mediately after such proceeds were
credited ; but additional subsequent cred-
it items had maintained ite balance con-
tinuously above the amount of the draft.
Both sides asked for an instrudted
verdict without more. The trial court
directed one for the defendant (241
Fed. 535), and judgment thereon was af>
1 (Ex. A.K [Face.]
Office of the Quartermaster.
Fort Ethan Allen, Vermont.
War December
Quartermaster 15, 1914.
Thesaur Amer 444
(Shield) Treasurer of the United
States 15-51
Septent Sigil.
Pay to the order of E. V. Summer. 2d Lt.,
2d Oav., A. Q. M $3,571.47
Thirty-five hundred leventy-one & 47/100
dollars.
Object for which drawn; Vo. No. Cash
transfers.
E. V. Sumner.
Acting Quartermaster, U. 8. A. 21,739.
(Ex. A.) [Back.] .
Form Approved hy the
Comptroller of the
Treasury
January 27. 1913.
67a
This check must be indorsed on the line
below by the person in whose favor it is
drawn, and the name must be spelled exact-
ly the same as it is on the lace ol the
check.
If indorsement is made by mark (X) it
must be witnessed by two persons who can
write, giving their * place of residence in
full.
E. V. Sumner,
(Sign on this line)
2d Lt., 2 Cav., AQM.
Pav Chase National Bank
New York, or Order,
Restrictive indorsements guaranteed.
Howard Nat*l Bank,
58-3 Burlington, Vt. 58-3,
M. T. Butter. Cashier.
Received payment from
The Treasiu-er of the United States
Dec. 16. 1914.
1-74 The Chase National Bank 1-74
Of the citv of New York.
M2 V. m.
1JU».
UNITED STATES v. CHASE NATIONAL BANK.
493-^95
ftrmed by the circuit court of appeals.
162 C. C. A. 277, 250 Fed. 105. If im-
portant, the record discloses substantial
evidence to support the . finding neces-
sarily involved that no actual negligence
or bad faith, attributable to defendant,
contributed to success of the forgery.
Williams v. Vreeland, 250 U. S. 295, 298,
63 L, ed. 989, 991, 3 A.L.R. 1038, 39 Sup.
Ct Rep. 438.
. The complaint placed the demand for
recovery solely upon the forged indorse-
jnent, — ^neither negligence nor bad faith
is set up. If the draft had been a valid
instrument, with a good title thereto in
some other than the collecting bank,
nothing else appearing, the drawee might
recover as for money paid under mistake.
Hortsman v. Henshaw, 11 How. 177, 183,
13 L. ed. 653, 656. But here the whole
instrument was forged, never valid, and
nobody had better right to it than the
jcollecting bank.
[494] Price v. Neal (1762) 3 Burr.
1354, 1357, 97 Eng. Reprint, 871, held
that it is incumbent on the drawee to
know the drawer's hand, and that if the
former pay a draft upon the latter's
forged name to an innocent holder not
chargeable with fault, there can be no re-
covery. "The plaintiff cannot recover
the money unless it be against conscience
in the defendant to retain it." "But it
can never be thought unconscientious in
the defendant to retain this money when
be has once received it upon a bill of ex-
change indorsed to him for a fair and
valuable consideration which he had
bona fide paid without the least privity
or suspicion of any forgery.'' And the
doctrine so announced has been ap-
proved and adopted by this court. Bank
of United States v. Bank of Georgia, 10
Wheat. 333, 348, 6 L. ed. 334, 339;
Hoffman v. National City Bank, 12 Wall.
181, 192, 20 L. ed. 366, 369; Leather
Mfrs. Nat. Bank v. Morgan, 117 U. S.
96, 109, 29 L. ed. 811, 816, 6 Sup. Ct.
Rep. 657; United States v. National
Exch. Bank, 214 U. S. 302, 311, 53 L. ed.
1006, 1009, 29 Sup. Ct. Rep. 665, 16 Ann.
Cas. 1184.
In Bank of United States v. Bank of
(Georgia, through Mr. Justice Stor3% this
court said concerning Price v. Neal :
'Sphere were two bills of exchange,
which had been paid by the drawee, the
drawer's handwriting being a forgery;
one of these bills had been paid, when
it became due, without acceptance; the
other was duly accepted, and paid at
maturity. Upon discovery of the fraud,
the drawee brought an action against the
holder to recover back the money so
paid, both parties being admitted to be
•4 li. ed.
equally innocent. Lord Mansfield, after
adverting to the nature of the action,
which was for money had and received,
in which no recovery could be had, un-
less it be against conscience for the de-
fendant to retain it, and that it could
not be affirmed that it was uneonsci-
entious for the defendant to retain it,
he having paid a fair and valuable con-
sideration for the bills, said : 'Here was
no fraud, no wrong. It was incumbent
upon the plaintiff to be satisfied that the
bill drawn upon him was the drawer's
hand, before he accepted or paid it. But
it was not incumbent upon the defendant
[495J to inquire into it. There was no-
tice given by the defendant to the plain-
tiff, of a bUl drawn upon him, and he
sends his servant to pay it, and take it
up. The other bill he actually accepts,
after which the defendant, innocently
and bona fide, discounts it. The plain-
tiff lies by a considerable time after he
has paid these bills, and then found out
that they were forged. He made no o*b-
jection to them at the time of paying
them. Whatever neglect there was, Wfis
on his side. The defendant had actual
encouragement from the plaintiff for ne-
gotiating the second bill, from the plain-
tiff's having, without any scruple or hesi-
tation, paid the first; and lie paid the
whole value bona fide. It is a misfor-
tune which has happened without the
defendant's fault or neglect. If there
was no neglect in the plaintiff, yet there
is no reason to throw off the loss from
one innocent man upon another innocent
man. But, in this case, if there was any
fault or negligence in anyone, it certain-
ly was in the plaintiff, and not in the
defendant.' The whole reasoning of
this case applies with full force to that
now before the court. In regard to the
first bill, there was no new credit given
by any acceptance, and the holder was
in possession of it before the time it
was paid or acknowledged. So that there
is no pretense to allege that there is
any legal distinction between the case
of a holder before or after the accept-
ance. Both were treated in this judg-
ment as being in the same predicament,
and entitled to the same equities. The
case of Price v. Neal has never since
been departed from; and in all the sub-
sequent decisions, in which it has been
cited, it has had the uniform support of
the court, and has been deemed a satis-
factory authority."
Does the mere fact that the name of
Lieutenant Sumner was forged as in-
dorser as well as drawer prevent ap-
plication here of the established rule?
• 79
495, 496
SUPREME COURT OF THE UNITED STATES.
Oct. Tdm,
We think not In order to recover, plain-
tiff must show that the defendant cannot
retain the money with good conscience.
Both are [496] innocent of intentional
fault. The drawee failed to detect the
forged signature of the drawer. The
forged indorsement puts him in no worse
position than he would occupy if that
wei^ genuine. He cannot he called upon
to pay again, and the collecting bank
has not received the proceeds of an in-
strument to which another held a better
title. The equities of the drawee who
has paid are not superior to those of the
innocent c<^lecting bank, who had full
right to act upon the assumption that
the former knew the drawer's signature,
or at least took the risk of a mistake
concerning it. Bank of England v. Yag-
liano Bros. [1891] A. C. 107, 60 L. J. Q.
B. N. S. 145, 64 L. T. N. S. 353, 39 Week.
Rep. 657, 55 J. P. 676, 3 Eng. Rul. Cas.
695; Dedham Nat. Bank v. Everett Nat.
Bank, 177 Mass. 392, 395, 83 Am. St
Rep. 286, 59 N. E. 62 ; Deposit Bank v.
Fayette Nat. Bank, 90 Ky. 10, 7 L.R.A.
849, 13 S. W. 339; National Park Bank
v: Ninth Nat. Bank, 46 N. Y. 77, 80, 7
Am. Rep. 310; Howard v. Mississippi
Valley Bank, 28 La. Ann. 727, 26 Am.
Rep. 105; First Nat. Bank v. Marshall-
town State. Bank, 107 Iowa, 327, 44
L.R.A. 131, 77 N. W. 1045 ; State Bank
V. Cumberland Sav. & T. Co. 168 N. C.
606, L.R.A.1915D, 1138, 85 S. E. 5; 4
Harvard L. Rev. 297, Article by Prof.
Ames. And see Cooke v. United States,
91 U. S. 389, 396, 23 L. ed. 237, 242.
The judgment of the court below is
affirmed.
Mr. Justice Clarke dissents.
MICHAEL U. BOEHMER, Petitioner,.
V.
PENNSYLVANIA RAILROAD COMPANY.
(See S. C. Reporter's ed. 496-498.)
Master and servant — safety ^pliances
— handholds or grab Irons.
1. Handholds or grab irons on all four
outside comers of freight cars are not re-
quired by the provision of the Safety Ap^
pliance Act of March 2, 1893, making un-
lawful the use of any car in interstate
commerce unless such car is provided wifli
secure erab irons or handholds in the ende
and sides for greater security to met in
coupling and uncoupling cars. The cam-
mands of the statute are met by secure and
adequate handholds at two diagcnaal cor-
ners of the car.
[For other cases, see Master and Servant, JL
a» 2, d. In Digest Sup. Ct. 1908.]
Appeal •— review of facts — negligence—
concnrrenit -findings.
2. The concurrent judgment of the tw«
courts below that a railwav carrier irai
not negligent in failing to give wamisff to
a brakeman concerning Uie nse of frei^
cars with handholds only at two diagonal
comers, will not be disturbed by the Fed-
eral Supreme Court.
[For other cases, see Appeal and Error, 498^
. 4959. In Digest Sup. Ct. 1908.]
[No. 191.]
Argued March 10 and 11, 1920. Decidod
April 19, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to review a judgment
which affirmed a judgment of the Dis-
trict Court for the Western District «f
New York, directing a verdict in favor
of defendant in a suit based upon Hat
Federal Employers' Liability and Safety
Appliance Acts. Affirmed.
See same case below, 165 C. C. A. 3,
252 Fed. 553.
The facts are stated in the opinion.
Messrs. Edwin C. Brandenburg and
Thomas A. Sullivan argued the eanw
and filed a brief for petitioner:
The Safety Appliance Acts require 8«^
cure handholds, grab irons, and sill steps
at all four comers on the outside.
United States v. Baltimore & O. B. Co.
184 Fed. 94; United States v. Norfolk
& W. R. Co. 184 Fed. 99 ; United States
V. Central of Georgia R. Co. 157 f^i
893.
The Safety Appliance Acts are reme-
dial statutes, and must be construed ^o
as to accomplish the intuit of Congress
Johnson v. Southern P. Co. 196 U. S.
Note. — On the constitutionality, appli-
cation, and effect of the Federal Em-
ployers' Liability Act — see notes to
Lamphere v. Oregon R. & Nav. Co. 47
L.R.A.(N.S.) 38; and Seaboard Air Line
R. Co. V. Horton, L.R.A.1915C, 47.
On duty and liability under Federal
and state railway safety appliance acts
— see notes to Chicago, M. & St. P. R.
Co. V. United States, 20 L.R.A.(N.S.)
1180
473 ; and Lake Shore & M. S. R. Co. v.
Benson, 41 L.R.A.(N.S.) 49.
On state regulation of equipment of
rolling stock as interference with inter-
state Commerce — see note to Atlantic
Coast Line R. Co. v. State, 32 LBX
(N.S.) 20.
On liability of railway company fw
injury to servant while using as hand-
hold an appliance not designed for that
253 U. 6.
Idl».
BOEHMER V. PENNSYLVANIA R. CO.
1, 49 L. ed. 363, 25 Sup. Ct. Rep. 158,
17 Am. Neg. Kep. 412. •
They impose an absolute and unquali-
Aed duty on carriers engaged in inter-
atftte commerce to equip all cars with the
appliances provided by the statute, and
to maintain the same in a secure condi-
tion.
Texas & P. R. Co. v. Rigsby, 241 U. S.
33, 60 L. ed. 874, 36 Sup. Ct. Eep. 482;
St. Louis, I. M. & S. R. Co. v. Taylor,
210 U. S. 281, 52 L. ed. 1061, 28 Sup.
dL Bep. 616, 21 Am. Neg. Rep. 464;
Cbicacro, B. & Q. R. Co. v. United States,
220 U. S. 559, 65 L. ed. 632, 31 Sup. Ct.
Rep. 612; Delk v. St. Louis & S. F. R.
Co. 220 U. S. 680, 55 L. ed. 590, 31 Sup.
Ct. Bep. 617; United States v. Pere
Marquette R. Co. 211 Fed. 220.
The statutes are not satisfied by
equivalents or anything less than literal
compliance with what is prescribed. A
pin lifter or uncoupling lever extending
across the tender just above the coupler
cannot be held in effect a substitute for
the grab irons and handholds required
by the statute.
St. Joseph & G. I. R. Co. v. Moore,
243 U. S. 311, 61 L. ed. 741, 37 Sup. Ct.
Bep. 278.
Providing an automatic coupler which
could be operated from one side of a car
is not a compliance if an employee would
hlive to go between the cars to make
cdUpling if at the other side thereof.
United States v. Central of Georgia R.
Co. 157 Fed. 893.
Any variation from the customary and
usual location and style of handhold,
grab iron, or sill step, or in the placing
of the lights, may lead to^ injury to the
emoloivee
Eri^R.* Co. V. Schleenbaker, 168 C. C.
A. 617^ 257 Fed. 667. .
Where an employee is injured by rea-
son of the failure to equip a car with the
necessary and required safety appli-
ances, liability for the damages suffered
is implied, and the right thereto seems
absolute.
Texas A P. R. Co. v. Bigsby, 241 U. S.
33, 60 L. ed. 874, 36 Sup. Ct. Bep. 482;
St. Louis, I. M. & S. R. Co. v. Taylor,
210 U. S. 281, 52 L. ed. 1061, 28 Sup.
Ct. Rep. 616, 21 Am. Neg. Rep. 464; Chi-
cago, B. & Q. R. Co. V. United States,
220 U. S. 559, 55 L. ed. 582, 31 Sup. Ct.
purpose — see note to El Paso & S. W. B.
Co. V. Vizard, 53 L. ed. U. S. 348.
Measure of duty under requirements of
Safety Appliance Acts as to hand-
holds or grab irons on railway cars.
The present note is confined to a dis-
cussion as to what equipment is a com-
pliance with the statutes requiring grab
irons or handholds, and does not enter
into a discussion of the duty to inspect
such appliances and maintain them in
proper shape. .
Section 3 of the Act of April 14, 1910,
conferred upon the Interstate Commerce
Commission, after hearing, the right to
designate ^'the numbers, dimensions, lo-
cation and manner of application, of the
appliances provided for by § 2 of the
act,'' among which appliances were hand-
holds' or grab irons. The rules of this
Commission are beyond the scope of this
discussion.
The construction of the requirements
of the Federal Safety Appliance Act as
to the necessity of locating the grab
irons or handholds on each of the four
comers of the car is settled by the decision
in BOEHMER V. Pennsylvania B. Co.
This is contrary to the decision in Ewing
V. Coal & Coke B. Co. 82 W. Va. 427, 96
S. E. 73, to which certiorari was denied
by the United States Supreme Court in
247 U. S. 521, 62 L. ed. 1246, 38 Sap. Ct.
Rep. 583.
64 Ti. ed.
The maintenance of a grab iron or
handhold on each side of a car near the
''B'' end was held not to be a compliance
with the Federal Safety Appliance Act,
in United States v. Wabash-Pittsburgh
Terminal B. Co., reported in Thornton,
Federal Employers' Liability, . 2d ed.
Appx. G, p. 660.
It seems to be the opinion of the court
in Daly v. Illinois C. B. Co. 170 111. App.
185, that the Federal Safety Appliance
Act required grab irons, not only at the
end of a tender, but also on the sides of
the tender.
A state statute requiring ^'secure grab
irons or handholds in the side or end''
of each car is stated in Southern B. Co.
V. Bailroad Commission, 179 Ind. 23, 100
N. E. 337, to require grab irons either in
the side or end of the car, while the Fed-
eral statute requiring secure grab irons
and handholds "in the end and sides" of
each car is broader in its requirements.
This case was subsequently reversed by
the Supreme Court of the United States
on the theory that Congress had covered
the field occupied by the state statute,
and therefore the state statute was in-
effective, in 236 U. S. 439, 59 L. ed. 661,
35 Sup. Ct. Bep. 304. The Federal Safe-
ty Appliance Act was held to invalidate
the state act even as applied to freight
cars moving between points within the
state on a railway engaged in interstate
commerce.
SHI
SUPREME COURT OF THE UNITED STATES.
Oct. T:
Rep. 612; Delk v. St. Louis & S. F. R.
Co. 220 U. S. 580, 55 L. ed. 590, 31 Sup.
Ct. Rep. 617; San Antonio & ^ P. R. Co.
V. Wagner, 241 U. S. 476, 60 L. ed. 1110,
36 Sup. Ct. Rep. 630.
If the injury results from a failure to
comply with the Safety Appliance Acts,
then, under the provisions of such acts
and of the Employers' Liability Acts,
assumption of risk and contributory neg-
ligence are eliminated, and do not oon-
stitute a defense.
Grand Trunk Western R. Co. v. Lind-
say, 233 U. S. 42, 58 L. ed. 838, 34 Sup.
Ct. Rep. 581, Ann. Cas. 1914C, 168;
Johnson v. Great. Northern R. Co. 102 C.
A question upon which there is some
conflict is whether the presence of other
projections on a car which may serve the
purpose of handholds relieves the car-
rier of the duty of supplying handholds.
Dodge, District Judge, in charging the
jury in United States v. Boston & M.
R. Co. 168 Fed. 148, says that the Fed-
eral Safety Appliance Act of March 2,
1893, making it unlawful for any rail-
road eompany to use any car in inter-
state commerce 'Hhat is not provided
with secure grab irons or handholds in
the ends and sides of each car for
greater security to men in coupling and
uncoupling ears,'' requires ''secure grab
irons or handholds at those points in the
end of each oar where they are reason-
ably necessary in order to afford to men
coupling or uncoupling cars greater
security than would be afforded them in
the absence of any grab iron or handhold
at that point, or of any appliance afford-
ing equal security with a grab iron or
handhold. If, at any place in the end of
this car, there was not a grab iron or
handhold, properly speaking, but some
other appliance, such as a ladder or
brake lever, or whatever else you please,
which afforded equal security with a grab
iron or a handhold at that point, then
I shall instruct you that the law has not
been violated, so far as a grab iron or
handhold at that point is concerned.
... It may not be possible to say that
a coupling lever or a ladder is a grab
iron or a handhold, but if it affords the
same security to a man who may need to
use one that a grab iron or a handhold,
properly speaking, would afford, then, in
my ju^ment, the statute has not been
violated."
It was left to the jury to say whether
a coupling lever was a grab iron or hand-
hold within the meaning of the Federal
Safety Appliance Act, in United States
682
C. A. 89, 178 Fed. 643; San Antonio St
A. P. R. Co. V. Wagner, 241 U. S. 476,
60 L. ed. 1110, 36 Sup. Ct. Rep. 626;
Texas & P. R. Co. v. Rigsby, 241 U. S.
33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482.
The defendant was guilty of negli-
gence in not instructing and waxnisg tb«
plaintiff that it would require him to
work in and about cars not fitted and
equipped .with the necessary handholds,
frab irons, and steps provided for by the
af ety Appliance Acts.
Illinois C. R. Co. v. Williams, 242 U.
S. 462, 466, 61 L. ed. 437, 440, 37 Sup.
Ct. Rep. 128; McCalman v. Illinois C.
R. Co. 132 C. C. A. 15, 215 Fed. 469.
V. Atchison, T. & S. F. R. Co., r^>erted
in Thornton, Federal Employers' liabil-
ity, 2d ed. Appx. G, p. 665.
A similar decision was made by the
district court for the northern distxiet
of West Virginia in United States v.
Baltimore & 0. R. Co., reported in
Thornton, Federal Employers' Liability,
2d ed. App. G, p. 608.
The contrary opinion is expressed by
the district court for the western di£*
trict of Virginia in United States t,
Baltimore & 0. R. Co. 184 Fed. 94, in
which a railroad company is held gnilty
of a violation of the Federal Safety Ap-
pliance Act, where two of its yard
engines had no handholds in the side,
near the rear end of the tenders, al-
though each of the tenders had, across
its rear end and projecting slightly be-
yond its side, a running board or low
platform and also an uncoupling lever
bar which ran nearly across the entire
end, and so located and of such a char-
acter that it served as a handhold in the
end of the tender. The court states that
although the uncoupling lever might, m
some situations, serve as a handhold, it
is impossible to contend that a properly
placed handhold in addition to the un-
coupling lever might not, under some
circumstances, be of decided use to some
brakeman not of average height er
length of arm, and it is stated that if
the railroad company's witnesses intend-
ed to testify that a handhold in the side,
near the rear end, would be, under all
circumstances, of absolutely no use to
an employee running along at night be-
side the moving tender, and near its rear
end, preparatory to uncoupling, the
"testimony is, to my mind, simply un^
believable."
In a companion case the opinion of
which was filed at the same time, it was
252 17. 6.
1919.
BOEHMER V. PENXSYLVAI^IA R, CO.
49:
Mr. rredflrie D. McKemey argoed
the ^ause, and, /with Mr. John Spalding
Flannery, filed a brief for respondent:
This eonrt is not called upon to
scrutinize the whole record for the pur-
pose of discovering whether it may not
be possible, by a minnte analysis of the
evidence, to draw inferences therefrom
which may possibly conflict with the
conclusions below.
Chicago Junction R. Co. v. King, 222
U. S. 222, 66 L. ed. 173, 32 Sup. Ct. Rep.
79; Southern R. Co. v. Puckett, 244 U.
S. 571, 61 L. ed. 1321, 37 Sup. Ct. Rep.
703, Ann. Cas. 1918B, 69; Seaboard Air
Line B. Co. v. Kenney, 240 U. S. 489, 60
L. ed. 762, 36 Sup. Ct. Rep. 458;
Baugham v. New York, P. & N. R. Co.
241 U. S. 237, 60 L. ed. 977, 36 Sup. Ct.
Rep. 592, 13 N. C. C. A. 138; Missouri
P. R. Co. V. Omaha, 235 U. S. 121, 59 L.
ed. 157, 35 Sup. Ct. Rep. 82.
Mr. Justice McEeynolds delivered the
opinion of the court :
Relying upon the Federal Employers'
LiabiUty Act, petitioner sought damages
for personal injuries sustained by him
November 8, 1915, while employed by re-
I spondent as brakeman. He claimed that
contended that the railroad company
was not required to have grab irons on
passenger coaches, because the presence
of air hose, signal hose, steam hose, un-
coupling chains, breakshafts, dummy
coupling chains, handbreak shafts, and
operating rods of the steam hose, ren-
^red handholds in the ends of the
coaches unnecessary. This contention
was denied. It is stated that the appli-
ances above mentioned were in Use at
the time of the passage of the Safety
Appliance Act, and it must be assumed
that Congress knew thereof, and of the
measure of protection afforded thereby
to employees. With this knowledge the
Safety Appliance Act requiring grab
irons was enacted, and it is stated to be
a fair interpretation that the intent of
Congress was to require protection in
addition to that afforded by the appli-
ances in use to some extent, at least,
prior to the passage of the act. United
States V. Norfolk & W. R. Co. 184 Fed.
99.
That some other appliance so con-
structed that it may be grasped may
serve instead of grab irons, and excuse
their omission, is denied also in Moore
V. St^ Joseph & G. I. R. Co. 268 Mo.
31, 186 S. W. 1035. Accordingly an in-
struction to the effect that ''any iron
rod or iron device securely fastened
upon the end of the tender, of which
employees could conveniently catch hold,
was a handhold or grab iron within the
meaning of the law,'' was disapproved.
In Missouri, £L & T. R. Co. v. Barring-
ton, — Tex. Civ. App. — , 173 S. W. 595,
an action for personal injuries due to a
defective handhold on the top or roof of
a car, the court states that "the fact
that the handhold in question was on the
top of the car, and not on the side or
end thereof, is unimportant. It was a
necessary appliance for the. safety of
•4 li. ed.
the railway company's employees in per-
forming the duties required of them, and
is clearly included in the statute." Fed-
eral Safety Appliance Act, passed April
14, 1910, to supplement an Act to Pro-
mote the Safety of Employees, etc., pro-
viding, among other things, that ''all
cars having ladders shall also be
equipped with secure handholds or grab
irons on their roofs at the top of such
ladder."
The statute requiring grab irons to be
attached to "all trains, locomotives,
tenders, cars, and similar vehicles used
on any railroad engaged in interstate
commerce," requires grab irons upon
passenger cars. Norfolk & W. R. Co. v.
United States, 101 C. C. A. 249, 177 Fed.
623; United States v. Norfolk & W. R.
Co. supra.
The statute applies to cars, whether
emptv or loaded. Malott v. Hood, 201
m. 202, 66 N. E. 247.
The validity of the Texas Safety Ap-
pliance Act, which made it unlawful for
any common carrier engaged in com-
merce to use, in moving intrastate
traffic within the state, any locomotive,
tender, cars, or similar vehicle "which is
not provided with sufficient secure grab
irons, handholds, and foot stirrups," was
attacked in Galveston, H. & S. A. R. Co.
V. Enderle, — Tex. Civ. App. — , 170 S.
W. 276, on the ground that it did not
designate the numbers, dimensions, lo-
cation, and manner of application of the
appliances provided for, or prescribe any
means by which the legislative intent in
that regard could be ascertained. The
court, after stating in a general way
that the language seems to be plain and
simple, and capable of being understood,
continues that the requirements thereof
were not complied with by furnishing a
handhold which gave way when used
by an employee.
•88
49T-499
SUPREME COURT OF THE UNITED STATES.
Oct. TekK,
the railroad was negligent in using a
freight oar not equipped with handholds
or grab irons on all /our outside corners;
and also in failing to instruct him that
he would be required to work about cars
not so equipped. The car in question had
secure and adequate handholds on the
diagonally opposite comers. Being of
opinion that this equipment sufficed to
meet the commands of the statute, and
that, under the circumstances disclosed,
failure to instruct the petitioner concern-
ing possible use of such car did not con-
stitute negligence, the trial court directed
verdict for respondent.
The circuit court of appeals affirmed
the consequent judgment. 165 C. C. A.
31 252 Fed. 553.
'[498] Section 4 of the Safety Appli-
ance Act of March 2, 1893 (27 Stat, at
L. 531, chap. 196, Comp. Stat. § 8608, 8
Fed. Stat. Anno. 2d ed. p. 1174) pro-
vides :
"That from and after the first day of
July, eighteen- hundred and ninety -five,
until otherwise ordered by the Interstate
Commerce Commission, it shall be unlaw-
ful for any railroad company to use any
car in interstate commerce that is not
provided with secure grab irons or hand-
holds in the ends and sides of each car
for greater security to men in coupling
and uncoupling cars."
Petitioner insists that the Act of 1893
was designed for the safety of employees,
and specified grab irons or handholds in
the end and sides of each car as one of
the essential requirements. That while it
did not specifically command that these
should be placed at all four comers, this
was the obvious intent. But the courts
below concurred in rejecting that con-
stniction, and we cannot sav thev erred
in so doing. Section 4 must be inter-
preted and applied in view of practical
railroad operations; and having con-
sidered these, the courts below ruled
against petitioner's theory.
Likewise we accept the concurrent judg-
ment of the lower courts that the carrier
was not negligent in failing to give warn-
ing concerning the use of cars with
handholds only at two diagonal comers.
Whether this constituted negligence de-
pended upon an appreciation of the
peculiar facts presented, and the inile is
well settled that in such circumstances,
where two courts have agreed, we will
not enter upon a minute analysis of the
evidence. Chicago Junction R. Co. v.
ICing. 222 U. S. 222, 56 L. ed. 173, 32
Sup. Ct. Rep. 79.
The judgment is affirmed.
6S4
[499] 0* B. MUNDAY, Trustee, et aL,
Plflfg. in Err.,
v.
WISCONSIN TRUST COMPANY et al.i
(See S. C. Eeporta-'s ed. 499-503.)
£rror to state court — review — non-
Federal question.
1. Whether a state statute did or did
not validate a contract theretofore unen-
forceable is a question for the state courts
to decide, and their decision is not subject
to review in the Federal Supreme Court.
[For other cases, see Appeal and Error, 2072-
2226, In Digest Sup. Ct. 1908.]
Constitutional law — impairing con-
tract* obligations — legislation ante-
dating contract.
2. The contract clause of the Federal
Constitution applies only to legislation sub-
sequent in time to the contract alleged to
have been iAipaired.
[For other cases, see ConstjltutioDal Law, 12TS—
1288, in Digest Sup. Ct. 1908.1
Constitutional law — due process of ln«r
— acquisition of property by torHgm
c<Mrporation.
3. A state statute under \irhich convej-
ances to a foreign corporation of real prop-
erty situated within the state are invalid^
though executed and delivered in another
state, if the grantee had not theretofore
filed a copy of its charter with the secre-
tary of state, does not take property with-
out due process of law.
[For other cases, see Constitutional Law, 441—
449, In Digest Sup. Ct. 1908. J
[No. 288.]
Argued and submitted March 25, 1920.
Decided April 19, 1920.
IN ERROR to the Supreme Court of the
State of Wisconsin to review a judg-
ment which modified, and affirmed as
modified, a judgment of the Circuil
Court for Racine County, in that state,
invalidating certain conveyances of real
property to a foreign corporation. Af-
firmed.
See same case below, 168 Wis. 31, 168
N. W. 393, 169 N. W. 612.
The facts are stated in the opinion.
1 Death of Frederick Robinson, one of the*
defendants in error herein, suggested, and
appearance of Farmers Loan & Trust Com-
pany, executor of Frederick Robiusou, de-
ceased, as a party defendant in error here-
in, filed and entered March 25, 1920, on
motion of counsel in that behalf.
Note. — On the general subject of writs
of error from the United States Supreme
Court to .state courts — see notes to
' Martin v. Hunter, 4 L. ed. U. S. 97:
252 T. S.
1919.
MUNDAY V. WISCONSIN T. CO.
Messrs. Walter Bftchracli and Hamil-
ton Moses submitted the cause for plain-
tiffs in error. Mr. Thomas M. Kearney
was on the brief:
Under § 1770b, of the Wisconsin Stat-
utes, and more particularly subsec. 10
thereof, both as written and construed
by the supreme court of Wisconsin prior
to the making of the contract and the
execution and delivery of the deeds in
controversy, such deeds were merely
voidable, and not void. Such statute,
as now administered and enforced
against plaintiffs in error by the su-
preme eourt of Wisconsin, so as to ren-
der such deeds absolutely void, impairs
the obligation of such contract and
deeds, and deprives plaintiffs in error
of their property without due process
of law.
Lanz-Owen & Co. v. Garage Equip-
ment Mfg. Co. 151 Wis. 555, 139 N. W.
303; Mortenson v. Murphy, 163 Wis.
389, 141 N. W. 273; Allen v. Fulton, 167
Wis. 352, 167 N. W. 429; Myles Salt Co.
V, Iberia & St. M. Drainage Dist. 239 U.
S. 478, 60 L. ed. 392, L.R.A.1918E, 190,
36 Sup. Ct. Rep. 204; Mackay Teleg. &
Cable Co. v. Little Rock, 250 U. S. 94,
98, 63 L. ed. 863, 868, 39 Sup. Ct. Rep.
428; Kaukauna Water Power Co. v.
Green Bay & M. Canal Co. 142 U. S. 269,
35 L. ed. 1009, 12 Sup. Ct. Rep. 173;
Muhlk^ V. New York & H. R. Co. 197
U. S. 544, 570, 49 L. ed. 872, 877, 25 Sup.
Ct, Rep. 522; Sauer v. New York, 206
U. S. 536, 549, 51 L. ed. 1176, 1182, 27
Snp. Ct. Rep. 686; Ohio Life Ins. & T.
Co. V. Debolt, 16 How. 432, 14 L. ed.
1003; Gelpcke v. Dubuque, 1 Wall. 206,
17 L. ed. 525; Douglass v. Pike County,
101 U. S. 687, 25 L. ed. 971 ; Allgeyer v.
Louisiana, 165 U. S. 591, 41 L. ed. 836,
17 Sup. Ct Rep. 427.
The judgment of the supreme court
of Wisconsin in declaring the deeds
void, and in refusing to give them
eflBcacy, notwithstanding the validating
Statute of 1917, deprived plaintiffs in
error of their property without due
process of law, in violation of the 14th
Amendment.
Bennington County Sav. Bank v.
Lowrj^, 160 Wis. 659, 152 N. W. 463;
Chicago, B. & Q. R. Co. v. Chicago, 166
U. S. 233, 234, 41 L. ed. 983, 984, 17 Sup.
Ct. Rep. 581; St. Paul Gaslight Co. v.
St. Paul, 181 U. S. 142, 147, 45 L. ed.
788, 791, 2X Sup. Ct. Rep. 575; Jeffer-
son Branch Bank v. Skelly, 1 Black, 436,
17 L. ed. 173; Louisiana R. & Nav. Co.
V. Behrman, 235 U. S. 164, 59 L. ed. 175,
35 Sup. Ct. Rep. 62 ; Mobile & O. R. Co.
V. Tennessee, 153 U. S. 486, 38 L. ed. 793,
14 Sup. Ct. Rep. 968; Houston & T. C.
R. Co. V. Texas, 177 U. S. 77, 44 L. ed.
680, 20 Sup. Ct. Rep. 545; McCullough v.
Virginia, 172 U. S. 109, 43 L. ed. 384, 19
Sup. Ct. Rep. 134.
The legislature of Wisconsin, by the
passage of the amendatory Act of May
11, 1917, amending, inter alia, § 1770 j,
subsec. 1, of the Act of May 10, 1913,
confirmed the title of the Realty Com-
pany, its grantee and successors in title^
and absolutely and unconditionally vali-
dated the title theretofore attempted to
be granted by the Trust Company and
Robinson.
People ex rel. Parsons y. Circuit
Judge, 37 Mich. 287.
Mr. William £. Black argued the
cause, and, with Mr. John B. Simmons,
filed a brief for defendants in error:
The Wisconsin decisions are uniform-
ly to the effect that conveyances to un-
licensed corporations are absolutely
void.
Ashland Lumber Co. v. Detroit Salt
Co. 114 Wis. 66, 89 N. W. 904; Allen v.
Milwaukee, 128 Wis. 678, 5 L.R.A.(N.S.)
680, 116 Am. St. Rep. 54, 106 N. W
1099, 8 Ann. Cas. 392; Duluth Music Co.
V. Clancy, 139 Wis. 189, 131 Am. St.
Rep. 1051, 120 N. W. 854; Lanz-Owen &
Co. V. darage Equipment Mfg. Co. 151
Wis. 555, 139 X. W. 393; Loomis v. Peo-
ple-s Coiistr. Co. 128 C. C. A. 125, 211
Fed. 453; Mortenson v. Murphy, 153
Wis. 389, 141 N. W. 273; Southwestern
Hamblin v. Western Land Co. 37 L. ed.
U. S. 267; Re Buchanan, 39 L. ed. U. S.
884; and Kipley v. Illinois, 42 L. ed. U.
S. 998.
On what adjudications of state courts
can be brought up for review in the Su-
preme Court of the United States by
writ of error to those courts — see note
to Apex Transp. Co. v. Garbade, 62
L.R.A. 513.
On what questions the Federal Su-
preme Court will consider in reviewing
the judgments of state courts — see note
64 J J, e<1.
to Missouri ex rel. Hill v. Dockery, 63
L.R.A. 571.
As to review of questions of fact on
writ of error to a state court — see note
to Smiley v. Kansas, 49 L. ed. U. S. 546.
Grenerally, as to what laws are void as
impairing the obligation of contracts^ —
see notes to Franklin County Grammai-
School V. Bailey, 10 L.R.A. 405 ; Bullard
V. Northern P. R. Co. 11 L.R.A. 246;
Henderson v. Soldiers & S. Monument
Comrs. 13 L.R.A. 169; and Fletcher v.
Peck, 3 L. ed. U. S. 162.
685
SCPREME COURT OF THE UNITED STATED.
Oct. Ter^j.
Slate Co. V. Stephens, 139 Wis. 616, 29
L.R.A.<N.S.) 92. 131 Am. St. Rep. 1074,
120 N. W. 408 ; Hanna v. Kelsey Realty
Co. 145 Wis. 276, 33 L.R.A.(N.S.) 256,
140 Am. St. Rep. 1076, 129 N. W. 1080;
Independent Tug Line v. Lake Superior
Lumber & Box Co. 146 Wis. 121, 131 N.
W. 408; Indiana Road Mach. Co. v.
Lake, 149 Wis. 541, 136 N. W. 178;
Sprout, W. & Co. V. Amery Mercantile
Co. 162 Wis. 279, 156 N. W. 158 : Phoenix
Nursen- Co. v. Trostel, 166 Wis. 216,
L.R.A.1918B, 311, 164 N. W. 995.
The obligations of a contract cannot
be impaired, within the meaning of U.
S. Const, art. 1, § 10> by a statute in
force when the contract was made.
I^high Water Co. v. Easton, 121 U. S.
388, 30 L. ed. 1059, 7 Sup. Ct. R^p. 916;
Diamond Glue Co. v. United States Glue
Co. 187 U. S. 611, 615, 47 L. ed. 328,
332, 23 Sup. Ct. Rep. 206; Pinney v. Nel-
son, 183 U. S. 144, 147, 46 L. ed. 126,
127, 22 Sup. Ct. Rep. 62; Skaneateles
Waterworks Co. v. Skaneateles, 184 U.
S. 367, 46 L. ed. 692, 22 Sup. Ct. Rep.
400; Chicago & A. R. Co. v. McWhirt,
243 U. S. 422, 61 L. ed. 826, 37 Sup. Ct.
Rep. 392: Bacon v. Texas, 163 U. S. 207,
41 L. ed. 132, 16 Sup. Ct. Rep. 1023;
New Orleans Waterworks Co. v. Louis-
ville Sugar Ref. Co. 125 U. S. 18, 31 L.
ed. 607, 8 Sup. Ct. Rep. 741.
The contract clause of the Constitu-
tion is not addressed to such impair-
ment as may arise by mere judicial de-
cisions in the state courts, wttkeut
action by the legislature, even though
such courts may have changed their de-
cisions.
. Central Land Co. v. Laidley, 159 U. S.
103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80;
Gelpcke v. Dubuque, 1 Wall. 175, 17 L.
ed. 620; Mississippi Sc M. R. Co. v.
McClure, 10 Wall. 511, 19 L. ed. 997;
Bacon v. Texas, 163 U. S. 207, 41 L. ed.
132, 16 Sup. Ct. Rep. 1023; New Orleans
Waterworks Co. v. Louisville Sugar Re£
Co. 125 U. S. 18, 31 L. ed. 607, 8 Sup.
Ct. Rep. 741; Mobile Transp. Co. v. Mo-
bile, 187 U. S. 488, 47 L. ed. 272, 23
Sup. Ct. Rep. 170 ; Weber v. Rogan. 188
U. S. 14, 47 L. ed. 365, 23 Sup. Ct. Rep.
263; National Mut. Bldg. & L. Asso. v.
Brahan, 193 U. S. 647, 48 L. ed. 828, 24
Sup. Ct. Rep. 532; Cross Lake Shoot-
ing & Fishing Club v. Louisiana, 224 L'.
S. 639, 66 L. ed. 928, 32 Sup. Ct. Rep.
677; Ross v. Oregon, 227 U. S. 150, 161,
57 L. ed. 458. 463, 33 Sup. Ct. Rep. 220,
Ann. Cas. 1914C, 224; Moore-Mansfield
Constr. Co. v. Electrical Installation Co.
234 U. S. 619. 58 L. ed. 1503, 34 Sup.
Ct. Rep. 941 ; Frank v. Mangum, 237 U.
6S«
S. 309, 344, 69 L. ed. 969, 987, 36 Sup.
Ct. Rep. 682; Cleveland & P. R. Co. v.*
Cleveland, 236 U. S. 50, 59 L. ed. 127,
36 Sup. Ct. Rep. 21 ; O' Neil v. Northern
Colorado Irrig. Co. 242 U. S. 20, 61 L.
ed. 123, 37 Sup. Ct. Rep. 7; Turner v.
Wilkes County, 173 U. S. 461, 43 L. ed.
768, 19 Sup. Ct. Rep. 464.
Every state has the right, without in-
fringement of any ooijLstitutional gr^ar-
anty, to impose such conditions as it
chooses (with certain limitations, not
here in question) upon the exercise by
corporations of other states of their cor-
porate functions, such as the transac-
tion of business and the acquisition of
property within the state.
Diamond Glue Co. v. United States
Glue Co. 187 U. S. 611, 47 I^ ed. 328,
23 Sup. Ct. Rep. 206; Hooper v. Cali-
fornia, 165 U. S. 648, 652, 39 L. ed. 297,
298, 6 Inters. Com. R^. 610, 16 Sup. Ct.
Rep. 207; Chattanooga Nat. Bldg. A L.
Asso. y. Denson, 189 U. S. 408, 47 L. «d.
870, 23 Sup. Ct. Rep. 630; National Mtit.
Bldg. & L. Asso. V. Brahan, 193 U. S.
647, 48 L. ed. 828, 24 Sup. Ct. Rep. 632;
Baltic Min. Co. v. Massachusetts. 231 U.
S. 68, 83, 58 L. ed. 127, 133, 84 Sup. Ct.
Rep. 16; South Carolina ex reL Phoenix
Mut. L. Ins. Co. V. McMaster, 237 U. S.
^, 69 L. ed. 839, 36 Sup. Ct. Rep. 6M;
Ittterstste Amusement Co. v. Albort, 289
U. S. 560, 568, m L. ed. 4S9, 448, 36 Sap.
Ct. Rep. 168.
And whetlier or not a corporate 4M>a-
tract entered into in contraveiition of a
statute regulating foreign waparatmms
was, under the proper coBstm^oii of
such statute, ipso facto void, and there-
fore unenforceable in the courts of an-
other state, does not present a Federal
question under the full faith and credit
clause of the United States Constitntion,
which will sustain a writ of error from
the Supreme Court.
Allen V. Alleghany Co. 196 U. S. 458,
49 L. ed. 551, 25 Sup. Ct. Rep. 311;
Lloyd V. Matthews, 155 U. S. 222, 39
L. ed. 128, 15 Sup. Ct. Rep. 70.
So, if the state statute renders con-
tracts by foreign corporations within its
operation void, no action can be main-
tained on them in a Federal court,
though sitting in another state.
Diamond Glue Co. v. United States
Glue Co. 187 U. S. 611, 47 L. ed. 328, 23
Sup. Ct. Rep. 206 ; McCanna A; F. Co. ▼.
Citizen's Trust & Suretv Co. 36 L.B.A.
236, 24 C. C. A. U, 39 U. S. App. 332,
76 Fed. 420; Cyclone Min. Co. v. Baker
Light A; P. Co.a65 Fed. 996; Pittsbra^jh
Constr. Co. v. West Side Belt R. Co. U
L.R.A.(N.8.) 1145, 83 C. C. A. 601, 154
S52 V. 8.
iai».
MUNDAV V. WISCONSIN T. CO.
Fed. 929; ChatUnooga Nat. Bldg. & L.
Asao. V. Denson, 189 U. S. 408, 47 L. ed.
870, 23 Snp. Ct Rep. 630; Cooper Mfg.
Co. V. Feigoson, 113 U. S. 727, 28 L. ed.
1137, 6 S»p. Ct Bep. 739.
* The highest court of a state, having
held that an act in the exercise of corpo-
rate functions is forbidden to foreign
corporations which have not complied
with the Constitution or statute of the
states as to admission, and that the con-
tracts thence resulting are illegal and
cannot be enforced in the courts, the
Federal court should follow it.
Chattanooga Nat. Bldg. A L. Asso. v.
Denson, 189 U. 8. 408, 47 L. ed. 870, 23
Sup. Ct. Rep. 630; Diamond Glue Co. v.
United States Ghie Co. 187 U. 8. 611, 47
L. ed. 328, 23 Sup. Ct. Rep. 206.
All contracts and deeds for the sale
and conveyance of land are local> and
belong to the jurisdiction where the land
lies, and will not be enforced -when they
are in violation of the laws and settled
policy of the state.
Story, Confl. L. 8th ed. 38, 474, note
a; Wharton, Confl. L. §§ 278, 805, 331;
Meroney V. Atlantic Bldg. A L. Asso. 116
N. C. 882, 47 Am. St Rep. 841, 21 S. E.
924; Armstrong v. Best, 112 N. C. 59, 25
L.R.A. 188, 34 Am. St Rep. 473, 17 S.
£. 14; The Kensington, 183 U. S. 263, 46
L. ed. 190, 22 Sup. Ct. Rep. 102; Fisher
V. Otis, 3 Pinney (Wis.) 78; Bissell v.
Terry, 69 111. 190; Fuss v. Fuss, 24 Wis.
256, 1 Am. Rep. 180; 39 Cyc. 1182;
MUler V. Wilson, 146 III. 523, 37 Am.
St Rep. 186, 34 N. E. 1111; 22 Am. A
Eng. Enc. Law, 1336; Story, Confl. L. §§
37^ 424, 428, 430, 431 ; Rorer, Interstate
Law, 263: 1 Devlin, Deeds, § 65; 32 Cyc.
674; 2 Whart. International Law Dig.
490; Wunderle v. Wunderle, 144 HI. 40,
19 L.R.A. 84, 33 N. E. 195; Hanna v.
Kebiev Realty Co. 145 Wis. 276, 33
LR.A.(N.S.) 255, 140 Am. St. Rep. 1075,
129 N. W. 1080; Fox v. Postal Teleg.
Cable Co. 138 Wis.. 648, 28 L.R.A.(N.S.)
490, 120 N. W. 399; 9 Cyc. 674, note 49;
United States v. Crosby, 7 Cranch, 114,
3 L. ed. 287.
No mere error of the supreme court
of the state in interpreting or applying
the law of the state (if such there should
be) can avail the plaintiffs in error here.
Central Land Co. v. Laidley, 159 U. S.
103, 112, 40 L. ed. 91, 94, 16 Sup. Ct.
Rep. 80; Walker v. Sauvinet, 92 U. S.
99, 23 L. ed. 678; Head v. Amoskeag
Mfg. Co. 113 U. S. 9, 26, 28 L. ed. 889,
895, 5 Sup. Ct. Rep. 441 ; Morley v. Lake
Shore A; M. S. R. Co. 146 U. 8. 162, 171,
S6 L. ed. 925, 930, 13 Sup. Ct. Rep. 54;
Berjemann v. Backer, 157 U. S. 655, 39
L. ed. 845, 15 Sup. Ct. Rep. 727; Knox
V. Exchange Bank, 12 Wall. 379, 383, 20
L. ed. 414, 415.
The Supreme Court of the United
States, in cases involving the application
of state statutes, will be governed by
the interpretation of such statutes
placed thereon by the highest tribunal
of the state, which is regarded as a part
of the statute.
LefiSngwell v. Warren, 2 Black, 599, 17
L. ed. 261; Stone v. Wisconsin, 94 U. S.
181, 24 L. ed. 102.
The ptoper construction of state legis-
lation being a question of local, and not
of Federal, law, the decision of a state
court thereon is not subject to review by
the Federal Supreme Court on writ of
error to that court.
Great Western Teleg. Co. v. Purdy, 162
U. S. 329, 40 L. ed. 986, 16 Sup. Ct. Rep.
810; Lombard v. West Chicago Park,
181 U. 8. 33, 45 L. ed. 731, 21 Sup. Ct.
Rep. 507; Harrison v. Myer, 92 U. 8.
Ill, 23 L. ed. 606; Stryker v. Goodnow
(Stryker v. Crane) 123 IJ. 8. 527, 31 L.
ed. 194, 8 Sup. Ct. Rep. 203; Missouri v.
Dockery, 191 U. 8. 165, 48 L. ed. 133,
63 L.R.A. 571, 24 Sup. Ct. Rep. 53; Gulf
is 8. L R. Co. V. Hewes, 183 U. 8. 66,
46 L. ed*. 86, 22 Sup. Ct. Rep. 26.
And this principle controls although
the Supreme Court of the United States
may doubt the correctness of the state
court's construction, and may have al-
ready accepted and adopted a different
construction of similar legislation of
another state, in deference to the high-
est court of that state.
Carroll County v. United States, 18
Wall. 71, 21 L. ed. 771; Erie R. Co. v.
Pennsylvania, 21 Wall. 492, 22 L. ed.
595; Union Nat. Bank v. Bank of
Kansas City, 136 U. S. 223, 34 L. ed. 341,
10 Sup. Ct Rep. 1013.
The construction of a state law by its
highest court upon a question affecting
the title to real property in the state is
accepted as binding by the Federal Su-
preme Court.
Williams v. Kirtland, 13 Wall. 306, 20
L. ed. 683; Barrett v. Holmes, 102 U. S.
655, 26 L. ed. 292; McArthur v. Scott,
113 U. 8. 391, 28 L. ed. 1031, 5 Sup. Ct.
Rep. 652 ; Polk v. Wendal, 9 Cranch, 87,
3 L. ed. 665; Slaughter v. Glenn, 98 U.
8. 242, 25 L. ed. 122.
And the same rule applies as to the
validity (under the state Constitution),
construction, and effect of statutes in re-
lation to foreign corporations.
Noble V. Mitchell, 164 U. S. 367, 41 L.
ed. 472, 17 Sup. Ct. Rep. 110 ; New York
L. Ins. Co. V. Cravens, 178 U. S. 389, 44
• 87
501
SUPR£M£ COURT OF THE UNITED STATES.
Oct.
L. ed. 1116, 20 Sup. Ct. Rep. 962; Chat-
tanooga Nat. Bldg. & L. Asso. v. Denson,
189 €. S. 408, 47 L. ed. 870, 23 Sup. Ct
Rep. 630; National Mut. Bldg. A L. Asso.
V. Brahan, 193 U. S. 635, 48 L. ed. 823,
24 Sup. Ct. Rep. 532; Stone t. Southern
Illinois & M. Bridge Co. 206 U. S. 267,
51 L. ed. 1057, 27 Sup. Ct. Rep. 615;
Pittsburgh Constr. Co. t. West Side Belt
R. Co. 11 L.R.A.(N.S.) 1145, 83 C. C. A.
501, 154 Fed. 929.
The construction by a state of the
Constitution or statutes of the state is
conclusive on the Supreme Court of the
United States.
Arkansas Southern R. Co. v. Louisiana
& A. R. Co. 218 U. S. 431, 54 L. ed. 1097,
31 Sup. Ct. Rep. 56; Standard Oil Co.
V. Missouri, 224 U. S. 270, 56 L. ed. 760,
32 Sup. Ct. Rep. 406, Ann. Cas. 1913D,
936; Maiorano v. Baltimore & 0. R. Co.
213 U. S. 268, 53 L. ed. 792, 29 Sup. Ct
Rep. 424; Watson t. Maryland, 218 U. S.
173, 54 L. ed. 987, 30 Sup. Ct. Rep. 644;
Collins y. Texas, 223 U. S. 288, 56 L. ed.
439, 32 Sup. Ct. Rep. 286; Consolidated
Rendering Co. v. Vermont, 207 U. S.
541, 52 L. ed. 327, 28 Sup. Ct Rep. 178,
12 Ann. Cas. 658; United States Exp.
Co. V. Minnesota, 223 U. S. 335, 56 L.
ed. 459, 32 Sup. Ct. Rep. 211; iSCartin v.
West, 222 U. S. 191, 56 L. ed. 159, 36
L.R.A.(N.S.) 592, 32 Sup. Ct Rep. 42;
Welch V. Swasey, 214 U. S. 91, 53 L. ed.
923, 29 Sup. Ct Rep. 567; Kryger v.
Wilson, 242 U. S. 171, 61 L. ed. 229, 37
Sup. Ct. Rep. 34; Thomas Cusack Co. v.
Chicago, 242 U. S. 526, 61 L. ed. 472,
L.R.A.1918A, 136, 37 Sup. Ct Rep. 190;
Reinman v. Little Rock, 237 U. S. 171,
59 L. ed. 900, 35 Sup. Ct Rep. 511; In-
ternational Harvester Co. v. Kentucky,
234 U. S. 216, 58 L. ed. 1284, 34 Sup. Ct.
Rep. 853; Chicago, M. & St. P. R. Co. v.
Iowa, 233 U. S. 334, 58 L. ed. 988, 34
Sup. Ct Rep. 592; Clement Nat. Bank
V. Vermont, 231 U. S. 120, 58 L. ed. 147,
34 Sup. Ct. Rep. 31 ; Atlantic Coast Line
R. Co. V. Goldsboro, 232 U. S. 548, 58
L. ed. 721, 34 Sup. Ct. Rep. 364.
Even when the question involved, on a
writ of error from the Federal Supreme
Court to a state court, is the conformity
of state legislation to the Federal Con-
stitution, the construction placed upon
such legislation by the highest state
oourt must be accepted by the Supreme
Court of the United States.
Lane County v. Oregon, 7 Wall. 71, 19
L. ed. 101; Chicago, M. A St P. R. Co.
V. Minnesota, J34 U. S. 418, 33 L. ed.
970, 3 Inters. Com. Rep. 209, 10 Sup. Ct.
Rep. 462, 702; Pullman's Palace Car Co.
V, Pennsylvania, 141 U. S. 18, 35 L. ed.
613, 3 Inters. Coul Bep. 595, 11 Sup. Ct.
I Rep. 876; Morley v. Lake Shore ib M. S.
R. Co. 146 U. S. 162, 36 L. ed. 925, 13
Sup. Ct. Rep. 54; New York, L. E. & W.
R. Co. V. Pennsylvania, 158 U. S. 431, 39
L. ed. 1043, 15 Sup. Ct. Rep. 896;
Missouri P. R. Co. v. Nebraska, 164 U.
S. 403, 41 L. ed. 489, 17 Sup. Ct Eep.
130; Osborne v. Florida, 164 U. S. 650,
41 L ed. 586, 17 Sup. Ct. R«p. 214; First
Nat. Bank v. Chehalis County, 166 U. S.
440, 41 L. ed. 1069, 17 Sup. Ct Rep. 629;
Nobles V. Georgia, 168 U. S. 398, 42 U
ed. 515, 18 Sup. Ct. Rep. 87; New York
L. In^. Co. V. Cravens, 178 U. S. 389, 44
L. ed. 1116, 20 Sup. Ct. Rep. 962; Cona-
mercial Nat. Bank v. Chambers, 182 U.
S. 556, 45 L. ed. 1227, 21 Sup. Ct. Rep.
863 ; Orr v. Gihnan, 183 U. S. 278, 46 L.
ed. 196, 22 Sup. Ct. Rep. 213; Manley v.
Park, 187 U. S. 547, 47 L. ed. 296, 23
Sup. Ct. Rep. 208; Hibben v. Smith, 191
U. S. 310, 48 L. ed. 195, 24 Sup. Ct Rep.
88; Gasquet v. Lapeyre, 242 U. S. 367, €1
L. ed. 367, 37 Sup. Ct. Rep.- 165; Enter-
prise Irrig. Dist. V. Farmers Mut. Canal
Co. 243 U. S. 157, 61 L. ed. 644, 37 Sup.
Ct Rep. 318; Thomas Cusack €o. v. Chi-
cago, 242 U. S. 526, 61 L. ed. 472, LJEt JL.
1918A, 136, 37 Sup. Ct. Rep. 190, Ann.
Cas. 1917C, 594.
The supreme court of Wisconsin cor-
rectly construed the Act of May 11,
1917, amending subsection 2 of § 177Qb,
and subsection 1 of § 1770j, in hold-
ing that it applied only to corpora-
tions not organized or conducted for
profit, and did not operate to validate
the title of the Realty Realization Com-
pany to the property in question. .
Black, Interpretation of Laws, 2d ed.
§ 168, p. 179 ; Dalhnann v. Dallmann, 159
Wis. 486, 149 N. W. 137; Glentz v. State,
38 Wis. 549; State v. Gumber, 37 Wis.
303; Hurley v. Texas, 20 Wis. 634; SUte
ex rel. Ohlenforst v. Beck, 139 Wis. 40,
119 N. W. 300; Scheftels v. Tabert, 46
Wis. 446, 1 N. W. 156; Laude v. Chi-
cago & N. W. R. Co. 33 Wis. 643 ; Fuller-
ton V. Spring, 3 Wis. 667.
[501] Mr. Justice McReynolds deliv-
ered the opinion of the court:
The court below declared null and void
two separate deeds whereby defaidants
in error undertook to convey to the Realty
Realization Company, a Maine corpoara-
tion, certain laud in Wisconsin, upon the
ground that the grantee had failed to
comply with the statute of the statc^ pre*
scribing conditions under which foxetgn
corporations might aequire title to pi^op-
erty therein. The deeds were dated aiid
delivered in Illinois February 28^ 1913.
2M V. 8.
1»19.
MUNDAY V. WISCON&IN T. CO.
501-503
A Subsequent deed trom the Realty Com-
pany and a mortgage by its grantee were
also declared ineffective, but they need
not be separately considered here. 168
Wis. 31, 168 N. W. 393, 169 N. W. 612.
At the time . of the transactions in
question the applicable statutory pro-
visions concerning foreign corporations
were subsections 2 and 10 of § 1770B,
Wisconsin Statutes 1911, which follow:
"Sec 1770B. 2. No corporation, incor*
porated or organized otherwise than under
the laws of this state, except railroad
corporations, corporations or associations
created solely for religiotis or charitable
purposes, insurance companies and frater-
nal or beneficiary corporations, societies,
ol*ders and associations furnishing life or
casualty insurance or indemnity upon the
mutual or assessment plan, shall transact
busings or acquire, hold, or dispose of
property in this state until such corpora-
tion shall have caused to be filed in the
office of the Secretary of State, a copy
of its charter, articles of association or
incorporation and all amendments thereto
duly certified by the Secretary of State
of the state wherein the corporation was
organized. . . .
"Sec. 1770B. 10. Every contract made
by or on behalf of any such foreign cor-
poration, aflfecting the personal liability
thereof, or relating to property within
this state, before it shall have complied
with the provisions [502] of this sec-
tion, shall be wholly void on its behalf
and on behalf of its assigns, but shall be
enforceable against it or them."
The original proceeding was instituted
March 30, 1913. While it was pending
in the circuit court the Realty Company
complied with § 1770B and obtained a
license to do business and hold property
in Wisconsin October, 1915. On May 11,
1917, the legislature enacted chapter 212,
Laws of 1917, which amended subsection
1 of § 1770 J of the statute to read :
. "Any corporation organized otherwise
than imder the laws of this state, having
acquired, or attempted to acquire, legal
title by deed, or lease to any real prop-
erty in this state, before complying with
the terms of § 1770B of the statutes, and
wbich is now not required to comply with
said section or which has thereafter, and
before the passage of this section, com-
plied with said section, shall be and is
hereby relieved from any disability pro-
vided in said statute or prohibition there-
in contained, so far as said section relates
to the acquisition and holding of the
property so acquired, or attempted to be
acquired and the title so acquired, or'
414 L. ed.
attempted to be acquired, is hereby con-
firmed."
Plaintiff in error unsuccessfully chal-
len^ the validity of § 1770B upon the
ground of conflict with the contract
clause, § 10, article 1 of the Federal Con-
stitution, and the due process clause of
the 14th Amendment. They further in-
sisted that if § 1770J^ as amended by
chapter 212, Laws of 1917, was not so
applied as to validate the deeds in ques-
tion, dghts, privileges, and immunities
guaranteed to them by the 14th Amend-
ment would be infringed.
Obviously, no impairment of any Fed-
eral right resulted from the construction
placed upon §* 1770J, as amended in
1917. Whether that section, did or did
not validate a contract theretofore unen-
forceable was a question for the [508]
state court finally to decide, — ^it involved
no right under the Constitution or laws
of the United States.
Section 1770B was enacted prior to the
transactions here in question, and the set-
tled doctrine is that the contract clause
applies only to legislation subsequent in
time to the contract alleged to have been
impaired. Cross Lake Shooting & Fish-
ing Ciub V. Louisiana, 224 U. S. 632, 639,
56 L. ed. 924, 928, 32 Sup. Ct. Rep. 577.
In support of the claim that subsection
10, § 1770B, as construed by the court
below, conflicts with the due process
clause, it is said : "The contract between
the defendants in error and the Realty
Company, and the deeds delivered in com-
pliance therewith, were all made in Il-
linois. They have been declared void in
the state of Wisconsin. So applied, the
statute deprives plaintiffs in error of their
property without due process of law."
Allgeyer v. Louisiana, 165 U. S. 578,
591, 41 L. ed. 832, 836, 17 Sup. Ct. Rep.
427, is relied upon as adequate authority
to support the point presented; but we
think it is wholly irrelevant.
Where interstate conmierce is not direct-
ly affected, a state may forbid foreign
corporations from doing business or ac-
quiring property within her borders ex-
cept upon such terms as those prescribed
by the Wisconsin statute. Fritts v. Palm-
er, 132 U. S. 282, 288, 33 L..ed. 317,
319, 10 Sup. Ct. Rep. 93 ; Chattanooga
Nat. Bldg. & L. Asso. v. Denson, 189 U.
S. 408, 47 L. ed. 870, 23 Sup. Ct. Rep.
630; Interstate Amusement Co. v. Albert,
239 U. S. 560, 568, 60 L. ed. 439, 443,
36 Sup. Ct. Rep. 168.
No interstate commerce was directly in-
volved in the transactions here questioned.
Moreover, this court long ago declared:
4 689
503, 504, 508
SUPREME COURT OF THE UNITED STATES.
Oct. Tebic,
'^The title to land can be aequired and
lost only in the manner prescribed by the
law of the place where such land is
situated." United States t. Crosby, 7
Craneh, 116, 116, 3 L. ed. 287.
The judgment of the court below is
affirmed.
[504J FIRST NATIONAL BANK OF
CANTON, PENNSYLVANIA, Appt.,
V.
JOHN SKELTON WILLIAMS. Comptroller
of the Currency.
(See S. C. Reporter's ed. 504-612.)
Federal courts — proper district for suit
— action to enjoin Comptroller of
Currency <— service of process outside
district.
A suit by a national bank to enjoin
the Comptroller of the Currency from doing
certain things under color of his office, de-
clared to be threatened, unlawful, arbitrary,
and oppressive, is one brought under the
National Banking Law, withm the true in-
tendment of the provisions of the Judicial
Code, §§24 and 49, which restrict suits,
brought by national bankins^ associations to
enjoin the Comptroller under such law, to
the district in which the bank is located,
and such restriction operates pro tanto to
displace the general provisions of | 51,
respecting the proper district for suits, and
authorizes .service of process upon the
Comptroller wherever found.
CFor other cases, see Courts, V. e, 7. in Digest
Sup. Ct. 1908.]
[No. 618.1
Argued March 3, 1920. Decided April 19,
1920.
APPEAL from the District Court of
the United States for the Middle
District of Pennsylvania to review a de-
cree quashing the service of process, and
dismissing, for want of jurisdiction, a
suit by a national bank to enjoin the
Comptroller of the Currency firom doing
certain acts alleged to be in excess of his
authority. Reversed.
See same case below, 260 Fed. 674.
The facts are stated in tiie opinion.
Mr. Jolin B. Stanchiield argued the
cause^ and, with Messrs. Charles A.
Collin, Henry P. Wolff, M. J. Martin,
and John P. Kelly, filed a brief for i^-
pellant:
The court below acquired jurisdiction
Note. — On proper Federal district for
salt — see note to Roberts v. Lewis, 36 L.
ed. U. S. 579.
••0
of the person of the defendant, in this
suit, by virtue of the service of its proc-
ess upon him in the city of Washington,
in the District of Columbia.
Macon Grocery Co. v. Atlantic Coast
Line R. Co. 216 U. S. 601, 507, 608, 64
L. ed. 300, 303, 304, 30 Sup. Ct. Rep.
184; Toledo, A. A. & N. M. R. Co. v.
Pennsylvania Co. 19 LJI.A. 387, 6 Inters.
Com. Rep. 622, 64 Ted. 730, 731; Patton
V. Brady, 184 U. S. 608, 46 L. ed. 713, 22
Sup. Ct. Rep. 493; Kennedy t. Gibson, 8
WaU. 498, 506, 19 L. ed. 476, 479; United
States V. Congress Constr. Co. 222 U. S.
199, 203, 204, 66 L. ed. 163, 166, 32 Sup.
Ct. Rep. 44; Atkins v. Fibre Disintegrat-
ing Co. 18 Wall. 272, 301, 21 L. ed. 841,
844; Van Antwerp v. Hulburd, 7 Blatohf.
426, Fed. Cas. No. 16,826; United States
V. Illinois Surety Co. 238 Fed. 843;
Butterworth v. Hill, 114 U. S. 128, 133,
29 L. ed. 119, 120, 5 Sup. Ct. Rep. 786.
Solicitor General King and Mr.
La Bne Brown argued the cause, and,
with Mr. A. F. Myers, filed a brief for
appellee :
The court did not have jurisdiction of
the person of the defendant.
Winter v. Koon, 132 Fed. 273; Cely ▼.
Griffin, 113 Fed. 981 ; Toland v. Sprague,
12 Pet. 300, 9 L. ed. 1093 ; Green v. Chi-
cago, B. & Q. R. Co. 206 U. S. 530, 51 L.
ed. 916, 27 Sup. Ct. Rep. 595; fiinkes.
Fed. Proc. pp. 264, 265; Rose, Fed.
Courts, § 239.
The court did not have jurisdiction of
the subject-matter of the suit.
First Nat Bank v. Morgan, 132 U. S.
141, 143, 144, 33 L. ed. 28^284, 10 Sup.
Ct. Rep. 37; Van Antwerp v. Hulburd,
7 Blatchf. 426, Fed. Cas. No. 16,826.
The suit is one between citizens of
different states, and involves Federal
questions. It cannot, therefore, be main-
tained in the middle district of Penn-
sylvania.
Macon Grocery Co. v. Atlantic Coast
Line R. Co. 215 U. S. 501, 54 L. ed. 300,
30 Sup. Ct. Rep. 184; Male t. Atchison,
T. & S. F. R. Co. 240 U. S. 97, 102, 60
L. ed. 544, 546, 36 Sup. Ct. Rep. 351;
Cound v. Atchison, T. & S. F. R. Co. 173
Fed. 527; Men^his v. St Francis Levee
Dist. 228 Fed. 802; Whittakor v. Illi-
nois C. R. Co. 176 Fed. 130; Sundwland
Bros. V. Chicago, R. L ft P. R. Co. 158
Fed. 877; Smith v. Detroit & T. Short
Line R. Co. 175 Fed. 506; NeweU ▼.
Baltimore ft 0. R. Co. 181 Fed. 698.
Mr. Justice McReyaelds delivered the
opinion of the court :
Appellant, whose place of business is
9ft2 U. 8.
1«1«.
FIRST XAT. BAKK v. WILLIAMS.
608-510
within the middle district of Pennsyl-
▼ama, brought this suit in the United
States district court for that district,
seeking an* injunction to prevent John
Skelton Williams, Comptroller of the
Currency, from doii^ oertain things un-
der color of his office declared to be
threatened, unlawful, arbitrary, and op-
pressive.
The bill alleges that, in order to in-
jure complainant's president, towards
whom he entertained personal ill will,
the Comptroller determined to destroy
its business, and to that end he had mall-
oiously persecuted and oppressed it for
three years, in the following ways among
others : By often demanding special re-
ports and information beyond the pow-
ers conferred upon him by law; by dis-
elesing confidential and official information
ooncoming it to banks, members of Con-
greaSf representatives of the press, and
the public generally; by inciting litiga-
tion against it and its officers; by pub-
lishing and disseminating false state-
ments charging it with unlawful acts and
improper conduct, and reflecting upon its
solvency; and by distributing to deposi-
tors, stockholders, and others alarming
statements intended to affect its credit,
etc., etc. And further that, unless re-
strained, he would continue these and
similar malicious and oppressive prac-
tices.
Williams is a citizen of Virginia, of-
ficially stationed at Washington. He
was not summoned while in the middle
dntriot of Penn834vania, but a subpoena
WS8 aervad upon Jiim in Washington by
the United Stales marshal. Having
[S09] specially appeared, he successful-
ly challenged the jurisdiction of the
court; and the cause is here upon cer^
tificate to that effect.
Generally, a district court cannot ac-
quire jurisdiction over an individual
without service of process upon him
while in the district for which it is held.
But here a national bank seeks to en-
join the Comptroller, and the claim is
that by statutory direction the proceed-
ing must be had in the district where the
association is lo^^ted, and not elsewhere.
The court below took the contrary view.
260 Fed. 674.
Determination of the matter requires
consideration of three sections of the
Judicial Code [36 Stat, at L. 1092, 1100,
1101, chap. 231, Comp. Stat. § 991 (16),
4 Fed. Stat. Anno. 2d ed. p. 838, 5 Fed.
Stat. Anno. 2d ed. pp. 482, 486] :
"See. 24. The district courts shall
have original jurisdiction as follows:
• . .
• 4 L. ed.
"Sixteenth. Of all cases commenced
by the United States, or by direction of
any officer thereof, against any national
banking association^ and cases for wind-
ing up the affairs of any such bank; and
of all suits brought by any banking as-
sociation established in the district for
which the court is held, under the pro-
visions of title 'National Banks' Revised
Statutes, to enjoin the Comptroller of
the Currency, or any receiver acting un-
der his direction, as provided by said
title. And all national banking associa-
tions established under the laws of the
United States shall, for the purposes of
all other actions by or against them,
real, personal, or mixed, and all suits in
equity, be deemed citizens of the states
in which they are respectively located."
"Sec. 49. All proc^ings by any na-
tional banking association to enjoin the
Comptroller of the Currency, under the
provisions of any law relating to nation-
al banking associations, shall be had in
the district where such association- is
locatlBd.''
"Sec. 61.' Except as provided in the
five succeeding sections, no person shall
be arrested in one district for trial
[510] in another, in any civil action be-
fore a district court ; and, except as pro-
vided in the six succeeding sections, no
civil suit shall be brought in any district
court against any person by any original
process or proceeding in any other dis-
trict than that whereof he is an inhabi-
tant; but where the jurisdiction is
founded only on the fact that the action
is between citizens of different states,
suit shall be brought only in the district
of the residence of either the plaintiff or
the defendant.''
If §§ 24 and 49, properly construed,
restrict this proceeding to the district
'where the bank is located, they displace
§ 51 pro tanto, and authorize service of
process upon defendant wherever found.
United States v. Congress Constr. Co.
222 U. S. 199, 203, 56 L. ed. 163, 165,
32 Sup. Ct. Rep. 44.
It is said for appellee that both §§ 24
and 49. relate to injunction proceedings
brought under the National Banking
Law, — such proceedings as are thereby
expressly authorized, and no others.
And, further, that such law only author-
izes suit by a bank to enjoin the Comp-
troller when he undertakes to act be-
cause of its alleged refusal to redeem
circulating notes. Rev. Stat. § 5237,
Comp. Stat. § 9824, 6 Fed. Stat. Anno.
2d ed. p. 872.
The Act of February 25, 1863, estab-
•91
510-512
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
lishing national banks, chap. 58, 12 Stat.
atL. 665, 681:
''Sec. 59. And be it further enacted,
That suits, actions, and proceedings by
and against any association under this
act may be had in any circuit, district, or
territorial court of the United States
held within the district in which such
association may be established."
An "Act to Provide a National Cur-
rency, Secured by a Pledge of United
States Bonds," approved June 3, 1864,
chap. 106, 13 Stat, at L. 99, 116 :
"Sec. 57. And be it further enacted.
That suits, actions and proceedings,
against any association under this act,
may be had in any circuit, district, or
territorial court of the United States
held within the district in which such
association may be established; or in any
state, county, or [511] municipal court
in the county or city in which said asso-
ciation is located, having jurisdiction in
similar cases: Provided, however. That
all proceedings to enjoin the Comptroller
under this act shall be had in a circuit,
district, or territorial court of the United
States, held in the district in which the
association is located."
In Kennedy v. Gibson (1869) 8 Wall.
498, 506, 19 L. ed. 476, 479, this court
ruled that § 57 should be construed as if
it read: "And be it further enacted.
That suits, actions and proceedings by
and against," etc., the words "by and"
having been accidentally omitted. "It is
not to be supposed that Congress intend-
ed to exclude associations from suing in
the courts where- they can be sued."
"Such suits may still be brought by the
associations in the courts of the United
States." And it further held "that re-
ceivers also may be sued in the courts
of the United States by virtue of the act,
without reference to the locality of their
personal citizenship."
The Revised Statutes:
"Sec. 629. The circuit courts shall have
original jurisdiction as follows:
•*Tenth. Of all suits by or against any
banking association established in the
district for which the court is held,
under any law providing for national
banking associations.
^'Eleventh. Of all suits brought by
[or against] any banking association es-
tablished in the district for which the
court is held, under the provisions of
title, *The National Banks,' to enjoin the
Comptroller of the Currency, or any re-
ceiver acting under his direction, as pro-
vided by said title." Comp. Stat. § 991
(16).
"Sec. 736. All proceedings by any na-
«92
tional banking association to enjoin the
Comptroller of the Currency, under th6
provisions of any law relating to nation-
al banking associations, shaU be had in
the district where- such association is lo-
cated." Comp. Stat. § 1031.
Parts of the forgoing subsections 10^
and 11 were [512] joined in subsection
16, § 24, and § 736 became § 49, Judicial
Code.
What constitutes a cause arising "un-
der" the laws of the United States has
been often pointed out by this court.
One does so arise where an appropriate
statement by the plaintiff, unaided by
any anticipation or avoidance of de-
fenses, discloses that it really and sub*
stantially involves a dispute or contro-
versy respecting the validity, construc-
tion, or ekeet of an act of Congress. If
the plaintiff thus asserts a ri^t which
will be sustained by one construction of
the law, or defeated by another, the case
is one arising under that law. Tennes-
see V. Union & Planters' Bank, 152 U. S.
454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654 ;
Boston & M. Consol. Copper & S. Min,
Co. V. Montana Ore Purchasing Co. 188
U. S. 632, 47 L. ed. 626, 23 Sup. Ct. Rep.»
434; Devine v. Los Angeles, 202 U. S.
313, 50 L. ed. 1046, 26 Sup. Ct. Rep.
662; Taylor v. Anderson, 234 U. S. 74,
58 L. ed. 1218, 34 Sup. Ct. Rep. 724;
Hopkins v. Walker. ,244 U. S. 486, 489,
61 L. ed. 1270, isd^i 37 Sup. Ct. Rep.
711. Clearly the p^intift's bill diselosea
a case wherein bin v^ht to recover turns
on the coQstmctwt ^nd application of
the National Banking Law ; and we think
the proceeding is one to enjoin the
ComptroUer under provisions of that
law, within the true intendment of the
Judicial Code.
The decree below must be reversed.
GEORGE E. BURXAP, Appt.,
v.
UNITED STATES.
(See S. C. Reporter's ed. 512-520.)
OI!ieer« — appointment — removal —
siiApension.
1. The power to remove an official is, in
the absence of statutorv provision to the
contrary, an incident of the power to ap-
Note. — On the right to remove of&cers
summarily — see note to Trainer ▼•
Wavne County Auditors, 15 L.R.A. 95.
252 U. 8^
1919.
BURNAP V. UNITED STATES.
point, and the power of suspension is an
incident of the power of removal.
IFor other cases, see Offlcerst, III. in Digest
Sup. Ct. 11H)8.]
United States — employees — landscape
architect — who may appoint.
2. The appointment of a landscape
architect in the Office of Public Buildings
and Grounds- by the Secretary of War in-
stead of by the Chief of Engineers must be
deem^ to have been unauthorized, in view
of the provision of U. S. Rev. Stat. § 1799,
that "the Chief of Engineers in charge of
public buildings and groimds is authorized
to employ in his office and about the pub-
lic buildings and grounds under his control
such number of persons for such employ-
ments and at such rates of compensation
as may be appropriated for by Congress
from year to year,'' which excludes positions
in such office from the operatii»n of the
general provisions of § 160, conferring
the poorer of appointment upon the heads of
Departments.
[For other cases, see United States, III. a, In
Digest Snp. Ct. 1908.]
United States — employees — defective
appointment — removal.
3. The fact that a landscape architect in
the Office of Public Buildings and Grounds
was, by inadvertence, appointed by the
Secretary of War instead of by the Cliief
of Engineers, does not preclude the latter
from exercising in respect to such employee
the general power to remove employees in
his office, conferred by. implication in U. 8.
Rev. Stat. § 1799, which give^ the Chief
of Engineers the power of appointment.
(For other cases, see United States, III. a; in
Digest Sup. Ct. 1908.1
United States — employees — defective
appointment — acqnlesoence.
4. The defect in the appointment of a
landscape architect in the Office of Public
Buildings and Grounds, because made by
the Secretary of War instead of by the
Chief of Engineers, is cured by the ac-
quiescence of the latter throughout five
years, so that the appointee's status is better
than that of a mere de facto officer, but it
is not superior to what it would have been
if he had been reguligrly appointed by the
Chief of Engineers.
CFor other cases, see United States, III. a, in
Digrest Sup. Ct. 1908.]
United States — employees — removal
and suspension — landsicape architect.
5. If the regulations governing suspen-
sion and discharge in the classified civil
service, as applied to the Engineer Depart-
ment at large, approved by the Civil Serv-
ice Commission and the Secret arv of War,
d|> not apply to the position of landscape
architect in the Office of Public Buildings
and Groimds, the exercise of the right of
removal which rests in the Chief of Engi-
neers is governed by the provisions of the
Act of August 24, 1912, § 6, and Civil
Service Rule 12, since no applicable regu-
lations have been prescribed by the Presi-
dent throu/zh the War Department, under *
«4 L. ed.
the authority reser%'ed in U. S. Kev. Stat.
§ 1797, as amended.
[I<\>r other cases, see United States^ III. a» ia
Digest Sup. Ct. 1908.]
[No. 228.J
Argued March 12, 1920. Decided April 19,
1920.
APPEAL from the Court of Claims to
review a judgment dismissing the
petition of a discharged government em-
ployee for compensation until his sue-
eesBor was appointed. Affirmed.
See same case below, 53 Ct. Ci. 605.
The facts are stated in the opinion.
Mr. emerge A. King argued the cause,
and, with Messrs. William B. King and
William E. Harvey, filed a brief for ap-
pellant :
It was not constitutionally competent
for the Secretary of War, even had he
desired to do so, to make a reg^ulation
which should annul the constitutional
rule that an officer appointed by the
head of a Department can be removed
only by the same power which appoints
him.
Ex parte Hennen, 13 Pet. 230, 10 L.
ed. 138; Parsons v. United States, 1G7
U. S. 324, 331, 42 L. ed. 185, 187, 17 Sup.
Ct. Rep. 880 J Keim v. United States, 177
U. S. 290, 293, 294, 44 L. ed. 774-776, 20
Sup. Ct. Rep. 574; Reagan v. United
States, 182 U. S. 419, 424, 45 L. ed. 1162,
1164, 21 Sup. Ct. Rep. 842;. United
States V. Wickersham, 201 U. S. 390, 50
L. ed. 798, 26 Sup. Ct. Rep. 469 ;
Shurtleff v. United States, 189 U. S. 311.
316, 47 L. ed. 828, 831, 23 Sup. Ct. Rep.
635; Stilling v. United States, 41 Ct. CI.
61 ; Costello v. United States, 51 Ct. CI.
262; United States ex rel. Palmer v.
Lapp, 157 C. C. A. 3, 244 Fed. 382.
The claimant was not in the Engineer
Department at large, but in the War
Department at Washington, District of
Columbia.
United States v. Ashfield, 91 U. S.
317, 23 L. ed. 396.
The claimant was not an employee, to
whom alone the regulation applies, but
an officer of the United States. Hence
the regulation has no application to his
case.
People ex rel. Satterlee v. Board of
Police, 75 N. Y. 41; People v. Buffalo, 57
Hun, 577, 11 N. Y. Supp. 315 ; People v.
E. Remington & Sons, 45 Hun, 329, af-
firmed in 109 N. Y. 631, 16 N. E. 680;
State ex rel. Atty. Gen. v. Craig, 69
Ohio St. 236, 69 N. E. 228; United
States V. Schlierholz, 137 Fed. 616;
Palmer v. Van Santvoord, 153 X. Y. 612,
38 L.R.A. 402, 47 N. E. 915.
693
014-516
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
Assistant Attorney General Davis
ai^ued the cause, and, with Mr. Harvey
D. Jacobs filed a brief for appellee.
Mr. Justice £rand«ii delivered the
opinion of the court :
On July 1, 1910, Bumap entered upon
duty in the Office of Public Buildings and
Grounds as landsca]>6 architect at the sal-
ary of $2,400 a year, having been ap-
pointed to that position by the Secretary
of War. On September 14, 1915, he was
suspended, upon charges, from duty and
pay; and on August 3, 1916, he was dis-
charged "in order to promote the effi-
ciency of the service." His successor was
not appointed until July 28, 1917. Bur-
nap contends that his suspension and dis-
charge were illegal and hence inoperative ;
that he retained his position until his suc-
cessor was appointed ; and that until such
appointment he was entitled to his full
salary. United States v. Wickersham, 201
U. S. 390, 50 L. ed. 798, 26 Sup. Ct. Rep.
469. His claim for such salary was re-
jected by the Auditor of the War Depart-
ment (of which the Office of Public Build-
ings and Grounds is a part), and, upon
appeal, also by the Comptroller of the
Treasury. Then this suit was brought in
the court of claims. There his petition
was dismissed and the case comes here
on appeal.
Bumap rests his claim mainly upon the
fact that he was appointed by the Secre-
tary of War, contending that, therefore,
only the Secretary of War could remove
him (21 Ops. Atty. Gen. 355), and that
no action tantamount to a removal by
the Secretary was taken until his suc-
cessor was appointed. Before discussing
the nature and effect of the action taken,
it is necessary to consider the general
rules of law governing appointment and
removal in the civil service of the United
States, the statutes relating to the Office
of Public Buildings and Grounds, and
those providing for the appointment of a
landscape architect therein.
First. The Constitution (art. 2, § 2)
confers upon the [515] President the
power to nominate, and with the advice
and consent of the Senate to appoint,
certain officers named and all other
officers established by law whose ap-
pointments are not otherwise therein
provided for; but it authorizes Con-
gress to vest the appointment of
inferior t)fficers either in the President
alone, in the courts of law, or in the heads
of Departments (6 Ops. Atty. Gen. 1).
The power to remove is, in the absence
of statutory provision to the contrary, an
incident of the power to appoint. Ex
694
pWe Hennen, 13 Pet. 230, 259, 260, 10 L.
ed. 138, 152, 153; Blake v. United States,
103 U. S. 227, 231, 26 L. ed, 462, 463;
United States v. Allred, 155 U. S. 591,
594, 39 L. ed. 273, 274, 15 Sup. Ct. Rep.
231; Keim v. United States, 177 U. S.
290, 293, 294, 44 L. ed. 774-776, 20 Sup.
Ct. Bep. 574; Reagan v. United States,
182 U. S. 419, 426, 45 L. ed. 1162, 1165, 21
Sup. Ct. Rep. 842; Shurtleff v. United
States, 189 U. S. 311, 316, 47 L. ed. 828,
831, 23 Siip. Ct. Rep. 535. And the pow-
er of suspension is an incident of the
power of removal.
Section 169 of the Revised Statutes
(Comp. Stat. § 248, 2 Fed. Stat. Anno.
2d ed. p. 148) provides that:
^^Each head of a Department is author-
iaed to employ in his Department saeb
number of clerks of the several classes
recognized by law, and such messengers,
assistant messenger, copyists, watchmen,
laborers, and other employees, and at such
rates of comp^isation, respectively, as
may be appropriated for by Congnss
from year to year."
The term "head of a Department''
means, in this connection, the Secretary
in charge of a great division of the execu-
tive branch of the government, like the
State, Treasury, and War, who is a mem-
ber of the Cabinet.. It does not include
heads of bureaus or lesser divisions.
United States v. Germaine, 99 U. S. 508,
510, 25 L. ed. 482, 483. Persons em-
ployed in a bureau or division of a De-
partment are as much employees in the
Department within the meaning of § 169
of the Revised Statutes as clerks or mes-
sengers rendering service under the im-
mediate supervision of the Secretary.
Manning's Case, 13 WaU. 578, 580, 20 L.
ed. 706, 707; United States v. Ashfidd,
91 U. S. 317, 319, 23 L. ed. 396, 397. The
term "employ" is used as the equivalent
of "appoint." 21 Ops. Atty. Gen. 355,
356. The term "cl^ks and other em-
ployees," as there [516] used, is suf-
ficiently broad to include persons filling
positions which require technical skilly
lea'ruing, and professional training. 29
Ops. Atty. Gen. 116, 123; 21 Ops.
Atty. Gen. 363, 364; 20 Ops. Atty. Gen.
728. The distinctioiv between officer
and employee in this connection does
not rest upon differences in the
qualifications necessary to fill the posi-
tions, or in the character of the service
to be performed. Whether the incumbent
is an officer or an employee is determined
by the manner in which Congress has
specifically provided for the creation of
the several positions, their duties and ap-
pointment thereto. 15 Ops. Atty. Gten. 3;
252 U. S.
1910.
BURNAP V. UNITED STATES.
516-5 IS
17 Ops. Attj'. Geu. 532; 26 Ops. Atty.
Gen. 627; 29 Ops. Attv. Gen. 116;, United
States V. llartwell, 6 Wall. 385, 18 L. ed.
830; United States v. Moore, 95 U. S.
760, 762, 24 L. ed. 588, 589; United
States V. Perkins, 116 U. S. 483, 29 L.
ed. 700, 6 Sup. Ct. Rep. 449; United
States V. Mouat, 124 U. S. 303, 31 L. ed.
463, 8 Sup. Ct. Bep. 505; United States
V. Hendee, 124 U. S. 309, 31 L. ed. 465,
8 Sup. Ct. Rep. 507; United States v.
Smith, 124 U. S. 525, 31 L. ed. 534, 8
Snp. Ct. Rep. 595; Aufbuordt v. Hedden,
137 U. S. 310, 34 L. ed. 674, 11 Sup. Ct.
Rep. 103; United States v. Schlierholz,
137 Fed. 616; Martin v. United States,
93 C. C. A. 484, 168 Fed. 198.
Second. The powers and duties of the
Office of Public Buildings and Grounds
had their origin in the Act of July 16,
1790, chap. 28, 1 Stat, at L. 130, Cotup.
Stat. § 3306, 8 Fed. Stat. Anno. 2d ed.
p. 1072, which authorized the President
to appoint three Commissioners to lay out
a district for the permanent seat of the
government. By Act of May 1, 1802,
chap. 41, 2 Stat, at L. 175, the of&ces of
Commissioners were abolished and their
duties devolved upon a Superintendent,
to be appointed by the President. By Act
of April 29, 1816, chap. 150, 3 Stat at
L. 324, the office of Superintendent was
abolished and his duties devolved upon a
Commissioner of Public Buildings. By
Act of March 2, 1867, chap. 167, § 2, 14
Stat, at L. 466, the office of Commissioner
was abolished and his duties devolved
upon the Chief of Engineers. By § 1797
of the Revised Statutes as amended by
Act of April 28, 1902, chap. 594, 32 Stat.
at L. 152, Comp. Stat. § 3308, 8 Fed.
Stat. Anno. 2d ed. p. 1072, it is declared
that the Chief of Engineers has ''charge
of the public buildings and grounds in the
District of Columbia, under such regula-
tions [517] as may be prescribed by the
President through the War Depart-
ment." And § 1812 (Comp. Stat. § 3327,
8 Fed. Stat. Anno. 2d ed. p. 1075) re-
quires the Chief of Engineers, as Super-
intendent of Public Buildings and
Grounds, to submit annual reports to
the Secretary of War to accompany the
annual message of the President to
Congress.
Third. There is no statute which cre-
ates an office of landscape architect in the
Office of Public Buildings and Grounds,
nor any which defines the duties of the
position. The only authority for the ap-
pointment or employment of a landscape
architect in that office is the legislative,
executive, and judicial appropriation Act
of June 17, 1910, chap. 297, 36 Stat, at
«4 I/, ed.
L. 504 (and later appropriation acts in
the same form. Act of March 4, 1911,
chap. 237, 36 Stat, at L. 1207, Act of
August 23, 1912, chap. 350, 37 Stat, at
L. 388; Act of March 4, 1913, chap. 142,
37 Stat, at L. 766, Act of July 16, 1914,
chap. 141, 38 Stat, at L. 482; Act of
March 4, 1915, chap. 141, 38 Stat, at L.
1024; Act of May 10, 1916, chap. 117,
39 Stat, at L. 93), which reads as fol-
lows:
Public Buildings and Grounds.
Office of Public Buildings and Grounds :
Assistant Engineer, two thousand four
hundred dollars; assistant and chief
clerk, two thousand four hun dred dollars ;
derk of class four; clerk of class three;
clerk and stenographer, one thousand four
hundred dollars; messenger; landscape
architect, two thousand four hundred dol-
lars; surveyor and draftsman, one thou-
sand five hundred dollars; in all fourteen
thousand three hundred and forty dol-
lars. (Then follow the foremen and
night and day watchmen in the parks.)
«
Prior to July 1, 1910, similar appro-
priation acts had provided for a 'land-
scape gardener" at the same salary. There
is no statute which provides specifically
by whom the landscape architect in the
Office of Public Buildings and Grounds
shall be appointed. As the Office of Pub-
lic Buildings and Grounds is a part of
the bureau of the Chief of Engineers, and
that bureau is in the War Department,
the Secretary of War would, under § 169
(Comp. Stat. § 248, 2 Fed. Stat. Anno.
2d ed. p. 148), have the power to ap-
point the landscape architect as an em-
ployee in his department, in the absence
of other provision dealing with [518]
the subject. 21 Ops. Atty. Gen. 355.
But § 1799 of the Revised Statutes
(Comp. Stat. § 3310, 8 Fed. Stat. Anno.
2d ed. p. 1073) provides that:
"The Chief of Engineers in charge of
public buildings and grounds is author-
ized to employ in his office and about the
public buildings and grounds under his
control such number of persons for such
employments, and at such rates of com-
pensation, as may be appropriated for by
Congress from year to year.''
This more specific provision excludes
positioils in the Office of Public Buildings
and Grounds from the operation of the
general provision of § 169, conferring the
power of appointment upon the heads of
Departments. Compare 10 Dec. of Comp-
troller of Treas. 577, 583. The appoint*
ment of Bumap by the Secretary of War,
518-^20
SUPREME COURT OF THE UNITED STATES.
Ocx. Tebm,
instead of by the Chief of Eng^eers, was
without aathority in law.
Fourth. As the power to remove is an
incident of the power to appoint, the
Chief of Eogioeers would okarly hAve had
power to r^nove Bumap, if the appoint-
ment had been made by him instead of by
the Secretary of War. The fact that Bur-
nap was, by inadvertence, appointed by
the Secretary, does not preclude the Chief
of Engineers from exercising in respect to
him the general power to remove employ-
ees in his of&ce conferred, by implication,
in § 1799 of the Revised Statutes. The
defect in Burnap's original appointment
was cured by the acquiescence of the
Chief of Engineers throughout five years,
so that Bumap's status was better than
that of a mere de facto officer. But it
was not superior to what it would have
been if he had been regularly appointed
by the Chief of Engineers. United States
v. Mouat, 124 U. S. 303, 31 L. ed. 463,
8 Sup. Ct. Rep. 505.
Fifth. The question remains, whether
there was a legal exercise by the Chief of
Engineers of his power of removal. The
suspension of Bumap was by letter from
his immediate superior, the officer in
charge of the Office of Public Buildings
and Grounds under the Chief of Engi-
neers; and to the latter the papers were
promptly transmitted. The [510] dis-
charge was by direct command of the
Chief of Engineers. Both the suspension
and the discharge purported to be
ordered pursuant to Paragraph 13 of §
5 of General Orders Number 5 of the
Office of Chief of Engineers, 1915, be-
ing regulations governing the classified
Civil Service as applied to the Engi-
neer Department at Large, approved
by the Civil Service Commission and
the Secretary of War.* Bumap con-
tends that the provisions of that para-
graph were inapplicable to his position;
(1) because these regulations relate to the
Eng^eer Department at Large and the
Office of Public Buildings and Grounds is
not included therein; and (2) because
they relate to employees, and that the
landscape architect was an officer, not an
employee. As has been shown, Bumap
was an employee. But the main conten-
tion is wholly immaterial. If paragraph
13 does not apply to the position of land-
scape architect, the exercise of the right
of removal which rested in the Chief of
Engineers was governed only by the pro-
visions of the Act of August ^, 1912,
chap. 389, § 6, 37 Stat, at L. 555, Comp,
Stat. § 3287, 8 Fed. Stat. Anno. 2d ed.
p. 956,« and Civil Service Rule XII. For
no regulations [520] relating to the
matter appear to have been **prescribed
by the President, through the War De-
partment," under the authority resented
in Revised Statutes, § 1797, Comp. Stat.
§ 3308, 8 Fed. Stat. Anno. 2d ed. p. 1072,
as amended. It is not contended that the
pi6cedure adopted in suspending and re-
moving Bumap disregarded any require-
ment of the Act of 1912 or of the Civil
Service Rule. Nor are we asked to re-
view t^e discharge as having been made
iiifhout adequate cause. The power of
removal was legally exercised by the Chief
of Engineers; and no irregularity has
been pointed out in the suspension which
was incident to it.
Sixth. As the power of discharge was
vested in the Chief of Engineers and was
unaffected by the fact that the appoint-
ment had been inadvertently made by the
Secretary of War, we have no occasion to
consider the contention of Butnap, that it
was beyond the Secretary's power to dele-
gate to the Chief of Engineers authority
to remove employees in his bureau. Nor
need we consider the contention of the
government, that the action taken was
tantamount to a removal by the Secretary,
because the discharge was ordered by the
Chief of Engineers after consideration of
the matter of Bumap's request by the
Secretary of War, a reference of it b\
him to the Judge Advocate General, and
a return of the papers by the Secretary
of War to the Chief of Engineers for
iPar. 13: "Digcbarjs?e for Cause. — DIr-
char^ for cause of an^ regularly appointed
classified employee will be subject to the
provisions of Civil Service Rule XII. and
cannot be made without the approval of
the Chief of Engineers. An employee may
be suspended without pay by the officer in
charge, who should at once furnish the
employee with a statement in writing of
the charges against him and give him a
reasonable time within which to make an-
swer thereto in writing. As soon as reply
is received, or in case no reply is received
within the time given him, all papers should
be submitted to the Chief of Engineers witli
«9«
full statement of the facts in the case and
the officer's recommendations."
2 Chap. 389, § 6: "No person in the clas-
sified civil service of the United States
shall be removed therefrom except for such
cause as will promote the efficiency of said
service and for reasons given in writing,
and the person whose removal -is sought
shall have notice of the same and of any
charges preferred against him, and be fur-
nished with a copy thereof, and also be
allowed a reasonable time for personally
answering the same in writing; and affi-
davits in support thereof, etc,"
252 V. S.
1919.
ONEIDA NAV. CORP. v. JOB & CO.
520-522
aetion in accordance with the Judge Ad-
vocate General's suggestions.
The judgment of the Court of Claims
18 affirmed.
CSail ONEIDA NAVIGATION CORPOBA-
XION, Glaimant of the Sailing Vessel
Percy R, Pyne Sd, etc., Appt.,
V.
W. & S. JOB & COMPANY, Inc.
(See S. G. Reporter's ed. 521, 522.)
Appeal — final Judgment.
A decree of a Federal district court dis-
missing for lack of jurisdiction the petition
of the defendant vessel owner in an ad-
miralty suit to bring in as a party defend-
ant a corporation which it is asserted would
be liable as an indemnitor if the liability of
the vessel should be established lacks the
finality essential to support an appeal.
[For other cases, see Appeal and Error, I. d,
in Digest Sup. Ct. 1908.]
(No. 269.]
Argued and submitted March 19, 1920. De-
cided April 19, 1920.
APPEAL from the District Court of the
United States for the Southern Dis-
trict of New York to review a decree dis-
missing/ for Want of jurisdiction, the
petition of the defendant in an admiralty
suit to bring in a party defendant. Dis-
missed for want of jurisdiction.
The facts are stated in the opinion.
Mr. George Whitefield Betta, Jr.,
argued the cause, and, with Mr. George
C. Sprague, filed a brief for appellant.
Mr. Peter S. Carter submitted the
cause for appellee.
Mr. Justice Brandeis delivered the
opinion of the court:
James W. Smith and another libeled
Note. — As to what judgments or de-
crees are final for purposes of review —
see notes to Gibbons v. Ogden, 6 L. ed.
U. S. 302; Schlosser v. Hemphill, 49 L.
ed. U. S. 1001 ; and Detroit & M. B. Co.
V. Michigan R. Commission, 60 L. ed. U.
S. 802.
•4 li. ed.
the schooner Percy R. Pyne 2d in the dis-
trict court of the United States for the
southern district of New York, claiming
damages for injury to cargo resulting
from unseawoithiness due to the cutting
away of timbers and frame for the instal-
lation of an auxiliary engine. The Oneida
Navigation Company claimed the vessel as
owner, and answered, denying liability.
Then it filed, by leave of court, a [£K£2]
petition to bring in, under Admiralty
Rule 15 of that court, in analogy to Ad-
miralty Rule 69 of this court, W. & S.
Job & Co., Inc., as defendants, alleging
them to be the party through whose fault,
if any, the damages complained of had
occurred, and that if liability should be
established, it would be entitled to be
indemnified by them. W. & S. Job &
Co., Inc., excepted to the petition and
denied jurisdictioji on the ground that
the petition did not set forth a cause of
action in admiralty. Their exception was
sustained asd the petition was dismissed
on that ground. The case comes here by
direct appeal, the district judge having
certified the question of jurisdiction.
The petition to make W. & S. Job &
Co., Inc., party defendant, was merely an
incident in the progress of the case in the
district court. The liability of indemni-
tors thereby sought to be enforced would
in no event arise imless the vessel should
be held liable. The petitioner had, as
claimant, denied liability in its answer to
the libel, and the issue thus raised had not
been tried. While the decree dismissing
the petition as to W. & S. Job & Co.,
Inc., was final as to them, there was no
decree disposing of the case below. A
case may not be brought here in frag-
ments. This court has jurisdiction under
§ 238 of the Judicial Code [36 Stat, at L.
1157, chap. 231, Comp. Stat. § 1215, 5
Fed. Stat. Anno. 2d ed. p. 794], as under
other sections, only from judgments which
are both final and complete. Collins v.
Miller, decided by this court March 29,
1920 [252 U. S. 364, ante, 616, 40 Sup.
Ct. Rep. 347]; Hohorst v. Hamburg-
American Packet Co. 148 U. S. 262, 37
L. ed. 443, 13 Sup. Ct. Rep. 590. The
case was not ripe for appeal. Although
the objection was not raised by the ap-
pellee, the appeal is dismissed for want
of jurisdiction.
99 §
523
SUPREME COURT OF THE UNITED STATES.
Oct. Tduc,
[528] PENN MUTUAL LIFE INSUR -Hred irtm the legislative history of an-
ANCE COMPANY, Petitioner,
V.
EPHRAIM LEDERER, Collector of Inter-
nal Revenue.
. (See S. C. Reporter's ed. 523-538.)
Internal revenue — income tax — life
insurance companies — gross income
— excluding dividends.
1. The amounts paid by a mutual legal
reserve level-premium life insurance com-
pany in cash dividends to its policyholders
during any taxable year, representing ex-
cess in premiums over actual cost of insur-
ance, if not applied by such policyholders
during that period of reduction of renewal
premiums, may not be excluded from gross
income under the provision of the Income
Tax Act of October 3, 1913, § II. G, that
life insurance companies "shall not include
as income in any year such portion of any
actual pVemium received from any individ-
ual policyholder as shall have been paid
back or credited to such individual policy-
holder, or treated as an abatement of pre-
mium of such individual policyholder
within such year."
(For other cases, see Internal Revenue, III. b,
in Digest Sup. Ct. 1908.]
Internal revenue — income tax -« life
insurance companies — deductions
from gross income — dividends.
2. The deduction from the gross income
of a mutual legal reserve level-premium life
insurance company of cash dividends to
policyholders, representing excess in pre-
miums over actual cost of insurance, is
expressly forbidden by the clause of the
Income Tax Act of October 3, 1913, § II. G,
defining allowable deductions from gross in-
come of insurance companies as "the net
addition, if any, required by law to be made
within the year to reserve funds and the
sums other than dividends paid within the
year on policy and annuity contracts," ex-
cept in so far as such dividends are ex-
cluded from computation of gross income
under the so-called noninclusion clause of
»uch section, as having. been applied in re-
duction of renewal premiums.
IFor other cases, see Internal Revenue, III. b,
in Digest Sap. Ct. 1908.]
Statutes ~ construction — legislative
history.
3. The legislative history of an act
may, where the meaning of the words used
is doubtful, be resorted to as an aid to con-
struction, but no aid can possibly be de-
Note. — On construction of statutes,
generally — see notes to Riggs v. Palmer,
5 L.R.A. 340; Maillard v. Lawrence, 14
L. ed. V. S. 925; United States v. Saun-
ders, 22 L. ed. U. S. 736; and Blake v.
National City Bank, 23 L. ed. U. S. 119.
698
other act, passed nearly six years later.
[For other cases, see Statutes, II. a, in Digest
Sup. Ct. 1908.]
[No. 499.]
Argued March 22 and 23, 1920. Decided
April 19, 1920.
ON WRIT of Certiorari to the United
States Circuit Cojart of Appeals for
the Third Circuit to review a judgment
which reversed a judgment of the Dis-
trict Court for the Eastern District of
Pennsylvania for the recovery back of
certain sums assessed and collected as an
income tax from a mutual life insurance
comoany. Affirmed.
See same case below, 109 C. C. A. 167,
268 Fed. 81.
The facts are stated in the opinion.
Mr. George Wliarten Pepper argued
the cause and filed a brief for petitioner :
The credit given to the policyholder
out of the company's surplus was not a
dividend, but represented nothing more
than the excess of loading of the premi-
um, which was being returned in some
form to the policyholder from whom it
came
Herold v. Mutual Ben. L. Ins. Co. 120
C. C. A. 256, 201 Fed. 918, 198 Fed. 212;
Connecticut General L. Ins. Co. v. Eaton,
218 Fed. 188.
The attempt to confuse statutory gross
income with the sum total of actual re-
ceipts has been made many times by the
government, and as often resisted by this
court.
' Southern P. Co. v. Lowe, 247 U. S. 334,
62 L. ed. 1146, 38 Sup. Ct. Rep. 540.
It is troe that before the 16th Amend-
ment, this court considered the specific
sources of the income whicb Congress
had sought to tax in order to determine
whether or not the tax was wholly or in
part a tax on the properties which were
the sources of some of the income, and
as such a direct tax, and unconstitutional
unless apportioned (Pollock v. Farmers'
Loan & T. Co. 158 U. S. 601, 39 L. ed.
1108, 15 Sup. Ct. Rep. 912). But,
wherever it could properly be done, the
court, even before the Amendment,
recognized that the thing called "in-
come" was to be considered apart frotti
its source, and was the measure of an
excise tax rather than itself a subjeet
of taxation (Flint v. Stone Traey Co.
220 U. S. 107, 55 L. ed. 389, 31 Sup. Ct.
Rep. 342, Ann. Cas. 1912B, 1312). In
that case the Corporation Tax Act of
1909 was under consideration. **It was
reasonable," said this court, in Strat-
252 V. S.
Itl9.
PENN MUTUAL L. IXS. CO. v. LEDERER.
623-525
ton^s Independence v. Howbert, 231 U.
fi. 417, 58 L. ed. 285, 34 Sup. Ct. Rep.
136, ^at Congress should fix upon
groBB income, without distinction as to
source, as a convenient and suMcientiy
accurate index of .tke importance of the
business transacted.''
The 16th Amendment disassociated in-
come from its source, and so dissolved
ilie mU hy vdueh alone £uch taxes were
removed from the great class of excises,
"duties and imports.
Brushaber v. Union P. R. Co. 240 U. S.
19, 60 L. ed. 502, L.R.A.1917D, 414, 36
Sup. Ct. Rep. 236, Ann. Cas. 1917B, 713.
To require the payment of an excise
tax measured in part by sums returned
to mutual insurers is to impute to Con-
gress an intention to ignore the nature
of mutual insurance, and to impose a
burden which ought not to rest upon
such a form of activity unless the taxing
statute clearly and manifestly discloses
euch an intention.
Gould V. Gould, 245 U. S. 153, 62 L.
ed. 213, 38 Sup. Ct. Rep. 53.
Assistant Attorney General Frierson
argued the cause, and filed a brief for
respondent.
Mr. Justice Brandeis delivered the
opinion of the court:
The Penn Mutual Life Insurance Com-
pany, a purely mutual l^al reserve com-
pany which issues level-premium [524]
insurance, brought this action in the dis-
trict court of the United States for the
•astern district of Pennsylvania to re-
cover $6,865.03, which was assessed and
collected as an income tax of 1 per cent
upon the sum of $686,503, alleged to
have been wrongly included as a
part of its gross income, and hence
also of its net income, for the
period from March 1, 1913, to De<
cember 31, 1913. The latter sum
equals the aggregate of the amounts paid
during that period by the company to its
policyholders in cash dividends^ which
were not used by them during that period
in payment of premiums. The several
amounts making up this aggregate repre-
sent mainly a part of the so-called re-
dundancy in premiums paid by the
respective policyholders in some previous
year or years. They are, in a sense, a re-
payment of that part of the premium
previously paid which experience has
proved was in excess of the amount which
had been assumed would be required to
meet the policy obligations (ordinarily
termed losses) or the legal reserve and
• 4 L. ed.
the expense of conducting the business.^
The district court allowed recovery of the
full amount, with interest 247 Fed. 559.
The circuit court of appeals for tbe
third circuit, holding that nothing was
recoverable except a single small item,
reversed the judgement and awarded a new
trial. 169 C. C, A. 167, 258 Fed. 81. A
writ of certiorari from this court was
then allowed. 250 U. S. 656, 63 L. ed.
1192, 40 Sup. Ct. Rep. 14.
Whether the plaintiff is entitled to re-
cover depends wholly upon the construc-
tion to be given certain provisions in §
II. G(b) of the Revenue Act of October
3, 1913, chap. 16, 38 Stat, at L. 114, 172,
173. The act enumerates among [525]
the corporations upon which the income
tax is imposed, "every insurance com-
pany'' other than "fraternal beneficiary-
societies, orders, or associations operat-
ing under the lodge system or for the
exclusive benefit of the members of a
fraternity itself operating under a lodge
system." It provides (G (b) pp. 172-
174) how the net income of insur-
ance companies shall be ascertained
for purposes of taxation, prescribing
what shall be included to deter-
mine the gross income of any year, and
also specifically what deductions from the
ascertained gross income shall be made in
order to determine the net income upon
which the tax is assessed. Pr^nium re-
ceipts are a part of the gross income to
be accounted for.
In applying to insurance companies the
system of income taxation in which the
assessable net income is to be ascertained
by making enumerated deductions from
the gross income (including premium re-
ceipts). Congress naturally provided how,
in making the computation,' repayment
of the redundancy in the premium should
^The manner in which mutual level-
preinium life insurance companies conduct
Iheir business, and the nature and applica-
tion of dividends, are fuUy set forth in
Mutual Ben. L. Ins. Co. v. Herold, 198 Fed.
199; Connecticut General L. Ins. Co. v.
Eaton, 218 Fed. 188; Connecticut Hut. L.
Ins. Co. T. Eaton, 218 Fed. 200.
s The percentage of the redundancy to the
premium varies, from year to year, greatly,
m the several fields of insurance, and like-
wise in the same year in the several com-
panies in the same field. Where the margin
between the probable losses and those
reasonably possible b very large, the return
premiums rise often to 90 per cent or more
of the premium paid. This is true of the
manufacturers* mutual fire insurance com*
panics of New England. See Report Mass-
achusetts Insurance Commissioner (1913)
vol. I,, p. 16.
• 99
025-528
SUPREME COURT OF THE UNITED STATES.
Oct. Txsm,
be dealt with. In a mutual company,
whatever the field of its operation, the
premium exacted is necessarily greater
5ian the expected cost of the insurance,
as the redundancy in the premium fur-
nishes the guaranty fund out of which
extraordinary losses may be met, while in
a stock company they may be met from
the capital stock subscribed. It is of the
essence of mutual insurance that the ex-
cess in the premium over the actual cost
as later ascertained shall be returned to
the policyholder. Some payment to the
[526] policyholder representing such
excess is ordinarily made by every
mutual company every year; but the
so-called repayment or dividend is
rarely made within the calendar year in
which the premium (of which it is sup-
posed to be the unused surplus) was
paid. Congress treated the so-called re-
payments or dividends in this way (p.
173):
(a) Mutual fire companies ''shall pot
return as income any portion of the pre-
mium deposits returned to their policy-
holders."
(b) Mutual marine companies "shall be
entitled to include in deductions from
gross income amounts repaid to policy-
holders on account of premiums previous-
ly paid by them, and interest paid upon
such amounts between the ascertainment
thereof and the pajrment thereof."
(c) Life insurance companies (that is,
both stock and strictly mutual) ''shall not
include as income in any year such por-
tion of any actual premium received from
any individual policyholder as shall have
been paid back or credited to such individ-
ual policyholder, or treated as an abate-
ment of premium of such individual pol-
icyholder, within such year."
(d) For all insurance companies, what-
ever their field of operation^ and whether
stock or mutual, the act provides that,
there be deducted from gross income "the
net addition, if any, required by law to
be made within the year to reserve funds
and the sums other than dividends paid
within the year on policy and annuity
contracts."
The government contends, in substance,
for the rule that in figuring the gross in-
come of life insurance companies, there
shall be taken the aggregate of the year's
net premium receipts, made up separate-
ly for each policyholder.' The Penn Mu-
• A separate account is kept by the com-
pany with each policyholder. In that ac-
count there is entered each year the charges
of the premiums payable and all credits
either for ca«h payments or by way of
credit of dividenas, or by way of abate-
ment of premium.
700
tual Company contends for the [SSfXl^.
rule that in figuring the gross income* *
there skall be taken the aggregate full
premimns received by the company, less
the aggregate of all dividends paid by
it to any polic3'holder by credit upon
a premium or by ' abatement of a
premium, and also of all dividends
whatsoever paid to any policyholder
in cash, wh^her applied in payment
of a premium or not. The nonin-
elusion clause, (c) above, excludes from
gross incoifie those premium-receipts
which were actually or in effect paid by
applying dividends. The company seeks
to graft upon the clause so restricted a
provision for what it calls nonincluding^
but which in fact is deducting, all cash
dividends not so applied. In support of
this contention the company relies mainly,
not upon the words of the' statute, but
upon arguments which it bases upon the
nature of mutual insurance, upon the sup-
posed analogy of the rules prescribed in
the statute for mutual fire and marine
companies, and upon the allied require-
ments of consistency.
First: The reason for the particular
provision made by Congress seems to be
clear: Dividends may be made, and by
many of the companies have been made
iai^ly, by way of abating or redueinfl"
the amount of the renewal premium.*
Where the dividend is so made the actual
premium receipt of the year is obviously
only the reduced amount. But, as a mat-
ter of bookkeeping, the premium is
[528] entered at the full rate, and
the abatement (that is, the amount
by which it was reduced) is en-
tered as a credit. The financial
result both to the company and to the
policyholders is, however, exactly the
same whether the renewal premium is re-
duced by a dividend, or whether the re-
newal premium remains unchanged, but
is paid in part either by a credit or by
*The dividend provision of the Mutual
Benefit Life Insurance Company involved
in the Herold Case, supra. 108* Fed. 199,
204, was, in part: '"After this policy ahall
have been in force one year, each year's
premium subsequently paid shall be subject
to reduction by nuch dividend as may be
apportioned by the directors." The divi-
dend provision in some of the participating
policies involved in the Corasecttcut Gen-
eral L, Ins. Co. Case, supra, 218 Fed. 188,
192, was: '"Reduction of premiums as de-
termined by the company will be made an>
nually. beginning at the second year, or the
insured may pay the full premium, and
instruct the company to apply the amount
of the reduction apportioned to him in any
one of the following plans:" (Then follow
four plane.)
952 V. 8.
llllt».
PENX MUTUAL L. INS. CO. v. LEDEREK.
52^8-530
eash received as a dividend. And the en-
tries in bookkeeping would be substantial-
ly the same. Because the several ways of
paying a dividend are, as between the
company and the policyholder, financial
equivalents. Congress, doubtless, conclud-
ed to make the incidents the samct also,
as respects income taxation. Where the
dividend was used to abate or reduce the
full or gross premium, the direction to
eliminate from the apparent premium re-
ceipts is aptly expr^sed by the phrase
"shiall not include," used in clause (o)
above. Where the. premium was left un-
changed, but was paid in part by a credit
or cash derived from the dividend, the in-
struction would be more properly ex-
pressed by a direction to deduct those
credits. Congress doubtless used the
words "shall not include" as applied also
to these credits because it eliminated them
from the aggregate of taxable premiums
as being the equivalent of abatement of
premiums.
That such was the intention of Congress
is confirmed by the history of the non-
inclusion clause, (c) above. The pro-
vision in the Revenue Act of 1913, for
taxing the income of insurance companies,
is in large part identical with the pro-
vision for the special excise tax upon
them imposed by the Act of August 5,
1909, chap. 6, § 38, 36 Stat, at L. 112.
By the latter act the net income of insur-
ance companies was, also,, to be ascer-
tained by deducting from gcoss income
''sums other than dividends, paid within
the year on policy and reoewal con-
tracts */' but there was in that act no non-
inclusion clause whatsoever. The ques-
tion arose whether the provision in the
Act of 1913, identical with (c) [529]
above, prevented using in the compu-
tation the reduced renewal premiums
instead of the full premiums, where
the reduction in the premium had been
effected by means of dividends. In
Mutual Ben. L. Ins. Co. v. Herold,
198 Fed. 199, decided July 29, 1912,
it was held that the renewal pre-
mium, as reduced by such dividends,
should be used in computing the gross
premium; and it was said (p. 212) that
dividends so applied in reduction of re-
newal premiums "should not be confused
with dividends declared in tlia ease of a
full-paid participating policy, wherein the
policyholder has no further premium pay-
ments to make. Such payments having
been duly met, the policy has become at
once a contract of msurance and of in-
vestment. The holder participates in the
profits and income of the invested funds
of the companv." On writ of error suet^,
64 I., eel.
out by the government the judgment en-
tered in the district court was affirmed by
the circuit court of appeals on January
27, 1913, 120 C. C. A. 266, 201 Fed. 918;
but that court stated that it refrained
from expressing any opinion concerning
dividends on full-paid policies, saying
that it did so "not because we wish to
suggest disapproval,- but merely because
no opinion about these matters is called
for now, as they do not se^n to be direct-
ly involved." The nonindusion clause in
the Revenue Act of 1913, (c) above, was
doubtless framed to define what amounts
involved in dividends should be "non-
induded," or deducted, and thus to pre-
vent any controversy arising over the
questions which had been raised under the
Act of 1909.» The petition for writ of
certiorari applied for by the government
was not denied by this court until Decem-
ber 15, 1913. 231 U. S. 756, 58 L. ed.
468, 34 Sup. Ct. Rep. 323; that is, after
the passage of the act.
[580] Second: It is argued that the
nature of life insurance dividends is the
same, whatever the disposition made
of them; and that Conp:re8s could not
have intended to relieve the -com-
panies from taxation to the extent
that dividends are applied in payment
of premiums, and to tax them to
the extent that dividends are not so
applied. If Congress is to be assumed to
have intended, in obedi^iee to the de-
mands of consistency, that all dividends
declared under life insurance policies
should be treated alike in connection with
income taxation, regardless of their dis-
position, the rule of consistency would re-
quire deductions more far-reaching than
those now claimed by the company. Why
allow so-called noninclnsion of amounts
equal to the dividends paid in cash, but
not applied in reduction of renewal pre-
mium, and disallow so-called noninclnsion
of amounts equal to the dividends paid by
a credit representing amounts retained by
the company for accumulation or to be
otherwise used for the policyholders* bene-
fit f The fact is, that Congress has acted
with entire consistency in laying down the
rule by which, in computing gross earn-
ings, certain amounts only are excluded;
but the company has failed to recognize
what the principle is which Congress has
consistently applied. The principle ap-
plied is that of basing the taxation on
ft Substantially the same questions were
involved, alflo. in Connecticut General L.
Ins. Co. v. Eaton, 218 Fed. 188, and Con-
necticut Mut. L. Ins. Co. V. Eaton, 218 Fed.
206, in which decisions were not, however,
reached until the following year.
701
530-533
SUPREME COURT OF THE UNITED STATES.
Oct. XkMl»
receipts of net premiums, instead of on
gross premiums. The amount equal to the
aggregate of eertain dividends is ez^lud-
ed| although they are dividends, because
by reason of their application the net-
premium receipts of the tax y^ear are
to that extent less. There is a striking
difference between an aggregate of in-
dividual premiums, each reduce^ by
means of dividends, and an aggr^ate of
full premiums, from which it is sought to
deduct amounts paid out by the company
which have no relation whatever to pre-
miums received within the tax year, but
which relate to some other premiums
which may have been received many
years earlier. The difference between
the two [531] cases is such as may well
have seemed to Congress sufficient to
justify the application of different rules
of taxation.
There is also a further significant dif-
ference. All life insurance has in it the
element of protection. That afforded by
fraternal beneficiary societies, as origi-
nally devised, had in it only the element
of protection. There the premiums paid
by the member were supposed to be suf-
ficient, and only sufficient, to pay the
losses which will fall during the current
year; just as premiums in fire, marine, or
casualty insurance are supposed to cov-
er only the losses of the year or other
term for which the insurance is written.
Fraternal life insurance has been ex-
empted from all income taxation, Con-
gress having differentiated these socie-
ties, in this respect as it had in others,
from ordinary life insurance companies.
Compare Supreme Council B. A. v. Beh-
rend, 247 U. S. 394, 62 L. ed. 1182, 1
A.L.R. 966, 38 Sup. Ct. Rep. 522. But
in level-premium life insurance, while
the motive for taking it may be mainly
protection, the business is largely that
of savings investment. The premium is
in the nature of a savings deposit.
Except where there are stockholders,
the savings bank^pays back to the de-
positor his deposit, with the interest
«^arued, less the necessary expense of
management. The insurance company
does the same, the difference being merely
that the savings bank undertakes to repay
to each individual depositor the whole of
his deposit, with interest; while the life
insurance company undertakes to pay to
each member of a class the average
amount (regarding the chances of life
and death) ; so that those who do not
reach the average age get more than they
have deposited, that is, paid in premiums
(including interest), and those who exceed
the average age less than they deposited
702
(including interest). The dividend of «
life insurance eolbpany may be x^giurded
as paying back part of these depobits,
called premiums. The dividend is made
possible because the amounts paid in aa
premium have earned [532] more than
il was assumed they would when the
policy contract was made, or because
the expense of conducting the business
was less than it was then assumed
it would be, or because the mortality^
that is, the deaths, in the dasa to
which the policyholder belongs, proved
to be less than had then been assumed
in fixing the premium rate. When for
any or all of these reasons the
net cost of the investment (that is, the
right to receive at death or at the endow-
ment date, the agreed sum) has proved
to be less than that for wluch provision
was made, the difference nuiy be regarded
either as profit on the investment or as
a saving in the expense of the protection.
When the dividend is applied in reduction
of the renewal premium. Congress might
well regard the element of protection as
predominant, and treat the reduction of
the premimn paid by means of a divi-
dend as merely a lessening of the expense
of protection. But after the policy is
paid up, the element of investment pro-
dominates, and Congress might reasonably
regard the dividend substantially as profit
on the investment.
The dividends, aggregating $686,503,
which the Penn Mutual Company ijwisla
should have been ^^oninduded,'' or more
properly deducted from the gross income^
were, in part, dividends on the ordinary
limited-payment life policies which had
been paid-up. There are others which
arose under policy contracts in which the
investment feature is more striking; for
instance, the accelerative endowment pol-
icy, or such special form of contract as
the twenty-five-year "6 per cent invest-
ment bond" matured and paid March,
1913, on which the policyholder received,
besides dividends, interest and a ''share of
forfeitures." In the latter, as in "de-
ferred dividend" and other semitontine
policies, the dividend represents in part
what clearly could not be regarded as a
repayment of excess premium of the pol-
icyholder receiving the dividend. For the
"share ot the forfeiture" which he re-
ceives is the share of the redundancy in
premium of other policyholders who
[533] did not persist in premium pay-
ments to the end of the contract period.
Third: The noninclusion clause here
in question, (c) above, is found in § 11.
G(b), in juxtaposition to the provisi(ma
252 U. 8.
itia.
PENN MUTUAL L. INS. CO. v. LEDERER.
533-535
eoneenuagf mntoal fire and mutual knarine
odmpanieiy daiises (a) and (b) above.
The ftict that in thiree separate clauses
three diffsrent rules are prescribed by
CofngTess for the treatm^it of redundant
premiums in the three classes of insur*
anee would seem to be conclusive evidence
that Congress acted with deliberation, and
intended to differentiate between them in
respect to income taxation. But the eom-
pony, ignoring the ctifferences in the pro-
visiona concerning fire and marine com-
panies respectivdy, insists that mutual
life insurance rests upon the same prin-
ciples as mutual fire and marine, and that
as the clauses concerning fire and marine
companies provide specifically for non-
inclusion in or deduction from gross in-
come of all portions of premiums re-
turned, Congress must have intended to
apply the same rule to all. Neither
premise nor conclusion is sound.
Mutual fire, mutual marine, and mutual
life insurance companies are analogous
in that each performs the service called
insuring wholly for the benefit of their
policyholders, and not like stock insurance
companiee, in part for the benefit of per-
sons who, as stockholders, have provided
working capital on which they expect to
receive dividends representing profits from
their investment. In other words, th^ee
mutual companies are alike in that they
are co-operative enterprises. But, in re-
spect to the service performed, fire and
marine companies differ fundamentally,
as above pointed out, from legal reserve
life companies. The thing for which a
fire or marine insurance premium is paid
is protection, which ceases at the end of
the term. If, after tiie end of the term,
a part of the premium is returned to the
policyholder, it is not returned as some-
thing purehased with the premium, but as
a part of the premium [534] which was
not required to pay for the protection;
that is, the expense was less than esti-
mated. On the other hand, the service
performed in level-premium life in-
surance is both protection and in-
vestment. Premiums paid — ^not in the
tax year, but perhaps a generation
earlier — have earned so much for the
eo-operators, that the company is able
to pay to each not only the agreed
amount, but also additional sums, called
dividends; and have earned these ad-
ditional sums, in part, at least, by trans-
actions not among the members, but with
othen; as by lending the money of the
eo-operators to third persons, who pay
a larger rate of interest than it was as-
sumed would be received on investments.
64 li. ed.
The fact that the investment resulting in
accumulation or dividend is made by a
co-operi^ve, as distinguished from a
capitalistic, concern, does not prevent the
amount thereof being property deemed a
profit on the investment Nor does the
fact that the profit was earned by a co-
operative concern afford basis for the
ailment that Congress did not intend to
tax the profit. Congress exempted certain
eo-operative enterprises from all income
taxation, among others, mutual savings
banks; but, with the exception of frater-
nal beneficiary societies, it imposed in
express terms such taxation upon ^every
insurance company.''^
The purpose of Congress to differentiate
between mutual fire and marine insurance
companies, on the one hand, and life in-
surance companies, on the other, is fur-
ther manifested by this: The provision
concerning return premiums in computa-
tion of the gross income of fire and ma-
rine insurance companies is limited in
terms to mutual companies, whereas the
nonindusion clause, (c) above, relating
to life [535] insurance companies, ap-
plies whether the company be a stock or
a mutual one. There is good reason to
believe that the failure to differentiate
between stock and mutual life insurance
companies was not inadvertent. For
while there is a radical difference betwe^i
stock fire and marine companies and mu-
tual fire and marine companies, both in
respect to the conduct of the business and
in the results to policyholders, the par-
ticipating policy commonly issued by the
stock life insurance company is, both in
rights conferred and in financisd results,
substantially the same as the policy issued
by a purely mutual life insurance com-
pany. The real difference between tbe
two classes of life companies as now con-
ducted lies in the legal right of electing
directors and officers. In the stock com-
pany stockholders have that right; in tbe
mutual companies, the policyholders who
are the members of the corporation.
The Penn Mutual Company, seeking to
draw support for its argument from legis-
lation subsequent to the Revenue Act of
1913, points also to the fact that by the
Act of September 8, 1916, chap. 463, §
12, subsection 2, subdivision c, 39 Stat.
<The alleged unwisdom and injustice of
taxing 'mutual life insurance companiee
while mutual savings banks were exempted
had been strongly pressed upon CongresB.
Briefs and statements filed with Senate
Committee on Finance on H. R. 3321 —
Sixty-third Congress, First Session, vol.* 3,
pp. 1965-2094^
70$
036-538
SUPREME COURT OF THE UMTED STATES.
Oct. XkBM.
at L. 766, 768, Comp. Stat. §§ 6336a,
63361, Fed. Stat. Anno. Supp. 1918, p.
312, the role for computing gross income
there provided for mutual 6re insurance
companies was made applicable to mutual
employers' liability, mutual workmen's
compensation, and mutual casualty insur-
ance companies. It asserts that thereby
Congress has manifested a settled policy
to treat the taxable income of mutual
concerns as not including premium re-
funds; and that if mutual life insurance
companies are not permitted to ^ ^exclude''
them, these companies will be the only
mutual concerns which are thus discrim-
inated against. Casualty insurance, in its
various forms, like fire and marine insur-
ance, provides only protection, and the
premium is wholly an expense. If such
later legislation could be considered in
construing the Act of 1913, the conclusion
to be drawn from it would be clearly the
opposite of that urged. The later act
would tend to show that Congress [530]
persists in its determination to differ-
entiate between life and other forms of
insurance.
Fourth: It is urged that in order to
sustain the interpretation given to the
noninclusion clause by the circuit court
of appeals (which was, in effect, the inter-
pretation set forth above), it is necessary
to interpolate in the clause the words
^Srithin such year,'' as shown in italics in
brackets, thus:
''And life insurance companies shall not
include as income in any year such por-
tion of any actual premiums received ^m
any individual policyholder [within such
year] as shall have been paid back or
credited to such individual policyholder,
or treated as an abatement of premium
of such individual policyholder, within
such year."
What has been said above shows that
no such interpolation is necessary to sus-
tain the construction given by the circuit
court of appeals. That court did not
hold that toe permitted noninclusion in
the year's gross income is limited to that
portion of the premium received within
the year which, by reason of a dividend,
is paid back within the same year. What
the court held was that the noninclusion
is limited to that portion of the premium
which, although entered on the books as
received, was not actually received within
the year, because the full premitlm was,
by means of the dividend, either reduced,
or otherwise wiped out to that extent.
Nor does the government contend that
any portion of a premiiun, not received
within the tax year, shall be inclu<led in
704
computing the year's gross ineome. On
the other hand, what the company is seek-
ing is not to have ''nonineladed" a part
of the premiums which wore actually re-
ceived within the year, or which appear,
as matter of bookkeeping, to have been
received, but actually were not. It is
seeking to have the aggregate of premiums
actually received witlnn the year reduced
by an amount which the company paid
out within [537] the year; and which it
paid out mainly on account of premiums
received long before the tax year. What
it seeks is not a noninclusion of amounts
paid in, but a deduction of amounts paid
out.
If the terms of the noninclusion clause,
(c) above, standing alone, permitted of a
doubt as to its proper construction, the
doubt would disappear when it is read
in connection with the deduction clause,
(d) above. The deduction there pre-
scribed is of "the sums other than divi-
dends paid within the year on policy and
annuity contracts." This is tantamount
to a direction that dividends shall not be
deducted. It was argued that the divi-
dends there referred to are ''commercial"
dividends like those upon capital stock;
and that those here involved are divi-
dends of a different character. But the
dividends, which the deduction clause
says, in effect, shall not be deducted, are
the very dividends here in question; that
is, dividends "on policy and annuity con-
tracts." None such may be deducted by
any insurance eompany except as express-
ly provided for in the act, in clauses
quoted above, (a), (b), and (c). That is,
clauses (a), (b), and (c) are, in effect,
exceptions to the general exclusion of
dividends from the permissible deductions
as prescribed in clause (d) above.
In support of the company's contention
that the interpolation of the words "within
the year" is necessary in order to support
the construction given to the act by the
circuit court of appeals, we are asked to
consider the legislative history of the
Revenue Act of 1918 (enacted February
24, 1919, chap. 18, 40 Stat, at L. 1057,
Comp. Stat. I 6336ip) ; and specifically
the fact that in the bill, as intixnluced in
and passed by the House, the correspond-
ing section (233 (a) ) contained the words
"within the taxable year," and that these
words were stricken out by the Con-
ference Committee (Report . No. 1037,
Sixty-fifth Congress, Third Session). The
legislative history of an act may, where
the meaning of the words used is doubt-
ful, [538] be resorted to as an aid to
construction. Caminetti v. Unit^ States,
2ft2 U. 8.
ESTATE OF P. D. BECKWITH »: COMMISSIONER OF PATENTS. 538-540
■242 V. S. 470, 4a0, 61 L. ed. 442, 455,
L.R.A.1917P, 502, 37 Sup. Ct. Rep. 192,
Anu. Oas. 1917B, 1168. Bat no aid could
possibly be derived from the legislative
bistory of another aot passed oearly aii
years after the one in question. Further
answer to the si^ument hased on the
legislative history of the later act would,
tiierefore, be inappropriate.
We find no error in the judgment of
the Circait Court of Appeals. It is
affirmed.
COMMIt-SIONER OF PATENTS.
(See S. C. Reporter's ed. 53S-54T.}
■ right t
registration »
Trademark
prOTlsos.
1. The lBnt;iiage of the Trademark E^t;-
iatratiou Act that do mark not within its
prohibitions or provisoe shall be denied
registrEition ia as imperative as the pri>-
hibition of .a proviso against registration
in cases specified.
[For nihcr ouhpb. en Trademark, VI. In Digest
8np. Ct. 1908.]
Trademark — reglBtratlon — conipoHlio
mark — doacrlptlve words — die-
clnlmer.
2. The words "Moistair Heating Sys-
tem." though descriptive, may not be denied
regiatrtttion when combined with the words
"Rmiiid Oak" as a part of a purely fanciful
and arbitrary trademark design, where
claim to exclusiye use of these def^criptive
words apart from the mark shown in (he
drawing Sled is disclai|ned on the record.
Such a case doea not fall within the pro-
hibitinn of the proviso in the Trademark
Bt^atrntion Act against the registration
of any mark which consists merely in words
or devices which are descriptive of the
goods with which they are used, or of the
^araoter or quality of such goods, but is
governed by the equally imperative lan-
guage of the statute tjiat no mark not
Kote. — On descriptive words
marks— ^ee noles to Lawrence .vuf;. uo.-
V. Tennessee Mfg. Co. 34 L. ed. i;. S.
997; Coats v. Merrick Thread Co. 37 L.
ed. U. S. 847; and Dr. S. A. Richmond
Nervine Co. v. Richmond, 40 L. ed. U. 8.
155.
On protection of descriptive word or
phrase as trademark, or on the ground
of unfair competition — see note to 0 K
Bus & Baggage Co. v. 0 K Transfer ft
Storage Co. L.R.A. 1918A, .961.
within its prohibitions or provisos shall be
denied registration.
[For otbar cases, see TrademsrK. VI. la Digest
Sup. Ct 1908.1
ON WRIT of Certiorari to the Court
of Appeals of the District of Co-,
lumbia to review a judgment which .af-
firmed the decision of the Commissioner
of Patents, denying an application for
the r^stration of a trademark. R*
versed.
See same case helow, 48 App. D. C.
UO.
The facts are stated in the opinion.
Mr. H&nr 0. Howard argued the
cause and filed a brief for petitioner.
Assistant Attorney General Davis
submitted the cause for respondent.
Special Assistant to the Attorney Gen-
eral Curtis was on the brief.
Mr. JoBtiee Clarke delivered the opin-
ion of the court :
The petitioner, a corporation, filed an
application in the Patent Office for the
registration of a trademark, which is de-
scribed as follows:
"A design like a seal, comprising the .
bead of an Indian chief surmounting a
scroll bearing hia name, 'Doe-Wah-Jack'
and surrounded by a circle, outside of
which appeared the words 'Round Oak'
and 'Moiatair Heating System' in a circle^
and the whole being surrounded by a
wreath of oak leaves."
It will be useful to reproduce the draw-
ing filed with this application :
It was averred that the petitioner hact
used the mark for more than eighteen
months before the application [540]
wao made by applying it to "hot air and
combined hot air and hot water heaters
and furnaces by having (he same cast
540-542
SLl'KKMK UOURT OF •IHE UMTKU STATES.
Oct. Tebj^l,
into the metals of which the systems
were constructed."
The Commissioner found that the mark
did not conflict with any other that was
registered, and that the petitioner was
entitled to the exclusive use of it except-
ing the words "Moistair Heating System."
It was ordered that the mari^ might be
registered if the excepted words, objec-
tiohable because descriptive, were "erased"
or "removed" from it, but that the filing
of a disclaimer would not suffice to secure
registration.
Not satisfied with this result, the pe-
titioner appealed to the court of appeals
for the District of Columbia, and its
judgment- affirming the decision of the
Commissioner of Patents is before us for
review.
The ground of both decbions is that
the words "Moistair Heating System" are
merely descriptive of a claimed merit of
the petitioner's system, — that, in the proc-
ess of heating, moisture is added to the
air, — and that one person may not law-
fully monopolize the use of words in
general use which might be used with
equal truthfulness to describe another
system of heating. For this reason it was
held that the case falls within the proviso
of the Registration Act of 1905, declaring
that no mark consisting merely in words
or devices which are descriptive of the
goods with which they are used or of the
character or quality of such goods shall
be r^stered under the terms of the act.
Act of February 20, 1905, § 6, 33 Stat,
at L. 725, chap. 592, amended January
8, 1913, 37 Stat, at L. 649, chap. 7, Comp.
Stat. § 9490, 9 Fed. Stat. Anno. 2d ed.
p. 753.
No question of patent right or of unfair
competition, or that the design of the
trademark is so simple as to be a mere
device or contrivance to evade the law
and secure the registration of nonregis-
trable words, is involved. Nairn Lino-
leum Co. V. Ringwalt Linoleum Works,
46 App. D. C.-64, 69.
[541] This statement makes it ap-
parent that the question presented for
decision is: Whether the applicant may
lawfully register the words "Moistair
Heating System," when combined with
the words "Bound Oak," as a part of
its purely fanciful and arbitrary trade-
mark design, as shown in the drawing
filed, and when claim to exclusive use of
the words apart from the mark shown
in the drawing is disclaimed on the
record f
An account of the process of decision,
in the Patent Office and in the court of
appeals, by which the result in this case
70t»
was arrived at, as it appears in the brief
of the Commissioner of Patents, is sug-
gestive and useful. From this we learn
that when a mark has been presented for
registration consisting merely (only) of
descriptive words or devices, registration,
has b^n uniformly refused. When "com-
posite*' marks — such as contain both
registrable and nonregistrable matter —
have been presented for registry with
features in them which conflicted with
earlier marks, registered by other than
the applicant, the complete rejection,
'^eradication," of the conflicting portions,
has been uniformly required before r^s-
try was allowed. But where there was no
such conflict, and the only objection was
that descriptive words were used, the
practice of the Patent Office prior to the
decision, in 1909, of Johnson v. Brandau,
32 App. D. C. 348, was to permit the
registration of marks containing sueh
words, where they were associate with
registrable words, or were a part of an
arbitrary or fanciful design or device, it
being considered not necessary to delete
the descriptive matter, even when it was
an essential part of the composite trade-
mark as it had been used by the applicant,
provided it was clearly not susceptible of
exclusive appropriation under the general
rules of law. After the decision of John-
son V. Brandau, supra, a practice grew
up in the Patent Office, not providetl for
in the statute, of allowing an applicant to
disclaim objectionable descriptive [542]
words in ca3es where to require their
actual removal would result in so chang-
ing the mark that it would not readily
he recognized as that shown in the
drawing or specimen filed with the ^>-
plication. The customary form of such
disclaimer was a * statement filed that
no claim was made to the designat-
ed words, as, for example, "Moistair
Heating System,'' apart :6rom the mark
shown in the drawing. This was
interpreted as meaning that only when
taken in connection with the remaining
features of the mark did the applicant
make claim to their exclusive use. Kx
parte Illinois Seed Co. 219 Off. Gaz. 931.
Such disclaimer became a part of the
Applicant's statement in the record, and
necessarily formed a part of the certificate
of registration as it would appear in the
copies of it furnished to the applicant and
the public, pursuant to § 11 of the act
Then came the decisions in Fishbeck
Soap Co. y. Kleeno Mfg. Co. 44 App. D.
C. 6, and Nairn linoleum Co. v. Ringwalt
Linoleum Works, 46 App. D. C. 64,
which, says the Commissions of Patents^
were understood as disapproving the prae*
95« V. 8.
1919. ESTATE OF P. D. BKCKW Jill v. COMMISSIONER OF PATENTS. 542-544
tiee of disclaimer, and since they were
rendered, registration of mei'ely descrip-
tive matter has not been allowed in any
foi*m, but its actual deletion from the
trademark drawing has been required, — '
with, however, an apparent exception in
the case of Rinsburger, 8 T. M. Repte.
567, 128 MS. Dec. 141. The judgment we
are considering, requiring, as it does, the
•^elimination" of the descriptive words,
shows that the Commissioner correctly
interpreted these two decisions of the
court of appeals.
It is apparent from this rehearsal that
the Commissioner of Patents has prompt-
ly and cordially accepted for his guidance
the decisions of the court of appeals, audi
although he avoids a controversial at-
titude in his brief, and gives a colorless
history of the practice of his office,
[543] still it is manifest that, in this
case and in others, the court has very
radically ehanged .that practice with
respect to permitting .registry of com-
posite trademarks, and that its de-
cisions have turned upon the eonstruc-
tion of the second proviso, referred
to, in the fifth section of the R^istra-
tion Act, which is made the basis of
the judgment we are reviewing.
The Registration Act of 1905 (33 Stat,
at L. 724, chap. 592), amended May 4,
1906 (34 Stat, at L. 168, chap. 2081),
and February 18, 1909 (35 Stat, at L.
627, chap. 144, Comp. Stat. § 9485, 9
Fed. Stat. Anno. 2d ed. pp. 747, 751),
and January 8, 1913 (37 Stat, at L. 649,
clrnp. 7, Comp. Stat. § 9490, 9 Fed. Stat.
Anno. 2d ed. p. 753), without changing
the substantive law of trademarks, pro-
vided, in the manner prescribed, for the
registration of marks (subject to spe-
cial exceptions) which, without the stat-
ute, would be entitled to legal and equi-
table protection, and the case before us
calls chiefly for the construction of the
provisions of § 5 of that act, which, so
far as Iiere involved, are as follows :
^*No mark by which the goods of the
owner of the mark may be distinguislied
from other goods of the same class tihall
be refused regisiration as a trademark on
account of the nature of such mark un-
less, etc. . . .
"Provided, that no mark which con-
8i8t8 . . . merely in words or devices
which are descriptive of the goods with
which they are used, or of the character
or quality of such goods . . . ahM
he registered under tiie terms of this act.''
It was settled long prior to the Trade-
mark Registration Act that the law would
not secure to any person the exclusive use
of a trademark consisting merely of
•4 E. ed.
words descriptive of the qualities, ingredi-
ents, or characteristics of an article of
trade. Tliis for the reason that the func-
tion of a trademark is to point distinctive-
ly, either by its own meaning or by asso-
ciation, to the origin or ownership of the
wares to which it is applied, and words
merely descriptive of qualities, ingredi-
ents, or characteristics, when used alone^
do not do this. Other like goods, equal
to them in all respects, may be ^manufac-
tured or [544] dealt in by others, who,
with equal truth, may use, and must be
left free to use, .the same language of
description in placing their goods l^fore
the public. Delaware & H. Canal Co. v.
Clark, 13 WaU. 311, 322-324, 20 L. ed.
581, 583, 584; Amoskeag Mfg. Co. v.
Trainer, 101 U, S. 51, 54, 25 L. ed. 993,
994; Manhattan Medicine Co. v. Wood,
108 U. S« 218, 222, 27 L. ed. 706, 707,
2 Sup. Ct. Rep. 436; GFoodyear's India
Rubber Glove Mfg. Co. v. Ooodyear India
Rubber Co. 128 U. S. 598, 32 L. ed. 535, 9
Sup. Ct. Rep. 166; Lawrence Mfg. Co. v.
Tennessee Mfg. Co. 138 U. S. 537, 547,
34 L. ed. 997, 1003, 11 Sup. Ct. Rep. 396 ;
Brown Chemical Co. v. Meyer, 139 U. S.
540, 35 L. ed. 247, 11 Sup. Ct. Rep. 625;
Elfi^ Nat Watch Co. v. lUinois Watch
Case Co. 179 U. S. 66&, 45 L. ed. 365, 21
Sup. Ct. Rep. 270; Standard Paint Co.
v. Trinidad A^halt Mfg. Co. ^20 U. S.
446, 55 L. ed. 536, 31 Sup. Ct. Rep. 456.
Thijs the proviso quoted, being simply
an expression in statutory form of the
prior general rule of law .that word»
merely descriptive are not a proper sub-
ject for exclusive trademark appropria-
tion, if the application in this case Iiad
been to register only the words "Moistair
Heating System," plainly it would have
fallen within the terms of the prohibi-
tion, for they are merely descriptive of
a claimed property or quality of the peti-
tioner's heating system, — that by it mois-
ture is imparted to the air in the process
of heating. But the application was not
to register these descriptive words "mere-
ly," alone and apart from the mark
8ho\^n in the drawing, but in a described
manner of association with other words,
''Round Oak," which are not descriptive
of any quality of applicant's heating sys-
tem, and as a definitely positioned part of
an entirely fanciful and arbitrary design
or seal, to which the Commissioner found
the applicant had the exclusive right.
Since the proviso prohibits the registra-
tion not iof merely descriptive words, but
of a ''trademark which consists ....
merely" (only) of such words,— the dis-
tinction is substantial and plain, — we
think it sufficiently clear that such a com-
707
644-547
SUPREME COURT OF THE UNITED STATES.
Oct. Tkbic,
posite mark as we have here does not fall
within its terms. In this connection it
must be noted that the requirement of
the statute that [545] no trademark
shall be refused registration; except in
designated cases, is just as imperative
as the prohibition of the proviso against
registration in cases specified.
While there is no specific provision for
disclaimers in the trademark statute, the
practice of using them is commended to
our judgment by the statement of the
Commissioner of Patents that, so far as
known, no harm came to the public from
the practice of distinguishing, without
deleting, nonregisterable matter in the
drawing of the mark as registered, when
a statement, forming a part of the record,
was required^ that the applicant was not
making claim to an exclusive appropria-
tion 01 such matter except in the precise
relation and association in which it ap-
peared in the drawing and description.
It seems obvious that no one could be
deceived as to the scope of such a mark,
and that the registrant would be preclud-
ed by his disclaimer from setting up in
the future any exclusive right to the dis-
claimed part of it. It seems obvious also
that to require the deletion of descriptive
words must result often in so chang^ing
the trademark sought to be registered
from the^orm in which it had been used
in actual trade that it would not be recog-
nized as the same mark as that shown in
the drawing, which the statute requires
to be filed with the application, or in the
specimens produced as actually used, and
therefore registration would lose much, if
not all, of its value. The required omis-
sion might so change the mark that in
an infringement suit it could be success-
fully urged that the registered mark had
not been used, — and user is the founda^
tion of registry (§ 2). Of this last the
case before us furnishes an excellent ex-
ample. To strike out ''Moistair Heating
System" from the applicant's trademark
would so change its appearance that its
value must be largely lost as designating
to prior purchasers or users the origin
of the heating system to which it was
applied.
The commercial impression of a trade-
mark is derived [546] from it as a
whole, not from its elements separated
and considered in detail. For this rea-
son it should be considered in its
entirety (Johnson v. Brandau, 32
App. D. C. 348), and to strike
out any considerable part of it, cer-
tainly any conspicuous part of it, would
be to greatly affect its value. Of course,
refusal to raster a mark does not pre-
708
vent a former user from continuing its
use, but it deprives him of the benefits of
the statute and this should not be done if
it can be avoided by fair^ even liberal,
construction of the act, designed, as it is,
to promote the domestic and foreign trade
of our country.
Thus the case comes to this: That the
Commissioner found that the trademark
presented for registration did not conflict
with any theretofore registered, and there
is no suggestion of unfair practice in the
past or contemplated in the future; that
it had been used for eighteen months in
the form proposed for registry; that the
words ordered to be stricken out from
the drawing are descriptive, but the mark
does not consist ''merely^' in such words,
but is a composite of them witii others,
and with an arbitrary design which, with-
out these words, both the Commissioner
and the court found to be registrable;
that the language o£ the statute that no
mark not within its prohibitions or pro-
visos shall be denied registration is just
as imperative as the prohibitory words of
the proviso; and, very certainly, that a
disclaimer on the part of iq>plicant that
no claim is made to the use of the words
'^oistair Heating System," apart from
the mark as shown in the drawing and
as described, would preserve to all others
the right to use these words in the future
to truthfully describe a like property or
result of another system, provided only
that they be not used as a trademark
which so nearly resembles that of the pe-
titioner ''as to be likely to cause con-
fusion in the mind of the public or to
deceive purchasers" when applied ''to
merohandiBe of the same descriptive prop-
erties" (§6).
[547] Such being the ultimate facts
of this controversy, we cannot doubt
that the court of appeals fell into error
in ruling that the words "Moistair Heat-
ing System" must be "eliminated" from
the tnulemark of the applicant as it had
been theretofore used, and that the re-
quiroment of the act of Congress for the
registration of trademaiira would be fully
complied with if registration of it were
permitted with an appropriate declara-
tion on the part of the applicant that
no claim is made to the right to the ex-
clusive use of the descriptive words except
in the setting and relation in which they
appear in the drawing, description, and
samples of the trademark filed with the
application.
It results that the judgment of the
Court of Appeals must be reversed.
Bir. Justice MoReynoldi dissents.
tftt 17. a.
1919.
SIMPSON V. UNITED STATES.
JOHN W. SIMPSON I Vt al.. as Executors
of the Estate of John G. MoorSi Deceased,
Appts.,
V.
UNITED STATES.
(See S. 0. Reporter's ed. 647-663.)
E>vldence — Judicial notice «- interest
rates.
1. The Federal Supreme Ck)urt takes ju-
dicial notice that in 1901 4 per cent was
very generally assumed to be tne fair value
or earning power of money safely invested.
[For other cases, see Evidence, I. e, In Digest
Sup. Ct. 1908.]
Internal revenue — Federal succession
tax — mortuary tables — Interest rate.
2. It is much too late to assail success-
fully the use of mortuary tables by the
Internal Bevenue D^artment in computing
the present worth of life interests in per-
sonal property for the purpose of the suc-
cession tax imposed under the Spanish War
Revenue Act of June 13, 1898, or the as-
sumpticm that 4 per cent was then the fair
value or earning power of money.
[For other cases, see loteroal Bevenue, Itl.
h, in Digest Sup. Ct. 1908.]
Internal revenue — Federal succession
' tax — vested or contingent Interest —
trust fund legacies — refunding.
3. Trust fund legacies which it was the
legal duty of the executors to pay over to
the trustee before July 1^ 1902, and for
compelling payment of which a statutory
remedy was given to the legatees before
that date, were vested in possession and
enjoyment within the meaning of the pro-
vision of the Act of June 27, 1902, for the
refund of succession taxes collected on con-
tingent beneficial interests not vested prior
to July 1, 1902.
[For other cases, see Internal Revenue, III. h.
in Digest Sup. Ct. 1908.]
[No. 213.J
Argued March 17 and 18, 1020. Decided
April 19, 1920.
1 Death of Th<»nas Thacher suggested,
and that cause proceed in the name of John
W. Simpson, as surviving exeoutor, etc,
ordered March 17, 1920, on moti(« of coun-
sel for the appellants.
, , , — ^
Note* — On judicial notice, generally —
see note to Olive v. State, 4 L.R.A. 33.
As to taxes on succession and collat-
eral inheritances — see notes to Re Howe,
2 L.R.A. 825; Wallace v. Myers, 4 L.R.A.
171; Com. v. Ferguson, 10 L.R.A. 240;
Re Romaine, 12 L.R. A. 401 ; Rodman v.
Com. 33 L.R.A.(N.S.) 592; State ex rel.
Ise V. Cline, 60 L.R.A. (N.S.) 991; and
Magoun v. Illinois Trust & Sav. Bank,
42 L. ed. U. S. 1037.
As to basis and method of compuldng
value of life estate or annuity for pur-
poses of succession tax — see note to Re
While, 46 L.R.A.(N.S.) 714.
64 L. ed.
APPEAL from the Court pi Claims to
review a judgment dismissing a pe-
tition for the refund of succession taxes.
Affirmed.
The facts are stated in the opinion.
Mr. Thomas M. Day argued the cause,
and, with Mr. H. T. Neweomb, filed a
brief for appellants:
There is no presumption of law that
future payments ican be discounted at
any particular rate of interest, or that
the future duration of a life in being will
coincide with average "expectancies."
Louisville & N. R. Co. v. Holloway,
246 U. S. 526, 62 L. ed. 867, 38 Sup. Ct.
Rep. 379, 17 N. C. C. A. 678.
Moreover, local conditions are not to
be disregarded.
Chesapeake & 0. R. Co. v. Kelly, 241
U. S. 486, 490, 60 L. ed. 1117, 1122,
L.B.A.1917F, 367, 36 Sup. Ct. Rq). 630,
13 N. C. C. A. 673; Hartley v. Eagle Ins.
Co. 222 N. Y, 186, 3 A.L.R. 1379, 118 N.
E. 622.
The arbitrary general rule of assess-
ment prescribed and followed by the
Commissioner of Internal Revenue was
an unlawful attempt to exercise exoiu-
sively legislative power,* and for that
reason (and because it was arbitrary and
genszul) no assessment depending upon
it could be lawful. Of course, the Treas-
ury Department w*as witlioat power to
increase the scope af its own authority
by calling its action in enforcing the
general rule the exercise of the power
to assess.
Waite V. Macy, 246 U. 8. 606, 608,
609, 62 L. ed. 892, 894, 895, 38 Sup. Ct.
Rep. 396.
All powers of Federal legislation are
vested in the Congress of the United
States.; and, although other departments
may be authorized to do many things
which the Congress might do, and the
line separating legislative from admin-
istrative discretioii is not easily drawn,
those powers which are exclusively legis-
lative in their character can never be
exercised by any other agency.
Wayman v. Southard, 10 Wheat. 1, 41,
6 L. ed. 253, 262; Marshall Field & Co.
V. Clark, 143 U. S. 649, 36 L. ed. 294,
12 Sup. Ct. Rep. 495; Buttfield v.
Stranahan, 192 U. S. 470, 48 L. ed. 625,
24 Sup. Ct. Rep. 349;VUnion Bridge Co.
V. United States, 204 U. S. 364, 61 L. ed.
523, 27 Sup. Ct. Rep. 367; St. Louifl, I.
M. & S. R. Co. V. Taylor, 210 U. S. 281,
287, 62 L. ed. 1061, 1064, 28 Si^. Ct.
Rep. 616, 21 Am. Neg. Rep. 464; United
States V. Grimaut, 220 U. 8. 606, 66 L.
ed. 563, 31 Sup. Ct. Rep. 480.
709
SI PJIKMK COUUT OF THE UMTKD STATES.
Oct. Tebu«
The power to tax is, in the strictest
sense, an exclusively legislative power.
Heine v. Levee Comrs. 19 Wall. 655,
059, 22 L. ed. 223, 22C; Meriwether v.
Garrett, 102 U. S. 472, 513, 519, 26 L. ed.
197, 205, 207; Thompson v. Allen County,
115 U. S. 550, 554, 557, 29 L. ed. 472,
474, 475, 6 Sup. Ct. Kep. 140; Spencer
V. Merchant, 125 U. S. 345, 31 L. ed.
763, 8 Sup. Ct. Rep. 921 ; Cooley, Taxn.
3d ed. 99, 100.
No assessing authority is ever per-
mitted to adopt an arbitrary rule, or any
general rule as to values, and apply such
i*ule in lieu of making inquiry* concern-
ing the particular facts of each case.
McMillen v. Anderson, 95 U. S. 37,
24 L. ed. 335; Glidden v. Harrington,
189 U. S. 255, 259, 47 L. ed. 798, 801,
23 Sup. Ct. Rep. 574; New York ex rel.
Brooklyn City R. Co. v. New Yoii: State
Tax. Comrs. 199 U. S. 48, 52, 50 L. ed.
79, 85, 25 Sup. Ct. Rep. 713; Keeney v.
New York, 222 U. S. 525, 535, 56 L. ed.
299, 305, 38 L.R.A.(N.S.) 1139, 32 Sup.
Ct. Rep. 105.
The Commissioner of Internal Revenue
cannot alone, or in connection with the
Secretary of • the Treasury, alter or
amend the Internal Revenue Law. All
he can do is to carry into effect that
which Congress has enacted. His regu-
lations in aid of the execution of the
law must be reasonable, and made with
a view to the due assessment and colleo-
cion of the revenue.
Thacher v. United States, 15 Blatcht.
15, Fed. Cas. No. 13,851, affirmed in 103
U. S. 679, 26 L. ed. 535 ; Tnited States v.
200 Barrels of Whiskey, 95 U. S. 571, 576,
24 L. ed. 491, 492.
The interests, both of the daughters
and of the annuitants, which were taxed
by the Commissioner, were, in their very
nature and essence, inalienable, and the
beneficiaries were incapable of disposing
of or anticipating such interests.
Stringer v. Young, 191 X. Y. 157, 83
N. E. 690; Lent v. Howard, 89 N. Y. 169;
Graff V. Bonnett, 31 X. Y. 9, 88 Am. Dec.
336; Fowler, Personal Prop.. Law (N.
Y.) 52, 86; Central Trust Co. v. Gaff-
ney, 157 App. Div. 501, 142 N. Y. Supp.
902, affirmed in 215 N. Y. 740, 109 N. E.
1069; Garrett v. Duclos, 128 App. Div.
508, 112 N. Y. Supp. 811; SUter v.
Slater, 114 App. iJiv. 160, 99 N. Y. Supp.
564, affirmed in 188 N. Y. 633, 81 N. E.
1176; Seeley v. Fletcher, 63 Misc. 448,
117 N. Y. Supp. 86 ; Re Bishop, 89 Misc.
362, 151 N. Y. Supp. 768; Re Ungrich,
201 N. Y. 419, 94 N. E. 999; Cochrane v.
Schell, 140 N. Y. 516, 35 N. E. 971 ; Greer
V. Chester, 62 Hun, 329, 17 X. Y. Supp.
91«
238, affirmed in ]31 N. Y. 629, 30 N. E.
863; Douglas v. Cruger, 80 N. Y. 15;
Lent V. Howard, 89 N. Y. 169; Cuthbert
V. Chauvet, 136 N. Y. 326, 18 L.R.A. 745,
32 N. E. 1088.
'Tresent worths,'' amounting, as they
do, to **somewhat speculative valuations'*
(Manufacturers R. Co. v. United Staten,
246 U. S. 457, 494, 62 L. ed. 831, 849,
38 Sup. Ct. Rep. 383), ought not to be
considered proper bases for taxation, es-
pecially when the law says "dear^ and
"actual" values are to be the bases
(Lynch v. Union Trust Co. 90 C. C. A.
147, 164 Fed. 161).
See also Billings v. People, 189 HI.
487, 59 L.R.A. 807, 59 N. E. 798, affirmed
in 188 U. S. 97, 47 L. ed. 400, 23 Sup.
Ct. Rep. 272; Vanderbilt v. Eidman, 196
U. S. 480, 496, 49 L. ed. 563, 568, 25 Sup.
Ct. Rep. 331.
The law sanctioned no tax that oould
not be deducted from something im-
mediately payable.
VanderbUt v. Eidman, 196 U. S. 480,
494, 49 L. ed. 563, 567, 25 Sup. Ct Rep.
331; Knowlton v. Moore, 178 U. S. 41,
66, 67, 44 L. ed. 969, 979, 980, 20 Sup.
Ct. Rep. 747.
The interests presented by the ease at
bar are not contingent within the terms
of the Act of June 27, 1902. On the
contrary, they are present entities in the
enjoyment of the life tenant.
United States v. Fidelity Trust Co.
222 U. S. 158, 160, 56 L. ed. 137, 141, 32
Sup. Ct. Rep. 59.
Recognition of this principle is, how-
ever, in no way inconsistent with con-
ttdenee that Congress never intended to
tax such interests, save as taxable sums
from time to time accrued to the use or
benefit of the life tenants. To conclude
otherwise would be to conclude that Con-
gress expressly commanded that to ho
done which it was impossible should be
done; namely, the deduction of the
amount of the tax from a sum smaller
than the tax. Such a possibility has
heretofore been assigned as a reason for
a different construction.
Knowlton v. Moore, 178 U. S. 41, 69,
44 L. ed. 969, 981, 20 Sup. Ct. Rep. 747.
If it was the intention of the Act of
1898 to tax future interests (which we
deny), it is clear that no machiuer>' or
standards were provided for the purpose,
and that a tax on such . interests could
not lawfully be assessed or collected.
Re Stewart, 131 N. Y. 284, 14 LJI.A.
836, 30 N. E. 184.
The ascertainment of the value of life
interests by mortuary tables was im-
proper.
252 V' S.
1910.
JSIMP8UX V. UM'IKD STATES.
548, o4\}
Herold v. Shanley, 76 C, C. A. 478,
146 Fed. 20; DisstoH v. McClain, 77 C.
C. A. 340, 147 Fed. 117 ; Herold v. Kahn,
86 C. C. A, 598, 159 Fed. 613; Lynch v.
Union Trust Co. 90 C. C. A. 147, 164 Fed.
167.
The court below erred in dismissing
the appellants' petition as to the taxes
assessed upon the life interests of the
two dau^ters in the residuary estate,
in excess of the taxes payable upon their
life interests in the amount of the trust
funds turned ov^r to the Atlantic Trust
Company prior to July 1, 1902, which
said excess taxes, amounting to $12,-
035.51, were assessed on interests in the
residuary estate which were unadmin-
istered and still subject to the payment
of debts and expenses, and hence were
oonting^ent beneficial interests which had
not become absolutely yested in posses-
sion or enjoyment prior to the last-named
date.
United States t. Jones, 236 U. S. 106,
59 L. ed. 488, 35 Sup. Ct. Rep. 261, Ann.
Cas. 1916A, 316; McCoach v. Pratt, 236
U. S. 562, 59 L. ed. 720, 35 Sup. Ct. Rep.
421 ; Greene v. Day, 1 Dem. 51 ; Baggott
V. Boulger, 2 Duer, 169; Erwin v. Loper,
43 N. Y. 521 ; Cotter v. Quinlan, 2 Dem.
33 ; Jessup & Redf . Surrogate's Practice,
1916 ed. 971 ; Uterhart v. United States,
340 U. S. 598, 60 L. ed. 819, 36 Sup. Ct.
Rep. 417; Henry v. United States, 251
U. S. 393, ante, 322, 40 Sup. Ct. Rep.
185.
Solicitor General King argued the
cause, and, with Mr. A. F. Myers, filed
a brief for appellee :
The method of assessment employed
was authorized by the War Revenue Act
of 1898.
United States v. Fidelity Trust Co. 222
U. S. 158, 56 L. ed. 137, 32 Sup. Ct. Rep.
59; Rand v. United States, 249 U. S.
503, 506, 63 L. ed. 731, 733, 39 Sup. Ct.
Rep. 359; Henry v. United States, 251
U. S. 393, ante, 322, 40 Sup. Ct. Rep. 185;
Dunbar v. Dunbar, 190 U. S. 340, 345,
47 L. ed. 1084, 1090, 23 Sup. Ct. Rep. 757.
A succession tax accrues as of the
moment of the benefactor's death.
Hertz V. Woodman, 218 U. S. 205, 54
L. ed. 1001, 30 Sup. Ct. Rep. 621.
The method employed is well recog-
•nized, is the only one practicable, and is
neither unreasonable nor unjust.
Knowlton v. Moore, 178 U. S. 41, 44 L.
ed- 969, 20 Sup. Ct. Rep. 747; Maine v.
Grand Trunk R. Co. 142 U. S. 217, 35 L.
ed. 994, 3 Inters. Com. Rep. 807, 12 Supc
Ct. Rep. 121, 163; Home Ins. Co. y. New
York, 134 U. S. 594, 33 L. ed. 1025, 10
Sup. Ct. Rep. 503; Postal Teleg. Cable
Co. V. Adams, 155 U. S. 688, 39 L. ed.
• 4 li. ed.
311, 5 Inters. Com. Rep. 1, 15 Sup. Ct.
Rep. 268, 360 ; People y. Northern Trust
Co. 266 111. 139, 107 N. E. 190 ; Howe y.
Howe, 179 Mass. 546, 55 L.R.A. 626, 61
N. E. 225; State ex rel. Smith y. Probate
Ct. 136 Minn. 392, 162 N. W. 459; Re
Tracy, 179 N. Y. 501, 72 N. E. 519; Re
White, 208 N. Y. 64, 46 L.R.A.(N.S.) 714,
101 N. E. 793, Ann. Cas. 1914D, 75;
Crenshaw v. Knight, 127 Tenn. 708, 156
S. W. 468; Re ComwalHs, 11 Exch. 580,
156 Eng. Reprint, 962, 25 L. J. Exch.
N. S. 149, 4 Week. Rep. 711.
Fixing a giyen rate of interest as the
earning power of money for purposes of
tax assessment is not an unlawful at-
tempt to exercise legislatiye power.
United States v. Grimaud, 220 U. S.
506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480 ;
United States y. Antikamnia Chemical
Co. 231 U. S. 654, 68 L. ed. 419, 34 Sup.
Ct. Rep. 222, Ann. Cas. 1915A, 49; Butt-
field y. Stranahan, 192 U. S. 470, 496, 48
L. ed. 525, 535, 24 Sup. Ct. Rep. 349.
The funds were as fully yested in the
hands of the executors, in trust for the
legatee, as the^r would haye been in the
hands of the Trust Company.
Read v. Patterson, 134 N. Y. 128, 31
N. E. 445; New York v. United States
Trust Co. 78 App. Diy. 366, 79 N. Y.
Supp. 1010, 178 N. Y. 551, 70 N. E. 1097;
Ward y. Ward, 105 N. Y. 68, 11 N. E.
373.
The test is not whether a legacy was
actually in the possession of the bene-
ficiary on July 1, 1902, but whether the
bene^iary on said date had a present
right of possession.
Vanderbilt y. Eidman, 196 U. S. 480,
495, 49 L. ed. 563, 668, 25 Sup. Ct. Rep.
331; Re Hoffman, 143 N. Y. 327, 38 N.
B. 311; Hertz v. Woodman, 218 U. S.
205, 219, 54 L. ed. 1001, 1007, 30 Sup.
Ct. Rep. 621; United States y. Fidelity
Trust Co. 222 U. S. 158, 160, 66 L. ed.
137, 141, 32 Sup. Ct. Rep. 59; United
States V. Jones, 236 U. S. 106, 109, 69
L. ed. 488, 489, 35 Sup. Ct. Rep. 261,
Ann. Cas. 1916A, 316.
Mr. Justice Clarke delivered the opin-
ion of the court :
This is a suit to recover the whole, or,
failing in that, a laige part of a sue-
cession tax assessed under the Spanish
War Reyenue Act of June 13, 1898 (30
Stat, at L. 448, chap. 448, Comp. Stat.
§ 6144, 4 Fed. Stat. Anno. 2d ed. p. 135) ,
and paid by the appellants as executors
of the will of John 6. Moore, deceased,
a citizen of New York, who died in June,
1899.
[549] The assessment was made
against the appellants as persons having
711
549-351
SUPREME COURT OF THE UNITED STATES.
Oct. '.
in charge or trust, as executors, legacies
arising from personal property, and the
contention is that right to recovery may
be derived, either from the Act of Con-
gress, approved July 27, 1912 (37 Stat,
at L. 240, chap. 256, 4 Fed. Stat Auno.
2d. ed. p. 236), directing the Secretary
of the Treasury to refund the amount of
any claims which should be satisfactorily
shown to have been "erroneously or il*
legally'' assessed under warrant of § 29
of the War Revenue Act or from the act
approved June 27, 1902 (32 Stat, at L.
406, chap. 1160), which directs the Secre-
tary of the Tr^ury to refund to execu-
tors so much of any tax as may have been
collected under warrant of that act- "on
contingent beneficial interests which shall
not have been vested prior to July 1,
1902."
The decedent in his will directed his
executors to convert a large residuary
estate into money, to divide the same into
three equal shares, and to transfer two
of such shares to a trustee, to be selected
by them, in trust to invest and reinvest,
and to pay to each of his two daughters
the whole of the net income of one share
so long as she should live.
Pursuant to authority derived from
§ 31 of the War Revenue Act, and Rev.
Stat §§ 321 and 3182 (Comp. Stat, §§
492, 5904, 3 Fed. Stat Anno. 2d ed. pp.
976, 1010), the Commissioner of Internal
Revenue, in order to provide for the de-
temiination of the amount of taxes to be
assessed on legacies such as are here in-
volved, on December 16, 1898, issued in-
structions to collectors of internal revenue
throughout the country, which contained
tables showing the present worth of life
interests in personal property, with direc-
tions for computing the tax upon the
same. These tables were based on "Actu-
aries' " or "Combined Experience Tables,"
and were used in arriving at the amounts
paid in this case.
On June 30, 1899, letters testamentary
were issued to appellants as executors,
and on April 1, 1901^ the United States
Commissioner of Internal Revenue, pur-
suant to the provisions of § 29 of the
Spanish War Revenue Act, assessed
[550] a tax of about $12,000 on the
share of each daughter, which was paid
on April 15, 1901.
On October 29, 1907, appellants pre-
sented to the government their claim,
which was rejected, for the refund of
$21,640.55 of the taxes so paid, "or such
greater amount thereof as the Commis-
sioner might find refundable under the
Refunding Act of June 27, 1902, or other
remedial statutes.**
712
The judgment of the oourt of daups^
dismissing the amended petition as to the
claims for refund of the tax paid on the
legacies of the two daughters, and on
three small legacies which will follow the
disposition of these, and need no further
notice, is before us for review.
Of the two claims of error argued, the
first is, that the court of claims erred in
refusing to bold that it was illegal to use
mortuary tables, and to assume 4 per cent
as the value of money in computing the
tax that was paid, and that, therefore, the
whole amount of it should be refunded.
The objection is not to the particular
table that was used, but to the use of any
such table at all, — to the method. Such
tables, indeed, the precise table whi^
was made the basis of the one used by
the collector, had been resorted to for
many years prior to 1899 by courts, legis-
latures, and insurance companies for the
purpose of determining the present value
of future contingent interests in prop-
erty, and we take judicial notice of the
fact that at the time this tax was col-
lected 4 per cent was very generaUy
assumed to be the fair value or earning
power of money safely invested. Both
the method and the rate adopted in this
case have been assumed by this court,
without discussion, as proper in comput-
ing the amount of taxes to be collected
under this War Revenue Act in Knowlton
V. Moore, 178 U. S. 41, 44, 44 L. ed. 969,
971, 20 Sup. Ct Rep. 747; United States
V. Fidelity Trust Co. 222 U. S. 158, 56
L. ed. 137, 32 Sup. Ct Rep. 59; Rand v.
United States, 249 U. S. 503, 506, 63 L.
ed. 731, 733, 39 Sup. Ct Rep. 359; and
in Henry v. United States, decided at this
term [251 U. S. 393, ante, 322, 40 Sup.
Ct Rep. 185]. It is much too late to
successfully assail a method so generally
applied, [551] and as to this claim of
error the judgment of the court of claims
is affirmed.
Tiie facts following are essential to the
disposition of the remaining question.
The appellant executors appointed a
trust company trustee for the two daugh-
ters of decedent, and prior to July 1,
1902, they paid to it, in trust for each of
them, the sum of $426,086.08. After
making these payments the executors had
in their custody in cash and securities in
excess of $1,797,000, from which, prior
to March 16, 1906, they made further
payments, amounting approximately to
$500,000, to the trust fund for each of the
daughters, thereby making each of them
exceed $926,000. The assessment of each
was $665,060 in April, 1901.
252 V. Ck
1919.
CANADIAN' NORTHERN R. 00. v. EGGEN.
551-553
The contention is that the excess of the
assessment above the amount which had
been actually paid to the trustee prior to
July 1, 1902; had not become vested prior
to (hat date, within the meaning of the
Act of June 27, 1902 (32 Stat, at L. 406,
§ 3, 4 Fed. Stat. Anno. 2d ed. p. 232),
and that it should therefore be refunded.
The law of New York in force when
the estate was in process of administra-
tion provided (N. Y. Code Civ. Proc.
1899, § 2721) that "after the expiration
of one year [from the time of granting
letters testamentary] the executors . . .
must discharge the specific legacies be-
queathed by the will, and pay the general
legacies, if there be assets,'' and § 2722
gave to legatees the right to petition in
an appropriate court to oompel pa3rment
of their I^acies after the expiration of
such year.
Letters testamentary were granted to
the appellants on June 30, 1899, and we
have seen that assets abundantly sufficient
to have increased the trust fund legacies
of the daughters much beyond the amount
at which they were asse^^ for taxation
were in the custody of the executors prior
to July 1, 1902, and therefore under this
law of New YoA it was their duty to
have made such payments prior to that
date unless cause was shown for not so
doing.
[552] The state lasr also authorized
(§ 2718) the executors to publish a no-
tice once in each week for six months,
requiring all creditors to present their
claims against the estate, and provided
that in suit» brought on any claim not
presented within six months from the
first publication of such notice, the ex-
ecutors should not be chargeable for any
assets which they may have paid out in
satisfaction of legacies.
The appellants first published the notice
to creditors on April 25, 1900, and there-
iPore they might safely have made pay-
ment on the daughters' legacies after the
1st of Nov^nber, 1900, one year and eight
months prior to July 1, 1902, unless cause
to the contrary was shown.
The only excuse given in the record for
not complying with this state law is that
in Mar(^, 1902, a stockholders' suit was
commenced against the partnership of
Moore & Schley, of which the deceased
was a member, in which an accounting
.was sought for* a large amonnt of promo-
tion profits in connection with the organi-
zation of the American Malt Company.
As to this, the court of <;laims finds that
the evidence does not show the pleadings,
issues, or the character of the suit, or the
amount or merit of the claim, or the re-
sult of the litigation. Obviously, such a
•4 L. ed.
showing of such a suit cannot be consid-
ered to- have been a genuine obstacle to
settlement of the estate, and the other
claims against it were negligible in com-
parison with the available assets.
It is thus apparent that for many
months prior to July 1. 1902, there were
abundant assets with which to make pay-
ments upon these two legacies, in an
amount larger than was necessary to
make them equal to, and greater than,
that for which they were assessed for tax-
ation; that for many months before that
date it was the l^al duty of the execu-
tors to make such payment; and that for
a like time the l^tees had a statutory
n^t to institute suit to compel payment.
It is obvious that l^aoies which it was
thus the legal [558] duty of the execu-
tors to pay before July 1, 1902, and for
compelling payment of which a statutory
remedy was given to the legatees before
that date, were vested in possession and
.enjoyment, within the meaning of the
Act of June 27, 1902, as it was inter-
preted in United States v. Fidelity Trust
Co. 222 U. S. 168, 56 L. ed. 137, 32 Sup.
Ct. Rep. 59 ; McCoach v. Pratt, 236 U. S.
562, 567, 59 L. ed. 720, 721, 35 Sup. Ct.
Rep. 421 ; and in Henry v. United States,
decided February 2, 1920 [251 U. S. 393,
ante, 322, 40 Sup. Ct. Rep. 185]. The
case would be one for an increased as-
sessment, rather than for a refund, if
the War Revenue Act had not been re-
pealed.
Affirmed.
Mr. Justice McBeynolds did not par-
ticipate in the discussion or decision of
this case.
CANADIAN NORTHERN RAILWAY COM-
'^ANY, Petitioner,
V.
GUS EGGEN.
(See S. C. Reporter's ed. 553-663.)
Constitutional law — privileges and Im-
nmnltles — discrimination agralnst
nonresidents — limitation of actions.
Constitutional privileges and immuni-
ties of a nonresident citizen are not denied
Note. — ^As to the validity of class
legislation, generally — see notes to State
V. Goodwill, 6 L.R.A. 621; and State v.
Loomis, 21 L.R.A. 789.
As to constitutional equality of privi-
leges, inununities, and protection, gen-
erally—flee note to Louisville Safety
Vault & T. Co. V. Louisville & N. R. Co.
14 L.R.A. 579.
7ia
SUPREME COURT OF TliE UNITED STATES.
Oct. Tebm,
by the exemption accorded to resident citi-
zens by the provisions of Minn. Gen. Stat.
1913. § 7709, that "when a cause of action
has arisen oateide of this state and, by the
laws of the place where it arose, an action
thereon is there barred by lapse of time, no
such action shall be maintained in this state
unless the plaintiff be a citizen of the state
who has owned the cause of action ever
since it accrued " where the foreign limita-
tion, though shorter than that of Minne-
sota, is not unduly short.
[F\)r other cases, see Constitutional I^w, 21.3-
236, in Digest Sup. Ct. 1903.]
[No. 281.]
Argued March 1, 1920. Decided April 19,
1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Eighth Circuit to review a judgment
which reversed a judgment of the District
Court for the District of Minnesota,
Second Division, in favor of defendant
in a personal-injury action. Reversed and
judgment of District Court affirmed.
See same case below, 167 C. C. A. 229,
255 Fed. 937.
The facts are stated in the opinion.
Mr. William D. Mitchell argued the
cause, and, with Mr. Pierce Butler, filed
a brief for petitioner:
The distinction made in the statute
in favor of citizens of Minnesota is not
arbitrary, but based on practical dif-
ferences in the conditions surrounding
the prosecution of claims, which form a
reasonable basis for classification.
Magoun v. Blinois Trust & Sav. Bank,
170 U. S. 283, 294, 296, 42 L. ed. 1037,
1043, 1044, 18 Sup. Ct. Rep. 594; Citi-
zens' Teleph. Co. v. Puller, 229 U. S. 322,
331, 57 L. ed. 1206, 1213, 33 Sup. Ct. Rep.
833 ; District of Columbia v. Brooke, 214
U. S. 138, 150, 53 L. ed. 941, 945, 29 Sup.
Ct. Rep. 560; Chambers v. Baltimore &
O. R. Co. 207 U. S. 142, 148, 149, 52 L.
ed. 143, 146, 147, 28 Sup. Ct. Rep. 34;
Caimes v. Caimes, 29 Colo. 260, 93 Am.
St. Rep. 55, 68 Pac. 233; Union Hotel
Co. V. Her8ee„79 N. Y. 454, 35 Am. Rep.
536; Smith v. Birmingham Waterworks
Co. 104 Ala. 315, 16 So. 123; Risewick
v. Davis, 19 Md. 93; Judd v. Lawrence, 1
Cush. 531; Bacon v. State ^ax Comrs.
126 Mich. 22, 60 L.R.A. 321, 86 Am. St.
Rep. 524, 85 N. W. 307; Cobbs v. Cole-
man, 14 Tex. 597; State ex rel. Owens v.
Trustees of Section 29, 11 Ohio, 28;
Baughman v. National Waterworks Co.
46 Fed. 7; Harding v. Standard Oil Co.
182 Fed. 423; Devanney v. Hanson, 60
W. Va. 3, 53 S. E. 603; Sedgwick v.
Sedgwick, 50 Colo. 164, 114 Pac. 488,
Ann. Cas. 1912C, 653; Stevens v. Lar-
714
will, 110 Mo. App. 140, 84 S. W. 113;
Standard Stock Food Co. v. Wright, 225
U. S. 540, 56 L. ed. 1197, 32 Sup. Ct.
Rep.- 784.
If the validity of this statute be in
doubt, legislative and judicial acquies-
cence in the validity of such statutes for
a long period of time should operate to
resolve that doubt in favor of the stat-
ute.
Fletcher v. Spaulding, 9 Minn. 64, Gil.
54; Hoyt v. MeNeD, 13 Minn. 390, Gil.
362; Luce v. Clarke, 49 Minn. 356, 51 N.
W. 1162; Powers Mercantile Co. v.
Blethen, 91 Minn. 339, 97 N. W. 1056;
Drake v. Bigelow, 93 Minn. 112, 100 N.
W. 664; Penfield v. Chesapeake, O. & S.
W. R. Co. 134 U. S. 351, 33 L. ed. 940,
10 Sup. Ct. Rep. 566; Chemung Canal
Bank v. Lowery, 93 U. S. 72, 23 L. ed.
806; Anglo-American Provision Co. v.
Da\'is Provision Co. 191 U. S. 373, 375,
48 L. ed. 225, 227, 24 Sup. Ct. Rep. 92;
Aultman & T. Co. v. Syme, 24 C. C. A.
539, 51 U. S. App. 48, 79 Fed. 238; Robin-
son V. Oceanic Steam Nav. Co. 112 N. Y.
315, 2 L.R.A. 636, 19 N. E. 625; KloU
V. Angle, 220 N. Y. 358, 116 N. E. 24;
Stuart V. Laird, 1 Cranch, 299, 2 L. ed.
115; Marshall Field & Co. v. Clark, 143
U. S. 649, 691, 36 L. ed. 294, 309, 12
Sup. Ct. Rep. 495.
Mr. Ernest A. Michel argued the cau^e,
and, with Mr. Tom Davis, filed a brief
f 01^ respondent:
A right of action to recover damages
for an injury is property, and the legis-
lature has no power to destroy sueh
property. •
Angle v. Chicago, St. P. M. & 0. R.
Co. 151 U. S. 1, 38 L. ed. 55, 14 Sup. Ct.
Rep. 240.
The word "privileges," as used in the
Constitution, is con£ied to those privi-
leges which are fundamental.
Cortield v. Coryell, 4 Wash. C. C. 384),
Fed. Cas. No. 3,230.
The courts have always guarded the
privileges intended to be granted or pre-
served by the constitutional provisions.
Paul V. Virginia, 8 Wall. 169, 180, 19
L. ed. 357, 360; Ward v. Maryland, 12
Wall. 418, 430, 20 L. ed. 449, 452; Coh-
V. Cunningham, 133 U. S. 107, 114, 33
L. ed. 538, 542, 10 Sup. Ct. Rep. 271;
Slaughter-House Cases, 16 AVall. 30, 21
L, ed. 394.
The Minnesota statute abridges the
right of citizens of South Dakota when
they seek redress in the Minnesota
courts.
Cole V. Cunningham, 133 U. S. 107, U4,
33 L. ed. 538, 542, 10 Sup. Ct. Rep. 271 ;
2&2 V. S.
1910.
CANADIAN NORTHERN R. 00. v. EGGEN.
358-500
Blake v. McClung, 172 U. S. 239, 266,
43 L. ed. 432, 442, 19 Sup. Ct. Rep. 172;
Chambers v. Baltimore & 0. R. Co. 207
U. S. 142, 52 L. ed. 143, 28 Sup. Ct. Rep.
34; Chalker v. Birmingham & N. W. R.
Co. 249 U. S. 522, 63 L. ed. 748, 39 Sup.
Ct. Rep. 366; Maxwell y. Bugbee, 250 U.
S. 525, 63 L. ed. 1124, 40 Sup. Ct. Rep.
2; Cooky, Const. lim. 7th ed. 569. *
The argument of petitioner, that to
hold the Minnesota law unconstitutional
would nullify statutes in existence for
many years, is not of great weight in de-
termining whether the Minnesota law is
unconstitutional.
Slocum V. New York L. Ins. Co. 228
U. S. 364, 57 L. ed. 879, 33 Sup. Ct. Rep.
523, Ann. Cas. 1914D, 1029.
«
Mr. Justice Olarke delivered the opin-
ion of the court:
The only question presented for de-
cision in this case is as to the validity
of § 7709 of the Statutes of Minnesota
(Minn. Gen. Stat. 1913), which reads:
^^When a cause of action has arisen
outside of this state and, by the laws of
the place where it arose, an action thereon
is there barred by lapse of time, no such
action shall be maintained in this state
unless the plaintiff be a citizen of the
state who has owned the cause of action
ever since it accrued."
The circuit court of appeal, reversing
the district [559] court, held this stat-
ute invalid for the reason that the ex-
emption in favor of citizens of Minneso-
ta rendered it repugnant to article 4, §
2, of the Constitution of the United
States, i^irhich declares that '^the citizens
of each state shall be entitled to all
privil^es and immunities of citizens in
the several states."
The action was commenced in the dis-
trict court of the United States for the
district of Minnesota, second division, by
the respondent, a citizen of North Dakota,
against the petitioner, a corporation or-
ganized under the laws of the Dominion
of Canada, to recover damages for per-
sonal injuries sustained by him on Nov-
vember 29, 1913, when employed by the
petitioner as a switchman in its yards at
Humboldt, in the province of Saskatche-
wan. The respondent, a citizen and resi-
dent of North Dakota, went to Canada
and entered the employ of the peti-
tioner as a switchman a short time prior
to the accident complained of. He re-
mained in Canada for six months after
the accident and then returned to live in
North Dakota. He commenced this action
on October 15, 1915, almost two years
after the date of the accident. By the
64 li. ed.
laws of Canada, where the cause of action
arose, an action of this kind must be com-
menced witliin one vear from the time in-
jury was sustained. If the statute of
Minnesota, above quoted, is valid, it is
applicable to rhe action, which, being
barred in Canada, cannot be maintained
in Miunesota by ^ nonresident plaintiff.
If, however, the statute is invalid, the
general Statute of Limitations of Minne-
sota, allowing a period of six years within
which to commence action, would be ap-
plicable. The record properly presents
the claim of the petitioner that the cir^-
cuit court of appeals erred in holding the
statute involved unconstitutional and
void.
It is plain that the act assailed was not
enacted for the purpose of creating an
arbitrary or vexatious discrimination
against nonresidents of Minnesota.
[560] It has been in force ever since
the state was admitted into the Union in
1858; it is in terms precisely the same as
those of several other states, and In sub-
stance it does not differ from those of
many more. It gives a nonresident the
same rights in the Minnesota courts as
a resident citizen has, for a time equal
to that of the Statute of Limitatu>ns
where his cause of action arose. If a
resident citizen acquires such a cause of
action after it has accrued, his rights
are limited precisely as those of the non-
resident are, by the laws of the place
where it arose. If^the limitation of the
foreign state is equal to or longer than
that of the Minnesota statute, the non-
resident's position is as favorable as that
of the citizen.
It is only when the foreign limitation
is shorter than that of Minnesota, and
when the nonresident who owns the -cause
of action from the time when it arose has
slept on his rights until it is barred in
the foreign state (which happens to be
the respondent's case), that inequality re«
suits, and for this we are asked to declare
a statute unconstitutional which has been
in force for sixty years.
This court has never attempted to for-
mulate a comprehensive list of the rights
included witliin the ''privileges and im-
munities" clause of the Constitution (art.
4^ § 2), but it has repeatedly approved
as authoritative the statement by Mr. Jus-
tice Washington, in 1825, in Corfield v.
CoryeU, 4 Wash. C. C. 371, 380, Fed. Cas.
No. 3,230 (the first Federal case in which
this clause was considered), saying: ''We
feel no hesitation in confining these ex-
pressions to those privileges and immuni-
ties which are, in their nature, funda-
mental." Slaughter-House Cases^ 16 Wall.
715
660-563
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
36, 76, 21 U ed. 394, 408; Blake v. Mc-
Clwig, 172 U. S. 239, 248, 43 L. ed. 432,
435, 19 Sup. Ct. Rep. 165; Chambers v.
Baltimore & 0. R. Co. 207 U. S. 142, 155,
52 L. ed. 143, 149, 28 Sup. Ct. Rep. 34.
In this Corfield Case the court included
in a partial list of such fundamental
privileges, "the right of a citizen of one
state, . . . to institute and maintain
actions of any kind in the courts of an-
other."
[561] The state of Miniiesota, in the
statute we are considering, recognized
this right of citizens of other states to
institute and maintain suits in its courts
as a fundamental right, protected by the
Constitution, and for one year from the
time his cause of action accrued the re-
spondent was given all of the rights
which citizens of Minnesota had under it.
The discrimination of which he com-
plains could arise only from his own
neglect.
This is not disputed, nor can it be
fairly claimed that the limitation of one
year is unduly short, having regard to
the likelihood of the dispersing of wit-
nesses to accidents such as that in which
the respondent was injured, their expo-
sure to injury and death, and the failure
of memory as to the minute details of
conduct on which questions of negligence
so often turn. Thus, the holding of the
circuit court of appeab comes to this:
that the privilege and immunity clause
of the Constitution guarantees to a non-
resident precisely the same rights in the
courts of a state as resident citizens
have, and that any statute which gives
him a less, even though it be an adequate,
remedy, is unconstitutional and void.
Such a literal interpretation of the
clause can^^ot be accepted.
From very early in our history, require-
ments have been imposed upon nonresi-
dents in many, perhaps in all, of the
states, as a condition of resorting to their
courts, which have not been imposed upon
resident citizens. For instance, security
for costs has very generally been required
of a nonresident, but not of a resident
citizen, and a nonresident's property in
jwany states may be attached under con-
ditions which would not justify the at-
taching of a resident citizen's property.
This court has said of such requirements :
'^Sueh a r^ulation of the internal af-
fairs of a state cannot reasonably be
characterized as hostile to the funda-
mental rights of citizens of other states.
. . . [562] It has never been supposed
that regulations of that character materi-
ally interfered with the enjojinent by
citizens of each state of the privileges
7ia
and immunities secured by the Constitu-
tion to the citizens of the several states."
Blake v. McClung, 172 U. S. 239, 256,
43 L. ed. 432, 438, 19 Sup. Ct. Rep. 165.
The principle on which this holding
rests is that the constitutional require-
ment is satisfied if the nonresident is
given, access to the courts of the state
upon terms which, in themselves, are rea>
sonable and adequate for the enforcing
of any rights he may have, even though
they may not be technically and precise-
ly the same in extent as those accorded
to resident citizens. The power is in the
courts, ultimately in this court, to deter-
mine the adequacy and reasonableness of
such terms. A man cannot be said to be
denied, in a constitutional or in any ra-
tional sense, the privilege of resorting to
courts to enforce his rights when he is
given free access to them for a length
of time reasonably sufficient to enable an
ordinarily diligent man to institoto pro-
ceedings for their protection.
This is the prmciple on which this
court has repeatedly ruled that contracts
were not impaired in a constitutional
sense by change in limitation statutes
which reduced the time for commencing
actions upon them, provided a reasonable
time was g^ven for commencing suit be-
fore the new bar took effect. Sohn v.
Waterson, 17 Wall. 596, 21 L. ed. 737;
Terry v. Anderson, 95 U. S. 628, 632,
24 L. ed. 365, 366 ; Tennessee v. Sneed, 96
U. S. 69, 74, 24 L. ed. 610, 612; Antoni
V. Greenhow, 107 U. S. 769, 774, 27 L.
ed. 468, 471, 2 Sup. Ct. Rep. 91.
A like result to that which we are an-
nouncing was reached with respect to sim-
ilar statutes, in Chemung Canal Bank v.
Lowery, 93 U. S. 72, 23 L. ed. 806; by
the circuit court of appeals, second cir-
cuit, in Aultman & T. Co. v. Syme, 24
C. C. A. 639, 51 U. S. App. 48, 79 Fed.
238; in Klotz v. Angle, 220 N. Y. 347,
116 N. B. 24; and in Robinson v. Oceanic
Steam Nav. Co. 112 N. Y. 315, 325, 2
L.R.A. 636, 19 N. £. 625. In this last
case the court of appeals of New York
pertinently says :
[563] ''A construction of the consti-
tutional limitation (the one we are con-
sidering) which would apply it to such
a case as this would strike down a large
body of laws which have existed in all
the states from the foundation of the
government, making some discrimination
between residents and nonresidents in
legal proceedings and other matters.^'
The laws of Minnesota gave to the non-
resident respondent free access to its
courts, for the purpose of enforcing any
right which he mav have had, for a year,
962 U. S,
1019.
PENNSYLVANIA v. WEST VIRGINIA.
563-565
— as long a time as was given bim for
that purpose by the laws under which he
chose to live and work, — and having neg-
lected to avail himself of that law, he
may not successfully complain because
his expired right to maintain suit else-
where is not revived for his benefit by
the laws of the state to which he went
for the sole purpose of prosecuting his
suit. The privilege extended to him for
enforcing his claim was reasonably suf-
ficient and adequate, and the statute is
a valid law.
It results that the judgment of the Cir-
cuit Court of Appeals must be reversed
and that of the District Court afiftrmed.
Reversed.
COMMONWEALTH OP PENNSYLVANIA,
Complainant,
V.
STATE OP WEST VIRGINIA. (No. 28,
Original. )
STATE OF OHIO, Complainant,
V.
STATE OP WEST VIRGINIA. (No. 24,
Original.)
(See S. C. Reporter's ed. 663-565.)
Supreme Court of the United States —
controversies between states — con-
solidation — appointment of commis-
sioner to talce testimony.
Controversies between states consoli-
dated and a commissioner appointed, with
the power of a master in chancery, to take
and return the testimony.
[For other cases, see Supreme Conrt of the
United States, III. in Digest Sap. Ct 1908.]
[No8. 23 and 24, Original.]
April 19, 1920.
ORIGINAL SUITS by the Common-
wealth of Pennsylvania and the
State of Ohio against the State of West
Virginia. Causes consolidated and a
commissioner appointed to take and re-
turn the testimony.
Order announced by Mr. Chief Justice
White:
[564] On consideration of the re-
spective motions of the complainants for
the appointment of a special master, and
of the defendant for the appointment
of a commissioner to take the testimony
and report the same to the court, and of
€4 li. ed.
the motions to consolidate the eases for
the purpose of taking such testimony^
It is now here ordered that the motions
to consolidate the cases for the purpose of
taking the proofs be^ and the same are
hereby, granted.
It is further ordered that Mr. Levi
Cooke, of the ^District of Columbia, be,
and he is hereby, appointed a commission-
er to take and return the testimony -in
these causes, with the powers of a master
in chancery, as provided in the rules of
this court; but said commissioner shall
not make any findings of fact or state any
conclusions of law.
It is further ordered that the complain-
ants shall take their evidence, at such
place or places as they may indicate, be-
tween the first day of May, 1920, and the
first day of October, 1920, upon giving
ten days' notice of the time and place of
taking such evidence to the counsel for
the defendant; that the defendant may
take evidence, at such place or places as
it may' indicate, between the first day of
October, 1920, and the first day of March,
1921, upon giving ten days' notice of the
time and place of taking such evidence
to the counsel for the complainants; that
the complainants shall take their evidence
in rebuttal between the first day of
March, 1921, and the first day of April,
1921, at such place or places as they may
indicate, upon giving ten days' notice to
counsel for defendant, and the defendant
shall then conclude the taking of its evi-
dence in surrebuttal on or before the first
day of May, 1921, upon giving ten days'
notice of the time and place of taking
such evidence to the counsel for com-
plainants.. Provided, however, that if
complainants shall conclude the taking of
their evidence in chief before [565] the
first day of October, 1920, and shall give
notice thereof, the time for the taking of
evidenee in chief on the part of defend-
ant shall begin to run fifteen days after
the giving of said notice by the complain-
ants; and if the defendant shall conclude
the taking of its evidence before the first
day of March, 1921, and shall give notice
thereof, the thirty-one days' time for the
taking of evidence in rebuttal on behalf
of the complainants shall begin to run
fifteen days after the giving of said no-
tice by the defendant; and the thirty
days' time for the taking of evidence on
behalf of defendant in surrebuttal shall
begin to rtm from the termination of
said thirty days allowed for the taking
of the evidence in rebuttal by the com-
plainants; but nothing in this proviso
o65
SUPREME COURT OF THE UNITED STATES.
Oct. Tebu,
contained shall operate or be construed to
postpone the ultimate dates for the com-
mencement of the time for the taking of
the defendant's evidence in chief, the
complainants' evidence in rebuttal^ and
the defendant's evidence in surrebuttali
respectively, first above specified.
718
It is further ordered that the said com-
plainants and the defendant, respective-
ly, shall make such deposits with the
clerk of this court for fees, costs, and ex-
penses of the said clerk and of the said
commissioner as they may, from time to
time, be requested by said clerk.
252 U. S«
• MEMORANDA.
OP
OASES DISPOSED OF WITHOUT OPINIONS.
Prudential Insurance Company op
America, Plaintiff in Error, v. Robert
T. Cheek. [No. 418.]
Error to state court — ^final judgment.
In error to the Supreme Court of the
State of Missouri to review a judgment
transferring to the St. Louis Court of Ap-
peals a case in which the Supreme Court
had reviewed the judgment of the Circuit
Court of the City of St. Louis, sustaining
demurrers to the petition.
See same case below, — Mo. — , 209 S.
W. 928.
Messrs. Samuel W. Fordyce, Jr., and
Thomas W. White for plaintiff in error.
Mr. Frederick H. Bacon for defendant
in error.
March 8, 1920. Per €uriam: Dis-
missed for want of jurisdiction upon the
autliority of Schlosser v. Hemphill, 198
U. S. 173, 175, 49 L. ed. 1000, 1002, 25
Sup. Ct. Rep. 654; Louisiana Nav. Co.
v. Oyster Commission, 226 U. S. 99, 101,
57 L. ed. 138, 140, 33 Sup. Ct, Rep. 78;
Grays Harbor Logging Co. v. Coats-
Fordney Logging Co. (Washington ex
rel. Grays Harbor Logging Co. v. Su-
perior Ct.) 243 U. S. 251, 255, 61 L.
ed. 702, 705, 37 Sup. Ct. Rep. 295;
Bruce r. Tobin, 245 U. S. 18, 19, 62 L.
ed. 123, 124, 38 Sup. Ct. Rep. 7.
Gulp & Ship Islanq Railroad Company
et al., Plaintiffs in Error, v. Carl
Boone et al., etc. [No. 669.]
Error to state court — Federal question
— how presented.
In Error to the Supreme Court of the
State of Mississippi to review a judg-
ment which affirmed a judgment of the
Circuit Court of Covington County, in
that state, in favor of plaintiffs in an
action for death.
See same case below, 120 Miss. 632, 82
So. 335.
04 L. ed.
Messrs. B. E. Eaton and T. J. Wills
for plaintiffis in error.
Mr. George Anderson for defendants
in error.
March 8, 1920. Per Curiam: Dis-
missed lor want of jurisdiction upon the
authority of McCorquodale v. Texas, 211
U. S. 432, 53 L. ed. 269, 29 Sup. Ct.
Rep. 146; Consolidated Tump. Co. v.
Norfolk & 0. V. R. Co. 228 U. S. 326,
334, 57 L. ed. 857, 862, 33 Sup. Ct.
Rep. 510; St Louis ft S. P. R. Co. v.
Shepherd, 240 U. S. 241, 60 L. ed. 624, 36
Sup. Ct. Rep. 274; Bilby v. Stewart, 246
U. S, 255, 257, 62 L. ed. 701, 702, 38
Sup. Ct Rep. 264.
Cheatham Elbctbio Switching Device
Company, Appellant, v. Transit De-
velopment Company et al. [No. 692.]
Appeal — ^from district court — ^Federal
question.
[568] Appeal from the District Court
of the United States for the Eastern Dis-
trict of New York to review a decree en-
tered pursuant to the mandate of the Cir-
cuit Court of Appeals for the Second
Circuit, which, modifying a decree of the
District Court, directed the entry of a
decree for nominal damages in a patent
infringement suit.
See same case below, in circuit court
of appeals, 126 C. C. A. 297, 209 Fed.
229.
Mr. Albert M. Austin for appellant.
Mr. Thomas J. Johnston for appellees.
March 8, 1920. Fer Curiam: Dis-
missed for want of jurisdiction upon the
authority of Aspen Min. ft Smelting Co.
v- Billings, 150 U. S. 31, 37, 37 L. ed.
986, 988, 14 Sup. Ct. Rep. 4; Brown v.
Alton Water Co. 222 U. S. 325, 332-^34.
56 L. ed. 221, 224, 225, 32 Sup. Ct. Rep.
156; Metropolitan Water Co. v. Kaw
Valley Drainage Dist. 223 U. S. 619, 522,
71«
568, 569
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm»
56 L. ed. 533, 534, 32 Sup. Ct. Rep.
246; Shapiro v. United States, 235 U.
S. 412, 416, 59 L. ed. 291, 293, 35 Sup.
Ct. Rep. 122; and see Red Jacket Jr.,
Coal Co. V. United Thacker Coal Co. 248
U. S. 531, 63 L. ed. 405, 39 Sup. Ct.
Rep. 5.
Union Trust Company v. Woodward &
LOTHROP. [No. — Original.]
Petition for an allowance of an appeal
herein.
Mr. William G. Johnson for the pe-
tition.
March 8, 1920. Denied.
Ex parte: In the Matter ov James
F. Bishop, Administrator of th« Estate
of Herman A. Ristow, Deceased, Pe-
titioner. [No. — , Original.]
Motion for leave to file a petition for
a 'Writ of Prohibition herein.
Mr. Harry W. Standidge for petition-
er.
No appearance for respondent.
March 8, 1920. Denied.
John M. Tananevicz, Plaintiff in Error,
V. People of thb State of Illinois.
[No. 312.]
Error to state conrt — ^Federal question —
error or certiorari.
In Error to the Supreme Court of the
State of Illinois to review a judgment
which affirmed a judgment of the Appel-
late Court of that state, affirming a con-
viction of a* banker, had in the Criminal
Court of Cook County, for receiving a
deposit while knowing himself to be in-
solvent.
See same case below, 285 111. 376, 120
N. E. 766.
Mr. Emory J. Smith for plaintiff in
error.
Messrs. Edward J. Brundage, Edward
C. Fitch, and A. D. Rodenberg for de-
fendant in error.
March 15, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon tiie
authority of
(1) Consolidated Tump. Co. v. Nor-
folk & 0. V. B. Co. 228 U. S. 326, 334,
57 L. ed. 857, 862, 33 Sup. Ct. Rep. 510;
St. Louis & S. F, R. Co. v. Shepherd,
240 [569] U. S. 240, 241, 60 L. ed. 022,
624, 36 Sup. Ct. Rep. 274 ; Bilby v. Stew-
art, 246 U. S. 255, 257, 62 L. ed. 701,
702, 38 Sup. Ct. R«p. 264.
720
(2) Brolan v. United States, 236 U. S.
216, 218, 59 L. ed. 544, 547, 35 Sup.
Ct. Rep. 285; United Surety Co. v. Amer-
ican Fruit Product Co. 238 U. S. 140,
142, 59 L. ed. 1238, 1239, 35 Sup. Ct.
Rep. 828; Sugarman x. United States,
249 U. S. 182, 184, 63 L. ed. 550, 551,
39 Sup. Ct. Rep. 191.
(3) § 237 of the Judicial Code, as
amended by the Act of September 6,
1916 (39 Stat, at L. 726, chap. 448, Comp.
Stat. § 1214, Fed. Stat. Anno. Supp.
1918, p. 411), § 2.
Virginia & West Virginu Coal Com-
pany, Plaintiff in Error, v. Green
Charles. [No. 262.]
Error to circuit court of appeals — Federal
question.
In Error to the United States Circuit
Court of Appeals for the Fourth Cir-
cuit to review a judgment which af&rmed
a judgment of the District Court for the
Western District of Virginia, in favor of
defendant in an action in ejectment.
See same case below, 165 C. C. A. 599,
254 Fed. 379.
Messrs. S. B. Avis and A. M. Belcher
for plaintiff in error.
Mr. William H. Werth for defendant
in error.
March 15, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon
the authority of
(1) § 128 of the Judicial Code [36
Stat, at L. 1133, chap. 231, Comp. Stat.
§ 1120, 5 Fed. Stat. Anno. 2d ed. p. 607] j
Shulthis V. McDougal, 225 U. S. 561,
568, 56 L. ed. 1205, 1210, 32 Sup. Ct.
Rep. 704; Hull v. Burr, 234 U. S. 712,
720, 58 L. ed. 1557, 1561, 34 Sup. q.
Rep. 892; St. Anthony*s Church v. Penn-
sylvania R. Co. 237 U. S. 575, 577, 59
L. ed. 1119, 1122, 35 Sup. Ct. Rep. 729 ;
Delaware, L. & W. R. Co. v. Yurkonis,
238 U. S. 439, 444, 59 L. ed. 1397, 1400,
35 Sup. Ct. Rep. 902.
(2) Spencer v. Duplan Silk Co. 191 U.
S. 526, 530, 48 L. ed. 287, 290, 24 Sup.
Ct. Rep. 174; Devine v. Los Angeled, 202
U. S. 313, 333, 50 L. ed. 1046, 1053, 26
Sup. Ct. Rep. 652; Shulthis v. McDougal,
225 U. S. 561, 569, 56 L. ed. 1205, 1210.
32 Sup. Ct. Rep. 704.
C. C. Tapt Company, Plaintiff in Error.
V. State of Iowa. [No. 230.]
Error to state court — Federal question.
* In Error to the Supreme Court of th^
262 V. 8.
1019.
MEMORANDA CASES.
5G9-571
State of Iowa to review a judgment which
affirmed a judgment of the District Court
of Polk County, in that state, for the con-
demnation and seizure of cigarettes.
See same case below, 183 Iowa, 548,
9 A.L.R. 390, 167 N. W. 467.
Messrs. Fred P. Carr and R. M. Haines
for plaintiff in error. ,
Messrs. [570] H. M. Havner and
Freeman C. Davidson for defendant in
error.
March 15, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
autliority of the Act of September 6,
1916 (39 Stat, at L. 726, 727, chap. 448,
Comp. Stat. §§ 1207, 1228a, Fed. Stat.
Anno. Supp. 1918, pp. 411, 420), § 6.
sidered in connection with the contro-
versies now under advisement resulting
from the original bill filed by the state of
Rhode Island, and other causes involving
kindred questions which are now also
under submission.
James P. Parsons, PJaintiff in Error, v.
William H. Moor et al.* [No. 236.]
Error to state court — ^Federal question —
error or certiorari.
In Error t9 the Supreme Court of the
State of Ohio to review a judgment which
reversed a judgment of the Court of Com-
mon Pleas for Lucas County in a mort-
gage foreclosure actioni
See same case below, 98 Ohio St. 233,
120 N. E. 305.
Mr. Charles F. Carusi for plaintifE in
error.
Mr. Herbert P. Whitney for defendants
in error.
March 15, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code,
as amended by the Act of September 6,
1916 (39 Stat, at L. 726, chap. 448, Comp.
Stat. § 1214, Fed. Stat. Anno. Supp.
1918, p. 411), § 2.
Union Pacific Coal Company, Petitioner,
V. Mare A. Skinner, Collector of In-
ternal Revenue. [No. 111.]
Internal revenue — ^income tax — dividends
— accumulated surplus.
On Writ of Certiorari to the United
States Circuit Court of Appeals for the
Eighth Circuit to review a judgment
which, reversing a judgment of the Dis-
trict Court for the District of Colorado,
ordered the dismissal of the complaint in
a suit to recover back an income tax paid
under protest. ,
See same case below, 161 C. C. A. 204,
249 Fed. 152.
Mr. Henry W. Clark for petitioner.
Solicitor General King and Mr. A. F.
Myers for respondent.
March 22, 1920. [571] Per Curiam:
Affirmed with costs upon the authority of
Lynch V. Hornby, 247 U. S. 339, 62 L.
ed. 1149, 38 Sup. Ct. Rep. 543, and cause
remanded to the District Court of the
United States for the District of Colorado.
State op New Jersey, Complainant, v.
A Mitchell Palmer, Attorney Gen-
eral, et al. [No. — , Original.]
On motion for leave to file original bill.
March 15, 1920. Order. Application
for leave to file bill granted and process
ordered; but should the Attorney General
be advised to move to dismiss, a motion
to advance the hearing on the motion to
dismiss to the earliest practicable day will
be entertained, in order that the issues
arising from such motion may be con-
■^^^^ — ^^— — .— I III
1 Death of Fred 0. Peak, one of tl^e de-
fendants in error herein, suggested, and
appearance of Bell S. Peak, mdivldually
and as executrix under the last will and
testament of Fred O. Peak, deceased, as a
party defendant in error herein, filed and
entered March 12, 1020, on motion of coun-
sel for the defendants in error.
64 li. ed.
McCat Engineering Company, Appel-
lant, V. United States. [No. 227.]
United States — contracts — construction —
extra costs — delays.
Appeal from the Court of Claims to
review the dismissal of a claim against the
United States growing out of a contract
for a public work.
See same case below, 53 Gt. CI. 642.
Messrs. George A. King and George R.
Shields for appellant.
Assistant Attorney General Davis and
Mr. Harvey D. Jacob for appellee.
March 22, 1920. Per Curiam: Af-
firmed by an equally divided court.
Mr. Justice McReynolds took no part
hi the decision of this case.
Kansas City Bolt & Nut Company,
Plaintiff in Error, v^ Kansas Cfty
Light & Power Company. [No. 241.^
Constitutional law — impairing contract
obligations — due process of law.
In Error to the Supreme Court of the
State of Missouri to review a decree which
affirmed a decree of the Circuit Court of
Jackson County, in that state, refusing
to enjoin a public service corporation
46 721
'
571-573
SLPK£.\1E COURT OF THE UNITED STATES.
Oct. Tek^,
from charging increased rates as fixed by
the state Public Service Commission.
See same case bdow, 275 Mo. 529, 204
S. W. 1074.
Mr. Rees Turpin for plaintiff in error.
Mr. John H. Lucas for defendant in
error.
March 22, 1920. Per Curiam: Af-
firmed upon the authority of Union Dry
Goods Co. V. Georgia Pub. Service Corp.
248 U. S. 372, 63 L. ed. 309, 9 A.L.R.
1120, P.U.R.1919C, 60, 39 Sup. Ct. Rep.
117.
New Orleans Land Company, Plaintiff
in Error, v. Willis J. Roussell, Ad-
ministrator, etc., et al. [No. 257.]
Error to state court — Federal question —
error or certiorari.
In Error to the Supreme Court of the
. State of Louisiana to review a judgment
which affirmed a judgment of the Civil
District Court of the Parish of Orleans,
in that state, in favor of plaintiffs in a
petitory action.
See same case below, 143 La. 1058, 79
So. 860.
Mr. Charles Louque for plaintiff in
error.
Mr. William Winans Wall for defend-
ants in error.
March 22, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code,
as amended by the Act of [572] Sep-
tember 6, 1916 (39 Stat, at L. 726, chap.
448, Comp. Stat. § 1214, Fed. Stat. Anno.
Supp. 1918, p. 411), § 2.
Edward C. Mason, as He Is Trustee in
Bankruptcy, etc.. Plaintiff in Error, v.
Thomas J. Shannon et al. [No. 261.]
Error to state court — Federal question —
error or certiorari.
In Error to the Superior Court of the
State of Massachusetts to review a judg-
ment affirmed by the Supreme Judicial
Court of that state, allowing the account
of a receiver, and denying the petition of
a trustee in bankruptcy to require the
receiver to turn over the assets and ac-
count for the same.
See same case below, in supreme ju-
dicial court, 230 Mass. 224, 119 N. E.
768.
Mr. Harold Williams, Jr., for plaintiff
in error.
Mr. John T, Hughes for defendants in
error.
March 22, 1920. Per Curiam: Dis-
722
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code,
as amended by the Act of Septanber 6,
1916 (39 Stat, at L. 726, chap. 448,
Comp. Stat. § 1214, Fed. Stat. Anno.
Supp. 1918, p. 411), § 2.
United States of America et al.. Appel-
lants, v. Alaska Steamship Compakt
et al. [No. 541.]
March 22, 1920. Counsel requested to
file briefs concerning the effect upon the
issues here involved resulting from the
act of Congress terminating the Federal
control of railroads, and amending the
Act to Regulate Conmierce in certain par-
ticulars, approved February 28, 1920 ( —
Stat, at L. — f chap. — ).
Queens Land & Title Company et aL,
Appellants, v. Kings County Trust
Company et al. [No. 297.]
Appeal — from district court — ^frivolous
Federal question.
Appeal from the District Court of the
United States for the Eastern District
[578] of New York to review a decree
dismissing the bill in a suit to set aside
a foreclosure decree made by a state eoort.
See same case below, 255 Fed. 222.
Mr. William G. Cooke for appellants.
Mr. Gleorge £. Brower for appellees.
April 19, 1920. Per Curiam : Affirmed
with costs upon the authority of Farrell v.
O'Brien (O'CaUaghan v. O'Brien) 199 U.
S. 89, 100, 50 L. ed. 101, 107, 25 Sup. Ct.
Rep. 727; Goodrich v. Ferris, 214 U. S.
71, 79, 53 L. ed. 914, 917, 29 Sup. Ct Rep.
580; Brolan v. United States, 236 U. 8.
216, 218, 59 L. ed. 544, 547, 35 Sup. Ct.
Rep. 285; Sugarman v. United States,
249 U. S. 182, 184, 63 L. ed. 550, 551, 39
Sup. Ct. Rep. 191; and see Blumenstock
Bros. Advertising Agency v. Curtis Pub.
Co. this day decided, 252 U. S. 436, ante,
649, 40 Sup. Ct. Rep. 385.
Maby Willek, a Creditor, etc.. Appel-
lant, v. Dawson E. Bradley, Trustee,
etc. [No. 266.]
Appeal — from district court — ^frivokms
Federal question.
Appeal ft*om the District Court of the
United States for the Southern District
of Ohio to review a decree allowing a
claim against a bankrupt merely as a gen-
eral claim.
Mr. William W. Synunes for appelant.
259 r. s.
lf«19.
MEMORANDA CASES.
573-575
Mr. Paul V. Connollv for appellee.
April 19, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Farrell v. O'Brien ((VCal-
laghan r. O'Brien) 199 U. S. 89, 100, 60
L. ed. 101, 107, 25 Sup. Ct. Rep. 727;
Empire State-Idaho Min. A Developing
Co, V. Hanley, 205 U. S. 225, 232, 51 L.
ed. 779, 782, 27 Sup. Ct. Rep. 476; Good-
rich V. Ferris, 214 U. S. 71, 79, 53 L. ed.
914, 917, 29 Sup. Ct. Rep. 580 ; Brolan v.
United States, 236 U. S. 216, 218, 59 L. ed.
544, 547, 35 Sup. Ct. Rep. 285; Sugar-
man V. United States, 249 U. S. 182, 184,
63 L. ed. 550, 551, 39 Sup. Ct. Rep. 191.
Metropolitan West Side ELEVATia)
Railway Company et al., Plaintiffs in
Error, v. Maclay Hoynb, State's At-
tom^^ etc., et al. [No. 282] ; ai;d
Metropolitan West Side Elevated
Railway Company et al.. Plaintiffs in
Error, v. Saottary District of Chi-
cago et al. [No. 283.]
Error to state court — ^Federal question —
error or certiorari.
In Error to the Supren^ Court of the
State of Illinois to review a decree which
reversed a decree of the Circuit Court of
Cook County, in that state, dismissing a
suit to compel the removal or alteration of
a railway bridge as an unreasonable ob-
struction to navigation.
See same case below, in No. 282, 285
HI. 246, 120 N. E. 748; in No. 283, 285
III. 342, 120 N. E. 756.
Messrs. Frank J. Loesch and T. J. Sco-
field for plaintiffs in error.
Messrs. Edmund D. Adcock and G.
Arch Williams for defendants in error.
April 19, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
[574] authority of § 237 of the Judicial
Code (36 Stat, at L. 1156, chap. 231, 5
Fed. Stat. Anno. 2d ed. p. 723), as amend-
ed by the Aet of September 6, 1916 (39
Stat, at L. 726, chap. 448, Comp. Stat. §
1214, Fed. Stat. Anno. Supp. 1918, p.
411), § 2.
E. W. Blanoett, Plaintiff in Error, v.
State of New Mexico. [No. 295.]
Error to state court — Federal question —
error or certiorari.
In Error to the Supreme Court of the
State of New Mexico to review a judg-
ment which affirmed a conviction of mur-
der had in the District Court of Santa
Fe County, in that state.
•4 li. ed.
See same case below, 24 N. M. 433, 174
Pac. 207.
Mr. A. B. Renehan for plaintiff in
error.
Mr. Harry S. Bowman for defendant in
error.
April 19, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authoritv of § 237 of the Judicial Code
(36 Stat, at L. 1156, chap. 231, 5 Fed.
Stat. Anno. 2d ed. p. 728), as amended
bv the Aet of September 6, 1916 (39 Stat,
at L. 726, chap. 448, Comp. Stat. § 1214,
Fed. Stat. Anno. Supp. 1918, p. 411), § 2.
Chicago & Northwestern Railway
Company, Plaintiff in Error, v. Her-
man Van de Zande. [No. 423.]
Error to state court — ^Federal question —
error or certiorari.
In Error to the Supreme Court of the
State of Wisconsin to review a judgment
which affirmed a judgment of the Mu-
nicipal Court of Brown County, in that
state, in favor of plaintiff in a personal-
injury action.
See same ease below, 168 Wis. 628, 170
N. W. 259.
Mr. R. N. Van Doren for plaintiff in
error.
Mr. Robert A. Kaftan for defendant in
error.
April 19, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code
(36 Stat, at L. 1156, chap. 231, 5 Fed.
Stat. Anno. 2d ed. p. 723), as amended by
the Act of September 6, 1916 (39 Stat, at
L. 726, chap. 448, Comp. Stat. § 1214,
Fed. Stat. Anno. Supp. 1918, p. 411), § 2.
United States, Appellant, v. Wayne
County, Kentucky. [No. 233.]
Eminent domain — taking — compensation.
Appeal from the Court of Claims to
review an award of compensation for the
taking by the United States of a' public
road.
See same case below, 53 Ct. CI. 417.
Assistant Attorney General Davis for
appellant.
Mr. Jackson H. Ralston for appellee.
[575] April 19, 1920. Per Curiam:
Affirmed upon the authoritv of
(1) United States v. Cress, 243 U. 8.
316, 329, 61 L. ed. 746, 753, 37 Sup. Ct.
Rep. 380; United States v. Welch, 217 U. .
S. 333, 339, 54 L. ed. 787, 789, 28
L.R:A.(N.S.) 385, 30 Sup. Ct. Rep. 527.
19 Ann. Cas. 680; United States v. Griz-
723
575-577
SrPREMK COURT OF THE UNITED STATES.
Oct. Tebm,
zard, 219 U. S. 180, 185, 55 L. ed. 165,
166, 31 L.'R.A.(N.S.) 1135, 31 Sup. Ct.
Kep. 162.
(2) St. Louis V. Western U. Teleg. Co.
148 U. S. 92, 101, 37 L. ed. 380, 384, 13
Sup. Ct. Rep. 485; Western U. Teleg. Co.
V. Richmond, 224 U. S. 160, 169, 56 L. ed.
710, 715, 32 Sup. Ct. Rep. 449 j and see
Stockton V. Baltimore & N. Y. R. Co.* 1
Inters. Com. Rep. 411, 32 Fed. 9.
(3) Farrell v. O'Brien (O'CaUaghan v.
O'Brien) 199 U. S. 89, 100, 50 L. ed. 101,
107, 25 Sup. Ct. Rep. 727; Goodrich v.
Ferris, 214 U. 8. 71, 79, 53 L. ed. 914, 917,
29 Sup. Ct. Rep. 580; Brolan v. United
States, 236 U. S. 216, 218, 59 L. ed. 544,
547, 36 Sup. Ct. Rep. 285; Sugarman v.
United States, 249 U. S. 182, 184, 63 L.
ed. 650, 561, 39 Sup. Ct. Rep. 191.
B. T. Baokus, Plaintiff in EiTor, v, Nor-
VOLK Southern Railroad Company.
[No. 268.]
Error to state court — ^Federal question —
error or certiorari.
In Error to the Supreme Court of Ap-
peals of the State of Virginia to review
a judgment which af&rmed a judgment
of the Circuit Court of ike City of Nor-
folk, in that state, for the recovery of
damages from a carrier for failing to
divert a shipment
Mr. J. Edward Cole for plaintiff in
error.
Mr. James G. Martin for defendant in
error.
April 19, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code
(36 Stat at L. 1156, chap. 231, 5 Fed.
Stat. Anno. 2d ed. p. 723), as amended hy
the Act of September 6, 1916 (39 Stat at
L. 726, chap. 448, Comp. Stat. § 1214,
Fed. Stat Anno. Supp. 1918, p. 411)| § 2.
F. R. Glascock et al., Plaintiffs in Error,
v. EiiLis MoDaniel et al., Minors, by J.
O. Cravens, Guardian. [No. 287.]
Error to state court — Federal question —
error or certiorari.
In Error to the Supreme Court of the
State of Oklahoma to review a decree
which affirmed a decree of the Superior
Court of Musko^^ee County, in that state,
in favor of plaintiffs in a suit to quiet
title.
See same case below, — Okla. — , 176
' Pac. 737. {
Messrs. William B. Moore and George]
S. Ramsey for plaintiffs in error^
724
Messrs. Gh*ant Foreman and James D.
Simms for defendants in error.
April 19, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
autlM)rity of § 237 of the Judicial Code
(36 Stat at L. 1156, chap. 231, 5 Fed.
Stat. Anno. 2d ed. p. 723), as amended by
the Act of [576] September 6, 1916 (39
Stat, at L. 726, chap. 448, Comp. Stat. §
1214, Fed. Stat. Anno. Supp. 1918, p.
411), § 2.
John P. Galbraith, Petitioner, v. Johk
Vallely, Trustee, etc. [No. 697.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Eighth Circuit.
See same case below, 261 Fed. 670.
Mr. Fred B. Bodge for petitioner.
* No appearance for respondent.
March 8, 1920. Granted.
Western Union Telegraph Company,
Petitioner, v. Addis Speight. [No.
712.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of North
Carolina.
See same case below, 178' N. C. 146,
100 S. E. 351.
Messrs. Francis Ra3rmond Stark,
Charles W. Tillett, and Thomas C.
Guthrie for petitioner.
Mr. Murray Allen for respondent.
March 8, 1920. Granted.
Henry Kriohman, Petitioner, v. United
States of America. [No. 746.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same case below, 263 Fed. 538.
Mr. Harrison P. Lindabury for peti-
tioner.
No appearance for respondent
March 8, 1920. Granted.
[577] United States, Petitioner, t.
National Surety Company. [Nos.
779 and 780.]
Petition for Writs of Certiorari to the
United States Circuit Court of Appeals
for the Eighth Circuit
See same case below, 262 Fed. 62.
Solicitor General King and Assistant
Attorney G^eral Spellaoy for petitioner.
Messrs. S. W. Fordyce and Thomas W.
White for respondent.
April 19, 1920. Granted.
252 V. S.
1910.
MOIOKANDA CASES.
677-579
H. Snowdbn Marshall, as Receiver^ etc.,
Petitioner, v. People op the State op
New York. [No. 836.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
Messrs. A. S. Gilbert and William J.
Hughes for petitioner.
Mr. Cortlandt A. Johnson for respond-
ent.
April 19, 1920. Granted.
Chicago, Rock Island, & Pacific Rail-
way Company, Petitioner, v. 0. C.
SwAiM. [No. 678.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Iowa.
See same case below, »— Iowa, — ^ 170
N. W. 296; on rehearing, — Iowa, — ,
174 N. W. 384.
Messrs. Joseph G. Gamble, Thomas P.
Littlepage, and Sidney F. Taliaferro for
petitioner.
Harriet B. Evans for respondent.
March 8, 1920. Denied.
J. B. Pollard, Petitioner, v. United
States op America. [No. 682.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 261 Fed. 336.
Mr. William H. Atwell for petitioner*
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respond-
ent.
March 8, 1920. Denied.
Ada Griffith, Petitioner, v. United
States of America. [No. 686.]
Petition for a Writ of Certiorari to the
United States Circuit Court [578] of
Appeals for the Seventh Circuit.
See same case below, 261 Fed. 159.
Mr. Benjamin C. Bachraoh for i>eti-
tionar.
AjBsistant Attorney General Stewart-
and Mr. Harry S. Bidgely for respond-
€»t.
Maidi 8, 1920. Denied.
•4 li. ed.
Frederick M. Kilmer, Trustee for Alioe
F. Kilmer, Petitioner, v. Charles H,
Keith, Trustee, etc. [No. 701.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the First Circuit.
See same case below, 9 A.L.B. 1287,
261 Fed. 733.
Mr. Elbridge B. Anderson for petition-
er.
Mr. Lee M. Friedman for respondent.
March 8, 1920. Denied.
Rome Lane, on Behalf of Himself and
Others, Petitioner, v. Equitable Trust
Company of Nbw Tobk. [No. 703.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Eighth Circuit.
See same case below, 262 Fed. 918.
Messrs. Wells H. Blodgett and Clifford
B. Allen for petitioner.
Messrs. Q[, W. Murray and Laurence
Greer for respondent.
March 8, 1920. Denied.
Maria Eloisa Bocha, Petitioner, v.
Emilu Tuason t Patino et al. [No.
704.]
Petition for a Writ of Certiorari to the
Supreme Court of the Philippine Islands.
Messrs. W. A. Kinoaid, Alexander
Britton, and Evans Browne for petition-
er.
No appearance for respondents.
March 8, 1920. Denied.
Hudson Navigation Company, Petition-
er, V. J. Aron & Company (Inc.), et al.
[No. 711.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for ttie Second Circuit.
Sed same case below, 262 Fed. 1021.
Mr. Stuart G. [579] Gibboney for pe-
titioner.
Mr. Charles R. Hickox for respondents.
March 8, 1920. Denied.
Camp Bird, Limited, Petitioner, v. Frank
W. HowBERT, as Collector of Internal
Revenue, etc. [No. 718.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Eighth Girenit.
See saine case below, 262 Fed. 114.
Mr. William V. Hodgee for petitioner.
Solicitor General King and Mr. Wil-
liam C. Herron for respondent.
March 8, 1920. Denied.
725
57U-581
^^L'PKK.Mi:: tOCKX OF THE UNITED STATES.
Oct. iULU,
Phillips Company, Petitioner, v. Byron
P. EvERiTT, Trustee, etc. [No. 721.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Sixth Circuit.
See same case helow, 262 Fed. 341,
Mr. William L. Carpenter for petition-
er.
Mr. Clapenee A. Lig^htner for respond-
ent.
March 8, 1920. Denied.
Alfred R. Swann, Petitioner, v. W. W.
Austell, Executor, etc., et al. [No.
722.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit.
See same case below, 262 Fed. 465.
Messrs. Daniel W. Rountree and Clif-
ford L. Anderson for petitioner.
Messrs. Jack J. Spalding and Charles
T. Hoskins for respondents.
March 8, 1920. Denied.
William: F. Hanrahan, Petitioner, v.
Pacific Transport Company (Ltd.).
[No. 732.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same case below, 262 Fed. 951.
Mr. Silas B. Axtell for petitioner.
Messrs. Robert 8. Ei'skine and L. De
Grove Potter for respondent.
Match 8, 1920. Denied.
J. W. Atkins, Petitioner, v. L. G. Gar-
rett. [No. 749.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Cireuit.
See same case below, 261 Fed. 587.
Messrs. W. B. Speneer, Charles Payne
Fenner, and Walter S. Penfield for peti-
tioner.
No appearance for respondent.
March 8, 1920. Denied.
Maryanne Shipping Company, Claim-
ant of Steamship Maryanne, Petitioner,
V. Rakbebg Iron Works. [No. 750.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same ease below, 262 Fed. 129.
Messrs. Horace L. Cheyney and Ralph
J. M. BuUowa for petitioner.
Mr. Francis Martin for respondent.
March 8, 1920. Penied.
Cricket Steamship Company, Petition-
er, V. John P. Parry. [No. 754.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same case below, 263 Fed. 523.
Mr. Cletus Keating for petitioner.
Mr. Silas B. Axtell for respondent.
March 8, 1920. Denied.
[580] E. B. Capps, Administrator, etc.,
Petitioner, v. Atlantic Coast Line
Railroad Company. [No. 748.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of North
Carolina.
See same case below, 178 N. C. 558,
101 S. E. 216.
Mr. James S. Mannin^iC for petitioner.
Messrs. F. D. McKenney, J. Spalding
Flannery, and P. A. Willeox for respond-
ent.
March 8, 1920. Denied.
72«
Walter P. Britton, Trustee, etc., Pe-
titioner, V. Union Investment Com-
pany. [No. 709.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for [581] the Eighth Circuit.
See same case Mow, 262 Fed. 111.
Mr. Harrison L. Schmitt for petitioner.
Messrs. William A. Lancaster and
David F. Simpson for respondent.
March 15, 1920. Denied.
Walter M. Reeder et al.. Petitioners, v.
United States op America. [No.
725.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Eighth Circuit.
See same case below, 262 Fed. 36.
Mr. John W. Scothorn for petitioners.
Assistant Attorney General Stewart
and Mr. William C. Herron for respond-
ent.
March 15, 1920. Denied. •
252 1?. 8.
11)19.
MEMORANDA CASES.
581-383
Atciiafalaya Land Company, Petitioner,
V. Paul Capdevielle, Auditor, et al.
[No. 739.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Louisiana.
See same case below, 146 La. 109, 83
So. 426.
Mr. (George Janvier for petitioner.
No appearance for respondents.
March 15, 1920. Denied.
E. J. Fbazieb, Petitioner, v. State of
Oregon. [No. 716.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Or^on.
See same case below, 94 Or. 90, 180
Pac. 520, 184 Pae. 848.
Mr. Enos S. Stockbridge for petitioner.
Mr. George M. Brown for respondent.
March 22, 1920. Denied.
Alfred J. Ksppelhann et al.. Executors
and Trustees, etc., Petitioners, v. A.
Mitchell Palmer, as Alien Property
Custodian. [No. 723.]
Petition for a Writ of Certiorari to the
Court of Chancery of the State of New
Jersey.
See same case below, in court of errors
and appeals, — N. J. — , 108 Atl. 432.
Mr. Edward M. Colie for petitioners.
Assistant Attorney General Spellacy
for respondent.
March 22, 1920. Denied.
[582] Carl Goepel et al.. Partners, etc.,
Petitioners, v. A. Mitc^hbll Palmer,
as Alien Property Custodian. [No.
724]
Petition for a Writ of Certiorari to the
Court of Chancery of the State of New
Jersey.
See same case below, in eourt of errors
and appeals, — N. J. — , 108 Atl. 432.
Mr. Ruby R. Vale for petitioners.
Assistant Attorney General Spellacy
for respondent.
March 22, 1920. Denied.
Amelican Ore Reclamation Company,
Petitioner, v. Dwight & Lloyd Sin-
tering Company, Inc. [No. 747.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same case below, 263 Fed. 315.
Mr. Henry B. Gayley for petitioner.
Mr. Otto C. Wienim for respondent.
March 22, 1920. Denied.
•4 Jj. ed.
Louis De F. Munger, Petitioner, v. Fire-
stone Tire & Rubber Company [No.
735]; and Louis De F. Munger, Pe-
titioner, V. B. F. Goodrich Company
[No. 736].
Petition for Writs of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same case below, 261 Fed. 921.
^ Mr. William A. Redding for petitioner.
Messrs. Charles Neave, William G. Mc-
Knight, and Edward Rector for respond-
ents.
March 22, 1920. Denied.
Empire Fuel Compaiu^, Petitioner, v. J.
E. Lyons. [No. 75y.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Sixth Circuit.
See same case below, 262 Fed. 465.
Messrs. Arthur S. Dayton, Melvin G.
Sperry, and Frank E. Wood for peti-
tioner.
Mr. Murray Seasongood for respond*
ent.
March 22, 1920. Denied.
Carl H. Richardson, as Trustee, etc.,
Petitioner, v. Germania Bank op the
City op New York. [No. 770.]
[583] Petition for a Writ of Certiorari
to the United States Circuit Court of
Appeals for the Second Circuit.
See same case below, 263 Fed. 320.
Mr. Carroll G. Walter for petitioner.
Mr. Bernard Hershkopf for respond-
ent.
March 22, 1920. Denied.
S. J. Lindsay, Petitioner, v. United
States op America. [No. 783.}
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fourth Circuit.
See same case below, 264 Fed. 94.
Mr. A. Johnston Ackiss for petitioner.
Assistant Attorney General Frierson
for respondent.
March 22, 1920. Denied.
727
583-58.5
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
Atchison, Topeka, & Santa Fe Rail-
way Company, Petitioner, v. Indus-
trial Commission of thb State op
Illinois (Maria Kiley, Administra-
trix, etc.). [No. 784.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Illinois.
See same case below, 290 HI. 590, 125
N. E. 380.
Mr. Gardiner Lathrop for petitionei^
Mr. Leo L. Donohoe for respondent.
March 22, 1920. Denied.
Pennsylvania Railroad Company, Pe-
I titioner, v. Naam Looze Yennoot
' SoHAP, etc. [No. 761.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fourth Circuit.
See same case below, 264 Fed. 102.
Messrs. Frederic D. McKenney and
Shirley Carter for petitioner.
Messrs. Charles R. Hickox and John M.
Woolsey for respondent.
March 29, 1920. Denied.
Houston. & Texas Central Railroad
Company, Petitioner, v. City op Ennis
etal. [No. 479J
Petition for a Writ of Certiorari to the
Court of Civil Appeals for the Fifth
Supreme Judicial District of the State
of Texas.
See same case below, — Tex. Civ. App.
— , 201 S. W. 256.
Messrs. H. M. Garwood, J. L. Gammon,
and Jesse Andrews, for petitioner.
No brief was filed for respondents.
•March 29, 1920. Denied.
Antonio Cisneros Chapa, Petitioner, v.
United States op America. [No.
745.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit.
See same case below, 261 Fed. 775.
Mr. C. M. Chambers for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respondent.
March 29, 1920. Denied.
[5S4] Central Elevator Company of
Bai/timore City, Petitioner, v. Naam
Looze Venxoot Scha^, etc. [No.
760.]
Petition for a Writ of Certiorari to the
United States Cireuit Court of Appeals
for the Fourth Circuit.
See same case below, 264 Fed. 102.
Messrs. Frederic D. MoKenney and
Shirley Carter for petitioner.
Messrs. Charles R. Hiokox and John M.
Woolsey for respondent.
March 29, 1920. Denied.
728
Cbnibal Elsvatob Company op Bai/ti-
UOBE CvTYf Petitioner, v. Edwin Dta-
SON, Master of the Steamship Welbeck
HaU, etc. [No. 762.]
Petition for a Writ of Certiorari to the
United States Cireuit Court of Appeals
for the Fourth Circuit.
See same case below, 264 Fed. 102.
Messrs. Frederic D. McKenney and
SMrl^ Carter for petitioner.
Mr. James K. Symmers for respondent.
March 29, 1920. Denied.
Pennsylvania Railroad Company, Pe-
titioner, V. Edwin Dyason, Master of
the Steamship Welbeck Hall, etc. [No.
763.]
Petition for a Writ of Certiorari to the
United Statics Circuit Court of Appeals
for the Fourth Circuit.
See same case below, 264 Fed. 102.
Messrs. Frederic D. McKenney and
Shirley Carter for petitioner.
Mr. James K. Symmers for respondent.
March 29, 1920. Denied.
V. F. Miller, Petitioner, v. United
States op America. [No. 766.]
Petition for a Writ of Certiorari to the
United States Circuit Court [585] of
Appeals for the Fifth Circuit.
See same case below, 261 Fed. 914.
Mr. A. M. Chambers for petitioner.
Assistant Attorney General Stewart and
Mr. Harry S. Ridgely for res]iondent.
March 29, 1920. Denied.
252 V. 8.
1919.
MEMORANDA CASES.
585-537
France & Canada Steamship Cobpora-
TiONy Petitioner, v. Konrad Storoabd.
[No. 773.]
Petition for a Writ of Certiorari to
tbe United States Circuit Court of Ap-
peals for the Second Circuit
See same ease below, 263 Fed. 545.
Mr. Bertrand L. Pettigrew for pe-
titioner.
Mr. Silas B. Axtell for respondent.
March 29, 1920. Denied.
Southwestern Gas & Electtrio Com-
pany, Petitioner, v. Citt op Siireve-
PORT. [No. 774.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 261 Fed. 771.
Mr. Max Pam for petitioner.
No appearance for respondent.
March 29, 1920. Denied.
Alec Erickson, Petitioner, v. John A.
RoEBLiNG's Sons Company op New
York. [No. 778.]
Petition for a Wnt of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same case below, 261 Fed. 986.
Mr. Silas B. Azt^ for petitioner.
No brief was filed for respondent.
March 29, 1920. Denied.
Karl SanDqren et al., Petitioners, v.
Ulster Steamship Coh^any (Limited)
Owner and Claimant, etc. [No. 787.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit.
See same case below, 262 Fed. 751.
Mr. William J. Waguespack for peti-
tioners.
No appearance for respondent.
March 29, 1920. Denied.
[586] Benjamin Horowitz et al, Plain-
tiffs in Error, v. United States of
America. [No. 693.]
Petition for a Writ of Certiorari herein.
See same case below, 262 Fed. 48.
Messrs. John J. Fitzgerald and Elijah
N. Zoline for plaintiffs in error.
Assistant Attorney General Stewart for
defendant in error.
April 19, 1920. D«iied.
•4 li. ed.
Barber & Company, Inc., Petitioner, v.
Steamship Knutsford, Limited. [No.
737.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit
See same case below, 261 Fed. 866.
Mr. D. Rpger Englar for petitioner.
Messrs. Charles R. Hickox and L.
De Grove Potter for respondent.
April 19, 1920. Denied.
Arthur Bain, Petitioner, v. United
States op America. [No. 753.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Sixth Circuit.
See same case below, 262 Fed. 664.
Mr. Abram M. Tillman for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respondent.
April 19, 1920. Denied.
Charles L. Baender, Petitioner, v.
United States op America. [No. 758.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Ninth Circuit.
See same case below, 171 C. C. A. 558,
260 Fed. 832.
Mr. George D. Collins for petitioner.
Assistant Attorney General Stewart and
Mr. Harry S. Ridgely for respondent.
April 19, 1920. Denied.
Webb Jay et al., Petitioners, v. Fred-
erick Weinberg et al. [No. 759.]
Petition for a Writ of Certiorari to
[587] the United States Circuit Court
of Appeals for the Seventh Circuit.
See same case below, 262 Fed. 973.
Messrs. Charles S. Burton and George
L. Wilkinson for petitioners. •
Messrs. R. A. Parker and Elliott J.
Stoddard for respondents.
April 19, 1920. Denied.
Jesse C. Washburn et al.. Petitioners, v.
E. N. Gillespie. [No. 769.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Eighth Circuit.
See same case below, 171 C. C. A.
637, 261 Fed. 41.
Messrs. Horace Speed, Henry S. John-
ston, and L. T. Michener for petitioners.
No appearance for respondent.
April 19, 1920. Denied.
729
SUPREME COfKT OF THK LXITED STATES.
Oct. Term,
ItiTBLE L. ROWE, as Trualee, etc., Peti-
tioner, V, James L. Drohen et al. [No.
772.]
■Petition for a Writ of Certiorari to the
L'nited States Circuit Court of Appeals
for the Second Cireuit.
See same case belov, 242 Fed. 15.
Mr. Herman J. Westwood for peti-
Messrs. Orafton L. McGill and Franris
S. Maguire for respondents.
April 19, 1920. Denied.
Shelley B. Hutchinson, Petitioner, v.
William M. Sperby et al. [No. 785.]
Petition for a Writ of Certiorari, to the
United States Circuit Court of Appeals
for the Third Cireuit.
See same caee l>elow, 261 Fed. 133.
Mr. William Mayo Atkinson for peti-
Messrs. W. Benton Crisp and Frederick
Oeller for respondents.
April 19, 1920. Denied.
Christian TjosEvro et al., Petitioners, v.
T. J. DoNOHOB et al. [No. 799.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Ninth Circuit.
Sec same case below, 262 Fed. 911.
Mr. John Ruetgard for petitioners.
Messrs. Edmund Smitli, J. A. Hellen-
iIirI, and Ira D. Orton for respondents.
April 19, 1920. Denied.
[588] New York Central Railroad
Company, Claimant, etc.. Petitioner, V.
.TOHN S. Howell et al. [No. 804.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Second Circuit.
See same ease below, 262 Fed. 110.
Mr. Oscar R. Houston for petitioner.
No appearance for respondents.
April 19, 1920. Denied.
Klizabeth Dkvkv nBEGO, Petitioner, v.
Francis P. Oarvan, Alien Property
Custodian [No. 834]; and A. J.
Kellet, Jr., et al., Trustees, etc, Peti-
tioners, V. Francis P. Garvan, Alien
Property Custodian [No. 835].
Petition for Writs of Certiorari to the
finpremc Court of the State of Pennsvl-
See^tame ci
Atl. 777.
Sir. V
Assi-
for rc:
Api
730
D. H. Gill et al., Plaintiffs in Error, v.
Cmr OP Dallas et al. [No. 225.]
In Error to the Court of Civil Apjieals
for the Fifth Supreme Judicial District
of the State of Texas.
See same case below, — Tex. Civ. App.
— , 209 S. W. 209.
Mr. William H. Clark for plaintiffs in
error.
No appearance for defendants in error,
March 6, 1920. Dismissed with costs,
pursuant to the Tenth Rale.
Olqbb Works, Appellant, v. United
States. [No. 237.]'
Appeal from the Court of Claims.
See same ease below, 53 Ct. CI. 532.
Mr. John S. Blair for appellant.
Solicitor General King and Assistant
Attorney General Davis for appellee.
March 11, 1920. Dismissed pursuant
to the Sixteenth Rule, on motion of
[589] Assistant Attorney General Davia
for the appellee.
Unitm) States op America, Plaintiff in
Error, v. H. L. Sprinkle. [No. 293.]
In Error to the District Court of the
United States for the Southern District
of Florida.
The Attorney General for plaintiff in
No appearance for defendant in error.
March 16, 1920. Dismissed on motion
of counsel for the plaintiff in error.
E. B. Howard, State Auditor of the State
of Oklahoma, Appellant, v. H. V.
Foster et al., etc. [No. 267.]
Appeal from the District Conrt of the
United States for the Weslera District
of Oklahoma.
Messrs. S. P. Freeling and John B.
Harrison for appellant.
No appearance for appdlees.
March 19, 1920. Dismissed with cosls.
on motion of counsel for the appellant.
St. IiOuis, Iron Mountain, & Soltiiekn
Railway Company, Plaintiff in Error,
V. H. T. True, Jr. [No. 284.]
In Error to the Supreme Conrt of the
State of Oklahoma.
Bee same ease below, — OUa. — , 17(1
Pac. 768.
lino.
MEMORAXDA CASES.
689-591
Uniok Pacific Railroad Company et al.,
Plaintiffs in EiTor, v. W. H. Jenkins
et al. [No. 298.]
In Error to the Supreme Court of the
State of Nebraska.
Messrs. Charles H. Sloan [590] and
William E. Flynn for plaintiffs in error.
No appearance for defendants in error.
March 24, 1920. Dismissed with costs,
pursuant to the Tenth Rule.*
National Slrety Company, Appellant,
V. United States of America foe the
USE OF American Sheet Metal Works
et al. [No. 347.]
Appeal from the United States Circuit
Court of Appeals for the Fifth Circuit.
See same case below, 167 C. C. A. 319,
256 Fed. 77.
Mr. William B. Grant for appellant.
No appearance for appellees.
March 29, 1920. Dismissed with costs,
and mandate g^^anted, on motion of coun-
sel for the appellant.
States Circuit Court of Appeals for the
Third Circuit.
Mr. J. Hayden Oliver for petitioners.
Messrs. Simon Lyon and R. B. H. Lyon
for respondent.
[591] April 19, 1920. Dismissed, per
stipnlation.
New York Evening Post Company, Pe-
titioner, V. Jonx Armstrong CHAiiOx-
ER. [No. 796.]
On Petition for Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, 265 Fed. 204.
Mr. William M. Wherry, Jr., for peti-
tioner.
No appearance for respondent.
Aprih 19, 1920. Dismissed on motion
of counsel for the petitioner.
Loris C. Tiffany, Sole Surviving Execu*
tor. etc., Appellant, v. United States.
[No. 209.]
Appeal from the Court of Claims.
See same case below, 53 Ct. CI. 640.
Messrs. Simon Lyon . and R. B. H.
Lyon for appellant.
The Attorney General for appellee.
April 19, 1920. Reversed, upon con-
fession of error, and cause remanded for
further proceedings in conformity with
law, and mandate granted, on motion of
counsel for the appellee.
Southern Cotton Oil Company et al..
Appellants, v. St. Louis, Iron Moun-
tain, & Southern Railway Company.
[No. 502.]
Appeal from the District Court of the
United States for the Eastern District of
Arkansas.
Messrs. W. E. Hemingway, G. B. Rose,
and J. F. Lough borougli for appellants.
No appearance for appellee.
April 19, 1920. Dismissed with costs,
per stipulation.
Chicago, Rock Island,' & Pacific Rail-
way Company, Plaintiff in Error, v.
Road Improvement District No. 1 of
Prairie County, Arkansas. [No.
366.]
In Error to the Supreme Court of the
State of Arkansas.
See same case below, 137 Ark. 587, 209
S. W. 725.
Messrs. Thomas "S. Buzbee, Thomas P.
Littlepage, Sidney F. Taliaferro, George
B. Pugh, and W. F. Dickinson for plain-
tiff in error.
Mr. Charles A. Walls for defendant in
error.
April 19, 1920. Dismissed with costs,
on motion of counsel for the plaintiff in
error.
Delaware, Lackawanna, & Western
Railroad Company et al. v. Marie L.
Thompson, [No. 698.]
On a Certificate from the United
1 Motion to vacate judgment of dismissal
and restore cause to docket denied June 7,
1920.
64 L. ed.
Missouri Pacific Railroad Company et
al., Plaintiffs in Error, v. Monroe
CouNTv Road Improvement District
et al. [No. 367.]
In Error to the Supreme Court of the
State of Arkansas.
See same case below, 137 Ark. 568, 209
S. W. 728.
Messrs. Tray Pace, Thomas S. Buzbee,
Thomas P. Littlepage, Sidney F. Talia-
ferro, George B. Pugh, and W. F. Dickin-
son for plaintiffs in error.
Messrs. W. E. Hemingway, G. B. Rose,
D. H. Cantrell, and J. F. Loughborough
for defendants in error.
April 19, 1920. Dismissed with costs,
on motion of counsel for the plaintiffs in
» error.
7S1
CASES
ARGUED AND DECIDED
INTHB
SUPREME COURT
OFTHB
UNITED • STATES
AT
OCTOBER TEliM, 1919.
Vol. 253.
64 Li. ed. 733
L=_
• 4
THE DECISIONS
OF THB
Supreme Court of the United States
AT
OCTOBER TERM, 1919.
UNITED STATES, Appt^
V.
ATLANTIC DREDGING COMPANY, W. B.
Brooke, Agent.
(See 8. C. Reporter's ed. 1-12.)
United States » contracU — misrepre-
sentation of conditions.
1. The declaration in tlie government*
specifications for a dredging contract that
no guaranty as to accuracy of description is
intended, and the admonition to bidderp that
i.hey must decide as to the character of the
materials to. be dredged, and make their
bids accordingly, do not prevent the con-
tractor from relying upon the representa-
tion in the government's specifications and
maps as to the character of the materials to
be encountered, asserted to be founded upon
test borings, when in fact the existence of
material much more difficult to dredge was
disclosed by some of the borings,* and such
disclo^sures were concealed from bidders,
the government not merely expressing in the
specification its belief that its representa-
tion was true, but further asserting such be-
lief through its approval of the contractor's
plant, whicli was only efficient for dredging
material named, and was inefficient for
dredging the material actually found to ex-
ist.
[For other oasoH, see UuIte<I States, VI. d, in
Digest Sup. Ct. 1908.1
United States — contracts — misrepre-
sentation of conditions — loss.
2. The election of a government con-
tractor to continue the work after it dis-
covered that the materials to be dredged
were not of the character which the govern-
ment represented that it believed would be
encountered does not preclude such contrac-
tor, upon thereafter discovering that the be-
lief expressed by the government was not
64 li. ed.
justified and was in fact a deception, from
stopping the work and suing to recover its
losses under the contract.
[For other cases, see United States, VI. d; VI.
f. in Digest Sup. Ct. 1908.]
Claims » against United States » Jurls-
dlcUon » tort.
3. A suit to recover from the United
States the losses incurred by a public con-
tractor because of the misrepresentations
by the government as to the character of
the materials to be encountered cannot be
said to be one sounding in tort, and hence
not tenable against the United States,
where there is no intimation of bad faith
against the officers of the government, and
the court of claims regarded the represen-
tation as in the nature of a warranty, and .
there was nothing, punitive in its judgment,
it being simply compensatory of the cost of
the work of which the government received
the benefit.
[For other cases, see Claims, 128-131, in Di-
gest Sup. Ct. 1908.1
[No. 214.]
Argued March 16, 1920. Decided April 20,
1920.
APPEAL from the Court of Claims to
review a judgment awarding a pub-
lic contractor compensation for loss in-
curred because of misrepresentation by
the government as to existing conditions.
Affirmed.
See same case below, 53 Ct. CI. 490.
Statement by Mr. Justice McKenna:
Action in the court.of claims to recover
the sum of $545,121.72 from the United
States on account of expenditures and
loss caused, it is alleged, in the execution
735
2-4
SUPREME COURT OF THE UNIT^ STATES.
Oct. Tebm,
of a contract which it was induced to
enter into by false and misleading state-
ments of the oflBcers of the United States
in charge of excavations in the Delaware
river.
In pursuance of advertisement by the
United States through Colonel Kuhn, the
dredging company entered into a contract
to do a certain part of the work for the
sum of 12.99 cents per cubic yard, scow
measurement.
Sealed proposals were required by the
advertisemenl^ and it was stated that in-
formation cotiid be had on application,
and bidders were invited to base their bids
upon the specifications which had been
prepared by, and were submitted*by, the
government. •
The specifications stated that the
depth of the channel to be dredged was
35 feet, and under the heading, "Quality
or Character of the Material," contained
the following: "The material to be re-
moved is believed to be mainly mud, or
mud with an admixture of fine sand, ex-
cept from station 54 to station 55 + 144,
at the lower end of West Horseshoe
range (the latter is not included in the
contract), where the material is firm mud,
sand, and gravel or cobbles." It was
stated that "bidders were expected to ex-
amine the work, however, and decide for
themselves as to its character, and to
make their bids accordingly, as the United
States does not guarantee the accuracy
of this description."
[3] The further statement was that "a
number of test borings have been made in
all of the areas where dredging is to be
done under these specifications, and the
results thereof may be seen by intending
bidders on the maps on file in this of&ce.
(See paragraph 17.) No guaranty is
given as to correctness of these borings
in representing the character of the bot-
tom over the entire vicinity in which they
were taken, although the general informa-
tion given thereby is believed to be trust-
worthy."
To ascertain the character of the ma-
terial to be dredged the government of-
ficers had subjected the bottom of the
river to certain borings, called, according
to their manner of being made, "test bor-
ings and wash borings," and the results
thereof were correctly rei>orted and re-
corded on the log or field notes at the
time: that is, that the probe had pene-
trated or had not penetrated, but there
was nothing on the map -exhibited to bid-
ders showing the field notes taken at the
time the borings were made. It was
hence shown that the material to be en-
countered was **mainlv mud or mud with
T3«
an admixture o5 sand." In other words,
the map did not contain a true description
of the character of the material .which
was to be encountered, and was enooon-
tered by the dredging company in the
prosecution of the work. The material
dredged, at certain places, differed from
that shown pn the map eidiibited to bid-
ders. The company made no independent
examination, though it had time to do
so, and in making its proposal it stated
that it did so with full knowledge of the
character and quality of the wo]^ re-
quired.
The proposals required the character
and capacity of the plant proposed to be
employed by the contractor to be stated,
and that it should be kept in condition
for efficient work, and be subject to the
inspection and approval of the "contract-
ing officer." In compliance with the re-
quirement the plant was submitted to
such officer and by him inspected and ap-
proved. It was efficient for dredging
[4] the character of material mentioned
in the specifications and described on the
map to which bidders were referred for
information; it was not efficient for
dredging the material actually found to
exist, and the company secured the serv-
ices of another concern to do the dredg-
ing for it, and that concern did all of
the work that was done.
After the company and the concern it
had employed had been at woi^ for some
time, it complained of the character
of material which was being encountered,
and a supplementary contract^ was entered*
into by it and the "contracting officer."
This contract recited that 'Qieavy and
refractory material, consisting mainly of
compacted sand and gravel, with a small
percentage of cobbles, had been encoun-
tered," and provided that such material
might be deposited in the Delaware river
instead of on shore, as provided in the
original contract.
At the time of making the supple-
mental contract the company was not
aware of the manner in which the ''test
borings" over the area embraced in its
contract had been made. Upon learning
of this in December, 1915, it discontinued
work and declined to do further work.
The company then had not been informe<l
of the fact that impenetrable material had
been reached by the probe. At the time
of the cessation of woA there remained
approximately 350,000 cubic yards of ma-
tenal to be dredged in the area of the
contract. The American Dredging Com-
pany completed the dredging at 16.2 cents
per cubic yard.
The amount expended by the company
2S3 r. s.
1919.
UNITED STATES v. ATLANTIC DREDGING CO.
4, 9, 10
was $354,009.19, upon which it ha4 re-
ceived $r42,959.10, making itii loss on the
contract $211,050.09. For such sum judg-
ment was rendered, and the United States
prosecuted this appeal.
Assistant Attorney General Davis ar-
^ed the cause and filed a brief for ai>-
pellant :
There was no misrepresentation.
Southern Development Co. v. Silva,
125 U. S. 247, 250, 31 L. cd. 678, 680, 8
Sup. Ct. Rep. 881, 15 Mor. Min. Rep.
435; Simpson v. United States, 172 U.
S. 372, 43 L. ed. 482, 19 Sup. Ct. Rep.
2 J 2.
Where one agrees to do, for a fixed
sum, a thing possible to be performed,
he will not be excused or become entitled
to additional compensation because un-
foreseen difficulties are encountered.
Day V. United States, 245 U. S. 169,
62 L. ed. 219, 38 Sup. Ct. Rep. 57;
Phcenix Bridge Co. v. United States, &11
U. S. 188, 63 L. ed. 141, 29 Sup. Ct. Rep.
81; Dermott v. Jones, 2 Wall. 1, 17 L. ed.
762; Spearin v. United States, 248 U. S.
136, 63 L. ed. 169, 39 Sup. Ct. Rep. 59.
Even had there been misrepresenta-
tion, claimant, by electing to proceed
with the contract, ratified it and is es-
topped.
2 Pom. Eq. Jur, 4th ed. §§ 916," 917, p.
1915; Shappirio v. Goldberg, 192 U. S.
232, 48 L. ed. 419, 24 Sup. Ct. R^p. 259;
Wilson V. New United States Cattle-
Kanch Co. 20 C. C. A. 244, 36 U. S. App.
634, 73 Fed. 904; Kingman & Co. v.
Stoddard, 29 C. C. A. 413, 57 U. S. App.
379, 85 Fed. 740; Richardson v. Lowe,
79 C. C. A. 317, 149 Fed. 628; Ripley v.
.Jackson Zinc & Lead Co. 136 C. C. A.
619, 221 Fed. 209; Gregg v. Megargel,
•254 Fed. 733 ; Simon v. Goodyear Metal-
lic Rubber Shoe Co. 52 L.R. A. 745, 44
C. C. A. 612, 105 Fed. 579 ; United States
ex rel. International Contracting Co. v.
Lamont, 155 U. S. 303, 309, 39 L. ed. 160,
164, 15 Sup. Ct. Rep. 97; Oregonian R.
Co. V. Oregon R. & Nav. Co. 10 Sawy.
464, 22 Fed. 245.
By the finding of facts and the act de-
fining its jurisdictiou, the court of
claims, if it had jurisdiction at all, is
precluded from applying the measure of
damages it applied in this case.
Gibbons v. United States, 8 Wall. 269,
19 L. ed. 453^; Morgan v. United States,
14 W^aU. 531, 20 L. ed. 738; Schillinger
V. United States, 155 U. S. 163. 39 L. cd.
•4 li. ed.
108, 16 Sup. Ct. Rep. 85; Juragua Iron
Co. V. United States, 212 U. S. 297, 53
L. ed. 520, 29 Sup. Ct. Rep. 385, 15 Ann.
Cas. 536; Basso v. United States, 230
U. S. 602, 60 L. ed. 462, 36 Sup. Ct. Rep.
226; Ball Engineering Co. v. J. G. White
& Co. 250 U. S. 46, 63 L. ed. 835, 39
Sup. Ct. Rep. 393; Smith v. Bolles, 132
U. S. 125, 129, 33 L. ed. 279, 281, 10
Sup. Ct. Rep. 39, 16 Mor. Min. Rep. 159 ;
United States v. Behan, 110 U. S. 338,
28 L. ed. 168, 4 Sup. Ct. Rep. 81.
Mr. William L. Marlmry argued the
cause, and, with Mr. W. L. Rawls, filed
a brief for appellee :
Pleadings of technical formality were
not requisite or customary in the court
of claims.
United States v. Behan, 110 U. 8. 347,
28 L. ed. 171, 4 Sup. Ct. Rep. 8L
A state of facts is thus exhibited
which elearly entitled the appellee to re-
cover, as for a breach of warranty or
condition.
United States v. Spearin, 248 U. S,
132, 63 K ed. 166, 39 Sup. Ct. Rep. 59;
Anvil Min. Co. v. Humble, 153 U. S.
540, 38 L. ed. 814, 14 Sup. Ct. Rep. 876,
18 Mor. Min. Rep. 98; United States v.
Utah, N. & C. Stage Co. 199 U. S. 414,
50 L. ed. 261, 26 Sup. Ct. Rep. 69; Hol-
lerbaeh V. United States, 233 U. S. 165,
58 L. ed. 898, 34 Sup. Ct. Rep. 553;
Christie v. United States, 237 U. S. 234,
59 L. ed. 033, 35 Sup. Ct. Rep. 565.
After stating the case as above, Mr.
Justice McKenna delivered the opinion
of the oonrt:
The ease turns upon the statement of
the government of its belief of the charac-
ter of the material to be enoountered,
[10] and, as misrepresentation, the
omission from the map exhibited to bid-
ders of the actual borings made and
their disclosures.
The government asserts that there was
no misrepresentation, basing the assertion
upon the deelaration of the specifications
that no guaranty was intended, and the
admonition to bidders that they must de<
cide as to the character of the materials
to be dredg^, and to **make theii* bids
aoeordingly."
The assertion puts out of view, we
think, other and determining circum-
stances. There was not only a dear dec-
laration of the belief of the government
that its representation was true, but thr
47 7*7
10-12
SUPREME COURT OF THE UNITED STATES.
Oct.
foundation of it was asserted to be the
test of actual borings, and the reference
to maps as evidence of what the borings
had disclosed. The finding is that the
maps contained a record of twenty-six
borings as covering specified sections that
were to be dredged, and of these ten were
in the section of the river, which, by its
contract afterwards made, the plaintiff
agreed to dredge.
There was a further assertion of be-
lief, through its "contracting oflScer/* by
the approval of the company's plant. As
we have seen, the government's care of its
interests extended to the inspection of the
instrumentalities of the contractor, and
required the character and capacity of the
plant which was to be used, to be sub-
mitted for inspection and approval. In
fulfilment of the requirement the company
submitted its plant. It was only efficient
for dredging material of the character
mentioned in the specifications and de-
scribed on the map^ and it was so ap-
proved. The significance of the submis-
sion and approval is manifest. The
character and capacity of the plant
conveyed to the officer the fact that the
company was accepting as true the rep-
resentation of the specifications and the
map of the materials to be dredged; and
reciprocally the approval of the plant by
the officer was an [11] assurance to the
company of the truth of the representa-
tion, and a justification of reliance upon
it.
The case is, therefore, within the ruling
of United States v. Spearin, 248 U. S.-
132, 136, 63 L. ed. 166, 169, 39 Sup. Ct.
Rep. 59, where it is stated that the direc-
tion to contractors to visit the site and
inform themselves of the actual conditions
of a proposed undertaking will not relieve
from defects in the plans and specifica-
tions, citing Christie v. United States, 237
U. S. 234, 59 L. ed. 933, 35 Sup. Ct Rep.
565; HoUerbaeh v. United SUtes, 233 U.
S. 165, 58 L. ed, 898, 34 Sup. Ct. Rep.
553, and United States v. Utah, N. & C.
Stage Co. 199 U. S. 424, 50 L. ed. 255,
26 Sup. Ct R«p. 69. It is held in those
cases ^at the contractor ought to be
relieved, if he was misled by emoneous
statements in the specifications." The
present ease is certainly within the princi-
ple expressed. In the cited cases there
was no qualification of the requirement;
in this case it was aoeompanied by the ex-
pression of belief, and conduct which was,
7S8
in effect, a repetition and confirmation
of the belief, and gave assurance that it
had a reliable foundation. The company,
therefore, was justified in acting upon it.
The government, however, contends
that, at best, the alternative was presents
to the company, when it discovered the
character of the materials, to either quit
work and sue for damages, or continue
the work; and that, having elected the
latter, it cannot now resort to the other.
In fortification of this contention it is
said that "even if the government made a
misrepresentation as to the borings, that
misrepresentation would necessarily have
been as to the character of the materials
to be dredged, and claimant knew all
there was to know about this from the
*very beginning.'"
This assumption and the extent of it
and the conclusion from it are not justi-
fied. It is true the company discovered
that the material it encountered was dif-
ferent in character from that represented,
but the company did not know of the
concealment of the actual test of the bor-
ings, and the fact that it, the company,
attempted to [12] struggle on against
the difficult conditions with its inefficient
plant, ^ould not be charged against it
In otW words, it should not now be held
to have been put to the suggested dection.
It did net know at that time of tiie man-
ner in which the '^test borings'' had been
made. Upon learning that they bad be^i
made by the probe method, it then elected
to go no further with the work; that is,
upon discovering that the belief expressed
was not justified and was in fact a decep-
tion. And it was not the less so because
its impulse was not sinister or fraudulent.
The government makes the point, how-
ever, that the implication of the case is
that bad methods were used, and insists
that the implication makes the action ome
for a tort, and not tenable against the
United States. We cannot assait. There
is no intimation of bad faith against the
officers of the government, and the Court
of Claims regarded the representation of
the charaeter of the material as in the
nature of a warranty; besides, its judg-
ment is in no way punitive. It is simply
compensatory of the cost of the work, of
which the government got the benefit.
Affirmed.
The. Chist Jushob and Mr. Justice
Olarke dissent.
Sit V. B.
1919.
MAGUIRE V. TKEKKV.
12
EMILY M. MAOUIRE, Plff. in Err.,
V.
WILLIAM D. T. TREFRY, Tax Coramis-
Bioner of the Commonwealth of Massa*
• chuaetta.
(S<^ 8. C. Reporter's ed. 12-17.)
Censtitutlenal law » due process of
law » state Income tax — income re*
ceived frcmi nonresident trastee.
A state may, wlUiout denying due
process of law, tax the income received by a
resident from securities held for her benefit
by the trustee in a tiu.st created and admin-
istered by Uie law of another state, and not
(hrectly taxable to the trustee.
[For other casps, see Constitutional Law, IV.
b, 6, in Digest Sup. Ct. 1908. h
[No. 280.]
Argued March 24, 1920. Decided April 26,
1920.
IN ERROR to the Superior Court of
the State of Massachusetts to re-
view a judgment ordered by the Su-
Vote. — As to personal property having
a situs for taxation elsewhere, as subject
of taxation in the state of the owner's
domicil — see notes to Com. v. West In-
dia Oil Ref. Co. 36 L.R.A.(N.S.) 295;
New England Mut. L. Ina Co. v. Board
of Assessors, 26 L,R.A.(N.S.) 1120;
Johnson County v. Hewitt, 14 L.BJ^.
(N.S.) 483; Monongahela River Consol.
Coal & Coke Co. v. Board of Assessors,
2 LR.A.(N.S.) 637; and Fidelity ^ C.
Trust Co. V. Louisville, L.R.A.1918C, 124.
As to sitns, as between different states
or countries, of personal property for
purposes of personal-property taxation
— see note to Liverpool & L. & G. Ins.
Co. T. Board of Assessors, L.R.AJ.915C,
903.
As to eonstitntionality of income tax
— see notes to State ex rel. Bolens t.
Frear, L.R.A.1915B, 569; and Alderman
V. Wells, 27 L.R.A.(N.8.) 864.
Validity aad constrnction of statates
taxing the income of a- resident de-
rived from foreign trade or invest-
ments.
I. Validity, 739.
IL Oonstruction, 730.
/. Validity,
The power of a state under the Fed-
eral Constitution to tax its residents up-
on income derived from sources in other
states is quite broad. A tax. upon in-
come derived from securities held by a
trustee in a trust created and adminis-
tered by the law of another state, and
•4 I>. ed.
prcmc Judicial Court of that state for
the abatement of a part only of a tax
upon income received from a nonresi-
dent trustee. Affirmed.
See same case below in supreme judi-
cial court, 230 Mass. 503, 120 N. E.
162.
The facts are stated in the opinion.
Mr. Richard W. Hale argued the cause,
and, with Mr. John M. Mag^ire, filed a
brief for plaintiff in error :
No state may, directly or indirectly,
tax property which is not in its juris-
diction.
Union Refrigerator Transit Co. v.
Kentucky, 199 U. S. 194, 50 L. ed. 150,
26 Sup. Ct. Rep. 36, 4 Ami. Cas. 493;
Louisville k J. Feny Co. v. Kentucky,
188 U. S. 385, 396, 47 L. ed. 513, 518, 23
Sup. Ct. Rep. 463.
The subjects of taxation are three:
persons, property, and business.
State Tax on Foreign-held Bonds, 15
Wall. 300, 819, 21 L. ed. 179, 186.
not directly taxable to the trustee, is
sustained in Maguire v. Trefrt, afiOrm-
ing 230 Mass. 503, 120 N. E. 162. It has
been held that a state, in levying a gen-
eral income tax upon the gains and
profits of a domestic corporation, may
include in the computation the net in-
come derived from transactions in inter-
state commerce without contravening the
commerce clause of the Federal Consti-
tution, where there is no discrimination
against interstate eommerce, either in
the admeasurement of the tax, or in the
means adopted for enforcing it. United
States Glue Co. v. Oak Creek, 247 U. S.
321, 62 L. ed. 1135, 38 Sup. Ct. Rep.
499, Ann. Cas. 1918E, 748.
But a state cannot, consistently with
the guaranty of the equal protection of
the laws, contained in the 14th Amend-
ment to the Federal Constitution, im-
pose a tax in the case of a domestic cor-
poration doing business both within and
without the state, upon the corporate
income derived from the business done
without the state, as well as upon that
done within, and at the same time ex-
empt from the tax a domestic corpora-
tion doing its entire b.usiness without
the state. F. S. Royster Guano Co. v.
Virginia, 253 U. S. 412, post, 989, 40 Sup.
Ct. Rep. 560.
//. CtmMructian,
Many questions as to the construction
of statutes taxing residents on income
derived from sources in other states
have arisen. For example, questions
739
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
This income tax might be a levy on
the person, measured by income; or an
excise imposed on the business (or priv-
ilege) of receiving income; or a prop-
erty tax either upon the income itself
or upon the principal of the trust. The
Federal general income tax is an excise
so far as it applies to citizens or resi-
dents.
Brushaber v. Union P. R. Co. 240 U.
8. 1, 60 L. ed. 493, L.R.A.1917D, 414, 36
Sup. Ct. Rep. 236, Ann. Cas. 1917B, 713.
But it is plainly and necessarily a
property tax so far as it applies to the
income accruing to nonresident aliens
from their bonds and other securities
in this country.
De Ganay v. Lederer, 250 U. S. 376,
63 L. ed. 1042, 39 Sup. Ct. Rep. 524.
That portion of the Massachusetts in-
come tax here drawn in question has
been adjudged a property tax, and not
a personal tax or a tax on business.
Tax Comr. v. Putnam (Trefry v. Put-
nam) 227 Mass. 522, L.R.A.1917F, 80tj,
116 N. E. 904.
have arisen as to the extent to which the
statute intends to tax such income.
The Massachusetts Income Tax Law
Under consideration in Maguire v. Tbkf-
RY, by construction in Maguire v. Tax
Comr. 230 Mass. 503, 120 N. E. 162, was
held not to levy a tax upon the income
which a resident beneficiary of a trust
estate administered in another state re-
ceived from securities taxed to the trus-
tee in the latter state. Although the
Massachusetts act was quite broad, it re-
ferred to the general taxing law, and
provided that the act should not be con-
strued to impose a tax on any person in
respect to income derived from property
exempt from taxation. The general law
provided that if the executor or admin-
istrator or trustee was not an inhabitant
of the commonwealth, the tax should be
assessed to the person to whom the in-
come is payable, where he resides, if it
was not legally taxable to the executor,
•ftdmiuistrator, or trustee under a testa-
mentary trust in the other state.
* A statute levying a tax "upon all in-
come . . . received by every person
residing within the state, and by every
nonresident of the state upon such in-
come as is derived from sources within
the state or within its jurisdiction," and
which, in the following sentence, levied
a tax upon "so much of the income of
any person residing within the state as
is derived from rentals, stocks, bonds,
securities, or evidences of indebtedness
. . . whether such income is derived
from sources within or without the
state," was construed in State ex rel.
Arpin v. Eberhardt, 158 Wis. 20, 147 N.
W. 1016, to impose a tax, by the general
provision first above quoted, only upon
«o much of the income of a resident as
was derived from sources within the
state; and, by virtue of the second pro-
vision, only upon income from the
sources mentioned, whether within or
without the state; consequently the in-
come derived by a resident from a dredg-
ing business in another state, carried on
t¥o
within that state by a partnership com-
posed of a resident of the state of Wis-
consin and two other partners, all the
property and machinery belonging to
the business being located in the other
state, and there taxed, was held not tax-
able to the resident of Wisconsin. Upon
the authority of this case, it was h«ld
that, assuming, without deciding, that an
inheritance of real estate, located in an-
other state, is income within the mean-
ing of the statute, it is not assessable,
being within the class of incomes derived
from sources wholly without the state,
and not mentioned in the statute. State
ex rel. Brenk v. Widule, 161 Wis. 396,
154 N. W. 696.
Business income "derived from busi-
ness transacted and property loeated
within the state" includes all of a corpo-
ration's business income derived from
the manufacture, sale, and delivery of
such of its products as are manufac-
tured, sold, and delivered from its fac-
tory in Wisconsin to customers in Wis-
consin and other states, and also the net
business income of its products which
were manufactured at its factory and
shipped from there to its branch hou*''*>
out of the state, and delivered from
there to customers residing outside of
the state, on sales being made either
from the home office or at the branch
houses. A statute attempting to levy an
income tax upon the business income as
thus defined was sustained in United
States Glue Co. v. Oak Creek, 161 Wis.
211, 153 N. W. 241, Ann. Cas. 1918A,
421. Thin conclusion of the state court
was sustained by the United States Su
preme Court, 247 U. S. 321, 62 L. ed
1135, 38 Sup. Ct. Rep. 499, Ann. Cas
1918E, 748.
Encllsk oases.
By 16 Sc 17 Vict. chap. 34, § 2, Sched-
ule D, an income tax is imposed: *^or
and in respect of the annual profits or
gains arising or accruing to any person
residing in the United Kingdom from
any kind of property whatever, whether
tftt IT. S.
1919.
MAGUJRK V. XRKFJa.
Considered as a property tax, this in-
come tax is imposed on principal rather
than on the income as received.
Pollock V, Fanners' I^an & T. Co. 157
U. S. 429, 579, et seq. 39 L. od. 759, 818,
15 Sup. Ct. Rep. 673; Pollock v. Farm-
ers' Loan & T. Co. 158 U. S. 601, 618,
628, 39 L. ed. 1108, 1119, 1122, 15 Sup.
Ct. Rep. 912; Philadelphia & S. S. S.
Co. V. Pennsylvania, 122 U. S. 326, 344,
345, 30 L. ed. 1200, 1204, 1205, 1 Inters.
Com. Rep. 308, 7 Sup. Ct. Rep. 1118;
Opinion of Justices, 220 Mass. 623, 108
N. E. 570; fluut v. PeiTy, 165 Mass.
287, 43 N. E. 103; Union Refrigerator
Transit Co. v. Kentucky, 199 U. S. 194,
50 L. ed. 150, 26 Sup. Ct. Rep. 36, 4
Ann. Cas. 493.
Irrespective of its technical nature,
this tax must be deemed one in sub-
stance imposed on the trust principal.
Brushaber v. Union P. R. Co. 240 U.
S. 1, 12, 60 L. ed. 493, 499, L.R.A.1917D,
414, 36 Sup. Ct. Rep. 236, Ann. Cas.
1917B, 713; Thomas v. United States,
192 U. S. 363, 370, 48 L. ed. 481, 483,
situate in the United Kingdom or else-
where, and for and in respect of the an-
nual profits or gains arising or accruing
to any person residing in the United
Kingdom from any profession) trade,
employment, or vocation, whether the
same shall be respectively carried on in
the United Kingdom or elsewhere, and
to be charged for every 20 shillings of
the annual amount of such profits and
gains. And for and in respect of the
annual profits or gains arising or accru-
ing to any person whatever, whether a
subject of her Majesty or not, although
not resident within the United Kingdom,
from any property whatever in the
United Kingdom, or any profession,
trade, employment, or vocation exercised
within. the United Kingdom, and to be
charged for every 20 shillings of the an-
nual amount of such profits and gains.
And for and in respect of all interest of
money, annuities, and other annual prof-
its and gains not charged by virtue of
any of the other schedules contained in
this act, and to be charged for every 20
shillings of the annual amount thereof."
The language of this section of the
statute is sweeping in its inclusions, but
its effeet has been controlled by subse-
quent sections. It is provided that the
duties imposed by the section are to be
charged according to certain rules,
styled "cases." The first and fifth of
these cases, as found in 5 & 6 Vict. chap.
35, § 100, are the ones that have most
frequently been involved in the ques-
tion under annotation, and are as fol-
lows: "Schedule D. . . . Rules for
ascertaining the said last-mentioned du-
ties in the particular cases herein men-
tioned. First case: Duties to be
charged in respect of any trade, manu-
faeture, adventure, or oonoem in the
nature of trade, not contained in any
other schedules of this act. . . . Rules.
— ^Ist: The duty to be charged in re-
qpeet thereof shall be computed on a
sum not less than the full amount of the
balance of the profits or gains of such
e4 ii« ed.
trade, manufacture, adventure, or con-
cern upon a fair and just average of
three years ending, etc. . . . Fifth
case : The duty to be charged in respect
of possessions in Ireland, or in the Brit-
ish plantations in America, or in' any
other of her Majesty's dominions out of
Great Britain, and foreign possessions.
The duty to be charged in respect there-
of shall be computed on a sum not less
than the full amount of the actual sums
annually received in Great Britain^
either for remittances from thence pay-
able in Great Britain, or from property
imported from thence into Great Brit-
ain, or from money or value received
in Great Britain, and arising from prop-
erty which shall not have been imported
into Great Britain, or from money or
value so. received on credit or on ac-
count in respect of such remittances,
property, money, or value brought, or to
be brought, into Great Britain, comput-
ing the same on an average of the three
preceding years, as directed in the first
case, without other deduction or abate-
ment than is hereinbefore allowed^ in
such case."
These cases vary in prescribing the
methods for ascertaining the amount of
income of foreign trades or investments.
In brief, in case 1, the duty is charged
on the full amount of the profits or
gains of such trade, while in case 5 the
duty is charged on only so much of the
profits of the trade, etc., as is received
in the United Kingdom. The contest in
many of the English cases has been to
bring the case within case 5, thus sub-
jecting to the tax only so much of the'
profits as" have been received in the
United Kingdom,
In the first case decided by the House
of Lords, a merchant residing in Eng-
land, and carrying on a business there,
who was also a partner with a large
capital invested in an independent busi-
ness carried on entirely at Melbourne,
Australia, was held to be taxable under
the fifth case of Schedule D, and theire-
74.1
SUPREME COURT OF THE UNITED STATES.
Oct.
24 Sup. Ct. Rep. 305; Hittinger v. West-
ford, 135 Mass. 260; Boston Loan Co. v.
Boston, 137 Mass. 335; International
Paper Co. v. Massachusetts, 246 U. S.
135, 62 L. ed. 024, 38 Sup. Ct. Rep. 292,
Ann. Cas. 1918C, 617; Flint v. Stone
Tracy Co. 220 U. S. 107, 150, 55 L. ed.
389, 413, 31 Sup. Ct. Rep. 342, Ann. Cas.
1912B, 1312; Dyer v. Melrose, 197 Mass.
99, 34 L.R.A.(N.S.) 1215, 125 Am. St.
Rep. 330, 83 N. E. 6, 215 U. S. 594, 54
L. ed. 341, 30 Sup. Ct. Rep. 410; State
V. Brim, 57 N. C. (4 Jones, Eq.) 300;
Hood's Estate, 21 Pa. 115; Hay v. Fair-
lie, 1 Buss. Ch. 128, 38 Eng. Reprint, 49.
If a life tenant residing in Massachu-
setts exercised a testamentary power of
appointment over either the corpus or
the income of the fund, Massachusetts
could not reach the transfer, even with
the long arm of an inheritance or estate
tax.
Walker v. Treasurer, 221 Mass. 600.
109 N. E. 647.
The taxation of trusts historically in-
volves assessment of the l^al estate.
fore to be liable to the income tax in re-
spect only of so much of the profits of
his Australian business as were brought
to England either in kind or in money,
•nd npt to be liable in respect to all the
profits of that trade. Colquhoun v.
Brooks, L. R. 14 App. Cas. 493, 59 L. J.
Q. B. N. S. 53, 61 L. T. N. S. 518, 38
Week. Rep. 289, 54 J. P. 277.
In the subsequent case of San Paulo
(Brazilian) R. Co. v. Carter [1896]
A. 0. 31, 65 L. J. Q. B. N. S. 161, 73
L. T. N. S. 538, 44 Week. Rep. 336, 60
J. P. 84, 452, Lord Watson attributes
the decision in Colquhoun v. Brooks to
the principle that the Income Tax Acts
contained no machinery for assessing
under the first case, profits accruing
from any trade which is not wholly or
in part carried on within the United
Kingdom, whereas the acts do provide
machinery for assessing under the fifth
case, profits arising from trade exclu-
sively carried on outside the United
Kingdom. And Lord Watson adds that,
in his opinion, Colquhoun v. Brooks
establishes the rule that the answer to
the question whether the tax falls with-
in the first or the fifth case depends up*
on where the trade is carried on. If no
part of the trade is carried on within
the United Kingdom, the tax is leviable
under the fifth case; but if all or any
part of the trade is carried on within
the United. Kingdom, the tax is leviable
under the first case. This principle is
affirmed in Mitchell v. Egyptian Hotels,
{1915] A. C. 1022. 84 L. J. K. B. N. S.
1772, [1915] W. N. 281, 31 Times L. R.
546, 59 Sol. Jo. 649. In this view the
question, therefore, under this statute,
resolves itself into the very practical
one of where a trade is carried on.
Where a trade is carried on is recog-
nized by the English cases to be a ques-
tion of difficulty; ordinarily it is a ques-
tion of fact in the individual case.
(See also note to Shaffer v. Carter, ante,
445, on this point.] Many of the cases
^ave involved EnjHish companies, and
T42
the control which tlie British company
has exercised is emphasized in the de*
termination of where the trade is car^
ried on.
An English company incorporated
with limited liability under British stat-
utes, and having its registered office in
London organized for the purpose of
constructing and operating a railway in
Brazil, the business of which is vested
in a board of directors in London, whieh
has the direction and supreme caiitxt>l
of the business, was held in San Paulo
(Brazilian) R. Co. v. Carter, supra, to
be carrying on a trade at least in part
in England, and therefore to be subject
to a tax leviable under the first ease.
The facts that the directors were
authorized by the articles of assoeiation
to manage and work the railway and its
connections through a superintendent in
Brazil, appointed by them, and a staff
of servants in Brazil, who were under
the superintendent's immediate super-
vision, and that the receipts of the eom-
pany from which profits made by it
were derived were earned and paid in
Brazil, were held not to change the rule.
The court states • that, notwithstanding
these facts, the substantial fact remains
that the directors, subject to any reaolo-
tions which may be passed for their
guidance by the members of the com-
pany, were vested with the sole rif^t
to manage and control every depart-
ment of its affairs.
It was found as a fact that a com-
pany incorporated in New Jersey, whidi
eng&ged in spinning cotton thread and
selling it mainly in the United States,
to a small extent in Australia and Can-
ada, but not in the United K inborn,
owning mills and real estate in Massa-
chusetts, Connecticut, and Rhode Island,-
the whole of the common stock of the
company being held by, or by trustees
for, an English company, the English
Sewing Cotton Co. Ltd., was controlled
and managed by directors of the eom-
panv resident in England, in eitraor-
1919.
MAGUlUi: V. THEFRY.
The elumsy-fiiigered tax gatherer of the
older days could not grasp so elusive a
thing as an equity. He sought out the
property and the legal owner, and there
levied hi» charge.
Trinity College v. Browne, 1 Vern.
441, 23 Eng. Reprint, 573; Hall v.
Bromley, L, R. 35 Ch. Div. 655, 56 L. J.
Ch. N. S. 722, 56 L. T. N. S. 683, 35
Week. Rep. 659; Latrobe v. Baltimore,
19 Md. 13 ; Watson v. Boston, 209 Mass.
18, 96 N. E. 302.
It is a misconception to think that
the situs of the trust property can be
held to be in a place because a life ten-
ant of the trust property is domiciled
there.
New York ex rel. Hatch v. Reardon,
204 U. S. 152, 161, 51 L. ed. 415, ^22, 27
Sup. Ct. Rep. 188, 9 Ann. Cas. 736;
Kennedy v. Hodges, 215 Mass. 112, 102
N. E. 432; Crocker v. Malley, 249 U. S.
223, 63 L. ed. 573, 2 A.L.R. 1601, 39
Sup. Ct. Rep. 270; Kraay v. Gibson, 15
Ohio Dec. 323, s. e. 17 Ohio Dec. 218;
Southern P. Co. v. Kentucky, 222 U. S.
dinary sessions; and it being held to be
a resident of England, it was hd^d
assessable for an income tax on the
whole of its annual profits and gains
arising or accruing from its trade,
whetto oarried on in England or else*
where. American Thread Co. v. Joyee,
108 L. T. N. S. 353, 29 Times L. R. 266,
57 Sol. Jo. 321, 50 Scot. L. R. 665.
A foreign company whieh had its
head ofiftee in the United Kingdom, and
did its business there through its board
of directors, was held to be assessable
upon the entire profits made by the com-
pany. Goera v. Bell [1904] 2KB. 136,
73 L. J. K. B. N. 8. 448, 53 Week. Rep.
04, 90 L. T. N. S. 675, 20 Times L. B.
348.
On the contrary, an English eomi»any
resident in London, with registered of-
fices .tliMre, which owned hotels in Egypt,
which were controlled by a local boiard
in Egypt, intrusted with the exclusive
management and control of the busi-
ness, the London board controlling no
part of the earrying on of the hotel
trade, was held not to be carrying on a
trade in England within the meaning of
the Income Tax Law, although it was
provided in the by-laws of the company
that the London directors were to cause
two accounts to be kept, and were to
recommend what the dividends should
be, and also to have control over an in-
crease in capital. Egyptian Hotels v.
Mitchell [1914] 3 KB. 118, 83 L. J. K.
B. N. S. 1510, 111 L. T. N. S. 189, 30
Times L. R. 457, 58 Sol. Jo. 494. Upon
appeal to the House of Tiords, the Lords
present being equally divided, the deci-
sion of the court of appeal was aflftrmed.
[1915] A. C. 1022 [1915] W. N. 281, 84
U J. K. B. N. S. 1772, 31 Times L. R.
546, 59 Sol. Jo. 649. Lord Parker, of
Waddington, and Lord Sumner agreed
with the court of appeal, while Ear)
Tx)rebiim and Lord Pannoor were of the \
opinion that a trade was l>eing carried
on in England. The last-named judge??
♦emphasized tlit? financial control which
€4 li. ed.
the London board of* directors exercised,
and held that there was evidence to sup-
port the finding of the commissioners
that the head and seat and controlling
power of the company remained in Eng-
land, with the board of directors of the
oompany; hence, that a trade was car-
ried on in England, within the meaning
of the Income Tax Law.
The question of control has been held
determinative even where the English
company exercises such control through
the ownership of all or a majority of
the stock of a foreign company, which
actually carries on the business.
An English corporation organized un-
der the English Companies Act, and
registered in England, which acquired
all but fourteen of the fifty thousand,
eight hundred and eighty-six shares of
an American brewing company, and
whieh exercised control over the Amer-
ican company, was held to be carrying
on the tiade of the American company,
and to be assessable upon the entire^
profits. St. Louis Breweries v. Ap-*
thorpe, 79 L. T. N. S. 551, 47 Week.
Rep. 334, 15 Times L. R. 112, 63 J. P.
135.
A similar decision upon similar facts
appears in Apthorpe v. Peter Schoen-
hofen Brewing Co. 80 L. T. N. S. 395, 15
Times L. R. 245, where an English com-
pany was organized for the purpose of
acquiring and operating a brewery in
the state of Illinois, and, in order to
avoid any difficulty in connection with
the Illinois state laws, which prevented
alien corporations aqd persons from
holding real property in the state, main-
tained the American corporate organi-
zation to operate the brewery, and ac-
quired all but three of the shares of
stock in the American corporation. The
English company was held to be carry-
ing on the brewery trade in England,
within the meaning of the Income Tax
Laws, where the control of the Amer-
ican business rested with the English
corporation.
74H
SUPREME COURT OF THE UNITED STATES.
Oct.
03, 76, 56 L. ed. 96, 101, 32 Sup. Ct.
Rep, 13; Liverpool & L. & G. Ins. Co. v.
Board of Assessors, 221 U. S. 346, 354,
55 L. ed. 762, 767, L.R.A.1915C, 903, 31
Sup. Ct. Rep. 550; Green v. Van Bus-
kirk, 7 Wall. 139, 150, 19 L. ed. 109,
113; Story, Confl. L. § 550; Metropoli-
tan L. Ins. Co. V. New Orleans, 205 U.
S. 395, 399, 61 L. ed. 863, 855, 27 Sup.
Ct. Rep. 499; New York ex rel. Burke
V. Wells, 208 U. S. 14, 52 L. ed. 370, 28
Sup. Ct. Rep. 193; De Ganay v. Lederer,
250 U. S. 376, 63 L. ed. 1042, 39 Sup. Ct.
Rep. 524; People ex rel. Hoyt v. Tax
& A. Comrs. 23 N. Y. 240; Com. ▼. West
India Oil Ref. Co. 138 Ky. 828, 36
L.R.A.(N.S.) 295, 129 S. W. 301; Leav-
ell V. Blades, 237 Mo. 695, 141 S. W.
893; Robinson v. Dover, 59 N. H. 521;
Fidelity & C. Trust Co. v. Louisville,
245 U. S. 54, 62 L. ed. 145, L.B.A.1918C.
124, 38 Sup. Ct. Rep. 40; Kin^pnan
County V. Leonard, 57 Kan. 635, 34
L.R.A. 810, 57 Am. St. Rep. 347, 46
Pac. 960; Putnam, v. Middleborougrb,
209 Mass. 456, 95 N. E. 749; Newcomb
Frank Jones Btewing Co. v. Ap-
thorpe, 15 Times L. R. 113, is decided
upon the authority of Apthorpe v. Peter
Schoenhofen Brewing Co. supra.
But stock control by an English cor-
poration of a foreign corporation which
transacts business abroad does not, of
itself, make the business that of the
English company. This is true even if
the English corporation owns the entire
stock in the foreign company. Gram-
ophone & Typewriters v. Stanley [1908]
2 K. B. 89, 77 L. J. K. B. N. S. 834, 99
L. T. N. S. 39, 24 Times L. R. 480, 15
Manson, 251. The question has been
stated to be, ''Whose is the business
that is being carried on?^' Kodak v.
Clark [1902] 2 K B. 450, 71 L. J. K.
B. N. S. 791, 67 J. P. 26, 51 Week. Rep.
75, 18 Times L. R. 686, aflarmed in
[1903] 1 K. B. 505, 72 L. J. K. B. N. S.
369, 67 J. P. 213, 51 Week. Rep. 459, 88
U T. N. S. 166, 19 Times L. R. 243.
In the case last above cited, an' Eng-
lish company which was organised to
and did purchase 98 per cent of the
shares of stock of an American com-
pany which carried on its business en-
tirely in America was held not charge-
able with an income tax upon the profits
made by the American company, al-
though there was control exercised by
the English company. It is stated by
Phillimore, J.: "I do not think it can
possibly be said that Kodak, Limited,
though controlling and managing the
Eastman Kodak Company, is, when the
Eastman Kodak Company carry on busi-
ness under its control, thereby itself
carrying on the business. The Eastman
Kodak Company carries on business for
its 100 per cent of shareholders; 98 per
oent of those are the English company,
and it has to carry on its business, so
far as it lawfully can, under the control
of and in obedience to the English com-
pany and its nominees; but it does not
carry on the business for the English
company, but for the Engliah company
plus the 2 per cent in America; and
744
when one comes to consider what the
r^ations between the two eompaniea
are, one sefis that it is very important
to keep that provision in view." Phil-
limore, J., very clearly states the ques-
tions arising in these eases as follows:
"In this case there seems to be a mixing
up of two very different questions.
First of all, Whose business is it that
is being carried on abroad! That is
one question. A company may be
formcfd in England, and there may be a
sham -company in America purporting
to be carrying on business, and yet it
may be the business of the Eiiglish com-
pany, earned on abroad. That is one
question. Then the other question is»
If the business is really carried on
abroad, but the directoratei — the com-
pany that carries it on — ^is in En^and,
where is the control, for the purpose of
settling the question of taxation f One
question is. Whose business is itf The
other is, Who controls the one business t
Now the San Paulo (Brazilian) R. Co.
Case' [1896] A. C. 31, 65 L. J. Q. B. N.
S. 161, 73 L. T. X. S. 538, 44 Week. Rep.
336, 60 J. P. 48, 452, snpsm, and the
Fntnk Jones. Brewing Co. Case, supra
(and some others), deal with the qae»-
tion of where is the control. There is
one business carried on in America —
one business carried on abroad; where
is the control? If it is in England,
then the business is partially carried on
in England, and is taxable here. The
other class of cases do not deal with
that They deal with the question of
whose is the business carried on abroad.
— is it the business of the English com-
pany, or is it the business of somcoL-
else? If it is tliu business of someone
else, it matters not that the English
company control it, supervise it, admin-
ister it; it is the business of the foreign
company, and the foreign compai^ own
it.'' Accordingly, the Engliah oompany
was held not assessable upon the full
profits made bv the American company.
T' - which the Englisib
t5^ V. 8^
i'jiy.
MAGUIRE V. TREFRY.
V. Paige, 224 Mass. 516, 113 N. E. 458;
Com. V. B. F. Avery A Sens, 163 Ky.
828, 174 S. W. 618; Kinehart v. How-
ard, 90 Md. 1, 44 Atl. 1040; Lewis v.
Chester County, 60 Pa. 325; Gardiner
V. Treasurer, 225 Mass. 355, 114 N. E.
617.
The cestui que trust has an estate,
not a bare right of action.
Brown v. Fletcher, 235 U. S. 589, 699,
59 L. ed. 374, 378, 35 Sup. Ct. Rep. 154;
Currier v. Studley, 159 Mass. 22, 33 N.
E. 709; Sawyer v. Cook, 188 Mass. 163,
74 N. E. 356; Freeman v. Baldwin, 13
Ala. 262; Dana v. Treasurer, 227 Mass.
562, 116 N. E. 941; Kinney v. Treasurer
(Kinney v. Stevens) 207 Mass. 368, 35
Lil.A(N.S.) 784, 93 N. B. 586, Ann.
Cas. 1912A, 902.
Even were the cestui que trust remit-
ted to a personal right only, the deci-
sion should be in her favor.
Jenkins v. Lester, 131 Mass. 357;
Union Refrigerator Transit Co. v. Ken-
tucky, 199 U. S. 194, 202, 204, 50 L. ed.
150, 152, 153, 26 Sup. Ct. Rep. 36, 4
courts make, and which, in some cases,
is very shadowy, is between exercising
a controlling iniluenee as stockholder,
the business remaining that of the for-
eign corporation, and actually making
the business of the foreign corporation
that ef Uie English, or, in other words,
using the foreign corporation as a mere
agent of the English.
In some eases involving companies,
the question of residence has been em*
phasized; but this term seems to be
used in a sense S3monomous with con-
trol; for in De Beers Consol. Mines v.
Howe [1906] A. C. 455, 95 L. T. N. S.
221, 22 Times L. R. 766, 75 L. J. K. B.
N. S. 858, 13 Manson, 394, where Lord
Lorebum, Ld. Ch., states the question
on appeal to be whether the company
^'ought to be assessed to income tax on
the footing that it is a company res-
ident in the United Kingdom;" he fur-
ther says that a company resides where
its real business is carried on, and' its
real business is carried on where the
central management and control actual-
ly abide. The company involved in the
De Beers Consol. Mines Cage was regis-
tered in South Africa, with its head of-
fice formally at Kimberley. The gen-
eral meetings have always been held at
that place. The profits of the company
were made out of diamonds min^ in
South Africa, and sold under annual
contracts to a syndicate for delivery- in
South Africa upon terms of division of
profits realized on resale between the
<;ompany and the syndicate. Some of
the directors and life governors lived in
South Africa, and there were directors'
meetings at Kimberley as well as in
liondon, but the majority of directors
and life governors lived in England,
and the directors' meetings in London
were the meetings where the real con-
trol was always exercised in practically
all the important business of the com-
pany except the mining operations.
London had always controlled the nego-
tiation "of the contracts with the dia-
«4 li. ea.
mond syndicate, had determined the pol-
icy in the disposal of diamonds and
other assets, the working and develop-
ment of mines, the application of prof-
its, and the appointment of directors.
London had also always controlled mat-
ters that required to be determined by
the majority of all the directors, which
included all questions of expenditure
except wages, materials, and such like
at the mines, and a limited sum which
might be spent by the directors at Kim-
berley. The commissioners arrived at
the conclusion: "(1) That the trade or
business of the appellant company con-
stituted one trade or business, and was
carried on and exercised by the appel-
lant company within the United Kingr
dom at their London office. <2) That
the head and seat and directing power
of the affairs of the appellant company
were at the office in London, from
whence the chief operations of the com-
pany, both in the United Kingdom and
elsewhere, were in fact controlled, man-
aged, and directed." And the court
concludes that the company was resi-
dent within the United Kingdom for
purposes 4>f income tax, and must be
assessed on that footing.
A company incorporated and regis-
tered in New Zealand, but which was
managed and controlled in reality in
London, was held resident of the United
Kingdom, and assessable there, in New
Zealand Shipping Co. v. Stephens, 96
L. T. N. S. 50, 23 Times L. R. 213,
affirmed by court of appeal in 24 Times
L. R. 172.
In an early case the residence of the
corporation was treated as determina-
tive of the question whether it was as-
sessable upon its entire income or only
on so much as was remitted to England.
The court, having reached the conclu-
sion that the company was resident in
England, held it taxable on its entire
profits, and not merely on so much as
wa.«* remitted to England. Cesena Sulphur
Co. V. Nicholson. L. R: 1 Kxch. i>iv.
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm.
Ann. Cas. 493; Selliger v. Kentucky,
213 U. S, 200, 205, 206, 53 L. ed. 761,
764> 29 Sup. Ct. Rep, 449.
Mr. William Harold Hitchcock ar-
gued the cause, and, with Mr. J. Weston
Allen, Attorney General of Massachu-
setts, filed a brief for defendant in
error:
The sovereign of the domicil of the
«»wner of personal property has juris-
diction to tax that property, whatever
its character, or wherever it or the doc-
uments evidencing it are situated.
KirUand v. Hotchkiss, 100 U. S. 491,
25 L. ed. 658; Hawley v. Maiden, 232
U. 8. 1, 58 L. ed. 477, 34 Sup. Ct. Rep.
201, Ann. Cas. 1916C, 842; Bullen v.
Wisconsin, 240 U. S. 625, 631, 60 L. ed.
830, 835, 36 Sup. Ct. Rep. 473; Fidelity
& C. Trust Co. V. Louisville, 245 U. S.
54, 62 L. ed. 145, L.RA.1918C, 124, 38
Sup. Ct. Rep. 40; Southern P. Co. v.
Kentucky, 222 U. S. 63, 56 L. ed. 96, 32
Sup. Ct. Rep. 13; New Orleans v. Stem-
pel, 175 U. S. 309, 322, 44 L. ed. 174,
181, 20 Sup. Ct. Rep. 110; Selliger v.
Kentucky, 213 U. S. 200, 204, 53 L. ed.
428, 45 L. J. Exch. N. S. 821, 35 L. T.
N. S. 275, 25 Week. Rep. 71. Two com-
panies were involved in this decision,
the one organized for the purpose of
carrying on the trade or business of
sulphur miners, manufacturers, or mer-
chants, and the other for purchasing
and oj)erating certain jute mills in In-
dia. The sulphur company was organ-
ized under the English Joint Stock
Companies Act, and was located in Eng-
land, having an office there. It was
formed for the purpose of developing
and working mines of sulphur in Italy.
The general meetings of the company
were held in England, where the Erec-
tors exercised general supervision over
the company. The manufacturing part
of the business was done in Italy. Sub-
sequent to its organization in England
the company was registered in Italy for
all purposes, all the companjr's profits
were earned in Italy, and only so much
of the profits as was required to pay
dividends to the English shareholders
was sent to the United Kingdom. The
jute mill company was organized under
the Company's Act of En^and, and was
not registered elsewhere than in Eng-
land. It was orgfanized for the purpose
of taking over the business, good will,
and plant of certain jute mills in India.
The meetings of the directors were held
at the office of one of the directors in
England. The board of directors exer-
cised a general control over the busi-
ness. The profits were all made in India,
and the only part that was sent to Eng-
land was the amount transmitted to pay
English expenses and dividends to Eng'
lish shareholders. Under these circum-
stances, both companies were held to re-
side in England, and, this being true,
were assessed upon the full amount of
the profits, without regard to where the
trade was carried on, as is the case in
rhe subsequent English cases.
Upon tne authority of the Cescna
Casfl, a company incorporated under the
English Joint Stock Companies Act,
and registered in England, which eon-
ducted gas works in foreign countries,
was held taxable on its entire inccmie,
and not merely on so much as was re-
mitted to England. Imperial Continen-
tal Gas Asso. V. Nicholson, 37 L. T. N. S.
717. See American Thread Co. v. Joyce,
108 L. T. N. S. 353, 29 Times L. R. 266,
57 Sol. Jo. 321, 50 Scot L. R. 665, supra.
In two cases not much stress has been
laid upon the control exercised by the
English company, but the place where
the business is carried on is held de-
terminative. Bartholomay Brewing Co.
y. Wyatt and Nobel Dynamite Trost Co.
V. Wyatt [1893] 2 Q. B. 499, 62 L. J. Q.
B. N. 8. 525, 5 Reports, 564, 68 L. T.
N. S. 561> 42 Week. Rep. 173, 58 J. P.
133. The authority of these cases has
been doubted in subsequent cases. Ko-
dak V. Clark [1902] 2 K. B. 460, 71
L. J. K. B. N. S. 791, 67 J. P. 26, 51
Week. Rep. 75, 18 Times L. R. 686; St.
Louis Breweries v. Apthorpe, 79 L. T.
N. S. 551, 47 Week. Rep. 834, 15 Times
L. R. 112, 63 J. P. 135. In Bartholomay
Brewing Co. v. Wyatt, supra, a British
company formed to acquire and work
breweries in the United States, which,
being unable, because of the Ainerican
law, to hold the property in the United
States, organized an American company
to be the owner of the property, all of
the shares of the American company ex-
cept those necessary to qualify the
American directors or trustees beinpr
held by the English company, the shares
in which were held partly in England
and partly in America, — ^was held tax-
able only on so much of the profits of
the business, which was carried on
wholly in America, as was received in
England. The supreme management
and direction of the company rested
with the English directors, who were
periodically informed of the estimated
results of the business in America, and
of the amount estimated to be available
95S 17. 9.
1»1«.
MAdllKE \. TKKFKY.
761, 763, 29 Sup. Ct. Uep. 449; Buck v.
Beach, 206 U. IS. 302, 51 L. ed. 1106, 27
Sup. Ct Rep. 712, 11 Ann. Cas. 732;
Wheeler v. Sohmer, 233 U. S. 434, 58
L. ed. 1030, 34 Sup. Ct. Rep. 607; Bona.-
parte r. Appeal Tax Ct. 104 U. S. 592,
26 L. ed. 845; Liverpool & L. & G. Ins.
Co. V. Board of Assessors, 221 U. S. 346,
354, 55 L. ed. 762, 767, L.R.A.1915C,
903, 31 Sup. Ct. Rep. 550; Metropol-
itan L. Ins. Co. V. New Orleans, 205 U.
S. 395, 51 L. ed. 853, 27 Sup. Ct. Rep.
499; Blackstone v. Miller, 188 U. S. 189,
205, 47 L. ed. 439, 444, 23 Sup. Ct. Rep.
277; Bliss v. BUss, 221 Mass. 201,
L.R«A..1916A, 889, 109 N. E. 148; Sav-
ings & Lfc Soc. v. Multnomah County,
169 U. S. 421, 42 L. ed. 803, 18 Sup. Ct.
Bep. 392; Kinney v. Treasurer (Kinney
y. Stevens) 207 Mass. 368, 35 L.R.A.
(N.S.) 784, 93 N. E. 586, Ann. Cas.
1912A, 902; Hawkridge v. Treasurer,
223 Mass. 134, 111 N. E. 707.
The right of the beneficiary of a trust
is purely a right in personam, — a right
that an individual trustee act in his
ownership of property in a specified
way.
for dividends. They prepared balance
sheets, adding the English to the local
expenses, and declared such dividends
as they saw fit. The amount of the div-
idends for English shareholders in the
Enghah company was remitted to Eng-
land; the amount required for Amer-
icaa shareholders in the English com-
pany was retained and distributed in
America. The court holds that this case
falWi within the rule announced in Col-
quhoun y. Brooks, L. R. 14 App. Cas.
493, 50 K J. Q. B. N. S. 53, 61 L. T. N. S.
W8, 38 Week. Rep. 289, 54 J. P. 277,
siqpra, but Wright, J., states that there
is another way in which the same con-
clusion may be reached on different
grounds: ^I think that, in point of law,
whatever control is exercised by the
English company is exercised by it as
the holder of practically all the shares
in the American company; and if that
ia 80, the English company ciumot be
properlj said to carry on the bnsineBs of
the American company at all.''
Decided at the same time was the case
of Nobel Dynamite Trust Co. v. Wyatt,
supra, in which it was held that an Eng-
\im company organized to acquire and
operate certain companies dealing in ex-
plosives, and which did so acquire sev-
eral foreign companies, was taxable only
on so much of the profits of the foreign
companies as was received in England.
By direction of the board of directors
of the English company, the dividends
due from the foreign companies to the
foreign shareholders of the English
company were paid directly, instead of
being remitted to England. It was ad-
mitted, however, that the directors of
the English company could have direct-
ed the amount of the dividends to be
remitted to England, instead of being
retained in the foreign countries.
— wlutt eomstltutes m receipt of momey.
As shown in the "cases" above set out,
the result is dependent in some in- !
stances upon the "amount received" in »
04 li. ed.
the United Kingdom. When an amount
has been "received" there has given rise
to some dispute.
The interest on securities possessed
by an English life insurance company
outside of the United Kingdom, and
never remitted to England, is not re-
ceived in England, within the meaning
of case 4 of the Income Tax Law, al-
though such interest is taken into ac-
count by the English company in its
balance sheet, in order to ascertain the
profits of the year. Qresham Life
Assur. Soc. V. Bishop [1902] A. C. 287.
86 L. T. N. S. 093, 60 Week. Rep. 593,
71 L. J. K. B. N. S. 618, 66 J. P. 755,
18 Times L. R. 626.
It had previously been held in another
case in the Queen's bench division that
interest on investments in India, re-
ceived by an English insurance com-
pany at a branch in India, and entered
upon the accounts of the company, and
treated as if it had been received in
En^and, was assessable for income tax.
Universal Life Assur. Soc. v. Bishop, 81
L. T. N. S. 422, 68 L. J. Q. B. N. 8. 962,
64 J. P. 5.
A company which sends funds out of
the United Kingdom for investment
cannot arbitrarily treat funds subse-
quently sent back as repayment of cap-
ital.
In Scottish Provident Inst. v. Allan
[1903] A. C. 129, 88 L. T. N. S. 478, 67
J. P. 341, 72 L. J. P. C. N. S. 70, 19
Times L. R. 432, a mutual life assur-
ance society sent for investment pur-
poses, to Australia, the sum of one and
one-half million dollars in round num-
bers, and at the end of the period in
question had over two and a half mil-
lion there. From time to time the
Australian agents remitted sums to the
home office in Scotland, designating
them in each instance as the remittances
or repajrments of principal. The court
of session arrived at the conclusion that
the remittances were in fact remittances
747
SUPREME COURT OF THE UNITED STATES.
Oct. Tiaui»
2 Story, Eq. Jur. § 964; Langdell, Eq.
Jar. p. 5; 2 Holmes, Select Essays in
Anglo-American Legal History, 716;
Kildare v. Enstaee, 1 Vem. 419, 23
Eng. Reprint, 559; Massie v. Watts, 6
Craiich, 148, 3 L. ed. 181; Gardner v.
Ogden, 22 N. Y. 327, 78 Am. Dec. 192;
Penn v. Baltimore, l^Ves. Sr. 444, 27
Eng. Reprint, 1132; Brown v. Desmond,
100 Mass. 269; Hart v. Ransom, 110
U. S. 151, 164, 155, 28 L. ed. 101-103, 3
Sup. Ct. Rep. 586.
This right of the beneficiary is tax-
able at his domicil,
Peabody v. Treasurer, 215 Mass. 131,
102 N. E. 435; Hawley v. Maiden, 232
U. S. 1, 58 L. ed. 477, 34 Sup. Ct. Bep.
201, Ann. Gas. 1916C, 842; Bullen v.
Wisconsin, 240 U. S. 625, 631, 60 L. ed.
830, 835, 36 Sup. Ct. Rep. 473; Bellows
Falls Power Co. v. Com. 222 Mass, 51,
109 N. E. 891, Ann. Cas. 1916C, 834, 245
U. S. 630, 62 L. ed. 520, 38 Sup. Ct. Rep.
63; Frothingham v. Shaw, 175 Mass. 59,
78 Am. St. Rep. 475, 55 N. E. 623; Cor-
ry V. Baltimore, 196 U. S. 466, 49 L. ed.
556, 25 Sup. Ct. Rep. 297; Greves v.
Shaw, 173 Mass. 205, 53 N. E. 372; Re
of profits, and therefore subject to the
income tax, and this conclusion was sus-
tained by the House of Lords. The
Earl of Halsbury, Ld. Ch., states that
the ease gives rise to a question of fact;
that if the sum remitted was profits,
it was subject to the income tax, but if
it was a repayment of the principal, it
was not so subject. He further states
that if the parties would be able to
show that some part of the remittances
ought to be appropriated to capital, and
could make it apparent that the money
which was received was not' all profit,
but simply a payment of capital, it was
for them to make the showing; that
''prima facie, this remittance is a larp^
amount of profit (looking at the ^^-
ures) made by this trading company."
— wltat eonstttutes profits.
The question as to what constitutes
profits of a business has also arisen.
Investments made by a life insurance
company abroad, whether by reason of
an obligation to comply with local laws
or as a matter of business, to add to the
stability of the company, its profit-earn-
ing or its attractiveness to foreign and
colonial insurers, are in every sense of
the term business investments, and the
income derivable therefrom is taxable
under case 1, relating to the profits of
trade, and not necessarily taxable as in-
terest arising from securities abroad,
liiverpool & L. k G. Ins. Co. v. Bennett
[1913] A. C. 610, 109 L. T. N. S. 483, 6
Tax Cas. 327, 82 L. J. K. B. N. S. 1221,
29 Times L. R. 757, 57 Sol. Jo. 739.
Fiord Shaw, of Dunfermline, states that
it is not neeessarv to decide whether
case 4, which relates to the duty to be
charged in respect of interest arising
from securities abroad, applies or not;
that it is well settled that if a sufficient
warrant be found in the statute for tax-
ation under alternative heads, the alter-
native lies with the taxing authority.
In this case they selected case 1, — a
ondusion which the House of Tx)rd8
sustains. The investments involved in-
this case fell within three classes; class
A consists of investments made in vari-
ous states of the United States and in
Canada as deposits required by the lo-
cal law as a condition of carrying on
fire insurance business in the state in
question or in the Dominion, as the case
might be; and so long as the company
carried on business therein, it was un-
able to recover possession of any part
of the sum so deposited, the same being
held as a fund out of which, in case of
nonpayment of claims by the company,
the policyholders in the said states and
Dominion could be paid. Class B con-
sists of investments made in the state
of New York and in Canada as deposits
required by the local law, not as a con-
dition of carrying on business, but in
order to enable the company to accept
and retain risks beyond a certain limit
Class C consists of investments made in
the United States, Canada, and Aus-
tralia, not by reason of any legal obli-
gation, but for the purpose of deriving
income or profits from moneys of the
company. The income from all three
classes was held to be profit from the
business, as above stated. Compare
with Norwich Union F. Ins. Co. v.
Magee, infra.
^branolt oMke^B,
In the case of an English company
having foreign branch oflSces, a question
as to the status of the profits of the
branch office has arisen.
A bank with head office in London
and branches in Mexico and Lima was
held, in Tjondon Bank v. Apthorpe
[1891] 2 Q. H. 378, 65 L. T. N. S. 601.
60 L. J. Q. B. N. 8. 653, 39 Week. Rep.
564, 56 J. P. 86, to be a single business,
which was carried on in the United
Kingdom, and therefore the entire prof-
its were taxable, and not merely so
much as was remitted to the United
Kingdom.
An insurance companv with head of-
S5a r. ft«
1919.
MAG LIRE V. TREFRY.
13
Bronson, 150 N. Y. 1, 34 L.R.A. 238, 55
Am. St. Rep. 632, 44 N. E. 707; Hunt
V. Perry, 166 Mass. 287, 43 N. E. 103.
Cilizens of Massachusetts in many
instances must go to the courts of other
• states to enforce their rights in foreign
corporations in which they are share-
holders. . Yet, in all cases, shares of
stock in such corporations, held by in-
habitants of Massachusetts, are there
taxable.
Smith V. Mutual L. Ins. Co. 14 Allen,
342; Williston v. Michigan S. & N. I.
R. Co. 13 Allen, 400; Kimball v. St.
Louis & S. P. R. Co. 157 Mass. 7, 34
Am. St. Rep. 250, 31 N. E. 697; Rich-
ards V. Security Mut. L. Ins. Co. 230
Mass. 320, 119 N. E. 744; Hawley v.
Maiden, 232 U. S. 1, 58 L. ed. 477, 34
Sup. Ct. Rep. 201, Ann. Cas. 1916C,
842.
Mr. Justice Day delivered the opinion
of the court :
Massachusetts has a statute providing
for a tax upon incomes (Mass. Gen. Stat.
1916, chap. 269, § 9). In the act impos-
ing the tax it is provided: ''If an in-
fices in London and branch offices in
America and in New Zealand is taxable
upon profits made in the branches, and
not remitted to the United Kingdom,
but maintained in those countries for
the purpose of increasing its reserves
there, and thus meeting the require-
ments of the law. Norwich Union F.
Ins. Co. V. Magee, 73 L. T. N. S. 733, 44
Week. Rep. 384. Compare with Liver-
pool & Jm & Q, Ins. Co. v. Bennett^
supra.
•p" deductiom for expenses.
Some cases have related to the de-
duction of expenses incurred in trans-
acting the foreign business.
An English water company operating
in Alexandria cannot deduct from the
amount of its profits interest paid on
certain debentures given for money bor-
rowed by the company, since the fourth
rule of § 100 of 5 & 6 Vict. chap. 35,
expressly declares that, in estimating
profits, ^o deduction shall be made on
account of any annual interest payable
out of such profits or gains.'' Alexan-
dria Water Co. v. Musgrave, L. R. 11
Q. B. Div. 174, 52 L. J. Q. B. N. S. 349,
49 L. T. N. 8. 287, 32 Week. Rep. 146.
In Stevens v. Boustead [1916] 2 K. B.
560, 85 L. J. K. B. N. S. 1731, 115 L. T.
N. S. 381, 32 Times L. R. 661, 61 Sol.
Jo. 10, affirmed by court of appeal in
[1917] W. N. 382, 34 Times L. R. 143,
144 L. T. Jo. 125, the annual value of
premises in which business was carried
on. by a Lohdon firm in Singapore and
Penang was held to be a proper deduc-
tion in arriving at the profits or gains
assessable.
»for«icn iATestments.
The majority of the English cases
have related to profits of trade or busi-
ness carried on abroad. Some cases,
however, have related to foreign invest-
ments.
Payments made to the guardian of in-
fants in England by the American trus-
t4 li. ed.
tees under an American will, who exer-
cise their discretionary power as to such
payments, were held to be income with-
in the meaning of the Income Tax Law,
in Drummond v. Collins [1914] 2 K. B.
643, 83 L. J. K. B. N. S. 720, 110 L. T.
N. S. 653, 30 Times L. R. 353. Under
the will in question the infants were not
given any share in the estate except as
the uncontrolled discretion of the trus-
tees might determine, until they at-
tained the age of twenty-five years,
from which time the trustees were di-
rected to pay over one half of the net
income of the respective shares to the
respective infants, and accumulate the
balance until they should attain the age
of thirty-five years, after which the en-
tire income was to be pnid to them.
The court holds the trust fund to be a
possession in America even before the
children attain the age of twenty-five
years, and any sums remitted by the
trustees under their discretion to be in-
come, as above stated.
The income from shares in a foreign
company, held by trustees domiciled and
resident in the United Kingdom, which
is paid direct to a foreign beneficiary,
not being remitted to .the United King-
dom, is not income accruing to a person
residing in the United Kingdom, the
mere fact that the trustees are domi-
ciled and resident in the United King-
dom not being sufficient to charge this
income with the tax. Williams v. Sing-
er [1919] 2 K. B. 108, 88 L. J. K. B. N.
S. 757, 121 L. T. N. S. 108, 35 Times L.
R. 455, 63 Sol. Jo. 496, affirmed by the
House of Lords in 36 Times L. R. 661.
Under the fourth case of Schedule D
of § 100 of the Income Tax Act 1842,
income from foreign securities is to be
computed on the full amount of the
sums received or to be received in
Great Britain during the current year;
while, under the fifth case, income from
foreign possessions is to be computed
740
13-16
SUPREME COL irr OF THE UNITED STATES.
Oct. TiBBM,
habitant of this commonwealth receives
income from one or more executors, ad-
ministrators or trustees, none of whom is
an inhabitant of this commonwealth or
ha:3 derived liis appointment from a court
of this commonwealth, such income shall
be subject to the taxes assessed by this
act, according to the nature of the income
received by the e ecutoi*s, administrators
or trustees."
The plaintiff in error is a resident of
I lie state of Massachusetts, and was taxed
upon income from a trust created by the
will of one Matilda P. MacArthur, for-
merly of Philadelphia. The plaintiff in
error, under the will of the decedent, was
the beneficiary of a trust thereby created.
The securities were held in trust by the
Girard Trust Company of Philadelphia.
Those which wer^ directly taxable to the
trustee were held exempt from taxation
in Massachuestts under the terms of the
statute of that [14] state. The se-
curities the income from which was
held taxable in Massachusetts con-
sisted of the bonds of three corpo-
rations and certain certificates of the
Southern Railway Equipment Trust.
These securities were held in the pos*
session of the trustee in Philadelphia.
The trast was being administered under
the laws of Pennsylvania. The supreme
judicial court of Massachusetts held the
tax to be valid. 230 Mass. 503, 120 N. E.
162.
Of the nature of the tax the chief
justice of Massachusetts, speaking for
the supreme judicial court, said: "The
income tax is measured by reference to
the riches of the person taxed actually
made available to him for valuable use
during a g^ven period. It establisbes a
basis of taxation directly proportioned
to ability to bear the burden. It is
founded upon th^ protection afforded to
the recipient of the income by the govern-
ment of the commonwealth of his resi-
dence in bis person, in his right to receive
the income, and in his enjoyment of the
income when in his possession. That
government provides for him all the ad-
vantages of living in safety and in
freedom, and of being protected by law.
It gives security to life, liberty, and the
other privileges of dwelling in a civilized
community. It exacts in return a contri-
bution to the support of that government,
measured by and based upon the income,
in the fruition of which it defends him
from unjust interference. It is true of
the present tax, as was said by Chief Jus-
tice Shaw in Bates v. Boston, 5 Cush. 93,
at page 99: The assessment does not
touch the fund, or control it; nor does jt
interfere with the trustee in the exercise
of his proper duties; nor call him, nor
hold him, to any accountability. It af-
fects only the income, after it has been
paid by the trustee' to the beneficiary."
We see no reason to doubt the oorreict-
ness of this view of the nature and effect
of the Massachusetts statute, and shall
accept it for the purpose of considering
the Federal [15] question before ns,
which arises from the contention of
the plaintiff in error that the im-
position of the tax was a denial of
dne process of law within the pro-
tection of the 14th Amendment to
the Federal Constitution, beeause, it
is alleged, the effect of the statute is to
subject property to taxation which is be-
yond the limits and outside the jurisdie-
tion of the state. To support this
contention the plaintiff in error relies
primarily upon the decision of this oonxt
in Union Refrigerator Transit Co. v.
Kentuckv, 199 U. 8. 194, 60 L. cd. 150,
26 Stip.'Ct. Rep. 36, 4 Ann. Cas. 493.
In that case we held that tangible, per-
sonal property, permanently located in
another state than that of thfi owner,
where it had acquired a situs, and was
taxed irrespective of the domicil of the
on an average of the sums annually re-
ceived for three years preceding the
assessment.
Shares of stock held by a resident of
the United Kingdom in an American
company are foreign possessions, and
the computation of the tax thereon
should be based upon the average in-
come therefrom for the three preceding
years, and not on the income in the
year of assessment. Singer v. Williams
fl919] 2 K. B. 94, 88 L. J. K. B. N. S.
766, 121 L. T. N. S. 684, 35 Times L. R.
364, affirmed by the House of Lords in
36 Times L. R. 659.
See Gresham lAfe Assur. Soc. v.
750
Bishop [1902] A. C. 287, 86 L. T. N. S
693, 50 Week. Rep. 593, 71 L. J. K. B
N. S. 618, 66 J. P. 755, 18 Times I^ R
626; Universal Life Assur. Soc. v
Bishop, 81 K T. N. S. 422, 68 l^ J; Q.
B. N. S. 962, 64 J. P. 5; Scottish Provi
dent Inst. v. Allan [19031 A. C. 129, 88
L. T. N. S. 478, 67 J. P. 341, 72 L. J.
P. C. N. S. 70, 19 Times L. R. 432; Liv-
erpool & L. & G. Ins. Co. v. Bennett
[1913] A. C. 610, 109 L. T. N. S. 483.
82 L. J. K. B. N. S. 1221, 6 Tax Cas. 327.
29 Times L. R. 757, 57 Sol. Jo. 739; and
Norwich Uniotp P. Ins. Co. v. Magee, 73
L. T. N. S. 733, 44 Week. Rep. 384.
supra.
S5a r. 6.
1910.
WARD V. IX)VK COUNTY.
15-17
owner, was beyond the taxing power of
the state, and that an attempt to tax such
property at the owner's domicil was a
denial of due process of law under the
14th Amendment. This ruling was made
with reference to cars of the Tran:3it
Company permanently employed outside
the state of the owner's residence. In
^hat ease this court, in the opinion of Mr.
Justice Brown, speaking for it, expressly
said that the taxation of intangible per-
sonal property was not involved. 199 U.
S. 211.
It is true that in some instances we
have held that bonds and bills and notes,
although evidences. of debt, have come to
bo regarded as property which may ac-
<]uire a taxable situs at the place where
they are kept, whidi may be dsewhere
thajQ at the domicil of the owner. These
cases rest upon the principle that such
instruments are more than mere evidences
of debt, and may be taxed in the juris-
diction where located, and where they
receive tke protection of local law and
authority. Blackstone v. MilleTf 188 U.
S. 189, 206, 47 L. ed. 439, 445, 23 Sup.
Ct. Rep. 277; People ex rel. JeiSerson v.
Smith, 88 N. T. 576, 585. At the last
term we held in De Ganay v. Lederer,
250 U. S. 376, 63 L. ed. 1042, 39 Sup. Ct.
Rep. 524, that stocks and bonds issued
by domestic corporations, and mortgages
secured [16] on domestic real estate,
althou^ owned by an alien nonres-
ident, but in the hands of an agent
in this country with authority to deal
with them, were subject to the Income
Tax Law of October 3, 1913 (38 Stat,
at L. 166, chap. 16, 4 Fed. Stat. Anno.
2d ed. p. 236).
In the present case we are not dealing
with the right to tax securities which have
acquired a local situs, but are concerned
with the right of the state to tax the
beneficiary of a trust at her residence,
although the trust itself may be created
and aduiinistered under the laws of an^
other state.
In Fidelity & C. Trust Co. v. Louisville,
245 U. S. 54, 62 L. ed. 145, L.R.A.1918C,
124, 38 Sup. Ct. Rep. 40, we held that a
bank deposit of a resident of Kentucky
in the bank of another state, where it
was taxed, might be taxed as a credit
belonging to tibe resident of Kentucky.
In that case Union Refrigerator Transit
Co. V. Kentucky, supra, was distinguished,
and the principle was affirmed that the
state of the owner's domicil might tax
the credits of a resident, although evi-
denced by debts due from residents of
anothw 8*a*^e. This is the general rule
recognized in the maxim '^obitia sequun-
tur personam,** and justifying, except
under exceptional circumstances, the taxa-
tion of credits and beneficial interests in
property at the domicil of the owner.
We have pointed out in other decisions
that the principle of that maxim is not of
universal application, and may yield to
the exigencies of particular situations.
But we think it is applicable here.
It is true that the l^al title of the
property is held by the trustee in Penn-
sylvania. But it is so held for the bene-
fit of the beneficiary of the trust, and
such beneficiary has an equitable right,
title, and interest distinct from its legal
ownership. ''The legal owner holds the di-
rect and absolute dominion over the prop-
erty, in view of the law; but the income,
profits, or benefits thereof in his hands
belong wholly, or in part, to oUiers." 2
Story, Eq. 11th ed. § 964. It is this
property right belonging [17] to the
beneficiary, realized in the shape of in-
come, which is the subject-matter of the
tax under the statute of Massachusetts.
The beneficiary is. domiciled in Massa-
chusetts, has tjie protection of her laws,
and there receives and holds the income
from the trust property. We find noth-
ing in the 14th Amendment which pre-
vents the taxation in Massachusetts of an
interest of this character, thus owned and
enjoyed by a resident of the state. The
case presents no difference in principle
from the taxation of credits evidenced by
the obligations of persons who are out-
side of the state, which are held taxable
at the domicil of the owner. Kirtland
V. Hotchkiss, 1<)0 U. S. 491, 25 L. ed. 558.
We find no error in the judgment and
the same is affirmed.
Dissenting, Mr. Justice McBeynolds.
OOLEMAN J. WARD et al., Petitioners*
V.
BOARD OF COUNTY COMMISSIONERS
OF LOVE COUNTY, OKLAHOMA.
(See 8. C. Reporter's ed. 17-25.)
Certiorari to state coui*t — Federal ques-
tion — decision on non-Federal
ground.
1. Noh-Fcdcral grounds put forward
by the highest state court as the basis for
its decision, but which are plainly unten-
able, cannot serve to bring the case within
the rule that the Federal Supreme Court
will not review the judgment of a state
court where the latter has decided the case
upon an independent ground not within the
Federal objections taken, and that ground
is suflRcient to sustain the Judgment.
7.M
SUPREME COURT OF THE UXITED STATES.
Oct. T»ii,
Taxes — payment under protest — re-
covery back. ,.
2. Indian allottees who, through pend-
ing suits and otherwise, were objecting
and protesting that the collection of cer-
tain sums from them by a county as taxes
on their allotments was forbidden by a law
of Congress, cannot be said to have paid
such taxes voluntarily so as to defeat tnoir
right to compel restitution, where, notwith-
standing such protest, the county demanded
payment of the taxes, and by threaten-
ing to sell the lands and by actually sell-
ng other lands similarly situated made it
appear to such allottees that thev must
choose between paying the taxes and losing
their land, with the result that, to pre-
vent a sale and to avoid the imposition of
a penalty of 18 per cent, they yielded to
the county's demand and paid the taxes,
protesting and objecting at the time that
the same were illegal.
(For other cases, see Taxes, III. g, 2, to Di-
gest Sup. Ct. 1908.]
Taxes .— recsovery back — compulsory
payment.
3. No statutory authority is essential
to enable or require a county to refund
unlawful taxes collected by it by ooercive
mieans, although a portion of such taxes
may have been paid over after collection
to the state or to other municipal bodies.
[For other cases, see Taxes, III. g, 2, to Di-
gest Sup. Ct 1908.]
[No. 224.]
Submitted March 11, 1920. I>ecided April
26, 1920.
ON WRIT of Certiorari to the Supreme
Court of the State of Oklahoma to
review a judgment which reversed a
judgment of the District Court of Love
County, in that state, in favor of claim-
ants in a suit to recover back taxes paid
on Indian allotments. Reversed.
See same case below, — Okla. — , 173
Pac. 1060.
The facts are stated in the opinion.
Messrs. John Emerson Bennett and
George P. Glase submitted the cause for
Note. — On certiorari to state courts —
see notes to Andrews v. Virginian R. Co.
63 L. ed. U. S. 236, and Bruce v. Tobin,
62 L. ed. U. S. 123.
As to necessity and sufficiency of
statement of grounds in notice of pro-
test required as condition of recovering
back payment of an unlawful tax — see
note to Whitford v. Clarke, 36 L.R.A.
(N.S.) 476.
As to when taxes illegally assessed
may be recovered back — see notes to
Phelps V. New York, 2 L.R.A. 626; State
ex rel. McCarty v. Nelson, 4 L.R.A. 300;
and Erskine v. Van Arsdale, 21 L. ed.
U. S. 63.
752
petitioners. Mrs. Estelle Balfour Ben-
nett was on the brief:
The right of recovery herein rests
upon a violation of vested rights which
denies a right, title^ privilege, and im-
munity claimed under the laws of the
United States. The decision of the su-
preme court of Oklahoma operates to
impair and deny the treaty contract of
exemption within the contract clause of
the Federal Constitution.
Choate v. Trapp, 224 U. S. 665, 679,
56 L. ed. 941, 947, 32 Sup. Ct. Rep. 565;
New Jersey v. Wilson, 7 Cranch, 164, 3
L. ed. 303; Bronson v. Kinzie, 1 How.
311, 11 L. ed. 143; White v. Hart, 13
Wall. 646, 654, 20 L. ed. 685, 688; Green
v. Biddle, 8 Wheat. 1, 5 L. ed. 647;
Von Hoflfman v. Quincy, 4 Wall. 552, 18
L. ed. 409; Ogden v. SaunderS, 12
Wheat. 231, 6 L. ed. 611; Fletcher- v.
Peck, 6 Cranch, 87, 3 L. ed. 162; Sturges
V. Crowninshield, 4 Wheat 122, 4 L. ed.
529; Beers v. Haughton, 9 Pet. 369, 9
Im ed. 167; McCracken v. Hajrward, 2
How. 612, 11 L. ed. 399; Planters' Bank
V. Sharp, 6 How. 327, 12 L. ed. 468.
When the courts of Oklahoma excuse
the retention of the money taken in this
case by invoking a state rule of pubUe
policy, namely, the theory of voluntary
payment, and the theory that a decision
based upon the state eonstruction con-
stitutes a state question, this operates
by law to take property without due
process of law, and to deny Uie equal
protection of the law, guaranteed by
the Federal Constitution.
Raymond v. Chicago Union Traction
Co. 207 U. S. 36, 52 L. ed. 87, 28 Sup.
Ct. Rep. 7, 12 Ann. Cas. 757; Bx parU
Virginia, 100 U. S. 339, 370, 26 L. ed.
676, 687, 3 Am. Crim. Rep. 647; Bron-
son V. Kinzie, 1 How. 311, 11 L. ed. 143.
The voluntary-payment theory upon
which the respondent would defeat and
destroy the vested right of petitioners
is not the law, and, upon such theory,
counsel for respondent cannot success-
fully maintain in this court the right of
Love county to retain money in its
hands wrongfully received by it, which,
in equity and good conscience, it is not
entitled to retain.
Atchison, T. & S. F. R. Co. v. O'Connor,
223 U. S. 280, 56 L. ed. 436, 32 Sup. Ct.
Rep. 216, Ann. Cas, 1913C, 1050; Union
P. R. Co. V. Public Service Commission,*
248 U. S. 67, 63 L. ed. 131, P.U.R.1919B,
315, 39 Sup. Ct. Rep. 24.
It was early laid down as a rule, by
this court, that counties could not re-
tain money which had been received
contrary to law.
253 U. 8.
1910.
WARD V. LOVE COUNTY.
Louisiana v. Wood, 102 U. S. 294, 299,
26 L. ed. 153, 155; Marsh v. Fulton
County, 10 Wall. 676, 19 L. ed. 1040;
Chapman v. Douglas County, 107 U. S.
348, 27 L. ed. 378, 2 Sup. Ct. Rep. 62.
A state court cannot, by resting its
judgment upon some ground of local or
•general law, defeat the appellate juris*
diction, of the Supreme Court of the
United States, if a Federal right or im-
munity which, if recognized and en-
forced, would require a different judg-
ment, is specially set up or claimed.
Chicago^ B. & Q. R. Co. v. Illinois,
200 U. S. 501, 50 L. ed. 596, 26 Sup. Ct.
Rep. 341, 4 Ann. Gas. 1175; West Chi-
cago Street R. Co. v. Illinois, 201 U. S.
506, 50 L. ed. 845, 26 Sup. Ct. Rep. 518;
Sage v. Hampe, 235 U. S. 99, 59 L. ed.
147, 35 Sup. Ct. Rep. 94; Joy v. St.
Louis, 201 U. S. 332, 50 L. ed. 776, 26
Sup. Ct Rep. 478; Talbot v. First Nat.
Bank, 185 U. S. 172, 46 L. ed. 857, 22
Sun. Ct. Rep. 612; Missouri, K. & T. R.
Co. V. Elliott, 184 U. S. 530, 46 L. ed.
673, 22 Sup. Ct. Rep. 446; McCullough
V. Virginia, 172 U. S. 102, 43 L. ed. 382,
19 Sup. Ct. Rep. 134; Murray v. Charles-
ton, 96 U. S. 432, 24 L. ed. 760; Cur-
ran v; Arkansas, 15 How. 304; 14 L. ed*
705.
Moneys paid under such circum-
stances as in this cause are, without a
doubt, paid under coercion and duress,
and are not voluntary.
Atchison, T. & S. F. R. Co. v. O'Con-
nor, supra; Union P. R. Co. v. Public
Service Commission, supra; Patton v.
Brady, 184 U. S. 608, 614, 46 L. ed. 713,
717, 22 Sup. Ct. Rep. 493; Robertson v.
Frank Bros. Co. 132 U. S. 17, 27, 33
L. ed. 236, 239, 10 Sup. Ct. Rep. 5;
Swift Co. V. United States, 111 U. S.
22, 28, 28 L. ed. 341, 343, 4 Sup. Ct
Rep. 244; Maxwell v. Griswold, 10 How.
242, 256, 13 L. ed. 405, 411; State Ton-
nage Tax Cases (Cox v. Lott) 12 Wall
204, 220, 20 L. ed. 370, 375; Herold v.
Kahn, 86 C. C. A. 598, 159 Fed. 614.
There were pending at the time of
collection of the sums paid by petition-
ers to Love county, suits to enjoin the
collection of the purported tax, which
suits were sufficient notice to the coun-
ty of the taxpayers' claim to the money;
and it is therefore error for the supreme
court of Oklahoma to hold that the re-
fund here demanded cannot be had be-
cause the county has distributed the tax
money to the various municipal subdi-
visions of the county.
Du Bois V. Lake County, 10 Ind. App.
347, 37 N. E. 1057; Greenabanm v.
King, 4 Kan. 332, 96 Am. Dec. 172;
•4 £. ed.
^ Shoemaker v. Grant County, 36 Ind.
175; United States Exp. Co. v. AUcd,
39 Fed. 714; HUl, Trustees, 144; Chap-
man v. Douglas County, 107 U. S. 348,
361, 27 L. ed. 378, 383, 2 Sup. Ct. Hep.
62; Marsh v. Fulton County, 10 Wall.
676, 684, 19 L. ed. 1040, 1042; Louisiana
V. Wood, 102 U. S. 294, 299, 26 L. ed.
153, 155; Miltenberger v. Cooke, 18
Wall. 421, 21 L. ed. 864; McCracken v.
San Francisco, 16 Cal. 591; Clark v. Sa-
line County, 9 Neb. 516, 4 N. W. 246;
Pimental v. San Francisco, 21 Cal. 362;
Argenti v. San Francisco, 16 Cal. 282.
The court erred in holding that the
money paid respondent county as taxes
upon allotted lands which were nontax-
able under treaty with the United
States and Act of Congress of June 28,
1898, was paid voluntarily, and that, in
the absence of a state statute so au-
thorizing, it cannot be recovered back.
Choate v. Trapp, 224 U. S. 665, 676,
56 L. ed. 941, 946, 32 Sup. Ct. Rep. 565 ;
United States v. Chehalis County, 217
Fed. 285; State Tonnage Tax Cases
(Cox V. Lott) 12 Wall. 204, 220, 20
L. ed. 370, 375; Herold v. Kahn, 86 C.
C. A. 598, 159 Fed. 614; Atchison, T. &
S. F. R. Co. V. O'Connor, 223 U. S. 280,
287, 56 L. ed. 436, 438, 32 Sup. a. Rep.
216, Ann. Cas. 1913C, 1050 ; Union P. R.
Co. V. Public Service Commission, 248 U.
S. 67, 63 L. ed. 131, P.U.R.1919B, 315, 39
Sup. Ct. Rep. 24; Patton v. Brady, 184
U. S. 608, 614, 46 L. ed. 713, 717, 22
Sup. Ct. Rep. 493; Robertson v. Frank
Bros. Co. 132 U. S. 17, 27, 33 L. ed. 236,
239, 10 Sup. Ct, Rep. 5; Swift Co. v.
United States, 111 U. S. 22, 28, 28 L. ed.
341, 343, 4 Sup. Ct. Rep. 244; Joannin
V. Ogilvie, 49 Minn. 564, 16 L.R.A. 376,"
32 Am. St. Rep. 581, 52 N. W. 217;
Maxwell v. Griswold, 10 How. 242-256,
13 L. ed. 405-411; Ottawa Universitv v.
Stratton, 85 Kan. 246, 116 Pac. 892;
United States v. Huckabee, 16 Wall.
414, 21 L. ed. 457.
In the administration of the affairs
of Indians the courts of the United
States have, from the beginning, de-
clined to apply ordinary rules of for-
feiture against them, but, on the con-
trary, have exercised a liberal construc-
tion at all times in determining their
rights, based upon the fact that the In-
dians belong to a class of people who
are not well informed of their rights, and
therefore the necessity of liberal con-
struction in determining all questions
touching their persons and property.
The Indian citizen is not on an equal
footing with the county and its officers,
48 7^
SCPKKME COUKT OF .THE UNITED STATES.
Oct. i^&M,
and such ineciuality must be made good
by superior justice.
Choctaw Nation v. United States, 119
U. S, 1, 28, 30 L. ed. 306, 315, 7 Sup. Ct.
Rep. 75; Marcbie Tiger v. Western
Inyest. Co. 221 U. S. 286, 55 L. ed. 738,
31 Sup. Ct. Rep. 578.
The contractual character of the tax
exemption to the Indian citizens is es-
tablished in this case beyond contro-
versy.
Choate v. Trapp, 224 U. S. 665, 679,
56 L. ed. 941, 947, 32 Sup. Ct. Rep. 565;
New Jersey v, Wilson, 7 Cranch, 164, 3
L. ed. 303.
To deny a remedy is, in effect, a de-
nial of the right.
Bronson v. Kinzie, 1 How. 311, 11
L. ed. 143; White v. Hart, 13 Wall. 646,
654, 20 L. ed. 685, 688; Green v. Bid-
die, 8 Whtfat. 1, 5 L. ed. 647; VonHoff-
man v. Quincy, 4 Wall. 552, 18 L. ed.
409; Ogden v. Saunders, 12 Wheat. 231,
6 L. ed. 6II5 Fletcher v. Peck, 6 Cranch,
87, 3 L. ed. 162; Stnrges v. Crownin-
shield, 4 Wheat. 122, 4 L. ed. 529;
Beers y. Haughton, 9 Pet. 359, 9 L. ed.
157; McCracken v. Hayward, 2 How.
612, 11 L. ed. 399; Planters' Bank v.
vSharp, 6 How. 327, 12 L. ed. 458.
The judgment of the Oklahoma sn-
preme court is error for the reason that
it denies relief for the violation and
destruction of a vested property right,
and leaves petitioners without any rem-
edy whatsoever therefor. The right
which is thus destroyed, existing by
virtue of a treaty with the United
States and an act ol Congress, such
judgment of the state court not only
overrides the due-process clause, but
also denies operation of the equal-pro-
tection clause of the Federal Constitu-
tion.
Bronson v. Kinzie, 1 How. 311, 11 L.
ed. 143; Raymond v. Chicago Union
Traction Co. 207 U. S. 20-41, 52 L. ed.
78-89, 28 Sup. Ct. Rep. 7, 12 Ann. Cas.
757; Ex parte Virginia, 100 U. S. 339,
370, 25 L. ed. 676, 687, 3 Am. Crira.
Kep. 547; Scott v. McNeal, 154 U. S. 34,
51, 38 L. ed. 896, 903, 14 Sup. Ct. Rep.
1108; Choate v. Trapp, supra.
Messrs. T. B. Wilkins, Russell Brown,
George B. Rittenhouse, P. T. McVay,
Clinton A. Galbraith, and George Trice
filed a brief for respondent:
Jjove county was not liable for the
taxes collected for and paid to the state
and townships, towns, and school dis-
tricts.
Raymond v. Chicago Union Traction
Qo. 207 U. S. 20, 52 L. ed. 78, 28 Sup.
Ct. Rep. 7, 12 Ann. Cas. 757; 4 DiU.
Mun. Corp. 5th ed. §§ 1616, 1617; Union
Bank v. New York, 51 Barb. 183; Bur-
lington & M. River R. Co. v. Buffalo
County, 14 Neb. 54, 14 N. W. 539; Shoe-
maker V. Grant County, 36 Ind. 175;
Stone V. Woodbury County, 51 Iowa,
522, 1 N. W. 745; Price v. Lancaster
County, 18 Neb. 199, 24 N. W. 705;
Meacham v. Newport, 70 Vt. 264, 40
Atl. 729; Com. use of Devoe v. Boske,
124 Ky. 468, 11 L.R.A.(N.S.) 1104, 99
S. W. 316; Wilson v. Allen County, 99
Kan. 586, 710, 162 Pac. 1158; Pawnee
County V. Atchison, T. & S. F. R. Co.
21 Kan. 748.
The supreme court of Oklahoma was
warranted in disregarding the allega-
tions of mere conclusions in the peti-
tion, that Love county assessed, levied,
collected, and retained all the taxes
sought to be recovered, and same were
not admitted by demurrer.
Williams v. Stewart, 115 Ga. 864, .42
8. E. 256; Priehard v. Morganton, 126
N. C. 908, 78 Am. St. Rep. 679, 36 S. E.
353; People v. Oakland Water Front Co.
118 Cal. 234^ 50 Pae. 305; Henderson v.
McMaster, 104 S. C. 268, 88 S. E. 646;
Brown v. Avery, 63 Fla. 355, 56 80. 34,
Ann. Cas. 1914A, 90; Heiskell v. Knox
County, 132 Tenn. 180, 177 S. W. 483,
Ann. Cas. 1916E, 1281; Fey ▼. Rossi
Improv. Co. 23 Cal. App. 766, 139 Pae.
908; French v. Senate, 146 Cal. 604, 69
L.R.A. 556, 80 Pac. 1031, 2 Ann. Cas.
756; McLane v. Paschal, 8 Tex. Civ.
App. 398, 28 S. W. 711; 31 Cyc. 337.
The supreme court of Oklahoma
found that the petition did not separate
the taxes so as to show what portion
was paid to the state and to the vari-
ous municipalities. Hence, it did not
show what portion was paid to the
county for which it might be liable, and,
not being so itemized, the board of
connty commissioners did not err in
disallowing the claims.
Allen V. Pittsburg County, 28 Okla.
773, 116 Pac. 175; Osterhondt v. Rig-
ney, 98 N. Y. 232; Smith v. Oklahoma
County, 56 Okla. 677, 156 Pac. 186; Re
Pinney, 17 Misc. 24, 40 N. Y. Supp.
717; Clyne v. Bingham County, 7 Idaho,
75, 60 Pae. 76; Miller v. Crawford
County, 106 Wis. 210, 82 N. W. 175;
Atchison County v. Tomlinson, 9 Kan.
167.
The supreme court of Oklahoma did
not err in upholding the board of coun-
ty commissioners in rejecting petition-
er's claims for the reason they were not
* filed in time.
SftS V. s.
1!)19.
WARD V. LOVE COUNTY.
M'Clung V. Silliman, 6 Wheat. 598,
603, 5 L. ed. 340, 341; Pennsylvania R.
Co. V. Wabash, St. L. & P. R. Co. 157
U. S. 225, 228, 39 L. ed. 682, 683, 15
Sup. Ct. Rep. 576; St. Louis & S. F. R.
Co. V. Brown, 241 U. S. 223, 00 L. ed.
966, 36 Sup. Ct. Rep. 602; Choate v.
Trapp, 224 U. S. 665, 56 L. ed. 941, 32
Sup. Ct. Rep. 565; Stillwater Advance
Printing & Pub. Co. v. Payne County,
29 Okla. 862, 119 Pac. 1002; Herdman
V. Woodson County, 6 Kan. App. 513,
50 Pae. 946; Elbert County v. Swift, 2
Ga. App. 47, 58 S. E. 396; Carroll v.
Siebenthaler, 37 Cal. 193; Welch v.
Santa Cruz County, 30 Cal. App. 123,
156 Pac. 1003; Royster v. Granville
County, 98 N. C. 148, 3 S. E. 739 ; Per-
rin V. Honeycutt, 144 Cal. 87, 77 Pac.
776; Cochise County v. Wilcox, 14 Ariz.
234, 127 Pac. 758.
The proceeding selected to recover be-
ing under a state statute, and the pe-
titioner having failed to recover be-
cause he failed to follow the statute,
and becfiuse he did not file his claims in
the time allowed by the statute, the
question could, under such a proeedure,
be none other than a state question;
and even where a tribe of Indians in-
voke a state procedure in seeking re-
dress for thegr grievances, they are
bound by the requirements of such pro-
cedure, the same as any private individ-
ual invoking it, and can bring it only
in the same manner and within the
same time as other persons.
Seneca Nation v. Christy, 162 U. 8.
283, 40 L. ed. 970, 16 Sup. Ct. Rep. 828.
The burden is on the assignee to show
the competency of his assignor.
Schinotti v. Cuddy, 25 Misc. 556, 55
N. Y. Supp. 219.
If the Indian was incompetent to
make a voluntary payment of the tax
in the first instance, what made him
competent to assign his claim for all
taxes paid to Greenless, and to volun-
tarily g^ive Greenless one half of what
he collected, and run the risk of Green-
less giving the other half, after Green-
less had received it, to the Indian!
William Cameron & Co. v. Yarby, —
Okla. — , 175 Pac. 206.
Taxes paid under mistake of law can-
not be recovered back.
Johnson v. Grady County, 50 Okla.
188, 150 Pac. 497; Louisiana Realty Co.
V. McAlester, 25 Okla. 726, 108 Pac.
391; Hutchison v. Brown, — Okla. — ,
167 Pac. 624; Davenport v. Doyle, 57
Okla. 341, 157 Pac. 110; Spalding v.
Hill, 47 Okla. 621, 149 Pao. 1133; Clnrk
64 It. od.
v. Holmes, 31 Okla. 1G4, 120 Pac. 642,
Ann. Cas. 1913D, 385; Lewis v. Clem-
ents, 21 Okla. 167, 95 Pac. 769; Phil-
lips V. Jefferson County, 5 Kan. 412,
Lamborn v, Dickinson County, 97 U. S.
181, 24 L. ed. 926; Union P. R. Co. v.
Dodge County, 98 U. S. 541, 25 L. ed.
196; Chesebrough v. United States, 192
U. S.* 253, 259, 48 L. ed. 432, 434, 24
Sup. Ct. Rep. 262; United States v.
New York & C. Mail S. S. Co. 200 U. S.
488, 50 L. ed. 569, 26 Sup. Ct. Rep. 327;
United Statesi v. Edmondston, 181 U. S.
500, 45 L. ed. 971, 21 Sup. Ct. Rep. 718 ;
Little V. Bowers, 134 U. S. 547, 33 L. ed.
1016, 10 Sup. Ct. Rep. 620; Wills v.
Austin, 53 Cal. 152; San Francisco &
N. P. R. Co. V. Dinwiddie, 8 Sawy. 312,
13 Fed. 789; Brunson v. Crawford
County Levee Dist. 107 Ark. 24, 4-1
L.R.A. (N.S.) 293, 153 S. W. 828, Ann.
Cas. 1915A, 493 ; Davie v. Galveston, 16
Tex. Civ, App. 13, 41 S. W. 145; Cin-
cinnati, N. O. & T. P. R. Co. V. Hamil-
ton Connty, 120 Tenn,' 1, 113 S. W. 261 ;
Walser v. Board of Education, 160 111.
272, 31 L.R.A. 329, 43 N. B. 346; Otis
V. People, 196 111. 542, 63 N. E. 1054;
Robinson v. Kittitas County, 101 Wash.
422, 172 Pac. 654; Gaar, S. & Co. ▼.
Shannon, 62 Tex. Civ. App. 634, 115 8.
W. 361; Koewing v. West Orange, 89
N. J. L. 539, 99 Atl. 203 ; Re Meyer, 106
Fed. 831, 3 N. B. N. Rep. 436; Houston
V. Feeser, 76 Tex. 365, 13 S. W. 266:
Bristol ▼. Morganton, 125 N. C. 365,
34 S. E. 512; Couch v. Kansas City, 127
Mo. 436, 30 S. W. 117; Cincinnati, R. &
Ft. W. R. Co. V. Wayne Twp. 55 Ind.
App. 533, 102 N. E. 865; Slimmer v.
Chickasaw County, 140 Iowa, 448, 118
N. W. 779, 17 Ann. Cas. 1028; Com. v.
Ferries Co. 120 Va. 827, 92 S. E. 804;
Barrow v. Prince Edward County, 121
Va. 1, 92 N. E. 910; Howell v. Ada
County, 6 Idaho, 154, 53 Pac. 542;
Jenks V. Lima Twp. 17 Ind. 326; Dur-
ham V. Montgomery County, 95 Ind.
182; Cincinnati, R. & Ft. W. R. Co. v.
Wavne Twp. 55 Ind. App. 533, 102 N.
E. 865; Detroit v. Martin, 34 Mich. 170,
22 Am. Rep. 512; Powell v. St. Croix
Connty, 46 Wis. 210, 50 N. W. 1013:
Shane v. St. Paul, 26 Minn. 543, 6 N.
W. 349; Lester v. Baltimore, 29 Md.
415, 96 Am. Dec. 542; Espy v. Ft. Mad-
ison, 14 Iowa, 226; Sheldon v. South
School Dist. 24 Conn. 91; Forrest v.
New York, 13 Abb. Pr. 352; Fleetwood
V. New York, 2 Sandf. 475; New York
& H. R. Co. V. Marsh, 12 N. Y. 308;
Bueknall v. Story, 46 Cal. 589, 13 Am.
Rep. 220; Hoke v. Atlanta, 107 Ga. 416,
75S
tS, 1«.)
SiraEME COURT OF THE UNITED STATES.
Oct. Tum,
33 S. E. 412; Peebles v. Pittsburgh, 101
Pa. 304, 47 Am. Rep. 714; Wabaunsee
County V. Walker, 8 Kan. 431; Dixson
County V. Beardshear, 38 Neb. 389, 56
N. W. 990; Galveston City Co. v. Gal-
veston, 56 Tex. 486; Williams v. Stew-
art, 115 Ga. 864, 42 S. E. 256 ; Kraft v.
Keokuk, 14 Iowa, 86.
Messrs. T. B. Wilkins, Clinton A. Gal-
braith, George Trice, George B. Ritten-
house, * and P. T. McVay also filed a
brief for respondent :
There is no Federal question decided
in the case.
AUen v. Pittsburg County, 28 Okla
773, 116 Pae. 175; Bostick v. Noble
County, 19 Okla. 92, 91 Pac. 1125;
Brinkmeier v. Missouri P. R. Co. 224
U S. 268, 56 L. ed. 758, 32 Sup. Ct.
Rep. 412; Bush v. Person, 18 How. 82,
83, 15 L. ed. 273, 274; King v. West
Virginia, 216 U. S. 92, 54 L. ed. 396, 30
Sup. Ct. Rep. 225; Osterhoudt v. Rig-
ney, 98 N. Y. 232; Parker v. Tillman
County, 41 Okla. 723, 139 Pac. 981 ; Rust
Land & Lumber Co. v. Jackson, 250 U.
S. 71, 63 L. ed. 850, 39 Sup. Ct. Rep.
424; Seneca Nation v. Christy, 162 U.
S. 283, 40 L. ed. 970, 16 Sup. Ct. Rep.
828; Smith v. Oklahoma County, 56
Okla. 672, 156 Pac. 186; Grand Gulf R.
& Bkg. Co. V. Marshall, 12 How. 165,
13 L. ed. 938; Washington v. Miller, 235
U. S. 422, 429, 59 L. ed. 295, 299, 35
Sup. Ct. Rep. 119.
The state court decided the case
against the petitioner on a matter of
general law, broad enough to sustain the
judgment, and did not determine a Fed-
eral question adversely to him.
Atchison, T. & S. P. R. Co. v. O'Con-
nor, 223 U. S. 280, 56 L. ed. 436, 32 Sup.
Ct. R«p. 216, Ann. Cas. 1913C, 1050;
Chesebrough v. United States, 192 U. S.
253, 259, 48 L. ed. 432, 434, 24 Sup. Ct.
Rep. 262; Christopher v. Mungen, 242
U. S. 611, 61 L. ed. 526, 37 Sup. Ct. Rep.
18; Clark v. Holmes, 31 Okla. 164, 120
Pac. 642, Ann. Cas. 1913D, 386; Daven-
port V. Doyle, 57 Okla. 341, 157 Pac.
110; Eustis V. Bolles, 150 U. S. 361, 366,
37 L. ed. nil, 1112, 14 Sup. Ct. Rep.
131; Fowler v. Lamson, 164 U. S. 252,
255, 41 L. ed. 424, 425, 17 Sup. Ct. Rep.
112; Garr, S. & Co. v. Shannon, 223 U.
S. 468, 56 L. ed. 510, 32 Sup. Ct. Rep.
236; Broad well v. Carter County, —
Okla. — , 175 Pac. 828; Hutchison v.
Brown, — Okla. — , 167 Pac. 624; John-
son V. Grady County, 50 Okla. 188, 150
Pac. 497; Lambom v. Dickinson Coun-
ty, 97 U. S. 181, 24 L. ed. 926; Lewis v.
Clements, 21 Okla. 167, 95 Pae. 769; Lie-
75«
ber V. Rogers, 37 Okla. 614, 133 Pac. 30 ;
Little V. Bowers, 134 U. S. 647, 33 L. ed.
1016, 10 Sup. Ct. Rep. 620; Louisiana
Realty Co. v. McAlester, 25 Okla. 726,
108 Pac. 391; Marcy v. Seminole Coun-
ty, 46 Okla. 1, 144 Pac. 611 ; McGeisey
V. Seminole County, 45 Okla. 10, 144
Pac. 614; Ocean Ins. Co. v. Polleys, 13
Pet. 157, 162, 10 L. ed. 105, 107; Phil-
lips V. Jefferson County, 5 Kan. 412:
Spalding v. HUl, 47 Okla. 621, 149 Pac
1133; Union P. R. Co. v. Dodge Comity.
98 U. S. 541, 25 L. ed. 196; Union P. K.
Co. v. Public Service Commission, 248
U. S. 67, 63 L. ed. 131, P.U.R.1919B, 315.
39 Sup. Ct. Rep. 24; United States v
Edmondston, 181 U. S. 500, 45 L. ed
971, 21 Sup. Ct. Rep. 718 ; United SUtes
V. New York & C. Mail S. S. Co. 200 U.
S. 488, 50 L. ed. 569, 26 Sup. Ct. Rep.
327; Wabaunsee County v. Walker, 8
Kan. 431; Weilep v. Audrain, 36 Okla.
288, 128 Pac. 254; Whitmire v. TrapjK
33 Okla. 429, 126 Pac. 578; Wood ▼.
Gleason, 43 Okla. 9, 140 Pac 418;
Zavaglia v. Notarbartolo, 243 U. S. 628,
61 L. ed. 936, 37 Sup. Ct. R«p. 403.
Even if the state court had decided a
Federal question against petitioner, nev-
ertheless it decided against him also upon
independent grounds, not involving any
Federal question, and Iroad enoui^ to
support the judgment, and for this rea-
son the Federal question will not be con-
sidered.
Farson, Son & Co. v. Bird, 248 U. a
268, 63 L. ed. 233, 39 Sup. Ct Rep. Ill;
Garr, S. & Co. v. Shannon, 223 U. 8.
468, 56 L. ed. 510, 32 Sup. Ct. R^. 236;
Petrie v. Nampa & M. Irrig. Dist. 248
U. S. 154^ 63 L. ed. 178,. 39 Sup. Ct.
Rep. 25.
Mr. Justice Van Deranter delivered
the opinion of the court:
This is a proceeding by and on behalf
of Coleman J. Ward and sizty-siz other
Indians to recover moneys alleged to have
been coereively collected from them by
Love county, Oklahoma, as taxes on their
allotoents, which, under the laws and
Constitution of the United States, were
nontaxable. The county commissioners
disallowed the claim, and the claimants
appealed to the district court of the
count}'. There the claimants' petition
was challenged by a demurrer, which was
overruled, [10] and the county elected
not to plead further. A judgment for
the claimants followed, and this was re-
versed by the supreme court. [ — Okla
— , 173 Pac. 1050.] The case is here on
writ of certiorari.
The claimants, who were members of
2.%s r. ».
19X9.
VVAKD v. LOVE COUMY
19-21
the Choctaw Thbe and wards of the
United States^ received their allotments
out of the tribal domain under a congres-
sional enactment of June 28, 1898, whidi
subjected the right of alienation to certain
restrictions, and provided that "the lands
allotted shall be nontaxable while the title
remains in the original aUottee, but not
to exceed twenty-one years from date of
patent'' Chap. 517, 30 Stat, at L. 507.
In the Act of June 16, 1906, enabling
Oklahoma to become a state, Congress
made it plain that no impairment of the
rights of property pertaining to the In-
dians was intended, (chap. 3335, § 1, 34
Stat, at L. 267); and the state included
in its Constitution a provision exempting
from taxation '^such property as may be
exempt by reason of treaty stipulations,
existing between the In^ans and the
United States government, or by Federal
laws, during the force and effect of such
treaties or Federal laws." Art. 10, § 6.
Afterwards Congress, by an act of May
27, 1908, removed the restrictions on
alienation as to certain classes of allottees,
including the present claimants, and de-
clared that all land from which the re-
strictions were rem<5ved "shall be subject
to taxation ... ^ as though it were
the property of other persons than al-
lottees." Chap. 199, §§ 1, 4, 35 Stat,
at L. 312j 3 Fed. Stat. Anno. 2d ed. pp.
881, 887.
Following the last enactment the of-
dcerar of Love and other counties began
to tax the allotted lands from which
restrictions on alienation were removed,
and this met with pronounced opposition
on the part of the Indian allottees, who
insisted, as they had been advised, that
the tax exemption was a vested property
right which could not be abrogated or
destroyed consistently with the Constitu-
tion of the United States. Suits were
begun in the state courts to maintain the
exemption and enjoin the \20] threat*
ened taxation, one of the suits be*
ing prosecuted by som^ 8,000 allot-
tees against the officers of Love and
other coimties. The suits were re-
sisted, and the state courts, being of
opinion that the exemption had been
repealed by Congress, sustained the power
to tax. English v. Richardson, 28 Okla.
408, 114 Pac. 710; Gleason v. Wood, 28
Okla. 502, 114 Pac. 703; Choate v. Trapp,
28 Okla. 517, 114 Pac. 709. The cases
were then brought here, and this court
held that the exemption was a vested
property ri^t which Congress could not
repeal consistently with the 5th Amend-
ment, that it was binding on ttie taxing
authorities in Oklahomn, and that the
•4 li. ed.
state courts hud erred in refusing to en-
join them from taxing the lands. Choate
V. Trapp, 224 U. S. 665, 66 L. ed. 941,
32 Sup. Ct. Rep. 565; Gleason v. Wood,
224 U. S. 679, 56 L. ed. 947, 32 Sup. Ct.
Rep. 571 ; English v. Richardson, 224 U.
S. 680, 56 L. ed. 949, 32 Sup. Ct. Rep.
571.
While those suits were pending, the of-
ficers of Love county, with full knowl-
edge of the suits, and being defendants in
one, proceeded with the taxation of the
allotments, demanded of these claimants
that the taxes on their lands be paid to
the county, threatened to advertise and
sell the lands unless the taxes were paid,
did advertise and sell other lands similar-
ly situated, and caused these claimants to
believe that their lands would be sold if
the taxes were not paid. So, to prevent
such a sale, and to avoid the imposition
of a penalty of 18 per cent, for which
the local statute provided, these claimants
paid the taxes. They protested and ob-
jected at the time that the taxes were in-
valid, and the county officers knew that
all the allottees were pressing the objec-
tion in the pending suits.
As a conclusion from these facts the
claimants asserted that the taxes were
collected by Love county by coercive
means, that^their collection was in vio-
lation of a right arising out of a law of
Congress and protected by the Constitu-
tion of the United States, and that the
county was accordingly bound to repay
the moneys thus oollected. The total
amount claimed is $7,833.35, aside from
interest.
[21] Such, in substance, was the
case presented by the petition, which
also described each tract that was
taxed, named the allottee from whom
the taxes were collected, and stated the
amount and date of each payment.
In reversing the judgment which the
district court had given for the claimants,
the supreme ooui't held, first, that the
taxes were not collected by coercive
means, but were paid voluntarily, and
could not be recovered back, as there was
no statutory authority therefor; and,
secondly, that there was no statute mak-
ing the county liable for taxes collected
and then paid over to the state and mu-
nicipal bodies other than the county, —
which it was assumed was true of a por-
tion of these taxes, — ^and that the peti-
tion did not show how much of the taxes
was retained by the county, or how much
paid over to the state and other munici-
pal bodies, and therefore it could not be
: the basis of any jndirinent against the
' eountv.
757
21-23
.SIPRKMK COUKT OF THE UNITED STATES.
Oct. TxftM,
The county challenges our jurisdiction
by a motion to dismiss the writ of cer-
tiorari, and by way of supporting the
motion insists that the supreme court put
its judgment entirely on independent non-
Federal grounds which were broad
enough to sustain the judgment.
As these claimants had not disposed of
their allotments, and twenty-one years
liad not elapsed since the date of the
patents, it is certain that the lauds were
nontaxable. This was settled in Choate v.
Trapp, sjupra, and the other cases decided
with it; and it also was settled in those
eases that the exemption was a vested
property right arising out of a law of
Congress and protected by the Constitu-
tion of the United States. This being so,
the state and all its agencies and political
subdivisions were bound to give effect to
the exemption. It operated as a direct
restraint on Love county, no matter what
was said in local statutes. The county did
not respect it, but, on the contrary,
assessed the lands allotted to these
claimants, placed them on the county
tax roll, and there charged them with
taxes like [22] other property. If a
portion of the taxes was to go to
the state and other municipal bodies
after collection, — ^which we assume was
the* case, — it still was the county that
charged the taxes ctgainst these lands and
proceeded to collect them. Payment of
all the taxes was demanded by the county,
and all were paid to it in the circum-
stances already narrated.
We accept so much of the supreme
court's decision as held that, if the pay-
ment was voluntary, the moneys could not
be recovered back in the absence of a per-
missive statute, and that there was no
such statute. But we are unable to accept
its decision in other respects.
The right to the exemption was a Fed-
eral right, and was specially set up and
claimed as such in the petition. Whether
the right was denied, or not given due
recognition, by the supreme court, is a
question as to which the claimants were
entifled to invoke our judgment, and this
t hey have done in the appropriate way. It
thei'efore is within our province to inquire
not only whether the right was denied in
express terms, but also whether it was
denied in substance and effect, as by put-
ting forward non-Federal grounds of de-
cision that were without any fair or
substantial support. Union P. R. Co. v.
Public Service Commission, 248 U. S. 67,
63 L. ed. 131, P.U.R.1919B, 315, 39 Sup.
Ct. Rep. 24; Leathe v. Thomas, 207 U.
S. 93, 99, 52 L. ed, 118, 120, 28 Sup. Ct.
Rep. .30; Vandalia R. Co. v. Indian:i.
75S
207 U. S. 359, 367, 52 L. ed. 246, 248,
28 Sup. Ct. Rep. 130; Gaar, S. & Co. v.
Shannon, 223 U. S. 468, 56 L. ed. 510,
32 Sup. Ct. Rep. 236; Creswill v. Grand
Lodge, K. P. 225 U. S. 246, 261, 56 L. ed.
1074, 1080, 32 Sup. Ct. Rep. 822; Enter-
prise Irrig. Dist. v. Farmers Mut. Canal
Co. 243 U. S. 157, 164, 61 L. ed. 644, 37
Sup. Ct. Rep. 318. And see .Jefferson
Branch Bank v. Skelly, 1 Black, 436, 443,
17 L. ed. 173, 177; Huntington v. Attriil,
146 U. S. 657, 683, 684, 36 U ed. 1123,
1133, 1134, 13 Sup. Ct. Rep. 224; Boyd
V. Nebraska, 143 U. S. 135, 180, 36 L.
ed. 103, 116, 12 Sup. Ct. Rep. 376; Car-
ter V. Texas, 177 U. S. 442, 447, 44 L.
ed. 839, 841, 20 Sup. Ct. Rep. 687. Of
coarse, if non-Federal grounds, plain-
ly untenable, may be thus put forward
successfully, our power to review easily
may be avoided. Terre Haute & I. R. Co.
V. Indiana, 194 U. S. 579, 589, 48 L. ed.
1124, 1129, 24 Sup. Ct. Rep. 767. With
this qualification, it is true that a judg-
ment of a state court, which, is put on
[23] independent non-Federal grounds
broad enough to sustain it, cannot be
reviewed by us. But the qualification
is a material one, and cannot be dis>
regarded without neglecting or renounc-
ing a jurisdiction conferred by law and
designed to protect and maintain t£e
supremacy of the Constitution and the
laws made in pursuance thereof.
The facts set forth in the petition, all
of which were admitted by the demurrer
whereon the county elected to stand, make
it plain, as we think, that the finding or
decision that the taxes were paid volun-
tarily was without any fair or substantial
support. The claimants were Indians,
just emerging from a state of dependency
and wardship. Through the pending
suits and otherwise they were objecting
and protesting that the taxation of their
lands was forbidden by a- law of Con-
gress. But, notwithstanding this, the
county demanded that the taxes be paid,
and by threatening to sell the lands of
these claimants, and actually selling other
lands similarly situated, made it appear
to the claimants that they must choose l>e-
tween paying the taxes and losing their
lands. I'o prevent a sale and to avoid
the imposition of a penalty of 18 per
cent, they yielded to the county's demand
and paid the taxes, protesting and ob-
jecting at the time that tlie same were
illegal. The moneys thus collected were
obtained by coercive means, — by eom-
pubion. The county and its officers rea>
sonably could not have regarded it other-
wise; much less the Indian claimantf.
Atchison, T. & S. F. R. Co. v. O'Connor,
253 V. U.
1919.
BROADWELL v. CARTER COUNTY.
23-2:.
223 IT. S. 280, 56 L. ed. 436, 32 Sup. Ct.
Rep. 216, Ann. Gas. 1913C, 1050; Gaar,
S. & Co. V. Shannon, 223 U. S. 471, 56
L. ed. 512, 32 Sup. Ct. Rep. 236; Union
P. R. Co. V. Public Service Conimissioni
supra ; Swift & C. B. Co. v. United States,
111 U. S. 22, 29, 28 L. ed. 341, 343, 4
Sup. Ct. Rep. 244; Robertson v. Frank
Bros. Co. 132 U. S. 17, 23, 33 L. ed. 236,
238, 10 Sup. Ct. Rep. 5; Oceanic Steam
Nav. Co. V. Stranahan, 214 U. S. 320,
329, 53 L. ed. 1013, 1018, 29 Sup. Ct
Rep. 671. The county places some re-
liance on Lamborn v. Dickinson County,
97 U. S. 181, 24 L. ed. 926, and Union P.
R. Co. V. Dodge County, 98 U. S. 541,
25 L. ed. 196; but those cases are quite
distinguishable in their facts, and some
of the [24] general observations there-
in to which the county invites attention
must be taken as modified by the later
cases just cited.
As the payment was not voluntary, but
made under compulsion, no statutory au-
thority was essential to liable or require
the comity to refund the mon^. It is a
well-settled role that '^oney got through
imposition" may be recovered back; and,
as this court has said on several occa-
sions^ ^the obligation to do justice rests
opon all persons, natural or artificial, and
it a county obtains the money or prop-
erty of others without authority, the law,
independent of any statute, will compel
restitution or compensation.'' Marsh v.
Fulton County, 10 WaU. 676, 684, '19 L.
ed. 1040, 1042; Louisiana v. Wood, 102
U. S. 204, 298, 299, 26 U ed. 153, 155;
Chapman y. Douglas County, 107 U. S.
348, 355, 27 L. ed. 378, 381, 2 Sup. Ct.
Rep. 62. To say that the county could
collect these unlawful taxes by coercive
means, and not incur any obligation to
pay them back, is nothing short of saying
that it could take or appropriate the
property of these Indian allottees arbi-
trarily and without due process of law.
Of course, this would be in contravention
of the 14th Amendment, which binds the
county as an agency of the state.
If it be trme, as the supreme court as-
sumed, that a portion of the taxes was
paid over, after collection, to the state
and other municipal bodies, we r^ard it
rts certain that this did not alter the
county^s liability to the claimants. The
county had no right to collect the money,
and it took the same with notice that the
rights of all who were to share in the
taxes were dis]>nted by thcfic claimants,
and were being contested in the pending
suits. In these cireumstances it could
not lessen its liability by paying over a
portion of the monov to others whose
•4 t.. ^a.
rights it knew were disputed and were
no better than its own. Atchison, T. di
S. P. R. Co. V. O'Connor, supra, p. 287.
In legal contemplation it received the
money for the use and benefit of the claim-
ants, and should respond to them accord-
ingly.
[25] The coimty calls attention to
the fact that in the demurrer to the
petition the Statute of Limitation
(probably meaning § 1570, Rev. Laws
1910) was relied on. This point was
not discussed by the supreme court,
and we are not concerned with it be-
yond observing that when the case is
remanded, it will be open to thai
court to deal with the point as to the
whole claim or any item in it as anv
valid local law in force when the claim
was filed may require.
Motion to dismiss denied.
Judgment reversed.
GEORGE R. BROADWELL, Petitioner,
v.
BOARD OF COUNTY COMMISSIONERS
OF CARTER COUNTY, OKLAHOMA.
(See 8. C. Reporter's ed. 20, 26.)
This case is governed by the decision in
Ward V. Love County, ante, 75L
[No. 289.]
Submitted March 25, 1920. Decided April
26, 1920.
ON WRIT of Certiorari to the Supreme
Court of the State of Oklahoma to
review a judgment which affirmed a
judgment of the District Court of Car-
ter County, in that state, sustaining a
demurrer to a petition for the recovery
back of taxes paid on Indian allotments.
Reversed.
Note. — On certiorari to state courts —
see notes to Andrews v. Virginian R.
Co. 63 L. ed. U. S. 236, and Bruce v.
Tobin, 62 L. ed. U. S. 123.
As to necessity and sufficiency of
statement of g^nnds in notice of pro-
test required as condition of recovering
back payment of an unlawful tax — s^e
note toWhitford v. Clarke, 36 L.R.A.
(N.8.) 476.
As to when taxes illegally assesped
may he recovered back— ^see notes to
Phelps v. New York, 2 L.R.A. 626;
State ex rel. McCarty v. Nelson, 4
Ij.H.A. 300; and Krskine v. VanArsdale,
21 L. ed. V. S. 63.
769
25, 2ti
SUPREME COURT OF THE UNITED STATES.
Oct. Tan,
See same ease below, — Okla. — , 175
Pao. 828.
The facts are stated in the opinion.
Mr. George P. Glaze submitted the
caose for petitioner.
Messrs. George B. Rittenhonse, Olin-
ton A. Galbraith, P. T. McVay, and J.
A. Baas submitted the cause for re-
spondent. Messrs. Russell Brown and
George Trice were on the brief.
For contentions of counsel, see their
briefs as reported in Ward v. Love
County ante, 751.
Mr. Justice Van Devanter delivered the
opinion of the court :
This is a proceeding to recover moneys
charged to have been paid under compul-
sion by a number of Choctaw and [26]
Chickasaw Indians to Carter county,
Oklahoma, as taxes on allotted lands
which were nontaxable. The coun-
ty commissioners disallowed the claim;
the district court of the county to
which the claimants appealed sustained
a demurrer to their petition and ren-
dered judgment against them, and the
supreme court affiinned the judgment.
— Okla. — . 175 Pac. 828. The total
amount claimed is $22,455.99, aside
from interest.
• The case as presented here is in all
material respects like Ward v. Love
Countv, just decided [253 U. S. 17, ante,
7)1, 40 Sup. Ct. Rep. 419], and its de-
cision properly may be rested on the
opinion in that case.
>fotion to dismiss denied.
Judgment reversed.
L'NITED STATES OF AMERICA, Appt.,
V.
READING COMPANY, Philadelpliia &
Reading Railway Cninpany, et al. (No. 3.)
READING COMPANY^ Philadelpliia k
Reading Railway Company, et al., Appts.,
V.
UNITED STATES OF AMERICA. (No. 4.)
(See S. a Reporter's ed. 26-65.)
Monopoly -• unlawful combinatton —
lease of railroad — lefisor*s covenant
ttH to alilpments.
1. A covenant in a lease bv a coal com-
pany of a railway owned by It to another
railway company, which may be construed
to require the coal company to ship to
market over the leased hne^three fourths
of all the coal it produces, cannot be said
to impose an undue restriction upon the
coal companv in selecting its markets and
7no
in shipping its coal, in violation of the
Sherman Anti-tru6t Act, where the lines
of the two railway companies are in no
sense competitive, the leased line serving
as a natural extension of the lessee rail-
way company's lines to the great tonnage
producing coal districts, and where the
rental to be paid is one third of the gross
earnings of the railway.
[For oSier cases, see Monopoly, II. c. In Digest
Sup. Ct. 11K>.^.]
Injunction — against enforcement of
monopolistic contract — covenant in
lease of coal lands.
2. Attempts to enforce a covenant in
leases for the operation of coal-producing
lands that the lessee shall ship all coal
mined by rail routes which are named, or
which are to be designated, are properly
enjoined where such covenant was resorted
to as part of a scheme in contravention/ of
the Sherman Anti-trust Act to control the
mining and transportation of coal.
[For other caset*, see Injunction, I. c, la Digest
Sup. Ct. 1908.]
Appeal — Judgment — dismissal with-
out prejudice.
3. Where a majority of the individual
defendants in a suit to dissolve a combina-
tion found to contravene the Sherman Anti-
trust Act have died since the suit was
instituted J and their successors in office
have not been made parties, and the con-
clusion to be announced can be given full
effect by an appropriate decree against the
corporate defendants, the case as against
the remaining individual defendants need
not be considered, and as to them the bill
will be dismissed without prejudice.
[For other cases, see Appeal and Error, IX. e.
In Digest Sup. Ct. 1908.1
Monopoly — unlawful combination *
carriers and coal companies — disso-
lution.
4. An undue and unreasonable restraint
of interstate trade and commerce in anthra-
cite coal, and an attempt to monopolize and
a monopolization of such trade and com-
merce, forbidden by the Sherman Anti-trust
Act, and calling for dissolution of the com-
bination, results from a scheme whereb3' a
holding company was created and placed
by stock control in a position to dominate,
not only two great competing interstate
railway carriers, but also two great com
Note.— As to monopolies — see notes
to Fowle v. Park, 33 L. ed. U. S. 07.
and United States v. Trans-Miss^ouri
Freight Asso. 41 L. ed. U. S. 1008.
As to illegal trusts under modern
anti-trust laws — see note to Whitwell v
Continental Tobacco Co. 64 L.R.A. 68*1
As to what relation a contract or
combination must bear to interstate
conunerce in order to bring it within
the scope of the Federal Anti-trust Act
— see notes to Ix>ewe v. Lawlor, 5-
L. ed. l\ 8. 488, and Pocahontas Coke
Co. V. Powhatan Coal & Coke Co. 10
L.R.A.(N.S.) 268.
9&^ r. 8.
1919.
UKITED STATES v. READING CO.
peting coal companies engaged extensively
in m&ing and selling anthracite coal which
must be transported to interstate markets
over the controlled interstate railway lines,
which power of control was actually used,
once successfully, to suppress the building
of a prospective competitive railway line,
and a second time successfully, until the
Kctleral Supreme Court condemned certain
percentage coal contracts as ille^l, to sup-
press the last prospect of competition in an-
thracite production and transportation, the
holding company continuing, up to the time
the present diasolution suit was begun, in
active dominating control of the carriers
and coal companies, thus effectually sup-
pressing all competition between the four
(Companies and pooling their earnings.
[For other cases, see Monopoly, 11. in Digest
Sup. Ot. 1908.1
Carriers — association with coniniodity
carried — stock ownership.
6. The combination in a single corpo-
ration of the ownership of all of the stock
of a carrier and of all of the stock of a
coal company violates the commodities
clause of the Act of June 29, 1006, making
it unlawful for any railway company to
transport in interstate commerce any ar-
ticle mined or produced by it or under
its authority, or which it may own, or in
which it may have any interest, direct or
indirect, where all three companies have
the same officers and directors, and it is
under their authority that the coal mines
are worked and the railway operated, and
they exercise that authority in the one
case in precisely the same character as in
the other; viz., as officials of the holding
companv, the manner in which the stock
Of the three is held resulting, as intended,
in the abdication of all independent cor-
porate action by both the railway company
and the coal companr, involving, as it does,
the surrender to the holding company of the
entire conduct of their affairs.
[For other cases, see Carriers, III. In Digest
Sop. Ct. 1908}
Carriers -^ a.^sociation with commodity
carried — stock ownership.
6. While the ownership by a railway
company of shares of the capital stock of
a mining company does not necessarily cre-
ate an identity of corporate interest be-
tween the two such as to render it unlaw-
ful, under the commo«lities clause of the
Act of June 29, 1906, for the railway com-
pany to transport in interstate commerce
the products of such mining company, yet,
where such ownership of stock Is resorted
to. not for the purpose of participating in
the affairs of the corporation in whicS it
is held in a manner normal and usual with
fttofkholders, but for the purpose of making
it a mere agent, or instrumentality, or de-
partment of another company, the courts
will look through the forms to the realities
of the relation between the companies as if
the corporate agency did not exist, and will
deal with them as the justice of the case
may require.
(For otiinr rasrss, seo Carriers, III. in T)i;j;c8t
«up. Ct. 190S.1
•4 fi. e(t.
Judgment — dlssolutioii * monopoly —
extent of relief.
7. A combination of competing intir-
state railway carriers and competing coal
companies, found to violate both the Sher-
man Anti-trust Act and the commodities
clause of the Act of June 29, 1906, must be
so dissolved as to give each of such com-
panies its entire independence, free from
stock or other control.
[For other eases, see Judgment, II. In Digest
Sup. Ct. ]»OS.J
[Nos. 3 and 4.]
Argued October 10 and 11, 1916. Restored
to docket for reargument May 21, 1917.
Reargued November 20 and 21, 1917.
Restored to docket for reargument Juno
10, 1918. Reargued October 7, 1919. De
cided April 26, 1020.
CROSS APPEALS from the District
Court of the United States for the
Eastern District of Pennsylvania to re-
view a decree granting a part of the
relief sought by the United States in a
suit to dissolve a combination asserted
to violate both the Sherman Anti-trust
Act and the commodities clause of the
Act of June 29, 1906. Aflarmed in part
and reversed in part, and remanded with
directions to enter a decree of dissolu-
tion of the intercorporate relations ex-
isting between corporate defendants so
as to give each company its entire inde-
pendence.
See same case below, 226 Fed. 229.
The facts are stated in the opinion.
Solicitor General Davis and Assist-
ant to the Attorney General Todd ar-
gued the cause on the first and second
arguments, and, with Attorney General
Gregory and Mr. Thurlow M. Gordon,
Special Assistant to the Attorney Gen-
eral, filed a brief for the United States :
The Reading Holding Company's con-
trol of the production, transportation,
and sale of anthracite coal from lands
in the Schuylkill region tributary to
the lines of the Reading Railway Com-
pany was acquired and is maintained by
other than normal methods of indus-
trial development, and by means wrong-
ful and unlawful in themselves.
Shawnee Compress Co. v. Anderson,
209 U. S, 423, 52 L. ed. 865, 28 Sup. Ct.
R«p. 572; Harripian v. Northern Secu-
rities Co. 197 U. S. 244, 291, 49 L, ed.
739, 761, 25 Snp. Ct. l^cp. 493; Uniteti
States v. American Tobacco Co. 221 U.
S. 106, 176, 184, 187, 55 L. ed. 663, 692,
695, 696, 31 Sup. Ct. Rep. 632; Uttited
States V. Uniou P. R. Co. 226 U. S. 63 ,
67 K ed. 124, 3S Hup. Ct. Rep. 53:
United States v. Pacific & A. R. & Nav.
7<».t
SUrUEMK COURT OF THE UNITKD STATES.
Oct. Teim,
Lo. 228 U. S. 87, 104, 57 L. ed. 742, 748,
33 Sup. Ct. Rep. 443; United States v.
lioading Co. 226 IJ. S. 324, 352, 353, 57
L. ed. 243, 252, 253, 33 Sup. Ct. Rep.
90; Standard Sanitary Mfg. Co. v.
United States, 226 U. S. 20, 49, 57 L. ed.
107, 117, 33 Sup. Ct. Rep. 9; United
States Teleph. Co. v. Central U. Teleph.
Co. 122 C. C. A. 86, 202 Fed. 72; Swift
& Co. V. United States, 196 U. S. 375,
402, 49 L. ed. 518, 527, 25 Sup. Ct. Rep.
276; Re Rates for Transportation of
Anthracite Coal, 35 Inters. Com. Rep.
239; Coxe Bros. v. Lehigh Valley R. Co.
3 Inters. Com. Rep. 460, 4 I. C. C. Rep.
535; Meeker v. Lehigh Valley R. Co. 21
Inters. Com. Rep. 129; Vandalia R. Co.
V. United States, 141 C. C. A. 469, 226
Fed. 713; Fourche River Lumber Co. v.
Bryant Lumber Co. 230 U. S. 316, 323,
57 L. ed. 1498, 1501, 33 Sup. Ct. Rep.
887; United States v. Union Stock
Yard & Transit Co. 226 U. S. 286, 57
L. ed. 226, 33 Sup. Ct. Rep. 83; United
States V. Milwaukee Refrigerator Tran-
sit Co. 142 Fed. 247, 145 Fed. 1007;
United States v. Hocking Valley R. Co.
194 Fed. 234, 127 C. C. A. 285, 210 Fed.
740.
The court was not asked in this case
to apply any remedy under the Act to
Regulate Commerce. The advantages
granted to the Reading Coal Company
in the cost of transportation were al-
leged and proved as the cost of trans-
portation was alleged and proved as
one of the wrongful means employed in
building up and maintaining the mo-
nopoly complained of, just as similar ad-
vantages in the cost of transportation
were shown in Standard Oil Co. v.
United States, 221 U. 8. 1, 42, 76, 55
L. ed. 619, 638, 651, 34 L.R.A.(N.S.)
$n4, 31 Sup. Ct. Rep. 502, Ann. Cas.
1912D, 734.
It is not essential, for the purposes
of this proceeding under the Anti-trust
Act, that the court decide specifically
rhnt the transactions in question do
constitute violations of the Act to Reg-
ulate Commerce. It is enough that it
be satisfied they are not normal means
of industrial development.
Swift & Co. v. United States, 196
U. 8. 375, 402, 49 L. ed. 518, 527, 25
Sup. Ct. Rep. 276; United States v. Pa-
cific & A. R. & Nav. Co. 228 U. 8. 87,
105, 57 L. ed. 742, 748, 33 Sup. Ct. Rep.
443; Meeker v. Lehigh Valley R. Co.
106 C. C. A. 94, 183 Fed. 548.
Where, as here, the transactions
amount to a departure from the car-
rier's published rates, or involve dis-
4*riminations on their face, no prior ad-
7«2
ministrative ruling by the Interstate
Commerce Commission is necessary as
a condition precedent to an attack upon
them in the courts.
Pennsylvania R. Co. v. International
Coal Min. Co. 230 U. S. 184, 196. 57
L. ed. 1446, 1451, 33 Sup. Ct. Rep. 893,
Ann. Cas. 1915A, 315; Mitchell Coal &
Coke Co. v. Pennsylvania R. Co. 23(i
U. S. 247, 255, 260, 261, 57 L. ed. 1472,
1475, 1477, 1478, 33 Sup. Ct. Rep. 916;
United States v. Union Stock Yard &
Transit Co. 226 U. S. 286, 308, 57 L ed.
226, 234, 33 Sup. Ct. Rep. 83; American
Sugar Ref . Co. v. Delaware, L. & W. R.
Co. 125 C. C. A. 251, 207 Fed. 742;
Hocking Valley R. Co. v. United States,
127 C. C. A. 285, 210 Fed. 735, 234 U. S.
757, 58 L. ed. 1579, 34 Sup. Ct. Rep.
675; Vandalia R. Co. v. United States,
141 C. C. A. 469, 226 Fed. 713, 239 U. S.
642, 60 L. ed. 482, 36 Sup. Ct. Rep. 163;
Central R. Co. v. United States, 143 C.
C. A. 569, 229 Fed. 501, 241 U. 8.
658, 60 L. ed. 1225, 36 Sup. Ct. Rep.
446.
The fact is, however, that the Inter-
state Commerce Commission had al-
ready expressly held that precisely sim-
ilar transactions constitute undue pref-
erences and rebates, in violation of the
Act to Regulate Commeree, first in
Coxe Bros. v. I^ehigh Valley fL Co. 3
Inters. Com. Rep. 460, 4 I.'^C. C. Rq).
535, decided in 1891, and again in
Meeker v. Lehigh Valley R. Co. 21
Inters. Com. Rep. 129, decided in 1911;
and has since held the same as to the
very transactions here in questicm (Re
Rates for Transportation of Anthracite
Coal, 35 Inters. Com. Rep. 220).
Even if the preferences granted to
the Reading Coal Company by the old
Reading Railroad Company, in the form
of remitted interest charges, etc., were
authorized by the laws of Penn^lvania,
those laws would have ceased to be of
any effect, so far as interstate com-
merce is concerned, after the passage
of the Act to Regulate Commerce,
which has been authoritatively con-
strued as prohibiting such preferences.
Lonisville & N. R. Co. v. Mottley.
219 U. S.'467, 468, 65 L. ed. 297, 34
L,R.A.(N.S.) 671, 31 Sup. Ct. Rep
265; United States ex rel. Atty. Gen. v
Delaware & H. Co. 213 U. S. 366, 416.
53 L. ed. 836, 851, 29 Sup. Ct. Rep. 527;
Philadelphia, B. & W. R. Co. v. Scbu
bert, 224 U. S. 603, 613, 56 L. ed. 911.
916, 32 Sup. Ct. Rep. 589, 1 N. C. C. A
892.
Agreements by shippers to give to t
particular common carrier tbotr cxchi-
353 v. 8.
1910.
UNITED STATES v. READING CO.
sive patronage exclude other carriers
from the privilege of competing there-
for, and thus tend directly to restrain
trade and promote monopoly.
United States v. Great Lakes Towing
Ck>. 208 Fed. 733; United States Teleph.
Co. V. Central U. Teleph. Co. 122 C. C.
A. 86, 202 Fed. 72; Gwynn v. Citizens'
Teleph. Co. 69 8. C. 442, 67 L.R.A. 111,
104 Am. St. Rep. 819, 48 S. E. 460;
United States v. Reading Co. 226 U. S.
324, 367, 57 L. ed. 243, 257, 33 Sup. Ct.
Rep. 90.
Systems of contracts for exclusive
dealing, even between those not subject
to pnblio service law, have the same
tendency. They are specififcally forbid-
den bj the recent Clayton Act, and
have been repeatedly enjoined in de-
crees nnder the Anti-trust Act.
United States v. Keystone Watch
Case Co. 218 Fed. 502; United States
▼. Bastman Kodak Co. 226 Fed. 62;
United States v. Motion Picture Pat-
ents Co. 225 Fed. 800; United States v.
Com Products Ref. Co. 234 Fed. 964;
Merehapts Legal Stamp Co. v. Murphy,
220 Mass. 281, L.R.A.1915C, 520, 107
N. B. 968; Standard Sanitary Mfg. Co.
v. United States, 226 U. S. 20, 46, 47,
57 L. ed. 107, 116, 117, 33 Sup. Ct. Rep.
9; W. W. Montague & Co. v. Lowry,
193 U. B. 38, 48 L. ed. 608, 24 Sup. Ct.
Rep. 307; Continental Wall Paper Co.
V. Louis Voight & Sons Co. 212 U. 8.
227, 53 L. ed. 486, 29 Sup. Ct. Rep. 280;
Ellis ▼. Inman, P. ft Co. 65 C. C. A. 488,
131 Fed. 182.
Furthermore, for a railroad company
to buy up coal lands and lease them to
shippers nnder exclusive routing con-
tracts elearly violates the provisions of
the Acts to Regulate Commerce, which
prohibit preferences and rebates, since
the granting of such a lease constitutes
a consideration given to the lessee for
shilling his output over the lines of
the railroad company.
United States v. Union Stock Yard ft
Transit Co. 226 U. S. 286, 308, 57 L. ed.
226, 234, 33 Sup. Ct. Rep. 83; Cleve-
land, C. C. ft St. L. R. Co. V. Hirsch,
123 C. C. A. 145, 204 Fed. 849; Fourche
River Lumber Co. v. Bryant Lumber Co.
230 U. S. 316^ 322. 323, 57 L. ed. 1498,
1501, 33 Sup. Ct. Rep. 887.
The control acquired and maintained
by the Reading Holding Company over
the production, transportation, and sale
of anthracite coal from lands in the
Schnjrlkill region tributary to the lines
of the Reading Railway Company con-
stitutes a restraint and monopolisation
of trade.
M li. 6d.
Standard Oil Co. v. United States,
221 U. S. 1, 55 L. ed. 619, 34 L.R.A.
(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann.
Cas. 1912D, 734; United States v.
American Tobacco Co. 221 U. S. 106, 55
L. ed. 603, 31 Sup. Ct. Rep. 632; Nash
V. United States, 229 U. S. 373, 57
L. ed. 1232, 33 Sup. Ct. Rep. 730; New
York, N. H. & H. R. Co. v. Interstate
Commerce Commission, 200 U. S. 361,
392, 393, 50 L. ed. 515, 521, 522, 26 Sup.
Ct. Rep. 272 ; Atty. Gen. v. Great North-
ern R. Co. 29 L. J. Ch. N. S. 794, 6 Jur.
N. S. 1006, 8 Week. Rep. 556; United
States V. Delaware, L. ft W. R. Co. 238
U. S. 516; 59 L. ed. 1438, 35 Sup. Ct.
Rep. 873; United States v. Lake Shore
ft M. S. R. Co. 203 Fed. 315; Chesa-
peake ft 0. Fuel Co. V. United States, .
53 C. C. A. 256, 115 Fed. 610; Pocahon-
tas Coke Co. V. Powhatan Coal ft Coke
Co. 60 W. Va. 519, 10 L.R.A.(N.S.) 268,
116 Am. St. Rep. 901, 56 S. E. 264, 9
Ann. Cas. 667; Northern Securities Co.
V. United States, 193 U. S. 197, 363, 48
L. ed. 679, 711, 24 Sup. Ct. Rep. 436;
United States v. Union. P. R. Co. 226
U. S. 61, 83, 57 L. ed. 124, 132, 33 Sup.
Ct. Rep. 53; United States v. Pacific ft
A. R. ft Nav. Co. 228 U. 8. 87, 104, 57
L. ed. 742, 748, 33 Sup. Ct. Rep. 443;
Swift ft Co. V. United States, 196 U. S.
375, 396, 49 L. ed. 518, 524; 25 Sup. Ct.
Rep. 276; United States v. E. C. Knight
Co. 156 U. S.'l, 16, 39 L. ed. 325, 330,
15 Sup. Ct. Rep. 249.
The business of producing, purchase
ing, shipping, and selling coal produced
along the line of a given railroad is it-
self a branch of trade, and when the
railroad, by other than normal methods
of business development, and especially
by unconscionable and oppressive use of
its position as a common carrier, and
by means unlawful in themselves, ex-
cludes others from that branch of
trade, thereby grasping the greater part
of it for itself, it restrains and monop-
olizes trade, in violation of the Anti-
trust Act.
New York, N. H. ft H. R. Co. v. In-
terstate Commerce Commission, 200 U.
S. 361, 50 L. ed. 515, 26 Sup. Ct. Rep.
272; Atty. Gen. v. Great Northern R.
Co. 29 L. J. Ch. N. S. 794, 6 Jur. N. R.
1006, 8 Week. Rep. 550; United States
V. Delaware, L. ft W. R. Co. 238 U. S.
516, 59 L. ed. 1438, 35 Sup. Ct. Rep.
873; Chesapeake ft O. Fuel Co. v. Unit-
ed State.**, 53 C. C. A. 256, 115 Fe<l: 610 ;
Pocahontas Coke Co. v. Powhatan Coal
ft Coke Co. 60 W. Vn. 508, 10 L.R.A.
(N.K ) 268, 116 Am. Kf. Rep. 901, 56 S.
»E. 264, 9 Ann. Cas. (UiV; United States
7«.n
SUPREME COURT OF THE UMTED STATES.
Oct. Tuk
V. Lake Shore & M. S. B. Co. 203 Fed.
:U5.
If the Reading Companies have that
kind of monopoly, it is immaterial
whether or not they have . some other
kind of monopoly also.
United States v. E. C. Knight Co. 156
U. S. 1, 16, 39 L. ed. 325, 330, 15 Sup.
Ct. Rep. 249; United States v. Dela-
ware, L. & W. R. Go. 238 U. S. 516, 59
L. ed. 1438, 35 Sup. Ct. Rep. 873; Ches-
apeake & 0. Fuel Co. V. United States,
53 C. C. A. 256, 115 Fed. 610; Atty.
Gen. V. Great Northern R. Co. 29 L. J.
Ch. N. S. 794, 6 Jur. N. S. 1006, 8 Week.
Rep. 556 ; Stockton v. Central R. Co. 50
N. J. Bq. 81, 17 L.R.A. 97, 24 Atl. 964.
The Anti-trust Act makes no excep-
< tion in favor of contracts, combina-
tions, or conspiracies entered into prior
to its passage. No such exception was
intended, and none should be added by
construction.
21 Cong. Rec. 2459, 2726, 4098; Unit-
ed States V. Trans-Missouri Freight
Asso. 166 U. S. 290, 319, 342, 41 L. ed.
1007, 1020, 1028, 17 Sup. Ct. Rep. 540;
Waters-Pierce Oil Co. v. Texas, 212 U.
S. 86, 53 L. ed. 417, 29 Sup. Ct. Rep.
220; United States v. American Tobac-
co Co. 164 Fed. 700, 221 U. S. 106, 176,
184, 55 L. e4. 663, 692, 695, 31 Sup. Ct.
Rep. 632; United States v. E. I. duPont
de Nemours & Co. 188 F^. 127; Boyd
V. New York & H. R. Co. 220 Fed. 180 ;
Elliott Mach. Co. v. Center, 227 Fed.
124; United States v. United Shoe Ma-
chinery Co. 227 Fed. 507; New York, N.
H. & H. R. Co. V. Interstate Commerce
Commission, 200 U. S. 361, 399, 50
L. ed. 515, 524, 26 Sup. Ct. Rep. 272;
United States ex rel. Atty. Gen. v. Del-
aware & H. Co. 213 U. S. 366, 416, 53
L. ed. 836, 852, 29 Sup. Ct. Rep. 527;
Louisville & N. R. Co. v. Mottley, 219
U. S. 467, 478, 55 L. ed. 297, 301, 34
L.R.A.(N.S.) 671, 31 Sup. Ct. Rep. 265;
Philadelphia, B. & W. R. Co. v. Schu-
bert, 224 U. S. 603, 613, 56 L. ed. 911,
916, 32 Sup. Ct. Rep. 589, 1 N. C- C. A.
892; Standard Oil Co. v. United States,
221 U. S. 1, 55 L. ed. 619, 34 L.R.A.
(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann.
Cas. 1912D, 734.
As to the power of Congress to re-
move restraints of trade initiated by
transactions entered into prior to the
passage of the Anti-trust Act, of course
there can be no question.
United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 342, 41
Tx ed. 1007, 1028, 17 Sup. Ct. Rep. 540;
New York, N. H. & H. R. Co. v. Inter-
state Commerce Commission, 200 U. S.
7«4
361, 399, 50 L. ed. 515, 524, 26 Sup. Ct
Rep. 272; United States ex rel kiiy.
Gen. V. Delaware & H. Co. 213 U. S
366, 416, 53 L. ed. 836, 852, 29 Sup, Ct.
Rep. 527; Philadelphia, B. & W. R, Co
V. Schubert, 224 U. S. 603, 56 L. ed.
Oil, 32 Sup. Ct. Rep. 589, 1 N. C. C. A.
892.
There can be no vested right to" con-
tinue a condition of monoi)oly or of uc-
due restriction of competition, any
more than there can be a vested righi
to continue any other obstruction to iht
free flow of interstate commerce.
Butchers' Union S. H. & L. S. L Co.
V. Crescent City L. S. L. & S. H. Co. Ill
U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep.
652; Uaion Bndge Co. v. United States.
204 U. S. 364, 51 L. ed. 523, 27 Sup. a
Rep. 367; United States v. Chandler-
Dunbar Water Power Co. 229 U. S. 63,
57 L. ed. 1063, 33 Sup. Ct. Rep. 667;
Noble State Bank v. Haskell, 219 U. S.
104, 111, 113, 55 L. ed. 112, 116, 117,
32 L.R.A.(N.S.) 1062, 31 Sup. a. Rep.
186, Ann. Cas. 1912A, 487; Legal Ten-
der Cases, 12 Wall. 457, 551, 20 L. ed
287, 312.
Again, construing that act as appli-
cable to restraints of trade and monop-
olies first brought into being prior to its
enactment does not give it any retro-
active operation. Contracts, combina-
tions, and conspiracies in restraint of
trade are continuing offenses, and as
such may be enjoined whenever and
wherever they operate, irrespective of
when or where they were initiated.
United States v. Trans^Missoari
Freight Asso. 166 U. S. 290, 41 L. ed.
1007, 17 Sup. Ct. Bep. 540; Watcw-
Pierce Oil Co. v. Texas, 212 U. 8. 86, 53
L. ed. 417, 29 Sup. Ct. Rep. 220; United
States V. Kissel, 218 U. S. 601, 607, 54
L. ed. 1168, 1178, 31 Sup. Ct. Rep. 124;
Hyde v. United States, 225 U. S. 347.
363, 56 L. ed. 1114, 1124, 32 Sup. Ct
Rep. 793; Brown v. Elliott. 226 U. S.
392, 402, 56 L. ed. 1136, 1140, 32 Sop
Ct. Rep. 817; United States v. Amer-
ican Tobacco Co. 221 U. S. 106, 171,
184, 185, 55 L. ed. 663, 690, 696, 696, 31
Sup. Ct. Rep. 632.
Such a combination, as said by this
court in the Standard Oil Co. Case, is *
continually operating force restraiaiag
trade within the meaning of the Ist sec-
tion of the act (221 U. 8. 78, 55 L. ed.
652, 34 L.R.A.(N.S.) 834, 31 Sup. Ct
Bep. 502, Ann. Cas. 1912D, 734), and a
perennial violation of the 2d «Bctio&.
prohibiting monopoly (221 U. S. 74).
Furthermore, the ownership and to6-
trol of coal lands is not atlMkad m
Iflllt.
UNTTfiD STATES v. READING CO.
aach^ but merely as a means of monop-
olizing.
Northern Securities Co. v. United
States, 193 U. S. 197, 48 L. ed.'679, 24
Sup. Ct. Rep. 436.
No state legislation whatever oould
sanction the monopolization or re-
straint of interstate commerce.
Ibid.; United States v. Union P. R.
Co. 226 U. S. 61, 67 L. ed. 124, 33 Sup.
Ct. Rep. 53; United States v. Reading
Co. 226 U. S. 324, 67 L. ed, 243, 33 Sup.
Ct. Rep. 90.
It is a common thing for a corpora-
tion to be given power to acquire the
•capital stock of other corporations.
Such a power, however, must always be
exercised in subordination to the pub-
lic policy against restraints of trade
and monopolies.
United States Teleph. Co. v. Central
Union Teleph. Co. 122 C. C. A. 86, 202
Fed. 72; Distilling & Cattle Feeding Co.
V. People, 156 111. 488, 47 Am. St. Rep.
200, 41 N. E. 188.
The common law prevails in Pennsyl-
vania, and the rule of the common law
against restraint and monopolization of
trade, like the rule of the Sherman
Law, is a limitation of rights — ^rights
which may be pushed to evil conse-
quences, and therefore should be re-
strained.
Standard Sanitary Mfg. Co. v. Unit-
ed States, 226 U. S. 20, 49, 67 L. ed.
107, 117, 33 Sup. Ct. Rep. 9.
Even freedom of speech and of the
press, though guaranteed by the Consti-
tution itself, may yet be used illegally,
in furtherance of combinations in re-
straint of trade.
Eastern States Retail Lumber Deal-
ers' Asso. v. United States, 234 U. S.
600, 608, 58 L. ed. 1490, 1497, L.R.A.
1916A, 788, 34 Sup. Ct. Rep. 951; Gom-
pers v. Buck's Stove & Range Co. 221
17. S. 418, 55 L. ed. 797, 34 L.R.A.(N.S.)
874, 31 Sup. Ct. Rep. 492.
For 'like reason the right to acquire
property is limited by the prohibition
against restraint of trade.
Shawnee Compress Co. v. Anderson,
209 U. S. 423, 434, 52 L. ed. 865, 875,
28 Sup. Ct. Rep. 572; Harriman v.
Northern Securities Co. 197 U. S. 244,
29i, 49 L. ed. 739, 761, 25 Sup. Ct. Rep.
493; Standard Oil Co. v. United States,
221 U. S. 1, 59, 60, 55 L. ed. 619, 644,
646, 34 L.R.A.(N.S.) 834, 31 Sup. Ct.
Rep. 602, Ann. Cas. 1912D, 734; United
States v. American Tobaoeo Co. 221
U. 8. 106, 178, 184, 187, 55 L. ed. 663,
693, 606, 696, 31 Sup. Ct. Rep. 632;
United States v. Union P. R. Co. 226
€4 fi. ed.
I U. S. 61, 67 L. ed. 124, 33 Sup. Ct. Rep.
53; United States v. Reading Co. 22f)
U. S. 324, 352, 353, 57 L. ed. 243, 252,
253, 33 Sup. Ct. Rep. 90; United States
V. Patten, 226 U. S. 525, 539, 57 L. ed.
333, 340, 44 L.R.A.(N.S.) 325, 33 Sup.
Ct. Rep. 141; United States v. Pacilic
& A. R. & Nav. Co. 228 U. S. 87, 104,
57 L. ed. 742, 748, 33 Sup. Ct. Rep. 443 ;
United States v. E. I. du Pont do
Nemours & Co. 188 Fed. 151; Darius
Cole Transp. Co. v. White Star Line,
108 C. C. A. 165, 18C Fed. 63; United
States v. Addyston Pipe & Steel Co. 46
L.R.A. 122, 29 C. C. A. 141, 54 U. S.
App. 723, 85 Fed. 271, 291; Richardson
V. Buhl, 77 Mich. 632, 6 L.R.A. 457, 43
N. W. 1102: Harding v. American Glu-
cose Co. 182 111. 551, 64 L.R.A. 738. 74
Am. St. Rep. 189, 55 N. E. 577: Dis-
tilling & Cattle Feeding Co. v. People,
156 111. 448, 47 Am. St. Rep. 2^0, 41
N. E. 188; National Lead Co. v. S. E.
Grote Paint Store Co. 80 Mo. App. 247 ;
Central R. Co. v. Collins, 40 Ga. 582;
People ex rd. Peabody v. Chicago
Gas Trust Co. 130 111. 268, 8 L.R.A.
497, 17 Am. St. Rep. 319, 22 N. E. 708 ;
Dunbar v. American Teleph. & Teleg.
Co. 224 HI. 9, 115 Am. St. Rep. 132, 79
N. E. 423, 8 Ann. Cas. 57; State ex rel.
Watson v. Standard Oil Co. 49 Ohio St.
137, 15 L.R.A. 145, 34 Am. St. Rep. 541,
30 N. E. 279; State v. Nebraska Dis-
tiUing Co. 29 Neb. 700, 46 N. W. 155;
People V. North River Sugar Ref. Co.
54 Hun, 354, 5 L.R.A. 386, 7 N. Y.
Supp. 406; Atty. Gen. v. Great North -
em R. Co. 29 L. J. Ch. N. S. 794, 6 Jur.
N. S. 1006, 8 Week. Rep. 550.
As to corporations formed prior to
1874, the Pennsylvania Constitution,
while not retroactive, revoked all pre-
existing authority to acquire coal lands
or the stocks of mining companies, in
so far as that authority remained unex
ecuted. •■
Commodity Clause Case (United
States V. Delaware & H. Co.) 164 Fed.
253: Peiirsall v. Great Northern R. Co.
161 U. S. 646, 40 L. ed. 838, 16 Sup. Ct.
Rep. 705; Ix)uisville & N. R. Co. v. Ken-
tuck v, 161 U. S. 677, 40 L. ed.' 849, 16
Sup. Ct. Rep. 714.
It is a tacit condition of a grant of
incorporation that the grantees shall
act up to the end or design for which
they were incorporated; and hence,
through neglect or abuse of its fran-
chises, a corporation may forfeit its
charter, as for condition broken, or for
a breach of trust.
Com. V. Commercial Bank, 28 Pa. 389.
And liability to forfeiture once in-
SUPREME COURT OF THE UNITED STATES.
Oct. Tbh
curred continues until waived — as had
not been done in this instance — by the
only authority ordinarily competent to
do so, — the legislature.
People V. Phoonix Bank, 24 Wend.
433, 36 Am. Dec. 634; 2 Morawetz, Priv.
Corp. § 1029.
Even if railroads were, for a short
time, given power to aid coal companies
by the purchase of their stocks, it does
not follow that they were authorized to
become so completely identified with
those coal-mining companies as virtual-
ly to make them departments of the
railroad — as these defendants have done
— any more than a municipality which
has been authorized by law to aid in the
consti'uction of a raUroad by investing
in its securities would have authority to
become in effect the proprietor and ope-
rator of the railroad itself.
United States v. Delaware, L. & W. R.
Co. 238 U. S. 516, 529, 59 L. ed. 1438,
1443, 35 Sup. Ct. Rep. 873; United
States v. Lehigh Valley R. Co. 220 U. S.
257, 273, 55 L. ed. 458, 463, 31 Sup. Ct.
Rep. 387.
A purchaser at a judicial sale cannot
ac^iuire any right or interest in property
whieh he would be forbidden to acquire
at a private sale.
Louisville & N. R. Co. v. Kentucky,
supra.
Railroads engaged, as are the defend-
ants Reading Railway Company and
Centra] Railroad Company, in transport-
ing coal of the same kind from a sole
and restricted area of production to
the principal markets, are competitive,
whether their tracks reach the same indi-
vidual mines or not.
Re Rates for Transportation of An-
thracite Coal, 35 Inters. Com. Rep. 287;
United States v. Reading Co. 183 Fed.
489, 226 U. S. 324, 342, 351, 352, 67 L.
ed. 243, 248, 251, 252, 33 Sup^ Ct. Rep.
90; Stockton v. Central R. Co. 50 N. J.
Eq. 52, 17 L.R.A. 97, 24 AU. 964, 50
N. J. Eq. 491, 25 Atl. 942; United States
V. Lake Shore & M. S. R. Co. 203 Fed.
295; Interstate Conmierco Commission v.
Baird, 194 U. S. 25, 48 L. ed. 860, 24
Sup. Ct. Rep. 563; New York, N. H. &
H. R. Co. v. Interstate Commerce Com-
mission, 200 U. S. 361, 50 L. ed. 515, 26
Sup. Ct. Rep. 272; Louisville & N. R.
Co. V. Behlmer, 175 U. S. 648, 44 L. ed.
309, 20 Sup. Ct. Rep. 209; Texas & P.
R. Co. V. Interstate Commerce Commis-
sion, 162 U. S. 197, 211, 40 L. ed. 940,
f»44, 5 Inters. Com. Rep. 405, 16 Sup. Ct.
Hep. 666; Interstate Commerce Com-
misfflon v Alabama Midland R. Co. 108
roe
U. S. 144, 173, 42 L. ed. 414, 425, 18
Sup. Ct. Rep. 46.
Though the Reading Railway and the
Central R4iilroad Company interehiDge
some traffic, they are none the leas com-
petitive in their fundamental rdation.
United States v. Reading Co. 183 Fed.
489; Stockton v. Central R. Co. 50 N. J.
Eq. 52, 17 L.R.A. 97, 24 Atl. 964; Unit-
ed States V. Union P. R. Co. 226 U. S.
61, 57 L. ed. 124, 33 Sup. Ct. Rep. 53,
188 Fed. 126.
*A combination which renders impos-
sible competition between two soeb car-
riers as the Reading Railway Company
and the Central RaUroad Company, and
between two such owners, producers,
shippers, and sellers of a staple article
of commerce as the Reading Coal Com-
pany and the Wilkes-Barre Coal Com-
pany, restrains and monopolizes trade.
United States v. Joint Traffic Asso.
171 U. S. 505, 671, 43 L. ed. 259, 288,
19 Sup. Ct, Rep. 25; Northern Secu-
rities Co. V. United States, 193 U. S.
197, 337, 48 L. ed. 679, 700, 24 Sup. a
Rep. 436; National Cotton Oil Co. ▼.
Texas, 197 U. S. 115, 129, 49 L. ed. 6SP.
694, 25 Sup. Ct. Rep. 379; United States
V. Union P. R. Co. 226 U. S. 61, 87, 57
L. ed. 124, 133, 33 Sup. Ct Rep. 53;
United States v. Reading Ca 226 U. S.
324, 353, 57 L. ed. 243, 252, 33 Sup. Ct
Rep. 90; International Harvester Co. ▼.
Missouri, 234 U. S. 199, 209, 58 L ed.
1276, 1281, 52 L.RJL(N.S.) 525, 34 Sup.
Ct Rep. 859 ; 21 Cong. Rec. 1768, 2457,
2460, 2570, 2598, 2726, 3147, 4092, 4093.
6309 ; Standard Oil Co. v. United States,
221 U. S. 1, 50, 83, 84, 65 L. ed. 619,
641, 654, 655, 34 L.R.A.(N.8.) 834, 31
Sup. Ct. Rep. 602, Ann. Cas. 1912D,
734; United States v. Trans-Missouri
Freight Asso. 166 U. S. 290, 319, 324,
41 L. ed. 1007, 1020, 1021, 17 Sup. a
Rep. 640 ; Pearsall v. Great Northern R.
Co. 161 U. S. 646, 676, 40 L. ed. 838,
848, 16 Sup. Ct. Rep. 705; United SUtee
V. International Harvester Co. 214 Fed.
1001; United States v. Motion Picture
Patents Co. 225 Fed. 802; United States
V. American Can Co. 230 Fed. 901; State
ex rel. Watson v. Standard Oil Co. 49
Ohio St. 186, 15 L.R.A. 145, 34 Am. St
Rep. 541, 30 N. E. 279; Central R. Co.
V. Collins, 40 Ga. 629: Riehaidson v.
Buhl. 77 Mifh. 658, 6 L.R.A. 457, 43 N
W. 1102 ; Standard Sanitarv Mfg. Ca v
United States?. 226 U. S. 20* 49, 57 L eA
107, 117, 33 Sup. Ct. Rep. 9; Htrriman
V. Northern Securities Co. 197 U. S. 244,
49 L. ed. 739, 25 Sup. Ct Rep. 493;
Shawnee Comprew? Co. v. Anden»on, 209
U. S. 423. 434, 52 L. cd. S65, 875, 28
lyio.
I'MTKD STATES v! READING CO.
Sup. Ct. R^p. 572; United States v.
American Tobacco Co. 221 U. S. 106,
17a, 177, 55 L. ed. 6(53, 692, 693, 31 Sup.
01. Kep. 632.
li* only the two competitive railroads
had been combined through the Reading
Holding 'Company, the Anti-trust Act
would have been violated.
United States v. Union P. R. Co. 226
U. S. 61, 57 L, ed. 124, 33 Sup. Ct. Rep.
53; Northern Securities Co. v. United
States, 193 U. S. 197, 48 L. ed. 679, 24
Sup. Ct. Rep. 436; Harriman v. North-
em Securities Co. 197 U. S. 244, 291, 49
L. ed. 739, 761, 25 Sup. Ct. Rep. 493;
United States v. Joint Traffic Asso. 171
U. S. 505, 577, 43 L, ed. 259, 290, 19
Sup. Ct. Rep. 25; United States v.
Trans-Missouri Freight Asso. 166 U. S.
290, 41 L. ed. 1007, 17 Sup. Ct. Rep.
540; Pearsall v. Great Northern R. Co.
161 U. S. 646, 40 L. ed. 838, 16 Sup. Ct.
Rep. 705;. Louisville & N. R. Co. v. Ken-
tucky, 161 U. S. 677, 40 L. ed. 849, 16
Sup. Ct. Rep. 714; Standard OH Co. v.
United States, 221 U. S. 1, 55 L. ed. 619,
34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep.
662, Ann. Cas. 1912D, 734.
In prohibiting every contract or com-
bination which would destroy the com-
petitive relation between substantially
competitive interstate railroads, so far
from having done anything new or rev-
olutionary, ' Congress has but followed
the common law.
CKbbs V. Consolidated Qas Co. 130 U.
S. 396, 32 L. ed. 979, 9 Sup. Ct. Rep.
553; Louisville & N. R. Co. v. Kentucky,
161 U. S. 677, 698, 40 L. ed. 849, 858,
16 Sup. Ct. Rep. 714; Pearsall v. Great
Northern R. Co. 161 U. S. 646, 40 L. ed.
838, 16 Sup. Ct. Rep. 705; United States
v. Trans-Missouri Freight Asso. 166 U.
8. 290, 334, 41 L. ed. 1007, 1025, 17 Sup.
Ct. Rep. 540; Central R. Co. v. Collins,
40 Ga. 582; People ex rel. Peabody v.
Chicflco Gas Trust Co. 130 111. 268, 8
L.R.A. 497, 17 Am. St. Rep, 319, 22 N.
E. 798; Milbank v. New York, L. E.
A W. R. Co. 64 How. Pr. 20; Pear-
son V. Concord R. Corp. 02 N. H.
537, 13 Am. St. Rep. 590; Memphis
& C. R. Co. V. Woods, 88 Ala. 630, 7
L.F.A. 605, 16 Am. St. Rep. 81, 7 So,
108; Noves, Intercorporate Relations, §
292; Cook, Stock & Stockholders, § 315;
Morawetz, 22 Harvard L. Rev. 492, 495 ;
Re Consolidations & Combinations of
Carriers, 12 Inters. Com. Rep. 277.
But, leaving the railroads out of con-
sideration, there would still be here a
combination of competitive owners, pro-
ducers, shippers, and sellers of anthra-
cite coal, violative of the Anti-trust Act.
64 L. ed.
Standard Oil Co. v. United States, 221
U. S. 1, 55 L. ed. 619, 34 L.R.A.{N.S.)
834, 31 Sup. Ct. Rep. 502, Ann. Cas.
1912D, 734; United States v. American
Tobacco Co. 221 U. S. 106, 55 L. ed. 663,
31 Sup. Ct. Rep. 632; Amot v. Pitts^on
& E. Coal Co. 68 N. Y. 566, 23 Am. Rep.
190; United States v. Reading Co. 22o
U. S. 324, 353, 57 L. ed. 243, 252, 33
Sup. Ct. Rep. 90, 183 Fed. 470; North-
em Securities Co. v. United States, 193
U. S. 197, 327, 48 L. ed. 679, 696, 24
Sup. Ct. Rep. 436.
The present combination of the Read-
ing Railway Company and the Central
Railroad Company, and of the Reading
Coal Company and the Wilkes-Barre
Coal Company, tlirough a holding com-
pany, is but a renewal, in slightly differ-
ent form, of the attempted combination
in 1892 of the same railroads and coal
companies by a lease from the Central
to a subsidiary company of the Reading,
declared unlawful by the courts of New
Jersey.
Stockton V. Central R. Co. 50 N. J.
Eq. 52, 17 L.R.A. 97, 24 Atl. 964, 50
N. J. Eq. 490, 25 Atl. 942 ; McCarter v.
Fireman's Ins. Co. 74 N. J. Eq. 372, 29
L.R.A.(N.S.) 1194, 135 Am. St. Rep.
708, 73 Atl. 80, 414, 18 Ann. Cas. 1048;
Stockton V. American Tobacco Co. 55
N. J. Eq. 367, 36 Atl. 971, 56 N. J. Eq.
847, 42 Atl. 1117.
This combination of able competitors,
by reason of its power, the methods by
which that power was attained and is
held, its conduct toward others, and the
intent which colors all its acts, not only
threatens, but has actually produced, a
serious abridgment of competition. It
is not necessarj' to show more.
United States v. E. C. Knight Co. 156
U. S. 1, 39 L. ed. 325, 15 Sup. Ct. Rep.
249; Stockton v. Central R. Co. 50 N. J.
Eq. 84, 17 L.R.A. 97, 24 Atl. 964; United
States V. Delaware, L. & W. R. Co. 238
U. S. 516, 533, 59 L. ed. 1438, 1445, 35
Sup. Ct. Rep. 873; Chesapeake & O.
Fuel Co. V. United States, 53 CCA.
256, 115 Fed. 623; Atty. Gen. v. Great
Northern R. Co. 29 L. J. Ch. N. S. 799,
6 Jut. N. S. 1006, 8 Week. Rep. 556:
United States v. Union P. R. Co. 226
U. R. 61, 57 L. ed. 124. 33 Sup. Ct. Kep.
53; Stockton v. Central R. Co. 50 N. J.
Eq. 52, 17 L.R.A. 97, 24 Atl. 964.
A transaction which the law prohibits
does not become lawful because the con-
scious purpose of the ultimate motive is
innocent.
Holmes, Common Law, 52, 54, 75;
Bishop, New Crim. Lew, § 343; New
York. N. H. & H. R. Co. v. Interstate
767
SLTliEAlK COUUT OF TUK L'XITKD STATED.
Oct. J jam,
Commerce Commissiou, 200 U. S. 361,
398, 50 L. ecL 515, 524, 26 Sup. Ct. Rep.
272; United States v. Delaware, L. & W.
H. Co. 238 U. S. 516, 534, 59 L. ed. 1438,
1445, 35 Sup. Ct. R^p. 873; Eastern
States Retail Lumber Dealers' Asso. v.
United States, 234 U. S. 600, 58 L. ed.
1490, L.R.A.1915A, 788, 31 Sup. Ct.
Kep. 951; International llan'cstcr Co. v.
Missouri, 234 U. S. 199, 209, 58 L. ed.
1276, 1281, 52 L.R.A.(N.S.) 525, 34 Sup.
Ct. Rep. 859 ; Nash v. United States, 229
U. S. 373, 376, 57 L. ed. 1232, 1235, 33
Sup. Ct. Rep. 780; United States v. Pat-
ten, 226 U. S. 525, 543, 57 L. ed. 333,
341, 41 L.R.A.(N.S.) 325, 33 Sup. Ct.
Kep. 141; United States v. Reading Co.
226 U. S. 324, 370, 57 L. ed. 243, 259,
33 Sup. Ct. Rep. 90; United States v.
Union P. R. Co. 226 U. S. 61, 92, 93, 57
L. ed. 124, 135, 136, 33 Sup. Ct. Rep.
53; Standard Sanitary Mfg. Co. v. Unit-
ed States, 226 U. S. 20, 49, 57 L. ed. 107,
117, 33 Sup. Ct. Rep. 9; Standard Oil
Co. V. United States, 221 U. S. 65, 55
L. ed. 647, 34 L.R.A.(N.S.) 834, 31 Sup.
Ct. Rep. 502, Ann. Cas. 1912D, 734;
American Tobacco Co. v. United States,
221 U. S. 106, 179, 55 L. ed. 663, 693, 31
Sup. Ct. Rep. 632; Qrenada Lumber Co.
V. Mississippi, 217 U. S. 433, 441, 54
L. ed. 826, 830, 30 Sup. Ct. Rep. 535;
Hairiman v. Northern Securities Co. 197
U. S. 244, 291, 49 L. ed. 739, 761, 25
Sup. Ct. Rep. 493; Northern Securities
Co. V. United States, 193 U. S. 197, 328,
337, 48 L. ed. 679, 696, 700, 24 Sup. Ct.
Rep. 436; Addyston Pipe & Steel Co. v.
United States, 175 U. S. 211, 44 L. ed.
136, 20 Sup. Ct. Rep. 96; United States
V. Joint Traffic Asso. 171 U. S. 505, 561,
43 L. ed. 259, 284, 19 Sup. Ct. Rep. 25;
United States v. Trans-Missouri Freight
Asso. 166 U. S. 290, 341, 41 L. ed. 1007,
1027, 17 Sup. Ct. Rep. 540; Chesapeake
& 0. Fuel Co. V. United States, 53 C. C.
A. 256, 115 Fed. 622; Lawlor v. Loewe,
109 C. C. A. 288, 187 Fed. 524; United
States V. Motion Picture Patents Co. 225
Fed. 808.
The fact that the rates or prices
oliarged by a combination are reasonable
is no defense under the Anti- trust Act.
United States v. Union P. R. Co. 226
U. S. 61, 67 L. ed. 124, 33 Sup. Ct. Rep.
^S; United States v. Delaware, L. & W.
R. Co. 238 U. S. 516, 69 L. ed. 1438, 35
Sup. Ct. Rep. 873; United States v.
Trans-Missouri Freight Asso. 166 U. S.
290, 324, 41 L. ed. 1007, 1021, 17 Sup.
Ct. Rep. 540; United States v. Joint
Traffic Asso. 171 U. S. 505, 565, 43 L. ed.
269, 286, 19 Sup. Ct. Rep. 26; Pearsall
V. Great Northern R. Co. 1«1 U. S. 646.
74ia
676, 677, 40 L. ed. 838, 848, 849, 16
Sup. Ct. Rep. 705; Addyston Pipe A
Steel Co. V. United States, 175 U. S. 211,
238, 44 L. ed. 136, 146, 20 Sup. Ct. Rep.
96; Northern Securities Co. v. United
Statei>, 193 U. S. 197, 327, 48 L. ed. 679.
696, 24 Sup. Ct. Rep. 436; Hatriman v.
Northern Securities Co. 197 U. S. 241,
291, 49 L. ed. 739, 761, 25 Sup. Ct. Rep
493; International Harvester Co. v. Blis-
souri, 234 U. S. 199, 209, 58 L. ed. 1276,
1281, 62 L.R.A.(N.S.) 625, 34 Sup. a
R€p. 859, 237 Mo. 394, 141 S. W.
672; State ex rcl. Watson v. Stand-
ard Oil Co. 49 Ohio St. 186, 15 L.R.A
145, 34 Am. St. R«p. 641, 30 N. E. 279;
Harding v. American Qlucose Co. 182
111. 619, 64 L.R:A. 738, 74 Am. St. Rep.
189, 56 N. K. 577; DistUling & Cattle
Feeding Co. v. People, 156 lU. 489, 47
Am. St. Rep. 200, 41 N. E. 188; People
V. North River Sugar Ref. Co. 64 Hun,
379, 6 L.R.A. 386, 7 N. Y. Supp. 406;
Stockton V. Central R. Co. 50 N. J. Eq.
84, 17 L.R.A. 97, 24 Atl. 964; Richard-
son V. Buhl, 77 Mich. 660, 6 L.R.A. 457,
43 N. W. 1102; State v. Eastern Coal
Co. 29 R. I. 254, 132 Am. St. Rep. 817,
70 Atl. 5, 17 Ann. Cas. 96; San Antonio
Gas Co. V. State, 22 Tex. Civ. App. 122,
54 S. W. 289; Pocahontas Coke Co. ?.
Powhatan Coal & Coke Co. 60 W. Vt.
525, 10 L.R.A.(N.S.) 268, 116 Am. St.
Rep. 901, 56 S. E. 264, 9 Ann. Cas. 667.
Since the argument helow, it has been
authoritatively determined hry the Inter-
state Commerce Commission, after ex-
haustive investigation, that the freight
rates charged by both the Reading and
the Central were excessive; and, what is
worse, that they were made excessive for
the express purpose of excluding inde-
pendent producers from the trade.
Re Rates for Transportation of An-
thracite Coal, 35 Inters. Com. Rep. 226
This finding, which is in accord with
earlier decisions involving rates of the
same amount via other anthraeite rail-
roads (Coxe Bros. v. Lehigh Vallev R
Co. 3 Inters. Com. Rep. 460, 4 1. C. C
Rep. 535 ; Meeker v. Ijehifi^ Vallev K
Co. 21 Inters. Com. Rep. 129, 236 U. S
412, 69 L. ed. 644, P.U.R.1915D, 1072.
35 Sup. Ct. Rep. 328, Ann. Cas. 1916B.
691; I^high Valley R. Co. v. United
States, 204 Fed. 986; Anti-Trnst Case
(Meeker v. Lehigh Valley R. Co.) 106
C. C. A. 94, 183 Fed. 548; Marian Coal
Co. v. Delaware, L. & W. B. Co, 34
Inters. Com. Rep. 140, 26 Inters. Coo.
Rep. 14), and has been affirmed by later
ones (Red Ash C^mJ Co. v. Central B
Co. 37 Inters. Com. Rep. 460; Weston.
Dodson A Co. V. Central R. Co. 3^
9fts r. *•
LOID.
UXllED STATES v. READtS'G CO.
Inters, torn. Rep. 206; Plymouth Coal
Co. V. Lehigh Valley R. Co. 36 Inters,
Com. Rep. 143; G. B. Markle Co. v.
Lehigh Valley R. Co. 37 Inters. Com.
Rep. 441; Plymouth Goal Co. v. Penn-
sylvania R. Co. 37 Inters. Com. Rep.
457), concludes the question and renders
further discussion unnecessary.
The agreements of 1871, 1883, 1887.
and 1892 unduly restrict the freedom of
the Lehigh Coal & Navigation Company
and the Wilkes-Barre Coal Company in
selecting markets and otherwise carrying
on their business.
United States v. Delaware, L. & W. R.
Co. 238 U. S. 516, 533, 59 L. ed. 1438,
1445, 35 Sup. a. Rep. 873; Standard
Oil Co. V. United States, 221 U. S. 1,
58, 55 L. ed. 619, 644, 34 L.R.A.(N.S.)
834, 31 Sup. Ct. Rep. 502, Ann. Cas.
1912D, 734; United States v. American
Tobacco Co, 221 U. S. 106, 179, 55 L. ed.
663, 693, 31 Sup. Ct Rep. 632; United
States V. Reading Co. 226 U. S. 324, 370,
57 L. ed. 243, 259, 33 Sup. Ct. Rep. 90;
Nash V. United States, 229 U. S. 373,
376, 57 L. ed. 1232, 1235, 33 Sup. Ct.
Bep. 780; United States v. Lake Shore
A. M. S. R. Co. 203 Fed, 311.
The agre^nents exclude other carriers
from the privilege of competing with the
CentnU Railroad Company for the trans-
portation of large tonnage of anthracite.
Dr. Miles Medical Co. v. John D. Park
& Sons Co. 220 U. S. 373, 408, 55 L. ed.
502, 518, 31 Sup. .Ct. Rep. 376 ; Henry
v. A. B. Dick Co. 224 U. S. 1, 49, 54,
56 L. ed, 645, 664, 666, 32 Sup. Ct. Rep:
364, . Ann. Cas. 1913D, 880 ; United
Stotes V. Reading Co. 226 U. S. 324, 57
L. ed. 243, 33 Sup. Ct. Rep. 90: United
States V. Great Lakes Towing Co. 208
Fed. 745; United States Teleph. Co. v.
Central U. Teleph. Co. 122 C. C. A. S6,
202 Fed. 66; Gwynn v. Citizens' Teleph.
Co. 69 S. C. 443, 67 L.R.A. 111. 104 Am.
St. Rep. 819, 48 S. E. 460; United States
r. Keystone Watch Case Co. 218 Fed.
510; United States v. Eastman Kodak
Co. 226 Fed. 76; United States v. Mo-
tion Picture Patents Co. 225 Fed. 809;
United States v. Corn Products Ref. Co.
234 Fed. 964: Merchants Legal Stamp
Co. V. Murphv, 220 Mass. 28L L.R.A.
1915C, 520, 107 N. E. 968; Standard
Sanitary Mfg. Co. v. United States, 226
U. S. 20, 46, 47, 57 L. ed. 107, 116, 117,
33 Sup. Ct. Rep. 9 ; W. W. Montague &
Co. V. Lowrj', 193 U. S. 38, 48 L. ed. 608,
24 Sup. Ct.' Rep. 307; Continental Wall
Paper Co. v. Louis Voight & Sons Co.
212 U. S. 227, 53 L. ed. 486, 29 Sup. Ct.
Elep, 280; Ellis v. Inman. P. & Co. 65
C. C. A. 488. 131 Fed. 182; United
•4 L. ed.
I States V. Union P. R. Co. 226 U. S. 61,
83, 57 L. ed. 124, 132, 33 Sup. Ct. Rep.
53; United States v. Union Stock Yard
& Transit Co. 226 U. S. 286, 308, 57
L. ed. 226, 234, 33 Sup. Ct. Rep. 83;
Cleveland, C. C. & St. L. R. Co. v.
Hirsch, 123 C, C, A, 145, 204 Fed. 849.
The agreements bring under the com-
bined control of the Navigation Com-
pany and the Central Railroad Company
two carriers of anthracite, namely, the
Lehigh & Hudson River Railway Com-
pany and the Lehigh & New England
Railroad Company, which are natural
competitors of eac^ other and of the
Central Railroad Company,
United States v. Umon P. R. Co. 226
U, S. 61, 57 L. ed. 124, 33 Sup. Ct. Rep.
53,
By requiring rates between points
common to the canal operated by the
Navigation Company and the railroad
operated by the Central Railroad Com-
pany to be arranged by n^utual agree-
ment, the agreements suppi^ess competi-
tion between the canal and the railroad
in the transportation of anthracite and
other freight.
United States r, Trans-Missouri Freight
Asso. 166 U. S. 290, 41 L. ed. 1007, 17
Sup. Ct. Rep. 540; United States v.
Joint Traffic Asso. 171 U. S. 505, 43
L. ed. 259, 19 Sup. Ct. Rep. 25; United
States v. Union P. R. Co. 226 U. S. 61,
85, 88, 57 L. ed. 124, 132, 134, 33 Sup.
Ct. Rep. 53.
It makes no difference that the canal
itself is intrastate. It is an avenue of
interstate traffic, and ratemaking in re-
spect of such traffic is subject to Federal
law.
Baer Bros. Mercantile Co. v» Denver
& R. G. R. Co. 233 U. S. 479, 58 L. ed.
1055, 34 Sup. Ct. Rep. 641, 13 Inters.
Com. Rep. 329; Denver & R. G. R. Co.
V. Interstate Commerce Commission, 195
Fed. 968; Texa^ & N. 0. R. Co. v. Sa-
bine Tram Co. 227 U. S. Ill, 57 L. ed.
442, 33 Sup. Ct. Rep. 229.
The fact that the agreements were
made prior to the enactment of the Anti-
trust Act does not remove them from the
operation of the act.
United States r. Trans-Missouri Freight •
Asso. 166 U. S. 290. 342. 41 L. ed. 1007,
1028. 17 Sup. Ct. Rep. 540; Armour
Packing Co. v. United States, 209 U. S.
56, 52 L. ed, 681, 28 Sup. Ct. Rep. 428 ;
United States ex rel. Attv. Gen. v. Del-
aware & H. Co. 213 U. S. 366, 416, 53
L. ed. 836, 852, 29 Sup. Ct. Rep. 527;
Louisville & N. R. Co. v. IVFottlev. 219
U. S. 467, 478, 55 L. ed. 297, 301, 34
L.R.A.(N.S.) 671. 31 Sup. Ct. Rep.
265; Philadelphia. B. & W. R. Co. v.
49 769
SUPREME COURT OF THE UNITED STATES.
<^'cr. Jlrm,
Schubert, 224 U. S. 603, 56 L. ed. 911, 32
Sup. Ct. Rep. 589, 1 N. C. C. A. 892.
The transportation by the Reading
Railway Company and the Central Rail-
" road Company of anthracite coal mined
or purchased, and, at the time of trans-
portation, owned respectively by the
Reading Coal Company and the Wilkes-
Barre Coal Company, violates the com-
modity clause of the Act to Regulate
Commerce.
United States ex rel. Atty. Qen. v.
Delaware & H. Co. 213 U. S. 366, 53
L. ed. 836, 29 Sup. Ct. Rep. 527 ; United
States v. Lehigh Valley R. Co. 220 U. S.
257, 55 L. ed. 458, 31 Sup. Ct. R«p. 387;
United States v. Central R. Co. 220 U.
S. 275, 55 L. ed. 464, 31 Sup. Ct. Rep.
392; Delaware, L. & W. R. Co. v. United
States, 231 U. S. 363, 370, 58 L. ed. 269,
272, 34 Sup. Ct. Rep. 65; Tap Line
Cases (United States v. Louisiana & P.
R. Co.) 234 U. S. 1, 27, 58 L. ed. 1185,
ll95, 34 Sup. Ct. Rep. 741; United
States V. Delaware, L. & W. R. Co. 238
U. S. 516, 59 L. ed. 1438, 35 Sup. Ct.
Rep. 873; Interstate Commerce Commis-
sion V. Baird, 194 U. S. 25, 42, 43, 48
L. ed. 860, 868, 869, 24 Sup. Ct. Rep.
563; Re Rates for Transportation of
Anthracite Coal, 35 Inters. Com. Rep.
220 ; Lehigh Valley R. Co. v. Rainey, 112
Fed. 487; Stockton v. Central R. Co. 50
N. J. Eq. 52, 17 L.R.A. 97, 24 Atl. 964;
Farmers' Loan & T. Co. v. New York &
N. R. Co. 150 N. Y. 430, 34 L.R.A. 76,
55 Am. St. Rep: 689, 44 K E. 1043;
United States v. Union Stock Yard &
Transit Co. 226 U. S. 286, 306, 57 L. ed.
226, 234, 33 Sup. Ct. Rep. 83; Fourche
River Lumber Co. v. Bryant Lumber Co.
230 U. S. 316. 323, 57 L. ed. 1498, 1501,
33 Sup. Ct. R€p. 887; United States v.
Milwaukee Refrigerator Transit Co.
142 Fed. 247; Buie v. Chicago, R. L &
P. R. Co. 95 Tex. 51, 55 L.R.A. 861, 65
S. W. 27; Chicago Union Traction Co.
V. Chicago, 199 111. 626, 65 K E. 470;
Columbus, H. V. & T. R. Co. v. Burke,
20 Ohio L. J. 287.
The Wilkes-Barre Coal Company was
created by the Central Railroad Com-
^ pany through the consolidation of sev-
' eral smaller coal companies for the ex-
press purpose of holding and mining
coal lands along its line. The date of its
incorporation, January 20, 1874, was
after the Pennsylvania Constitution of
1874 became operative, and therefore the
contention that th^ relation between them
is sanctioned by Pennsylvania law — ir-
relevant in any event (United States v.
Union P: R. Co. 226 U. S. 61, 86, 57 L.
ed. 124, 133, 33 Sup. Ct. Rep. 53; Harri-
4 t
0
I man v. Northern Securities Co. 197 U. S.
244, 249, 49 L. ed. 739, 741, 25 Sup. Ct.
Rep. 493; Standard Oil Co. v. United
States, 221 U. S. 1, 68, 55 L. ed. 619
648, 34 L.R.A.(N.S.) 834, 31 Sup. Ct.
Rep. 502, Ann. Cas. 1912D, 734; United
States V. American Tobacco Co. 221 U.
S. 106, 183, 55 L. ed. 663, 695, 31 Sup.
Ct. Rep. 632) — ^is without basi.«i.
The Central's acquisition of the shares
of the consolidated company after the
adoption of the new Constitution of
Pennsylvania was not a mere contin-
uance of 'its prior ownership of the
shares of the constituent companies.
The Wilkes-Barre Coal Company was an
entirely new corporation, — not leps so
because formed by a consolidation of
pre-existing corporations. Atlantic & G.
R. Co. V. Georgia, 98 U. S. 359, 25 L, ed.
185; St. Louis, I. M. & S. R. Co. v. Ber-
ry, 113 U. S. 465, 28 L. ed. 1055, 5 Sup.
Ct. Rep. 529; Keokuk & W. R. Co. v.
Missouri, 152 U. S. 301, 308, 310. 38
L. ed. 450, 454, 455, 14 Sup. Ct. Rep.
592; Mercantile Bank v. Tennessee, 161
U. S. 161, 171, 40 L. ed. 656,' 659, 16
Sup. Ct. Rep. 461 ; Yazoo & M. Valley
R. Co. V. Adams, 180 U. S. 1, 18, 21, 45
L. ed. 395, 405, 406, 21 Sup. Ct. Rep.
240; Yazoo & M. Valley R. Co. y. Vicks-
burg, 209 U. S. 358, 362, 52 L. ed. 8a3,
834, 28 Sup. Ct. Rep. 510. The Cen-
tral's acquisition after January 1, 1874,
of the shares of Wilkes-Barre Coal Com-
pany, was therefore -a new and inde-
pendent acquisition, and, as such, con-
trolled by the laws then in force.
Again, even if it be assumed that the
Act of 1869 wrote into the charters of
the Wilkes-Barre Coal & Iron Company
and the Honeybrook Coal Company the
right to have railroads purchase their
shares, they could not transfer sneh
right to their successor corporation, the
Wilkes-Barre Coal Company, since, in
the meantime, the prohibition in the
Pennsylvania Constitution of 1874 had
gone into eflPect.
Rochester R. Co. v. Rochester, 205
U. S. 236, 254, 51 L. ed. 784, 791, 27
Sup. Ct. Rep. 469; Yazoo & M. Vallev
R. Co. V. Vicksburg, 209 U. S. 358, :^2
L. ed. 833, 28 Sup. Ct. Rep. 510; Great
Northern R. Co. v. Minnesota, 216 U. S.
206, 54 L. ed. 446, 30 Sup. Ct. Rep. 344.
The defendants contend that the ques-
tion whether transportation by the Cen-
tral Railroad Company of coal owned by
the Wilkes-Barre Coal Company violates
thp commodity clause is res judicata
under the decision of this court- in X^nit-
ed States v. Central R. Co. 213 U. S.
415, 53 L. ed. 851, 29 Sup. Ct. Rep. 527;
S5S V. S.
1919.
UNITED STATES v. READING CO.
United States v. Central B. Co. 220 U. S.
275, 55 L. ed. 464, 31 Sup. Ct. Rep.
392. An examination of that case and
of the companion case of United States
V. Lehigh VaUey R. Co. 220 U. S. 257,
55 L. ed. 468, 31 Sup. Ct. Rep. 387, will
demonstrate that this contention is un*
sound.
The district court should require that,
within a stated period, the defendants
submit a plan of dissolution for its ap*
proval, and should hear both the govern-
ment and the defendants in regard there-
to; and if defendants shall fail to sub-
mit a plan within the period stated, or
if the plan submitted ^all be rejected,
the district court should give effect to
the requirements of the statute through
the appointment of a receiver, or by en-
joining the movement of the products
of the combination in interstate com-
merce
United States v. Union P. R. Co. 226
U. S. 61, 97, 98, 57 L. ed. 124, 137, 138,
33 Sup. Ct Rep. 63; United States v.
American Tobacco Co. 221 U. S. 106,
187, 188, 55 L. ed. 663, 696, 697, 31 Sup.
Ct. Rep. 632 ; 'United States v. Interna-
tional Harvester Co. 214 Fed. 987.
The separations required should be by
such means as will most thoroughly effec-
tuate that purpose.
United States v. Union P. R. Co. 226
U, S. 476, 57 L. ed. 308, 33 Sup. Ct.
Rep. 162. '^
Solicitor General King arg^ued the
cause, and, with Attorney General Palm-
er and Mr. A. F. Myers, filed a brief
for the United States on the third argu-
ment.
Messrs. Jackson £. Reynolds and
John Q. Johnson argued the cause on
original argument, and, with Mr. Charles
Heebner, filed a brief for the Reading
Company et al.:
The Reading Company has not mo-
nopolized, and is not monopolizing, in
violation of the Anti-trust Act, the pro-
duction, transportation, and sale of an-
tlirm'ite coal from mines in the Schuyl-
kill resrion tributary to the lines of the
Philadelphia & Reading Railway Com-
pany.
United States v. Reading Co. 183 Fed.
457, 226 Fed. 229; United States ex rel.
Attv. Gen. v. Delaware & H. Co. 213 U.
S. 366, 402, 403, 53 L. ed. 836, 843,
844, 29 Sup. Ct. Rep. 527; Com. v. New
York, L. E. & W. R. Co. 132 Pa. 606, 7
L.R.A. 634, 19 Atl. 291; Gamble-Rob-
inson Commission Co. v. rhicaffo & N.
W. R. Co. 21 L.R.A.(N.S.) 982, 94 C.
C. A. 217, 168 Fed. 161, 16 Ann. Cas.
613: Oregon Short Line & U. N. R. Co.
94 li. ed.
V. Northern P. R. Co. 4 Inters. Com.
Rep. 249, 51 Fed. 465; Little Rock &
M. R. Co. V. St. Louis & S. W. R. Co.
26 L.R.A. 192, 4 Inters. Com. Rep. 854,
11 C. C. A. 417, 27 U. S. App. 380, 63
Fed. 775; United States v. Reading Co.
226 U. S. 324, 57 L. ed. 243, 33 Sup. Ct.
Rep. 90; Cincinnati, P. B. S. & P.
Packet Co. v. Bay, 200 U. S. 179, 184,
50 L. ed. 428, 432, 26 Sup. Ct. Rep. 208;
Bald Eagle VaUey R. Co. v. Nittany
Valley R. Co. 171 Pa. 284, 29 L.R.A.
423, 50 Am. St. Rep. 807, 33 Atl. 239;
Oregon R. & Nav. Co. v. Dumas, 104
C. C. A. 641, 181 Fed. 781 ; E. E. Taen-
zer & Co. V. Chicago, R. I. & P. R. Co.
112 C. C. A. 153, 191 Fed. 543; United
States V. Winslow, 227 U. S. 202, 218,
57 L. ed. 481, 485, 33 Sap. Ct. Rep. 253.
The acquisition by the Reading Com-
pany of a majority of the shares of the
Central Railroad Company of New Jer-
sey has not resulted in a combination in
restraint of trade, and a monc^olization
thereof, in violation of the Anti-trust
Act.
United States v. Hamburg-Amerikan-
ische Pa<&etfahrt-Actien Gesellschaft,
239 U. S. 466, 475, 60 L. ed. 387, 391,
36 Sup. Ct. Rep. 212; Cong. Rec. 51st
Cong. 1st Sees. p. 8151; 2 Hoar, Auto-
biography of Seventy Years, p.* 364;
United States v. E. I. dn Pont de Ne-
mours & Co. 188 Fed. 150; Northern Se-
curities Co. V. United States, 193 U. S.
197, 48 L. ed. 679, 24 Sup. Ct. Rep. 436;
Standard Oil Co. v. United States, 221
U. S. 1, 55 L. ed. 619, 34 L.R.A.(N.S.)
834, 31 Sup. Ct. Rep. 502, Ann. Cas.
191 2D, 734; United States v. American
Tobacco Co. 221 U. S. 106, 179, 180, 55
L. ed. 663, 693, 694, 31 Sup. Ct. Rep.
632; United States v. Terminal R. Asso.
224 U. S. 383, 394, 56 L. ed. 810, 813,
32 Sup. Ct. Rep. 507; Nash v. United
States, 229 U. S. 373, 57 L. ed. 1232, 33
Sup. Ct. Rep. 780; United States v. Pa-
cific & A. R. & Nav. Co. 228 U. S. 87,
57 L. ed. 742, 33 Sup. Ct. Rep. 443;
Swift & Co. V. United States, 196 U. S.
375v 49 L. ed. 518, 25 Sup. Ct. Rep. 276;
Taft, Anti-trust Act, pp. 112, 126, 127;
United States v. Union P. R. Co. 22G
U. S. 61, 93, 57 L. ed. 124, 135, 33 Sup.
Ct. Rep. 53; United States v. Reading
Co. 226 U. S. 324, 370, 57 L. ed. 243,
259, 33 Sup. Ct. Rep. 90, 183 Fed. 479;
Southern P. Co. v. Interstate Commerce
Commission, 200 U. 8. 536, 553. 554, 50
L. ed. :)85, 593, 26 Sup. Ct. Rep. 330;
Texas & P. R. Co. v. Abilene Cotton
Oil Co. 204 U. S. 426, 440, 51 L. ed.
553, 558, 27 Sup. Ct. Rep. 350, 9 Ann.
Cas, 1075; United States v. United
771
4U-42 •
. SUPREME COURT OF THE UNITED STATES.
Oct. Tekm,
States Steel Corp. 223 Fed. 65; United
States V. Eleystone Watch Case Co. 218
Fed. 513; United States v. International
Harvester Co. 214 Fed. 987; Dady v.
Oeorgia & A. R. Co. 112 Fed. 838;
I^uisviUe & N. R. Co. ▼. Kentucky, 161
U. S. 677, 40 L. ed. 849, 16 Sup. Ct
Rep. 714; United States v. Lake Shore
& M. S. R. Co. 203 Fed. 323.
The transportation by the Philadel-
phia Si Reading Railway Company in
interstate commerce of anthracite coal
mined or purchased, and, at the time of
transportation, owned by the Philadel-
phia & Reading Coal & Iron Company,
does not violate the commoditv clause of
_ _ ^
the Act to Regulate Commerce.
Delaware, L. & W. R. Co. v. United
States, 231 U. S. 363, 58 L. ed. 269, 34
Sup. Ct. Rep. 65; United States ex feL
Atty. Gen. v. Delaware & H. Co. 164
Fed. 215, 213 U. S. 366, 402, 413, 414,
53 L. ed. 836, 843, 851, 29 Sup. Ct. Rep.
527; United States v. Delaware, L. A W.
R. Co. 238 U. S. 516, 526, 59 L. ed. 1438,
1442, 35 Sup. Ct. Rep. 873; United
States V. Lehigh Valley R. Co. 220 U. S.
257, 274, 55 L. ed. .458, 464, 31 Sup. a.
Rep. 387.
Mr. Jackson £. Seynolds argued the
cause for the Reading Company on the
second and third arguments.
Mr. Robert W. De Forest argued the
cause, and, with Mr. Charles £. Miller,
filed a brief for the Central Railroad
Company of New Jersey et al.
Messrs. Henry S. Drinker, Jr., and
Abraham M. Beitler filed a brief for tiie
Lehigh Coal & Navigation Company.
Mr. John J. Beattie filed a brief for
the Lehigh & Hudson River Railway
Company.
Mr. William Jjay Turner filed a brief
for the Lehigh & New England Railroad
Company.
Mr. Justice Olarke delivered the opin-
ion of the court:
These are app>eals from a decree en-
tered in a suit institutei by the govern-
ment to dissolve the intercorporate re-
lations existing between the corporation
defendants, for the alleged reason that
through such relations they [41] con-
stitute a combination in restraint of
interstate commerce in anthracite coal,
and an attempt to monopolize or a
monopolization of such trade and com-
merce, in violation of the first and
second sections of the Anti-trust Act
of Congress of July 2, 1890 (26 Stat.
772
at L. 209, chap. 647, Comp. Stat § 8820.
9 Fed. Stat Anno. 2d ed. p. 644); and
also for the alleged reason that the de-
fendants Philaddphia & Reading Railway
Company and Central Railroad CompanA'
of New Jersey are viohting the commodi-
ties clause of the Act of Congress of Jane
29, 1906 (34 Stat, at L. 585, chap. 3591,
Comp. Stat. § 8563, 4 Fed. Stat Anno.
2d ed. p. 359); by transporting over their
lines of railroad, in interstate commerce,
coal mined or purchased by coal compa-
nies with which they are associated by
stock ownership.
It will contribute to brevity and clear-
ness to designate the defendant corpora-
tions as follows: Reading Company, as
the Holding Company; Philadelphia &
Reading Railway Company, as Reading
Railway Company; Philadelphia & Read-
ing Coal & Iron Company, as Reading
Coal Company; Central Railroad Com-
pany of New Jersey, as Central Railroad
Company; Lehigh & Wilkes-Barre Coal
Company as Wi&es-Barre Company; Le-
high Coal & Navigation Company as
Navigation Company.
Practically all of the anthracite coal in
this countiy is found in northeastern
Pennsylvania, in three limited and sub-
stantially parallel deposits, located in
valleys which are separated by moun-
tainous country. For trade purposes
these coal areas are designated: the most
northerly, as the Wyoming field, estimated
to contain about 176 square miles of coal ;
the next southerly, as the Middle or Le-
high field, estimated to contain about 45
square miles; and the most southerly, as
the Schuylkill field, estimated to contain
about 263 square miles of coaL
The annual production of the mines in
these three fields in 1896 was about 43,-
640,000 tons, and in 1913 it sligfatly ex-
ceeded 71,000,000 tons. The chief mar-
keting centers for this great tonnage of
coal are New York, distant by rail from
the fidds about 140 miles, and Phikd^-
phia, distant [42] about 90 miles.
From these cities it is widely distributed
by rail and water throughout New York
and New England, an^, to some extent,
through the South.
Sudb a larg^ tonnage was naturally at-
tractive to railroad carriers, with the re-
sult that the Wyoming field has six out-
lets by rail to New York harbor, viz.:
the Central Railroad of New Jersey and
five others, known as initial antlnraeite
carriers. The Lehigh field has three sueh
rail outlets, but the largest, the Schuyl-
kill field, has only two direct rail eonnee-
tions with Philadelphia and New York.
viz.: the Reading and the Pennsyivama
S5S IT. 8.
1919.
UNITED STATES v. READING CO.
42-44
Railroads. Outlets by canal to Phila-
delphia and tidewater, at one time im-
portant, may here be neglect^.
This description of the subject-matter
and of its relation to the interstate trans-
portation system of the conntry Tfill suf-
fice for the purposes of this opinion. It
may be found in much greater detail in
the cases cited in the margin.^
The essential claims of the government
in the case have become narrowed to these,
viz.:
First : That the ownership by the Hold-
ing Company of controlling interests in
the shares of the capital stock of the
Reading BaUway Company, of the Read-
ing .Coal Company, and of the Central
Railroad Company, constitutes a combina-
tion in restraint of interstate trade and
commerce, and an attempt to monopolize
and a monopolisation of a part <rf the
same, in yiolation of the Anti-trust Act
of July 2, 1890.
Second: That the Holding Company in
itself constitutes a like violation of the
act.
Third: That certain covenants and
agreements between the Central Railroad
Company and the Navigation Company,
[43] contained in a lease, by the latter
to the former, of the Ldiigh & Susque-
hanna bailroad, constitute a like violar
tion of the act.
Fourth: That the transportation in
interstate commerce by the Reading
Railway Company and by the Central
Railroad Company, of coal mined or pur-
chased by the coal companies afiSliated
vrith each of them, constitutes a violation
of the commodities clause of the Act to
Regulate Commerce.
Pursuant to the provisions of the Act
of June 25, 1910 (36 Stat, at L. 854, chap.
428, Comp. Stat. § 8824, 6 Fed. Stat.
Anno. 2d ed. p. 137), the case was heard
by three circuit judges of the third cir-
cuit, who, while holding against the con-
tention of the government on many of the
prayers for relief in the bill, some gener-
ally and some without prejudice, also held
that the Reading Coal Company and the
Wilkes-Barre Coal Company were nat-
1 United States t. Reading Co. 183 Fed.
427 ; United States v. Reading Co. 226 Fed.
229; United States ex rel. Atty. Gen. v.
Delaware & H. Co. 213 U. S. 366, 63 L.
ed. 836, 29 Sup. Ct. Rep. 527; United
States V. Lehigh Vallev K. Co. 220 U. S.
257, 55 L. ed. 458. 31 Snp. Ct. Rep. 387;
United States v. Delaware, L. & W. R. Co.
238 U. S. 616, 59 L. pd. 1438, 35 Sup. Ct.
Rep. 873; United States v. Reading Co. 226
U. S. 324, 57 L. ed. 243, 33 Sup. Ct. Rep-
90.
64 li. ed.
urally competitive producers and sellers
of anthracite coal, and that their union
through the Holding Company and the
Central Company constituted a combina-
tion in restraint of trade within the Anti-
tmst'Act, and for this reason the Cen-
tral Company was ordered to dispose of
all the stock, bonds, and other securities
of the Wilkes-Barre Coal Company owned
by it, and was enjoined from requiring
the Coal Company to ship its coal over,
the lines of the Central Company.
The court also held that clauses in min-
ing leases by the Reading Coal Company
and by the Wilkes-Barre Coal Company,
and their subsidiaries, requiring the les-
sees to ship all coal produced, over roads
named or to be. designated, were unlaw-
ful and void.
The case has been appealed by both
parties, and is before us for review on all
of the issues as we have thus stated them.
Reference to the history of the proper-
ties now controlled by the Holding Com-
pany will be of value for the assistance
it will be in determining the intent and
purpose [44] with which the combina-
tions here assailed were formed. Stan-
dard Oil Co. V. United States, 221 U. S.
1, 46, 76, '55 L. ed. 619, 639, 651, 34
L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502,
Ann. Cas. 1912D, 734.
The Philadelphia & Reading Railroad
Company was chartered by special act of
the Pennsylvania general assembly in
1833, and it conducted the business of a
railroad carrier prosperously for about
thirty years, when, as its annual reports
show, it embarked upon the policy of at-
tanpting to control the anthracite tonnage
of the Schuylkill field by acquiring ex-
tensive ownership of coal lands. Thus,
the report of the company for 1870 coiv
tains the following:
''Up to this time about 70,000 acres of
the best anthracite coal lands in Pennsyl-
vania have been acquired and will be held
by an auxiliary company known as the
Philadelphia & Reading Coal & Iron Com-
pany, of which the Philadelphia & Read-
ing Railroad Company is the only stock-
holder. The result of this action has been
to secure — and attach to the compamt^
raiUroad—tL body of coal land capable of
supplying all the coal tonnage that can
possibly be transported over the road for
centuries."
And this is from the report for 1880 :
''The transportation of coal has always
been a source of great profit to the rail-
road company, and the only doubt in the
past as to the permanency of the earning
power of the company as a transporter
was due to the fear that rival companies
ira
44-4
—*i
SI PUEME COURT OF THE UNITED STATES.
Oct. Tebm,
would tap the Schuylkill region and di-
vert the coal tonnage to their own lines.
This danger was happUy averted by the
purchase of the coal lands"
And this £rom the report of 1881 :
^^The coal estates of the Philadelphia
& Reading Company . . . consist of
91,149 acres (142 square miles) of coal
lands, which is 60 per cent of all the an-
thracite lands in the Schuylkill district,
and 30 per cent of aU in Pennsylvania,*'
This area of coal lands had increased
by 1891 to 102,573 acres, of which the re-
port said:
^^[45] The coal lands comprise in
extent about 33 per cent of the en-
tire anthracite coal fields of the state,
and taking into account the aggre-
gate thickness of the veins on the
company's lands, and the greater pro-
portionate depletion of the estates in
the other regions, which has been going
on for many years, it must be conceded
that we have at least 50 per cent of the
entire deposit remaining unminedJ'
As if in further pursuit of this now
settled purpose^ in the following year,
1892, the Reading Railroad Company
leased the Lehigh Valley Railroad and the
Central Railroad of New Jersey for 999
>ears. These were both anthracite car-
riers competing with the Reading, and
each had an important coal mining sub-
sidiary company. But the lease by the
Central Railroad Company was assailed
in the New Jerse}^ courts, and all opera^
tions under it were enjoined, with the re-
sult that both leases were abandoned.
It is obvious that these reports show
an avowed and consistently pursued pur-
pose (not then prohibited by statute) to
secure by purchase a dominating control
over the coal of the Schuylkill field and
over the transportation of it to market.
In the large financial operations inci-
dent to the expansion policy thus de-
scribed, bonds were issued, secured by a
mortgage on all of the property of the
Reading Railroad Company and of the
Heading Coal Company. In 1893 there
was defatilt in the payment of interest
on these bonds, and receivers were ap-
pointed who operated both properties
until 1896, when they were sold to repre-
sentatives of the creditors and stockhold-
ers of the two companies, and under a
schenoe of reorganization, the validity of
which is assailed in this suit, both prop-
erties were transferred to three corpora-
tions in the manner now to be described:
1st. To the Reading Railway Company,
a corporation newly organised under the
laws of Pennsylvania, were allotted about
1.000 miles of the railroad (but none of
774
[46] the equipment) which had been
owned or leased by the former Read-
ing Bailroad Company. The capital
stock of this company was fixed at
$20,000,000, and it issued $20,000,000
of bonds, all of which were given to
the Holding Company. The proper-
ty thus transferred was valued, in the
representations made at the time to the
New York Stock Exchange, at $90,-
000,000. In 1896 this railroad carried in
excess of 9,000,000 tons of anthracite, —
more than one fifth of the then total pro-
duction ot the country. But by the plan
of reorganization adopted it was disabled
from performing its functions as a car-
rier, except with the aid of the Holding
Company, for all of the equipment, en-
gines, cars, and ships owned by the for-
mer railroad company, and its tidewater
terminals at Philadelphia and on New
York harbor, were allotted to the Hold-
ing Company.
2d. By the decree of sale the Read-
ing Coal & Iron Company was released
from its former obligations and to it, thus
freed, the principal part of the property
(coal and other), owned by it before the
sale, was allotted and retransferred upon
condition that it would deliver all of its
capital stock to the Holding Company,
would become co-obligor with that com-
pany on bonds to be issued, and would
jom with it in executing a mortgage for
$135,000,000 on all of its property to se-
cure such bonds. This company thus
came into possession of 102,573 acres of
anthracite lands, owned and leased, — ^al-
most two thirds of the entire acreage of
the Schuylkill coal field, — stocks and
bonds in other coal companies, ooal in
storage, and other property, all of the
estimated value of $95,000,000.
3d. To serve the purposes of the intend-
ed Holding Company, a charter granteil
in 1871 by special act of- the general as-
sembly of Pennsylvania, but unused for
twenty years, was utilized. This charter
was of the class denominated "omnibus'*
by the supreme court of Pennsylvania,
[47] and in terms it authorized the
company to engage in, or control, al-
most any business other than that of
a bank of issue, — this broad charter
was the occasion for making use of
the company in this enterprise. Tlie
corporate name was changed to ''Read-
ing Company," its capital stock was
increased from $100,000 to $140,000,000,
and the purchasers at the receivers' sale
allotted and transferred to it railroad
equipment, real estate, colliers and batiges,
formerly owned by the Reading EaUroad
Conipanv, together with stocks which eare
25» r. s.
1919.
UNITED STATES v. KEADIXG CO.
47-49
it control of more than thirty short-line
railroads, aggregating 275 miles of track,
and other property of large value, in ad-
dition to all of the bonds and stock of the
new Reading Bail way Company, and all
of the stock of the Beading Coal Com-
pany,
The result of this intercorporate trans-
fer of the property, owned before the re-
organization by the Reading Bailroad
Company and the Reading Coal & Iron
Company, was that the Holding Company,
without any outlay, — solely because the
creditors and stockholders of the former
Reading Railroad Company and of the
Reading Coal Company desired to estab-
lish the proposed scheme for control of
the properties formerly owned by the two
companies, — became the owner of the title
to railway equipment, real estate, colliers
and barges of an estimated value of $34,-
400,000; plus all of the capital stock and
bonds of the new Railway Company, —
jHO,000,000 ; plus all of the capital stock
of the Coal Company,— $8,000,000,— and
a contract by that company to mortgage,
for the use of the Holding Company, its
entire property; plus other stocks, bonds,
and mortgages owned by the former Rail-
road Company of the estimated value of
over $38,000,000, — making a total value,
as represented at the time to the New
York Stock Exchange, of $193,613,000.
Thus, this scheme of reorganization,
adopted and executed [48] six years
after the enactment of the Anti-trust
Act, combined and delivered into the
complete control of the board of di-
rectors of the Holding Company all
of the property of much the largest
single coal company operating in the
Schuylkill anthracite field, and almost
1,000 miles of railway over which its coal
must find its access to interstate markets.
This board of directors, obviously, thus
acquired power: to increase or decrease
the output of coal from very extensive
mines, the supply of it in the market, and
the cost of it to the consumer; to increase
or lower the charge for transporting such
coal to market ; and to regulate car supply
and other shipping conveniences, and
thereby to help or hinder the operations
of independent miners and shippers of
coal. This constituted a combination to
unduly restrain interstate commerce with-
in the meaning of the act. United States
v. Union P. R. Co. 226 U. S. 61, 57 L.
ed. 124, 33 Sup. Ct. Rep. 53.
Obviously, also, it made the Coal Com-
pany and the Railway Company mere
agents or instrumentalities of the Holding
• Company — the mining and transportation
depart/nents of its business — for prodn-
«4 li. ed.
cing, purchasing, and selling coal and for
transporting it to market. The Reading
Eailway Company and the Reading Coal
Company each had thereafter but one
stockholder, — the Holding Company, —
and their earnings were to be distributed
not in proportion to the shares of their
capital stocks, aggregating $28,000,000,
but were to go to the creditors and share-
holders of the Holding Company, with its
mortgage debt of $135,000,000 and its
capital stock of $140,000,000. The Hold-
ing Company thus served to pool the prop-
erty, the activities, and the profits of the
'three companies. Northern Securities Co.
V. United States, 193 U, S. 197, 327, 362,
48 L. ed. 679, 696, 710, 24 Sup. Ct. Rep.
436.
It will be profitable to consider next
what use was made of the great power
thus gathered into the one Holding Com-
pany.
[49] In 1898 this Holding Com-
pany entered into a combination with
five other anthracite-carrying railroad
companies to prevent the then con-
templated construction of an addition-
al line of railway from the Wyoming
field to tidewater, which independent
miners and shippers of coal were pro-
moting for the purpose of securing
better rates on their coal to the seaboard.
In a mere holding company, the Temple
Iron Company, all six carriers combined,
as stockholders, for the purpose of pro-
viding $5,000,000, with which the proper-
ties of the chief independent operators,
Simpson and Watkins, were purchased,
and thereby the new railroad project was
defeated. The president of l^he Holding
Company was active in the enterprise,
and that company, although only one of
six, became responsible for 30 per cent of
the required financing. In United States
V. Reading Co. 226 U. S. 324, 351, 57 L.
ed. 243, 251, 33 Sup. Ct. Rep. 90, this
court characterized what was done by this
combination, under the leadership of the
Holding Company, in these terms:
"The New York, Wyoming, & Western
Railroad Company was successfully stran-
gled, and the monopoly of transportation
collectively held by the six defendant car-
rier companies was maintained.'*
And, again, at p. 355 :
**We are in entire accord with the view
of the court below in holding that the
transaction involved a concerted scheme
and combination for the purpose of re-
straining commerce among the states, in
plain violation of the Act of Congress of
July 2, 1890.'*
Alwut the year 1900 the Holding Com-
pany and man\ other initial anthracite
775
41>-52
SLPRE31E COURT OF THE UNITED STATES.
Oct. Tkbi^
carriers aud their controlled coal com-
panieSy pursuant to au agreement witb
each other, made separate agreements
with nearly all of the independent pro-
ducers of coal along their lines, to pur-
chase at the mines ^'all the anthracite
coal thereafter mined from any of their
mines now opened or operated, or which
might thereafter be opened and oper-
ated," and to pay therefor 65 per cent
[50] of the average price of coal pre-
vailing at tidewater points at or near
New York, computed from month to
month. In the case above cited, this
court discussed these contracts and de-
clared: that they were made for the
purpose of eliminating the competi-
tion of independent operators from
the markets, and thus removing ^^a men-
ace to the monopoly of transporta-
tion to tidewater which the defendants
collectively possessed;" that before these
contracts, there existed not only the pow-
eri to compete, but actual competition, be-
tween the coal of the independents and
that produced by the buying defendants;
but that, after the contracts were made,
**such competition was impracticable;"
that the case fell well within not only
the Standard Oil Co. Case, 221 U. S. 1,
55 L. ed. 619, 34 L.R.A.(N.S.) 834, 31
Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734,
and American Tobacco Co. Case, 221 U.
S. 106, 55 L. ed. 663, 31 Sup. Ct. Rep.
632; but was of such an unreasonable
character as to be 'Sdthin the authority
of a long line of cases decided by this
court;" and finally, that the defendants
had combined, by and through the in-
strumentality of the 65 per cent contracts,
with the puipose and design of unlaw-
fully controlling the sale of the independ-
ent output of coal at tidewater.
Thus, this usourt held that once within
two years, and again within four years
after it was organized, this Holding Com-
pany used the great power which we have
seen was centered in its board of direc-
tors, by adroit division of property and
corporate agency, for the purpose of vio-
lating, in a flagrant manner, the Anti-
trust Act of 1890.
Almost immediately after the two at-
tempts to monopolize the trade in anthra-
cite thus condemned by this court, the
Holding Company, in January, 1901, pur-
chased a controlling interest in the capital
stock of the Central Railroad Company.
When this suit was conmienced, that com-
pany was operating 675 miles of track,
over which it carried in 1913, 10,783.000
tons of anthracite, — almost one half of
its total freijrht trnflSc. Its capital stock
776
was then $27,436,000, and its funded debt
was $46,881,000.
This Central Company owned, at the
time, in excess of [51] eleven twelfths
of the capital stock of the Wilkes-Barre
Coal Company, with a capital stock of
over $9,000,000, and a funded debt of
about $17,000,000. And that company
owned or had leased in excess of 14,000
acres of coal-bearing lands, — ^13,000
acres in the Wyoming field, — and in the
year ending June 30, 1913, it ^pped
from its lands thus owned or controlled,
6,243,000 tons of coal, which was sold
for over $20,000,000.
Immediately after this purchase, che
president of the Holding Company, Mr.
Baer, was made president of the Central
Railroad Company and of the Wilkes-
Barre Coal Company, and remained such
until his death, after the commencenent
of this suit, and from, one third to one
half of the directors of each company
were thereafter chosen from the board of
the Holding Company. Thus from the
time of this puitdiase both compani^
have been actively dominated by the
Holding Company management.
It is argued that the Central Railroad,
thus acquired, and the Reading system,
were not competitors, but this question is
put beyond discussion by the testimony of
Mr. Baer, the president of the Reading
Company, and his immediate predeceeaor
in office, Mr. Harris. The former testi-
fied:
Q. Tou are president of the defend-
ants, the Reading Company, Philaddphia
& Reading Railway Company, Philadel-
phia & Reading Coal & Iron Company,
the Central Railroad of New Jersey, the
Lehigh & Wilkes-Barre Coal Company,
and the Temple Iron Company f
A. I am. . . .
Q. What do you regard as the compet-
itors of the Philadelphia & Reading now
in New York harbor, as to anthracite
coal? •
A. All the companies that ship to New
York. They would be the Pennsylvania
Railroad, the Lehigh Valley, the Dela-
ware & Lackawanna, the Delaware &
Hudson, [52] the Erie, Ontario. &
Western. I guess those are all the road*^
leading to New York directly or indi-
rectly. (He did not name the Central
Company because it was a part of the
Reading sysietn when he testified,)
Q. Those roads are all carrying anthra-
cite coal to New York harborf
A. Yes, sir.
Q. And vou regard them as comp€^ti-
25S r. K.
UMTED STATES v. READING CX).
52-34
tor^ who most be considered in fLzing
rates?
A, Yes, sir; unquestionably.
Mr. Harris testified:
Q. During the time that you were
president of the Philadelphia & Reading
Railroad Company, from 1893 to 1901,
what were the competitive roads in the
coal trade with whieh you came in com-
petition t
A. We came in competition with all
the roads that were carrying coal from
Pennsylvania.
Q. Name the principal ones in refer-
ence to carrying coal from the coid mines
to New York harbor.
A. The Reading, the Lehigh Valley,
the Central Batlroad of New Jersey, the
Delaware, Lackawanna, & Western, the
Erie, and the Pennsylvania Railroad.
That the Reading Coal Company and
the Wilkes-Barre Coal Company were
competitors before the latter passed un-
der the control of the Holding Company
is obvious, but Mr. Baer put this also
beyond dispute by testifying:
Q. Phor to 1901, were the Philadelphia
^ Reading Coal & Iron Company and the
Lehigh & Wilkes-Barre Company com-
petitors as sellers of coal in New York
harbor?
A. Yes; and they are to-day.
Q. And generally throughout the east-
em territory, they were competitors at
that time?
A. Yes, sir; through that northern terri-
tory. Not in this territory nor in the
southern.
Thus, by this purchase, the Reading
Holding Company [58] acquired com-
plete control, not only of one of the
largest competitive anthracite carriers,
but also of one of the largest com-
petitive coal producing and selling com-
panies in the counliy. The anthra-
cite tonnage of the Central & Read-
ing Railway Companies, thus combined,
exceeded, at the time, 18,000,000 tons,
— over one third of the then total
production of the country, — and the
revenue derived from it was more than
one third of the total earnings of the
two railroad companies.
In 1915 the Interstate Commerce Com-
mission concluded an investigation of the
''rates, practices, rules, and regulations
governing the transportation of anthra-
cite coal/' which had been in progrress for
three vears. The eleven initial anthra-
«4 L.Vd.
cite carriers which have lines penetrating
the coal-producing r^on were required
to furnish special i^^ports as to tbeir an-
thracite coal transportation operations,
and they appeared and participated in
the hearing. The result of this exhaus-
tive investigation was that the Commis-
sion found: that since about 1901, with
variations and exceptions which are negli-
gible here, the carriers have had the same
fixed and flat rates to tidewater, regard-
less of the distance and character of the
haul; that these rates were the result of
oo-opeiKtion or combination among the
carriers; and that they were excessive to
such an extent that material reductions by
all of the carriers were ordered, includ-
ing, of course, those of the Central and
Reading companies. The Commission al-
so found, and this appears in. the record
of this caset, that the Reading Coal Com-
pany had never paid any dividends on its
stock, and that, while the books of the
Holding Company showed the Coal Com-
pany to have been indebted to it in a
sum exceeding $68,000,000 for advances
of capital made by the Reading Railroad
Company before the reorganization in
1896, it has paid interest thereon only oc-
casionally and in such small amounts that
up to 1913 it fdl short by more than
$30,000,000 of equaling 4 per cent per
[54] annum on the indebtedness. In
the meantime advances of large sums
had been made by the Holding Com-
pany to the Coal Company, and un-
usual credits had been allowed the lat-
ter in the payment of its freight bills.
This dealing of the Holding Company
with the Reading Coal Company, and
similar dealing of the Central Com-
pany with the Wilkes-Barre Coal Com-
pany and the Navigation Company,
are denounced by the Commission as un-
lawful discrimination against other ship-
pers of coal over the rails of these two
companies, and, obviously, such favorit-
ism tends to discourage competition and
to unduly restrain interstate commerce.
Upon this history of the transactions
involved, not controverted, save as to
some findings of the Interstate Commerce
Commission, we must proceed to judg-
ment; and very certainly it makes a case
calling for the application of repeated
decisions of this court, which clearly rule
it.
It will be convenient to first dispose of
several minor contentions.
In 1871 the Navigfation Company
leased the Lehigh Sc Susquehanna Rail-
road, which it owned, to the Central Rail-
road Company, by an instrument con-
taining a covenant which the government
777
54-57
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
claims requires the Navigation Company
to ship to market over the leased line
three fourths of all the coal which it
should produce in thS future. This cov-
enant has been amended and supplement-
ed by several agreementsi but not so as
to essentially modify it with respect to
the contention we are to consider.
It is argued that this covenant neces-
sarily imposed an undue restriction upon
the Navigation Company in selecting its
markets and in shipping its coal, in vio-
lation of the Anti-trust Act.
It is not entirely clear that the cove-
nant will bear the restrictive interpreta-
tion as to shipments which the [55]
government puts upon it, bat, assuming
that it may be so ^terpreted, neverthe-
\es8y the conditions and circumstances of
the case considered, the result contended
for cannot* be allowed.
When the lease was made, in 1871, the
Central Railroad extended from Jersey
City to its western terminus at Phillips-
burg, New Jersey, and it was without ac-
cess to the coal fields. The Lehigh &
Susquehanna Railroad was about 100
miles in length, and extended from Phil-
lipsburg into the Wyoming field, where
the Navigation Company owned exten-
sive coal-producing properties and mines.
The lines of the two companies were in
no sense competitive, but, on the contrary,
the Lehigh & Susquehanna line served as
a natural extension of the Central Com-
pany's lines to the great tonnage-produc-
ing coal districts. The rental to be paid
was one third of the gross earnings of
the raiboad, and it was natural and
^'normal" that the lessor should desire that
the traffic should continue to be as large
as possible. Plainly this covenant was
not written with the purpose of suppress-
ing interstate commerce, and the history
of its operation shows that, instead of
suppressing it, it has greatly promoted it.
The claim is quite too insubstantial to be
entertained, and the decree of the district
court with respect to it will be afiftrmed
and the bill, as to it, dismissed.
In many leases for the operation of
ooal-producing lands the Reading Coal
Company and the Wilkes-Barre Coal
Company incorporated a covenant that
the lessee should ship all coal mined by
rail routes, which were named or which
were to be designated. Since this cove-
nant was resorted to as a part of the
scheme to control the mining and trans-
portation of coal, which is condemned as
unlawful in this opinion, the decree of
the district court, enjoining the lessors
and the other defendants herein from at-
778
tempting to enforce such covenants, will
be affirmed.
The other charges against the Lehigh
Coal & Navigation [56] Company and
the case stated in the bill widi re-
spect to the Wilmington & Northern
Railroad Company, the Lehigh & Hud-
son River Railway Company, and the
Lehigh & New England Railroad Com-
pany, are substantially abandoned in
the government's brief, and, having
regard to the results arrived at with
respect to the principal defendants,
the ends of justice will be best served
b}^ dismissing the bill as to all of
these defendants, without prejudice,
as was done by the district court as
to all but the Wilmington & Northern
Railroad Company, as to which the dis-
missal was unqualified. A majority of
the individual defendants have died since
the suit was instituted, and their succes-
sors in office have not been made parties,
and, since the conclusion to be announced
can be given full effect by an appropriate
decree against the corporation defendants,
the ease as against the remaining in-
dividual defendants need not be con-
sidered, and as to them the bill will be
dismissed without prejudice.
We are thus brought to the considera-
tion of what the decree shall be with re-
spect to the really important defendants
in the case, the three Reading companies,
the Central Railroad Company of New
Jersey, and the Wilkes-Barre Coal Com-
pany.
Before the reorganization . of 1896, the
gathering of more than two thirds of the
acreage of the Schiiylkill field into the con-
trol of the two Reading Companies was,
as their reports show, for the frankly
avowed purpose, thep not forbidden by
statute, of monopolizing the production,
transportation, and sale of the anthracite
coal of the largest of the three sources
of supply.
When, in 1896, the problem was pre-
sented of reorganizing the financial af-
fairs of the two companies,* it was not
solved, as it might have been, by creat-
ing separate coal and railroad compa-
nies to conduct independently interstate
commerce in the two departments to
which their raili^oad and coal properties
were adapted, but, on the [57] con-
trary', and very obviously for the pur-
pose of evading the proviisiion of the
Constitution of Pennsylvania prohib-
iting any incorporated common car-
rier from, directly or indirectly, en-
gaging in mining "articles" for trans-
portation over its lines (Pa. Const.
1874. art. 17, § 5), and also of evad-
25S U. S.
19J9.
UNITED STATES v. READING CO.
57-J9
in^ the provisions of the Federal An-
ti-tnist Act against restraining and-
monopolizing interstate commerce, resort
was had to the holding company device,
l)y which one company was given unre-
stricted control over the other two, with
the power, inherent in that form of or-
ganization, of continuing and carrying
forward the restraint and monopoly whi<£
had previously been acquired over that
lai^e volume of interstate commerce
which was to be conducted by the coal
and railroad companies.
Again, when, in 1901, a rivalry', imag-
inary or real, arose for the control of the
Central Railroad Company, the Holding
Company, regardless of the law, did not
.hesitate to purchase control of that great
competing anthracite ooal-carrying sys-
t&n, with its extensive eoal-owning and
mining subsidiary. This acquisition
placed the Holding Company in a posi-
tion of dominating control not only over
two great competing interstate railroad
carriiers, but also over two great compet-
ing coal companies, engaged extensively
in mining and selling anthracite coal,
which must be transported to interstate
markets over the controlled interstate
lines of railway.
AgaiU; and obviously^ this dominating
power was not obtained by normal ex-
pansion to meet the demands of a busi-
ness growing as a result of superior and
enterprising management, but by delib-
erate, calculated purchase for control.
That such a power, so obtained, regard-
less of the use made of it, constitutes a
menace to and an undue restraint upon
interstate commerce, within the meaning
of the Anti-trust Act, has been frequently
held by this court.
[58] Thus, in Northern Securities Co.
V. United States, 193 U. S. 197, 327, 48 L.
ed. 079, 696, 24 Sup. Ct. Rep. 436, when
dealing with a holding company, such as
we have here, this court, in 1903, held:
"No scheme or device could more cer-
tainly come within the words of the act
— ^combination in the form of a trust or
otherwise ... in restraint of com-
merce among the several states or with
foreign nations,' — or could more effec-
tively and certainly suppress free com-
petition between the constituent compa-
nies . . • The mere existence of such
a comhinati&H, and the power acquired
by the holding company as its trustee,
constitftte a menace to, and a restraint
upon, that freedom of commerce which
Congress intended to recognise and pro-
tect, and which the public is entitled to
have protected."
And again, in United States v. Union
•4 ]j. ed.
P. R. Co. 226 U. S. 61, 88, 67 L. ed. 124,
134, 33 Sup. Ct. Rep. 53, decided nine
years later, in 1912, this court held:
"The consolidation o^ two great com-
peting s^'stems of railroad engaged in
interstate conunerce by transfer to one of
a dominating stock interest in the other
creates a combination which restrains in-
terstate commerce within the meaning of
the statute, because, in destroying or
greatly abridging the free operation of
competition theretofore existing, it tends
to higher rates . . . Nor does it make
any difference that imtes for the time be-
ing may not be raised and' much money
be spent in improvements after the* com-
bination is effected. It ie.the scope of
such combinations and their power to
suppress or stifle competition or create
monopoly which determines the applica-
bility of the act/*
It will suffice to add that this doetrine
was referred to as the settled oonchision
of this court, in 1914, when, discussing a
similar state Anti-trust Act in Interna-
tional Harvester Co. v. Missouri, 234 U.
8. 199, 209, 68 L. ed. 1276, 1281, 52
L.R.A.(N.S.) 525, 34 Sup. Ct. Rep. 859,
it was said :
"The specification under this head is
that the supreme court [of Missouri)
found, it is contend^, benefit — ^not [59]
injury — to the public had resulted from
the alleged combination. Ghranting that this
is not an overstatement of the opinion,
the answer is inunediate. It is too late in
the day to assert against statutes which
forbid combinations of competing com-
panies that a particular combination teas
induced by good intentions and had some
good effect . . . The purpose of such
statutes is to secure competition and pre-
clude combinations which tend to defeat
it."
Thus, this re(!brd clearly shows a group
of men selecting the Holding Compaiiy
with an "omnibus" charter, and not only
investing it by stock control with such
complete dominion over two great com-
peting interstate carriers and over two
great competing coal companies extensive-
ly engaged in interstate commerce in an-
thracite coal as to bring it, without more,
within the condemnation of the Anti-ttust
Act, but it also shows that this power of
control was actually used, once success-
fully, to suppress the building of a pro-
spective competitive railway line, and a
second time successfully until this court
condemned the 65 per cent contracts as
illegal, to suppress the last prospect of
competition in anthraeite production and
j transportation. To this it must be added
' that up to the time when this suit was com-
779
59-^
SUPREME COURT OF THE UNITED STATES.
Oct. Temu,
menced, tiiis Holding Company had con-
tinued in active, dominating control of the
Reading Railway Company and of the
competing Centri^ Railroad system, and
also of the two coal companies, thus ef-
fectually suppressing all competition be-
tween the four companies and pooling
their earnings. It is difficult to imagine a
clearer case, and in all essential particu-
lars it rests on imdisputed conduct and
upon peif ectly established law. It is ruled
by many decisions of this court, but spe-
cifically and clearly by United States v.
Union P. R. Co. su^ra.
For flagrant violation of the first and
second sections of the Anti-trust Act, the
relations between the Beading [60]
Company, the Reading Railway Com-
pany, and the Reading Coal Company,
and between these companies and the
Central Railroad Company of New Jer-
sey, must be so dissolved as to give each
of them a position in all respecte inde-
pendent and free from stock or other
control of either of the other corpora-
tions.
With respect to the contention that the
commodities clause of the Act of Jime
29. 1906 (34 Stat, at L. 584, 585, chap.
3591, Comp. Stat. § 8563, 4 Fed. Stat.
Anno. 2d ed. pp. 337, 359), is being vio-
lated by the Reading Railway Company
and the Central Railroad Company.
The circuit judges, centering their at-
tention upon the fact that the Reading
Railway Company did not own any of
the stock of the Reading Coal Company;
that the two companies had separate
forces of operatives and separate account-
ing systems; and upon the importance
of maintaining ''the theory of separate
corporate entity'' as a legal doctrine,
concluded, upon the authority of United
States ex rel. Attv. Gen. v. Delaware &
H. Co. 213 U. S. 366, 418, 53 L. ed. 836,
S51, 29 Sup. Ct. Rep. 527, that the evi-
dence did not justify holding that, in
transporting the products of the Reading
Coal Company's mines to market, the
Reading Railway Company was carrying
a commodity ''mined or produced by it or
under its authority,*' or which it owned
nn whole or in part," or in which it had
**ariT interest, direct or indirect."
But the question which we have pre-
sented by this branch of the case is not
the technical one of whether ownership
by a railroad company of stock in a coal
company renders it unlawful for the for-
mer to carry the product of the latter,
for here the railroad company did not
own any of the stock of the coal com-
pany. The real question is whether
combining in a sinsrle corporation the '
780
ownership of all of the stock of a carrier
and of all the stock of a coal company
results in such community of intnest or
title in the product of the latter as to
bring the case within the scope of the
provisions of the act.
The purpose of the commodity clause
was to put an [61] end to the injustice
to the shipping public, which ezp^enoe
had shown to result from discriminations
of various kinds, which inevitably grew
up where a railroad company occupied
the inconsistent positions of carrier and
shipper. Plainly, in such a case as we
have here, this evil would be present as
fully as if the title to both the coid lands
and the railroads were in the Holdini:
Company, for all of the profits realized ,
from the operations of the two must
find their way ultimately into its treas-
ury,— any discriminating practice which
would harm the general shipper would
profit the Holding Company. Being tiras
clearly within the evil to be raiMdied.
there remains the question whether «nch
a controlling stock ownership in a eor-
poration is fairly within the scope of the
language of the statute.
In terms the act declares that it shall
be unlawful for any raUroad company*
to transport in interstate commerce "any
article or commodity . . . mined or
produced by it, or under its authority,
or which it may own in whole or in part,
or in which it may have any interest,
direct or indirect."
Accepting the risk of obscuring the
obvious by discussing it, and without
splitting hairs as to where the naked legiil
title to the coal would be when in transit,
we may be sure that it was mined and
produced under the same ^authority"
that transported it over the railroad. All
three of the Reading companies had the
same officers and directors, and it wab
under their authority that the mines were
vroxked and the railroad operated, and
they exercised that authority in the one
case in precisely the same character as
in the other, — ^as officials of the Holding
Company. The manner in whidi the
stock of the three was held resulted, and
was intended to result, in the abdication
of all independent corporate action by
both the R^way Company and the Coal
Company, invol\dng, as it did, the suirm-
der to the Holding Company of tiie en-
tire [62] conduct of th^ aiEaiis. It
would be to subordinate rei^ty to icflrml
form to hold that the coal mixied by the
Coal Company, under direetion of the
Holding Company*s ofiBeials, was not
produced by the same ''authority^ tiiat
operated the Reading Railway lines.
95S V. S.
1939.
UNITED STATES v. READING CO.
62-64
The case falls clearly within the scope
of the act, and for the violation of this
commo^ty clause, as well as for its vio-
lation of the Anti-trust Act, the combi-
nation between the Reading Railway
Company and the Reading Coal Com-
pany must be dissolved.
The relation between the Central Rail-
road Company and the Wilkes-Barre
Coal Company presents a different ques-
tion, for here the Railroad Company
owns over eleven twelfths of the stoek
of the Coal Company, and therefore the
holding in 213 U. S. 366, supm^ is es-
pecially pressed in argument, — that the
ownership of stock by a railroad com-
pany in a coal company does not cause
the former to have such an interest in a
legal or equitable sense in the product
of the latter as to bring it within the
prohibition of the act. But this holding
was considered in United States ▼. Lehigh
Valley B. Co. 220 U. S. 257, 272, 65 L. ed.
458, 463, 31 Sup. Ct. Rep. 387, and it
was there held not applicable where a
railroad company used its stock owner-
ship for the. purpose of securing a com-
plete control over the affairs of a coal
company, and of treating it as a mere
agency or department of the owning
company. This rule was repeated and
applied in United States v. Delaware, L.
& W. R. Co. 238 U. S. 516, 529, 59 L. ed.
1438, 1443, 35 Sup. Ct. Rep. 873. It
results that it may confidently be stated
that the law upon this subject now is,
that while -the ownership by a irailroad
company of shares of the capital stock
of a mining company does not necessarily
create an identity of corporate interest
between the two, such as to render it
unlawful under the commodities dause
for the railroad company to transport in
interstate commerce the products of such
mining company, yet, where such owner-
ship of stock is resorted to, not for [63]
the purpose of participating in the affairs
of the corporation in which it is held in
a manner normal and usual with stock-
holders, but for the purpose of making it
a mere agent, or instrumentality, or de-
partment of another company, the courts
win look through the forms to the realities
of the relation between the companies as
if the corporate agency did liot exist, and
will deal with them as the justice of the
oase may require. United States v.
Lehigh Valley R. Co. 220 U. S. 257, 272,
273, 55 L. ed. 458, 463, 464, 31 Sup. Ct.
Rep. 387; United States v. Delaware, L.
& W. R. Co. supra; Chicago, M. & St. P.
R. Co. V. Minneapolis Civic & C. Asso.
247 U. S. 490, 501, 62 L. ed. 1229, 1237,
38 Sup. Ct. Rep. 553.
Applying this rule of law to the re-
•4 L. ed.
lation between the Central Railroad Com-
pany and the Wilkes-Barre Coal Com-
pany, with the former owning over eleven
twelfths of the capital stock of the latter,
and using it as the coal mining depart-
ment of its organization, we cannot doubt
that it falls within the condemnation of
the commodities dause, and that this
relation must also, for this reason, be dis-
solved.
It results that the decree of the District
Court will be aftened, as to the Lehigh
Coal & Navigation Company, the Lehigh
& New England Railroad Company, the
Lehigh & Hudson River Railway .Com-
pany, as to the restrictive covenants in
the mining leases with respect to the
flipping of coal, as to the dissolution of
the combination between the Philadelphia
& Reading Coal & Iron Company and the
Lehigh & Wilkes-Barre Coal Company,
maintained through the Reading Com-
pany and the Central Railroad Company
of New Jersey. As to the Wilmington &
Northern Railroad Company and as to
the individual defendants, the bill will be
dismissed without prejudice. As to the
Reading Company, the Philadelphia &
Reading Railway Company, the Philadel-
phia & Reading Coal & Iron Company,
and the [64] Central Railroad Company
of New Jersey, the decree of the District
Court will be reversed and the cause
remanded .with directions to enter a de-
cree in conformity with this opinion,
dissolving the combination of the Reading
Company, the Philadelphia & Reading
Railway Company, the Philadelphia &,
Reading Coal & Lron Company, the Cen-
tral Railroad Company of New Jersey,
and the Lehigh & Wilkes-Barre Coal
Company, existing and maintained
through the Reading Company, with such,
provision for the disposition of the shares
of stock and bonds and other property
of the various companies, held by the
Reading Company, as may be necessary
to establish the entire independence from
that company and from each other, of the
Philadelphia & Reading Railway Com-
pany, the Philadelphia & Reading Coal
& Iron Company, the Central Railroad
Company of New Jersey, and the Lehigh
& Wilkes-Barre Coal Company, and al.s»j
that such disposition shall be made by
the decree of the stocks and bonds of the
Lehigh & Wilkes-Barre Coal Company,
held by the Central Railroad Company
of New Jersey, as may be necessary to
establish entire independence between
these two companies, to the end that tl^e
affairs of all of these now combined com-
panies may be conducted in harmony
with the law.
781
(J4-6C
!SL PREME COURT OF THE UNITED STATES.
Oct. T£bii,
Affirmed in part; reversed in part, and
remanded, with direction to enter a decree
in conformity with this opinion.
Mr. Chief Justice White, Mr. Justice
Holmes, and Mr. Justice Van Devanter,
dissenting :
Except in so far as the decree below
conmianded a separation of interest be-
tween the Centrd Railroad of New Jer-
sey and the Lehigh & Wilkes-Barre Coal
Company, the court below dismissed, for
want of equity, the bill of the United
States, brought to sever the existing re-
lations {65] between the Reading Com-
pany, the Philadelphia & Reading Rail-
way Company, the Philadelphia & Read-
ing Coal & Iron Company, the Central
Railroad of New Jersey, the Lehigh &
Wilkes-Barre Coal Company, and other
corporations, on the ground that the rela-
tions betweeii those companies resulted
in a monopoly or combination in restraint
of trade, in violation of the Sherman Act,
and gave rise to a disregard of the com-
modities clause of the act of Congress.
By the opinion now announced, this ac-
tion of the court below, in so far as it
directed a dismissal, is reversed, and
virtually the full relief prayed by the
government is therefore granted. We are
unable to concur in this conclusion, be-
cause, in our opinion, neither the conten-
tions as to the Sherman Act, nor the
reliance upon the commodities clause, ex-
cept to the extent that in the particulars
stated they were sustained by the court
below, have any foundation to rest upon.
We do not state at any length the reasons
which lead us to this view, because the
court below, composed of three circuit
judges, in a comprehensive and clear
opinion announced by McPherson, Judge,
sustains the correctness of the action
which it took, and also demonstrates the
error involved in the decree of this court,
reversing its action. United States v.
Reading Co. 226 Fed. 229. To that opin-
ion we therefore refer as stating the
reasons for our dissent.
[66] GEORGE WALLACE, Obert A. 01-
sen, Carl R. Kositzky, et al.. Appts.,
V.
WALKER D. raNES, Director General of
Railroads; Northern Pacific Railway
Company, et al.
(See S. 0. Reporter's ed. 66-70.)
Injunction — against illegal tax —
remedy at law.
1. Equity has jurisdiction, there being
782
no adequate remedy at law, of a suit to en-
join state officials from enforcing an alleged
unlawful tax upon foreign railway com-
panies where such tax is made a first lien
upon all the property of the railways in the
state, thus putting a cloud upon their titlee,
and where delay in payment is visited with
considerable penalties.
{Vov other cases, see Equity. I. c; Injunction,
I. k, la Digest Sup. Ct. 1908.1
Injunction — against illegal tax —
remedy at law.
2. Equitable relief by way of injunc-
tion against the enforcement of state taxes
alleged to be unlawfully assessed will not
be denied on the ground that an adequate
remedy at law exists under a local statu-
tory provision that an action respecting the
title to property, or arising upon contract,
may be, brought in the state courts against
the state the same as against a private per-
son.
[For other cases, see Equity. I. c; Injunction,
I. k, in Digest Sup. Ct. IdOS.]
Taxes — foreign railway ooatpatij —
considering property outside state.
3. A state, when taxing a foreign in-
terstate railway company, cannot take into
account the property of such railway com-
pany situated outside the state unless it can
be seen in some plain and fairly intelligible
way that such property adds to the value
Note. — On the jurisdiction of equity
where remedy at law exists — see notes to
Meldrum v. Mddrum, 11 L.R.A. 65;
Delaware, L. & W. R. Co. v. Central
Stock Yards & Transit Co. 6 L.R.A.
865; and Tyler v. Savage, 36 L. ed. U.
S. 83.
On injunction to restrain the collec-
tion of illegal taxes — see notes to OdHn
V. Woodruff, 22 L.R.A. 699; Ogden City
V. Armstrong, 42 L. ed. U. S. 445; and
Dows V. Chicago, 20 L. ed. U. S. 66.
On constitnticnal restriction on power
of taxation — see note to Birmingham v.
Klein, 8 L.R.A. 369.
On the power of a state to tax — see
note to Dobbins v. Erie County, 10 L.
ed. U. S. 1022.
As to state licenses or taxes, general-
ly, as affecting interstate commerce — aee
notes to Rothermel v. Meyerle, 9 L.R.A.
366; American Fertilizing Co. v. Board
of Agriculture, 11 L.R.A. 179; Gibbons
V. Ogden, 6 L. ed. U. S. 23; Brown \,
Maryland, 6 L. ed. U. S. 678; Ratter-
man V. Western U. Teleg. Co. 32 L.- ed.
U. S. 229; Harmon v. Chicago, 37 L. ed.
U. S. 217; Cleveland, C. C. & St. L, R.
Co. v. Backus, 38 L. ed. U. S. 1041:*
Postal Teleg. Cable Co. v. Adams, 39
L. ed. U. S. 311; and Pittebui^ & S.
Coal Co. v. Bates, 39 L. ed. U. S. 538.
On corporate taxation and the com-
merce clause — see note to Sandford v,
Poe, 60 L.R.A. 641.
253 U. S.
1919.
WALLACE T. IIIXES.
of the railway and the rights exercised in
the state.
tFor other cases, seo Commerce, III. a; Taxes,
III. b, 2, a: Constitutional Law, IV. b, 6, a,
in Digest Sop. Ct. 1908.]
Constitutional law •* dae process of law
— commerce — state taxation of for-
eign railway company •* proportion-
ing local valne to entire system.
4. A state may not, consistently with
the commerce and due process of law clauses
of the Federal Constitution, fix the value oi
the property of foreign interstate railway
companies for the purpose of levying a
special excise tax upon the doing of business
in the state by taking the total valufe of the
stock and bonds of each railway company
and assessing the proportion of this value
that the main track mileage bears to the
main track of the whole line, where, by rea-
son of topographical conditions, the cost of
the lines in that state was much less than
in other states, and the great and very valu-
able terminals of the railways are in other
states, and where the valuations as made in-
clude such items as bonds secured bv mort-
gage of lands in other states, a land grant
in another state, and other property that
adds to the riches of the corporation, but
does not affect that part of the railway in
the state.
(For other cases, see Commerce, III. a ; Taxes,
III. b. 2, a : Constitutional Law, IV. b, 6, a,
in Digest Sap. Ct. 190S.]
[No. 683.]
Argued April 21, 1020. Decided May 3,
1920.
APPEAL from the District Court of
the United States for the District
of North Dakota to review a decree en-
joining the enforcement of a state tax
on foreign inier^state railway companies.
Affirmed.
The facts are stated in the opinion.
Mr. F. £. Packard argued the cause,
and, with Mr. AVilliam Langer, Attorney
General of North Dakota, filed a brief
for appellants:
Appellants have a plain, adequate,
and complete remedy at law.
New York Guarantv & Indemnitv Co.
V. Memphis Water Co. 107 U. S. 205, 27
L. ed. 484, 2 Sup. Ct. Rep. 279; Buzard
V. Houston, 119 V. S. 347, 30 L. ed. 451,
7 Sup. Ct. Rep. 249; Indiana Mfg. Co.
V. Koehne, 188 U. S. 681, 47 L. ed. 651,
23 Sup. Ct. Rep. 452: Chicago, B. & Q.
R. Co. V. Babcock, 204 U. S. 585, ,51 L.
ed. 636, 27 Sup. Ct. Rep. 326; Singer
Sewing Mach. Co. v. Benedict, 229 U. S.
481, 57 L. ed. 1288, 33 Sup. Ct. Rep.
941; 2 Coolev, Taxn. 8d ed. p. 1485;
Minneapolis, St. P. & S. Ste. M. R. Co.
V. Dickey Couutv, 11 N. D. 107, 90 N.
W. 260; Chicago, M. & St. P. R. Co. v.
Cass County, 8 N. D. 18, 76 N. W. 239 ;
Bismarck Water Supply Co. v. Barnes,
64 L. ed«
30 N. D. 555, L.R.A.1916A, 965, i:>3 N.
W..454; State v. Mutual L. Ins. Co. 175
Ind. 59, 42 L.R.A.{N.S.) 256, 9a K. E.
213.
If a statute will bear two construc-
tions, one within and the other beyond
the constitutional power of a lawmaking
body, the courts must adopt that which
is consistent with its constitutionality,
as the presumption prevails that the leg-
islature intended to act within the scope
of its authority.
St. Louis South Western R. Co. v.
Arkansas, 235 U. S. 350, 59 L. ed. 265,
35 Sup. Ct. Rep. 99.
The law in question is not invalid,
since it levies a tax on the basis of mile>
age proportion of a unit value of stocks
and bonds. It imposes a tax upon prop-
ei-ty within the state, although the major
portion of it may be devoted to inter-
state commerce.
Ibid. ; Baltic Min. Co. v. Massachusetts,
231 U. S. 68, 58 L. ed. 127, 34 Sup. Ct.
Rep. 15; Looney v. Crane Co. 245 U. S.
178, 62 L. ed. 230, 38 Sup. Ct. Rep. 85.
Distribution of unit value upon a sin-
gle-track mileage basis, with certain
qualitications, has been uniformly recog-
nized by Federal courts as eminently
fair.
Louisville & N. R. Oo. v. Bosworth,
209 Fed. 422; Louisville & N. R. Co. v.
Greene, 244 U. S. 522, 61 L. ed. 1291,
37 Sup. Ct. Rep. 683, Ann. Cas. 1917E,
97; State R. Tax Cases, 92 U. S. 608,
23 L.' ed. 671; Pittsburgh, C. C. & St.
L. R. Co. V. Backus, 154 U. S. 421, 38
L. ed. 1031, 14 Sup. Ct. Rep. 1114;
Fargo v. Hart, 193 U. S. 490, 48 L. ed.
761, 24 Sup. Ct. Rep. 498; Greene v.
Louisville & Interurban R. Co. 244 U. S.
499, 61 L. ed. 1280, 37 Sup. Ct. Rep.
673, Ann. Cas. 1917E, 88; Illinois C. R.
Co. V. Greene, 244 U. S. 555, 61 L. ed.
1309, 37 Sup. Ct. Rep. 697.
The measure of the tax is the total
assets of the corporation.
Bailey v. Clark, 21 Wall. 284, 22 L. ed.
651; People ex rel. Commercial Cable
Co. v. Morgan, 178 N. Y. 433, 67 L.R.A.
960, 70 N. E. 967; Leather Mfrs.' Nat.
Bank v. Treat, 62 C. C. A. 644, 128 Fed.
262.
^fr. £. Marvin Underwood argued the
cause, and, with Solicitor General King
and Messrs. D. F. Lyons, M. L. Coun-
tryman, H. H. Field, H. B. Dike, and
Alexander Koplin, filed a brief for ap-
pellee Walker D. Hines, Director Gen-
eral of Railroads:
This is a proper case for the exercise
of equity jurisdiction.
Ohio River & W. R. Co. v. Dittey, 232
783
SUPREME COURT OF THE UNITED STATES.
Oct. l£EM,
U. S. 576, 587, 58 L. ed. 737, 743, 34
Sup. Ct. Rep. 372; Shaffer v. Carter,
252 U. S. 37, ante, 445, 40 Sup. Ct. Rep.
221; Atchison, T. & S. F. R. Co. v. O'-
Connor, 223 U. S. 280, 56 L. ed. 436, 32
Sup. Ct Rep. 216, Ann. Cas. 1913C,
1050; Gaar, S. & Co. v. Shannon, 223
U. S. 468. 471, 56 L. ed. 510, 512, 32
Sup. Ct Kep. 236.
The statute in question is invalid,
since it taxes property outside of the
state of North Dsdkota, and constitutes
an undue burden on interstate commerce.
Meyer v. Wells, F. & Co. 223 U. S.
298, 301, 56 L. ed. 445, 447, 32 Sup. Ct.
Rep. 218; Fargo v.. Hart, 193 U. S. 490,
48 L. ed. 761, 24 Sup. Ct Rep. 498;
Western U. Teleg. Co. v. Kansas, 216 U.
S. 1, 54 L. ed. 355, 30 Sup. Ct Rep. 190;
Atchison, T. & S. F. R. Co. v. O'Con-
nor, 223 U. S. 280, 56 L. ed. 436, 32
Sup. Ct. Rep. 216, Ann. Cas. 1913C,
.1050; Pullman Co. v. Kansas, 216 U. S.
56, 54 L. ed. 378, 30 Sup. Ct. Rep. ^2;
International Paper Co. v. Massachu-
setts, 246 U. S. 135, 62 L. ed. 624, 38
Sup. Ct. Rep. 292, Ann. Cas. 1918C,
617; Locomobile Co. v. Massachusetts,
346 U. S. 146, 62 L. ed. 631, 38 Sup. Ct.
Rep. 298; Looney v. Crane Co. 246 U.
S. 178, 62 L. ed. 230, 38 Sup. Ct. Rep.
85; Ludwig v. Western U. Teleg. Co.
216 U. S. 146, 5d L. ed. 423, 30 Sup. Ct
Rep. 280; Delaware, L. & W. R. Co. v.
Pennsylvania, 198 U. S. 341, 49 L. ed.
1077, 25 Sup. Ct Rep. 669; Union Tank
Line Co. v. Wright, 249 U. S. 275, 283,
63 L. ed. 602, 607, 39 Sup. Ct. Rep. 276.
Since the company is not free to re-
nounce the privilege of doing intrastate
business, the tax in question is invalid
because it would be in effect a privilege
tax upon interstate business.
Pullman Co. v. Adams, 189 U. S. 420,
47 L. ed. 877, 23 Sup. Ct. Rep. 494;
Allen v. Pullman's Palace Car Co. 191
U. S. 171, 48 L. ed. 134, 24 Sup. Ct
Rep. 39.
Mr. Oharles W. Bonn argued the
cause, and, with Messrs. Burton Hanson,
E. C. Lindley, and A. H. Bright, filed
a brief for the Railway Companies:
The tax is made by the act a first lien
on all property within the state of each
assessed railway corporation, taking
precedence over all other demands and
judgments, including, apparently, pri-
ority over mortgage and other similar
liens. This is a ground of equity juris-
diction.
Ohio Tax Cases, 232 U. S. 576, 58
L. ed. 737, 34 Sup. Ct. Rep. 372; Shaf-
fer V. Carter, 252 U. S. 37, ante, 445, 40
Sup. Ct. Rep. 221.
784
Ten per cent penalty immediately ac-
crues about December 3, and thereafter
1 per cent for each month while the tax
remains unpaid. The act directs pro-
ceedings to be taken by the attorney gen-
eral .to collect the tax and penalties, by
sale of the corporate properties or other-
wise. This brings the case within those
in which payment of the tax would not
be voluntary, and would be held made
under duress.
Atchison, T. & S. F. R. Co. v. OCon-
nor, 223 U. S. 280, 56 L. ed. 436. 32
Sup. Ct; Rep. 216, Ann. Cas. 1913C.
1050; Gaar, S. & Co. v. Shannon, 223
U. S. 468, 471, 56 L. ed. 510, 512. 32
Sup. Ct Rep. 236.
The act requires that all moneys col-
lected under its provisions shall be paid
into the state treasury, to be used for
defraying the general expenses of the
state government. It is thought there
is no statute of North Dakota giving the
right to sue the state to recover taxes
ill^ally exacted; and a ta^ayers rem-
edy against the receiving officer person-
ally is certainly inadequate, for he is
faced with the uncertainty of making
collection. This was held to give equity
jurisdiction in Raymond v. Ghiea^ro
Union Traction Co. 207 U. S. '20, 52
L. ed. 78, 28 Sup. Ct Rep. 7, 12 Ann.
Cas, 757.
It is shown by Union P. R. Co. v.
Weld County, 247 U. S. 282, 62 L. ed.
1110, 38 Sup. Ct. Rep. 510, and by
Singer Sewing Mach. Co. v. Benedict,
229 U. S. 481, 57 L. ed. 1288, 33 Sup.
Ct. Rep. 941, cited and approved in
Greene v. Louisville & Interurban R.
Co. 244 U. S. 519, 61 L. ed. 1290, 37
Sup. Ct Rep. 673, Ann. Cas. 1917E, 88,
that, in order for payment under duress
and suit to recover back to be adequate^
there must be a clear right under the
state law to recover from the govern-
mental authority imposing and reeeiviog
the tax.
See also Louisville & N. R. C-o. t.
Greene, 244 U. S. 531, 61 L. ed. 1299,
37 Sup. Ct. Rep. 683, Ann. Ca*. 1917E.
97; Johnson v. Wells, F. & Co. 239 U.
S. 23^ 60 L. ed. 243, 36 Sup. Ct. Rep.
62.
The secretary of state, after ninety
days' delinquency, is required to cancel
registration of the corporations, thus
suspending their privileges under the
laws of North Dakota to do business,
until the tax is paid, with penalties.
This feature gives equity jurisdietion.
Ludwig V. Western U. Teleg. Co. '216
U. S. 146, 54 L. ed. 423, 30 Sup. Ct.
Rep. 280.
25S V. a»«
1919.
WALLACE V. HIKES.
67, 6S
The Federal courts entertain jurisdic-
tion of suits to recover taxes illegally
exacted, because they are founded upon
an act of Congress, and not because of
any implied contract.
United States v. Emery, B. J. Realty
Co. 237 U. S. 28, 32, 69 L. ed. 825, 827,
35 Sup. Ct. Rep. 499.
Indeed, the decisions show that there
is no implied contract, where the govern-
ment either takes property under a
claim of title, or exacts payment of
taxes, asserting them to be legal.
Ibid.; Basso v. United States, 239 U.
S. 602, 60 L. ed. 462, 36 Sup. Ct. Rep.
226; United States v. Lynah, 188 U. S.
445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349;
Dooley v. United States, 182 U. S. 222,
45 L. ed. 1074, 21 Sup. Ct Rep. 762.
A bare action to recover taxes paid
under protest is not one based on con-
tract, express or implied; a fortiori it
does not fall under the North Dakota
statute, which says nothing about im-
plied contracts.
United States v. Real Estate Sav.
Bank, 104 U. S. 728, 26 L. ed. 908 ; Unit-
ed States v. Kaufman, 96 U. S. 567, 24
L. ed. 792.
The equity jurisdiction was sustained
in Johnson v. Wells, F. & Co.' supra,
and by the circuit court of appeals in
the same case (L.R.A.1916C, 522, 130
C. C. A. 528, 214 Fed. 180), notwith-
standing a statute of South Dakota,
which gave a much better remedy than
the statute in question.
The jurisdiction being properly in-
voked on constitutional grounds, the
court will determine all questions in-
volved, though purely of state law.
Greene v. Louisville & Interurban R.
Co. 244 U. S. 499, 508, 61 L. ed. 1280,
12So, 37 Sup. Ct. Rep. 673, Ann. Cas.
1917E, 88.
* The tax in question cannot be aus-
taii)ed as a property tax.
Mever v. Wells,' Y. & Co. ^23 U. S.
298, 56 L. ed. 445, 32 Sup. Ct. Rep. 218.
A tax which professes to be on a priv-
ilege may be, by reason of the mode of
\ts assessment, in substance a tax on
property without the state, and there-
fore a trespass on fields which the*8tate
constitutionally may not enter; a tax
which calls itself a tax on the privilege
of doing business within the state must
be regarded as a tax on property outside
the state if its amount is fixed by the
value of such property.
Western U. Teleg. Co. v. Kansas, 216
U. S. 1| 54 L. ed. 355, 30 Sup. Ct. Rep.
190: Ludwig v. Western U. Teleg. Co.
snpra; Pullman Co. v. Kansas, 216 U. S.
«4 I>. cd.
56, 54 L. ed. 378, 30 Sup. Ct. Rep. 232;
Atchison, T. & S. F. R. Co. v. O'Con-
nor, 223 U. S. 280, 56 L. ed. 436, 32
Sup. Ct Rep. 216, Ann. Cas. 1913C,
1050; Looney v. Crane Co. 245 U. S.
178, 62 L. ed. 230, 38 Sup. Ct. Rep. 85;
International Paper Co. v. Massachu-
setts, 246 U. S. 135, 62 L. ed. 624, 38
Sup. Ct. Rep. 292, Ann. Cas. 1918C,
617; Locomobile Co. v. Massachusetts,
246 U. S. 146, 62 L. ed. 631, 38 Sup. Ct.
Rep. 298.
Under the special facts shown in the
bill, the taxing of a track mileage pro-
portion of the total value of all the car-
rier's property of every kind whatsoever
and wherever situate demonstrates that
the tax is laid on property beyond the
jurisdiction of the taxing state.
Fargo V. Hart, 193 U. S. 490, 48 L. ed.
761, 24 Sup. Ct. Rep. 498; Pittsburgh,
C. C. & St. L. R. Co. V. Backus, 154 U.
S. 421, 38 L. ed. 1031, 14 Sup. Ct. Rep.
1114; Western U. Teleg. Co. v. Taggart,
163 U. S. 1, 41 L. ed. 49, 16 Sup. Ct.
Rep. 1054; Meyer v. Wells, F. & Co.
supra; Union Tank line Co. v. Wright,
249 U. S. 275, 286, 63 L. ed. 602, 608, 39
Sup. Ct. Rep. 276.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an appeal from an order of
three judges restraining the defendants,
the appellants, from taking steps to en-
force taxes imposed by an act of North
Dakota, approved March 7, 1919 (chap.
222), until the further order of the court.
The plaintiff railroads are corporations
of other states, with lines extending into
North Dakota. The defendants are the
state tax commissioner, the state treas-
urer, the state auditor, the attorney gen-
eral, and the secretary of state for North
Dakota. As the tax is made a first lien
upon all the property of the plaintiff
railroads in the state, and thus puts a
cloud upon their title, and as delay in
payment is visited with considerable
penalties, there is jurisdiction in equity
unless there is an adequate remedy at
law against the state to which the tax is
to be paid. Shaffer v. Carter, March 1,
1920 [252 U. S. 37, ante, 445, 40 Sup.
Ct. Rep. 221] ; Gaar, S. & Co. v. Shan-
non, 223 U. S. 468, 472, 56 L. ed. 510,
512, 32 Sup. Ct. Rep. 236. The only
ground for supposing that there is such
a remedy is a provision that '^an action
respecting the title to property, or aris-
ing upon contract, may be brought in
the district court against the [68] state
the same as against a private person.*'
N. D. Corap. Laws 1913, § 8175. This case
l>0 785
68 70
SLFUEME COUKT OF THE UNITED STATES.
Oct. Term,
does not ariose upon contract except in the
purely artificial sense that some claims
for money alleged to have been obtained
wrongfully might have been enforced at
common law by an action of assumpsit.
Nothing could be more remote from an
actual contract than the wrongful ex-
tortion of money by threats, and we ought
not to leave the plaintiffs to a speculation
upon what the state court might say if an
action at law were brought. Union P. R.
Co. V. Weld Countv, 247 U. S. 282, 62 L.
ed. 1110, 38 Sup. Ct. Rep. 510.
We quote the tax law in full.* It will
be seen that it [69] purports to be a spe-
cial excise tax upon doing business in
the state. As the law is administered, the
tax commissioner fixes the value of the
total property of each railroad by the total
value of its stocks and bonds, and assesses
the proportion of this value that the
main track mileage in North Dakota
bears to the main track of the whole line.
But, on the •allegations of the bill, which
is all that we have before us, the circum-
stances are such as to make that mode
of assessment indefensible. North Da-
kota is a state of plains, very different
from the other states, and the cost of the
roads there was much less than it was in
mountainous regions that the roads had
to traverse. The state is mainly agricul-
tural. Its markets are outside its
boundaries, and most of the distributing
centers from which it purchases also are
outside. It naturally follows that the
great and verj' valuable terminals of the
roads are in other states. So, looking
only to the physical track, the injustice
of assuming the value to be evenly dis-
tributed according to main track mijeage
is plain. But that is not aU.
' The only reason for allowing a state
to look beyond its borders when it taxes
the property of foreign corporations is
that it may get the true value of the
things within it, when they are part of
an organic system of wide extent, that
gives them a value above what they oth-
erwise would possess. The purpose i^
not to expose the heel of the system to a
mortal dart, — not, in other words, to
open to taxation what is not within the
state. Therefore no property of such an
interstate road situated elsewhere can be
taken into account unless it can be seen
in some plain and fairly intelligible way
that it adds to the value of the road and
the rights exercised in the state. Hence
the [70] possession of bonds secured by
mortgage of lands in other states, or of a
land grant in another state, or of other
property that adds to the riches of the
corporation, but does not affect the North
Dakota part of the road, is no sufficient
ground for the increase of the tax,—
whatever it may be, — whether a tax on
property, or, as here, an excise upon do-
ing business in the state. St. Louis
Southwestern R. Co. v. Arkansas, 235 U.
S. 350, 364, 59 L. ed. 265, 272, 35 Sup.
Ct. Rep. 99. In this case, it is alleged,
the tax commissioner's valuation included
items of the kind described to very large
amounts. The foregoing considerations
justify the preliminary injunction that
was granted against what would appear
to be an unwarranted interference with
1 (2) Every corporation, joint-stoclc com-
pany or association, now or hereafter or-
ganized under the law of any other state,
the United States or a foreign country,
and engaged in business in the- state dur-
ing the previous calendar year, shall pay
annually, a special excise tax with respect
to the carrying on or doing business in
the state by such corporation, joint-stock
company or association, equivalent to 50
cents for each $1,000 of the capital ac-
tuallv invested in the transaction of busi-
nesK in the state: provided, that in the
case of a corporation engaged in business
partly within and partly without the
state, investment within the state shall be
held to mean that proportion of its entire
stock and bond issues which its business
within the state bears to its total business
within and without the state, and where
such businens within the state is not other-
wise more easily and certainly separable
from such entire business within and with-
out the state, business within the state
shall be lield to piean such proportion of
the entire business within and without the
state as the propertv of such corporation
78«
within the state bears to its entire propertv
employed in such business both within and
without the state: provided, that in the
case of a railroad, telephone, telegraph, car
or freight-line, express company or other
common carrier, or a gas, light, power of
heating company, having lines that enter
into, extend- out of or across the state,
property within the state shall be held i^
mean that proportion of the entire proper^
of such corporation engaged in snch busi-
ness which its mileage within the 6tat«
bears to its entire mileage within and
without the state. The amount of such an-
nual tax shall in all cases be computed on
the basis of the average amount of capital
so invested during the preceding calendar
year; provided, that for the purpose of
this tax an exemption of $10,000 from the
amount of capital invested in the state
shall be allowed; provided, further, that
this exemption shall be allowed only if
such corporation, joint-stock company or
association furnish to the tax comihission-
er all the information necessary to it#
computation.
253 U. S.
191V>.
GREAT NORTHERN R. CO. v, CAHILL.
70, 73
interstate commerce and a taking of
property without due process of laWk
Fargo V. Hart, 193 U. S. 490, 48 L. ed,
761, 24 Sup. Ct. Rep. 498; Union Tank
Line Co. v. Wright, 249 U. S. 275, 282,
63 L. ed. e02, 607, 39 Sup. CU Rep. 276.
The attorney general of the state, in
his very candid argument, suggested that
if the mode adopted by the tax commis-
sioner were open to objections, the stat-
ute might' DC construed to give him an
election as to the method of distribution,
and that he should take gross earnings,
or, if more easily ascertainable, tiie
property or mileage basis of distribution.
As we are dealing only with a prelimi-
nary injunction, we confine our consider-
ation to a general view of the mode
actually followed, and upon that we are
of opinion that the decree should be af-
firmed.
Decree afSrmed.
[711 GREAT NORTHERN RAILWAY
COMPANY, Plflf. in Err.,
V.
J. C. CAHILL and George Redman, Co-
partners as Redman & Cahill, and the
Board of Railroad Commissioners of the
State of South Dakota.
(See S. C. Reporter's ed. 71-77.)
Constitutional law — due process of law
— requiring railway company to in-
stall scales.
Railway companies may not, con-
sistently with due process of law, be com-
pelled by a state administrative order to
install cattle-weighing scales at stations
from which cattle are shipped.
[For other cases, see Constitutional Law, IV.
b, 4. in Digest Sup. Ct. 1908.]
[No. 124.]
Argued January 13, 1920. Decided May 17,
1920.
IN ERROR to the Supreme Court of the
State of South Dakota tc review a
judgment which reversed a judgment of
the Circuit Court of Minnehaha County,
in that state, reversing an ord^r of the
State Board of Railroad Commissioners
which directed a railway company to
install a cattle-weighing scale at a speci-
fied station. Reversed and remanded for
further proceedings.
See same case below, 40 S. D. 55,
P.U.R.1918C, 184, 166 N. W. 306.
The facts are stated in the opinion.-
Mr. E. 0. Lindley argued the cause,
and, with Messrs. M. L. Countryman, F.
R. Aikens, and H. E. Judge, filed a brief
for plaintiff in error.
Mr. Oliver £. Sweet argued the cause,
and, witii Mr. Clarence C. Caldwell, At-
torney Gkneral of the state of South
Dakota, and P. W. Dougherty, filed a
brief for defendants in error.
Mr. Chief Justice White delivered the
opinion of the court:
In Great Northern R. Co. v. Minne-
sota, 238 TJ. S. 340, 59 L. ed. 1337,
P.U.R.1915D, 701, 35 Sup. Ct. Rep. 763,
the question was whether an order of the
Note. — ^As to what constitutes due
process of law, generally — see notes to
People V. O'Brien, 2 L.R.A. 255; Kuntz
V. Sumption, 2 L.R.A. 655; Re Gannon,
5 L.R.A. 359; Ulman v. Baltimore, 11
L.R.A. 224; Gihnan v. Tucker, 13 L.R.A.
304 : Pearson v. Yewdall, 24 L. ed. U. S.
430; and Wilson v. North Carolina, 42
L. ed. U. S. 865.
Dnty of railway company to install
stock scales at station.
The existence of any duty on the part
of a carrier to install stock- weighing
scales at stations from which stock is
shipped is negatived in the decision in
Great Northern" R. Co. v. Cahill, and
in that in Great Northern R. Co. v. Min-
nesota, 238 U. S. 340, 59 L. ed. 1337,
P.U.R.1915D, 701, 35 Sup. Ct. Rep. 753.
These decisions are in accord with that
in New Mexico Wool Growers* Asso. v.
Atchison, T. & S. F. R. Co. 20 N. M.
33, 145 Pac. 1077, and with a ruling of
the Indiana Public Service Commission
64 li. ed.
in McDonald v. Pittsburgh, C. C. & St.
L. R. Co. P.U.R.1916E, 801.
The point is made in these cases that
such scales are not reasonably necessary
for any purpose involved in the business
of the railway company in the transpor-
tation of live stock, but are a conven-
ience to dealers and stock raisers for
their information in computing the
amount of sales. The point urged in
favor of the duty of the carrier to in-
stall such scales, that the shipper would
thereby be enabled to load more econom-
ically, is negatived also by the fact
which was shown in each of the cases
that the rates for the shipment of live
stock were based upon weight de-
termined upon track scales in transit
or at point of destination, and that
hoof stock scales were never used for
determining the weight xipon which
the tariff was based. It was further
shown in at least some of the cases that,
in loading stock into the cars, the ship-
per loaded the same not according to
787
^'
71-74
SUPRE^FE COURT OF THE UNITED STATES.
Oct.
Railroad & Warehouse Commission of
Minnesota, directing the railway to in-
stall at a named station a cattle^ weighing
scale, was rightly sustained by the su-
preme court of the state. It [72] was
found by that court (a) that out of 259
stations on the railway line in Minnesota
where stockyards for handling cattle ex-
isted there were but 54 supplied with
cattle-weighing scales, all of which the
railway had voluntarily installed; (b)
that although such scales had no direct
part in transportation, they were con-
venient in stock dealings, and a station
possessing one had an advantage over a
place where none existed ; in fact, that at
the 54 stations where they had been vol-
untarily installed it had come to pass
that they were used, not by shippers for
the purposes of their transportation busi-
ness, but by those who bought and sold
cattle.
Coming to consider the contention of
the railway that the order to put in the
scales was repugnant to the 14th Amend-
ment, as a taxing of its property without
due process, since, as a carrier, no obli-
gation rested upon it to put in the scales,
it was pointed out that the test was
whether the order was so arbitrary and
unreasonable as to exceed the power of
government, or was justified by the pub-
lic necessities which the carrier could
lawfully be compelled to meet. Holding
that, as the duty of the railway was con-
fined to furnishing appliances for its
business of transportation, and that cattle
scales were not of such a character, it
followed that the railway could not be
compelled to supply them as a means for
building up the business of trading in
cattle, however much the public might be
benefited thereby, the defense of the rail-
way was maintained, and the order of the
Commission was held to be wanting in
due process and void. The result, it was
pointed out, could not be avoided by the
suggestion that the order was intended to
correct a discrimination which existed in
favor of certain stations which had
scales, since in substance to say that
would be to correct one discrimination by
creating another.
Shortly before the argument in this
court of the Minnesota Case just referred
to, the firm of Cahill & Redman [78]
petitioned the Board of Railroad Com-
missioners of South Dakota for an order
requiring the Great Northern Railway
Company to install and maintain a cattle
scale adjacent to its cattle yards at Albee
station. It was aUeged in the petition
that no means otherwise of weighing
cattle existed at AJbee; that the publie
necessities of the cattle trade required
the scale, and that the number of cattle
shipped from the place justified the out-
lay by the railway.
The railway answered, denying any
duty on its part to install the scale, and
asserted that to compel it to put the
scale in would deprive it of its property
without due process, and would, b^des,
deny it the equal protection of the laws,
both in violation of the 14th Amendment.
At the hearing which followed there
was no showing that any cattle had been
shipped over t£e railway into Albee. It
was indisputably established, however,
(a) that not only the defendant railway,
but the other roads operating in the state
of South Dakota, had, at soYn^ of their
stations, installed stockyard scales which
presumably, in the absence of all proof
to the contrary, had been voluntarily in-
stalled; (b) that all shipments of cattle
from Albee during the preceding ^ree
years amounted only to 56 carloads, all
of which were moved in interstate com-
merce, that is, to St. Paul, Minnesota,
and that with regard to less than carload
lots two cattle shipped in intrastate com-
merce constituted the sole movement; (c)
that the universal rule on all railroads
throughout the United States is to deter-
mine the weight of cattle shipped in car-
load lots, for the purposes of ascertaininir
the freight charges, not by weight taken
on scales at the point of shipment, but by
a track scales at or adjacent to the point
of delivery; (d) that the business of
dealing in cattle at Albee would be facil-
itated and probably increased by the
existence tliere of a cattle scale where
cattle dealt in could be weighed, and that
the public want in this respect had come
to be increasingly felt since the rauoval
by its owner of a [74] private seale
which the public had used at a time
previous to the demand made ui>on the
railway to install the cattle scale here in
question.
The Commission, in its findings, while
pointing out that the complainants had
testified that, besides the benefit' to the
public, there would be an advantage to
weight, but .placed in a given oar only
so much stock as would ride safely to
the point of destination.
On the contrary, the power of a state
corporation commission to require a
788
railroad company to install track scales
for weighin^^ lumber was sustained in
North CarcHina Corporation Commis-
sion V. Atlantic Coast Line R. Co. 139
N. C. 126, 51 S. E. 793.
25S r. 6.
1)13.
GREAT NORTHERN K CO. v. CAHILL.
74-76
dippers by the establishment of the
soale^ as it would enable the shippers to
load thdr cattle so as to avoid any loss
resulting from a failure to bring the
loaded car up to the minimum weight re-
quired for carload shipments, added the
following: "The testimony of Ihe other
witnesses, including those appearing for
the railway company, is to the effect that
the only use to which a stock scale is put
is for the accommodation and convenience
of stock buyers and persons making sales
of live stock to the buyers at stockyards
in arri\'ing at the weights as to the basis
for the purchase and sale."
In the meanwhile the Minnesota Case
had been decided, and therefore, when the
Commission came to apply the law to the
facts by it found in this case, it was
•called upon to determine how far the rul-
ing in that case deprived it of power to
grant the relief prayed in this. Dis-
cnarging that duty, it held that the Minne-
sota Case was inapplicable, because in
South Dakota there was a common
knowledge that railroad cattle scales
when established were for the benefit of
both the public and shippers, enabling all
who took cattle into the railroad yards,
whether for shipment or otherwise, to
ascertain their weight. After referring to
the relation in certain aspects which eat-
tle scales when. installed bore to carload
and less than carload shipments, and that
a law of tlie state provided for the in-
.speotion of cattle scales when installed by
railways at their cattle yards, it was
pointed out that, in accordance with
many adjudged cases establishing that it
was a part of the duty of a carrier to in-
stall stockyards in which to hold cattle
intended for shipment, and to receive
inbound cattle when unloaded, it had, by
further legislation, been made the duty
of carriers [75] to establish stockyards
at their stations. Declaring that no dif-
ference in principle existed between the
duty to furnish stockyards and the duty
to install stock scales, the conclusion of
the Commission was thus summed up:
*• After a very careful examination of
tbe evidence in this record, this Commis-
sion is of the opinion and finds that live-
stock scales are a necessary facility at
stockyards for the weighing of live stock
received, for the purposes of shipment,
not. only for the convenience of the pub-
lic at large, live-stock buyers and indi-
vidual shippers, but in the necessary
weighing preliminary to properly loading
and subsequent to the unloading of live
stock at such stockyards, and that there
IB an actual public necessity for the in-
stallation of a stockyards scale at the
«4 L. ed.
stockyards of the defendant at its station
at Albee, in Grant county, in this state.''
Conforming to these conclusions, the
order award^ directed the installation o£
a stock scale of a certain capacity '^in
such a manner as to permit of the
weighing of live stoek loaded into and
unloaded from cars at that station, as
well as the weighing of stock received in-
to the stockyards at Albee."
An intermediary court to which the
case was removed held that as the fur-
nishing of a stock scale was no part of
the duty of a common carrier, the rail-
way could not be compelled to furnish
it without taking its property without
due process of law, and that this result
would be all the more flagrantly brought
about by compelling the railway to f ur-
tiish the scale upon the theory that, if
furnished, it would afford a facility for
the trading in cattle at the place where
it was. installed.
The complainant and the Board of
Railroad & Warehouse Commissioners, as
appellants, in invoking the reversal of
the judgment of the intermediary court
and the affirmance of the order of the
Board, as stated by the supreme court of
the state, in that court relied solely upon
[76] two grounds: "First, that local
buyers and sellers of live stock have
ihe right to demand the installation
of stockyard scales for their own con-
venience in buying live stock, and sec-
ond, that it is the duty of the car-
rier to furnish the shipper such fa-
ciUties as will enable him to avoid
underloading cars where the rate is fixed
upon minimum loads, and to ascertain
the cost of shipping stock in a car in ex-
cess of the minimiun carload weight.**
[40 S. D. 58, P.U.R.1918C, 184, 166 K.
W. 306.]
• Disposing of the first of these conten-
tions the court said: "The fallacy of
the first proposition is so clear that dis-
cussion would be idle. The carrier owes
no duty to the local buyer or seller of live
stock until the stock is tendered at the
stockyards for shipment."
In passing upon the second proposi-
tion the court quoted a passage from a
textbook (10 C. J. 59) in which, after
stating the general duty of a common
carrier to furnish appliances necessar>'
or appropriate for discharging its duties
as a common carrier, it was declared:
"The duty of a carrier of live stock, it
is said, cannot be efiSciently discharged
without the aid of pens or yards in which
the live stoek offered for shipment can
be received and handled with safety and
without inconvenience to the public, be-
76, 77
SIPKEME COURT OF THE UNITED STATES.
Oct. Tekm,
fore being loaded in the cars in which
they are to be tran^orted, and such duty
is strictly analogous to the duty of the
carrier to construct and maintain a se-
cure depot for inanimate freight."
Applying such doctrine the court, with-
out citation of authority or reference to
any l^slative enactment or administra-
tive practice supporting the view, and
without referring to the South Dakota
statutes relied upon by the Board, mak-
ing it obligatory upon the carrier to put
in cattle pens at all stations, without im-
posing any such duty to put in cattle
scales, but, on the contrary, giving power
only to inspect such scales when put in,
held, wholly as a matter of first impres-
sion, that the identity between the two
(cattle yards and cattle scales) was so
complete that [77] the obligation which
existed to erect cattle yards at every sta-
tion also established the duty to install a
cattle scales at every station. The judg-
ment of th^ intermediary court was
therefore reversed and the order of the
Board affirmed.
Eliminating, as this conclusion did, all
the questions pressed before the Board
obviously with the purpose of taking the
case out of the reach of the Minnesota
, decision, based upon a supposed duty to
put in scales because of the advantage
which would result to dealers in cattle, it
clearly follows that this case is decisively
controlled by the ruling in the Minnesota
Case, and therefore leaves us only the
duty to apply that ruling. Coming to do
so, the judgment below is therefore re-
versed and the cause remanded, with
directions for further proceedings not in-
consistent with this opinion.
It is so ordered.
ERIE RAILROAD COMPANY, Petitioner,
v.
WILLIA:M M. COLLINS.
(See S. C. Reporter's ed. 77-86.)
Master and servant — employer's liabil-
ity — when j^rvant Is engraged in
interstate oonimeree.
1. An employee of an interstate railway
company assigned to duty in a sij^nallng
tower and pumping station was engaged in
interstate commerce within the meaning of
the Federal Emplogrers' Liability Act while
starting a gasolene engine at the pumping
station, which was used to pump water
into a tank from which water was to be
supplied daily to locomotives in whatever
commerce, interstate or intrastate, engaged*
[For other cases, see Master and Servant, II. a.
2, b, in Digest Sup. Ct 1918 Sapp.l
Damages — shame and hamillation.
2. Shame and humiliation because of
disfigurement may be an element in the
recovery of damages for tfee injury.
[For other cases, see Damages, VI. q. In Digest
Sup. Ct. 1908.]
[No. 348.]
Argued January 8, 1920. Decided Mav 17,
1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to review a judgment
which afiftrmed a judgment of the Dis-
trict Court for the Western District of
New York in favor of plaintiff in a
personal-injury action brought under the
Federal Employers' Liability Act. Af-
firmed.
See same case below, 170 C. C. A,
240, 259 Fed. 172.
The facts are stated in the opinion.
Mr. John W. Byaa argued the cause,
and, with Mr. Adelbert Moot, filed a
brief for petitioner:
At the time of his injury Collins was
not employed in interatate commerce
witliin the meaning of that term as used
in the Federal Employers* Liability Act.
Southern R. Co. v. Puckett, 244 U. S.
571, 574, 61 L. ed. 1321, 1325, 37 Sup.
Ct. Rep. 703, Ann. Cas. 1918B, 69; Rli-
nois C. R. Co. v. Behrens, 233 U. S. 473,
478, 58 L. ed. 1051, 1055, 34 Sup. Ct.
Rep. 646, Ann. Cas. 1914C, 163, 10 N.
C. C. A. 153 ; Erie R. Co. v. Welsh. 242
U. S. 303, 306, 61 L. ed. 319, 324, 37
Sup. Ct. Rep. 116; New York C. R. Co.
V. Winfleld, 244 U. S. 147, 163, 61 L. ed.
1045, 1053, L.R.A.1918C, 439, 37 Snp.
Ct. Rep. 546, Ann. Cas. 1917D, 1139,
14 N. C. C. A. 680; Delaware, L. & W.
R. Co. V. Yurkonis, 238 U. S. 439, 59
L. ed. 1397, 35 Sup. Ct. Rep. 902; Chi-
cago, B. & Q. R. Co. V. Harrington, 241
U. S. 177, 60 L. ed. 941, 36 Snp. Ct.
Rep. 517, 11 N. C. C. A. 992; I^high
Valley R. Co. v. Barlow, 244 Vl S. 183,
Note. — On the constitutionality^ appli-
cation, and effect of the Federal Em-
ployers' Liability Act — see notes to
Lamphere v. Oregon R. & Nav. Co. 47
L.R.A.(N.S.) 38; and Seaboard Air
Line R. Co. v. Ilorton, L.R.A.1915C,
47.
790
As to mental suffering arising from
contemplation of disfigurement or mnti*
lation as element of damages for per-
sonal injuries — see notes to Patterson v.
Blatti, L.R.A.1916E, 898; and Diamond
Rubber Co. v. Harryman, 15 LJt.A«
(N.S.) 775.
253 U. 8.
lOlD.
•ERIE RAILROAD 0(5. v. COLLINS.
61 L. ed. 1070, 37 Sap. Ct. Rep. 515;
Shanks v, Delaware, L. & W. R. Co. 239
U. S. 566, 60 L. ed. 436, L.R.A.1916C,
797, 36 Sup. Ct Rep. 188; KeUy v.
Pennsylvania B. Co. 151 C. C. A. 171,
238 Fed. 95; Minneapolis & St., L. R.
Co. V. Winters, 242 U. S. 353, 61 L. ed.
358, 37 Sup. Ct. Rep. 170, Ann. Cas.
1918D, 54, 13 N. C. C. A. 1127; Galla-
^her V. New York C. R. Co. 180 App.
Div. 88, 167 N. Y. Supp. 480, 222 N. Y.
649, 119 N. E. 1044, 248 U. S. 559, 63
L. ed. 4^ 39 Sup. Ct. Rep. 6; Vollmers
V. New York C. R. Co. 223 N. Y. 571,
119 N. E. 1084.
The erroneous instruction of the court
that plaintiff was entitled to recover for
shame and humiliation felt hy him re-
sulted in an outrageously excessive ver-
dict.
Southern P. Co. v. Hetzer, 1 L.R.A
(N.S.) 288, 68 C. C. A. 26, 135 Fed.
272; Kcnnon v. Gilmer, 131 U. S. 22,
26, 33 L. ed. 110, 112, 9 Sup. Ct. Rep.
()96; McDermott v. Severe, 202 U. S.
•600, 611, 50 L. ed. 1162, 1168, 26 Sup.
Ct. Rep. 709.
Mr. Hamilton Ward argued the cause,
and, with Mr. Irving W. Cole, filed
a brief for respondent:
At the time of the injury, respondent
was engaged in interstate employment,
or in an act of his employment so close-
ly related to or connected with or inci-
dental to interstate commerce as to come
within the Federal act.
Second Employers' Liability Cases
(Mondou V. New 'York, N. H. & H. R.
Co.) 223 U. S. 1, 56 L. ed. 327, 38
L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169,
1 N. C. C. A. 875; Erie R. Co. v. Welsh,
242 U. S. 303, 61 L. ed. 319, 37 Sup. Ct.
Kep. 116; New York C. & H. R. R. Co.
V. Carr, 238 U. S. 260, 59 L. ed. 1298,
35 Sup. Ct. Rep. 780, 9 N. C. C. A. 1;
Shanks v. Delaware, L. & W. R. Co. 239
U. S. 556, 60 L. ed. 436, L.R.A.1916C,
797, 3G Sup. Ct. Rep. 188; Kinzell v.
Chicago, M. & St. P. R. Co. 250 U. S.
130, 63 L. ed. 893, 39 Sup. Ct. Rep.
412; Minneapolis & St. L. R. Co. v.
Winters, 242 U. S. 353, 61 L. ed. 358,
M Sup. Ct. Rep. 170, Ann. Cas. 1918D,
:)4, 13 N. C. C. A. 1127; Eng v. South-
ern P. Co. 210 Fed. 92; Southern R. Co.
V. Puckett, 244 U. S. 571, 61 L. ed. 1321,
37 Sup. Ct. Rep. 703, Ann. Cas. 1918B,
t>9; Roush v. Baltimore & O. R. Co. 243
Fed. 712; Thomas v. Boston & M. R.
Co. 134 C. C. A. 554, 219 Fed. 180, 8
N. C. C. A. 981; Pittsburgh, C. C. &
St. L. R. Co. v. Glinn, 135 C. C. A. 46,
219 Fed. 148; Coal & Coke R. Co. v.
Deal, 145 C. C. A. 490, 231 Fed. 604;
64 li. od.
Philadelphia, B. & W. R. Co. v. McCon-
nell, 142 C. C. A. 555, 228 Fed. 263;
Guy v. Cincinnati Northern R. Co. 198
Mich. 140, 166 N. W. 667, 246 U. S. 668,
62 L. ed. 930, 38 Sup. Ct. Rep. 336;
Sells v. Grand Trunk Western R. Co.
206 in. App. 45; Philadelphia, B. & W.
R. Co. V. Smith, 250 U. S. 101, 63 L. ed.
869, 39 Sup. Ct. Rep. 396; Guida v.
Pennsylvania R. Co. 183 App. Div. 822,
171 N. Y. Supp. 285, 224 N. Y. 712, 121
N. E. 871; Hargrove v. Gulf; C. & S. F.
R. Co. — Tex. Civ. App. — , lJ02 S. W.
188; Eskelsen v. Union P. R. Co. 102
Neb. 423, 167 N. W. 408, 168 N. W.
366; Denver & R. G. R. Co. v. Da Vella,
63 Colo. 71, 165 Pac. 254; Denver & R.
G. R. Co. V. Wilson, 62 Colo. 492, 163
Pac. 857; Re Maronev, — Ind. App. — ,
118 ;N. E. 134; Morata v. Oregon- Wash-
ington R. & Nav. Co. 87 Or. 219, 170
Pac. 291; Pedersen v. Delaware, L. &
W. R. Co. 229 U. S. 146, 57 L. ed. 1125,
33 Sup. Ct. Rep, 648, Ann. Cas. 1914C,
153, 3 N. C. C. A. 779; Lindstrom v.
New York C. R. Co. 186 App. Div. 429,
174 N. Y. Supp. 224; New York C. R.
Co. V. Porter, 249 U. S. 168, 63 L. ed.
536, 39 Sup. Ct. R€p. 188; Horton v.
Oregon- Washington .R. & Nav. Co. 72
Wash. 503, 47 L.R.A.(N.S.) 8, 130 Pac.
897; Kelly v. Erie R. Co. 188 App. Div.
863, 177 N. Y. Supp. 278.
There was no reversible error in the
charge of the court on the question of
damages.
Seaboard Air Line R. Co. v. Renn,
241 U. S. 290, 60 L. ed. 1006, 36 Sup.
Ct. Rep. 567, 17 N. C. C. A. 1; New
York C. R. Co. v. Bianc, 250 U. S. 596.
63 L. ed. 1161, 40 Sup. Ct. Rep. 44;
McDermott v. Severe, 202 U. S. 600, 50
L. ed. 1162. 26 Sud. Ct. Rep. 709; Unit-
ed States Exp. Co. v. Walil, «4 C. C. A.
260, 168 Fed. 851; Middlesex & B.
Street R. Co. v. Egan, 131 C. C. A. 53,
214 Fed. 747; Prescott v. Robinson, 74
N. H. 460, 17 L.R.A.(N.S.) 594, 124
Am. 5t. Rep. 987, 69 Atl. 522; Morris
V. International R. Co. 174 App. Div.
61, 159 N. Y. Supp. 993: Diamond Rub-
ber Co. V. Harryman, 41 Colo. 415, 15
L.R.A.(N.S.) 775, 92 Pac. 922; Darey
V. Presbvterian Hospital, 202 N. Y. 259,
95 N. E. 695, Ann. Cas. 1912D, 1238;
Larson v. Chase, 47 Minn. 307, 14
LJI.A. 85, 28 Am. St. Rep. 370, 50 N.
W- 238; Rockwell v. Eldred, 7 Pa.
Super. Ct. 95; Grav v. Washington
Water Power Co. 30 Wash. 665, 71 Pac.
206; Meddles v. Chicago & X. W. R. Co.
77 Wis. 228, 20 Am. St. Rep. 106, 46
N. W. 115; Central R. & Bkg. Co. v.
Lanier, 83 Ga. 587, 10 S. E. 279; Ken-
791
^0-82
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
uon V. Gilmer, 131 U. S. 22, 33 L. ed.
110, 9 Sup. Ct. Rep. 696.
[80] Mr. Justice McKezma delivered
the opinion of the court:
Action for damages under the Federal
Employers' Liability Act, brought in the
district court for the western district of
New York.
The following are the all^ations of the
complaint, stated narratively:
December* 26, 1915, and prior thereto,
defendant was an operator of a steam
railroad and engaged in interstate com-
merce. On and prior to that date plain-
tiff, as an employee of defendant, oper-
ated a signaling tower and water tank in
the town of Bums, New York, the tower
being used for the operation of trains in
interstate and intrastate commerce. .The
tank was used for supplying the loco-
motives of the trains with water, which
was pumped from a dose-by well into the
tank by a gasolene engine which plaintiff
ran.
In the nighttime of December 25, 1915,
while plaintiff was engaged in starting
the engine, the ga§olene suddenly explod-
ed, burning him and seriously and pain-
fully and permanently injuring him,
causing him immediate and permanent
suffering and the expenditure of large
sums of money, by all of which he was
damaged in the sum of $25,000.
The engine was defective, which was the
cause of the explosion, plaintiff being
guilty of no negligence.
Judgment was prayed in the sum of
$25,000.
Defendant by demurrer attacked the
sufiQciency of the complaint and the juris-
diction of the court.
The court (Judge Hazel) overruled the
demurrer, bfit, in doing so, expressed the
conflicting considerations which swayed
for and against its strength, but finally
held the complaint sufficient, ''and that
plaintiff was engaged in interstate com-
merce, or that his work was so closely
connected therewith as to be a part of
it." To this conclusion. [81] the court
seemed to have been determined by Pe-
dersen v. Delaware, L. & W. R. Co. 229
U. S. 146, 57 L. ed. 1125, 33 Sup. Ct.
Rep. 648, Ann. Cas. 19i4C, 153, 3 N. C.
C. A. 779.
Defendant answered, putting at issue
the allegations of the complaint, and set
up as separate defenses assumption of
risk and contributory negligence.
A trial was had to a jury, during the
course of which it was stipulated that, at
the time of plaintiff's injury and prior
792
thereto, ^trains carrying interstate com-
merce ran dijily," and at such times 'Srater
from the water tank was supplied daily
in part to defendant's engines engaged in
interstate commerce and in part to engines
hauling intrastate freight.''
Motions for nonsuit and for a directed
verdict were successively made and over-
ruled.
The jury returned a verdict for plain-
tiff in the sum of $15,000, upon which
judgment was entered against motion for
arrest and new trial.
Error was then prosecuted to the court
of appeals, which court affirmed the judg-
ment, and to review its action this cer-
tiorari was granted.
The evidence presents very few matters
of controversy. It establishes the em-
ployment of plaintiff by defendant, and
its character, and presents the question
whether it was in interstate commerce or
intrastate commerce, in both of which, it
is stipulated, defendant was engaged.
And on this question the courts below de-
cided the employment was in interstate
commerce, fhough exhibiting some strag^
gle with opposing considerations.
They seemed to have been constrained
to that conclusion by the same cases; and
a review ,of them, therefore, is immediate-
ly indicated to see whether, in their dis-
cord or harmony, whichever exists, a
solution can be found for the present
controversy.
They all dealt with eonsiderations de-
pendent upon the [82] distinctions of
lact and law between interstate and in-
trastate commerce. A distinction, it
may at once be said, is plain enough
so far as the essential character-
istics of the commerces are concerned,
but how far instruments or person*
al actions are connected with either,
and can be assigned to eith^, becomes in
cases a matter of difficulty, and ground,
it may be, of divergent judgments. "VTith
this in mind we review the cases.
But first as to the facts in this: De-
fendant is an interstate railroad, and
upon its line running from other states to
New York it operated in New York a
signal tower and switches, to attend
which plaintiff was employed. It also
had near the tower a pumping station,
consisting of water tank and a gasolene
engine for pumping purposes, through
which instrumentalities water was sup-
plied to its engines in whichever com-
merce engaged. While in attendance at
the pumping station plaintiff was injured.
And such is the case, that is, while in at-
tendance at the pumping station, it bein^
S53 r. s.
1919.
ERIE RAILROAD 00. v. COLLINS.
S2-S4
his duty to so attend, was be injured in
interstate commerce t
It can hardly be contended that while
plaintijf was engaged in the signal tower
be was not engaged, in interstate com-
meroe, though he may have, on ocisasiout
signaled the approach or departure of
intrastate trains. But it is contended that
when he descended from the tower and
went to the pumping station he put off an
interstate character and took on one of
intrastate quality : or, it may be, was de-
vested of both and sank into undesignated
employm^it. A rather abrupt transition^
it would seem at first blush, and, if ofl
determining influence, would subject the
Employers' Liability Act to rapid
changes of application, plaintiff being
within it at one point of tmie and without
it at another, — within it when on the sig-
nal tower, but without it when in the
pump house^ though in both places being
c-oncemed with trains engaged in inter-
state commerce.
[SS] But let us go from specula-
tion to the cases. Pedersen v. Del-
aware, L. & W. R. Co. supra, Del-
aware. L. & W. R. Co. V. Yurkonis,
238 U. S. 439, 59 L. ed. 1397, 35
Sup. Ct. Rep. 902, Chicago, B. & Q.
R. Co. V. Harrington, 241 U. S. 177, 60
,L. ed. 941, 36 Sup. Ct. Bep. 517, U N.
( \ C. A. 992, Shanks v. Delaware, L. &
W. R. Co. 239 U. S. 556, 60 L. ed. 436,
L.R.A.1916C, 797, 36 Sup. Ct. Rep. 188,
and Roush v. Baltimore & 0. R. Co. 243
Fed. 712, were considered by the court of
appeals. Some state cases were also re-
fen-ed to.
In Pedersen v. Delaware, L. & W. R.
Co. it was held that one carrying bolts to
be used in repairing an interstate rail-
road, and who was injured by an inter-
state train, was entitled to invoke the
Employers' Liability Act. In other
words, that one employed upon an in-
•itrumentality of interstate commeroe was
employed in interstate commerce. And it
was said, citing cases: "The true test
always is : Is the work in question a part
of the interstate commerce in which the
f^anier is engaged f
In the Yurkonis Case the injury com-
plained of happened to Yurkonis on a
mine or colliery of the railroad by the
f'xplosion of gases when Yurkonis was
engaged in and about the performance of
•lis duties. It was held that an injury so
received, though the coal was destined
for use in interstate commerce, was not
• »ne occurring in such commerce.
In Roush V. Baltimore & 0. R. Co.
243 Fed. 712, the decision was that one
employed in operating a pumping sta-
64 li. ed.
tion which furnished water to interstate
and intrastate roads was engaged in work
incidental to interstate commerce. The
court deducing that conclusion from
oases from which it liberaUy quoted.
Chicago, B. & Q. R. Co. v. Harrington,
241 U. S. 177, 60 L. ed. 941, 36 Sup. Ct.
Bep. 517, 11 X. C. C. A. 992, the court
of appeals considered as substantially the
same in incident and principle with the
Yurkonis Case, 238 U. S. 439, 59 L. ed.
1397, 35 Sup. Ct. Rep. 902. The case
concerned an injury [84] while hand-
ling coal. It was a step or steps near-
er the instrumentality of use. It was
being removed, when the injury com-
plained of occurred, from storage tracks
to chutes. The employment was consid-
ered too distant from interstate com-
merce to be a part of it, or to have
"dose or direct relation to interstate
transportation." The Yurkonis Case
was cited and applied.
Shanks v. Delaware, L. & W. B. Co.
239 U. S. 556, 60 L. ed. 436. L.R.A.
1916C, 797, 36 Sup. Ct. Rep. 188, was
considered of like character. The em-
ployment asserted to have been in in-
terstate commerce was the taking down
and putting up fixtures in a machine
shop for repairing interstate locomotives.
Before summarizing these cases we may
add Minneapolis & St. L. R. Co. v.
Winters, 242 U. S. 353, 61 L. ed. 358, 37
Sup. Ct. Rep. 170, Ann. Cas. 1918B, 54,
13 N. C. C. A. 1127, and Southern R. Co.
V. Puckett, 244 U. S. 571, 61 L. ed. 1321,
37 Sup. Ct. Rep. 703, Ann. Cas. 1918B,
69. In the Winters Case the work was
repjairing an engine. The engine, it was
said, had no definite destination. "It
simply had finished some interstate busi-
ness and had not as yet begun on any
other." As to such instrumentalities the
determining principle was said to be that
their character depends upon their "em-
plojinent at the time, not upon remote
probabilities or accidental later events." '
In the Puckett Case an employee (car
inspector) going to the relief of another
employee stumbled over some large
clinkers in his path while oarT^'ing a jack
for raising a derailed car. It was de-
cided that he was engaged in interstate
cconmerce, the purpose being to open the
way for interstate transportation.
These, then, being the cases, what doi
they afford in the solution of the case at
barf As we have said regarding the es-'
sential character of the two commerces,
the difference between them is easily
recognized and expressed; but, as we
have also said, whether at a piven time
particular instrumentalities or employ-
S4 Si>
SLIMIEMK COLKT OF THE UNITED STATES.
Oct. Term,
ment may be assigned to one or the other
mav not be easv, and of this the cases
are ilhistrative. What is their determin-
ing principle f
[85] In the Pedersen Case it was said
that the questions which naturally arise:
**Was the work being done independently
of the interstate commerce in which the
defendant was engaged, or was it so
closely connected therewith as to be a
part of it?'' Or» as said in Shanks v.
Delaware, L. & W. K. Co. supra, was the
^*work so closely related to it [interstate
<»ommerce] as to be practically a part of
itf* The answer must be in the af-
firmative. Plaintiff was assigned to duty
in the signal tower and in the pump
)iouse, and it was discharged in both on
interstate commerce as well as on in-
trastate commerce, and th^re was no
interval between the commerces that sep-
arated the duty, and it comes, therefore,
within the indicated test. It may be said,
however, that this case is concerned ex-
clusively with what was to be done, and
was done, at the pump house. This may
be true, but his duty there was performed
and the instruments and facilities of it
were kept in readiness for use and were
used on both commerces as were demand-
ed, and the test of the cases satisfied.
There is only one other assertion of
error that demands notice. The others
^regarding assumption of risk and con-
tributory negligence) counsel neither
argue nor submit; their abandonment,
therefore, may be assumed.
It is asserted against the verdict that
it is "outrageously excessive," caused by
the instruction of the court that plaintiff
could recover "for shame and humili-
ation.'* Counsel's argument is not easy
to represent or estimate. They say that
"mental pain" of the designated charac-
ter, "the suffering from feelings, is in-
tangible, incapable of test or trial,"
might vary in individuals, "rests entire-
ly in the belief of the sufferer, and is not
susceptible of contradiction or rebuttal."
If all that be granted, it was for the
consideration of the jury. It certainly
cannot be pronounced a proposition of
law that personal mutilation or disfigu-
ration may Ije a matter of indifference to
anybody, [SS] or that sensitiveness to it
may vary with "temperaments** and be
incapable of measurement. We see no
error in the instruction.
Judgment affirmed.
^Ir. Justice Van Devanter and Mr.
Justice Pitney disvscnt.
791
ERIE RAILROAD COMPAXY. Petitioner.
V.
AXTONI SZARY.
(See 8. C. Reporter's ed. 86-90.)
Master and servant *- employer's liabil-
ity — when servant is engaged In
interstate commeroe.
A railway employee charged with the
duty of sanding the locomotives of a rail-
way company engaged both in intrahtat**
and interstate commerce is engaged in inter-
state commerce within the meaning of the
Federal Employers' Liability Act when,
paving sanded the last locomotive and car-
ried the ashes from liie drying stove in the
sand house to the ash pit across the tracks.
he was b truck by a passing locomotive on
his way to get the ash pail, which he had
left at the pit while he went for a drink
of water, and it is immaterial in what
kind of commerce the last locomotive sand-
ed was engaged.
[For other cases, see Master and Servant, II.
a* 2, b, in Digest Sup. Ct. 1918 Sopp.]
[No. 355.]
Argued January 8, 1920. Decided May 17,
1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Second Circuit to review a judgment
which affirmed a judgment of the Dis-
trict Court for the Southern District of
New York in favor of plaintiff in a
personal-injury action brought under the
Federal Employers' Liability Act. Af-
firmed.
See same case below, 170 C. C. A. 246,
259 Fed. 178.
The facts are stated in the opinion^
Mr. Theodore Kiendl, Jr., argued the
cause, and Messrs. William C. Cannon
and Coulter D. Young filed a brief for
petitioner:
The action was brought under the art
of Congress known as the Federal Eni>
ployers* Liability Act. The pleading^
raised the issue as to the plain tifiTs eni>
ployment in interstate commerce at the
time he sustained his injury, and the
burden was upon the plaintiff to estab-
lish that he was engaged in such com-
merce, in order to come within the pur-
view of the Federal statute.
Pedersen v. Delaware, L. & W. R. Co.
229 U. S. 146, 57 L. ed. 1125, 33 Sup.
Note. — On the constitutionality, ap-
plication, and effect of the Federal Em-
ployers* Liability Act — see notes to
Lamphere v. Oregon R. & Nav. Co. 47
L.R.A.(N.S.) 38; and Seal>oard Air
Line R. Co. v. Horton, I^R.A.19ir>C. 47.
253 r. S.
3919.
ERIK RAILROAD 00. v. SZARY.
Ct. Rep. 648, Ann. Cas. 1914C', 163, 3
N. C. C. A. 779; Southern R. Co. v.
Llovd, 239 U. S. 496, 501, 60 L. ed. 402,
406, 36 Sup. Ct. Rep. 210; McAuliflfe v.
Kew York C. & H. R. R. Ca 164 App.
Div. 846, 150 N. Y. Supp. 512.
This court has consistently held that
the test as to whether or not the em-
ployee was engaged in interstate com-
merce depends upon the work in which
he was engaged at the time of the in-
jary. •
Illinois C. B. Co. v. Behrens, 233 U. S.
473. 58 L. ed. 1051, 34 Sup. Ct. Rep.
646, Ann. Cas. 1914C, 163, 10 N. C. C.
A. 153; Erie R. Co. v. Welsh, 242 U. S.
303, 61 L. ed. 319, 37 Sup. Ct. Rep. 116;
Shanks v. Delaware, L. & W. R. Co.
239 U. S. 556, 60 L. ed. 436, Jj.RJl
1916C. 797, 36 Sup. Ct. Rep. 188; Chi-
<?ago, B. & Q. R. Co. v. Harrington, 241
U. S. 177, 60 L. ed. 941, 36 Sup. Ct.
R^p. 617, 11 N. C. C. A. 992; Southern
R. Co. V. Puckett, 244 U. S. 671, 61 L. ed.
1321, 37 Sup. Ct. Rep. 703, Ann. Ca«?.
1918B, 69.
The cases hold that a man may be
employed in a position of a dual nature,
— that is. in interstate and intrastate
commerce; and when so employed the
courts will differentiate and determine
what was the nature of the work he was
^ engaged in at the particular moment the
accident happened.
New York C. & H. R. R. Co. v. Carr,
238 U. S..260, 69 L. ed. 1298, 35 Sup.
€t. Rep. 780, 9 N. C. C. A. 1.
It seems clear from the decisions of
this court that the preparation of the
sand for, or placing it in, storage, would
not constitute interstate commerce.
Chicago, B. & Q. R. Co. v. Harring-
ton, 241 U. S. 177, 60 L. ed. 941, 36
Sup. rt. Rep. 517, 11 N. C. C. A. 992;
Tichisrh Valley R. Co. v. Barlow, 244 U.
S. 183. 61 L. ed. 1070, 37 Sup. Ct. Rep.
616: Hudson & M. R. Co. v. lorio, 152
C. C. A. 641, 230 Fed. 855; Minneapolis
& St. L. R. Co. V. Winters, 242 U. S.
353, 61 L. ed. 3:>8, 37 Sup. Ct. Rep. 170,
Ann. Cas. 1918B, 54, 13 N. C. C. A.
1127. .
The other phase of the plaintiffs em-
ployment, namely, the cleaning of the
stove that dried the sand, and the re-
moval of the ashes from the stove, is the
most favorable view of the evidence for
the plaintiff. On the night of the acci-
dent the plaintiff had cleaned the stove,
removed the ashes, taken them over and
dumped them into the ash pit. After
dumping the ashes in the ash pit, he set
the pail down and recrossed the track
to the engine house, where he got a drink
64 Ij. ed.
of water. "When on the way back to
the ash pit to get the pail, he was run
over and injured. So that, at the time
of his injury, he was not even engaged
in removing the ashee from the stove.
But; assuming that his act was a part of
his cleaning the stove, it did not have to
do with any interstate operation.
Shanks v. Delaware, L. & W. R. Co.
239 U S, 556, 60 L. ed. 436, L.R.A.
1916C, 797, 36 Sup. Ct. Rep. 188; Del-
aware, L. & W. R. Co. V. Yurkonis, 238
U. S. 439, 59 L. ed. 1397, 36 Sup. Ct.
Rep. 902; Chicago, B. & Q. R. Co. v.
Harrington, 241 U. S. 177, 60 L, ed.
941, 36 Sup. Ct. Rep. 617, 11 N. CCA.
992; Illinois C R. Co. v. Cousins, 241
U. JS. 641, 60 L. ed. 1216, 36 Sup. Ct.
Rep. 446; Baltimore & 0. R. Co. v.
Branson, 242 U. S. 623, 61 L. ed. 634,
37 Sup. Ct. Rep. 244; Southern R. Co.
V. Pitchford, 166 C C. A. 330, 263 Fed.
736 ; Giovio v. New York C R. Co. 176
App. Div. 230, 162 N. Y. Supp. 1026;
b'Dell V. Southern R. Co. 248 Fed. 346,
164 C C A. 456, 252 Fed. 540; Min-
neapolis & St. L. R. Co. V. Winters, 242
U. S. 353, 61 L. ed. 358, 37 Sup. Ct.
Rep, 170, Ann. Cas. 1918B, 64, 13 N. C
C. A. 1127.
The opinions of the circuit court of
appeals in this case and in the Collins
Case are opposed to the reasoning and
the principles enunciated by this court.
Philadelphia, B. & W. R. Co. v. Smith,
250 U. S. 101, 103, 63 L. ed. 869, .872,
39 Sup. Ct. Rep. 396; Lehigh Valley R.
Co. V. Barlow, 244 U. S. 183, 61 K ed.
1070, 37 Sup. Ct. Rep. 515; Minneapolis
& St. L. R. Co. V. Winters, 242 V, S.
353, 61 L. ed. 368, 37 Sup. Ct. Rep. 170,
Ann. Cas. 191 8B, 64, 13 N. CCA.
1127.
Mr. John 0. Robinson argued the
cause and filed a brief for respondent:
In cases where the employee has been
injured while working in connection
with such instrumentalities of interstate
commerce, this court ha^ always held
that the employee came within the pur-
view and fair intendment of the Federal
Employers' Liability Act, even thougli
the particular instrumentality was used
for intrastate as well as for interstate
commerce.
Pedersen v. Delaware, L. & W. R. Co.
229 U. S. 146, 57 L. ed. 1125, 33 Sup.
Ct. Rep. 648, Ann. Cas. 1914C, 153, 3
N. C. C. A. 779; New York C & H. R.
R. Co. V. Carr, 238 U. S. 260, 69 L. ed.
1298, 36 Sup. Ct. Rep. 780, 9 N. C C
A. 1; Pennsylvania Co. v. Donat, 239
U. S. 60, 60 L. ed. 139, 36 Sup. Ct. Rep.
4; Lo«i.sville * N. R. Co. v. Parker, 242
795
i^8, 89
SUPREME COURT OP THE UNITED STATES.
Oct. IXBU.
U. S. 13, 61 L. ed. 119, 37 Sup. Ct, Rep. )
4 ; Southern R. Co. v. Puekett, 244 U. S.
571, 61 L. ed. 1321, 37 Sup. Ct. Rep.
703, Ann. Cas. 1918B, 69; New York C.
R. Co. t. Porter, 249 U. S. 168, 63 L. ed.
536, 39 Sup. Ct. Rep. 188; Philadelphia,
B. & W. R. Co. V. Smith, 250 U. S. 101,
63 L. ed. 869, 39 Sup. Ct. Rep. 396.
Szary, at the time of his injury, was
engaged in interstate commerce. •
Philadelphia, B. & W. R. Co. v. Smith,
supra; Roush v. Baltimore & 0. R. Co.
243 Fed. 713; Guida v. Pennsylvania R.
Co. 183 App. Div. 822, 171 X. Y. Supp.
285; Sells v. Grand Trunk Western R.
Co. 206 111. App. 45.
All of the cases in this court, cited by
the petitioner, are clearly distinguish-
able from the one at bar. Th^ may be
grouped under two headings: (a) Those
where the injury was sustained while
plaintiff was in the act of taking some
commodity, which might be used in in-
terstate commerce, from storage, or put-
ring it into storage.
Chicago, B. & Q. R. Co. v. Harring-
ton, 241 U. S. 177, 60 L. ed. 941, 36
Sup. Ct. Rep. 517, 11 N. C. C. A. 992;
Delaware, L. & W. R. Co. v. Yurkonis,
238 U. S. 439, 59 L. ed. 1397, 35 Sup.
Ct. Rep. 902; Lehigh Vallev R. Co. v.
Barlow, 224 U. S. 183, 61 L. ed. 1070,
37 Sup. Ct. Rep. 515.
(b) Those where the injury was sus-
tained while repairing or working upon
•^ome object such as an engine, car, etc.,
which was not permanently devoted to
interstate commerce, or so closely con-
nected with it as to be a part of it.
Shanks v. Delaware, L. & W. R. Co.
239 U. S. 556, 60 L. ed. 436, L.R.A.
1916C, 797, 36 Sup. Ct. Rep. 188; Illi-
nois C. R. Co. V. Cousins, 241 U. S. 641,
60 L. ed. 1216, 36 Sup. Ct. Rep. 446;
Baltimore & 0. R. Co. v. Branson, 242
U. S. 623, 61 L. ed. 534, 37 Sup. Ct.
Rep. 244; Hudson & M. R. Co. v. lorio,
152 C. C. A. 641, 239 Fed. 855.
It is not necessary, in order for him
to obtain the benefit of the Federal Em-
ployers' Liability Act, that Szary should
have been engaged in interstate com-
merce at the very instant of his injury.
Knowles v. New York, X. H. & H. R.
Co. 223 K Y. 513, 119 N. E. 1023; Erie
R. Co. V. Winfield, 244 U. S. 170, 61
L. ed. 1057, 37 Sup. Ct. Rep. 556, Ann.
Cas. 1915B, 662, 14 N. C. C. A. 957.
Mr. Justice McKenna delivered the
• »pinion of the court :
Action for damages under the Em-
ployers* Liability Act, for the loss of .a
leg in the railroad company's service.
79«
The verdict and judgment were for $20^
000. The contest in the case is whether
the injury was received in interstate or
intrastate service.
The judges below concurred in tht
judgment, but disagreed upoir the
grounds of it. Judges Hand and Hougb
concurred on the authority of the CoIIids
Case (170 C. C. A. 240, 259 Fed. 172^.
though Judge Hand did not sit in it, and
Judge Hough dissented from its judg-
ment.
As we have just afitened that case, if
it is not distinguishable from the ease at
bar, the latter must also be affirmed. A
distinction is not asserted, but both cases
are attacked. In our opinion in the
Collins Case we have reviewed most of
the cases upon which the company rdiee
in this, and whether their principle ap-
plies depends upon the facts. We colleet
them from the testimony, and represent
them as the jury had a right to consider
them, omitting conflicts.
[89J Sand is necessary to an en-
gine and must be used dry. Szary
and two others were employed in its
preparation, which was done in what
is called the ^'sand house,'' a small
structure standing in the yiurds of
the company, alongside of the tracks.
The drying was done in four large
stoves which it was the duty of Szary .
and his associates to attend. Soft
coal was the heating means, and the re-
sulting ashes were dumped in an hsh pit,
to do which a track had to be crossed.
On the night of the accident, January
5, 1917, Szary began his duties at 6
o'clock, and sanded about seven engines
whose destinations were other states. He
sanded the last engine at 9 o'clock, and,
after doing so, he removed the ashes
from the stove and carried them to the
ash pit in a pail, according to his euf-
tom; in doing which he was compeUed to
cross one of the tracks. He emptied th«
pail and left it on the g^und while he
went to the engine room to get a drink of
water, and when returning for the pail
and crossing the track he was hit by an
engine. He bad looked and saw nc
engine and .heard no signal. He de-
scribed the night as "very dark and very
foggy and rainy and misty," and testi-
fied that he could not see anything, the
steam and smoke from the engines in all
parts of the yard being so thick that be
could see nothing.
The engine that hit him was running
backwards and without a light He was
picked up and carried to a hospital and
bis l^f t leg was amputated the same nigbt
from 2 to 3 inches below the knee.
25a 17- &
1919.
WHITE V. CHIN FONG.
89-0 :
We think these facts bring the case
within the Collins Case and the test there
deduced from prior decisions. There
were attempts there, and there are at-
tempts here, to separate the duty and
assign it character by intervals of time,
and distinctions between the acts of serv-
ice. Indeed, something is attempted to
be made of an omission, or an asserted
omission, in the evidence, of the kind of
commerce in which the last engine served
was engaged. [90] The distinctions are
too artificial for acceptance; The acts of
6ervice were too intimately related and
too necessary for the final purpose to be
distinguished in legal character.
The conclusion that the service of
Szary was render<Bd in interstate com-
merce determines the correctness of the
ruling of the District Court upon the
motion to dismiss, made at the dose of
plaintiff's evidence, and afterwards for
particular iiistructions and the objections
to the charge by the court. AU of the
rulings were based on the character of
the commerce, the court adjudging it to
be interstate.
It hence follows that the judgment
must be and it is affirmed.
Mr. Justice Van Devanter and Mr.
Justice Pitney dissent.
EDWARD WHITE, Commissioner of Im-
migration for the Port of San Francisco^
Petitioner,
V.
CHIN FONG.
(See S. C. Reporter's ed. 90-93.)
Alienri — deportation — Chinese mer-
chant — re-entry — fraud in original
entry.
A Chinese person claiming the right
to re-enter the United States under the
Act of November 3, 1893, as a returning
merchant, mav not be deported by executive
action on the groimd that the original entry
was fraudulent, but he mu^t be deemed to
be entitled to a judicial inquiry and de-
termination of his rights, in view of the
provision of that act that a Chinaman ^ho
applies for admission into the United States
on the ground that he was formerly engaged
therein as a merchant must establish the
fact by two credible witnesses other than
Chinese that he was such at least one year
before his departure from the United States,
and had not engaged during such year in
#4 t. ed.
any manual labor except such as was neces*
sary in the conduct of his business.
[For other cases, see Aliens, VI. b, In Digest
Sup. Ct. 1908.1
[No. 606.]
Argued April 22, 1920. Decided May 17.
1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Ninth Circuit to review a judgment
which, reversing a judgment of the Dis-
trict Court for the First Division of the
Northern District of California, directed
the dischazge of a Chinese person held
by the commissioner of immigration for
deportation. Affirmed.
See same case below, 169 C. C. A. 569,
258 Fed. 849.
The facts are stated in the opinion.
Assistant Attorney General Stewart
argued the cause, and, with Mr. Harry
S. Ridgely, filed a hrief for petitioner.
Mr. Jackson H. Balaton argued the
cause, and, with Mr. Geoi^ W. Hott,
filed a brief for respondent
Mr. Justice McEenna delivered the
opinion of the court :
Certiorari to review a judgment of the
court of appeals discharging respondent
from the custody of the commissioner of
immigration, he holding respondent for
deportation as a Chinese person not en-
titled to be in the United States. 169 C.
C. A. 569, 258 Fed. 849. The judgment
of the court of appeals reversed that of
the district court, the latter court having
remanded respondent to the custody of
the commissioner for deportation.
The evidence ^tablishes the fact that
respondent entered the United States as
a- merchant, and was such at a fixed
place of business for at least a year be-
fore his departure for China, and that
his stay in China was intended to be
temporary. He hence contends that the
commissioner, as representing the execu-
tive branch of the government, had no
authority to determine that his original
entry was unlawful. This contention the
district court ruled against aud the cir-
cuit court of appeals ruled in favor of.
and constitutes the question in the case.
The circuit court of appeals, by Circuit
Judge Morrow, passing upon it, said:
"The acting Secretary of Labor, in ap-
proving the decision of the commissioner
of immigration, did so upon the ground
that *the original entry of this man [re-
spondent] was obtained by fraud;' but
this was not the question submitted to thf
7»7
•)l-04
SUPREME COURT OF THE UXITED STATES.
Oct. Temi,
commissioner of immigration or to the
Secretary of Labor for [92] decision.
The question was not whether the appli-
cant was legally admitted in 1896-1897 or
1906. The question was whether he had
been a merchant in the United States at
least one year before his departure from
the United States in 1912 (Chin Fong v.
Backus, 241 U. S. 1, 5, 60 L. ed. 859, 861,
36 Sup. Ct. Bep. 490)," and upon that
question, it was decided that "the evi-
dence was all one way, establishing be-
yond controversy all of the facts re-
(^uired by the statute and the rule of the
Department of Labor."
The conclusion was that the commis-
sioner did not consider this evidence or
pass upon it, but, deciding that appellee's
original entry was fraudulent, ordered
his deportation. In other words, it was
held that the commissioner ignored the
question presented to him and the evi-
dence pertaining to it, reviewed and re-
versed the judgment of another time and
tribunal, took away the right that had
been exercised under it and which gave
the assurance that respondent could go
to China and return again. The order
of deportation was, therefore, declared
to be void. For this the court cited the
case of Chin Fong v. Backus, supra, and
the various statutes applicable to the
exclusion of Chinese persons from entry
into the United States. Acts of May 6,
1882 (22 Stat at L. 58, chap. 126, Comp.
Stat. § 4290, 2 Fed. Stat. Anno. 2d ed.
p. 67) ; July 5, 1884 (23 Stat, at L. 115,
chap. 220, 2 Fed. Stat. Anno. 2d ed. p.
67) ; September 13, 1888 (25 Stat, at L.
476, chap. 1015) ; March 3, 1901 (31
Stat, at L. 1093, chap. 845, Comp. Stat.
§ 4332, 2 Fed. Stat. Anno. 2d ed. p.
108), and the Act of November 3, 1893
(28 Stat, at L. 7, chap. 14, Comp. Stat.
§ 4320).
hi the case of United States v. Woo
Jan, 245 U. S. 552, 62 L. ed. 466, 38 Sup.
Ct. Rep, 207, we had occasion to con-
sider the difference between the situation
of a Chinese person in the United States,
and one seeking to enter it; and held
that the former was entitled to a judicial
inquiry and determination of his rights,
and that the latter was subject to execu-
tive action and decision. We think the
distinction is applicable here, and that
one who has been in the United States,
and has departed from it with the inten-
tion of returning, is entitled, under exist-
ing legislation, to have his right to do so
judicially investigated with ^'its assur-
ances and sanctions," [98] as contrasted
with the discretion which may prompt
798
or the latitude of judgmeut which may
be exercised in executive action.
And suoh is the provision of the Act
of November 3, 1893 (28 Stat, at L. 7,
chap. 14, Comp. Stat. § 4320). It is
there provided that a Chinaman who ap-
plies for admission into the United
States on the ground that he wa-s for-
merly engaged therein as a merchant
must establish the fact by two credible
witnesses, other than Chinese, that he
I was such at least one year before his de-
I parture from the United States, and had
not engaged' during such year in any
manual labor except what was necessary
in the conduct of his business.
The government appeals against the
explicit words of the provision to the
purpose of the exclusion laws, which is,
it is said, to keep the country free from
undesirable Chinese, or, if they fraudur
lently enter, to expel them; and it is in-
sisted that it would be a perfunctory
execution of the purpose t© let one in
who may be immediately put out again.
That intention, it is urged, should not be
ascribed to the laws, and, in emphasis, it
is said: "Such a legislative absurdity is
unthinkable." But this overlooks the dif-
ference in the security of judicial over
administrative action, to which we have
adverted, and which this court has de-
clared, and, in the present case, the right
that had been adjudged, and had been
exercised in reliance upon the adjudica-
tion.
Judgment affirmed.
[941 DANIEL J. LEARY and George
Leary, Administrators of James D. Leary,
Deceased, Appts.,
V.
UNITED STATES OF AMERICA.
(See S..C. Reporter's ed. 94-97.)
Ball — rights of surety — Indemnity
fund.
1. Funds held in trust primarily as
security against liability on a bail bond
may not be charged by the surety with the
cost of defending against proceedings
brought by the United States to collect
a judgment upon such bond as forfeited,
merely because the United States impound-
ed the funds available for payment.
[For other cases, see Ball, II. d ; Principal and
Surety, IV. In Digest Sup. Ct. 1908.1
Clerks — fees — poundage.
2. Hie clerk of a Federal district court
may properly deduct his poundage of 1 per
cent, under U. S. Rev. Stat. § 8^, from
the amount allowed to the surety on a for-
feited bail bond out of the impotmded funds
of the principal in such clerk's luuids, wbieh
25S r. s.
^
1919.
LEARY V. UNITED STATED..
are finally adjudged to have been held in
trust primarily as security against liability
on such bond.
[For other caves, see Clerks, I. b^ 2, in Digest
Sup. Ct. 1008. J
Bail -^ rights of surety -« indemnity
fund.
3. The surety on a forfeited bail bond
cannot charge a fund held in trust as
security against liability on such bond with
his expenses in defending the trust and
establishing its priority over the claims of
the United States, nor with the poundage
fees of a clerk of court having possession
of such fund.
(For other cases, see Bail, II. d ; Principal and
Surety, lY. in Digest Sup. Ct. 1908.]
[No. 314.]
Argued April 30, 1920. Decided May 17,
1920.
APPEAL from the Upited States Cir-
cuit Court of Appeals for the Fourth
Circuit to review a decree which 4if-
lirmed a decree of the District Court
for the Western District of Virginia,
allowing a part only of a claim of inter-
veners in a suit brought by the United
States to establish a trust. Aflftrmed.
See same case below, 168 C. C. A. 330,
257 Fed. 246.
The facts are stated in the opinion.
Mr. Aubrey £. Strode argued the
cause, and, with Mr. J. T. Coleman, Jr.,
filed a brief for appellants:
In the absence of an expressed inten-
tion otherwise, the whole fund placed
with the trustee was thereby impressed
with the trust, and beci^e applicable to
its purposes expressed and implied, and
reasonably necessary to its execution.
Internal Improv. Fund v. Greenough,
105 U. S. 527, 26 L. ed. U57; New Am-
sterdam Casualty Co. v. Cumberland
Teleph. & Teleg. Co. 12 L.R.A.(N.S.)
478, 82 C. C. A. 315, 152 Fed. 963;
Perrv, Trusts, 6th ed. § 910; 2 Beach,
Trusts & Trustees, § 698; Stull v. Har-
vey, 112 Va. 822, 72 S. E. 701; 39 Cyc.
342, 513.
The understanding and agreement of
the parties, as appears from the letters
and the things done, was an indemnity
agreement, and was intended to save
Leary hannless from any and all liabil-
ities that might be incurred by him be-
cause «of his going upon the bail bonds
in evidence.
22 Cyc. 79, 80, 89, 97, 98 ; 1 Bouvier's
T^w Diet. Rawle's Rev. p. 1010; 2
Words & Phrases, 2d Series, 1033
Greene warranted his title to the stock.
By such notice it became incumbent
upon Greene to make good the war-
84 li. ed.
ranty of hi.s title to the stock that was
implied in his pledge of it to Lean*,
and Greene, having defaulted in this
duty, which Leary performed for him,
is bound to make good the consequent
lass, and the stock, having been pledged
as indemnity, may be subjected to that
loss because of the indemnity agreement,
which, carried with it the warranty of
title.
35 Cyc. 394; 31 Cyc. 811, 812; 40
Cyc. 492, 493.
Leary dealt with Greene unaffected by
notice of any infirmity in Greene's title
to the pledged security.
Leary v. United States, 144 C. C. A.
70, 229 Fed, 660, 245 U. S. 1, 62 L. ed.
113, 38 Sup. Ct. Rep. 1.
Under the trust and indemnity agree-
ment, expenditures reasonably and nec-
essarily made under that agreement con-
stitute charges upon the impounded
fund, including court costs and reason-
able, attorneys' fees.
Internal Improv. Fund v. Greenough,
105 U. S. 527, 26 L. ed. 1158; United
States V. Ringgold, 8 Pet. 150, 8 L. ed.
899; Keesling v. Frazier, 119 Ind. 185,
21 N. E. 552; 22 Cyc. 89; State v. Con-
nolly, 75 N. J. Eq. 521, 138 Am. St.
Rep. 577, 72 Atl. 363.
Mr. Marion Erwin, Special Assistant
to the Attorney General, argued the
cause and filed a brief for appellee:
There was no error in charging the 1
per cent clerk's poundage under U. S.
Rev. Stat. § 828, Comp. Stat. § 1383, 4
Fed. Stat. Anno. 2d ed. p. 657, on the
total amount allowed intervener out of
the general fund.
Kitchen v. Woodfin, 1 Hughes, 340,
Fed. Cas. No. 7,855; Blake v. Hawkins,
19 Fed. 204.
The indemnity contract went no fur-
ther than an agreement to hold Leary
harmless to the extent of the judgment
for principal, interest, and costs, which
was rendered against him in the suit
brought in the United States circuit
court of New York, wliirh, when entered
on January 6, 1908, legally and tinally
established his liability on the bail bond.
22 Cyc. 79, 84, 85 ; Lnddington v. Pul-
ver, 6 Wend. 404; Nash v. Palmer, 5
Maule & S. 374, 105 Eng. Reprint, 1088,
17 Revised Rep. 364, 22 Cyc. 88;
Springs v. Brown, 97 Fetl. 405; Phil-
adelphia, W. & B. R. Co. V. Howard, 13
How. 307, 343, 14 L. ed. 157, 172; Kees-
ling V. Frazier, 119 Ind. 185, 21 N. E.
552.
In no event can the expenses paid out
bv interveners, in the collateral contest
799
*Jo, 9«
SUPREME COURT OF THE UNITED STATES.
Oct. TEBJkc,
arising out of the equitable title set up
by the United States, be considered as
expenses against which Leary was in-
demnified on Greene's contract with him.
35 Cyc. 416; Bancroft v. Abbott, 3
Allen, 524; Curtis v. Banker, 136 Mass.
355; Brandt v. Donnelly, 94 Ky. 129, 21
S. W. 534; Richards v. Whittle, 16 N.
H. 259.
As between party and party, no costs
can be taxed against the government, ex-
cept where the case belongs to some
exceptional class, in which it is specially
so provided by statute.
United States v. Barker, 2 Wheat. 395,
4 L. ed. 271; United States v. Hooe, 3
Cranch, 73, 2 L. ed. 370; United States
V. Davis, 4 C. C. A. 251, 12 U. S. App.
47/54 Fed. 147; Re Chase, 60 Fed. 695;
Pine River Logging & Improv. Co. v.
United States, 186 U. S. 279, 40 L. ed.
1164, 22 Sup. Ct. Rep. 920.
The cases where a solicitor's fees are
taxable against a fund in court, for re-
covery or preservation of the fund, are
only cases in Tiiiich the beneficiaries of
the fund mav be considered as the clients
of the solicitor, as where suit is brought
by one party for himself and others,
and subsequently all apply for, or are
given the benefit of, the work of the first
solicitor; or where a trustee brings ac-
tion to recover, or defends for his cestui
que trust. In all such oases the tax-
ation for the solicitors fees or expenses
is against the fund recovered* as between
attorney and client, and not against the
general fund out of which the trust fund
is carved
Adams* v. Kehlor Mill. Co. 38 Fed.
281: Internal Improv. Fund v. Green-
ough, 105 U. S. 527, 535, 26 L. ed. 1157,
1161; Ryckman v. Paikins, 5 Paige,
543: 11 Cyc. 97; Ober & Sons Co. v.
Macon Const. Co. 100 Ga. 635, 28 S. E.
388. *
In a case where there is a contest be-
tween claimants of a fund in court, the
costs and expenses of such contest are
not taxable against the general fund, but
are taxable, if at all, only as between
party and party.
Hauenstein v. Lynham. 100 U. S. 483,
25 L. ed. 628; National Bank v. Whit-
nev, 103 U. S. 99, 104, 26 L. ed. 443, 561,
7f N. Y. 161.
[95] Mr. Justice Holmes delivered the
opinion of the court:
The United States brought a bill to
charge Kellogg with a trust in respect of
funds feceiv^ by him from Greene, and
obtained from the plaintiff by Greene
throusrh his participation in some well-
800
Wown frauds. In 224 U. S. 567, 56 L..
ed. 889, 32 Sup. Ct. Rep. 599, Ann. Cas.
1913D, 1029, the representative of Le&ry
was aUowed to intervene and to assert a
paramount claim upon the funds. In
245 U. S. 1, 62 L. ed. 113, 38 Sup. Ct.
Rep. 1, it was established that the funds
were held by Kellogg primarily as se-
curity to Lear\' against his liability upon
a bail bond for Greene. The United States
having obtained a judgment on the bail
bond, and the same having been paid by
^he Leary estate, the present appellants
filled a petition «in the cause, in the district
court, to have the funds applied to the
reimbursement (1) of expenditures in de-
fending against proceedings in the surro-
gate court to secure payment of the judg-
ment; (2) of expenditures in establish-
ing and protecting the trust; and (3) of
the sum of $40,802, the amount paid on
the judgment, with interest from July 26.
1910, the date when the judgment was
paid. The district court allowed the last
claim, with interest at 6 per cent, less the
clerk's poundage of 1 per cent under Rev.
Stat. § 828, Comp. Stat. § 1383, 4 Fed.
Stat. Anno. 2d ed. p. 657. (The details are
immaterial.) It denied the other claims,
and its decree was affirmed by the circuit
court of appeals.* 168 C. C. A. 330, 257
Fed. 246. Leary 's administrators ap«
pealed.
The only reason suggested for the claim
on account of detenmn^ against proceed-
ings on the judgment is that the United
States in the present suit had impounded
the funds available for payment. Bur
the obligation to pay the judgment was
absolute, not confined to a payment from
these funds, and the claim for the cost of
resisting it has no foundation. We alao
are of opinion that the deduction of
poundage by the clerk was proper as in
other [96] cases of money kept and
paid out by him. But it is said
that this item and the expense of de-
fending the trust should be borne by
the residue of the funds in the clerk's
hands after deducting the amount paid
in respect of the judgment. It i>
argued that the trust informally es-
tablished by letters of * Kellogg stating
that he held it for Leary's protection, to
be applied in payment of his obUgation
in case it' should be established, if ooo-
strued with reasonable liberality,, must
embrace these elements to make the pro-
tection complete. Of course, the uphold-
ing of Leary's claim against the llnited
States was not contemplated in the terms
of the trust, because Leary^s ignorance of
the interest of the United States was es-
sential to the validitv of his position as a
255 U. 9,
I9iy.
C1IR;AG0, M. & ST. p. R. CO. v. .MtCAlLL-DINSMOKK CO.
96, 97
purchaser without notice. But- it is
thought that indemnity includes defenses
of the indemnifying fund against unex-
pected attacks, that if the trustee fails to
make it the cestui que trust may do so,
and that, in either event, the fund should
be charged. It does not matter' that the
United States is the opposing party, as
its rights in the fund are inferior to those
that Leary now has suceessfnlly affirmed.
Internal Improv. Fund v. Greenough^
105 U. S. 527, 26 L. ed. 1167.
To these arguments the government re-
plies in the first place that they come too
late; that the decree of the circuit court
of appeals that was hei'ore this court on
the last occasion was treated as a final de-
cree, which therefore fixed the amount
that the appellants could recover beyond
enlargement; and tliat, as the prayer of
the appellants was only for the transfer
of so mudi of the fund as would pay the
judgment on the bail bond with interest;
nothing more can be asked now. This ob-
jection might raise difficulty if otherwise
our opinion were in favor of the appel-
lants; but; as we think tiiat the cirooit
court of appeals was right with regard to
the merits, we will assume, for the pur-
poses of decision, that the previous pro-
ceeding did not so precisely determine the
appellants* [^7] rights as to prevent
their demanding the foregoing items as
incident to the claim allowed.
To charge the fund with these expenses
is to charge the United States, and it begs
the question to say that the United States
in this respect is subordinate to the Leary
claim. It is not subordinate unless
Leary's costs ought to come out of the
government's pocket, even though limited
to particular money there. The govern-
ment cannot be made to pay or to take
subject to the deduction, because Lear}^,
even though a bona fide purchaser, had no
contract for it, and because to charge the
fund apart from contract is merely a
roundabout way of saying that the owner
of the fund must pay cbai'ges of a kind
that the United States never pays (see
National Bank v. Whitney, 103 U. S. 103,
104, 26 L. ed. 444, 561 ; United States v.
Barker, 2 Wheat. 395, 4 L. ed. 271), and
charges for protecting the fund not for,
but against; the United States.
Decree affirmed.
Mr. Justice McReynolds took no part
in the decision of this case.
• 4 li. ed.
CmC.AGO. MILWAUKEE, & ST. PAUL
RAILWAY CO.MPANY, Petitioner,
V.
McCAULL-DINSMORE COMPANY.
(See S. C. Reporter's ed. 97-100.)
Carriers -« limiting liability — origin
or destination value -« Otunmins.
Amendment.
The stipulation in the uniform bill of
lading that the amount of any loss or dam-
age for which any carrier is liable shall be
computed on the basis of the value of the
property at the place and time of ship-
roent, including freight cliarges, if paid,
-which is sanctioned by the Interstate Com-
merce Commission as in no way limiting
the carrier's liability to less than the value
of the goods, but as merely offering the
most convenient way of finding the value,
but which does in fact prevent a recovery
of the full actual loss, where the shipment
would have been worth more at destination
than at origin, is inconsistent with and
invalidated by the provision of the Cummins
Amendment of March 4, 1915, that carriers
shall be liable to the holder of the bill of
lading for the full actual loss, damage, or
injury, notwithstanding any limitation of
liability or limitation of the amount of re-
covery, or representation or agre^nent as
to value.
[For other cases, sec Carriers, II. b,*?, in Di-
gest Sop. Ct. 1903.]
[No. 628.]
Argued and submitted April 23, 1920. De-
cided May 17, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Eighth Circuit to review a judgment
which affirmed a judgment of the District
Court for the District of Minnesota in
favor of the shipper in a suit against
Note. — On validity of agreement to
restrict carrier's liability, generally —
see notes to Missouri P. R. Co. v. Ivey,
1 L.B.A. 500; Hartwell v. Northern P.
Exp. Co. 3 L.R.A. 342; Richmond & D.
R. Co. V. Payne, 6 L.R.A. 849; Adams
Exp. Co. V. Harris, 7 L.R.A. 214; Dunt-
ley V, Boston & M. R. Co. 9 L.R.A. 452;
Gulf, C. & S. F. R. Co. V. Gatewood, 10
L.R.A. 419; Pacific Exp. Co. v. Foley,
12 L.R.A. 799; Deming v Merchants'
Cotton-Press & Storage Co. 13 L.R.A.
518; Ballou v. Earie, 14 L.R.A. 433;
Little Rock & Ft. S. R. Co. v. Cravens.
18 L.R.A. 527; Everett v. Norfolk k S.
B. Co. 1 L.R.A. (N.S.) 985; New Jersey
Steam Nav. Co. v. Merchants' Bank, 12
L. ed. U. S. 465; and Chicago, M. & St.
P. R. Co. V. Solan. 42 L. ed. U. S. 688.
1 801
98
SUPKICMK COUKT OF TlIK IXITED STATES.
Oct. Term,
)
a carrier to recover damages for the loss
of a shipment. AflBrmed.
See same case below, 171 C. C. A. 5G1,
260 Fed. 835.
The facts are stated in the opinion.
Mr. O. W. Dynes argued the cause,
and, with Messrs. H. H. Field, F. W.
Root, and Burton Hanson, filed a brief
for petitioner:
At common law the carrier and ship-
per were permitted to fix by mutual
agreement a bona fide value to govern in
computing loss of or damage to a ship-
ment.
Mobile & M. R. Co. v. Jnrey, 111 U. S.
684, 596, 28 L. ed. 527, 531, 4 Sup. Ct.
Rep. 566; New York, L. E. & W. R. Co.
V. EstiU, 147 U. S. 591, 617, 37 L. ed.
292, 304, 13 Sup. Ct. Rep.. 444; The
Oneida, 63 C. C. A. 239, 128 Fed. 692;
Inman v. Seaboard Air Line R. Co. 159
Fed. 974; Springfield Light, Heat & P.
Co. V. Norfolk A W. R. Co. 260 Fed.
254; Boston & M. R. Co. v. Piper, 246
U S. 439, 443, 62 L. ed. 820, 822, 38 Sup.
Ct. Rep. 354, Ann. Cas. 1918E, 469; 1
Hutchinson, Carr. 3d ed. § 426; Alair v.
Northern P. R. Co. 53 Minn. 160, 19
L.R.A. 764, 39 Am. St. Rep. 588, 54 N.
W. 1072; Hart v. Pennsylvania R. Co.
112 U. S. 331, 28 L. ed. 717, 5 Sup. Ct.
Rep. 151; Adams Exp. Co. v. Croninger,
226 U. S. 491, 509, 57 L. ed. 314, 321, 44
L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148;
Brown v. Cunard, S. S. Co. 147 Mass.
58, 16 N. E. 717; Jennings v. Smith, 45
C. C. A. 249, 106 Fed. 139; MacFarlane
V. Adams Exp. Co. 137 Fed, 982; The
Koan Mam, 251 Fed. 384; Graves v.
Lake Shore & M. S. R. Co. 137 Mass.
33, 50 Am. Rep. 282 ; Coupland v. Hous-
atonic R. Co. 61 Conn. 531, 15 L.R.A.
534, 23 Atl. 870; J. J. Douglas Co. v.
Minnesota Transfer R. Co. 62 Minn. 288,
30 L.R.A. 860, 64 N. W. 899; Oppen-
heimer ▼. United States Exp. Co. 69 111.
62, 18 Am. Rep. 596; Adams Exp. Co.
V. Camahan, 29 Ind. App. 606, 94 Am.
St Rep. 279, 63 N. E. 245, 64 N. E. 647;
Harvey v. Terre Hante & I. R. Co. 74
Mo. 538; Magnin v. Dinsmore, 56 N. Y.
168; Baltimore & 0. R. Co. v. Hubbard,
72 Ohio St. 302, 74 N. E. 214, 18 Am.
Neg. Rep. 231; Ullman v. Chicago & N.
W. R. Co. 112 Wis. 158, 56 L.R.A. 246,
88 Am. St. Rep. 949, 88 N. W. 41.
Under the Carmack Amendment the
carrier and shipper were permitted to fix
by mutual agreement a bona fide value
to govern in computing loss of or dam-
age to the shipment.
Adams Exp. Co. v. Croninger, 226 U.
S. 491, 57 L. ed. 314, 44 L.R.A. (N.S.)
257, 33 Sup. Ct. Rep. 148; Wells, F. &
S02
Co. v.. Neiman-Marcus Co. 227 U. S.
469, 57 L. ed. 600, 33 Sup. Ct. Rep. 2^7 ;
Chicago, St. P. M. & 0. R. Co. v. Latta,
226 U. S. 519, 57 L. ed. 328, 33 Sup. Ct.
Rep. 155; Chicago, B. & Q. R. Co. v.
Miller, 226 U. S. 513, 57 L. ed. 323, 33
Sup. Ct.^ Rep. 155.
To scHSure uniform treatment of all
shippers by carriers was a fundamental
purpose of the Act to Regolate Com-
merce.
Adams Exp. Co. v. Croninger, snpra;
Re Bills of Lading, 14 Inters. Com. Rep.
349; Shaffer v. Chicago, R. L & P. B.
Co. 21 Inters. Com. Rep. 11; Re Cum-
mins Amendment, 33 Inters. Com. Rep.
693.
The Interstate Commerce Commission
acted within its administrative authority,
delegated by Congress, in approving the
clause of the uniform bill of lading here
in controversy.
Loomis V. Lehigh Valley R. Co. 240
U. S. 43, 50, 60 L. ed. 517, 619, 36 Sup.
Ct. Rep. 228; Re Cummins Amendment,
33 Inters. Com. Rep. 682.
The courts have not been given jnrie-
diction to nullify purely administrative
action lawfully taken by the Interstate
Commerce Commission.
Mitchell Coal & Coke Co. v. Pennsyl-
vania R. Co. 230 U. S. 247, 255, 57 L.
ed. 1472, 1475, 33 Sup. Ct. Rep. 916;
Texas & P. R. Co. v. American Tie i
Timber Co. 234 U. 8. 138, 146, 58 L. ed.
1255, 1258, 34 Sup. Ct. Rep. 885; Kan-
sas City Southern R. Co. v. Carl, 227
U. S. 639, 57 L. ed. 683, 33 Sup. Ct
Rep. 391 ; Decker ▼. Director (General, 55
Inters. Com. Rep. 455; Minnesota Rate
Cases (Simpson v. Shepard) 230 U. 9.
352, 419, 57 L. ed. 1511, 1549, 48 LJUL.
(N.S.) 1161, 33 Sup. Ct Rep. 729, Ann.
Cas. 1916A, 18; Loomis. v. Lehigh Val-
ley R. Co. 240 U. S. 43, 60 L. ed. 617,
36 Sup. Ct Rep. 228.
The bill of lading clause in contro-
versy is in conformity with the declared
policy of the law.
Adams Exp. Co. v. Croninger, 226 U.
S. 491, 510, 57 L. ed. 314, 321, 44 L.R.A.
(N.S.) 257, 33 Sup. Ct Rep. 148; Geor-
gia, F. & A. R. Co. v. Blish Mill. Co. 241
U. S. 190, 60 L. ed. 948, 36 Snp. Ct
Rep. 541 ; Texas ft P. R. Co. v. Leathor-
wood, 250 U. S. 478, 68 L. ed. 1096, 39
Sup. Ct. Rep. 517,
Mr. J. O. P. Wheelwrii^t submitted
the cause for respondent.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is an action for the loss of grain
belonging to the plaintiff and delivered
253 U. S.
1910.
VVESTEKN UNION TELJEG. CO. v. BUOWN.
iii^-101
on November 17, 1915, to the defendant,
the petitioner, in Montana, for transpor-
tation to Omaha, Nebraska. The g^rain
was shipped under the uniform bill of
lading, part of the tariffs filed with the
Interstate Commerce Commission, by
which it was provided that "the amount
of any loss or damage for which any
carrier is liable shall be computed on the
basts of the value of the property at the
place and time of shipment under this
bill of lading, including freight ciiarges,
if paid." The petitioner has paid $1,-
200.48, being the amount of the loss so
computed, but the value of the grain at
the pla«e of destination at the time when
it should have been delivered, with inter-
est, less freight charges, was $1,422.11.
The plaintiff claimed the difference be-
tween the two sums on the ground that
the Cummins Amendment to the Inter-
state Conunerce Act made the above stipu-
lation void. The district court gave judg-
ment for the plaintiff (252 Fed. 664),
and the judgment was afBrmed by the
circuit court of appeals (171 C. C. A.
661, 260 Fed. 835).
[99] The Cummins Amendment, Act
of March 4, 1916, chap. 176, 38 Stat, at L.
1196, Comp. Stat. § 8604a, 4 Fed. Stat.
Annto. 2d ed. p. 506, provides that the
carriers affected by the act shall issue a
bill of lading and shall be liable to the
lawful holder of it "for any loss, dan^age,
or injury to such property . . . and
no eontroct, receipt, rule, regulation, or
otiier limitation of any character whatso-
erer, shall exempt such common carrier
. . . from the liability hereby im-
posed;" and further, that, the carrier
"shall be liable ... for the full actual
loss, damage, or injury . . . notwith-
standing any limitation of liability or lim-
itation of the amount of recovery, or rep-
resentation or agreement as to value in
any such receipt or bill of lading, or in
any contract, rule, regulation, or in any
tariff filed with the Interstate Commerce
Commission; and any such limitation,
without respect to the manner or form in
which it is sought to be made, is hereby
declared to be unlawful and void." Be-
fore the passage of this amendment the
Interstate Commerce Commission had up-
held the clause in the bill of lading as in
no way limiting the carriers' liability to
less than the value of the goods, but
merely offering the most convenient way
of finding the value. Shaffer v. Chicago, R.
I. & P. R. Co. 21 Inters. Com. Rep. 8, 12.
In a subsequent report upon tlie amend-
ment it considered that the clause was still
valid, and not forbidden by the law. 33
Inters. Com. Rep. 682, 693. The argu-v
64 Ii. ed. *- ' e
ment for the petitioner suggests that
courts are bound by the Commission's de-
termination that the rule is a reasonable
one. But the question is of the n^eaning
of a statute, and upon that, of course, the
courts must decide for themselves.
We appreciate the convenience of the
stipulation in the bill of lading and the
arguments urged in its favor. We under-
stand that it does not necessarily prevent
a recovery of the full actual loss, and
that if the price of wheat had gone down,
the carrier might have had to pay more
under this contract than by the common-
law rule. But the [100] question is
how the contract operates upon this
case. In this case *it does prevent
a recovery of the full actual loss, if
it is enforced. The rule of the com-
mon law is not an arbitrary fiat, but
an embodiment of the plain fact that
the actual Io<«s caused by breach of a con-
tract is the loss of what the contractee
would have Tiad if the contract had been
performed, less the proper deductions,
which have been made and are not in
question here. It seems to us, therefore,
that the decision below was right, and as,
in our opinion, the conclusion is required
by the statute, neither the convenience of
the clause, nor any argument based upon
the history of the statute or upon the
policy of the later Act of August 9, 1916,
chap. 301, 39 Stat, at L. 441, Comp. Stat.
§ 8604a, Fed. Stat. Anno. Snpp. 1918, p.
387, can prevail against what we under-
stand to be the meaning of the words.
Those words seem not only to indicate a
broad general purpose^ bat to apply ape^
cifically to this very case.
Judgment afSrmed.
The Chis» Justice dissents for the rei^
sons stated by the Interstate Conunerce
Commission.
[1011 WESTERN UNION TELEGRAPH
COMPANY, Petitioner,
V.
GEORGE M. BROWN, Executor of the Last
Will and Testament of Williain Lange,
Jr., Deceased, and J. U. Hastings.
(See 8. C. Reporter's cd. 101-118.)
Contracts — sale or option — default *•
forfeiture — seller's election.
A poAitive undertaking of the owners
of mining stock to sell, and of the pur-
Note. — As to rights and liahilities of
vendor and purchaser by conditional sale
on default of pavment---eee note to Cole
. Hines, 32 L.R.A. 455.
80S
103, 104
SUPKEMK COL'UT OF TUK UNITED STATES.
Oct. Term,
chasers to buy, Uj>on terms named, is not
•conTerted into an option to purciia^c, ter-
minable at the will of the purchasers upon
their failure to make the required pay-
ments, merely because tlie agreement fur-
ther provides that the stock is to be de-
posited in a bank in escrow, to be delivered
to the purchasers when the final payment
agreed upon is made, and stipulates that,
in the event of default in payment, the
tiank is authorized to deliver the stock to
the sellers, all prior payments to be for-
feited, and the rights of each of the parties
to cease and determine, since this forfeiture
provision is for the benefit of the sellers,
and may be insisted upon or waived, at
their election.
(For other cases, see Contracts, I. d, 4 ; Sole,
I. a, In Digest Sup. Ct. 1008.]
[No. 160.]
Argued January 20 and 21, 1920. Decided
May 17, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Ninth Circuit to review a judgment
which affirmed a judgment of the Dis-
trict Court for the Northern District of
California in favor of plaintiffs in an
action against a tel^n^aph company to
recover for failure to deliver a message.
Reversed and case remanded to the Dis-
trict Court for further proceedings.
See same case below, 160 C. C. A. 556,
248 Fed. 656.
The facts are stated in the opinion.
Messrs. Beveriy L. Hodghead and
Rush Taggart argued the cause, and,
with Mr. Francis R. Stark, filed a brief
for petitioner:
The Pitt and Campbell agreement was
an absolute agrreement, and plaintiffs
were bound by their covenant to buy the
stock, and therefore were not damaged
by the delay.
James, Option Contr. § 109; Wilcox-
son V. Stitt, 65 Cal. 596, 52 Am. Rep.
310, 4 Pac. 629; Central Oil Co. v.
Southern Ref. Co. 154 Cal. 165, 97 Pac.
177; Weaver v. Griffith (210 Pa. 13, 105
Am. St. Rep. 783) 59 Atl. 315; Vickers
V. Electrozone Commercial Co. 63 N. J.
L. 9, 4^ AtK 606 ; Hamburger v. Thomas,
— Tex. Civ. App. — , 118 S. W. 770;
Knickerbocker L. Ins. Co. v. Norton, 9()
U. S. 234, 24 L. ed. 689; Jones v. Hert,
192 Ala. Ill, 68 So. 259; ItfcMillen v.
Strange, 159 Wis. 271, 150 N. W. 4:14;
Meagher v. Hoyle, 173 Mass. 577,. 54 N.
E. 347; Dana v. St. Paul Invest. Co. 42
Minn. 196, 44 N. W. 55; Shenners v.
Pritchai-d, 104 Wis. 291, 80 N. W. 458;
Stewart v. Griffith, 217 U. S. 323, 54 L.
ed. 782, 30 Sup. Ct. Rep. 528, 19 Ann.
Cas. 639.
Mr. Samuel Poorman, Jr., argued the
cause and filed a brief for respondents:
The Pitt and Campbell contract left it
to plaintiflTs option to withhold the May
1st instalment, and thereby forfeit the
previous payment, and terminate all
rights of each of the parties thereunder.
Ramsey v. West, 31 Mo. App. 676;
Bradford v. limpus, 10 Iowa, 3i5; Beek-
with-Anderson Land Co. v. Allison, 26
Cal. App. 473, 147 Pac. 482; Vcrstine
V. Yeanev, 210 Pa. 109, 59 Atl. 689;
Pittsburg' Vitrified Paving & Bldg. Brick
Co. v. Bailev, 76 Kan. 42, 12 L.R.A.
(N.S.) 745, 90 Pac. 803; McConathy v.
Imnham, 116 Kv. 735, 76 S. W. 535:
Williamson v. Hill, 154 Mass. 117. 13
L.R.A. 690, 27 N. E. 1008; Gordon v.
Swan, 43 Cal. 564, 3 Mor. Min. Rep. 84:
Glock V. Howard & W. Colony Co. 123
Cal. 1, 43 L.R.A. 199, 69 Am. St, Rep.
17, 55 Pac. 713; 2 Warvelle, Vendors,
pp. 818, 821.
Mr. Justice Day delivered the opinion
of the court :
This is an action by Brown, executor of
Lange, and Hastings, to recover damages
from the Western Union [104] Td-
egraph Company for failure to deliv-
er a message sent by Hastings and
Lange to the Lyon County Bank, Yer-
ington, Nevada. A judgment was re-
covered against the Telegraph Com-
pany in the district court, which wa<>
affirmed in the circuit court of ap-
peals for the ninth circuit. 160 C. C.
A. 556, 248 Fed. 656. The case is here
upon writ of certiorari.
Upon stipulation the case was tried in
the district court without a juiy, and the
court made findings from wliich it a|>-
pears: On March 16, 1907, W. C. Piti
and W. T. Campbell entered into a con-
tract with Hastings and Lange for the
sale of 625,000 shares of the capital
I
On conditional sales, generally — see
note to Sturm v. Boker, 37 L. ed. U. S.
1093.
As to right of purchaser on condition-
al sale to recover payments where seller
retakes the property — see notes to C. W.
Ravmoml Co. v. Kahn, 51 L.R.A.(N.S.) •
KOI
251; and Pfeifer v. Norman, 38 L.R.A.
(N.S.) 891.
On liability of telegraph company for
failure properly to transmit or deliver
a message petraining to the negotiations
for, or offer of, a oontraot — see note to
Western U. Teleg. Co. v. Sights. 42
L.R.A.(X.S.) 419. •
S5S V. S.
1919.
WESTERN L'XION TKI.KC. CO. v. BROWN.
104-106
Stock of the Kennedy Consolidated Gold
Mining Company. Ju Ibis eontract it
was stipulated that Pitt and Campbell
agreed to sell and deliver to Hastings and
I^ge, who agreed to bny^ take, and re-
ceive from them, 625,000 shares of the
Kennedy Consolidated Gold Mining Com-
pany, upon the following terms and con-
ditions: First. The total piioe to be
paid for the shares of stock to be $75,000
in gold eoin of the United States, pay-
able $7,500 oh the execution of the agree-
ment; $11,250 on or before the 1st day of
May, 1907; and the like sum on or before
the 5th of July, 1907, the 5th of Septem-
ber, 1907, the 5th of November, 1907, the
5th of January, 1908, and the 5th of
March, 1908. It was agreed that imme-
diately upon pajonent of the first-named
sum, Pitt and Campbell would deposit in
escrow in and with the Lyon Comity
Bank, of Yerington, Nevada, certificates
of stock indorsed in blank, representing
in the aggregate 625,000 shares of the
capital stock of the Mining Company,
and would thereupon enter into an escrow
agreement with Hastings and Lange and
the bank, under which agreement the
bank should hold the shares of stock to
be delivered to Hastings and Lange upon
the payment by them of the final sum
jirovided for, and the bank was constitut-
ed the agent of Pitt and Campbell for
the purpose of receiving the pa3rments
[105] under the agreement, and it
was further agreed that, in event of
default by Hastings and Lange, the
bank should be authorized, under the
terms of such deposit in escrow, to
deliver all the shares of stock, so
deposited with it, to Pitt and Camp-
bell, and all payments theretofore made
by Hastings and Lange should be for-
feited to Pitt and Campbell, and that
thereupon all rights of each of the parties
should forever cease and terminate.
Hastings and Lange paid to Pitt and
Cam))be11 the initial sum of $7,500, and
Pitt and Campbell deposited in escrow
with the Lyon County Bank certiBcates of
stock representing 625,000 shares of the
stock of the Mining Company, properly
indorsed, and the bank received said cer-
ti6cates in escrow and held the same in ac-
cordance with the contract. After the
execution of the contract Hastings and
Fjange arranged with the bank to treat
drafts that they might send it in partial
payment as gold coin, and to pay the
amount of such drafts in gold coin to Pitt
nnd Campbell under said contract; that
for the purpose of making the payment
mentioned in the contract, which became
Awe on or before May 1, 1007, Hasting:s
64 li. ed.
and Lange on April 27, 1907, sent by mail
from * Oakland, California, to the Lyon
County Bank, at Yerington, Nevada, a
diaf t for the sum of $11,250, United
States gold coin, payable to the order of
the bank; that the draft was received by
the bank at Yeringtoni Nevadai on April
30, 1907, some time between 8:30 a. h.,
the time the bank opened for business,
and 9 o'clock a« h., of that day; that on
April 29, 1907, before the message, here-
inafter mentioned, was delivered to the
Telegraph Company, Hastings and
Lange were informed and* believed that
the stock of the Mining Company was of
little or no value, and, upon obtaining
such information, they determined to
make no further payments on their con-
tract with Pitt and Campbell, and to
abandon their rights in and to said stock,
and t» withdraw from the transaction
with Pitt and Campbell. It is further
found [106] that, on the evening of
April 29, 1907, plaintiffs called at the
otfice of the defendant in Oakland, Cal-
ifornia, and requested the agent in
charge to telegraph the Lyon County
Bank at Yerington, Nevada, as follows:
Oakland, April 29, 1907. |
Lyon County Bank,
Yerington, Nevada. '
Braft mailed you Saturday under mis-
take. Do not pay any sum to Pitt and
Campbell. Return draft. Letter follows.
Hastings and Lange.
Hastings and Lange stated to the agent
of the Telegraph Company that it was
necessary that the message be delivered
to the bank before banking hours on the
following morning; that is, before it
opened for business on the 30th day of
April, 1907; and desired to know of the
agent in what manner tlu^y could be ab-
solutely assured that the message would
be so delivered, stating to the agent that
tbey had a contract for the purchase of
certain shares of stock of a mining com-
pany, and that payment under the con-
tract was required to be made by them
on or before May 1, 1907, to Pitt and
Campbell through the bank, and that, in
default thereof, the contract to purchase
the stock would by its terms be forfeited,
and the rights of the parties thereto
would cease and terminate; that, for the
purpose of making the payment, they had
mailed to the bank a certain bank draft
in the sum of $11,250; that, in the ordi-
nary course of the mail between the city
of Oakland, California, and the town of
Yerington, Nevada, the same would be
delivcied to the bank on the following
80S.
100-109
SUPREME COURT OF THE UNITED STATES.
Oct.
morning, that is to say, during the fore-
noon of April 30, 1907; that, since' mail-
ing the draft, they had learned facts
touching the value of the stock, which had
determined than to make no further pay-
ments, and to forfeit the contract and all
money by them paid thereunder; that
they were seeking [107] by the mes-
sage to intercept payment by the bank
on account of the contract through
said Pitt and Campbell, and that, un-
less such message were transmitted,
and delivered inmiediately to the bank
before bankiifg hours on April 30, 1907,
it would receive the draft and make
pa3rment of the amount thereof to
Pitt and Campbell, in which event the
amount would be wholly lost to them, as
they did not intend to continue under
their contract, having learned that the
stock was of little or no value. It was
further found that thereupon the agent
represented that the Telegraph Company
would insure the immediate delivery .of
the message to the bank at Yerington if
plaintiffs would pay the sum of $1.45,
which sum was in excess of the company's
regular charge. Plaintiffs accepted the
proposal, and paid the sum to the agent;
in the presence of the plaintiffs the agent
thereupon wrote upon the message, im-
mediately below the date thereof, the
words : "Deliver immediately," and 'ac-
cepted the message for. immediate trans-
mission to the town of Terington for
immediate delivery to the bank, and
agreed to immediately transmit and im-
mediately deliver it to the bank for the
plaintiffs, and assured the plaintiffs
of such immediate transmission and
immediate delivery thereof; tliat the
sum of $1.45 was in excess of tbe
defendant's regular charge and usual toll,
the usud charge for an un re pea ted
message being 98 cents, and for a repeat-
ed message the sum of $1.47. The message
was written upon a blank form of the
Telegraph Company, which is set forth in
the Hndiings.
It is further found that neither Hast-
ings nor Lange read the printed matter
on the blank, nor was eitlier of them
cognizant of the terms utid conditions
written thereon. The message was not
repeated in the manner provided in the
stipulations on the blank; that the regu-
lar course of communication by telegraph
between Oakland, California, and Yering-
ton, Nevada, was by the lines of the
Weetem Union Telegraph Company to
Wabuska, Nevada, which [108] was
the terminus of the Telegraph Com-
pan^s lines for Yerington messages,
and that, in order to transmit tel-
8ua
egrams beyond Wabuska, it was
essary that they be transmitted from
that point over the telephone line of
the Electric Company to Yerington; that
each of the Companies received all
messages offered it by the other company
for further transmission, subject to the
stipulations on telegraphic blanks, eaeli
company having and charging their sepa-
rate toll. That the ofSces of the Eleetrie
Company and the Telegraph Company
were both maintained in the Southern
Pacific Railway Company station at
Wabuska, and that the telephone inatru-
ment of the Electric Company was within
a few feet of the tel^^phic instruments
of the Telegraph Company; that at the
time the Southern Paeific Railroad Com-
pany employed an agent at Wabuska to
attend to its railway business, and tiiat,
by an arrangement between the Railroad
Company and the Telegraph Company,
said agent was employed to attend to the
telegraph business of the Telegraph Com-
pany at Wabuska; that, by agreement be-
tween the Railroad Company and tho
Electric Company, the agent of the Rail-
road Company was at the same time em-
ployed by the Electric Company to handle
the telephone business of the Eleetrie
Company; that there was a regu-
lar stage Une o|>en between Yering-
ton and Wabuska in April and May,
1907; that the distance between Yer-
ington and Wabuska was approxi-
mately 11 miles, and could be traversed in
the stage in about one and one-half
hours.
It is found that the Telegraph Com-
pany did not promptly, upon the reeeipt
of the message on the evening of April
29, 1907, transmit it to the town of
Wabuska, Nevada ; that the defendant did
not promptly deliver the message to the
Electric Company for further transmis-
sion over its telephone line •to Yering-
ton, Nevada, but, on the eontrary, de-
fendant wholly failed and neglected
[100] to transmit the message to Wa-
buska until May 2, 1907, and wholly
failed and n^lected to deUver it to
the Electric Company until May 2,
1907; that the delay in the transmis-
sion of the message occurred wholly
on the lines of the Telegraph Company,
and was caused by that company, and did
not occur on the lines of the telephone of
the Yerington Electric Company.
It is further found that if the Tele-
gn*aph Company had proceeded with rea-
sonable promptness to transmit and de-
liver the message to the bank, the same
would have reached Yerington before the
bank had received the draft mailed to it
ass 17. 8.
1919.
WESTERN UXION TELEG. CO. v. BKOVVN.
109-111
as aforesaid, nn^l it would not have
placed tbe amount rei)re8ented tbereby
to the credit of Pitt and Campbell, or
either of them, or paid any amount thero-
on; that, by reason of tbe gross negli-
gence of the Telegraph Company, the
message was not delivered to the bank
tmtil May 2, 1907, between the hours of
8:30 and 9 a. k.; that the bank had re-
ceived the draft, and thereafter, on April
do, had paid over the amount thereof in
gold coin to Pitt and Campbell, pursuant
to the terms of the contract between the
plaintiffs and Pitt and Campbell, on ac-
count of the payment to be made on or
before May 1, 1907, and had given credit
to Hastings and Lange for the amount of
said payment, all of which was done
without any knowledge of said message
or the determination of Hastings and
Lange to recall said draft; that Hastings
and Lange did not make any further pay-
ments on the purchase price of said
shares of stock, but abandoned the con-
tract with Pitt and Campbell, and for-
feited and lost all moneys paid thereon.
It was found that the 625,000 shares of
stock of the Kennedy Consolidated Gold
Mining Company have been at all times,
and since and including April 29, 1907,
practically valueless.
The circuit court of appeals held: (1)
That the contract was an option, termi-
nable by the buyers' failure to [110]
make the payments required; (2) the
oral agreement for tbe transmission of
the message was a binding agreement
upon the Western Union Telegraph
Company; (3) that, under the circum-
stances,, the Telegraph Company was
goiky of gross negligence in failing
to transmit and deliver the message.
The court thereupon affirmed the judg-
ment of the district court for the amount
of the payment, adding interest.
In our view of the case it is unneces-
sary to consider the correctness of the
decision of the circuit court of appeals as
to the binding obligation of the oral con-
tract made with the agent of the Tele-
graph Company, or the question of negli-
gence of the company in the transmission
and delivery of the message. The right
of Hastings and Lange to recover was
based upon the theory that the contract
was an option, terminable by the act of
the buyer in failing to make the payment
on the contract, which payment, it is
foundy would not have been made had the
message been promptly delivered. An
option is a privilege given by the owner
of property to another, to buy the prop-
erty at his election. It secures the privi-
lege to buy, and is not, of itself, a
411 li. ed.
purchase. The owner does not sell his
property ; he gives to another the right to
buy at his election.
What, then, is the nature of this agree-
ment? It contains the positive undertak-
ing of the owner to sell and the purchas-
er to buy 625,000 shares of stock upon
terms which are named. Upon the first
payment being made, the certificates are
to be deposited with the bank in escrow,
to be delivered when the final payment
agreed upon is made, and, in event of de-
fault in payment, the bank is authorized
to deliver the shares of stock to Pitt and
Campbell, and all payments are to be for-
feited, and the rights of the parties to
cease and deteimine. We are of opinion
that this is far more than a mere option
to purchase, terminable at the will of the
purchaser upon failure [111] to make
the payments required. The agreement
contains positive provisions binding the
owner to sell and the purchaser to
buy upon the terms of the instru-
ment. It is true the stock is to be
deposited with the bank in escrow, and
it is authorized to deliver the same
to Pitt and Campbell upon default
in pa3rment. The findings do not show
whether Pitt and Campbell took back the
stock upon default of subsequent pay-
ments. There was no understanding that
Pitt and Campbell should take back the
stock when the payments were not made,
and no agreement which put it in the
power of the purchasers to relieve them-
selves of the obligations of their contract
by failing to keep up the payments. The
light of Pitt and Campbell to receive the
stock from the bank and end the contract
was stipulated; it was a provision insert-
ed for their benefit, of which they might
avail themselves at their election.
In our opinion, Stewart v. Griffith,
217 U. 8. 323, 54 L. ed. 782, 30 Sup. Ct.
Rep. 528, 19 Ann. Cas. 639, is controlling
upon this point. In that case there was
a sale of land, and the purchaser, by the
terms of the agreement, paid $500 as part
of the purchase price. It was provided
that, in case of nonpayment of the bal-
ance of the first half of the purchase
price on November 7, 1907, the $500 paid
on the contract was to be forfeited, and
the contract of sale and conveyance was
to be nuU and void and of no effect. The
contention was that the defendant was
free to withdraw from the contract if he
ehose to lose the $500. But this court
held, after considering the terms of the
contract, that the $500 was part of the
purchase price to be paid; that the land
was described as being sold, and that, in
view of such stipulations, the purchaser
807
111-113
SLPKKME COURT OF THK UNITED STATES.
Oct.
had bound himself to take the land. As
to the provision for the forfeiture of the
$500, and the stipulation that the con-
tract Bhoold become null and void upon
nonpayment of the remainder of the pur-
chase price, this court said : "The condi-
tion plainly is for the benefit of [112] the
vendor, and hardly less plainly for his
benefit alone, except so far as it may have
lixed a time when Stewart might have
railed for performance if he had chosen
to do so, which he did not. This being
so, the word 'void' means voidable at the
vendor's election, and the condition may
be insisted upon or waived, at his choice.
Knickerbocker L. Ins. Co. v. Norton, 96
U. S. 234, 24 L. ed. 689 ; Oakes v. Manu-
facturers' F. & M. Ins. Co. 136 Mass.
248, 249 ; Titus v. Glen Falls Ins. Co. 81
N. Y. 410, 419."
The condition in the contract in Stew-
art V. Griffith, that nonpayment should
render the contract null and void, is the
equivalent of the stipulation in the pres-
ent agreement, much relied upon by the
respondent, that, upon nonpayment of
the stipulated sums, the rights of each of
said parties should cease and deter-
mine. We think the attempted distinc-
tion between Stewart v. Griffith and the
instant case is untenable.
The circuit court of appeals reinforced
its conclusion that the contract was an
option by stating that it was usual to sell
mining property under privileges of pur-
chase, and, when investigation showed
that the property was not valuable, to
terminate such options by forfeiting the
sums paid' therefor, and declining to
make future payments. It is true that
imdeveloped mining property is often
sold under option agreements. See 3
Lindley, Mines, § 859. But there is noth-
ing to show that this contract was de-
pendent upon ' the development of the
mining property. The written agreement
contains a positive undertaking to sell,
upon the one part, and, upon the other
part, to buy, shares of the mining stock.
Whether the shares sold constituted all
the shares of the company does not ap-
pear. Nor is the relative proportion of
those sold to the whole amount of the
stock an3rwhere shown. The fact that the
contract contains a privilege of ending it
at the election of the vendor, for non-
pa^^ment of the sum stipulated does not
convert it into an option terminable
[118] by the pun^hasers at their will.
Stewart v. Griffith, supra.
As the recovery of the amount paid,
with interest, as adjudged in the Circuit
Court of Appeals, is founded upon its
conclusion that the contract was an op-
80S
tion, and the damages the amount
and forfeited by the failure to *stop tbe
payment of the draft, and as we are not
able to accept that view of the contract,,
it follows that the judgment of the Cir-
cuit Court of Appeals must be Reversed,
and the cause remanded to the District
Court for furtiier proceedings in con-
formity to this opinion*.
Reversed.
UNITED STATES OF A^IERICA and Inter-
state Commerce Commission, Appts.,
V.
ALASICA STEAMSHIP COMPANY, Central
of Georgia Railway Company, .C^de
Steamship Company, et al.
(See S. C. Reporter's ed. 113-117.)
Appeal — moot case — reversal for dla*
missal.
The enactment of the Transportation
Act of February 28, 1020, which neceasitatea
changes in bills of lading prescribed by the
Interstate Commerce Commission, renders
moot the controversy presented by a petition
which seeks to set a Hide an order of the
Commission requiring carriers to use such
hills of lading, and requires that an order
granting a preliminary injunction to re-
strain the Commission from putting into
force the bills of lading in the form pre-
scriljed be reversed, and that the cause be
remanded to the court below with directions
to dismiss the petition without costs to
either party, and without prejudice to the
right of the complainants to assail in the
future any order of the Commission pre-
scribing bills of lading after the enactment
of the Transportation Act.
[For other caHefi, sec Appeal and Error, 3S87>
3920, 54Sl-r>'iy4, io Digest Sup. Ct. 1&08.)
[No. 641.]
Argued Decem!>er 16 and 17, 1919. Decided
May 17, 1920.
APPEAL from the District Court of
the United States for the Southern
District of New York to review a decree
granting a preliminary injunction to re-
strain the Interstate Commerce Commis-
sion from putting in force certain modi-
fied bills of lading. Reversed and re-
manded with directions to dismiss the
petition without prejudice.^
See same case below, 259 Fed. 713.
The facts are stated in the opinion.
Solicitor General King and Mr. Oharles
W. Needham argued the cause, and.
with Mr. P. J. Farrell, filed a brief for
appellants.
1 See page 722, ante.
9ft3 r. s.
1919.
UN'ITF.D STATICS v. ALASKA STEAMSHIP CO.
114-110
Messrs. Roscoe H. Hnpper and Theo-'
dOT6 W. Reath argued the cause, and,
with Messrs. Edgar H. Boles, George F.
Brownell, Blewctt Lee, Thaddeus H.
Swank, and F. II. Wood, filed a brief
for appellees.
Mr. Justice Day delivered the opinion
of the court :
A petition was filed in the United
States district court for the southern dis-
trict of New York by numerous interstate
carriers and carriers by water against the
United States and the Interstate Com-
merce Commission to set aside an order
of the Interstate Commerce Commission
dated Marcli 14, 1919, requiring the car-
riers to use two certain modified bills of
lading, one pertaining to domestic and
the other to export transportation. The
eause came on for hearing upon applica-
tion for a temporary injunction and upon
a motion to dismiss the « petition. The
hearing was had before three judges, a
circuit judge and two district judges. A
majority concurred in holding that the
Interstate Commerce Commission had no
authority to prescribe the terms of car-
riers* bills of lading, and that in any
event tbcre was no power to prescribe an
inland bill of lading depriving the car-
I'lers of the benefits of certain statutes of
tbe United States limiting the liability of
vessel owners. *2")9 Fed. 713. One of the
district judges dissented, holding that the
Commission had the jiower to prescribe
bills of lading, and that the particular
bills of lading in question were within the
authority of the Commission. An order
was entered refusing to dismiss the peti-
tion, and an injunction 'pendente lite was
granted. From this order an appeal was
taken directly to this court under the
Statute of October 22, 1913. 38 Stat, at
L. 220, chap. 32.
[115] It appears that the matters in
controversy as to the authority of the
Commission and the character of the bills
of lading were subjects of much inquiry
before the Commission, where hearings
were had, and an daborate report upon
the proposed changes in carriers* bills of
lading resulted in the adoption by the
Comniission of the two bills of lading. 52
Inters. Com. Rep. 671.
Pending this appeal Cong^ss passed on
February 28, 1920, the act known as tbe
"Transportation Act of 1920," which ter-
minated the Federal control of railroads,
and amended in various particulars
previous acts to regulate interstate com-
merce. In view of this act of Congress
this court, on March 22, 1920, entered an
order requesting counsel to file briefs
«4 L. cd.
concerning the efiCect of the act upon this
cause. Briefs have been tiled, and w'e
now come to consider the altered situation
arising from the new legislation, and
what efTect should be given to it in the
disposition of this case.
The thing ilought to be accomplished by
the prosecution of this suit was an annul-
ment of the oixler of tlie Commission, and
an injunction restraining the putting into
effect and operation of such order, which
prescribed the two forms of bills of lad-
ing. The temporary injunction granted
was against putting into effect the Com-
mission's order prescribing the forms of
the bills of lading.
The Tiinsportation Act of 1920, passed
pending this appeal, mpkes it evident
(and it is in fact conceded in the brief
filed by appellants) that changes will be
required in both forms of bills of lading
in order that they may conform to the re-
quirements of the statute. We need not
now discuss the details of these changes.
It is sufficient to say that the act requires
them as to both classes of bills. We are
of opinion that the necessary effect of the
enactment of this statute is to make the
cause a naoot one. In the appellant's
brief it is insisted that the power of the
Commission to prescribe bills of lading
is still existent, [116] and has not been
nK)dified by the provisions of the new law.
But that is only one of the questions in
the case. It is true that the determina-
tion of it underlies the right of the Cqm-
mission to prescribe new forms of bills of
lading, but it is a settled principle in this
court that it will determine only actual
matters in controversy essential to the de-
cision of the particular case before it.
Where, by an act of the parties, or a
subsequent law, the existing controversy
has come to an end, the case becomes
moot, and should be treated accordingly.
However convenient it might be to have
decided the question of the power of the
Commission to require the carriers to
comply with an order prescribing bills of
lading, this court "is not empowered to
decide moot questions or abstract propo-
sitions, or to declare, for the government
of future cases, principles or rules of law
which cannot affect the result as to the
thing in issue in the case before it. No
stipulation of parties or Counsel, whether
in the case before the court or in any
other case, can enlarge the power, or af-
fect the duty, of the court in this regard."
California v. San Pablo & T. R. Co. 149
U. S. 308, 314, 37 L. cd. 747, 748, 13 Sup.
Ct. Rep. 876; United States v. Hamburg-
Amerikanische Packetfahrt-Actien Gesell-
schaft, 239 U. S. 466, 475, 476, 60 L. ed.
1 16, 117
SUPKEMK COl RT OF THE UNITED STATES.
Oct. Tebm,
387, 391, 36 Sup. Ct. R^p. 212, and
jjrevious eases of this court therein cited.
In the present ca.se what we have said
makes it apparent that the complainants
do not now need an injunction to prevent
the Commission from putting in force
bills, of lading in the forAi prescribed.
The subsequent legislation necessitates the
adoption of different forms of bills in
the event that the power of the Commis-
sion be sustained. This legislation, hav-
ing that effect, renders the case moot.
Berry w. Davis, 242 U. S. 468, 61 L. ed.
441, 37 Sup. Ct. Rep. 208.
In our view the proper course is to re-
verse the order, and remand the cause to
the eourt below with directions to dismiss
the petition, without costs to either party,
and without prejudice to the right of the
complainants to assail in the future any
order of the Commission prescribing
[117] bills of lading after the enact-
ment of the new legislation. United
States V. Hamburg American Line and
Berry v. Davis, supra.
And it is so ordered.
E. B. 8PILLER, Plff. In Err.,
V.
ATCmSON, TOPEKA, k SANTA FE RAlIr-
WAY COMPANY. (No. 137.).
E. B. SPILLER, Plflf. in Err.,
V.
CHICAGO A EASTERN ILLINOIS RAIL-
ROAD COMPANY. (No. 138.)
B. B. SPILLER, Plff. in Err.,
V.
CHICAGO & ALTON RAILROAD COM
PA NY. (No. 139.)
B. B. SPILLER, Plff. in Err.,
V.
MISSOURI PACIFIC RAILWAY COM-
PANY. (No. 140.)
E. B. SPILLER, Plff. in Err.,
V.
ST. LOUIS, IRON MOUNTAIN, 4 SOUTB-
ERN RAILWAY COMPANY. (No. 141. >
E. B. SPILLER, Plff. in Err.,
V.
ST. LOUIS & SAN FRANCISCO RAIl^
ROAD CX)MPANY. (No. 142.)
E. B. SPILLER, Plff. in Err.,
V.
CHICAGO, ROCK ISLAND, 4 PACIFIC
RAILWAY COMPANY. (No. 143.)
E. B. SPILLER, Plff. in Err.
V.
ILLINOIS CENTRAL RAILROAD 0011-
PANY. (No. 144.)
E. B. SPILLER, Plff. in Err.,
V.
MISSOURI, KANSAS, 4 TEXAS RAIl^
WAY COMPANY. (No. 145.)
(See a C. Reporters ed. 117-136.)
EIrror to circuit cx>art of appeals — flnal
decree.
1. Decrees of a circuit court of appeals
which reversed decrees below for the re-
covery of amounts awarded in a reparation
order made by the Interstate Commerce
CommisBion, and remanded the cause for a
new trial, are not final for the purpose of
a writ of error.
[For other cases, see Appeal and Error, 1. d,
in Digest Sup. Ct. 1908.]
Certiorari — to circuit court of appeals
^ %vbcn allowable.
2. Decrees of a circuit court of ap-
peals which reversed decrees below for the
recovery of the amounts awarded In a
reparation order made by the Interstate
Commerce Commission, and remanded the
cause fiur a new trial, are reviewable in the
Federal Supreme Court by certiorari under
the Judicial Code, § 240, in the case of
those of such decrees which are made final
by the combined effect of §§ 128 and 241,
because the requisite jiurisdictional amount
is not involved, and in the case of the other
Note. — On appellate jurisdiction of
Federal Supreme Court over circuit
courts of appeals — see notes to St. An-
thony's Church V. Pennsylvania R. Co.
59 L. ed. U. S. 1119; and Bagley v.
(]^eral Fire E'xtin^isher Co. 53 L. ed.
U. S. 605.
As to what judgments or decrees are
final for purposes of review — see notes
to Gihhons v. Ogden, 5 L. ed. U. S. 302;
Sehlosser v. Hemphill, 49 L. ed. U. 8.
1001; and Detroit & M. R. Co. v. Mich-
ig^an R. Commission, 60 Ij. ed. U. S. 802.
810
On certiorari from Federal Supreme
Court to circuit courts of appeals — see
notes to Fumess, W. & Co. v. Tang-Tsse
Ins. Asso. 61 L. ed. U. S. 409; and
United States v. Dickinson, 53 L. ed.
U. S. 711.
As to recovery back of excessive pay-
ments to public service corporation— -see
note to Illinois Glass Co. ▼. Chicago
Teleph. Co. 18 L.R.A.(N.S.) 124.
As to remedy to enforce order of pub-
lie service commissions — see note to
State ex rel. Caster v. Southwestern Bell
Teleph. Co. L.R.A.1918E, 303.
2SS U. S.
1910.
SPILLER V. ATCHISOX, T. & S. F. R. CO.
decrees by virtue of § 262, in aid of the
ultimate jurisdiction of the Supreme Court
to review such decrees by writ of error.
[For other cases, see Certiorari, II. a, in Di-
gest Sup. Ct. 1008.1
Evidence — docnmcntary — fliidings
and reparation order of Interstate
Commerce Commission.
3. The Interstate Commerce Commis-
sion is given a general degree of latitude
in the investigation of reparation claims
by the Act of February 4, 1887, |§ 13, 16,
17, as amended by the Acts of Mardi 2,
1889, and June 29, 1006, and June 18, 1910,
and the resulting findings and order of the
Commission may not be rejected as evidence
in a suit to recover tlie amounts of the
reparation awards merely because of errors
in its procedure not amounting to a denial
of the right to a fair hearing, so long as
the essential facta found are based upon
substantial evidence.
[For other cases, see Evidence, IV. k ; Inter-
state Commerce Commission, In Dig. Sup.
Ct 1908.]
Interstate Commerce Commission — re-
Tiew of decision — qualifications of
expert witness.
4. Whether a witness called before the
Interstate Commerce Commission had shown
such special knowledge as to qualify him
to testify as an expert was for the Commis-
sion to determine, and ita decision thereon
is not to be set aside by the courts unless
clearly shown to have been unfounded.
[For other cases, see interstate Commerce
Commission ; Witnesses, IV. a, in Digest Sop.
Ct 1908.]
Appeal — objections to hearsay testi*
mony — snfllclenoy — time.
5. Assertions by counsel during a hear-
ing l)efore the Interstate Commerce Com-
mission in a reparation proceeding that
there was a failure of proof, and suggestions
that the proceeding ought to be dismissed,
come too late and are too general in char-
acter to be equivalent to an objection to
the reception of certain evidence as hear-
say.
(For other cases, sec Appeal and Error, VI. a,
2; VI. c. In Digest Sup. Ct 1908.]
Interstate Comhierce Commission —
Judicial review — consideration of
hearsay testimony.
6. Tlie Interstate Commerce Commis-
sion is not to be regarded as liaving acted
arbitrarily in malting a reparation order,
nor may its findings and order be rejected
as wanting in support, simply because hear-
say evidence introduced wi&out objection
and substantially corroborated by original
evidence clearly admissible against the par-
ties to be affected was considered with the
rest.
[For other crsih*. see Interstate Commerce Com-
mission, in Digest Sup. Ct 1))0S.]
Interstate Commerce Commission — ju-
dicial review — award substantially
valid.
7. The refusal, of the trial court in a
suit for the recovery of amounts awarded
in a reparation order made by the Inter-
?>tate Commerce Commission to treat the
64 li. Cd.
award as void in toUt is not erroneous if,
I to any substantial extent, the award was
I legally valid.
[For other cases, see Interstate Commerce Cem>
niissloQ, in Digest Sup. Ct 1008.]
Brldence — docnmentary — assign-
ments — formal proof — hearlni: he-
fore Interstate Commerce Commis-
sion.
8. Formal proof of the handwriting of
the assignors of reparation claims by sub-
scribing witnesses or otherwise was not
necessary in a hearing before the Interstate
Commerce Commission in the absence of
objection or contradiction.
[For other cases, see Evidence, IV. b, In Digest
Sup. Ct 190S.]
Parties — who may sue — assignee of
legal title — reparation claims.
9. An assignee of the legal title to*
reparation claims may claim an award of
reparation by the Interstate Commerce Com-
mission, and recover the amounts awarded
by an action at law, brought in his own
name, but for the benefit of the equitable
hojders of the claim, — especiaUy where such
is the real purpose of the assignments.
[For other cases, nee Parties, I. a, 3, In Di-
gest Sup. Ct. 1908.]
Assignment — of reparation claims —
validity.
10. There is nothing in the letter or
spirit of the Interstate Commerce Acts in-
consistent with the view that claims for
reparation because of the exaction of un-.
reasonable freight diarges are assignable.
[For other cases, see Assignment, I. in Digest .
Sup. Ct 1008.]
[Nos. 137, 138, 139, 140, 141, 142, 143, 144,
and 145.]
Argued January 15, 1920. Decided May 17,
1920.
NINE WRITS of Error and of Cer-
tiorari to the United States Circuit
Court of Appeals for the Eighth Circuit
to review decrees which reversed decrees
of the District Court for the Western
District of Missouri for the recovery of
the amounts awarded i^ the reparation
order made by the Interstate Commerce
Commission, and remanded the cause for
a new trial. Writs of error dismissed.
Writs of certiorari allowed. Judgments
of Circuit Court of Appeals reversed
and those of the District Court aflftrmed.
See same case below, 158 C. C. A. 227,
246 Fed. 1; on rehearing, 161 C. C. A.
587, 249 Fed. 677.
The facts are stated in the opinion.
Mr. Buckner F. Deatherage argued
the cause, and, with Messrs. Samuel H.
Cowan, I. H. Bumey, and Goodwin
Creason, filed a brief for plaintiff in er-
ror :
The CoTiiinission is an investigating:
811
SUPKK.ME COl irr OF THE LXIl KU STATES.
Oct. TcBif,
body, and is not ^ound by the strict
rules of evidence.
Interstate Commerce Commission v.
Baird, 194 U. S. 44, 48 L. ed. 809, 24
Sup. Ct. Rep. 563; Interstate Commerce
Commission v. Louisville & N. R. Co.
227 U. S. 93, 57 L. ed. 434, 33 Sup. Ct.
Rep. 185; Louisville & N. R. Co. v. Finn,
233 tJ. S. 601, 59 L. ed. 379, P.U.R.
1915A, 121, 35 Sup. Ct. Rep. 146; In-
terstate Commerce Commission v. Chica-
go, R. I. & P. B. Co. 218 U. S. 110, 54
L. ed. 957, 30 Sup. Ct. Rep. 65L
The evidence on which the award by
the Conunission was based was not hear-
say, but, even if it were, it is competent
Aud admissible if not objected to at the
time it is offered.
Interstate Commerce Commission .v.
Baird, 194 U. S. 25, 48 L. ed. 860, 24
Sup. Ct. Rep. 563; Interstate Commerce
Commission v. Louisville & N. R. Co.
227 U. S. 88, 57 L. ed. 431, 33 Sup. Ct.
Rep. 185; Louisville & N. R. Co. v. Finn,
235 U. S. 606, 59 L. ed. 383, P.U.R.
1915A, 121, 35 Sup. Ct. Rep. 146; Kane
V. Missouri P. R. Co. 251 Mo. 13, 157
S. W. 644; Wolf v. Edmunson, 153 C. C.
A. 89, 240 Fed. 53; 1 Wigmore, Ev. §§
18, 586; Gregory v. Dodge, 14 Wend.
617; 17 Cyc. 166, 564; MathiaS v.
O'Neill, 94 Mo. 527, 6 S. W. 253.
The shippers and owners, being in pos-
session of the live stock when delivered
to the carriers, were prima facie the
owners.
16 Cyc. 1074; Bradshaw v. Ashlev,
180 U. S. 59, 45 L. ed. 423, 21 Sup. Ct.
Rep. 297; Belford, C.& Co. v. Scribner,
144 U. S. 488, 36 L. ed. 514, 12 Sup. Ct.
Rep. 734; The Carlos F. Roses, 177 IT.
S. 055, 44 L. ed. 929, 20 Sup. Ct. Rep.
803; Hazard Powder Co. v. Voider, 7
C. C. A. 130, 12 U. S. App. 605, 5*8 Fed.
152; Hare v. Young, 26 Idalio, 691, 146
Pac. 107; Gulf,. C. & S. F. R. Co. v.
Johnson, 4 C. C. A. 447, 10 U. S. App.
629, 54 Fed. 474; Northern P. R. Co. v.
Lewis, 2 C. C. A. 446, 7 U. S. App. 254,
51 Fed. 658; Hudson v. Willis, 73 Tex.
256, 11 S. W. 273; Cooley, Torts, 3d ed.
pp. 848-860; Hutchinson, Can*. 3d ed.
§§ 1308, 1309, 1318, 1320.
The carriers cannot question the title
of the consignors, because the carriers
wore bailees.
10 C. J. p. 229, § 318; The Idaho, 03
U. S. 575, 23 L. ed. 078; Denver. S. P.
& P. R. Co. V. Frame, 6 Colo. 382; Car-
ter V. Southern R. Co. Ill Ga. 38. 50
L.R.A. 354, 36 S. E. 308; Great West-
em R . Co. V. McComas, 33 111. 185 ; Val-
entine V. Long Island R. Co, 102 App.
Div. 419, 92 N. Y. Sapp. 045; Western
812
Transp. Co. v. Barber, 56 N. Y. 544;
Atchison v. Chicago, R. 1. & P. R. Co.
80 Mo. 213; Ross v. Chicago, R. I. &
P. R. Co. 119 Mo. Apj). 290, 95 S. W.
977.
The damages claimed, and for whioli
the award was made, arose out of tori,
and affected the property, and not the
person, of the shipper. Such causes of
action stinive the death of the claimant,
and are assignable.
Comegjs V. Vasse, 1 Pet. 193, 7 L. ed.
108; Erwin v. United States, 97 U. S.
396, 24 L. ed. 1067 ; Edmunds v. Illinois
C. R. Co. 80 Fed. 78; 4 Cyc. 23, 24, 26;
Davis V. St. Louis & S. F. R. Co. 25
Fed. 786; 5 C. J. 593, 958, 986, 094;
George v. Tate, 102 U. S. 564, 26 L. ed.
232; Pom. Rem. & Rem. Rights, § 617;
Remmcrs v. Remmers, 217 Mo. 560, 117
S. W. 1117; Rucker v. BoUes, 25 C. C.
A. 600, 49 U. S. App. 358, 80 Fed. 511.
Suppose the assignments were all for
the benefit of the owners and shippers
of the cattle, and that they retained an
interest in them, it would not affect their
validity.
4 Cyc. 67, 69, 71, 99, 100 ; 5 C. J. 145.
261, 262, 958, 985. 994, § 199; Greig v.
Riordan, 99 Cal. 316, 33 Pac. 913; Bal-
linger v. Vates, 26 Colo. App. 116, 140
Pac. 931; Denver Engineering Works
Co. V. Elkins, 179 Fed. 922; Goorge v.
Tate, 102 U. S. 564, 26 L. ed. 232; Win-
stead V. Bingham, 4 Woods, 610, 14 Fed.
1; Cowdrey v. Vandenburgh, 101 U. S.
572, 25 L. ed, 923; Western U. Teleg.
Co. V. West era & A. R. Co. 91 U. S. 283,
23 L. ed. 330; Pom. Rem. & Rem. Rights,
132; Withei-s v. Greene, 9 How. 213, 13
L. ed. 109; Scott v. Lunt, 7 Pet. 596, 8
L. ed. 797; Marvin v. Ellis, 9 Fed. 367;
Krapp V. Eldridge, 33 Kan. 106, 5 Pac.
372; Cottle v. Cole, 20 Iowa, 481; Guer-
nev V. Moore, 131 Mo. 650, 32 S. W.
1132; Foster v. Central Nat. Bank, 183
N. Y. 379, 76 N. E. 338; King v. Miller,
53 Or. 62, 97 Pac. 542; Cummings v.
Morris, 25 N. Y. 625; Chase v. Dodge,
111 Wis. 70, 86 N. W. 648; The Rupert
Citv, 213 Fed. 263; Sheridan v. New
York, 68 N. Y. 30; Allen v. Brown, #1
N. Y. 228; Edmunds v. Illinois C. B, Co.
80 Fed. 78.
The fact that the rights to reparation
are conferred by statute does not change
the rule. There axe no words in the
statute indicating that the rights Are eon-
fined to the person, and could not be en-
forced by an heir, legal representative,
or assignee.
4 Cyc. 26; 5 C. J. 593.
The court of appeals erred in holding
that the question of the reasonableness
ass u. s.
101ft.
SPILLKR V. AT('IIISv)X, T. & S. F. K. C*».
of tbe rale is open for tlie jury or tlie
court to pass upon, in an action on an
order for reparation made by the Inter-
state Commerce Commission, after the
Conmiission had found such rate to be
unreasonable.
Texas & P. R. Co. y. Abilene Cotton
OU Co. 204 U. S. 426, 444, 51 L. ed. 553,
560, 27 Sup. Ct. Rep. 350, 9 Ann. Cas.
1075: InterBtate ConuQerce Commission
V. CBicago, R. I. & P. R. Co. 218 U. S.
110, 54 L. ed. 957, 30 Sup. Ct. Rep. 651;
Interstate Commerce Commission v.
Louisville & N. R. Co. 227 U. S. 88, 57
L. ed. 431, 33 Sup. Ct. Rep. 185; United
States V. Louisville & N. R. Co. 235 U.
S. 314, 320, 59 L. ed. 245, 250, 35 Sup.
Ct. Bep. 113; Interstate Commerce Com-
mission V. Illinois C. R. Co. 215 U. S.
452, 54 L. ed. 280, 30 Sup. Ct. Rep. 155 ;
Interstate Commerce Commission v. Del-
aware, L. & W. R. Co. 220 U. S. 236, 55
L. ed. 448, 31 Sup. Ct. Rep. 392; Man-
ufacturers R. Co. V. United States, 246
U. B. 457, 489, 62 L. ed. 831, 847, 38
Sup. Ct. Rep. 383; Mitchell Coal & Coke
Co. V. Pennsylvania R- Co. 230 U. S.
247, 57 L. ed. 1472, 33 Sup. Ct. Rep.
916.
The court of appeals further erred in
holding that where a rate subsequently
eondemned by the Interstate Commerce
Commission as unreasonable was, when
exacted, a legal rate, the shipper could
not -sue in a court of law and recover
back any portion of such rate.
Southern P. Co. v. Damell-Taenzer
Lumber Co. 245 U. S. 531, 62 L. ed. 451,
P.U.R.1918B, 598, 38 Sup. Ct. Rep. 186;
Texas & P. R. Co. v. Abilene Cotton Oil
Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup.
Ct. Rep. 350, 9 Ann. Cas. 1075; South-
em R. Co. V. Tift, 206 U. S. 428, 51 L.
ed. 1124, 27 Sup. Ct. Rep. 709, 11 Ann.
Cas. 846; Illinois C. R. Co. v. Interstate
Comtnerce Commission, 206 U. S. 441,
51 L. ed. 1128, 27 Sup. Ct. Rep. .700;
Meeker v. Lehigh Valley R. Co. 236 U.
S. 412. 59 L. ed. 644, P.U.R.1915D, 1072,
35 Sup. Ct. Rep. 328, Ann. Cas. 1916B.
691: Mills V. Lehiofh Vallev R. Co. 238
IT. S. 473, 59 L. ed. 1414,' 35 Sup. Ct.
Rep. 888; Mitchell Coal & Coke Co. v.
Pennsylvania R. Co. supra.
The court erred in holding that, in fix-
ing the rate for a period of two years
in the future^ and allowing reparation
for the exaction of an unreasonable rate
during the two years prior to the order
fixing the rate for the future, the Inter-
state CoDMnerce Commifion fixed the
rate for a longer period than autliorized
by law, therefore the order of repara-
tion was improper, and the shipper
114 Ti. ed.
could not recover the difference between
the rate paid and the rate found to be
reasonable at the time of such payment.
Ibid.
The court of appeals erred in holding
that the order of reparation made by
the Commission is void for the want of
sufiicient evidence to support it, in thb
suit, to which the Commission is not a
party. The court thereby attacke<l the
validity of the order of the Commission
in a collateral proceeding.
Eastern Texas R. Co. v. Railroad
Commission, P.U.R.1917F, 554, 242 Fed.
304, 247 U. S. 214, 62 L. ed. 1084, 38
Sup. Ct. Rep. 460.
Orders of the Commission are final,
and not reviewable in any court, on all
ouestions of fact, unless: (1) Beyond
tne powers which it may .constitutionally
exercise; (2) beyond its statutory pow-
ers; (3) based upon a mistake of law;
(4) when law and fact are intermixed.
None of which condition^ exist in this
case. The findings of the Conmaission
were based wholly upon facts, and were
within its constitutional and statutory
powers, and were not based upon a mis-
take of law, nor were facts and law in-
termixed.
Interstate Commerce Commission v.
Union P. R. Co. 222 U. S. 541, 545, 56
L. ed. .308, 309, 32 Sup. Ct. Rep. 108;
Southern P. Co. v. Interstate Commerce
Commission, 219 U. S. 433, 55 L. ed. 283,
31 Sup. Ct. Rep. 288; Interstate Com-
merce Commission v. Northern P. R. Co.
216 U. S. 544, 54 L. ed. 609, 30 Sup. Ct.
Rep. 417; Interstate Commerce Conmais-
sion V. Alabama Midland R. Co. 168 U.
S. 146, 42 L. ed. 415, 18 Sup. Ct. Rep.
45; Interstate Commerce Commission v.
Louisville & N. R. Co. 227 U. S. 88, 57
L. ed. 431, 33 Sup. Ct. Rep. 185; Inter-
state Commerce Commission v. Illinois
C. R. Co. 215 U. S. 470, 54 L. ed. 287,
30 Sup. Ct. Rep. 155; United States v.
LouisviUe & N. R. Co. 235 U. S. 320, 59
L. ed. 250, 35 Sup. Ct. Rep. 113.
Failure to apply for a rehearing
should preclude a party from afterwards
attacking the order of the Commission
on the ground that it is unsupported by
sufiicient evidence.
St. Louis Southwestern R. Co. v. S.
Samuels & Co. 128 C. C. A. 188, 211
Fed. 588.
Mr. T. J. Norton argued the cause,
and, with Messrs. Gardiner Lathrop, C.
S. Burg, and James L. Coleman, filed a
brief for defendants in error:
The action of the Commission in thfs
en?e is contrary to its practice in a lonr^
1
SUPKKMK COl RT OF THE UNITED STATES.
Oct.
I
aeries of decisions in hanl-touglit cases.
It was as much a departure from tlie
settled practice of the Commission as it
was from . the fundamental rule of law
that a judgment must be based upon
proper evidence.
Interstate Commerce Commission v.
Louisville & N. R. Co. 227 U. S. 88, 57
L. ed. 431, 33 Sup. Ct. Rep. 185; 1 Wig-
more. Ev. § 290, T 5; Chamberlayne, Ev.
§ 464 ; Queen v. Hepburn, 7 Cranch, 290,
296, 3 L. ed. 348, 350; Englebretson v.
Industrial Acci. Commission, 170 Cal.
793, 151 Pac. 421, 10 N. C. C. A. 545;
Florida East Coast R. Co. v. United
States, 234 U. S. 167, 188, 58 L. ed.
1267, 1272, 34 Sap. Ct. Rep. 867; Phil-
adelphia & R. R. Co. v. United States,
240 U. S. 334, 341, 60 L. ed. 675, 678,
36 Sup. Ct. Rep. 354; Anadarko Cot-
ton Oil Co. V. Atchison, T. & S. F. R.
Co. 20 Inters. Com. Rep. 49; Nicola, S.
& M. Co. V. Louisville & N. R. Co. 14
Inters. Com. Rep. 199; Gi*iffing v. Chi-
cago & N. W. R. Co. 32 Inters. Com.
Rep. 286; Jacob E. Decker & Sons v.
Minneapolis & St. L. R. Co. 38 Inters.
Com. Rep. 228; Oden v. Seaboard Air
Line R. Co. 37 Inters. Com. Rep. 345;
Hygienic Ice Co. v. Chicago & N. W. R.
Co. 37 Inters. Com. Rep. 384; J. W.
Wells Lumber Co. v. Chicago, M. & St.
P. R. Co. 38 Inters. Com.. Rep. 466;
Commercial Clnb v. Anderson & S. Riv-
er R. Co. 27 Inters. Com. Rep. 310.
As Spiller failed to produce the best
evidence, the presumption is that snob
evidence would have been against him.
Blatch V. Archer. Cowp. pt. 1, p. 66^
98 Eng. Reprint, 970; 2 Chamberlayne,
Ev. § 1075; Wigmore, Ev. § 285; Bry-
ant V. Lazarus, 235 Mo. 606, 139 S. W.
560; Robinson v. Union Cent. L. Ins.
Co. 144 Fed. 1010; Kirby v. Tallmadge,
160 U. S. 379, 40 L. ed. 463, 16 Sup. Ct.
Rep. 349.
Where the assignment is executed by
an agent, his authority must be shown.
6 C. J. 1020.
The answer of defendants in the dis-
trict court denied specifically that claims
and rights of owners and shippci-s were
duly or legally assigned to the said Spil-
ler, and it was averred that no assign-
ment for the owners or shippers to
Spiller was made. That placed the bur-
den upon the plaintiff in the district
court to make proof in his trial de novo
of the allegations of his petition which
had thus been categoricallv denied.
Where the issue is thus raised, evidence
of the assismment should be of a direct
and positive character.
5 C. J. 1019.
The provision of § 16 of the Aet to
Regulate Commerce, that the findings
and order of the Commission shall be
prima facie evidence of the facts thereiii
stated, only establishes a rebuttable pre-
sumption. It cuts off no defense, inter-
poses no obstacles to a full contestation
of all the issues, and takes no question
of fact from either court or jury.
Meeker v. Lehigh Valley R. Co. 236
U. S. 412, 430, 59 L. ed. &i4, 657, P.tJ Jl.
1915D, 1072, 35 Sup. Ct. Rep. 328, Ann.
Cas. 1916B, 691.
If the suit is to proceed like other
civil suits for damages, then the court
must have the power to govern the ad-
mission of evidence. If.tbis is not true,
then the court in this proceeding is re-
quired to admit hearsay evidence and
adjudge a case upon hearsay, the exclu-
sion of which has been mandatory from
an early day in England, and from th«
beginning of Federal jurisdiction in the
United States.
Queen v. Hepburn, 7 Cranch, 290, 3
L. ed. 348.
The objection- to tbe evidence as
hearsay was timely enough in the dis-
trict court. It would have been timely
enough on demurrer, or by way of an in-
struction to the jury.
Pittman v. Gaty, 10 111. 186.
It was the duty of the trial court to
inquire whether there was any substan-
tial evidence before the Commission U>
justify its order.
Atchison, T. & S. P. R. Co. v. Spiller,
158 C. C. A. 227, 246 Fed. 1, 161 C. C.
A. 587, 249 Fed. 677; Michigan C. R. Co.
V. Elliott, 167 C. C. A. 290, 256 Fed. 18.
Spiller, as assignee, is not within tbe
provisions of the Act to Regulate Com-
merce, and the Interstate Commerce
Commission was without jurisdiction to
entertain a claim preferred by him.
Texas & P. R. Co. v. Abilene Cotton
on Co. 204 U. S. 426, 442, 51 L. ed. 553.
659, 27 Sup. Ct. Rep. 350, 9 Ann. Cas.
1075; Sutheriand, Stat. Constr. § 371:
Weber v. Cliicago, R. I. & P. R. Co. 69
Kan. 611, 77 Pac. 533; Pennv v. New
Orieans G. N. R. Co. 135 La. 962, 66 S<».
313; Sensenig v. Pennsylvania R. Co.
229 Pa. 168. 78 Atl. 92; Parsons v. Chi-
cago & N. W. R. Co. 167 U. ^. 447, 42
L. ed. 231. 17 Sup. Ct. Rep. 887; Kan-
sas ritv Southern R. Co. v. I^eslie, 238
U. S. 599, .^»9 L. ed. 1478, a5 Sup. Ct.
Rep. 844; Fulgham v. Midland Vallev
R. Co. 167 Fed. 660; Southern R. Co.
v. Tift, 206 U. S. 428, 436, 51 L. ed.
1124, 1126, 27 Sup. Ct. Rep. 709, 11
Ann. Cas. 846; Phillips v. Grand Trunk
Western R. Co. 236 U. S. 662, 665, 59
958 U. 8.
1919.
SPILLER V. ATCHISON, T. & 8. F. \X. CO.
120-12 :
L. ed. 774, 776, 35 Sup. Ct, Rep. 444;
Southern P. Co. v. Darnell-Taenzer Lum-
ber Co. 245 U. S. 531, 62 L. ed. 451,
P.U.R.1918B, 598, 38 Sup. Ct. Rep. 186.
[120] Mr. Justice Pitney delivered
the opinion of the court:
' Plaintift in error commenced an action
against defendants in error jointly in the
dLhict court of the United States for the
western district of Missouri under § 16
of the Act to Regulate Commerce, as
amended (Act of February 4, 1887, (^ap.
104, 24 Stat, at L. 379, 384; June 29,
1906, chap. 3591, 34 Stat, at L. 584, 590,
June 18, idlO, chap. 309, 36 Stat, at L.
539, 554, Comp. Stat. §§ 8563, 8584, 4
Fed. Stat. Anno. 2d ed. pp. 337, 475), to
recover certiun amounts awarded to him
against them respectively in a reparation
order made by the Interstate Commerce
Commission January 12, 1914. His peti-
tion contained also a count setting up a
conspiracy between defendants for the re-
straint of interstate commerce, and claim-
ing treble damages under § 7 of the
Sherman Anti-trust Act of July 2, 1890
(chap. 647, 26 Stat, at L. 209, 210, Comp.
Stat. §§ 8820, 8829, 9 Fed. Stat. Anno.
2d ed. pp. 644, 713) ; but this was aban-
doned at the trial Defendants having
filed separate answers, a jury was
waived by stipulation, and a test case
tried before the court, — all defendants
participating, — with the result that a de-
cision was rendered in favor of plaintiff,
pursuant to which a combined judgment
was entered, amounting in effect to as
many judgments as there were defend-
ants, each for the amount of the Com-
mission's award against the particular
defendant, with interest and attorneys'
fees. Defendants sued out separate writs
of error from the circuit court of ap-
peals, where, by stipulation, the cases
were heard together upon a single record.
That court reversed the judgments, or-
dered the cause remanded to the district
court, with directions to grant a new
trial (158 C. C. A. 227, 246 Fed. 1), and
refused an application for a rehearing
(161 C. C. A. 587, 249 Fed. 677).
Writs of error were prayed for and al-
lowed for the review of the judgments of
reversal in this court; and afterwards,
but in due season, a petition for the al-
lowance of a writ of certiorari was filed,
the consideration of which was postponed
to the hearing under the writs of error.
The jurisdiction of the district court
having been invoked, [121] not because
of diversity of citizenship, but because
the suit was one arising under laws of
the United States other than those pnr-
«4 li. ed.
ticularlv lueationed in § 128, Judicial
Code [36 Stat, at L. 1133, chap. 231], a>
amended ( Act of January 28, 1915, diap.
22, § 2, 38 SUt. at L. 803, Comp. Stat.
§ 1120, 5 Fed. Stat. Anno. •2d ed. p. 607),
it follows that the judgments were not
made "final" by the section referred to,
and| if final in the. sense of concluding
the litigation, would be reviewable in
this court by writ of error, pursuant to
§ 241, Judicial Code, in each case where
the matter in controversy exceeds $1,000
besides costs. In thovcases of the Chi-
cago & Alton and the Missouri Pacific
Companies, the respective judgments,
with interest up to the issuance of the
writs of error from this court, were ma-
terially less than $1,000; in each of the
other cases substantially in excess of that
amount; the aggregate o( the judgments
being more than $150,000. For want of
a sufficient amount in controversy the
two smaller judgments would not be re-
viewable here by writ of error even were
they final in effect; but all the writs of
error must be dismissed because the
judgments call for further prooeedings
in tiie trial court; it being elementary
that this writ will lie to review final judg-
ments only. McLish v. Roff, 141 U. S
661, 665, 35 L. ed. 893, 894, 12 Sup. Ct.
Rep. 118; Luxton v. North River Bridge
Co. 147 U. S. 337, 341, 37 L. ed. 194, 195,
13 Sup. Ct. Rep. 356; Heike v. United
States, 217 U. S. 423, 429, 54 L. ed. 821,
824, 30 Sup. Ct. Rep. 539.
However, upon consideration of the
particular circumstances of the ease, we
have concluded that a writ of certiorari
ought to be allowed, without further pro-
tracting the litigation to the extent that
would be necessary in order to reach
final judgments; the transcript of the
record and proceedings returned in
obedience to the writs of ^rror to stand as
the return to the writ of certiorari. This
writ is allowable by virtue of § 240, Ju-
dicial Code [36 Stat, at L. 1157, chap.
231, Comp. Stat. § 1217, 5 Fed. Stat.
Anno. 2d ed. p. 854] (derived from § 6
of the Act of March 3, 1891, chap. 517,
26 Stat, at L. 826, 828), in the case of
the two smaUer judgments, because the
decision of the circuit court of appeals is
made final bv the combined eifect of §§
128 and 241; and in the case of [122]
the larger judgments it is allowable
under § 262 of the Code (§ 716, Re-
vised Stat. Comp. Stat. § 1239), in
aid of the ultimate jurisdiction of this
court to review those cases by writs of
error* Lau Ow Bew v. United States,
144 U. S. 47. 58, 36 L. ed. 340, 344,
12 Sup. Ct. Rep. 517; Re Chetwood.
815
122-124
SriMJK.MK COURT OF THE UNITED STATES.
Oct. Team,
105 U. S. 443, 4(J2, 41 L. ed. 782,
788, 17 Sup. Ct. Rep. 385; Whitney
V. Dick, 202 U. S. 132, 135, 50 L. ed. 963,
904, 28 Sup. Ct. Rep. 584; McClellan v.
Garland, 217 tF. S. 268, 277, et seq., 54
L. ed. 762, 765, 30 Sup. Ct. Rep. 501;
United States v. Beatty, 232 U. S. 463,
467, 58 L. ed. 686, 687, 34 Sup. Ct. Rep.
392; Meeker v. Lehigh Valley R. Co. 234
U. S. 749, 58 L. ed. 1576, 34 Sup. Ct.
Rep. 674; 236 U. S. 412, 417, 59 L. ed.
644, 652, P.U.R.1915D, 1072, 35 Sup. Ct.
Rep. 328, Ann. Cas. 1916B, 691.
Coming to the merits: The ground
upon M'hich the eircuit court of appeals
reversed the judgments, and the ground
principally relied upon to sustain its de-
cision, was the refusal by the trial court
of a motion made by defendants to hold :
(a) That, upoQ all the evidence, plain-
tiff was not entitled to recover against
any or all of the defendants; and (b)
that there was not sufficient evidence be-
fore the Commission to sustain its order
of reparation. The latter is the substan-
tial question actually presented.
The course of proceedings at the trial,
as appears from the bill of exceptions,
was as follows: Plaintiff introduced the
report of the Interstate Commerce Com-
mission (unreported opinion No. A-583
in case No. 732, Cattle Raisers* Asso. v.
Missouri, K. & T. R. Co. dated Jan. 12,
1914), and the order of reparation made
pursuant to it and upon which the action
was based. Defendants having admitted
the service of the order, and that the
money awarded had not been paid, plain-
tiff rested. The report makes an award
in favor of Spiller, plaintiff in error, as
assignee of a lai^ number of claims for
reparation by reason of excessive rates
charged by the respective carriers on in-
terstate shipments of cattle from points
of origin in Texas, Oklahoma, New Mex-
ico, Colorado, and Kansas, to destinations
at Kansas City, St. Louis, Chicago, St.
Joseph, and New Orleans, on various
dates between August 29, 1906, and No-
vember 17, 1908; and a further award to
named shippers in the case of certain
unassigned claims pertaining to similar
shipments; the [123] several claims, as-
signed and unassigned, with distinguish-
ing marks, being set forth in Appendix
A, showing the delivering carriers against
which the claims were allowed, and, in
each case, the consignor, points of origin
and destination, number of cars shipped,
weight, rate paid, the lower rate sanc-
tioned by the .Commission, amount of re-
fund required, and the interest thereon.
The report contains appropriate findings
adequate to support the award, among
8ie«
them the following: That the persons-
named in Appendix A as consignors
shipped from fhe points of origin to the
points of destination specified, by the
line of road named as the "delivering:
road,'' the number of cars and of the ag-
gregate net weight stated; that the
shippers paid to the delivering carriers
freight upon the shipments at certain
rates named ; that in each instance *thi»
rate was unreasonable and excessive, and
a reasonable rate to have been charged
would have been the lower rate speeifted
as having been subsequently established
by the Commission, and th^t therefore
the delivering carriers collected from
the shippers unreasonable charges on
account of the shipments in amounts
named in the column headed "Amotint
of Refund;" that the shipments of live
stock were in all eases consigned to some
person at the delivering market, usually
a commission firm; tliat the freight was
paid in the first instance by the *'con-
signor^' (evidently a misprint for
"consignee") to the delivering carrier^
and subsequently the cattle were sold up-
on the market and the amount of the
freight deducted from the purchase
price, remittance being made for the
balance, so that in all cases the owner and
shipper of the cattle finally paid the
transportation charges; and that by the
unreasonable exactions of the carriers the
shippers were damaged in the amounts
stated in the appropriate column of Ap-
pendix A, since they received for the
cattle less by those amounts than they
would have receivefl had the rate found
reasonable been charged; that in the case
of [124] some of the claims the ship-
pers made assignments to H. E. Crow-
ley, then being secretary of the Cat-
tle Raisers' Association, in a form
set forth in the report; that subse-
quently Crowley ceased to be such sec-
retary, and was succeeded by Spiller,
the plaintiff, to whom Crowley as-
signed all claims previously assigned to
him; and that other specified claims were
assigned by the shippers to Spiller after
he became secretary, the form of assign-
ment being the same as that previously
employed.
Defendants, endeavoring to show the
insufficiency of the evidence upon which
the findings and order of the Commis-
sion were based, introduced a transcript
of the stenographer's notes of the testi-
mony taken upon the hearing of the
reparation claims; follomng this by in-
troducing a sample page taken from one
of the exhibits introduced before the
Commission as illustrative of the form of
2ftS XJ. 8.
1919.
SPILLER V. ATCHISON, T. & S. F. R. CO.
124-12«
exhibits there introduced. After other as stJted by counsel, to "avoid introduc-
eYideaee not necessary to be mentioned, ing a number of papers that would
and a request for judg:ment in favor of almost fill a farm wagon." But obvious-
defendants, and for certain rulings on
points of law .that would have produced
that result, all of which were refused, the
case was closed.
It appears that in February, 1904, the
Cattle Raisers' Association of Texas, in
behalf of its members and of others in-
terested, petitioned the Interstate Com-
merce Commissiou under § 13 of the
ly we hardly could sustain a decision
rejecting the reparation order upon the
ground that there was not sufficient evi-
dence before the Commission to support
it when the whole of the evidence that
was before the Commission was not pro-
duced.
That this is a matter of substance will
appear from a review of the course of
Commerce Act, alleging the rates in the proceeding as disclosed by the
force in the territory in question to be stenographer's transcript. The evidence
unjust and unreasonable, they having | was takea by Mr. Commissioner Prouty
been advanced some time before to the at Chicago; there being three sessions,
extent (in most cases) of 3 cents per
hundred pounds. On August 16, 1005,
the Commission held (Cattle Raisers'
Asso. V. Missouri, K. & T. R. Co. 11
Inters. Com. Rep. 296, 352) that the
then-existing rates were unjust and un-
reasonable by the amount of the advance.
At this time the Commission was not
empowered to fix rates for the future.
This power having been conferred by the
Hepburn Act of June 29, 1906 (chap.
3691, 34 Stat, at L. 584, 589, Comp. Stat.
§§ 8663, 8582), which, by Joint Resolu-
tion of June 30, 1906 (34 Stat, at L.
838, Comp. Stat. § 8640), [125] took
effect sixty days after its approval by
the first on September 19 and 20, 1912,
the second on January 24, and the third
on October 17 in the following year.
They were held in the presence of counsel
for the [136] Cattle Raisers' Associa-
tion, who appeared for the claimants,
and counsel for the several carriers
interested. If we were called upon
to review the proceeding as upon a
writ of error or appeal it mij^t be
difficult to say that no improper evi-
dence was admitted, that production
of the best available was insisted upon,
or that a different conclusion might not
have been reached upon that which was
admitted. But the scope of the judicial
the President, or on August 28, 1906, the i renew is not so extensive. Section 13 of
Cattle Raisers' Association immediately
thereafter applied for and obtained a re-
opening of the matter, to^ the end that
reasonable rates might Be established;
and on April 14, 1908, the Conunission
decided that the former rates should be
restored, but that reparation would not
be allowed upon claims accruing prior to
August 29, 1906 (date of the applica-
tion). 13 Inters. Com. Rep. 418, 435.
The reduced rates finally were put into
effect November 17, 1908.
The reparation claims in controversy
appear to have been filed in due season
by the Cattle Raisers' Association in be-
half of its members and other shippers
interested, and in the names of the al-
leged owners of the cattle shipped.
The transcript of the testimony taken
by the Commission, as introduced in evi-
dence in the district court, forms the
basis of the decision of the circuit court
of appeals that the reparation order was
unsupported by evidence. But the
transcript shows that important docu-
mentary evidence was introduced, and
furnished the principal foundation for
the findings made. This documentary
evidence (except the single sheet offered
the Act to Regulate Commerce (Act of
February 4, 1887, chap. 104, 24 Stat, at
L. 379, 383, amended June 18, 1910,
chap. 309, .^,6 Stat, at L. 539, 550, Comp.
Stat. §§ 8568, 8581, 4 Fed. Stat. Amio.
2d ed. pp. 337, 453) requires the Com-
mission, on receipt of a claim for repara-
tion, to proceed on notice to the carrier
to ^'investigate the matters complained of
in such manner and by such means as it
shall deem proper;" and by § 16 (34
Stat, at L. 590, chap. 3591, 36 Stat, at
L. 554, chap. 309, Comp. Stat. § 8584, 4
Fed. Stat. Anno. 2d ed. p. 476), if, after
such hearing, the Commission shall de-
termine that any party complainant is
entitled to an award of damages, the
Commission is to make an order of repa-
' ration accordingly, and in a suit based
thereon "the findings and order of the
Commission shall be prima facie evidence
of the facts therein stated." The same
section contemplates that numerous par-
ties may unite in a claim for reparation,
and that numerous carriers may be
joined as defendants; and similarly, that
in a suit broneht upon such award there
may be a joinaer of parties plaintiff and
defendant. And, by § 17 (24 Stat, at L.
/
for purposes of illust ration) was not in- 385, chap. 104; March 2, 1889, 25 Stat.
troduced in the district court, in order, at L. 8(>1. chap. 382, Comp. Stat. § 8586,
64 li. ed. .-»2 817
126-129
SUPREME COUKT OF TUK UNITED STATES.
Oct. TiXM,
4 Fed. Stat. Anno. 2d ed. p. 493) '^'Ihe
Commission may conduct its proceedings
in such manner as will best conduce to
the proper despatch of business and to
the ends of justice."
These provisions allow a large degree
of latitude in the investigation of claims
for reparation, and the resulting findings
and order of the Commission may not be
rejected as evidence because of any errors
in its procedure not amounting to a de-
nial of the right to a fair hearing, so long
as the essential facts found are based up-
on substantial evidence.
[127J In the present case, the hear-
ing was informal, but not to the ex-
tent of sacrificing essential rights of
parties; and it cannot be character-
ized as arbitrary or unfair. Many
carriers were interested, and they were
represented by counsel. Thousands of
carload shipments were in question,
but the points in real controversy were
few, and there was a natural desire
on all sides to expedite the liearing. In
the main, counsel for the carriers co-oper-
ated in facilitating the investigation. It
was not in dispute that all shipments
under inquiry were made during a period
when the tariff rates were under investi-
gation, and that afterwards those rates
were determined by the Commission to
have been excessive. It appeared that
itemized claims for reparation had been
made out in duplicate (one copy of each
being filed), in the names of the parties
allied to have made shipments of cattle
as owners during the period in question,
that these were based in most eases upon
data furnished by the commission houses
at the several points of destination, as
taken from their books, in other cases by
the shippers themselves, and that they
were computed by applying the excess
diarges, as determined, to the actual
weights of the shipments where known, in
other cases to the minimum carload
weights. There was evidence that few of
the cattle shippers kept books, they rely-
ing upon the commission companies to do
this, and that such companies were the
consignees of the cattle, and made it a
practice on receiving a shipment to pay
the freight, sell the cattle, and remit the
proceeds to the owner after deducting the
frei^t paid and other charges. During
the hearing, there was drawn off from the
claims as made up and filed a summary
for each carrier, purporting to show the
consignor^ consignee, originating road,
point of origin, destination, date of de-
livery, number of cars moved, rate paid,
rate established by the Conmiission. and
the overcharge claimed. These were sub-
618
mitted to the several carriers for investi-
gation by their accounting officers, aad
[128] some months later were report-
ed back to Commissioner Prouty by
their counsel, with the results of saeh
investigation, which, in a majority o£
instances, verified the statements said
to have been deduced from the rec-
ords of the commission houses. Ib
some cases, in addition to check mazkSf
'^O. K.," and other mariLs indicating
that the items had been found cor-
rect, waybill references, car numbers,
initials, etc, had been inserted; and
where it had been found impossible to lo-
cate a shipment there were comments
tending to add support to the verification
of those that were located. No repara-
tion was awarded by the Commission
except with respect to such shipments ae
were acknowledged in the reports of the
defendants to have moved as stated.
These reports were introduced in evidence
before Commissioner Prouty, but, as al-
ready shown, were not in evidence before
the district court. What we have said as
to their contents is gathered from the
stenographer's transcript; what else may
have appeared upon their face, in the
nature of admissions, is left to be in-
ferred. Counsel for some of the carriers
undertook to qualify the effect of admis-
sions contained in them, as by saying that
the checking meant no more than that a
particular car moved as stated, and that
the carrier collected the amount of frei^^
specified; that it was not intended to ad-
mit that remittance was made to the per-
son named as claimant; thai the
statements were subject to confirmation
by the books of the commission mer-
chants, or the like. But the Commission
was justified in according: to the reports
of the checking an evidential effect, not
limited by the qualifying statements,
treating the latter as merely argumenta-
tive. It might regard the fact that the
shipments could be and were identified
from the records of the carriers, in the
manner described, as evidence that the
details respecting the shippers of the cat-
tle and the particulars of the shipments
were true; might take the movement and
deliver>^ of the freight thus [129]
acknowledged as evidence that the de-
livering carrier collect^ the freight
charges according to the published tar-
iffs, which, of course, included the over-
chai^ges; and might take this, in con-
nection with the evidence as to the
course of business, as showing that
the shippers whose names were mentioned
in the statements sustained damages to
the extent of the excessi\ e charge as de-
253 V, S.
1919.
SPILLER V. ATCHISON, T. & S. F. K. CO.
12y-13I
termined by the Commission. The min-
utes show that until near the conclusion
of the hearing it was the intention to ap-
point an examiner to investigate the
books of the commission merchants at the
various points of destination in order to
verify the details of the several ship-
otents, and that this purpose was aban-
doned in view of the admissions made by
the carriers. Perhaps it ought to have
been carried out; but the court was not
justified in treating the report of the
Commission as a nullity for this reason,
if there was substantial evidence of the
essential facts without such verification.
We think that what. we have detailed of
the course of the hearing, taken in con-
nection with what we know and what may
be presumed as to the contents of the un-
produced documentary evidence, shows
there was substantial evidence that the
owners specified in the claims had been
subjected to the excessive charges with
respect to the shipments acknowledged
by the carriers ; and, as already remarked,
the award of reparation was confined to
these shipments.
The opinion of the circuit court of ap-
peals severely criticizes the evidence on
which these conclusions were based,
characterizing it as hearsay. It is not to
be disputed Siat much of the evidence —
including essential parts of it — ^is prop-
erly so characterized. The only witness
sworn was Mr. Williams, assistant secre-
tary of the Cattle Raisers' Association,
who had gathered the data upon which
the claims were based, mostly from
conunission merchants, in some in-
stances from the cattle shippers. He had
prepared the claims, had si)ent mudi
[180] time and pains in investigat-
ing them, and in the course of his du-
ties had visited several of the points
of destination and examined the books
and records of the commission mer-
chants to ascertain the method in
which their business was conducted and
records kept. It was he who testi-
fied as to the customary course of busi-
ness of cattle shippers and conunis-
sion merchants. He had been connected
with the Cattle Raisers^ Association for
about eight years, and might be presumed
to have some general familiarity with the
business in addition to that gained in the
special study he had made of it while in-
vestigating the claims. His explanation
of the method of business and the details
of the claims was accepted, and accepted
without objection, very much as the testi-
mony of an expert witness misrht have
been accepted. Whether he lia*] shown
such special knowledge as to ijualiCy him
4i Xj. eel.
to testify as an expert was for the Inter-
state Commerce Commission to deter-
mine; and its decision thereon is not to
be set aside by the courts unless clearly
shown to have been unfounded, which
cannot be said in this case. Stillwell &
B. Mfg. Co. V. Phelps, 130 U. S. 520, 527,
32 L. ed. 1035, 1037, 9 Sup. Ct. Rep. 601;
Montana R. Co. v. Warren, 137 U. S.
348, 353, 34 L. ed. 681, 683, 11 Sup. Ct.
Rep. 96.
The evidence was not objected to as
heai:say when introduced, nor, indeed, at
any time during the hearing before the
Commission. Counsel did in some in-
stances assert that there was a failure of
proof, and suggest that the proceeding
ought to be disnussed. But the objections
came too late, and were too general in
character, to be equivalent to an objec-
tion to the reception of the evidence be-
cause hearsay. Even in a court of law,
if evidence of this kind is admitted with-
out objection, it is to' be considered, and
accorded its natural probative effect, as
if it were in law admissible. Diaz v.
United States, 223 U. S. 442, 450, 66 L.
ed. 500, 503, 32 Sup. Ct. Rep. 250, Ann.
Cas. 1913C, 1138 ; Rowland v. Boyle, 244
U. S. 106, 108, 61 L. ed. 1022, 1023,
P.U.R.1917C, 685, 37 Sup. Ct. Rep. 577 ;
Damon v. Carrol, 163 Mass. 404, 408, 40
N. E. 186. And it is clear that the verifi-
cation of the details of the [131]
claims by the carriers after full investi-
gation by their auditing departments
constituted primary evidence against
them, and went far towards showing
that the facts as disclosed by the hear-
say evidence might be depended upon.
We are not here called upon to consid-
er whether the Commission may receive
and act upon hearsay evidence seasonably
objected to as hearsay; but we do hold
that in this case, where such evidence
was introduced without objection and
was substantially corroborated by original
evidence clearly admissible against the
parties to be affected, the Conunission is
not to be regarded as having acted arbi-
traiily, nor may its findings and order be
rejected as wanting in support, simply
because the hearsay evidence was consid-
ered with the rest.
In Interstate Commerce Commission v.
Baird, 194 U. S. 25, 44, 48 L. ed. 860,
869, 24 Sup. Ct. Rep. 563, it was said :
"The inquiry of a board of" the character
of the Interstate Commerce Commission
should not be too narrowly constrained
by technical rules as to the admissibility
of proof. Its function is largely one of
investigation, and it. should not be ham-
pered in making inquiry pertaining tf»
819
131-133
Sl'l'ilKMK COl i:r OF TllK IMTED STATES.
Oct. Tebu,
interstate commerce by those narrow
rules which prevail iu trials at common
law, where a strict correspondence is re-
quired between allegation and proof." In
Interstate Commerce Commission v.
Louisville & N. R. Co. 227 U. S. 88, 93,
57 L. ed. 431, 434, 33 Sup. Ct. Rep. 185,
the court recognized that "the Commission
is an administrative body, and, even
where it acts in a quasi judicial capacity,
is not limited bj* the strict rules as to the
admissibility of evidence which prevail in
suits between private parties." And the
fact that a reparation order has at most
only the effect of prima facie evidence
(Meeker v. I^high Vallev R. Co. 236
U. S. 412, 430, 59 L. ed. 644, 657,
P.U.R.1915D, 1072, 35 Sup. Ct. Rep. 328,
Ann. Cas. 1916B, 601; Meeker v, Lehigh
Vallev R. Co. 236 U. S. 434, 439, 59 L.
ed. 659, 661, 35 Sup. Ct. Rep. 337 ; Mills
V. Lehigh Valley R. Co. 238 V. S. 473,
482, 59 L. ed. 1414, 1418, 3-3 Sup. Ct.
Rep. 888), being t)pen to contradiction
by the carrier when sued for recovery of
the amount awarded, is an added reason
for not binding down the [132] Com-
mission too closely in respect of the
character of the evidence it may receive
or the manner in which its hearings
shall be conducted.
In this case the Commission did not act
upon evidence of which the carriers were
not cognizant, and to which they had no
opportunity to reply, as in the case sup-
posed in Interstate Commerce Commis-
sion V. LouisviUe & N. R. Co. 227 U. S.
88, 91, 93, 57 L. ed. 431, 433, 434, 33
Sup. Ct. Rep. 185. All the carriers par-
ticipated in the hearing, and had full
opportunity to object, to cross-examine,
and to introduce evidence on their own
part.
It is objected that the evidence failed
to show who owned the cattle shipped or
who paid the freight. This cannot be sus-
tained. True, it appeared that the cattle
were not in all instances billed in the
name of the owner, bnt sometimes in the
name of a earetaker, his name being in-
serted in the bill as evidence of his right
to free transportation. But it is probable
that in the latter cases there was a want
of eon espoudence between the claims as
presented and the carriers' books, and
that, for want of checking by the car-
riers, they were omitted from the award.
The evidence upon the whole was suf-
ficient to sustain a Gnding, so far as the
claims were allowed, that the parties in
whose behalf they were allowed were
oonsignors of the diipments, and presum-
ably owners of the cattle sliipped.
If there be doubt wlietlier it was suf-
820
licient to sustain each and every claim
that was allowed, w^e are not now con-
cerned with this; the ruling in question
being the refusal of the trial court to
treat the award as void in toto. This was
not enoneous if, to any substantial e^c-
tent, the award was legally valid. If a
part only of the claims was unsupported
by evidence, the request for an adverse
rulinii: should have been directed to these.
The principal defense before the Com-
mission was that the payment of a pub-
lished rate afterwards decided to have
been excessive was not evidence that the
party who paid [183] the freight sus-
tained damage to the extent of the excess.
The circuit court of appeals sustaiuecl
this contention at the first hearing (158 C.
C. A. 227, 246 Fed. 1, 23), but it has
since been ruled otherwise by this court
(Southern P. Co. v. Darnell-Taenzer
Lumber Co. 245 U. S. 531, 534, 62 L. ed.
451, 465, P.U.R.1918B, 598, 38 Sup. Ct.
Rep. 186) ; and, in view of this, upon the
rehearing the circuit court of appeals
withdrew this part of its former opinion
(161 C. C. A. 587, 249 Fed. 677).
That court held, further, that upon the
undisputed evidence the legal title to the
claims for reparation never vested in
Spiller, and hence that the Commission
was wholly without authority to order
reparation to be made to him. The min-
utes show that of the claims in favor of
Spiller a number had been assigned to
Crowley when he was secretary of the
Cattle Raisers' Association, and after-
wards assigned by him to Spiller when
Crowley retu'ed and Spiller succeeded
him; that other claims were as^gned by
the consignors to Spiller direct; and that
still others bad not been assigned. The
assignments were produced before Com-
missioner Prouty, and an offer made to
tile them, but, as we interpret the min-
utes, this was waived, a copy of one of
the assignments (they were said to be
alike in form) being inserted in the
stenographer's notes instead. There was
evidence that the assignments were made
for nominal considerations because the
Cattle Raisers' Association was prosecut-
ing the claims for the benefit of the own-
ers thereof. In the schedule of the
claims as submitted to the Conunission,
those assigned were suitably identified,
and the Commission awarded reparation
to Spiller upon these, and in other eases
made tlie order in favor of the parties
named as owners. There was substantial
evidence to support the finding that the
claims had been assigned. Formal proof
of the handwriting of the assignon by
subscribing witnesses or otherwise was not
S6S U. S.
1919.
SPILLEU V. ATCUISOX, T. ^ S. V. 1\, CO.
13a-13ti
neceasary in so summary a hearing, in
the absence of objection or contradiction.
What was shown as [134] to the re-
lation of the shippers to the Association
and Uie possession of the instruments of
assignment by the representative of the
Association who was prosecntin^ the
claims gave a reasonable assurance of
the genuineness of the instruments.
The circuit court of appeals held fur-
ther, however, that, supposing there was
sufficient evidence to s'upport the finding
that the claims had been legally assigned-
to Spiller, it showed that the purpose of
the assignment was not such as to vest the
legal title to the claims in him, so as to
authorize the Commission to make the
award of damages in his name. To this
we cannot assent. The assignments were
absolute in form, and plainly their effect
— supposing the claims to be assignable —
was to vest the legal title in Spiller.
What they did not pass to him was the
beneficial or equitable title. But this was
not necessary to support the right of the
assignee to claim an award of reparation,
and enable him to recover it by action at
law brought in his own name, but for the
benefit of the equitable owners of the
claims; especially since it appeared that
such was the real purpose of the assign-
ments. •'
We have said enough to show that the
reversal of the judgments of the district
court cannot be sustained on the grounds
upon which the circuit court of appeals
based it. It is insisted, however, that,
failing this, the same result ought to have
been reached upon the ground that the
provisions of the Commerce Act do not
permit an assignment of a claim for
reparation to a third party, and hence
the Interstate Commerce Commission was
without jniisdiction to award reparation
to Spiller. This is based upon the lan-
guage of §§ 8 and 9, which remain in
their original form, of § 13, as amended
June 18, 1910 (chap. 309, 36 Stat, at L.
550, chap. 309, Coinp. Stat. § 8581, 4
Fed. Stat. Anno. 2d ed. p. 453), and of §
16, as amended June 29, 1906 (34 Stat,
at L. 584, chap. 3591, Comp. Stat. §
8563, 4 Fed. Stat. Anno. 2d ed. p. 337).
Section 8 (24 Stat, at L. 382, chap. 104,
€omp. Stat. § 8572, 4 Fed. Stat. Anno.
2d ed. p, 430) makes the common cari'ier,
for anything done contrary to the prohi-
bition of the act, "liable to the i>er8on or
[185] pei-sons injured thereby for the
full amount of damages sustained in con-
sequence of any such violation of the
provisions of tliis act." Section 9 entitles
any person claiming to l>e damaged either
to make complaint to the Commission or
64 li. eti.
to "bring suit in his or their own behalf
for the recovery of the damages for
which such common carrier may be li-
able." Section 13 contains nothing that
need be quoted. Section 16, as amended
(34 Stat, at L. 590, chap. 3591, Comp.
Stat. § 8584, 4 Fed. Stat. Anno. 2d ed. p.
475), provides that where an award of
damages is made by the Commission, and
the carrier does not comply with the or-
der, "the complainant, or any person for
whose benefit such order was made/^ may
bring suit. Stress is laid upon the ab-
sence of language expressly extending the
remedy to the representatives or assigns
of the person aggrieved; but we attribute
no controlling significance to this. The
provisions of the act giving redress,
compensatory in its nature, to persons
sustaining pecuniary injury through the
violation of public duty by the carrier,
must receive a reasonably liberal, and not
a narrow, interpretation. A claim for
damages sustained through the exaction
of unreasonable charges for the carriage
of freight is a claim not for a penalty,
but for compensation; is a property right
assignable in its nature (Comegys v.
Vasse, 1 Pet. 193, 213, 7 L. ed. 108, 117;
Erwin v. United States, 97 U. S. 392,
393, 396, 24 L. ed. 1065-1067), and
must be regarded as assignable at law, in
the absence of any expression of a legis-
lative intent to th«i contrary. We find
nothing in the letter or spirit of the act
inconsistent with such assignability. We
are referred to certain expressions in
Texas & P. R. Co. v. Abilene Cotton Oil
Co. 204 U. S. 426. 442, 51 L. ed. 553,
559, 27 Sup. Ct. Rep. 350, 9 Ann. €as.
1075, and -Southern P. Co. v. Darnell-
Taenzer Lumber Co. 245 U. S. 531, 533,
534, 62 L. ed. 451, 454, 455, P.U;R.1918n,
698, 38 Sup. Ct. Rep. 186; but they do
not bear upon the present question, and
are not inconsistent with the view that
reparation claims are assignable.
The Intel-state Commerce Commission,
by Conference Ruling No. 362 (June 4,
1912), declared: "In awarding repara-
tion the Commission will recognize an as-
signment [136] by a consignor to a con-
signee, or by a consignee to a con-
signor, but will not recognize an asr
signment to a stranger to the trans-
portation records." See Robinson Co.
V. American Kxp. C(f. 38 Inters. Com.
Rep. 733, 735. So far as this in-
volves a construction of the act, we
are unable to accept it, for reasons that
have been indicated. Treating it as an
administrative regulation, it, of course,
constituted no limitation upon the juris-
* diction of the Commission, even were it
821
136
SUPHKMK (JOl'RT OF THE UNITED STATES.
Oct.
consistent with a correct construction of
the act, which we hold it was not. In any
event, the Commission hod power to dis-
regard the regulation, as in effect it did,
by recognizing the assignments in this
case.
Other points discussed in the ai'gument
require no special conmient.*
It results that the judgments of the
Circuit Court of Appeals must be re-
versed, and those of the Distiict Court
affirmed.
Writs of error dismissed.
Writs of certiorari allowed.
Judgments of Circuit Court of Appeals
reversed, and judgments of District Court
affirmed.
MECCANO. Limited, Petitioner,
V. •
JOHN WANAMAKER, New York.
(See 8. 0. Reporter's ed. 136-142.)
Certiomri — to circuit court of appeals
— preliminary orders.
1. The Federal Supreme Court may,
under the Judicial Code, § 240, bring up by
certiorari dir<;cted to a circuit court of
appeals a cause in which the decree of the
latter court is made final by § 128, and
may treat the cause as if on appeal.
[For other cases, see Certiorari, II. a ; II. c,
in Digest Sup. Ct. 1008.]
Appeal — to drciiit court of appeals — *
preliminary orders — Judgment.
2. The power of circuit courts of ap-
peals under the Judicial Code, § 120, to
review preliminary orders granting injunc-
tions, is not limited to the mere consider-
ation of, . and action upon, the order ap-
pealed from, but, if insuperable objection
to maintaining the bill clearly appears, it
may be dismissed and the litigation ter-
minated.
[For other cases, see Appeal and Error, VIII.
e : IX. e, In Digest Sup. Ct. 1008.]
Appeal — review — discretionary mat-
ters.
3. Whether a preliminary injunction
sliall be awarded rests in the sound dis-
cretion of the trial court, and on appeal
an order granting or denying such an in-
junction will not be disturb^ unless con-
trary to some rule of equity, or the result
of improvident exercise of judicial dis-
cretion.
[For other cases, itee Appeal and Brror, Til]
1, 1, in Vlgent Sap. Ct. 1008.]
Certiorari — to ciixnilt conrt of appeals
— review of dleeretloitarj matter*.
4. A decree of a circuit court of ap-
peals which, upon a view of all releraat
circumstances, reversed an order of the trial
court granting a preliminary injanctio&,
will not be disturbed by the Federal 6q-
preme Court on certiorari except for itroag
reasons.
[For otlier eases, see Certiorari, II. c, in DlgeM
Sup. Ct. 1008.]
Appeal — review — cdiansed oondltioiia.
5. A circuit court of appeals, on appeal
from an order of a district court which had
granted a preliminary injunction in entirt
reliance upon a decree of another district
court, properly takes notice of and con-
siders the changed circumstances arising out
of the subsequent reversal of such decree.
[For other cases, see Appeal and Brror, VIII.
n, in Digest Sup.Ct. 1008.]
Appeal « from interlocutory order —
entering final Ai^sree on merits.*
6. A final decree upon the merits may
not be entered by a circuit court of appealf
on grounds of estoppel by judgment upoa
an appeal from an order granting a pre-
liminary injunction.
[For other eases, see Appeal and Brror, IZ. a.
in Digest Sop. Ct. 1003.]
Patents — disclaimer.
7. Petitioner in a suit for infHngeraent
of a patent, for unfair competition, and for
the infringement of a copyright, may not
file a disclaimer as to the patent up<m
certiorari to a circuit court of appeals to
review a decree which reversed an order of
the trial court, granting a preliminary In-
junction.
[For other caRes, see Patents, XII. la Digtst
Sup. Ct. IOCS.]
Certiorari — to circuit court of appeals
— scope of review.
8. ihc Federal Supreme Ck>urt will not
undertake, on certiorari sued out to rcrviev
a decree of a circuit court of appeals whick
reversed a decree of a district ooiurt, sTant*
ing a preliminary injunction, to decidt
which one of two conflicting views enreeaed
by two circuit courts of appeals is tne cor-
rect one, nor to decide the several issues
involved upon the merits.
[For other cases, «9oe Certiorari, II. e, la Di-
gest Sup. Ct. 1908.]
[No. 187.]
Argued January 26 and 27, 1020. Decided
May 17, 1020.
Note. — On certiorari from Federal
Supreme Court to circuit courts of ap-
peals— see notes to Fumess, W. & Co. v.
Yang-Tsze Ins. Asso. 61 L. ed. U. S.
409, and United States v. Dickinson, 53
L. ed. U. S. 711. 1
On appellate jurisdiction of Federal .
Supreme Court over circuit courts of ap-
822
peals — see notes to St. Anthony's Cburoh
V. Pennsylvania B. Co. 59 L. ed. U. 8.
1119, and Bagley v. General Fire Ei-
tinaruisher Co. 53 L. ed. U. 8. 606.
That the Federal Supreme Court will
not review the discretionary action of
the court below — see note to Barrow v.
Hill, 14 L. ed. U. S. 48.
25S r. 6.
1919.
MECCANO V. WANAMAKER.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
tb« Second Circuit to review a decree
which reversed a decree of the District
Court for the Southern District of New
York, i^ranting a preliminary injunction
in a suit for the infringement of a pat-
enty for unfair competition, and for the
iaiUngemeiit of a copyright. Affirmed.
See same case below, 162 C. C. A. 520,
250 Fed. 450.
Tha facts are stated in the opinion.
Mr. Beeto Lewis argued the cause,
snd, with Messrs. C. A. L. Massie, W.
B. Kerkaro, and Kalph L. Scott, tiled a
brief for petitioner:
A decree, while in a strict technical
tense interlocutory with respect to an ac-
counting provided for therein, is never-
theless tinal in all other respects in which
it conclusively adjudicates the rights of
the parties.
Re •Sanford Fork & Tool Co. 160 U.
8. 247, 40 L. ed. 414, 16 Sup. Ct. Rep.
293; Smith v. Vulcan Iron Works, 165
U. S. 518, 525, 41 L. ed. 810, 812, 17
Sup. Ct. Rep. 410; Bissell Carpet-
Sweeper Co! v. Goshen Sweeper Co. 19
C. C. A. 25, 43 U. S. App. 47, 72 Fed.
552; East Coast Cedar Co. v. People's
Bank, 49 C. C. A. 422, 111 Fed. 446;
Smith V. Farbenfabriken Co. 117 C. C.
A. 133, 197 Fed. 894; Marian Coal Co.
V. Peale, 122 C. C. A. 397, 204 Fed. 161 ;
Carondelet Canal & Nav. Co. v. Louis-
iana, 233 U. S. 362, 58 L. ed. 1001, 34
Sup. Ct. Rep. 627; Kessler ▼. Eldred,
206 U. 8. 285, 51 L. ed. 1065, 27 Sup.
Ct Rep. 611; Hart Steel Co. v. Rail-
road Supply Co. 244 U. S. 294, 61 L. ed.
1148, 37 Sup. Ct. Rep. 506; LoveU-Mc-
Connell Mfg. Co. v. Automobile Supply
Mfg. Co. 235 U. S. 383, 387, 388, 59
L. ed. 282, 283, 35 Sup. Ct. Rep. 132;
National Brake & Electric Co. v. Chris-
tcDsen, 169 C. C. A. 600, 258 Fed. 880.
Id^tity or privity of the defend-
ants in the two suits is established.
Eock Spring Distilling Co. v. W. A.
Gaines ft Co. 246 U. S. 312, 62 L. ed.
738, 38 Sup. Ct. Rep. 327.
Identity of subject-matter and issues
in the two suits is admitted and other-
wise established.
Southern P. R. Co. v. United States,
168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct.
Rep. 18.
This court has full power and author-
ity now to make such disposition of the
case as justice may at this time require.
Watts, W. & Co. V. Unione Austriaca
di Navigazione, 248 U. S. 9, 63 L. ed.
100, 3 A.L.R. 323, 39 Sup. Ct. Rep. 2;
6 1 L. eil.
Crozier v. Fried. Krupp Aktiengesell-
schaft, 224 U. S. 290, 56 U ed. 771, 32
Sup. Ct. Rep. 488.
The Ohio decree established, as against
the defendant Wagn^ of the Ohio suit,
the right of Meccano, Limited, to pre-
vent the making and selling of the un-
lawful American Model Builder product,
and that right ought to be recognized in
a suit against Wagner's customer, de-
fended by him.
P^field V. Potts, 61 C. C. A. 371, 126
Fed. 479; Sacks v. Kupferie, 127 Fed.
569; Warren Featherbone Co. v. De
Camp, 154 Fed. 198.
The Ohio decree should have been up-
held and enforced in the present suit,
both as to the grant of preliminary in-
junction and as to petitioner's motion
for a decision on the merits, canying a
permanent injunction and an- account-
ing.
Forsyth v. HanMUond, 166 U. S. 506,
41 L. ed. 1095, 17 Sup. Ct. Rep. 665;
New Orleans v. Citizens' Bank, 1,67. U. S.
371, 379, 42 L. ed. 202, 204, 17 Sup. Ct.
Rep. 905; Southern P. R. Co. .v. United
States, supra; Bates v. Bodie, 245 U. S.
520, 62 L. ed. 444, L.R.A.1918C, 355, 38
Sup. Ct. Rep. 182; Case v. Beauregard
(Case V. New Orleans & C. R. Co.) 101
U. S. 688, 25 L. ed. 1004; HubbeU v.
United States, 171 U. S. 203, 43 L. ed.
136, 18 Sup. Ct. Rep. 828.
Regardless of identity of . issues and
identity or privity of parties in the two
suits, the decision and decree of the
court of appeals for the sixth circtut, a
court of co-ordinate jurisdiction, should
have been accepted and enforced by the
court of appeals for the second drouit,
as conclusively supporting the grant of
preliminary injunction in this case, in-
volving identically the same product as
was held unlawful in the sixth circuit
case.
.National Foundry & Pipe Works ▼•
Oconto Water Supply Co. 183 U. S.
216, 46 L. ed. 157, 22 Sup. Ct. Rep. 111-^
Hancock Nat. Bank v. Famum, 176 U.
S. 640, 44 L. ed. 619, 20 Sup. Ct. Rep.
506; Penfield v. Potts, 61 C. C. A. 371,.
126 Fed. 475; Westinghouse Electric &
Mfg. Co. V. Stanley Instnmient Co. 6B
C. C. A. 523, 133 Fed. 167; Gold v.
Newton, 166 C. C. A. 270, 254 Fed. 824.
The judgment in the Ohio suit should
also be upheld and applied under the
rule that the finding of a trial court,
based upon testimony given in open
court, must be treated as unassailable.
Adamson v. Gilliland, 242 U. S. 350^
351, 61 L. ed. 356, 357, 37 Sup. Ct. Rep.
169; United States v. United Shoe Ma-
82S
iSfPiiKAij-: curitx of thk lnitkd states.
Oct. Tebm,
>
chinery Co. 247 U. S. 3J, (32 L. ed. 908,
38 Sup. Ct. Kep. 473; L. A. Wester-
mann Co. v. Di.spatcb Printing Co. 147
C. C. A. 417, 233 Fed. 009; Luten v.
Sharp, 148 C. C. A. 478, 234 Fed. 880;
Gibson v. American Grapho phone Co.
148 C. C. A. 399, 234 Fed. 033.
The order granting a preliminary in-
junction should have been allirmed by
the court of appeals for the second cir-
cuit under the established rule that such
an order will not be disturbed unless it
is clearly shown that, in granting it, the
district court improvident ly exercised or
abused its legal discretion. Supported
as it is by the unanimous opinions and
judgments of four judges in the sixth
circuit, the New York district court
would have failed to exercise proper dis-
cretion had it refused the injunction.
Rahley v. Columbia Phonograph Co.
58 C. C. A. 639, 122 Fed. 625; Neff v.
Coffield Motor Washer Co. 127 CCA.
24, 210 Fed. 166; Blount v. Society
Anonyme, 3 C C A. 455, 0 U. S. App.
335, 63 Fed. 100; Ma^nuder v. Belle
Fourche Vallev Water I'sers' Asso. 133
C. C. A. 524, 219 Fed. 82; Duplex Print-
ing-Press Co. v. Campbell Print ing-
Press & Mfg. Co. 16 C C. A. 220, 37
U. S. App. 250, 60 Fell. 252; Kings
County Raisin & Fruit Co. v. United
States Consol. ScecTed Raisin Co. 104 C
C A. 499, 182 Fed. 60; Stearns-Roger
Mfg. Co. V. Brown, 52 C C. A. 559, 114
Fed. 939.
This court may grant the relief sought.
Mast, F. & Co. V. Stover Mftr. Co. 177
U. S. 485, 44 L. ed. 856, 20 Sup. Ct.
Rep. 708; Hart Steel Co. v. Railroad
Supply Co. 244 U. S. 294, 61 L. ed.
1148, 37 Sup. Ct. Rep. 50C; Rock Spring
DistUling Co. v. W. A. Gaines & Co.
246 U. S. 312, 62 L. ed. 738, 38 Sup. Ct.
Rep. 327; Hanover Star Mill. . Co. v.
Metcalf, 240 U. S. 403, 408, 60 L. ed.
713, 716, 36 Sup. Ct. Rep. 357.
This court has been asked to intervene
in this suit upon the ground that the
judgment in the Ohio suit (right or
wrong) is controlling and conclusive in
the New York suit, and this court will
confine its discussion and consideration
to the matters relied upon in asking the
intervention of this court.
Alice State Bank v. Houston Pasture
Co. 247 U. S. 240, 62 L. ed. 1006, 38
Sup. Ct. Rep. 496.
This court will not pass upon the mer-
its of the questions of unfair competi-
tion and copyright infringement for the
further reason that the court of appeals
for the second circuit has, by statute,
final jurisdiction over those matters; and
S24
that court has not yet finally adjudicated
such matters, but has only decided that
the same have not been sutliciently estab-
lished by the showing in support of pre-
liminary injunction motion.
Lutcher & M. Lumber Co. v. Knight^
217 U. S. 257, 54 L. ed. 757, 30 Sup. Ct
Rep. 505; Marconi Wireless Teleg. Co.
V. Simon, 240 U. S. 46, 62 L. ed. 668,
38 Sup. Ct. Rep. 275; Brown v. Fletch-
er, 237 U. S. 583, 59 L. ed. 1128, 35
Sup. Ct. Rep. 750; Hubbard v. Tod, 171
V, S. 474, 43 L. ed. 246, 10 Sup. Ct.
Rep. 14; Leeds & C Co. v. Victor Talk-
ing Mach. Co. 213 U. S. 301, 53 L. ed.
805, 29 Sup. Ct. Rep. 495.
The decision and decree in the Ohio
suit are a final adjudication that the
American Model Builder product consti-
tutes unfair competition and cop3rright
infringement, and that adjudication is
not before this court for review. The
question of law here is the effect* to be
given that adjudication in the present
case.
Eagle Glass & Mfg. Co. v. Rowe, 245
U. S. 275, 62 L. ed. 286, 38 Sup. Ct.
Rep. 80.
Mr. H. A. Tonlmin argued the cause,
and, with Mr. H. A. Toulmin, Jr., filed
a brief for respondent:
The decree which* it is contended the
court of appeals for the second circuit
should have followed is purely interloc-
utory.
Hills & Co. V. Hoover, 142 Fed. 904;
Brush Electric Co. v. Western Electric
Co. 22 C C A. 543, 46 U. S. App. 355,
76 Fed. 761; Ogden City v. Weaver, 47
C. C. A. 485, 108 Fed. 564; Australian
Knitting Co. v. Gormly, 138 Fed. 92;
Keystone Manganese & Iron Co. v. Mar-
tin, 132 U. S. 91, 33 L. ed. 275, 10 Sup.
Ct. Rep. 32; McGourkey v. Toledo ft O.
C. R. Co. 146 U. S. 536, 36 L. ed. 1079.
13 Sup. Ct. Rep. 170; Barnard v. Gil»-
son, 7 How. 650, 12 L. ed. 857; Humis-
ton V. Stainthorp, 2 Wall. 106, 17 L. ed.
905; Estey v. Burdett, 109 U. S. 633,
037, 27 L. ed. 1058, 1059, 3 Sup. Ct.
Rep. 531; Hohorst v. Hamburg- Ameri-
can Packet Co. 148 U. S. 262, 37 I^ ed
443, 13 Sup. Ct. Rep. 590; Smith v.
VulcAn Iron Works, 165 U. S. 518, 41
L. ed. 810, 17 Sup. Ct. Rep. 407; Cal-
ifomia Nat. Bank v. Stateler, 171 U. S.
447, 449, 43 L. ed. 233, 234, 19 Sup. €t.
Rep. 6; Craighead v. Wilson, 18 How.
199, 15 L. ed. 332; Beebe v. Russell, 19
How. 283, 15 L. ed. 668; Lodge v. Twell,
135 U. S. 232, 34 L. ed. 163, 10 Sup. Ct.
Rep. 745; Union Mnt. L. Ins. Co. v.
Kirchoff, 160 U. S. 374, 40 L. ed. 461,
16 Sup. Ct. Rep. 318; Hollander v.
S5S 17. 8.
1919.
MKICAXO V. WAXAMAKEK.
137-140
Feehkeimer, 162 U. B. 326, 40 L. ed.
d?5, 16 Sup. Ct Rep. 795.
llie MNirt of appeals for the second
oireuit was rigiit in making its own de-
eisioiu
Mast, F. ft Co. V. Stover Mfg. Co. 177
U. S. 485, 44 L. ed. 856, 20 Sup. Ct.
Rep. 708; Consolidated Rubber Tire Co.
▼. Diamond Rubber Co. 85 C. G. A. 349,
167 Fed. 677.
Mr. Justice McReynolds delivered the
opinion of the court:
Proceeding against Wagner and others
in the United Stat^ district court, south-
ern distriot of Ohio, Meccano, Limited,
obtained a decree (July 8, 1916) affirm-
ing the validity, and restraining infringe-
ment, of its pmtent for mechanieal toys;
also restraining unfair competition in
making and selling such toys and the fur-
ther infringement of its copyright upon
trade catalogue and illustrated [138]
manual relating thereto. 234 Fed. 912. An
appeal was taken to the circuit court of
appeals, sixth circuit. The same corpo-
ration instituted the present suit in the
United States district court, southern
district of New York (December 9, 1916),
seeking like relief against John Wana-
maker, a customer of Wagner.
The trial court granted a preliminary
injunction, asked upon the bill, support-
ing affidavits, and exhibits, January 12,
1917. It expressed general agreement
with the conclusions announced in the
Ohio eause and said : '^It seems quite ap-
parent that the patent is infringed and
that diagrams and directions as to con-
struction have been borrowed by defend-
ant from complainant's copyrighted
catalogues, and that the system of con-
struction adopted by the defendant is a
direct imitation of complainant's system."
An appeal followed; pending which the
circuit court of appeals, sixth circuit
(November, 1917), reversed the Ohio dis-
trict court's decree so far as it sustained
the patent, approved it otherwise, and re-
manded the cause for further proceedings.
158 C. C. A. 673, 246 Fed. 603.
January 25, 1918, after argument, but
before determination of appeal from the
preliminary order, petitioner moved for
6nal decision on the merits, claiming that
the decree of the circuit cdurt of appeals,
sixth circuit, "is final and conclusive as
to the case at bar, under principles enun-
ciated by the Supreme Court." Being
opposed, the motion wos denied March
24, 1918. The coui-t said of it:
"This was a motion for a decision on
the merits of this cause I)y this court
linder the iolloxvii):^ cirouiu'^tanccs: A
6", li. od.
suit was brought in the district court for
the southern district of New York for an
injunction for infringement of a copy-
right, and of a pateut, and for unnur
competition in the manufacture of a me-
chanical toy in absolute imitation of the
plaintiff's. The plaintiff applied for* and
got [189] an in i unction pend^ite lite,
from which the defendant appealed. That
appeal is still pending undetermined in
this court. Meanwhile the plaintiff had, in
the district court, required the defendant
to answer certain interrogatories by
which it appeared that the defendant pro-
cured from one Wagner the toys which it
sold in allied unfair competition and in
violation of the patent, and also the
'manuals' which went with the toys and
explained their uses, which are alleged to
infringe the copyright. The interroga-
tories further showed that Wagner had
agreed to hold the defendant harmless for
any sales of the toys and manuals, and
that in pursuance of that undertaking he
had taken a share in the defense of this
suit. While it did not appear exactly
what that share was, it may be assumed,
for the purposes of the motion only, that
Wagner has assumed the chief conduct of
the case, and that the defendant remains
only formally represented.
"The plaintiff sued Wagner in Ohio
upon the three same causes of equity and
obtained a decree upon all. Later, an
appeal was taken to the circuit court of
appeals for the sixth circuit and the de-
cree was ailirmed except as to the patent,
which was declared invalid, and which
the plamtiff has now withdrawn from Oiis
suit. No final decix^e has been entered,
and the Ohio cause now stands for an ac-
counting in the district court. This mo-
tion is upon the record in the Ohio suit,
which is made a part of the moving
papers, and it presupposes that this eourt
may pass a final decree for the plaintiff
upon the appeal from £he injunetion
pendente lite upon the assumption that
that record is a complete estoppel against
the defendant here, and leaves open no
issues for determination between the
parties."
"We pass the question of practice
whether this court, under the doctrine of
Mast, F. & Co. V. Stover Mfg. Co. 177
U. S. 488, 44 L. ed. 858^ 20 Sup.
Ct. Rep. 708, may enter a deeree for
the plaintiff upon such, [140] an ap-
peal as that now pending. Mast, F. &
Co. V. Stover, supra, was a case Vhere
the bill was dismissed, and no case
has so far held that the plaintiff could
obtain an afTirraative decree. As we think
the motion must be denied upon the
82. -V
140-142
SUPREME COl UT OF TUE UNITED STATES.
Oct. Tkkm.
merits, we leave open the question
whether the plaintiff may, in any event,
«o terminate the litigation. . . . ' It ui
apparent that some of the issues are dif-
ferent from those litigated in Ohio; they
involve not only the defendant's rights to
sell 'Wagner's toys and manuals, but any
others which it may procure elsewhere.
... At best the rule in Mast, F. & Co.
V. Stover Mfg. Co. supra, is limited to
those cases in which the court can see
that the whole issues can be disposed of
-at once without injustice to the parties.
Whatever may be the result here, it is
apparent that the case involves more
than can be so deeided."
April 15, 1918, the court below re-
versed the challenged preliminary order.
After stating that the trial court very
naturally followed the Ohio district
court, it referred to the partial reversal of
the decree there announced, and ex-
pressed ^tire agreement with the circuit
court of appeals, sixth circuit, in holding
the patent invalid. And, having consid-
ered the evidence relating to copyright
and unfair competition, it found no ade-
quate ground for an injunction. 162 C.
€. A. 520, 250 Fed. 450. The cause
comes here by certiorari. See Ex parte
Wagner, 249 U. S. 465, 63 L. ed. 709, 39
Sup. Ct. Rep. 317.
Decrees by circuit courts of appeals
•are declared final by § 128, Judicial Code
[36 Stat, at L. 1133, chap. 231, Comp.
Stat. § 1120, 5 Fed. Stat. Anno. 2d ed.
p. 607], in cases like the present one.
We, therefore, had authority to bring this
cause up by certiorari, and may treat it
as if here on appeal. Section 240, Judi-
■cial Code; Harriman v. Northern Securi-
ties Co. 197 U. S. 244, 287, 49 L. ed. 739,
760, 25 Sup. Ct. Rep. 493 ; Denver v. New
York Trust Co. 229 U. S. 123, 136, 57 L.
ed. 1101, 1121, 33 Sup. Ct. Rep. 657.
The power of circuit courts of appeals
to review preliminary orders granting in-
junctions arises from § 129, Judicial Code,
which has been of ten considered. Smith v.
Vulcan Iron Works, 165 U. S. 518, 41 L.
ed. 810, 17 Sup. Ct. Rep. 407; [141]
Mast, F. & Co. V. Stover ^ffpr. Co. 177 U.
fi. 485, 494, 44 L. ed. 856, 860, 20 Sup.
Ct. Rep. 708; Harriman v. Northern Se-
curities Co. supra; United States Fidelity
& G. Co. V. Brav, 225 U. S. 205, 214, 56
L. ed. 1055, 1061. 32 Sup. Ct. Rep. 620;
Denver v. New York Trust Co. supra.
This power is not limited to mere eon-
siderAion of, and action upon, the order
appealed from; but, if insuperable ob-
jection to maintaininsr the bill clearly
-appears, it may he dismissed and the liti-
gation terminatod.
82e
The correct general doctrine is that
whether a preliminary injunction shall be
awarded rests in sound discredon of the
trial court. Upon appeal, an order
granting or denying such an injunetiaii
will not be disturbed unless contrary to
some rule of equity, or the result of im-
provident exercise of judicial discretion.
Rahley v. Columbia Phonograph Co. 58
C. C. A. 639, 122 Fed. 623; Texas Trac-
tion Co. V. Barron G. Collier, 115 C. C.
A. 82, 195 Fed. 65, 66; Southern Exp.
Co. V. Long, 120 C. C. A. 668, 202 Fed.
462; AmarUlo v. Southwestern Teleg. &
Teleph. Co. 165 C. C^A. 264, 253 Fed.
638. The informed judgment of the cir-
cuit court of appeals, exercised up<m a
view of all relevant circumstances, is en-
titled to gpreat weight. And^ except for
strong reasons, this court will not. inter-
fere with its action. No such reasons are
presented by the present record.
Pending the New York appeal, Ihe sit-
uation underwent a radical change^-^tho
circtdt court of appeals, sixth circuit, re-
versed the decree, upholding petiticmer's
patent.^ Evidently the trial court had
granted* the preliminary injunction in en-
tire reliance upon that decree, and after
its reversal the court below properly took
notice of and considered the changed cir-
cumstances. Gulf, C. & S. F. R. Co. ▼.
Dennis, 224 U. S. 503, 605, 506, 56 L.
ed. 860-862, 32 Sup. Ct. Rep. 542.
Petitioner maintains that its motion
for 6nal decree upon the merits should
have been sustained. But the appeal was
from an interlocutory order, and the
court could only exercise powers given
by statute. On such an appeal a cause
may be dismissed if it clearly appears
that [142] no ground exists for equita-
ble relief; but finally to decide a de-
fendant's rights upon the mere state-
ment of his adversary, although ap>
parently supported by. ex parte affi-
davits and decrees of other courts.
is not within the pun-iew of the act.
He is entitled to a day in court,
with opportunity to set up and establish
his defenses. The motion for final judg-
ment was properly overruled. Eagle
Glass & Mfg. Co. V. Rowe, 245 U. S.
275, 281, 62 L. ed. 286, 289, 38 Sup. Ct.
Rep. 80.
Petitioner's motion to enter a disclaim-
er must be denied.
If the two circuit courts of appeals
have expressed conflicting views, we can-
not now declare which is right, or under-
take finally to decide the several issues
involved upon their merits. The matter
for review here is the action of the
courts below upon the preliminary ordet
96S TT. S.
1019.
O'CONXELL V. UNITED STATES.
142
for injunction, and we rnav go no fur-
ther. Leeds & C. Co. v. Victor Talking
Macb. Co. 213 U, S. 301, 311, 53 L. ed.
805, 809, 29 Sup. Ct. Rep. 495; Lutcher
A M. Lomber Co. v. Knight, 217 U. S.
257, 267, 64 L. ed. 757, 761, 30 Sup. Ct.
Rep. 505. •
The judgment of the Circuit Court of
Appeals is afiSimed. The cause will be
remanded to the District Court for fur-
ther proceedings in conformity with this
opinion*
DANIEL O'CONNELL et al., Plffs. in Err.,
V.
UNITED STATES.
(See 8. a Reporter's ed. 142-148.)
Appeal -• bill of ezoeptioas — time of
tiling. •
1. The trial court could not, without
the consent of the adverse party, extend
the time for filing a bill of exceptions by
an order made after the term had expired,
and subsequent to the day to which the
term was extended, by a general rule for
the purpose of filing such bills.
{For other cnRes, see Appeal and Error, V. s, 8,
In Digest Sup. Ct. 1008.]
Appeal — bill of exceptions — when
filed too late.
2. The Federal Supreme Court may not
consider a bill of exceptions not presented
until after the power of the trial court
over the same had expired.
[For other cases, see Appeal and Error, V. s, 8,
in Digest Sup. Ct. 1908.]
Constitutional law — power of Con-
gress — Selective Service Act —
Espionage Act.
3. The Selective Service Act of May 18,
1917, and the Espiona^ Act of June 15,
1917, are constitutional.
(For other cases, see Constitutional I^w, IV.
d; Army and Navy, IV. in Digest Sup. Ct.
1908.]
Appeal — reversible <^rro^ — verdict —
in criminal case.
4. A verdict on the trial of an indict-
ment containing two counts whicii Ands de-
fendants "guilty on the count of the
indictment, and on the count of
Note. — ^As to when exceptions must
be taken to be available on review — see
note to Phelps v. Mayer, 14 L. ed. U. S.
643.
ft)r a review of decisions under the
Espionage Act of June 15, 1917 — see
note to United States v. Krafft, L.R.A.
1918F, 410.
As to validity of legislation directed
against social or industrial propaganda
deemed to be of a dangerous tendency' —
see note to State v. Moilen, 1 A.L.R.
336.
^4 L. ed.
tlie indictment," will be regarded on writ
of error as a general verdict of guilty upon
both counts, where apparently a printed
form was used ii^ preparing the jury's ver-
dict, and wlien presented no objection was
made to its form or wording, neither tlie
motion for new trial nor in arrest of judg-
ment indicating any such objection, and de-
fendants mentioning none when called upon
to show why sentence should not be imposed.
[Por other cases, Boe Appeal and Error. VlII.
m, 7, in Digest Sup. Ct. Ii)08.]
Conspiracy — obstructing recrnicing
and enllstnieut service — Espionage
Act.
6. The Espionage Act of June 15, 1917,
§ 3, makes criminal a conspiracy to obstruct
the recruiting and enlistment service of the
United States by inducement or persuasion.
[For other catn^K, see Conspiracy, II. In Digest
Sup. Ct. 1008. J
Conspiracy — to violate Selective Serv-
ice Act — nonofficlals.
6. Nonofficial persons may be convicted
of a conspiracy to violate the provisions of
the Selective Service Act of Amy 18, 1917,
§ 6, that any person who shall make or be
a party to the making of any false state-
ment or certificate as to the fitness or lia-
bility of himself or any other person for
service under the provisions of this act,
or regulations made by the President tliere-
under, or otherwise evades or aids another
to evade the requirements of this act or of
said regulations, shall be guilty of a misde-
meanor.
[For other cases, see Conspiracy, II. in Digest
Sup. Ct. 1908.]
[No. 221.]
Argued April 23 and 26, 1920. Decided May
17, 1920.
IN ERROR to the District Court of the
United States for the Northern Dis-
tiict of California to review convictions
for conspiring to violate the Selective
Service and Espionage Acts. Affirmed.
The facts are stated in the opinion.
Mr. Gilbert £. Boe argued the cause,
and, with Messrs. Daniel O'Connell and
Carl J. F. Wacker, pro sese, and Messrs.
Joseph L. Tepper and Seth Shepard,
Jr., filed a brief for plaintiffs in error:
Prejudice is presumed from error un-
less it clearly appears beyond all doubt
from the record that the error could not
and did not prejudice.
Smith V. Shoemaker, 17 Wall. 630,
639, 21 L. ed. 717.
The Espionage Act, or any act of
Congress, or any construction of an act
of Congress (and such construction
thereby becomes a part of the statute)
which in the slightest degree, directly or
indirectly, abridges the freedom of the
press, or freedom of speech, or the right
to peaceably assemble, to consider, crit-
82T
SL PKKMK COL'RT UF THK UXITKD STATES.
Oct.
)
icize, deuouuce^ or demand the change
or repeal ol* any act or policy of the na-
tional or state government, no matter on
what groiin<l or reason .that aKempt to
abridge is placed, is a plain violation of
the Constitution of the United States
and also of the Constitution of the state
of California, and absolutely without
power, and null and void.
People V. Brudy, 40 Cal. 198, 6 Am.
Rep. G04; New Orleans v. Abbagnato,
20 L.R.A. 334, 10 C. C. A. 3(U, 23 U. S.
App. 533, 62 Fed. 245; Western U.
Telcg. Co. V. Pendleton, 95 Ind. 15, 48
Am. Rep. 695; Monongahela Nav. Co. v.
United States, 148 U. S. 324, 37 L. ed.
467, 13 Sup. Ct. Rep. 622; Re Quarles,
158 U. S. 535, 39 L. ed. 1081, 15 Sup.
Ct. Rep. 959; Atchison, T. & S. F. R.
Co. V. Denver & N. 0. R. Co. 110 U. S.
679, 28 L. ed. 296, 4 Sup. Ct. Rep. 185;
Wilson v. Shaw, 204 U. S. 31, 51 L. ed.
355, 27 Sup. Ct. Rep. 233; Way man v.
Southard, 10 Wheat. 50, 6 L. ed. 264;
Brown v. Maryland, 12 Wheat. 439, 6
L. ed. 685; United States v. Cmikshank,
92 U. S. .')52, 23 L. ed. 591; People v.
Seeley, 139 Cal. 118, 72 Pac. 834 ; Dailey
v. Superior Ct. 112 Cal. 94, 32 L.R.A.
273, 53 Am. St. Rep. 160, 44 Pac. 458.
Desirability, no matter how great,
and circumstances, no matter how
strong and meritorious, will not give
Congn^ss any power to legislate, nor
persuade this court to approve any such
attempted legislation.
Buchanan v. Warley, 245 U. S. 60, 62
L. ed. 149, L.R.A.1918C, 210, 38 Sup.
Ct. Rep. 16, Ann. Cas. 1918C, 1201;
Hammer v. Dagenhart, 247 U. S. 251,
62 L. ed. 1101, 3 A.L.R. 649, 38 Sup. Ct.
Rep. 529, Ann. Cas. 191 8E, 724; Ex
parte MiUigan, 4 Wall. 2, 18 L. e<l. 281.
Acts and declarations before the for-
mation of the conspiraey are not admis-
sible.
People v. Parker, 67 Mich. 222, 11
Am. St. Rep. 578, 34 N. W. 720; Lang-
ford V. State, 130 Ala. 74, 30 So. 503;
Paul V. State, 12 Tex. App. 346.
It is necessary that first proof of the
conspiracy be made.
Winchester & P. Mfg. Co, v. Crearv,
116 U. S. 161, 29 L. ed. 591, 6 Sup. Ct.
Rep. 369.
A bare suspicion of collusion or con-
cert or understanding is not sufficient to
admit evidence of acts or declarations of
defendants.
Hart V. ITopson, 52 Mo. App. 177;
Ben ford v. Sanner, 40 Pa. 9, 80 Am.
Dec. 54.'); People v. Stevens, 68 Cal. 113,
8 Pac. 712: Hcnrich v. Saier, 124 Mich.
86. 82 N. W. 871).
828
Even though it was by the joint act
of the defendants, if it w^as not done in
pursuance of the conspiracy, it was not
iidmissible.
Sparf V. United States, 156 U. S. 56^
39 L. ed. 345, 15 Sup. Ct. Rep. 273, 10
Am. Crim. Rep. 168.
The existence or nature of a conspir-
acy cannot be established by the acts or
declaration of one conspirator, in the
absence and without the knowledge or
concurrence of the others.
United States v. Babcock, 3 Dill. 585,.
Fed. Cas. No. 14,487; Rea v. Missouri,.
17 Wall. 532, 21 L. ed. 707; Winchest^^
& P. Mfg. Co. V. Creary, supra; United
States V. Newton, 52 Fed. 275; People
V. Irwin, 77 Cal. 494, 20 Pac. 56; Cayler
V. McCartney, 40 N. Y. 221; Blain v.
State, 33 Tex. Crim. Rep. 236, 26 S. W.
03; United States v. McKce, 3 Dill. 546,
Fed. Cas. No. 15,685; People v. Parker,
supra; Dealy v. United Slates, 152 U. S.
530, 38 L. ed. 545, 14 Sup. Ct. Rep. 680,
9 Am. Crim. Rep. 161; United States v.
Grodson, 164 Fed. 157; United States v.
Richards, 149 Fed. 443; Wilson t. Peo-
ple, 94 111. 299; State v. Moberly, 121
Mo. 604, 26 S. W. 364; GiU v. SUte, 5^
Tex. Crim. Rep. 202, 119 S. W. 684, 17
Ann. Cas. 1164; McDonald v. Peopfe,
126 111. 150, 9 Am. St. Rep. 547, 18 N.
E. 817, 7 Am. Crim. Rep. 137.
Only those acts and declarations of
one conspirator are admissible which are
done and made while the conspiracy is
pending, and in furtherance of its ob-
ject.
Logan V. United States, 144 U. S. 264,
309, 3() L. ed. 430, 445, 12 Sup. Ct Rep.
617; Brown v. United States, 150 U. S,
98. 37 L. ed. 1013, 14 Sup. Ct. Rep. 37.
The government failed to offer any ev-
idence to prove the offenses charged in
the indictment, and the district court
should have granted the motion to quash
the indictment and direct an acquittal at
the close of the government's evidence.
Frohwerk v. United States, 249 U. S.
204. 63 L. ed. 561, 39 Sup. Ct. Rep. 249;
Williamson v. United States, 207 U. S.
426, 449, 52 L. ed. 278, 291, 28 Sup. Ct.
Rep. 163; United States v. Newton, 52
Fed. 275; United States v. Cassidy, 67
Fed. 698; Hopt v. Utah, 114 U. S. 488,
29 L. ed. 183, 5 Sup. Ct. Rep. 972; J«hn-
son V. United States, 225 U. S. 405, 56
L. ed. 1142, 32 Sup. Ct. Rep. 748; Wi-
borg v. United States, 163 U. S. 632, 41
L. ed. 289, 16 Sup. Ct. Rep. 1127, 1197;
People V. Powell, 63 N. Y. 88; SUte,
Wood, Prosecutor, v. State, 47 N. J. L.
461, 1 Atl. 509, 5 Am. Crim. Rep. 123;
4 People V. Flack, 125 N. Y. 324, 11
25S r. 6.
1910.
O'CONXKI.L V. rxn KJ) STATKS.
L.R.A. 807, 2G N. K. 2C7; Pretlvn.an v.
United States, 103 C. C. A. 384, iso Fed.
43; Cruickshank v. Bidwell» 17G L*. S.
73, 44 L. ed. 377, 20 Sup. Ct. Ke^- *-^8U;
Williams v. State, 81 Ala. 1, (50 Am.
Bep. 133, 1 So. 179, 7 Am. dim. Rep.
443; Lyons v. State, 30 Tex. App. 642,
18 S. W. 416; 8 Cyc. 642; Myere v.
State, 43 Fla. 500, 31 So. 275; Handley
V. State, 115 Ga. 584, 41 S. E. 992, 15
Am. Crim. Rep. 94.
Matters of mere opinion, or expres-
sions of opinion, do not come within the
■act
Sandberg v. United States, 168 C. C.
A. 593, 2o7 Fed. 643; Shidler v. United
States, 168 C. C. A. 570, 257 Fed. 620.
The district court committed plain er-
rors in the charge to the jury.
Masters v. United States, 42 App. D.
C. 350, Ann. Cas. 1916A, 1243 ; Breese
V. United States, 48 C. C. A. 36, 108
Fed. 804; Beard v. United States, 158
U. S. 554, 564, 39 L. ed. 1088, 1002, 15
Sup. Ct. Rep. 962, 9 Am. Crim. Rep.
324; Bird v. United States, 180 U. S.
362, 45 L. ed. 573, 21 Sup. Ct. Rep. 403;
Allison V. United States, 160 U. S. 203,
212, 40 L. ed. 395, 399, 16 Sup. Ct. Rep.
252, 10 Am. Crim. Rep. 432; Williams
V. United States, 88 C. C. A. 296, 158
Fed. 30; Hibbard v. United States, 90
C. C. A. 554, 172 Fed. 66, 18 Ann. Cas.
1040; Mills v. United States, 164 U. S.
644, 41 L. ed. 584, 17 Sup. Ct. Rep. 210;
Reagan v. United States, 157 U. S. 30l,
39 L. ed. 709, 15 Sup. Ct. Rep. 610;
Hicks V. United States, 150 U. S. 442, 37
L. ed. 1137, 14 Sup. Ct. Rep. 144; San-
dals V. United States, 130 C. C. A. 149,
213 Fed. 569; Rudd v. United States, 97
C. C. A. 462, 173 Fed. 912; Mullen v.
United States, 46 C. C. A. 22, 106 Fed.
892; Stewart v. United States, 127 C. C.
A. 477, 211 Fed. 41; Starr v. United
States, 153 U. S. 614, 38 L. ed. 841, 14
Sup. Ct. Rep. 919; Thompson v. United
Stetes, 155 U. S. 271, 281, 39 L. ed. 146,
151, 15 Snp. Ct. Rep. 73, 9 Am. Crim.
Rep. 209; Hickorv v. United States, 160
U. S. 408, 422, 425, 40 L. ed. 474, 479,
480, 16 Sup. Ct. Rep. 327; Cornelius v.
Com. 15 B. Mon. 539.
The punishment being different for
each count, evidence having been offered
on both counts which was insufficient to
support either of the two counts, and
the general verdict of guilty, make it
impoesible to say on wMch count they
were convicted, and there must be a new
trial.
People v. Mitchell, 92 Cal. 500, 28 Pac.
597; People v. Garnett, 129 Cal. :J65, 61
Pac- 1114; People v. Lee Yiine Chong,
«4 Ti. etl.
1)4 C'ul, 386, 29 Pac! 776; People v. Ep-
pinger, 109 Cal. 297, 41 Pac. 1037.
Messrs. Gilbert E. Roe and Joseph Ti.
Tepper also filed a separate brief for
plainti^'s in erroir:
The verdict is fatally defective.
Campbell v. Reg. 11 Q. B. 799, 116
Eng. Reprint, 674, 2 New. Sess. Cas. 297,
17 L. J. Mag. Cas. N. S. 89, 12 Jur. 117,
2 Cox, C. C. 463, affirmed on error to
the Exchequer Chamber, 11 Q. B. 814,
116 Eng. Iteprint, 680; Day v. People,
76 111. 380 ; Seott v. State, 4 Okla. Crim.
Rep. 70, 109 Pac. 240; State v. Snider,
32 Wash. 299, 73 Pac. 355; Holmes v.
State, 58 Neb. 297, 78 N. W. 641 ; State
V. King, 194 Mo. 474, 92 S. W. 670;
Patterson v. United States, 2 Wheat.
221, 4 L. ed. 224; Garland v. Davis, 4
How. 131, 11 L. ed. 907; Wiborg v.
United States, 103 U. S. 632, 41 L. ed.
289, 16 Sup. Ct. Rep. 1127, 1197; Clyatt
V. United States, 197 U. S. 207, 49 L. ed.
726, 25 Sup. Ct. Rep. 429; Crawford v.
United States, 212 U. S. 183, 53 L. ed.
465, 29 Sup. Ct. Rep. 260, 15 Ann. Cas.
392; Weems v. United States, 217 U. S.
349, 54 L. ed. 793, 30 Sup. Ct. Rep. 544,
19 Ann. Cas. 705; Williams v. United
States, 88 C. C. A. 296, 158 Fed. 30;
Morse v. United States, 98 C. C. A. 321,
174 Fed. 539, 20 Ann. Cas. 938; Humes
V. United States, 105 C. C. A. 158, 182
Fed. 486; Pettine v. New Mexico, 119
C. C. A. 581, 201 Fed. 489; Gillette v.
United States, 149 C. C. A. 405, 236 Fed.
218; Oppeuheim v. United States, 154 C.
C. A. 38.1, 241 Fed. 628; Taylor v.
United States, 156 C. C. A. 607, 244
Fed. 324; United States v. Perez, 9
Wheat. 579, 6 L. ed. 165; Simmons v.
United States, 142 U. S. 148, 35 L. ed.
968, 12 Sup. Ct. Rep. 171.
The court erred in refusing to direct
a verdict of not guilty at the conclusion
of all the evidence, on the ground that
the conspiracy charged in the indictment
had not been proved.
United States v. Hirsch, 100 U. S. 33,
25 L. ed. 539 ; Pettibone v. United States,
148 U. S. 197, 203, 37 L. ed. 419, 422. 13
Sup. Ct. Rep. 542; Logan v. United
States, 144 U. S. 263, 309, 36 L. ed. 429,
445, 12 Sup. Ct. Rep. 617; Brown v.
United States, 150 U. S. 93, 98, 37 L. ed.
1010, 1013, 14 Sup. Ct. Rep. 37; Win-
chester & P. Mfg. Co. v. Creary, 116 U.
S. 161, 29 L. ed. 591, 6 Sup. Ct Rep.
369; Union Pacific Coal Co. v. United
Stotes, 97 C. C. A. 578, 173 Fed. 737;
Langford v. State, 130 Ala. 74, 30 So.
503; Jones, Ev. § 254; Greenl. Ev. 16th
ed. § 94; Ahrams v. United States, 250
929
SUrUEMK COl'KT OF THE IMTED STATES.
Oct. Ts&Mr
U. S. 616, 63 L. ei\! 1173, 40 Sup. Ct.
Rep. 17.
The court erred in the adiiiiission of
pvideiice.
Sparf V. United States, 156 U. S. 61,
39 L. ed. 343, 15 Sup. Ct. Rep. 273, 10
Am. Crim. Rep. 168.
The learned trial judge erred in his
charge to the jury.
Hickoi7 V. United States, 160 U. S.
408, 40 L. ed. 474, 16 Sup. Ct. Rep. 327 ;
Allison V. United States, 160 U. S. 203,
40 L. ed. 395, 16 Sup. Ct. Rep. 252, 10
Am. Crim. Rep. 432; Thompson v. Unit-
ed States, 155 U. S. 271, 39 L. ed. 146,
15 Sup. Ct. Rep. 73, 9 Am. Crim. Rep.
209; Bird v. United States, 180 U. S.
356, 45 L. ed. 570, 21 Sup. Ct. Rep. 403;
Beard v. United States, 158 U. S. 554',
39 L. ed. 1088, 15 Sup. Ct Rep. 962, 9
Am. Crim. Rep. 324; Oppenheim v.
United States, 154 C. C. A. 383, 241 Fed.
625; United States v. Baker, 247 Fed.
124; Masses Pub. Co. v. Patten, 244 Fed.
535; L.R.A.1918C, 79, 158 C. C. A. 250,
246 Fed. 24, Ann. Cas. 1918B, 999.
The bin of exceptions was duly settled
and signed, and is properly before this
court for consideration.
Hunnicutt v. Peyton, 102 U. S.. 333,
356, 26 L. ed. 113, 116 ; United States v.
BreitUng, 20 How. 252, 15 L. ed. 900;
Davis V. Patrick, 122 U. S. 138, 30 L. ed.
1090, 7 Sup. Ct. Rep. 1102; Waldron v.
Waldron, 156 U. S. 361, 39 L. ed. 453,
15 Sup. Ct. Rep. 383; Yellow Poplar
Lumber Co. v. Chapman, 20 C. C. A.
503, 42 U. S. App. 21, 74 Fed. 444;
Talbot V. Press Pub. Co. 80 Fed. 567;
Koewing v. Wilder, 61 C. C. A. 312,
126 Fed. 472; Roberts v. Bennett, 68 C.
C. A. 386, 135 Fed. 748 ; Pittsburgh Gas
& Coke Co. V. Goff-Kirby Coal Co. 81
C. C. A. 76, 151 Fed. 466; Dalton v.
Gunnison, 91 CCA. 457, 165 Fed.
873; Camden Iron Works Co. ▼. Sater,
139 C C A. 157, 223 Fed. 611; E. I.
Du Pont de Nemours & Co. v. Smith, 161
C C A. 377, 249 Fed. 403.
In many cases where the charge was
less objectionable than in the case at bar,
reversals have been ordered.
Stokes V. United States, — C C A.
— , 264 Fed. 18 ; Wolf v. United States,
170 C C A. 364, 259 Fed. 388; Elmer
V. United States, 171 C C A. 410, 260
Fed. 649; August v. United States, 168
C C A. 428, 257 Fed. 388; Hall v.
United States, 168 C C A. 94, 256 Fed.
748; Cummins v. United States, 147 C
C A. 38, 232 Fed. 846.
M^srs. David J. Smith and Herman
B. Smith filed a brief in their own be-
half:
880
Tlie trial court erred in overruling the
demun'er to the indictment, and partic>
ularly those portions of the demurrer
directed against the Selective Service
and Espionage Acts.
Homer v. United States, 143 U. S-
570, 36 L. ed. 266, 12 Sup. Ct. Rep. 522.
The evidence is insufficient to warrant
a verdict of guilty.
Ryan v. United States, 132 C C A.
257, 216 Fed. 13. •
The trial court erred in not appointinR
counsel to conduct the defense of David
Jay Smith.
8 R. C L. 83; 16 C J. 822; Gamer
V. State, 97 Ark. 63, 132 S. W. 1010^
Ann. Cas. 1912C, 1059; Diete v. State,
149 Wis. 462, 136 N. W. 166, Ann. Caa.
1913C, 732; People v. Goldenson, 7d
Cal. 344, 19 Pac 161; Stephenson ▼•
State, 21 Ohio C C N. S. 287.
The first overt aet of a conspiracy
fixes the locus penitentiad. Before that
act is done, either one or all of the par-
ties may abandon their design, and thn9
avoid the penalty prescribed by the
statute.
United States v. Britton, 108 U. S.
199, 204, 27 L. ed. 698, 700, 2 Sup. Ct.
Rep. 531.
Mr. T. C West filed a brief for plain-
tiffs in error Thomas Carey and E. B.
HolTman.
Assistant Attorney G^eral Stewart
argued the cause, and, with Mr. W. C.
Herron, filed a brief for defendant ib
error:
The bill of exceptions cannot be con-
sidered by this court, for the reason that
the trial court had lost jurisdiction to
allow and sign it
Michigan Ins. Bank ▼. Eldred, 143 U.
S. 293, 298, 36 L. ed. 162, 163, 12 Sup.
Ct. Rep. 450; Harlan v. McGourin, 218
U. S. 442, 450, 64 L. ed. 1101, 1106, 31
Sup. Ct. Rep. 44, 21 Ann. Cas. 849;
Richmond & D. R. Co. v. McGee, 2 C C
A. 81, 8 U. 8. App. 86, 60 Fed. 907;
Waldron v. Waldron, 156 U. S. 361,
378, 39 L. ed. 453, 457, 15 Sup. Ct. Rep.
883; Missouri, K. & T. R. Co. v. Rus-
seU, 9 C C A. 108, 19 U. S. App. 641,
60 Fed. 501; Jennings v. Philadelphia,
B. & W. R. Co. 31 App. D. C 173, 218
U. S. 255, 257, 258, 54 L. ed. 1031, 1032,
31 Sup. Ct. Rep. 1; United States v.
Mayer, 235 U. S. 66, 67, 70, 68 L. ed.
129, 135, 136, 36 Sup. Ct. Rep. 16.
The verdict was good.
Statler v. United States, 167 U. 8.
277, 279, 39 L. ed. 700, 701, 15 Sup. Ct
Rep. 616; BaDew ▼. United States, 160
S6i U..8.
:!)if>.
O'COXNELL V. UNITED STATES.
U. S. 187, 40 L. ed. 388, 16 Sup. Ct.
R«p. 263.
The second connt of the indictment
WAS ITOOd*
Fraina v. United States, 166 C. C. A.
356, 255 Fed. 28; United States v. MUl-
er, 249 Fed. 985; United States v. Blake-
man, 251 Fed. 306; United States v.
Sugar. 243 Fed. 439^ 164 C. C. A. 191,
252 Fed. 84, 248 U. S. 578, 63 L. ed.
429, 39 Sup. Ct. Rep. 19.
There was evidence which, taken by
itself, or with the inferences which the
jury were legitimately entitled to draw
from it, could have justified reasonable
men in finding a verdict of gpiilty on
both counts.
Debs ▼. Unite<l States, 249 U. S. 211,
63 L. ed. 566, 39 Sup. Ct. Rep. 252;
GMdstein v. United States, 169 C. C. A.
628, 258 Fed. 910; Hyde v. United
States, 225 U. S. 347, 368, 372, 56 L. ed.
1114^ 1126, 1128, 32 Sup. Ct. Rep. 793,
Ann. Cas. 1914A, 614.
The evidence regarding the attempted
eirenlation on June 3 of the Socialist
platform and war program, and the
meeting of July 3, was competent, if not
against all the defendants, at any rate
against the Smiths, as tending to show
their real intent in the organization and
activities of "the American Patriots."
Wood ▼. United States, 16 Pet. 342,
359, 361, 10 L. ed. 987, 994, 995; Holmes
v. Goldsmith, 147 U. S. 150, 163, 164,
37 L. ed. 118, 123, 13 Sup. Ct. Rep.
288; Moore v. United States, 150 U. S.
67, 60, 61, 37 L. ed. 996, 997, 998, 14
Sup. et Rep. 26; Allis v. United States,
155 U. 8. 117, 119, 39 L. ed. 91, 92,. 15
Sup. Ct. Rep. 36; Clune v. United
States, 159 U. S. 590, 592, 593, 40 L. ed.
269, 270, 271, 16 Sup. Ct. Rep. 126;
Bird V. United States, 180 U. S. 356, 359,
360, 46 L. ed. 570, 572, 573, 21 Sup. Ct.
Rep. 403; Williamson v. United States,
207 U. S. 425, 449, 451, 5? L. ed. 278,
291, 292, 28 Sup. Ct. Rep. 163; Stand-
ard Oil Co. V. Unite<l States, 221 U. S.
1, 76, 55 L. ed. 619, 651, 34 L.R.A.(N.S.)
834, 31 Sup. Ct. Rep. 502, Ann. Cas.
1912D, 734; Heike v. United States, 227
U. S. 131, 57 L. ed. 450, 33 Sup. Ct.
Rep. 226, Ann. Cas. 1914C, 128; Wright
V. Stewart, 130 Fed. 918; Kettenbach v.
United States, 120 C. C. A. 505, 202
Fed. 383; Huff v. United States, 143 C.
C. A. 290, 228 Fed. 892; Deason v.
United States, 165 C. C. A. 547, 254
Fed. 260; Herman v. United States, 168
C. C. A. 551, 257 Fed. 603; Withaup v.
United States, 62 C. C. A. 328, 127 Fed.
532; Schultz v. United States, 118 C. C.
A. 420, 200 Fed. 237; Equi v. United
•4 li. ed.
States, 171 C. C. A. 6-19, 261 Fed. 56;
Stem V. United States, 139 C. C. A. 292,
223 Fed. 764; Farmer v. United States,
139 C. C. A. 341, 223 Fed. 911.
If the evidence be competent for any
purpose, it is admissible; and if it be
claimed not to be competent for aU pur-
poses, a specific request must be made
of the court to limit it to the particular
matter as to which it is competent.
Texas & P. R. Co. v. Volk, 151 U. S.
73, 78, 38 L. ed. 78, 80, 14 Sup. Ct. Rep.
239; Isaacs v. United States, 159 U. S.
487, 490, 491, 40 L. ed. 229, 230, 16 Sup.
Ct. Rep. 51; Goldsby v. United States,
160 U. S. 70, 77, 40 L. ed. 343, 346, 16
Sup. Ct. Rep. 216; Ball v. United States,
78 C. C. A. 126, 147 Fed. 40; Schultz v.
United States, 188 C. C. A. 420, 200
Fed. 234; Moffatt v. United States, 146
C. C. A. 480, 232 Fed. 533; HalloweU
V. United States, 165 C. C. A. 345, 253
Fed. 867.
Since the bill of exceptions shows that
the plaintiffs in error did not except to
the rulings or actions of the trial judge
in any of the matters referred to in their
motion for a diminution of the record,
nor, indeed, except to any other matters
than those 'already discussed in this
brief, this court will not, on proceedings
in error, go dehors the record, and, in
contravention of the official certificate of
the trial judge, treat as properly ex-
cepted to and assigned for error the
matters not of record, set up in the mO'
tion for a diminution of the record, and
referred to also in the amended assign-
ments of error.
Claassen v. United States, 142 U. S.
140, 147, 148, 35 L. ed. 960, 968, 12 Sup.
Ct. Rep. 169; Thiede v. Utah, 159 U. S.
510, 522, 523, 40 L. ed. 237, 243, 244,
16 Sup. Ct. Rep. 62; Clune v. United
States, 159 U. S. 590, 593, 594, 40 L. ed.
269, 270, 271, 16 Sup. Ct. Rep. 125;.
Drunam-Ffato Commission Co. v. Ed-
misson, 208 U.' S. 534, 540, 52 L. ed.
606, 610, 28 Sup. Ct. Rep. 367,
A judge of a court of the United
States, in submitting a case to the jnry,^
may, in his discretion, express his opin-
ion upon the facts; and when no rule
of law is incorrectly stated, and all mat-
ters of fact are ultimately submitted to
the determination of the jury, such ex-
pressions of opinion are not reviewable
on writ of error.
Rucker v. Wheeler, 127 U. S. 85, 93,
32 L. ed. 102, 105, 8 Sup. Ct. Rep. 1142;
Vicksbnrg & M. R. Co. v. Putnam, 118
U. S. 545, 553, 30 L. ed. 257, 258, 7 Sup.
Ct. Rep. 1, 10 Am. Neg. Cas. 574; St.
Louis, I. M. & S. R. Co. v. Vickers, 122"
881
144, 14o
SriMtKME COIKT OF THE LNITED STATES.
Oct. Tekm,
U. S. 360, 30 L. cd. IIOI, 7 Sup. Ct.
Kep. 1216; United States v. Philadel-
phia & R. R. Co. 123 U. S. 113, 114, 31
L. ed. 138, 139, 8 Sup. Ct. Rep. 77;
Reynolds v. United States, 98 U. S. 145,
167, 168, 25 L. ed. 244, 250, 251; Love-
joy V. United States, 128 U. S. 171, 173,
32 L. ed. 389, 390, 9 Sup. Ct. Rep. 57;
Simmons v. United States, 142 U. S.
148, 165, 35 L. ed. 968, 971, 12 Sup. Ct.
Rep. 171; CoOin v. United States. 162
U. S. 664, 679-682, 40 L. ed. 1109, 1115,
1116, 16 Sup. Ct. Rep. 945; Allis v.
United States, 155 U. S. 117, 123, 39
L. ed. 91, 93, 15 Sup. Ct. Rep. 36.
The honesty of the views of the de-
fendants, or their ignorance of the legal
consequences of their acts, did not, as
matter of law, excuse them.
Reg. ex rel. Scott v. Hicklin, L. R. 3
Q. B. 360, 37 L. J. Mag. Cas. N. S. 89,
18 L. T. N. S. 395,- 16 Week. Rep. 801,
11 Cox, C. C. 19, 8 Eng. Rul. Cas. 60;
Reg. V. Senior [1899] 1 Q. B. 283, 68
L. J. Q. B. N. S. 175, 63 J. P. 8, 47
Week. Rep. 367, 79 L. T. N. S. 562, 15
Times L. R. 102, 19 Cox, C. C. 219;
Reynolds v. United States, 98 U. S. 145,
25 L. ed. 244; United States v. Anthony,
11 Blatchf. 207, Fed. Cas.' No." 14,459;
Fraina v. United States, 166 C. C. A.
356, 255 Fed. 36.
Charges in all substantial respects
similar to or stronger than that in the
case at bar, on the matter of criminal
intent, have been sustained by the high-
est authority.
Rex V. Sheppard, Russell & R. 169, 1
Leach, C. C. 226, 2 East, P. C. 967;
Rex V. Philpot, 7 Cr. App. Rep. 140,
144; Boyd v. United States, 142 U. S.
450, 456, 456, 35 L. ed. 1077, 1078, 12
Sop. Ct. Rep. 292; Pettibone v. United
States, 148 U. S. 197, 207, 37 L. ed. 419,
424, 13 Sup. Ct. Rep. 542; Rosen v.
United States,. 161 U. S. 29, 41^ 40 L. ed.
606, 610, 16 Sup. Ct. R^p. 434, 480, 10
Am. Crim. Rep. 251; Allen v. United
States, 164 U. S. 492, 496, 41 L. ed. 528,
529, 17 Sup. Ct. Rip. 154; Agnew v.
United States, 165 U. S. 36, 49, 51, 41
L. ed. 624, 620, (VSO, 17 Sup. Ct. Rep.
235; Aikens v. Wisconsin, 195 U. S. 194,
206, 206, 49 L. ed. 154, 159, 160, 25 Sup.
Ct. Rep. 3; United States v. Patten. 226
U. S. 525, 643, 57 L. ed. .333, 341, 44
L.R.A.(N.S.) 325, 33 Sup. Ct. Rep. 141;
Schenck v. United States, 249 U. S. 47,
61, 63 L. ed. 470, 473, 39 Sup. Ct. Rep.
247; Frohwerk v. United States, 249 U.
S. 204, 209, 63 L. ed. 561, 665, 39 Sup.
Ct. Rep. 249; Debs v. United States, 249
U. S. 211-216, 63 L. ed. 66^569, 39
Sap. Ct. Rep. 252; Abrams v. United
832
States, 250 U. S. 616, 621, 63 L. ed.
1173, 1176, 40 Sup. Ct. Rep. 17; O'Hare
V. United States, 165 C. C. A. 208, 253
Fed. 538; Doe v. United States, 166 C.
C. A. 3, 253 Fed. 906 ; Fraina v. United
States, 166 C. C. A. 356, 255 Fed. 36;
Kirchner v. United States, 166 C. C. A.
471, 255 Fed. 305; Rhuberg v. United
States, 167 C. C. A. 185, 255 Fed. 865.
Mr. Justice M9Eesniold8 delivered the
opinion of the court:
Plaintiffs in error were tried under mn
indictment with two counts. The first
charges a conspiracy to violate the
Espionage Act (| 3, Act June 15, 1917,
chap. 30, 40 Stat, at L. 217, 219, Comp.
Stat. §§ 10,212a, 10,483a, Fed. Stat.
Anno. Supp. 1918, pp. 120, 122), by
obstructing the recruiting and enlistment
service; the second, a conspiracy to vio-
late the Selective Service Law (§6, Act
May 18, 1917, chap. 15, 40 Stat at L.
76, 80, Comp. Stat. §§ 2044a, 2044f).
A demurrer, challenging the consti-
tutionality of both acts and the sufficiency
of each count, was overruled.
The trial continued from September 12
to 25, 1917, and resulted in the following
verdict: "We, the jury, find Daniel
O'Connell, David J. Smith, Herman B.
Smith, Carl J. F. Wacher, Thomas
Carey, and E. R. Hoffman, the defendants
at the bar, guilty on the — count of the
indictment, and — on the — count of
the indictment. Thomas H. Haskins,
Foreman." No objection was made to
this verdict when returned, nor at any
time prior to May 31, 1919, long after the
reaord came here, when permission was
asked to amend the assignments of error.
Motions for new trial and in arrest of
judgment were overruled. The former
attacked the verdict as contrary to law
and the evidence, but said nothing con-
cerning its f<»rm. The latter recited:
"And now, after verdict against the said
defendants, and before sentence, come the
said defendants in their own proper per-
sons and by Daniel O'Connell, their at-
torney, and move the court here to arrest
judgment herein, and not pronounce the
same," [145] and specified the follow-
ing grounds: (l)«The indictment fails to
set forth facts sufficient to constitute an
offense; (2) the first count is repugnant
to itself for reasons set forth in the de-
murrer; (3)' the second count is based
on the Act of May 18, 1917, inapplicable
to the defendants because they were not
engaged in carrying ont its terms; {A)
the first count does not adequately inform
defendants concerning nature of charge
against them; (5) both tlie Acts of May
2ft8 ir. s.
1JH9.
O CON NELL V. UNITED STATES.
146-147
18 and June 13, 1917, are in conflict
with tiie Constitution and are invalid.
September 29, O'Connell was sen*
tencc^ to the penitentiary for five years
on the first count and for two years on
the second, the terms to ran oonsecutively.
The other plaintiffs in error were sen-
tenced to varying concurrent terms un-
der both counts, none beings in excess of
three years. On the same day a writ of
error from this court was allowed.
The record contains a bill of excep-
tions, with au elaborate explanatory cer-
tificate signed by the district judge.
The trial took place during July teim,
1917; the next term, as appointed by
statute, began November 15. On Sep-
tember 29, thirty days were granted for
preparation and presentation of a biU of
exceptions. October 23 an order under-
took to extend the time to November 15;
on November 12 a like order specified
November 27; on November 26 an order
specified December 15; on December 14
a further order undertook to extend it to
December 24, when a still further exten-
sion was ordered to December 31. On the
latter date a proposed bill was presented.
January 9, 1918, the United States at-
torney procured an order granting time
in which to prepare amenonnents to the
•proposed bill which were thereafter pre-
sented.
Rule 9 of the district court provided:
^^or the purpose of making and filing
bills of exceptions and of making any
and all motions necessary to be made
within the term at which any judgment or
decree is entered, each [146] term of
this court aball be and hereby is ex-
tended so as to comprise a period
of three calendar months, beginning on
the first Tuesday of the month in which
verdict is rendered or judgment or de-
cree entered." Rule 61 provided: When
an act to be done in any pending
suit relates to the preparation of bills
of exceptions or amendments there-
to, 'Hhe time allowed by these rules
may, unless otherwise specially provid-
ed, be extended by the court or judge
by order made before the expiration of
such time, but no such extension or ex-
tensions shall exceed thirty days in all
without the consent of the adverse party."
stricken from the files. The court ex-
pressed the opinion that the bill was too
late unless the United States attorney
had waived objection thereto, and on that
point said: '^I am very strongly of the
view that, owing to the attiti^e of the
United States attorney, distinctly stated
theretofore, which was all that could be
done under the circumstances, this was
not such a waiver." But, in order that
the matter mi^t be brought here for final
determination, the facts were set out and
the certificate signed.
Under the statute the trial term ex-
pired November 15; but, for the purpose
of filing the bill of exceptions, a general
rule extended it to December 4, — three
months from the first Tuesday in Sep-
tember. The last order of court' within
the extended term designated December
14 as the final day for action.
^By the uniform course of decision, no
exceptions to rulings at a trial can be
considered by this court, unless they were
taken at the trial, and were also embodied
in a [147] formal bill of exceptions
presented to the judge at the same torn,
or within a further time allowed by order
entered at that term, or by standing rule
of court, or by consent of parties.
. . • After the term has expired, with-
out the court's control over the case be-
ing reserved by standing rule or special
Older, and especially after a writ of
error has been entered in this oonrt, all
authority of the court bdow to allow a
bill of exceptions then first presented, or
to alter or amend a bill of exceptions al-
ready allowed and filed, is at an end."
Michigan Ins. Bank v. Eldred, 143 U. S.
293, 298, 36 L. ed. 162, 163, 12 Sup. Ct.
Rep. 450.
We think the power of the trial court
over the cause expired not later than the
14th of December, 1917, and any pro-
ceectings concerning settlement of a bill
thereafter wete coram non judice. We
may not, therefore, consider the bill
copied in the record. Hunnicutt v. Pey-
ton, 102 U. S. 333, 26 L. ed. 113; Davis
V. Patrick, 1*22 U. 8. 138, 30 L. ed. 1090,
7 Sup. Ct. Rep. 1102; Waldron v. Wal-
dron, 156 U. S. 361, 39 L. ed. 453, 15
Sup. Ct. Rep. 383; Jennings v. Philadel-
phia, B. & W. R. Co. 218 U. S. 255, 257,
After expiration of the three months | 54 L. ed. 1031, 1032, 31 Sup. Ct Rep. 1.
specified by rule 9, plaintiffs in error , And the same is true of certain notes of
having in open court requested further
extension, the United States attorney an-
nounced that he would not consent, but
would ask the court to refuse to settle
any bill thereafter proposed. In April,
proceedings taken during trial which we
directed to be brought here, without
prejudice, by order of June 9, 1919.
The motion to amend original assign-
ments of error is granted. Having re-
1918, he moved that settlement of the \ gard to the record properly before us,
proposed bill be refused and that it be only four of the assignments require
64 Ij* ed. 53 83S
147-149
SUPREME COURT OP THE UNITED STATES.
Oct. Tkbm,
special notice: (1) Unconstitutionality
of the Selective Service and the Espion«
age Acts; (2) that the first coontis bad
beeaose it only chai^ges a conspiracy to
obstruct the reomiting and enlistment
service by indacement and persuasion;
(3) the verdict was fatally defective and
the judgment invalid; (4) the second
comit is bad. It charges a conspiracy to
make false certificates concerning liabil^
ity for military service, and to aid in
evading the act without alleging that the
conspirators were officers or persons
charged with the duty of carrying it into
effect
The constitutionality of the two acts is
settled by opinions [l^^] of this court
announced sinoe the writ of error was sued
out (Goldman v. United States, 245 U.
S. 474, 62 L. ed. 410, 38 Sup. Ct Rep.
166; Schenck v. United States, 249 U. 8.
47, 63 L. ed. 470, 39 Sup. Ct Rep. 247;
Frohwerk v. United States, 249 U. S.
204, 63 L. ed. 561, 39 Sup. a. Rep. 249.
Also tiie criminality of a conspiracy to
obstruct recruiting and enlistoient by
persuasion has been determined. Schenok
V. United States, supra.
Apparently a printed form was used in
preparing the jury's verdict, defendants'
names and the word ''guilty" being in-
serted. When presented, no objection
was made to its form or wording, neither
the motion for new trial nor in arrest of
judgment indicated any sueh objection,
and plaintiffs in error mentioned none
when called upon to show cause why
sentence should not be imposed. We
think the intention to find a general ver-
dict of guilty U]>on both counts is suf-
ficiently plain. Evidently all parties so
understood at the time. See Statler v.
United States, 157 U. S. 277, 279, 39 L.
ed. 700, 702, 15 Sup. Ct Rep. 616;
Ballew V. United States, 160 U. S. 187,
197, 40 L. ed. .388, 393, 16 Sup. Ct Rep.
263.
The second oount charges a conspiracy
to violate § 6 of the Selective Service Act
Its provisions include: "Any person
who shall make or be a party to the mak-
ing of any false statement or certificate
as to the fitness or liability of himself or
any other person for service under the
provisions of this act, or regulations made
by the President thereunder, or otherwise
evades or aids another to evade the re-
quirements of this act or of said regula-
tions." Other words of the section relate
to officers and persons charged with the
duty of carrying the act into effect, but
the quoted ones are broad enough to in-
clude nonofficial persons, and, when con-
sidered in connection with the general
884
pnr^>08e in view, there can be no reason-
able doubt that plaintiffH in error were
witlun their meaning. See Fndna v.
United States, 166 C. C. A. 356, 255 Fed.
28, 33.
We find no adequate cauae for inter-
fering with the judgment of the court
below, and it is affirmed.
[1491 KNICKERBOCKER ICE COM-
PANY, PUT. in Err.,
V.
LILUAN E. STEWART.
(^ S. C. Reporter's ed. 149-170.)
Admiralty — ezdnslveness of Federal
jnrlsdictioii — state legislation affect-
Ins maritime law.
1. The Federal Constitution itaelf
adopted and established, as part of the laws
of the United States, approved rnles of the
general maritime law, and empowered Con-
gress to legislate in respect of them and
other matters within the admiralty and
maritime jurisdiction. Moreover, it took
from the states all power, by legislation or
judioial decision, to contravene tne essential
purposes of, or to work material injury to,
characteristic features of such law, or to
interfere with its proper harmony and uni-
formity in its international and interstate
relations. To preserve adequate harmony
and appropriate unif<»rm rules relating to
maritmie matters, and bring than within
control of the Federal government, was the
fundamental purpose; and to such definite
end Congress was empowered to legislate
within that sphere.
[For other cases, see Admiralty, I. b^ 8, In Dl>
gest Sup. Ct. 1908.]
Admiralty — Federal Jnriadictlon •»
state and Federal re^nlatlonB.
2. The mere reservation of partially
concurrent cognizance to state courts by an
act of Congress conferring an otherwise ^x-
elusive admiralty jurisdiction upon the
Federal courts could not create substantive
rights or obligations, nor indicate assent to
their creation by the states.
[For other cases, nee Admiralty, I. U 8» in Di-
gest Sup. Ct. 1903.1
Note. — As to applicability of Federal
Employers' Liability Act or state com-
pensation acts to injuries within mari-
time jurisdiction — see note to Southern
P. Co. V. Jensen, L.R.A.1918C, 474.
On jurisdiction of, and law govemingy
action for death on waters — eee note to
Rainey v. W. R, Grace & Co. L.RJL
1916A, 1157.
On limitation of application of woi^-
men's compensation statutes by Pedoral
laws — see note to Staley v. Illinois C.
R. Co. LJt.A.1916A, 46L
SftS v. s.
1919.
KNICKERBOCKER ICE CO. v. STEWART.
AdBilralty «— exclnsiveness of Federal
Jurisdiction «— state Workmen's Com*
pensatlon Laws — power of Congress.
3. Congress exceeded its constitutional
power to legislate concerning rights and lia-
bilities within the maritime jurisdiction,
and remedies for their enforcement, l^ at-
tempting, as it did in the Act of October
6, 1917, to permit the application, of Work-
men's Compensation Laws of the several
states to injuries within the admiralty and
maritime jurisdiction, thus virtually de-
stroying the harmony and uniformity which
the Constitution not only contemplated, but
actually estiUilished.
[For other cases, see Admiralty, I. b, 8» In
Digest Sap. Ct. 1008.]
[No. 543.]
Argued December 16, 1919. Decided 'May
17, 1920.
IN ERROR to the Supreme Court of
the State of New York, Appellate
Division, Third Department, to review a
judgment affirmed by the Court of Ap-
peals of that state, upholding an award
of the State Industrial Commission for
injuries received by an employee doing
work of a maritime nature. Reversed
and remanded for further proceedings.
See same case below in appellate^ di-
vision, 187 App. Div. 915, 173 N. Y.
Supp. 924; in court of appeals, 226 N.
Y. 302, 123 N. E. 382.
The facts are stated in the opinion.
Mr. Frank E. Savidge argued the
cause, and, with Mr. Frederick M.
Thompson, filed a brief for plaintiff in
error:
The work of unloading a vessel is a
maritime employment, and is in per-
formance of a maritime contract.
Atlantic Transport Co. v. Imbrovek,
234 U. S. 62, 58 L. ed. 1208, 51 L.R.A.
(N.S.) 1157, 34 Sup. Ct. Rep. 733;
Southern P. Co. v. Jensen, 244 U. S.
205, 61 L. ed. 1086, L.R.A.1918C, 451,
37 Sup. Ct Rep. 524, Ann. Cas. 1917E,
900, 14 N. C. C. A. 597; Anderson v.
Johnson lighterage Co. 224 N. Y. 539,
120 N. E. 55 ; Doey v. Clarence P. How-
land Co. 224 N. Y. 30, 120 N. E. 53;
Keatop V. Rock Plaster Mfg. Co. 224
N. Y. 640, 120 N. E. 56.
The uniformity of the maritime law is
preserved for all time in the Constitu-
tion.
Southern P. Co. y. Jensen, 244 U. 8.
205, 61 L. ed. 1086, L.R.A.1918C, 451,
37 Sup. Ct. Rep. 524, Ann. Cas. 1917E,
900, 14 N. C. C. A. 597 ; The Lottawan-
na (Rodd v. Heartt) 21 Wall. 558, 22
L. ed. 654.
Congress has power to amend or cre-
•4 L. ed.
ate the maritime law which shall prevail
throughout the country (Butler v. Bos-
ton & S. 8. S. Co. 130 U. S, 527, 32
L. ed. 1017, 9 Sup. Ct Rep. 612; Re
Gamett, 141 U. S. 1, 14, 36 U ed. 631,
634, 11 Sup. Ct Rep. 840), but that is
the limit of its power. It cannot del-
egate this power to the states, nor, un-
der the limitation of the Constitution,
authorise the enactment of laws thai
will destroy tba uniformity of the maiv
itime law.
The New York Workmen's Compoa-
sation Law, as applied to maritime em-
ployments, is abo unconstitutional in
that an essential part of the law bars
rights of action in admiralty, which can-
not be barred by legislation of the
states.
Jensen v. Southern P. Co. 215 N. Y.
514, L.R.A.1916A, 403, 109 N. E. 600,
Ann. Cas. 1916B, 276, 9 N. C. C. A. 286;
Atlantic Transport Co. v. Imbrovek, 234
U. S. 52, 68 L. ed. 1208, 61 L.R.A.(N.S.)
1157, 34 Sup. Ct. Rep. 733; The Trans-
fer No. 12, 137 C. a A. 207, 221 Fed.
409; Workman v. New York, 179 U. 8.
552, 45 L. ed. 31^ 21 Sup. Ct Rep. 212;
The Max Morris, 137 U. 8. 1, 34 L. ed.
586, 11 Sup. Ct. Rep. 29; The Thode
Fagelund, 211 Fed. 685; The Fred E.
Sander, 208 Fed. 724, 4 N. C. C. A. 891;
The Rosalie Mahony, 218 Fed. 696.
Mr. Mark Ash filed a brief as amicus
ourias:
The Act of Congress of October 6,
1917, amending the Judicial Code, §§ 24
and 256, has not removed the unconsti-
tutionality of the Workmen's Compen-
sation Law, as declared by this court in
Southern P. Co. v. Jensen, 244 U. S.
205, 61 L. ed. 1086, LJI.AJ918C, 451,
37 Sup. Ct Rep. 524, Ann. Cas. 1917E,
900, 14 N. C. C. A. 597; The Lotta-
wanna (Rodd v. Heartt), 21 Wall. 558,
22 L. ed. 664; The St. Lawrence (Meyer
V. Tupper) 1 Black, 526, 527, 17 L. ed.
182, 183; Martin v. Hunter, 1 Wheat
304, 330, 4 L. ed. 97, 103; Workman v.
New York, 179 U. S. 552, 45 L. ed. 314,
21 Sup. Ct. Rep. 212: The Chusan, 2
Story, 455, Fed. Cas. No. 2717; Butler
V. Boston & S. S. S. Co. 130 U. S. 527,
655, 32 L. ed. 1017, 1023, 9 Sup. Ct
Rep. 612.
Mr. E. Olarenoe Aiken argued the
cause, and, with Mr. Charles D. Newton,
Attorney General of New York, filed a
brief in behalf of the New York State
Industrial Commission:
Congress had jurisdiction to enact the
amendiments to the Judicial Code, re-
serving the rights and remedies under
886^
SUPREME COURT OF THE UNITED STATES.
Oct.
the compensation law of any state wliere
such rights and remedies had been given
by any state.
Southern P. Co. v. Jensen, 244 U. S.
205, 61 L. ed. 1086, L.R.A.1918C, 451,
37 Sup. Ct. Rep. 624, Ann. Cas. 1917E,
POO, 14 N. C. C. A. 597; Martin v.
Hunter, 1 Wheat. 326, 327, 4 L. ed. 102,
103; United States v. Bevans, 3 Wheat.
336, 386, 4 L. ed. 404, 416; Gibbons v.
Ogden, 9 Wheat. 1, 189, 196, 203, 6
L. ed. 23, 68, 70, 71; Lotter\^ Case
(Champion v. Ames) 188 U. *S. 321,
346, 47 L. ed. 492, 497, 23 Sup. Ct Rep.
321, 13 Am, Crim. Rep. 561; Passen-
jrer Cases, 7 How. 283, 549, 12 L. ed.
702, 813; M'CuUoch v. Mar\'land, 4
Wheat. 316, 407, 4 L. ed. 579, 601;
Rhode Island v. Massachusetts, 12 Pet.
657, 721, 9 L. ed. 1233, 1259; Holt v.
Indiana Mfjif. Co. 176 U. S. 68, 44 L. ed.
374, 20 Sup. Ct. Rep. 272; United
States V. Sayward, 160 U. S. 493, 498,
40. L. ed. 508, 509, 16 Sup. Ct. Ifep. 371;
Minnesota Rate Cases (Simpson v.
Shepard) 230 U. S. 352, 57 L. ed. 1511,
48 L.R.A.(N.S.) 1151, 38 Sup. Ct. Rep.
729, Ann. Cas. 1916A, 18; People v.
Welch, 141 N. Y. 266, 24 L.R.A. 117, 38
Am. St. Rep. 793, 36 N. E. 328; Man-
chester V. Massachusetts, 139 U. S. 240,
3v» L. ed. 159, 11 Sup. Ct. Rep. 559;
McCreadv v. Virginia, 94 U. S. 391, 24
L. ed. 248; The Abby Dodge, 223 U. S.
166, 56 L. ed. 390, 32 Sup. Ct. Rep. 310 ;
Erie R. Co. v. Williams, 233 U. S. 685,
58 L. ed. 1155, 51 L.R.A.(N.S.) 1097,
34 Sup. Ct. Rep. 761; Mobile County v.
Kimball, 102 IT. S. 691, 697, 26 L. ed.
238, 239 ; Huse v. Glover, 119 U. S. 543,
30 L. ed. 487, 7 Sup. Ct. Rep. 313;
Leo^'v V. United States, 177 U. S. 621,
625, 44 L. ed. 914, 916, 20 Sup. Ct. Rep.
797; Cummings v. Chicago, 188 U. S.
410, 427, 47 L. ed. 525, 530, 23 Sup. Ct.
Rep. 472; Keokuk Northern Line Packet
Co. V. Keokuk, 95 U. S. 80, 24 L. ed.
377; Cincinnati, P. B. S. & P. Packet
Co. V. Catlettsburg, 105 U. S. 559, 563,
26 L. ed. 1169, 1171; Parkersbnrg & P.
River Transp. Co. v. Parkersburg, 107
U. S. 691, 702, 27 L. ed. 584, 588, 2 Sup.
Ct. Rep. 732; Ouachita & M. River
Packet Co. v. Aiken, 121 U. S. 444, 447,
30 L. ed. 976, 977, 1 Inters. Com. Rep.
379, 7 Sup. Ct. Rep. 907; Sands v.
Manistee River Improv. Co. 123 U. S.
288, 295, 31 L. ed. 149, 151, 8 Sup. Ct.
Rep. 113; Port Richmond & B. P. Ferr>'
Co. v. Hudson County, 234 U. S. 317,
331, 58 L. ed. 1330, 1336, 34 Sup. Ct.
R^p. 821; Clark DistUUng Co. v. West-
em Maniand R. Co. 242 U. S. 311, 61
L. ed. 326, L.R.A.1917B, 1218, 37 Sup.
8S6
Ct. Rep. 180, Ann. Cas. 1917B, M5;
Wilmington Transp. Co. v. Railroad
Commission, 236 U. S. 151, 156, 59 L. ed,
508, 517, P.U.R.1915A, 845, 35 Sup. Ct.
Rep. 276; Knapp, S. & Co. Co. v. Mc-
Ca&ey, 177 U. S. 638, 644, 44 L. ed.
921, 924, 20 Sup. Ct. Rep. 824; Amer-
ican S. B. Co. v. Chase, 16 WalL 522,
21 L. ed. 369; Sherlodc v. Ailing, »3
U. S. 99, 23 L. ed. 819; The HamUton
(Old Dominion S. S. Co. v. Gilmore)
207 U. S. 398, 52 L. ed. 264, 28 Sup. Ct.
Rep. 133; Dougan v. Champlain Transp.
Co. 56 N. Y. 1.
Congress is not attempting to distarb
the uniformity of the maritime law.
Whenever a case is brought in an ad-
miralty court, the admiralty law will be
enforced, the same in one state as in an-
other; but wherever there is another
remedy by way of workmen's compensa-
tion or a common-law remedy, such rem-
edies will be asserted and enforced in
their respective jurisdictions according
to the law of that jurisdiction. So far
as. the common-law remedy is concerned,
it cannot be claimed that that is the
same the country over. New York ha.s
a system of practice under a code.
Other states have codes of their own,
and some states still retain the common-
law practice and procedure.
Wheaton v. Peters, 8 Pet. 658, 8 L. ed.
1079.
Mr. Warren H. Pillsbury filed a brief
as amicus curise in behalf of the Indus-
trial Accident Commission of the State
of California:
No unconstitutional interference is
created by the Johnson amendment be-
tween the judicial power of the states
and of the United States.
The Howell, 257 Fed. 578; Holt v.
Indiana Mfg. Co. 176 U. S. 68, 44 L. ed,
374, 20 Sup. Ct. Rep. 272 ; United States
V. Sayward, 160 U. S. 493, 498, 40 L. ed.
608, 509, 16 Sup. Ct. Rep. 371; Fish-
back V. Western U. Teleg. Co. 161 U. 8.
96, 40 L. ed. 630, 16 Sup. Ct. Rep. 506;
United States v. Union P. R. Co. 98 U.
S. 569, 603, 25 L. ed. 143, 150; Cooley,
Const. Law, 3d ed. p. 124.
No unconstitutional interference is
created by the Johnson amendment be-
tween legislative power of the states and
of the United States.
Hobart v. Drogan, 10 Pet. 108, 9
L. ed. 303; Sturges v. Crowninshield, 4
Wheat. 122, 196, 4 L. ed. 529, 548;
Cooley, Const. Law, 3d ed. 35.
Neither the New York act nor the
Johnson amendment violates the eom-
merce clause.
Re Rahrer, 140 U. S. 545, 35 L. ed.
S«9 V. 8.
1019.
KNICKERBOCKER ICE CO. v. STEWART.
IS
r "to
V
g of ^2l« "^
PeC658,8l.»
ton «i«"T^
^^er of tl* *»
Fed. 5(8. Pf*
,%, G 68. <* **
572, 11 Sup. Ct. Rep. 805; Clark Dis-
tilling Co. V. Western Mar^iand R. Ckr.
242 U. S. 311, 61 L. ed. 326, L.ft.A.
1917B, 1218, 37 Sup. Ct. Rep. 180, Ann.
Cas. 1917B, 845; The Lottawanna
(Rodd V. Heartt) 21 Wall. 568, 22 L. ed.
654.
If the act be considered not to be of
nniform application, it still violates no
constitutional requirement.
United States v. Union P. R. Co. 98
U. S. 569, 603, 25 L. ed. 143, 150.
The Johnson amendment is, in its last
analysis, of nniform application throug^h-
out the country.
Ri3 Rahrer, supra.
The present case is not one of mar-
itime cognizance, as the injury occurred
upon the land.
The Plymouth (Hough v. Western
Transp. Co.) 3 Wall. 20, 18 L. ed. 125;
Keator v. Rock Plaster Mfg. Co. 256
Fed. 574.
Mr. Justice McEeynokls delivered the
opinion of the court:
While employed by Knickerbocker Ice
Company as bargeman and doing work of
a maritime nature, William M. Stewart
fell into the Hudson river and drowned
August 3, 1918. His widow, defendant in
error, claimed under the Workmen's
Compensation Law of New York; the In-
dustrial Commission granted an award
against the company for her and the mi-
nor children; and both appellate [156]
division and the court of appeals approved
it. 226 N. Y. 302, 123 N. E. 382. . The
latter concluded that the reasons
constrained us to hold the Compen
Law inapplicable to an employee en
in maritime work (Southern P.
Jensen, 244 U. S. 205, 61 L. ed.
L.R.A.1918C, 451, 37 Sup. Ct. Rep
Ann. Cas. 1917E, 900, 14 N. C.
596) had been extinguished by '^A
to Amend Sections Twenty-four am
Hundred and Fifty-six of the Ji
Code [36 Stat, at L. 1091, 116^,
231, Comp. Stet. §§991(1), 1233, ^
Stat. Anno. 2d ed. p. 838, 5 Fed.
Anno. 2d ed. p. 921], Relating
Jurisdiction of the District Courts,
to Save to Claimants the Rights
Remedies under the Workmen's Co
sation Law of Any State," approve
tober 6, 1917, chap. 97, 40 Stat
396, Comp. Stat. § 991(3), Fed.
Anno. Supp. 1918, p. 401.
The provision of § 9, Judiciary
1789 (chap. 20, 1 Stat at L. 76), :
ing to United States district eourti
elusive original cognizance of a))
causes of admiralty and maritime
diction . . . , saving to suitors,
cases the right of a common-law re
where the common law is compete
give it," was carried into the R
Statutes (§§ 563 and 711, Comp. SI
991, 1233), and thence into the Ji
Code (clause 3, §§ 24 and 256).
saving clause remained unchanged
the Statute of October 6, 1917,
^^and to claimants the rights and ret
Under the Workmen's Compensatiot
of any state,"^
1 Judiciary Act, September 24, 178i>,
chap. 20, 1 Stat, at L. 73, 76, 77, Comp.
Stat §§ 530, 991:
Sec. 9. "That the district courts shall
have, exclusively of the courts of the sev-
eral states . . . exclusive original cog-
nizance of all civil causes of admiralty and
maritime jurisdiction, including all seiz-
ures under laws of impost, navigation or
trade of the United States, where the seiz-
ures are mad% on waters which are nav-
igable from the sea by vessels of ten or
more tons burthen, within their respective
districts as well as upon the high seas;
saving to suitors, in all eases, the right of
a common-law remedy, where the common
law is competent to give it; . . .*'
Rev. SUt. § 663. "The district courts
dial] have jurisdiction as follows: . . .
"£ighth. Of all civil causes of admiralty
and maritime jurisdiction; saving to suit-
ore in all cases the right of a common-law
remedy, where the common law is compe-
tent to give it; and of all seizures on land
and oB waters not within admiralty and
maritime jurisdiction. And such jurisdic-
tion shall be exclusive, except in the par-
ticular rases where jurisdiction of such
•4 L. ed.
causes and seizures is given to the <
courts. [And shall have original ai
elusive cognizance of all prizes brou{
to the United States, except as pr
in 't 6 of § 629, Comp. Stat. § 991(3
Rev. Stat § 711. "The jurisdictioi
ed in the courts of the United Sta
the cases and prooeediagj horeinaftei
tioned, shall be exclusive of* the eou
the several states: ...
"Third. Of all civil causes of adn
and maritime jurisdiction; saving t<
ors, in all cases, the right of a comm*
remedy, where the common law is <
tent to give it."
The Judicial Code:
"Sec. 24. The district courts shal
original jurisdiction as follows:
"Third. Of all civil causes of adn
and maritime jurisdiction, saving tc
ors in all cases the right of a comm(
remedy where the common law is com
to give it; . . .
"Sec. 256. The jurisdiction vested
courts of the United States fn the
and proceedings hereinafter meni
shall be exclusive of the courts of tl
eral states: • • •
157-169
SUPREaiE COURT OF THE UNITED STATES.
Oct. Tebic,
. [157] In Soathem P. Co. v. Jensen
(May, 1^17), supra, we declared that
onder § 2, article 3, of the Constitu-
tion (''the judicial power shall extend
to ... all cases of admiralty and
maritime jurisdiction''), and § 8^ art.
1 (Congress may make necessary and
proper laws for carrying out granted
powers), ''in the absence of some con-
trolling statute the general maritime law
as accepted by the Federal courts con-
stitutes part of our [158] national
law applicable to matters within the
admiralty and maritime jurisdiction:"
also that "Congress has paramount power
to fix and determine the maritime law
which shall prevail throughout the
ooontry." And we held that, when ap-
plied to maritime injuries, the New York
Worimien's Compensation Law conflicts
with the rules adopted by the Constitu-
tion, and to that extent is invalid. "The
necessary consequence would be destruc-
tion of the very uniformity in respect of
maritime matters which the Constitution
was designed to establish; and freedom
of navigation between the states and with
foreign countries would be seriously
hampered and impeded."
We also pointed out that the saving
clause taken from the orig^al Judiciaiy
Act had no application, since, at most, it
only specified common-law remedies,
whereas the remedy prescribed by the
Compensation Law was unknown to the
common law and incapable of enforce-
ment, by the ordinary processes of any
court. Moreover, if applied to maritime
affairs, the statute would obstruct the
policy of Congress to encourage invest-
ments in ships.
In Chelentis v. Luckenbach S. S. Co.
(June, 1918) 247 U. S. 372, 62 L. ed.
1171, 38 Sup. Ct. Rep. 501, an action at
law seeking full indemnity for injuries
received by a sa'ilor while on shipboard,
we said: "Under the doctrine approved
in Southern P. Co. v. Jensen, no state
has power to abolish the well-recognized
maritime rule concerning measure of
covexy, and substitute therefor the full
indemnity rule of the common law.
Such a substitution would distinctly and
definitely [159] change or add to the
settled maritime law ; and it would be de-
structive of the 'uniformity and consi^
ency at which the Constitution aimed on
all subjects of a commercial character af-
fecting the intercourse of the states with
each other or with foreign states.' " And,
concerning the clause, "saving to suitors
in all cases the right of a oommcm-law
remedy where the common law is ccHnpe-
tent to give it," this: "In South^n P.
Co. V. Jensen, we definitely ruled that it
gave no ai^hority to the several states to
enact legislation which woold work 'ma-
terial prejudice to the dutraeterisiie
features of the general maritime law, or
intffl'fere with the proper harmony and
uniformity of that law in its interaatioa-
al and interstate relations.' . . . Un-
der the saving clause a right sanctioned
by the maritime law may be enforced
through any appropriate remedy recog-
nized at common law; but we find noth-
ing therein which reveals an intention to
give the complaining party an election
to determine whether the defendant's li-
ability shall be measured by common-law
standards rather than those of the mari-
time law." Thus we distinctly approved
the view that the original saving clause
conferred no substantive rights and did
not authorize the states so to do. It re^
ferred only to remedies, and to the ex-
tent ^specified permitted continued en-
forcement by the state courts of rights
and obligations founded on maritime law.
In Union Fish Co. v. Erickson, 248
U. S. 308, 63 L. ed. 261, 39 Sup.
Ct. Rep. 112, an admiralty cause, a
master sought to recover damages for
breach of an oral contract with the own-
er of a vessel for services to be per-
formed principally upon the sea. The
latter claimed invalidity *of the contract
under a statute of California, where
"Third. Of all civil causes of admiralty
and maritime jurisdiction; saving to suit-
ors, in all cases, the right of a common-law
remedy; where the common law is compe-
tent to give it."
Act Oct. 6, 1917, chap. 97, 40 Stat, at L.
395, Comp. Stat. § 991(3), Fed Stat.
Anno Supp. 1918. p. 401.
That clause 3 of § 24 of the Judicial Code
is hereby amended to read as follows:
"Third. Of all civil causes of admiralty
and maritime jurisdiction, saving to suit-
ors in all cases the right of a common-law
remedy where the common law is compe-
tent to give it, and to claimants the rights
and remedies under the Workmen's Com*
8S8
pensation Law of any state; of all seizures
on land or waters not within admiralty
and maritime jurisdiction; of all prises
brought into the United States; and of all
proceedings for the condemnation of prop-
erty taken as prize.*'
Sec. 2. That clause 3 of § 256 of the
Judicial Code is hereby amended to read
as follows:
"Third. Of all civil causes of admiralty
and maritime jurisdiction, saving to suit-
ors in all cases the right of a conmMm-law
remedy where the common law is competent
to give it, and to claimants the rights aad
remedies under the Workmen's Gompeasa^
tion Law of any state."
Mt 1^. 8.
1019.
KNICKERBOCKER ICE CO. v. STEWART.
159-162
made, beeanae not in writing, and not to
be perfonned within a year. We mled:
''The eireuit coort of appeals eorrectly
held that this contract was maritime in
its nature, and an action in admiralty
thereon for its breach ooold not be de-
feated by the statute of [160] Califor-
nia relied upon by the petitioner."
"In entering into this eontract the par-
ties contemplated no services in Cal-
ifornia. They were making an engage-
ment for the services of the master
of the vessel, the duties to be per-
formed in the waters of Ala^u^ mainly
upon the sea. The maritime law oon^
trolled in this respect, and was not sub-
ject to limitation bcHcause the particu-
lar engagement happened to be made in
Califomia. The parties must be pre-
sumed to have had in contemplation the
system of maritime l^w under which it
was made." See also The Blaekheath
(United States v. Evans) 195 U. S. 361,
365, 49 L. ed. 236, 237, 25 Sup. Ct. Rep.
46.
As the plain result of these recent opin-
ions and the earlier cases upon which
they are based, we accept the following
doctrine: The Constitution itself adopt-
ed and established, as part of the laws
of the United States, approved rules of
the general maritime law, and empowered
Congress to legislate in respect of them
and other matters within tJie admiralty
and maritime jurisdiction. Moreover, it
took from the states all power, by legisla-
ti<m or judicial decision, to contravene
the essential purposes of, or to work
material injury to, characteristic features
of such law, or to interfere with its'
proper harmony and uniformity in its
mtemational and interstate relations. To
preserve adequate harmony and appro-
priate uniform) yules relating to maritime
nvitters anl bting them within control
of the Federal government .was the fun-
damental purpose; and to such definite
end Congress was empowered to legislate
within that sphere.
Since the beginning, Federal courts
have recognized and applied the rules and
principles of maritime law as something
distinct from laws of the several states, —
not derived from or depend^it on their
will. The foundation of the right to do
this, the purpose for which it was grant-
ed, and the nature of the system so ad-
ministered, were distinctly pointed out
long ago. "That we have a maritime law
of our own, operative throughout the
United States, cannot [161] be doubted.
. . . One thing, however, is unques-
tionable: the Constitution must have
referred to a system of law coerten-
64 li. ed.
sive with, and operating uniformly in,
the whole countiy. It certainly could
not have been the intention to place
the rules and limits of maritime law
under the disposal and regulation of
the several states^ as that would have
defeated the uniformity and consist-
ency at which the Constitution aimed
on all subjects of a commercial char-
acter affecting the intercourse of the
states with each other or with foreign
states." The Lottawanna (Rodd v.
Heartt) 21 Wall. 558, 574, 575, 22 L. ed.
654, 661, 662. The field was not left un-
occupied; the Constitution itself adopted
the rules concerning rights and liabilities
applicable therein; and certainly these
are not less paramount iiian they would
have been if enacted by Congress. Un-
less this be true, it is quite impossible to
account for a multitude of adjudications
by the admiralty courts. See Workman
v. New York, 179 U. 8. 552, 557, et seq.,
45 L. ed. 314, 319, 21 Sup. Ct. Rep. 212.
The distinction, between the indicated
situation created by the Constitution rela-
tive to maritime affairs and the one re-
sulting from the mere grant of power to
regulate commerce, without more, should
not be forgotten. Also, it should be
noted that Federal laws are constantly
applied in state courts, — ^unless inhibited,
their duty so requires. Const, art 6, d.
2; Second Employers' Liability Cases
(Mondou V. New York, N. H. h H. R.
Co.) 223 U. S. 1, 55, 56 L. ed. 327, 348,
38 L.R.A.(N.S.) 44, 32 Sup. a. Rep.
169, 1 N. C. C. A. 895. Consequently
mere reservation of partially concurrent
cognizance to such courts by an act of
Congress conferring an otherwise ex-
clusive jurisdiction upon national courts
could not create substantive rights or ob-
ligations, or indicate assent to their cre-
ation by the states.
When considered with former decisions
of this court, a satisfactory interpretation
of the Act of October 6, 1917, is difficult,
perhaps impossible. The Howell, 257
Fed. 578, and Rhode v. Grant Smith
Porter Co. 259 Fed. 304, illustrate some
of the uncertainties. In the [162] first,
the district court in New York dismissed
a libel, holding that rights and reihedies
prescribed by the Compensation Law of
that state are exclusive and pro tanto
supersede the maritime law. In the sec-
ond, the district court of Oregon ruled
that when an employee seeks redress for
a maritime tort by an admiralty court,
rights, obligations, and liabilides of the
respective parties must be measured Hy
the maritime law, and these cannot be
barred, enlarged, or taken away by state
8S9
162-164
SUPREME CX)URT OF THE UNITED STATES.
Oct.
leg^islatiou. Other difficulties hang upon
the unexplained words, '^Workmen's Com-
pensation Law of any state."
MoreoTer, the aet only undertook to
add oertain spedfied rights and remedies
to a saving clause witlun a Code section
conferring jurisdiction. We have held
that before the amendment, and irrespec-
tive of that section, such rights and
remedies did not apply to maritime torts
because they were inconsistent with para-
mount Federal law, — within that field
they had no existence. Were the added
words therefore wholly . ineffective T The
usual function of a saving clause is to
preserve something from immediate in-
terference,— not to create; and the rule
is that expression by the legislature of
an erroneous opinion concerning the law
does not alter it. Endlich, Interpreta-
tion of Stat. § 372.
Neither branch of Congress devoted
much debate to the act under consider-
ation— altogether, less than two pages of
the Record (65th Cong., pp. 7605, 7843).
The Judiciary Committee of the House
made no report; but a brief one by the
Senate Judiciary Committee, copied be-
low,' [168] probably indicates the gen-
eral legislative purpose. And with this
and accompan3ring circumstances, the
words must be read.
Having regard to all these things, we
conclude that Congress undertook to per-
mit application of Workmen's Compensa-
tion Laws of the several states to injuries
within the admiralty and maritime juris-
diction; and to save such statutes from
the objections pointed out by Southern
P. Co. V. Jensen. It sought to authorize
and sanction action by the states in pre-
scribing and enforcing, as to all parties
concerned, rights, obligations, liabilities,
[164] and remedies designed to provide
compensation for injuries suffered by
employees engaged in maritime work.
And, so cons&ued, we think the enact-
ment is beyond the power of Congress.
Its pow^ to legislate eoneeming rights
and liabilities within the maritime jt^s-
diction, and remedies for th^r enforce-
ment, arises from the Constitution, as
above indicated. The definite object of
the grant was to commit direct control to
the Federal government; to relieve mari-
time commerce from nnneoessarv burdens
and disadvantages incident to discordant
legislation; and to establish, so far as
practicable, harmonious and uniform
rules applicable throughout every part of
the Union.
Considering the fundamental purpoi?e
in view and the definite end for which
such rules were accepted, we must con-
clude that in their characteristic features
and essential international and interstate
relations, the latter may not be repealed,
amended, or changed except by legisla-
tion which embodies both the will and de-
liberate judgment of Congress. The
subject was intrusted to it, to be dealt
with according to its discretion, — not for
del^ation to others. To say that be-
cause Congress could have enacted a com-
pensation act applicable to maritime in-
juries, it could authorise the stales to do
I
S65th Congress, Ist Session. Senate Re-
port No. 139. Amending the Judicial Code.
October 2, 1917. Ordered to be printed.
Mr. Ashurst, from the Committee on the
Judiciary, submitted the following report.
[To accompany S. 2916.]
The Committee on the Judiciary, to
which was referred the bill (S. 2916) to
amend §§ 24 and 256 of the Judicial Code,
relating to the jurisdiction of the district
courts, so as to save to claimants the
rights and remedies under the Workmen's
Compensation Law of any state, having
considered the same, recommend its pas-
sage without amendment.
The Judicial Code, by §§ 24 and 256, con-
fers exclusive jurisdiction on the district
courts of the United States of all civil
cases of admiralty and maritime jurisdic-
tion, ''saving to suitors in all cases the
right of a common-law remedy where the
conunon law is competent to give it." It
was declared by the Supreme Court of the
United States in the case of Southern P.
Co. V. Jensen that **the remedy which the
Compensation Statute attempts to give is
of a character wholly unknown to the com-
mon law, incapable of enforcement by the
840
ordinary processes of any coUrt^ and is not
saved to suitors from the ffrant of exclusive
jurisdiction." The bill (S. 2916) proposes
only to amend the Judicial Code mr so en-
larging the saving clause as to Include the
rights and remedies under the Compensa-
tion Law of any state. Inasmuch as not
only the remedy but sometimes the right
under the compensation plan is unknown
to the conunon law, both rights and rem-
edies are included in the bill. The bill, if
enacted, will not disrupt the admiralty ju-
risdiction of the Federal courts. The mont
that can be said of it will be that It is a
recognition by Congress that a coneurrcBt
jurisdiction, state and Federal, should ex-
ist over certain matters. Aetioas that
were formerly triable in admiralty courts
will still be triable there. Wheie the cases
were formerly triable only in such courts,
it will now be possible for the state,
through its compensation plan, to deter-
mine the rights of the parties coRcemed.
In other words, there being concnrrent
jurisdiction, the injured party, or his de-
pendents, may bring an action in admiralty
or submit a claim under the ccnnpeniation
plan.
saa V. s.
1919.
ItNlCKERBOCKER ICE CO. v. STEWART.
164-166
so, as they might desire, is false reason-
ing. Moreover, such an authorization
would inevitably destroy the harmony
and uniformity which the Constitution
not only contemplated, but actually es-
tablished,— ^it would defeat the very pur-
pose of the grant. See Sudden &
Christenson v. Industrial Acci. Commis-
sion, — Cal. — , 188 Pac. 803.
Congress cannot transfer its legisla-
tive power to the states, — by nature this
is nondelegable. Re Rahrer, 140 U. S.
545, 560, 35 L. ed. 572, 576, 11 Sup. Ct
Rep. 865; Marshall Field & Co. v. Clark,
143 U. S. 649, 692, 36 L. ed. 294, 309, 12
Sap. Gt. Rep. 495; ButtEeld v. Strana-
han, 192 U. S. 470, 496, 48 L. ed. 526,
535, 24 Sup. Ct. Rep. 349; BuUe City
Water Co. v. Baker, 196 U. S. 119, 126,
49 L. ed. 409, 412, 25 Sup. Ct. Rep. 211;
Interstate Commeroe Commission v.
Goodrich Transit Co. 224 U. S. 194, 214,
56 L. ed. 729, 737, 32 Sup. Ct Rep. 436.
In Clark Distilling Co. v. Western Mary-
land R. Co. 242 U. [166] S. 311, 61 L. ed.
326, LJt.A.1917B, 1218, 37 Sup. Ct. Rep.
180, Ann. Cas. 1917B, 845, notwithstand-
ing the contention that it violated the
Constitution (art. 1, § 8, clause 3), this
court sustained an aet of Congress which
prohibited the shipment of intoxicating
liquors from one state into another when
intended for use contrary to the latter's
laws. Among other things, it was there
stated that ''the argument as to del^a-
tlon to the states rests upon a mere mis-
conception. It is true the regulation
which the Webb-Kenyon Act [March 1,
1913, 37 Stat, at L. 699, chap. 90, Comp.
Stat. § 8739, 4 Fed. Stat. Anno. 2d ed.
p. 593] contains, permits state prohibi-
tions to apply to movements of liquor
from one state into another, but the will
which causes the prohibitions to be ap-
plicable is that of Congress;^ L e.. Con-
gress itself forbade shipments of a des-
ignated character. And further: "The
exceptional nature of the subject here
regulated is the basis upon which the ex-
ceptional power. exerted must rest," i. e.,
different considerations would apply to
innocuous articles 'of commerce.
The reasoning of that opinion pro-
ceeded upon the postulate that because of
the peculiar nature of intoxicants, which
gives enlarged power concerning them,
Congress mi^t go so far as entirdy to
proMbit their transportation in interstate
commerce. The statute did less. ''We
can see no reason for saying that although
Congress, in view of the nature and char-
acter of intoxicants, had a power to for-
bid their movement in interstate com-
64 li. ed.
meree, it had not the authority to so deal
with the subjeot as to establish a regula-
tion (which is what was done by the
Webb-Kenyon Law) making it impossi-
ble for one state to violate the prohibi-
tions of the laws of another through the
ohanneb of interstate commerce. Indeed,
we can see no escape from the conclusion
that if we accepted the proposition urged^
we would be obliged to announce the
contradiction in terms that because Con-
gress had exerted a regulation lesser in
power than it was auUiorized to exert,
therefore its action was void for excess
of power." See Delamater v. South Da-
kota, 205 U. S. 93, 97, 51 L. ed, 724, 728,
27 Sup. Ct. Rep. 447, 10 Ann. Cas. 733.
[166] Here, we are concerned with a
wholly different constitutional provision,
• — one which, for the purpose of securing
harmony and uniformity, prescribes a set
of rules, empowers Congress to legislate
to that end, and prohibits material inter-
ference by the states. Obviously, if every
state may freely declare the rights and
liabilities incident to maritime employ-
ment, there will at once arise the con-
fusion and uncertainty which framers of
the Constitution both foresaw and under-
took to prevent.
In The Hamilton (Old Dommion S. S.
Co. V. Gilmore) 207 U. S. 398, 52 L. ed. .
264, 28 Sup. Ct. Rep. 133, an admiralty
proceeding, effect was given, as against
a ship registered in Delaware, to a stat-
ute of that state which permitted recovery
by an ordinary action for fatal injuries,
and the power of a state to supplement
the maritime law to that extent was
recognized. But here the state enactment
prescribes exdusive rights and liabilities,
undertakes to secure their observance by
heavy penalties and onerous conditions,
and provides novel remedies incapable of
enforcement by an admiralty court. See
New York C. R. Co. v. White, 243 U. S.
188, 61 L. ed. 667, L.R.A.1917D, 1, 37
Sup. Ct. Rep. 247, Ann. Cas. 1917D, 629,
13 N. C. C. A. 943 ; New York C. R. Co.
V. Winfield, 244 U. S. 147, 61 L. ed.
1045, L.R.A.1918C, 439, 37 Sup. Ct. Rep.
546, Ann. Cas. 1917D, 1139, 14 N. C.
C. A. 680; Southern P. Co. v. Jensen, su-
pra. The doctrine of The Hamilton may
not be extended to such a situation.
The judgment of the court below must
be reversed and the cause remanded with
directions to take further proceedings not
inconsistent with this opinion.
Reversed and remanded.
Mr. Justice Holmat, dissenting:
In Southern P. Co. v. Jensen, 244 U.
S. 205, 61 L. ed. 1086, L.R.A.1918C, 451,
841
166-169
SUPKEME COURT OP T^E UNITED STATES.
Oct.
)
37 Sup. Ct. Rep. 624, Ann. Cas. 1917E,
900, 14 N. C. C. A. 696, the cpestion was
whether there was anything in the Con-
stitution or laws of the United States to
prevent a state from imposing upon an
employer a limited but absolute liability
for the dea^ of an employee upon a
gangplank between a yessel and a wharf,
which the state unquestionably [167]
could have imposed had the death oc^
curred on the wharf. A majority of
the court held the state's attempt in-
valid, and thereupon, by an Act of
October 6, 1917, chap. 97, 40 Stat,
at L. 395, Comp. Stat. § 991(3),
Fed. Stat. Anno. Supp. 1918, p. 401,
Congress tried to meet the effect of the
decision by amending § 24, d. 3, and §
256, cl. 3, of the Judicial Code; Act of
March 3, 1911, diap. 231, 36 Stat, at L.
1087, Comp. Stat § 968, 4 Fed. Stat.
Anno. 2d ed. p. 815. Those sections in
similar terms declared the jurisdiction of
the district court and the exclusive juris-
diction of the courts of the United States,
"of all civil causes of admiralty and
maritime jurisdiction, saving to suitors
in all eases the right of a commion-law
remedy where the common law is compe-
tent to give it." The amendment added,
I "and to claimants the rights and reme-
dies under the Workmen's Compensation
Law of any state." I thought that claim-
ants had those rights before. I think
that they do now, both for the old rea-
sons and for new ones.
1 do not suppose that anyone would
say that the words, "The judicial power
shall extend . . . to idl cases of ad-
miralty and maritime jurisdiction"
(Const, art. 3, § 3), by implication enact-
ed a whole code for master and servant
at sea, that could be modified only by a
constitutional amendment. But somehow
or other, the ordinary common-law rules
of liability as between master and serv-
ant have come to be applied to a consid-
erable extent in the admiralty. If my
explanation, that the source is the com-
mon law of the several states, is not ac-
cepted, I can only say, I do not know
how, unless by the fiat of the judges.
But surely the power that imposed the
liability can change it, and I suppose
that Congress can do as much as the
judges who introduced the rules. For
we know that they were introduced, and
cannot have been elicited by logic alone
from the medieval sea laws.
But if Congress can legislate, it has
done so. It has adopted statutes that
were in force when the Act of October
6, 1917, was passed, and to that extent
has acted as definitely as if it had repeat-
842
ed the words used by the [168] several
states, — a not unfamiliar form of Iaw.
GKbbons v. Ogden, 9 Wheat. 1, 207, 6 L*.
ed. 23, 72; Hobart v. Drogan, 10 Pet.
108, 119, 9 L. ed. 363, 367; Cooley ▼-
Port Wardens, 12 How. 299, 317, 318,
13 L. ed. 996, 1004; Interstate ConsoL
Street R. Co. v. Massachusetts, 207 U. S.
79, 84, 85, 52 L. ed. Ill, 114, H^, 28
Sup. Ct. Rep. 26, 12 Ann. Cas. 555;
Franklin v. United States, 216 U. S. 569,
54 L. ed. 615, 30 Sup. Ct. Rep. 434;
Louisville & N. R. Co. v. Western XT.
Teleg. Co. 237 U. 8. 300, 303, 59 L. ed.
965, 966, 35 Sup. Ct. Rep. 598, An act
of Congress, we always say, will be con-
strued so as to sustain it, if possible, and
therefore, if it were necessary, the
words ^'rights and remedies under the
Workmen's Compensation LaW of any
state" should be taken to refer solely to
laws existing at the time, as it, certainly
does at least include them. See United
States V. Paul, 6 Pet. 141, 8 L. ed. 348.
Taking the act as so limited, it is to be
read as if it set out at length certain
rules for New York, certain others more
or less different for California, and so on.
So construed, the single objection that I
have heard to the law is that it makes
different rules for diilerent places, and I
see nothing in the Constitution to pre-
vent that. The only matters with regard
to which uniformity is provided for in
the instrument, so far as I now remem-
ber, are duties, imposts, and excises,
naturalization and bankruptcy, in article
1, § 8. As to the purpose of the clause
concerning the judicial power in these
cases nothing is said in the instrument it-
self. To r^ into it a requirement of
uniformity more mechanical than is
educed from the express requirement of
equality in the 14th Amendment seems
to me extravagant. Indeed, it is con-
trary to the construction of the Constitu-
tion in the very clause of the Judiciary
Act that is before us. The saving of a
common-law remedy adopted the common
law of the several states within their
several jurisdictions, andj I may add by
way of anticipation, . included at least
some subsequent statutory changes. Amer-
ican S. B. Co. V. Chase, 16 Wall. 522,
530-534, 21 L. ed. 369, 371-373 : Knapp,
S. &. Co. Co. V. McCaffrey, 177 U. S. 638,
645, 646, 44 L. ed. 921, 925, 20 Sup. Ct
Rep. 824; Rounds v. Cloverport Foundry
& Mach. [169] Co. 237 U. S. 303, 307,
59 L. ed. 96Q, 35 Sup. Ct. Rep. 596. I
cannot doubt that in matters with which
Congress is empowered to deal it may
make different arrangements for widely
different localities with periiaps widelv dif-
253 tr. s.
1910.
CALHOUX V. MASSIE.
169, 170
ferent needs. See United States v. Press
Pub. Co. 219 U. S. 1, 9, 55 L. ed. 65, 66,
31 Sup. Ct. Rep. 212, 21 Ann. Cas. 942.
I thoaght that Clark Distilling Co. v.
Western Maryland R. Co. 242 U. S. 311,
61 L. ed. 326, L.R.A.1917B, 1218, 37
Sup. Ct. Rep. 180, Ann. Cas. 1917B, 845,
went pretty far in justifying the adop-
tion of state legislation in advance, as I
eannot for a moment believe that, apart
from the 18th Amendment, special consti-
tutional principles exist against strong
drink. The fathers of the Constitution,
so far as I know, approved it. But I can
see no constitutionid objection to such an
adoption in this case if the act of Con-
gress be g^ven that effect. I assume that
Congress could not delegate to state legis-
latures the simple power to decide what
the law of the United States should be in
that district. But when institutions are
established for ends within the power of
the states, and not for any purpose of af-
fecting the law of the United States, I
take it to be an admitted power of Con-
gress to provide that the law of the
United States shall conform as nearly as
may be to what, for the time being,
exists. A familiar example is the law di-
recting the common-law practice, etc., in
the district courts, to "conform, as near
as may be, to the practice, etc., existing
at the time" in the state courts. Rev.
Stat. § 914, Comp. Stat. § 1537, 6 Fed.
Stat. Ajino. 2d ed. p. 21. This was held
by the unanimous court to be binding in
Amy v. Watertown, 130 U. S. 301, 32 L,
ed. 946, 9 Sup. Ct. Rep. 530. See Gib-
bons V. Ogden, 9 Wheat. 1, 207, 208, 6
L. ed. 23, 72, 73; Cooley v. Port Wardens,
12 How. 299, 317, 318, 13 L. ed. 996,
1004. 1 have mentioned the scope given
to the saving of a common-law remedy,
and have referred to cases on the statutes
adopting state pilotage laws. Other in-
stances are to be found in the acts of
Congress, but these are enough. I think
that the same principle applies here. It
should be observed that the objection now
dealt with is the only one peculiar to the
adoption of local law in advance. That
of [170] want of imiformity applies
equally to the adoption of the faws in
force in 1917. Furthermore, we are not
called on now to consider the collateral
effects of the act. The only question be-
fore us is whether the words in the Con-
stitution, '^The judicial power shall extend
to ... all cases of admiralty and
maritime jurisdiction," prohibit Congress
from passing a law in the form of the
New York Workmen's Compensation
Act ; if not in its present form, at least j
in the form in which it stood on October
04 li. ed.
6, 1917. I am of opinion that the New
York law at the time of the trial should
be applied, and that the judgment should
be aiffirmed.
Mr. Justice Pitney, Mr. Justice
Brandeis, and Mr. Justice Olarka concur
in this opinion.
C. C. CALHOUN, Petitioner,
V.
BLAND MASSIE.
(See S. C. Reporter's ed. 170-182.)
Claims — against United States 7- as-
sifi^nment before allowance.
1. A provision in a contract for the
prosecution of a claim against the United
States which purports to xAake the con- *
tingent Attorney's fee therein ]provided for
a lien upon any warrant which may be
issued in payment of such claim is re-
pugnant to U. S. Rev. Stat. § 3477, annul-
ling assignments of such claims, or of any
part or interest therein, made in advance
of the allowance of the claim.
[For other cases, see Claims, I. d, 2, d, In Di-
gest Sup. Ct. 1908.]
Claims — against United States — com-
pensation for prosecution — contin-
gent-fee legislation — efTect on exist-
ing contracts.
2. An existing contract for the pay-
ment to an attorney for professional serv-
ices to be rendered in the prosecution of a
Civil War claim against the United States
of a sum equal to 50 per cent of whatever
might be collected was inyalidated by the
provision of the Omnibus Claims Act oi
March 4, 1015, which, after making an
appropriation for payment of such claim,
made it unlawful for any attorney to exact,
^— ^ Willi l—^^il^^— ^^■^—■i^M^^M^I^—i — ^^p^i^ — ^»^»— — ^■i^1^^i»^1^M^^^»^^^^— ^»
Note. — ^As to validity of assignment
of claims against United States — see
note to Lopez v. United States, 2 L.R.A.
571.
As to attorney's compensation contin-
gent on success or from proceeds of suit;
a fixed sum or a percentage — see note to
McMicken v. Perin, 15 L. ed. U. S. 504.
As to lien of attorney for compensa-
tion— see note to Texas v. White, 19
L. ed. U. S. 992.
On right of attorney who takes case
on contingent fee or for certain percent-
age to implied or equitable lien on fund
recovered — see note to De Winter v.
Thomas, 27 L.R.A.(N.S.) 634.
AlS to validity of agreement by which
compensation is contingent upon success
in procuring contract with, or allowance
of claim against, the United States — see
note to Crocker v. United States, 60
L. ed. U. S. 533.
B48
171, 1T2
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
(
collect, withhold, or receive ajiy simi which,
in the aggregate, exceeds 20 per cent of the
amount of any item appropriated in that
act, on account of services rendered or ad-
vances made in connection with said claim,
any contract to the contrary notwithstand-
ing.
TFor other cases, see Claims, I. d, 2, d, in Di-
gest Sup. Ct. 1908.]
Constitutional law — due process of law
<— freedom to contract — limiting at-
torneys* fees — claims against United
States.
3. The limitation of the compensation
of attorneys in the prosecution of claims
against the United States to 20 per cent
of the amount collected, any contract to the
contrary notwitiistanding, which was made
by the Onmibus Claims Act of March 4,
1915, § 4, does not contravene U. S. Const.,
5th Amend., when applied to invalidate a
contingent-fee contract entered into and
substantially performed before the passage
of the statute,— especially where, at the
time the contract was made, there was no
legislation, general or special, which con-
ferred upon the claimant any right of re-
covery, even if he should establish to the
satisfaction of Congress that his claim was
equitable^ and where the attorney accepted
and received from the United States Treas-
ury a warrant for 20 per cent of the amount
appropriated, although this was not ac-
cepted by him as a full settlement of his
rights against the client.
[For other cases, see Constitutional Law. 501-
.'tOe : Claims, I. d, 2, b, in Digest Sup. Ct.
lOOS.]
[No. 294.]
Argued March 11, 1920. Decided May 17,
• 1920.
ON WRIT of Certiorari to the Su-
preme Court of Appeals of the
State of Virginia to review a judgment
wbich affirmed a judgment of the Circuit
Court of Nelson County, in that state, in
favor of defendant in an action of
assumpsit. Affirmed.*
See same case below, 123 Va. 673, 97
S. E. 576.
The facts are stated in the opinion.
Mr. CHiarlas F. OonMttl argued the
cause, and, with Mr. J. C. Brooke, filed
a brief for petitioner:
The court erred in holding that § 4
of the Act of March 4, 1015, does more
than to limit the applieation or use of
the fund appropriated, by prohibiting
payment from such fund of more than
20 per cent thereof on account of attor-
ney fees.
1 Leave granted on June 7, 1920, to pre-
sent a petition for rehearing herein within
thirty days.
814
Capital Trust Co. v. Calhoun, 250 U.
S. 208, 63 L. ed. 942, 19 Sup. Ct. Rep.
486; Black v. Crouch, ~ W. Va. — ,
100 S. E. 750.
The court erred in holding that the
statute, as construed, does not deprive
Calhoun of his property without due
process of law.
Sinking Fund Cases, 99 U. S. 700,
727, 25 L. ed. 496, 504; McGowan v.
Parish, 237 U. S. 285, 59 L. ed. 955, 35
Sup. Ct. Rep. 543; Osbom v. Nichol-
son, 13 Wall. 654, 20 L. ed. 689; Shel-
don V. Sill, 8 How. 441, 449, 12 L. ed.
1147, 1151; Haskell v. Blair, 3 Cush.
535; Green v. Edwards, 31 Bw I. 1, 77
Atl. 188, Ann. Cas. 1912B, 41; Pacific
Mail S. S. Co. V. Joliffe, 2 Wall. 450, 17
L. ed. 805.
Mr. James E. Oaskie argued the cause,
and, with Mr. Fred Harper, filed a brief
for respondent:
The purpose of the act of Congress is
plain, and similar purposes in cases of
this kind have been expressly approved.
Ball V. Halsell, 161 U. S. 72, 40 L. e<L
622, 16 Sup. Ct. Rep. 554.
The act is constitutional.
Frisbie v. United States, 157 U. S.
162, 39 L. ed. 657, 15 Sup. Ct. Rep. 586 ;
Ralston v. Dunaway, 123 Ark. 12, 184
S. W. 425, Ann. Cas. 1918C, 870.
The act of Congress itself, in making
the appropriation, alone gave a right to
compensation, and an act which gives
the right can necessarily limit that right.
Beers v. Arkansas, 20 How. 529, 15
L. ed. 992; Gritts v. Fisher, 224 U. S.
640, 56 L. ed. 928, 32 Sup. Ct. Rep. 580.
Mr. Justice Brandeis delivered the
opinion of the conrt:
The Omnibus Claims Act (March 4,
1915, chap. 140, 38 Stat, at L. 962)
made appropriations for the payment of
1415 claims arising out of the Civil War
which had, from time to time during the
preceding twenty-eight years, been re-
ferred by resolution of the House or of
the Senate to the court of claims for in-
vestigation, either under the Bowman Act
(March 3, 1883, chap. 116, 22 SUt at L.
486, Comp. Stat. S 1139), or under the
Tucker Act (March 3, 1887, chap. 350,
24 Stat, at L. 505), [17«] or under §
151 of the Judicial Code [36 Stat at L.
1138, chap. 231, Comp. SUt § 1142, 5
Fed. Stat. Anno. 2d ed. p. 665.] Among
the claims which that court reported fa-
vorably was one of Bland Massie, which
had been referred to it by resolutioii of
95t IT. S.
1919.
CALHOUN V. MASSIE.
172-174
the House on February 3, 1911.* By § 1
of the Omnibus Claims Act (p. 989), the
Secretary of the Treasury was directed
to pay Massie $1,900. Section 4 of the
act (p. 996) provided as follows:
''That no part of the amount of any
item appropriated in this bill in excess of
twenty per centum thereof shall be paid
or delivered to or received by any agent
or agents, attorney or attorneys on ac-
count of services rendered or advances
made in connection with said claim.
''It shall be unlawful for any agent or
agents, attorney or attorneys to. exact,
collect, withhold or receive any sum which
in the aggr^ate exceeds twenty per
centum of the amount of any item |ip-
propriated in this bill on account of
services rendered or advances made in
connection with said claim, any contract
to the contrary notwithstanding. Any
person violating the provisions of this
act shall be deemed guilty of a misde-
meanor and upon conviction thereof shall
be fined in any sum net exceeding
$1,000."
Massie had executed on April 18, 1911,
an agreement as follows:
"Fee agreement. — This agreement wit-
nesseth: that I, Bland Massie, of Tyro,
Nelson county, Virginia, have employed
C. C. Calhoun, of Washington, District
of Columbia, as my attorney to prose-
cute my claim against the government of
the United States for property taken by
the Federal forces during the late Civil
War; and in consideration of his profes-
sional services in the prosecution of said
claim I hereby agree and bind my heirs
and legal representatives, to pay him,
his heirs or legal representatives, as a
fee a sum equaJ to 50 pec cent of the
amount which may [173] be collected
upon said claim, said fee to be a lien on
any warrant which may be issued in
payment of said claim."
Calhoun prosecuted Massie's claim be-
fore the court of claims and secured the
allowance of a motion to transmit its re-
port to Congress, which thereafter made
the appropriation above stated. On May
5, 1915, the government paid the $1,900
by means of two Treasury warrants, one
for $380 (20 per cent thereof), made
payable to Calhoun, the other for $1,520
(80 per cent thereof), made payable to
Massie. Calhoun demanded of Massie a
further sum of $570, equal to 30 per cent
of the claim. Payment was refused, and
he brought this suit in a state court of
Virginia to recov^ the amount, claiming
<63d Congress, 2d Session, House Re-
port No, 97; Senate Report No. 357; 63d
Congress. Ist Session, House Doc. 64.
64 li. ed.
that the warrant for 20 per cent had
been accepted by him without waiving or
releasing his right under the contract to
the balance. A declaration setting forth
in substance the above facts was de-
murred to on the ground that recovery
was prohibited by § 4 of the act under
which the appropriation was made. The
demurrer was sustained, and judgment
entered thereon was affirmed by the su-
preme court of appeals of the state of
Virginia (123 Va. 673, 97 S. E. 576).
The case comes here on writ of certiorari
(249 U. S. 596, 68 L. ed. 794, 39 Sup. Ct.
Rep. 289), Calhoun having contended in
both lower courts, as here, that § 4 de-
prives him of liberty and property
guaranteed by the 5th Amendment to the
Federal Constitution, and hence is void.
For nearly three quarters of a century
Congress has undertaken to control in
some measure the conditions under which
claims against the government may be
prosecuted. Its purpose has been in
part to protect just claimants from ex-
tortion or improvident bargains, and in
part to protect the Treasury from frauds
and imposition. See United States v. Van
Leuven, 62 Fed. 52, 56. While recog-
nizing the common need for the serv-
ices of agents and attorneys in the presen-
tation of such claims, and that parties
would often be denied the opportunity of
[174] securing such services if contin-
gent fees were prohibited (Taylor v.
Demise, 110 U. S. 42, 45, 28 L. ed.
64, 65, 3 Sup. Ct. Eep. 441), Con-
gress has manifested its belief that
the causes which gave rise to laws
against champerty and maintenance
are persistent. By the enactment, from
time to time, of laws prohibiting
the assignment of claims, and placing
limitations upon the fees properly charge-
able for services,' Congress has sought
both to prevent the stirring up of unjust
< Assignment of claims against the Unit-
ed States: Acts of July 29, 1846, chap. 66,
9 Stat, at L. 41; February 26, 1853, chap.
81, § 1, 10 Stat, at L. 170, Rev. Stat. ^
3477, CoDip. Stat. § 6383, 2 Fed. Stat. Anno.
2d ed. p. 179. Repayment of moneys col-
lected by direct tax: March 2, 1891, chap.
496. § 3 26 Stat, at L. 822. Indian depre-
dation claims: Act of March 3, 1891, chap.
538, g 9, 26 SUt. at L. 851, 854, 2 Fed.
Stat. Anno. 2d ed. pp. 229, 240. Pensions:
Rev. Stat. § 4785 (Act of July 8, 1870,
chap. 225, § 7, 16 Stat, at L. 193, 194, as
amended by Act of July 4, 1884, chap. 181,
§ 4, 23 Stat, at L. 98, 99, Comp. Stat. §
9115, 7 Fed. Stat. Anno. 2d ed..p. 1056);
Rev. Stat. § 5486 (Act of March 3, 1873,
chap. 234, §g 31, 32, 17 Stat, at L. 666, 576,
Comp. SUt. §§ 9114, 9077, 7 Fed. SUt.
Anno. 2d ed. pp. 1035, 1037) ; Rev. SUt. §
845
174-176
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
claims against the govemmeiit and to re-
duce the temptation to adopt improper
methods of prosecution which contracts
for large fees, contingent upon success,
have sometimes been supposed to en-
courage. The constitutionality of such
legislation, although resembling in its
nature the exercise of the police power,
has long been settled (Marshall v. Balti-
more & O. B. Co. 16 How. 314, 336; 14
L. ed. 953, 962; United [175] States v.
Hall, 98 U. S. 343, 354, 355, 25 L. ed.
180, 183, 184; Ball v. Halsell, 161 U. S.
72, 82, 84, 40 L. ed. 622, 625, 626, 16
Sup. Ct. Rep. 554).
The provision in the contract sued on,
purporting to give a lien upon any war-
rant issued, was void under § 3477 of the
Revised Statutes (Comp. Stat. § 6383, 2
Fed. Stat. Anno. 2d ed p. 179). Nutt v.
Knut, 200 U. S. 12, 20, 50 L. ed. 348,
352, 26 Sup. Ct. Rep, 216. It is urged
that the act here in question should be
construed as limiting only the propor-
tion of the specific funds receiv^ from
the government which may be applied to
payment of attorneys' fees; but the sec-
ond paragraph of the law leaves no
room for construction. It provides that
"it shall be unlawful for any attorney
. . . to receive any sum which in the
aggregate exceeds twenty per c«itum" of
the claim. Calhoun contends, however,
that if the act is construed as limiting
the amount recoverable from a claimant
upon his personal obligation, it is void as
applied to contracts in existence at the
time of its passage; at least where, as
here, the services contemplated had then
been substantially performed.
That an act likiitiDg the compensation
of attorneys in the prosecution of claims
against the government is valid also as to
contracts which had been entered into be-
fore its passage was expressly held in
Ball v. Halsell, 161 U. S. 72, 82, 84, 40
L. ed. 622, 625, 626, 16 Sup. Ct Rep.
554. The act there in question was passed
seventeen years after the dat« of the eon-
tract, and the attorney had performed^
important services before its enactment. *
Here, it is said, substantially all the serv-
ices required of Calhoun had been per-
formed when the act was passed. The
difference in the percentage of services
performed cannot here affect the legal re-
sult. An appropriate exercise by a state
of its police power is consistent with the
14th Amendment, although it results in
serious depreciation of property values;
and the United States may, consistently
with the 5th Amendment, impose, for a
permitted purpose, restrictions upon
property which produce like results.
Lottery Case (Champion v. Ames) 188
U, S. 321, 357, 47 L. ed. 492, 501, 23 Sup.
Ct. Rep. 321, 13 Am. Crim. Rep. 561;
Hipolite Egg Co. v. United States, 220
U. S. 45, 58, 55 L. ed. 364, 368, 31 Sup.
Ct. Rep. 364; Hoke v. United [17«]
States, 227 U. S. 308, 323, 57 L. ed.
523, 527, 43 L.R.A.(N.S.) 906, 33
Sup. Ct. Rep. 281, Ann. Cas. 1913E,
905; Hamilton v. Kentudcy Distilleries
& Warehouse Co. 251 U. S. 146, ante,
194, 40 Sup. Ct. Rep. 106. The sov-
ereign right of the government is not
less because the property affected hap-
pens to be a contract. Louisville &
N. R. Co. V. Mottley, 219 U. S. 467,
484, 55 L. ed. 297, 304, 34 L.R.A.
(N.S.) 671, 31 Sup. Ct Rep. 265; Union
Dry Qoods Co. v. Georgia Public Service
Corp. 248 IJ. S. 372, 63 L. ed. 309, 9
4711 (Act of March 3, 1873, chap. 234, §
17, 17 Stat, at L. 566, 572, Comp. Stat. §
8999, 7 Fed. Sti^t. Anno. 2d ed. p. 1024) ;
Act of January 26, 1879, chap. 23, § 4, 20
Stat at L. 265, Comp. Stat. § 9113, 7 Fed.
Stat. Anno. 2d ed. p. 1071; Acts of June 27,
1890, chap. 634. § 4, 26 Stat, at L. 182, 183,
Comp. Stat. §§ 8992, 8938, 7 Fed. Stat.
Anno. 2d ed. pp. 1084, 1086; March 3, 1891,
chap. 542, 26 Stat, at L. 948, 979, Comp.
Stat. §§ 8485, 9124, 7 Fed. Stat. Anno. 2d
ed. p. 1119; March 3, 1891, chap. 548, 26
Stat, at L. 1081, 1082, 7 Fed. Stat. Anno.
2d ed. p. 1088; August 5, 1892, chap. 379,
§ 2, 27 Stat, at L. 348, 349, Comp. Stat. §§
9070, 9071, 7 Fed. Stat. Anno. 2d ed. pp.
1093, 1094; February 28, 1903, chap. 858.
§ 3, 32 Stat, at L. 920, 921, Comp. Stat. §§
8993, 8995, 7 Fed. Stat. Anno. 2d ed. pp.
1022. 1104; April 19, 1908, chap. 147, § 3.
35 Stat, at L. 64, Comp. Stat. § 8985, 7
Fed. Stat. Anno. 2d ed. p. 1109; May 28,
1908, chap. 208. 35 Stat, at L. 418, 419;
September 8, 1916, chap. 470, § 4, 39 Stat.
846
at L. 844, 845, Comp. Stat. §§ 8981a, 8981d,
Fed. Stat. Anno. Supp. 1918, p. 684; Act of
July 16, 1918, chap. 153, § 2, 40 Stat, at
L. 903, 904, Comp. Stat. § 8986b, Fed. Stat.
Anno. Supp. 1918, p. 689. Pay and bounty
of colored soldiers: Act of March 3, 1879,
chap. 182, § 2, 20 Stat, at L. 377, 402,
Comp. Stat. § 3969, 3 Fed. Stat Anno. 2d
ed. p. 410. Arrears of pay 9r allowances
in connection with services in the Civil
War: Act of December 22, 1911, chap. 6,
37 Stat, at L. 47, 49. 9 Fed. Stot. Anno. 2d
ed. p. 1233. Mississippi Choctaws: Act of
May 31. 1900, chap. 598, 31 Stat, at L. 221,
237. Service for J^ndian^: Rev. Stat. §
2104; Act of June 30, 1913, chap. 4, § 17,
38 Stat, at L. 77, 96; Act of August 1, 1914.
chap. 222, § 17, 38 Stat, at L. 582, 599,
Comp. Stat. § 4206e, 3 Fed. Stat Anno.
2d ed. p. 803. Claims under War Risk In-
surance Act: Act of June 12, 1917, chap.
26, § 8, 40 Stat, at L. 102, 104, Comp. Stat
§§ 514a, 614ee, 9 Fed. Stat Anno. 2d ed.
pp. 1299, 1303.
95S U. S.
1910.
CALHOUN V. MASSIB.
176-178
A.L.R. 1420, P.UJ1.1919C, 60, 39 Sap.
€t. Rep. 117. Here, unlike New York C.
<& H. R. R. Co. V. Gray, 239 U. S. 583,
•87, 60 L. ed. 451, 453, 36 Sup. Ct. Rep.
176, a performance of a substitute for
the obligation undertaken and later pro«
hibited by the statute is impossible, be-
cause the act forbids the collection or
receipt of any compensation in excess
of 20 per cent.
In the ease at bar there are special rea-
sons why the contract cannot prevail over
the statute enacted later. At the time
when the contract was entered into there
was no legislation, general or special,
which conferred upon Massie any right of
recovery even if he should establish to
the satisfaction of Congress that his
claim was equitable. A statute making
an appropria:tion to pay the claim was
thus a condition precedent to liability on
the part of Massie to Calhoun; and the
thing contracted for was Calhoun's aid
in seeming its enactment. The aid was
to be given by representing Massie be-
fore the court of claims. But both of the
parties knew that, although Calhoun
might have success before die court of
claims, Congress would still be free to re-
fuse both to recognize the claim as an
equitable one^ and to make an appropri-
ation for its payment. They also knew
that if it concluded to grant relief, Con-
gress was free to do so upon such condi-
tions as it deemed proper. Compare Ball
v. Halsell, supn^ip. 82, 84; Kendall v.
United States, 7 WaU. U3, 117, 19 L. ed.
85, 86. In view of the past action of
Congress limiting attorneys' fees, referred
to above, it was at least conceivable when
the contract was made that Congress
might, as it proved,* be unwilling to en-
act any legislation without assuring itself
that the benefits thereof would not inure
[177] largely to others than those
named in the* act. Assent by Cal-
houn to the insertion in the act of a
condition such as this, which he might
reasonably have contemplated would be
required to insure its passage, was,
therefore, implied in the contract to aid
in securing the legislation. Compare the
Elronprinzessin Cecilie (North (German
Lloyd V. Guaranty Trust Co.) 244 U. S.
12, 22, 23, 61 L. ed. 960, 965, 966, 37
Sup. Ct Rep. 490.
Furthermore, Calhoun accepted and re-
ceived from the Treasury a warrant for
20 per cent of the sum appropriated.
The money was paid and it was received
under the act which provided that it was
4 See 61 Cong. Rec. p. 324; 52 Gong. Rec.
6280, 6316.
•4 i«. ed.
unlawful to collect any sum in excess of
20 per cent, "any contract to the con-
trary notwithstanding.'' Calhoun cannot
take under the act and repudiate its pro-
visions. Compare Shepard v. Barron,
194 U. S. 553, 667, 48 L. ed. 1115, 1120,
24 Sup. Ct. Rep. 737; Grand Rapids &
I. R. Co. V. Osbom, 193 U. S. 17, 29, 48
L. ed. 598, 604, 24 Sup. Ct. Rep. 310;
Interstate Consol. Street R. Co. v. Massa-
chusetts, 207 U. S. 79, 52 L. ed. Ill, 28
Sup. Ct. Rep. 26, 12 Ann. Cas. 555. The
allegation in the declaration that he ac-
cepted the 20 per cent "without waiving
or releasing any of his rights under the
aforesaid contract'' was doubtless intend-
ed as a statement that the amount col-
lected from the government was not ac-
cepted as a full settlement of his rights
against the defendant under the contract.
But it was a protestation totally at vari-
ance with his conduct. The payment to
him by the Treasury of the 20 per cent
could be made only under the act. It
must be held to have been accepted ac-
cording to the terms of the act. Any
reservation which he may. have made in
words was futile. Capital Trust Co. v.
Calhoun, 250 U. S. 208, 218, 219, 63 L.
ed. 942, 946, 39 Sup. Ct. Rep. 486.
Affirmed.
Mr. Justice McBesmolds, dissenting:
In 1911 Calhoun made a lawful agree-
ment with Massie to prosecute the letter's
claim against the United States [178]
for property taken during the Civil
War (Taylor v. Bemiss, 110 U. S. 42,
28 L. ed. 64, 3 Sup. Ct. Rep. 441):
and Massie expressly bound hunself to
pay, as a fee for such services, '^a sum
equal to 50 per cent of the amount which
may be collected, said fee to be a lien
on any warrant," etc.
Calhoun performed his full part in
strict accordance with th6 contract. As a
result of his proper efforts, Cong^ress
finally approved the claim and appropri-
ated $1,900 to pay it (Act March 4, 1915,
chap. 140, 38 Stat, at L. 962, 989).
But the same act, § 4 (p. 996), provid-
ed that not more than 20 per cent of the
amount appropriated should be paid, or
delivered to, or received by, any attorney
for services, etc Also, '^It shall be un-
lawful for any agent or agents, attorney
or attorneys to exact, collect, withheld or
receive any sum which, in the aggregate,
exceeds twenty per centum of the amount,
of any item appropriated in this bill on .
account of serviees rendered or advances
made in connection with said claim, any
contract to the contrary notwithstanding.'
Any person violating the provisions of ^
847
178-180
SUPREME CX)URT OF THE UNITED STATES.
Oct. Turn,
this act shall be deemed guilty of a mis-
demeanor, and upon conviction thereof
shall be fined in any sum not exceeding
$1,000."
Capital Trust Co. v. Calhoun, 250 U.
S. 208, 63 L. ed. 942^ 39 Sup. Ct. Rep.
486, affirms the power of Congress to ex-
empt the appropriated fund from any
demimd for counsel fees.
In that case Calhoun, relying upon a
contract like the one presently before us,
recovered a judgment in the state court
for the difference between 20 per cent
received from the Treasury and 50 per
cent of the appropriation. The matter
came here and we expressly declared (p.
216) : "If the judgment only establishes
a claim against the administrator to be
satisfied, not out of the moneys received
from the United States, but from other
assets of the estate, a situation is present-
ed which it was said in Nutt v. Knut, 200
U. S. 12, 21, 50 L. ed. 348, 353, 26 Sup.
Ct. Rep. 216, would not encounter legal
objection. In other words, the limitation
[179] in the act appropriating the
money to 20 .per cent as the amount
to be paid to an agent or attorney
would have no application or be in-
volved." In effect, the court now holds
that statement was obviously erroneous;
and that Calhoun would have committed
a misflemeanor if he had accepted a fee
exceeding the 20 per cent!
As to certain "special reasons why the
contract cannot prevail over the stat-
ute enacted later."
(1) It is said that when he executed
the contract of employment, Calhoun im-
pliedly assented to the insertion in any
future appropriation act of a condition
like the one under consideration; there-
fore, he cannot recover. This assumes,
first, a construction of the act in direct
•conflict with the meaning heretofore at-
tributed to it, and, second, that, so con;
strued, it is within the power of Con-
gress. If these two assumptions are
correct, of course there is no right to re-
cover. This special reason can only
serve to mislead.
(2) It is further said that, as Calhoun
received 20 per cent of the amount ap-
propriated by an act which declared un-
lawful the collection of anything more,
he thereby in effect estopped himself
from making a personal demand against*
his client. But this again assumes a e<m-
struction of the act eontrary to what we
have declared, and further assumes that,
so coBStrued, it is valid. If these as-
sumptions are correct, no further dis-
cussion is needed. This special reason
S48
lacks substance and can serve no good
purpose.
The meaning of section 4.
Considering the definite statement con-
cerning the true meaning of this sectioD^
made twelve months ago in Capital Trust
Co. V. Calhoun, supra, and quoted above,
it would seem at least unusual now to an-
nounce a wholly different view, accom-
panied by the mere assertion that there
is "no room for construction." No men-
tion [180] is made of what was then
said in very plain terms. Of course, this
has been accepted as authoritative both
by lawyers and courts. The result is
necessarily injurious both to the court
and the public.
In United States ex rd. Atty. Gen. v.
Delaware & H. Co. 213 U. S. 366, 408,
63 L. ed. 836, 849, 29 Sup. Ct. Rep. 527,
this was said: "Where a statute is sus-
ceptible of two constructions, by one of
which grave and doubtful constitutional
questions arise, and by the other of which
such questions are avoided, our duty is
to adopt the latter." As that statement
has been repeated several times, it would
seem worthy of some consideration now.
I presume nobody doubts that Congress
has power to prescribe reasonable rules
concerning champerty, maintenance, or
kindred matters in United States courts,
and to regulate assignments of claims
against the government. But, under the
adopted construction, § 4 (Act of March
4, 1915) destroys an entirely lawful con-
tract made long before its passage, de-
prives counsel of his right to enforce the
personal liability of his client to pay for
services already performed, and renders
criminal the acceptance by him of more
than an arbitrarily specified amount.
Marshall v. Baltimore & 0. R. Co. 16
How. 314, 316, 14 L. ed. 953, 954 ; United
States V. Hall, 98 U. S.'343, 354, 355,
25 L. ed. 180, 183, 184; BaU v. Halsell,.
161 U. S. 72, 84, 40 L. ed. 622, 625, 16
Sup. Ct. Rep. 554, are referred to as au-
thority for such oppressive legislation.
They give it no support.
Marshall v. Baltimore & 0. R. Co. was
an attempt to collect compensation for
lobbying; and the holding was that a
contract is void, as against public policy,
and can have no standing in coiurt, by
which one party stipulate to employ a
number of secret agents in order to ob-
tain the passage of a particular law by
the legislature of a state, and the other
party promises to pay a large sum of
money in case the law should pass. The
case appears unimportant in eonnaetion
with this controversy.
IftS U. 6.
1919.
NBWMAK V. MOYERS.
180-182
In United States y. Hall| the eonrt
mled, CongreBS has power to declare that
embeaslement or fnnidiilent conversion
[181] to his own use by a gpiardian of
pension money received on behalf of his
ward from the government is an offense
against the United States. This case
might be relevant if Calhomi were seek-
ing to reach the fond appropriated by
Congress, bnt he is not.
In BaU Y. Halsell, an attorney sought
to recover imder a written agreement^
concerning which this court said (p. 82) :
''The instrument was an unilateral con-
tract, not signed by the attorney, nor con-
taining any agreement on his part, and
— so long, at least, as it had not been car-
ried into execution — might be revoked by
the principal ; or might be disregarded by
him in making a settlement with the
United States; or might be treated by
him as absolutely null and void in any
contest between him and the attorney.
... By the very terms of the contract,
the attorney was to be paid only out of
money recovered and received by him
from the United States." The case is
wholly unlike the one now before us. Mr.
Justice Gray took pains to explain the
difference between it and Davis v. Com.
164 Mass. 241, 30 L.R.A. 743, 41 N. B.
292, where the Massachusetts court ruled
that an agent of the state employed to
prosecute a claim against the United
States could recover compensation not-
withstanding the act of Congress appro-
priating money to meet the claim, pro-
vided that no part of such sum should be
paid by the state to any attorney under
previous contract.
Davis v. Com. and the language by
Mr. Justice Gray in Ball v. Halsell,
wherein he pointed out the dear distinc-
tion between the two cases, ought not to
be lightly disregarded.
It IS certainly a very serious thing to
decide that Congress, by its arbitrary
fiat, may wholly deprive counsel of the
right to enforce payment of compensa-
tion for long-continued efforts theretofore
lawfully put forth, and prevent him, in-
deed, from accepting anything therefor.
If a limit may be set at 20 per cent, any
payment may [182] be proscribed.
We should follow Capital Trust Co. v.
Calhoun, and reverse the judgment be-
low. .
The 5th Amendment was intended to
protect the individual against arbitrary
exercise of Federal power. It declares,
no person shall be deprived of life, lib-
erty, or property, without due process of
law; and this inhibition protects every
man in his right to engage in honest and
64 li. ed.
useful work for compensation. Adair v.
United States, 208 U. S. 161, 52 L. ed.
438, 28 Sup. Ce. Rep. 277, 13 Ann. Cas.
764; Coppage v. Kansas, 236 U. S. 1, 59
L. ed. 441, L.R.A.1915C, 960, 35 Sup. Ct.
Bep. 240; Adams v. Tanner, 244 U. S.
590, 61 L. ed. 1336, L.R.A.1917F, 1163,
37 Sup. Ct. Rep. 662, Ann. Cas. 1917D,
973.
Mr. Justice McKenna, Mr. Justice
Van Devanter, and Mr. Justice Pitney
concur in this dissent.
SUE ERSKINE NEWMAN, Administratrix
of the Estate of Ursula Ragland Erskine,
Deceased, David F. Houston,! Secretary
of the Treasury, and John Burke, Treas-
. urer of the United States, Appts.,
v.
IDA M. MOTERS and Charles F. Consaul,
Partners, Trading as Moyers & Consaul.
(See S. C. Reporter's ed. 182-186.)
»
Claims — against United States — com-
pensation for prosecution — contin-
. gent'tee legislation — effect of exist-
ing contracts.
1. An existing contract for the pay-
aient to an attorney for profeiisional serv-
ices to be rendered in the prosecution of a
Civil War claim against the United States
of a sum equal to 50 per cent of whatever
might be collected was invalidated by the
Srovision of the Omnibus Claims Act of
[arch 4, 1915, which, after making an ap-
propriation for payment of such claim»
made it unlawful for any attorney to exact,
collect, withhold, or receive, any sum which,
in the aggregate, exceeds 20 per cent of the
amount of any item appropriated in that
act, on account of services rendered or ad-
vances made in connection with said claim,
^ '
1 Motion to substitute as one of the ap-
?ellants Carter Glass, Secretary of the
reasury, in place of William G. McAdoo,
former Secretary of the Treasury, granted
October 13, 1919, on motion of counsel for
the appellants.
Motion to substitute as one of the appel-
lants David F. Houston, present Secretary
of the Treasury, in the place of Carter
Glass, former Secretary of the Treasury,
granted March 1, 1920, on motion of coimsel
for the appellants.
Note. — As to validity of assignment
of claims against United States — see
note to Lopez v. United States, 2 L.R.A.
571.
As to attorney's compensation contin-
gent on success or from proceeds of
suit; a fix«l sum or percentage — see
54 849
183, 184
SUPREBCE COURT OF THE UNITED STATES.
Oct. Term,
any contract to the contrary notwithstand*
ing.
[For other caiea tee Claims, I. d, 2, d, in Dl-
ffest Sap. Ct. Bep. 1008.]
Appeal — Judgment — remanding for
dismissal.
2. Error below in overruling the ob>
jection of lYeasury officials in a suit by
attorneys against their client and such
officials, that a valid act of Congress pro-
hibited the recovery sought, requires that
a judgment for plaintiffs be reversed upon
the appeals of such officials, and that the
cause be remanded, with directions to dis-
miss the bill as to them.
[For other cases, see Appeal and Error, IX. i,
1, d. in Digest Sup. Ct 1908.]
Appeal — judgment — want of prosecu-
tion by one of several appellants —
alllrmanco.
3. The want of prosecution of an appeal
by one of several joint appellants should
not result in the affirmance of the judgment
below as to such appellant, where the judg-
ment is reversed on the merits upon the
appeal of the other appellants.
[For other cases, see Appeal and Error, IX. e,
in Digest Sup. Ct. 1008.]
Appeal — Judgment — dismissal for pro-
ceedings below.
i, A dismissal of an appeal for want
of prosecution will remit the cause to the
lower court in the same condition as before
the appeal was taken, and will leave the
lower court free to take appropriate action
to prevent itself from being used as an
instrument in illegality.
[For other cases, see Appeal and Enor, IX. 1,
in Digest Sup. Ct. 190d.] «
[No. 85.)
Argued Marcii 11, 1020. Decided May 17,
1020.
APPEAL from the Court of Appeals
of the District of Colombia to re-
view a decree which afBrmed a decree of
the Supreme Court of the District in
favor of plaintiffs in a suit by attorneys
against their client and United States
Treasury ofQciab for the recovery of a
50 per cent contingent fee for prosecut*
ing a claim against the United States,
Decree reversed as to Treasury officials
and cause remanded with directions to
dismiss the bill as to them. Appeal of
the administratrix of the client dismissed
for want of prosecution, and cause re-
manded for further proceedings.'
See same ease belowj 47 App. D. C.
102, Ann. Cas. 1918E, 528.
The faets are stated in the opinion.
Assistant Attorney (General Frierson
argued the cause, and Solicitor G^eral
Kuig and Mr. A. F. Myers filed a brief
for appellants.
Mr. Oharles F. Oonsanl argued the
cause, and, with Mrs. Ida M. MoyeiB,
filed a brief for appellees in propriis
personis.
Mr. Justice Brandeis delivered the
opinion of the court:
By the Omnibus Claims Act of March
4, 1915, chap. 140, 38 Stat, at L. 962, 963,
discussed in Calhoun v. Massie, decided
this day [253 U. S. 170, ante, 843, 40 Sup.
Ct. Rep. 474], Ursula Ragland Erskine
became entitled to receive from the Sec-
retary of the Treasury the sum of $1,-
836.66. Long before that date she and
the firm of Moyers & Consaul, attorneys,
had entered into a contract for the prose-
cution of her claim against the govern-
ment. The contract provided that the at-
torneys should receive an amount equal
to 50 per cent of the sum collected. Its
terms and the services rendered were, in
snbstance, identical with those set forth
in Calhoun v. Massie. In reliance upon
§ 4 of the above act, Mrs. Erskine refused
to pay or assent to the payment to the
attorneys of an amount greater than 20
per cei)t of the appropriation; and the
Treasury officials were proposing to issue
a warrant, for 20 per cent thereof to
[184] the attorneys and another for
the balance to her. Moyers & Con-
saul insisted that the provision of the
act limiting fees of attorneys to 20
per cent was invalid; and they brought
this suit in the supreme court of the
District of Columbia against Mrs. Er-
skine, the Secretary of the Treas-
ury, and the Treasurer of the United
States, to recover the full 50 per cent
As in McGowan v. Parish, 237 U. S. 285,
59 L. ed. 955, 35 Sup. Ct. Rep. 543, the
plaintiffs prayed that they be declared
S Leave granted on June 7, 1920, to pre-
sent a petition for rehearing herein wi^in
thirty days.
note to McMicken v. Perin, 15 L. ed. U.
S. 504.
As to lien of attorney for compenssr
tion — see note to Texas v. White, 19
L. ed. U. S. 992.
On right of attorney who takes case
on contingent fee or for certain percent-
age to implied or equitable lien on fund
850
recovered — see note to De Winter ▼.
Thomas, 27 L.R.A.(N.S.) 634.
As to validity of agreement by which
compensation is contingent upon saeoess
in procuring contract with, or allowance
of claim against, the United States — aee
note to Crocker v. United States, 60
L. ed. U. S. 533.
16S U. 8.
1919.
NBWMAX V. MOVERS.
184-186
entitled to recover from Mrs. Erskine the
amount claimed; that the issuance to and
the collection by her of any amount from
the government be enjoined; and that
either the whole amount be paid into the
registry of the court, or that a receiver
be appointed who should coUect from the
government the whole amount, and pay
therefrom to plaintifEs an amount equal
to 50 per cent of the collection. Mrs.
Erskine died soon after the filing of the
bill, whereupon Sue Erskine Newman,
the administratrix of her estate, was
made defendant.
The Secretary of the Treasury and the
Treasurer moved to dismiss the bill of
complaint, among other reasons, on the
ground that collection of more than 20
per cent was prohibited by § 4, and that
the limitation thereby imposed was a valid
exercise of congressional power. Sue
Erskine Newman, as administratrix,
moved to dismiss on the same ground,
among others. The motions were over-
ruled; and the court entered a decree di-
recting payment of the money into court,
ordering that plaintiff recover from the
administratrix an amount equal to 50 per
cent of the coUeotion from the govern-
ment, and directing that this sum be paid
out of the funds to be so paid into court.
From the decree for plaintiffs entered by
the supreme court of the District of Co-
lumbia, all the defendants appealed to the
court of appeals for the District of Co-
lumbia; and when the latter affirmed the
decree of the lower court, all the defend-
ants joined in the appeal to this court.
The Honorable [185] Carter Glass, upon
becoming Secretary of the Treasury, was
substituted for the Honorable William G.
McAdoo; and the further substitution of
the Honorable David F. Houston was
made when he became Secretary of the
Treasury. The appellees now move to
dismiss the appefds of the Secretary of
the Treasury and the Treasurer of the
United States on the ground that neither
they nor the government have any pecu-
niary or other interest in the suit. They
also move to dismiss the appeal of the
administratrix on the ground that she did
not formally enter her appearance in this
court, nor take any part in the proceed-
ings here.
The merits of the former motion we
have no occasion to consider, for the fol-
lowing reason: Section 4 of the act
limited the compensation which the at-
torneys may collect or receive to 20 per
cent. The act is valid. Capital Trust Co.
v. Calhoun, 250 U. S. 208, 63 L. ed. 942,
39 Sup. Ct. Bep. 486 ; Calhoun v. Massie,
supra. The plaintiffs were seeking the
•4 li. ed.
aid of the courts to recover moneys which
an act of Congress prohibited them from
collecting or receiving. If the bill had
■not alleged that this act was invalid, it
would have been the duty of the lower
court to dismiss the bill eveia if none of
the def^idants had raised any objection
to the maintenance of the suit. Oscanyan
V. Winchester Repeating Arms Co. 103
U. S. 261, 267, 26 L. ed. 539, 542; Lee v.
Johnson, 116 U. S, 48, 52, 29 L. ed. 570,
571, 6 Sup. Ct. Rep. 249; Coppell v.
HaU, 7 Wall. 542, 558, 19 L. ed. 244, 248.
The Secretary of the Treasury and the
Treasurer ef the United States did make
such objection. The overruling of it in
the courts below was error. The judg-
ment must be reversed and the cause re-
manded with directions to dismiss the
bill as to them.
^ The fact that the administratrix did not
persist in her appeal should not result in
affirmance of the judgmoit as to her. Jn
Montalet v. Murray, 3 Cranch 249, 2
L. ed. 429, Mr. Chief Justice Marshall
"stated the practice of the court to be,
that where there is no appearance for
the plaintiff in error, the defendant may
have the plaintiff caDed, and [1,86] dis-
miss the vnit of error; or m^y open the
record and pray for an affirmance."
This practice is still in force under
Rules 9 and 16 of this court. Todd
V. Daniel, 16 Pet. 521, 10 L. ed. 1054;
Hurley v. Jones, 97 U. S. 318, 24
L. ed. 1008; The Osborne (Winslow
v. Wilcox) 105 U. S. 447, 450, 451,
26 L. ed. 1065^ 1066. It is applicable
to one of several joint appellants who
fails to perfect his appeal Yates v.
Jones Nat. Bank, 206 U. S. 158, 166, 181,
51 L. ed. 1002, 1009, 1015, 27 Sup.Ct.
Rep. 638.
If the appellee had asked for an af-
finnance, it is clear that it must have been
denied because of the illegal purpose of
the suit. But the court might go fur-
ther. Since of its own motion it might
dismiss this appeal (Hilton v. Dickinson,
108 U. S. 165, 168, 27 L. ed. 688, 689, 2
Sup. Ct. Rep. 424), and since on dis-
missing it a mandate to the lower court
might issue (United States v. Gbmez, 23
How. 326, 330, 16 L. ed. 552, 553), this
court might also of its own motion enter-
tain the alternative to dismissal spoken of
by Mr. Chief Justice Marshall, — ^L e.,
open the record. If it did so, and per-
ceived that the court was being used to
attain an illegal result, there would be
power to reverse the decree and remand
the cause with instructions to dismiss the
bill. But in the present case such a course
is not necessary. The appellees have
851
186, 187
SUPREME COURT OF THE UNITED STATES,
Oct. TUm,
asked not for an affirmanoey bnt for a dis-
missal, of the appeal of the administra-
trix. A dismissal for want of prosecution
will remit the case to the lower court in
the same condition as before the appeal
was taken; and the lower court will then
be free to take appropriate action to pre-
vent itself from being used as an instru-
ment in illegality. United States y.
Pacheco, -20 How. 261, 15 L. ed. 820;
United States v. Gomez, 23 How. 326,
339, 340, 16 L. ed. 562, 556.
Decree reversed as to appellants Hous-
ton and Burke, and cause remanded with
directions to dismiss the bill as to them.
Appeal of Newman, administratrix,
dismissed for want of prosecution, and
cause remanded for further proceedings
in conformity with this opimon.
[1871 E. W. BLISS COMPANY, Appt.,
V.
UNITED STATES.
(See S. C. Reporter's ed. 187-193.)
Claims -- against United States — juris-
diction — contract.
1. A ciUise of action ex contractu, based
on the government use of a patented in-
vention, is not presented by a petition,
the allegations of which, taken ^gether,
not only do not show a contract of the
parties, express or implied, to pay a royalty
in any amoimt, but distinctly and in terms
negative the making of any such contract
as is necessaj-y to ^re the court of claims
jurisdiction.
[For other cases, see Claims, I. d, 2, a, in Di-
gest Sup. Ct. 1908.1
Patents ^ infringement by government
— who may maintain suit -» owner.
2. The suit against the United States
for the infringement of a patent, given by
the Act of June 26, 1910, to the "owner^'
of the infringed patent, may <mly be main-
tained b^ one who has at least such an
interest m the patent as, without the stat-
ute, would support such a suit against a
defendant other than the United States.
[For other cases, see Patents, XV. c, in Digest
Sup. Ct. 1908.)
Patents ^ Infrinjcement by goremment
^ who may maintain suit — owner.
. 3. The licensee of a patent who has no
such assignment, grant, or conveyance,
either of the whole patent or of an un-
divided part of it, or of an exclusive right
Kote. — On implication from use of
patented article of promise to pay royal-
ty— see note to May v. Western Line
Co. 44 L.R.A.(N.S.) 333.
As to when assignee of patent may
sue for infringement — ^see note to Hoi-
liday v. Batson, 11 L. ed. U. S. 1140.
852
under it within and throughout a speeUlcd
part of the United States as is necessary
under U. S. Rev. Stat. % 4919, in order to
enable him to sue in his own name for in-
frin^ment at law or in equity without
joinmg the owner of the patent, may not
maintain a suit against the United 8tat«»
for infringement under the Act of June 25,
1910, which empowers the *'owner*' of an
infringed patent to recover reasonable com-
pensation in the court of claims, and re-
serves to the United States all defenses,,
general or special, which might be pleaded
by a defendant in an action for infringe-
ment.
[For other cases, see Patents, XY. c, la Digest
Sup. Ct 1908.]
. [No. 240.]
Argued March 12 and 15, 1920. Decided
May 17, 1920.
APPEAL from the Court of Claims to
review the dismissal of a petition in
ajsuit against the United States, based on
the government's use of a patented in-
vention. Affirmed
See same case below, 53 Ct. CL 47.
The facts are stated in the opinion.
Mr. Arthur 0. Fraser argued the
cause, and, with Mr. Frank H. Piatt,
filed a brief for appellant:
Plaintiffs petition presents a case of
contract, express or implied, and not a
case of infringement.
United States v. Palmer, 128 U. S.
262, 32 L. ed. 442, 9 Sup. Ct. Rep. 104;
McKeever v. United Stotes, 14 Ct CK
396; Soci6t6 Anonyme Des Aneiens £&-
tablissements Cail v. United States, 224
U. S. 309, 56 L. ed. 778, 32 Sup. Ct.
Rep. 479; United States v. Berdan Fire-
arms Mfg. Co. 156 U. S. 552, 39 L. ed.
530, 15 Sup. Ct. Rep. 420; Bethlehem
Steel Co. V. United States, 42 Ct. CI.
365; United States v. Lynah, 188 U. S.
445, 47 L. ed. 539, 23 Sup. Ct Rep.
349; William Cramp & Sons Ship & En-
gine Bldg, Co. V. International Curtis
Marine Turbine Co. 246 U. S. 28, 40,
62 L. ed. 560, 565, 38 Sup. Ct. Rep. 271.
Plaintiffs rights under the Sodeau
patents, even if merely license rights,
are exclusive, and justify plaintiffs
claim for royalty.
Dnnlop Pneumatic Tyre Co. y. North
British Rubber Co. 21 Rep. Pat. Caa.
161, 172; LitUefield v. Perry, 21 Wall
220, 22 L. ed. 578.
Plaintiff is, in any event, entitled to
recover under the Act of June 25, 1910.
Dowagiac Mfg. Co. v. Minnesota Mo-
line Plow Co. 235 U. S. 641, 59 L. ed.
398, 35 Sup. Ct. Rep. 221; Famham r.
1010.
BLISS CO. ▼. UNITED STATES.
188, 180
United Statw, 340 U. S. 537, 60 L. ed.
786, 36 Sup. Ct Rep. 427.
Assistant Attorney Greneral Dftvis and
Mr. Banial L. Morris argued tbe cause,
and, with Mr. Edward O. Curtis, filed a
brief for appellee:
No contract between appellant and tbe
United States existed.
Scbillinger v. United States, 155 U. S.
163, 39 L. ed. 108, 15 Sup. Ct. Rep. 85 ;
Harley v. United States, 198 U. S. 229,
49 L. ed. 1029, 25 Sup. Ct. Rep. 634;
RusseU V. United States, 182 U. S. 516,
45 L. ed. 1210, 21 Sup. Ct. Rep. 899.
An -exclusive license is not an assign-
ment.
Hayward v. Andrews, 106 U. S. 672,
27 L. ed. 271, 1 Sup. Ct. Rep. 544;
Mitchell V. Hawley, 16 Wall. 544, 21
L. ed. 322; Brush Electric Co. v. Cal-
ifornia Electric Light Co. 3 C. C. A.
368, 7 U. S. App. 409, 52 Fed. 959;
Walker, Patents, p. 356, t 296; Sanford
V. Messer, Holmes, 149, Fed. Cas. No.
12,314; Hill v. Whitcomb, Hohnes, 317,
Fed. Cas. No. 6,502; Waterman v. Mac-
kenzie, 138 U. S. 252, 34 L. ed. 923, 11
Sup. Ct. Rep. 334, 2 Robinson, Patents,
p. 520; Qamewell Fire- Alarm Tel^. Co.
V. Brooklyn, 14 Fed. 255.
A licensee cannot maintain an action
for infringement.
Gayler v. Wilder, 10 How. 477, 13
L. ed. 504; Waterman v. Mackenzie, 138
U. S. 252, 34 L. ed. 923, 11 Sup. Ct.
Rep. 334; Pope Mfg. Co. v. Gormully &
J. Mfg. Co. 144 U. S. 248, 36 L. ed. 423,
12 Sup. Ct. Rep. 641; Birdsell v.
Shaliol, 112 U. S. 485, 28 L. ed. 768, 5
Sup. Ct. Rep. 244; Paper-Bag Mach.
Cases, 105 U. S. 766, 771, 26 L. ed. 959,
061.
[188] Mr. Justice Clarke delivered
the opinion of the court:
In this suit compensation is sought
from the government for the use which it
made of a patented "superheater," in
<'onnection with Whitehead torpedoes.
A "superheater** is a device in which
fuel is burned in the compressed air
which drives the motor by which a tor-
pedo is propelled through the water, so
that the air is heated to sneh a degree
that its energy is greatly increased, with
the result that the range of the use of the
torpedo is much extended.
The court of claims interpreted the pe-
tition as containing a claim that the de-
fendant had contracted to pay appellant
for fifty "superheaters" at $500 each, and
also as claiming that it had infringed
rights of the appellant in certain United
•4 li. ed.
States patents by ihe purchase of 360
"superheaters" from Whitehead & Com-
pany, a Briti^ corporation, and by itself
manufacturing one hundred such "super-
heaters." Concluding as to the first claim
that the petition did not state a cause of
action in contract, and, as to tbe second,
that it did not show title to the patents
involved sufficient to support infringe-
ment, a demurrer to the petition was sus-
tained and the suit dismissed.
The main contention in this court is
that a cause of action in contract is stat-
ed with respect to all of the 510 "super-
heaters," but in the alternative, though
faintly, it is claimed that the allegations
also make out a case of infringement.
The ap]>enant alleges that it was the
owner of two United States patents is-
sued in 1902, covering the "superheater"
device, and that in 1905 it entered into a
written contract with the Armstrong
Company, a British eorporation, for the
use of improvements in "superheaters"
owned by that company and at the time
protected in [180] Great Britain by
a provisional specification for a pat-
ent. A copy of this contract, at-
tached to the petition, after recit-
ing that the Armstrong Company pro-
poses to apply for a patent in the
United States upon the improvements
in "superheaters" which it owns, and that
it is desirous of granting to the appellant
the exclusive license to use such invention
"in connection with the Bliss-Leavitt tor-
pedo" manufactured by appellant, pro-
ceeds to grant to appellant the "sole and
exclusive license" to use such inventions
for the full tenn of the letters patent
thereafter to be procured for the purpose
ci propelling Bliss-Leavitt torpedoes
wherever sold by tbe BliBs Company, and
"Whitehead torpedoes sold only to the
United States government."
The contract provides ^or the payment
by the appellant of a royalty of $25 for
each torpedo fitted with the Armstrong
invehtions, under penalty of cancelation,
and that the Armstrong Company shall
pay all costs and expenses of pn>curing
the contemplated patents and of protect-
ing them against infringement.
The petition aUeges that eight United
States patoftts on the "superheater** de-
vice were procured by the Armstrong
Company, variously dated from August 7,
1906, to November 14, 1011, but no as-
signment of rights under them was made
to app^ant other than suoh as it derives
from the contract of 1005, which, it avers,
has been fully recognised and its terms
complied with, by both of the parties to
it.
858
SUPREMB COURT OF THE UNITED STATES.
f
1 189-192
I
The references in the amended petition
to the two patents owned by the appel-
lant are so meager and so vague that we
condnde that liability in contract or for
infringement most be derived, if at all,
^m the allegations applicable to the con-
tract of 1905.
As to the contract:
The all^;ations are: That, prior to
1007, Armstrong & Company licensed
Whitehead & Company, a British corpo-
ration, to [190] ^'use and exercise" its
superheater inventions patented in Great
Britain and in the United States, but sub-
ject to the rights of appellant under its
contract of 1905; that in June, 1907, the
appellant granted a request by the de-
fendant for permission to purchase from
Whitehead & Company not more than
one hundred torpedoes containing the
^^superheater" invention, the amount of
royalty "to be later settled;" that subse-
quently fifty torpedoes so equipped were
purchased, and were brought into the
United States subsequent to June 1,
1908; but that no royalty was ever paid
to appellant for the use of the '^super-
heaters" upon them.
If the petition had stopped here, there
might be substance in the claim that, as
to these fifty torpedoes, a contract for
royalty on the basis of quantum meruit
should be implied. But ihe petition goes
on and alleges: That in November, 1907,
before the alleged purchase of the fifty
torpedoes, in a treaty between the parties
as to the amount of royalty to be paid, a
demand by the petitioner of $500 for
each "superheater^' installed in a White-
head torpedo was refused by the govern-
ment; that in December, 1910, and again
in Miuroh, 1912, long after the all^;ed
purchase, the prior discussion as to
royalty was renewed, but without agree-
ment; and finally it is averred "that pe-
titioner, by letter dated Mardi 19, 1912,
declined to grant any redaction, and no
reduction has ever been granted, and pe-
titioner has nev^ consented to the use of
said patented inventi(« or of said patent-
ed improvements thereon or any of them
by defendant without payment of said
royalty of $500 each."
It is too dear for discussion that these
allegations, taken together, not only do
not show a contract of the parties, ex-
press or implied, to pay a royalty in any
amount, but thi^ they distinctly and in
terms n^ative the making of any such
contract as is necessary to give the court
of claims jurisdiction under the applicable |
section of the [191] Judicial Code, § 145 1
[36 Stat, at L. 1136, chap. 231, Comp.i
Stat. § 1136 (1) 5 Fed. Stat. Anno. 2d ed.
as4
Oor.
p. 648], and the decisions of this eonrt.
Schillinger v. United States, 155 U. S.
163, 39 L« ed. 108, 15 Sup. Ct. Rep. 85;
United States v. Berdan Fire- Arms M^.
Co. 156 U. S. 552, 39 L. ed. 530, 15 Sop.
Ct Rep. 420; Russell v. United Stat^
182 U. S. 516, 45 L. ed. 1210, 21 Sup.
Ct. Rep. 899 ; Bigby v. United States, 188
U. S. 400, 47 L. ed. 519, 23 Sup. Ct.
Rep. 468; Harley v. United Stat4, 198
U. S. 229, 49 L. ed. 1029, 25 Sup. Ct.
Rep. 634; Juragua Iron Co. v. United
States, 212 U. S. 297, 309, 53 L. ed. 520,
524, 29 Sup. Ct. Rep. 385; Famham v.
United States, 240 U. S. 537, 540, 60 L.
ed. 786, 787, 36 Sup. Ct. Rep. 427.
Treating for peace with one claiming
patent rights for which it paid a royalty
of $25 falls far short of a ''convention
between the parties, — ^a coming together
of the minds," — ^to pay $500, or any other
amount, for the use of the device.
As to the daim for infringement :
The contract of 1905, relied upon, in
terms granted to the appellant the ''sole
and exclusive license" to use the Arm-
strong inventions for the terms of the
patents thereafter to be procured in
Great Britain and in the United States
"for the purpose of propelling Bliss-
Leavitt torpedoes" (with which we are
not concerned) "wherever sold by the
Bliss Company, and the Whitehead tor-
pedoes sold only to the United States
government.'*
Authority to maintain a suit for in-
fringement against the United States can
be derived oxSy from the Act of Congress
of June 25, 1910 (36 Stat, at L. 851,
chap. 423, Comp. Stat. § 9465, 7 Fed.
Stat. Anno. 2d ed. p. 375), which pro-
vides that the "owner" of an infringed
patent may recover reasonable compensa-
tion in the court of claims, and reserves
to the United States "all defenses, general
or special, which might be pleaded by a
defendant in an action for infringement,
as set forth in title JiX. of the Revised
Statutes of the United States, or other-
wise."
Giving to this statute, as we do, the
liberal interpretation placed upon it in
Crozier v. Fried Krupp Aktiengesell-
schaft, 224 U. S. 290, 56 L. ed. 771, 32
Sup. Ct. Rep. 488, and in William
Cramp & Sons Ship & Engine Bldg. Co.
V. International Curtis Marine Turbine
Co. 246 U. S. 28, 62 L. ed. 560, 38 Sup.
Ct Rep. 271, the "owner" who may
maintain an infringement suit against
the government must have at least such
an interest in the patent as, without the
[192] statute, would support such a
25S V. S.
1910.
PIEDMONT POWER & L. CO. t. GRAHAM.
192, 193
suit againtt a defendant other than the
United States.
It has l<mg been settled that a licensee
may not maintain a stdt for infringe-
ment (Gayler ▼. Wilder, 10 How. 477,
13 L. ed. 504; littlefidd v. Perry, 21
WalL 205, 22 L. ed. 577: Paper Bag
Maeh. Cases, 105 U. S. 766, 26 L. ed.
959; Pope Mfg. Co. v. (formally ft J.
Mfg. Co. 144 U. 8. 248, 36 L. ed. 423, 12
Sup. Ct. Rep. 641), and that to entitle an
assignee pr grantee to maintain such a
suit under warrant of Rev. Stat. 4919,
Comp. SUt. § 9464, 7 Fed. Stat Anno.
2d ed. 288, such assignee or grantee must
have an assignment, grant, or convey-
ance^ either of the whole patent, of an un-
divided part of it, or of an exclusive
right unaer it 'Within and throughout a
specified part of the United States.''
Any assi^^nment or transfer short of one
of these is a mere license, giving the li-
censee no interest in the patent sufficient
to sue at law in his own name for in-
fringement, or in equity without joining
the owner of the patent. Waterman v.
Mackenzie, 138 U. S. 252, 255, 34 L. ed.
923, 925, 11 Sup. Ct. Rep. 334; Pope
Mfg. Co. V. Gormully & J. Mfg. Co. 144
U. S. 224, 36 L. ed. 414, 12 Sup. Ct. Rep.
632.
While the legal effect of the terms used,
and not the name applied to the instru-
ment containing them, will determine
whether a transfer is an assignment or a
license, nevertheless the language used is
often, as in this case, of great significance
in determining what tifiat legal effect
shall be.
The right granted the appellant by the
contract of 1905 is termed in it a "li-
cense;'' the appellant contracts, as li-
censees usually do, to pay a royalty for
each torpedo fitted with the devices to be
patented; the contract does not purport
to grant an interest in the patent or any
exclusive territorial rights, but only, with
respect to the Whitehead torpedo, rights
as to a single prospective purchaser, —
the government of the United States; and
the Armstrong Company contracts at its
own cost "to take all necessary proceed-
ings for protecting and defending the
license to use . . . hereby granted"
against [193] infringers. Palpably
this is a mere license, not sufficient to
sustain a suit for infringement.
Several minor questions, including
some of practice, are argued in the brief
for appellant, but the opinion of the
Court of Claims deals with them thor-
oughly and satisfactorily, and its judg-
ment is affirmed.
04 It. ed.
PIEDMONT POWER 4 LIGHT COMPANY,
Appt,
V.
TOWN OF QBAHAM et aL (No. 684.)
J. R. PASCHALL and Warner Moore,
Appts.,
V.
TOWN OF GRAHAM et aL (No. 685.)
(See 8. C. Reporter's ed. 193-105.)
EUectrlc light and power ^ exclusive
privilege.
1. An exclusive grant of the right to
use the streets of a U>wn for the distribu-
tion of electric current mav not be deduced
from the declaration in the paragraph of
the franchise ordinance relating to the
trimming of trees that the town warrants
that it will, by its proper authorities, pro-
vide for the full and free use of its streets,
lanes, etc.
Appeal — from district court— frivolous
Federal question.
2. The contention, by the owner of a
nonexclusive franchise to use the streets of
a town for the distribution of electric cur-
rent, that competition in business likely
to result from a similar grant to another
corporation would be a violation of its own
contract, or a taking of i|s property in
violation of the Federal Constitution, is too
plainly frivolous to serve as thQ basis of
an appeal to the Federal Supreme Court
from a decree of a district court, dismiss-
ing a suit for injunctive relief.
[For other cases, see Appeal and Error, 938-
989, in Digest Sap. Ct. 1908.]
[Nos. 684 and 685.]
Submitted on motion to dismiss or affirm,
or transfer to summary docket, April 19,
1920. Decided May 17, 1920.
TWO APPEALS from the District
Court of the United States for the
Western District of North Carolina to
review decrees dismissing complaints in
suits to enjoin town officials from grant-
ing an electric light and power franchise,
and to enjoin the grantee from using the
town streets. Dismissed for* want of
jurisdiction.
* —
Note. — On power of municipality, in
absence of express legislative authority,
to grant street franchises — see note to
Elizabeth City v. Banks, 22 L.R.A.
(N.S.) 925.
On direct review in Federal Supreme
Court of judgments of district or circuit
court — see notes to Gwin v. United
States, 46 Li. ed. U. S. 741; B. Altman
& Co. V. United States, 56 L. ed. U. S.
894; and Berkman v. United States, 63
L. ed. U. S. 877.
855
I
SXJFKEME C50URT OF THE UNITED STATES.
Oct. Teem,
Mr. Jamei H. Bridgen submitted the
cause for appellants:
This court determines for itself wheth-
er a substantial Federal question is
raised, and if so, it determines all ques-
tions.
Siler V. LouisvUle & N. R. Co. 213 U.
S. 175, 53 L. ed. 753, 29 Sup. Ct. Rep.
451; Greene v. Louisville & Interurban
R. Co. 244 U. S. 499, 61 L. ed. 1280,
37 Sup. Ct. Rep. 673, Ann. Cas. 1917E,
88.
The grant resulting from the accept-
ance of the municipal offer by the estab-
lishment of a plant devoted to the
described public use constituted a con-
tract, and vested in the accepting indi-
vidual or corporation a property right
protected by the FederiU Constitution
against impairment.
Russell V. Sebastian, 233 U. S. 195,
58 L. ed. 912, L.R.A.1918E, 882, 34
Sup. Ct. Rep. 517, Ann. Cas. 1914C,
1282; Owensboro v. Cumberland Teleph.
& Teleg. Co. 230 U. S. 58, 57 L. ed. 1389,
33 Sup. Ct. Rep. 988.
Municipal corporations are the crea-
tures of the legislature; their powers
may be curtailed, enlarged, or withdrawn
at the will o^the creator, whose control
over them is limited only by the restric-
tion that no statute will be enforced
which impairs the obligation of a con-
tract, interferes with vested rights, or is
in conflict with any provision of ihe or-
ganic law of the state or nation.
State v. Johnson, 114 N. C. 846, 19
S. E. 599.
This court has uniformly upheld the
power of the state to regulate th6 re-
turn on property devoted to public use,
and has frequently said that govern-
mental powers cannot be taken from the
people by any form of contract, but not
80 when a state or municipality is act-
ing in its proprietary capacity.
Los Angeles v. Los Angeles Gas & E.
Corp. 251 U, S. 32, ante, 121, 40 Sup.
Ct. Rep. 76.
Warrant means possession as well as
title.
Allen V. Caffee, 85 Miss. 766, 38 So.
186.
Warrant is construed as full covenant
of seisin, — ^good right to convey against
encumbrances.
Roderick v. McMeekin, 204 111. 625,
68 N. E. 473.
A municipality in North Carolina has
the power to grant an ezcluaive fran-
chise or a warranted franchise in its
legal meaning.
Fawcett v. Mt. Airy, 134 N. C. 126,
63 L.R.A. 870, 101 Am. St. Rep. 825,
859
45 S. E. 1029; Broadnax v. Baker, 94
N. C. 675, 55 Am. Rep. 633; Re Spease
Ferry, 138 N. C. 219, 50 S. E, 625; Car-
olina-Tennessee Power Co. v. Hiawassee
River Power Co. 175 N. C. 668, 96 S. E.
99; Atlantic Coast Line R. Co. v. North
Carolina Corp. Commission, 206 U. S. 1,
51 L. ed. 933, 27 Sup. Ct. Rep. 585, 11
Ann. Cas. 398; Georgia v. Cincinnati
Southern R. Co. 248 U. S. 26, 63 L. ed.
104, 39 Sup. Ct. Rep. 14.
Messrs. Oharles W. Tilktt and Wil-
liam P. Bsrnnm submitted the cause for
appellees. * Messrs. Clyde R. Hoey,
James S. Cook, Jacob A. Long, and
Sidney S. Alderman were on the brief:
No right of the complainant arising
under the Federal Constitnticm is in-
volved in this suit.
Barney v. New York, 193 U. S. 430,
48 L. ed. 737, 24 Sup. Ct. Rep. 602; 4
Enc. U. S. Sup. Ct. Rep. 908.
Whether, under the laws of the state
of North Carolina, an exclusive fran-
chise could lawfully be granted, is un-
doubtedly a question of state law, and
involves no Federal question whatever.
Thrift V. Elizabeth City, 122 N. C.
31, 44 L.R.A. 427, 30 S. E. 349.
Before an exclusive frandiise or a
monopoly can be granted by a muiJei-
pality, such municipality must have
clear legislative authority to grant the
same, and it must appear that the ex-
clusive privilege has been expressly
granted. Such an exclusive privil^;e
cannot be granted by inference or im-
plication.
Detroit Citizens' Street R. Co. v. De-
troit R. Co. 171 U. S. 48, 43 L. ed. 67,
18 Sup. Ct. Rep. 732; Water, Light t
Gas Co. V. Hutchinson, 207 U. S. 385,
52 L. ed. 267, 28 Sup. Ct. Rep. 135.
See also note in 22 L.R.A.(N.S.) 934;
12 C. J. 1033, notes 49-51.
If a franchise be granted in terms
which are not exclusive, there is no con-
stitutional obligation on the state or
municipality not to grant to another
corporation a similar franchise, even
though the latter greatly impairs the
value of the former.
12 C. J. 1032, note 41; Stein v. Bien-
viUe Water Supply Co. 141 U. S. 67,
35 L. ed. 622, 11 Sup. Ct Rep. 892;
Washington & C. Tump. Co. v. Mary-
land, 3 Wall. 210, 18 L. ed. 180; Bridge
Proprs. V. Hoboken Land & Improv. Co.
I Wan. 116, 17 L. ed. 571; Fanning v.
Gregoire, 16 How. 524, 14 L. ed. 1043;
Chafes River Bridge v. Warren Bridge,
II Pet 420, 9 L. ed. 773; Allen v. Bun-
combe Tump. Co. 16 N. C. (1 Dev. Eq.)
119.
3910.
UNITED STATES v. MacMILLAN.
194, 195
Aoeocditiglyi no oompenaation need be
made to fJie nnt e<»p<iration for the eon-
sequential injury arising out of the
grant of a shnilar fran^ise to another
corporation.
12 C. J. 1032, note 43.
Complainants have not set out any
facts which really and substantially in-
volve the construction of the 14th
Amendment to the Federal Constitution,
which is the only one rdied upon, and
the direct appeal to this court should
therefore be dismissed.
1 Enc. U. S. Sup. Ct. Rep. 461; Knop
V. Monongfahela River Consol. Coal a
Coke Co. 211 U. S. 486, 53 L. ed. 294,
29 Sup. Ct. Rep. 188; Empire State-
Idaho Min. & Developing Co. v. Hanley,
205 U. S. 225, 51 L. ed. 779, 27 Sup.
Ct. Rep. 476; Cosmopolitan Min. Co. v.
Walsh, 193 U. S. 460, 48 L. ed. 749, 24
Sup. Ct. Rep. 489.
[194] Memorandum opinion by di-
rection of the court by Mr. Justice
Clarke :
These are appeals direct from decrees
of the district court sustaining motions to
dismiss complaints for the reason that
they did not state facts sufficient to con-
stitute, a valid cause of action in equity.
The cases involve the same facts dif-
ferently stated by different complainants.
The asserted warrant for the appeals is
that action taken by the officials of the
town of Qraham, North Carolina, if al-
lowed to become effective, would result in
violation of appellants' contract with that
town, and in depriving them of their
property without due process of law, in
violation of the Constitution of the Unit-
ed States.
Since the bill in No. 684 contains all of
the elements of strength which the bill in
No. 685 contains, and lacks some of its
elements of weakness, the disposition of
the former will rule the latter.
In No. 684 the appellant, a corpo-
ration, averring that it is the owner of a
franchise to use the streets of the town
of Graham for the distribution of elec-
tric current, prays that the officials of the
town be restrained from certifying as
lawfully passed an ordinance gfranting a
like franchise to the defendanti the Mu-
tual Power & Light Company, and that
the company be enjoined from using the
streets for such purpose.
The grant to the appellant is set out in
full in the bill, and plainly it is not one of
exclusive rights in the streets. The at-
tempt to derive an exclusive grant from J
the declaration, in the paragraph of the I
ordinance relating to the trimming of
•4 li. ed.
trees, that ^fsaid town of Oraham hereby
warrants that it will, by its proper au-
thorities, provide for the full and free use
of its streets, lanes," etc., is fatuous and
futile. Granto of rights and privileges by
a state or municipality are strictly con-
strued and whatever is not unequivocally
granted is withheld, — ^nothing passes'
[195] by implication. Knoxville Wa-
ter Co. V. Knoxville, 200 U. S. 22,
34, 50 L. ed. 353, 359, 26 Sup. Ct.
Rep. 224; Blair v. Chicago, 201 U.
S. 400, 471, 50 L. ed. 801, 830, 26
Sup. Ct. Rep. 427; Mitchell v, Da-
kota Cent. Teleph. Co. 246 U. 8. 396,
412, 62 L. ed. 793, 801, 38 Sup. Ct. Rep.
362. The grant to appellant not being
an exclusive one, the contention that
competition in business, likely to result
from a similar grant to another company,
would be a violation of appellant's con-
tract, or a taking of its property in viola-
tion of the Constitution of the United
States, is so plainly frivolous that the
motion to dismiss for want of jurisdic-
tion, filed in each case, must be sus-
tained. David Kaufman & Sons Co. v.
Smith, 216 U. S. 610, 54 L. ed. 636, 30
Sup. Ct. Rep, 419; Toop v. Ulysses Land
Co. 237 U. S. 580, 59 L. ed. 1127, 35
Sup. Ct Rep. 739; Sugarman v. United
States, 249 U. S. 182, 63 L. ed. 550, 39
Sup. Ct. Rep. 191.
Dismissed.
UNITED STATES OF AMERICA, Plff. in
Err,,
V.
THOMAS C. MacMILLAN and the Em-
pire State Surety Company.
(See S. C. Reporter's ed. 195-205.)
Clerks ^ fees and commissions -» inter*
est.
1. Fees and emoluments collected by a
clerk of a Federal district court, and de-
posited hj him in a bank at interest, were
not public moneys of the United States,
so as to entitle the United States to the
interest as an increment of its ownership,
even where such clerk was, by exceptional
legislation, an officer whose salary was spc-
cidcally appropriated, it not being disputed
that he was under obligation to me^ the
expenses of his office from the fees and
emoluments thereof, and to pay over to the
United States only the resulting surplus.
[For otber cases, see Clerks, I. b, in Digest
Sup. Ct. 1906.]
Olerks •* fees and oommlssions — in*
terest.
2. Interest on the sum of the fees and
emoluments deposited by the clerk of a
Federal district court in a bank is not, in
857
SUPREBIE COURT OF THE UNHBD STATES.
Oct. TnK,
and of iUelf, an emolument for whi(^ he
is liable to account to the United States.
[For other cases, see Clerks, I. b, in Digest
Sap. Ct 1908.]
[No. 167.)
Submitted January 23, 1920. Decided June
1, 1920.
IN ERROR to the United States Cir-
A cuit Court of Appeals for the Sev-
enth Circuit to review a judgment which
affirmed a judgment of the District Court
for the Northern District of Illinois,
Eastern Division, in favor of defendants
in a suit by the United States on the
official bond of the clerk of said court.
Ajffirmed.
See same case below, 163 C. C. A. 305,
251 Fed. 55.
The facts are stated in the opinion.
Solicitor General King and Mr. A. F.
Myers submitted the cause for plaintiff
in error:
The clerk of the district court for the
northern district of Dlinois during the
period involved was a salaried officer of
the United States, expressly prohibited
by law from receiving any additional
pay, allowance, or compensation.
Hoyt V. United States, 10 How. 109,
13 L. ed. 348; Lewis v. United States,
244 U. S. 134, 61 L. ed. 1039, 37 Sup.
Ct. Rep. 570; United SUtes v. King, 147
U. S. 676, 37 L. ed. 328, 13 Sup. Ct.
Rep. 439.
The moneys included in the clerk's
semiannual returns, on which interest
was collected and retained, were received
by defendant in his official capacity as
clerk. He is, therefore, bound to ac-
count for the interest so collected as
emoluments of his office.
United States v. McMillan, 165 U. S.
504, 41 L. ed. 805, 17 Sup. Ct. Rep. 395;
United States v. Abeel, 98 C. C. A. 50,
174 Fed. 12; United States v. Mason,
211 Fed. 233, 135 C. C. A. 315, 219 Fed.
547; Alexander v. United States, 43 Ct.
CI. 395; United States v. Oliphant, 144
C. C. A. 299, 230 Fed. 7; Hoyt v. United
States, 10 How. 109, 135, 13 L. ed. 348,
359; Vansant v. State, 96 Md. 128, 53
Atl. 711; Hughes v. People, 82 HI. 78;
Hunt V. State, 124 Ind. 306, 24 N. E.
887; Rhea v. Brewster, 130 Iowa, 729,
107 N. W. 940, 8 Ann. Cas. 389.
The United States, as obligee on the
clerk's bond, may maintain a suit against
the clerk and his surety for failure to
account for interest collected and re-
tained on moneys deposited by litigants,
subject to disbursement.
Re Moneys, 170 Fed. 470; United
858
States V. Abed, 98 C. C. A. 50, 174 Fed.
20; United States v. Davis, 243 U. S.
670, 572, 61 L. ed. 906, 37 Sup. Ct
Rep. 442; Howard v. United States, 194
U. S. 676, 46 L. ed. 754, 22 Sup. Ct
Rep. 543; Rhea v. Brewster, 130 Iowa,
729, 107 N. W. 940, 8 Ann. Cas. 389;
United States v. Griswold,.8 Ariz. 453,
76 Pac. 596, 9 Ariz. 304, 80 Pac
317; Mobile & M. R. Co. v. Jurey,
111 U. S. 584, 593, 595, 28 L. ed. 527,
532, 4 Sup. Ct Rep. 566; Webb v.
SoutherQ R. Co. 235 Fed. 585; Southern
B. Co. v. Blunt, 165 Fed. i261; Long v.
Kansas City, M.. & B. R. Co. 170 Ala.
642, 54 So. 62; State v. McFetridge, 84
Wis. 473, 20 L.R.A. 223, 54 N. W. 1,
998; Eshelby v. Cincinnati Bd. of £da.
66 Ohio St. 71, 63 N. E. 586; Gartley
V. People 28 Colo. 227, 64 Pac. 208;
People ex rel. Nash v. Faulkner, 107 N.
Y. 477, 14 N. E. 415, 31 Cyc 100.
Messrs. George T. Buckingham and
Marquis Eaton submitted the cause for
defendants in error. Mr. Charies Troup
was on the brief:
Even if all the money in question is
public money in the hands of the clerk,
for disbursement, yet the government,
before accounting and default, could not
maintain an action for interest on the
fund.
United States v. Mason, 218 U. S. 517,
54 L. ed. 1133, 31 Sup. Ct. Rep. 28.
As to the money deposited by litigants,
and not yet disbursed, the same is, and
always remains, individual money. As
to this money, the clerk is debtor to the
litigant who deposited it. Neither Bnch
litigant nor the United States, acting for
him, as obligee on the bond, could main-
tain an action for interest, except where
the clerk had defaulted in making ac-
count for the funds when demanded.
United States v. Mason, 218 U. S." 517,
54 L. ed. 1133, 31 Sup. Ct. Rep. 28.
It cannot be claimed that the incre-
ment, or interest earned on litigants' in-
dividual money, not yet disbursed, is an
emolument, because it is not earned by
the clerk, either as compensation or in
his oflBcial capacity as cleric.
United States v. Hill, 120 U. S. 169,
30 L. ed. 627, 7 Sup. Ct Rep. 510.
As to the money earned by the clerk
as fees and emoluments, and before a
surplus is ascertained and paid, the same
is the money of the clerk, and not the
property or money of the United States,
and concerning it the govenmient has no
right, title, or interest.
United States v. Hill, 120 U. S. 169,
182, 30 L. ed. 627, 632, 7 Sup. Ct Rep.
510.
16^ IT. 8.
1919«
UNITEU states v. MacMILLAN.
198-200
The long practice in respect to this in-
terest matter amonnts to an administra-
tive interpretation of the statute, and as
against the clerks and their bondsmen,
who are entirely innocent of wrongdo-
ing, should not be reopened to their det-
riment.
Ibid.; Brown v. United States, 113 U.
S. 568, 28 L. ed. 1079, 5 Sup. Ct. Rep.
648; United States v. Philbrick, 120 U.
S. 52, 30 L. ed. 659, 7 Sup. Ct. Rep. 413.
Mr. Chief Justice White delivered the
opinion of the court:
The relation 'of the United States to
moneys alleged to have been collected
by a clerk of a district court of the
United States as fees or emoluments of
his office, and the scope of his duty to
account semiannually for the same to
the Attorney General, so as to fix, if any
there was, the surplus due to the United
States after paying the expenses of the
clerk's office and the clerk's salary, as
fixed by law, is the general subject here
arising for consideration. Rev. Stat.
§§ 833, 839, 844, Comp. Stat. §§ 1394,
1404, 1414, 4 Fed. Stat. Anno. 2d ed.
pp. 699, 703, 707: Act of June 28, 1902,
32 Stat, at L. 475, 476, chap. 1301.
[109] The controversy originated
by a suit commenced by the United
States against the defendant in error
as clerk of the district court of the
United States for the northern dis-
trict of Illinois, eastern division, and
the surety on his official bond, to re-
cover $3,861.05. The right to the re-
lief was based upon averments that,
during the period from December 27,
1905, to January 27, 1910, the clerk had
collected the sum named as interest on
the average daily balances of his bank
accounts resulting from the deposit by
him of the fees and emoluments of his
office and of moneys placed by litigants
with him to meet payments for costs or
otherwise which they might lawfully be
required to make during the course of
the litigation.
It was further alleged that although
the interest thus received constituted a
fee or emolument of the office of the
clerk, or money held in trust by him
for the United States, for the receipt of
which he was bound by law semian-
nually to account, he had failed to do
so, and was therefore liable.
By plea the defendants admitted the
collection by the derk of. the amount
8ued for as interest on the average daily
balances of his bank accounts, made up,
as alleged, of moneys derived from fees
and emoluments and deposits by liti-
64 Ij. ed.
gants under the rules or orders of court.
The plea averred that, as required by
law, the clerk had made his semiannual
accountings in which, althdugh he did
not charge himself with the interest al-
lowed him on his bank balances as stated,
he had charged himself with every item
constituting a fee or emolument of his
office, from whatever source due, and
after debiting the charge thus made
with the proper proportion of his salary
and the expenses of his office, had turned
the balance, if any there was, into the
Treasury of the United States. There
was annexed to the plea a copy of the
rules of court relating to the placing by
litigants of money with the clerk, and
the plea alleged that whenever, out of
such money, any [200] charge, whether
for a fee or emolument or otherwise, be-
came due, it was at once paid, so that the
amount of that deposit always, solely
represented money belonging to and held
for the account of the depositing liti-
gant to meet payments due by him which
might thereafter arise.
To this plea the United States de-
murred as stating no defense, and, after
hearing, its demurrer was overruled. In
consequence of an election by the Unit-
ed States to plead no further, the case
was submitted for judgment on the peti-
tion and plea.
At that time the court had under ad-
visement eight other cases involving the
questions arising in this, five being suits
by the United States against the clerks
of other United States courts, and three,
in addition to this, being against the
clerk who is defendant here, covering
interest collected for different periods.
The court disposed of the nine cases in
one opinion. It held that as there was
no contention as to a default by the
clerk concerning any money deposited
with him by litigants, that subject would
be put out of view. Carefully consider-
ing the pleadings, it held that the claim
of the United States to the interest
rested upon one or the other of two
propositions: (1) that the money de-
posited by the clerk, and upon which
the interest was allowed, was public mon-
eys of the United States, and therefore
the interest belonged to the United
States; (2) « that without reference to
whether the deposits were public mon-
eys, the interest paid was an emolument
for which the clerk was bound to ac-
count. Elaborately considering these
questions the court decided both against
the United States.
Reviewing on error one of the cases
against this defendant which was de-
200-203
SUPREME COURT OF THE UNITED STATES.
Oct. Tesm,
cided, as we have seen, by the trial coort
along with this, the circuit court of ap-
peals affirmed the trial court in a brief
per curiam, opinion in which it approved
the analysis of the case as made by the
trial court, and concurred in holding de-
cisive the cases in this [201] court
which the trial court relied upon. Sub-
sequently, when the case now before us
came to be lieard, the ruling in the case
just stated was applied to tliis, and the
judgment was therefore also affirmed.
In argument here it is suggested by
the United States that, as the defendant
clerk was, by exceptional l^islation, an
officer whose salarv' was specifically ap-
propriated for (Acts of Julv 31, 1894,
28 Stat, at L. 162, 204, chap. 174, Comp.
Stat. § 57, 2 Fed. Stat. Anno. 2d ed.
p. 510; March 2, 1895, 28 Stat, at L.
764, 806, chap. 177; August 24, 1912, 37
Stat, ^t L. 417, 465, chap. 355, Comp.
Stat. § 1407, 4 Fed. Stat. Anno. 2d ed.
p. 705), therefore the principles passed
upon below are not necessarily decisive.
But, aside from the disregard of the ad-
missions resulting from the pleadings
which the suggestion involves, and the
entire absence of even an intimation that
such a contention was raised in either
of the courts below, we put the belated
suggestion out of view, since, as it is
not disputed that the defendant clerk
was under obligation to meet the ex-
penses of his office from the fees and
emoluments thereof, and to pay over to
the United States only the surplus re-
sulting, we think the distinction assumed
to arise from the proposition stated
makes no difference in the application
of the principles which the court below
held to be conclusive, and the soundness
of which we are now therefore required
to pa^ upon.
As we agree with the lower court that
the two propositions decided by the trial
court embraced the whole case, we are
thus brought, first, to determine whether
the fees and emoluments collected by
the clerk and deposited %y him in bank,
and upon which interest was allowed
him, were public moneys of the United
States, thus entitling the United States
to the interest as an increment of its
ownership. That it was not is so com-
pletely foreclosed as to cajase it to be
only necessary to consider the previous
ruling on the subject.
In United SUtes t. Mason, 218 U. S.
517, 54 L. ed. 1133, 31 Sup. Ct Rep. 28,
the court was called upon to deteimine the
validity of the action of a [202] circuit
court of the United States in quashing
three indictments against the clerk of
a circuit court of the United States for
the '^embezzlement of certain moneys
of the United States," which mone^rs
were a portion of the surplus of fees
and emoluments of his office over and
above the compensation and allowances
authorized by law to be retained by hint
The indictments were based, and the
sole reliance to sustain them and thus
reverse the court below was rested, up-
on §§ 5490 and 5497, Revised Statutes
(Comp. Stat. §§ 10,257, 10,265), with
the amendments made bv the Act of
February 3, 1879, chap. 42, 20 Stat, at
L. 280, Comp. Stat. § 10,265, each of
which sections exclusively dealt with em-
bezzlement of '^public moneys." Wheth-
er, therefore, the particular moneys
which were there in question, being de-
rived from fees and emoluments of the
clerk, were public moneys, required nec-
essarily to be decided. Reviewing his-
torically the legislation covering clerks
of courts of the United States, which
had been previouslv recapitulated in
United States v. Hill, 120 U. S. 169,
30 L. ed. 627, 7 Sup. Ct. Rep. 510, it
was pointed out, first, that originally
clerks of courts were not salaried, but
were remunerated by the right to collect
and retain established fees and emolu-
ments, and that under such l^slation
the sums collected by the clerks were
in no sense public moneys of the United
States, but were moneys of the clerks,
held by them in their personal capacity
in payment for their official services.
Coming to state the evolution in the
situation by which in time it came to
pass that a limit was placed on the
amount of compensation which a elerk
should annually receive, and consequent-
ly making it his duty to account for his
fees and emoluments, and to turn over
to the United States the surplus, if
any, remaining after the payment of his
compensation and the expenses of his
office, the court observed (pp. 523, 524) :
'*The plain object of this statute was
to limit the amount which the clerk was
to retain and to require an accounting,
an audit of expenses, and a payment of
the surplus. Otherwise [203] the estab-
lished method of administering the office
was not changed. The fees were to be
recovered as theretofore; and to the ex-
tent of the amount of the fixed com-
pensation of the elerk and the neeossary
expenses of his office, he was entitled to
use and to pay as formerly. The stat-
ute suggests no other course. What, if
anything, should be paid into the piriilic
treasury at the ead of the half year,
when he had to make his retom, de-
tSS V. 8.
1910.
UNITED STATES v. MacMUXAN.
203-205
pended upon the amount of the fees,
the amoant of the expenses, and the re-
sult of the audit. If his fixed eompensa-
tion and his necessary expenses exhaust-
ed the- fees, there would be nothing to
pay. The amount payable was to be
determined when the return was made."
Testing the possible application of the
statutes dealing with the embezzlement
of public moneys to the rights and du-
ties of a clerk to collect the fees and
emoluments of his oftce an4l to make
ase of them as authorized by law, it was
pointed out that such applifation could
not be made because of the incompati-
bility between the powers and duties of
the olerk; on the one hand, and the- pro-
visions of the statutes relied upon, on
the other. This incongruity was aptlv
illustrated by the statement which fol-
lows, dealing with the duties of the
clerk and the impossibility of applying
to them the prohibitions of one of the
statutes in question (p. 525) :
"They lay outside of the prohibition
of § 16 against loaning, using, convert-
ing to his own use, depositing in banks,
and exchanging for other funds, for it
was upon these fees that the clerk de-
pended for his livelihood and for the
pa3rment of the expenses of his oll^ce,
subject only to the duty twice a year
to make his accounting and to pay over
the surplus if the fees exceeded the
total amount allowed him."
Ag^in marking the broad line which'
lay between public money and the
clerk's fees and emoluments and his
right to collect and disburse the same,
the court declared (p. 529) :
"There has thus been established a dis-
tinct system with [204] respect to the fees
and emoluments of the clerks. Its fea-
tures are to be explained by the histor>'
of the clerk's o£Qce and the requirements
of its convenient administration. It is
urged that the fees and emoluments are
attached to the office, and are received
in an official capacity. This considera-
tion, however, does not aid the prosecu-
tion, for they were attached to the office
before the Statute of 1841, when they
belonged to the clerk without any duty
on his part to account for any portion
of them."
And once more emphasizing the dis-
tinction it was said (p. 531) :
"The fees and emoluments are not re-
ceived by the clerk as moneys or prop-
erty belonging to the United States, but
as the amount allowed to him for his
compensation and office expenses under
the statutes defining his rights and du-
ties: and with respect to the amount
#4 li. ed.
payable when the return is made, the
clerk is not trustee but debtor. Any
other view must ignore not only the
practical construction which the statutes
governing the office have received, but
their clear intent."
Indeed, the decisive principles which
were thus announced in the Mason Case
were but a reiteration and application
of the general doctrine on the subject
announced in United States v. Hill, 123
U. S. 681, 31 L. ed. 275, 8 Sup. Ct. Rep.
308, where it was in express terms
pointed out that "a clerk of a court of
the United States collects his taxable
compensation, not as the revenue of the
United States, but as fees and emolu-
ments of his office, with the obligation
on his part to account to the United
States for all he gets over a certain sum
which is fixed by law."
Conclusively disposing, as these cases
do, of the contention of the government
as to public moneys of the United States,
it leaves only for consideration the ques-
tion of whether the interest on the sum
of the fees and emoluments deposited
by the clerk in bank was, in and of it-
self, an emolument for which he was lia-
ble to account. But that [205] question is
virtually also foreclosed in view of what
was held in the Mason Case, since the
individual character of the bank de-
posit as there defined and the right to
make it necessarily causes the incre-
ment of such deposit, that is, the in-
terest, to partake of the character of the
principal. And besides, aside from the
ruling in the Mason Case, it had been
previously held that a sum collected by
a clerk for a service not pertaining to
his office or provided for in the schedule
of fees allowed him for official services
was not a fee or emolument in the sense
of the statute. United States v. Hill,
120 U. S. 169, 30 L. ed. 627, 7 Sup. Ct.
Rep. 510.
Although at the outset we eliminated
from consideration liability for interest
on money of litigants deposited with
the clerk under the rules of court, be-
cause not embraced in the claim of mon-
ey or property of the United States upon
which all the government contentions
here rest, in leaving the ease we observe
that the question of the liability of the
clerk to pay interest to litigants on mon-
ey deposited by them is, in a large de-
gree, covered by the rules of court an-
nexed to the plea, which permit, in the
cases specified, an application of a liti-
gant to the court to direct the allow-
ance of such interest and to provide for
801
206-207
SUPREME OOUBT OF THE UNITED STATES.
Oct. Iter,
its payment by the derk when the re-
quest is gra,nted.
In conclusion we direct attention, as
was done in the Mason Case and as did
the tri^ court in this case, to the in-
compatibility which would result, on the
one hand, from enforcing an absolute
obligation on the part of the clerk to
account for all the fees and emoluments
of the clerk's office, whether collected or
not, as well as his duty to defray the
expenses of his office out of such reve-
nue, and the upholding, on the other
hand, of the conflicting theory that the
fees and emoluments were public mon-
eyn, and the power of the clerk to deal
with them accordingly limited.
Affirmed.
Mr. Justice Pitney and Mr. Justice
Clarke dissent.
[2061 FORT SMITH & WESTERN RAIL-
ROAD COMPANY and Superior Savings
Sl Trust Company, Trustee, Appts.,
V.
ARTHUR L. MILLS, Receiver of the Fort
Smith & Western Railroad Company,
and J. VSrgil Bourland, United ^ates
District Attorney.
(See S. 0. Reporter's ed. 206-209.)
Master and servant — hoars — wages r-
operatlon by recelyer — agreement —
Adamson Law.
Nothing in the proTisions of the
Adamson Act of September 3, 5, 1016» fix-
ing a permanent eignt-hour standard work-
ing day for employees engaged in the opera-
tion of trains upon interstate railway car-
riers, and temporarily r^ulating the wages
of such employees, forbids the operation of
an insolvent road under an agreement be-
tween receiver and employees for a lesser
wage, which agreement the employees de-
sire to keep.
[No. 42.]
Argued December 13, 1917. Decided Jime
1, 1920.
APPEAL from the District Court of
the United States for the Western
District of Arkansas to review a decree
which dismissed the bill in a suit to
enjoin the receiver of a railway from
conforming to the Adamson Aet in rs-
speet of hours of service and wages, and
to enjoin the Federal district attorney
from proceeding to enforce that act
Reversed.
The facts axe stated in the opinion.
Mr. A. 0. Dustin argued the cause,
and, with Mr. James B. McDonough^
filed a brief for appellants.
Assistant Attorney G^ieral
argued the cause, and, with Messrs. 8.
Milton Simpson and Alex Koplin, fikd
a brief for appellees.
Mr. Justice Holmea delivered the
opinion of the court:
This is a bill in equity, brought by the
Fort Smith & Western Railroad Com-
pany and the trustee of a mortgage giv^i
to secure bonds of that road, to enjoin
the receiver of the road from oonfonn-
ing to the Aet of September 3, 5, 1916,
chap. 436, 39 Stat, at L. 721, Comp. Stat.
§ 8680a, Fed. Stat. Anno. Supp. 1918, p.
754, in respect of hours of service and
wages, and to enjoin the district attor-
ney of the United States from proeeed-
ing to enforce the act. The bill alleges
[207] that the physical property is
worth over $7,000,000, but that no div-
idends ever have, becoi paid upon the
stock, that no interest nas been paid
upon the bonds since October 1, 1907,
and that there is a yearly deficit in
the earnings of the road. The re-
ceiver was appointed in proceedings
to foreclose the mortgage. The bUl
further alleges that the railroad now
(1917) is being carried on under an
agreement with the men which the ma:i
desire to keep, but that the receiver,
yielding to the threats of the district
attorney to prosecute him unless he does
so, purposes to substitute the much more
onerous terms of the act. It is set up
that the act, if construed to apply to
this case, is void imder the 5th Amend-
ment to the Constitution. The bill was
dismissed by the district court, on mo-
tion, for want of equity, and the plain-
tiffs appealed.
The act in question, known as the
Adamson Law, was passed to meet the
emergency created by the threat of a
Note. — On construction, applicabilily,
and effect of hours of service laws — see
notes to Great Northern R. Co. v. United
States, L.R.A.1915D, 408; and Northern
P. R. Co. V. United States, L.R.A J917A,
1202.
On constitutionality of legislative lim-
itations of hours of labor — see notes to
862
Atkin V. Kansas, 48 L. ed. U. 8. 148;
Miller v. Wilson, L.R.A.1916F, 829; Ex
parte Wong Wing, 51 L.RJL(N.S.)
361; People v. Elerding, 40 liRJL
(N.S.) 893; Withey v. Bldem, 35 LJt.A.
(N.8.) 628; Ex parte Martin, 26 L.RJL
(N.S.) 242; and People v. Orange Comi-
ty Road Constr. Co. 65 L.BJL 33.
1910.
UNITED 8TATB8 EX BEL. JOHNSON r. PAYNE.
207-209
general zailroad strike. It flzad eight
hours as a day's wmk, and proyided toat
for some months, pending an investiga-
tion, the eompensation of employees of
railroads sabjeet to the Act to Regulate
Commeree should not be ^^dnced oelow
the present standard day's wage," and
that time in excess of eight hours should
be paid for pro rata at the same rate.
The time has exfnred long since, but the
rights of the parties require a decision
of the case.
In Wilson v. New, 243 U. S. 332, 61
L. ed. 766, L.B.A.1917E, 938, 37 Sup.
Gt. Rep. 298, Ann. Gas. 1918A, 1024,
it was decided that the act was within
the constitutional power of Gongress to
regulate commerce among the states;
that since, by virtue of the organic in-
terdependence of different parts of the
Union, not only comfort but life would
be endangered on a large scale if inter-
state railroad trafiKo suddenly stopped,
Gongress could meet the- danger of such
a stoppage by legislation, and that, in
view of the public interest, the mere
fact that it required an expenditure to
tide the country over the trouble would
not, of itself alone, show a taking of
property without due process of law. It
was [208] held that tiiese principles ap-
plied no less when the emergency was
caused by the combined action of men
than when it was due to a catastrophe of
nature; and that the expenditure re-
quired was not necessarily unconstitu-
tional because it took the form of re-
quiring the railroads to pay more, as it
might have required the men to take
less, during the short time necessary for
an investigation ordered by the law.
But the bill in Wilson v. New raised
only the general objections to the act
that were common to every railroad. In
that case it was not necessary to con-
sider to what extremes the law might be
carried or what were its constitutional
limits. It was not decided, for instance,
that Gongress could or did require a
railroad to continue in business at a
loss. See Brooks-Scanlon Go. v. Rail-
road Gommission, 261 U. S. 396, ante,
323, P.U.R.1920C, 679, 40 Sup. Gt. Rep.
183. It was not decided that there
might not be circumstances to which the
act could not be applied consistently
with the 6th Amendment, or that the
act, in spite of its universal language,
must be construed to reach literally
every carrier by railroad subject to the
Act to Regulate Gommerce. It is true
that the first section of the statute pur-
ports to apply to any such carrier, and
the third to the compensation of railway
e4 li. ed.
employees subject to this act. But the
statute avowedly was enacted in haste
to meet an emergency, and the general
language necessary to satisfy the de-
mands of the men need not be taken to
go further than the emergency required,
or to have been intended to make trouble
rather than to allay it. We cannot sup-
pose that it was meant to forbid work
being done at a less price than the rates
laid down, when both parties to the bar-
gain wished to go on as before, and when
the circumstances of the road were so
exceptional that the lower compensation
accepted would not affect the market
for labor upon other roads.
But that is the present case. An insol-
vent road had succeeded in making satis-
factory terms with its men, [209] ena-
bling it to go on, barely paying its way,
if it did so, not without impairing even
the mortgage security, not to speak of
its capital. We must accept the allega-
tions of the bill, and must 'assume that
the men were not merely negatively re-
fraining from demands under the act,
but, presiunably appreciating the situa-
tion, desired to keep on as thev were.
To break up such a bargain would be at
least unjust and impolitic, and not at
all within the ends that the Adamson
Law had in view. We think it reason-
able to assume that the circumstances
in which, and the purposes for which,
the law was passed, import an exception
in a case like this.
Decree reversed.
Mr. Justice Day, Mr. Justice Van
Devanter, Mr. Justice Pitney, and Mr.
Justice McBeynolds agree with this de-
cision limiting the effect of the Adam-
son Law as stated, but adhere to the
views concerning the constitutionality
of the act, expressed by them in Wilson
V. New.
UNITED STATES OF AMERICA EX REL.
JENNIE JOHNSON et al., Plffs. in Err.,
V.
JOHN BARTON PAYNE, Secretary of the
Interior.
(See S. C. Reporter's ed. 209-211.)
Mandamns — to Secretary of Interior —
Indian enrolment.
The Secretary of the Interior cannot
be compelled by mandamus to place upon
the rolls of the Creek Nation the names
of certain persons who, on the last day
Note.— *As to when mandamus is the
proper remedy, generaUy — see notes to
86S
SUPREME CX>U&T OF THE UNITED STATES.
Oct. Ton,
fixed by statute for the final oompletion
of the rolls, he decided, reversing his prior
decision without notice to the Indians,
should be excluded from the rolls, with a
direction that if they were already on the
rolls, which was not the case, they should
be stricken off.
(For other cases, see Mandamus, II. d. 4, in
Digest Sup. Ct. 1008.]
[No. 291.]
Argued April 29, 1920. Decided June 1,
1920.
IN ERROR to the Court of Appeals of
the District of Columbia to review
a judgment which affirmed a judgment
of the Supreme Court of the District,
dismissing a petition for mandamus to
compel the Secretary of the Interior to
place certain names upon the rolls of the
Creek Nation. AfArmed.
See same case below, 48 App. D. C.
169.
The facts are stated in the opinion.
Mr. Charles H. Merillat argued the
cause, aijd, with Mr. W. C. Franklin,
filed a brief for plaintiffs in eiTor:
Has there been due process and equal
protection of the laws where rights are
upset without notice or hearing, and by
an arbitrary blanket order?
United States ex rel. Lowe v. Fisher,
223 U. S. 95, 5G L. ed. 364, 32 Sup. Ct.
Rep. 196; Garfield v. United States, 211
U. 8. 249, 264, 53 L. ed. 168, 176, 29
Sup. Ct. Rep. 62, 67; United States v.
Wildcat, 244 U. S. 115, 61 L. ed. 1031,
37 Sup. Ct. Rep. 561; Interstate Com-
merce Commission v. Louisville & N. R.
Co. 227 U. S. 88, 57 L. ed. 431, 33 Sup.
Ct. Rep. 185; Iowa C. R. Co. v. Iowa,
160 U. S. 389, 40 L. ed. 467, 16 Sup. Ct.
Rep. 344; Simon v. Craft, 182 U. S. 427,
45 L. ed. 1165, 21 Sup. Ct. Rep. 836;
Twining v. New Jersey, 211 U. S. 78,
53 L. ed. 97, 29 Sup. Ct. Rep. 14; Lon-
doner V. Denver, 210 U. S. 373, 52 L. ed.
1103, 28 Sup. Ct. Rep. 708; Wulzen v.
San Francisco, 101 Cal. 15, 40 Am. St.
Rep. 17, 35 Pac. 353; Re Hatch, 11
Jones & S. 89 ; Zeigler v. South & North
Ala. R. Co. 58 Ala, 594; Dreyfus v.
Montgomery, 4 Ala. App. 270, 58 So.
731 ; Davis v. Florida Power Co. 64 Fla.
247, 60 So. 759, Ann. Cas. 1914B, 965,
5 N.C. C. A. 926; Wynehamer v. Peo-
ple, 2 Park. Crim. Rep. 421; Wright v.
Cndlebaiigh, 3 Nev. 341; Oidiard v.
Akxander, 157 U. S. 381-383, 39 L. ed.
740, 741, 15 Sup. Ct. R^p. 635; United
States V. Detroit Timber 4^ Lumber Co.
200 U. S. 321, 50 L. ed. 499, 26 Sup. Ct
Rep. 282; Knapp v. Alexander-Edgar
Lumber Co. 237 U. S. 162, 69 L. ed. 894,
35 Sup. Ct. Rep. 515.
Plaintiffs in error are entitled to man-
damus by reason of a clear error of law
of the Secretary in hastily holding that,
in the Creek Nation, applicants on the
Creek rolls were estopped, if denied un-
der the Act of 1896, to apply under the
Curtis Act of 1898 and the later Cre^
agreem^it. The Curtis Act plainly su-
perseded the eaj^er act, and opened up
enrolments de novo.
United States v. Wildcat, 244 U. S.
115, 61 L. ed. 1031, 37 Sup. Ct. Rep.
561.
One of the chief purposes of man-
damus is for the courts to correct abases
where there ha» been an arbitrary aet or
procedure by an administrative officer
that results in a failure of equal admin-
istration of equal laws, rules, or practice.
United States v. Billings, 190 Fed.
363; Davidson v. New Orleans, 96 U. S.
97, 24 L. ed. 616; Sheldon v. Hoyne, 261
lU. 225, 103 N. E. 1021; Illinois State
Dental Examiners v. People, 123 lU.
241, 13 N. E. 201.
Assistant Attorney General Kebeker
argued the cause, and, with Special As-
sistant to the Attorney General Under-
wood, filed a brief for defendant in er-
ror:
The ' question of enrolment was one
coming within the jurisdiction of the
Secretary of the Interior. The plaintiffs
in error invoked that jurisdiction, and
their complaint at heart is of the find-
ing that they should not be enrolled.
Until enrolment, the proceedings were in
fieri, and the matter was one calling for
the exercise of judgment and discretion.
That mandamus will not lie in such case
is well settled.
United States ex rel. Ness v. Fisher,
223 U. S. 683, 691-694, 56 L. ed. 610,
612-614, 32 Sup. Ct. Rep. 356; Louis-
iana V. McAdoo, 234 U. S. 627, 633, 58
L. ed. 1506, 1509, 34 Sup. Ct Rep. 938.
Mandamus confei*s no new authority;
the party to be coerced must have power
to perform the act.
United States ex rel. International Con-
tracting Co. v. Lamont, 39 L. ed. U. S.
160 ; M'Cluny v. Silliman, 4 L. ed. U. S.
263; Fleming v. Guthrie, 3 LJl.A. 54;
Bumsville Tump. Co. v. State, 3 L.R.A.
265; State ex rel. Charleston, C. & C. R.
864
Co. V. Whitesides, 3 L.R.A. 777; and Ex
parte Hum, 13 L.R.A. 120.
On the power of courts to enforee
ministerial duties of heads of depart-
ments— see note to Cocke v. Iversoii, 52
L.R.A.(N.S.) 415.
968 V. 8.
lOlO.
FIDELITY TITLE & TRUST CO. v. DUBOIS ELECTRIC CO. 21(^212
Reeside v. Walker, 11 How. 272, 288,
289, 13 L. ed. 693, 699, 700; Taxing
Dist. V. Loague, 129 U. S. 493, 501, 32
L. ed. 780, 783, 9 Snp. Ct. Rep. 327;
United States ex rel. Boynton v. Blaine,
139 U. S. 306, 319, 35 L. ed. 183, 187,
11 Sup. Ct. Rep. 607; Missouri ex rel.
Laclede Gaslight Co. v. Mnrphv, 170 U.
S. 78, 95, 42 L. ed. 955, 962, 18 Snp. Ct.
Rep. 605; United States ex rel. Sicgel
V. Board of Liquidation, 20 C. C. A.
022, 41 U. S. App. 414, 74 Fed. 492.
Mr. Justice Holmes delivered the opin-
ion of the court:
This is a petifion for a writ of man-
damus to* require the Secretary of the
Interior to place the names of the peti-
tioners upon the rolls of the members of
the Creek Nation. The petition was dis-
missed by the supreme court of the Dis-
trict of Columbia, and the judgment was
affirmed by the court of appeals. We
are not called upon to consider the ante-
cedent facts of the petitioners' case, as
all that is material can be stated in a
few words. Rights as a member of the
Nation depend upon the approved rolls.
March 4, 1907, was fixed by statute as
the time when the rolls were to be com-
pleted by the Secretary of the Interior,
and his previously existing jurisdiction
to approve enrolment then ceased. Act
of April 26, 1906, chap. 1876, § 2, 34
Stat, at L. 137, 138, 3 Fed. Stat. Anno.
2d ed. p>p. 861, 862. Before that date
the petitioners had on file an application
for enrolment, hearings had been had
before the proper tribunal, a favorable
report had been made to the Secretary,
and the Secretary had written a letter
to the Commissioner to the Five Civilized
Tribes, saying, "Your decision is hereby
affirmed.^' But on the last day, March
4, 1907, the Secretary addressed another
communication to the same official, re-
scinding the former letter to [211] him,
nnd reversing his decision. It was ordered
that if the petitioners* names were on the
rolls they should be stricken off. The
Secretary gave no reasons for his ac-
tion, but it is suggested that he acted
under mistakes of law and fact, and it
is argued that when the first letter was
written the petitioners* rights were fixed.
The last is the only point in the case,
and with regard to that it is argued that
this reversal of the first decision without
a hearing was a denial of due process of
law. It is not denied that the Secretary
might have declined to affirm the deci-
sion below in the first instance, and that
having been his power, the only question
is when it came to an end. While the
04 li. cd.
case was before him he was free to
change his mind, and he mi^t do so
none the less that he had stated an opin-
ion in favor of one side or the other.
He did not lose his power to do the
conclusive act, ordering and approving
an enrolment (Garfield v. United States,
211 U. S. 249, 53 L. ed. 168, 29 Sup. Ct.
Rep. 62), until the act was done (New
Orleans v. Paine, 147 U. S. 261,. 266, 37
L. ed. 162, 163, 13 Sup. Ct. Rep. 303;
Kirk V. Olson, 245 U. S. 225, 228, • 62
L. ed. 256, 259, 38 Sup. Ct. Rep. 114).
The petitioners' names never were on the
rolls. The Secretary was the final judge
whether they should be, and they cannot
be ordered to be put on now, upon a
suggestion that the Secretary made a
mistake, or that he came very near to
giving the petitioners the rights they
claim.
Judgment affirmed.
[2121 FIDELITY TITLE & TRUST OOM-
PANY, Ancillary Administrator of the
Estate of Vernon W. Pancoast, Deceased.
Petitioner,
V.
DUBOIS ELECTRIC COMPANY.
(See 8. C. Reporter's ed. 212-216.)
Jury — right to trial by — reversal
without ordering a new trial.
1. A Federal circuit court of appeals
may not reverse the judgment below, ^i-
tared on a verdict for pUintiff in a per-
sonal-injury action, without ordering a new
trial.
[For other cases, s<e Jury, I. d. In Digest Sup.
Ct. 1JJ08.]
Negligence — dangerous premises —
absence of contract relation witli in-
jured person.
2. The absence of any contract rela-
tion between one who suspends a banner
across a city street and travelers in the
street bctlow does not relieve him from t]ie
duty to use reasonable care to protect such
travelers from injury resulting from his
act.
[For other cases, see NegllKence, II. c, 1, In
Digest Sup. Ct. 1908.1
Negligence — dangerous premises —
surrender of control.
3. When a dangerous condition has
been called fully into existence by a per-
Kote. — As to constitutional right of
trial by jury — see notes to Thompson v.
Utah, 42 L. ed. U. S. 1061; Perego v.
Dodge, 41 L. ed. U. S. 113; Gulf, C. &
S. F. R. Co. V. Shane, 39 L. ed. U. S.
727; Eilenbeeker v. District Ct. 33 L. ed.
U. S. 801; and Justices of Supreme Ct.
V. United States, 19 L. ed. U. S. 058.
55 8«5
SUPREME CX)URT OF THE UNITED STATES.
Oct. Teem,
son, he cannot escape liabili^ for an in-
jury, the result of such condition, which
be alone knew, had created, and had ar-
ranged to have continue, merely by sur-
rendering control shortly before the acci-
dent.
[For other cases, see NegUgence, II. c, 1. In
DiRCBt Sup. Ct 1908.]
Xegllgence — dangerous premises —
surrender of control.
4. One who, at the request of a mem-
ber of a political party, suspends a political
banner across a city street, cannot be said,
as nlatter of law, to have surrendered con-
trol so as to relieve him from liability for
an injury to a person, due to the negligent
way in which the banner was suspended,
where there was evidence which, if believed,
warranted the finding that he also under-
took the care of the banner while it was
up.
[For other cases, see Negligence. II. c, 1. In
Digest Sup. Ct. 1908.) v, x. lu
Appeal — reversible error — allowance
of amendment.
6. The allowance of an amendment to
the declaration after the Statute of Limi-
tations had run is not error, where the
original declaration was sufficient, and the
amendment plainly left the cause of action
unchanged.
[For other cases, see Ajppeal and Error, VIII.
m, 2. In Digest Sup. Ct 1908.)
[No. 800.]
Argued Mardi 26 and 26, 1920. Decided
June 1, 1920.
ON WRIT of Certiorari to the United
States Cireuit Court of Appeals for
the Third Circuit to review a decree
which, on a second writ of error, reversed
a judgment of the District Court for the
Western District of Pennsylvania in
favor of plaintiff in a negligence action.
Reversed, and judgment of District
Court affirmed.
See same case below, 166 C. C. A.
668, 253 Fed. 987.
The facts are stated in the opinion.
Mr. Charles Alvin Jones argued the
cause, and, with Messrs. Allen J. Hast-
ings, James R. Sterrett, and M. W
Acheson, Jr., filed a brief for petitioner:
The judgment of reversal without a
direction for a new trial was error.
Slocum V. New York L. Ins. Co. 228
U. S. 364, 57 L. ed. 879, 33 Sup. Ct
Rep. 523, Ann. Cas. 1914D, 1029; Myers
V. Pittsburgh Coal Co. 233 U. S. 184,
189, 58 L. ed. 906, 909, 34 Sup. Ct. Rep.
559; Pederscn v. Delaware, L. & W. R.
Co. 229 U. S. 146, 153, 57 L. ed. 1125,
1128, 33 Sup. Ct. Rep. 648, Ann. Cas.
1914C, 153, 3 N. C. C. A. 779.
The question of control was for the
jury.
860
Philadelphia v. Stewart, 201 Pa. 526,
51 AU. 348; M'Fariand v. Newman, 9
Watts, 59, 34 Am. Dec 497; Sidwdl ?.
Evans, 1 Penr. & W. 386, 21 Am. Dec.
387; Sea Ins. Co. v. Johnston, 44 C. C.
A. 477, 105 Fed. 292.
The parties' own interpretation of
their contract is entitled to gieat, if not
controlling, weight.
Topliff V. Topliff, 122 U. S. 121, 131,
30 L. ed. 1110, 1114, 7 Sup. Ct. Rep.
1057; Gillespie v. Iseman, 210 Pa. 5, 50
Atl. 266; Kendall v. Klapperthal Co.
202 Pa. 609, 52 Atl. 92.
The evidence fully justified the jury in
finding the defendant still in control at
the time plaintiff's decedent was hurt.
Curtin v. Somerset, 140 Pa. 70, 12
ImRJl. 322, 23 Am. St. Rep. 220, 21 Ati.
244; Smith v. ElUott, 9 Pa. 347; Gray t.
Boston Gaslight Co. 114 Mass. 149;
Scullin V. Dolan, 4 Daly, 163.
To extend tlie rule relieving an inde-
pendent contractor, as contended tmr by
the defendant, where the contractor re-
mains in a position to correct his wrong
prior to an injury therefrom, would be
to carry it to an unjustifiable limit
Young V. Smith & K. Co. 124 Ga. 475,
110 Am. St. Rep. 186, 62 S. E. 765, 4
Ann. Cas. 226, 19 Am. Neg. Rep. 132;
Pennsylvania Steel Co. v. Elmore & H.
Ccmtracting Co; 175 Fed. 180; Snare &
T. Co. V. Friedman, 40 LJt.A.(N.S.)
367, 94 C. C. A. 369, 169 Fed. 1, 21 Am.
Neg. Rep. 311; Smith v. Elliott, 9 Pa.
346.
The character of the work nndertaken
by the defendant is imm^tterial. A oor-
poration is liable for its ultra vires torts.
Che8i4>eake & 0. R. Co. v. H<mard,
178 U. a 153, 44 L. ed. 1016, 29 Sup.
Ct. Rep. 880; First Nat. Bank v. On-
ham, 100 U. S. 699, 25 L. ed. 750, 1 Am.
N^. Cas. 588; Hanndn v. Siegel-Cooper
Co. 167 N. Y. 244, 52 L.R.A, 429, 60
N. E. 697, 5 Thomp. Corp. p. 225, f
5435.
The plaintiff's amendment did not
change the cause of action, nor intro-
duce a new one.
Stoner v. Erisman, 206 Pa. 600, 56
Atl. 77; Fricke v. Quinn, 188 Pa. 474,
41 Ati. 737; Rodrigue v. Curcier, 15
Serg. ft R. 81; 1 Ene. PI. & Pr. 563;
Stewart v. Kelly, 16 Pa. 162, 65 Am.
Dec. 487; Painter v. New River Mineral
Co. 98 Fed. 548.
Mr. W. 0. Miller argued the cause,
and, with Mr. H. B. Hartswick, filed a^
brief for respondent:
Whether the action be in contract or
in tort, and whether the evidence be writ-
S5S V. ^
19J9.
FIDELITY TITLE ft TRUST CO. v. DUBOIS ELECTRIC CO. 213, 214
t^n or parol, it is the duty of the court
to detenmne whether or not the evidence
on the part of the plaintiff is sufficient,
if believed by the jury, to establish the
averments of fact
Hyatt V. Johnston, 91 Pa. 200; Mo-
Knight V. Bell, 135 Pa. 372, 19 Atf.
1036; Burke v. Burke, 240 Pa. 387, 87
Ati. 960: Bannon v. Pennsylvania R. Co.
29 Pa. Super. Ct. 231; Howard Exp. Co.
▼. Wile, 64 Pa. 201; Lanning v. Pitts-
burg R. Co. 229 Pa. 676, 32 L.R.A.
(N.S.) 1043, 79 Atl. 136; Codding v.
Wood, 112 Pa. 371, 3 Atl. 455; Elliott
v. Wanamaker, 156 Pa. 67, 25 Atl. 826;
Peniston v. John Y. Huber Co. 196 Pa.
580, 46 AtL 934; Erie Forge Co. v.
Pennsylvania Iron Works Co. 2?> Pa.
Super. Ct 550; Holmes v. Tyson, 147
Pa. 305, 15 L.R.A. .209, 23 Atl. 564;
Wi&inson v. Stettler, 46 Pa. Super. Ct.
407; Maynes v. Atwater, 88 Pa. 496; 9
Cyc. 592, 786.
A party will not be permitted to shift
his ground or enlaige bis surface by in-
troducing a new and different cause of
actien barred by the Statute of Limita-
tions.
Philade^;>hia v. Hestonville, M. & F.
Pass. R. Co. 203 Pa. 38, 62 Atl. 184;
Mahoning v. Park Steel Co. 217 Pa. 20,
66 Atl. 90; Martin v. Pittsburg R. Co.
227 Pa. 18, 26 L.R.A.(N.S.) 1221, 76
Atl. 837, 19 Ann. Cas. 818; Lane v.
Sayre Water Co. 220 Pa. 599, 69 Atl.
1126; Grier v. Northern Assur. Co. 183
Pa. 334, 39 Atl. 10; Card v. Stowers
Pork Packing & Provision Co. 253 Pa.
576, 98 AtL 728; Noonan v. Pardee, 200
Pa. 474, 56 LJt.A. 410, 86 Am. St Rep..
722, 66 Atl. 255, 21 Mor. Min. Rep. 617;
Bank of Mifflintown v. Bank of New
Kensington, 247 Pa. 40, 92 AtL 1076.
[213] Mr. Justice Holmes delivered
the opinimi of the court f ,
This is an action begun by Pancoast,
to recover for personal injuries, and eon-
tinned after his death by the petitioner
as ancillary administrator. At a former
trial the plaintiff had a verdict, but it
was set aside and a new trial ordered
by the circuit court of appeals. L.R.A.
1917C, 907, 161 C. C. A. 206, 238 Fed.
129, 132. At the new trial the plaintiff
again got a verdict and judgment, but
the circuit court of appeals set them
aside, this time simply reversing the
jtidgment without ordering a new trial.
165 C. C; A. 668, 253 Fed. 987. An op-
portunity was allowed to that court to
correct the error, and as it was not cor-
rected, the present writ of certiorari was
trranted. 249 U. S. 606. 597, 63 L. ed.
M Jj. ed.
799, 796, 39 Sup. Ct. Rep. 290, 388. Of
course, if the judgment of the circuit
court of appeals was right on the mer-
its, a new trial should have been ordered.
Slocum V. New York L. Ins. Co. 228 U.
S. 364, 67 L. ed. 879, 33 Sup. Ct. Rep.
623, Ann. Cas. 1914D, 1029; Myers v.
Pittsburgh Coal Co. 233 U. S. 184, 189,
68 L. ed. 906, 909, 34 Sup. Ct. Rep. 659.
But, as it has been necessary to direct
the record tg be certified up, it is neces-
sary also to consider the merits of the
case, and to determine whether the cir-
cuit court of appeals was right with
regard to them.
Nothing turns upon the form of the
pleadings. The evidence for the plain-
tiff was in conflict with that for the de-
fendant upon important points, but we
shall state the case as the jury might
have found it to be if they believed the
plaintiff's evidence, as the verdict shows
they did. A member, of a political party
requested the defendant to suspend a
political banner, which he furnished,
across one of the principal streets in the
borough of Dubois, between the Com-
mercial Hotel and the Deposit National
Bank. He asked the defendant to put it
up, take it down after the election, and
attend to it for him, saying that he did
not want to have anything to do with it.
The defendant put up the banner, at first
suspending it by a [214] rope; but, the
rope breaking, substituted for it a wire
cable of the defendant's, and, the plain-
tiff says, did so without further orders.
This cable was fastened on the hotel side
by taking two turns round a chimney and
clamping the end. The chinmey stood
•31 inches from the edge of the cornice
over the street,, was 21 inches square at
the base, and had a tin flashing from
the roof, inserted between the courses
of brick two or three courses above the
roof. According to the plaintiff's evi-
dence the cable was attached above the
flashing. The lower comers of the ban-
ner were attached to the ' buildings on
their respective sides. Five days after
the banner was suspended, the man who
employed the defendant caused it to
string electric lights alon^ the wire, not
otherwise interfering with the work.
The same day, in the afternoon, the
weather being stormy, the banner
dragged the chimney over and a brick
struck Pancoast on the head, making a
comminuted fracture of the skull. The
defendant put up the banner a third
time after this fall, again, the plaintiff
says, without further direction, and,
when the election nvas oveV, took it down.
If these were the facts, and, except
867
214-216
SUPREMSIE CX3URT OF THK UNITED STATES.
Oct. Term.
with regard to the extent of the defend-
ant's control, they could not be dis-
puted, manifestly the verdict was war-
ranted. It did not leave the defendant
free from any duty to Pancoast and the
other travelers in the street that they
had no contract with it. An act of this
kind, that reasonable care would have
sliown to endanger life, might have made
the actor guilty of manslaughter, if not,
in an extreme case, of murder. Rig-
maidon's Case, 1 Lewin, C. C. 180. See
Nash V. United States, 229 U. S. 373,
377, 57 L. ed. 1232, 1235, 33 Sup. Ct.
Kep. 780; Com. v. Pierce. 138 Ma.ss. 165,
178, 52 Am. Rep. 264, 5 Am. Crim. Rep.
291. The .same considerations apply to
civil liability for personal injuries from
similar causes that would have been
avoided by reasonable care. See Gray
V. Boston Gaslight Co. 114 Mass. 149,
19 Am. Rep. 324. A man is not free to
introduce a danger [215] into public
places, even if he be under na contract
with the persons subjected to the risk.
It hardly is denied that there was
evidence of negligence, but it was held
by the circuit court of appeals that the
defendant's relation to the work ceased
when the banner was hung, that it had
no further control over it, and was not
liable for what happened thereafter. Of
course, it is true that when the presence
or absence of danger depends upon the
subsequent conduct of the person to
whom control is surrendered, the pre-
vious possessor may be exonerated when
the control is changed. Curtin v. Som-
erset, 140 Pa. 70, 12 L.R.A. 322, 23 Am.
St. Rep. 220, 21 Atl. 244; Murphev v.
Caralli, 3 Ilurlst. & C. 402, 159 Eng.
Reprint, 611, 34 L. J. Exch. N. S. 14,
10 Jur. N. S. 1207, 13 Week. Rep. 165;
Thornton v. Dow, 60 Wash. 622, 32
L.R.A.{N.8.) 968, 111 Pac. 899; Glynn v.
Central R. Co. 175 Mass. 510, 78 Am. St.
Rep. 507, 56 N. E. 698, 7 Am. Neg. Rep.
442; Clifford v. Atlantic Cotton Mills, 146
Mass. 47, 48, 4 Am. St. Rep. 279, 15 N.
E. 84. But how far this principle will
be carried may be uncertain. Union
Stock Yards Co. v. Chicago, B. & Q. R.
Co. 196 U. S. 217, 223, 49 L. ed. 453, 455,
25 Sup. Ct. Rep. 226, 2 Ann. Cas. 525,
17 Am. Neg. Rep. 760. And when, as
here, the danger had been called fully
into existence by the defendant, it could
not escape liability for the result of con-
ditions that it alone knew, had created,
and had arranged to have continue, by
stepping out of the control a few days
before the event came to pass. Harris
v. .Tames, 45 L. J. Q. B. N. S. 545, 35
868
L. T. N. S. 240 ; Todd v. Flight, 9 a B.
N. S. 377, 142 Eng. Reprint, 148, 30
L. J. C. P. N. S. 21, 7 Jur. N. S. 291. 3
L. T. N. S. 325, 9 Week. Rep. 145, 15
Eng. Rul. Cas. 329 ; Swords v. Edgar, 59
N. Y. 28, 17 Am. Rep. 295; Godlev v.
Hagerty, 20 Pa. 387, 59 Am. Dec. 731;
Joyce V. Martin, 15 R. I. 558, 10 Atl.
620; Jackman v. Arlington Mills, 137
Mass. 277, 283; Dalav v. Savage, 145
Mass. 38, 41, 1 Am. 'St. Rep. 429, 12
N. E. 841; Clifford v. Atlantic Cotton
Mills, 146 Mass. 47, 49, 4 Am. St. Rep.
279, 15 N. E. 84.
But it could not be said, as matter of
law, that the defendant had stepped out
of control. The facts, in their legal as-
pect, probably were somewhat hazy.
I Presumably the tenant of the hotel sim-
ply permitted what was done, and had
no other relation to it than such as might
be imposed upon him by the law. Evi-
dently the defendant handled the bamier
when it wanted to, and no one else
[216] touched it. The defendant's em-
ployer, if he told the truth, not only did
not intermeddle, but might be found to
have expressly required the defendant to
take the responsibility. All the probabili-
ties are that such control as there was
remained with the defendant. The de-
fendant got more than it was entitled to
when the jury were instructed that, even
if the fall was due to negligence in put-
ting up the banner, the defendant would
not be liable unless, by arrangement, it
had assumed a continuing duty to main-
tain the banner in a safe condition. The
.testimony on the two aides was con-
trasted, and it was left to the jury to
say which they would believe.
As we have implied, we regard it as
too plain for discussion that the plain-
tiff's evidence, if believed, warranted a
finding that the defendant undertook the
care of the banner while it was up. An
effort is made to establish an error in
allowing an amendment to the declara-
tion after the Statute of Limitation^; had
run. The declaration originally alleged
negligence in the use of the chimney,
and that the fall was due to the use of
the chimney as alleged. The amendment
alleged also that defendant maintained
the banner. If any objection is open^ it
is enough to say that the original dec-
laration was sufficient, and that the
amendment plainly left the eanse of ac-
tion unchanged.
Judgment reversed.
Judgment of the District Court af-
firmed.
S5S V. 8.
lyiy.
J^eCHONK v. McADOO.
217-219
[2173 'TOILN VV. J.kCRON'E, Receiwr of
the <)riuo<*o ('ompany, Limited, Plff. in
Krr.,
V.
WILJJAM G. MeADOO, Secretary of the
Treasury.
(See S. C. Reporter*8 ed. 217-219.) '
Abatement — by renlgiiatlon of officer
— substitution.
Mandamus proceedings against the
Secretary of the Treasury abated when,
that oflficer having resigned his office, his
successor was not substituted as defend-
ant within twelve months, which is the
limit for substitution afforded by the Act
of February 8, 1899, and the fact that the
District of Columbia Code, § 1278, allows
the petitioner to recover damages in the
same proceeding, does not justify the reten-
tion of the petition to charge the Secretary
personally, since the damages are only in-
cident to the allowance of the writ.
(For olber cases, sec Abatemeut, II. d, in
Digest Sup. Ct 11)08.]
[No. 304.]
Submitted April 26, 1920. Decided June 1,
1920.
IN ERROR to the Court of Appeals of
the District of Columbia to review a
judgment which affirmed a judgment of
the Supreme Court of the District, dis-
missing the petition in mandamus pro-
ceedings against the Secretary of the
Treasury. Dismissed for want of juris-
diction.
See same case below, 48 App. D. C.
181.
The facts are stated in the opinion.
Mr. George K. Baxter submitted the
cause for plaintiff in error.
Solicitor General King submitted the
cause for defen«bnit in error. Mr. W.
Marvin Smith was on the brief.
Mr. Ju!$tice Holmes delivered the
opinion of the court:
This is a petition to the supreme court
of the District of Columbia for man-
damus to direct the Secretary of the
Treasury to pay the amount of two cer-
titicates issued to the petitioner by the
Secretary of State. The petitioner is
receiver of the CTrinoco Company, Limit-
ed. That company had claims for dam-
afipes against the United States of Ven-
ezuela, which, with others, by agreement
[218] between the two governments, the
United States of America released upon
receiving from the United States of Ven-
ezuela a certain sum in trust for the
parties having the claims. By the Act
of February 27, 1806, chap. 34, 29 Stat.
^4 li. ed.
at L. 32, Comp. Stat. § GGGS, 2 Fed. Stat.
Anno. 2d ed. p. 226, moneys so received
are to be paidanto the Treasury, and the
Secretary of State is to "determine the
amounts due claimants, respeotively,
. . . and certify the same to the Secre-
tary of the Treasury, who shall, upon
the presentation of the certificates of
the Secretary of State, i>ay the amounts
so found to be due.'* Each of such trust
funds is declared to be ^^appropriated
for the payment to the ascertained bene-
ficiaries thereof of the eei'tificates'* pro-
vided for. The answer alleged that
there were pending in the same supreme
court two bills in equity, one by a pri-
vate person and one by the Orinoco
Company, Limited, asserting claims to
the fund; that the respondent and peti-
tioner both are parties to those proceed-
ings, the petitioner having submitted to
the jurisdiction; and that the petitioner
should be limited to those proceedings
and await the result of the decrees. The
petitioner demurred. The demurrer was
overruled and the petition was dismissed
by the supreme court, and its judgment
was affirmed by the court of appeals.
The theory of the answer seems to be
that the purpose of the act of Congress
was to appropriate a fund to the claim,
and to transfer the claim to that fund,
leaving the question of title open to
litigation in the ordinary courts, as has
been held in more or less similar cases.
Butler V. Gorelev, 146 U. S. 308-310, 36
L. ed. 984, 985, 13 Sup. Vt, Rep. 84, s. c.
147 Mass. 8, 12, 16 X. E. 734; United
States V. Daleour, 203 U. S. 408, 422, 51
L. ed. 248, 251, 27 Sup. Ct. Rep. 58;
Robertson v. (lordon, 226 U. S. 311, 317,
57 L. ed. 236, 239, 33 Sup. Ct. Rep. 105.
See also Bayard v. United States, 127 U.
S. 246, 32 L. ed. 116, 8 Sup. Ct. Rep.
1223. It is thought that Congress hardly
^an have sought to confer judicial pow-
ers upon the Secretary' of State. United
States V. Borcherling, 185 U. S. 223, 234,
46 L. ed. 884, 889, 22 Sup. Ct. Rep. 607. '
And as the certificates are not gifts, but
are in recognition of outstanding claims
(Williams v. Heard, 140 [219] U. S.
529, 35 L. ed. 550, 11 Sup. Ct. Rep. 885,
reversing 146 Mass. 545, 16 N. E. 437),
judicial action is supposed to be neces-
sary for the final determination of the
right. But we cannot consider that ques-
tion or the other arguments upon the
merits of the case, because, Mr. McAdoo
having resigned the office of Secretary-
of the Treasur3^, his succe>isor was not
substituted within twelve months; which
is the limit for such sul>stitution fixed
bv the Act of Fcbruarv 8, 1809, chap.
8«»
eio
SUPREME CX)URT OF THE UKITED STATES
Oct. Tmmu
121, 30 SUt. at L. 822, Comp. Stat. §
1594, 8 Fed. Stat. Anno. 2d ed. p. 953.
It is said that the Code of the District
of Columbia, § 1278, allows the petition-
er to reeover damages in the same pro-
ceeding, and that the petition should be
retain^ to charge Mr. McAdoo personal-
ly. But, apart from other question^ the
damages are only incident to the allow-
ance of the writ of mandamus, and as
that cannot be allowed, the whole pro-
ceeding is at an end. See Pullman Co.
7. Knott, 243 U. S. 447, 451, 61 L. ed.
641, 843, 37 Sup. Ct. Rep. 428; Pullman
Co. V. Croom, 231 U. S. 571, 577, 58 L.
ed. 875, 377, 34 Sup. Ct. Rep. 182.
Writ of error dismissed.
CITY OP NEW YORK, Appt.,
y.
CONSOLIDATED GAS COMPANY OF
NEW YORK et al.
(See S. C. Reporter's ed. 219-221.)
Appeal — final decree below.
1. An order of a Federal district court
denving the application of a municipality
Co interrene in a suit by a gas company
against the attorney general, the district
attorney, and the state Public Service Com-
ffiission, to enjoin the enforcement of state
legislation fixing gas rates, is not of that
final character which furnishes the basis
for an appeal.
(For other cases, see Appeal and Error, I. d,
in Digest Sup. Ct. 1908.]
Appeal — from circuit court of appeals
— Jurisdiction of trial court based on
constitutional grounds.
2. An appeal having been taken to a
circuit court of appeals in a case in which
Jurisdiction below was based upon consti-
tutional grounds, and hence' Was not ap-
pealable to that court, and a final order
naving been made bv the circuit court of.
Rpi>eals, the Federal Supreme Court has
jurisdiction under the Judicial Code, § 241,
^to review the question of the jurisdiction
*of the circuit court of appeals.
(For other cases, see Appeal and Error, III.
d. 2, in Digest Sup. Ct. 190S.]
Note. — As to what judgments or de-
crees are final for purposes of review —
see notes to Gibbons v. Ogden, 5 L..ed.
U. S. 302; Schlosser v. IlemphiU, 49
L. ed. U. S. 1001; ami Detroit & M. R.
Co. V. Michigan R. Commission, 60 L.
ed. U. S. 802.
On appellate jurisdiction of Federal
Supreme Court over circuit courts of
appeals — see notes to Bagley v. General
Fire Extinguisher Co. 53 L. ed. U. 8.
605; and St. Anthony's Church v. Penn-
FTlvania R. Co. 59 L. ed. U. S. 1119.
Appeal — Judgment <— remandincr for
dismissal of appeal.
3. The proper course for the Federal
Supreme Court on an appeal from a decree
of alBrmanoe made by a circuit court of
appeals in a case wrongfully appealed to
that court is to reverse the judgment of
the circuit court of appeals and remand the
case to that court, with directions to dis
miss the appeal.
[For other .cases, see Appeal and Error, 5481-
5494, In Digest Sup. Ct. lOOS.]
[No. 566.]
Argued April 22, 1920. Decided Jtwe 1.
1920.
APPEAL from the United States Cir-
cuit Court of Appeals for the Sec-
ond Cirduit to review a judgment which
afi&rmed au order of the District Court
for the Southern District of New York,
denying an application for leave to in-
tervene. Reversed and remanded to the
Circuit Court of Appeals with direc-
tions to dismiss the appeal to that court.
See same case below, 171 C. C. A.
669, 260 Fed. 1022.
Mr. Vincent Victory argued the cause,
and, with Messrs. William P. Burr' and
John P. O'Brien, filed a brief for appd-
lant:
The order of the district court deny-
ing as a matter of law, and not in the
exercise of discretion, the motion of the
city for intervention, is a final order.
Gumbel v. Pitkin, 113 U. S. 545, 28
L. ed. 1128, 5 Sup. Ct. Rep. 616;
Houghton V. Burden, 228 U. S. 161, 165,
57 L. ed. 780, 782, 33 Sup. Ct. R«p. 4dl ;
Minot V. Mastin, 37 C. C. A. 234, 95
Fed. 739; United States v. Philipe, 46
C. C. A. 660, 107 Fed. 824: Central
Trust Co. V. Chicago, R. I. ft P. R. Co.
134 C. C. A. 144, 218 Fed. 336; Harry
Bros. Co, V. Yaryan Naval Stores Co
135 C. C. A. 454, 219 Fed. 884.
Messrs. John P. (VBrien and Vincent
Victory also filed a separate brief for
appellant :
The making of this final order was a
determination or adjudication of a sub-
stantial right against the appellant in
such manner as to leave it no adequate
relief except by recourse to an appeal.
Gkiy V. Hudson River Electric power
Co. 106 C. C. A. 643, 184 Fed. 689; Re
Farmers' Loan & T. Co. 129 U. S. 206,
32 L. ed. 656, 9 Sup. Ct. Rep. 265;
Brush Electric Co. v. Electric Improv.
Co. 2 C. C. A. 373, 7 U. S. App. 266.
51 Fed 561.
The right of the city to represent ite
inhabitants, and also its right torepre-
1819.
HAWKE V. SMITH.
220, 221
sent its own interest through its corpo-
ration counsel, is a substantial and con-
stitutional rights entitled to the protec-
tion of the courts. The order appealed
from impaired this substantial right of
the city, and, therefore, it is a final
order.
Central Trust Co. v. Chicago B. I. d;
P. R. Co. 134 C. C. A. 144, 218 Fed.
336: Odell v. H. Batterman Co. 138 C.
C. A. 634, 223 Fed. 292; Gas A Electric
Securities Co. v. Manhattan & Q. Trac-
tion Corp. 226 Fed. 625.
Mr. Charles D. Newton, Attorney
Qeneral of New York, and Messrs. Wil-
ber W. Chambers and Robert S. Conk-
lin,- filed a brief for Charles D. Newton
as Attorney General.
Mr. J<dm A. Garyer argued the cause,
and filed a brief for appellees:
The order appealed &om is not sub-
iect to review
Ex parte Cutting, 94 U. S. 14, 22, 24
L. ed. 49, 51; Credits Commutation Co.
V. United States, 177 U. S. 311, 316, 44
L. ed. 782, 785, 20 Sup. Ct. Rep. 636;
Re Leaf Tobacco Board of Trade, 222
U. S. 578, 581, 66 L. ed. 323, 32 Sup.
Ct. Rep. 833; Re Engelhard & Sons Co.
231 U. S. 646, 58 L. ed. 416, 34 Sup. Ct.
Rep. 258.
Memorandum opinion by direction of
the court by Mr. Justice Day:
The Consolidated Gas Company of
New York brought suit to enjoin the
enforcement of the New York 80-cent
gas law. The jurisdiction was invoked
solely upon the ground that the rate
was confiscatory* and hence violated
constitutional rights of the company.
The city of New York applied for leave
to intervene as a party defendant in the
action. The district judge denied th6
petiticHi for intervention, stating that
the Public Service Commission, the at-
torney general, and the district attorney
properly represented private consumers;
that the city had no interest in the liti-
gation as a consumer; was not the gov-
ernmental body which had fixed the rate,
and was not charged with the duty of
enforcing it. From the order denying
the application to intervene, the city
of New Yoik prosecuted an appeal to
the circuit court of [221] appeals; and
the latter court affirmed the order of
the district court.
The application was addressed to the
discretion of the district court, and the
order appealed from was not of that
€4 Ti. ed.
final character which furnished the basis
for appeal. Ex parte Cutting, 94 U. S.
14, 22, 24 L. ed. 49, 61 : Credits Commu-
tetion Co. V. United States, 177 U. S.
311, 315, 44 L.. ed. 782. 785, 20 Sup. Ct.
Rep. 636; Re Leaf Tobacco Board of
Trade, 222 U. S. 578, 581, 56 L. ed. 323,
32 Sup. Ct. Rep. 833. As the jurisdic-
tion of the district court was based upon
constitutional grounds only, the case was
not appealable to the circuit court of
appeals. But, an appeal liaving been
taken and a final order made in the cir-
cuit court of appeals, we have jurisdic-
tion to review the question of jurisdic-
tion of that court. Judicial Code, § 241
[36 Stat, at L. 1157, chap. 231, Comp.
Stat. § 1218, 5 Fed. Stat. Anno. 2d ed.
877] ; Union & Planters' Bank v. Mem-
phis, 189 U. S. 71, 73, 47 L. ed. 712, 713,
23 Sup. Ct. Rep. 604.
The proper course is to reverse the
judgment of. the Circuit Court of Ap-
peals, and remand the ease to that court,
with directions to dismiss the {^peal.
443 Cans of Frozen Egg Product v. Unit-
ed States, 226 U. S. 172, 184, 57 L. ed.
174, 179, 33 Sup. Ct. Rep. 50; Carolina
Glass Co. V. South Carolina, 240 U. S.
305, 318, 60 L. ed. 658, 664, 36 Sup. Ct.
Rep. 293. • *•
So ordered.
GEORGE S. HAWKE, Plff. in Err.,
V.
HARVEY C. SMITH, at Secretary of State
of Ohio.
(See S. C. Reporter's ed. 221-231.)
Constitutional law — amendment of
Federal Constitution — state referen-
dum.
Referendum provisions of state Con-
stitutions nnd statutes cannot be applied in
the ratification or rejection of amendments
to the Federal Constitution without violat-
ing the requirement of article 5 of such Con-
stitution, that such ratification shall be by
the legislatures of tlie seTeral states, or by
Note. — On initiative and referendum
•*-8ee note to Hockett v. State Liquor
Licensing Board, L.B.A.1917B, 15; and
State ex rel. Davies v. White, 50 L.R.A.
(N.S.) 195.
On ratification of amendments to
Federal Constitution, or other acts of
the state legislature, under provision of
Federal Constitution, as subject to state
referendum — see note to Re Opinion of
Justices, 5 A.L.R. 1417.
871
SUPHKMK a)UUT OF TlIK UNITED STATES.
Oct. Tebm,
ronveiitioiis *t herein, as Congress sliall de- \
<*ide.
I For other cases, see (Constitutional Law, I. in
Digest Sup. Ct. lOOS.J
[No. 582.]
Argued April 23, 1920. Decided June 1,
1020.
IN ERROR to the Supreme Court of
the State of Ohio to review a decree
which affirmed a decree of the Court of
Appeals of* Franklin County, in that
state, affirming a decree of the Court of
Common Pleas of said <'ounty by which
a demurrer was sustained to a petition
seeking to enjoin tlie submission of a
referendum to the electors on the ques-
tion of the ratification which the gen-
eral assembly had made of the proposed
18th Amendment to the Federal Consti-
tution. Reversed and remanded for fur-
ther proceedings.
See same case below, 100 Ohio St.
385, 126 N. E. 400.
The facts are stated in the opinion.
Mr. J. Frank Hanly argued the cause,
and, with Messrs. George S. Hawke,
Arthur Helleii, Charles B. Smith, James
Bingham, and Remster A. Bingham,
filed a brief for plaintiff in error:
The amendment of the Federal Con-
stitution a^ to substance, form, and
manner is exclusively a Federal ques-
tion, and the right to participate there-
in is derived from and dependent upon
the Federal Constitution.
Jameson, Const. Conventions, 4th ed.
§§ 582, 583; Watson, Const. 1310; 33
Harvard L. Rev. 288.
The Constitution of the United States
provides the manner of its own amend-
ment, and the degree and manner in
which the several states may partici-
pate therein.
Ibid.
The word "legislature,'' as used in
jirtiele 5 of the Federal Constitution,
means the general assembly of a state
or representative lawmaking body cho-
sen by the people.
Black, Interpretation of Laws, pp. 15,
16; Walker v. Cincinnati, 21 Ohio St.
53, 8 Am. Rep. 24; Ohio ex rel. Davis
V. Ilildebrant, 241 U. S. 565, 60 L. ed.
1172, 36 Sup. Ct. Rep. 708; Willoughby,
Const, p. 20, § 20; State ex rel. Van
Alstine v. Frear, 142 Wis. 320, 125 N.
W. 961, 20 Ann. Cas. 633; The Feder-
.ilist. 4 Elliot, Debates, 2d ed. 182, 183,
.13 Harvard L. Rev. 288, 289.
The history of the Constitutional
Convention and a study of its debates
and those of the stale conventions rat-
872
ifying the Federal Constitution, and the
general acceptance, use, and under-
standing of the word "legislature" at
the time of the formulation and adop-
tion of the Constitution, conclusively
show that the makers of the Constitu-
tion intended to delegate the power of
ratification to the general assemblies or
representative lawmaking bodies of the
several states, composed, of meml>ers
elected by the people of such states.
Adam's Works, vol. — , p. 508; Pro-
ceedings of Const. Convention, 1787;
Madison's Journal, pp. 97, 111, 112, 199,
200, 365, 388, 410-416, 419, 421, 435,
542; McPherson v. Blacker, 146 U. S. 1,
28, 36 L. ed. 869, 874, 13 Sup. Ct. Rep.
3; Hollingsworth v. Virginia, 3 Dall.
378, 1 L. ed. 644; Journal, Const. Con-
ventions, pp. 92, 190, 286, 288; 1 Elliot,
Debates, pp. 156, 208, 211, 217, 262;
6 Am. & Eng. Ene. Law, 2d ed. 906, 6
(bb), note 3; Watson, Const, pp. 318-
320; Chicago v. Reeves, 220 III. 288, 77
N. E. 237; State ex rel. Erkenbrecher v.
Cox, 257 Fed. 334; Elliott's Journal.
Const. Conventions, 145, 149, 182, 223,
230, 304, 317; 3 Elliot, Debates, pp. 49,
96, 97; 4 Elliot, Debates, 2d ed. 182,
183; 33 Harvard L. Rev. 288, 289;
Weston V. Ryan, 70 Neb. 218, 97 N. W.
347, 6 Ann. Cas. 922.
■Ratification of an amendment to the
Federal Constitution is not a legisla-
tive act. The power of ratification is
derived from Federal, and not from
state, authority.
Ohio ex rel. DavLs v. Hildebrant,
241 U. S. 565, 60 L. ed. 1172, 36 Sup.
Ct. Rep. 708: McPherson v. Blacker,
146 U. S. 1, 36 L. ed. 869, 13 Sup. Ct.
Rep. 3; 4 Elliot, Debates, 177, 404;
Ohio Ops. Atty. Gen. 1917; Mathews'
Legislative & Judicial History of 15th
Amendment, p. 68; Jameson, Const.
Conventions, 4th ed. § 583; 33 Harvard
L. Rev. 288, 289; Re Opinion of Jus-
tices, 118 Me. 544, 5 A.L.R. 1412, 107
Atl. 673; State ex rc4. Morris v. Masou,
43 La. Ann. 590, 9 So. 776; Com. ex rel.
Attv. Gen. v. Griest, 196 Pa, 396, 50
L.R.A. 568, 46 Atl. 505; Hollingsworth
V. Virginia, 3 Dall. 378. 1 L. ed. 644;
Willoughby, Const. 520, 521; 2 Watson,
Const. 1318.
The people of a state canuot re8er\*e
the power lo act in the matter of rat-
ification of an amendment to the Fed-
eral Constitution because the states del-
egated all authority to amend tlH>
Federal Constitution to the Federal
government, and ni>w possess no power
of ratification other than such as has
1919.
HaWKK %. yMlTH.
been redelegated to them by the Fed-
eral government, and are limited in the
exercise of any snch redelegated pow-
ers to the manner and form and the
agencies designated by the Federal gov-
ernment in the national Constitntion.
The states cannot reserve what they do
not possess.
Jameson, Const. Conventions, 4th ed
§ 583; Harvard L. Rev. Dec. 1919; Re
Opinion of Justices, 118 Me. 544, 6
A.L.R. 1412, 107 Atl. 673; State ex rel.
Morris v. Mason, 43 La. Ann. 590, 9
So. 776; Com. ex rel. Atty. Gen. v.
Griest, 196 Pa. 396, 50 L.RA. 568, 46
Atl. 505; Holli«^ worth v. Virginia, 3
Dall. 378, 1 L. ed. 644; Willoughbv,
Const 520, 521; 2 Watson, Const. 131*8.
Under the Constitution, Congress
alone may choose the mode of ratifica-
tion, and is empowered to make all
laws which shall be necessary and prop-
er for carrying into execution the fore-
going powers and all other powers vest-
ed by the Constitution iu the govern-
ment of the United States, or in any
department or oflScer thereof.
Thayer, Legal Essays, 7, 13; 33 Har-
vard L. Rev. 290.
Congress has acted in the matter of
determining the manner of deciding the
fact of ratification of amendments to
the Constitntion, and has designated
the agency for such determination.
Clothed with the sole power, of such ac-
tion, and having acted by the enactment
of a statute providing the manner of
ascertainment, and designating the
authority for deciding the fact of rat-
ification, its action is conclusive on the
. states and upon the courts.
Wambaugh, ('ases pn Const. Law, 26,
notes 1, 2; 33 Harvard L. Rev. 290.
In the ratification of the amendment
at bar, the authority designated by
Congress, pursuing the manner of ascer-|
tainment of the fact of ratification pro-
vided for by Congress, has declared
such fact, and, by proclamation duly
made, included the state of Ohio in the
list of ratifjring states. And the Con-
gress has not only acquiesctd, but has
approved the ascertainment of the fact
of ratification and its proclamation, by
affirmative action in the enactment of
the Volstead Act for the amendment's
enforcement, and its action is not the
subject of judicial review.
liCgal Tender Case, 110 U. S. 421, 28
L. ed. 204, 4 Sup. Ct. Rep. 122: Prize
Cases, 2 Black. 6;J5, 17 L. ed. 459 ; Oet-
jen V. Central Leather Co. 24t» I'. S.
297, 62 L. ed, 726, 38 Sup. Ct. Kcp. 3t>9;
Ricand v. American Mclal Co. 210 C.
64 U ed.
S. 304, 62 L. ed. 733, 38 Sup. Ct. Kep.
312; Jones v. United States, 137 U. S
202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80;
Foster v. Neilson, 2 Pet. 253, 7 L. ed.
415; Re Cooper, 143 U. S. 472, 499, 36
L. ed. 232, 240, 12 Sup. Ct. Rep. 453;
The James G. Swan, 50 Fed. 108 ; Miles
v. Bradford, 22 Md. 170, 85 Am. Dec.
643; Lyons v. Woods, 153 U. S. 649, 38
L. ed. 854, 14 Sup. Ct. Rep. 959; State
V. Septon, 3 R. I. 119; People v. Har-
lan, 133 Cal. 16, 65 Pac. 9; Cox v. Pitt
County, 146 N. C. 584, 16 L.R.A.(N.S.)
253, 60 S. E. 516; 33 Harvard L. Rev.
291.
Executive and congressional construc-
tion covering a century and a third of
history has conclusively established the
meaning of the word "legislatures" in
Article 5 of tli§ Constitution to be the
general assemblies of the several states,
— the lawmaking bodies of such states,
composed of individual members rep-
resentative of, and elected by, the peo-
ple of such respective states.
Jameson, Const. Conventions, 4th ed.
§§ 582, 583; 2 Watson, Const. 1314,
•1315; Wambaugh, Cases on Const. Law,
26, notes 1, 2.
The Federal Constitution is the su-
preme law of the land, and as such, the
courts are bound to support it. Any
provision in a state Constitution in con-
flict with or in contravention of the
Federal Constitution is void.
Hauenstcin v. Lynham, 100 U. S. 483,
25 L. ed. 628; Montgomery v. State, 55
Fla. 97, 45 So. 879; Jameson, Const.
Conventions, 4th ed. § 583; State ex rel.
Davis V. Hildebrant, 94 Ohio St. 154,
114 N. E. 55, 241 U. S. 565, 60 L. ed.
1172, 36 Sup. Ct. Rep. 708; State ex^rel.
Schrader v. Pollev, 26 S. D. 5, 127 N.
W. 848; State ex rel. Case v. Howell,
85 Wash. 281, 147 Pac. 1162; State ex
rel. Case v. Howell, 85 Wash. 204, 147
Pac. 1159, Ann. Cas. 1916A, 1231; Hol-
lingsworth v. Virginia, 3 Dall. 378, 1
L. ed. 644; Chisholm v. Georgia, 2 Dall.
419, 1 I., ed. 440; State ex rel. Wine-
man V. Dahl, 6 y. D. 81, 34 L.R.A. 97,
08 X. W. 418; Martin v. Hunter, 1
Wlieat. 304, 32;'), 4 L. ed. 97, 102; 4 El-
liot, Debates, 176, 177; 2 Watson, Const,
pp. 1310, 1315; Moulton v. Scullv, 111
Me. 438, 89 Atl. 944; Herbring v. Brown,
92 Or. 176, 180 Pac. 328; Dod^e v. Wool-
sev, 18 How. 381, 348, 15 L. ed. 401,
407.
Injunction against the calling of a
referendum election on the act of the
legislature of a state ratifying an
amendment* to the Federal Constitution
is a proper rem«dv, and may be invoked
873
iJ24, 225
{SUl'ltOIE CX)tlir OF IIIE rNlTED STATES.
Oct.
by a citizen who is a taxpa3^er and an
elector.
State ex rel. Berry v. Superior Ct. 92
Wash. 16, 169 Pac. 92; State ex rel.
McNary v. Oleott, 62 Or. 277, 125 Pac.
303; Rickey v. Williams, 8 Wash. 479,
36 Pac. 480; Krieschel v. Snohomish
County, 12 Wash. 428, 41 Pac. 180;
State ex rel. Halliburton v. Roach, 230
Mo. 408, 139 Am. St. Rep. 639, 130 S.
W. 689; Crawford v. Gilchrist, 64 Fla.
41, 59 So. 964, Ann. Cas. 1914B, 916;
State ex rel. Davies v. White, 36 Nev.
334, 50 L.R.A.(N.S.) 195, 136 Pac. 110;
Speer v. People, 52 Colo. 325, 122 Pac.
768; Dodd, Revision & Amendment of
Slate Const, p. 232; State ex rel. Linde
V. Hall, 35 N. D. 34, 159 N. W. 281;
Macon v. Hughes, 110 Ga. 804, 36 S. E.
247; De Kalb County v. Atlanta,* 132
Ga. 727, 65 S. E. 72; Lynchburg & D.
R. Co. V. Person County, 109 N. C. 159,
13 S. E, 783; Hood v. Sutton, 175 N. C.
98, 94 S. E. 686; Trading Stamp Co. v.
Memphis, 101 Tenn. 181, 47 S. W. 136;
Layton v. Monroe, 50 La. Ann. 121, 23
So. 99; Brown v. Trousdale, 138 U. S.
389, 34 L. ed. 987, 11 Sup. Ct. Rep. 308;
Ellingham v. Dye, 178 Ind. 336, 99 N.
E. 1 ; Tolbert v. Long, 134 Ga. 292, 137
Am. St. Rep. 222, 67 S. E. 826.
Messrs. Wayne B. Wheeler and
James A. White filed a brief as amici
curiffl :
There is no authority in the Federal
Constitution for ratification of a Fed-
eral amendment except by the l^sla-
ture of the state, or a convention chosen
for that purpose, as one or the other
method is designated by Congress.
Barlotti ▼. Lyons, — Cal. — , 189 Pac.
282; Decher v. Vaughan, — Mich. — ,
177 N. W. 388; People ex rel. Bay City
V. State Treasurer, 23 Mich. 506; Hol-
lingsworth v. Virginia, 3 Ball. 378, 1
U ed. 644; Herbring v. Brown, 92 Or.
176, 180 Pac 328; Whittemore v. Ter-
ral, 140 Ark. 493, 215 S. W. 686; Prior
v. Noland, — Colo. — , 188 Pac. 729;
Re Opinion of Justices, 118 Me. 544, 5
A.L.R. 1412, 107 Atl. 673.
Mr. Lawrence Maxwell argued the
cause, and, with Messrs. Judson Har-
mon and B. W. Gearheart, and Mr.
John G. Price, Attorney General of
Ohio, filed a brief for defendant in
error:
The term ^'legislature" in art. 1, § 4,
of the United States Constitution, com-
prehends the entire legislative power of
the state; and, as so used, includes not
onlv the two branches of the general
871
assembly, but the popular will, aa ex-
pressed in the referendum provided for
ui §§ 1 and la of art. 2 of the Ohio
Constitution.
State ex rel. Davis v. Hildebrant,
94 Ohio St. 154, 114 N. E. 55, 241 U. S.
565, 60 L. ed. 1172, 36 Sup. Ct Eep.
708; State ex rel. Mullen v. Howell, 107
Wash. 167, 181 Pac. 920.
Mr. Justice Day delivered the opinion
of the court:
Plaintiff in error (plaintiff below) filed
a petition for an injunction in the court
of common pleas of Franklin county,
Ohio, seeking to enjoin the secretary of
state of Ohio from spending the publie
money in preparing and printing foims
of ballot for submission of a referen-
dum to the electors of that state on Um
question of the ratification whieh the
general assembly had made of the pro-
posed 18th Amendment to the Federal
Constitution. A demurrer to the petition
was sustained in the court of commoB
pleas. Its judgment was affirmed by the
court of appeals of Franklin county,
which judgment was affirmed by the
supreme court of Ohio, and the case wat
brought here.
A joint resolution proposing to the
states this Amendment to the Constitu-
tion of the United States was adopted
on the 3d day of December, 1917. Tht
Amendment prohibits the manufacture,
sale, or transportation of [225] intox-
icating liquors within, the importa-
tion thereof into, or the exportatioe
thereof from the United States and
all territory subject to the jurisdic-
tion thereof, for beverage purposely .
The several states were given coneur-
rent power to enforce the Amend-
ment by appropriate legislation. The
resolution provided that the Amendment
should be inoperative unless ratified a5
an Amendment of the Constitution by
the legislatures of the several states, as
provided in the Constitution, withio
seven years from the date of the sub-
mission thereof to the states. The senate
and house of representatives of the state
of Ohio adopted a resolution ratifying
the proposed Amendment by the genenu
assembly of the state of Ohio, and or-
dered that certified copies of the joint
resolution of ratification be forwarded
by the governor to the Secretary of State
at Washington and to the presiding offi-
cer of each House of Congress. Thii
resolution was adopted on January 7,
1919; on January 27, 1919, the governor
of Ohio complied with the reeolution.
On January 29, 1919, the Secretwry of
SB9 U. S.
i»l».
ILWVKE V. SMITH.
225-228
State of the United States proclaimed
the ratification of the Amendment^ nam-
ing thirty-six states as having ratified
the game, among them the state of Ohio.
The question for our consideration is:
Whether the provision of the Ohio Con-
stitution, adopted at the general election,
Novemher, 1918, extending the refer-
endum to the ratification hy the gen-
eral assembly of proposed amendments
to the Federal Constitution, is in con-
flict with article 5 of the Constitution
of the United States. The Amendment
of 1918 provides: "The people also re-
serve to themselves the legislative pow-
er of the referendum on the action of
the general assembly ratifying any pro-
posed amendment to the Constitution of
the United States.'' Article 5 of the
Federal Constitution provides: ''The
Congress, whenever two thirds of both
Hoisaes shall deem it necessary, shall
propose amendments [226] to this
CoBBtitntion, or, on the application of
the legislatures of two thirds of the
seventl states, shall call a convention for
proposing amendments, which, in either
case, shfdl be valid to all intents and
purposes as part of this Constitution,
when ratified oy the legislatures of three
fourths of the several states, or by con-
ventions in three fourths thereof, as the
pne or the other mode of ratification may
be proposed by the Congress; provided
that no amen^ent which may be made
prior to the year one thousand eight hun-
dred and eight shall in any manner af-
fect the first and fourth clauses in the
ninth section of the first article; and
that so state, without its consent, shall
be deprived of its equal suffrage in the
Senate."
The Constitution of the United States
was ordained by the people, and, when
duly ratified, it became the Constitution
of the people of the United States.
M'CulIoch V. Maryland, 4 Wheat. 316,
402, 4 L. ed. 579, 600. The states sur-
rendered to the general government
the powers spefificaJly conferred upon
the nation, and the Constitution and the
laws of the United States are the su-
preme law of the land.
The framers of the Constitution real-
ized that it might, in the progress of
time and the development of new con-
ditions, require changes, and they in-
tended to provide an orderly manner in
which these could be accomplished; to
that end they adopted the 5th article.
This article makes provision for the
proposal of amendments either by two
thirds of both Houses of Congress, or on
appKcalion of the legislatures of two
•4 Ij. ed.
thirds of the states; thus securing de-
liberation and consideration before any
change can be proposed, the proposed
change can only become effective by the
ratification of the legislatures of three
fourths of the states, or by conventions
in a like number of states. The method
of ratification is left to the choice of
Congress. Both methods of ratification,
by legislatures or conventions, call for
[227] acti9n by deliberative assem-
blages representative of the people,
which it was assumed would voice the
will of the people.
The 5th article is a grant of authority
by the people to Congress. The deter-
mination of the method of ratiJ&cation is
the exercise of a national power specifi-
cally granted by the Constitution; that
power is conferred upon Congress, and is
limited to two methods: by action of the
leg;islatures of three fourths of the
states, or conventions in a like number
of states. Dodge v. Woolsey, 18 H6w.
331, 348, 15 L. ed. 401, 407. The fram-
ers of the Constitution might have
adopted a different method. Ratification
might have been left to a vote of the
people, or to some authority of govern-
ment other than that selected. The
language of the article is plain, and ad-
mits of no doubt in^ts interpretation.
It is not the function of courts or leg-
islative bodies, national or state, to alter
the method which the Constitution has
fixed.
All of the amendments to the Consti-
tution have been submitted with a re-
quirement for legislative ratification; by
this method all of them have been adopt-
ed. )
The only question really for deter-
mination is: What did the framers of
the Constitution mean in requiring rati-
fication by ^legislatures f" That was not
a term of uncertain meaning when in-
corporated into the Constitution. What
it meant when adopted it stiU means for
the purpose of interpretation. A legis-
lature was then the repreaentative body
which made the laws oi the people. The
term is often used in the Constitution
with this evident meaning. Article 1,
§ 2, prescribes the qualifications of elec-
tors of Congressmen as "those requisite
for electors of the most numerous branch
of the state legislature." Article 1, § 3,
provided that Senators shall be chosen
in each state by the legislature there-
of, and this was the method of choosing
Senators until the adoption of the 17th
Amendment, which nuMde [228] provi-
sion for the election of Senators by
rote of the people, the electors to
875
228-280
SUPREME COURT OF THE UNITED STATES.
Oct. Tekm.
have the qualifications requisite for
electors of the most numerous branch
of the * state legislature. That Con-
gress and the states understood that
this election by the people was en-
tirely distinct from legislative action
is shown by the provision of the
Amendment giving the legislature of any
state the power to authorize the execu-
tive to make temporary appointments
until the people shall fill the vacancies
by election. It was never suggested, so
far as we are aware, that the purpose
of making the oflSce of Senator elective
by the people could be accomplished by
a referendum vote. The necessity of the
Amendment to accomplish the purpose of
popular election is shown in the adoption
of the Amendment. In article 4 the Unit-
ed States is required to protect every
state against domestic violence upon ap-
plication of the legislature, or of the
executive when the legislature cannot be
convened. Article 6 requires the mem-
bers of the several legislatures to be
bound by oath or affirmation, to support
the Constitution of the United States.
By article 1, § 8, Congress is given ex-
clusive jurisdiction over all places pur-
chased by the consent of the legislature
of the state in which the same shall be.
Article 4, § 3, provides that no new
states shall be carved out of old stales
without the consent of the legislatures
of the states concerned.
There can be no question that the
framers of the Constitution clearly un-
derstood and carefully used the terms in
which that instiiiment referred to the
action of the legislatures of the states.
When they intended that direct action
by the people should be had they were
no less accurate in the use of apt phrase-
ology to carry out such purpose. The
members of the House of Representa-
tives were required to be chosen by the
people of the several states. Article 1,
§2.
The Constitution of Ohio in its pres-
ent form, although [229J making pro-
vision for a refei*cndum, vests the leg-
islative power primarily in a general
assembly consisting of a senate and
house of representatives. Article 2, §
1, provides:
"The legislative power of the state
shall be vested in a general assembly
consisting of a senate and house of rep-
resentatives, but the people reserve to
themselves the power to propose to the
general assembly laws and amendments
to the Constitution, and to adopt or re-
ject the same at the polls on a referen-
dum vote as hereinafter provided.'*
H7«
The argument to support the power of
the state to require the approval by the
people of the state of the ratification of
amendments to the Federal Constitution
through the medium of a referendum
rests upon the proposition that the Fed-
eral Constitution require^s ratification by
the legislative action of the states
through the medium provided at the
time of the proposed approval of an
amendment. This argument is fallacious
in this, — ratification by a state of a con-
stitutional amendment is not an act
of legfislation within the proper sense of
the word. It is but the expression of
the assent of the state to a proposed
amendment.
At an early day this court settled that
the submission of a constitutional
amendment did not require the action of
the President. The question arose over
the adoption of the llth Amendment.
Hollingsworth v. Virginia, 3 Dall. 378,
1 L. ed. 644. In that case it was eon-
tended that the amendment had not been
proposed in the manner provided in the
Constitution, as an inspection of tiie
original roll showed that it had never
been submitted to the President for hLs
approval, in accordance with article 1,
§ 7, of the Constitution. The Attorney
General answered that the case of
amendments is • a substantive act, un-
connected with the ordinar}" business of
legislation, and not within the policy or
terms of the Constitution investing
[230] the President with a qualified
negative on the acts and resolutions
of Congress. In a footnote to this
argument of the Attorney General,
Justice Chase said: "There can sore-
ly be no necessity to answer that ar-
gument. The negative of the Pres-
ident applies only to the ordinary
*cases of. legislation. He has nothing
to do with the proposition, or adop-
tion, of amendments to the Consti-
tution." The court by a unanimous judg-
ment held that the amendment was con-
stitutionally adopted.
It is true that the power to legislate
in the enactment of the laws of a state
is derived from the people of the state.
But the power to ratify a proposed
amendment to the Federal Constitution
has its source in the Federal Constitu-
tion. The act of ratification by the state
derives its authority from the Federal
Constitution to which the state and it»
people have alike assented.
This view of the amendment is con-
firmed in the history of its adoption
found in 2 Watson on the Constttntioii.
1.301 et seq. Wnv other view might lead
2&S U. 8.
1019.
HAWKE V. SMITH.
230, 231
to eiidlc>:r> cjiilusion in the manner of
ratiHcation of Federal amendments. The
choice of means of ratification was wise-
ly withheld from conflicting action in
the several states.
But it is said this view runs counter
to the decision of this court in Ohio ex
rel. Davis v. Hildebrant, 241 U. S. 565,
60 L. ed. 1172, 36 Sup. Ct. Rep. 708. But
that case is inapposite. It dealt with
article 1, § 4, of the Constitution, which
provides that the times, places, and man-
ners of holding elections for Senators
and Representatives in each state shall
be determined by the respective legisla-
tures thereof, but that Congress may at
any time make or alter such regula-
tions, except as to the place for choosing
Senators. As shown m the opinion in
that case. Congress had itself recognized
the referendum as part of the legislative
authority of the state for the purpose
stated. It was held, affirming the judg-
ment of the supreme court of Ohio, that
the referendum provision of the state
Constitution, when applied to a law re-
districting the state with a [231] view
to representation in Congress, was not
unconstitutional. Article 1, § 4, plainly
gives authority to the state to legislate
within the limitations therein named.
Such legfislative action is entirely differ-
ent from the requirement of the Consti-
tution as to the expression of assent or
dissent to a proposed amendment to the
Constitution. In such expression no leg-
islative action is authorized or required.
It follows that the court erred in hold-
ing that the state had authority to re-
quire the submission of the ratification
to a referendum under the state Consti-
tution, and its judgment is reversed and
the cause remanded for further proceed-
ings not inconsistent with this opinion.
Reversed.
GEORGE S. HAWKE, Plff. in Err.,
V.
HARVEY C. SMITH, as Secretary of State
of Ohio.
(Sep S. C. Reporter's ed. 231, 232.)
This case is governed by the decision in
Hawke v. Smith, ante, 871.
[No. 601.]
Argurd April 23, 1920. Decided June 1,
1920.
IN ERROR to the Supreme Cdurt of the
. State of Ohio to review a decree
which affirmed a decree of the Court of
Appeal^ of Franklin County, in that
64 Tj. ed.
state, affirming a decree of the Court of
Common Pleas of said county by which
a demurrer was sustained to a petition
seeking to enjoin the submission of a
referendum to the electors on the ques-
tion of the ratification which the gen-
eral assembly had made of the proposed
19th Amendment to the Federal Consti-
tution. Reversed and remanded for fur-
ther proceedings.
See same case below, — Ohio St. — ,
127 N. E. 924.
The facts are stated in the opinion.
Mr. J. Frank Hanly argued the
cause, and, with Messrs. George S.
Ilawke, Arthur Hellen, Charles B.
Smith, James Bingham, and Remster A.
Bingham, filed a brief for plaintiff in
error :
The Ordinance of 1787 consists of
three parts: First, the titles to es-
tates; second, sections relating to tem-
porary matters; third, six fundamental
articles^ of compact expressly made per-
manent^ to remain forever unalterable.
Hutchinson v. Thompson, 9 Ohio, 62.
That part of the Ordinance of 1787
containing the covenant or compact be-
tween the state of Virginia, the nation-
al government, and the people of the
Northwest Territory, is still alive and
binding upon the people inhabiting the
states carved from such territory, and
upon the state^ themselves; and any
provision in the Constitution of any
one of such states, in conflict with the
provisions of the ordinance, is void.
Hogg V. Zanesville Canal & Mfg. Co.
5 Ohio, 416; Betts v. Wise, 11 Ohio,
219; Hutchinson v. Thompson, supra;
Lyon v. Lyon, 1 Ohio C. C. N. S. 246;
Cochran v. Loring, 17 Ohio, 425; State
V. Boone, 84 Ohio St. 346, 39 L.R.A.
(N.S.) 1015, 95 N. E. 924, Ann. Cas.
1912C, 683; Cox v. State, 3 Blackf. 193;
Spooner v. McConnell, 1 McLean, 337,
Fed. Cas. No. 13,245; Palmer v. Cuya-
hoga County, 3 McLean, 226, Fed. Cas.
No. 10,688: Vaughan v. Williams. 3
Mel^an, 530, Fed. Cas. No. 16,903;
Jollv V. Terre Haute Draw-Bridge Co.
6 McT^an, 237, Fed. Cas. No. 7,441;
Note. — On initiative and referendum
— see note to Hockett v. State Liquor
Licensing Bd. L.R.A.1917B, 15; and
State ex rel. Davies v. White, 50 L.R.A.
(N.S.) 195.
On ratification of amendments to
Federal Constitution, or other acts of
the state legislature, under provision
of Federal Constitution, as subject to
state referendum — see note to R« Opin-
ion of Justices, 5 A.L.K. 1417.
877
232, 233
SUPREME COIHT OF THE UNITED STATES.
Oct. Tebm
Williams v. Beardsley, 2 Ind. 59G; De-
pew V. Wabash & E. Canal, 5 Ind. 8;
Henthorn v. Doe, 1 Blackf. 157; Gid-
dings V. Blacker, 93 Mich. 1, 16 L.R.A.
402, 52 N. W. 946; Phcobe v. Jay,
Breese (111.) 208; Milwaukee Gaslight
Co. V. The Gamecock, 23 Wis. 144, 99
Am. Dec. 138; Wisconsin River Improv.
Co. V. Lyons, 30 W^is. 61; Atty. Gen.
V. Eau Claire, 37 Wis. 400.
For other contentions of these coun-
sel, see their brief as reported in
Ilawke V. Smith, ante, 871.
Messrs. Shippen Lewis, William
Draper Fjewis, and George Wharton
Pepper filed a brief as amici curiae:
'*Legi8lature8" in article 5 means rep-
resentative legislative assemblies.
Ohio ex rel. Davis v. Ilildebrant, 241
U. S. 565, 60 L. ed. 1172, 36 8up. Ct.
Rep. 708; McPherson v. Blacker, 146
U, S. 1, 36 L. ed. 869, 13 Sup. Ct. Rep.
3.
Ohio ' has a legislature wi(j)in the
accepted meaning of that word.
The state of Ohio cannot restrict the
power of its legislature with respect to
the ratification of Federal Amend-
ments.
Ibid.; State ex rel. Van Alstine v.
Prear, 142 Wis. 320, 125 N. W. 961, 20
Ann. Cas. 633.
Messrs. Wayne B. Wheeler and James
A. White also filed a brief as amici
eoriffi.
For their contentions, sec their brief
as reported in Hawke v. Smith ante, 871.
Mr. Lawrence Maxwell argued the
cause, and, with Messrs. Judson Har-
mon and B. W. Gearheart, and Mr.
John G. Price, Attorney Generat of
Ohio, filed a brief for defendant in
error.
For their contentions, see their brief
as reported in Hawke v. Smith, ante,
871.
Mr. Justice Day delivered the opin-
ion of the court:
This case, presents the same question
as that already decided in No. 582 [253
U. S. 221, ante,' 871, — A.L.R. — , 40 Sup.
Ct Rep. 495], the only difference being
that the amendment involved is the pn>-
posed 19th Amendment to the Constitu-
tion, extending the right of suffrage to
women. The supreme court of Ohio, upon
the authority of its decision in Hawke
V. Smith (No. 582), held that the Con-
Btitution of the state, requiring suoh
submission by a referendum to the peo-
ple, did not violate article 5 of the SM-
eral Constitution, and for that reason
rendered a like judgment as in No. 582.
For the reasons stated in our opin-
ion in No. 582, the judgment of the Su-
preme Court of Ohio mu«?t be reversed.
[2331 E. A. GREEN. H. W. Voight. N. M.
Cl^ristianson, and F. V. Wood worth, PliTa-
in Err.,
V.
LYNN J. FRAZIER, Governor, WillUm
Langer, Attorney General, et al.
(See S. C. Reporter*^ ed. 233-243.)
Error to state court — scope of review —
non-Federal question.
1. The validitv of state statutes w a
question, the deciRion of which by the
highest state court is not open to review
in the Federal Supreme Court on writ of
error to the state court.
(For other cases, see Appeal and Error, 20T2-
2226, io Digest Slip. Ct. 1908.1
Courts — relation to le^lslatlTe dopmrt*
meiit — > taxing power.
2. When. the constituted authority of
the state undertakes to^xj^ert the taxing
power, and the validity of its action *is
brought before the' Federal Supreme Court,
every presumption iu its favor is indulged,
and only clear and demonstrated usurpa-
Note. — On the general suhject of
writs of error from the United States
Supreme Court to state courts — see
notes to Martin v. Hunter> 4 L. ed. U.
S. 97; Hamblin v. Western Land Co. 37
L. ed. U. S. 267; Re Buchanan, 39 L. ed.
U. S. 884; and Kipley v. Dlinoia, 42
L. ed. U. S. 998.
On what adjudications of state court*
can be brought up for review in the
Supreme Court of the United States by
writ of error to those courts — see note
to Apex Transp. Co. v. Qarbade, 62
L.R.A. 513.
On what questions the Federal Su-
preme Court will consider in reviewing
the judgments of state courts — «ee note
to Missouri ex rel. Hill v, Dockery, 63
L,R.A. 571.
As to what constitutes due process
of law, generally — see notes to People
V. O'Brien, 2 L.R.A. 255; Kuntc v
Sumption, 2 L.R.A. 655', Re Gannon, 5
L.B^ 359; Ulman v. Baltimore, 11
L.R. A. 224 ; Oilman v. Tucker, 13 KR.A.
304; Pearson v. Yewdall, 24 L. ed. U.
S. 436; and Wilson v. North Carolina,
42 L. ed. U. S. 865.
As to constitutional equality •f piiv-
ilegeS) immttiiitiesy and proteetten, m-
endly — see note to Louisville Safely
Vault ft T. Co. V. LouisviUe ft N. R. Co.
14 LJLA, 579.
1919.
GREKN V. FRAZIER.
233 236
tion of p©w6f will aiitliorizp judicial inter-
fereaee with legislative action.
(B^or other ca8«a. see Courts, I. e, 8, c In Di-
gest Sup. Ct. lOOS.]
Courts — relation to legislative depart-
ineiit — taxing power.
3. Judicial interference with state tax
legislation, the purpose of which has been
declared by the people of the state, the
legislature, and the highest state court to
be of a public nature and within the tax-
ing power of the state, cannot be justified
unless it is clear beyond reasonable contro-
versy that rights secured by the Federal
Constitution have been violated.
(For o their cases, see Courts, I. e, 3, c. In Di-
gest 2inp. Ct. a908.]
Constitutional law — due process of law
— state taxation •* public use.
4. State taxation to enable the state
of North I>a{cota to carry out such enter-
prises as 'a state bank, a state warehouse,
elevator, and flour mill system, and a state
home building project, all of which have
been sanctioned by united action of the
people of the state, its legislature, and its
courts, cannot be said to deny taxpayers
the protection which the constitutional*
guaranty of due process of law affords
against the taking of property for uses that
are private;
(For ether cases, see Oonstitutlonal Law, 445-
449 ; Eminsat Domain, 89-58. in Digest Sup.
[No. 811.1
Argued April 19 and 20, 1020. Decided
June 1, 1920.
rN ERROR to the Supreme Court of
the State of North Dakota to review
a deeree which affirmed a decree of the
District Conrt of Burleigh County, in
that state, sastaining a demurrer to the
complaint in a taxpayers' suit to enjoin
enforeement of certain legislation. Af-
firmed.
See same case below, — N. D. — , 176
N. W. 11.
The facts are stated in the opinion.
Mr. Thomas 0. Daggett argued the
cause for plaint IfTs in error.
Mr. Frederick A. Pike argned the
oanse for defendants in error.
Mr. Justice Day delivered the opinion
of the eourt:
This is an action by taxpayers of the
Htate of North Dakota against Lynn J.
Prazier, governor, John N. [2S4]
Uagan, eommissioner of agpriculture
and labor, William Langer, attorney
genend, and Obert Olson, stale treas-
urer, and the Industrial Commission
of that state, to enjoin the enforce-
ment of certain state legislation. The
defendants Lynn J. Franier, nA gor-
#4 I«. ed.
emor, William Langer, as attorney gen-
eral, and John Hagan, as commissioner
of agriculture and labor, constitute the
Industrial Commission, created by the
Act of February 25, 1919, of the six-
teenth legislative assembly of the state
of North < Dakota.
The laws involved were attacked on
varions grounds, state and Federal. The
supreme court of North Dakota sustained
the constitutionality of the legislation.
So far as the decision rests on state
gfrounds it is conclusive, and we need not
stop to inquilre concerning it. Ohio ex
rel. Davis v. Hildebrant, 241 U. S. 565,
60 L. ed. 1172, 36 Sup. Ct. R^. 708.
The only ground of attack involving the
validity, of the legislation which requires
onr consideration concerns the alleged
deprivation of rights secured to the
plaintiffs by the 14th Amendment to the
Federal Constitution. It is contended
that taxation under the laws in question
has the effect of depriving plaintiffs of
property without due process of law.
The legislation involved consists of a
series of acts passed under the authority
of the state Constitution, which are:
(1) An act creating an Industrial Com-
mission of North Dakota, which is au-
thorized to conduct and manage, on h&-
half of that state, certain utilities,
indostries, enterprises, and business proj"
ects, to be established by law. The act
gives authority to the Commission to
manage, operhte, control, and govern all
utilities, enterprises, and business proj-
ects, owned, undertaken, administered,
or operated by the state of North Da-
kota, except tiioae carried on in penal,
charitable, or educational institutions.
To that eri. certain powers and author-
ity are given to the Commission, among
others: the right of eminent domain; to
fix the buying price of things bought,
[285} and the selling price of things
sold incidental to the utilities, indus-
tries, enterprises, and business projects,
and to fix rates and chaiMS for services
rendend, having in mind the accumula-
tion of a fund with which to replace in
the general funds of the state the amount
received by the Commission under ap-
propriations made by the act; to procure
the necessary funds for such utilities,
industries, enterprises, and business
projects by negotiating the bonds of the
state in such amounts and in such man-
ner as may be provided by law. $200,000
of the funds of the state are appropri-
ated lo carry out the provisions of the
act. (2) The Bank of North Dakota Act,
which establishes a bank under the name
of "The Bank of North Dakota,** op-
97*
235-237
SUPREME COURT OF THE UNITED STATES.
Oct.
erated by the state. The Industrial Com-
mission is placed in control of the op-
eration and management of the bank,
And is given the right of eminent dconain
to acquire necessary property. Public
funds ^e to be deposited in the bank,
and the deposits are guaranteed by the
state of North Dakota. Authority is
given to transfer funds to other depart-
ments, institutions, utilities, industries,
enterprises, or business projects, and to
make loans to counties, cities, or political
subdivisions of the state, or to state or
national banks, on such terms as the
Commission may provide. Ix)ans to in-
dividuals, associations, and private cor-
porations are authorized, when secured
by duly recorded first mortgages on lands
in the state of North Dakota. An ap-
propriation of $100,000 is made imme-
diately available to carry out the provi-
sions of the act. (3) An act providing
for the issuing of bonds of the state in
the sum of $2,000,000, the proceeds of
which are to constitute the capital of
the Bank of North Dakota. The earn-
ings of the bank are to be paid to the
state treasurer. Tax levies arc author-
ized sufficient to pay the interest on the
bonds annually. The bonds shall mature
in periods of five years, a^d the board
of equalization is authorized to levy a
tax in an amount [236] equal to one
fifth of the amount of their prineipaL
The state treasurer is required to estab-
lish a bank bond payment fund into whieh
shall be paid moneys received from tax-
ation, from appropriations, and from
bank earnings. $10,000 ia appropriated
for the purpose of carrying^ the act into
effect. (4) An act providing for the is-
suing of bonds in the sum of not exceed-
ing $10,000,000, to be known as ''Bonds
of North Dakota, Real Estate Series.^'
These bonds are to be issued for the
purpose of raising money to procure
funds for the Bank of North Dakota, to
replace such funds as may have been em-
ployed by it from time to time in mak-
ing loans upon first mortgages upon real
estate. The faith and credit of the state
of North Dakota are pledged for the
payment of the bonds. Moneys derived
from the sale of the bonds are to be
placed by the Industrial Commission in
the funds of the bank, and nothing in
the act is to be construed ta prevent the
purchase of the bonds with any funds in
the Bank of North Dakota. It is further
provided that the state board of equal-
ization shall, if it appears that the funds
in the hands of the state treasurer are
insufficient to pay either principal ot
interest accruing within a period of one
S80
year thereafter, make a necessary tax
levy to meet the indicated deficiency.
Provision is made for the repeated exer-
cise of the powers granted by the act,
for the purposes stated. An appropria-
tion of ^10,000 is made for carrying in-
to effect the provisions of this act. (5)
An act declaring the purpose of the
stat^ of North Dakota to engage in the
business of manufacturing and market-
ing farm products, and to establish a
warehouse, elevator, and flour mill sys-
tem under the name of "North Dakota
Mill & Elevator Association," to be op-
erated by the state. The purpose is de-
clared that the state shall engage in the
business of manufacturing farm prod-
ucts, and for that purpose shall establish
a system of warehouses, elevators, flour
mills, factories, plants, machiner>\
[237] and equipment, owned, con-
trolled, and operated by it under the
name of the "North Dakota Mill A
Elevator Association." The Industrial
Commission is placed in control of
the Association with full power, and
it is authorized to acquire by pur-
chase, lease, or right of eminent do-
main, all necessary property or prop-
erties, etc.; to buy, manufacture, store,
mortgage, pledge, sell, and exchange
all kinds of raw and manufactured
farm food products, and by-produeta,
and to operate- exchanges, bureaus,
markets, and agencies within and with-
out the state, and in foreign countries.
Provision is made for the bringing of
a civil action against the state of North
Dakota on account of causes of aetion
arising out of the business. An appro-
priation is made out of state fundSy to-
gether with the funds procured froai the
sale of state bonds, to be designated ms
the capital of the Association. (6) An
act providing for the issuing of bonds
oi the state of North Dakota in a sum
not exceeding $5,000,000, to be known as
"Bonds of North Dakota Mill & Eleva-
tor Series," providing for a tax and mak-
ing other provisions for the pa3rment of
the bonds, and appropriations for the
payment of interest and principal there-
of. The bonds are to be issued and sold
for the purpose of earr>*ing on the busi-
ness of the Mill & Elevator Association.
The faith and credit of the state of
North Dakota are pledged for the pay-
ment of the bonds, both prindpal and
interest. These bonds may be purehased
with funds in the Hank of North Dako-
ta. Taxes are provided for 8u65cient to
pay the bonds, principal and interest,
taking into account the earnings of the
Association. The sum of $10,000 is ap-
19J0.
GREEN V. KUAXIEK.
237-240
propriatod from the general funds of the
state to tarry the provisions of the act
into effect. (7) The Ilome Building Act
declares the purpose of the state to en-
gag:e in the enterprise of providing
liomes for its residents, and to that end
to .establish a business system operated
by it under the name of "The Home
Building Association [238] of North
Dakota;'' and defines its duties and
the extent of its powers. The Indus-
trial Commission is placed in control
of "The Home Building Association,''
and is given the power of eminent
domain, and the right to purchase
and lease the requisite property. Pro-
vision is made for the formation of
home building unions. The price of
town homes is placed at $5,000, and
of farm homes at $10,000. A bond issue
of $2,000,000, known as "Bonds of North
Dakota Home Building Series," is pro-
vided for.
There ar^ certain principles which
must be borne in mind in this connec-
tion, and which* must control the deci-
sion of this court upon the Federal ques-
tion herein involved. This legislation
was adopted under the broad power of
the state to enact laws raising by taxa-
tion such sums as are deemed necessary
to promote purposes essential to the gen-
eral welfare of its people. Before the
adoption of the 14th Amendment this
power of the state was unrestrained by
any Federal authority. That Amend-
ment introduced a new limitation upon
state power into the Federal Constitu-
tion. The states were forbidden to de-
prive persons of life, liberty, or prop-
erty without due process of law. What
is meant by due process of law this court
has had frequent occasion to consider,
and has always declined to give a precise
meaning, preferring to leave its scope
to judicial decisions when cases from
time to time arise. Twining v. New
Jersey, 211 U. S. 78, 100, 53 L. ed. 97,
lOG, 29 Sup. Ct. Rep. 34.
The due process of law clause contains
no specific limitation upon the right of
taxation in the states, but it has come
. to be settled that the authority of the
states to tax does not include the right
to impose taxes for merely private pur-
poses. Fallbrook IiTijx. Dist. v. Bradley,
164 U. S. 155, 41 L. ed. 387, 17 Sup. Ct
Rep. 50. In that ease the province of
this court in reviewing the power of
M4ite taxation was tlioroughly discussed
by tlie late Mr. Justice Peckham, speak-
ing (S^if^J for the court. Concluding
the tliwcussion of that subject (p. 158),
♦ he iu^tice said: "hi the 14th Ameiid-
H4 fc. ed^.
ment, the provision regarding the tak-
ing of private property is omitted,
and the prohibition against the state
is confined to its depriving any per-
son of life, liberty, or property with-
out due process of law. It is claimed,
however, that the citizen is deprived
of his property without due process
of law if it be taken by or under
state authority for any other than a pub-
lic use, either under the guise of taxa-
tion or by the assumption of the right
of eminent domain. In that way the
question whether private property has
been taken for any other than a public
use becomes material in this court, even
where the taking is under the authority
of the state instead of the Federal gov-
ernment." Accepting this as settled by
the former adjudications of this court,
the enforcement of the principle is at-
tended with the application of certain
rules equally well settled.
The taxing power of the states is pri-
marily vested in their legislatures, de-
riving their authority from the people.
When a state legislature acts within the
scope of its authority it is responsible
to the people, and their right to change
the agents to whom they have intrusted
the power is ordinarily deemed a suffi-
cient check upon its abuse. When the
constituted authority of the state, under-
takes to exert the taxing power, and the
question of the validity of its action is
brought before this court, evei^^ pre-
sumption in its favor is indulged, and
only clear and demonstrated usurpation
of power will authorize judicial inter-
ference with legislative action.
In the present instance, under the au-
thority of the Constitution and laws pre-
vailing in North Dakota, the people, the
l^islature, and the highest court of the
state have declared the purpose for
which these several acts were passed to
be of e public nature, and within the
taxing authority of the state. With this
united action of people, [240] legisla-
ture, and court, we are not at lib-
erty to interfere unless it is dear,
beyond reasonable controversy, that
rights secured by the Federal Consti-
tution have been violated. What is
a public purpose has given rise to no
little judicial consideration. Courts,
as a rule, have attempted no judi-
cial definition of a "public" as dis-
tinguished from a "private" purpose, but
have left each case to be determined by
its' own peculiar circumstances. Omy,
Limitations of Taxing Power, § 170:
"Necebiiity alone is not the test by \s'U:( h
^ho limits of state authmity in this lU-
56 8:8^
24i>-242
SUFIIKME COURT OF THE UNITED STATES.
Oct. Tekm.
rection are to be defined, but a wise
^statesmanship must look beyond the ex-
penditures which are absolutely needful
to the continued existence of organized
government, and embrace others which
may tend to make that government sub-
serve the general well-being of society,
and advance the present and prospective
happiness and prosperity of the people."
Coolev, Justice, in People ex rel. Detroit
& n/R. Co. V. Sakm, 20 Mich. 452, 4
Am. Rep. 400. Questions of policy are
not submitted to judicial determination,
and the courts have no general authority
of supervision over the exercise of dis-
cretion which, under our system, is re-
posed in the people or other 'departments
of government. Chicago, B. & Q. R. Co.
V. McGuire, 219 U. S. 549, 569, 55 L. ed.
328, 339, 31 Sup. Ct. Rep. 259; German
Alliance Ins. Co. v. Lewis, 233 U. S. 389,
58 L. ed. 1011, L.R.A.1915C, 1189, 34
Sup. Ct. Rep. 612.
With the wisdom of such legislation,
and the soundness of the economicpolicy
involved, we are not concerned. Wheth-
er it will result in ultimate good or
harm it is not within our province to
inquire.
We come now to examine the grounds
upon which the supreme court of North
Dakota held this legislation not to
amount to a taking of property without
due process of law. The questions
involved were given elaborate considera-
tion in that court, and it held, concern-
ing what may in general terms be de-
nominated the banking legislation,"
that it was justified for the purpose of
providing [S^I1] banking facilities, and
to enable the state to carry out the
purposes of* the other acts, of which
the Mill & Elevator Association Act
is the principal one. It justified the
Mill & Elevator Association Act by
the peculiar situation in the state of
North Dakota, and particnlatly by
the great agricultural industry of the
state. It estimated from facts of
which it was authorized to take ju-
dicial notice, that 90 per cent of the
wealth produced by the state was from
agriculture; and stated that upon the
prosperity and welfare of that industry
other business and pursuits carried on in
the state were largely dependent; that
the state produced 125,000,000 bushels of
wheat each year. The manner in which
the present system of transporting^ and
marketing this great crop prevents Jthe
realization of what are deemed jiist
prices was elaborately stated. It was af-
6nned that the annual loss from these
90uree8 (ineluding the loss of fertility
to the soil and the failure to Jteed the
by-products of grain to stock within the
state) amounted to fifty-five millions ol
dollars to the wheat raisers of North
Dakota. It answered the contention that
the industries involved were private in
their nature, by stating that all of th€in
belonged to the state of North Dakota,
and therefore the activities authorized by
the legislation were to be disting^shed
from business of a private nature hav-
ing private gain for its objective.
As to the Home Building Act, that was
sustained because of the promotion of
the general welfare in providing homes
for the people, a large proportion of
whom were tenants, moving from x>laee
to place. It was believed and affirmed by
the supreme court of North Dakota that
the opportunity to secure and maintain
homes would promote the general wel-
fare, and that the provisions of the stat-
utes to enable this feature of the sys-
tem to become effective would redound
to the general benefit.
As we have said, the' question for us
to consider and determine [242] is
whether this system of legislation is
violative of the Federal Constitation
because it amounts to a taking of
property without due process of law.
The precise question herein involved,
so far as we have been able to dis-
cover, has never been presented to
this court. The nearest approach to
it is found in Jones v. Portland,
245 U. S. 217, 62 L. ed. 262, L.B,A.
1918C, 765, 38 Sup. Ct. Rep. 112, Ann.
Cas. 1918E, 660, in which we held that
an act of the state of Maine, authoriz-
ing cities or towns to establish and niain-
tain wood, coal, and fuel yards for the
purpose of selling these neoessaries to
the inhabitants of eities and towns, did
not deprive taxpayere of due proeees of
law within the meaning of the 14th
Amenchnent. In that ease we reiterated
the attitude of this eourt towards state
legislation, and repeated what had been
said before, that what was or was not
a publie use was a question eoneemiiig
which local authority, legislative and
judicial, had especial means of seeoriiig
information to enable them to form a
judgment; and partieulariy, that the
judgment of the highest eourt of tbe
state, declaring a given use to be publie
in its nature, would bo aeeepted by tkis
eourt unless eleariy unfounded. In that
ease the previous decisions of this eourt,
'sustaining this proposition, were eited
I with approval, and a quotation was made
. from the opinion of the supreme eourt
* of Maine, justifying the lefn>I&^>oa «b-
f SS f!. B,
1919.
SCOTT V. FKAZIKR.
242, 24;;
der the conditions prevailing in that
state. We think the principle of that de-
cision is applicable here.
This is not a case of undertaking to
aid private institutions by public- taxa-
tion, as was the fact in Citizens' Sav.
A L. Asso. V. Topeka, 20 Wall. 665, 22
L. ed. 461. In many instances states and
municipalities have in late years seen
fit to enter upon projects to promote the
public welfare which, in the past, have
been considered entirely within the do-
main of private enterprise.
Under the peculiar conditions exist-
ing in North Dakota, which are empha-
sized in the opinion of its highest court,
[243] if the state s^es fit to enter upon
such enterprises as are here involved,
with the sanction of its Constitution, its
legislature, and its people, we are not
prepared to say that it is within the
authority of this court, in enforcing the
observance of the 14th Amendment, to
set aside such action by judicial decision.
Affirmed.
JOHN W. SOOTT, William J. Howe, O. B.
Severson, et al., Appts.,
V.
LYNN J. FRAZIER et aL
(See S. C. Reporter's ed. 243, 244.)
Courts — amount In controversy — unit-
ing claims.
The amount in controversy in a suit
hi a Federal district court by taxpayers to
enjoin, on constitutional grounds, the pay-
ment of public funds out of the state treas-
ury, and the issuing of state bonds, must
equal the jurisdictional amount as to each
complainant.
(For other cases, see Courti, 90S-911, Ui Di-
gest Sup. Ct. 190S.]
[No. 608.] ,
Argued April 19 and 20. 1920. Decided
J\me 1, 1920.
APPEAL from the District Court of
the United States for the District
of North Dakota to review a decree dis-
missing on the merits the bill in a soit
by taxpayers to enjoin, on oonstitntional
grounds, the payment of public funds
out of the treasury and the issuing of
state bonds. Reversed and remanded,
with directions to dismiss the bill for
want of jurisdiction.
See same case below, 258 Fed. 669.
The facts are stated in the opinion.
Messrs. K. 0. Yonng , Tracy B. Bangs,
and 0. J. Murphy argued the cause and
filed a brief for appellants:
•4 L. ed.
The matter in controversy exceeds
the sum or value of $3,000, exclusive of
interest and costs.
Brown v. Trousdale, 138 U. S. 389, 34
L. ed. 987, 11 Sup. Ct. Rep. 308; North-
em P. K. Co. V. Pacific Coast Lumber
Mfrs. Asso. 91 C. C. A. 39, 165 Fed. 11;
Eisley v. Utica, 168 Fed. 737; Wheless
v. St. Louis, 96 Fed. 869; Ottuma v.
City Water Supply, 59 KR.A. 604, 66
C. C. A. 219, 119 Fed. .315; Johnston v.
Pittsburg, 106 Fed. 753; Davies v. Cor-
bin, 112 U. S. 36, 28 L. ed. 627, 5 Sup.
Ct. Rep. 4j Troy Bank v. G. A. White
head & Co. 222 U. S. 39, 56 L. ed. 81,
32 Sup. Ct. Rep. 9; Berryman v. Whit-
man CoU^e, 222 U. S. 334, 56 L, ed.
226, 32 Sup. Ct. Rep. 147; Humes v.' Ft.
Smith, 93 Fed. 857; Mississippi & M.
R. Co. ▼. Ward, 2 Black, 485, 17 L. ed.
311; Shields v. Thomas, 17 How. 3, 15
L. ed. 93; Washington Market Co. v.
Hoffman, 101 U. S. 112, 25 L. ed. 782;
The Connemara (Sinclair v. Cooper)
103 U. S. 754, 26 L. ed. 322; The Mamie
(Parcher v. Cuddy) 105 U. S. 773, 26
L. ed. 937; Estes ▼. Gunter, 121 U. S.
183, 5 L. ed. 884, 7 Sup. Ct. Rep. 854.
The bill of complaint states a meri-
torious cause of action which, under
the view most favorable to appellees,
requires an answer and a trial upon the
merits.
Minnesota Canal & Power Co. y.
Koochiching Co. 97 Minn. 429, 5 KR.A.
(N.S.) 688, 107 N.W. 405, 7 Ann. Cas.
1182; Brown v. Gerald, 100 Me. 351, 70
LJI.A. 472, 109 Am. St. Rep. 526, 61
Atl. 785 ; Munn v. Illinois, 94 U. S. 113,
24 L. ed. 77; Cole v. La Grange, 113
U. S. 1, 28 L. ed. 896, 6 Sup. Ct. Rep.
416; Fallbrook Irrig. Dist. v, Bradley,
164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct.
Rep. 56; Citizens' Sav. & L. Asso. v.
Topeka, 20 Wall. 665, 22 L. ed. 455;
Jones V. Portland, 245 U. S. 217, 62
L. ed. 252, L.R.A.1918C, 765, 38 Sup.
Ct. Rep. 112, Ann. Cas. 1918R, 660;
Fanning ▼. D. M. Osborne & Co. 102
N. Y. 441, 7 N. E. 307.
The question as to whether a given
object is public or private is a judicial
one. A legislature cannot make a
private purpose a public one by its
mere fiat.
Dodge V. Mission Twp. 54 L.R A. 242,
46 C. C. A. 661, 107 Fed. 827; Brown v.
Gerald, 100 Me. 351, 70 L.R.A. 472, 109
Am. St. Rop. 526, 61 Atl. 785.
Public ownership does not change the
character of a business.
Bank of United States v. Planters'
Bank, 9 Wheat. 904, 6 L. ed. 244.
If, in determining the tif^t of the
S8S
SUPUKME OOURr OF THE LMTED STATES.
Oct. Te»m.
rjtizcn, the act of the state legislature
or the decision of the state supreme
court is to govern, then the 14th
Amendment becomes innocuous, and is
but a "scrap of paper."
McCoy V. Union Elev. R. Co. 247 U.
S. 354, 62 L. ed. 1156, 38 Sup. Ct. Rep.
504; Chicago, B. & Q. R. Co. v. Chica-
go, 166 U. S. 226, 41 L. ed. 979, 17 Sup.
Ct. Rep. 581; Citizens' Sav. & L. Asso.
V. Topeka, 20 Wall. 655, 22 L. ed. 455;
Scott V. Toledo, 1 L.R.A. 688, 36 Fed.
385; M'Culloch v. Maryland, 4 Wheat.
316, 4 L. ed. 579; McElroy v. Kansas
City, 21 Fed. 257; Laughlin v. Portland,
111 Me. 488, 51 L.R.A.(N.S.) 1143, 90
Att 318, Ann. Cas. 1916C, 734.
A careful review of the cases, and an
earnest effort to determine a general
rule that will protect the individual
rights and at the same time have suf-
ficient flexibility to enable the state or
division thereof to properly discharge
its duty, lead us to suggest that, in de-
termining whether the purpose for
which the tax is levied is public, the
courts must consider:
(a) Whether it is one of those pur-
poses that readily fall on the public
side of the line, such as support of
schools, relief of paupers, maintenance
of highways, and other municipal acts
that have, by a long course of conduct,
become thoroughly recognized as public
purposes, in which are included the fur-
nishing of water, light, and heat, or
(b) Whether the government is sup-
plying its own needs or is furnishing
facilities for its citizens in regard to
those matters of public necessity, con-
venience, or welfare, which, on account
of their peculiar character, and the dif-
ficulty or perhaps impossibility of mak-
ing provision for them otherwise, are
alike proper, useful, and needful for
the government to pn>vide. And in de-
termining that question the court
should be influenced by the need of the
particular community for the proposed
innovation; by the ability of private
enterprise to supply the needs; by the
availability of private capital; by the
general condition of the community;
and whether the service rendered is so
rendered to the people as a relief
meiusure. and will protect the public
uelfare in e<iual measure, and at cost,
or approximately so: but
(c) If the beneflts to the public arc
to be incidental, if the state or division
thereof is entering into trade merely to
try an experiment in practical econom-
ics or to put into practice a theory, if
the business enteii>n><» i-^ beiiiti entered
upon simply that some commodity may
be furnished to that portion of the
community using that commodity at a
cheaper price, or if the enterprise is
being entered upon for the purpose of
enhancing the value of some particular
raw material, — then it is merely a
trade, — a private business, — and cannot
be supported by a public tax.
Opinion of Justices, 211 Mass. 625,
42 L.R.A.(N.S.) 221, 98 N. E. 611;
Ijowell V. Boston, 111 Mass. 454, 15 Am.
Rep. 39; Opinion of Justices, 118 Me.
503, 106 Atl. 865; Northern Liberties
V. St. John's Church, 13 Pa. 104; Peo-
ple ex rel. Detroit & H. R. Co. v. Salem,
20 Mich. 452, 4 Am. Rep. 400; Citizens
Sav. & L. Asso. v. Topeka, 20 Wall.
655, 22 L. ed. 455; Opinion of Justices,
155 Mass. 598, 15 L.R.A. 809, 30 N. E.
1142; Dodge v. Mission Twp. 54 L.R.A.
242, 46 C. C. A. 661, 107 Fed. 827;
Brown v. Gerald, 100 Me. 351, 70 L.R.A.
472, 109 Am. St. Rep. 526, 61 Atl. 793;
Clark V. Nash, 198 U. S. 361, 49 L. ed.
1085, 25 Sup. Ct. Rep. 676, 4 Ann. Cas.
1171; Beach v. Bradstreet, 85 Conn.
344, 82 Atl. 1030, Ann. Cas. 1913B,
946; State ex rel. Toledo v. Lynch, 88
Ohio St. 31, 48 L.R.A.(N.S.) 720, 102
N. E. 670, Ann. Cas. 1914D, 949; Union
Ice & Coal Co. v. Ruston, 135 La. 898,
L.R.A.1915B, 859, 66 So. 262, Ann. Cas.
1916C, 1274; Laughlin v. Portland, 111
Me. 488, 51 LJt.A.(N.S.) 1143, 90 Atl.
318, Ann. Cas. 1916C, 734; Jones v.
Portland, 245 U. S. 217, 223, 224, 62
L. ed, 252, 255, 256, L.R.A.1918C, 765.
38 Sup. Ct. Rep. 112, Ann. Cas. 1918E,
660.
Neither the fact that a great many
people benefit by an enterprise to be
established, or that the enterprise is
desired or voted for, or is approved by
a great many people, can make the use
of the money contributed to that par-
ticular enterprise by taxation a poblie
use, for while a social compact is a
covenant by which the whole people
covenant with each citizen, and each
citixen with the whole people, that all
should be governed by certain laws for
the oommon good, this does not confer
power upon the people to eontrol rights
which are purely and exclusively pri-
vate. These are resened rights and
are inalienable.
Munn v. Illinois. JU U. S. 113, 24
L. ed. 77.
Messrs. S. L. Nuchols and W. &
X»auder ar^rued the canso, and. with Mr.
Willi:Ain I-juu^t, .Vttomov iJim-T^l nf
f &s r. H.
1919.
SCOTT r. FRAZIEK.
North Dakota, filed a brief for appel-
lees:
The bill of complaint fails to show
upon its face that the amount in con-
troversy exceeds three thousand ($3,-
000) dollars, and fails to allege a requi-
site jurisdictional element.
Colvin V. Jacksonville, 158 U. S. 456,
39 L. ed. 1053, 15 Sup. Ct. Rep. 866;
Greene v. Louisville & Interurban R.
Co. 244 U. S. 499, 56 L. ed. 1280, 37
Sup. Ct. Rep. 673, Ann. Cas. 1917E, 88;
Cowell V. City Water Supply Co. 57 C.
C. A. 393, 121 Fed. 53; Rislev v. Utica,
168 Fed. 737; Wheless v. St. Louis, 180
U. S. 379, 45 L. ed. 583, 21 Sup. Ct.
Rep. 402; Rogers v. Hennepin County,
239 U. S. 621, 60 L. ed. 469, 36 Sup. Ct.
Rep. 217.
Interests of complainants cannot be
aggregated to make mp the jurisdic-
tional amount.
Clay V. Field, 138 U. S. 464, 34 L. ed.
1044, 11 Sup. Ct. Rep. 419; Walter v.
Northeastern R. Co. 147 U. S. 370, 37
L. ed. 206, 13 Sup. Ct. Rep. 348;
Wheless v. St. Louis, 180 U. 8. 379, 45
L. ed. 583, 21 Sup. Ct. Rep. 402; Holt
V. Bergevin, 60 Fed. 1; Jones v. Mutual
Fidelity Co. 123 Fed. 506; Ex parte
Baltimore & 0. R. Co. 106 U. S. 5, 27
fi. ed. 78, 1 Sup. Ct. Rep. 35; Rogers v.
Hennepin County, 239 U. S. 621, 60
L. ed. 469, 36 Sup. Ct. Rep. 217.
A decision of the highest court of a
state, declaring a use to be public in its
nature, will be accepted unless clearly
not well founded.
Union Lime Co. v. ^hicago & N. W.
R..Co. 233 U. S. 211. 56 L. ed. 024, 34
Sup. Ct. Rep. 522: Fallbrook Trrig. Dist.
V. Bradlov, 164 U. S. 112, 41 L. ed. 369,
17 Snp. Ct. Rep. 56; Clark v. Nash, 198
F. S. 361-360. 41 L. ed. 1085-1088, 25
Snp. Ct. Ken. 676. 4 Ann. Cas. 1171;
Strirklev v. Highland Bov Oold Min. Co.
200 U. ^. 527. 50 L. ed. 581. 26 Sup. Ct.
R«p. 301, 4 Ann. Cas. 1174; Offleld v.
New York, N. H. & H. R. Co. 203 U. S.
372-377, 51 h. ed. 231-236, 27 Sun. Ct.
Rep. 72; Hairston v. Danville & W. R,
Co. 208 U. S. 598-607, 52 U ed. 637-
641. 28 Sup. Ct. Rep. 231, 13 Ann. Cas.
1008.
If the business in question is private-
ly owned and carried on solely for the
profit of the individuals owning it, it is,
tinder all the authorities, private busi-
ness, even though the public derives,
incidentally, benefits therefrom. If, on
the other hand, the business is publicly
owned and carried on for the benefit
and welfare of all the people, and is
such a business as is calculated to pro-
«4 li. ed.
mote the general welfare of the com-
munity, it is public business even
though the same- kind of business is
carried on by private enterprise; and
under all the authorities, it is not mate-
rial that such public business is con-
ducted in competition with privately
owned business.
Holton V. Camilla, 134 Oa. 560, 31
L.R.A.(N.S.) 116, 68 S. E. 472, 20 Ann.
Cas. 199; Sun Printing & Pub. Asso. v.
New York, 8 App. Div. 230, 40 N. Y.
Supp. 607, 152 N. Y. 257, 37 L.R.A. 788,
46 N. E. 499; Egan v. San Francisco,
166 Cal. 576, 133 Pac. 294, Ann. Cas.
1915A, 754; Munn v. Illinois, 94 U. S.
113, 24 L. ed.-77; Budd v. New York,
143 U. S. 517, 36 L. ed. 247, 4 Inters.
Com. Rep. 46, 12 Sup. Ct. Rep. 468;
Brass v. North Dakota, 153 U. S. 391,
38 L. ed. 757, 4 Inters. Com. Rep. 670,
14 Sup. Ct. Rep. 857; Burlington Twp.
v. Beasley, 94 U. S. 310, 23 L. ed. 161;
Com. ex rel. Kelly v. Pittsburg, 183 Pa.
202, 63 Am. St. Kep. 752, 38 Atl. 628;
Washington County v. Williams, 49 C.
C. A. 621, 111 Fed. 801; Pine Grove
Twp. V. Talcott, 19 Wall. 666, 667, 22
L. ed. 227; 2 Dill. Mun. Corp. 5th ed.
§§ 884, et seq. ; Walker v. Cincinnati,
21 Ohio St. 14, 8 Am. Rep. 24; Jarrott
V. Moberlv, 5 Dill. 253, Fed. Cas. No.
7,223; Turlock Irrig. Dist. v. Williams,
76 Cal. 360y 18 Pac. 379; Saundei-s v.
Arlington, 147 Ga. 581, 94 S. E. 1022,
Ann. Cas. 1918D, 907; Andrews v.
South Haven, 187 Mich. 204; L.R.A.
1916A, 908, 153 N. W. 827, Ann. Cas.
1918B, 100; Spangler v. Mitchell, 35 S.
D. 335, 152 N. W. 339, Ann. Cas. 1918A,
373.
Whether the laws are wise and expe-
dient is a political, and not a judicial,
question.
Chicago, B. & Q. R. Co. v. McGuire,
219 U. S. 549-569, 55 L. ed. 328-339, 31
Sap. Ct. Rep. 259; Price v. Illinois, 238
U. S. 446, 451, 452, 59 L. ed. 1400, 1404,
1405, 35 Sup. Ct. Rep. 892 ; Rast v. Van
Deman & L. Co. 240 U. S. 342-357, 60
L. ed. 679-687, L.R.A.1917A, 421, 36
Sup. Ct. Rep. 370, Ann. Cas. 1917B,
455 ; Merrick v. N. W. Halsey & Co. 242
U. S. 568, 586, 588, 61 L..ed. 498, 508,
509, 37 Sup. Ct. R«p. 227.
Mr. Frederick A. Pike argued the
cause, and, with Mr. William Lemke,
filed a brief for Lynn Frazier, Govern-
or, John M. Hagan, and the Industrial
Commission of North Dakota:.
All original powers of government
are in the people.
Slanghtfr Houne Case^^, 16 Wall. 77.
SLPREMK COURT OF THE UNITED STATES.
Oct. Tsui,
21 L. ed. 409; Sharpless v. Philadel-'
phia, 21 Pa. 159, 59 Am. Dec. 759; Peo-
ple ex rel. Detroit & H. R. Co. v. Salem,
20 Mich. 473, 4 Am. Rep. 400; 2 Curtis,
Hist, of U. S. Const, p. 163.
Otherwise than as expressly limited
by the Federal Constitution, the power
of the people of the state to enact laws
for such state, either directly or
through the agency of a legislative
body, oontinued the same as before the
adoption of the Federal Constitution.
Pine Grove Twp. v. Talcott, 19 Wall.
666, 22 L. ed. 227; Sharpless v. Phila-
delphia, 21 Pa. 163, 59 Am. Dec. 759;
American Law, 1 Enc. Britannica, 828;
United States v. Baltimore & 0. R. Co.
17 Wall. 322, 21 L. ed. 597; Calder v.
BnU, 3 Dall. 386, 1 L. ed. 648; 2 Curtis,
Hist, of U. S. Const, p. 163.
The respective powers of the states
of the Union, and their relation to the
other states in the Union and to the
government, are precisely the same in
the case of states admitted to the Union
subsequently to the formation of the
national Constitution as in the case of
those states which existed at the begin-
ning of American Independence.
M'Cnlloch V. Maryland, 4 Wheat. 410,
4 L. ed. 602.
It does not belong to the courts to
interpolate constitutional restrictions.
Pine Grove Twp. v. Talcott, 19 Wall.
606, 22 L. ed. 227.
Laws will not be adjudged invalid
for reasons based on general principles
of public policy or legislative propriety.
United States v. Baltimore ft 0. R.
Co. 17 Wall. 322, 21 L. ed. 597; Sharp-
less V. Philadelphia, 21 Pa. 147, 59 Am.
Dec. 759; Munn v. Illinois, 94 U. S.
113, 24 L. ed. 77.
Jjaws are not to be set aside and held
invalid merely because, in the opinion
of the courts, they are disregardful of
right and justice, or are impolitic or in-
expedient; or are unwise or oppressive;
or violative of the spirit of our institu-
tions; or because they are unnecessary.
Pine Grove Twp. v. Talcott, 19 Wall.
G66, 32 L. ed. 227; United States v.
Baltimore & O. R. Co. 17 Wall. 322, 21
L. ed. 597; JrCuI lough v. Mar>'land, 4
Wheat. 316, 4 L. ed. 579; Calder v. Bull,
3 Dall. 386, 394, 1 f^ ed. 648, 651;
Sharpless v. Philadelphia, 21 Pa. 162,
59 Am. Deo. 759.
Laws will not be adjudged invalid to
relieve against excessive taxation.
M'Culloeh V. Maryland, 4 Wheat. 316,
4 L. ed. 579; United States v. Gettys-
iMirg Electric K. Co. 160 U. S. 680. 40
L. ed. 580, 16 Sup. Ct Rep. 427; Sharp-
less V. Philadelphia, supra.
The possibility of the abuse of power
does not justify judicial limitation of
power.
Sharpless v. Philadelphia, supra;
Pine Grove v. Talcott Twp. 19 Wall.
666, 22 L. ed. 227; Munn v. Illinois. JM
U. S. 113, 134, 24 L. ed. 77, 87; Calder
V. Bull, 3 Dall. 380, 1 L. ed. 048.
To determine whether a use is public
or private, we have to determine not
merely whether interests of individuals
will be' promoted, but whether interests
of the greater part of the commnnity
will be.
Olcott V. Fond du Lac County, 16
Wall. 678, 21 L. ed. 382.
Neither the 14th Amendment, broad
and comprehensive as it is, nor any
other Amendment, was designed to in-
terfere with the power of the state,
sometimes called its police power, to
prescribe r^ulations to promote the
health, peace, morals, education, and
good order of the people, and to legis-
late so as to increase the industries of
the state, develop its resources, and add
to its wealth and prosperity.
Barbier v. Connollv, 113 U. S. 27, 28
L. ed. 923, 5 Sup. Ct. Rep. 357; CNeil
V. Leamer, 239 U. S. 244, 253, 60 L. ed.
249, 265, 36 Sup. Ct. Rep. 54.
When the legislature has declared
the use or purpose to be a publie one,
its judgment will be respected by the
courts, unless the use be palpably with-
out reasonable foundation.
Madisonville Tfaction Co. t. Bernard
Min. Co. 196 U. S. 252, 253, 40 L. ed.
467, 468, 25 Sup. Ct. Rep. 251; 2 IHIL
Mnn. Corp. 4th ed. § 600; United
SUtes V. Gettysburg Electrie R. Co. 160
U. 8. 680, 40 L. ed. 681, 16 Sup. Ct.
Rep. 427; Clark v. Nash, 198 U. S. 367.
49 L. ed. 1087, 25 Sup. Ct Rep. 676, 4
Ann. Cas. 1171.
There is little reason, under onr mj^
tern of government, for placing a dose
and narrow interpretation on the polie*
power, or restricting its scope so as to
hamper the legislative power in dealinir
with the various necessities of society
and new circumstances as they arise,
calling for legislative intervention in
the public interest.
Budd V. New York, 143 U. S. 617, 36
L. ed. 247, 4 Inters. Com. Rep. 46, 12
Sup. Ct. Rep. 468; Chicago. B. A Q. R.
Co. V. Illinois, 200 U. S. 561, 692, 50
L. ed. 596, 609, 26 Sup. Ct, Ren. 341, 4
Ann. Cas, 1175; Minneapolis A St. L.
R. Co. V. Beckwith, 129 U. S. 26, 32
L. ed. 585, 9 Sup. Ct. Rep. 207; OerBian
Alliance tns. Co. v. Kansas, 233 U. S.
t6t V. 6.
]l»19.
EVANS V. GORE.
246. 247
S. 27, 19 L. ed. 78, 24 Sup. Ct. Bep. 769,
1 Ann. Cas. 561.
Taxation may, allowably, be used for
destruction.
Veazie Bank v. Fenno, 8 Wall. 633,
19 L. ed. 482; Citizens' Teleph. Co. ▼.
Puller, 229 U. 8. 322, 329, 67 L. ed.
120G, 1213, 33 Sup. Ct. Rep. 833; St.
Louis Poster Adv. Co. v. St. Louis, 249
U. S. 272, 274, 63 L. ed. 601, 602, 39
Sup. Ct. Rep. 274.
Dobbins v. Erie County, 16 Pet. 435,
10 h, ed. 1022, expounding the prohibi-
tion of a state's taxing the salaries of
Federal officers, and Collector v. Day
(Bufflngton v. Day) 11 W^ll. 113, 127,
20 L. ed. 122, 126, expounding the pro-
hibition of the Federal government's
taxing the salaries of state judges, are
conclusive on our contention, because
they declared against the power to tax,
on the ground that the authority would
place one government in the power of
the other, the i>ower to tax being the
power to destroy, and although the
Federal government may tax its offi-
cers, ^nerally, to destruction, its inva-
sion of the judiciary is arrested by
article 3, § 1, of the Constitution.
It is the duty of the courts to be
watchful for the constitutional rights
of the citizen, and against any stealthy
encroachments thereon.
,Fairbank v. United States, 181 U. S.
283, 291, 45 L. ed. 862, 860, 21 Sup. Ct.
Rep. 648, 15 Am. Crim. Rep. 135 ; Boyd
V. United States, 116 U. S. 616, 29
L. ed. 746, 6 Sup. Ct. Rep. 524; Re
Debs, 158 U. 8. 594, 39 L. ed. 1106, 16
Sup. Ct. Rep. 900.
Assistant Attorney General Frierson
argued the cause, and, with Attorney
General Palmer, filed a brief for de-
fendant in error:
The best discussion to be found of
this question is in the Pennsylvania
cases.
Northumberland County v. Chap-
man, 2 Rawle, 73; Com. ex rel. Hep-
burn V. Mann, 5 AV^tts & S. 403.
The priiKiiple controlling this ease
has been clearly settled by decisions of
this court in cases involving similar
questions.
Postal Telepr. Cable Co. t. Adams,
155 U. S. 688, 695, 696, 39 L. ed. 311,
315, 3J6, 5 Intci-s. Com. Rep. 1, 15 Sup.
Ct. Rep. 268, liOO; Atlantic & P. Teleg.
Co. V. Philadelphia, 190 U. S. 160, 163,
47 h. ed. 995, 9.99, 23 Sup. (^t. Rep. 817;
William K. Pe<'k & ('o. v. Lowe, 247 U.
S ia5, 62 L ed. 1019. 38 Sup. (^t. Rep.
i:.J.
4 1 r. ^ft.
I The mere fact that a part of a
[ judge's salary must be used to pay a
tax does not render the tax unconsti-
tutional. ^
Com. ei rel. Hepburn v. Mann and
William E. Peck & Co. v. Jjowe, supra;
United States Glue Co. v. Oak Creek,
247 U. S. 321, 62 L. ed. 1135, 38 Sup.
Ct. Rep. 499, Ann. Cas. 1918E, 748.
Mr. Justice Van Devanter delivered
the opinion of the court:
This is an action to recover money
paid under protest as a tax alleged to
be forbidden by the Constitution.
The plaintiff is the United States dis-
trict judge for the western district of
Kentucky, and holds that office under an
appointment by the President made in
1899, with the advice and consent of the
Senate. The tax which he calls in ques-
tion was levied under the Act of Febru-
ary 24, 1919, chap. 18, 40 Stat, at L.
1062, on his net income for the year
1918, as computed under that act. His
compensation or salary as district judge
was included in the computation. Had
it been excluded, he would not have been
called on- to pay any income tax for
that year. The inclusion was in obedi-
ence to a provision in § 213, requiring
the computation to embrace all gains,
profits, income, and the like, "including
in the case of the President of the
United States, the judges of the Su-
preme and inferior courts of the United
States, [and others] . . . the com-
pensation received as such." Whether
he could be subjected to such a tax in
[247] respect of his salary, consistent--
ly with the Constitution, is the matter
in issue. If it be resolved against the
tax, he will be entitled to recover what
he paid; otherwise bis action must fail.
It did fail in the district court. 262
Fed. 550.
The Constitution establishes three
great co-ordinate departments of the na-
tional government, — the legislative, the
executive, and the judicial, — and dis-
tributes among them tlie j)owers confided
to that government by the people. Each
department is dealt with in a separate
article, the legislative in the first, the
executive in the .second, and the judicial
in the third. Our present concern is
chiefly with the third article. It defines
the judicial power, vests it in one su-
preme court and such inferior eourts as
Congress may from time to time ordaio
and establish, and declares: "The
Judges, both of the supreme and inferior
(Courts, shall hold their Oflices during
f'ood Behavior, and shall at stated
SUPKEME CX)tRT OF THE UNITED STATES.
Oct.
•iuring continuance in office is to be con-
strued not as a private grant, but as a
limitation imposed in the public interest.
[For other ca^es. see Judset). IV. ; Offlcerg, IV.
in Digest Sup. Ct. 1908. J
Internal revenue — income tax ^ pur-
pose of constitutional Amendment.
2. Tlie income tax amendment to the
Federal Constitution doeH not extend the
taxing power to new or excepted subjects,
but merely removes all occasion otherwise
existing for an apportionment among the
states of taxes laid on income, from what-
ever source derived.
[For other cases, see Inl*^rnal Revenue, I. b,
in Digest Sup. Ct. lOOS.]
Internal revenue — income tax — sala-
ries of Federal Judices.
. 3. A Federal district judge could not,
ionsistently with the provision of U. S.
(/onst. art. 3, that all Federal judges shall,
at stated times, receive for their services
a compensation "which shall not be di-
minished during their continuance in office,"
be subjected to an income tax imposed un-
der the 16th Amendment in respect of his
salary as such judge. I
I For other cases, see Intornal Revenue, I. b, <
in Digest Sup. Ct. 1908.]
[Xo. 654.1
Argued March 5, 1920. Decided June 1,
1020.
IN ERROR to the District Court of the
United States for the Western District
of Kentucky to review a judgment for
defendant in a suit to recover back a
portion of the income tax paid by a
Federal district judge. Reversed.
See same case below, 262 Fed. 550.
The facts are stated in the opinion.
Messrs. William Marshall Bullitt
and Edmund F. Trabue argued the
cause, and, with Messrs. Frank P.
Straus, Howard B. Lee, Helm Bruce,
and Mr. Walter Evans, in propria per-
Aonay filed a brief lor plaintiif in error:
The taxation imposed on judicial sal-
aries diminishes the compensation of
the judges.
Atty. Gen. Hoar's Opinion, 13 Ops.
Attv. Gen. 161; Re Taxation of Sal-
aries of Judges, 131 N. C. 693, 42 S. E.
970; Chief Justice Taney's Letter, 157
U. S. 700; Pollock v. Farmers' Loan &
T. Co. 157 U. 8. 429, 39 L. ed. 759, 15
Sup. Ct. Rep. 673; New Orleans v. Lea,
14 '*«. Ann. 194; Com. ex rel. Hepburn
V. Mann,- 5 Watts & 8. 403; Com. ex
rel. Atty. Gen. v. Mathues, 210 Pa. 394,
69 Atl. 961; The Federalist, No. 79;
Storv, Const. §§ 1629-1631; Kent, Com.
pp. 293-295.
The power to tax implies the power
to destrov.
M'Culloch V. Maryland, 4 Wheat.
.SI 6, 431, 4 L. ed. 579, 607; Collector v.
HHH
Day (Buffington v. Day) 11 Wall. 113,
127, 20 L. ed. 122, 126.
The 16th Amendinent can in no way
justify or support that provision of the
revenue act, the constitutionality of
which is now in question.
Brushaber v. Union P. R. Co. 240 U.
S. 1, 60 L. ed. 493, L.R.A.1917D, 414,
36 Sup. Ct. Rep. 236, Ann. Cas. 1917B,
713; William E. Peek & Co. v. Lowe,
247 U. S. 165, 62 L. ed. 1049, 38 Sup.
Ct. Rep. 432; Pollock v. Farmers' Loan
& T. Co. 157 U. S. 429, 39 L. ed. 759, 15
Sup. Ct. Rep. 673; Re Debs, 158 U. S.
594, 39 L. ed. 1106, 15 Sup. Ct. Rep.
900; Prout v. Starr, 188 U. S. 543, 47
L. ed. 587, 23 Sup. Ct. Rep. 398 ; Knowl-
ton V. Moore, 178 U. S. 41, 44 L. ed.
969, 20 Sup. Ct. Rep. 747.
Article 3, § 1, of the Constitution,
must control.
Weston V. Charleston, 2 Pet. 466, 7
L. ed. 487; Pollock v. Farmers' Loan Sc
T. Co. 157 U. S. 429, 39 L. ed. 759, 15
Sup. Ct. Rep. 673; Minnesota v. Bar-
ber, 136 IT. S. 319, 320, 34 L. ed. 457,
458, 3 Inters. Com. Rep. 185, 10 Sup.
Ct. Rep. 862; Dobbins v. Erie Count v,
16 Pet. 435, 10 L. ed. 1022; Collector
V. Day (Buffington v. Day) 11 Wall.
113, 20 L. ed. 122.
Messrs. William Marshall Bullitt
and Edmund F. Trabue also filed a sep-
arate brief for plaintiff in error:
United States Constitution, art. 3, I
1, forbids diminution of a judge's sal-
ary during his term of office, and the
law forbids' a thing done indirectly
which is forbidden to be done directly.
Brown v. Maryland, 12 Wheat. 419,
6 L. ed. 078; Weston v. Charleston, 2
Pet. 449, 7 L. od. 481; Cummings v.
Missouri, 4 Wall. 288, 18 L. ed. 356; 2
Co. Inst. 48, 202; Broom, I^egal Max-
ims, 367; BurrilU Law Diet. 202; Fair-
bank v. United States, 181 U. S. 283. 45
L. ed. 862, 21 Sup. Ct. Rep. 648, 15
Am. Crim, Rep. 135.
The test of the constitutionality of a
statute is not what has been done, but
what, by its authority, may be doue.
under it.
Ames V. People, 26 Colo. 109. 56 Pae.
656; Eubank v. Richmond, 226 U. S.
137, 144, 57 L. ed. 156, 159. 42 UR.A
(N.S.) 1123, 33 Sup. Ct. Rep. 7fl, Ai.ii-
Cas. 1914B, 192.
The power to tax is the power to de-
stroy.
Brown v. Maryland, 12 Wheat. 419.
445. 6 L. ed. 678. 687; Austin v. Bos-
ton, 7 Wall. 694. 19 L. ed. 224; Veazle
Bank v. Fenno, 8 Wall. 533,, 19 I^. ikL
482; McCrav v. United States. 195 V
258 V, S.
JtflO.
EVANS V. GORE.
24rt, 247
S. 27, 19 L. ed. 78, 24 Sup. Ct. Rep. 769,
1 Ann. Cas. 561.
Taxation may, allowably, be used for
destruction.
Veazie Bank v. Fenno, 8 Wall. 533,
19 L. ed. 482; Citizens' Teleph. Co. v.
Fuller, 229 U. 8. 322, 329, 57 L. ed.
1206, 1213, 33 Sup. Ct. Rep. 833; St.
Louis Poster Adv. Co. v. St. Louis, 249
U. S. 272, 274, 63 L. ed. 601, 602, 39
Sup. Ct. Rep. 274.
Dobbins v. Erie County, 16 Pet. 435,
10 Jj. ed. 1022, expounding the prohibi-
tion of a state's taxing the salaries of
Federal officers, and Collector v. Day
(Buffingtott V. Day) 11 Wall. 113, 127,
20 L. ed. 122, 126, expounding the pro-
hibition of the Federal government's
taxing the salaries of state judges, are
conclusive on our contention, because
they declared against the power to tax,
on the ground that the authority would
place one government in the power of
the other, the power to tax being the
power to destroy, and although the
Federal government may tax its offi-
cers, jgenerally, to destruction, its inva-
sion of the judiciary is arrested by
article 3, § 1, of the Constitution.
It is the duty of the courts to be
watchful for the constitutional rights
of the citizen, and against any stealthy
encroachments thereon.
,Fairbank v. United States, 181 U. S.
283, 291, 45 L. ed. 862, 860, 21 Sup. Ct.
Rep. 648, 15 Am. Crim. Rep. 135; Boyd
V. United States, 116 U. S. 616, 29
L. ed. 746, 6 Sup. Ct. Rep. 524; Re
Debs, 158 U. S. 594, 39 L. ed. 1106, 16
Sup. Ct. Rep. 900.
Assistant Attorney General Frierson
argued the cause, and, with Attorney
General Palmer, filed a brief for de-
fendant in error:
The best discussion to be found of
this question is in the Pennsylvania
cases.
Northumberland County v. Chap-
man, 2 Riiwie, 73; (^ni. ex rel. Hep-
bum V. Mann, 5 W^itts & S. 403.
The principle controlling this case
has been clearly settled by decisions of
this court in cases involving similar
questions.
Postal Telepr. Cable Co. t. Adams,
]55 U. S. 688. 695, 696, 39 L. ed. 311,
315, 31 6, 5 Inters. Com. Rep. 1, 15 Sup.
Ct. Rep. 268, 360; Atlantic & P. Teleg.
Co. V. Philadelphia, 190 U. S, 160, 163,
47 U ed. 995, 999, 23 Sup. Ct. Rep. 817;
William K. Pe<k & Co, v. I^we, 247 U.
S 165, 62 li. (Ml. 1019. as Sup. Ct. Rep.
i:.i?.
I The mere fact that a part of a
, judge's salary must be used to pay a
tax does not render the tax unconsti-
tutional. ^
Com. ei rel. Hepburn v. Mann and
William E. Peck & Co. v. Lowe, supra;
United States Glue Co. v. Oak Creek,
247 U. S. 321, 62 L. ed. 1135, 38 Sup.
Ct. Rep. 499, Ann. Cas. 1918E, 748.
Mr. Justice Van Devanter delivered
the opinion of the court:
This is an action to recover money
paid under protest as a tax alleged to
be forbidden by the Constitution.
The plaintiff is the United States dis-
trict judge for the western district of
Kentucky, and holds that office under an
appointment by the President made in
1899, with the advice and consent of the
Senate. The tax which he calls in ques-
tion was levied under the Act of Febru-
ary 24, 1919, chap. 18, 40 Stat, at L.
1062, on his net income for the year
1918, as computed under that act. His
compensation or salary as district judge
was included in the computation. Had
it been excluded, he would not have been
called on- to pay any income tax for
that year. The inclusion was in obedi-
ence to a provision in § 213, requiring
the computation to embrace all gains,
profits, income, and the like, "including
in the case of the President of the
United States, the judges of the Su-
preme and inferior courts of the United
States, [and others] . . . the com-
pensation received as such." Whether
he could be subjected to such a tax in
[247] respect of his salary, consistent-'
ly with the Constitution, i* the matter
in issue. If it be resolved against the
tax, he will be entitled to recover what
he paid; otherwise bis action must fail.
It did fail in the district court. 262
Fed. 550.
The Constitution establishes three
great co-ordinate departments of the na-
tional government, — the legislative, the
executive, and the judicial, — and dis-
tributes among them tlie jiowers confided
to that government by the people. Each
department is dealt with in a separate
article, the legislative in the first, the
executive in the second, and the judicial
in the third. Our present concern is
chiefly with the third article. It defines
the judicial power, vests it in one su-
preme court and such inferior eourts as
Congress may from time to time ordain
and establish, and declares: **The
Judges, both of the supreme and inferior
Courts, shall hold their Offices during
'*x>od Behavior, and shall at stated
i4r-24U
SUPREME OOLRT OF THE UNITED STATES.
Oct. Tbuc,
Times, receive for their Services, a Com-
pensation, which shall not be diminished
during their Continuance in Office."
The plaintiff insists that the. pro vision
in § 213 which subjects him to a tax in
respect of his compensation as a judge
by its necessary operation and effect
diminishes that compensation, and
therefore is repugnant to the constitu-
tional limitation just quoted.
Stated in its broadest aspect, the con-
tention involves the power to tax the
compensation of Federal judges in gen-
eral,— and also the salary of the Presi-
dent, as to which the Constitution (art.
2, § 1, cL 6) contains a similar limita-
tion. Because of the individual relation
of the members of this court to the ques-
tion, thus broadly stated, we cannot but
regret that its solution falls to us; and
this although each member has been pay-
ing the tax in respect of his salary vol-
untarily and in regular course. But
jurisdiction of the present case cannot
be declined or renounced. The plaintift
was entitled by law to invoke our
[248] decision on the question as re-
spects his own compensation, in which
no other judge can have any direct
personal interest; and there was no
other appellate tribunal to which, un-
der the law, he could go. He brought
the case here in due course, the gov-
ernment joined him in asking an early
determination of the question involved,
and both have been heard at the
bar and through printed briefs. In
this situation, the only course open to
us is to consider and decide the cause,
—a conclusion supported by precedents
reaching back many years. Moreover, it
appears that, when this taxing provision
was adopted, Congrfcss regarded it as of
uncertain constitutionality, and both
contemplated and intended that the
question should be settled by us in a
ease like this.^
With what purpose does the Consti-
tution provide that the compensation of
the judges ''shall not be diminished dur-
ing their continuanoe in office f" Is it
primarily to benefit the jndges, or rather
to promote the public weal by giving
them that independence which makes for
an impartial and courageous discharge
of the judicial function t Does the pro-
vision merely forbid direct diminution,
such [249] as expressly reducing the
compensation from a greater to a less
sum per year, and thereby leave the
way open for indirect, yet effective,
diminution, such as withholding or call-
ing back a part as a tax on the wholef
Or does it mean that the judge shall
have a sore and continuing right to the
compensation, whereon he eonfidently
may rely for his support during his
continuance in office, so that he need
have no apprehension leet his sitnatioo
in this regard may be changed to his
disadvantage f
The Constitution was framed on the
fundamental theory that a larger meas-
ure of liberty and justice would be as-
sured by vesting the three great powers
— the legislative, the executive, and the
judicial — in separate departments,, etfbfa
relatively independent of the others;
and it was recognized that without this
independence — ^if it was not made both
real and enduring — the separation would
fail of its purpose. All agreed that re-
straints and checks must be imposed to
secure the requisite measure of inde-
pendence; for otherwise the legislative
department, inherently the strongest,
might encronch on or even come to domi-
nate the others, and the judicial, nat-
urally the weakest, might be dwarfed
or swayed by the other two, especially
by the legislative.
The particular need for making the
judiciary independent was elaborately
pointed out by Alexander Hamilton io
the Federalist, No. 78, from whieh we
excerpt the following:
''The executive not only dispenses the
honors, but holds the sword of the com
munity; the legislature not only com-
mands the purse, but prescribes the rules
1 See House Report, No. 767, p. 20, 65th
Cong. 2d Sees.; Senate Report, No. 617,
p. 6, 65th Cong. 3d Sess. And see Cong.
Record, vol. 66, p. 10,370, where the chair-
man of the House Ck>ramittee, in asking the
adoption of the provision, said: "I wish
to say, Mr. Chairman, that while there is
eonsiderable doubt as to the constitution-
ality of taxing . . . Federal judges' or
the President's salaries, ... we cannpt
settle it; we have not the power to settle
it. No power in the world can settle it
except the Supreme Court of the United
States. Let us raise it, as we have done,
H*)0 •
and let it be tested, and it can only be
done by someone protesting his tax and
taking an appeal to the Supreme Court.*'
And again: "I think really that every mart
who has a doubt about this can very weli
vote for it and take the advice of the
gentleman from Pennsylvania [Mr. Gra
ham], which was sound then and is sound
now, that this question ought to be raised
by Congress, the only power that can raise
it, in order that it may be tested in the
Supreme Court, the only power that can
decide it"
SftS V. 8.
1919.
EVANS V. GORE.
249-252
by which the duties and rights of every
citizen are to be r^;alated; the judioi-
ary, on the contrary, has no inflaenee
over either the sword or the purse; no
direction either of the strength or of the
wealth of the society; and can take no
active resolution whatever. It may truly
be said to have neither force nor will,
but merely judgment. . . . This
simple view of [250] the matter sug-
f€3t3 several important consequences:
t proves incontestably that the ju-
diciary is beyond comparison the weak-
est of the three departments of power;
that it can never attack with success
either of the other two; and that all
possible care is requisite to enable it to
defend itself against their attacks/'
"The complete independence of the
courts of justice is peculiarly essential
in a limited Constitution. By a limited
Constitution I understand one which
contains certain specified exceptions to
the legislative authority; such, for in-
stance, as that it shall pass no bills of
attainder, no ex post facto laws, and
the like. Limitations of this kind can
be preserved in practice in no other way
than through the medium of the courts
of justice, whose duty it must be to de-
clariB all acts contrary to the manifest
tenor of the . Constitution void. With-
out this, all the reservations of particu-
lar rights or privileges would amoimt to
nothing."
At a later period John Marshall,
whose rich experience as lawyer, legis-
lator, and chief justice enabled him to
speak as no one else could, tersely said
(Debates Va. Conv., 1829-1831, pp. 616,
619):
"Advert, sir, to the duties of a judge.
He has to pass between the government
and the man whom that government is
prosecuting: between the most power-
ful individual in the community, and the
poore?Jt and most unpopular. It is of the
last importance that, in the exercise of
these duties, he should observe the ut-
most fairness. Need I press the neces-
sity of thist Does not every man feel
that his own personal security and the
security of his property depends on that
fairness t The Judicial Department
comes home in its effects to every man's
fireside: it passes on his property, his
reputation, his life, his all. Is it not to
the last degree important that he should
be rendered perfectly and completely in-
dependent, with nothing to influence or
control him but God and his conscience f
... I have always thought, from my
earliest youth till now, that the [251]
greatest scourge an angry Heaven ever
#4 Ii. ed.
inflicted upon an ungrateful and a sin-
ning people was an ignorant, a corrupt,
or a dependent judiciar]^"
More recently the need for this inde-
pendence was illustrated by Mr. Wilson,
now the President, in the following ad-
mirable statement:
"It is also necessary that there should
be a judiciary endowed with substantial
and independent powers, and secure
against all corrupting or pen^erting in-
fluences; secure, also, against the arbi-
trary authority of the administrative
heads of the government.
'indeed, there is a sense in which it
may be said that the whole efiOicacy and
reality of constitutional government re-
sides in its courts. Our definition of
liberty is that it is the best practicable
adjustment between the powers of the
government and the privileges of the in-
dividual."
''Our courts are the balance wheel of
our whole constitutional system; and
ours is the only constitutional system so
balanced and controlled. Other consti-
tutional systems lack com^^ete poise and
certainty of operation because they lack
the support and interpretation of au-
thoritative, undisputable courts of law.
It is clear beyond all need of exposition
that for the definite maintenance of con-
stitutional understandings it is indis-
pensable, alike for the preservation of
the liberty of the individual and for the
preservation of the integrity of the pow-.
ers of the government, that there should
be some nonpolitical fonun in which
those understandings can be impartially
debated and determined. That forum
our courts supply. There the individual
may assert his rights; there the govern-
ment must accept definition of its au-
thority. There the individual may
challenge the legality of govemmentid
action and have it adjudged by the test
of fundamental principles, and that test
the government must abide; there the
government can check the too aggressive
self-assertion of the individual and es-
tablish its power upon lines which all
[252] can comprehend and heed. The
constitutional powers of the courts con-
stitute the ultimate safeguard alike of
individual privilege and of governmental
prerogative. It is in this sense that our
judiciary is the balance wheel of our
entire system; it is meant to maintain
that nice adjustment between individual
rights and governmental powers which
constitutes political liberty." Constitu
tional Government in the United States,
pp. 17, 142.
Conscious of the nature and scope of
991
252-2d4
SUPREME COURT OF THK I Nil El) STATES.
Oct. Toil
the power being vested in the national
courts, recognizing that they would be
charged with responsibilities more del-
icate and important than any ever be-
fore confided to judicial tribunals, and
appreciating that they were to be, in the
words of George Washington,* "the key-
stone of our political fabric,*' the con-
vention with unusual accord incoqio-
rated in the Constitution the provision
that the judges "shall hold their offices
during good behavior, and shall at
stated times receive for their services a
compensiition which shall not be dimin-
ished during their continuance in office."
Can there be any doubt that the two
things thus coupled in place — the clause
in respect of tenure during good beha-
vior and that in respect of an undi-
minishable compensation — were equally
coupled in purpose! And is it not plain
that their purpose was to invest the
judges with an independence in keeping
with the delicacy and importance of
their task, and with the imperative need
for its impartial and fearless perform-
ance f Mr. Hamilton said in explana-
tion and support of the provision (Fed-
eralist No. 79) : "Next to permanency
in office, nothing can contribute more to
the independence of the judges than a
fixed provision for their support. . . ,
In the general course of human nature,
a power over a man's subsistence amounts
to a power over his will, , . . T|je
.enlightened friends to good government
in every stAte have seen cause to lament
the want of precise and explicit precau-
tions in [253] the state constitutions
on this head. Some of these, in-
deed, have declared that jyermanent
salaries should be established for the
judges; but the experiment has in
some instances shown that such ex-
pressions are not sufficiently definite
to preclude legislative evasions. Some-
thing .**till more iv>sitive and un-
equivocal has been evinced to be req-
uisite. . . . This provision for the
support of the judges bears ever\' mark
of prudence and efficacy; and it ma}^ be
.^afely affirmed that, together with the
permanent tenure of their offices, it af-
fords a better prospect of theii: indepen-
dence than is discoverable in the consti-
tutions of any of the states in regard to
their own judges." The several commen-
tators on the Constitution have adopted
and reiterated this view,* — «Tudge Story
8S|»arks*8 VVashiiijrton, vol. X. pp. 3.'>, 38.
• 2 Story, § 1628: 1 Kent. Com. •294; 1
Wilson. Works, 410. 411; 2 Tucker, f :J64;
\fillor. :M0-.143: 1 Carbon, Sup. Ct. 6.
adding: "Without this provision [as to
an undiminishoble compensation], the
other, as to tho tenure of office, would
have been utterly' nugatory, and indeed
a mere mockery;" and Chancellor Kent
observing; "It tends, also, to secure a
succession of learned men on the bench,
who, in consf<]uence of a certain undi
minished support, are enabled and in
duced to quit the lucrative pursuits ot
private business for the duties of thai
important station."
These considerations make it verj
plain, as we think, that the primar}
puri>ose of the prohibition against dimi-
nution was not to benefit the judges, but,
like the clause in respect of tenure, to
attract good and competent men to the
bench, and to promote that imlependenct
of action and judgment which is es-
sential to the maintenance of the guar-
anties, limitations, and pervading prin-
ciples of the Constitution, and to the
administration of justice without re-
spect to persons, and with equal concern
for the poor and the rich. Such being
its purpose, it is to be construed, not a^
a private grant, but as a limitation im-
posed in the public interest; in oth<*r
words, not restrict ively, but in [254J
accord with its spirit and the principk
on which it proceeds.
Obviously, diminution may be effected
in more ways than one. Some may be
direct and others indirect, or even eva-
sive, as Mr. Hamilton suggested. But
all which, by their necessary operation
and effect, withhold or take from the
judge a part of that which has been
promised by law for hi? services, must
be regarded as within the prohibition.
Nothing short of this will give full ef-
fect to its spirit and principle. Here
the plaintiff was paid the full compen-
sation, but was subjected to an involun-
tary obligation to pay back a part, and
the obligation was promptly enforced.
Of what avail to him was the part which
was paid with one hand and then taken
back with the other f Was he not placed
in practically the same situation as if it
had l>een withheld in the first instanceT
Only by subordinating substance to mere
form could it be held that his compensa-
tion was not diminished. Of course, the
conclusion that it was diminished is the
natural one. This is illustrated in Dob-
bins V. Erie County, 16 Pet 435, 450,
10 U ed. 1022, 1027, which involved a
tax chai-ged under a law of Pennaylvanw
agaiu>l a revenue officer of the United
States who was a citizen and resident
of that state. The tax was adjusted o;
nroi>*>riioned to liis compensation, awl
3J)10.
KVANS V. GORK.
254-250
I he state court sustained it. 7 Watts,
r>]3. In reversing that decision, this
court, after showing that the compensa-
t ion had been fixed by a law of Congress,
said: *'Does not a tax, then, by a state
upon the office, diminishing the recom-
pense, conflict with the law of the
United States, which secures it to the
oflScer in its entirenessi It certainly has
such an effect; and any law of a state
imposing such a tax cannot be constitu-
tional."
But it is urged that what the plaintiff
was made to pay back was an income
tax, and that a like tax was exacted of
others engaged in private employment.
If the tax in respect of his compensa-
tion be prohibited, [255] it can find
no justification in the taxation of other
income as to which there is no prohibi-
tion; for, of course, doing what the
Constitution permits gives no license to
do what it prohibits.
The prohibition is general, contains no
excepting words, and appears to be di-
rected against all diminution, whether
for one purpose or another; and the rea-
sons for its adoption, as publicly as-
signed at the time and conmnonly ac-
cepted ever since, make with impelling
force for the conclusion that the fathers
of the Constitution intended to prohibit
diminution by taxation as well as other-
wise,— that they regarded the independ-
ence of the judges as of far greater im-
portance than any revenue that could
eome from taxing their salaries.
True, the taxing power is comprehen-
sive and acknowledges few exceptions.
But that there are exceptions, besides
the one we here recognize and sustain,
is well settled. In Collector v. Day
(Buffington v. Day) 11 Wall 113, 20
L. ed. 122, it was. held that Congress
could not impose an income tax in re-
spect of the salary of a judge of a state
court; in Pollock v. Farmers* Loan &
T. Co. 157 U. 8. 429, 585, 601, 652, 653,
39 L. ed. 759, 820, 820, 844, 15 Sup. Ct.
Rep. 673, it was held — the full court
agreeing on this point- — that Congress
was without power to im(K)se such a tax
in respect of interest received from bonds
issued by a state or any of its counties
or municipalities; and in United States
V. Baltimore & O. R. Co. 17 Wall. 322,
21 L. ed. 597, there was a like holding
as to municipal revenues derived by the
city of Baltimore from its ownership
of stock in a railroad company. None
of those decisions was put on any ex-
press prohibition in the Constitution,
for there is none; but all recognized and
gave effect to a prohibition imolied from
•4 li. ed.
the independence of the states within
their own spheres.
When we consider, as was done in
those cases, what is comprehended in
the congressional power to tax, — where
its exertion is not directly or implied
ly interdicted, — it becomes additionally
manifest that the prohibition now
[256J under discussion was intended
to embrace and prevent diminution
through the exertion of that power;
for, as this court repeatedly has held,
the power to tax carries with it "the
power to embarrass and destroy;" may
be applied to every object within its
range "in such measure as Congress
may determine;" enables that body "to
select one calling and omit another,
to • tax one class of property and to
forbear to tax another;" and may be
applied in different ways to different
objects so long as there is "geographical
uniformity" in the duties, imposts, and
excises imposed. M'Culloch v. Mary-
land, 4 Wheat. 316, 431, 4 L. ed. 579,
607; Pacific Ins. Co. v. Soule, 7 Wall.
433, 443, 19 L. ed. 95, 98 ; Austin v. Bos-
ton, 7 Wall. 694, 699, 19 L. ed. 224, 226 ;
Veazie Bank v. Fenno, 8 Wall. 533, 541.
548, 19 L. ed. 482, 485, 487; Knowlton
v. Moore, 178 U. S. 41, 92, 106, 44 K
ed. 969, 990, 995, 20 Sup. Ct. Rep. 747:
Treat v. White, 181 U. S. 264, 268, 269,
45 L. ed. 853-855, 21 Sup. Ct. Rep. 611 ;
McCray v. United States, 195 U. S. 27,
61, 49 L. ed. 78, 97, 24 Sup. Ct. Rep.
769, 1 Ann. Cas. 561; Flint v. Stone
Tracy Co. 220 U. S. 107, 158, 55 L. ed.
389, 416, 31 Sup. Ct. Rep. 342, Ann.
Cas. 1912B, 1312; Billings v. United
States, 232 U. S. 261, 282, 58 L. ed.
596, 605, 34 Sup. Ct. Rei). 421; Brush-
aber v. Union P. R. Co. 240 U. S. 1.
24-26, 60 U ed. 493, 504, 505, L.R.A.
1917D, 4 J 4, 36 Sup. Ct. Rep. 236, Ann.
Cas. 1917B, 713. Is it not therefore
morally certain that the discerning
statesmen who framed the Constitution
and were so sedulously bent on securing
the independence of the judiciary intend-
ed to protect the compensation of the
judges from assault and diminution in
the name or form of a taxf Could not
the purpose of the prohibition be wholly
thwarted if this avenue of attack were
left open? Certainly there is nothing
in the words of the prohibition indicat-
ing that it is directed against one legis-
lative power and not another; and, in
our opinion, due regard for its spirit
and principle requires that it be taken
as directed against them all.
This view finds support in rulings in
Pennsylvania, I^uisiana, and North Car-
«03
25^269
SUPKKME tX)UUT OF THE UNITED STATES.
Ckrr. Tm,
olina, made under like constitutional
restrictions (Com. ex rel. Hepburn v.
Mann, 6 Watts & S. 403, 415, et seq.;*
New Orleans v. Lea, 14 [257] La. Aim.
194; 48 K. C. Appx.; N. C. Public Doc-
uments 1899, Doc. No. 8, p. 95 ; Re Tax-
ation of Salaries of Judges, 131 N. C.
G92, 42 S. E. 970; Pumell v. Page, 133
N. C. 125, 45 S. E. 534), and has strong
sanction in the actual practice of the gov-
ernment, to which we now advert.
No attempt was made to tax the com-
pensation of Federal judges prior to
1862. A statute of that year, July 1,
1862, chap. 119, § 86, 12 Stat, at L. 472,
with its amendments, subjected the
salaries of all civil officers of the United
States to an income tax of 3 per cent,
and was construed by the revenue offi-
cers as including the compensation of
the President and the judges. Chief
Justice Taney, the head of the judiciary,
wrote to the Secretary of the Treasury
a letter of protest (157 U. S. 701, 39
L. ed. 1155, 15 Sup. Ct. Rep. ix.) based
on the prohibition we are considering,
and in the course of the letter said : -
'^The act in question, as you interpret
it, diminishes the compensation of every
judge 3 per cent, and if it can be di-
minished to that extent by the name
of a tax, it may in the same way be re-
duced from time to time, at the 'pleastire
of the l^slature.
"The judiciary is one of the three
great departments of the government,
created and established by the Constitu-
tion. Its duties and powers are spe-
cifically set forth, and are of a character
that requires it to be perfectly independ-
ent of the two other departments, and
in order to place it beyond the reach
and above even the suspicion of any
such influence, the power to reduce their
compensation is expressly withheld from
Congress, and excepted from their pow-
ers of legislation.
"Language could not be more plain
than that used in [258] the Constitu-
tion. It is, moreover, one of its most
important and essential provisions.
For the articles which limit the pow-
ers of the l^slative and executive
*The tax condemned was levied under a
provision in a general revenue law, charg-
ing a tax of 2 per cent "upon all salaries
and emoluments of office, created or held
by or under the Constitution or laws of this
commonwealth, and by or under any incor-
poration, institution, or company mcorpo-
rated by the said commonwealth, where
Buoh salariee or emoluments exceed $200."
Act No. 232, § 2, Pa. Laws 1840, p. 613;
Act No. 117, § 0, Pa. Laws 1841, p. 310.
894
branches of the government, and those
which provide safeguards for the pro-
tection of the citizen in his persoa
and property, would be of little value
without a judiciary to uphold and
maintain them, which was free frmn
every influence, direct or indirect, that
might by possibility in times of poHt-
ical excitement warp their judgments.
"Upon these grounds I regard an ad
of Congress retaining in the Treasury
a portion of the compensation of tht
judges, as unconstitutional and void.^
The collection of the tax proceeded,
and, at the suggestion of the Chief Jus-
tice, this court ordered his proteA
spread on its records. In 1869 the Sec-
retary of the Treasury referred the
question to the Attorney General (Judge
Hoar) and that officer rendered an o|hii-
ion in substantial accord with Chief
Justice Taney's protest, and also ad-
vised that the tax on the Presidenfa
compensation was likewise invalid. 13
Ops. Atty. Gen. 161. The tax on tht
compensation of the President and the
judges was then discontinued, and tiit
amounts theretofore collected were all re*
funded, — a part through administrative
channels and a part through the actios
of the court of claims and ensuing ap-
propriations by Congress. Wayne v.
United States, 26 Ct. CI. 274; Act of
July 28, 1892, chap. 311, 27 SUt at L
306. Thus the Secretary of the Treas-
ury, the accounting officers, the eoort of
claims, and Congress aeeepted and gavt
effect to the view expressed by the At-
torney General. In the Ineome Tas
Act of August 27, 1884, chap. 349, fi
27 et seq., 28 Stat, at L. 509, nothing
was said about the compensation of tht
judges; but Mr. Justice Pleld regmided
it as included, and gave that aa one rea-
son for joining in tiie deeision holding
the act nneonstitntional. 157 U. 8. 604-
606. (hi the rehearing the Attorney
General (Mr. Olney) frankly said in h»
brief: ^here has never been a doubt
since the opinion of Attorney GknersI
Hoar [250] that the salaries of tht
President and judges were exempt"
The Income Tax Acts of October 3,
1913, September 8, 1916, and Octo-
ber 3, 1917 (chap. 16, 38 Stat at
L. 168; chap. 463, 39 Stat at L
758; chap. 63, 40 Stat at L. 329),
severally excepted the compensatioo
of the judges then in office, — also
that of the President for the then
current term. In short, during a period
of more than one hundred and tweotj
years there was but a single real at-
tempt to tax the judges in respect of
95S V. 8.
1^9.
EVANS V. GORE.
259-261
their compensation, aud that attempt
soon was disapproved and pronounced
tintenable by the concurring action of
judicial, executive, and legislative offi-
cers. And so it is apparent that in the
actual practice o£ the government the
prohibition has been construed as em-
bracing and preventing diminution by
taxation.
Does the 16th Amendment authorize
and support this tax and the attendant
diminution; that is to say, does it ^ring
within the taxinc^ power subjects there-
tofore excepted? The court below an-
swered in the negative; and counsel for
the goveniment say: ''It is not, in view
of recent decisions, contended that this
Amendment rendered anything taxable
as income that was not so taxable be-
fore.'' We might rest the matter here,
but it seems better that our view and
the reasons therefor be stated in this
opinion, ev^n if there be some repeti-
tion of what recently has been said in
other cases.
Preliminarily we observe that, unless
there be some real conflict between the
16th Amendment and the prohibition in
article 3, § 1, making the compensation
of the judges undiminishable, effect
must be given to the latter as well as to
the former; and also that a purpose to
depart from or imperil a constitutional
principle so widely esteemed and so vi-
tal to our system of government as the
independence of the judiciary is not
lightly to be assumed.
In Knowlton v. Moore, 178 U. S. 95,
44 L. ed. 991, 20 Sup. Ct Rep. 747, this
court said : ''The necessities which gave
birth to the Constitution, the contro-
versies which preceded its formation,
and the [260] conflicts of opinion
which were settled by its adoption,
may properly be taken into view for
the purpose of tracing to its source
any particular provision of the Con-
stitution, in order thereby to be en-
abled to correctly interpret its mean-
ing." This sound rule is as applicable
to the Amendments as to the provisions
of the original Constitution.
Let us turn, then, to the circumstances
in which this Amendment was proposed
and ratified, and to the controversy it
was intended to settle. By the Consti-
tution all direct taxes were required to
be apportioned among the several states
according to their population, as ascer-
tained by a census or enumeration (art.
1, § 2, cl. 3, and § 9, cl. 4), but no such
requirement was imposed as to other
taxes. And apart from capitation taxes,
with which we now are not concerned,
^4 li. ed;
no rule was given for determining what
taxes were direct and therefore to be
apportioned, or what were 'indirect and
not within that requirement. Contro-
versy ensued and ultimately centered
around the right classification of income
from taxable real estate and from in-
vestments in taxable personal property.
The matter then came before this court
in Pollock v. Farmers' Loan & T. Co.
157 U: S. 429, 39 L. ed. 759, 15 Sup. Ct.
Rep. 673; 158 U. S. 601, 39 L. ed. 1108,
15 Sup. Ct. Rep. 912; and the decision,
when announced, disclosed that the same
differences in opinion existing elsewhere
were shared by the members of the
court, — ^five, the controlling number, re-
garding a tax on such income as in ef-
fect a direct tax on the property from
which it arose, and therefore as requir-
ing apportionment, and four regarding
it as indirect and not to be apportioned.
Much of the law then under considera-
tion had been framed according to the
latter view, and because of this and the
adjudged inseparability of other por-
tions the entire law was held invalid.
Afterwards, to enable Congress to reach
all taxable income more conveniently
and effectively than would be possible as
to much of it if an apportionment among
the states were essential, the 16th
[261] Amendment was proposed and
ratified. In other words, the pur-
pose of the Amendment was to elim-
inate all occasion for such an ap-
portionment because of the source
from which the income came, — a
change in no wise affecting the pow-
er to tax, but only the mode of lexer-
cising it. The message of the President*
recommending the adoption by Congress
of a joint resolution proposing the
Amendment, the debates', on the resolu-
tion by which it was proposed, and the
public appeals,^ — corresponding to those
in the Federalist, — made to secure its
ratification, leave no doubt on this point.
And that the proponents of the Amend-
ment, in drafting it, lucidly and aptly
expressed this as its object, is shown by
its words:
"The Congress shall have to lay and
collect taxes on incomes, from whatever
source derived, without apportionment,
among the several states, and without
regard to any census or enumeration."
True, Governor Hughes, of New York,
in a message laying the Amendment be-
8 Cong. Rec, vol. 44, p. 3344.
6 Cong. Rer., vol. 44, pp. 1568-1570, 3377,
3900, 4067. 4105-4107, 4108-4121, 4889-4441.
7 Conp. Rec, vol. 45, pp. 1694-1699, 2245-
2247, 2539, 2540.
995
J(Jl-263
SUPKEAiK COLKT OF THE UNITKD STATKS.
Oct. Ttiui,
fore the legislature of that state for
ratification or rejection, expressed some
apprehension lest it might be construed
as extending the taxing i)ower to income
not taxable before; but his message
promptly brought forth from statesmen
who participated in proposing the
Amendment such convincing expositions
of its purpose,* as here stated, that the
apprehension was effectively dispelled
and ratification followed.
Thus the genesis and words of the
Amendment unite in showing that it
does not extend the taxing power to new
or excepted subjects, but merely re-
moves all occasion otherwise existing for
an apportionment among the states of
taxes laid on income, whether derived
from one [262] source or another.'
And we have so held in other cases.
In Brushaber v. Union P. R. Co. 240
U. S. 1, CO L. ed. 493, L.R.A.1917D, 414,
36 Sup. Ct. Rep. 236, Ann. Cas. 1917B,
713, where the purpose and effect of the
Amendment were first drawn in ques-
tion, the chief justice reviewed at length
the legislative and judicial action which
prompted its adoption, and then, refer-
ring to its text, and speaking for a unan-
imous court, said, pp. 17,vl8:
"It is clear on the face of this text
that it does not purport to confer power
to levy income taxes in a generic sense,
— an authority already possessed and
never questioned, — or to limit and dis-
tinguish between one kind of income
taxes and another, but that the whole
purpose of the Amendment was to re-
lieve- all income taxes w^hen imposed
from apportionment from a considera-
tion of the source whence the income
was derived. Indeed, in the light of
the history which we have given and of
the decision ih the Pollock Case, and
the ground upon which the ruling in
that case was based, there is no escap6
from the conclusion that the Amend-
ment was drawn for the purpose of do-
ing away for the future with the prin-
« Cong. Rec, vol. 45, pp. 1694-1699, 2245-
2247. 2539, 2540.
9 In passing the Income Tax Law of
15)19 Congress refused to treat interest re-
i-eived from bonds issued by a state or any
of its counties or municipalities as within
the taxing power (Cong. Rec, vol. 57, pp.
553, 774-777, 2988; chap. 18, § 213, 40
8tat. at L. 10(i5, Comp. Stat. § 6336ik flf) ;
and in the regulations issued under that
law the administrative officers recognize
that the salaries and emoluments of the
officers of a state and its political sub-
divisions are not taxable by the United
SUtes (Reg. 45, published 1920, pp. 47,
313).
89«
cjple upon which the Pollock Case was
decided; that is, of determining whether
a tax on income was direct, not by a con-
sideration of the burden placeil on the
taxed income upon which it directly
operated, but by taking into view the
burden which resulted on the property
from which the income was derived,
since in express terms the Amendment
provides that income taxes, from what-
ever source [268] the income may be
derived, shall not be subject to the reg-
ulation of api>ortionment."
What was there said was reaffirmed
and applied in Stanton v. Baltic Min.
Co. 240 U. S. 103, 112, 113, 60 L. ed.
546, 553, 554, 36 Sup. Ct. Rep. 278, and
William E. Peck & Co, v. Lowe, 247 U.
S. 165, 172, 62 L. ed. 1049, 1050, 38
Sup. Ct. Rep. 432, and in Eisner v.
Macomber, 252 U. S. 189, ante, 521, 9
A.L.R. 1570, 40 Sup. Ct. Rep. 189, de-
cided at the present term^ we again
held, citing the prior cases, that the
Amendment "did not extend the taxii^
power to new subjects, but merely re-
moved the necessity which otherwise
might exist for an apportionment
among the states of taxes laid on in-
come."
After further consideration, .we adhere
to that view, and accordingly hold that
the 16th Amendment does not author-
ize or support the tax in question.
Apart from his salary, a Federal
judge is as much within the taxiag
power as other men are. If he has a
home or other property, it may be taxed
just as if it belonged to another. If hr
has an income other than his salary, it
also may be taxed in the same way.
And, speaking generally, his duties nn^
obligations as a citizen are not differ-
ent from those of his neighbors. But
for the common good — to render him,
in the words of John Marshall, **per-
fectly and completely independent, with
nothing to influence or control him but
God and his conscience" — his compensa-
tion is protected from diminution in
any form, whether by a tax or other
wise, and is assured to him in its en-
tirety for his support.
The court below concluded that the
compensation war? not diminished, and
regarded this as inferable from our d^
cisions in William E. peck A Co, v.
Lowe, 247 U. S. 165, 174, 175, 62 L ed.
1049, 1051, 1052, 38 Sup. Ct. Rep. 432.
and United States Glue Co. v. Dak
Creek, 247 U. S. 321, 329, 62 L ©d
1135, 1141, 38 Sup. Ct. Rep. 499, Amt
Cas. 1918E, 748. We think neither caK
tends to support that view. Each rr
9I5S C. »•
1919.
EVANS V. GOKK.
2G3-2G6
lated to a business — one to exportation,
the other to interstate commerce — which
the taxing power — of Congress in one
<iase, of a state in the other — was re-
strained from directly burdening; and
the holding in both was [264] that
an income tax laid, not on the gross
receipts, bnt on the net proceeds re-
maining after all expenses were paid
and losses adjusted, did not directly
burden the business, but only indi-
rectly and remotely affected it. Here
the Constitution expressly forbids di-
minution of the judge's compensation,
meaning, as we have shown, diminution
bv taxation as well as otherwise.
The taxing act directs that the compen-
sation— the full sum, with no deduction
for expenses— be included in computing
the net income, on which the tax is laid.
If the compensation be the only income,
the tax falls on it alone; and, if there
be other income, the inclusion of the
compensation augments the tax accord-
ingly. In either event the compensation
suffers a diminution to the extent that
it is taxed.
We conclude that the tax was imposed
•contrary to the constitutional prohibi-
tion, and 80 must be adjudged invalid.
Judgment reversed.
Mr. Justice Holmes, dissenting:
This is an action brought by the plain-
tiff in error against an acting collector
of internal revenue to recover a portion
of the income tax paid by the former.
The ground of the suit is that the plain-
tiff is entitled to deduct from the total
of his net income $6,000, being the
amount of his salary as a judge of the
district court of the United States. The
Act of Februarv 24, 1919, chap. 18, §
210. 40 Stat, at L. 1057, 1062, Comp.
Stat. §§ 63711a, 6336ie, taxes the net
income of every indiiidual, and § 213,
p. 1065, requires the compensation re-
ceived by the judges of the United
States to be included in the gross in-
come from which the net income is to be
computed. This was done by the plain-
tiff in error and the tax was paid under
protest. He contends that the require-
ment mentioned and the tax, to the ex-
tent that it was enhanced by considera-
tion of the plaintiff's salary, are [265]
contrary to art. 3, § 1, of the Constitu-
tion, which provides that the compensa-
tion of the judges shall not be dimininhed
during their continuance in ol&ce. Up-
on demurrer judgment was entered for
the defendant, and the case comes here
upon the single question of the validitv
• 4 Ii.*ed.
of the above-mentioned pro\'isions of the
act. ^
The decision below seems to me to
have been right for two distinct reasons :
that this tax would have been valid un-
der the original Constitution, and that,
if not 80, it was made lawful by the 16th
Amendment. In the first place, I think
that the clause protecting the compen-
sation of judges has no reference to a
case like this. The exemption of salaries
from diminution is intended to secure
the independence of the judges, on the
ground, as it was put by Hamilton in
the Federalist (No. 79), that "a power
over a man's subsistence amounts to a
power over his will." That is a very
good reason for preventing attempts to
deal with a judge's salary as such, but
seems to me no reason for exonerating
him from the ordinary duties of a citi-
zen, which he shares with all others.
To require a man to pay the taxes that
all other men have to pay cannot pos-
sibly be made an instrument to attack
his independence as a judge. I see noth-
ing in the purpose of this clause of the
Constitution to indicate that the judges
were to be a privileged class, free from
bearing their share of the cost of the
institutions upon which their well-being,
if not their life, depends.
I see equally little in the letter of the
clause to indicate the intent supposed.
The tax on net incomes is a tax on the
balance of a mutual account in which
there always are some and may be many
items on both sides. It seems to me
that it cannot* be affected by an in-
quiry into the source from which the
items more or less remotely are derived.
Obviously there is some point at which
the immunity of a judge's salary stops;
or, to put it in the language of the
clause, a point at which it could not be
said that his compensation [266] was
diminished by a charge. If he bought
a house, the fact that a part or
the whole of the price had been paid
from his compensation as judge would
not exempt the house. So, if he
bought bonds. Yet in such cases the
advantages of his salary would be di-
minished. Even if the house or bonds
were bought with other money, the
same would be true, since the money
would not have been free for such an
application if he had not used his salary
to satisfy other more peremptory needs.
At some point, I repeat, money received
as salary loses its specific character as
such. Money held in trust loses its
identity by being mingled with the gen-
eral funds of the owner. I see no rea-
897
O 4
260-208
SL'PHKME COURT OF THE UNITED STATES.
Oct. Texm,
son why the same should not be true of
a salar}\ But I do not think that the
result could be avoided by keeping the
salary distinct. I think that the mo-
ment the salary is received, whether kept
distinct or not, it becomes part of the
general income of the owner, and is
mingled with the rest, in theory of law,
as an item in the mutual account with
the United States. I see no greater rea-
son for exempting the recipients while
they still have the income as income
than when they have invested it in a
house or bond.
The decisions heretofore reached by
this court seem to me to justify my
conclusion. In William E. Peck & Co. v.
Lowe, 247 U. S. 165, 62 L. ed. 1049, 38
Sup. Ct. Rep. 432, a tax was levied by
Congress upon the income of the plain-
tiff corporation. More than two thirds
of the income were derived from exports,
and the Constitution in terms prohib-
its any tax on articles exported from
any state. By construction it had been
held to create "a freedom from any tax
which directly burdens the exportation."
Fairbank v. United States, 181 U: S.
283, 293, 45 L. ed. 862, 866, 21 Sup.
Ct. Rep. 648, 15 Am. Crim. Rep. 135. The
prohibition was unequivocal and express,
not merely an inference, as in the present
case. Yet it was held unanimously that
the tax was valid, '^t is not laid on in-
come from exportation because ^f its
source, in a discriminative way, but just
as it is laid on other income. . . . There
is no [367] di^rimination. At most,
exportation is affected' only indirect-
ly and remotely. The tax is levied
. . . after the recipient of the in-
come is free to use it as he chooses.
Thus what is taxed — the net income
— is as far removed from exporta-
tion as are articles intended for ex-
port before the exportation begins."
247 U. S. 174, 175. All this ap-
plies with even greater force when, as
I have observed, the Constitution has
no words- that forbid a tax. In United
States Glue Co. v. Oak Creek, 247 U. S.
321. 329, 62 L. ed. 1135, 1141, 38 Sup.
Ct Rep. 499, Ann. Cas. 1918E, 748, the
same principle was affirmed as to inter-
state commerce, and it was said that if
there was no discrimination against such
commerce the tax constituted one of the
ordinary burdens of government, from
which parties were not exempted be-
«'ause they happened to be engaged in
♦•ommerce among the states.
A second and independent reason why }
this tax appears to me valid is that, J
t^ven if I am wrong as to the scope of
Kfll8
the original document, the 16th An>enc-
ment justifies the tax, whatever would
have been the law before it was applied.
By that Amendment Congress is given
power to "collect taxes on incomes from
whatever source derived." It is true
that it goes on*^*without apportionmcDt
among the several states, and withoni
regard to any census or enumeration,"
and this shows the particular difficulty
that led to itl But the only cause of
that difficulty was an attempt to trace
income to its source, and it seems to me
that the Amendment was intended to put
an end to the cause, and not merely to
obviate a single result. I do not see how
judges can claim an abatement of their
income tax on the ground that an item
in their gross income is salary, wh^i
the power is given expressly to tax in-
comes from whatever source derived.
Mr. Justice Brandeis concurs in this
opinion.
[2681 LEO WEIDHORN, Petitioner.
V.
BEXJA^lIN A. LEVY, Trustee in Bank-
ruptcy of the Estate of J. Herbert Weid-
horn, Bankrupt.
(See 8. C. Reporter's ed. 268-274.;
Baukruptoy — review of proceeding
— petition to revise or appeal.
1. A decision of a bankruptcy court
that the referee had no jurisdiction of a
bill filed by the trustee to avoid certain
transfers as in fraud of creditors is re-
viewable in the circuit court of appeals by
petition to revise under the Bankruptcy
Act, § 24b, although, had the district court
sustained the jurisdiction and passed u^d
the merits, the exclusive remedy would haw
been by appeal under § 24a, as the court
thereby would have determined a contro-
versy arising in bankruptcy proceed in j;*.
[Por oth«»r cases, see Bankniptcx. XIIl :n
Digest Sup. Ct. 1908.]
Bankruptc3' — reference — poweris.
2. A referee in bankruptcy is riot in
any sense a separate court nor endoweJ
with any independent judicial authority.
He is merely an oflScer of the court of l»anK-
ruptcy, having no power except as con-
ferred by the order of reference, read in
the light of the Bankruptcy Act, and his
judicial functions, however important, are
subject always to the reriew of the bank-
rnptcy court.
[For other cases, see Baskraptcy. T. in Dic<est
Sup. Ct. 190S.1
Bankruptcy — Jurisdiction of referee
— solt to aToid transfers.
3. A referee in banloruptoy, l^ virtue
of a general reference nader General Or-
ders in Bankruptcy No. 12, which provides
1919.
WKIDHORN V. LEVY.
208-27U
that ''thereafter all tho proceedings, except
such as are required by the act or by these
General Orders to be had before tlie judge,
shall be had before the referee/' has no
jurisdiction of a plenary suit in equity
Drought bv the trustee in bankrupt^
against a third party to set aside a fraudu-
lent transfer or conveyance under § 70e of
the Bankruptcy Act, and affecting property
not in the custody or control of the court
of bankruptcy.
(For other cases, see Baoki*npCcy, V. In Digest
Sup. Ct. 1908.1
[No. 203.]
Argued January 28 and 29, 1920. Decided
. June 1, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the First Circuit to review a decree
which reversed a decree of the District
Court of Massachusetts, vacating a de-
cree made by the referee in bankruptcy
on a bill to set aside transfers as in
fraud of creditors. Decree of Circuit
Court of Appeals reversed and that of
District Court affirmed.
See same case below, 165 C. C. A. 48,
253 Fed. 28.
The facts are. stated in the opinion.
Mr. William M. Blatt argued the
cause, and, -with Mr, Walter Hartstone,
filed a brief for petitioner.
Mr. Lee M. Friedman argued the
cause and filed a brief for respondent.
Mr. Justice Pitney delivered the opin-
ion of the court:
Upon his voluntarv petition, filed in
February, ipi6, J. Herbert Weidhom
was adjudged a bankrupt, and the
[260] district court refeired the case
to a referee under General Order XII.
(1). Thereafter the trustee in bank-
ruptcy addressed to and filed with the
referee a bill* in eqnil^ against the bank-
rupt's brother, Leo Weidhom (the pres-
ent petitioner), and the Boston Storage
Waiehouse Company, alleging that cer-
tain chattel mortgages, or bills of sale
in the nature of mortgages, made by the
bankrupt to Leo more than four months
before the filing of the petition in bank-
niptcy, and under which, prior to the
filing of the petition, possession of the
chattels had passed to the mortgagee and
the Storage Warehouse Company, were
invalid because made in fraud of cred-
itors, and seeking to set them aside un-
der the Statute of Elizabeth and the
Bankruptcy Act, § 70e, and recover the
chattels or the proceeds thereof for the
bankrupt estate. Defendant Leo Weid-
hom promptly objected to the jurisdic-
%4 L. ed.
tion of the referee, and afterwards
answered to the merits. The referee over-
ruled the jurisdictional objection, pro-
ceeded to hear the merits, and entered a
final decree in favor of the trustee. On
review the district court, considering the
jurisdictional question only, vacated the
decree and dismissed the bill upon
the ground that the referee exceeded his
powers under the order of reference. 243
Fed. 756. The trustee petitioned the cir-
cuit court of appeals to revise the decree
under § 24b; and that court, deeming
that the district court had erred in hold-
ing that the referee acted without juris-
diction, reversed its decree dismissing the
bill and remanded the cause for further
proceedings, including a review of the
merits. 165 C. C. A. 48, 253 Fed. 28.
A writ of certiorari brings the case here.
It is assigned for error that the cir-
cuit court of appeals ought not to have
entertained the petition to revise under
§ 24b; the contention being tha# since
the decree complained of was made in a
plenary suit, the exclusive remedy was
by appeal under § 24a. Had the district
court sustained the jurisdiction and
passed upon the merits, the [270]
point would be well taken, as the
court thereby would have determined
a "controversy arising in bankruptcy
proceedings.*' He wit v. Berlin Macb.
Works, 194 U. S. 296, 300, 48 L. ed.
986, 987, 24 Sup. Ct. Rep. 690. But
since the decision turned upon a
mere question of law as to whether the
referee had authority to hear and de-
termine the controversy, — ^in effect, a
question of procedure, — it properly was
reviewable by petition to revise under §
24b. Louisville Trust Co. v. Comingor,
184 U. S. 18, 26, 46 L. ed. 413, 416, 22
Sup.. Ct. Rep. 293; Schweer v. Brown,
195 U. S. 171, 172, 49 L. ed. 144, 145,
25 Sup. Ct. Rep. 15; First Nat. Bank v.
Chicago, Title & T. Co. 198 U. S. 280,
288, 291, 49 L. ed. 1051, 1054, 1055, 25
Sup. Ct. Rep. 693; Re Loving, 224 U. S.
183, 188, 56 L. ed. 725, 726, 32 Sup. Ct.
Rep. 446; Gib))ons v. Goldsmith, 138 C.
C. A. 252, 222 Fed. 826, 828.
Did the referee exceed the authority
and jurisdiction conferred upon him by
the Bankruptcy Act and the general or-
der of reference?
The following provisions of the act are
pertinent: By § 1 (7) "'court' shall
mean the court of bankruptcy in which
the proceedings are pending, and may
include the referee." By § 18g, '^f the
judge is absent from the district, or the
division of the district in which the pe-
tition is filed at the time of the filing,
899
270-272
SUPKE.\1E COURT OF THE UNITED STATES.
Oct. Term,
the clerk, shall forthwith refer the case
to the referee." Section 22 provides that
after a person has been adjudged a bank-
rupt, the judge may make a reference to
the referee, either generally or specially,
with limited authority to act or to con-»
sider and report, and "may, at any time,
for the convenience of parties or for
itause, transfer a case from one referee
to another." By § 36, "Referees shall
take the same oath of office as that pre-
scribed for judges of United States
courts." And by § 38a, "Referees re-
spectively are hereby invested, subject
always to a revfew by the judge, with-
in the limits of their districts as estab-
lished from time to time, with jurisdic-
tion to . . . (4) perform such part of
the duties, except as to questions aris-
ing out of the applications of bank-
rupts for compositions or discharges, as
are by this act conferred on courts of
bankijiptcy, and [271] as shall be pre-
scribed by rules or orders of the
courts of bankruptcy of their respec-
tive districts, except as herein other-
wise provided." [July 1, 1898, 30 Stat,
at L. 544, chap. 541, Comp. Stat. §
9585, 1 Fed. Stat. Anno. 2d ed. p. 509.]
These provisions make it clear that
the referee is not in any sense a sepa-
rate court, nor endowed with any inde-
pendent judicial authority, and is mere-
ly an officer of the court of bankruptcy,
liaving no power except as conferred by
the order of reference, — reading this, of
course, in the light of the act; and that^
his judicial functions, however impor-
tant, are subject always to the review of
the bankruptcy court.
In the General Orders established by
this court pursuant to the act, under
XII, (1) provision is made for an order
referring a case to a referee: "And
thereafter all the proceedings, except
such as are required by the act or by
;hese General Orders to be had before
the judge, shall be had before the ref-
eree." 172 U. S. 657, 43 L. ed. 1190, 18
Sup. Ct. Rep. vi.
The question is whether the present
suit, brought by the trustee in bankrupt-
cy against petitioner, was a "proceed-
ing" within the meaning of this provi-
sion. We cannot concur in the view of
the district court that this question is
sroverned by the distinction between
"proceedings in bankruptcy" and "con-
troversies iit law and in equity arising
in bankruptcy proceedings," as these
terms are employed in §§ 23, 24a, 24b,
and 25a; there may he controversies
arising in the course of bankruptcy pro-
oee*lings that are so far connected with
900
those proceedings as to be in effect a
part of them and capable of summan-
disposition by the referee under the
general order of reference, althoiigh, be-
cause of their nature, or because involv-
ing a distinct and separable issue, they
may be reviewable, under the sections
cited, by appeal rather than by i>etitiou
to revise. Hewit v. Berlin Mach. Works.
194 U. S. 296, 300, 48 L. ed. 986, 987, 24
Sup. Ct. Rep. 690; Knapp v. Milwaukee
Trust Co. 216 U. S. 545, 553, 54 L. ed.
610, 613, 30 Sup. Ct. Rep. 412.
Thus, if the property were in the cus-
tody of the bankruptcy cotfrt or its of-
ficer, any controversy raised by an
[272] adverse claimant setting up a
title to or lien upon it might be de-
termined on summary proceedings in
the bankruptcy court;, and would fall
within the jurisdiction of the referee.
White V. Schloerb, 178 U. S. 542, 546,
44 L. ed. 1183, 1186, 20 Sup. Ct. Rep.
1007; Mueller v. Nugent, 184 U. S. 1,
13, 46 L. ed. 405, 411, 22 Sup. Ct. Rep.
269.
But in the present instance the con-
troversy related to property not in the
possession or control of the court or of
the bankrupt, or anyone representing
him at the time of petition filed, and not
in the court's custody at the time of the
controversy, but in the aotual possession
of the bankrupt's brother under an ad-
verse claim of ownership based upon
conveyances made more than four months
before, the institution of the proceeil-
ings in bankruptc}*. In order to set
aside these conveyances and subject the
property to the administmtion of the
court of bankruptcy a plenary suit was
necessary (Babbitt v. Butcher, 216 V.
S..102, 113, 54 L. ed. 402, 406, 30 Sup.
Ct. Rep. 372), and such was the nature
of the one that was instituted.
Under the Bankruptcy Act of 1898, as
originally passed, an independent suit
of this character could not be brought in
the district court in bankruptcy **nnle5s
bv consent of the proposed defendant."
Act of July 1, 1898 (chap. 541, § 23h.
30 Stat, at L. 544, 552, Comp. Stat. §^
9585, 0607, 1 Fed. Stat. Anno. 2d ed.
pp. 509. 750) : Bardes v. First Xat. Bank.
178 U. S. 524, 44 L. ed. 1175, 20 Sup.
Ct. Rep. 1000. Whether, under the Act
of February- 5, 1903 (chap. 487, 32 Stat,
at L. 797, 798, 800, Comp. Stat. §§ 9586,
0607, 9654, 1 Fed. Stat. Anno. 2d ed.
pp. 528, 761, 1216), amending §§ 23b and
70e, a suit for the recovery of property
fraudulent I}- transferred by the bank-
rupt could be brought in a court of
bankruptcv without the consent of de-
25S r. s.
1U19.
UNITED STATES v. OMAHA TKIBE OF INDIANS.
fendant, was a^ question left undeter-
mined in IlaiTis v. First Nat. Bank, 216
IT. S. 382, 385, 54 L. ed. 528, 529, 30
Snp. Ct. Kep. 206, but answered in the
negative in Wood v. A. Wilbert's Sons
Shingle & Lumber Co. 226 U. S. 384,
389, 57 L. ed. 204, 267, 33 Sup. Ct. Rep.
125. By Act of June 25, 1910 (chap.
412, § 7, 36 Stat, at L. 83a 840, Comp.
Stat. §§ 9586, 9607, 1 Fed. Stat. Anno.
2d ed. pp. 528, 761), § 23b was further
amended so as to confer jurisdiction
upon the courts of bankruptcy without
consent of the proposed defendant in
suits for the recovery of property under
§ 70e. The present suit, being of this
nature, might have been brought in the
district court; or [273] it might have
been brought in a state court having
concurrent jurisdiction under § 70e, as
amended.
We 6nd nothing in the provisions of
the Bankruptcy Act that makes it neces-
sary or reasonable to extend the author-
ity and jurisdiction of the referee be-
yond the ordinary administrative pro-
ceedings in bankruptcy and such con-
troversial matters as arise therein and
are in effect a part thereof, or to extend
the authority of the referee under the
general reference so as to include juris-
diction over an independent and plenary
suit such as the one under consideration.
The provisions of the act, as well as the
title of his office, indicate that the ref-
eree is to exercise powers not equal to or
co-ordinate with those of the court or
judge, but subordinate thereto; and he
becomes "the court" only by virtue of
the order of reference. In the General
Orders the word "proceedings" occurs
frequently, but never in a sense to in-
clude a plenary suit. On the other hand,
"proceedings in equity" and "proceed-
ings at law" are specially dealt with in
General Order XXXVII.
The practice is not uniform; we have
found no decision by a circuit court of
appeals upon the point; and the decisions
of the district courts are conflicting. A
referee's opinion in Re Murphy (1900)
3 Am. Baiikr. Rep. 499, 505, upholds his
jurisdiction over a plenary proceeding
by the trustee to set aside a preferential
transfer of property to. a creditor. In
Re Shults & Mark (referee's opinion) 11
Am. Bankr. Rep. 690, a special form of
reference having been adopted by the
district court, it was held that jurisdic-
tion was conferred upon the referee over
proceedings under § 60b to recover prop-
erty preferentially transferred, and un-
der § 67e to recover property fraudulent-
ly transferred. In Re Steuer (D. C.
64 U ed.
Mass.) 104 Fed. 976, 980, 3 N. B. N.
Rep. 226, a plenary suit to avoid a
preference was heard before the referee
without objection, and wpon petition to
review his action the district court, with
some hesitation, directed that a decree
issue "as if made originally by the judge,
and [274] not simply as an aflfirm-
ance of the decree of the referee."
In Re Scherber (D. C. Mass.) 131
Fed. 121, 124, it was found unnec-
essary to determine whether the ref-
eree could proceed over objection to *
take jurisdiction of a plenarj^ suit to
recover a preference. Views adverse to
the jurisdiction of the referee in an
independent proceeding to avoid a trans-
fer were expressed in Re Walsh Bros.
(D. C. Iowa) 163 Fed. 352; Re F. M.
& S. Q. Carlile (D. C. N. C.) 199 Fed.
612, 615, 616; Re Ballou (D. C. Kv.)
215 Fed. 810, 813, 814; and Re Over-
holzer (referee's opinion) 23 Am. Bankr.
Rep. 10.
The point appears to have been over-
looked in Studley v. Bovlston !Nat. Bank,
118 C. C. A. 435, 200 Fed. 249; 229 U.
S. 523, 525, 526, 57 L. ed. 1313, 1315,
1316, 33 Sup. Ct. Rep. 806. Other cases
cited throw no useful light upon the
question.
Reviewing the entire matter, we con-
clude that under the language of the
Bankruptcy Act and of the General Or-
ders in Bankruptcy a referee, by virtue
of a general reference under Order XII.
(1), has not jurisdiction over a plenary
suit in equity brought by the trustee
in bankruptcy against a third party to
set aside a fraudulent transfer or con-
ve^'ance under § 70e, and affecting prop-
erty not in the custody or control of the
court of bankruptcy.
Decree of the Circuit Court of Ap- .
peals reversed, and decree of the Dis-
trict Court affirmed.
[2751 UNITED STATES, Appt.,
V.
OMAHA TRIBE OF INDIANS. (No. 243.)
OMAHA TRIBE OF INDIANS, Appt.,
V.
UNITED STATES. (No. 244.)
(See S. C. Reporter's ed. 275-284.)
Claims — against United States — In-
dian claims.
1. No liability, legal or equitable, on
the part of the United States to pay the
value of horses belonging to Omaha In-
dians which were stolen in raids by the
901
SI PKEME COURT OF THE UNITED STATES.
Oct. TtMSi,
Sioux Indiaiih. cnn bt» a-.Nerted to arise un-
der the oblij^ation the United States as-
.sutned in the Treaty of March 16, 1864,
with the Omaha Indians, to protect them
from the Sioux and other hostile tribes
''as long as the President may deem such
protection necessary," . unless there was a
failure on the part of the government to
provide the protection deemed by the Presi-
dent to be necessary.
[For other cases, see Claims, I. b, in Digest
Sup. Ct. 1908.]
Claims — against United States — In-
dian claims.
2. Omaha Indians for whom the Unit-
ed States agreed, in the Treaty of March
fi, 1865, by which the Indians ceded lands
to the United States, to pay a specified
sum to be expended for ^oods, provisions,
cattle, horses, etc., for their benefit, are
entitled to an allowance of the value of
certain cattle delivered by the United
States in pursuance of this agreement
which the court of claims finds were in bad
condition when they reached the reserva-
tion, and thereafter died, the necessary im-
port of which finding is that the cattle
either were in bad condition when pur-
chased, or were badly cared for on the way
to the reservation, and in either event, the
fault lying with the agents of the United
States, the Indians are entitled to credit.
(For other cases, see Claims, I. b, In Digest
Sup. Ct. 1908.]
Appeal — from court of claims — scope
of review — findings of fact.
3. A finding of the court of claims
that an infirmary building constructed by
the government for Indians was not used
and was not such a building as was con-
templated by treaties with such Indians
means not tnat a building of this general
character was not contemplated, but that
the particular building was not what it
ought to have been, and not suitable for
the use of the Indians, and, so construed,
it is either a finding upon a mere question
of fact, or, at most, is a finding of mixed
fact and law, where the question of law is
•inseparable, and in either case the finding
i«f not reviewable by the Federal Supreme
Court on appeal.
[For other cases, see Appeal «ncl Error, VIII.
e; VIII. 1, 3, g. In f)Tge8t Sup. Ct. 1908.]
Claims — jurisdiction .— misappropria-
tion of Indian fnnds.
4. Expenditure by the United States
of Indian moneys for a building not used
hx the Indians, and one which, because of
ils unfitness, they were not obliged to ac-
<'ept, is a misappropriation of funds of the
Note. — On enforceability of rights of
Indians in courts of justice — see note
to Missouri P. R. Co. v. Cullers, 13
L.R.A. 542.
On rights and status of Indians — see
note to Worcester v. Georgia, 8 L. ed.
U. S. 484.
On construction and operation of
treaties — see note to United States v.
The Amistad, 10 L. ed. U. S. 826.
tribe "for purposes not 'for its materia)
benefit,*' within the meaning of the Act of
June 22, 1910, conferring upon the court
of claims jurisdiction to hear and deter-
mine claims which the Indians may hare
against the United States for such mb-
appropriations.
[For other cases, »ee Claims. 145-163, in Di-
gest Sap. Ct. 1908.1
iBdlans — tribal eefisions — passing of
title.
d. An intention to defer pasaing of
title until payment of consideration it
negatived, as to land north as well u
south of a described line, by the provisioBs
of the Treaty of March 16," 1854, with the
Omaha .Jndians, by which thev ceded in
prsesenti lands south of such Ime, with t
proviso that if, upon exploration, the coun-
try north of the Une did not ^roye to be a
satisfactory and suitable location for them,
the President might, with their consent, set
apart and assign to them a suitable re^i
dence, in which case all of the country be-
longing to them north of the line "shall be
and 18 hereby ceded to the United States
by the said Indians, they to receive the
same rate per acre for it, less the number
of acres assigned in lieu of it for a home,
as now paid for the land south of said
line," the consideration for the principal
cession to be paid in the future, and either
paid to the Indians direct or expended for
their use and benefit, from time to time,
in the discretion of the President, since by
fair construction the money that the In-
diana were to receive for the additional
cession of the land north of the line, in the
event of such cession taking effect, wa^
subject to the same terms as to payment,
at least to the extent that it was for the
President to determine, in his discretion,
whether it should be paid in cash to tbe
Indians, or expended for their benefit from
time to time.
[For other cases, see Indians, V. in Dige«t
Sup. Ct. 1908. J
Interest — on claims against tlie United
States.
6. Tiie provision of the Judicial Code.
§ 177, against t)ie allowance of interest
upon any claim against the United States
up to the time of the rendition of judg
ment thereon by the coiu-t of claims unlei^^
upon a contract expressly stipulating for
tne payment of interest, is applicable to the
unpaid consideration due to Indians under
a treaty which made a present cession of
their lands to the United States for a cod
sideration to be paid thereaft^, with no
mention made of interest.
(For other oases, see Interest, I. b, 8, In
Digest Sup. Ct. 190S.]
Interest — on claims agrainst the United
States.
7. Claims by Indians against the Unit-
ed States cannot be regarded as taken out
of the rule against the allowance of in-
tarest, prescribed by the Judicial Code.
§ 177, on the theory that because the Act
of June 22. 1910. conferring* jurisdiction
of such claims upon the court of claims.
call!4 for the consideration of equitable as
258 U. S.
1
1919.
tTNITEf) STATES v. o:\rAHA TRIBE OF INDIANS.
276, 277
well as leffal claims, the ordinary rule of
equity on^t to be followed as to tlie al-
lowance of interest.
[For otber cases, nee Interest, X. b, 3, in
Digest Sup. Ct. 1908.]
Claims — against tJnItecl States — In-
dian claims.
8. The United States was not obligated
te pay for Omaha Indiana killed in Sioux
raids by its agreement in the Treaty of
Maxch 16, 18^, to protect them from the
8ioux and other hostile tribes *^aB long as
the President may deem such protection
necessary," unless there was a failure by
the government to provide the protection
deemed by the President to be necessary.
(For other cases, see Claims, I. b. In Digest
Sup. Ct. 1908.]
Appeal — from ooart of claims — scope
of review.
9. The failure of the court of claims
to find certain facts in accordance with
claimants contention may not be assigned
as error on appeal to the Federal Supreme
Court, since U&e review by the latter court
is based upon the findings as made.
(For other cases, see Appeal nod Error, YIII.
e. in Digest Sup. Ct. 1953.]
[Nos. 243 and 244.]
Arsrued March 18, 1920. Decided June 1,
ijfeo.
f. ROSS APPEALS from the Court of
V>' Claims to review an award in favor
o: Indian claimants. Reversed in part
and afi&rmed in part.
See same case below, 53 Ct. CL 549.
The facts are stated in the opinion.
Mr. Oharles H. Merillat argued the
cause, and, with Messrs. Charles J.
Kappler and Hiram Chase, filed a brief
for the Omaha Tribe of Indians:
Interest should be allowed on the
land claim.
Himelv v. Rose, 5 Cranch, 313, 319, 3
L. ed. ill, 113; United States v. Mc-
Kee. 91 U. S. 442, 23 L. ed. 326; Cres-
cent Min. Co. V. Wasatch Min. Co. 151
U. 6. 317, 38 L. ed. 177, 14 Sup. Ct.
Rep. 348; Spalding v. Mason, 161 U. S.
375, 396, 40 L. ed. 738, 746, 16 Sup. Ct.
*Rep. 592; United States v. Old Settlers,
148 U. S. 427, 37 L. ed. 509, 13 Sup. Ct
Rep. 650; United States v. New York,
160 r. S. 598, 40 L. ed. 551, 16 Sup.
Ct. Rep. 402.
A trust, in its technical sense, is an
obligation on a *person, arising out of
the contidence reposed in him, to apply
property faithfully and according to
9rn»h confidence.
Weltn^r v. Thurmond, 17 Wyo. 268,
129 Am. St. Rep. 113, 98 Pac. 590, 99
Pac. 1128; Maxwell v. Wood, 133 Iowa,
721, 111 N. W. 203; First State Bank
V. Siblev County Bank. 96 Minn. 456,
«4 L. ed.
105. N. W. 485; Allen v. Rees, 136 Iowa,
423, 8 L.R.A.(N.S.) 1137, 110 N. W.
583.
The United States may be trustee;
and, while it cannot be sued without its
sovereign consent, that consent given
causes application of the general .prin-
ciples of law and equity.
Perry, Trusts, § 41.
Reimbursement for worthless, dying
cattle was allowable.
Chickasaw Nation v. United States,
22 Ct. CI. 250.
Assistant Attorney General Davis
argued the cause, and, with Mr. George
T. Stormont, filed a brief for the Unit-
ed States:
Assuming that the furnishing of pro-
tection was not disoretionary with the
I'resident, the government contends
that there was no liability on its part,
under the treaty, to respond in dam-
ages for the failure to protect the
Omahas. If there was no liability un-
der the treaty, the jurisdictional stat-
ute created none.
United States v. Mille Lac Band, 229
U. S. 498, 500, 57 L. ed. 1299, 1302, 33
Sup. Ct. Rep. 811.
Article 7 of the treaty, it is true, con-
tains a promise from the United States
to protect the Indians, but it is not a
promise at the same time to pay for
the damages which might result from
failure to protect.
Leighton v. United States, 161 U. S.
291, 40 L. ed. 703, 16 Sup. Ct. Rep. 495.
No interest could be allowed.
United States v. North Carolina, 136
U. S. 211, 216, 34 L. ed. 336, 338, 10
Sup. Ct. Rep. 920 ; Harvev v. United
States, 113 U. S. 243, 248, 1^ L. ed. 987,
988, 5 Sup. Ct. Rep. 465.
Mr. Justice Pitney delivered the opin-
ion of the court:
We have here an appeal and a cross
appeal from a judgment of the court of
claims in a suit Jirought under the Act of
Juns 22, 1910 (36 Stat, at L. 580, chap.
313), which conferred upon that court
jurisdiction to hear and determine "all
claims of whatsoever nature which the
Omaha Tribe of Indians may have or
claim to have against the United States
. . . under the treaty between the
United States and the said tribe of In-
dians, ratified and affirmed March six-
teenth, eighteen hundred and fifty-four
[10 Stat, at L. 1043] or under [277]
any other treaties or laws, or for
the misappropriation of any funds
of said tribe for purposes not for
903
277-279
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
its material benefit, or for failure
of the United States to pay said
tribe any money due;" with authority
to hear and determine all legal and
equitable claims of the tribe, and also
any legal or equitable defense, set-off,
or counterclaim, and to settle the rights,
both 'legal and equitable, of the parties,
notwithstanding lapse of time or stat-
utes of limitation.
The court of claims, after hearing the
case, made findings upon which it award-
ed judgment in favor of the Indians for
various sums aggregating $122,295.31.
53 Ct. CI. 549.
By article 1 of the Treaty of March
16, 1854 (10 Stat, at L. 1043), the Omaha
Indians ceded to the United States all
their lands west of the Missouri river
and south of a line drawn due west froip
a point stated, reserving the country
north of that line for their future home,
with a proviso that if this country
should not, on exploration, prove to be a
satisfactory and suitable location for
the Indians, the President might, with
their consent, set apart and assign to
them, within or outside of the ceded
country, a residence suited for and ac-
ceptable to them, not greater in extent
than 300,000 acres, in which case all of
the country belonging to said Indians
north of the line specified should be
ceded to the United States, and the In-
dians should receive the same rate per
acre for it, less the number of acres
assigned in lieu of it, as was agreed to
be paid for the lands south of the line.
By article 4, in consideration of and
pajment for the country thus ceded, and
certain relinquishments made by the In-
dians, the United States agreed to pay
to them certain sums of money aggre-
gating $840,000, in specified annual in-
stalments commencing on January 1,
1855; these sums to be paid to the
Omahas or expended for their use and
benefit under the direction of the Presi-
dent of the United States, who was
from time to time to determine at his
discretion what proportion of the annual
payments should be paid in money and
what proportion [278] applied to and
expended for the moral improvement
and education of the Indians; for
such beneficial objects as, in his judg-
ment, would be calculated to advance
them in civilization; for buildings,
opening farms, fencing, breaking land,
providing stock, etc.; and for medi-
cal purposes. By article 5, in order
to enable the Indians to settle their
affairs and to remove and subsist them-
selves for one vear at their new
904
home, arid for certain other e:Lpen^e>,
they were to receive from the Unite*:
States the further sum of $41,000, to
be paid out and expended under the
direction of the President and in such
manner as he should approve.
The court of claims found that the
Omahas were not satisfied with the couu-
trv to the north of the east-and-west
line mentioned, and duly elected to take
for their future home a tract of 300,000
acres south of the line; and this fact
being reported to the President, by his
direction a tract of 300,000 acres sonth
of the line was set apart for them. The
court found that the area of the land
north of the line belonging to the In-
dians was 783,365 acres, and that after
deducting from this the 300,000 acres
set apart for them in accordance with
the provisions of the treaty there was
an excess of 483,365 acres, for which
they had not been paid. The price for
this was fixed by taking the aggregate*
of the treaty payments ($881,0(]S) an*^!
dividing it by 4,500,000 acres, the area
of the lands south of the line ceded by
the Omahas to the United States, mak-
ing the treaty price 19.6 cents per acre.
at which rate the 483,365 acres for which
the Indians were still to be paid amonnt-
ed to $94,739.64. This was awarded to
them.
The court found that of the $41,000
specified in article 5, the government
expended $23,453.21 in carrying out the
provisions of that article, and the bal-
ance, $17,546.79, remained in the hands
of the Indian agents of the United
States charged with the disbursement
of the treaty funds, who were guilty of
defalcations of this and other moneys-
to the aggregate . amount of $18,202.10.
This was allowed.
[279] By the 7th article of the treaty
the United States agreed to protect the
Omahas from the Sioux and all other
hostile tribes as long as the President
might deem such protection necessary.
The court found that after the treaty
the Sioux made repeated attacks upon
the Omahas in the year of removal and
subsequent years ; that the United States
was called upon by the Omahas to pro-
tect them, and such protection was neces-
sar}' as soon as they removed to their
new home and for several years there-
after, but no protection was afforded
them by the United States. The Sioux
killed 22 Omahas and stole 152 horses,
the latter worth $30 per Head. The
court allowed $4,560 for the horses, but
made no allowance for the Indiana
killed.
25S U. 6.
1919.
UNITED STATES v. OMAHA TRIBE OF INDIANS.
270-281
Bv a treaty concluded March 6. 1865
<14*^Stat. at I^ 667), the United States
a^eed to pay the Omahas for the cession
of a part of their reservatioi\ the sum
of $50,000, to be expended "for goods,
provisions, cattle, horses," etc., for their
benefit. Pursuant to this, as the court
of claims found, 103 head of stock cattle
were delivered in the year 1867, for
which $3,432.99 was paid out of money
belonging to the Omahas. "These cattle,
when they reached the reservation, were
in bad condition and 50 of them died,"
of an average value of $33.33 per head,
the 50 being worth $1,666.50. This sum
was allowed.
Under article 4 of the Treaty of 1854,
and article 2 of the Treaty of 1865, cer-
tain moneys wefre to be or might be ex-
pended for the benefit of the Indians in
the way of improvements upon their
reservation, and in other ways. Under
these provisions, in the year 1875 an
infirmary was constructed upon the
Omaha and Winnebago consolidated
reservation. The court of claims found
that this building was not used, and was
not such a building as was contemplated
by the treaties with the Omahas; and
that of its cost, $3,127.08 was paid out
of money belonging to them. This sum
was allowed.
The principal reason for the govern-
ment's appeal lay in [280] the award
to the tribe of $94,739.54 for the excess
Innd north of the dividing line mentioned
in the treaty; it having been contended
in the court below that the tribe owned
none of that land. The court of claims
having found to the contrary, the gov-
eniment moved this court, after taking
appeal, for an order remanding the case,
with directions for further findings on
the question. This motion having been
overruled, as well as a counter motion
submitted by the claimant for a cer-
titication of the entire record to this
court, the government concedes that it
oannot contest the correctness of the
judgment upon this item.
As to the item of $4,560 allowed as
the value of horses killed by the Sioux
Indians, we conclude that the objection
of the government is well founded. The
obligation of the treaty was to protect
the Omahas from the Sioux and other
hostile tribes "as long as the President
may deem such protection necessary."
The obligation depended upon an exer-
cise of discretion by the President.
There is no finding of a failure to pro- j
vide any protection deemed by the Presi- 1
dent to be necessary; hence nothing tc
•4 L. ed.
create a liability, legal or equitable, un-
der the treaty clause.
The item of $18,202.19, allowed for
defalcations of the Indian agents, is not
disputed.
•The government contests the allow-
ance for the stock cattle upon the
ground that the fact that they were in
bad condition when they reached the
reservation is not sufficient to show that
they were in such condition when pur-
chased; it being suggested that their
defective condition upon reaching the
reservation may have been due to the
rigors and hardships of the drive from
the market 'to the reservation. We can-
not so interpret the finding; deeming its
necessary import to be that the .cattle
either were in bad condition when pur-
chased, or were badly cared for on the
way to the reservation. In either event
the fault lay with the agents of the
United States, and the Indians were
entitled to credit for the sum allowed
on this account.
[281] The allowance for the infirm-
ary is disputed upon the ground that
the tBeaties, fairly construed, gave
authority for expending moneys of
the Omahas for this purpose, especial-
ly the very general language of arti-
cle 4 of the Treaty of 1854, author-
izing the President to expend a part
of the fund "for such beneficial ob-
jects as, in his judgment, will be cal-
culated to advance them in civilization"
and "for medical purposes.'' We con-
strue the finding, "This building was not
used, and it was not such a building as
was contei"plated by the treaties," as
moaning not that a building of this gen-
eral character was not contemplated, but
that the particular building was not
what it ought to have been, and not
suitable for the use of the Indians. So
construed, it is either a finding upon a
mere question of fact, or at most a find-
ing of mixed fact and law where the
question of law is inseparable. In the
latter case, as in the former, the finding,
on familiar principles, is not reviewable.
Ross V. Dav, 232 U. S. 110, 116, 117, 58
L. ed. 52^530, 34 Sup. Ct. Rep. 233, and
cases cited. The fact that the building
was not used shows that the tribe did
not accept it, and received no benefit
from it. And since, because of its un-
fitness, they were not obliged to accept
it, the expenditure of their money in
its construction was a misappropriation
of funds of the tribe "for purix)ses not
for its material benefit," within the
meaning of the jurisdictional act. We
affirm the allowance of this item.
905
2S1-2S3
suphe:mj:: court of tue united states.
Oct. Itmu,
Upon the cross appeal, assignments of
error are based upon the disallowance of
interest. As to the $94,739.54 awarded
for the land north of the dividing line
in excess of 300,000 acres, it is con-
tended that payment of this considera-
tion was a concurrent condition of the
passing of title to the United States,
and as equity considers that as done
which ought to be done, the purchase
money was, potentially, in the Treasury
of the United States as a trust fund,
and ought to be treated as if invested
for the benefit of the Indians at 5 per
cent interest, under Rev, Stat. §§ 2095,
2096, [282] and 3659, Comp. Stat.
§§ 4073, 4074, 6667, 3. Fed. Stat.
Anno. 2d ed. p. 774, 8 Fed, Stat.
Anno.' 2d ed. p. 910; or, in the alter-
native, that the assumption by the
United States of title to the land
without compliance with the concur-
rent condition of payment to the In-
dians and its sale by the United States
to settlers was a breach of trust requir-
ing the United States t« account to the
Omahas for the minimum sale price of
$1.25 per acre. But the provisions of
articles 1 and 4 of the treaty show that
the theory that the passing of title was
conditioned upon the payment of the
consideration money, or any part of it,
is untenable; hence there was no such
trust as is asserted ; and the price of the
land was fixed by the treaty itself. By
article 1 there was a cession in prtesenti
of the land south of the described line,
with a proviso that if, upon exploration,
the country north of the line did not
prove to be a satisfactory and suitable
location for the Indians, the President
might, with their consent, set apart and
assign to them a suitable residence, in
which case all of the country belonging
to them north of the line '^ shall be and
is hereby ceded to the United States by
the said Indians, they to receive the
same rate per acre for it, less the num-
ber of acres assigned in lieu of it for a
home, as now paid for the land south
of said line." By article 4 the considera-
tion money for the principal cession was
to be paid in the future, and either paid
to the Indians direct or expended for
tlieir use and benefit from time to time,
in the discretion of the President; and
by fair construction, the money that the
Indians were to receive under article 1
for the additional cession of the land
north of the line, in the event of such
4*ession taking effect, was subject to the
same terms as to payment^ at leasst to
the extent that it was for the President
to determine in his discretion whether
• Of
it should be paid in cash to the Omabii>
or expended for their benefit "from tinitr
to time." Clearly, an intent to defer
passing of title until payment of con-
sideration is negatived; and this as truly
with respect to the land north of the
line as to that south of it. In both cases
there was [283] simply a present oe^-
sion, with a covenant for paymexit
of the consideration thereafter, no
mention being made of interest. Clear-
ly, the provision of § 177, Judicial
Code [36 Stat, at L. 1141, chap. 231,
Comp. Stat. § 1168, 5 Fed. Stat. Anno.
2d ed. p. 680], is applicable: ^No
interest shall be allowed on any claim
up to the time of the rendition of
judgment thereon by the court of
claims, unless upon a contract expressly
stipulating for the payment of interest^"'
It is contended, however, both as to
the award for the excess land and as lo
another claim allowed, that as the juris-
dictional act calls for the consideration
of equitable as well as legal claims, the
ordinary rule of equity ought to be fol-
lowed as to the allowance of interest
(Himely v. Rose, 5 Cranch, 313, 319. 3
L, ed. Ill, 113, being cited). But the ju-
risdictional act cannot be regarded a<
taking the case out of the usual rulf,
Tillson v. United States, 100 U. S. 43, 46,
25 L. ed. 543, 544; Harvey v. United
States, 113 U. S. 243, 249, 28 L. ed. 987,
989, 5 Sup. Ct. Rep. 465. Kor does
United States v. Old Settlers, 148 U. S.
427, 37 L. ed. 509, 13 Sup. Ct Rep. 654),
support the claim for interest; for there
the particular question was a subject of
difference in the negotiation that pre-
ceded the treaty; a clause of the treaiy
itself provided that it should be sub-
mitted to the Senate of the United States
for decision; the Senate allowed in-
terest; and its determination was ac-
cepted by the United States as . valid
and binding. This court held that tb«=^
decision of the Senate was eonrr«>ll!ng,
and that therefore interest must he ;-/-
lowed upon that part of the claim :.i
which it applied. See 148 U. S. 4'13,
449, 451, 452, 478.
The contention of claimant that :Ve
court of claims erred in not makinc ^
pecuniarv award for the members of t>-
Omaha Tribe killed by the Sioux <^
covered by what we have said to sfci»w
that there was error in making an itl-
Iowa nee for the horses stolen by .Le
Sioux; the same treaty provision goverij-
ing both claims.
Other assignments Are based upon ih/t
failure of the court to find certain facia
in accordance with claimant's comeniioii.
95S r. b«
1919.
PHILADKLPHIA' Jc READING K. CO. v. HANXXJCK.
283, 2S4
Thiese require no discussion, since our
review is based upon the findings as
made.
[284] The judgment will be reversed
as to the sum of $4,560 awarded for
horses killed by the Sioux Indians, and
in other respects af&rmed.
Reversed in part; affirmed in part. .
Mr. Justice McBeynolds took no part
in the consideration or decision of this
case.
I*HILADELPHIA & READIXO RAILWAY
COMPANY, Plff. in Err. and Petitioner,
V.
MARGARET L. HAXCOCK.
(S«e 8. 0. Reporter's ed. 284-296.)
Master and servant ~ employers* Ita-
bilUy — when employee is engaged in
interstate commerce ~ state Worlc-
men*8 Compensation Law.
A member of a train crew operating
a train of loaded coal cars from colliery
to freight yard, both within the state, is,
although his d\ities never took him outside
of the state, employed in interstate com*
merce within the meaning of the Federal
Employers' Liability Act so as to exclude
the operation of a state Workmen's Com*
pensation Law, where the ultimate destina-
tion of some of the cars was a point out-
side the state, as appears from instruc-
tion cards or memoranda deliveted to the
iX>nductor by the shipping clerk of the mine,
«fach of whicli referred to a particular car
by number, and contained certain code let*
ters indicating that such car with its load
would move beyond the state, the course
followed being to haul the' cars to the yard
and place them upon appropriate tracks,
when the duties oi the train crew ended;
Note. — On the constitutionality, ap-
plication, and effect of the Federal En>>
ployers' Liability Act— see notes to
Lamphere v.' Oregon R. & Nav.* Co. 47
L.R.A.(N.S.) 38; and Seaboard Air
Line R. Co. v. Horton, L.R.A.1915C, 47.
On Workmen's Compensation Stat-
utes— see notes to Rayner v. Sligh Fur-
niture Co. L.R,A.1916A, 23; Hunter v.
Colfax Consol. Coal Co. L.R.A.1917D,
51; and Linnane v. JEtna Brewing Co.
L.R.A.1917D, 80.
On limitation by Federal laws of the
application of Workmen's Compensa-
tion Statutes — see note to Staley v. Illi-
nois C. R. Co. L.R.A.1916A, 401.
On applicability of state Compensa-
tion* Statutes to non-negligent injuries
of railroad employees while engaged in
interstate commerce — see note to New
York C. R. Co. v. Winfield, L.R.A.
1918C, 460.
•4 L. ed.
then, having gathered them into a train,
to move them with another ci*ew some 10
miles to a place still within the state, where
they were inspected, weighed, and billed to
specifically designated consignees in anoth-
er state, passing in due time to their final
destinations over proper lines, freight
charges beiu|^ at through rates and paid tor
the entire distance, beginning at the mine.
CFor other rases, see Master and Servant, II. a,
2, b: Commerce, I. c, 2. In Digest Sup. Ct.
1918 Supp.J
[No. 415.]
Argued March 2, 1920. Decided June 1,
1920.
]N ERROR and ON WRIT of Certi-
orari to the Supreme Court of the
State of Pennsylvania to review a judg-
ment which, dismissing an appeal from
the Court of Common Pleas of Schuyl-
kill County, in that state, affirmed an
award of the state Workmen's Compen-
sation Board. Writ of error dismis.sed;
judgment reversed on writ of certiorari,
and case remanded for further proceed-
ings.
See same case below, 264 Pa. 220, 107
Atl. 735.
The facts are stated in the opinion.
Mr. George Gk)wen Parry argued the
cause and filed a brief for petitioner:
The claimant's decedent was engaged
in interstate commerce at the time of
the accident which caused his death.
Baer Bros, ^fercantile Co. v. Denver
& R. G. R. Co. 233 U. S. 479, 58 L. ed.
1055, 34 Sup. Ct. Rep. 641; Railroad
Commission v. Texas & P. R. Co. 229
U. S. 336, 57 L. ed. 1215, 33 Sup. Ct.
Rep. 837; Railroad Commission v.
Worthington, 225 U. S. 101, 56 L. ed.
1004, 32 Sup. Ct. Rep. 653; Texas *& N.
O. R. Co. V. Sabine Tram Co. 227 U. S.
Ill, 57 L. ed. 442, 33 Sup. Ct. Rep. 229.
Mr. Hannis Taylor argued the cause
and filed a brief for respondent:
The question on whidi the jurisdic-
tion depends is frivolous.
Pure Oil Co. v. Minnesota, 248 U. S.
158, 164, 63 L. ed. 180, 190, 39 Sup. Ct.
Rep. 35; Chicago, R. I. & P. R. Co. v.
Maucher, 248 U. S. 359, 63 L. ed. 294,
39 Sup. Ct. Rep. 108; Oelwerke Teu-
tonia V. Erlanger,' 248 U. S. 521, 524,
63 L. ed. 399, 401, 39 Sup. Ct. Rep. 180 ;
Southern P. Co. v. Arizona, 249 U. S.
472, 477, 63 L. ed. 713, 716, P.U.R.
1919D, 462, 39 Sup. Ct. Rep. 313; Unit-
ed States Fidelity & 0. Co. v. Okla-
homa, 2M) U. S. ill, 63 L. ed. 876, 39
Sup. Ct. Kep. 399; Northern P. R. Co.
V. North Dakota, 236 U. S. 585. 593, 59
L. ed. 735, 740, L.R.A.1917F, 1148,
907
•2S5-287
SU PltK-ME COUKT UK THE fXllED STATES.
Oct. Tebu,
P.U.R.1915C, 277, 35 Sup: Ct. Rep. 429,
Ann. Cas. 1916A, 1.
[285] Mr. Justice McBeynolds de-
livered the opinion of the court :
The judgment below affirmed an
a-ward for respondent under the Work-
men's Compensation Act of Pennsyl-
vania, granted because of the death of
her husband from an accident while in
the petitioner's employ as a trainman.
After a writ of error had been sued
out we allowed a writ of certiorari. The
former must be dismissed; the case is
properly here upon the latter.
If, when the accident occurred, th^
husband was employed in commerce be-
tween states, the challenged judgment
must be reversed. And he was so em-
ployed if any of the cars in his train
contained interstate freight. Employ-
ers' Liability Act, April 22, 1908, chap.
149, 35 Stat.' at L. 66, Comp. Stat. § 8657,
8 Fed. Stat. Anno. 2d ed. p. 1208; St.
Leuis, S. F. & T. R. Ck). v. Seale, 229 U.
S. 156, 161, 57 L. ed. 1129, 1134, 33 Sup.
Ct. Rep. 651, Ann. Cas. 1914C, 156; New
York C. & H. R, R. Co. v. Carr, 238 U. S.
260, 59 L. ed. 1298, 35 Sup. Ct. Rep. 780,
9 X. C. C. A. 1 ; New York C. R. Co. v.
Winlield, 244 U. S. 147, 61 L. ed. 1045,
L.R.A.1918C, 439, 37 Sup. Ct. Rep. 546,
Ann. Cas. 1917D, 1139, 14 N. C. C. A.
680 ; New York C. R. Co. v. Porter, 249
U. S. 168, 63 L. ed. 536, 39 Sup. Ct. Rep.
188; Southern P. Co. v. Industrial Acci.
Commission (Jan. 5, 1920) 251 U. S.
259, ante, 258, 10 A.L.R. 1181, 40 Sup.
Ct. Rep. 130.
The essential facts are not in contro-
versy; the nature of the employment,
therefore, is a question of law.
The duties of the deceased never took
him out of Pennsylvania; they ^related
solely to transporting coal from the
mines. When injured he belonged to a
crew operating a train of loaded em's
from Locust Gap Colliery to Locust
Summit Yard, 2 mUes away. The ul-
timate destination of some of these cars
was outside of Pennsylvania. This ap-
peared from instruction cards or mem-
oranda delivered to the conductor by
the shipping clerk at the mine. Each
of these referred to a particular car by
number, and contained certain code let-
ters indicating that such car with its
load would move beyond the state.
Pursuing the ordinary course, these
cars were hauled to [286] Locust Sum-
mit Yard and placed upon appropriate
tracks; there the duties of the first crew
in respect of them terminated. Later,
• OS
having^ gathered them into a train,
another crew moved them some 10 miles
to Shamokin Scales, where they were
inspected, weighed, and billed to spe-
cifically designated consignees in another
state. In due time they passed to their
final destinations over proper lines.
Freight charges at through rates were
assessed and paid for the entire dis-
tance, beginning at the mine.
Respondent maintains that the coal in
cars ticketed for transportation as above
described did not become part of inter-
state commerce until such cars reached
Shamokin Scales and were there
weighed and billed. But we think for-
mer opinions of this court require the
contrary conclusion. The coal was in
the course of transportation to another
state when the oars left the mine. There
was no intejmiption of the movement;
it always contmued towards points as
originally intended. The determining
circumstance is that the shipment was
but a step in the transportation of the
coal to real and ultimate destinations
in another, state. Coe v. Errol, 116 U. S.
517, 29 L. ed. 715, 6 Sup. Ct. Rep. 475 ;
Railroad Commission v. Worthington,
225 U. S. 101, 108, 56 L. ed. 1004, 1008,
32 Sup. Ct. Rep. 653; Texas & N. O. R.
Co. V. Sabine Tram Co. 227 U. S. Ill,
124, 126, 57 L. ed. 442, 448, 33 Sup. Ct.
Rep. 229 ^Railroad Commission v. Texas
& P. R. Co. 229 U. S. 336, 341, 57 L. ed.
1215, 1218, 33 Sup. Ct. Rep. 837; Baer
Bros. Mercantile Co. v. Denver & R. G.
R. Co. 233 U. S. 479, 58 L. ed. 1055, 34
Sup. Ct. Rep. 641.
The judgment of the court below is
reversed and the cause remanded for
further proceedings not inconsistent
with this opinion.
Mr. Justice Clarke dissents.
[2871 OHIO VALLEY WATER COM-
PANY, Plff. in Err.,
V.
BEX AVON BOROUGH, McKees Rocks
Borough, Avalon Borough, et al.
(•See S. C. Reporter'a ed. 287-299.)
Const itutionnl law — dne process of
law — rate regrnlatlon — Judicial re-
view.
Withholding from the courts power to
determine tlie question of confiscation ac-
m • ■ I ■ ■ . 11
Note. — As to what constitutes due
process of law. generally — see not^ to
People V. O'Brien, 2 L.R,A. 255; Kuntz
2SS U. S.
1919.
OHIO VALLEY WATER CO. v. BEX AVON BOROUGH.
curdiDg to their 'own independent judg-
ment, when the act of a state public serv-
ice commission in fixing the value of a
water company's property for rate-making
purposes comes to be considered on appeal,
as is done by tHe Pennsylvania Public Serr*
ice Ck>mpany Law of July 26, 1913, as con-
strued by the highest state court, must be
deemed to deny due process of law, in the
absence of a rulip^ by that court that the
remedy by injunction provided for by § 31
of that act affords adequate opportunity
for testing judicially an order of the com-
mission, alleged to be confiscatory.
[For other cases, see Constitutional 'Law, IV.
b, 7, c, in Digest 8ap. Ct. 190S.]
[No. 128.] .
Arcued October 15, 1919. Restored to
docket for reargument January 12, 1920.
Reargued March 5 and 8, 1920. Decided
June 1, 1920.
IN ERROR to the Supreme Court of
the State of Pennsylvania to review
a judgment which, reversing a deeree
of the Superior Court, reinstated a rate-
making order of the state Public Serv-
ice Commission. Reversed and remanded
for further proeeedingB..
See same case below, 260 Pa. 289,
P.U.R.1918D, 49, 103 Atl. 744.
The facta are stated in the opinion.
Messrs. WiUiam Watson Smith and
QeorgQ B. Gordon argued the cause,
and, with Mr. John G. Buchanan, filed
a brief on original argument:
That the Pennsylvania supreme court
oonsidered that the case presented a
mere legislative* or administrative ques-
tion (although the question of confisca-
tion was involved) is shown to a
demonstration by the decisions cited
and the language quoted therefrom in
support o£ its ruling.
Baltimore & 0. R. Co. v. Public Serv-
ice Commission, 66 Pa. Super. Ct. 403;
State V. Great Northern R. Co. 130
Minn. 67, P.U.R.1916D, 467, 163 N. W.
247, Ann. Cas. 1917B, 1201; Interstate
Commerce Commission v. Illinois C. R.
Co. 216 U. S. 452, 64 L. ed. 280, 30 Sup.
Ct. Rep. 166; Interstate Commerce
Commission v. Union P. R. Co. 222 U.
S. 541, 66 L. ed. 308, 32 Sup. Ct.- Rep.
108; People ex rel. New York & Q. Gas
Co. V. McCall, 246 U. S. 345, 62 L. ed.
337, P.U.R.1918A, 792, 38 Sup. Ct. Rep.
122.
Where only a part of the revenue is
affected, it is, except in rare cases, im-
possible to show, as a practical propo-
sition, that there has been confiscation;
whereas, where the entire revenue, or
the revenue from an entire branch of
the business, has been fixed, this diffi-
culty in offering the necessary proof of
confiscation disappears.
New York ex reL New York & Q. Gas
Co. V. McCall, supra; Norfolk & W. R.
Co. V. Conley, 236 U. S. 605, 69 L. ed.
746, P.U.R.1916C, 293, 36 Sup. Ct. Rep.
437; Northern P. R. Co. v. North Da-
kota, 236 U. S. 686, 699, 69 L. ed. 735,
743^ L.R.A.1917F, 1148; P.U.R.1915C,
277, 35 Sup. Ct. Rep. 429, Ann. Cas,
1916A, 1; Interstate Commerce Com-
mission V. Union P. R. Co.. 222 U. S.
541, 549, 66 L. ed. 308, 312, 32 Sup. Ct.
Rep. 108.
The water company has been denied
a judicial investigation of the question
as to the confiscation of its property.
Bellevue v. Ohio Valley Water Co.
245 Pa. 114, 91 Atl. 236; York Water
Co. V. York, 250 Pa. 118, 96 AtL 396 ;
St. Clair v. Tamaqua & P. Electric R.
Co. 259 Pa. 462, 5 A.L.R. 20, P.U.R.
1918D, 229, 103 Atl. 287.
The order of the Public Service Com-
mission in this case was a legislative
act.
Williams v. Bruffy, 96 U. S. 176, 24
L. ed. 716; Interstate Commerce Com-
mission v, Qincinnati, N. 0. & T. P. R.
Co. 167 U. S. 479, 499, 605, 42 L. ed.
243, 263, 266, 17 Sup. Ct. Rep. 896:
Steenerson v. Great Northern R. Co. 69
Minn. 363, 72 N. W. 713; Western U.
Teleg. Co. v. Myatt, 98 Fed. 336; San
Diego Land & Town Co. v. Jasper, 189
U. S. 439, 441, 47 L. ed. 892-894, 23
V. Sumption, 2 L.R.A. 655; Re Gannon^
6 L.R.A. 369; Ulman v. Baltimore, 11
L.R.A. 224; Gilman v. Tucker, 13
L.R.A. 304; Pearson v. Yewdall, 24 L.
ad. U. S. 436 : and Wilson v. North Caro-
lina, 42 L. ed. U. S. 866.
As to what constitutes the return of
a public service corporation for^ rate-
making purposes — see notes to Kansas
Citv Southern R. Co. v. United States,
52^LJt.A.(N.S.) 16; and Bellamy v.
Missouri & N* A. R. Co. L.R.A.1915A,
5.
64 I/, ed.
On fundamental principles of valua-
tion of public service property — see
note • to Oshkosh Waterworks Co. v.
Railroad Conmiission, L.R.A.1916F, 599.
On reasonableness of governmental
regulation of water rates — see note to
Knoxville v. Knoxville Water Co. 63
L. ed. U. S. 371.
On legislative power to fix tolls, rates,
or prices — see notes to Detroit v. De-
troit Citizens' Street R. Co. 46 L. ed.
U. S. 592; and Winchester & L. Tump.
Road Co. V. Croxton, 33 L.R.A. 181.
90»
SUPHKME COURT OF THE UNITED STATES.
Oct. Term.
Sup. Ct. Rep. 571; Prentis v. Atlantic
Coast line R. Co. 211 U. i^. 210, 53 L. ed.
150, 29 Sup. Ct. Rep. 67; Home Teleph.
& Teleg. Co. v. Los Angeles, 211 U. S.
265, 63 L. ed. 176, 29 Sup. Ct. Rep. 50;
Honolulu Rapid Transit & Land Co. v.
Hawaii, 211 U. S. 282, 290, 53 L. ed.
186, 188, 29 Sup. Ct. Rep. 55; Knox-
ville V. Knoxville Water Co. 212 U. S.
1, 8, 53 L. ed. 371, 378, 29 Sup. Ct. Rfep.
148; Oregon R. & Nav. Co. v. Camp-
bell, 173 Fed. 957; Grand Trunk West-
ern R. Co. V. Railroad Commission, 221
U. S. 400, 403, 55 L. ed. 786, 787, 31
Sup. Ct. Rep. 537; Bellevue v. Ohio
Valley Water Co. 245 Pa. 114, 91 Atl.
236; Lusk v. Atkinson, 268 Mo. 109,
186 S. W. 703; Arkadelphia Mill. Co. v.
St. Louis Southwestern R. Co. 249 U.
S. 134, 63 L.- ed. 517, P.U.R.1919C, 710,
39 Sup. Ct. Rep. 237; State ex rel. Mis-
souri, K. & T. R. Co. T. Public Service
Commission, 277 Mo. 175, P.U.R.1919D,
622, 210 S. W. 386; Lake Erie & W. R.
Co. V. State Public Utilities Commis-
sion, 249 U. S. 422, 424, 63 L. ed. 684,
f>S7, P.U.R.1919D, 459, 39 Sup. Ct. Rep.
345: Chicago & N. W. R. Co. v. Dey, 1
L.R.A. 744, 2 Inters. Com. Rep. 325, 35
Fed. 866; Chicago, M. & St. P. R. Co.
V. Minnesota, 134 U. S. 418, 459, 33 L.
ed. 970, 982, 3 Inters. Com. Rep. 209, 10
Sup. Ct. Rep. 462, 702: Rea^n v.
Farmer's Loan & T. Co. 154 U. S. 362,
.38 L. ed. 1014, 4 Inters. Com. Rep. 560,
14 Sup. Ct. Rep. 1047; Atlantic Coast
Line R. Co. v. North Carolina Corp.
Commission, 206 U. S. 1, 51 L. ed. 933,
27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398 ;
Saratoga Springs v. Saratoga Gas, E.
L. & P. Co. 191 N. Y. 123, 18 L.R.A.
(N.S.) 713, 83 N. E. 693, 14 Ann. Cas.
606: Railroad Commission v. Central of
(Georgia R. Co. 95 C. C. A. 117, 170 Fed.
225; Wilmington City R. Co. v. Taylor,
198 Fed. 159; Love v. Atchison, T. & S.
F. R. Co. 107 C. C. A. 403, 185 Fed.
321 ; Ross v. Oregon, 227 tJ. S. 150, 162,
163, 57 L. ed. 458, 463, 464, 33 Sup. Ct.
Rep. 220, Ann. Cas. 1914C, 224; Seward
V. Denver & R. G. R. Co. 17 N. M. 557,
46 L.R.A.(X.S.) 242, 131 Pac. 980: Pub-
Viv Service Gas Co. v. Public Utility
Comrs, 84 X. J. L. 463, 87 Atl. 651, 87
N. J. L. 581, L.R.A.1918A, 421, P.U.R.
1915E, 251, 92 Atl. 606, 94 Atl. 634, 95
Atl. i079; State ex rel. Railroad &
Warehouse Commissi ion v. Great North-
em R. Co. 123 Minn. 463, 144 N. W.
155; Louisville & N. R. Co. v. Garrett,
231 U. S. 298, 313, 314, 58 L. ed. 229,
242, 243, 34 Sup. Ct. Rep. 48; Bacon
v. Rutland R. Co. 232 U. S. 134, 137,
138, 58 L. ed. 538. 539, 34 Sup. Ct. Rep
910
I 283; Manufacturers' Light & Heat C^.
v. Ott, 215 Fed. 940; Wadley Southern
R. Co. V. Georgia, 235 U, S. 651, 660.
661, 59 L. ed. 405, 411, 412, P.U.R.
1915A, 106, 35 Sup. Ot. Rep. 214:
Northern P. R. Co. v. North Dakota.
236 U. S. 585, 599, 604, 69 L. ed- 735.
743, 745, L.R.A.1917F, 1148, P.U.R.
1915C, 277, 35 Sup. Ct.. Rep. 429, Ann.
Cas. 1916A, 1; State v. Great Northern
R. Co. 130 Minn. 57, P.U.R.1915D, 467,
153 N. W. 247, Ann. Cas. 1917B, 1201;
Public Service Commission v. Cleve-
land, C. C. & St. L. R. Co. -— Ind. — ,
P.U.R.1919B, 837, 121 N. E. 116.
The question as to confiscation of the
property of the plaintiff in error, under
the 14th Amendment, is a judicial ques-
tion, and could not be finally deter-
mined in this case by the Public Serv-
ice Commission.
Chicago & N. W. R. Co. v. Dey, 1
L.RA. 744, 2 Inters. Cool Rep. 325, 36
Fed. 866; Chicago, M. & St. P. R. Co.
V. Minnesota, 134 U. S. 418, 456-458. 33
L. ed. 970, 980, 981, 3 Inters. Com. Rep.
209, 10 Sup. Ct. Rep. 462, 702; Reagan
V. Farmers' Loan & T. Co. 154 U. S.
362, 397, 399, 38 L. ed. 101^ 1023. 4
Inters. Com. Rep. 560, 14 Sup. Ct. Rep-
1047; St. Louis & S. F. R. Co. v. Gill.
156 U. S. 649, 657, 658, 39 L. ed, 567.
670, 15 Sup. Ct. Kep. 484; Smvth v.
Ames, 169 U. S. 466, 526, 527, 42* K ed.
819, 842, 18 Sup. Ct. Rep. 418; West-
em U. Teleg. Co. v. Myatt, 98 Fed. 335;
Chicago, M. & St. P. R. Co. v. Tomp-
kins, 176 U. S. 167, 172, 173, 44 L. ed.
417, 420. 20 Sup. Ct. Rep. 336; Ex parte
Young, 209 U. S. 123, 144, 52 L. ed.
714, 722, 13 L.R.A.(N.S.) 932, 28 Sup.
Ct. Rep. 441, 14 Ann. Cas. 764; Oref^on
R. & Nav. Co. V. Campbell, 173 Fed.
957; Love v. Atchison, T. & S. F. B. Co.
107 C. C. A. 403, 185 Fed. 321: Sabre
V. Rutland R. Co. 86 Vt. 347, 85 AtL
693, Ann. Cas. 1915C, 1269; Seward v.
Denver & R. G. R. Co. 17 N. M. 557,
46 L.R.A.(N.S.) 242, 131 Pac. 980;
Louisville & N. R. Co. 'V. Garrett, 231
U. S. 298, 58 L. ed. 229, 34 Sup. Ct.
Rep. 48; Wadlev Southern R. Co. v.
Georgia. 235 U.' S. 661, 660, 661. 59
L. ed. 405, 411, P.U.R.1915A, 106. 35
Sup. Ct. Rep. 214: State v. Great
Northern R. Co. 130 Minn. 67, P.UJl.
1915D, 467, 163 N. W. 247. Ann. Ca.*.
1917B; 120i; Burlington, C. R. A N. R.
Co. V. Dey, 82 Iowa, 338, 12 L.R.A.
436, 3 Inters. Com. Rep. 584. 31 Am.
St. Rep. 477, 48 N. W. 98; Chicago A
G. T. R. Co. V. Wellman. 143 U. S. 339,
344, 36 L. ed. 176, 179, 12 Sup. Ct Rep.
400; Interstate Commerce CommiBsion
25S V. S,
JDi;^.
OHIO VALLEY WATER CO. v. BEX AVON BOROUGH.
V Brimsou, 154 LI. S. 447, 485, 38 L. ed.
1047, 1060, 4 Inters. Com. Rep. 545, 14
Sup. Ct." Rep. 1125; Covington & L.
Turnp. Road Co. v. Sandford, 164 U. S.
578. 592, 41 L. ed. 560, 565, 17 Sup. Ct.
Rep. 198; San Diego Land & Town Co.
V. National Citv, 174 U. S. 739, 754. 43
L. ed. 1164, 1160, 19 Sup. Ct. Rep. 804;
Atlantic Coast Line R. Co. v. Com. 102
Va, 621, 46 S. E. 911; Baltimore & 0.
R. Co. V. United States, 215 U. S. 481,
493, 54 L. ed. 292, 297, 30 Sup. Ct. Rep.
164; Interstate Commerce Commission
V. Chicago, R. L & P. R. Co. 218 U. S.
88, 110, 54 L. ed. 946, 957, 30 Sup. Ct.
Rep. 651; Procter & .0. Co. v. United
States, 225 U. S. 282, 297, 56 L. ed.
1091, 1096, 32 Sup. Ct. Rep. 761; Louis-
ville & X. R. Co. V. Railroad Comrs.
.(Louisville & N. R. Co. v. Burr) 63 Fla.
491, 44 L.R.A.(N.S.) 189, 58 So. 543;
Rowand v. Little Vermilion Special
Drainage Dist. 254 111. 543, 98 X. E.
969: State ex rel. Railroad & Ware-
house Commission v. Great Northern R.
Co. 123 Minn. 463, 144 N. W. 155; Ba-
con V. Rutland R. Co. 232 U. S. 134, 58
L. ed. 538, 34 Sup.. Ct. Rep. 283; Ply-
mouth Coal Co. V. Pennsvlvania, 232
U. S. 531, 58 L. ed. 713, 34 Sup. Ct.
Rep. 359; Pacific Live Stock Co. v.
Lewi^, 217 Fed. 95, 241 U. S. 440, 60
L. ed. 1084, 36 Sup. Ct. Rep. 637; Peo-
ple ex rel. New York & Q. Gas Co. v.
McCall, 219 N. Y. 84, P.U.R.1917A,
553, 113 N. E. 795, Ann. Cas. 1916E,
1042. 245 U. S. 345, 62 L. ed. 337,
P.U.R.1918A, 792, 38 Sup. Ct. Rep.
122; Detroit & M. R. Co. v. Fletcher
Paper Co. 248 U. S. 30-32, 63 L. ed.
107, 108, P.U.R.1919A, 787, 39 Sup. Ct.
Rep. 13; Public Service Commission v.
Cleveland, C. C. & St. L. R. Co. —
Ind. — , P.U.R.1919B, 837, 121 N. E.
116.
The interpretation of the Public
Service Company Law by the Pennsyl-
vania supreme court, requiring: the
superior court to sustain the order of
the Commission if there was any sub-
stantial evidence to support it, de-
prived the water company of its consti-
tutional right to a judicial review of
the Commission's action.
Bronson v. Kinzie, 1 How. 311, 316-
318, 11 L. ed. 143, 145, 146; State v.
Morrill, 16 Ark. 384; Edwards v. Kear-
zey, 96 U. S. 595, 600, 602, 24 L. ed.
•793, 796, 797; Louisiana v. New Or-
leans. 102 U. S. 203, 206, 207, 26 L. ed.
132, 133; Seibert v. Lewis (Seibert v.
United States) 122 U. S. 284, 295, 30
L. ed. 1161, 1165, 7 Sup. Ct. Rep. 1190;
Chicago, M. & St. P. R. Co. v. Min-
•4 L. ed.
nesota, 134 U. S. 418, 456, 457, 33 L. ed.
970, 980, 981, 3 Inters.' Com. Rep. 209,
10 Sup. Ct. Rep. 462, 702; McGahev v.
Virginia, 135 U. S. 662, 694^ 34 L.' ed.
304, 314, 10' Sup. Ct. Rep. 972 ; Reagan
V. Farmers' Loan & T. Co. 154 U. S.
362, 397, 38 L. ed. 1014, 1023, 4 Inters.
Com. Rep. 560, 14 Sup. Ct. Rep. 1047;
Smyth V. Ames, 169 U. S. 466, 527, 528,
42 L ed. 819, 843, 18 Sup. Ct. Rep. 418 ;
Western U. Teleg. Co. v. Myatt, 98 Fed.
335; San Jose Ranch Co. v. San Jose
Land & Water Co. 126 Cal. 325, 58 Pac.
824; Chicago, M. & St. P. R. Co. v.
Tompkins, 176 U. S. 167, 172, 179, 44
L. ed. 417, 420, 422, 20 Sup. Ct. Rep.
336; Ex parte Young, 209 U. S. 123,
147, 52 L. ed. 714, 723, 13 L.R.A.(N.S.)
932, 28 Sup. Ct. Rep. 441, 14 Ann. Cas.
764; Home Teleph. & Teleg. Co. v. Los
Angeles, 211 U. S. 265, 278, 53 L. ed.
176, 184, 29 Sup. Ct. Rep. 50; Com. v.
Emmers, 221 Pa. 298, 70 Atl. 762;
Washington ex rel. Oregon R. & Nav.
Co. V. Fairchild, 224 U. S. 510, 526, 527,
56 L. ed, 863, 866, 868, 32 Sup. Ct. Rep.
635; Wilmington City R. Co. v. Taylor,
198 Fed. 159; Seward v. Denver & R. G.
R. Co. 17 N. M. 583, 46 L.R.A.(N.S.)
242, 131 Pac. 980; Public Ser\'ice Gas
Co. V. Public Utility Conu^. 84 N. J. L.
463, 87 Atl. 651; Ormsby County v.
Kearney, 37 Nev. 314, 142 Pac. 803;
Wadlev Southern R. Co. v. Georgia, 235
U. S. 651, 661, 59 L. ed. 405, 411, P.U.R.
1915A, 106, 35 Sup. Ct. Rep. 214; Meek-
er V. Lehigh VaUev R, Co. 236 U. S. 412,
430, 59 L. ed. 644, 657, P.U.R.1915D,
1072, 35 Sup. Ct. Rep. 328, Ann. Cas.
1916B, 691; Chicago, B. & Q. R. Co. v.
Public Service Commission, 263 Mo. 333,
P.U,R.1916B, 367, .181 S. W. 61; Pacific
Live Stock Co. v. Lewis, 241 U. S. 440,
451, 452, 60 L, ed. 1084, 1097, 1098, 36
Sup. Ct. Rep. 637; Lusk v. Aikinson,
268 Mo. 109, 186 S. W.* 703; Oregon
Lumber Co. v. East Fork Irrig. Dist. 80
Or. 568, 157 Pac. 963; PnbUc Service
Couunission v. Cleveland, C. C. & St. L.
R. Co. — Ind. — , P.U.R.1919B, 837, 121
N. E. 116; Donham v. Public Service
Comrs. 232 Mass. 309, P.U.R.1919C, 880.
122 N. E. 397.
The case is not altered by the pos-
sibility of relief in the Federal courts.
Home Telepb. & Teleg. Co. v. Los
Angeles, 211 U. S. 265, 53 L. ed. 176, 29
Sup. Ct. Rep. 50; Virginia v. Rives, 100
U. S. 313, 25 L. ed. 667; Ex parte Vir-
ginia, 100 U. S. 339, 25 L. ed.'676, 3
Am. Crim. Rep. 547; Neal v. Delaware,
103 U. S. 370, 26 L. ed. 567; Robb v.
ConnoUv, 111 U. S. 624, 28 L. ed. 542,
4 Sup. Ct. Rep. 544; Scott v. McNeal.
91t
SUPREMJh; CX)URT OF THE tXlTED STATES.
Oct. Teirm,
154 U. S. 34, 38 L. ed. 896, U Sup. Ct.
Rep. 1108; Gibscm v. Mississippi, 162 U.
S. 565, 591, 40 L. ed. 1075, 1081, 16 Sup.
Ct. Rep. 904; Chicago, B. & Q. R. Co. v.
Chicago, 166 U. S. 226, 233, 234, 41
U ed. 979, 983, 984, 17 Sup. Ct. Rep.
581 ; Smyth v. Ames, 169 tJ. S. 466, 527,
528, 42 1m ed. 819, 842, 843, 18 Sup. Ct.
Rep. 418; San Diego Land & Town Co.
V. National City, 174 U. S. 739, 754, 43
L. ed. 1154, 1160, 19 Sup. Ct. Rep. 804;
Raymond v. Chicago Union Traction Co.
207 U. S. 20, 35, 36, 52 L. ed. 78, 87,
28 Sup. Ct. Rep. 7, 12 Ann. Cas. 757;
Ross V. Oregon, 227 U. S. 150, 152, 153,
57 L. ed. 458, 33 Sup. Ct. Rep. 220, Ann.
Cas. 1914C, 324; Home Teleph. & Tel^,
Co. V. Los Aneeles, 227 U. S. 278, 57
L. ed. 510, 33 Sup. Ct. Rep. 312.
The Pennsylvania supreme court
stands absolutely alone in its position in
this case. In a case involving the entire
revenue of a public service corporation
no court in this country has ever adopted
a similar view as to the powers of a
court reviewing an ordur of a commis-
sion. On the contrary, there is a great
weight of authority diametrically op-
posed to the decision of the Pennsylvania
supreme court
JSIeeker v. Lehigh Valley R. Co. 236 U.
'\ 41% 430, 59 L. ed. 644, 657, P.U.R.
1915D, 1072, 35 Sup. Ct. Rep. 328, Ann.
Cas. 1916B, 691 ; Murray v. Public Util-
ities Commission, 27 Idaho, 603, L.R.A.
1916F, 756, P.U.R.1915F, 436, 150 Pac.
47; Morgan's L. & T. R. & S. S. Co. v.
Railroad Commission, 127 La. 636, 53
So. 890; People ex rel. Hillel Lodge v.
Rose, 207 III. 352, 69 N. E, 762; Wash-
ington ex rel. Or^on R. & Nav. Co. v.
Fairchild, 224 U. S. 510, 56 L. ed. 863,
32 Sup. Ct. Rep. 535; Louisville & N. R.
Co. V. Railroad Commission (Louisville
& N. R. Co. V. Burr) 63 Fla. 491, 44
L.R.A.(N.S.) 189, 58 So. 543; State ex
rel. Railroad Comrs. v. Florida East
Coast R. Co. 69 Fla. 165, P.U.R.1915C,
207, 67 So. 906; Donham v. Public Serv-
^ ice Commission, 232 :Mass. 309, P.U.R.
1919C, 880, 122 N. E. 397; Grafton
Countv Electric Light & P. Co. v. State,
77 N.^ H. 490, 93 Atl. 1028, 78 K H.
330, P.U.R.1917E, 345, 100 Atl. 668;
Public Service Gas Co. v. Public Utility
Comre. 84 X. J. L. 463, 87 Atl. 651, JB7
N. J. L. 581, L.R.A.1918A, 421, P.U.R.
1915E, 251, 92 Atl. 606, 94 Atl. 634, 95
Atl. 1079; Public Service Gas Co. v.
Public Utilities Comrs. 242 U. S. 666, 61
L. ed. 552, 37 Sup. Ct. Rep. 243; Erie
R. Co. V. Public Utilitv Comrs. 85 l!^. J.
L. 420, 89 Atl. 1001; People ex rel.
Kings Countv Lighting Co. v. Willcox,
912
210 N. Y. 479, 51 L.R.A.(N.S.) 1, 1^'4
N. E. 911, 156 App. Div. 603, 141 N. \\
Supp. 677; Pioneer Teleph. & Teleg. Co.
V. Westenhaver, 29 Olda. 429, 38 L.R.A.
(N.S.) 1209, 118 Pac. 354; Western U.
Teleg. Co. v. State, 31 Okla. 415, 121
Pac. 1069; Atchison, T. & S. F. R. Co.
V. State, 23 Okla. 210, 21 L.R.A.(N.S.»
908, 100 Pac. 11.
Messrs. William Watson Smith and
John G. Buchanan argued the cause on
reargument.
IVIr. Berne H. Evans argued the caus^
and filed a brief for the Public Service
Commission of Pennsylvania:
In detennining the fair value, gross
and net annual return, and rate of re-
turn to which the company was entitled,
the Commission was performing a judi-
cial function.
Prentis v. Atlantic Coast Line R. Co,
211 U. S. 210, 53 L. ed. 150, 29 Sup. Ct.
Rep. 67; Interstate Commerce Commis-
sion V. Cincinnati, N. 0. & T. P. R, Co.
167 U. S. 479, 42 L. ed. 243, 17 Sup. Ct.
Rep. 896; Cincinnati, N. 0. & T. P. R.
Co. V. Interstate Commerce Commis-
sion, 162 U. S. 184, 40 L. ed. 935, 5
Inters. Com. Rep. 391, 16 Sup. Ct. Rep.
700; Brymer v. Butler Water Co. 179
Pa. 231, 36 L.RA. 260, 36 Atl. 249;
Turtle Creek v. Pennsylvania Water Co.
243 Pa. 401, 90 Atl. 194; Bellevue v.
Ohio Valley Water Co. 245 Pa. 114, 91
Atl. 236; St. Clair v. Tamaqua & P.
Electric R. Co. 259 Pa. 462, 5 A.L.R.
20, P.U.R.1918D, 229, 103 AtL 287;
New Brighton v. New Brighton Water
Co. 247 Pa. 232, 93 AtL 327; Baltimore
& 0. R. Co. V. Public Service Commis-
sion, 66 Pa. Super. Ct. 403; McCrady
Bros. Co. v. Pittsburgh & L. E. R. Co.
66 Pa. Super. Ct. 307.
The supreme court of Pennsylvania
has judicially reviewed the findings of
auditors and masters, conclusions of
fact by chancellors, verdicts by juries,
and awards by compensation boards;
but where it found a fact determined
after due process by those authorizotl
by law to make such determination, it
has refused to reverse the determina-
tion unless there was manifest error.
If the testimony is ample to sustain the
conclusion reached, the court will not
reverse.
Cauffman v. Long, 82 Pa. 72; Re
Keller's Private Road, 154 Pa. 547, 2p,
Atl. 814; Leonard v. Smith, 162 Pa.
284, 29 Atl. 915; Bugbee's Appeal, 110
Pa. 331, 1 Atl. 273; Barnes's Estate, 221
Pa. 399, 70 Atl. 790; McCarl -v. Hous-
ton. 263 Pa. 1, 106 Atl. 104.
«5S r. s.
2919.
OHIO VALLEV WATER CC>. v. BES AVOX BOjROLXill.
"iSS
The supreme eouvt of Pennsvlvnnia
reviewed the finding of fact judicially
in the manner approved by many deci-
sions.
New York ex rel. New York & Q- Gas
Co. V. McCaU, 245 U. S. 345, 62 L. ed.
337, P.U.R.1918A, 792, 38 Sup. Ct. Rep.
122, 219 N. Y. 84, P.U.RJ917A, 553,
113 N. E. 793, Ann. Cas. 1916E, 1042;
Interstate Commerce Commission v.
Union P. K Co. 222 U. S. 541, 5() L. ed.
308, 32 Sup. Ct. Rep. 108; Interstate
Commerce Commission v. Illinois C. R.
Co. 215 U. S. 452, 54 L. ed. 280, 30 Sup.
Ct Rep. 155; Atchison, T. & S. F. R.
Co. V. United States, 232 U. S. 199, 58
L. ed. 568, 34 Sup. Ct. Rep. 291; Inter-
state Commerce Commission v. Louis-
ville & N. R. Co. 227 U. S. 88, 57 L. ed.
431, 33 Sup. Ct. Rep. 183; Public Serv-
ice Commission v. Northern C. R. Co.
122 Md. 388, 90 Atl. 105; Minneapolis,
St. P. & S. Ste. M. R. Co. v. Railroad
Commission, 136 Wis. 146, 17 L.R.A.
(N.S.) 821, 116 N. W. 905; Grand Rap-
ids & I. R. Co. V. Michigan R. Commis-
sion, 108 Mich. 108, P.U.R.1915F, 805,
154 N. W. 16; State v. Great Northern
R. Co. 130 Minn. 57, P.U.R.1915D, 467,
153 N. W. 247, Ann. Cas. 1917B, 1201 ;
West Jersey & S. S. R. Co. v. Public
Utility Comrs. 87 N. J. L. 170, P.U.R.
1915D, 847, 94 Atl. 57; Turtle Creek v.
Pennsvlvania Water Co. 243 Pa. 401, 90
Atl. 194.
The determination of the fair value
of the plaintiflTs property was reached
by due process of law.
Reetz V. Michigan, 188 U. S. 507, 47
L. ed. 565, 23 Sup. Ct. Rep. 390 ; Church
V. Kelsey, 121 U. S. 282, 30 L. ed. 960,
7 Sup. Ct. Rep. 897; Drever v. Illinois,
187 U. S. 84, 47 L. ed. 85, 23 Sup. Ct.
Rep. 28, 15 Am. Crim. Rep. 253; A.
Backus Jr. & Sons v. Ft. Street Union
Depot Co. 169 U. S. 567, 42 L. ed. 858,
18 Sftp. Ct. Rep. 445; United States v.
Jones, 109 U. S. 513, 27 L. ed. 1015, 3
Sup. Ct. Rep. 346; Long Island Water
Supply Co. v. Brooklyn, 166 U. S. 685,
41 L. ed. 1165, 17 Sup. Ct. Rep. 718;
New York ex rel. New York & Q. Gas
Co. V. ^IcCall, 245 U. S. 345, 62 L. ed.
337, P.U.R.1918A. 792, 38 Sup. Ct. Rep.
122; Chicago, M. & St. P. R. Co. v.
Minnesota, 134 U. S. 418, 33 L. ed. 970,
3 Inters. Com. Rep. 209, 10 Sup. Ct.
Rep. 462, 702.
This court, on writ of error, will not
f'xaraine into the facts.
Waters Pierce Oil Co. v. Texas, 212
U. S. 86. 53 L. ed. 417, 29 Sup. Ct. Rep.
220: Quimbv v. Boyd, 128 U. S. 489,
32 L. ed. 502, 9 Sup. Ct. Rep. 147:
64 L. ed. .■>
Egan V. Hart, 165 U. S. 188, 41 L. ed.
680, 17 Sup. Ct. Rep. 300; Cedar Rap-
ids Gaslight Co, v. Cedar Rapids, 223 •
U. S. 655, 56 L. ed. 594, 32 Sup. Ct.
Rep. 389.
Mr. Leonard K. Gniler also argued
the cause, and, with ^Messrs. Albert G.
Liddell and David L. Starr, filed a brief
for defendants in error:
The plaintiff in error had a judicial
investigation of its case in the supreme
court of Pennsylvania.
Interstate Commerce Commission v.
Union P. R. Co. 222 U. S. 541, 56 L. ed.
308, 32 Sup. Ct. Rep. 108. '
This court will only enter upon such
an examination of the record as may be
necessary to determine whether the
Federal constitutional right claimed
has been denied, — whether there was
such a want of hearing or such arbi-
trary or capricious action on the part
of the Commission as to violate the due
process clause of the Constitution.
People ex rel. New York & Q. Gas Co.
V. McCall, 245 U. S. 345, 62 L. ed. 337,
P.U.R.1918A, 792, 38 Sup. Ct. Rep. 122.
[288] Mr. Justice McReynoIdfl deliv-
ered the opinion of the court:
Acting upon a complaint charging
plaintiff in error, a water company, with
demanding unreasonable rates, the Pub-
lic Service Commission of Pennsylvania
instituted an investigation and took evi-
dence. It found the fair value of the
company's property to be $924,744, and
ordered establishment of a new and low-
er schedule which would yield 7 per
centum thereon over and above operating
expenses and depreciation.
Claiming the Commission's valuation
was much too low and that the order
would deprive it of a reasonable return
and thereby confiscate its property, the
company appealed to the superior court.
The latter reviewed the certified record,
appraised the property at $1,324,621.80,
reversed the order, and remanded tlio
proceeding with directions to authorize
rates sufficient to yield 7 per centum of
such sum.
The supreme court of the state rc-
vei^sed the decree and reinstated the
order, saying: "The appeal [to the su-
perior court] presented for determinn-
tion the question whether the order
appealed from was reasonable and in
conformity with law; and in this inquiry
was involved the question of the fair
value, for rate-making purposes, of the
propertv of appellant, and the amount
8 ' • » 1 .1
28^-29 i
SUPREME COURT OF THE UXITED STATES.
Oct.
of revenue which appellant was entitled
to collect. In its decision upon the ap-
* peal, the superior court differed from the
Commission as to the proper valuation
to be placed upon several items going
to make up the fair value of the prop-
erty of the water company for rate-
making purposes." It considered those
items and held that, as there was com-
petent evidence tending to sustain, the
Commission's conclusion, and no abuse
of discretion appeared, the superior
court should not have interfered there-
with. "A careful examination of the
voluminous record in this case has led
us to the [289] conclusion that in the
Items wherein the superior court dif-
fered from the Commission upon the
question of values, there was merely the
substitution of the former^s judgment
for that of the Commission, in deter-
mining that the order of the latter was
unreasonable." [260 Pa. 289, P.U.R.
1918D, 49, 103 Atl. 744]
Looking at the entire opinion we are
compelled to conclude that the supreme
court interpreted the statute as with-
holding from the courts power to deter-
mine the question of confiscation accord-
ing to their own independent judgment
when the action of the Commission
comes to be considered on appeal.
The order here involved prescribed a
complete schedule of maximum future
rates and was legislative in character.
Prentis v. Atlantic Coast Line R. Co.
211 U. S, 210, 53 L. ed. 150, 29 Sup. Ct.
Rep. 67; Lake Erie & W, R. Co. v. State
Public Utilitv Commission, 249 U. S.
4-22, 424, 63 L. ed. 684, 687, P.U.R.1919D,
459, 39 Sup. Ct. Rep. 345. In all such
eases, if the owner claims confiscation
of his property will result, the state
must provide a fair opportunity for
submitting that issue to a judicial tri-
bunal for determination upon its own
iadependent judgment as to both law and
facts; otherwise the order is void be-
cause in conflict with the due process
clause, 14th Amendment. Missouri P.
R. Co. V. Tucker, 230 U. S. 340, 347, 57
L. ed. 1507, 1509, 33 Sup. Ct. Rep. 961;
Wadlev Southern R. Co. v. Georgia, 235
U; 8. '651, 660, 661, 59 L. ed. 405, 411,
P.U.R.1915A. 106, 35 Sup. Ct. Rep. 214;
Missouri v. Chicago, B. & Q. R. Co. 241
U. S. 533, 538, 60 L. ed. 1148, 1154, 36
Sup. Ct. Rep. 715; Oklahoma Operating
Co. V. Love (March 22, 1920) 252 U. S.
331, ante, 596, 40 Sup. Ct. Rep. 338.
Here the insistence is that, the Public'
Service Company Law, as construed and [
applied bv the supreme court, has de-
91 I *
prived plaintiff in error of the right to
be so heard; and this is true if the ap-
l^eal therein specifically provided is the
onl}^ clearly authorized proceeding where
the Commission's order may be chal-
lenged because confiscatory. Thus far
plaintiff in error has not succeeded in
obtaining the review for which the 14th
Amendment requires the state to pro-
vide.
[290] Article 6, PubUc Service Com-
pany Law of Pennsylvania:
"Section 31. No injunction shaU issue
modifying, suspending, stajing, or an-
nulling any order of .the Commission,
or of a commissioner, except upon notice
to the Commission and after cause
shown upon a hearing. The court of
common })leas of Dauphin county is
hereby clothed with exclusive jurisdic-
tion throughout the commonwealth of all
proceedings for such injunctions, subject
to an appeal to the supreme coiu*t, as
aforesaid. Whenever the Commission
shall make any rule, regulation, finding,
determination, or order under the pro-
visions of this act the same shaU be and
remain conclusive upon all parties af-
fected thereby, unless set aside, an-
nulled, or modified in an appeal or
proceeding taken as provided in this
act.'' [Laws 1913, p. 1429.] .
It is argued that this section makes
adequate provision for testing judicially
any order by the Commission when al-
leged to be confiscatory, and that plain-
tiff in error has failed to take advantage
of the opportunity so provided.
The supreme court of Pennsylvania
has not ruled upon effect or meaning of
§ 31, or expressed any view concerning
it. So far as counsel have been able to
discover, no relief against an order al-
leged to be confiscatory has been sought
under this section, although much lit-
igation has arisen under the act. It is
part of the article entitled, ^Tractice
and Procedure Before the Commisj>ion
and Upon Aw>eal." Certain opinions by
the supreme court seem to indicate that
all objections to the Commission's orders
must be determined upon appeal (St.
Clair V. Tamaqua & P. Electric R. Co.
259 Pa. 462, 5 A.L.R. 20, P.U.R.1918D,
229, 103 Atl. 287; Pittsburgh R. Co. v.
Pittsburgh. 260 Pa. 424, P.U.R.1918F,
301, 103 Atl. 959 K but they do not
definitely decide the point.
Taking into consideration the whole
act, statements by [291] the state su-
preme court concerning the general
plan of regulation, and admitted lo-
cal practice, we are tmable to say
253 r. s.
1M9.
OHIO VALUlV water CO. T. BEX A^ OX BOROUGH.
291-20:)
that § 31 offered an opportunity to
test the order so dear and definite
that plaintiff in error was obliged
to proceed thereunder or suffer loss
of rights guaranteed by the Federal
Constitution. On the contrary, after
specifying that within thirty days an
appeal may be taken to the superior
<»ourt (§ 17), the act provides (§ 22) :
"At the hearing of the appeal the said
rourt 3«thall, upon the record certified to
it by the Commission, determine wheth-
er or not the order appealed from is rea-
sonable and in conformity with law,'*
But for the opinion of the supreme court
in the present cause, this would seem to
empower thV superior court judicially to
hear and determine all objections to an
order on appeal, and to make its juris-
diction in respect thereto exclusive. Of
this the latter court apparently enter-
tained no doubt; and certainly counsel
did not fatally err by adopting that view,
whatever meaning finallv may be attrib-
uted to § 31.
Without doubt the duties of the courts
t^n appeals under the act are judicial
in character, — ^not legislative, as in Pren-
tis V. Atlantic Coast Line R. Co. supra.
This is not disputed; but their jurisdic-
tion, as ruled by the supreme court,
stopped short of what must be plainly
intrusted to some court in order that
there may be due process of law.
Plaintiff in error has not had proper
opportunity for an adequate judicial
hearing as to confiscation; and unless
such an opportunity is now available,
and can be defrnitely indicated by the
court below in the exercise of its power
finally to construe laws of the state (in-
cluding, of course, § 31), the challenged
order is invalid.
The judgment of the Supreme Court
of Pennsylvania must be reversed and
the cause remanded there, with instruc-
tions to take further action not incon-
sistent with this opinion.
Reversed.
[302] Mr. Justice Brandois, dissent-
ing:
The Public Service Commission of
Pennsylvania, acting upon complaint of
. Ben Avon borough and others, found,
after due notice and hearing, that in-
creased rates adopted by the Ohio Valley
Water Company were unreasonable: and
it prescribed a schedule of lower rates
which it estimated would yield 7 per cent
net upon the value of the property used
and useful in the service. The company
appealed to the superior court, contend-
«4 li. ed.
ing that the property had been under-
valued and that the Aites were, there-
fore, confiscatory, in violation of the
14th Amendment. That court, passing
upon the weight of the evidence intro-
duced before the Commission, found that
larger amounts should have been allowed
for several items which entered into the
valuation, reversed the order on that
ground, and directed the Commission to
reform its valuation accordingly,- and
upon such revised valuation to fix a
schedule of rates which would yield the
net return which it had found to be fair.
From the decision of the superior court
the Commission appealed to the supreme
court of the state, contending that the
superior oonrt had, in passing upon the
weight of the evidence, exceeded its
jurisdiction. The supreme court sus-
tained this contention; and holding, up-
on a careful review of the evidence and
of the opinions below, that the Commis-
sion had been justified in its findings by
"ample testimony" or "competent evi-
dence," and that they were not unrea-
sonable, reversed the decree of the su-
perior court and reinstated the order of
the Commission. 260 P-a. 289, P.U.R.
1918D, 49, 103 Atl. T-M. The case comes
here on writ of error under § 237 of the
Judicial Code, as amended, the company
claiming that its rights guaranteed by
the 14th Amendment have been violat-
ed: (1) because the Public Service
Company Law, as construed by the su-
preme court of the state, denies the
opportunity of a judicial review of the
Commission's [298] order: and (2)
that the order, which was reinstated by
the supreme court, confiscates its prop-
erty.
First: The Commission's order, al-
though entered in a proceeding com-
menced upon due notice, conducted
according to judicial practice, and par-
ticipated in throughout by the company,
was a legislative order; and, being such^
the company was entitled to a judicial
review. Prenti^ v. Atlantic Coast Line
R. Co. 211 U. S. 210, 228, 53 L. ed. 150.
159, 29 Sup. Ct. Rep. 67. The method
of review invoked by the company under
speeitic provi^^ions of the statute wa^
this: A stenographic report is made of
all the evidence introduced before the
Commission. On a record consisting of
such evidence, the opinion and the or-
ders, the case is appealed to the superior
court, which is given power, if it finds
that the order appealed from "is unrea«
sonable or based upon incompetent evi-
dence materiallv affecting the determina-
915
293-295
SUPREME COURT OF THE UNITED STATES.
QcT. Tebm,
tion of the Commission, or is otherwise
not in conformity with law," either to
reverse the order or to remand the rec-
ord to the Commission with direction to
reconsider the matter and make such
order ^ shall be reasonable and in con-
formity with law. No additional evi-
dence may be introduced in the superior
court; but it may remand the case to
the Commission, with directions to hear
newly discovered evidence, and upon the
record thus supplemented to enter such
order as may be reasonable and in con-
formity with law. From such new order
a like appeal lies to that court. Act of
July 26, 1913, No. 854, §§ 21-25, P. L.
1913, pp. 1427, 1428 ; Act of July 3, 1915,
No. 345, P. L. 1915, p. 779. The supreme
court construed this act as denying to
the superior court the power tq pass
upon the weight of evidence; and the
company contends that, for this reason,
the review had does not satisfy the con-
stitutional requirements of' a judicial re-
view.^
[294] Whether the appeal to the su-
perior court fails, for the reason
assigned or for some other reason,
to satisfy the constitutional require-
ments of a judicial review, we need
not determine; because the statute left
open to the company, besides this lim-
ited review, the right to resort in
the state courts, as well a^ in the
Federal court, to another and unre-
stricted remedy, — the one commonly
pursued when challenging the validity
of a legislative order of this nature, —
namely, a suit in equity to enjoin its
enforcement. See Louisville & N. R. Co.
v. Garrett, 231 U. S. 298, 311, 58 L. ed.
229, 241, 34 Sup. Ct. Rep. 48: Wadley
Southern R. CJo. v. Georgia, 235 U. S.
651, 661, 59 L. ed. 405, 411, P.U.R.1915A,
106, 35 Sup. Ct. Rep. 214. For § 31
(P. L. 1913, p. 1429) provides:
**No injunction shall issue modifying,
suspending, sta3ring or annulling any
order of the Commission, or of a com-
missioner, except upon notice to the
Commission and after cause shown upon
1 In Napa Valley Electric Co. v. Railway
Commissioners. 251 U. S. 366, ante, 202,
P.U.R.1920C, 849, 40 Sup. Ct. Rep. 176, this
court had before it in § 07 of the Public
Utilities Act of California a procedure sub-
stantially similar to that provided bv §§
21-25 of the Pennaylvania act set forth
above. The court strongly intimated, if it
did not decide, that, under the provisions
of the act, the mere denial of a petition to
the supreme court of the state for a writ
of certiorajri amounted to an adequate judi-
cial determination of the petitioner's rights.
016
a hearing. The court of common pleas?
of Dauphin county is hereby clothed
with exclusive jurisdiction throughout
the commonwealth of all proceedings for
such injunctions, subject to an appeal to
the supreme court as aforesaid. When-
ever the Commission shall make any role,
regulation, finding, determination, or or-
der, under the provisions of this act the
same shall be and remain conclusive up-
on all parties affected thereby, unless set
aside, annulled, or modified in an ap-
peal or proceeding taken as provided in
this act."
Resort to suit for injunction is maue
easy in rate controversies like the pres-
ent by § 41, p. 1432, in which it is pro-
vided that the penalties for failure to
obey the Commission's orders imposed
by §§ 35, 39, and 59, pp. 1430, 1431, shall
not apply to an order declaring a rate
unreasonable, if the tariff of rates ac-
tually' charged is filed [295] with the
Conmiission. The appeal provided for
in §§ 22-25 was, under the original act,
also to the court of common pleas, but
was changed to the superior court by
the act of July 3, 1915.
Xo decisions of the supreme court of
Pennsylvania construing § 31 of this
act have been brought to our attention.
The company contends, however, that the
construction here suggested has been in-
ferentially made untenable by dicta in
St. Clair v. Tamaqua & P. Electric
R. Co. 259 Pa. 462, 5 A,L.R. 20, P.U.R.
1918D, 229, 103 Atl. 287; Pittsburgh R.
Co. V. Pittsburgh, 260 Pa. 424, P.U.R.
1918F, 301, 103 Atl. 959; Klein-Loga::
Co. V. Duquesne Light Co. 261 Pa. 52i\
P.U.R.1919A, 524, 104 Atl. 763. But the
language relied upon was in each in-
stance used by the court in making the
point, not that the sole method of review
was by appeal, as distinguished from a
bill in equity, but that the function of
the courts was to review only after tbt
Commission had, in the first instanct^.
passed upon the case.
Where a state offers a litigant the
choice of two metliods of judicial re-
view, of which one is both appropriare
and unrestricted, the mere fact that tht^
other, which the litigant elects, is lim-
ited, does not amount to a denial of the
constitutional right to a judicial review.
The alternative or additional remedy in
the present case was, in effect, an ap-
peal on the law applicable to facts found
below. It is in substantial accord with
the practice* pursued in other appellate
courts and approved in Xew York ex reJ.
New York & Q. Gas Co. v. McCall, 245 F.
253 V. 6.
1919.
OHIO VAfiLEY WATER CO. v. BKN A^ ON BOROUGH.
295-207
^. 345, 62 L. ed. 337, P.U.R.1918A, 792,
3S Sup. Ct. Rep. 122. It is true, however,
that an additional or alternative remedy
may deny the const itntional right to due
process of law because of its nature or
the course of the proceeding. See Iowa
r. R. Co. V. Iowa, 160 U. S. 389, 40 L.
ed. 467, 16 Sup. Ct. Rep. 344. And it is
the contention of the plaintiff that be-
cause the supreme court did not weigh
the evidence, but reinstated the order of
the Commission on account of there be-
ing substantial evidence to support it,
the procedure was not a judicial review
and denied it due process of law. The
"iefendants, on the other hand, [296]
insist that the action of the sui>reme
court, in reinstating the order, found
not merely that there was substan-
tial evidence, but, upon a full re«
view, that there was ample evidence
to support the findings, and that the
.rder was reasonable. They contend
that the course pursued by the su-
;Teme court in makinjr such review
was that customarily followed in Penn-
sylvania, both by appellate courts on ap-
p'^als from chancellors and by trial
»*':»urts on exceptions to reports of audi-
^>rs, masters, or referees (Barnes's
Estate, 221 Pa. 399, 70 Atl. 790); and
they point out that the same method was
pursued on appeal to the supreme court
prior to the enactment of the Public
Service Company Law, at a time when
proceedings by consumers to secure re-
daction of water rates alleged to be
r.nreasonably high were brought in the
r airt of common pleas, subject to appeal
t-j the supreme court. Turtle Creek v.
Pennsvlvania Water Co. 243 Pa. 401, 90
Atl. 194.
The contention of neither party is, in
r.iy opinion, wholly coiTeet. Both over-
1 ^ok the nature of the question of law
which was under review by the supreme
court. It is tnie that there was no stat-
utory limitation upon the scope of its
review; but it does not follow either
that the supreme court weighed the evi-
dence and found that the preponderance
.supported the findings, or that, because
i: failed to weigh the evidence, there
was either a denial of due process or
even a mistake of law. The questions of
h\w before the supreme court were, first,
whether the superior court had jurisdic-
tion to weigh the evidence; second,
whether, in rendering its decision, it
weighed the evidence; and third, wheth-
er the valuation of the plain tiff ^s prop-
erty was so low that a rate based upon
i', would operate to deprive the plaintiff
«4 L. eel.
of property without due process of law,
— would confiscate its property. On each
of these questions the supreme court
found against the contentions of the
plaintiff. It held that the superior court
did not have revisory legislative powers,
but only the power to [297] review
questions of law, — ^in the present case,
whether there was evidence on which
the valuation adopted could reason-
ably have been foimd; and in so hold-
ing it acted upon the established prin-
ciple applied in reviewing the find-
ings of administrative boards, that
"courts wilk. not examine the facts
further than to determine whether
there was substantial evidence to sus-
tain the order." Interstate Commerce
Commission v. Union P. R. Co. 222
U. S. 541, 647, 648, 56 L. ed. 308, 311,
312, 32 Sup. Ct. Rep. 108. It, therefore,
reinstated the order of the Commission.
But it did not do so as an appellate
court, reviewing, on the weight of the
evidence, findings of fact made by the
superior court. It did so solely because
the only c|uestion before it was whether
there was substantial evidence to sup-
port the finding of value; for if the
valuation was legally arrived at, the
order was confessedly reasonable. Ibid. ;
San Diego Land & Town Co. v. Jasper,
189 U. S. 439, 441, 442, 47 L. ed. 892,
894, 895, 23 Sup. Ct. Rep. 671. The
presumption created by § 23, P. L., p.
1427, by which an order of the Commis-
sion is made prima facie evidence of its
reasonableness, is in no sense a limita-
tion upon the scope of the review. It is
in effect the presumption which this
oourt has declared to exist in rate cases,
independently of statute, in favor of the
conclusion of an experienced adminis-
strative body, reached after a full
hearing. Darnell v. Edwards, 244 U. S.
564, 569, 61 L. ed. 1317, 1321, P.U.R.
1917F, 64, 37 Sup. Ct. Rep. 701.
Second: As the company had the
opportunity for a full judicial review
through a suit in equity for an injunc-
tion, as it was not denied due process
by disregard in the proceedings actually
taken of the essentials of judicial proc-
ess, and since it is clear that the findings
of the Commission were supported by
substantial evidence, the judgment of
the supreme court of Pennsylvania must
be af&rmed, unless, as contended, the
claim of confiscation compels this court
to decide, upon the weight of the evi-
dence, whether or not its property has
been undervalued, or unless some error
in law is shown.
917
2U8, 299
SUPUOIK COtRX OF THE UNITED STATE&
Oct. Tbbm^
[2©8] Tke case is here on writ of er-
ror to a state court. It is settled that in
such cases we accept the facts as there
ioundy not only in actions at law (Dow-
er V. Richards, 151 U. S. 658, 38 L. ed.
305, 14 Sup. Ct. Rep. 452, 17 3£or.
Min. Rep. 704), but also, where, as
in chancery, the record contains all
the evidence, and it was open for
consideration by, and actually j^assed
upon by, the highest court of the
state (Eagan v. Hart, 165 U. S. 188,
41 L. ed. 680, 17 Sup. Ct. Rep. 300;
Waters-Pierce Oil Co. v. Texas, 212
U. S. 86, 107, 53 L. ed. 417, 29 Sup. Ct.
Rep. 220). And this is true, although
the existence of a Federal question de-
pends upon the determination of the
issue of fact, and although the finding of
fact will determine whether or not there
has been a taking of property in viola-
tion of the 14th Amendment. Minneap-
olis & St. L. R. Co. V. Minner^ota, 103 U.
S. 53, 65, 48- L. ed. 614, 619, 24 Sup. Ct.
Rep. 396. This court may, uL' course,
upon writ of error to a state court, **ex-
amine the entire record, including the
evidence, ... to determine whether
what purports to be a finding upon ques-
tions of fact is* so involved with and
depeiident upon such questions" of Fed-
eral law as to be really a decision of the
latter. Kansas City Southern R. Co. v.
C. H. Albers Commission Co. 223 U. S.
573, 591-593, 56 L. ed. 556, 5^5-567, 32
Sup, Ct. Rep. 316; Cedar Rapids Gas-
light Co. V. Cedar Rapids, 223 U. S. 655,
658, 56 L. ed. 594, 32 Sup. Ct. Hep. 389;
Graham v. Gill, 223 U. S. 643, 645, 56
\m ed. 586, 588, 32 Sup. Vt. Rep. 396. But
in order that such examination may be
required or be permissible, its purpose
must not be to pass upon the relative
weight of conflicting e%ndence (^Vash-
ington ex rel. Oregon R. & Kav. Co. v.
Fairchild, 224 U. S. 510, 528, 56 L. ed.
863, 869, 32 Sup. Ct. Rep. 535), and to
substitute the judgment therein of this
court for that of the lower court; but
to ascertain whether a finding was un-
supported by evidence, or whether evi-
dence was pro|>erly admitted or excluded,
or whether in some other way a ruling
was involved which is within the appel-
late jurisdiction of this court (Xorthern
P. K. Co. v. North Dakota, 236 U. S. 585,
593, 59 L. ed. 735, 740, I^R.A.1917F,
1148, P.U.R.1915C, 277, 35 Sup. Ct. Rep.
429, Ann. Cas. 1916A, 1; Xoi-folk & W.
R. Co, V. Conley, 236 U. S. 005, 59 L. ed.
745, P.U.R.1915(:, 203, 35 Sup. Ct, Rep.
437).
918
Here, it is clear, there was substantial
evidence to support the findings of x^e
Commission; and no adequate reason is
shown for declining to accept as conclu-
sive the [299J facts found by the srate
tribunals. See Portland R. Light ^ P.
Co. V. ^ilroad Commission, 229 U. S.
397, 57 L. ed. 1248, 33 Sup. Ct. Rep. 820 ;
Miedreich v. Lauenstein, 232 U. S. 236,.
58 L. ed. 584, 34 Sup. Ct Rep. 309. The
rates are predicated on the company's
earning 7 per cent net on the value of
its property used and useful in the serv-
ice, after deducting from the income all
expenses and charges for depreciation.
It is conceded that 7 per cent is a fair
return upon the investment, and it is
not contended that any erroneous rule
has been applied in ascertaining the ex-
penses of operation or the depreciation
charges. The claim that the rates are
confiscatory rested wholly on the con-
tention that the property was under-
valued; and on that question the
contention is that the court failed to
give due weight "to the evidence adduced
by the company, and that the processes
by which the Commission arrived at the
value it fixed difi^ered from that often
pursued by courts and administrative
bodies. To this 'the supreme court of
Pennsylvania said: "The ascertainment
of the fair value of the property, lor
rate-making purposes, is not a matter of
formulas, but it is a matter which calls
for the exercise of a sound and reason-
able judgment upon a proper considera-
tion of aU relevant facts." [260 Pa. 308,
P.U.R.1918D, 49, 103 Atl. 744.] The
objections to the valuation made by the
company raise no tjuestion of law, but
concern pure matters of fact; and the
finding of the (Commission, affirmed by
the highest court of the state, is conclu-
sive upon this court. The case at bar
is wholly unlike (Ireat Northern R. Co.
v. Minnesota, 238 U. S. 340, 59 L. ed.
1337, P.U.R.1915D, 701, 35 Sup. Ct. Rep.
753, and Union P. R. Co. v. Public Scr\ -
ice Commission, 248 U. S. 67, 63 L. ed.
131, P.U.R.1019B, 315, 39 Sup. Ct. Rep.
24, where this court reversed the judg-
ments as matter of law upon the facis
found by the Commission.
In my opinion the judgment of the
Supreme Court of Pennsylvania shouid
he affirmed.
Mr. Justice Holmes and Mr. Ju-ti<^**
Clarke concur in this dissent.
2.%3 r. 8.
1919.
^lATTER OF WALTER PETERSON.
300
[3001 IN THE 3JATTER OF WALTER
PETERSON, as Receiver of the Inter-
**tate Coal Company, Inc., Petitioner.
• (See 8. 0. Reporter's ed. 300-319.)
Mandamus ^ prolilbition — other
remedy.
1. The Federal Supreme Court has ju-
risdiction of a petition for writs of manda-
mus or prohibition directed to a district
«.'Ourt judge, by which relief is sought
against the^ appointment of an auditor to
make a preliminary investigation as to the
facts, hear the evidence, and report his
findings, with a view to simplifying the is-
ftues lor the jury, where the petitioner as-
serts that, by the appointment of such au-
ditor and proceedings thereunder, his con-
ntitutional right to trial by jury would be
V iolated.
[For otber cases, see Mandamas, II. b; Pro-
hibition. II. in Digest Sup. Ct. 190S.1
Jnry — right to jury trial — appoint-
ment of auditor.
2. The coustitutional right to trial by
jury is not infringed by the compulsory ap-
pointment of an auditor, in an action at law
involving lone accounts with many disputed
items, to make a preliminary investigation
as to the facts, hear the evidence, and re-
port his findings, with a view to simplify-
ing the issues for the jury, where the or-
der of appointment, though directing the
auditor to form and express an opinion up-
on facts and items in dispute, declares that
Up shall not finally determine any of the
issues, and that the final determination of
all issues of fact is to be made by the jury
Ht the trial.
(For oth<»r cases, see Jury, I. d, 1, in Digest
»up, Ct. 1908.]
Reference •— > potver of court ^ action
at law — appointment of auditor.
3. A compulsory reference to an au-
4iitor to simplify and clarify the issues, in
an action at law involving long accounts
with many disputed iteins, and to make ten-
tative findings of fact, is within the in-
herent power of a Federal district court as
a trial court.
I For other ^ca»«»s. see R«^ference, II. iu Digest
Sup. Ct. 1908.1
Costs ^ of reference to auditor — ap-
portionment between parties.
4. While * the compensation of auditor
and «Jtenographer, in a reference of an ac-
tion at law involving complicated issues ot
fact to such auditor to simplify and clarify
tlie issues and make tentative findings of
fact, may be taxed as costs, in the absence
of any statute. Federal or state, or rule of
court to the contrary, such costs must, in
view of U. S. Rev, Stat. § 983, be UXed
to the prevailing party, and may not be
taxed in whole or m part against the pre-
vailing party, in the discretion of the trial
court.
[For other cases, see Costs, I. a ; I. b. In Digest
Sup. Ct. 1908.3
Mandamas — pi*ohibition ^ other reme-
dies.
5. Error in providing, in an order for
the appointment of an auditor in an action
at law, that the expense be paid by one
or both of the parties, in accordance with
the discretion of the trial court, doe«^ not* re-
quire that the extraordinary remedies of
roan(]amus or prohibition l>c granted, but,
if petitioner deems himt^eJf prejudicetl«by
the error, he may seek redress through ap-
plication to the district court for a modifi-
cation of the order, or, after final judgment,
by wTit of error from the circuit court of
appeals.
[For other oases, 8*h» Maudamus, II. b; Pro-
hibition, II. In DigoHt Sup. Ct. 1908.1
[No. 28, Original.]
' Argued March 15, 1920. Decided June 1,
1920.
Oy PETITION for Writ of Manda-
mus and/or Writ of Prohibition di-
rected to the judge of the District Court
of the United States for the Southern
District of New York by which relief
was sought against the appointment of
an auditor in an action at Jaw, to simpli-
fy and clarify the issues and make tenta-
tive findings of fact. Denied.
The facts are stated in the opinion.
Mr. Abram J. Bose aro;ued the cause,
I and, with Mr. Anthony L. Williams,
' filed a brief for petitioner:
I The order appointing the auditor is
' in direct conflict with the 7th Amend-
ment to the Constitution and the Acts
, of Congress regulating trials of actions
Note. — As to when mandamus is the
proper remedy, generally — see notes to
United Slates ex rel. International Con-
tracting Co. V. Turnout, 39 L. ed. U, S.
1()0; M'Cluny v. Silliman, 4 L. ed. U. S.
263; Fleming v. Guthrie, 3 L.R.A. 54;
Burnsville Tump. Co, v. State, 3 L.R.A.
265) State ex rel. Charleston, C. & C. R.
To. V. Whitesides, 3 L.R.A. 777; and
Ex parte Hum, 13 L.R.A 120.
As to constitutional right of trial by
iurv — see notes to Thompson v. Utah,
'42 L.. ed. U. S. 1061 ; Perego v. Dodge,
64 Jj. od.
41 L. ed. U. S. 113 J Gulf, C. & S. T. R.
Co. V.' Shane, 39 L. ed. U. S. 727; and
Justices of Supreme Ct. v. United
States, 19 L. ed. U. S. G58.
On denial of jury trial simply be-
eaBse matters in issue are complicated
— see note to Dale^' v. Kennett, 39
LJ{.A.(N.S.) 46.
On constitutionality of compulsory
reference in actions at law — see notes
to Russell V. Alt, 13 L.R.A.(X.S.) 146;
and Steek v. Colorado Fuel & Iron Co.
26 I>.R.A. 67.
919
SUPBEME COURT OF THE UNITED STATES.
Oct. Tebm.
at law in the Federal courts, and is
altouotber without power and void.
Hodges V. Easton, 106 U. S. 408, 27
L. ed. 169, 1 Sup. Ct. Rep. 307; Baylis
V. Travellers Inn. Co. 113 U. S. 316, 28
L. ed. 989, 5 Sup. Ct. Rep. 494; Capital
Traction Co. v. Hof, 174 U. S. 1, 43
L. ed. 873, 19 Sup. Ct. Rep. 580; Howe
Mach. Co. V. Edwards, 15 Blatchf. 402,
Fed. Cas. No. 6,784; Sulzer v. Watson,
39 Fed. 414; Swift & Co. v. Jones, 76
C. C. A. 253, 145 Fed. 489; Ex parte
Fisk, 113 U. S. 713, 28 L. ed. 1117, 5
Sap, Ct. Kep. 724.
The whole line of cases cited and
relied"" upon by the court below, with
the exception of one (Davis v. St.
Loiiis & S. F. R. Co. 25 Fed. 786), rests
upon the decision by the circuit court
of appeals for the first circuit in Fenno
V. Primrose, 56 C. C, A. 313, 119 Fed.
SOI, sitting in a state where it is the
usual and common practice to appoint
an auditor to hear the evidence and
make a report thereon prior to the
trial, and which decision, we submit, is
in direct conflict with the 7th Amend-
ment to the Constitution of the United
'States and the acts of Congress reg-
ulating jury trials in actions at law,
and should be di.sapproved and over-
ruled.
St. Anthony v. Houlihan, 106 C. C.
A. 394, 184 Fed. 252; Craven v. ClsLvky
186 Fed. 959; Vermeule v. Reilly, 196
Fed. 226; United States use of Brad-
ing-Marshal Lumber Co, v. Wells, 203
Fed. 146.
A writ of mandamus or of prohibi-
tion is the proper remedy.
Re Simons, 247 U. S. 231, 62 L. ed.
1094, 38 Sup. Ct. Rep. 497; McClellan
v. Carland, 217 U. S. 268, 54 L. ed. 762,
30 Sup. Ct. Rep. 501; Virginia v. Rives,
100 U. S. 313, 25 L. ed. 667, 3 Am.
Crim. Rep. 524; Ex parte Metropolitan
Water Co. 220 U. S. 539, 55 L, ed. 575,
31 Sup. Ct. Rep. 600; Virginia v. Paul,
148 U. S. 107, 37 L. ed. 386, 13 Sup. Ct.
Rep. 536.
Mr. Cteorge Zal^riskie argued the
cause and filed a brief for respondent:
As the action is pendinir in the dis-
trict court, and is not within the orig-
inal jurisdiction of this court, the in-
quiry is narrowed to the question
whether the writs are necessarv for the
exercise of its appellate jurisdiction.
Marburv v. Madison, 1 Cranch, 137,
2 K ed. 60.
Where no appeal is pending, the pow-
er of this court to issue a writ of man-
damn^ in aid of its appellate jurisdic-
tion appears to be confined to cn«es
where such jurisdiction might other-
wise be defeated by the unauthorized
action of the court below.
McClellan v. Carland, 217 U. S. 268,
54 L. ed. 762, 30 Sup. Ct. Rep. 501.
Neither mandamus nor prohibition
can be employed as a substitute for
error; which is the ease here.
Re Pollitz, 206 U. S. 323, 51 L. ed.
1081, 27 Sup. Ct. Rep. 729; Re Atlan-
tic City R. Co. 164 U, S. 633, 41 L, ed.
579, 17 Sup, Ct. Rep. 208;' Ex parte
Gordon, 2 Hill, 363.
It is not disputed that the district
court has jurisdiction of the parties
and of their controversy. If the court
belcrw has jurisdiction to determine the
question presented, mandamus will not
lie.
Re Gruetter, 217 U. S. 586, 54 L. ed.
892, 30 Sup. Ct. Rep. 690; Ex parte
Harding, 219 U. S. 363, 55 L. ed. 252,
37 L.R.A.(N.S.) 392, 31 Sup. Ct. Re|».
324.
Nevertheless, this court may review
an extraordinary abuse of discretion
where there is no other remedy (Vir-
ginia V. Rives, 100 U. S. 313, 25 L. ed.
667, 3 Am. Crim. Rep. 524; Virginia v.
Paul, 148 U. S. 107, 37 L. ed. 386, 13
Sup. Ct. Rep. 536), or where the par-
ties or the subject-matter are clearly
not within the jurisdiction of the in-
ferior court (Ex parte Wisner, 203 U.
S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep.
150; Re Winn, 213 U. S. 458, 53 L. ed.
873, 29 Sup. Ct. Rep. 515).
The plaintiff has an adequate remedy
if, in the end, he deem himself ag-
grieved by the judgment which may be
rendered after a trial of the facts by a
jury.
Re Garrosi, 143 C. C. A. 483, 229
Fed. 363.
The meaning of the constitutional
guaranty is, that the 7th Amendment
does not attempt to regulate matters of
pleading or practice, or to determine in
what way issues of fact are to be sub-
mitted to a jury; and its aim is to pre-
serve, not mere matters of form or pro-
cedure, but matters of substance and
right.
Walker v. New Mexico & S. P. R. Co.
165 U. S. 593, 596, 41 L. ed. 837, 841,
17 Sup. Ct. Rep. 421, 1 Am. Neg. Rep.
768: Capital Traction Co. v. Hof, 174
U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep.
580.
The order is justified by its approx-
imation to the New York practice.
Indianapolis & St. L. R. Co. v. Horst^
93 U. S. 291, 301, 23 L. ed. 898, 901, 7
Am. Neg. Cas. 331; Welsh v. Darragh,
258 U. S.
1919.
MATTER OF WALTER PETERSON.
303-305
52 N. y. 590; Sage v. Shepard & U.
Lumber Co. 76 Hun, 134, 27 N. Y. Supp.
559; Cochrane Carpet Co. v. Howells,
86 Hun, 243, 33 N. Y. Supp. 1126; Ells-
worth Collieries Co. v. Pennsylvania B.
Co. 94 Misc. 659, 159 N. Y. Supp. 1020;
Vega Co-op. Creamery Asso. v. Craft,
180 App. Div. 267, 167 N. Y. Supp. 481 ;
Irving V. Irving, 90 Hun, 422, 35 N. Y,
Supp. 744, 149 X. Y. 573, 43 N. E. 987;
Steek V. Colorado Fuel & Iron Co.. 142
X. Y. 236, 25 L.R.A. 67, 37 X. E. 1.
In at least three other circuits, the
courts of the United States have fol-
lowed the state practice of appointing
referees to examine accounts, reserving
the issues of fact for trial by jury, as
the opinion of the learned judge who
made the order here in question fully
exhibits.
Fenno v. Primrose, 56 C. C. A. 313,
119 Fed, 801; Craven v. Clark, 186 Fed.
059;; United States use of Brading-Mar-
sbal Lumber Co. v. Wells, 203 Fed. 146.
The same practice has also been fol-
lowed in an earlier case in Xew York.
Yemieule v. Reilly, 196 Fed. 226.
In the District of Columbia the same
practice prevails, based up«n a Mary-
land statute of 1785 (chap. 80, § 12),
and formulated in a careful rule of
court which makes the auditor's report
final unless excepted to, and provides
for trial by jury of the issues of fact
presented by the exceptions.
Simmons v. Morrison, 13 App. D. C.
161.
The examination of accounts by audi-
tors is no encroachment upon the right
of trial by jury.
1 Stubbs, Const. Hist, of England,
164, 4th ed. 659; Malone v. St. Peter &
Paul's Church, 172 N. Y. 269, 64 X. E.
1>61: Mc^furray v. Rawson, 3 Hill. 59;
Locke v. Bennett, 7 Cush. 445; Field v.
Holland, 6 Cranch, 8, 3 L. ed. 136, Vin.
Abr. Account, R. 167, 168, note; 2
Inst. 381: People ex rel. Brown v.
Oreen, 5 Daly, 194; 200; Dialogus de
Scaccario, Oxford ed. 1902; 2 Han-ard
L. Rev. 243, 257 ; 2 Madox, Hist, of Ex-
chequer, chap. 24, § 7, 2d ed. London,
1769, p. 292; Re Rteinway, 159 X. Y.
2.i0, 45 L.R.A. 461, 53 X. E. 1103;
Kanouse v. Martin, 3 Sandf. 653; Re
Lawson, 109 App. Div. 195, 96 X. Y.
Supp. 33; Dwight v. St. John, 25 N. Y.
203.
Mr. Justice Brandeis delivered the
o})inion of the court:
This is a petition for a writ of man-
damus and/or prohibition, brought by
Walter Peterson, receiver of the Inter-
64 li. ed.
state Coal Company, against the Hon-
orable Augustus X. Hand, judge of the
district court of the United States tor
the southern district of Xew York. Thv
faots and the specific relief sought are
these :
[304] Peterson had brought an ac-
tion at law in that court against Arthur
Sidney Davison to recover a balance of
$21,014.43, alleged to be due for coal
sold and delivered as shown by a long
schedule annexed. The answer su]>
stantiaUy admitted the items set forth
in the schedule filed by plaintiff, but
denied that it presented a full account
of the transactions between the parties^
and alleged that there were other de-
liveries of coal and other payments
which the defendant had made, and also
that he was entitled to additional allow-
ances. It further alleged, by way of
counterclaim, that the plaintiff was in-
debted to him for failure to perform its
contracts for coal in the sum of $9,-
999.10. In response to a demand for a
bill of particulars, defendant filed sched-
ules containing more than two hundred
items which he proposed to establish by
way of defense.
Upon motion of defendant, and
against the objection of plaintiff. Judge
Hand appointed an auditor (254 Fed.
625):
With instructions "to make a pre-
liminary investigation as to the facts;
hear the witnesses; examine the ac-
counts of the parties, and make and file
a report in the office of the clerk of this
court with a view to simplifying the
issues for the jury; but not finally to
determine any of the issues in the ac-
tion, the final determination of all is-
sues of fact to be made by the jury
on the trial; and the auditor to have
power to compel the attendance of, and
administer the oaths to, witnesses; the
expense of the auditor, including the ex-
pense of a stenographer, to be paid by
either or both parties to this action, in
accordance with the determination of
the trial judge."
The auditor was further ordered to
report on certain facts under ten classi-
fications. The design of this was large-
ly to separate items in dispute from
those as to which there was no real dis-
pute, and, also, to set forth the detailed
facts on which the specific claims made
were rested; [305] but the auditor
was also thereby required to express
his opinion on disputed issues, thus: .
''6. The various penalties, commis-
sions, cash discounts, and other deduc-
tions which defendant claims to be en-
9S4
30;>-307
SUPJ^EMK COl'RT OF THE UNITED STATES.
Oct. Tebv.
titled to deduct from the invoice price
of the various shipments, the items there-
of which are admitted by plaintiff as
propter deductions, and the items in dis-
pute, with his opinion as to each of such
disputed items.
**7. His opinion as to the net amount
due on each invoice of coal sold and de-
livered to defendant."*
Thereupon, application was made here
for leave to file this petition. It prays
that Judge Hand and the auditor named
be prohibited from proceeding under the
order appointing him; and it prays also,
that Judge Hand, or such other judge
who may at the time hold the trial t'erm
of that court, be commanded to restore
the case to the trial calendar, and that
the same be tried in the regular and
usual way. Leave to file the petition
was granted (January 12, 1920, post,
1032, 40 Sup. Ct. Rep. 178), and an order
to show cause issued. The petitioner
insists that the district court is without
power to make the order appointing the
auditor, and that proceedings thereun-
der would violate the 7th Amendment
to the Federal Constitution.
First: Objection is made by respond-
ent to the jurisdiction of this court.
It is insisted that the district court had
jurisdiction of the parties and of the
oause of action; that if the auditor
s^hould proceed to perform the duties
assigned to him, and his report should
be used at the trial before the jury, the
plaintiff could protect his rights by ex-
ceptions which would be subject to re-
view by the circuit court of appeals;
and that the writs prayed for may not
be used merely to correct errors. But
if proceedings pursuant to the appoint-
ment of an auditor would deprive peti-
tioner of his right to a trial by jury,
the order should, as was said in Ex
parte Simons, 247 U. S. 231, 239, 62
L. ed. 1094, 1096, 38 Sup. Ct. Rep. 497,
"be dealt with now, before the plaintiff
is put to the difficulties [306] and the
courts to the inconvenience that would
be raised by" a proceeding "that ulti-
mately must be held to have been re-
'luired under a mistake." The objec-
tion to our jurisdiction is unfounded.
We proceed, therefore, to the consid-
eration of the merits of the petition.
Second: The question presented is
one of power in the district court. If,
under any circumstances, it could ap-
point an auditor with the duties here
prescribed without the consent of the
parties, the facts clearly warranted such
action in this instance. The plaintiff
:?ned for a balance alleged to be due on
922
an account annexed containing -21^
items. The defendant set up another
account containing 402 items. Included
in the latter, besides certain charge??
against defendant for additional de-
liveries, were over 30 cash items of
credit not allowed for in the plaintiff's
account. These 402 items were alleged
to arise out of 123 different deliveries
of cargoes (or partial cargoes) of coal
made on ninety-one different days dur-
ing a period of eleven months. The coal
delivered was of various kinds and the
invoice prices for the same kind differed
from time to time. In respect to most
of these deliveries, there were claims for
allowances by way of penalties, commis-
sions, and cash discounts; and, as to
some, there were claims for allowances
on account of freight.
The district court found that, in order
to render possible an intelligent con-
sideration of the case by court and
jury, it was necessary to appoint an
auditor and confer ui)on him two func-
tions. The first was to segregate those
items upon which the parties agreed
and to classify those actually in contro-
versy; and thus, having defined the is-
sues, to aid court and jury by directing
their attention to the matters in dispute.
The second function of the auditor was
to form a judgment and express an opin-
ion upon such of the items as he found
to be in dispute. In order to perform
these functions the auditor would be re-
quired not merely to examine books,
vouchers, and [307] other papers, and
to make computations, but to hear and
pass upon conflicting testimony of the
parties and of other witnesses. This
full hearing, while obviously neces-
sary to enable the auditor to form a
trustworthy judgment on the disput-
ed items, would serve also to narrow
the field of controversy. For such a
tentative trial acts as a sifting proc-
ess by whicli miauuderstandings and
misconceptions as to facts are fre-
quently removed. In the course of
it many contentions or as8umption>
made by one party or the other are aban-
doned. Agreement is thus reached as
to some of the facts out of which lia-
bility is alleged to arise, even when the
items to which they relate remain in
dispute. See Fair v. Manhattan Tmi. Co.
112 Mass. 329.
The order expressly declared that tiie
auditor should not "finallv determine
any of the issues in this action; the final
determination of all issues of fact to
i be made by the jury at the trial;" but
it (lid not provide affirmativelv what
253 U. S.
1019.
MATTKf: OF WALIKl: PKTKHSUN.
307-30(»
use ahould be made of the report at the
trial. It may be assumed that, if ac-
• i^pted by the court, the report would
be admitted at the trial before the jury
as prima facie evidence both of the evi-
dentiary facts and of the oouolusions of
fact therein set forth. The report, being:
evidence sufficient to satisfy the bnrden
of proof (Wyman v. Whicher, 179 Mass.
276, 60 N. E. 612), would tend to dis-
pense with the introduction at the trial
before the jury of evidence on any mat-
ter not actually in dispute. The ap-
pointment of the auditor would thus
serve to shorten the jury trial, by re-
ducing both the number of facts to be
established by evidence and the number
of questions in controversy. A more
iatelliffent consideration of the issues
submitted to the jury for final deter-
mination would result.
Third: Prior to the adoption of the
Federal Constitution there did not exist
in England, or, so far as appears^ in
any of the colonies, any officer, penna-
nent or temporary, [308] who, in con-
nection with trials by jury, exercised
the powers of an auditor above de-
scribed- An official called "auditor"
'had long been known as part of the
judicial machinery in certain cases
brought in the common-law courts
both of England and of the colonies;
but the functions of the auditor in
those cases were different. In ' the
common-law action of account audi-
tors were appointed in England, from
the earliest times, to take the account,
after the interlocutory judgment quoa
computet has been entered. But the
parties wore entitled to a jury trial be-
fore the interlocutory judgment was
rendered; and further issues of fact
arising before the auditor were not
passed upon by him, but were certified
to the court for trial by a jury. The
use of this form of action was limited
to cases whei*e the defendant was under
obligation to account to the plaintiff as
guardian, bailiff, or receiver of his prop-
erty.^ In Maryland, by Act of 1786,
chap. 80, § 12, the power of the court
to appoint auditors was extended to all
ca?*es in which it might be necessary to
examine and determine accounts; but
the jiiry trial was not affected thereby,
for the proceedings thereon were to be
I See Prof. J^angdell, 2 Harvard L. Rev. {
241. 251-256; Holmes v. Himt. 122 Mrss.J
.505, 512, 23 Am. Rep. 381.
«<! fi. eri.
**ab in cases of account.*'* In Connecti-
cut auditors were ajjpointed by the court
in actions of "book debt,'' and the same
practice was early introduced in Ver-
mont and other states; but in this ac-
tion the report of the auditor, if ac-
cepted by the court, is a substitute for
the jury, and operates to detei-mine the
issues of fact.' In New York [309]
actions on long accounts are deter-
mined now, as in colonial days, by ref-
erees instead of by a jury.*
The office of auditor, with functions
and powers like those here in question,
was apparently invented in Massa-
chusetts. It was introduced there bv
chax>ter 142 of the acts of the legisla-
ture of the year 1818; and as a part of
the judicial machinery it has received
the fnllest development in that state.
No act of Congress has specifically au-
thorized the adoption of the practice in
the Federal courts. We have therefore*
to decide, not only whether such ap-
pointment of auditors is consistent with
the constitutional right of trial by jury,
but also whether it is a power inherent
in the district court as a trial court.
Fourth: The command of the 7th
1 8«e United States v. Rose, 2 Cranch, C.
C. 667, Fed, Gas. No. 16,193; Barry v.
Barry, 3 Cranch, C. C. 120, Fed. Cas. No.
1, 060 J Bank of United States v. Johnson. 3
Cranch, C. C. 228, Fed. Cas. No. 910. The
report was not admitted before the jury as
pnma facie evidence of the truth of the
statements or conclusions of the auditor.
McCullough V. Groff, 2 ^lackey, 361, 366.
8Sulzer V. Watson, 39 Fed. 414; Conn.
Gen. SUt. 1918, § 5752; Act of Vermont,
October 21, 1782, Slade's Vermont State
Papers, 450; Hall v. Armstrong, 65 Vt. 421,
25 L.R.A. 366, 26 Atl. 592; Wagner's Stat.
(Mo.) 1041, § 18; Edwardson v. Giirnhart,
56 Mo. 81.
4 Steck V. Colorado Fuel A. I. Co. 142 N.
Y. 236, 26 L.R.A. 67, 37 N. E. 1. This fact
has no bearing on the constitutional ques-.
tion involved here. The right to a jury trial
guaranteed in the Federal courtsj is that
known to the law of England, not the jury
trial as modified by local usage or statute.
United States v. Wonson. 1 Gall. 6. 20,
Fed. Cas. No. 16,760; Capital Traction Co.
V. Hof, 174 U. S. 1, 8, 43 L. ed. 873, 876,
19 Slip. Ct. Rep. 580; see also United States
V. Kathbone, 2 Paine, 678, Fed. Cas. No,
16,121 ; Howe Mach. Co. v. Edwards, 15
Blatchf. 402, Fed. Cas. No. 6.784; Sulzer
V. Watson, 39 Fed. 414; United State?* use
of Brading-Marshal Lumber Co. v. Wells,
203 Fed. 146, 149.
In Davis ▼. 8t. Louis & 8. F. R. Co. 26
Fed. 786, a case involving a long account, a
referee vras appointed to report; apparently
to determine the facts in accordance with
the practice prevailing in Kansas, where the
court was sittinp.
92.1
309-311
SUPREME COURT OF THE UNITED STATES.
Oct.
Amendment that "the right of trial by
jury shall be preserved" does not re-
quire that old forms of practice and
procedure be retained. Walker v. Xew
Mexico & S. P. R. Co. 165 U. S. 593,
596, 41 L. ed. 837, 841, 17 Sup. Ct Rep.
421, 1 Am. Neg. Rep. 7G8. Compare
Twining .v. New Jersey, 211 U. S. 78,
101, 53 L. ed. 97, 107, 29 Sup. Ct, Kep.
14. It does not prohibit the introduc-
tion of new methods for determining
what facts are actually in issue, nor
does it prohibit the introduction of new
rules of evidence. Changes in these
may be made. New devices [310]
may be used to adapt the ancient
institution to present needs and to
make of it an efficient instrument
in the administration of justice.* In-
deed, such changes are essential to
the preservation of the right. The
limitation imposed by the Amendment is
•merely that enjoyment of the right of
trial by jury be not obstructed, and that
the ultimate determination of issues of
fact by the jury be not interfered with.
In so far as the task of the auditor is
to deidne and simplify the issues, his
function is, in essence, the same as that
of pleading. The object of each is to
concentrate the controversy upon the
questions which should control the re-
sult. United States v. Gilmore, 7 Wall.
491, 494, 19 L. ed. 282, 283; Tucker v.
United States, 151 U. S. 164, 168, 38
I^ ed. 112, 114, 14 Sup. Ct. Rep. 299.
No one is entitled in a civil case to trial
by jury imless and except so far as there
are issues of fact to be determined. It
does not infringe the constitutional
right to a trial by jury, to require, with
• a view to formulating the issues, an
oath by each party to the facts relied
upon. Fidelity & D. Co. v. United States,
187 U. S. 315, 47 L. ed. 104, 23 Sup.
Ct. Rep. 120. Nor does the requirement
•of a preliminary hearing infringe the
constitutional right, either because it in-
volves delay in reaching the jury trial
or because it affords opportunity for
exploring in advance the evidence which
the adversary purposes to introduce be-
fore the jurv. Capital Traction Co. v.
Hof. 174 U. S. 1, 43 L. ed. 873, 19 Sup.
Ct. Rep. 580. In view of these decisions
it cannot be deemed an undue obstruc-
tion of the right to a jury trial to re-
quire a preliminary hearing before an
auditor.
Nor can the order be held unconstitu-
ft Re© **Trial bv Jurv and the Reform of
Civil Proredure." by Prof. A. \V. Scott, .31
Hanard L.»Rev. 669.
924
tional as unduly interfering with the
jui'y's determination of issues of faci.
because it directs the auditor to form
and exi>ress an opinion upon facts anl
items in dispute. The report will, tie-
less rejected by thfe court, be admitted
at the jury trial as [811] evidence ef
facts and findings embodied therein ;
but it will be treated, at most, as
prinra facie evidence thereof. The par-
ties will remain as free to call, ex-
amine, and cross-examine witnesses as
if the report had not been made. No
incident of the jury trial is modified
or taken away either by the prelim-
inary, tentative hearing before the autii-
tor, or by the use to which his re-
port may be put. An order of a
court, like a statute, is not unconstitu-
tional because it endows an oflScial act
or finding with a presumption of regular-
ity or of verity. Marx v. Hanthom,
148 U. S. 172, 182, 37 L. ed. 410, 413,
13 Sup. Ct. Rep. 508; Turpin v. Lemon,
187 U. S. 51, 59, 47 L. ed. 70, 74, 23
Sup. Ct. Rep. 20; Reitler v. Harris, 223
U. S. 437, 56 L. ed. 497, 32 Sup. Ct. Rep.
248. In Meeker v. Lehigh Valley R. Co.
236 U. S. 412, 430, 59 L. ed. 644, C57,
P.U.R.1915D, 1072, 35 Sup. Ct. Rep. 32S.
Ann. Cas. 1916B, 691, it was held that
the provision in § 16 of the Interstate.
Commerce Act, making the findings and
order of the Commission prima facie
evidence of the facts therein stated in
suits brought to enforce reparation
awards, does not infringe upon the right
of trial by jury. See also Mills v. Le-
high Valley R. Co. 238 U. S. 473, 59 L.
ed. 1414, 35 Sup. Ct. Rep. 888; Chicago,
B. & Q. R. Co. V. Jones, 149 HI. 361, 3S2,
24 L.R.A. 141, 4 Inters. Com. Rep. 683,
41 Am. St. Rep. 278, 37 N. E. 247. la
the Meeker Case this court relied e«-
j>ecially upon Holmes v. Hunt, 122 Mass.
505, 23 Am. Rep. 381, and called atten-
tion to the fact that there the statute
making the report of an auditor prima
facie cvidenca at the trial before a jury-
was held to be a legitimate exercise of
legislative power over rules of evidence,
and in no wise inconsistent with the
constitutional right of trial by jury.*
The reasons for holding an auditor's
6 Acts making findings in the tentat:-.^
hearing before an auditor prima facie ev -
dence were held not to infringe the rigLt
of (rial by jury in Maine (Howard v. Kim-
ball, 65 Me. 308, 327) ; and in Xew Hamr-
fthire (Doyle v. Dovle, 5C X. H. 567; Per-
kins V. Soott, 57 N. IT. 56) . A differeik eon-
olu*ion was reached in Francis v. Baker. II
R. T. 103. 23 Am. Rep. 424. and Pliinptr.n
V. S6mer.«t«*t. 33 Vt. 288.
253 U. S.
1&19.
MATTER OF WALTER PETERSOX.
:{11-314
report admissible as evidence are, in one
r-^spect, stronger than for giving such
^ftect to the report of an independent
tribunal like the Interstate Commerce
[312] Commission. The auditor is an
o:18cer of the court which appoints him.
The proceedings before him are subject
t ) its supervision, and the report may be
used only if, and so far as, acceptable
to the court.
That neither the hearing before the
auditor, nor the introduction of his re-
.port in evidence, abridges in any way
the right of trial by jury, was the con-
clusion reached in 1902 in the district
of Massachusetts in Primrose v. Fenno,
113 Fed. 375, 56 C. C. A. 313, 119 Fed.
SOI, the first reported case in which an
auditor was appointed with the powers
here conferred. The practice there es-
tablished has been followed in the south-
em district of New York (Vermeule v.
Reilly, 196 Fed. 226) ; and in the eastern
district of Tennessee (United States use
of Brading-Marshal Lumber Co. v. Wells,
203 Fed. 146).
Fifth: There being no constitutional
obstacle to the appointment of an audi-
tor in aid of jury trials, it remains to
consider whether Congress has conferred
upon district courts power to make the
order. There is here, unlike Ex parte
Fiske, 113 U. S. 713, 28 L. ed. 1117, 5
Sup. Ct. Rep. 724, no legislation of Con-
irress which directly or by implication
forbids the court to provide for such
preliminary hearing and report. But,
on the other hand, there is no statute
which expressly authorizes it. The ques-
tion presented is, therefore, whether the
court possesses the inherent power to
supply itself with this instrument for
the administration of justice when
deemed by it essential.
Courts have (at least, in the absence
of legislation to the contrary) inherent
I ower to provide themselves with ap-
propriate instruments required for the
performance of their duties. Compare
Stockbridge Iron Co. v. Cone Iron
^\'orks, 102 Mass. SO, 87-90, 6 -Alor. Min.
Rep. 317. This power includes autlior-
i:y to appoint persons unconnected with
the court to aid jud^jes in the pertorm-
inee of specific judicial duties, as Ihey
may arise in the progress of a cause.
From the commencement of our govern-
rient, it has been exercised by the Fed-
eral courts, when sitting in equity, by
[313] appointing, either with or with-
out the consent of the parties, special
masters, auditors, examiners, and com-
missionersr to take and report testimony;
to audit and state accounts; to make
«4 li. c^.
computations; to determme, where the
facts are complicated and the evidence
voluminous, what questions are actually
in issue; to hear eonfiicting evidence and
make finding thereon; these are among
the purposes for which guch aids to the
judges have been appointed. Kimberlv
V. Arms, 129 U. S. 612, 523, 32 L. ed.
764, 768, 9 Sup. Ct. Rep. 355. Whether
such aid shall be sought is ordinarily
within the discretion of the trial judge;
but this court has indicated that where
accounts are complex and intricate, or
the documents and other evidence volu-
minous, or where extensive computations
are to be made, it is the better practice
to refer the matter to a special master
or commissioner than for the judge to,
undertake to perform the task himself.
Dubourg de St. Colombe v. United
States, 7 Pet. 625, 8 K ed. 807; Chi-
cago, M. & St. P. R. Co. V. Tompkins,
176 U. S. 167, 180, 44 L. ed. 417, 423, 20
Sup. Ct. Rep. 336. Of the appointment
made in Field v. Holland, 6 Cranch, 8,
21, 3 L. ed. 136, 140, Mr. Chief Justice
Marshall said: "It is a reference to
'auditors,' — a term which designates
agents or officers of the court, who ex-
amine and digest accounts for the deci-
sion of the court. They do not decree,
but prepare materials on which a de-
cree may be made." And in North Caro-
lina R. Co. V. Swasey, 23 Wall. 405, 410,
23 L. ed. 136, 137, Mr. Chief Justice
Waite said of the master's report: "Its
office is to present the case to the court
in such a manner that intelligent action
may be there had, and it is this action
by the court, not the report, that finally
determines the rights of the parties."
What the district judge was seeking
when he appointed the auditor in the
case at bar was just such aid. He re-
quired it himself; because, without the
aid to be rendered through the prelimi-
nary hearing and r^ort, the trial judge
would be unable to perform his duty of
defining to the jury the issues submitted
for their determination, and [314] of
directing their attention to the matters
actually in iasue. United States v. Phila-
delphia & R. R. Co. 123 U. S. 113, 114, 31
L. ed. 138, 139, 8 Sup. Ct. Rep. 77. The
hearing and report were also essential,
as shown above, to enable the jury to
perform their specific duty. Owing to
the difference in the character of the
proceedings and of the questions ordi-
narily involved, the occasion for seeking
such aid as is afforded to a judge by
special masters, auditors, or examiners
arises less frequently at law than in
equitv. A compulsorv reference with
• 25
314-316
supre:mk cxjtirr of the united states.
Oct. Tewi,
poTi^er to determine issues is impo«-sible
in the Federal courts because of the
7th Amendment (United States v. Rath-
bone, 2 Paine, 578, Fed. Cas. No. 16,121) ;
but no reason exists why a compulsory
reference to an auditor to simplify and
clarify the issues and to make tentative
findings may not be made at law, when
occasion arises, as freely as compulsory
references to special masters are made
in equity. Reference of complicated
questions of fact to a person specially
appointed to hear the evidence and make
findings thereon has long been recog-
nized as an appropriate proceeding in
an action at law. Hecker v. Fowler, 2
Wall. 123, 17 L. ed. 759. The inherent
power of a Federal court to invoke such
* aid is the same whether the court sits
in equity or at \&w. We conclude, there-
fore, that the order, in so far as it ap-
pointed the auditor and prescribed his
duties, was within the power of the
court.
Sixth : The clause in the order which
provides that "the expense of the audi-
tor, including the expense of a stenog-
rapher, to be paid by either or both
parties to this action, in accordance
with the determination of the trial
judge," requires special consideration.
As Congress "^ has made [315] no provi-
sion for paying from public fuuds either
the fees of auditors or the expense of the
stenographer, the power to make the ap-
pointment without consent of the parties
is practically dependent upon the power
to tax the expense as costs. !>ray the
compensation of auditor and stenog-
7 In Massachusetts the expense of the
auditor was, prior to 1878. taxed in all
rasies as ooats to be paid by the defeated
party. See Acts of 1818, chap. 142; Rev.
Stat. 1836. chap. 96, § 31; Gen. Stat. 1860,
rhap. 121, § 50; Act of March 16, 1867,
ohap. 67; Act of June 6, 1873, chap. 342.
By Act of April 23, 1878, chap. 173, the
expense of the auditor in cases tried in the
<u|>erior or in the supreme judicial court
was made payable by the county. See alto
Hev. Laws 1902, chap. 165, § 60; Act of June
5, 1911, chap. 237; Act of 1914, chap. 576.
In Ataine the fees of the auditor were,
prior to 1807. taxed as costs in favor of the
prevailing party. Laws 1821, chap. 59, §
•25: Acts of 1826, chap. 34f, § 1: Rev.
'^tat 1883, chap. 82, j$ 70. Since the Act of
March 12, 1897, chap. 224, the fees and
neceftHary expenses of the auditors are paid
by the count,>.
In New Hampshire the fees of the audi-
Tor are also taxable as costs in favor of
the prevailing party; but the court may
now, in its discretion, order thera paid by
the county. Act of June 23. 1823. chap.
19. $ 1 ; Act of July 20, 1876, chap. 33. 4 4:
Ihih. Stat, 1901, chap. 227, § 7.
• 2«
rapher be taxed as costs and, if so, may
the exi)ense be imposed, in the discre-
tion of the trial court, upon either par-
ty?
Federal trial courts have, sometimes
by general rule, sometimes by decision
upon the facts of a particular case, in-
cluded in the taxable costs expenditures
incident to the litigation which were
ordered by the court because deemed
essential to a proper consideration of
the case by the court or the jury. Equi-
ty rule 68 provides for taiung the fees
of masters, and rule 50 for the expense
of a stenographer. Both rules embody
substantially the practice which had
theretofore prevailed generally in equity
proceedings, and which, in the southern
district of New York, had been followed
not only in equity (American Diamond
Drill Co. V. Sullivan Mach. Co. 32 Fed.
552, 131 U. S. 428, 33 L. ed. 217, 9
Sup. Ct. Rep. 794; Brickill v. New York,
55 Fed. 565; Hohorst v. Hamburg- Ameri-
can Packet Co. 76 Fed. 472), but also
in admiralty (The E. Luckenback, 19
Fed. 847; Rogers v. Brown, 136 Fed.
813). The expense of printing the records
and briefs in the trial court has been
made by rule of court in [816] several
of the circuits taxable as costs against
the defeated party (Hake v. Brown, 44
Fed. 734). Compare Kellv v. Sprinj:-
field R. Co. 83 Fed. 183; Tesla Electric
Co. V. Scott, 101 Fed. 524. A«^ early
as 1844 Mr. Justice Story, sitting at
circuit in Whipple v. Ciunberland Cot-
ton Mfg. Co. 3 Story, 84, Fed. Cas. No.
17,515, approved, in an action at law for
damages, although not specially author-
ized by any rule, the order of a survey,
as "necessary for the true understand-
ing of the cause on both sides;" and or-
dered the expense paid by them. In
cases in which courts have refused to
tax as costs copies of stenographer's
minutes and other expenditures incident
to the litigation, attention has been
called to the fact that they were made
for the benefit of the party, as distin-
guished from expenditures ineorried un-
der order of the court to make possible
or to facilitate its consideration of the
case. Stallo v. Wagner, 158 C. C. X.
64, 245 Fed. 636; New Hampshire L«nd
Co. V. Tilton, 29 Fed. 764. But see
Bridges v. Sheldon. 18 Blatchf. 295. 507.
7 Fed. 17, 42.
The allowance of costs in the Federal
courts rests not npon express statutory
enactment by Congress, but upon usa^
long continued and confirmed by impli-
cation from provisions in many stmtuteB.
Mr. Justice Woodburv in Hathawav t.
1 919.
MATTER OF WALTER PETERSON.
31d-31S
Roach, 2 Woodb. i& M. 63, Fed. Cos. No.
6^213; Mr. Justice Nelson in Ke Costs
in Civil Cases, 1 Blatchf. 662; The Balti-
more, 8 Wall. 377, 19 L. ed. 463. In
Sathaway v. Roach, supra, p. 67, it is
said to have been the usage of the Fed-
eral courts ''to conform to the state laws
SLS to costs when no express provision
has been made and is in force by any
act of Congress in relation to any par-
ticular item, or when no general rule of
i'ourt exists on this subject." And in
The BiUtimore, supra, pp. 390, 391, this
r'ourt stated that "the costs taxed in
the circuit and district courts were the
same as were allowed at that time in the
r^ourts of the state, including such mat-
ters as the travel and attendance of the
parties, fees for copies of the case, and
abstracts for the hearing, compensation
for the [317] services of referees, audi-
tors, masters, and assessors, and many
other matters, not embraced in the fee
>)ills since passed by Congress." • Neither
the Act of February 26, 1853, chap. 80,
10 Stat, at L. 161, Rev. Stat. § 983,
Comp. Stat. § 1624, 2 Fed. Stat. Anno.
2d ed. p. 644, nor any later act of Con-
gress or rule of court, deals expressly
or by implication with the subject of
taxing as costs the expense of an audi-
tor. 'The practice, if any, governing in
this respect the courts of New York,
would, therefore, be followed in the Fed-
eral courts. See Huntress v. Epsom, 15
Fed. 732. But, so far as appears, the
preliminary hearing before an auditor
in. aid of jury trials is not a part of the
judicial* machinery of that state. The
nearest analogy to it is the reference had
in actions at law on long accounts as a
substitute for a jury trial. The expense
of the compulsory reference in such ac-
tions is so taxable. Code Civ. Proc. §
3256. As there is no statute, Federal or
state, and no. rule of court excluding
auditor's fees and the expense of his
stenographer from the items taxable as
costs, no reason appears why they may
not be included, like other expenditures
ordered by the court with a view to
securing an intelligent consideration of
a case.
Seventh: The further question is
whether the district court had power
to make the expense of the auditor tax-
able in whole or in part against the pre-
vailing party, if the trial judge should
• Shreve v. Cheesman, 16 C: C. A. 413» 32
U. S. App. 676, 69 Fed. 785, 789; see also
Scatcherd v. Love, 91 C. C. A 639. 166
Fed. 53; Michigan Aluminum Foundry Co.
V. Aluminum Co. of America, 100 Fed. 003,
004.
64 li. ed.
so detenuine. The advantages of such
a flexible rule are obvious. But general
principles governing the. taxation of
costs in actions at law, followed by the
Federal, courts since their organization,
preclude its adopticm.
While in equity proceedings the allow-
ance and imposition of costs is, unless
controlled by statute or rule of court, a
matter of discretion, it has been uni-
formly held [^18] that in actions at law
the prevailing party is entitled to costs
as of right (compare United States v.
Schurz, 102 U. S. 378, 407, 26 L. ed. 167,
175), except in those few cases where, by
express statutory provision or by estab-
lished principles, costs are denied.* It
has also been generally held that this
right to costs of the prevailing party in
actions at law extends to the entire costs
in* the trial court, and that the court is
without power to make an apportion-
ment based upon the fact that the pre-
vailing party has failed in a part of his
claims, or that, for other reasons, only
a part or none of the costs should in
fairness be allowed.^® This rule of prac-
tice, established by long usage, is con-
firmed by the language of § 983 of the
Revised Statutes. It would, therefore,
be held to prevail over a rule, if any, to
the contrary, established in the courts
of the state. But the practice in the
courts of New York appears to be in
this respect in entire harmony with that
of the Federal courts.^^ In Whipple v.
Cumberland Cotton Mfg. Co. supra, the
expense of the survey ordered by the
court was imposed by it equally on the
two parties; and the same disposition
»For instance. Rev. Stat. § 968. Comp.
Stat. § 1609, 2 Fed. Stat. Anno. 2d od. p.
636, denving costs to a plaintiff or peti-
tioner who recovers less than $500.
lOCrabtree v. Neff, 1 Bond. 554. Fed.
Cas. No. 3,315; Hooe v. Alexandria. 1
Cranch, C. C. 98, Fed. Cas. Xo. 6,067:
Bartels v. Redfield, 47 Fed. 708; Trinidad
Asphalt Paving Co. v. Robinson, 52 Feci.
347; United States v. Minneapolis. St. P. &
S. Ste. M. R. Co. 2.35 Fed. 95l, 953; West
End Street R. Co. v. Malley. 158 C. C. A.
581, 246 Fed. 626, 627 ; Sears, R. & Co. v.
Pearce, 165 C. C. A. 402, 253 Fed. 960. 962;
Wheeler v, Taft, — C. C. A. — , 261 Fed.
978. •
11 The general rule that, in actions at
law, the prevailing party is entitled as of
right to the taxahle costs, prevails in New-
York; and there is a further provision
that when plaintiff demands a judgment
for a Slim of money only, the plaintiff, if
prevailing, is entitled to the costs whether
the suit be one at law or in equity. Murtha
V. Curlev, 92 N. Y. 359; Norton v. Fancher,
92 Hun.* 463. 36 N. Y. Supp. 1032,
•27
318, 319
SUPRKME COURT OF THE UNITED STATES.
Oct. Term,
was made • in Primrose v. Fenno, 11.3
Fed. 375, 66 C. C. A. 313, 119 Fed. 801,
where the auditor had been appointed
at the instance of the conrt without ob-
jection by either party. But in Houlihan
V. [819] St. Anthony, 173 Fed. 496,
106 C. C. A. 394, 184 Fed. 252, where
the auditor was appointed by consent of
the parties, the same court taxed both
the auditor's and the stenographer's fees
against the losing party, holding that it
had discretion, if it was not obliged to
do so; and a petition for writ of cer-
tiorari was denied bv this court (220
U. S. 613, 56 L. ed. 609, 31 Sup. Ct. Rep.
717).
Although the order was erroneous in
declaring that the expense of the audi-
tor shall, instead of abiding the result
of the action, be paid by one or both of
the parties, in accordance with the de-
termination of the trial judge, the error
does not require that either of the ex-
traordinary remedies applied for here
he granted. If the petitioner deems
himself prejudiced by the error, he may
get redress through a{>plication to the
district court for a modification of the
order; or after final judgment, on writ
of error, from the circuit court of a]>-
peals. Re Morrison, 147 U. S. 14. 26,
37 L. ed. 60, 65, 13 Sup. Ct. Rep. 246.
The petition for writs of mandamus
and or prohibition is denied.
•
^Ir. Justice McKenna, Mr. Justice
Pitney, and Mr. Justice McResmolds
dissent.
PEXXSYLVANIA RAILROAD CX)MPANY,
Petitioner,
V.
KITTAN'INO IROX & S'J EEL MANUFAC-
TURING a)MPAXY.
(See S. C. Reporter's ed. 319-325.)
Carriers — demurrage — frozen ahlp-
iiients.
Xo departure from the established
policy manifested in the Uniform Demur-
rage Code to treat the single car as the '
unit in applying the allowance of free time
and the charges for demurrage, just as in |
the nuiking of carload freight Mtea, can
be itiierred from the declaration in such
Coilo that no demurrage charges shall be
collct'ted when shipments are frozen whfle^
in transit so as to prevent unloading dur
ing the prescribed free time, provided a
diUgent effort to unload is made. If each
car containing frozen shipments could haw
been unloaded, considered separately, vith-
in the free time, any relief from the hard^
ship resulting from excessive receipts of
such cars on the same day must be found,
either under the so-called bunching rule, un-
der which the shipper is relieved from de-
murrage charges if. by reason of the* car-
rier's fault, the goods are accumulated a&d
detention results, or under the average-
agreement rule, under which a monthlT
debit and credit account is kept of d^en-
tion, and the shipper is relieved of charges
for detaining cars more than forty-ei^t
hours by credit for other cars released
within twenty-four hours.
[No. 301.]
Argued March 26, 1920. Decided June 1,
1920.
ON WRIT of Certiorari to the Su-
preme Court of the State of Penn-
sylvania to review a judgment which
affirmed a judgment of the Court of
Common Pleas of Allegheny County, in
that state^ in favor of a carrier for a
portion only of certain demurrage
charges claimed by it under the Uni-
form Demurrage Code. Reversed.
See same case below, 263 Pa. 205. 106
Atl. 207.
The facts are stated in the opinion.
Messrs. Henry Wolf Bikle and Fred-
eric D. McKenney argued the cause
and filed a brief for petitioner:
The demurrage rules contemplate an
individual application thereof in deter-
mininsT the free time to be accorded for
unloading.
American Radiator Co. v. Lehigh
Valley R. Co. 44 Inters, Com. Rep. 361;
Pittsburgh Crucible Steel Co. v. Penn-
sylvania Co. 41 Inters. Com. Rep. 700;
Scudder v. Texas & P. R. Co. 21 Inters.
Com, Rep. 60; W. 0. Kay Co. v. Den-
ver & R. G. R. Co. 21 Inters, Com. Rep.
239; Roy & R. Mill Co. v. Boston & M.
R. Co. 44 Inters. C^m. Rep. 523; Cen-
tral Pennsylvania Lumber Co. v. Di-
rector General, 53 Inters. Com, Rep.
523.
The rules should be interpreted in
accordance with the views of the Inter-
state Commerce Conmiission, just as the
views of a commission charged with the
enforcement of a statute are regarded as
entitled to special weight with respect
to its proper interpretation.
yovr York. X. H. & H. R. Co. v. In-
terstate Commerce Commission, 200 V.
>. 3r>l. 401. .lO L. ed. olo. 525, 26 Sop.
25a r. s>.
1»1«.
PENNSYLVANIA R. 00. v. KITTANING 1. & 8. MFG. CO.
320-322
Ct. Rep. 272; Texas ft P. R. Co. v.
American Tie k Timber Co. 234 U. 8.
138, 58 L. ed. 1255, 34 Sup. Ct. Rep.
886; Logan v. Davis, 233 U. S. 613, 58
L. ed. 1121, 34 Sup. Ct. Rep. 685.
No hardship results to the * oon-
•ignee from this construction of the
rnles.
Baltimore ft O. R. Co. v. Gray's Per-
ry Abattoir Co. 27 Pa. Super. Ct. 511;
Alan Wood Iron ft Steel Co. v. Penn-
sylvania R. Co. 24 Inters. Coul Rep.
27; Michigan Mfrs. Asso. v. Pere Mar-
quette R. Co. 31 Inters. Com. Rep. 329;
Castner, Curran ft Bullitt v. Pennsyl-
vania Co. 42 Inters. Com. Rep. 3; Da-
vis Sewing Mach. Co. v. Pittsburgh, C.
C. ft St L. R. Co. 51 Inters. Com. Rep.
191.
Mr. JL L. Ralston argued the cause,
and, with Mr. H. V. Blaxter, filed a
brief for respondent :
This role has to do with shipments,
and not with cars or carloads. The
car is made the unit only for the com-
putation of the demurrage, and such is
the use made of it in the demurrage
rules.
Darling ft Co. v. Pittsburgh, C. C. ft
St. L. R. Co. 37 Inters. Com. Rep. 401.
Mr. Justice Brandeis delivered the
opinion of the court:
. The Uniform Demurrage Code dis-
cussed in Swift ft Co. v. Hocking Valley
R. Co. 243 U. S. 281, 283, 61 L. ed. 722,
723, 37 Sup. Ct. Rep. 287, was duly
published as a part of the freight tariffs
of the Pennsylvania Railroad prior to
November 1, 1912. From time to time
during the months of December, 1912,
and February and March, 1913, the Kit-
taning Iron ft Steel Manufacturing Com-
pany received from the railroad an ag-
g^regate of 227 cars of iron ore, all in-
terstate shipments; and on account of
them the railroad claimed $1,209 for
demurrage. [321] The company re-
fused to pay these, among other, demur-
rage charges, whereupon this action was
brought in a state court of Pennsylvania
to recover the amount. The trial court
disallowed the claim. The judgment
there entered was affirmed by the su-
preme court of the state ; and a petition
by the railroad for a writ of certiorari
was granted (249 U. S. 595, 63 L. ed. 794,
39 Sup. Ct Rep. 260).
Before receipt of any of the cars the
Kittaning Company had entered into an
average agreement with the railroad,
e4 ij. ed. s
as provided in rule 9.^ The aggr^ate
number of days' detention of these cars
after they reached the company's inter-
change tracks (in excess of the free
time under the average agreement) was
1,209; and the demurrage [322]
charge fixed by rule 7 was $1 for
each day, or fraction thereof, that
a car is detained after the expira-
tion of the free time. The ore in
these cars was frozen in transit; and
the company insisted that this detention
of the cars beyond the "free time" had
resulted from this fact, and claimed
exemption from demurrage charges un-
der rule 8, § A, subdivision 2, which de-
clares that none shall be collected.
"When shipments are frozen while in
transit so as to prevent unloading dur-
ing the prescribed free time. This ex-
emption shall not include shipments
which are tendered to consignee in con-
dition to unload. Under this rule con-
signees will be required to* make dili-
gent efforts to tmload such shipments.''
The Kittaning Company had at its
plant a device for thawing cars of frozen
iRule 9. Average agreement. When a
shipper or receiver enters into the follow-
ing agreement, the charge for detention to
cars, provided for by rule 7, on all cars
held lor loading or unloading by such
shipper or receiver, shall be computed on
the oasis of the average time of detention
to all such cars releas^ during each calen-
dar month, such average detention to be
computed as follows:
Section A A credit of one da^ will be
allowed for each car released within the
first twenty-four hours of free time. A
debit of one day will be charged for each
twenty-four hours or fraction thereof that
a car is detained beyond the first forty-
eight hours of free time. In no case shall
more than one da^s credit be allowed on
any one car, and in no case shall more than
five (5) days' credit be applied in cancela-
tion of debits accruing on any car, making
a maximum of seven (7) da^s that any
car may be held free; this to include Sun-
davB and holidays.
Section B. At the end of the calendar
month the total number of days credited
will be deduct!^ from the total number of
days debited, and $1 per day charged for
the remainder. If the credits equal or
exceed the debits, no charge will be made
for the detention of the cars, and no pay*
meat will be made to shippers or receivers
on account of such excess, nor shall the
credits in excess of the debits of any one
calendar month be considered in comput-
ing the average detention for another month.
Section C. A shipper or receiver who
elects to take advantage of this average
agreement shall not be entitled to cancela-
tion or refund of demurrage charges under
§ A, tf 1 and 3, or § B of rule 8.
9 929
322-324
JSUHi<KMK COURT OF THE LNITKU STATED,
Oct.
ore through "steaming." By this means
it was able to unload as much as five cars
of frozen ore a day. The daily average
number of cars of frozen ore received
during the three months was far less
than five cars; but the number reoeived
on single days varied greatly. On many
days none were received; on some only
one or two; and on some, as many as
thirty-five. The railroad contended that
the standard to be applied for determin-
ing, under the rule here in question,
whether unloading within the prescribed
free time was prevented by the ship-
ments being frozen, was, as in other
eases under the Code, the conditions
applied to the car treated as a unit. It
insisted, therefore, that the determina-
tion in any case whether a detention
was doe to the fact that the contents
of a car was frozen could not be affected
by the circumstance that a large num-
ber Sf such cars happened to have been
'Punched ;^'* and that, as each car, con-
sidered separately, could have been un-
loaded within the free time, the con-
signee must bear whatever hardship
might result from many having arrived
on the same day, unless relief were
available to him either under the '^bunch-
ing [328] rule"' or under the "aver-
age agreement." The question present-
ed is that of construing and applying
the frozen-shipments clause. But in
order to determine the meaning or ef-
fect of that clause, it is necessary that
it be read in connection with others.
The purpose of demurrage charges is
to promote ear efficiency by penalizing
undue detention of cars. The duty of
loading and of unloading carload ship-
ments rests upon the shipper or con-
signee. To this end he is entitled to
detain the car a reasonable time with-
out any payment in addition to the pub-
lished freight rate. The aim of the
Code was to prescribe rules, to be ap-
plied uniformly throughout the country,
by which it might be determined what
detention is to be deemed reasonable.
In fixing the free time the framers of
the Code adopted an external standard;
>Rule 8, § B. Bunching. 2. When, as
the result of the act or neglect of any
carrier* cars destined for one consignee,
at one point, are bunched at originating
point, in transit, or at destination, and
delivered by the railroad companj^ in ac-
cumulated numbers in excess of daily ship-
menta, the consignee shall be allowed such
free time as he would have been entitled
to had the cars been delivered in accord-
ance with the daily rate of shipment.
Claims to be presented to railroad com-
)>any'8 agent within fifteen (lo) days.
930
that is, they refused to allow the eir
eumstances of the particular shipper to
be considered.
When they prescribed forty-eight
hours as the free time, they fixed the-
period which, in their opinion, was rea
sonably required by the average shipper
to avail himself of the carrier's service
under ordinary circumstances. The
framers of the Code made no attempt
to equalize conditions among
It was obvious that the period fixed
more than would be required by many
shippers most of the time; at least, for
certain classes of traffic-; and that it
was less than would be required by some
shippers, most of the time, for any
kind of traffic. Among the reasons urged
for rejecting consideration of the need*
or [324] merits of the individual ship-
per was the fear that, under the gaiae
of exempting shippers from donurra^e
charges because of conditions peculiar
to them, unjust discrimination and re>
bates to favored shippers might result.
In applying the allowance of free
time and the charges for demurrage, the
single car was treated throughout aa
the unit, just as it is in the making of
carload freight rate^. Conmare Dar-
ling & Co. V. Pittsburgh, C: C. ft St. I^
R. Co. 37 Inters. Com. Rep. 401. The
effect on the charges of there being sev-
eral cars involved was, however, pro-
vided for by two rules : (1) The bnneh-
ing rule, under which the shipper is re-
lieved from charges if, by reason of the
carrier's fault, the cars are accumulated
and detention results. (2) The average
agreement rule, under which a monthly
debit and credit account is kept of do-
tention, and the shipper is relieved of
charges for detaining cars more than
forty-eight hours by credit for other ears
released within twenty-four hours.
It was urged that the use in this rule
of the word "shipment," and not "car,"
implies that the whole consignment i?
to be considered in determining whether
the delay was caused by the ore being
frozen. Obviously the word "shipment"
was used because it is not the car, but
that shipped in it, which is frozen. Fur-
thermore, the agreed facts do not state
whether the cars, which, by their num-
ber, prevented unloading within the
forty-eight hours, earner in one consign-
ment or in many.
Excessive receipts of ears are a fre-
quent cause of detention beyond the
free time even where shipments are not
frozen. From the resulting hardship
either the bunching rule or the average
agreement ordinarily furnishes relief. If
S5S U. 6.
10 m.
CREAM OF WHEAT t\>. v. COUNTY OF GRA^iD FORJtfe.
324, 325
the compauy had not elected to enter
into the average agreement, the bunch-
ing rule might have afforded relief un-
der the circumstances which attended
the deliveries here in question. Since
any one of the 227 cars on which de-
murrage was assessed might have been
unloaded within [325] the forty-eight
hours' free time, the undue deten-
tion was not the necessary result
of the ore therein being frozen, but
was the result of there being an ac-
eumulation of cars so great as to
exceed the unloading capacity. Com-
pare .Riverside Mills v. Charleston &
W. C. R. Co. 20 Inters. Com. Rep.
153, 155; Central Pennsylvania Lumber
Co. V. Director General, 53 Inters. Com.
Rep. 523. It does not seem probable
that those who framed and adopted the
frozen-shipment rule, and the Inter-
state Commerce Commission, which ap-
proved it, intended therein to depart
from the established policy of treating
the dngle ear as the unit in applying
demurrage eharges as well as in apply-
ing carload freight rates. Such was the
conclusion reached in the informal rul-
ing of the Commission to which counsel
called attention.
The judgment of the Supreme Court
of Pennsylvania is reversed.
CREAM OF WHEAT COMPANY, PUT. la
Err.,
V.
COUNTY OP GRAND PORKS in the SUte
of North Dakota.
(See 8. C. Reporter's ed. 825-830.)
OonsUtational law — dtte process of
law — equal protection of the laws —
corporate taxation.
1. A state may, consistently with U.
8. Const., 14th Amend., tax a corporation
organised under its laws upon the value of
its outstanding capital stock, although the
Note. — As to what constitutes due
process of law, generally — see notes to
People V. O'Brien, 2 L.R.A. 256; Kuntz
V. Sumption, 2 L.R.A. 655; Re Gannon,
5 L.R.A. 359; Ulman v. Baltimore, 11
L.R.A. 224} Gilman ▼. Tucker, 13
L.RJL; 304; Pearson v. Yewdall, 24 L.
ed. U. S. 436; and Wilson v. North
Carolina, 42 L. ed. U. 8. 865.
As to constitutional equality in the
United States in relation to corporate
taxation — see note to Bacon v. State
Tax Comrs. 60 L.R.A. 321.
64 Ti. ed.
corporation 8 propertv and busiiiesb are en
tirely in another state.
[FV)r othoi* casep, see CoBStitufional Law. IV
a. 4 ; IV. b. 6, a, In Digest Sup. Ct. 1908.1
ConsUtutlonal liiw — due process of
law » equal protection of the laws —
double taxation.
2. Nothing in U. S. Const., 14th Amend.,
prohibits a state from imposing doubU
taxation.
[For other cases, tee Constitutional Law, IV
a. 4; IV. b, e, a, In Digest Sup. Ct. 1908.)
[No. 302.]
Argued April 29, 1920. Decided June 1,
1920.
IN ERROR to the SiQ)reme Court of
the State of North Dakota to review
a judgment whieh, reversing the judg-
ment of the District Court of Grand
Forks County, in that state, directed
the entry of a judgment in favor of
such county in a suit to recover delin-
quent corporation taxes. Affirmed.
See same case below, 41 N. D. — , 170
N. W. 863.
The facts are stated in the opinion.
Messrs. Rome Q. Brown and Harry
S. Carson argued the cause, and, with
Messrs. Arnold L. Guesmer and Edwin
C. Brown, filed a brief for plaintiff in
error:
The tax attempted to be levied by §
2110, Compiled Laws of North Dakota
for 1913, is a property tax, and not a
franchise tax.
Flint V. Stone Tracy Co. 220 U. S.
107, 55 L. ed. 389, 31 Sup. Ct. Rep. 342;
State V. Duhith Gas A Water Co. 76 Minn.
96, 57 L.R.A. 63, 78 N. W. 1032; Beale,
Taxn. of Corp. Both Foreign & Domes-
tic, § 546; Joyce, Franchises, §§ 424,
5^;
752; State ex rel. Bain v. Seaboard &
R. R. Co. 52 Fed. 450; Delaware, L. &
W. R. Co. V. Pennsylvania, 198 U. S.
341, 49 L. ed. 1077, 25 Sup. Ct. Rep.
669; New York ex rel Bank of Com-
merce V. Tax Comrs. 2 Black, 620, 17
L. ed. 451; The Banks v. New York, 7
Wall. 16, 19 L. ed. 57; Bank Tax Case
On corporate taxation and the com-
merce clause — see note to Sandford v.
Poe, 60 L.R.A. 641.
On the taxation of corporate capital
stock, generally — see notes to State Bd.
of Equalijjation v. People, 58 LJci.A.
513; and East Livermore v. Livermore
Falls Trust So Bkg. Co. 15 L.R.A.(N.8.)
952.
On taxation of property in different
states as double taxation — see note to
Judy V. Beckwith, 15 L.R.A.(N.S.) J 42
981
SUPREME COURT OF THE UNITED STATES.
Oct. Tbbic,
(New York ex rel. Bank of Common-
wealth V. Tax & A. Comrs.) 2 Wall.
200, 17 L. ed. 793; Pullman's Palace
Car Co. V. Pennsylvania, 141 U. S. 18,
35 L. ed. 613, 3 Inters. Com. Rep, 595,
11 Sup. Ct. Rep. 876; Fargo v. Hart,
193 U. S. 490, 48 L. ed. 761, 24 Sup. Ct.
Rep. 498; Home Sav. Bank v. Des
Moines, 205 U. S. 503, 51 L. ed. 901,
27 Sup. Ct. Rep. 571; First Nat. Bank
V. Lucas County, 25 Fed. 749; Com. v.
Standard Oil Co. 101 Pa. 119; Mer-
chants' Ins. Co. V. Newark, 54 N. J. L.*
138, 23 Atl. 305; Nichols v. N-ew Haven
& N. Co. 42 Conn. 103; State v. Stone-
wall Ins. Co. 89 Ala. 335, 7 So. 753;
Society for Savings v. Coite, 6 Wall.
594, 18 L. ed. 897; Provident Inst. v.
Massachusetts, 6 Wall. 611, 18 L. ed
907; Kansas City, Ft. S. & M. R. Co.
V. Kansas, 240 U. S. 227, 60 L. ed. 617,
36 Sup. Ct. Rep. 261; Kansas City, M.
A B. R. Co. V. Stiles, 242 U. S. Ill, 61
L. ed. 176, 37 Sup. Ct. Rep. 58; Home
Ids. Co. v. New York, 134 U. S. 594,
33 L. ed. 1025, 10 Sup. Ct. R«p. 593;
Hamilton Mfg. Co. v. Massachusetts, 6
Wall. 632, 18 L. ed. 904; Com. v. Ham-
Uton Mfg. Co. 12 AUen, 298.
On the facts in this case the situs of
the Cream of Wheat Company's intan-
gible property is only where its tangi-
ble property is located and its business
conducted; namely, beyond the borders
of North Dakota; and, on the facts in
this case, North Dakota is as powerless
to tax intangible property, the situs of
which is beyond its borders, as it is to
tax tangible property beyond its bor-
ders.
Adams Exp. Co. v. Ohio State Audi-
tor, 165 U, S. 194, 41 L. ed. 683, 17 Sup.
Ct. Rep. 305, 166 U. S. 185, 41 L. ed.
965, 17 Sup. Ct. Rep. 604; Western U.
Teleg. Co. v. Atty. Gen. 125 U. S. 530,
31 L. ed. 790, 8 Sup. Ct. Rep. 961; Atty.
Gen. v. Western U. Teleg. Co. 141 U.
S. 40, 35 L. ed. 628, 11 Sup. Ct. Rep.
889; Maine v. Grand Trunk R. Co. 142
U. S. 217, 35 L. ed. 994, 3 Inters. Com.
Rep. 807, 12 Sup. Ct. Rep. 163; Pitts-
burgh, C. C. & St. L. R. Co. v. Backus,
154 U. S. 421, 38 L. ed. 1031, 14 Sup.
Ct. Rep. 1114; Cleveland, C. C. A St. L.
R. Co. V. Backus, VA U. S. 439, 38
L. ed. 1041, 4 Inters. Com. Rep. 677, 14
Sup. Ct. Rep. 1122; Western U. Teleg.
Co. V. Taggart, 163 U. S. 1, 41 L. ed.
49, 16 Sup. Ct. Rep. 1054; Pullman's
Palace Car Co. v. Pennsylvania, 141 U.
S. 18, 35 L. ed. 613, 3 Inters. Com. Rep.
595, 11 Sup. Ct. Rep. 876; Louisville &
I. Ferry Co. v. Kentucky, 188 U. S. 385,
47 L. ed. 513, 23 Sup. Ct. Rep. 403;
•^2
Com. V. West India Oil Ref. Co. 138
Ky. 828, 36 L.R.A.(N.S.) 295, 129 S.
W. 301.
Messrs. Albert £. Sheets, Jr., and
George £. Wallace, argued the cause,
and, with Mr. William Langer, Attor-
ney General of North Dakota, filed a
brief for defendant in error:
The statute is invalid only to the ex«
tent that it is too favorable to the
plaintiff in error.
State v. Duluth Gas & Water Co. 76
Minn. 96, 57 L.R.A. 63, 78 N. W. 1032.
The tax, howsoever designated, is one
falling within the taxing jurisdiction of
the state
Kansas City, Ft. S. A M. R. Co. v.
Botkin, 240 U. S. 227, 230, 233, 60 L. ed.
617t619, 36 Sup. Ct. Rep. 262; 1 Cooley,
Taxn. 3d ed. pp. 402, 676, 677; Del-
aware R. Tax, 18 Wall. 206, 231, 21
L. ed. 888, 896; Rogers v. Hennepin
County, 240 U. S. 184, 60 L. ed. 594, 36
Sup. Ct. Rep. 265.
The power of a sovereign state to
create a corporation has always been
held to imply and embrace certain ju-
risdiction for tax purposes, and ^is
jurisdiction may be exercised in a va-
riety of ways.
Gray, Limitations of Taxing Power, §
48; Judson, Taxn. § 403; 1 Cooley,
Taxn. 3d ed. pp. 26, 27; Southern P. Co.
V. Kentucky, 222 U. S. 63, 56 L. ed. 96,
32 Sup. Ct. Rep. 13; State Tax on For-
eign-held Bonds, 15 Wall. 300, 21 L. ed.
179.
As a tax upon a species of intangi-
ble property, it is within the jurisdic-
tion of the state.
Hawlev v. Maiden, 232 U. S. 1, 58
L. ed. 477, 34 Sup. Ct. Rep. 201, Ann.
Cas. 1916C, 842; Rogers v. Hennepin
County, 240 U. S. 184, 191, 60 L. ed.
594, 599, 36 Sup. Ct. Rep. 265.
While the state may be without
authority to impose a property tax up-
on the corporation without first deduct-
ing property owned by the corporation
in a foreign jurisdiction, nevertheless
it has the power, under the Constitu-
tion, to establish within its own juris-
diction the situs of the stock for the
purpose of taxation, without r^^ard to
the location of the property of the cor-
poration issuing the stock.
Corry v. Baltimore, 196 U. S. 466,
476, 49 L. ed. 556, 561, 25 Sup. Ct Rep.
297; Flash v. Conn, 109 U. S. 371, 27
L. ed. 966, 3 Sup. Ct. Rep, 263; Whit-
man V. National Bank, 176 U. S. 559,
44 L. ed. 587, 20 Sup. Ct. Rep. 477;
aftS IT. 8.
1919.
CREAM OF WHEAT 00. ▼. COUNTY OF QKAND F0RK8.
82^328
Plafct V. Wilmot, itfS U. S. 602, 612, 48
L. ed. 809, 813, 24 Sup. Ct. Rep. 542.
The state may tax the shares in do-
mestic corporations at their source.
Harvester Bldg. Co. v. Hartley, 98
Kan. 732, 160 Pac. 971, 99 Kan. 73, 160
Pao. 973; Durham County v. Blackwell
Durham Tobacco Co. 116 N. C. 441, 21
S. E. 423; State ex rel. Atty. Gen. v.
Bodcaw Lumber Co. 128 Ark. 506, 194
8. W. 692.
Mr. Justice Brandeis delivered the
opinion of the court:
^ the statutes of North Dakota, as
coDfltrued by the supreme court of the
state, a manufacturing corporation or-
ganized under its laws is taxed in the
following manner: Its real and personal
property within the state is assessed like
that of an individuaL In addition there
is assessed against it an amount equal
to the aggregate market value of its out-
standing stock, less the value of its real
and personal* property and certain in-
debtednesSb The corporation, in sub-
mitting its list of property for pur-
poses of tattktion, is required to enter
this additional amount as ''bonds and
stocks'' under item 23 in the prescribed
statutory schedule. On this additional
amount, as upon the value of its real
and personal property, the corporation
is taxed at the. same rate and in the
same manner as individuals are upon
their property. The statute does not in
terms impose a franchise tax as dis-
tinguished, or separated, from a tax on
personal property, but the supreme
court of [327] the state c<mstrues the
tax upon this additional amount as
a tax, ''in substance or effect, to some
degree, at least, upon the privilege
of being a corporation;" or, in other
words, a tax upon corporate fran-
chise granted it by the state. In-
dividuals are not required to include
in their lists of taxable property
any share or portion of the capital
stock or property of any corporation
which such corporation is required to
list. Compiled Laws of North Dakota
for 1913, §§ 2110, 2103, 2102, 2077.
Grand Forks County v. Cream of Wheat
Co. 41 N. D. 330, 170 N. W. 863.
The Cream of Wheat Company was
incorporated under the laws of North
Dakota after the enactment of the tax
legislation above described, and it main-
tained throughout the years 1908 to
1914, both inclusive, a public oQ\oe in
•4 li. ed. -
the city of Grand Forks, in said state,
for the transaction of its usual and cor-
porate business. Its manufacturing,
commercial, and financial business was
conducted wholly without the state; and
it had not at any time during any of
those years within the state either any
tangible property, real or personal, or
any papers by which intangible property
is customarily evidenced. Its property,
as distinguished from its franchise, is
alleged to have been taxed in states
other than North Dakota. In 1914 the
officials of North Dakota assessed against
the company in the manner prescribed
by law for each year from 1908 to 1913,
both inclusive, a tax at the uniform rate
on the sum of $50,000, as representing
personal property, to wit, "bonds and
stocks'' which had escaped taxation.
They also assessed a similar tax for the
then current year. The taxes not being
paid, this action was. brought in a state
court for the amount; and the facts
above stated were proved. The trial
court entered judgment for the defend-
ant; but its judgment was reversed by
the supreme court of the state, which
entered judgment for the county for the
full amount of the taxes. The case is
here on writ of error under § 237 of
the Judicial Code [36 Stat, at L. 1156,
chap. 231, Comp. Stat. § 1214, 5 Fed.
Stat. Anno. 2d ed. p. 723].
[328] The company concedes that
the state of North Dakota might con-
stitutionally have imposed a franchise
tax upon a corporation organized un-
der its laws, even though it had
no property within the state. The
contentions are that the supreme court
of North Dakota erred in holding that
the tax here in question was a fran-
chise tax; that it was in reality a
property tax upon intangible property;
that the company's intangible property
must be deemed to have been located
where its tangible property was; and
that in taxing property beyond its limits
North Dakota violated rights guaranteed
by the 14th Amendment. The view
which we take of the matter renders it
unnecessary to consider the question
whether or not the law under discus-
sion imposed a franchise tax or a prop-
erty tax. Compare Hamilton Mfg. Co.
V. Massachusetts, 6 Wall. 632, 18 L. ed.
904; Com. v. Hamilton Mfg. Co. 12
Allen, 298. The view also renders it un-
necessary to consider whether the com-
pany, having been incorporated in North
933
328-330
SUPREMK COURT OF THE UNireD STAlTilS.
Oct.
Dakota after the enactment of the law
m question, is in a position to- complain.
Compare Interstate Consol. Street R.
Co. V. Massachusetts, 207 U. S. 79, 84,
52 L. ed. in, 114, 28 Sup. Ct. kep. 26,
12 Ann. Gas. 555; International & G.
N. R. Co. V. Anderson County, 246 U. S.
424, 433, 62 L. ed. 807, 816, 38 Sup. Ct.
Rep. 370; Corry v. Baltimore, 196 U. S.
466, 49 L. ed. 556, 25 Sup. Ct. Rep. 297.
The company was confessedly dom-
iciled in North Dakota, for it was in-
corporated under the laws of that state.
As said by Mr. Chief Justice Taney : *1t
must dwell in the place of its creation,
and cannot migrate to another sovereign-
ty." Bank of Augusta v. Earle, 13 Pet.
619, 588, 10 L. ed. 274, 307. The fact
that its property and business were en-
tirely in another state did not make it
any the less subject to taxation in the
state of its domicih The limitation im-
posed by the 14th Amendment is mere-
ly that a state may not tax a resident
for property which has acquired a per-
manent situs beyond its boundaries.
This is the ground on which the ferry
franchise involved in Louisville ft J.
Ferry Co. v. Kentucky, 188 [329] U.
S. 385, 47 L. ed. 513, 23 Sup. Ct.
Rep. 463 (an incorporeal heredita-
ment partaking of the nature of real
property),^ and the tangible personal
property permanently outside the state,
involved in Delaware, L. & W. R.
Co. V. Pennsylvania, 198 U. S. 341,
49 L. ed. 1077, 25 Sup. Ct. Rep. 669,
and Union Refrigerator Transit Co.
V. Kentucky, 199 U. S. 194, 50 L. ed.
150, 26 Sup. Ct. Rep. 36, 4 Ann. Cas.
493, were held immune from taxation by
the states in which the companies were
incorporated. The limitation upon the
power of taxation does not apply even
1 See Hawley v. Maiden, 232 U. S. 1, 12,
68 L. ed. 477, 482, 34 Sup. Ct. Rep. 201,
Ann. Cas. 1916C, 842; Bowman v. Wathen,
2 McLean, 376, Fed. Ca9. No. 1,740; Lewis
V, Gainesville, 7 Ala. 8r»; Dundy v. Cham-
bers, 23 111. 369; Reg. v. Cambrian R.
Co. L. R. 6 Q. B. 422, 40 L. J. Q. B. N. S.
169, 26 L. T. N. S. 84, 19 Week. Rep. 1138.
Compare Thompson v. Schenectady R. Co.
124 Fed. 274. The *'f ranch ise" referred to
in Home Ins. Co. v. New York, 134 U. S.
594, 601, 33 L. ed. 102.5. 1030, 10 Sup. Ct.
Rep. 693, as personal property, consisted
in the right to do business as a corporation ;
nee p. 699.
984
to tangible personal prol>erty without
the state of the corporation's domicil, if.
like a sea-going vessel^ the property has
no permanent situs anywhere. Southern
P. Co. V. Kentucky, 222 U. S. 63, 68,
66 L. ed. 96, 32 Sup. Ct. Rep. 13. Nor
has it any application to intangibU
property (Union Refrigerator Transit
Co. V. Kentucky, 199 U. S. 205, 50 L.
ed. 154, 26 Sup. Ct. Rep. 36, 4 Ann. Caa.
493; Hawley v. Maiden, 232 U. S. 1, 11,
58 L. ed. 477, 482, 34 Sup. Ct Rep. 301,
Ann. Cas. 1916C, 842), even though the
property is also taxable in another state
by virtue of having acquired a ''businen
situs'^ there (Fidelity A C. Trust Co.
V. Louisville, 245 U. S. 54, 59, 62 L. ed.
145, 148, L.R.A.1918C, 124, 38 Sup. Ct.
Rep. 40). As stated in that case: **It
is unnecessary to consider whether th«
distinction between a tax measured by
certain property and a tax on that prop-
erty could be invoked in a case like this.
Flint V. Stone-Tracy Co. 220 U. S. 107,
146, 162, et seq., 55 L. ed. 389, 411, 417,
31 Sup. Ct. Rep. 342, Ann. Cas. 1912B,
1312. Whichever this tax technieallj
may be, the authorities show that it
must be sustained.''
Counsel for the company direct our at-
tention to cases like Adams Exp. Co. ▼.
Ohio State Auditor, 165 U. S. 194, 227,
41 L. ed. 683, 697, 17 Sup. Ct. Rep. 305,
166 U. S. 185, 41 L. ed. 065, i7 Snp.
Ct. Rep. 604, which hold that a state maj
tax a foreign corporation not only on th«
value of its tangible property within tha
state, but also on that proportion of its
entire [830] intangible property which
is fairly represented by and must be
included, in order to place a just
value on the tangible property locat-
ed and the business transacted thera.
The conclusion drawn by them is that
the situs of the intangible property
must be with the tangible; otherwise*
they say, we must hold that it is
in two places at once, and that it
may be subjected to double taxation.
To this it is sufficient to say thai
the 14th Amendment does not prohibit
double taxation. Coe v. Enrol, 116 U.
8. 517, 624, 29 L. ed. 715, 717, 6 Sup
Ct. Rep. 475; Kidd v.. Alabama, 188 V.
S. 730, 732, 47 L. ed. 669, 672, 23 Sup.
Ct. Rep. 401; Fidelity & C. Trust Co. t.
Louisville, supra.
Affirmed*
l«19. UNITED 8rATi:S v. NOKTH AMERICAN TRANSP. k TRADING CO. 330
UNITED STATES. Appi.,
V.
NORTH AMERICAN TRANSPORTATION
& TRADING COMPANY. ( No. S19. )
NORTH AMERICAN TRANSPORTATION
k TRADING COMPANY, Appt,
V.
UNITED STATES.* (No. 320. )1
(8m & 0. Reporter '0 ed. 330-338.)
fJnIted States — implied contracts —
oompensatloii for taking private
property.
1. When the government^ without in-
fttitutin^ condemnation proceedinffs, appro-
priates Tor a public use under legislatiyo
authority private property to which it as-
terta no title, it impliedly promises to pay
therefor.
(For other caws, see United States, VI. c. In
Digest Sup, Ct. 1908.1
tilmitation of actions « suit against
United States — compensation for
taklnflT property.
2. The taking of a placer mining claim
as part of a site for an army post must, for
the purpose of applying the Statute of
Limitations to a suit against the govern*
ment for compensation, he deemed to have
been on the date of the approval or ratifies*
lion by the Secretary of War of the unau-
thorized action of a military commander in
taking possession, and not on the date of
the latter's action, in view of the fact that
the Secretary of War alone possessed the
requisite authorization from Congress to de-
termine whether the army post should be
^established and what land snould be taken
therefor, and the Secretary's action was
aont the less a taking of the mining claim
because the President, when reservmg the
tract from sale and setting it aside for
military purposes, had done so "subject
to any legal rights which may exist to any
land within its limits."
(For other cases, see Umitation of Actions.
II. m, in Digest Sup. Ct. 1908.]
United States — Implied contracts -»
oompensatlon for taking private prop-
erty.
S. The continued holding possession of
s placer mining claim as part of an army
post after the announcement by the Secre-
tary of War that the tract of which it
formed a part was a public reservation un-
der eontrol of the War Department, and
the erection of buildings thereon by his
authority, is such an appropriation as gives
a right of action to the owner against the
t J^eave granted June 7, 1020, to present
a petition for rehearing within sixty days,
en motion of counsel for the appellant.
Note. — As to payment for private
property taken for public use — see note
to Withers v. Bueklev. 15 L. e<\. U. S.
§16.
«4 L. ed.
United States to recover compensation as
upon implied contract.
[For other cases, see UDited States, VI. c, Jd
Digest Sup. Ct. 1908.1
Damages — compensation for property
taken by United States — Interest —
use and occupation.
4. The compensation recoverable in the
court ol claims for the taking by the gov-
ernment of private property in Alaska for
a public use is the value of the property
as of the date of the taking. It cannot in-
clude any amount for use and occupation
between the time of the taking and the en-
try of judgment, where, except for an al-
legation in the petition that the United
States is indebted in a specified amount for
use and occupation, there was no request
in the court of claims of any kind in re-
spect to such allowance, and that court
did not mention the subject in its opinion,
and it is not referred to in the application
for an appeal, since, if it is interest that
the owner seeks, its allowance is forbidden
by the Judicial Code, § 177, and, if it is not
interest, the facts found fail to supply the
basis on which any claim in addition to
that for the value of the property should
rest.
[For other cases, see Damages, YI. a, la Di-
gest Sup. Ct 1908.]
• [Nos. 310 and 320.]
Argued April 30, 1020. Decided June 1,
1020.
CROSS APPEALS from the Court of
Claims to review an award of com*
pensation for a placer mining claim
taken as part of a site for an army
post. AfiSrmed.
See same case below, 53 Ct. Cl^ 424.
The facts are stated in the opinion.
Assistant Attorney General Davis ar-
gued the cause, and, with Solicitor
General King and Mr. B. P. Whiteley,
filed a brief for the United States:
The taking by the government was
on July 1, 1900, and the action in the
court of claims was barred by the stat-
ute.
Meigs V. M'Clung, 9 CrancTi. 11, 3
L. ed. 639; Wilcox v. Jackson, 13 Pet.
498, 10 L. ed. 264; Brown v. Hnger, 21
How. 305, 16 L. ed. 125; United States
V. Lee, 106 U. 8. 196, 27 L. ed. 171, 1
Sup. Ct. Rep. 240; Scranton v. Wheeler,
179 U. 8. 141, 45 L. ed. 126, 21 Sup. Ct.
Rep. 48; United States v. Great Falls
Mfg. Co. 112 U. S. 645, 666, 28 L. ed.
846, 850, 5 Sup. Ct. Rep. 306; United
States V. Lynah, 188 U. S. 445, 470, 47
L. ed. 639, 648, 23 Sup. Ct. Rep. 349;
United States v. Chandler-Dun bar Wa>
ter Power Co. 229 U, S. 53, 76, 67 L.
ed. 1063, 1080, 33 Sup. Ct. Rep. 667;
United States v. Crests 243 U. S. 316,
61 L. ed. 746, 37 Sup. Ct. Rer>. 38i».
»3 5
331, 332
8UP&£3i£ COURT OF THE UNITED STATES.
Oct.
If the possession taken by General
Randall was unlawful, that taken by
the Executive was equally so, and the
taking being tortious, the petition in
the court of claims must be dismissed.
United States v. Lee, 106 U. S. 196,
27 L. ed. 171, 1 Sup. Ct. Rep. 240.
In no case where private property
has been appropriated by the construc-
tion of public wo];^s upon it, where the
appropriation has been found to be a
complete and permanent one, has there
been any award or allowance or judg-
ment for the use and occupation of the
property by the government pending
the payment of just compensation.
This is so, because the ownership, if
the taking is lawful^ vests in the gov-
ernment as soon as physical possession
is had, although the title may not be
complete until compensation is paid the
owner. Any additional allowance for
use and occupation until the money
awarded be actually paid over would be
in the nature of interest, which the
court of claims is forbidden by law to
allow unless it be stipulated for by con-
tract, or authorized by statute.
United States v. North Carolina, 136
U. S. 211, 216, 34 L. ed. 336, 338, 10
Sup. Ct. Rep. 920; Sweet v. Rechel, 159
U. S. 380, 407, 40 L. ed. 188, 198, 16
Sup. Ct. Rep. 43; Bauman v. Ross, 167
U. S. 548, 598, 42 L. ed. 270, 291, 17
Sup. Ct Rep. 966; United States v.
Lynah, 188 U. S. 445, 47 L. ed. 539, 23
Sup. Ct. Rep. 349.
Mr. Burt E. Barlow argued the cause,
and, with Mr. Abram R. Serven, filed a
brief for the North American Trains-
portation ft Trading Company:
The property of cross appellant could
not be taken for public use without
payment of just compensation under
the 5th Amendment of the Constitution
of the United States, and, on failure
upon the part of defendants to con-
demn the land so taken, the cross ap-
pellant could (if public policy did not
prevent) bring an action of ejectment
against the agents of the government,
or could waive its right to condemna-
tion proceedings and sue upon the im-
plied promise of the defendants to pay
just compensation.
United States v. Great Falls Mfg.
Co. 112 U, S. G45, 28 L. ed. 846, 6 Sup.
Ct. Rep. 306; United States v. Archer,
241 U. S. 119, 60 L. ed. 918, 36 Sup.
Ct. Rep. 521; United SUtes v. Lynah,
188 U. S, 445-474, 47 L. ed. 539-550, 23
Sup. Ct. Rep, 349.
Just compensation includes damages
for the value of the property at the
930
I time of the taking, and also, when the
I owner of the property is deprived of
the use and occupation thereof, dam-
ages for such deprivation.
Bloodgood V. Mohawk & H. River R.
Co. 18 Wend. 35, 31 Am. Dec. 313;
Shoemaker v. United States, 147 U. S.
282, 320, 321, 37 li. ed. 170, 188, 13 Sop.
Ct. Rep. 361; Phillips v. South Park,
119 111. 645, 10 N. E. 230; Cohen v. St.
Louis, Ft. S. ft W. R. Co. 34 Kan. 168,
55 Am. Rep. 242, 8 Pac. 138; Lake
Koew Nav. Reservoir ft Irrig. Co. v..
McLain Land ft Invest. Co. 69 Kan. 341,
76 Pac. 853; Moll v. Sanitary Dist. 131
111. App. 160, 228 111. 636, 81 N. E. 1147;
Allantic & G. W. R. Co. v. Koblentz, 21
Ohio St. 338; Sioux City, etc., R. Co. v.
Brown, 13 Neb. 319, 14 N. W. 407.
The sum allowed for the use and oe-
cupation is not interest.
Klages V. Philadelphia ft R. Terminal
Co. 160 Pa. 389, 28 Atl. 862.
The title to the property taken for
the use of the public does not pass to
the public until the amount determined
to be the just compensation is paid.
United States v. Lynah, 188 U. S. 470,
47 L. ed. 548, 23 Sup. Ct. Rep. 349.
The United States government is not
responsible for the tortious acts of its
officers, and the tortious acts of its offi-
cers cannot be waived by other officers,
but can only be waived by direct and
explicit action of Congress.
Belknap V. Schild, 161 U. S. 10, 17,
40 L. ed. 599, 601, 16 Sup. Ct. Rep. 443;
Stanlev v. Schwalby, 162 U. S. 255, 270,
40 L. ed. 960, 965, 16 Sup. Ct. Rep. 754.
Mr. Justice Brandeis delivered the
opinion of the court:
This suit was brought by the North
American Transportation ft Trading
Company in the court of claims on De-
ceml^r 7, 1906. The petitioner seeks to
recover the [S3Q] value of a plaoer
mining claim situated on the pnfaiie
land near Nome, Alaska, which is
alleged to have been taken by tbo
government on December 8, 1900, and
also compensation for use and occu-
pation thereof after that date. Own-
er^p of the property by the company
and the physical taking and contin-
ued possession of it by the govern-
ment were not controverted. The lower
court found, also, that about July 1,
1900, General Randall, United SUtea
Army, commanding the Department of
AlasKa, took possession, as a site for an
army post, of a large tract of public laad
which included the mining claim. The
' company yielded possession of the part
occupied by it, being unable to withstand
I91t. UNITED STATES v. NOKTH AMERICAN TRANSP. & TRADING CO. Z'62-^'M
his authority; but at the same time it
demanded compensation which General
Randall promised would be paid. Use of
the site for an army post was thereafter
recommended by him to the Secretary of
War. Pursuant to this recommendation,
the President issued on- December 8,
1908, an order by which tiie tract was
reserved from sale and set aside for
military purposes-; and on December 20,
1908, the Secretary of" War announced it
as a public reservation, for the present
under the control of the War Depart-
ment. The tract has been used as an
army post continuously since possession
was first taken by General Randall. The
buildings erected thereon are situated on
that portion of the land which had been
the company's placer claim; so that at
00 time since General Randall took pos-
session of the land has the company been
able to operate its claim or do any fur-
ther mining work thereon.
The government contended that, if, on
the facts, there was a l^al taking or
other act entitling, petitioner to recover
compensation, the cause of action had
accrued more than six years prior to the
commencement of this suit; and that
therefore, under § 156 of the Judicial
Code [36 Stat, at L. 1139, chap. 231,
Comp. Stat. § 1147, 5 Fed. Stat. Anno.
2d ed. p. 668], the petition should be
dismissed. The court of claims found that
the company's property was taken with-
in the [338] six years; that is, on De-
cember 8, 1900; and that its then reason-
able value was $23,800. It entered judg-
ment for that amount (63 Ct. Cl. 424).
Both parties appealed. The government,
on the ground that the. right of recov-
ery, if any, was* barred; the company,
on the ground that no compensation was
allowed for the use and occupation be-
tween the date of the taking and the date
of entry of judgment.
First. When the government, without
instituting condemnation proceedings,
appropriates for a public use, under leg^
ialative authority, private property to
which it asserts no title, it impliedly
promises to pay therefor. United States
V. Great Falls Mfg. Co. 112 U. S. 645,
28 L. ed. 846, 5 Sup. Ct. Rep. 306; Unit-
ed States V. Lynah, 188 U. S. 445, 462,
466, 47 L. ed. 639, 645, 546, 23 Sup. Ct.
Rep. 349; United States v. Cress, 243
U. S. 316, 329, 61 L. ed. 746, 753, 37
Sup. Ct. Rep. 380. But although Con-
gress may have conferred upon the
Executive Department power to take
land for a g^ven purpose, the govern-
ment will not be deemed to have so ap-
Sropriated private property, merely be-
4 L. ed.
cause some officer thereafter takes pos-
session of it with a view to effectuating
the general purpose of Congress. See
Ball Engineering Co. v. J. G. While &
Co. 250 U. S. 46, 64-57, 63 L. ed. 835,
839, 840, 39 Sup. Ct. Rep. 393. In order
that the government shall be liable, it
must appear that the officer who has
physically taken possession of the prop-
erty was duly authorized so to do, either
directly by Congress or by the official
upon whom Congpress conferred the pow-
er.
The Acts of March 3, 1899, chap. 423,
30 Stat, at L. 1064, 1070, and May 26,
1900, chap. 586, 31 Stat, at L. 205, 213,
making appropriations for barracks and-
quarters for troops, furnish sufficient au-
thorisation from Congress to take land
for such purposes, so that the difficulty
encountered by the claimant in Hooe v.
United States, 218 U. S. 322, 54 L. ed.
1055, 31 Sup. Ct. Rep. 85, does not exist
here. But the power granted by those
acts was conferred upon the Secretary
of War. Act of August 1, 1888, chap.
728, § 1, 25 Stat, at L. 357, Comp. Stat.
§ 6909, 8 Fed.*Stat. Anno. 2d ed. p. 1111;
Act of August 18, 1890, chap. 797, § 1,
26 Stat, at L. 316, Comp. Stat. § 6911,
8 Fed. Stat. Anna 2d ed. p. 1116. It was
for him to determine whether [334]
the army post should be established and
what land should be taken therefor.
Compare Nahant v. United States, 69
L.R.A. 723, 70 C. C. A. 641, 136 Fed. 273,
82 C. C. A. 470, 163 Fed. 520; United
States V. Certain Lands, 145 Fed. 654.
Power to t^ke possession of the com-
pany's mining claim was not vested by
law in General Randall; and the Secre-
tary of War had not, so far as appears,
either authorized it or approved it he-
fore December 8, 1900. It was only
after the Pre^dent reserved from sale
and set aside for military purposes the
large tract of land in which the com-
pany's mining claim was included that
the Secretary of War took action which
may be deemed an approval or ratifica-
tion of what General Randall had done.
What he had done before that date hav-
ing been without authority, and hence
tortious, created no liability on the part
of the government. J. Ribas y Hijo v.
United States, 194 U. S. 315, 323, 48
L. ed. 994, 996, 24 Sup. Ct. Rep. 727.
Since the cause of action arose after
December 7, 1900, this suit was not
barred by § 156 of the Judicial Code.
The suggestion is made that, as the
President's order reserved the land "sub-
ject to any legal rights which may ex-
ist to any land within its limits," the
•S7
334-336
SUPllKME (JOCRT OF TUK LMTKD STATES.
Oct.
Secretary's action thereafter was not a
taking of the mining claim. But this
clause and the reference to it in the
announcement made by the Secretary
musty in view of the circumstances, have
meant merely that the right to compen-
sation of the company and of any others
was preserved. Furthermore, the sug-
gestion, if sound, would not aid the gov-
ernment; it would result, at most, in
slightly postponing the date of the legal
taking. For the continued holding pos-
session of the land after the announce-
ment of the Secretary of War, and the
erection of buildings thereon b^ his au-
thority, was such an appropnation as
would, in any event , give the right of
action against the government.
Second. The company contends that it
should receive, in addition to the value
of the property at the time of the tak-
ing, compensation for the occupation and
use [835] thereof from that date to the
date of the judgment, — a period of nearly
twenty years, during which the company
was deprived of the use of its property.
This contention is based upon the deci-
sions of many state courts that, upon the
taking of private property for public
uses, the owner is entitled to recover,
besides its value at the time of the tak-
ing, interest thereon from the date on
which he was deprived of its use to the
date of payment.^ In a number of cases
in the lower Federal courts also the
landowner has been permitted to recover
interest from the time of the taking; but
in each such case a statute had provided
in some form that the condemnation
should be conducted according to the
laws of the state in which the land was
situated; and under the law of the state
interest was recoverable. United States
V. Engeman, 46 Fed. 898; Hingham v.
United States, 88 C. C. A. 341, 161 Fed.
296, 300, 16 Ann. Cas. 106; United States
V. Saigent, 89 C. C. A. 81, 162 Fed. 81 ;
United States ▼. First Nat. Bank, 250
Fed. 299, Ann. Cas. 1918E, 36; United
States V. Rogers, 168 C. C. A. 437, 257
Fed. 397; United States v. Highsmith,
168 C. C. A. 441, 257 Fed. 401. These con-
formity provisions which relate only to
the laws of states can have no appli-
cation to lands in Alaska; nor can they
alfect proceedings brought in the court
of claims.
The right to bring this suit against
the United States in the court of claims
is not founded upon the 5th Amendment
(Sehillinger v. United States, 155 U. 8.
1 See cases collected in 15 Cyc. 930. 931,
and in 10 R. C. L. p. 163.
9S8
163, 168, 39 L. ed. 108, 110, 15 Sup. Ct
Rep. 85; Basso v. United States, 239 U
S. 602, 60 L. ed. 462, 36 Sup. Ct. Rep
226) f but upon the existence of an im-
plied contract entered into by the Unit
ed States (Langford v. United States,
101 U. S. 341, 25 L. ed. 1010; Bi^y y.
United States, 188 U. S. 400, 47 L. ed
619, 23 Sup. Ct. Rep. 468; Temple v
United States, 248 U. 3. 121, 129, 63 L.
ed. 162, 164, 39 Sup. Ct. Rep. 66; United
States V. Great Falls Mfg. Co. and Unit-
ed States V. Lynah, supra). And tiie
contract which is implied is to pay the
value of property as of the date of the
taking. Bauman v. Ross, 167 [8SS]
U. S. 648, 587, 42 L. ed. 270, 287,
17 Sup. Ct. Rep. 966; United States
V. Honolulu Plantation Co. 58 C. C.
A. 279, 122 Fed. 581, 685; Burt y.
Merchants' Ins. Co. 115 Mass. 1, 14.
Interest may not be added because
§ 177 of the Judicial Code, re-enaeting
§ 1061 of the Revised Statutes, de
Clares that ''no interest shall be allowed
on any claim up to the time of the rendi-
tion of judgment thereon by the court of
claims, unless upon a contract expressly
stipulating for the payment of interest.
Tillson V. United States, 100 U. S. 43, 25
L. ed. 543. Congress, in thus denying
to the court power to award interest,
adopted the common-law rule that de-
lay or default in payment (upon which,
in the absence of express agreement, the
right to recover interest rests) cannot be
attributed to the sovereign. United
States V. North Carolina, 136 U. S. 211,
216, 34 L. ed. 336, 338, 10 Sup. Ct Rep.
920. That rule had theretofore been uni-
formly applied in our executive depart-
ments except where statutes provided
otherwise. United States v. Sherman,
98 U. S. 565, 567, 568, 25 L. ed. 235-237
So rigorously is the rule applied, that in
the adjustment of mutual claims between
an individual and the government, the
latter has been held entitled to interest
on its credits, although relieved front th«
payment of interest on the charges
against it. United States v. Verdier.
164 U. S. 213, 218, 219, 41 L. ed. 407,
409, 410, 17 Sup. Ct. Rep. 42. This d^
nial of interest, like the refusal to tax
costs against the United States in favor
of the prevailing party (Stanley y.
Schwalby, 162 U. S. 255, 272, 40 L. ed.
960, 966, 16 Sup. Ct. Rep. 754; Pine
River Logging & Improv. Co. v. United
States, 186 U. S. 279, 296, 46 L. ed
U64, 1172, 22 Sup. Ct Rep^ 920), and
the refusal to hold the United States
liable for torts committed hv ita offi
aas IT. 6.
*s
J 919. UNITED STATES v. NORTH AMERICAN TRANSP. & TRADING C0.336-33b
cers and agents in the ordinary course
of business (Crozier v. Fried .Kmpp
Aktiengesellscbaft, 224 U. S. 290, 56
L. ed. 771, 32 Sup. Ct. Rep. 488), are
hardships from which, with rare excep-
tions (William Cramp Sons Ship & En-
gine Bldg. Co. ▼. International Curtis
Ifarine Turbine Co. 246 U. S. 28, 40, 41,
62 L. ed. 560, 565, 566, 38 Sup. Ct.
Rep. 271), Congress has been unwilling
to relieve those who either voluntarily
deal with the government or are other-
wise affected by its acts.
The company argues that interest is
allowed in .condemnation proceedings,
not qua interest for default or [337]
delay in paying the value, but as the
measure of compensation for the use
and occupation during the period which
S recedes the passing of the title (see
[lages V. Philadelphia & R. Terminal
Co. 160 Pa. 386, 28 Atl. 862); and
that collection of an amount, meas-
ured by interest, is not prohibited
either by the statute limiting the. pow-
ers of the court of claims or by
the common-law rule which exempts
the sovereign from liability to pay
interest (United States v. New York,
160 U. S. 598, 622, 40 L. ed. 551, 559,'
16 Sup. Ct. Rep. 402). This may
be the theory on which interest should
be allowed in compensation proceed-
ings;' and it may be that, even in the
absence of the conformity provision re-
ferred to above, interest could be col-
lected as a part of the just compensation
in oondemnation proceedings brought by
the government. For, as suggested in
United States v. Sargent, 89 C. C. A. 81,
162 Fed. 81, such a proceeding is not a
suit by the landowner to collect a claim
against the United States, but an ad-
versary proceeding in which the owner
is the defendant, and which the govern-
ment institutes in order to secure title
to land. Mason City & Ft. D. R. Co. v.
Boynton, 204 U. S. 570, 51 L. ed. 629, 27
Sup. Ct. Rep. 321. On the other hand,
this suit, brought in the court of claims,
18 a very different proceeding. * It is an
aetion of contract to recover money
which the United States is assumed to
have promised to pay; and the assumed
• Compare Moll v. Sanitary Dist. 228 111.
533, 63^ 81 N. E. 1147; Lake Keen Nav.
Reservoir & Irrig. Co. v. McLain Land &
Invest. Co. 69 Kan. 334, 341, 342, 76 Pac.
863; Kidder v. Oxford, 116 Mass. 105;
Hammersley v. New York, 66 N. Y. 533,
537; Sioux City, etc., R. Co. v. Brown, ]3
Neb. 317, 319, 14 N. W. 407; Atlantic &
O. W. R. Co. V. Koblentz, 21 Ohio Ji^t. 334.
338.
•4 li. ed.
promise was to pay the value at the
time of the taking. The suit is in effect
an action on two counts, — one for the
value of the mining claim, the other for
use and occupation after December 8,
1900, at the rate of $7,500 per year.
If the company had brought the suit
immediately after the taking it clearly •
could not have recovered any amount for
Qse and occupation; for a plaintiff suing
in contract [838] can recover only on
a cause of action existing at the time
the suit was brought. The loss to
the company of the use of $23,800,
which is found to be the value of
the mining claim when it was taken,
nearly twenty years ago, must be
deemed to be due, in part, to its de-
lay in instituting the suit, and, in part,
to the delays of litigation for which
it may have been largely responsible.
But as, in either event, the loss of the
use of the money results from the fail-
ure to collect sooner a claim held to
have accrued when the company's prop-
erty was taken, that which the company
seeks to recover is, in substance, inter-
est, and that Congress has denied to the
court of claims power to allow.
Furthermorei if it is not interest which
the company seeks, the facts found fail
to supply the basis on which any claim
in addition to that for the value of the
property should rest. The petition states
that the United States is indebted to
claimant in addition to the $100,000, al-
leged to be the value of the property,
the further sum of $7,600 per annum for
the use and occupancy thereof from De-
cember 8, 1900. Except for this allega-
tion the company did not, so far as ap-
pears, make any request of any kind in
the court below in respect to an allow-
ance for use and occupation. The court
does not mention the subject in the opin-
ion ; and it is not referred to in the ap-
plication for an appeal.
In Shoemaker v. United States, 147
U. S. 282, 321, 37 L. ed. 170, .188, 13
Sup. Ct. Rep. 361, and Bauman v. Rosb.
167 U. S. 648, 698, 42 L. ed. 270, 291, 17
Sup. Ct. Rep. 966, to which both counsel
refer, the point here decided was not in-
volved, since the court held that under
the express terms of the acts tj^ere in
question the United States were not en-
titled to possession of the land until the
damages had been assessed and actually
paid.
The judgment below is affirmed.
Mr. Justice McReynolds took no part
in the consideration and decision of this
case.
9St
439
JSUPKJllMfi COUKT OF THE UNITED STATES.
Oct. T^eaui,
C3391 LESLIE C. STALLINGS, Appt.,
V.
MAURICE SPLAIN, United States Mar-
shal in and for the District of Columbia.
(See S. C. Reporter's ed. 330-345.)
Arrest ^ without warrant ^ fugitive
from another Federal district.
1. A person charged with a felony by
an indictment found in one Federal dis-
trict^ who has fled to another district, may
be arrested without warrant by a peace
officer in the latter- district, and be de-
tained a reasonable time to await the in-
stitution of proceedings for his removal to
the district where the mdictment was found.
The arrest being lawful without warrant
was none the less so because the peace offi-
cer was possessed of a b^nch warrant issued
in the Federal district where the indict-
ment was found.
[For. other cases, see Arrest, I. In Digest Sup.
Ct. 1908.]
Criminal law « removal to another dis-
trict for trial — Jorlsdietion — pend-
ency of habeas corpus.
2. The pendency of a habeas corpus
proceeding raising the question of the legal-
ity of an arrest and detention to await
proceedings for the removal to another Fed-
eral district of a person there charged with
an offense against the United States did
not deprive a United States commissioner of
jurisdiction to entertain a subsequent appli-
cation for the arrest of the accused on an
affidavit of complaint setting forth the same
offenses charged in the in(Uctment.
[For other cases, see Criminal Law, VII. In
.Digest Sup. Ct. 1908.)
Habeas corpus — In proceedings for re-
moTal to another district for trial.
3. A person arrested in one Federal
district charged with tjie commission of an
offense in another district, who, upon his
own request upon advice of counsel, is ad-
mitted to bail by a United States commis-
sioner to answer the indictment before ap-
plication had been made to the court for
nis r^noval, and before there had even been
an order of the commissioner that he be
held to await such application, is not en-
titled to his discharge on habeas corpus.
He was no longer under actual restraint in
the district of his arrest, and all questions
Note. — On right to detain fugitive to
await arrival of extradition papers;
Arrest without warrant — see note to
Simmons v. Van Dyke, 26 L.B.A. 33.
On removal to another Federal dis-
trict fpr trial of person there charged
with an offense against the United
States — see notes to Greene ▼. Henkel,
46 L. ed. U. S. 177; and Jewett v.
United States, 53 L.R.A. 668.
On habeas eorpus in the Federal
courts — see notes to Re Reinitz, 4
L.R.A. 236; State ex rel. Ooohran v.
Winters, 10 L.R.A. 616; and Tinsley v.
Anderson,. 43 L. ed. U. S. 91.
i»40
in controversy in the habeas corpus and
removal proceedings had terminated, includ-
ing the question whether his arrest and
detention had originally been valid, and
whether there was a right then to remove
him.
[For other cases, see Babeas Corpus, I. b, 1 ; II.
b. in Digest Sup. Ct. 1908.]
Indiotment — validity ^ embezzlement
by United States commtssioner.
4. An indictment charging a United
States commissioner with having received
as commissioner diyers sums of money from
persons named, to be paid over to the re-
ceiver of the land office, and with em-
bezzling the same, must be deemed to charse
an offense against the United States id
view of the provision of U. S. Rev. Stat.
§ 2294, as amended by the Act of March
4, 1904, that where applicants for the bene-
fit of the Homestead and other Land Laws
make the required affidavits before com-
missioners of the United States, the proof
so made shall have the same effect as if
made before the register and receiver "when
transmitted to them with the fees and com-
missions allowed and required by law," and
of )iie directions in circulars issued by the
Land 'Office, containin^f suggestions to the
United States commissioners that the proofs
so taken shall be "transmitted to the regis-
ter and receiver with the necessary fees and
.commissions," and that in 'iio case should
the transmittal Uiereof be left to the claim-
ant."
[VoT other cases, see Indictment, llS-122, Id
Digest Sup. Ct 1908.]
Orlminal law ^ removal to other dis-
trict for trial — sufficiency of indict-
ment.
5. Any reasonable doubt as to tfie ▼&>
lidity of an indictment charging the eommi»>
sion of an offense against t£e United States
is to be resolved, not by the committing
magistrate in another Federal district, but
by the court which found the indictjuent
after the accused had been removed to that
district for trial.
[For other cases, see Criminal Law, 240-2ft4,
in Digest Sup. Ct 1908.1
[No. 534.]
Argued April 23, 1920. Decided June 1«
1920.
APPEAL from the Court of Appeals
of the District of Columbia to re-
view an order of the Supreme Court of
the District, discharging a writ of habeas
corpus. Affirmed.
See same case below, — App. D. C. — ,
258 Fed. 510.
The facts are stated in the opinion*
Mr. William B. Jaynei argued the
cause and filed a brief for appelant:
The District of Colombia is a distriet
of the United States within the mean-
ing of U. S. Rev. Stat. § 1014« Comp
Stat. § 1674, 2 Fed. Stat. Anno. 2d ed.
p. 654, authoriaing the vemoTal for
1910.
8TALLING8 v. SPLAIN.
trial of a person charged with an of-
fense against the United States to the
Federal district where the trial is to be
had.
Benson v. Henkel, 198 U. S. 1, 49
L. ed. 919, 25 Sup. Ct. Rep. 569; Hyde
r. Shine, 199 U. S. 62, 50 L. ed. 90, 25
Sup. Ct. Rep. 760.
The United States commissioner was
wholly without jurisdiction to act in
the cause during the pendency of an
application for discharge on habeas
corpus in the supreme court of the Dis-
trict of Columbia, which in no manner
had been heard on its merits.
Earth v. Clise, 12 Wall. 400, 20 L. ed.
393; Re Farez, 7 Blatchf . 34, Fed. Cas.
No. 4,644.
' Where, upon a broad, liberal, and in-
artificial construction of the lUng^age
of the indictment, it does not. appear
that any offense against the laws of the
United States has been committed, §
1014 of the Revised Statutes does not
apply, and the prisoner should not be
held for removal.
Re Benson, 131 Fed. 969; Tinsley v.
Treat, 205 U. S. 20, 51 L. ed. 689, 27
Sup, Ct. Rep. 430; Hard v. Splain, 45
App. D. C. 1.
There is nothing contained in the
allegations of any of the counts of the
indictment contained within this reC"
ord which shows any crime to have
been committed. When an indictment
found in the trial district charges no
offense against the laws of the United
States, the court is not justified in or-
dering removal (Greene v. Henkel, 183
U. S. 249, 46 L. ed. 177, 22 Sup. Ct.
Rep. 218; Re Wolf, 27 Fed. 606; Re
Coming, 51 Fed. 205; Re Terrell, 51
Fed. 213; Re Greene, 52 Fed. 104; Re
Doig, 4 Fed. 193; Re Buell, 3 DiU. 116,
Fed. Cas. No. 2,102), and all such mat-
ters may be inquired into and deter-
otined by a district judge on an appli-
cation for removal, either when the
motion for a writ of removal is pending,
and on such motion, or by habeas cor-
.pus (United States v. Rogers, 23 Fed.
658).
A similar question to the one at bar
arose in the case of Re James, 195 Fed.
981, under proceedings for revocation
of the appointment of a United States
commissioner, and the cause was dis-
missed on the ground that services sim-
ilar to the ones rendered as set out in
this indictment, if they were so ren-
dered or undertaken to be rendered,
were rendered as an employee, and not
as an officer, and it was therein held
64 L. ed.
that the commissioner had the right
under the statute to charge and be com-
pensated for services done under pre-
cisely the same act as it is surmised
forms the basis for the charge set forth
in this indictment.
In any indictment for embezzlement,
the allegation of ownership of the prop-
erty alleged to have been embezzled
must be averred with the same preci-
sion as in an indictment for larceny.
3 Bishop, New Crim. Proc. 2d ed. §
320; 9 R. C. L, 1291; 15 Cyc. 517;
Clark, Crim. Proc 2d ed. 267.
Solicitor General King argued the
cause and filed a brief for appellee:
The arrest under the bench warrant
was legal and proper. The warrant
ran through the United States, so as to
permit an arrest. \
2 Moore, Extr. § 540. ;
That defendant was on bail pending
a hearing on habeas corpus would not
prevent the adoption of a proceeding
as though no attempt to proceed on the
bench warrant had been made. It, at
most, could only amount to an aban-
donment of the arrest on the bench
warrant, and did not prevent the com-
missioner from hearing the quesfion of
removal and ordering the same.
Peckham v. Henkel, 216 U. S. 483,
54 L. ed. 579, 30 Sup. Ct Rep. 255.
In the hearing on the whole matter it
was shown — i
(a) That an indictment had been duly
found, and a copy was introduced in
evidence. j
(b) The identity of the party arrest-
ed with the person indicted, and his
former official character, were admit-*
ted. The accused introduced no evi-
dence, but insisted that the indictment
did not charge an offense against the
United States. Such a showing re-
quired the grant of the order for re-
moval. '
Rumely v. McCarthy, 250 U. S. 283,
288, 63 L. ed. 983, 986, 39 Sup. Ct. Rep.
483; Hyde v. Shine, 199 U. 8. 62, 84,
50 L. ed. 90, 97, 25 Sup. Ct. Rep. 760;
Haas V. Henkel, 216 U. S. 462, 54 L. ed.
569, 30 Sup. Ct. Rep. 249, 17 Ann. Cas.
1112.
The objections here urged to the- in-
dictment were properly left to be ruled
on by the court in which it was pend-
ing.
Beavers v. Henkel, 194 U. S. 73, 48
L. ed. 882, 24 Sup. Ct. Rep. 605; Ben-
son v. Henkel, 198 U. S. 1, 49 L. ed.
919, 25 Sup. Ct. Rep. 569.
• 4t
340-342
SC;PKKMK CUUKT OF TlIK UNITEIJ STATKS.
(icr. J
Mr. Justice Brandeis delivered the
opinion of the court:
Stallings was indicted in tho district
court of the United States for the dis-
trict of Wyoming for embezzling moneys
intrusted to him as United States com-
missioner. Being in the District of Co-
lumbia, he was arrested there by Splain,
marshal for the District, and was de-
tained to await the institution of pro-
ceedings for his removal. In' making the
arrest Splain had relied/ not upon a war-
rant issued by a commissioner for the
District, but upon a bench warrant is-
sued to the marshal for the district of
Wyoming on the indictment. Stallings
filed immediately in the supreme court
of the District of Columbia a petition
for writ of habeas corpus, contending,
for this reason, apparently, that the ar-
rest and detention were illegal. The
writ issued; Splain produced the body;
the hearing on the writ was postponed;
and Stallings was admitted to bail.
While he was at large on bail, await-
ing a hearing in the habeas corpus pro-
ceedings, an affidavit of complaint was
filed before a United States eommis-
"^igner for the District, setting forth the
same offenses charged in the indictment.
A warrant issued thereon, bnt Stallings
was not arrested. He appeared volun-
tarily before the commissioner; ad-
mitted his identity and that he held the
office named at the times the offenses
were charged to have been eommitted;
declined to offer any evidence; and
moved that he be discharged. The com-
missioner denied the motion. Then, cer«
tified copies of the indictment and other
papers having been introduced, he found
probable cause. No order was made
that Stallings be held to await an ap-
plication for his removal. He requested
that he be admitted to bail for his ap-
pearance in Wyoming to answer the
charges [341] against him. The bail
was fixed at $2,000 and was furnished.
After this, Splain filed a return to the
petition for writ of habeas corpus, set-
ting up the above facts, and Stallings
demurred. He also secured, in aid of
the habeas corpus proceeding, a writ
of certiorari by which all proceedings
before the United States commissioner
were certified to the supreme court of
the District. The case was then heard
both upon the demurrer to the petition
for writ of habeas corpus and upon the
return to the writ of certiorari. The
demurrer was overruled; and, Stallings
electing to stand thereon, the court dis-
missed the petition for a writ of lialK\M
»> Pi
corpus and discharged the writ issued
thereon. The petition for a writ of cer-
tiorari and the writ issued thereon were
also dismissed, and the proceedings were
remanded to the commissioner for fur-
ther action. Stallings api>ealed to the
court of appeals for the District, which
affirmed the final order below. ( — App.
D. C. — , 258 Fed. 510.) It is contended
here that Stallings should be discharged :
(a) because the original arrest and de-
tention on the bench warrant were il-
legal and the later proceedings before
the commissioner were without jurisdic-
tion, since he could not legally be re-
arrested for the same offense until the
habeas corpus proceeding had been dis-
posed of; (b) because the affidavit and
the indictment fail to charge a crime
against Hhe United States.
. First. .The original arrest and deten-
tion were lawful. A person duly charged *
with a felony in one state may, if he
flees to another, be arrested, without a
warrant, by a peace officer in the state
in which he is found, and be detained
for the reasonable time necessary to en-
able a requisition to be made. Barton
V. New York C. & H. R. R. Co. 245 U.S.
315, 318, 62 L. ed. 314, 320, 38 Sup. Ct,
Rep. 108. See Kurtz v. Moffitt, 115 U.
S. 487, 504, 29 L. ed. 458, 462, 6 Sup.
Ct. Rep. 148. The rule is not less libeittl
where the fugitive stands charged by an
indictment found in one Federal district
and flees to another. See 2 [842]
Moore, Extradition, 8 &^* If the
bench warrant issued in Wjromin^
was not effective as a warrant with-
in the District of Columbia, the pos-
session of it did not render ill^^l
an arrest which could lawfully have
been made without it. It would, at
least, serve as evidence that Splain had
reasonable cause to believe that a felony
had been conunitted by Stallings. Com.
v. Phelps, 209 Mass. 396, 404, 95 N. fi.
368, Ajin. Cas. 1912B, 566.
Second. The pendency of the habeas
corpus proceeding did not deprive the
commissioner of jurisdiction to enter-
tain the application for arrest on the
affidavit of complaint. When Splain,
in obedience to the writ, brought Stall-
ings before the court, he passed from
the custody of the marshal into that of
the court, and he remained under its pro-
tection and control although enlarged
on bail. Earth v. Clise, 12 WalL 400, 20
L. ed. 393. But he did not thoehy be-
come immune from all other process un-
til the habeas corpus proceedings shoold
have been finally disposed of. Com t.
tas r. s.
I»d9.
8TALLINGS v. Sl'LAIN.
342-344
Hall, 9 Gray, 262, 69 Am. Dec. 285.
Lack of jurisdiction in the commissioner
did not follow from the fact that the
<30urt had acquired, by virtue of the ha-
beas corpus proceedings, the custody of
and control over Stallings. Even if the
affidavit of complaint had related to an-
other indictment brought in a different
district, the commissioner would have
had jurisdiction to entertain it. The
question would merely have been wheth-
er a second arrest could properly be
made where it conflicted with the first.
Peckham v. Henkel, 216 U. S. 483, 64 L.
ed. 579, 30 Sup. Ct. R«p. 255; Re Beav-
ers, 125 Fed. 988, 131 Fed. 366. Here
there could be no conflict; for the sec-
ond arrest, if it had been made, would
have been merely for the purpose of
carrying out the first. The government
was not precluded from taking such ad-
ditional proceedings as it might deem
necessary or advisable to supplement or
perfect those originally instituted. If
the original arrest was lawful, the de-
tention would remain legal only for the
reasonable time required to enable
[348] appropriate removal proceed-
ingB to be instituted. Unless the law-
ful arrest was promptly followed by
•u6h proceedings the prisoner would
be entitled to his discharge. Re Fet-
ter, 23 N. J. L. 311, 321, 57 Am.
Dec. 382. On the other hand, if the
original arrest and detention had been
illegal, Stallings would not be entitled
to his discharge, if, before final hear-
ing in the habeas corpus proceedings,
legal cause for detaining hiih had
arisen through the institution of re-
moval proceedings. Where it appears
that sufficient g^und for detention ex-
ists, a prisoner will not be discharged
for defects in the original arrest or com-
mitment. Nishimura Ekiu v. United
States, 142 U. S. 651, 53 L. ed. 1146, 12
Sup. Ct. Rep. 336; lasigi v. Van de Carr,
166 U. S. 391, 41 L. ed. 1045, 17 Sup.
Ct. Rep. 595; Kelly v. Griffin, 241 U. S.
6, 13, 60 L. ed. 861, 864, 36 Sup. Ct. Rep.
487,
l^hird. The admission to bail by the
commissioner to answer the indictment
in the district of Wyoming was upon his
own request, on advice of counsel. When
this bail was given, no application had
been made to the court for his removal;
and there had not even been an order
of the commissioner that he be held to
await such application. He ceased,
therefore, to be in the position ordinarily
occupied by one who is contesting the
\ralidity of his detention, and who has
64 Ti. ed.
been released on bail pending the habeas
corpus proceeding. Sibray v. United
States, 185 Fed. 401. Stallings's posi-
tion was thereafter no better than if
he had applied for the writ after he had
given bail. It is well settled that, un-
der such circumstances, a petitioner is
not entitled to be discharged on habeas
corpus. Respublica v. Arnold, 3 Yeates,
263 r Dodge's Case, 6 Mart. (La.) 569;
State V. Buyck, 3 S. C. L. (1 Brev.) 460.
Being no longer under actual restraint
within the District of Columbia, he was
not entitled to the writ of habeas cdb-
pus. Wales v. Whitney, 114 U. S. 664/
29 L. ed. 277, 5 Sup. Ct. Rep. 1050.
Furthermore, by voluntarily giving
bail to appear in Wyoming, the purpose
of the removal proceedings had been
accomplished, and all questions in con-'
troversy in the habeas corpus and in
the removal proceedings terminated.
[844] Whether bis arrest and de-
tention had originally been valid was
thereby rendered immaterial. Re Es-
selbom, 8 Fed. 904. . And likewise the
question whether there was a right then
to remove him. Compare Cheong Ah
Moy V. United States, 113 U. S. 216,
28 L. ed. 983, 6 Sup. Ct. Rep. 431;
Ex parte Baez, 177 U. S. 378, 44
L. ed. 813, 20 Sup. Ct. Rep. 673.
Fourth. Stallings's contention that
he should be discharged because the in-
dictment failed to charge a crime under
the laws of the United States is also
unfounded. He was indicted under § 97
of the Penal Code [35 Stat, at L. 1106,
chap. 321, Corap. Stat. § 10,265, 7 Fed.
Stat. Anno. 2d ed. p. 650], which de-
clares that any officer of the United
States who shall embezzle any money
which may have come into his posses-
sion in the execution of such office, or
under claim of authority as such officer/
shall be punished. The indictment
charges Stallings with having received
as commissioner divers sums of money
from persons named, to be paid over to-
the receiver of the land office at Chey-
enne, and embezzling the same. It is
contended that the money could not
have been received as commissioner for
transmission, because it is not among
the statutory duties of a commissioner.
But § 2294 of the Revised Statutes, as
amended by Act of March 4, 1904, chap.
394, 33 Stat, at L. 59, Comp. Stat. § 4546,
8 Fed. Stat. Anno. 2d ed. p. 572, provides
that where applicants for the benefit of
the Homestead and other Land Laws
make the required affidavits before com-
missioners of the United States, the
•4S
^44, 345
SLPUEMK COURT OF THE UNITED STATES.
Oct. Teem.
proof 80 made shall have the same effect
as if made before the register and re-
eeiver, 'Vhen transmitted to them with
the fees and commissions allowed and
required by law." The cironlar issued
by the Land Office in 1905 (33 Land
Dec. 480y 481), containing ''Suggestions
to United States Commissioners/' etc.,
directs that the proofs so taken be
''transmitted to the register and receiver
with the necessary fees and commis-
sions." And the circular issued in 1916
(44 Land Dec. 350, 352) directs that in
".no case should the transmittal thereof
be left to the claimant."
Duties of an officer may be prescribed
by rule. I£ the validity of the indict-
ment was open to reasonable doubt,
[845] it was to be resolved not by
'the committing magistrate, but, after
the removal, by the court which found
the indictment. Beavers v. Henkel,
194 U. S. 73, 83, 48 L, ed. 882, 886, 24
Sup. Ct. Rep. 605; Benson v. Henkel,
198 U. S. 1, 10-12, 49 L. ed. 919,
922, 923, 25 Sup. Ct. Rep. 569; Haas
V. Henkel, 216 tj. S. 462, 481, 54
L. ed. 569, 578, 30 Sup. Ct. Rep. 249, 17
Ann. Cas. 1112.
Afi&smed.
PORTO RIOO RAILWAY, LIGHT, k
POWER COMPANY
V.
ABALBERTO duz mor.
(See & a Reporter's ed. 345-349.)
Statutes — construction — > general
terms.
1. When several words in a statute are
followed by a clause which is app,licable
as muoh to the first and otiier words as
to the last, the natural oonstruction of the
language demands that the clause be r^id
as applicable to alL
[For other cases, see Statutes, II. t in Digest
Sup. Ct. 1908.] *
Statntes — constmotton — > effectuating
leglslatlTe purpose.
2. A doubtful clause in a congression-
. al enactment should be construed so as to
Note. — On construction of statutes,
generally — see notes to Riggs v. Pahn-
er, 5 L.R.A. 340; Maillard v. Law-
rence, 14. L. ed. U. S. 925; United
States V. Saunders, 22 L. ed. U. S. 736;
and Blake v. National City Bank, 23
L. ed. U. S. 119.
On eonstruotion of statute for pur-
pose for which it was passed — see note
to United States v. Saunders, 22 L. ed.
V. S. 736.
944
effect the general purpose of Congress mani
fested in the statute.
[For other cases, see Statutes, II. c, in Digest
Sup. Ct 1908J *
.Courts — i Jurisdiction of F^eral dis-
trict court for Porto lUoo « alien as
party.
3. Jurisdiction of the Federal district
court for Porto Rico of a suit to which an
alien domiciled in Porto Rico is a party ii
denied by the provision of the Act of fthu'cb
2, 1917, § 41, which gives said court juris-
diction ol controversies "where all of tht
parties on either side of the controTersj
are citizens or subjects of a foreign stats
or states, or citizens of a state, territory,
or district of the United States not domi-
ciled in Porto Rico." The restricti<m of
jurisdiction to cases where all tbe parties
on either side of the controversy are *iot
domiciled in Porto Rico" applies to aliens
as well as to. American citizens.
tl'or other cases, see Courts. III. c, la Digtst
Sup. ct. 1908. J
[No. 728.]
Argued April 23, 1920. Decided June 1.
1920.
ON A CERTIFICATE from the United
States Circuit Court of Appeals foi
the First Circuit, presenting the ques-
tion whether the Federal District Court
for Porto Rico has jurisdiction of a suit
to which an alien domiciled in Porto
Rico is a party. Answered in the nega-
tive.
The facts are stated in the opinion.
Mr. CanroU G. Walter aigued the
cause and filed a brief for the Porto
Rico Railway, Light, & Power Com-
pany: •
As a matter of ordinary constme-
tion, where several words are followed
by a general expression, as here, which
is as much applicable to the first and
other words as to the last, that ex-
pression is not limited to the last, but
applies to all.
United States v. Standard Brewery,
261 U. S. 210, 218, 64 L. ed. 229, 234,
40 Sup. Ct. Rep. 139; Great Western
R. Co. y. Swindon & C. Elxtension R.
Co. L. R. 9 App. Cas. 808, 53 h. J. Ch.
N. S. 1075, 51 L. T. N. S. 798, 32 Week.
Rep^ 967, 48 J. P. 821.
It is proper, indeed necessary, to
consider the old law, the mischief, and
the remedy (United States v. St. Paul,
M. & M. R. Co. 247 U. S. 310, 318, 62
L. ed. 1130, 1134, 38 Sup. Ct Rep. 525;
Blackstone, Introduction, § 2, p. 87);
and also the natural or absurd conse-
quences of any particular interpreta-
tion (Church of the Holy Trinity ▼.
United States, 143 U. S. 457, 36 L. ed
227. 12 Sup. Ct. Rep. 511 ; Knowlton t
25S V. B.
Ii)l9.
I'ORTO RlOO RAILWAY, L. A P. CO. v. WOR.
345-348
Moore, 178 U. S. 41, 77, 44 L. ed. 969,
984, 20 Sup. Ct. Rep. 747; United
States V. Hogg, 50 C. C. A. 608, 112
F^d. 909; Interstate Drainage & Invest.
Co. V. Freeborn County, ^ C. C. A.
532, 158 Fed. 270; Stockyards Loan Co.
V. Nichols, 1 A.L.R. 547, 156 C. C. A.
209, 243 Fed. 511).
No brief was filed for Adalberto Diaz
Ifor.
Mr. Justice Brandeis delivered the
opinion of the court:
Mor, a subject of the Eling of Spain,
domiciled in Porto Rjco, brought in the
United States district court for [346]
P<nrto Rico this action at law for an
ftDKHint exceeding $3,000, exclusive of
tntereet and costs, against the Porto
Rioo Railway, Light, & Power Com-
pany, a Porto Rico corporation hav-
ing its principal place of business
tliere. Objection to the jurisdiction
of the trial court was overruled and
the plaintiff recovered judgment. The
ease came before the circuit court
of appeals for the first circuit on
writ of error, and that court, has
presented to us by certificate the ques-
tion whether the district court had
jurisdietion. The answer depends upon
the construction to be given to the fol-
lowing provision contained in § 41 of the
so-called Jones Act of March 2, 1917,
chap. 145, 39 Stat, at L. 951, 965, Comp.
Stat. §§ 3803a, 3803qq, Fed. Stat. Anno.
Supp. 1918, pp. 608, 626, which provides
a civil government for Porto Rioo :
^aid district court shall have juris-
diction of all controversies where all of
the parties on either side of the contro-
versy are citizens or subjects of a ^reign
state or states, or citizens of a state, ter-
ritory, or district of the United States
not domiciled in Porto Rico, wherein the
matter in dispnte exceeds, exclusive of
interest or cost, the sum or value of
$3,000. ..."
It is clear under this act that if Mor,
instead of being a Spanish subject, had
been a citizen of one of the United
States^ the court would not have had
jurisdiction, since he was domiciled in
Porto Rioo. The precise question, there-
fore, is whether the restriction of juris-
diction to cases where all the parties on
either side of the controversy are "not
domiciled in Porto Rico" applies to
aliens as well as to American citizens.
The judicial system of Porto Rico
prior to annexation to the United States
comprised a supreme court and district
trial courts of general jurisdiction and
municipal courts. The proceedings in all
•4 Ij. ed*
of these courts were conducted in the
Spanish language and according to the
forms of the civil law. By § 2^ of the
Foraker Act, April 12, 1900, chap. 191,
31 Stat, at L. 77, 84, Comp. Stat. §§ 3747,
3784, 7 Fed. Stat. Anno. 2d ed. pp. 1259,
1273, which established what was intend-
ed [347] as a temporary civil gov-
ernment for the island, these insular
courts were eontinui^d, with the pro-
viso that the judges of the supreme
court should be appointed by the Pres-
ident, and the judges of the inferior
courts by the governor. By § 40 of
the Jones Act &e jurisdiction of these
courts and the forms of procedure in
them were further continued.
The ''district court of the United
States for Porto Rico," provided for by
§ 41 of the Jones Act, was^ in effect, a
continuation of the district court of the
United States provided for by § 34 of
the Foraker Act, as amended by the Aet
of March 2, 1901, chap. 812, § 3, 31 Stat.
hi L. 953, Comp. Stat. § 3786, 7 Fed.
Stat. Anno. 2d ed. p. 1280.^ Both acts
conferred upon the court jurisdiction of
all cases cognizable in circuit or district
courts of the United States; the court
is by both directed to proceed in the
same manner as those courts; and in
both there is an express provision that
tha pleadings and all proceedings shall
be conducted in the English language.
But the Jones Act greatly abridged the
jurisdiction. The jurisdictional amount,
which, by the amendatory Act of March
2, 1901, had been lowered to $1,000, was
raised to $3,000. And whereas, by the
amendment of 1901, the court had been
g^ven jurisdiction in case either party
was a citizen of the United States, even
if he was domiciled in Porto Rico, the
Jones Act limited the jurisdiction de-
pendent on American citizenship to the
eases where the Americans were not
domiciled in Porto Rico. Whether it
likewise limited jurisdiction dependent
on alienage is the question submitted to
us.
[348] No reason appears why the
clause ''not domiciled in Porto Rico"
lAct of March 2, 1001, chap. 812, § 3:
"That the jurisdiction of the district court
of the United States for Porto Rico in civil
oases shall, in addition to that conferred
by the Act of April twelfth, nineteen hun-
dred* extend to and embrace controversies
where the parties, or either of them, are
citizens of the United States, or citizens or
aubjcets of a foreign state or states, where-
in the matter in dispnte exceeds, exclusive
of interest or costs, the sum or value of one
thousand dollars.**
«0 •4S
US ;;;»♦►
>l I'KKMJ: toLIM UF JHK UNITED STATES.
Oct. Ikeu.
<9hould not be read as applying to
the entire phrase/ "citizens or sub-
jects 'of a foreign state or states,
or citizens of a state, territory, or
district of the United States." When
several words are followed by a clause
which is applicable as much to the first
and other words as to the last, the
natural construction of the lan^^uage de-^
tnands that the clause be read as ap-
plicable to all. United States v. Stand-
ard Brewery, 251 U. S. 210, 218, ante,
229, 234, 40 Sup. Ct. Rep. 139; Johnson
V. Southern P. Co. 196 U; S. 1, 18, 19, 49
L. ed. 363, 369, 370, 25 Sup. Ct. Rep.
158, 17 Am. Neg. Rep. 412, and cases
cited. Furthermore, special reasons ex-
ist for so construing the clause in ques-
tion. The act manifests a general
purpose to greatly curtail the jurisdic-
tion of the district court. If the ap-
plication of the clause were doubtful, we
t»hould so construe the provision as to
effectuate the general purpose of Con-
gress. American Secur. & T. Co. v. Dis-
trict of Columbia, 224 U. S. 491, 56 L.
ed. 856, 32 Sup. Ct. Rep. 553; Inter-
Island Steam Nav. Co. v. Ward, 242 U.
S. 1, 61 L. ed. 113, 37 Sup. Ct. Rep. 1.
But it seems to us clear that it applies
alike to aliens and td American citizens.
Suit may be brought in the district
court if either party has the jurisdic-
tional qualifications; that is, the act con-
fers upon such party not merely the
right to sue, but the liability to be sued.
In the population of Porto Rico there
are many aliens, and these are largely
Spaniards.' If the limitation ''not dom-
iciled in Porto Rico" were [349] inap-
plicable to aliens, the result would work
peculiar hardship and assuredly unin-
tended 'discrimination against these
Spaniards. A Spanish subject domiciled
in Porto Rico might be sued by an
American domiciled in Porto Rico or a
Porto Rican in the district court, where
t*'lt 18 somewhat surprising to find that
S80,442 of the actual population are classed
as Spaniards, and only 4,324 as foreigners."
Report on the Island of Porto Rico by
Henry C. Carroll, Special Commis^^ioner,
October 6, 1809, p. 11.
*'Spani9li-born were 7,600, or 55 per cent
of the total foreign born. The United
States contributed 1,069." Commercial
Porto Rico, Department of Commerce and
lAbor, April, 1907, p. 11.
"Of the total number of males twenty-
one and over in 1910, • 238,685 were of
Porto Rican citizenship, 4.112 were of Span-
tih citizenship, 1,836 were citizens of the
United States, and 2,385 were citizens of
other foreign countries." Statistics for [
Porto Rico, 13th Census, p. 24.
#46
the proceedings are conducted in the
English language and according to the
forms of Anglo-American law; whereas
an American domiciled in Porto Rico
could be sued only in the insular courts,
where the proceedings are conducted in
the Spanish language and according to
the procedure and processes of the civil
law. This might not only prove very in-
convenient to Spanish residents, but
would be inconsistent with the spirit of
Article 11 of the Treaty of December
10, 1898, between Spain and the United
States (30 Stat, at L. 1754, 1760), under
which Spaniards residing in Porto Rico
were g^ranteed "the right to appear
before such courts and to pursue the
same course as citizens of the eountr>
to which the courts belong."^
Congress could not have intended to
give the district court jurisdiction of any
controversy to which a domiciled alien
is a party, while denying, under similar
circumstances, jurisdiction where a dom-
iciled American is a party.
The question submitted it answend
no.
[3601 STATE OF RHODE I8LAND.»
Complainant,
V.
A. MITCHELL PALMER, Attomoy (km
eral, et al. (No. 29, OriginaL)
STATE OF NEW JERSEY, Complaittast.
V.
A. MITCHELL PALMER, Attomev Qm-
eral, et al. (No. 30, Original.)
GEORGE C. DEMPSET, Appt^
T.
THOMAS J. BOYNTON, as United 8tat«
Attorney, et al. (No. 696.)
KENTUCKY DISTILLERIES ft WAM-
HOUSE CX)MPANY, Appt,
V.
W. V. GREGORY, as United StatM
Attorney, et al. (Xo. 752.)
CHRISTIAN FEIOENSPAN, a Corpon
tion, Appt.,
V.
JOSEPH L. BODINE, as United SUIm
Attorney, et al. (No. 788.)
HIRAM A. SAWYER, as United StmUt
Attorney, et al., Appts.,
V.
MANITOWOC PRODUCTS COMPANY
(No. 794.)
1 Reported bv the Official Reporter under
the title of ''National ProhibiUon Cases."
las 17. S.
^->
» ?
1»19.
KllOUK ISLAM) %'. PALMKK.
ST. LOfflS BKEWING ASSOCIATfON,
Appt.,
GKORGB H. MOORE, Collector, et al.
(No. 837.)
(See 8. 0. Reporter's ed. 350>411.)
Oonfltltutlonal law — amendment « ne-
ceMity.
1. Tlie adoption by both Houses of
ObBflress, each by a two- thirds vote, of a
joint resolution proposing an amendment
to the Constitution, sufficiently shows that
Ihe proposal was deemed necessHry by all
who voted for it. An express declaration
chat they regarded it as necessary is not es-
••ntiaL
(For other cases, sec Constitutional Law, I.
In DIfest Bap. Ct. lOOS.]
Constitutional law — amendment «
two-tblrde vote of Con^rr^ss.
2. The two-thirds vote in each House
of CongreM, which is required in propos-
ing an amendment to the Constitution, is a
vote of two thirds of the members present,
-assuming the presence of a quorum, — and
oot a two- thirds vote of the entire mem-
bership, present and absent.
[Wot other cases, see Constitutional Law, I.
in Digest Sup. Ct. 1008.]
Constitutional law ■» amendment of
Federal Constitution — state referen-
dum.
3. Referendum provisions of state con-
•citutions and statutes cannot be applied
in the ratification or rejection of amend-
ments to the Federal Constitution without
trioiating the requirement of article 5 of
•uch Constitution, that sueh ratification
thall be by tlie legislatures of the several
ttates, or br conventions therein, as Con-
gress shall decide.
fFor other cases, eee Constitutional Law, I.
In Digest Sup. Ct. 1008.]
ik>nstitutional law — Prohibition
Amendment — validity.
4. The prohibition of the manufacture,
tale, transportation, importation, and ex-
portation of intoxicating liquors for bever-
age purposes, as embodied in the 18th
Amendment to the Federal Constitution, is
within the power to amend reserved by the
5th article of such Constitution.
(For other cases, see Constituttoual Law, I.
la Digest Sup. Ct. 1003.]
^Constitutional law ^ Prohibition
Amendment — validity.
6. Ths Prohibition Amendment to the
Note. — On ratification of amendments
to Federal Constitution or other acts of
the state legislature under provision of
Federal Constitution as subject to state
referendum — see note to Re Opinion of
Justices, 5 A.L.R. 1417.
On initiative and referendum — see
note to Hookett v. State Liquor Licens-
ing Bd. L.R.A.1917B, 15; and State ex
rel. Davies v. White, 50 L.R.A.(N.S.)
195.
e4 li. ed.
Federal Constitution by lawful proposal
and ratification has become a part of that
Constitution, and must be respected and
given effect the same as other provisions of
that instrument.
[For otlier oases, see Constitutional Law» 1.
in Digest Sup. Ct. 1908.]
Constitutional law « Proliibition
Amendment — > effect.
* 6. That part of the Prohibition Amend-
ment to the Federal Constitution which em-
bodies the prohibition is operative through-
out the entire territorial limits of the
United States, binds all legislative bodies,
courts, public ofBcers, and individuals with-
in those limits, and of its own force in-
validates every legislative act, whether by
Congress, by a state legislature, or by a
territorial assembly, which authorizes or
sanctions what the Amendment proiiibits.
(For other cases, see Constitutional Law, I
in Digest Sup. Ct. 1003.]
Constitutional law — Prohibition
Amendment ^ enforcement — con-
current power.
7. The declaration in the Prohibition
Amendment to the Federal Constitution
that ''the Congress and the several states
shall have concurrent power to enforce this
article by appropriate legislation" does not
enable Congress or the several states to de-
feat or thwart the prohibition, but only to
enforce it by appropriate means.
[For other eases, see Constitutional Law, I.
in Digest 8ap. Ct. lOOS.]
Constitutional law — Prohibition
Amendment « enforcement ■» con-
current power.
8. The words "concurrent power^ in the
declaration in the 18th Amendment to the
Federal Constitution that "the Congress
and the several states shall have concurrent
power to enforce this article by appropriate
legislation" do not mean joint power, or
require that legislation thereunder by Con-
gress, to be effective, shall be approved or
sanctioned by the several states or any of
them, nor do they mean that the power to
enforce is divided between Congress and
the several states along the lines which sep-
arate or distinguish foreign or interstate
commerce from intrastate affairs.
[For other esses, see Constitutional T4tw, I.
in Digest Sup. Ct. 1008.]
Constitutional law — Prohlbltlcm
Amendment ■» enforcement ■» con-
current power.
0. The power confided to Congress by
the provisions of the 18th Amendment to
the Federal Constitution, that **the Con-
gress and the several states shall have con-
current power to enforce this article by
appropriate legislation," while not exclu-
sive, IS territorially coextensive with the
prohibition of that Amendment, embraces
manufacture and other intrastate transac-
tions as well as importation, exportation,
and interstate traffic, and is in no wise de-
pendent on or affected by action or inap-
tion on the part of the several states or any
of them.
(For other cases, see Constitutional Law, I.
in Digest Sup. Ct. lOOS.]
t47
Sll'KKMK COIKI OF JUK UNITED 6TATES.
Oct. T
Constitntlonal law « ProlilbiUon
Amendment — enforcement — liquors
preTlously manufactured.
10. The power of Congress to enforce
the Prohibition Amendment to the Federal
Censtitution may be exerted against the dis-
posal for beverage purposes of liquors manu-
factured before the Amendment became ef-
fective, just as it may be against subse-
quent manufacture for those purposes.
[For other cases, see Constitutional Law, I.
in Dicest Sup. Ct. 1003.]
Constitutional law — > Prohibition
Amendment — enforcement — statu*
tory deflnltlon of intoxicating liquors.
11. Congress did not exceed its powers,
under U. S. Const., 18th Amend., to enforce
the prohibition therein declared against
the manufacture, sale, or transportation of
intoxicating liquors for beverage purposes,
by enacting the provisions of Uie Volstead
Act of October 28, 1919, wherein liquors
containing as much as ^ of 1 per cent of
alcohol by volume, and fit for use for
beverage purposes, are treated as within
that power.
[For other cases, see Constitutional ' Law, I.
in Digest 8ap. Ct. 19.08.]
(Nob. 29, Original, 30, Original, and 090,
762, 788, 794, and 837.]
No. 29, Original, argued March 8 and 9,
1920. No. 30, Original, argued March 29,
1920. No. 096, argued March 0, 1020. No.
752, argued March 9 and 10, 1920. No.
788, argued March 29 and 30, 1920.
Ko. 794, argued March 30, 1920. No.
837, argued March 29, 1920. Decided
June 7, 1920.
TWO ORIGINAL BILLS in Equity,
brought respectively by the States of
Rhode iSand and New Jersey, to enjoin
the execution of the Volstead Act, adopt-
ed to enforce the Prohibition Amend-
ment. Bills dismissed. Also an
APPEAL from the District Court of
the United States for the District
of Massachusetts to review a decree re-
fusing to enjoin the execution of the
said Volstead Act. Affirmed. Also an
APPEAL from the District Court of
the United States for the Western
District of Kentucky to review a decree
refusing to enjoin the enforcement of
the said Volstead Act. Affirmed. Also
an
APPEAL from the District Court of
the United States for the District
of New Jersey to review a decree re-
fusing to enjoin the enforcement of the
said Volstead Act. Affirmed. Also an
APPEAL from the District Court of
the United States for the Eastern
District of Wisconsin to review a decree
enjoining the enforcement of the said
Volstead Act. Reversed. Also an
t48
APPEAL from the District Court of
the United States for the Eastero
District of Missouri to review a decree
refusing to enjoin the enforcement of the
said Volstead Act.* Affirmed^
Mr. Herbert A. Bice, Attorney Qen-
eral of Rhode Island^ argued the cause,
and, with Mr. A. A. Capotosto, filed a
brief for complainant in No. 29, Orig-
inal:
All sovereignty resides in the people.
5 Elliot, Debates, pp. 352, 355; M'Cul-
loch V. Maryland, 4 Wheat 316, 403, 4
L. ed. 579, 600.
The Federal government was limited
to prevent encroachments.
2 Elliot, Debates, pp. 80, 87, 93, 332,
481 ; 3 Elliot, Debates, 150, 186, 203, 271,
451, 464; 4 Elliot, Debates, 10, 137, 140,
142, 148, 160, 161, 316; Barron v. Bal-
timore, 7 Pet. 243, 250, 8 L ed. 672, 675;
Madison, Federalist, No. 45; Martin v.
Hunter, 1 Wheat. 304, 325, 4 L. ed. 97,
102; M'CuUoch v. Maryland, 4 Wheat.
316, 405, 4 L. ed. 579, 601.
The Federal and state govemmenti
are independent sovereignties, have dis-
tinct and separate jurisdictions, ani
move in entirely different spheres.
Chisholm v. Georgia, 2 Dall. 419, 448^
1 L. ed. 440, 452; M'Culloch v. Mary-
land, 4 Wheat. 316, 410, 4 L. ed. 579,
602; Ableman v. Booth, 21 How. 506,
516, 16 L. ed. 169, 173; Qaflin v. House-
man, 93 U. 8. 130, 136, 137, 23 L. ed.
833, 838, 839; Collector v. Day (Buffing-
ton V. Day) 11 WaU. 113, 124, 20 L. ed.
122, 125; United States v. Croikshank.
92 U. S. 542, 550, 23 L. ed. 588, 590;
Claflin v. Houseman, 93 U. S. 130, 136,
23 L. ed. 833, 838.
The poUce power resides exdosively
in* the states.
4 Sharswood's Bl. Com. p. 162; 4 El-
liot, Debates, p. 566; Slaughter-Hoose
Cases, 16 Wall. 36, 62, 21 L. ed. 394,
404; Leisy v. Hardin, 135 U. S. 100, 122,
127, 34 L. ed. 128, 137, 138, 3 Inten.
Com. Rep. 36, 10 Sup. Ct Rep. 681;
Cooley, Const. Um. 7th ed. pp. 829, 831;
Crane v. Campbell, 245* U. S. 304, 62 L
ed. 304, 38 Sup. Ct. Rep. 98; Purity Ex-
tract & Tonic Co. V. Lynch, 226 U. S.
192, 57 L. ed. 184, 33 Sup. Ct. Rep. 44;
Crowley v. Christensen, 137 U. S. 86, 34
L. ed. 620, U Sup. Ct. Rep. 13; Mngler
V. Kansas, 123 U. S. 623, 31 L. ed. 205,
8 Sup. Ct. Rep. 273; Boston Beer Co.
V. Massachusetts, 97 U. S. 25, 24 L. ed
989; Bartemeyer v. Iowa, 18 Wall. 129,
t Leave granted June 7, 1920, to preeent
petitions for rehearing in these cases with-
in sixty days on motion of counsel in thai
behalf.
1910.
KiiOUE i:SLAND v, PALMEK.
2i L. ed. 929; License Tax Cases, 6 Wall.
462, 470, 18 L. ed. 497, 500; Bowman v.
Chicago & N. W. R. Co. 126 U. S. 465,
493, 31 L. ed. 700, 709, 1 Inters. Com.
Rep. 82S, 8 Sup. Ct. Rep. 689, 1062; Kidd
^v. Pearson, 128 U. S. 1, 23, 32 L. ed. 346,
'351, 2 Inters. Codl Rep. 232, 9 Sup. Ct.
Rep. 6; Re Heff, 197 U. 8. 489, 505, 49
L. ed. 848, 855, 25 Sup. Ct. Rep. 506.
The Federal government has no po-
lice power.
Gibbons v. Ogden, 9 Wheat. 1, 6 L.
ed. 23;, Missouri, K. & T. R. Co. v.
Haber, 169 U. S. 613, 628, 42 L. ed. 878,
883, 18 Sup. Ct. Rep. 488; Re Heff, 197
U. S. 489, 49 L. ed. 848, 25 Sup. Ct.
ffep. 506; Hamilton v. Kentucky Distil-
leries & Warehouse Co. 251 U. S. 146,
ante, 194, 40 Sup. Ct. Rep. 106; Keller
V. United States, 213 U. S. 138, 53 L.
ed. 737, 29 Sup. Ct. Rep. 470, 16 Ann.
Cas. 1066; United States v. Dewitt, 9
Wall. 41, 19 L. ed. 593.
Article 5 should be construed as con-
sistent with these principles.
Slaugbter-House Cases, 16 Wall. 36,
62, 21 L. ed. 394, 404; Barron v. Balti-
more, 7 Pet. 243, 8 L. ed. 672.
The so-called 18th Amendment is not
an amendment within the purview of
article 5.
South Carolina v. United States, 199
U. S. 437, 447, 50 L. ed. 261, 264, 26
Sup. Ct. Rep. 110, 4 Ann. Cas. 737;
Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed.
23; Cooley, Const. Lim. 7tli ed. p. 93.
A construction which substitutes a
Word of larger meaning than the word
used in the Constitution could not be
justified or defended upon any princi-
ple of judicial authority.
Passenger Cases, 7 How. 283, 493, 12
L..ed. 702, 790.
It is well known that the framers of
the Constitution confined themselves, so
far as possible, to words and phrases
which had acquired, by long usage in
legal procedure, a definite significance;
and it has been said that the Constitu-
tion could not be fairly interpreted or
well understood without tracing the
history of such words and phrases
through the succeeding stages of devel-
opment of the common law.
South Carolina v. United States, 199
U. 8. 437, 50 L. ed. 261, 26 Sup. Ct.
Rep. 110, 4 Ann. Cas. 737.
There was complete unanimity as to
the scope and meaning of the word
"amendment'' as a legal term, applied
to court procedure.
Blount, Law Diet. London, 1670; LQ-
ly, Practical Register, London, 1725;
Nutt & Gosling, Law Diet. London,
• 4 li. ed.
1727; Jacob, Common Law Common-
Plac'd, London, 1733; Jacob, Law Diet.
London, 1744; 3 Sharswood's Bl. Com.
chap. 25, p. 207; Bellamy, Eng. Diet
1760; Johnson, Diet. London, 1760;
Bailey, Universal Etymological Eng.
Diet. London, 1770, 1780; Kendrick,
New Eng. Diet. London, 1773; Ash,
New & Complete Diet. London, 1775;
Femting, Royal Eng. Diet. London,
1775; Sheridan, General Diet. London,
1780; Barclay, Complete & Universal
Eng. Diet. 1782; Sheridan, Complete
Diet. 3d ed. London, 1790; Sheridan,
Diet. Dublin, 1790, 4th ed. p. 906;
Walker, PronoYincing Diet London,
1791.
The Constitution being viewed as a
great l^^l process, warrant, or com-
niission (4 Elliot, Debates* p. 148), the
principle of amendment which had been
applied for centuries to judicial proc-
esses and legal documents became di-
rectly applicable. And as amendment
was always limited to the jurisdiction
of the process, or to the purpose of the
pleading, or to the scope of the legal
document, the term was especially ap-
propriate in relation to a written Con-
stitution designedly limited in all these
respects.
As the selection of the word ''amend-
ment" in article 5 was due to Mr. Mad-
ison, it is in point to ascertain the par-
ticular significance he gave to the word.
2 Farrand, Records, pp. 273, 276.
The members of the Convention un-
questionably used the words they in-
serted in the Constitution in the same
sense in which they used them in their
debates. It was their object to be un-
derstood, and not to mislead, and they
ought not to be supposed to have used
familiar words in a new or unusual
sense.
Passenger Cases, 7 How. 283, 477, 12
L. ed. 702, 783.
Debates in the state conventions
illustrate the use of the word ''amend-
ment'' at that time. They also prove
that i^ was the general understanding
that an amendment was the correction
of errors committed in drafting the
Constitution; that such errors were ex-
pected to develop in the operation of
the government, and that from expe-
rience alone they could be determined
and best corrected.
2 Elliot, Debates, 83, 84, 116, 146,
155, 498; 3 Elliot, Debates, 61, 186, 614;
4 ElUot, Debates, 104, 130, 176.
Where the legal significance of a
word may be gathered from its usage
and application at the common law, and
•4«
.SLPUhAJE COLKT OF lUK UNITKD STATE6.
Oct. X
wiiere tiiat uieauing ia counection with
the context expresses a plain and sim-
ple intent, there must be some strong
reason advanced for not accepting an
interpretation so apparent on the face
of the instrument.
7 Cooley, Const. Lim. p. 91.
This Constitution is a framework of
government, and the embodiment of the
fundamental principles upon whieh it
is established. It is to this Constitu-
tion that Congress is authorized to
make proposals of amendment.
2 Elliot, Debates, p. 364; 4 Elliot, De-
bates, pp. 144, 188; Marbnry v. Madi-
son, 1 Cranch^ 137, 2 L. ed. €[0; Van
Home V. Dorrance, 2 Dall. 304, 308, 1
L. ed. 391, 393, Fed. Cas. No. 16,857;
4 Jameson, Const. Conventions, § 85;
Southern P. tJo. v. Jensen, 244 U. S.
205, 227, 61 L. ed. 1086, 1103, L.R.A.
1918C, 461, 37 Sup. Ct. Rep. 624, Ann.
Cas. 1917E, 900.
Necessity for amendment can only
arise in consequence of defects in the
operation of government under the
Constitution. There can be no neces-
sity beyond the scope of the Consti-
tution.
M'CullocR V. Maryland, 4 Wheat. 316,
4 L. ed. 579; 1 Gales & S. Debates, 441-
443, 445, 448, 461, 686, 751.
An examination of the prior Amend-
ments to the Constitution will disclose
that all of them have been declaratory
and interpretative, or have had refer-
ence to a power or to a subject-matter
dealt with in the instrument itself.
They have all beep within the scope of
the Constitution.
Barron v. Baltimore, 7 Pet. 243, 8 L.
•d. 672; Spies v. lUinois, 123 U. S. 131,
31 L. ed. 80, 8 Sap. Ct. Rep. 21, 22;
Davis ▼. Texas, 139 U. S. 661, 35 L. ed
300, 11 Sup. Ct. Rep. '675; O'NeU v.
Vermont, 144 U. S. 323, 36 L. ed. 460,
12 Sup. Ct. Rep. 693; Miller v. Texas,
163 U. S. 536, 38 L. ed. 812, 14 Sup. Ct.
Rep. 874; Brown v. New Jersey, 176 U.
S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep.
77; Capital Citv Dairy Co. v. Ohio, 183
V. S. 238, 46 L. ed. 171, 22 Sup. Ct.
R<*p. 120; Chishoim v. Georgia, 2 Dall.
419, 1 L. -ed. 440; Cohen v. Virginia, 6
Wheat. 264, 5 L. ed. 257; Florida v.
Georgia, 17 How. 478, 15 L. ed. 181;
.Slaughter-House Cases, 16 Wall 36, 21
L. ed. 394; Corfield v. Coryell, 4 Wash.
C. C. 380, Fed. Cas. No. 3,230; United
States V. Cruikshank, 92 U. S. 542, 23
!>. ed. 588; Bartemeyer v. Iowa, 18
Wall. 120, 138, 21 L. ed. 929, 932; Bar-
bier V. l\>nnollv, 113 U. S. 27. 31, 28
K ed. 923, 024, 5 Sup. Ct. Rep. Xu : He
Rahrcr, 140 U. S. 545, 554, 36 L. ed
572, 574, 11 Sup. Ct. Rep. 865.
The amending function is purely F«d
eral.
M'Culloch V. Maryland, 4 Wheai.
316, 4 L. ed. 579; Barron v. Baltimore.
7 Pet. 243, 8 L. ed. 672; Dodge v. Wool '
sey, 18 How. 348, 16 L. ed. 407, 2 Wat
son. Const, p. 1310.
The preservation of the state goven-
ments by protecting them against oi-
croachment by the Federal govemmeni
may be said to have been the chief eon-
cern of all the patriots who luui any
part either in the framing or the adop-
tion of the Constitution.
2 Elliot, Debates, pp. 304, 309; 4
Elliot, Debates, pp. 53, 58.
The Federal government has no ter
ritorial jurisdiction within the bound-
aries of the state of Rhode Island, nor
within the boundaries of any state of
the Union. The operation of its pow
ers within the liuuts of states is con-
fined strictly to the powers delegated
Beyond the powers delegated, it is pow-
erless and can assume no jurisdiction.
Ableman v. Booth, 21 How. 606, 16
L. ed. 169.
The power of police is an attribat^
of state sovereignty. It resides in the
states exclusively, and is necessary to
their existence as organized governments
There is no. divided authority, either is
respect to its possession or in reapect
to its exercise. The Federal govern
ment has no police power.* Each state
is supreme in the possession and in tht
exercise of the power within its terri
torial limits.
M'Culloch V. Maryland, 4 Wheat. 316,
4 L. ed. 679; Collector v. Day (Buffing
ton V. Day) 11 Wall. 113, 20 L. ed. 122.
Hammer v. Dagenhart, 247 U. S. 251,
62 L. ed. 1101, 3 A.L.R. 649, 38 Snpw Ct
Rep. 529, Ann. Cas. 1918E, 724; Texas
V. White, 7 Wall 700, 726, 19 L. ed
227, 237; KeUer t. United SUtes, 213
U. S. 138, 63 L. ed. 737, 29 Sup. Ct
Rep. 470, 16 Ann. Cas. 1066.
Messrs. Elihu Root, William D. Onth
rie, Robert Crain, and Bernard Hersh
kopf filed a brief as amiei enris:
The authority to pass such a prohib
itory law must be sustaineo, if at all
as an exercise of a special power grant-
ed to Congress and the state l^^isla
tures by the terms of article 5 of tbt
Constitution. It cannot be supported by
any idea that the alleged amendmeoi ii
in any other sen^e the action of the peo-
ple of the United States. It has sever
Wen su>uintted to the people of Uw
S5S U 8.
1VI9.
KllOUK ISLAND v. PAJ^lKl:
United States, and tiiey have never acted
iir had an opportunity to act upon it.
3 Doeumentary History of United
States, pp. 405, 409, 410; M'CuUoch v.
Maryland, 4 Wheat. 316, 403, 4 L. ed.
579, 600; Cohen v. VirKinia, 6 Wheat.
264, 389, 5 L. ed. 257, 287.
Ilie prohibitory law now under eon-
aideration and called an amendment to
the Constitution of the United States
diminishes the police power of every
state and impairs every state Constitu-
tion.
State ex rel. Mullen v. Howell, 107
Wash. 167, 181 Pac. 920.
The document to be amended is the
Constitution of the United States. A
eonstitution is a special kind of instru-
Bient, as certain .in its character and
definite in its limitations as are any writ-
ten instruments known to the law. The
fiiU expression for which this word
stands is ''The Constitution of govern-
ment.''
1 Bryce, American Commonwealth, p.
350; Story, Const. 5th ed. § 352;
Vanhome v. Dorrance, 2 DalL 304, 308,
1 L. ed. 391, 393, Fed. Cas. No.
16,857; 33 Federalist, Ford's ed. pp.
260, 263; Century Diet.; Enc. Britan-
niea, 9th ed. ; Cooley, Const. Lim. 7th ed.
pp. 2-4; 11 Holland, Jurisprudence, p.
365; Jameson, Const. Conventions, § 85;
9 Madison, p. 383; 53 Federalist, pp.
354, 355; 41 Federalist, p. 260; 45 Fed-
eralist, p. 309; M'Culloch v. Maryland,
4 Wheat 316, 407, 4 L. ed. 579, 601;
Southern P. Co. v. Jensen, 244 U. S.
205, 227, 61 L. ed. 1086, 1103, L.R.A.
1918C, 451, 37 Sup. Ct. Rep. 524; Tay-
lor V. Governor, 1 Ark. 27; Com. v. Col-
lins, 8 Watts, 349.
The instrument framed by the Consti-
tutional Convention of 1787 answered
strictly to this conception of the nature
of a constitution. It dealt solely with
the powers of government.
Vanhome v. Dorrance, 2 Dall. 304,
808, 1 L. ed. 391, 393, Fed. Cas. No.
16,857; Marbury v. Madison, 1 Cranch,
137, 175, 2 L. ed. 60, 72.
The word ''amend'' has a necessary
relation to some particular thing which
is to be amended. The word has no
meaning whatever except in relation to
that Uung. The change for better or
worse wUch is called an amendment
must be a change in the particular thing
amended. An addition or supplement
is not necessarily an amendment.
Re Pennsylvania Teleph. Co. 2 Ches-
ter Co. Rep. 129; 2 Morawetz, Corp. 2d
ed. § 1096 ; 5 Hinds, Precedents, §§ 5753,
5767; Madiscm's Notes, 3 Documentary
#4 Ti. ed.
History, p. 518; Gagnon v. Uniteii
States, 193 U. S. 451, 457, 48 L. ed. 746.
747, 24 Sup. Ct. Rep. 510; 43 Federal-
ist, p. 291; 3 Elliot, Debates, 233, 234;
Com. ex rel. Atty. Gen. v. Griest, 196
Pa. 404^ 50 L.R.A. 568, 46 Atl. 505;
Warfield v. Vandiver, 101 Md. 78, 60
Atl. 538, 4 Ann. Cas. 692; Livermore v
Waite, 102 Cal. 118, 25 L.R.A. 312, 36
Pac. 424; 85 Federalist, p. 586.
Both the ordinary and natural mean-
ing of the terms used in article 5, as well
as the purpose to be accomplished, limit
the authority granted by the article to
changes in the system .of government, —
changes in the distribution and regula-
tion of governmental powers.
Gibbons v. Ogden, 9 Wheat. 1, 188, 6
L. ed. 23, 68; Fletcher v. Peck, 6 Cranch,
87, 139, 3 L. ed. 162, 178; Citizens' Sav.
& L. Asso. V. Topeka, 20 Wall. 655, 663,
22 L. ed. 455, 461; Murphy v. Ramsey,
114 U. S. 15, 44, 29 L. ed. 47, 57, 5 Sup.
Ct. Rep. 747; Collector v. Day (Buf-
fington V. Day) 11 WaU. 113, 127, 22
L. ed. 122, 126.
That the power to amend the Consti-
tution does not include the power of in-
dependent legislation by the amending
agents is clearly indicated by the rulings
both in the national and state courts that
the proceedings of Congress and of the
state legislatures are not ordinary legis-
lation, and for that reason the resolu-
tions on the one hand, proposing amend-
m^ts, and, on the other, ratifying them,
do not require to be submitted to the
President and to the governors, under
the general provisions which in terms ap-
ply to all bills, orders, resolutions, and
votes.
Hollingsworth v. Virginia, 3 Dall. 378,
1 L. ed. 644; Com. ex rel. Atty. Gen. v.
Griest, 196 Pa. 404, 50 L.R.A. 568, 46
Atl. 505; Warfield v. Vandiver, 101 Md.
78, 60 Atl. 538, 4 Ann. Cas. 692; Liver-
more v. Waite, 102 Cal. 118, 25 L.R.A.
312, 36 Pac. 424.
The exercise of the power of ordinary
legislation through the forms of amend-
ment under article 5 would be inconsist-
ent with the fundamental principles of
the Constitution, because it would pre-
vent the rule of the majority.
22 Federalist, Ford's ed. p. 135;
Cooley, Const Lim. 7th ed. p. 50.
The Constitution received its vitality,
not from the vote of a majority of the
people of the United States, but from
the consents of the several people of the
different states.
Legal Tender Cases, 12 Wall. 457, 20
L. ed. 287; Texas v. White, 7 Wall. 700,
720, 724, 19 L. ed. 227, 235, 237;
951
SUPREME COURT OF THE UNITED STATK«.
Oct.
Sturges V. Crowinshield, 4 Wheat. 122,
192, 4 L. ed. 529, 547; M'CuUoch v.
Maryland, 4 Wheat. 316, 403, 4 L. ed.
579, 600; Gibbons v. Ogden, 9 Wheat. 1,
187, 6 L. ed. 23, 68.
Any amendment which tends directly
to destroy the right and power of the
several states to local self-government
should be held void as in conflict with
the intent and spirit and implied limita-
tions of the Federal Constitution adopt-
ed by the people of the United States.
M'Culloch V. Maryland, 4 Wheat. 403,
4 L. ed. 600; Texas v. White, 7 Wall.
700, 725, 19 L. ed. 227, 237 ; Hammer v.
Dagenhart, 247 U. S. 251, 275. 62 L. ed.
1101, 1107, 3 A.L.R. 649, 38 Sup. Ct.
Rep. 529, Ann. Cas. 1918E, 724; Cit-
izens' Sav. & L. Asso. v. Topeka, 20
Wall. 655. 663, 22 L. ed. 455, 461;
Slaughter-House Cases, 16 Wall. 36, 77,
21 L. ed. 394, 409; Civil Rights Cases,
109 U. S. 3, 11, 15, 19, 27 L. ed. 835,
839, '840, 842, 3 Sup. Ct. Rep. 18;
Northern Securities Co. v. United States,
193 U. S. 197, 348, 48 L. ed. 679, 704,
24 Sup. Ct. Rep. 436; Kdler v. United
States, 213 U. S. 138, 148, 149, 53 L. ed.
737, 740, 741, 29 Sup. Ct. Rep. 470, 16
Ann. Cas. 1066; Kentucky v. Dennison,
24 How. 66, 107, 16 L. ed. 717, 729;
Guinn v. United States, 238 U. S. 347,
362, 59 L. ed. 1340, 1346, L.R.A.1916A,
1124, 35 Sup. Ct. Rep. 926; 2 Curtis,
History of IF. S. Const, pp. 160, 161;
State y. Keith, 63 N. C. 144; Eason v.
State, 11 Ark. 491.
Manifestly, the Constitution of the
United States, like every other written
instrument, must in many respects de-
pend for its true construction upon
plain implications to be derived from its
nature and terms, the historical circam-
Btances surrounding its origin, and,
above all, the fundamental purposes of
its creation.
Veazie Bank v. Fenno, 8 Wall. 633,
641, 19 L. ed. 482, 486; Collector v. Day
(Buffington v. Day) 11 WaU. 113, 127,
20 L. ed. 122, 126; Citizens' Sav. & L.
Asso. V. Top€to^ 20 Wall. a55, 663, 22
L. ed. 455, 461 ; Downes v. Bidwell, 182
U. S. 244, 290, 291. 46 L. ed. 1088, 1107,
1108, 21 Sup. Ct. Rep. 770; Murphy v.
Ramsey, 114 U. S. 15, 44, 29 L. ed. 47,
57, 6 Sup. Ct. Rep. 747; Ratfabone v.
Wirth, 150 N. Y. 483, 34 L.R.A. 408,
45 N. E. 16; Re Fraser, 203 N. Y. 143,
96 N. E. 365, Ann. Cas. 1913B, 14.
In order to teat the validity of any
proposed amendment to the Constitution
of the United States, its essential na-
ture, its primary purpose, and its direet
tendency, must be analyzed and deter-*
»S2
mined. The adoption and validation of
any amendment is, of course, authority
for the adoption and validity of all oth^
ers of a similai* nature and purpose and
having the same tendency, wherever
they may lead; for it is too well settled
to require argument that the test of the
validity of a power is not how it is prob-
able that it will be exercised in partic-
ular cases, but what can properly b«
done under it (Keller v. United States,
213 U. S. 138, 53 L. ed. 737, 29 Sup. Ct
Rep. 470, 16 Ann. Cas. 1066; Colon ▼.
Lisk, 153 N. Y. 194, 60 Am. St. Rep.
609, 47 N. E. 302). Questions of power
do not depend on the degree to whioh it
may be exercised (Brown v. Maryland,
12 Wheat. 419, 6 L. ed. 678).
Quite indisputably t^is proposed
amendment, if valid, would be self-ex-
ecuting (Civil Rights Cases, 109 U. S. 3,
20, 27, L. ed. 835, 842, 3 Sup. Ct. Rep.
18), and would withdraw from the sev-
eral states all power and control over
the manufacture, sale, and transportsr
tion in local or intrastate commeree of
intoxicating liquors for beverage pur-
poses,— a field heretofore exclusively
within their absolute and independent
control.
Re Rahrer, 140 U. S. 545, 564, 655,
35 L. ed. 572, 574, 11 Sup. Ct. Rep.
865; Re Heff, 197 U. S. 488, 505, 49
L. ed. 848, 855, 25 Sup. Ct. Rep. 506;
South Carolina y. United States, 199
U. S. 437, 453, 454, 50 L. ed. 261, 266,
267, 26 Sup. Ct. Rep. 110, 4 Ann. Cas.
737; State ex rel. Mullen v. Howdl, 107
Wash. 167, 181 Pac. 920.
It is an inevitable conclusion that, if
the so-called 18th Amendment, which
directly and deliberately deprives th«
several states of a substantial portion of
their respective police powers and reve-
nues, be a constitutional exercise of
power, then another amendment may
constitutionally sweep away every re-
maining vestige of the police powers of
the state; that is to say, the powers of
government inherent in every sovereign-
ty to the extent of its dominions, — tb^
power to govern men and things withio
the limits of its dominions.
license Cases, 5 How. 504, 583, 12
L. ed. 256, 291; Noble State Bank v.
HaAell, 219 U. S. 104, 111. 55 L. ed
112, 116, 32 L.R.A.(N.S.) 1062. 31 Sup
Ct. Rep. 186, Ann. Cas. 1912 A« 487;
Sligfa ▼. Kirkwood, 237 U. S. 62, 59, 59
L. ed. 835, 837, 35 Sup. Ct Rep. 501;
Ives T. South Buffalo R. Co. 201 K. T.
300, 34 L^Jk.(N.S.) 162, 94 N. E. 431,
Ann. Cas, 1912B, 156, 1 N. C. C. A. 517.
The fundamental reaaoB'for the ezist-
tftS 17. &
1910.
RHODE ISLAND v. PALMIlK.
ence of separate, independent, and sov-
ereign states is the power of internal
police and local self-govemmait with
which they have always been clothed.
Sligh V. Kirkwood, 237 U. S. 52, 59,
59 L. ed. 835, 837, 35 Sup. Ct Rep. 501 ;
Patterson v. Kentucky, 97 U. S. 501,
503, 24 L. ed. 1115, 1116; Northwestern
Fertilizing Co. v. Hyde Park, 97 U. S.
659, 667, 24 L. ed. 1036, 1038; license
Cases, 5 How. 504, 628, 12 L. ed. 256,
312.
The right of a state to have and exeiv
cise its police power is the very breath
of its being; and without that power it
would be a mere name, — a mere geo-
graphic unit, — an empty shelL
Ex parte Rowe, 4 Ala. App. 254, 59
So. 70.
In essence, as in practical effect, the
police power of a state is the state it-
self: with it, the state is a potent, sov-
ereign, autonomous, self-governing be-
ing; without it, the state is nothing but
a name.
Stone V. Mississippi, 101 U. S. 814,
819, 820, 25 L. ed. 1079-1081; New
York & N. E. R. Co. v. Bristol, 151 U.
S. 556, 567, 38 L. ed. 269, 272, 14 Sup.
Ct. Rep. 437; South Carolina v. United
States, 199 U. S. 437, 451, 50 L. ed. 261,
265, 26 Sup. Ct. Rep. 110, 4 Ann. Cas.
737 ; Atlantic Coast Line R. Co. v. Golds-
boro, 232 U. S. 548, 558, 58 L. ed. 721,
726, 34 Sup. Ct. Rep. 364; 2 Hare,
American Const. Law, p. 766; Cooley,
Const. Lim. 7th ed. pp. 243, 263.
There is much familiar historical mat-
ter that shows most convincingly the
purpose of the framers of the Constitu-
tion, and the original states which adopt-
ed it, to establish an indestructible Union
composed of indestructible states, and a
national government of enumerated and
limited powers, togetb^r with a series of
state governments, sovereign and inde-
pendent in the spheres of power not dele-
i^ted to or vested in the nation, and
endowed with the same perpetuity which
the Articles of Confederation had assert-
ed for the central government. Equally
clear is the fact that the founders of pur
form of government intended that it
should ever be a trne Federal system,
constituting a Union of free and inde-
pendent states, each possessed of distinct
and substantial autonomous and self-gov-
erning power as to its own people and
its own local self-government, and not a
single, consolidated, centralized govern-
ment in which the several states were to
be but forms of municipal corporations
of the central government, or less, —
mero geographical divisions.
64 Tj. e6.
2 Elliot, Debates, 202, 267, 268; 3
Farrand, Records, pp. 99, 103; WebsteTf
Weakness of Brutus Exposed, Philadel-
phia, 1787; 7 Ford, Writings of Jefifei^
son, p. 296; Wayland, Political Opin-
ions of Jefferson, pp. 42-46; Dartmouth
College V. Woodward, 4 Wheat. 518, 629,
4 L. ed. 629, 657; Gibbons v. Ogden, 9
Wheat. 1, 195. 6 L. ed. 23, 69; Freund,
Pol. Power, §§ 54, 68; Cooley, Const
Lim. 7th ed. pp. 65, 243, 261, 263;
House V. Mayes, 219 U. S. 270, 282, 55
L. ed. 213, 218, 31 Sup. Ct. Rep. 234;
South Carolina y. United States, 199 U.
S. 437, 454^ 50 L. ed. 261, 266, 26 Sup.
Ct. Rep. 110; M'CuUoch v. Maryland, 4
Wheat. 316, 410, 4 L. ed. 579, 602; Re
Rahrer, 140 U. S. 545, 555, 35 L. ed.
572, 574, 11 Sifp. Ct Rep. 865; Re Heff,
197 U. S. 488, 505, 49 L. ed. 848, 855,
25 Sup. Ct. Rep. 506; Lowenstein v.
Evans, 69 Fed. 911; Oklahoma, K & M.
I. R. Co. v. Bowling, 161 C. C. A. 518,
249 Fed. 593; Lane County v. Oregon,
7 WaU. 71, 76, 19 L. ed. 101, 104.
If the so-called 18th Ainendment
would have been regarded as repugnant
to the Constitution when the Constitu-
tion was adopted — ^which it is submitted
cannot be doubted — it is so now, for the
meaning and effect of the Constitution
must at all times be the same.
Ex parte Bain, 121 U. S. 1, 12, 30
L. ed. 849, 853, 7 Sup. Ct. Rep. 781, 6
Am. Crim. Rep. 122; South Carolina v.
United States, 199 U. S. 437, 448, 50
L. ed. 261, 264, 26 Sup. Ct. Rep. 110, 4
Ann. Cas. 737; Story, Const. § 1908.
The right of the states to continue aa
effective local governments, which is im-
plied in the Constitution, has been em*
phatically recognized and enforced as
against an express and practically un-
qualified power sought to be exercised
in conflict therewith, in the cases which
hold that it is unconstitutional for the
Federal government to attempt to tax
tho several states or their governmental'
instrumentalities.
Collector v. Day (Buflftngton v. Day)
11 Wall. 113, 124, 125, 127, 20 L. ed.
122, 125, 126; United States v. Balti-
more & O. R. Co. 17 Wall. 322, 327, 21
L. ed. 597, 599; Pollock v. Farmers'
Loan & T. Co. 157 U. S. 429, 684, 39
L. ed. 769, 820, 16 Sup. Ct. Rep. 673;
South Carolina v. United States, 199 U.
S. 437, 50 L. ed. 261, 26 Sup. Ct. Rep.
110, 4 Ann. Cas. 737.
The establishment and recognition in
the Constitution of the two governments,
Federal and state, plainly implies that
J neither shall be permitted to destroy the
other; that the state power shall not be
MFKtLMJ:: COUKT OF THE UNITED STATES.
Oct. 1
exerted to overthrow the Federal govem-
menty nor the Federal power to impair
the existence of the states.
South Carolina, v. United States,
supra.
Article 5, in its proviso that '^no state,
without its consent, shall be deprived of
its equal suffrage in Hie Senate," neces>
sariiy implies and requires the continued
existence of the states, for otherwise
their equal suffrage in the Senate could
be destroyed with them; and further im-
plies that the states shall at all times ex-
ist as bodies capable of consenting, — in
other words, as autonomous, self-govern*
ing sovereignties.
1 Tuckei-, U. S. Const, pp. 323, 324.
An analysis of the previous Amend-
ments to the Federal Constitution will
disclose that none of them has ever at-:
tempted directly and substantially to in-
vade the police powers of the several
states.
United States v. Cruikshank, 92 U. S.
542, 552, 23 L. ed. 588, 591; Spies v.
Illinois, 123 U. S. 131, 166, 31 L. ed.
80, 86, 8 Sup. Ct. Rep. 21, 22; Barron
V. Baltimore, 7 Pet. 243, 250, 8 L. ed.
672, 675; Minnesota & St. L. R. Co. v.
Bombolis, 241 U. S. 211, 217, 60 L. ed.
961, 963, L.R.A.1917A, 86, 36 Sup. Ct.
Rep. 595, Ann. Cas. 1916E, 505; Slaugh-
ter-House Cases, 16 Wall. 36, 68, 21 L.
ed. 394, 406; Barbier v. Connolly, 113
U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup.
Ct. Rep. 357; Bartemever v. Iowa, 18
Wall. 129, 138, 18 L. ed. 929, 932; Civil
Rights Cases, 109 U. S. 3, 11, 27 L. ed.
835, 839, 3 Sup. Ct. Rep. 18; Mugler v.
Kansas, 123 U. S. 623, 663, 31 L. ed.
205, 211, 8 Sup. Ct. Rep. 273; Re
Kemmler, 136 U. S. 436, 448, 449, 34
L. ed. 519, 524, 525, 10 Sup. Ct. Rep.
930; Re Rahrer, 140 U. S. 545. 556, 35
L. ed. 572, 574, 11 Sup. Ct. Rep. 865;
Quinn v. United States, 238 U. S. 347,
362, 59 L. ed. 1340, 1346, L.R.A.1916A,
1124, 35 Sup. Ct. Rep. 926; Texas v.
White, 7 Wall. 700, 728, 19 L. ed. 227,
238; Citizens' Sav, & L. Asso. v. Topeka,
20 Wall. 6r)5. 662, 22 L. ed. 455, 461.
The people acted upon the plain mean-
ing of the instrument, and intended no
such result as is urged by the defend-
ants in the case at bar, and as the peo-
ple reasonably read the Constitution, so
should it be enforced.
State V. St. Louis Southwestern R. Co
— Tex. Civ. App. — , 197 S. W. 1013;
Alexander v. People, 7 Colo. 155, 2 Pac.
894.
Contemporaneous legislative construc-
tion is of the utmost weight and entitled
to great deference in determining: the
''nrce and effect of a constitutionni pro-
vision, since it may well be presumed to
haye resulted from the same views as
were entertained by the framers them-
selves.
Missouri, P. R. Co. v. Kansas, 248
U. S. 276, 281, 282, 63 L. ed. 239-241,
2 A.L.R. 1589, 39 Sup. Ct. Rep. 93;
Ames V. Kansas, 111 U. S. 449, 469, 28
L. ed. 482, 490, 4 Sup. Ct. Rep. 437;
The Genesee Chief v. Fitzhugh, 12 How.
443, 458, 13 L. ed. 1058, 1065; Ogden f.
Saunders, 12 Wheat. 213, 290, 6 L. ed.
606, 632; Cohen v. Virginia, 6 Wheit
264, 420, 5 L. ed. 257, 295 ; 12 C. J. p
714.
State legislatures have repeatedly re-
quired subordinate bodies and offleoi
expressly to find and certify a funda-
mental fact and Condition precedent m
order to prevent its actual sjatppremoin
under the cover of the implication as-
sumed to arise from mere action and the
silence of the body or officer upon tht
subject.
Hoyt V. East Saginaw, 19 Mich. 44, 2
Am. Rep. 76 ; Hoffman v. Pittsburg, 229
Pa. 36, 78 Ail. 26.
It argues nothing to say that otiier
amendments have been proposed under
substantially similar forms of joint reso-
lution.
Fairbanks v. United States, 181 U. 8.
283, 311, 45 L. ed. 862, 874, 21 Sup. a
Rep. 648, 15 Auk Crim. Rep. 135; Oak-
land Paving Co. V. Hilton, 69 Cal. 602.
11 Pac. 3; Warfield v. Vandiver, 101 Md
78, 60 Atl. 541, 4 Ann. Ca& 692.
The Constitution does not preaerib«
any requirement for the internal 8tra^
ture of a state government other than
that it shall be republican in form; and,
under our system of government, tht
right to decide what is or is not a repub-
lican form of government is exclusively
vested in the political branches of tb«
national government.
Luther v. Borden^ 7 How. 1, 12 L. ad.
581; Pacific State Teleph. & Teleg. Co.
V. Oregon, 223 U. S. 118, 56 L. ed. 377,
32 Sup. Ct. Rep. 224; Mountain Timber
Co. V. Washington, 243 U. S. 219, 61
L. ed. 685, 37 Sup. Ct. Rep. 260, Ann
Cas. 1917D, 642, 13 N. C. C. A. 927.
The right of a state to have whatever
means or instrumentalities of local gov-
ernment it deems fit is, indeed, as dear
as its right to enact measures of loeal
self-government in accordance with its
own peculiar wishes. Both of these pow
ers are wholly reserved to the states in
the 10th Amendment.
State ex rel. Davis v. Hildebrant« 94
Ohio St. 161, 114 N. E. 55, 241 U. 8.
565, 60 L. e<l. 1172, 36 Sup. Ct. Rep. 708.
25 S U. ft.
ll^lr
KUODE ISLAND v. PALMKK.
The Constitution being a written in-
sitrument, its meaning does not alter, and
the word ^legislatures/' used therein,
must now bear the same interpretation
ihat would have been plaeed thereon by
the framers (Dred Scott v. Sandford, 19
How. 393, 426, 15 L. ed. 691, 709 ; South
Carolina v. United States, 199 U. S. 437,
448, 50 L. ed. 261, 264, 26 Sup. Ct. Rep.
110, 4 Ann. Cas. 737). As, however, the
Constitution was not made for a day,
Irat was intended to embrace within its
provisions the entire duration of our na*
tional existence, however long that might
be (Martin v. Hunter, 1 Wheat. 304,
32€, 4 L. ed. 97, 102; M'Culloeli v. Mary-
land, 4 Wheat. 316, 415, 4 L. ed. 579,
W3; Cohen v. Virginia, 6 Wheat. 264,
387, 5 L. ed. 257, 287), it is manifest
that, as changes come in social and po-
litical life, it embraces in its grasp all
aew conditions which are within the
scope of the powers in terms conferred
cberein (South Carolina v. United States,
199 U. S. 437, 448, 50 L. ed. 261, 264, 26
Sup. Gt. Rep. 110, 4 Ann. Cas. 737),
and that it would certainly not be per-
missible to read into the [Constitution]
a nolumus mutare as against the law-
making power of a state (NQj;>le State
Bank v. Haskell, 219 U. S. 104, 55 L. ed.
112, 32 L.R.A.(N.S.) 1062^ 31 Sup. Ct.
Rep. 186, Ann. Cas. 1912 A, 487).
The framers certainly looked upon the
people of the states as the source of all
^vemmental power in the several states,
and upon the legislative assemblies as
merely their creatures or agents.
Cohen v. Virginia, 6 Wheat. 265, 5
U ed. 257.
The founders indisputably realized
that the people in the several states had
the right and the power to circumscribe
the functions of their respective state
legislatures so as to subject any action
of the legislatures to popular vote, and
that consequence naturally followed from
the conviction, which all of tbem must
have had, that the peo])]e of the states
were the exclusive .source of govern-
mental power in their respective states
fChisholm v. Georgia, 2 Dall. 419, 471.
1 L. ed. 440, 462; Van Home v. Dor-
rance, 2 Dall. 304, 308, 1 L. ed. 391, 393,
Fed. Cas. No. 16,857). The New Eng-
land town-meeting system of government
prevailed when the Constitution was
adopted, was familiar to virtually every
^enlightened citizen of the time, and was
4 perfect illustration of local govern-
ment conducted under and by direct leg-
islation.
People ex rel. Metropolitan Street R.
Go. V. State Tax Comrs. 174 N. Y. 432,
€4 Ti. ed.
63 L.R.A. 884, 105 Am. St. Rep. 674,
67 N. E. 69; Re Pf abler, 150 Cal. 71, 11
L.R.A.(N.S.) 1092, 88 Pac. 270, 11 Ann.
Cas. 911.
The Federal Constitution did not de-
fine the nature, composition, authority,
or function of the legislatures of the
states upon whom power was conferred
in article 5. The Constitution left the
state legislatures precisely where it found
them, — exclusively under the control of
the people of the respective* states.
When, therefore, the framers used the
term "legislatures" in article 5, they
were employing it in its broadest sense
to denote the legislative instrumentalities
by which the legislative power of a state
might be expressed in the several states
at any time during the future life of the
nation. The all-pervading purpose was
to have ti\e people of the state express
their will as to changing the funda-
mental law of the nation. It is their will
that was intended to govern, and they
are to express that will through the leg-
islative department of the respective
state governments which they have estab-
lished. But how that department should
be constituted, how it should act, when it
should act,. what conditions should be im-
posed before its action became effective
— all these matters were left by the Con-
stitution to the states to settle according
to their pleasure.
State ex rel. Schrader v. Policy, 26 S.
D. 5, 127 N. W. 848; State ex rel. Davis
V. Hildebrant, 94 Ohio St. 154, 114.N. E.
55, 241 U. S. 505, 60 L. ed. 1172, 36 Sup.
Ct. Rep. 708; State ex rel. Mullen v.
Howell, 107 Wash. 167, 181 Pac. 920;
Hawke v. Smith, — Ohio St. — , 126 N.
E. 400; Carson v. Sullivan, — Mo. — ,
223 S. W. 571.
Amending the Federal Constitution is
certainly not ordinary legislation, and,
consequently, it does not require many
things generally required of the^ usual
legislation; as, for example, the* assent
or veto of the Executive. But inasmuch
as the process goes to the creation of the
fundamental law in each state, it is nec-
essarily lawmaking. Preciisely because it
is a legislative activity, — although not
ordinary legislation, — ^it has been in-
trusted exclusively to those branches of
the Federal and state governments whose
function it is to formulate the laws.
Hawke v. Smith, — Ohio St. — , 126
N. E. 400.
It would ordinarily be regarded as
quite clear that if two bodies were vested
with concurrent power to enforce any
particular constitutional or legislative
' provision, such two bodies would, ex
SUPKKiVLK COURT OK THE UNITED STATES.
Ocrr.
necessitate, have to concur in exercising
the power; in other words, that there
would have to be concurrence on the
part of each.
Nielsen v. Oregon, 212 U. 8. 315, 321,
63 L. ed. 628, 530, 29 Sup. Ct Rep. 383;
Wedding v. Meyler, 192 U. S. 573, 584,
685, 48 L. ed. 570, 575, 66 LJi.A. 833,
24 Sup. Ct. Rep. 322 ; Ex parte Desjeiro,
152 Fed. 1007; Re Mattson, 69 Fed. 542;
Delaware. Bridge Co. v. Trenton City
Bridge Co. 13 N. J. Eq. 46 ; Black's Law
Diet.; Century Diet.
In the 13th article of amendment to
the Constitution of the United States the
enforcenlent clause reads simply that
"Congress shall have power to enforce
this article by appropriate legislation;''
and practically the same form of expres-
sion was employed in the 14th and 15th
Amendments. In the 18th Aq^endment,
however, a materially different form of
expression was devised and employed,
and it is, of course, reasonable add
proper to presume that something dif-
ferent in effect was intended.
Slaughter-House Cases, 16 Wall. 36,
74, 21 L. ed. 394, 408.
Both the granting and the limiting
clauses of the Constitution must h6 fair-
ly construed.
Fairbank v. United States, 181 U. S.
283, 288, 289, 45 L. ed. 862, 864, 865, 21
Sup. Ct. Rep. 648, 15 Am. Crim. Rep.
ia5.
Common honesty requires that thai
construction be adopted against the par-
ty whose language it is; namely, the
Congress.
State V. St. Louis Southwestern R. Co.
— Tex. Civ. App. — , 197 S. W. 1013;
Alexander v. People, 7 Colo. 167, 2 Pac
894.
If the ease at bar involved the inter-
pretation of a contract, that would be
the inevitable result.
White V. Hoyt, 73 N. T. 505.
»
Messrs. Alexander Lincoln and Mi-
chael J. Lynch also filed a brief as amici
curiae :
The 18th Amendment has no validity
as a constitutional provision unless
authorized by article 5. It was not pro-
posed by a constitutional convention,
nor was it ratified by the "people or by
conventions in the several states.
2 Curtis, History of U. S. Const chap.
6, pp. 152, 153; 2 Watson, Const, p.
1310; M'CuUoch v. Maryland, 4 Wheat.
316, 403, 404, 4 L. ed. 579, 600, 601.
The term "constitution" means a form
or framework of government. Consist-
ently with this nieaninp a constitution is
or.6
universally defined to be in its eeseoM i
framework of government.
Story, Const. 5th ed. § 352; Cool^,
Const. Lim. 7th ed. pp. 4, 6S-68, 114:
Jameson, Const. Conventions, 4th ed. {f
63, 85, 87, 96. 97, 370, 371; 1 Lowdl'i
Government of England, p. 1; YanbonM
V. Dorrance, 2 Dall. 304, 308, 1 L. ed
391, 393, Fed. Cas. No. 16,857; 2 Kent,
Com. Lecture XXIV.; 7 Dicey, Court.
7th ed. pp. 191-197; HurUdo v. Cal-
ifornia, 110 U. S. 516, 531, 532, 28 L ei
232, 237, 4 Sup. Ct Rep. Ill, 292; Com.
ex rel. Atty. Qen. v. Griest, 196 ^ 404,
50 LR.A. 568, 46 Atl. 505 ; Warfidd v.
Vandiver, 101 Md. 115, 60 Atl. 538, 4
Ann. Cas. 692; Stevens, Const, chap. 8.
The Constitution of the United Statei
(prior to the so-called 18th Amendment)
conforms exactly to this general descrip-
tion of a constitution. It is both t
framework of government and a bill of
rights.
Southern P. Co. v. Jensen, 244 U. 8.
205, 227, 61 L ed. 1086, 1103, L.RA.
1918C, 451, 37 Sup. Ct. Rep. 524, Ann.
Cas. 1917E, 900, 14 N. C. C. A. 597; 84
Federalist; 3 Story, Const §§ 355, 372,
chap. 44; Steven's Sources of U. S.
Const, chap. 8; Chisholm v. Georgia, 2
Dall. 419, 474, 475, 1 L. ed. 440, 464;
United States v. Cruikshank, 92 U. S.
542, 549-551, 23 L. ed. 588, 690, 691; 9
Story, Const. 5th ed. chap. 6, § 355;
Barron v. Baltimore, 7 Pet 243, 248, 8
L. ed. 672, 674; Monongahela Nav. Co. ?.
United States, 148 U. S. 312, 324, 37 L
ed. 463, 467, 13 Sup. Ct Rep. 622; Max-
well V. Dow, 176 U. S. 581, 606, 607, 44
L. ed. 597, 606, 607, 20 Sup. Ct. Rep.
448, 494; Spies v. lUinois, 123 U. S. 131,
166, 31 L. ed. 80, 86, 8 Sup. Ct Rep. 21,
22; M'Culloch v. Maryland, 4 Wheat
316, 405, 4 L. ed. 579, 601.
. None of the Amendments subsequent
to the Bill of Ri^ts has the effect of al-
tering the fqndamental characteristics of
the Constitution as a form of Federal
govemm^it and bill of rights. In mme
of them, it seems, are any of the powen
reserved to the states surrenderod bj
them and given to the Federal govera-
ment The powers of the states are re-
stricted in these amendments, apparent-
ly, only by further or express applica-
tion of the principles of political liberty
and a republican form of government
such as was guaranteed to the states by
the Constitution.
Slaughter-House Cases, 16 Wall. 36,
67, 72, 21 L ed. 394, 405, 407; United
States V. Reese, 92 U. S.- 217, 218, 23
L. ed. 564, 565; United SUte* v. Cruik
shank, 92 U. S. 542, 554, 555, 23 L. ed
S5S X3, 8.
lyiti.
UtlUJiK liSLANP V. PALMER.
588, 692; Davidson v. New Orleans, 96
U. S. 97, 24 L. ed. 616; Ex parte Vir-
ginia, 100 U. S. 339, 344, 345, 25 L. ed.
676, 678, 679, 3 Am. Crim. Rep. 547;
Civil Rights Case$, 109 U. 8. 3, 27 L. ed.
836; 2 Curtis, History of U. S. Const.
pp. 161, 498.
The Constitution contemplates an in-
destructible union of sovereign and inde-
structible states.
M'Culloch V. Maryland, 4 Wheat. 316,
403, 4 L. ed. 579, 600; Gibbons v.
Ogden, 9 Wheat. 1, 195, 4 L. ed. 23,
69; Lane County v. Oregon, 7 Wall. 71,
76, 19 L. ed. 101, 104; Texas v. White,
7 Wall 700, 725, 19 L. ed; 227, 237;
Collector v. Dav (Buffington v. Day) 11
Wall. 113, 124; 125, 20 L. ed. 122, 125,
126; Keller v. United States, 213 U. S.
138, 149, 53 L. ed. 737, 741, 29 Sup. Ct.
E€^. 470, 16 Ann. Cas. 1066.
The powers given to the Federal gov-
emxnent are only those which are neces-
sary to the existence and effective main*
tenance of the nation. There is no provi*
sion suggesting the exercise by the Unit-
ed States of any branch of that system
of internal regulation called the police
power, or power of local self-govern-
ment That power was intended by the
framers of me Constitution to be re-
served to the states, and has always been
regarded as peculiarly within their juris-
diction.
License Cases, 5 How. 504, 583, 12 L.
ed. 256, 291; Noble State Bank v. Has-
kell, 219 U. S. 104, 111, 65 L. ed. 112,
116, 32 LJl.A.(N.S.) 1062, 31 Sup. Ct
Hep. 186, Ann. Cas. 1912 A, 487; Sligh
V. Kirkwood, 237 U. 8. 52, 59, 59 L. ed.
835, 837, 35 Sup. Ct Rep. 501; Dart-
mouth College V. Woodward, 4 Wheat
518, 629, 4 L. ed. 629, 657; New York v.
Miln, 11 Pet 102, 139, 9 L. ed. 648, 662;
License Tax Cases, 5 Wall. 462, 470, 471,
18 L. ed. 497, 500, 501; United States
V. Dewitt, 9 Wall 41, 19 L. ed. 593;
Slaughter-House Cases, 16 Wall. 36, 62-
64, 21 L. ed. 394, 404, 405; Bartemeyer
▼. Iowa, 18 WaU. 129, 138, 21 L. ed. 929,
932; Boston Beer Co. v. Massachusetts,
W U. S. 25, 24 L. ed. 989; Patterson v.
Kentucky, 97 U. S. 501, 503, 506, 24 L.
ed. 1115-1117; Stone v. Mississippi, 101
U. S. 814, 819, 820, 25 L. ed. 1079-1081 ;
Barbier v. ConnoWv, 113 U. S. 27, 31,
28 L. ed. 923, 924, 3 Sup. Ct Rep. 357;
Mugler V. Kansas, 123 U. S. 623, 657,
667, 31 L. ed. 205, 209, 212, 8 Sup. Ct
Rep. 273; Kidd v. Pearson, 128 U. S. 1,
32 L. ed. 346, 2 Inters. Com. Rep. 232,
213 U. S. 138, 144, 149, 53 L. ed. 737,
738, 741, 29 Sup. Ct. Rep. 470, 16 Ann.
Cas. 1066; Hammer v. Dagenhart, 247 U.
S. 251, 274, 276, 62 L. ed. 1101, 1106,
1107, 3 A.L.R. 649, 38 Sup. Ct. Rep. 529,
Ann. Cas. 1918E, 724; United States v.
Hill, 248 U. S. 420, 428, 63 L. ed. 337,
341, 39 Sup. Ct. Rep. 143; United States
V. Doremus, 249 U. 8. 86, 95, 63 L. ed.
493, 497, 39 Sup. Ct. Rep. 214; Cooley,
Const. Lim. 7th ed. p. 243 ; Miller, Const.
p. 412.
The Constitution was made supreme
and permanent because it was a form of
government and bill of rights, and not
a code of laws.
J. Kent, Com. pp. 448, 449; Cooley,
Const Lim. 7th ed. pp. 5, 6; Dicey,
Const 7th ed. pp. 140-142; 78 Feder-
alist; Marbury v. Madison, 1 Cranch,
137, 176, 2 L. ed. 60, 73; Paxton's Case,
Quincy (Mass.) 52; Cooley, Const lam.
7th ei chap. 7; Thayer, Cases on Const.
Law, pp. 48-154; 2 Mass. Law Quart,
pp. 441, 462; Vanhome v. Dorrance, 2
Dall. 304, 308, 1 L. ed. 391, 393, Fed.
Cas. No. 16,857; Martin v. Hunter, 1
Wheat. 304, 326, 4 L. ed. 97, 102.
An amendment of the Constitution un-
der article 5 must, by the meaning of the
word ''amendment," be a change consist-
ent wi^ the nature and purpose of the
Constitution. The amending power is
limited to changes of that character.
Livermore v. Wwte, 102 Cal. 119, 25
L.R.A. 312, 36 Pac. 424; Re Pennsyl-
vania Teleph. Co. 2 Chester Co. Rep.
131; Gagnon v. United States, 193 U. S.
451, 457, 4g L. ed. 745, 747, 24 Sup. Ct.
Rep. 510; 2 C. J. 1317, title **Amend-
ment ;" State ex rel. Gamble v. Hubbard,
148 Ala. 394, 41 So. 903; McCleary v.
Babcock, 169 Ind. 233, 82 N. E. 453; 1
Lewis's Sutherland, Stat. Constr. 2d ed.
§ 139; Shields v. Barfow, 17 How. 130,
144, 15 L. ed. 158, 162; Hardin v. Boyd,
113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct
Rep. 771; Lennox v. Vandalia Coal Co.
158 Mo. 488, 59 S. W. 242; 2 Curtis, U.
S. Const, pp. 473, 474; 2 Farrand., pp.
629, 631; 5 Elliot, Debates, p. 182; 2
Farrand, Madison's Notes, p. 558; 3 El-
liot, Debates, pp. 176, 177; 43 Feder-
aHst, § 8; Stoi^ Const § 1827; 2 Cur-
tis, History of if. S. Const, pp. 160, 162.
The amending power does not extend
to additions re^icting the police power
of the states.
Hammer v. Dagenhart, 247 U. S. 251,
276, 62 L. ed. 1101, 1107, 3 A.L.R. 649,
38 Sup. Ct. Rep. 529, Ann. Cas. 1918E,
724 ; Cooley, Const. Lim. 7th ed. pp. 243,
9 Sup. Ct Rep. 6; Re Rahrer. 140 U. S. 831: Miller, Const p. 412.
645, 554, 555, 35 L. ed. 572, 574. 11 Sup. * The amending power does uot include
Ct Rep. 865; Keller v. United States, the power of legislation.
•4 li. ed. •S^
SirUK-MK liHUl OK Tilh: UMIEl) {STATES.
Oct 1
Hollingsworth v. Virginia, 3 Dall. 378,
1 L. ed. 644; Com. ex rel. Atty. Gen. v.
Oriest, 196 Pa. 396, 50 L.ll.A. 568, 46
Atl. 505; Warfield v. Vandiver, 101 Md.
78, 60 Atl. 538, 4 Ann. Cas. 692.
Principles of public policy constitute
one of the sources of law. Where the
decision of a case is not plainly governed
by some constitutional provision, statute,
or rule of law, apd no previous authori-
tative decision seems to be applicable,
such principles should be, and doubtless
are, g^ven consideration by the court.
Evta R. Thayer in 5 Harvard L. Rev.
172; Gray, 6 Harvard L. Rev. 28; 21
Harvard L. Rev. 122, 125.
Mr. Aaron A. Ferris also filed a brief
as amicus curiae:
In construing statute or constitutional
provisions, the court looks to the history
of the times when the constitution or
law was made, and into the proceedings
of those framing the organic law, or pn
act of the legislature.
Rhode Island v. Massachusetts, 12 Pet.
667, 9 L. ed. 1233; Prigg v. Pennsyl-
vania, 16 Pet. 539, 10 L. ed. 1060.
The 18th Amendment would nullify
article 10 of the Amendments, and trans-
fer police powers from the states to the
general government.
Martin v. Hunter, 1 Wheat. 304, 4 L.
ed. 97; Gibbons v. Ogden, 9 Wheat. 203,
6 L. ed. 71; License Cases, 5 How. 504,
12 L. ed. 256; United States v. DeWitt,
9 Wall. 41, 19 L. ed. 593; Slaughter-
House Cases, 16 Wall. 36, 21 L. ed. 394;
Barbier v. Connolly, 113 U. S. 27, 28 L.
ed. 923, 5 Sup. Ct. Rep. 357; Mugler v.
Kansas, 123 U. S. 623, 31 L. ed. 205, 8
Sup. Ct. Rep. 273.
Solicitor General King and Ai^istant
Attorney General Frierson argued the
cause and filed a- brief for defendants:
The nature and propriety of any
amendment, other than those prohibited
by article 5, are left to the decision of
the Congress as the proposer, and the
legislatures specified as the ratifiers.
Luther v. Borden, 7 How. 1, 42, 12 L.
ed. 581, 599; Pacific States Teleph. &
Teleg. Co. v. Oregon, 223 I^. S. 118, 56 L,
ed. 377. 32 Sup. Ct. Rep. 224: Mississip-
pi V. Johnson, 4 Wall. 475. 18 L. ed. 437 ;
Oeorma v. Stanton, 6 Wall. 50, 18 L. ed.
721 ; Marshall Field & Co. v. Clark, 143
IT. S. 649. 680, 36 L. ed. 294, 306, 12
Sup. Ct, tiep. 495; Harwood v. Went-
worth, 162 U. S. 547, 562, 40 L. cd. 1069,
1073, 16 Sup. Ct. Rop. 890; Flint v.
Stone Tracy Co. 220 U. S. 108, 143, 55
L. ed. 389, 410, 31 Sup. Ct. Rep. 342,
Ann. Cas. 1912B, 1312.
The only limitations on the constitu-
• 58
tional power of the Congress to propose,
and of the legislatures to ratify, by the
majorities therein named, amendments to
the Conistitution under article 5, are those
expressed in that article.
Willoughliy, Const. § 227.
The adoption of an amendment in tbt
constitutional way cannot be said to im-
pose anything upon a state without it*
consent.
Dodge V. Woolsey, 18 How. 331, 348,
15 L. ed. 401, 407.
There is no merit in the contention that
the Amendment is one which was not
within the contemplation of the framm
of the Constitution.
Kansas v. Colorado, 206 U. S. 46, 90,
51 L. ed. 956, 971, 27 Sup. a. Rep. 655
For further contentions, see infra, pp.
966, 969, 974.
Mr. David J. Reinhardt, Attorn^
General of Delaware, Mr. J. S. Manning.
Attorney General of North Carolina, Mr.
Charles I. Dawson, Attorney General ol
Kentucky, Mr. Adolph V. Coco, Attor-
ney General of Louisiana, Mr. Ele Btaot-
bury. Attorney General of Indiana, Mr.
J. Q. Smith, Attorney General of Ala*
bama, Mr. Guy H. Sturgis, Attomej
Gtoeral of Maine, Mr. John D. Arbuckle,
Attorney General of Arkansas, Mr. Aler
J. Groesbeck, Attorney General of Midi-
igan^ Mr. Van C. Swearengen, Attorney
General of Florida, Mr. George M.
Brown, Attorney General of Oregon.
Mr. Richard T. Hopkins, Attorney Geo
eral of Kansas, Mr. E. T. England, At-
torney Xleneral of West Virginia, Mr.
Leonard Fowler, Attorney General of
Nevada, Mr. Clarence A. Davia, Attoi^
ney General of Nebraska, Mr. 8. Clar-
ence Ford, Attorney General of Mon-
tana, Mr. William Langer, Attorney
General of North Dakota, Mr. Byron 8
Pa3me, Attorney General of South Da-
kota, Mr. W. L. Walls, Attorney Gen-
eral of Wyoming, Mr. Dan B. Shidda,
Attorney General of Utah, Mr. Wiley B.
Jones, Attorney General of Ariaena, and
Mr. Charles E. Hughes also filed a bri^
as amici curiie:
The framers of the Constitution re-
fused to adopt such a restriction npoa
the amending power as that for wbiob
the complainant contends, and no voA
restriction can be implied.
1 Farrand, Records of Fed. Conveo-
tions, 22; 5 Elliot, Debates, 128, 132; 3
Farrand, 601; 1 Farrand, 121, 122, 202.
203, 231; 2 Farrand, 84, 159, 174, 188.
467, 468, 557-559, 602, e29-631; 4
Elliot, Debates, 176-178; 8 Elliot, De^
bates, 636, 637; 43 Federalist; Willough-
bv. Const. S 227, p. 521; Storv, Const
15S V. H
i:»iy.
i;hoi)j: island v. palmkk.
^ 1830, p. ttOO; 1 Hare, Const. Law, p, ,
30.
The Constitution is not a compact be-
tween the states. It proceeds directly
from the people.
M'CuUoch V. Maryland, 4 Wheat. 316,
402-405, 4 L. ed. 579, 600, 601.
Amendments are to be made through
designated representatives, but they none
the less emanate fh)m the people, who
imTe defined the method to be adopted on
their behalf.
Dodge y. Woolaey, 18 How. 331, 348,
15 L. od. 401, 407.
If the amending power could not be
eaiereised, as provided in article 5, so as
to restrict the exercise of police pow^
of the state on dealing with its internal
eoneems, then this court has acted with-
(Mit anthority in its almost daily applica^
tioB of the due process clause of the 14th
Amendment to state legislation.
Eubank v. Richmond, 226 U. 8. 137,
67 L. ed. 156, 42 L.R.A.(N.S.) 1123, 33
Sup. Ct Rep. 76, Ann. Cas. 1914B, 102;
Buchanan v. Warley> 245 U. S. 60, 62
L. ed. 149, L.R.A.1918C, 210, 38 Sup.
Ct Rep. 16, Ann. Cas. 1918A, 1201;
Adams v. Tanner, 244 U. S. 590, 61 L.
ed. 1336, L.R.A.1917F, 1163, 37 Sup. Ct.
Rep. 662, Ann. Cas. 1917D, 973; Tmax
V. Raich, 239 U. S. 33, 60 L. ed. 131,
L.RJLa916D, 545, 36 Sup. Ct. Rep. 7.
Ann. Cas. 1917B, 283; Central of
Georgia R. Co. v. Wright, 207 U. S. 127,
62 L. ed. 134, 28 Sup. Ct Rep. 47, 12
Ann. Cas. 463.
Even with respect to the right of suf-
frage, the exercise of the amending pow-
er under the Federal Constitution has
extended Federal authority into the
states, so as to invalidate state action
establishing the qualifications of voters.
Qninn v. United States, 238 U. S. 347,
59 L. ed. 1340, L.R.A.1916A, 1124, 35
Sup. Ct. Rep. 926.
The 13th Amendment operated direct-
ly upon the rights and status of persons.
While it empowered the Congress to en-
act legislation to carry out its provi-
sions, it was self-executing. It did not
relate simply to the framework of gov-
ernment by making an additional grant
of legislative power, but it directly af-
fected the liberties and rights of individ-
uals within the states, and restrained all
those who sought to maintain a condition
of servitude.
Civil Rights Cases, 109 U. S. 3, 20, 27
L. ed. 836, 842, 3 Sup. Ct. Rep. 18;
Olyatt v. United States, 197 U. S. 207,
216, 40 L. cd. 726, 729, 25 Snp. Ct. Rep.
429; Bailev v. Alabama, 210 U. S. 219,
55 L. ed. 101. 31 Snp. Ct. Rep. 145.
94 Jj. ed.
Mr. Thomas F. McOran, Attorney
General of New Jersey, argued the
cause, and, with Mr. Francis H. McOee,
tiled a brief for complainant in No. 30,
Original:
A constitution is the form of govern-
ment denoted by the mighty hand of the
people, in which certain first principle*
of fundamental law are established.
The Constitution is certain and fixed.
Vanhome v. Dorrance, 2 Dall. 304.
308, 1 L. ed. 391, 393, Fed. Cas. No. 16,-
857.
Constitutions should consist only of
general provisions; the reason is that
they must necessarily be permanent, and
that they cannot calculate for the possi*
ble change of things.
2 Elliott,. Debates, p. 364.
The object of the framers of that in-
strument was to lay the foundations of
the government, to set up its framework,
and to establish merely the general prin-
ciples by which it was to be animated^
avoiding, as far as possible, any but the
most fundamental regulations for con-
trolling its operations.
Southern P. Co', v. Jensen, 244 U. 8.
205, 227, 61 L. ed. 1086, 1103, L.R.A
1918C, 451, 37 Sup. Ct. Rep. 624, Ann.
Cas. 1917E, 900, 14 N. C. C. A. 596.
The framers of the Constitution did
not intend to restrain the states in the
regulation of their civil institutions,
adopted for internal government, and
the instrument they have given us is not
to be so construed.
Dartmouth College y. Woodward, 4
Wheat. 629, 4 L. ed. 657.
The maintenance of the authority of
the states over matters purdy local is
as essential to the preservation of our
institutions as is the conservation of the
supremacy of the Federal power in all
matters intrusted to the nation by the
Federal Constitution. In interpreting
the Constitution, it must never be forgot-
ten that the nation is made up of states
to which are intrusted the powers of
local government, and to them and to
the people the powers not expressly del-
egated to the national government are
reserved.
Lane County t. Oregon, 7 Wall. 71,
19 L. ed. lOL
The power of the states to regulate
their purely internal affairs by such laws
as seem wise to the local authority is in-
herent, and has never been surrendered
to the general government.
Slaughter-House Cases, 16 Wall. 36,
63, 21 L. ed. 304, 404; Kidd v. Pearson,
128 T^. S. 1, 21, 32 L. ed. 346, 360, 2
Inters. Tom. Kep. 232, 9 Sup. Ct. Rep.
SLPREME GOUKT OF THE UNITKD STATES.
Oct. Teim,
6; Hammer v. Dagenhart, 247 U. S. 275,
276, 62 L. ed. 1107, 3 A.L.R. 649, 38
Sup. Ct. Rep. 529, Ann. Cas. 1918E,
724.
The framers of the Constitution un-
questionably had no other intent in
the formation of the instrument than to
incorporate therein the fundamental,
peimanent law for the guidance of gov-
ernment, rather than to make it an in-
strument usable for legislative purposes
in the sense of formation of municipal
law.
Slaughter-House Cases, 16 Wall. 63,
21L. ed. 404.
The original and supreme will organ-
izes the government and assigns to dif-
ferent departments their respective pow-
ers. It may either stop here, or estab-
lish certain limits not to be transcended
by those departments. The government
:j
of the United States is of the latter de-
scription. The powers of the legislature
are defined and limited, and that those
limits may not be mistaken or forgotten
the Constitution is written.
Marbury v. Madison, 1 Cranch, 137,
2 L. ed. 60.
The genius and character of the whole
government seems to be, that its action
is to be applied to all the external con-
cerns of the nation, and to those inter-
nal concerns which affect the states gen-
erally; but not to those which are com-
pletely within a particular state.
Gibbons v. Ogden, 9 Wheat 195, 6 L.
ed. 69.
The term "amendment'* implies such
an addition or change within the lines of
the original instrument as will effect an
improvement, or better carry out the
purpose for which it was framed.
livermore v. Waite, 102 Cal. 113, 25
L.R.A. 312, 36 Pac. 424.
The power to amend, too, must not be
confounded with the power to create.
The difference between creating and
amending a record is analogous to that
between the construction and repair of a
piece of personal property.
Gagnon v. United States, 193 U» S.
457, 48 L. ed. 747, 24 Sup. Ct. Rep. 510.
The fact that the phrase concerning
the internal pK>lice of the states was
omitted, and that the phrajse that no
state should be deprived of its equal suf-
frage in the Senate was included, is not
an argument to the effect that it was in-
tended thereby to be so read as to permit
an amendment to the Constitution tend-
ing or effectuating the destruction of the
internal police powers of complainant.
Madison, Notes, 2 Farrand, 629-631.
The police power is the power of state
government without which the excuse for
• 60
the existence of the states composing tba
Union would be done away with.
Texas v. White, 7 WaU. 700, 19 L. ed,
227.
The 9th and 10th Amendments, declar-
atory of the Constitution itself, fixed
the reserved rights of the states. The
words "reserved to the respective states
or the people," it is settled, refer to the
police power.
1 Curtis, History of U. S. Const pp.
160, 161.
"We know of no rule," said Chief Jus-
tice Marshall in Gibbons v. Ogden, 9
Wheat. 1, 6 L. ed. 23, in discussing ih»
powers g^*anted to the general govern*
ment under the Constitution, "for con-
struing the extent of such powers, other
than is given by the language of that in-
strument which confers them, taken in
connection with the purposes for whieb
they were conferred."
The word "amendment" implies a
change which is closely related to ik$
subject-matter of the instrum^it.
Passenger Cases, 7 How. 283, 453, 12
L. ed. 702; 773.
A construction which suggests a word
of larger meaning than the word used ia
the Constitution could not be justified or
defended upon any principle of judidtl
authority.
Passensrer Cases, 7 How. 283, 493, 12
L. ed. 702, 790.
When the constitutional meaning ii
clear, a practical construction, by legis-
lative action, thoui^h repeated aeverd
times and never before cballaiged, can-
not overthrow what is seen to be a osn-
stitutional requirement.
Fairbank v. United States, 181 U. S.
283, 311, 45 L. ed. 862, 874, 21 Sup. Ct
Rep. 648, 15 Am. Crim. Rep. 135.
The fact that previous amendments to
the Constitution have not been properly
made a part of such instrument does not
justify a present construction which n
contrary to the intent of the founders of
our Federal government, because neither
Congress nor the courts have-* the lawfd
power to so construe the fundamental a^
tide of government delegated by th«
power of the people themselves, wbeo
once convinced of the error.
Oakland Paving Co. v. Hilton, 69 OaL
502, 11 Pac. 3; Warfield v. Vandiver,
101 Md. 78, 60 AtL 538, 4 Ann. Cas. 692.
Such a present ^construction as to the
method prescribed by the Constitution for
a two-thirds vote of both Houses by
whioh an amendment to the Constitution
is deemed necessary, would not operate to
disturb prior amendments, where tb«
practice in the procedure has been e^
S5S V. 8.
1910.
RHODE ISLAND v. PALMER.
roneou^ly carried out, by reason of the
fact that the people themselves have
acquiesced in those particular instances.
Pease v. Peck, 18 How. 595, 597, 15
h. ed. 518, 519.
Those doctrines only will eventually
stand which bear the strictest examina-
tion and the test of experience.
Harden v. Northern P. R. Co. 154 U.
S. 288, 322, 38 L. ed. 992, 1000, 14 Sup.
Ct. Rep. 1030.
In the referendum states the people
have reserved the right to make them-
selves a part of the l^slatures.
Ohio ex rel. Davis v. Hildebrant, 241
U. S. 565, 60 L. ed. 1172, 36 Sup. Ct.
Rep. 708.
. The f ramers of the Constitution had
in mind that the word '^legislatures," as
used therein, might possibly comprehend
lawmaking bodies under changed condi-
tions.
South Carolina v. United States, 199
U. S. 437-448, 60 L. ed. 261-264, 26
Sup. Ct. Rep. 110, 4 Ann. Cas. 737.
In referendum states the question of
the ratification of the 18th Amendment
must be submitted to the people before
the l^slatures of these states can be
said to have passed on the question of
ratification.
State ex rel. Sdirader v. PoHey, 26 S.
D. 5, 127 N. W. 848; State ex rel. Davis
V. Hildebrant, 94 Ohio St. 154, 114 N. £.
55, 241 U. S. 566, 60 L ed. 1172, 36 Sup.
Ct. Rep. 708; State ex rel. Mullen v.
HoweU, 107 Wash. 167, 181 Pac. 920;
Hawke v. Smith, — Ohio St. — , 126 N.
£. 400; CaoBon v. SuUivan (Cir. Ct
C<^ Co. Mo. Slate, J.).
All prior amendments are but matters
germane to the original Constitution,
having to do with government, and not
with municipal law, and were corrective
of errors concluded to be existent in the
original document, or improvements on
the original Constitution, and are entire-
ly dissimilar in nature from the present
so-ealled 18tb Article.
Barron v. Baltimore, 7 Pet. 243, 8 L.
ed. 672; Spies v. Dlinois, 123 U. S. 166,
31 L. ed. 86, 8 Sup. Ct. Rep. 21, 22;
Brown v. ^ew Jersev, 175 U. S. 174, 44
L. ed. 119, 20 Sup. Ct. Rep. 77; Slaugh-
tcr-House Cases, 16 Wall. 36, 21 L. ed.
394; Bartenmeyer v. Iowa, 18 Wall. 129,
138, 21 L. ed. 929, 932; United States
v. Cruikshank, 92 U. S. 542, 23 L. ed.
588; Minor v. Happersett, 21 Wall. 178,
22 L. ed. 631.
Concurrent power under the 18th
Amendment is a power in the Federal
government to enforce the Amendment
only so far and to the extent that the
•4 li. M«
same relates to the external concerns of
the United States, and within the pe-
culiar domfdn of the Federal govern-
ment, to regulate conuneree among the
states as heretofore, as distinguished
from the right of the state of New Jer-
sey to enforce the Amendment intrastate
by virtue of the power conferred on the
state exclusively under the Amendment.
South Carolina v. United States, 190
tJ. S. 437, 50 L. ed. 261, 26 Sup. Ct.
Rep. 110, 4 Ann. Cas. 737; Texas v.
White, 7 Wall. 700, 725, 19 L. ed. 227,
237; Chicago & N. W. R. Co. v. Fuller,
17 Wall. 560, 21 L. ed. 710; M'CuUoch
V. Maryland, 4 Wheat. 316, 430, 4 L. ed.
679, 607; Clark Distilling Co. v. West-
em Maryland R. Co. 242 U. S. 311, 61
L. ed. 326, L.R.A.1917B, 1218, 37 Sup.
Ct- Rep. 180, Ann. Cas. 1917B, 845; li-
cense Cases, 5 How. 504, 592, 12 L. ed.
256, 296; 1 Kent, Com. p. 388, Lecture
18; Sturges v. Crowninshield, 4 Wheat.
193, 4 L. ed. 648 ; Atlantic Coast Line R.
Co. V. Goldsboro, 232 U. S. 648, 658, 58
L. ed. 721, 726, 34 Sup. Ct. Rep. 364;
Dwiver & R. G. R. Co. v. Denver, 250
U. S. 241, 244, 63 L. ed. 958, 961, 39
Sup. Ct. Rep. 460; Passenger Cases, 7
How. 283, 383, 399, 12 L. ed. 702, 744,
750; Re Rahrer, 140 U. S. 645, 554, 35
L. ed. 672, 674, 11 Sup. Ct. Rep. 865;
Civil Rights Cases, 109 U. S. 3, 13. 27
L. ed. 836, 840, 3 Sup. Ct. Rep. 18; Bar-
bier v. Connolly, 113 U. S. 27, 31. 28
L. ed. 923, 924^ 5 Sup. Ct. Rep. 357;
Slaughter-House Cases, 16 Wall. 36, 21
L. ed. 394; Prigg v, Pennsylvania, 16
Pet. 539, 10 L. ed. 1060.
In framing its enforcement legislation
Congress has not that degree of liberty
of action witli which its war powers may
be exercised, nor that degree of freedom
from restraint with which the several
states may exercise their police power.
Purity Extract & Tonic Co. v. Ljmch,
226 U. S. 192, 57 L. ed. 184, 33 Sup. Ct.
Rep. 44.
The power of Congress in this instance
is to enforce a prohibition expresdy lim-
ited in its scope, and to permit it, under
an authorization to enforce, to enlarge
the scope of the prohibition by suppress-
ing and regulating things not compre-
hended in the Amendment, — ^is, in effect,
to thwart the will of the people as ex-
pressed in their Constitution, and fur-
ther to interf^e with rights to an extent
beyond that necessary to remedy the mis-
chief aimed at in amending the Consti-
tution.
Slaughter-House Cases, 16 W^. 36,
21 L. ed. 394; Civil Rights Cases, 109
U. S. 3, 27 L. ed. 836, 3 Sup. Ct. Rep.
61 961
SUPREME COURT OF THE UNITED STATES.
Oct. Ton,
18; Employers' Liability Cases (How-
ard V. Illinois C. R. Co.) 207 U. S. 463,
52 L. ed. 297, 28 Sup. Ct. Rep. 141;
Manitowoc Products Co. v. Sawyer (Jan.
17, 1920; U. S. Dist Ct. E. D. Wis.).
Mr. Alexander Lincoln filed a brief as
arnicas cunad:
Where Congress acts in the exercise of
its exclusive power, state legislation, to
the extent of the conflict, must be re-
garded as annulled, because the Constitu-
tion and laws of the United States made
in pursuance thereof are the supreme
law of the land.
Gibbons v. Ogden, 9 Wheat. 203, 205,
209, 210, 6 L. ed. 71-73; Sinnot v. Dav-
^port, 22 How. 227, 242, 244, 16 L. ed.
243, 247, 248; Escanaba & L. M. Transp.
Co. V. Chicago, 107 U. S. 678, 683, 27
L. ed. 442, 445, 2 Sup. Ct. Rep. 185;
Smith V. Alabama, 124 U. S. 465, 473,
31 L. ed. 508, 510, 1 Inters. Com. Rep.
804, 8 Sup. Ct. Rep. 564; Willson v.
Black Bird Creek Marsh Co. 2 Pet. 245,
7 L. ed. 412; New York v. Mihi, 11 Pet.
102, 9 L. ed. 648; License Cases, 5 How.
504, 12 L. ed. 256; Passenger Cases,, 7
How. 283, 12 L. ed. 702; Conway v. Tay-
lor, 1 Black. 603, 17 L ed. 191; OUman
V. Philaddphia, 3 WaU. 713, 18 L. ed.
96; Sherlock v. Ailing, 93 U. 8. 99, 23
L. ed. 819 ; Peik y. Chicago A N. W. R.
Co. 94 U. S. 164^ 24 L. ed. 97; Mobile*
County ▼. Kimball, 102 U. S. 691, 26 L.
ed. 238; Gloucester Ferry Co. t. Penn
sylvania, 114 U. S. 196, 29 L. ed. 158, 1
Inters. Com. Rep. 382, 5 Sup. Ct Rep.
826; Brown v. Houston, 114 U. S. 622,
29 L. ed. 257, 5 Sup. Ct. Rep. 1091;
Leisy v. Hardin, 135 U. S. 100, 34 L. ed.
128, 3 Inters. Com. Rep. 36, 10 Sup. Ct.
Rep. 681; Austin v. Tennessee, 179 U.
S. 343, 362, 370, 45 L. ed. 224, 233, 236,
21 Sup. Ct. Rep. 132; Southern P. Co.
V. Jensen, 2J44 U. S. 205, 243-248, 61 L.
ed. 1086, 1110-1112, L.R.A.1918C, 451,
37 Sup. Ct. Rep. 524, Ann. Cas. 1917E,
900, 14 N. C. C. A. 596.
A concurrent power excludes the idea
of a dependent power.
Passenger Cas^, 7 How. 283, 399, 12
L. ed. 702, 750.
The words "ooneorrent power,^ as ap-
plied to the action of two distinct sov-
ereignties upon the same subject-matter,
if they have any meaning, must in every
case describe a power in the exercise of
which the sovereigntiea must concur in
order that the exercise shall be valid.
Ra Mattson, 69 Fed. 542; Ex parte
Defljeiro, 152 Fed. 1007; Nielsen v. Or-
egon, 212 U. S. 315, 53 L. ed. 528, 29
Sup. Ct Rep. 383.
Assistant Attorney General Friersos
argued the cause,, and, with Solicitor
General King, filed a brief for defend-
ant.
For their contentions, see supra, p. 958,
infra, pp. 966, 969, 974.
Mr. Patrick Henry Kellay argued the
cause and filed a brief for appdlant in
No. 696:
Neither the scope nor the object of the
18th Amendment, nor the nature and ex-
tent of the respective powers of Cod-
gress and of the several states thereun-
der, can be properly understood or de-
termined without a definite knowled|i^ of
the existing law which the Amendment
was intended to supersede and supplant
Ex parte Wilson, 114 U. S. 417, 29 L
ed. 89, 5 Sup. Ct. Rep. 935, 4 Am. Cnn.
Rep. 283; Turner v. Maryland, 107 U.
S. 38, 52, 27 L. ed. 370, 376, 2 Sup. CL
Rep. 44; Rhode Island v. Massachusetts,
12 Pet. 723, 9 L. ed. 1260.
Prior to the 18th Amendment the pow-
er exercised by the several states over in-
toxicating liquor within their own boand-
aries was exclusive and supreme in its
nature and extent.
Mugler V. Kansas, 123 U. S. 623, 31
L. ed. 705, 8 Sup. Ct Rep. 273; Purity
Extract & Tonic Co. v. Lynch, 226 U. S.
192, 57 L. ed. 184, 33 Sup. Ct. Rep. 44;
Duncan Townsite Co. v. Lane, 245 U. 8.
308, 62 L. ed. 309, 38 Sup. Ct. Rep. 99;
Seaboard Air Line R. Co. v. North Car-
olina, 245 U. S. 298, 62 L. ed. 299, 38
Sup. Ct Rep. 96.
And prior to the 18th Amendment the
power of Congress over intoxicating liq-
uor, within the District of Columbia and
within the territories and other places
subject to the Federal government, was
exclusive and supreme in its nature and
extent.
American Ins. Co. v. 356 Bales of Cot-
ton, 1 Pet. 511, 7 L. ed. 242; Lougb-
boroug^ V. Blake, 5 Wheat. 317, 5 L. ed.
98; Ft Leavenworth R. Co. v. Lowe, 114
U. S. 525, 29 L. ed. 264, 5 Sop. Ct Rep.
995; Downes v. Bidwell, 182 U. S. 244,
45 L. ed. 1088, 21 Sup. Ct Rep. 770;
Binns v. United SUtes, 194 TJ. a 486,
48 L. ed. 1087, 24 Sup. Ct Bep. 817;
Nelson v. United States, 30 Fed. 112;
Endleman v. United States, 30 C. C A.
186, 57 U. 8. App. 1, 86 Fed. 459; Pw-
rin V. United States, 232 tJ. & 478, 58
L. ed. 691, 34 Sup. Ct Rep. 387; John-
son V. Oearlds, 234 U. 8. 422, 58 L! ed.
1383, 34 Sup. Ct. Rep. 794.
And prior to the 18th Amendment the
power of Congress over the tnmsporti'
tion of intoxicating liquor in inteistate
9ftS U. 8.
1919.
RHODE ISLAND v. PALMER.
and foreign oomm^ce was exclusive aud
supreme in its nature and extent.
Gibbons v. Ogden, 9 Wheat. 207, 6 L.
ed. 73; Brown v. Maryland, 12 Wheat.
419, 6 L. ed. 678 ; Clark Distilling Co. v.
Western Maryland B. Co. 242 U. S. 311,
6 L. ed. 326, L.R.A.1917B, 1218, 37 Sup.
Ct. Rep. 180, Ann. Cas. 1917B, 845.
The prohibitions of § *1 of the 18th
Amendment, intended to be absolute in
diameter, universal in extent, and with-
out any exception as to their operation,
were necessarily intended, if -they ever
take effect as a law, to destroy and an-
nihilate both the exelnsive power of
Congress and the power of the several
states above enumerated, by destro3ring
the status of such intoxicating liquor as
lawful property within their respective
jurisdictions.
Hamilton v. Kentucky Distilleries &
Warehouse Co. 251 U. S. 146, 64 L. ed.
194, 40 Sup. Ct. Rep. 106; CivU Rights
Cases, 109 JJ. S. 3, 27 L. ed. 835, 3 Sup.
Ct. Rep. 18; Clyatt v. United States, 197
U. S. 207, 49 L. ed. 726, 25 Sup. CL Rep.
429; United States y. Morris, 125 Fed.
324; United States ▼. McQellan, 127
Fed. 971; Fairbanks v. United States,
181 U. S. 283, 45 L. ed. 862, 21 gup. Ct.
Rep. 648, 15 Am. Crim. Rep. 135.
The prohibitions of § 1 are intended
to apply everywhere throughout and
•within the United States; they neces-
sarily include the District of Columbia
and all the territories of the United
States over which Congress has exclusive
territorial jurisdiction. The exclusive
power of Congress over intoxicating liq-
uor within the District of Columbia un-
der article 1^ § 8, cL 17, and withm the
territories by article 4, § 3, d. 2, was
therefore intended to be destroyed by th^
prohibitions enumerated in § 1; the ex-
ercise of such power thereafter beuig in-
compatible with and repugnant to the
18th Amendment.
Hamilton v. Kentucky Distilleries &
Warehouse Co. supra; Downes v. Bid-
well, 182 U. S. 244. 45 L. ed. 1088, 21
Sup. Ct. Rep. 770; Rassmnssen v. United
States, 197 U. S. 516, 49 L. ed. 862, 25
Sup. Ct. Rep. 514; Civil Rights Cases,
109 U. S. 3, 27 L. ed. 836, 3 Sup. Ct.
Rep. 18.
It necessarily follows that, when the
18th Amendment was first proposed as
such by Congress to the states for rati-
fieation, at that time Congress had no
legislative power whatever over the sub-
ject-matter and its operation within tho
several states.
Hammer v. Dagenhart, 247 U. S. 251,
62 L. ed. 1101, 3 A.L.R. 649, 38 Sup. a.
64 li. ed.
Rep. 529, Ann. Cas. 1918E, 724; Keller
V. United States, 213 U. S. 138, 53 L. ed.
737, 29 Sup. Ct. Rep. 470, 16 Ann. Cas.
1066; United States v. E. C. Knight Co.
156 U. S. 1, 39 L. ed. 325, 15 Sup. Ct.
Rep. 249; Kidd v. Pearson, 128 U. S. 1,
32 L. ed. 346, 2 Inters. Com. Rep. 232, 9
Sup. Ct. Rep. 6; Hopkins v. United
States, 171 U. S. 578, 43 L. ed. 290, 19
Sup. Ct. Rep. 40; United States v. De
Witt, 9 Wall 41, 19 L. ed. 593; Re
Greene, 52 Fed. 104.
The mere ratification of the 18th
Amendment alone did not operate to de-
stroy the exclusive power of the several
states, nor the laws enacted thereunder,
because^ by the express grant in § 2 of
the Amendment itself, the several states
had explicitly reserved the complete and
sovereign power to reject any and all
proposed laws intended by § 2 to enforce
the policy of § 1, which did not meet
with their approval.
Cooley, Const. Lim. 7th ed. p. 121 ; Davis
V. Burke. 179 U. S. 399, 403, 404, 45 L.
ed. 249, 252, 21 Sup. Ct. Rep. 210; State
ex rel. Moncure v. Dubuclet, 28 La. Ann.
704; Groves v. Slaughter, 16 Pet. 497,
10 L. ed. 818; Rowan v. Runnels, 5 How.
134, 12 L. ed. S5; Owings v. Speed, 5
Wheat. 420^ 5 L. ed. 124; United States
V. Hudson, 7 Cranch, 32, 3 L. ed. 259;
United States v. Reese, 92 U. S. ^16, 23
L. ed. 564.; American Ins. Co. v. 356
Bales of Cotton^ 1 Pet. 542, 7 L. ed. 255;
Chicago, R. I. & P. R. Co. v. McGlinn,
114 if. 8. 542, 29 L. ed. 270, 5 Sup. Ct.
Rep. 1005; Griffin Case, Chase, 364, Fed.
Cas. No. 5815; Mitchel v. United States,
9 Pet 711, 9 L. ed. 283; Strotliinr v. Lu-
cas, 12 Pet, 418, 9 L. ed. 1140 ; Sharp v.
National Biscuit Co. 179 Mo. 553, 78 S.
W. 787; Ex parte Wall, 48 Cal. 279, 17
Am. Rep. 425; Ex parte State, 52 Ala.
231, 23 Am. Rep. 567; St. Joseph Bd.
of Public Schools v. Patten, 62 Mo. 444;
Missouri, K. & T. R. Co. v. Texas & St.
L. R. Co. 10 Fed. 497; Illinois C. R. Co.
V. Ihlenberg, 34 L.R.A. 393, 21 C. C. A.
546, 43 U. S. App. 726, 75 Fed. 873;
People ex rel. Collins v. McLaughlin,
128 App. Div. 699, 113 N. Y. Supp. 188;
Henry v. Cherry & Webb, 30 R. I. 37,
24 L.R.A.(N.S.) 991, 136 Am. St. Rep.
928, 73 Atl. 97, 18 Ann. Cas. 1006; Re
Cole, 12 Cal. App. 290, 107 Pac 581;
Ddierty v. Ransom County, 5 N. D. 1,
63 N. W. 148; Coatsville Gas Co. v.
Chester County, 97 Pa. 476; Wattson v.
Chester & D. River R. Co. 83 Pa. 254;
Chahoon y. Com. 20 Gratt. 733; Dod-
dridge Co. v. Stout, 9 W. Va. 703;
Parker v. Hubbard, 64 Ala. 203; Knox
County V. Christianer, 68 111. 453; Wa-
SUPREME COURT OF THE UNITED STATES.
Oct. TtMM,
terworks Co. of Indianapolis v, Burk-
hart, 41 Ind. 364; State v. Berry-, 12
Iowa, 58; Com. v. Grinstead, 108 Ky.
59, 55 S. W. 720, 57 S. W. 471 ; Pearce
V. Mason County, 99 Ky. 357, 35 S. W.
1122; Pecot v. Police Jury, 41 La. Ann.
706, 6 So. 677; Lunt v. Hunter, 16 Me.
9; M'Neil v. Bright, 4 Mass. 282; State
ex rel. Ghreaves v. Henry, 87 Miss. 125,
5 L.R.A.(N.S.) 340, 40 So. 152; State v.
Cameron, 89 Ohio St. 214, 106 N. E. 28;
State V. McCoomer, 79 S. C. 63, 60 S. E.
237; Arey v. Lindsev, 103 Va. 250, 48
S. E. 889.
The plain, unequivocal, and obvious
meaning of the 18th Amendment, con-
strued as a whole, shows that the several
states reserved the power by § 2 of the
Amendment to ratify or reject any en-
forcement law to be enacted under the
authority of § 2, and that, until such
law had been so enacted with their con-
sent, the powers of the several states and
all existing law? were to remain in force.
The congressional construction, being de-
structive of the object and purpose in-
tended to be accomplished by the 18th
Amendment, must therefore be rejected.
Le^l Tender Cases, 12 Wall. 531, 20
L. ed. 287; Brown v. Maryland, 12
Wheat. 419, 6 L. ed. 678; Rhode Island
V. Mass^httsetts, 12 Pet. 723, 9 L. ed.
1260; Gibbons v. Ogden, 9 Wheat. 1, 6
L. ed. 23 ; Virginia v. Tennessee, 148 U.
S. 519, 37 L. ed. 543, 13 Sup. Ct. Rep.
728; United States v. Wong Kim Ark,
169 U. S. 699, 42 L. ed. 908, 18 Sup. Ct.
Rep. 456; Jacobson v. Massachusetts,
197 U. S. 22, 49 L. ed. 648, 25 Sup. Ct.
Rep. 358, 3 Ann. Cas. 765.
Congress can exercise no powers which
are not granted by the 18th Amendment;
the provisions of the National Prohibi-
tion Act being beyond the power of
Congress to enact, and not being author-
ized by the 18tji Amendment, that act is
illegal and unconstitutional.
United States v. Reese, 92 U. S. 214,
23 L. ed. 563; Civil Rights Cases, 109
U. S. 3, 27 L. ed. 836, 3 Sup. Ct. Rep.
18; Baldwin v. Franks, 120 U. S. 678,
30 L. ed. 766, 7 Sup. Ct. Rep. 656, 763;
James v. Bowman, 190 U. S. 127, 47 L.
ed. 979, 23 Sup. Ct. Rep. 678.
The exclusive power which Congress
haa usurped results only in purely stat-
utory prohibition under the sole direction
of Congress; whereas the common, obvi-
ous, and plain, unambiguous language of
the Am^dment itself provides a scheme
for constitutional prohibition, thereby
doing away with all statutory regulation
by either Congress or the several states.
The nature of the powers granted or re-
964
served by any provision of the Federal
Constitution cannot be something dif-
ferent from the nature of the subject to
which the powers were intended to ex-
tend and apply.
Cooley V. Port Wardens, 12 How. 302,
13 L. ed. 997; Knowlton v. Moore, 178
U. S. 96, 44 L. ed. 991, 20 Sup. Ct. Rep.
747.
Legislation authorized by § 2 of the
18th Amendment, if enacted by the con-
current power of Congress and the sev-
eral states, will thereby operate as eon-
stitutional prohibition by the surrender
of the exclusive power of the several
states over the subject-matter. The mode
of exercising the power granted by § 2,
therefore, must conform iff the mode by
which the power of the several states can
be surrendered and destroyed; and tiie
only mode in which that ean be done
under the Constitution is by an act of
Congress enacted and ratified by the sev-
eral states in the manner provided for
changing the Constitution.
HoUingsworth v. Virginia, 3 Dall. 378,
I L. ed. 644; Dodge v. Wooteey, 18 How.
331, 15 L. ed. ^1; CivU Rights Cases,
109 U. S. 3, 27 L. ed. 836, 3 Sup. Ct.
Rep. 18.
In every case, without exception,
where the Federal Constitution grants
concurrent power to enact a law for ^e
nation to separate agents or faneti(Mi-
aiies, the power so granted is exereised
by the joint action of both, and not by
^e separate aet of each.
Re Sutherland, 53 Fed. 551; 14 Dia-
mond Rings v. United States, 183 U. S.*
183, 46 L. ed. 143, 22 Sup. Ct. Rep. 59 ;
Resolutions of Congress, 6 Ops. Atty.
Gen. 680.
The powers of the several states are
as necessary' to be preserved as are the
powers of the Federal government itsdf .
Collector v. Day (Buffington v. Day)
II Wall. 124, 20 L. ed. 125; Texas v.
White, 7 Wall. 724, 19 L. ed. 237.
The 18th Amendment provides tiiat
the several states shall concur with Con-
gress to make the law intended to en-
force the prohibitions of § 1; not a law
for the people within the territories nor '
within the several states; but a law to
operate on all the people in the United
States, without regard to state bound-
ai^es. This means and ean only mean
one law for all; neitiier the Congress
nor tiie several states, therefore, ean en-
act separate legislation at all to enforce
the 18th Amendment, as the grant of
power carried concurrent power and ja-
risdiction onlv.
Wedding v. Meyler, 192 U. S. 673,
958 U. S.
loao.
RHODE ISLAND v. PALMER.
584, 585, 48 li. ed. 570, 575, 66 L.R^.
833, 24 Sup. Ct. Rep. 322; Nielsen v.
Oregon, 212 U. S. 315, 53 L. ed. 528,
29 Sup. Ct Rep. 383; Atty. Gen. v.
Delaware & B. B. R. Co. 27 N. J. Eq.
()47; Delaware Bridge Co. v. Trenton
City Bridge Co. 13 N. J. Eq. 47; fie
Mattson, 60 Fed. 535; Ex parte Dea-
jeiro, 152 Fed. 1004; State v. Faudre,
54 W. Va. 131, 63 L.R.A. 877, 102 Am.
St. Bep. 927, 46 S. £. 269, 1 Ann. Cas.
104; SUte v. Moyers, 155 Iowa, 684, 41
L.R.A.(N.S.) 366, 136 N. W. 896; Eu-
banks v. State, 5 Okla. Crim. Rep. 333,
114 Pac. 748; Elder v. State, 5 Okla.
Crim. Rep. 693, 114 Pac. 752; Bonldin
V. Loekhart, 3 Baxt 278; State Board
of Finance, Prosecutors, v. Street &
Water Comis. 55 N. J. L. 233, 26 Atl
92; Dillon v. Scofteld, 11 Neb. 419, 9 N.
W. 554; L'Engle v. Scottish Union &
Nat. F. Ins. Co. 48 Fla. 90, 67 L.R.A.
581, 37 So. 462, 5 Ann. Cas. 748; Wash-
bum-Halligan Coffee Co. v. Merchants'
Brick Mut. F. Ins. Co. 110 Iowa, 423,
80 Am. St. Rep. 311, 81 N. W. 707;
• Corkery v. Security F. Ins. Co. 99 Iowa,
390, 68 N. W. 792; Connecticut F. Ins.
Co. V. Union Mercantile Co. 161 Ky.
726, 171 S. W. 407; State v. Johnson,
170 N. C. 689, 86 S. E. 788; East Texas
F. Ins. Co. V. Blum, 76 Tex. 653, 13 S.
W. 572; Rogers v. State, 72 Ark. 565,
82 S. W. 169; People ex rel. Oliver v.
* Knopf, 198 lU. 340, 64 N. E. 843, 1127;
State ex rel. Caillouet v. Laiche, 105 La.
84, 29 So. 700; People ex rel. Atty. Gen.
V. Burch, 84 Mich. 408, 47 N. W. 765;
Moore v. Neece, 80 Neb. 600, 114 N. W.
767; Opinion of Justices, 35 N. H. 579.
The grant, "Congress and the several
states shall have concurrent power to
enforce this article by appropriate leg-
islation," cannot be construed as a grant
of power to the several states to enact
laws for. the government of the several
states. The power of the several states
to enact laws for the government of the
people within their own boundaries does
not arise and cannot depend upon the
authority of the Federal Constitution.
The congressional theory of the 18th
Amendment is therefore destructive of
the Federal Constitution and the fundar
mental principles upon which it ope-
rates.
Barron v. Baltimore, 7 Pet. 247, 8 L.
ed. 674; Prigg v. Pennsylvania, 16 Pet.
539^ 10 L. ed. 1060; Scott v. Sandford,
19 How. 404, 15 L. ed« 700; Lane Coun-
ty v. Oregon, 7 Wall. 71, 19 L. ed» 101 ;
Chishoha v. Georgia, 2 Dall. 470, 1 L.
ed. 462; M'Culloch v. Maryland, 4
Wheat. 403, 4 L. ed. 600; Re Debs, 158
64 li. ed.
U. S. 578, 39 L. ed. 1100, 15 Sup. Ct.
Rep. 900; Gibbons v. Ogden, 9 Wheat.
1, 6 L. ed. 23; Ex parte Siebold, 100 U.
S. 371, 25 L. ed. 717; Grafton v. United
States, 206 U. S. 352, 51 L. ed. 1091, 27
Sup. Ct. Rep. 749, 11 Ann. Cas. 640;
Ableman v. Booth, 21 How. 517, 16 L.
ed. 173.
Assuming that the 18th Amendxiient is
construed as a grant of exclusive power
to Congress to enforce the 18th Amend-
ment, and that the power of the several
states was surrendered by the ratifica-
tion of the 18th An^endment, by reason
of the restrictions and prohibitions of §
1, then in such case the enactment of the
National Prohibition, Act by Congi'ess,
combined with the prohibitions of § 1,
operating to restrict the power of the
several states, thereby destroyed all
power of concurrent legislation by the
several states on the subject-matter of
the 18th Amendment.
Houston V. Moore, 5 Wheat. 1, 5 L.
ed. 19 ; Gibbons v. Ogden, 9 Wheat. 1, 6
L. ed. 23; Brown v. Maryland, 12
Wheat. 419, 6 L. ed. 678; New York v.
Mihi, 11 Pet. 102, 9 L. ed. 648; License
Cases, 5 How. 504, 12 L. ed. 256; Pas-
senger Cases, 7 How. 283, 12 L. ed. 702;
Cooley V. Port Wardens, 12 How. 300,
13 L. ed. 997; Collectoi: v. Day (Bufling-
ton V. Day) 11 WaU. 124^ 20 L. e^, 125;
Henderson v. New York (Henderson v.
Wickham) 92 U. S. 259, 23 L. ed. 543;
Hannibal & St. J. R^ Co. v. Husen, 95 U.
S. 471, 24 L. ed. 530; Gulf, C. & S. F.
R. Co. V. Hefley, 158 U S. 104, 39 L. ed.
912, 15 Snp. Ct. Rep. 802; Lake Shore
& M. S. R. Co. V. Ohio, 173 U. S. 297,
43 L. ed. 706, 19 Snp. Ct. Bep. 46|5.
.Assuming, with Congress, that the
grant of eoneorrent power to Congress
and the several states is construed as
authorizing the several states, independ-
ently of Congress, to ^nact legislation
for people within their own boundaries
to suit their several discretions, so as to
be a concurrent jurisdiction to legis-
late on the subject, then,, in such case,
the authority and power of Congresa
and of the several states to legislate and
enact laws on the subject, both, arising
from the same source (the Federal Con-
stitution), a prosecution against a cit-
izen under the state law, in the state
courts therefor, would be a bar to a
prosecution under t^e act of Congress in
the Federal courts for the same act, and
vice versa.
Grafton v. United States, 206 U. S.
333, 51 L. ed. 1084, 27 Sup. Ct. Rep.
749, 11 Ann. Cas. 640.
The congressional theory not onlv is
9«5
SUPREME COURT OF THE UNITED STATES.
Oct.
destructive of the Federal Constitution
in, assuming that the grant in § 2 of the
Amendment is a grant of power to the
several states to exercise their inde-
pendent powers of legislation concur-
rently with Congress to enforce the 18th
Amendment^ but also is destructive of
the exclusive jurisdiction which Con-
gress itself claims; because, when car-
ried to its logical conclusion, it comes
into conflict with the 5th Amendment,
preventing two prosecutions for the
same act, resulting in double jeopardy.
Houston V. Moore, 6 Wheat. 1, 5 L.
ed. 19; Passenger Cases, 7 How. 283, 12
L. ed. 702; Grafton v. United States,
206 U. S. 333, 51 L. ed. 1084, 27 Sup.
Ct. Rep. 749, 11 Ann. Cas. 640.
The fundamental principle of the
Constitution establishei in (Hbbons v.
Ogden, 9 Wheat 1, 6 L. ed. 23, was
that, where exclusive pK>wer is g^^nted
to Congress over any subject, and Con-
gress has legislated and covered the
whole field, the powers of the several
states cannot be exercised on the same
subject for the same purpose*. That
principle has never been departed from
in the judicial hbtory of the Supreme
Court. '
Brown v. Maryland, 12 Wheat. 419, 6
L. ed. 678; Passenger Cases, 7 How.
283, la L. ed. 702; New Yoric v. MUn,
11 Pet. 102, 9 L. ed. 648; License Case^
5 How. 504, 12 L. ed. 256; Cooley v.
Port Wardens, 12 How. 299, 13 L. ed.
996; Pennsylvania v. Wheeling & B.
Bridge €o. 13 How. 618, 14 L. ed. 249 ;
Smith V. Maryland, 18 How. 71, 15 L.
ed. 269; Sinnot v. Davenport, 22 How.
227, 16 L. ed. 243; Oilman v. Philadel-
phia, 3 WaU. 713, 18 L. ed. 96.
In construing constitutional * provi-
sions no words can be rejected as super-
fluous, and each word must be given its
plain, obvious meaning.
Knowlton v. Moore, 178 U. S. 41, 87,
44 L. ed. 969, 987, 20 Sup. Ct. Rep.
747; Hurtado v. California, 110 U. S.
516^ '5^*^ 28 L. ed. 232, 238, 4 Sup. Ct.
Rep. Ill, 292; Jacobson v. Massachu-
setts, 197 U. S. 22, 49 L. ed. 648, 25
Sup. Ct. Rep. 358, 3 Ann. Cas. 765;
Holmes v. Jennison, 14 Pet. 571, 10 L.
ed. 594; Pollock v. Farmers' Loan & T.
Co, 158 U. S. 618, 39 L. ed. 1119, 15
Sup. Ct. Rep. 912; Martin v. Hunter, 1
Wheat 326, 4 L. ed. 102; Stniges t.
Crowninshield, 4 Wheat 202, 4 L. ed.
650; Cohen v. Virginia, 6 Wheat 364, 6
L. ed. 286; Rhode Island v. Massadiu-
setts, 12 Pet. 722, 9 L. ed. 1250.
Assistant Attorney (General FrienKm
argued the cause, and, with Solicitor
General King, filed a brief for appel-
lees:
Section 1 of the 18th Ajnendment,
standing alone, makes the liquor traffic
unlawful throughout the United States.
Civil Rights Cases, 109 U. S. 3, 20,
27 L. ed. 835, 842, 3 Sup. Ct. Rep. 18 ;
Clyatt V. United States, 197 U. S. 207,
216, 49 L. ed. 726, 729, 25 Sup. Ct Rep.
429.
Concurrent power, as applied to Con-
gress and the several states, means sim-
ply the independent power in each to
legislate upon the same subject
32 Federalist; Fox v. Ohio, 5 How.
410, 418, 12 L. ed. 213, 21C; Houston v.
Moore, 5 Wheat. 1, 47, 5 L. ed. 19, 30 :
Prigg V. Pennsylvania, 16 Pet. 539, lO
L. ed. 1060 ; Gibbons v. Ogden, 9 Wheat.
1, 209, 6 L. ed. 23, 73; Covingtoo ft C.
Bridge Co. v. Kentucky, 154 U. S. 204,
38 L. ed. 962, 4 Inters. Com. Hep. 648,
14 Sup. Ct Rep. 1087; Panenger Cams,
7 How. 283, 396, 12 L. ed. 702, 74B.
Messrs. Wayne B. Wheeler, Qeorge S.
Hobart, G. Rowland Monroe, R. C. Min-
ton, and J. A. White filed a brief as.
amici curisa:
Two thirds of both Houses means two
thirds of a quorum of each.
Ohio ex rel. Erkenbrecher v. Cox, 257
Fed. 346; Missouri P. R. Co. v. Kansas,
248 U. S. 276, 63 L. ed. 239, 2 A.L.R.
1589, 39 Sup. Ct Rep. 93.
The court has neither the duty nor the
power to pass 4ipon the motives of legis-
lators; it must take the law as it is writ-
ten.
Hamilton v. Kentucky Distilleries St
Warehouse Co. 251 U. S. 146, 63 L. ed.
194, 40 Sup. Ct Rep. 106.
A state has no power to make the rat-
ification of a proposed amendment to
the Federal Constitution dependent up-
on a referendum vote.
Re Opinion of Justices, 118 Me. 544,
5 A.L.R. 1412, 107 AU. 673.
The word ^legislature** does not mean
legislative power.
McPherson v. Blacker, 146 U. S. 1,
36 L. ed. 869, 13 Sup. Ct Rep. 3.
The legislative power which the gen-
eral grant in our Constitution bestows
upon the general assembly has been held
to be the power to make, alter, and re-
peal laws.
State ex lel. Jameson v. Denny, 118
Ind. 387, 4 L.R.A. 79, 21 N. E. 252;
People ex rel. Hughes v. May, 3 Midi.
598; O^eil v. American Ins. Co. 166
Pa. 72, 26 L.R.A. 71^ 46 Am. 8t Rep.
650, 30 Atl. 943; Cooley, Const lim. 7th
ed. p. 131; Chicago v. Reeves, 220 HL
SaS IT. 8.
1919.
EHODE ISLAND v. PALMER.
288, 77 N. E. 237; State ex rel. Poetd
V. Marcus, 160 Wis. 354, 152 N. W. 419;
State y. Cox, 8 Ark. ^3; Jameson,
Const. Conventions, p. 586.
The l^islature, in proposing amend-
ments to the Constitution, is not exer-
cising legislative power.
Oakland Paving Co. v. Hilton, 69 Cal.
514, 11 Pac. 19; Ohio ex rel. Davis v.
HUdebrant, 241 U. S. 565, 60 L. ed.
1172, 36 Sup. Ct. Rep. 708; MePherson
V. Blacker, 146 U. S. 1, 36 L. ed. 869,
13 Sup. Ct. Rep. 3; 4 Elliot, Debates,
pp. 177, 404; Mathew, Legislative & Ju-
dicial History of 15th 'Amend, p. 68;
Bjktch V. Stoneman, 66 Cal. 634, 6 Pac.
734; Chicago v. Reeves, 220 III 283, 77
N. E. 237; Weston v. Ryan, 70 Neb. 218,
97 N. W. 347, 6 Ann. Cas. 922; Hol-
lingsworth v. Virginia, 3 DalL 378, 1 L.
edL 664; Com. ex r^. Atty. Qen. v.
Oriest, 196 Pa. 396, 50 L.R^. 568, 46
Atl. 505; Re Senate File, 25 Neb. 864,
41 N. W. 981.
Congress con&tmed the tenn 'legisla-
ture" appearing in art 1, § 4, t 1» &s
not sufficiently comprehensive to include
a referendum unless Congress should
pass some additional legislation.
Ohio ex rel. Davis v. Hildebrant, 241
U. S. 565, 60 L. ed. 1172, 36 Sup. Ct
Rep. 708.
The fact that Congress has given a
particular construction to the constitu-
tional provision is of very great weight
mtii the Supreme Court when it is called
upon to examine the correctness of this
interpretation.
Willoughby, Const, p. 20, § 20.
Constitutional provisions must be in-
terpreted with reference to the times
and circumstances under which the Con-
stitution was formed, — the general spirit
of the times and the prevaiUng senti-
ments amodig the people.
People V. Harding, 53 Mich. 48, 51
Am. Rep. 95, 18 N. W. 555; Maxwell v,
Dow, 176 U. S. 581, 602, 44 L. ed. 597,
605, 20 Sup. Ct. Rep. 448, 494.
The history of the Constitutional Con-
vention . shows that a referendum was
never epmtemplated.
Madison^s «foumal, pp. lU, 112, 199,
200, 410, 416, 452; New Mexico ex rd.
Levy v. Martinez (Sept. 1, 1919) Secre-
tary of State, No. 9287; 4 Madison, p.
412.
In trying to comprehend the legisla-
tive purpose in prohibition statutes, it is
important to remember that the ultimate
end sought in prohibition legislation is
not the prevention or restriction of the
mere sale of intoxicants, but the preven-
tion of their consumption as a beverage.
64 li. ed.
West . Virginia v. Adams Exp. Co.
Ii.R.A.1916C, 291, 135 C^ C. A. 4^ 219
Fed. 794; State v. J. P. Bass Pub. Co.
104 Me. 288, 20 L.R.A.(N.S.) 496, 71
Atl. 894; Re Crane, 27 Idaho, 671, L.B.A.
1918A, 942, 151 Pac. 1006; Lincohi v.
Smith, 27 Vt 337; Marks v. State, 159
Ala. 84, 133 Am. St. Rep. 20, 48 So.
864; Southern Exp. Co. v. Whittle, 194
Ala. 406, L.R.A.1916C, 278, 69 So. 662;
State V. Phillips, 109 Miss. 22, L.R.A.
1915D, 530, 67 So. 65L
The following propositions are now
well established:
First. Where the Constitution con-
fers exclusive power over a subject-mat-
ter upon the Federal government, any
attempt of the state to legislate upon
the subject-matter is null and void.
Second. . If the state and Federal gov-
ernment each possess concurrent power
over the subject-matter, in that event an
act of the legislature of the state is bind-
ing upon the state until Congress shall
have exercised its authority. However,
when Congress passes a valid law under
a grant of authority to the Federal gov-
ernment, the law of Congress is supreme
and paramount to any act of the state
l^^lature.
Third. As a result of the above prop-
ositions, if there is a conflict between
an act T>f the state l^^lature and an
act of Congress, the question is, EEas the
state exceeded its power under the grant
of the Constitution t A valid enactment
of Congress is the supreme law of the
land, anything in the Constitution or
laws of any state to the contrary not-
withstanding.
Gibbons v. Ogden, 9 Wheat. 1, 210, 6
L. ed. 23, 73; Marshall, p. 210; North-
em Secuiities Co. v. United States, 193
U. S. 347, 48 L. ed. 704, 24 Sup. Ct.
Rep. 436; Ex parte Siebold, 100 U. S.'
392, 25 L. ed. 724; Tennessee v. Davis,^
100 U. S. 262, 25 L. ed. 650; Re Neagle,'
5 L.R.A. 78, 39 Fed. 833, 14 Sawy. 232 ;<
M'Culloch V. Maryland, 4 Wheat. 316,'
421, 4 L. ed. 579, 606; Missouri, K. &'
T. R. Co. V. Haber, 169 U. S. 613, 42
L. ed. 878, 18 Sup. Ct Rep. 488. |
When a state or the Federal govern-
ment has authority to pass a prohibition:
law, it carries with it ute power to enact'
any law having a reasonable relation to
the end sought by the original author-
ized act. . j
Purity Extract & Tonic Co. v. Lynch,
226 U. S. 193, 57 L. ed. 184, 33 Sup, Ct.
Rep. 44; Hoke v. Smith, 227 U. S. 309,
57 L. ed. 523, 43 L.R.A?(N.S.) 906, 33
Sup. Ct. Rep. 281, Ann. Cas. 1913E,
905: Crane v. Campbell, 245 U. S. 304,
907
SUPREME COURT OF THE UNITED STATES.
Oct.
62 L. ed. 304; 38 Sup. Ct Rep. 98;
Jacob Rnppert v. Oaifey, 251 U. S. 264,
ante, 260, 40 Snp. Ct. Rep. 141.
Messrs. Lofy Mayer and William
MarihaU Bullitt argued the cause and
filed a brief for api^ant in No. 752:
The expressed exception contained in
article 5 of the Constitution, namely,
that the state's 'equal suffrage in the Sen-
ate shall not be disturbed, is not exclu-
sive.
Hollingsworth v. Virginia, 3 Ball. 378,
1 L. ed. 644; Ableman v. Booth, 21 How.
506, 16 L. ed. 169; Slanghter-House
Cases, 16 WaU. 36, 21 L. ed. 394.
The 9th and 10th Amendments merely
put in express form that which was irrev-
ocably implied before their enactment.
Martin v. Hunter, 1 Wheat. 304, 4 L.
ed. 97; M'Culloch v. Maryland, 4 Wheat.
316,4 L. ed. 579; Collector v. Day (Buf^
fington V. Day) 11 Wall. 113, 20 L. ed.
122; 2 Elliot, Debates, p. 435.
Axtide 5 does not confer power to de-
prive by Amendment any state of any
of its rights* of local sovereignty which
.it did not concede to the government at
the time of the framing of the Constitu'
tion.
2 Curtis, History of U. S. Const p.
160.
The C<m8titution and its ameadments
must be construed as one instrument.
Prout V. Starr, 188 U. S. 537, 47 L.
ed. 584, 23 Sup. Ct. Rep. 398.
Among the powers which it has always
been fadd have been reserved to the
states 18 the polioe power and more spe-
cifically the powers of the state to regu-
late the Hquor traflk.
Re Rahrer, 140 U. S. 545, 35 L. ed.
572, U Sup. Ct. Rep. 865; Hammer ▼.
Dagenhart, 247 U. S. 251, 62 L. ed. 1101,
3 A.L.R. 649, 38 Sup. Ct. Rep. 529, Ann.
Cas. 1918E, 7^4; Hamilton v. Kentucky
Distilleries & Warehouse Co. 251 U. S.
146, ante, 194^ 40 Sup. Ct. Rep. 106;
Keller v. United States, 213 U. S. 138,
53 L. ed. 737, 29 Sup. Ct. Rep. 470, 16
Ann. Cas. 1066; Re Heff, 197 U. 8. 488,
49 L. ed. 848, 25 Sup. Ct. Rep. 506;
Northwestern Fertilizing Co. v. Hyde
Paric, 97 U. S. 659, 24 L. ed. 1036; Unit-
ed SUtes v. Dewitt, 9 Wall. 41, 19 L. ed.
593; liGssonri, K. & T. R. Co. v. Haber,
169 U. S. 619, 42 L. ed. 878, 18 Snp. Ct
Rep. 488.
The great and leading intent of the
Constitution was to preserve an inde-
structible Union composed of indestruc-
tible states.
Texas v. White, 7 Wall. 700, 19 L. ed.
227; Lane County v. Oregon, 7 Wall. 71,
968
19 L. ed. 101; Union P. R. Co. v. Penis-
ton, 18 Wall. 5, 21 L. ed. 787.
In construing the Constitution, it is
indispensable to keep in view its objeeU.
Legal Tender Cases, 12 Wall 457, 20
L. ed. 287; Ex parte Yerger, 8 WaH. 85,
19 L. ed. 332; Brown v. Maryland, 12
Wheat. 419, 6 L. ed. 678.
The vote referred to in artide 5 of the
Constitution is not in any manner eon-
trolled by other provisions of the C(m-
stitution.
Hollingsworth v. Virginia, 3 DaH 378,
1 L. ed. 644. .
Congress, in proposing amendments to
the Constitution, does not act in a legis-
lative capacity.
Hollingsworth v. Virginia, supra; Chi-
cago v. Ree%'es, 220 111. 274, 77 N. E.
237 ; State ex rel. McClurg v. Powdl, 71
Miss. 543, 48 L.R.A. 652, 27 So. 927;
Weston V. Ryan, 70 Neb. 211, 97 N. W.
347, 6 Ann. Cas. 922; Warfield v. Van-
diver, 101 Md. 78, 60 Atl. 538, 4 Ann.
Cas. 692; Com. ex rel. Atty. Gen. v.
Griest, 196 Pa. 396, 50 L.R.A. 568, 46
Atl. 505.
The differences in phraseology in the
language used in article 1 (the l^^ative
section) and article 5 (the amending
section) create a presumption that a
difference in meaning was intended.
Holmes v. Jennison, 14 Pet. 540, 10
L. ed. 579; Crawford v. Burke, 1^ U. 8.
176, 49 L. ed. 147, 25 Sup. Ct. Bep. 9;
United States v. Fisher, 2 Crandi, 358,
2 L. ed. 304.
The decision in Missouri P. R. Co. v,
Kansas, 248 U. S. 276, 63 L. ed. 239,
2 A.L.R. 158^, 39 Sup. Ct. Rep. 93,
should not conbt>I.
(a) The question was not there actual-
ly presented for determination*
Cohen v. Virginia, 6 Wheat 3W, 5 L.
ed. 290; Ogden v. Saunders, 12 W^ett
213, 6 L. ed. 606; Rumley v. MiMsacfati-
setts, 155 U. S. 461, 39 L. ed. 223, 5
Inters. Com. Rep. 590, 15 Snp. Ct. Rep.
154; Union Tank line Co. v. Wright,
249 U. S. 278, 63 L. ed. 605, 39 Snp. Ct.
Rep. 276; Pollock v. Farmers' Loan ft
T. Co. 157 U. S. 429, 39 L. ed. 759, 15
Snp. Ct. Rep. 673.
(b) This court has often overruled
prior cases when convinced of its error.
The Genesee Chief v. Fitzhugh, 12
How. 443, 13 L. ed. 1058; Lmd Tender
Cases, 12 Wafl. 457, 13 L. ed. 287; Bar-
den V. Northern P. R, Co. 154 U. S. 288,
38 L. ed. 992, 14 Sup. Ct. Rep. 1030;
Pollock V. Fanners' Loan is T. Co. 157
r. S. 429, 39 L. ed. 759, 15 Sup. Cr.
Rep. 673; Standard Oil (3o. v. United
States, 221 U. S. 1, 57 L. ed. 619, 34
ass r. s.
1919.
RHODE ISLAND v. PALMER.
L.B.A.(N.S.) 834. 31 Sup. Ct. Rep. 502,
Ann Cas. 1912D, 734; Garland v. Wash-
ington, 232 U. S. 642, 58 U ed. 772, 34
Sup. Ct. Rep. 456.
The 18th Amendment has not been
ratified by the legislatures of Uuree
fourths of the states.
State ex rel. Schrader v. PoUey, 26 S.
D. 5, 127 N. W. 848; State ex rel. Davis
V. Hildebrant, 94 Ohio St. 154, 114 N.
B. 55, 241 U. S. 565, 60 L. ed. 1172, 36
Si^. Ct Rep. 708; State ex rel. MnDen
V. Howell, 107 Wash. 167, 181 Pac 920;
Hawke v. Smith, — Ohio St. — , 126 N.
£. 400: Carson v. Sullivan (May 19,
1919; Cir. Ct. Cole Co. Mo.).
It 18 no objection that fhe framers of
the Constitution were not acquainted
with the referendum.
South Carolina v. United States, 199
U. S. 437, 50 L. ed. 261, 26 Sup. Ct.
Rep. 110, 4 Ann. Cas. 737; Re Debs, 158
U. S. 564, 39 L. ed. 1092, 15 Sup. Ct
Rep. 900.
The various provisions and limitations
contained in the Constitution should be
so intei^reted that all of them are given
force and effect. .
Prout V. Starr, 188 U. S. 537, 47 L.
ed. 584, 23 Sup. Ct Rep. 398.
Constitutional provisions for the se-
curity of property should be liberally
construed.
Boyd V. United States, 116 U. S. 619,
29 L. ed. 747, 6 Sup. Ct R^. 524.
The Volstead Act takes the Kentucky
CompanyHi liquor for a public use.
Buchanan v. Warley, 245 U. S. 60, 62
L. ed. 149, L.R.A.1918C, 210, 38 Sup.
Ct. Rep. 16, Ann. Cas. 1918A, 1201;
United States v. Cress, 243 U. S. 316, 61
L. ed. 746, 37 Sup, Ct Rep. 380; United
States V. Lynah, 188 U. S. 445, 47 L. ed.
539, 23 Sup. Ct Rep. 349; Wynehamer
V. People, 13 N. Y. 378; Porster v. Scott,
136 N. Y. 577, 18 L.R.A. 543, 32 N. E.
976.
Whisky is property within the mean-
ing of the 5th Amenmnent.
Leisy v. Hardin, 135 U. S. 100, 34 L.
ed. 128, 3 Inters. Com. Rep. 36, 10 Sup.
Ct Rep. 681; Scott v. Donald, 165 U. S.
58, 41 L. ed. 632, 17 Sup. Ct Rep. 265;
Lyng V. Michigan, 135 U. S. 166, 34 L.
ed. 153, 3 Inters. Com. Rep. 143, 10 Sup.
Ct. Rep. 725; SchoUenberger v. Penn-
sylvania, 171 U. S. 1, 43 L. ed. 49, 18
Sop. Ct. Rep. 757; Adams Exp. Co. v.
Kentucky, 214 U. S. 218, 53 L. ed. 972,
29 Sup. Ct. Rep. 633; LouisviUe & N. R.
Co. V. F. W. Cook Brewing Co. 223 U.
S. 70, 56 L. ed. 355, 32 Sup. Ct Rep.
189.
The Volstead Act is inoperative until
64 li. ed.
provision for compensation has been
made.
Sweet V. Rechel, 159 U. S. 380, 40 L
ed. 188, 16 Sup. Ct Rep. 43; Chen^ee
Nation v. Southern Kansas R. Co. 135 U.
S. 656, 86 L. ed. 802, 10 Sup. a. Rep.
965; A. Backus, Jr. ft Sons v. Fort Street
Union Depot Co. 169 U. S. 567, 42 L. ed.
853, 18 Sup. Ct. Rep. 445; Ctozier v.
Fried. Kmpp Aktiengesellschaft, 224 U.
S. 290, 56 L. ed. 771, 32 Sup. Ct. Rep.
488.
Solicitor General King and Assistant
Attorney Qeneral Frierson argued the
cause and filed a brief for app^ees:
The whole matter of proposing amend-
ments, except as specifically limited in
article 5, was, when the Constitution was
adopted, understood to be left to the dis-
cretion of Congress.
12 Washingtoa's Writings, p. 4.
The 18th Amendment was prop^y
proposed when the ^solution proposing
it was adopted by two thirds of the mem-
bers of each House present and consti-
tuting a quorum.
Missouri P. R. Co. v. Kansas, 248 U.
S. 276, 63 L. ed. 239, 2 A.L.R. 1589, 39
Sup. Ct Rep. £3.
The question of whether an amend-
ment proposed in the manner provided
by article 5 has been adopted is a polit-
ical, and not a justiciable, <)ue8tion, and
is to be decided by the political branch
of the government, and not by the courts.
Luther v. Borden, 7 How. 1, 39, 12
L. ed. 581, 597; Marshall Field Co. v.
Clai^ 143 U. S. 649, 36 L. ed. 294, 12
Sup. Ct Rep. 495; Rainey v. United
States, 232 U. S. 310, 58 L. ed. 617, 34
Sup. Ct. Rep. 429; Harwood v. Went-
worth, 162 U. S. 547, 40 L. ed. 1069, 16
Sup. Ct. Rep. 890; Flint v. Stone Tracy
Co. 220 U. S. 109, 55 L. ed. 880, 31 Sup.
Ct. Rep. 342, Ann. Cas. 1912B, 1312.
Ratification by the legislature of the
state is final regardless of any consti-
tutional provisions on the subject of the
referendum.
Dodge V. Woolsey, 18 How. 331, 348,
15 L. ed. 401; McPherson v. Blacker,
146 U. S. 1, 36 L. ed. 869, 13 Sup. Ct.
Rep. 3.
The fact that the Amendment does not
provide compensation for whisky previ-
ously manufactured does not render it
invalid.
Mugler V. Kansas, 123 U. S. 623, 31
L. ed. 205, 8 Sup. Ct Rep. 273; Ham-
ilton V. Kentuc^ Distilleries & Ware-
house Co. 251 U. S. 146, 64 L. ed. 194,
40 Sup. Ct. Rep. 106; Jacob Ruppert v.
9«9
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
Caifey, 251 U. S. 264, 64 L. ed. 260, 40
Sup. Ct. R€p. 141.
Mr. David J. Beinbardty Attorney
Qeneral of Delaware, Mr. J.. 8. Manning,
Attqr^ey Qeneral of Nortb Carolina, Mr.
Charles I; Dawson, Attorney Qeneral of
Kentucky, Mr. Adolph V. Coco, Attor-
ney Gtoer^ of Louisiana, Mr. £le
^tansbury, Attorney Qeneral of Indiana,
Mr. Fran^ Robertson, Attorney Qeneral
of Mississippi, Mr. J. Q. Smith, Attor-
ney Qeneral of Alabama, Mr. Guy H.
Stui^, Attorney Oeneral of Maine, Mr.
John D. ArbucMe, Attorney General of
Arkansas, Mr. Alex. J. Groesbeck, At-
torney Qeneral of Michigan, Mr. Van
C Swearengen, Attorney General of
Florida, Mr. George M. Brown, Attorney
General of Oregon, Mr. Richard T. Hop-
kins, Attorney General of Kansas, Mr,
E. T. England. Attorney General of
West Virginia, Mr. Leonard Fowler, At-
torney General of Nevada, Mr. Clarence
A. Davis. Attorney General of Nebras-
ka, M¥. Victor E. iKeyes, Attorney (Gen-
eral of Colorado, Mr. S. Clarence Ford,
Attorney General of Montana, Mr. Wil-
liam Limger, Attorney Genend of North
Dakota, Mr. Byron S. Payne, Attorney
General of South Dakota, Mr. Roy L.
Black, Attorney Genercd of Idaho, Mr.
W. L. Walls, Attorney General of Wy-
oming, Mr. Dan B. Shields, Attorney
General of Utah, Mr. Wiley £. Jones,
Attorney (General of Arizona, and Mr.
Charles E. Hushes filed a brief as amid
curiie:
The provision of article 5 of the Con-
stitution for the proposal of amendments
by the Congress whenever two thirds of
both Houses shall deem it necessary is
satisfied by a joint resolution passed by
a vote of two thirds of a quorum of each
House. A vote of two thirds of all of
the members o^ each House is not re<
quired.
Missouri P. R. Co. v. Kansas, 248 U.
S. 276, 63 L. ed. 239, 2 A.L.R. 1589. 39
Sup. Ct. Rep. 93; Ohio ex rel. Erken-
brecher v. Cox, 257 Fed. 346.
This court does not inquire into the
motives of the Congress.
Hamilton v. Kentucky DistOleries &
Warehouse Co. 251 U. S. 146, 64 L. ed.
194, 40 Sup. Ct. Rep. 106.
Either there is no question at all, in
case the legislatures of the several
states^ means the legislative bodies .of
these states as they were known at the
time of the adoption of the Constitution,
or the question is one involving modified
forms of legislative action which neces-
sarily relate to the structure of govem-
970
ment and involve political determina-
tions.
Marshall Field & Co. v. Clark, 143 U.
S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep.
495; 1 WiUoughby, Const. § 581, p.
1005; Prize Cases, 2 Black, 635, 17 L.
ed. 459; United States v. Palmer, 3
Wheat. 610, 4 L. ed. 471; McElrath v.
United States, 102 U. S. 426j 438, 26
L. ed. 189, 191; 2 Willoughby, Const. SS
580, 582, pp. 1003, 1007; Doe ex dem.
Clark v. BTraden, 16 How. 635, 14 L. ed.
1090; Teriinden v. Ames, 184 U. S. 270,
40 L. ed. 534, 22 Sup. Ct. Rep. 484, 12
Am. Crim. Rep. 424; Re Biaz, 135 U. S.
403, 421, 422, 34 L. ed. 222, 227, 228,
10 Sup. Ct. Rep. 854; Jones v. United
States, 137 U. S. 202, 34 L. ed. 691, 11
Sup. Ct. Rep, 80; Oetjen v. Central
Leather Co. 246 U. S. 297, 62 L. ed. 726,
38 Sup. Ct. Rep. 309'; Luther v.. Bprden,
7 How. 1, 12 L. ed. 581; Pacific Slates
Teleph. & Teleg. Co. v. Oregon, 223 U.
S. 118, 56 L. ed. 377, 32 Sup, Ct. Rep.
224.
Under the Constitution, the states are
without power to ' alter or modify the
provision of article 5 as to the manner
in which amendments shall be ratified.
M'Culloch V. Maryland, 4 Wheat. 316,
402, 405, 4 L. ed. 579, 600, 601; Do^
V. Woolsey, 18 How. 331, 348, 15 L. ed
401, 407.
There can be no question but that ^t
the time the Constitution was adopt^
the expression legislatures of the sev-
eral states'* had reference to legislativA
bodies acting in a representative capacity^
M'Culloch V. Maryland, supra; Hoi-
lingsworth v. Virginia, 3 Dall. 378, 1 Jji
ed. 644; Re Opinion of Justices, 118 Me
544, 107 AtL 674; Ohio ex i«I. Erken-
brecher v. Cox, 257 Fed. 340; State v.
Cox, 8 Ark. 443; Oakland Paving Co. v.
Hilton, 69 CaL 51^ U Pa«* 3.
It does not follow that beeanae there
is a referendum provisioin in the state
Constitution that, even as a matter of
state law, it is applicable to a Federal
amoidment.
Re Opinion of Justiees, 118 Me. 544,
107 Atl. 673; Herbring v. Brown, 92 Or.
176, 180 Pac 328; New Mezieo ex rel.
Levy v. Martines (Sept 1, 1919) Secre-
tary of State, No. 9287.
There is no warrant for implying eoeh
a restriction up<m the amendiBg power
confeired by article 5 as to make im-
possible the exereise of tiiat power in the
adoption of the 18th Amendment.
43 Federalist; 85 i^eralist; 2 Story,
Const. §§ 1827-1830, pp. 598-600.
The provisioB in the 18tfa Amendment
1919.
RHODE ISLAND v. PALMER.
that the Congress and the several states
shall have concurrent power to enforce
the article by appropriate legislation is
to be construed in accordance with the
established principle in that class of
oases, heretofore described as involving
concurrent pow€r, in which the states
may act until Congress sees fit to act,
and, when Congress does act, the exercise
of its authority overrides all conflicting
state legislation.
Story, Const. §§ 435-439; Ex parte
Siebold, 100 U. S. 371, 385, 25 L. ed. 717,
722; Covington & C. Bridge Co. v. Ken-
tucky, 154 U. S. 204, 209, 211, 212, 38
L. ed. 962, 965, 966, 4 Inters. Com. Rep.
649, 14 Sup. Ct. R^. 1087; Willoughby,
Const. § 41.
The Amendment is not confiscatory.
Hamilton v. Kentucky Distilleries &
Warehouse Co. 251 U. S. 146, 64 L. ed.
194, 40 Sup. Ct Rep. 106.
Messrs. Wayne B. Wheeler, George S.
Hobart, G. Rowland Monroe, R. C. Min-
ton, and J. A. White also filed a brief as
amici curise.
For their contentions, see supra, p. 966.
Messrs. Elihu Boot and William D.
Chithrie argued the cause, and, with
Messrs. Robert Crain and Bernard Hersh-
kopf, filed a brief for appellant in No.
788:
It is impossible to reconcile with the
decision of this court in Texas v. White,
7 WalL 700, 725, 19 L. ed. 227, 237, the
contention that the amending power con-
tained in article 5 of the Constitution is
unlimited and may be exerciaed by some
of the states so as to take part or all of
the police or governmental powers of an
objecting state against its will.
See also Northern Securities Co. v.
United States, 193 U. S. 197, 348, 48 L.
ed. 679, 704, 24 Sup. Ct. Rep. 436; Keller
V. United States, 213 U. S. 138, 148,* 149,
53 L. ed. 737, 740, 741, 29 Sup. Gt. Rep.
470, 16 Ann. Cas. 1066; Hammer v. Dag-
enhart, 247 U. S. 251, 275, 62 L. ed. 1101,
1107, 3 A.L.R. 649, 38 Sup. Ct. Rep.
529, Ann. Cas. 1918E, 724.
A determined attempt was made in the
Slaughter-House Cases, 16 Wall. 36, 77.
21 L. ed. 394, 409, to secure the approval
of this court of an effort to impair the
police power of the states under the pre-
text that that result necessarily followed
from the terms and provisions of the 14th
Amendment to the Constitution, but the
contentions to that effect were most em-
phatically repudiated.
See also Civil Rights Cases, 100 U. S.
3, U, 15, 19, 27 L. ed. 836, 839 840, 842,
3 Sup. Ct. Rep. 18.
64 li. ed.
It would be vain 'to urge, as does thf
court in Hammer v. Dagenhart, supra,
that the maintenance of the authority of
the states over matters purely local is
essential to the preservation of our insti-
tutions, and the power of the states to
regulate their purely internal affairs in-
herent and never surrendered to the gen-
eral government, if the states held that
authority only temporarily and could be
deprived of all of it whenever two thirds
of the Houses of Congress and three
fourths of the l^^latures of the states
saw fit to take advantage of the power
conferred in article 5 of the Constitu-
tion.
See also Kentucky v. Dennison, 24
How. 66, 107, 16 L. ed. 717, 729; Guinn
v. United States, 238 U. S. 347, 362/ 59
L. ed. 1340, 1346, L.R.A.191CA, 11?4, 35
Sup. Ct. Rep. 926.
The right of the states to continue as
effective local governments, which is im-
plied in the Constitution, has been ein-
phatically recognized and enforced, as
against an express and practically un-
qualified power sought to be exercised in
conflict therewith, in the cases which hold
that it is unconstitutional for the Federal
government to attempt to tax the several
states or their governmental instrumental-
ities.
Collector v. Day (Bufifington v. Day)
11 WaU. 113, 124, 125, 127, 20 L. ed. 122,
125, 126; United States v. Baltunore A
0. R. Co. 17 WaU, 322, 327, 21 L. ed.
597, 599 ; Pollock v. Farmers' Loan & T.
Co. 157 U. S. 429, 584, 39 L. ed. 759, 820,
15 Sup. Ct Rep. 673; South Carolina v.
United States, 199 U. S. 437, 453, 50 L.
ed. 261, 266, 26 Sup. Ct. Rep. 110, 4
Ann. Cas. 737.
The ratio decidendi of these authorities
is not based upon any express limitatioD
upon the Federal taxing power, for tb«
grant of power is unlimited, Imt solefy
upon the necessary implication whieh
arises out of our dual and Federal systan
of government and the great law of self-
preservation, which the states are entitled
to invoke against efforts tending to bring
about their ultimate destruction.
Collector v. Day, supra.
If, however, article 5 of the Constitu-
tion authorizes amendments directly
withdrawing police powers from the
states, which their necessarily implied
right of self-preservation may, neverthe-
less, not resist, it would be baseless to
argue, as did the court in Collector v.
Day, supra, that the existence of the
states is indispensable under our consti-
tutional system, for the states then would
971
SUPREME COURT OF THE UNITED StATES.
Oct. Tekbc,
have their being only at the mercy of the
Congress and the legislatures of three
fourths of the states.
The preservation of the state govern-
ment was one of the chief concerns of the
framers of the Constitntion.
2 ElUot, Debates, 304, 309; 4 ElUot,
Debates, pp. 53, 58; 2 Curtis, History of
U. S. Const, pp. 160, 161.
The establishment and recognition in
the Constitution of the two governments,
Federal and state, plainly imply that
neither shall be permitted to destroy the
other, and that the state power shall not
be exerted to overthrow the Federal gov-
ernment, nor the Federal power to impair
the existence of the states.
South Carolina v. United States, supra.
Article 5, in its proviso that no state,
without its consent, shall be deprived of
its equal suffrage in the Senate, neces-
sarily implies and requires the continued
existence of the states, for otherwise their
equal suffrage in the Senate could be de-
stroyed wi£ them; and further implies
that the states shall at all times exist as
bodies capable of consenting, — in other
words, as autonomous, self-governing sov-
ereignties.
1 Tucker, U. S. Const, pp. 323, 324.
It is no answer to these contentions to
urge that the 10th Amendment, which ex-
pressly reserves the police powers to the
states, is after all but an amendment, and
as such may be altered like any other
provision or amendment. The 10th
Amendment stands upon its own peculiar
ground. It is in fact but the expression
of matters implied in the original Con-
stitution, and it added no power to the
states and subtracted none from the Fed-
eral government.
United States v. Cruikshank, 92 U. S.
542, 552, 23 L. ed. 588, 591; Wilkinson
v. Inland, 2 Pet. 627, 657, 7 L. ed. 542,
553; Citizens Say. & L. Asso. v. Topeka,
20 Wall. 655, 22 L. ed. 455.
The guaranty rendered express by the
10th Amendment is of vital obligation
and was necessarily recognised and ap-
proved by every state when it entered
into the Union, which can only remain a
true Federal Union so long as the several
states retain the powers which that
Amendment expressly reserves. With the
subject-matter of that Amendment sub-
stantially altered or destroyed, we may
remain a free people, but the Union will
not be the Union of the Constitution.
Coyle v. Smith, 221 U. S. 559, 55 L. ed.
853, 31 Sup. Ct. Rep. 688.
The people acted upon the plain mean-
ing: of the instrument and intended no
972
such result as is urged by the defendants
in the case at bar, and as the people rea-
sonably read the Constitution, so should
it be enforced.
Cooley, Const. Lim. 7th ed. pp. 101,
102; Maxwdl v. Dow, 176 U. S. 581, 601,
602, 44 L. ed. 597, 604, 605, 20 Sup. Ct.
Rep. 448, 494; SUte v: St. Louis South
Western R. Co. — Tex. Civ. App. — lOT
S. W. 1012; Alexander v. People, 7 Colo.
167, 2 Pac. 894.
In interpreting or eonstruing any
clause in the Constitution of the United
States or its amendments, the settled
principle of interpretation is alwajrs ap-
plied that effect must be given to every
word, if possible, and that it is not to be
assumed that any word was employed
without distinct occasion or definite pur-
pose or without intent that it should have
some effect as part of the Constitution.
Knowlton v. Moore, 178 U. S. 41, 87,
44 L. ed. 969, 987, 20 Sup. Ct. Rep. 747 ;
Hurtado v. California, 110 U. S. 516,
534, 28 L. ed. 232, 238, 4 Sup. Ct. Rep.
Ill, 292; Holmes V. Jennison, 14 Pet.
540, 570, 571, 10 L. ed. 579, 594, 595;
Cooley, Const. Lim. 7th ed. p. 92; United
States V. Standard Brewery, 251 U. S.
210, ante, 229, 40 Sup. Ct. Rep. 139;
Newell V. People, 7 N. Y. 9.
The 18th Amendment was int^ided to
provide for co-operation and concuirenoe
in the exclusive legislative fields of aetion
of the Congress and the several states
respectively, and such purpose was in the
legislative atmosphere of the time. Noth-
ing else was necessary or expedient in
riew of the existing powers of Cong^ress
and the states.
Delamater v. South Dakota, 205 U. S.
93, 98, 51 L. ed. 724, 728, 27 Sup, Ct.
Rep. 447, 10 Ann. Cas. 733; Lmsy v.
Hardin, 135 U. S. 100, 34 L. ed. 128, 3
Inters. Com. Rep. 36, 10 Sup. Ct. Rep.
681; Ke Rahrer, 140 U. S. 545, 35 L. ed.
572, 11 Sup. Ct. Rep. 865; New York
C. B. Co; V. Winfteld, 244 U. S. 147, 61
L. ed. 1045, L.R.A.1918C, 439, 37 Sup.
Ct. Rep. 546, Ann. Cas. 1917D, 1139, 14
X. C. C. A. 680; Southern P. Co. v. Jen-
sen, 244 U. S. 205, 61 L. ed. 1086, LJI.A.
1918C, 451, 37 Sup. Ct. Rep. 524, Ann.
Cas. 1917E, 900, 14 N. C. C. A. 596;
Hamilton v. Kentucky Distilleries Co. 251
U. S. 146, 156, ante, 194, 199, 40 Sup.
Ct. Rep. 106; Hodges v. United SUtes,
203 U. S. 1, 16, 51 L. ed. 65, 68, 27 Sup.
Ct. Rep. 6; De Bary v. Louisiana, 227
U. S. 108, 57 L. ed. 441, 33 Sup. Ct Rep.
239; Vance v. W. A. Vandercook Co. 170
U. S. 438, 42 L. ed. 1100, 18 Sup. Ct
Rep. 674; Clark DistiUing Co. v. West-
2ftS V. 8.
1019.
RHODE ISLAND v. PALMER.
era Maryland R. Co. 242 U. S. 311, 61
L. ed. 326, L.R.A.1917B, 1218, 37 Sup.
Ct. Rep. 180, Ann. Cas. 1917B, 8^;
United States v. Hill, 248 U. S. 4£0, 63
L. ed. 337, 39 Sup. Ct. Rep. 143.
Both the granting and the limiting
clauses of the Constitution must be fairly
construed.
Fairbank v. United States, 181 U. S.
283, 45 L. ed. 862, 21 Sup. Ct. Rep. 648,
15 Am. Crim. Rep. 135.
The g^ant of concurrent power to en-
force requires concurrence on the part of
the grantees of jthe power, that is to say,
concurrence respectively by Congress in
respect of any state legislation relating to
interstate or foreign commerce, and con-
currence by the state in respect of any
legislation by Congress relating to the in-
ternal and local affairs of that state.
Century Diet; Webster Diet; Stand-
ard Diet,; Wedding v. Meyler, 192 U. S.
573, 584, 48 L. ed. 570, 575, 66 L.RJ^.
833, 24 Sup. Ct Rep. 322; Re Mattson,
69 Fed. 542; Ex parte Deajeiro, 152 Fed.
1007; Nielsen v. Oregon, 212 U. S. 315,
53 L. ed. 528, 29 Sup. Ct. Rep. 383.
The standard of i of 1 per cent ar^se
in the Federal system merely as a stand-
ard for taxation, and so continues to this
day, and it was never intended to be a
criterion or test of intoxicating quality.
United States v. Standard Brewery, 251
U. S. 210, ante, 229, 40 Sup. Ct. Rep.
139; Jacob Hoffman Brewing Co. v. Mc-
Eiligott, 259 Fed. 338 ; Com. v. Bios, 116
Mass. 58; Intoxicating Liquor Cases, 25
Kan, 768, 37 Am. Rep. 284; State v.
Piche, 98 Me. 351, 56 Atl. 1052; State
V. May, 52 Kan. 53, 34 Pac. 407; Estes
V. State, 13 Okla. Crim. Rep. 604^ 4
A.L.R. 1135, 166 Pac. 77; Marks v. State,
159 Ala. 71, 133 Am. St. Rep. 20, 48 So.
864; State v. Virgo, 14 N. D. 293, 103
N. W. 610 ; Blatz v. Rohrbach, 116 N. Y.
452, 6 L.R.A. 669, 22 N. E. 1049; Black,
Intoxicating Liquors^ § 2; Post Office
Dept. Liquor BuHetin No. 2, June 15,
1917.
The definition of an intoxicating liquor
oontained in the National Prohibition Act
is arbitrary, oppressive, and unconstitu-
tionaL
Interstate Commerce Commission t*
LouisvUle & N. R. Co. 227 U. S. 88, 91,
57 L. ed. 431, 433, 33 Sup. Ct Rep. 185;
Citizens' Sav. & L. Asso. v, Topdsa, 20
Wall. 655, 662, 663, 33 L. ed. 456, 461;
Dobbins v. Los Angeles, 195 U. S. 223,
236, 241, 49 L. ed. 169, 175, 177, 25 Sup.
Ct Rep. 18; Adair v. Unite<l States, 208
U. S. 161, 175, 52 L. ed. 436, 442, 28 |
Sup. Ct Rq[>. 277, 13 Ann. Cas. 764; I
McLean v. Arkansas, 211 U. S. 539, 547,
•4 L. «4.
53 L. ed. 315, 319, 29 Sup. Ct. Rep. 206;
Adams v. Tanner, 244 U. S. 590, 596,
597, 61 L. ed. 1336, 1344, L.R.A.1917F,
1163, 37 Sup. Ct. Rep. 662, Ann. Cas.
1917D, 973; St. Louis, I. M. & S. R. Co.
V. Wynne, 224 U. S. 354, 359, 56 L. ed.
799, 800, 42 L.R.A.(N.8.) 102, 32 Sup.
Ct Rep. 493; Great Northern R. Co. v.
Minnesota, 238 U. S. 340, 345, 347, 59
L. ed. 1337, 1339, 1340, P.U.R.1915D,
701, 35 Sup. Ct. Rep. 753; Cotting v.
Kansas City Stock Yards Co. (Cotting
V. Godard) 183 U. S. 79, 84, 46 L. ed.
92, 99, 22 Sup. Ct. Rep. 30 ; Yick Wo v.
Hopkins, 118 U. S. 356, 369, 30 L. ed.
220, 226, 6 Sup. Ct. Rep. 1064.
Nothing of effectual value would be left
of -any part of a constitution — neither
the rights which it confers, nor the duties
which it imposes, nor the prohibitions
which it ordains, nor the limitations
which it decrees — if the legislature had
power to define them away by mere statu-
tory enactments contrary to the fact.
Eisner v. Macomber, 252 U. S. 189,
ante, 521. 9 A.L.R. 1570, 40 Sup. Ct. Rep.
189; Galveston, H. & S. A. E. Co. v.
Texas, 210 U. S. 217, 227, 52 L. ed. 1031,
1037, 28 Sup. Ct. Rep. 638; Choctaw, O.
& G. R. Co. V. Harrison, 236 U. S. 292,
298, 59 L. ed. 234, 237, 35 Sup. Ct. Rep.
27; Western U. Tel^. Co. v. Kansas, 216
U. S. 1, 37, 54 L. ed. 355, 370, 30 Sup.
Ct. Rep. 190; New York v. Compagnie
G^n^rale Transatlantiaue, 107 U. S. 59,
63, 27 L. ed. 383, 385, 2 Sup. Ct. Rep. 87;
Monongahela Nav. Co. v. United States,
148 U. S. 312, 327, 37 L. ed. 463, 468, 13
Sup. Ct. Rep. 622; Waterloo Woolen
Mfg. Co. V. Shanahan, 128 N. Y. 357, 14
L.R.A. 481, 28 N. E. 358; San Mateo
County V. Cobum, 130 Cal. 634, 63 Pac.
78, 621 ; Yeatmen v. King, 2 N. D. 424,
33 Am. St. Rep. 797, 51 N. W. 721; Kel-
ler V. State, — Tex. Crim. Rep. — , 1
L.R.A.(N.S.) 489, 87 S. "W. 675.
A revenue statute, in fact concerned ex-
clusively with fermented or alcoholic
liquors, cannot cast any light upon a con-
stitutional provision which is concerned
solely with, and expressly limited to, in-
toxicating liquors in the ordinary, and
not in any unnatural or specially defined,
sense.
Tennessee v. Whitworth, 117 U. S. 139,
147, 29 L. ed. 833, 835, 6 Sup. Ct. Rep.
649.
It would be a new terror in the con-
struction of statutes and constitutions if
we were required to limit a word to an
unnatural sense because in some act which
is not incorporated or referred to such
an interpretation is given to it for the
purposes of that act alone.
t7S
SUPREME COURT OF THE UNITED STATES.
Oct.
Macbeth & Co. v. Chislett [1910] A. C.
220, 79 L. J. K. B. N. S. 376, 102 L. T.
N. S. 82, 26 Times L. B. 268, 64 Sol. Jo.
268, 47 Scot. L. B. 623, 17 Ann. Cas. 102.
It is too well established to warrant dis-
cussion that what constitutes an intoxi-
cating liquor is purely a matter of fact
(State V. Piche, 98 Me. 351, 56 Atl.
1052; Com. v. Bios, 116 Mass. 68; Intoxi-
cating Liquor Cases, 25 Kan. 768, 37 Am.
Bep. 284; Jac^ob Hoffmann Brewing Co.
Y. McEUigott, 259 Fed. 338; Post Office
Dept. Liquor Bulletin No. 2, June 15,
1917; Black, Intoxicating Liquors, § 2),
and it may not, therefor^ be decided
arbitrarily and without foundation in fact
by any governmental authority, legislative
or executive, to the detriment and oppres-
sion of any individual.
The National Prohibition Act is not
appropriate legislation to enforce the pro-
hibition of intoxicating liquors.
Civil Bights Cases, 109 U. S. 3, 14, 27
L. ed. 835, 840, 3 Sup. Ct. Bep. 18;
United States v. Dewitt, 9 Wall. 41, 44,
19 L. ed. 693, 594; Hodges v. United
States 203 U. S. 1, 61 L. ed. 65, 27 Sup.
Ct. Bep. 6 ; United States v. Beese, 92
U, S. 214, 23 L. ed. 663; James v. Bow-
man, 190 U. S. 127, 47 L. ed. 979, 23
Sup. Ct. Bep. 678; Lackey v. United
States, 53 L.B.A. 660, 46 C. C. A. 189,
107 Fed. 114; Adams v. Tafmer, 244 U.
S. 590, 593, 694, 61 L. ed. 1336, 1342,
1343, L.B.A.1917F, 1163, 37 Sup. Ct.
Rep. 662, Ann. Cas. 1917D, 973; M'Cul-
loch V. Maryland, 4 Wheat. 316, 421, 4
.L. ed. 679, 605.
The destruction of lawfully pre-exist-
ing property is unconstitutional.
Wynehamer v. People, 13 N. Y. 378;
Bartemeyer v. Iowa, 18 Wall. 129, 133,
21 L, ed. 929, 930; Eberle v. Michigan,
232 U. S. 700, 706, 68 L. ed. 803, 806,
34 Sup. Ct. Bep'. 464; Citizens' Sav. & L.
Asso. V. Topeka, 20 Wall. C35, 662, 22
L. ed. 455, 461; Calder v. Bull, 3 Dall.
386, 388, 1 L. ed. 648, 649; Wilkinson v.
Leland, 2 Pet. 627, 667, 7 L. ed. 542, 553 ;
Fletcher v. Peck, 6 Cranch, 87, 135, 3
L. ed. 162, 177.
Messrs. Levi Cooke and George B.
Beneman filed a brief as amici curiaB.
Solicitor General Kinc and Assistant
Attorney General Frierson argued the
oaase and filed a brief for appellees :
The ISth Amendment, establishing a
fundainental rule of law, is an amoidment
within the meaning of article 6.
WiUoughby, Const. § 227.
No state, by any provision of its laws
or its Constitution, can make the ratiflca*
tt4
tion of an amendm^it to the Constitution
of the United States by its legislature
subject to a referendum vote of the peo-
ple. •
Dodge V. Woolsey, 18 How. 331, 348,
16 L. ed. 401, 407; McPherson v. Bladcer,
146 U. S. 1, 36 L. ed. 869, 13 Sup. Ct
Bep. 3.
The Volstead Act, if otherwise consti-
tutional, is effective in the state of New
Jersey without the coneurrence of tiie-
legislature of that state.
32 Federalist; Fox v. Ohio, 5 How.
410, 418, 12 L. ed. 213, 216; Houston v.
Moore, 6 Wheat. 1, 47, 5 L. ed. 19, 30;
Prigg v. Pennsylvania, 16 Pet. 639, 10
L. ed. 1060 ; Gibbons v. Ogden, 9 Wheat.
1, 209, 6 L. ed. 23, 73; Covington & C.
Bridge Co. v. Kentucky, 154 U. S. 204,
38 L. ed. 962, 4 Inters. Com. Bep. 6^,
14 Sup. Ct. Bep. 1087; Passenger Cases,
7 How. 283, 396, 12 L. ed. 702, 749;
United States v. Marigold, 9 How. 560,
13 L. ed. 267.
In order to enforoe, with any degree
of efficiency, the 18th Amendment, a defi-
nition of intoxicating liquor was essen-
tial. The definition -provided by the
Volstead Act includes nothing which Con-
gress could not properly deem neeessary
to enforce the provisions of ^e Amend-
ment, and is therefore not arbitrary.
Purity Extract ft Tonie Co. v. Lynch,
226 U. S. 192, 67 L. ed. 184> 33 Sup. Ct.
Bep. 44; Jacob Buppert y. Caffey, 251
U. S. 264, ante, 260, 40 Sup. Ct. Rep.
141.
The fact that by the passage of the
Volstead Act on October 28, 1919, and
the going into effect of the seoond title of
that act and the 18th Amendment of Jan-
uary 16, 1920, the sale of nonintoxieating
beer containing as much as i of 1 per
centum of alcohol was prohibited by the
War Prohibition Act, does not render title
2 of the Volstead Act invalid, even as to
the sale of such beer lawfully mamnfae-
tured before October 28, 1919.
Mugler V. Kansas, 123 U. S. 623, 31
L. ed. 206, 8 Sup. Ct. Rep. 273; Hamilton
V. Kentucky Distilleries & Warehouse Co.
261 U. S. 146, 156, 157, ante^ 194, 199,
40 Sup. Ct. Bep. 106; Jacob Ruppert t.
Caffey, supra.
Messrs. Wayne B. Wheeler, B. W.
Hicks, £. L. Mdntyre, Walter H. fin-
der, J. A. White, George S. Hobart, and
G. B. Munroe also filed a brief as amiei
euris:
In the interpretation of a constitutioaal
provision, the primary rule of eonatrae-
tion is the same as is applied to statntos,
to give effect to the manitet intent of the
RHODi: ISLAND v. PAT.MffB
people in ita adoptiou, if it is possible
so to do.
12 Cyc. title, Const. Law, 700 ; Juilliard
V. Greenman, UO U. S. 421, 28 L. cd. 304,
4 Sup. Ct. Bep. 122; Jaixolt v. Moberly,
103 U. S. 580, 26 L. ed. 492; Frigg t.
Pennsylvania, 16 Pet. 539, 10 L. ed. 1060;
Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed.
23; Bank of United States v. Deveauz, 5
Crancb, 61^ 3 L. ed. 38.
The purpose of the 181b Amendment
was to accomplish throughout the United
States and all territory under its jurisdic-
tion the complete and absolute prohibi-
tion of the manufacture, sale, transporta-
tion, importation, and cxportatiou of in-
toxicating liquora for beverage purposes.
The duty of enforcing this prohibition
was laid upon Congress (concurrently
with the states), and the imposition of
this duty carri^ with it plenary author-
ity to do all things necessary for its
accomplishment.
United States t. Rhodes, 1 Abb. U. S.
28, Fed. Cas. No. 16,151; Civil Eights
Cases, 109 U. S. 3, 20, 27 L. ed. 835, 842,
3 Sup. Ct. Rep. 18; United States v.
Cruikahank, 1 Woods, 308, Fed. Cas. No.
14,897.
The so-called "definition" of intoxicat-
ing Uquors embodied in the Volstead Act
is a legitimate exercise by Congress of the
power of enforcement conferred upon it
by the 13th Amendment.
Jacob Ruppert v. Caffey, 251 U. S. 264,
ante, 260, 40 Sup, Ct. Rep. 141 ; Purity
Extract & Tonic Co. v. Lynch, 226 U. S.
192, 57 L. ed. 184, 33 Sup. Ct. Rep. 44;
United SUtes v. Rhodes, 1 Abb. U. 8.
38, Fed. Cas. No. 16^51; Interstate Com-
maroe Commission v. Brimaon, 154 U. S.
447, 473, 38 L. ed. 1047, 1056, 4 Liters.
Com. Rep. 545, 14 Sup. Ct Rep. 1126;
Jacobson v. Uassachnsetts, 197 U. S. 11,
49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann.
Caa. 765; Adams v. Milwaukee, 144 Wis.
375, 43 L.R.A.(N.S.) 1066, 129 N. W.
518; IfCoUoch v. Maryland, 4 Wheat.
316, 4 L. ed. 579; United States v. Reese,
92 U. B. 214, 217, 23 L. ed. 563, 564;
State T. Quinneas, 16 B. I. 401, 16 Atl.
910; Marks v. States, 159 Ala. 71, 133
constitutional provision for legislative
authority, rather than to police power.
Hoekett v. State Liquor Licensing
Board, 91 Ohio St. 176, L.R.A.1917B, 7,
110 N. E. 486.
Solicitor Qeneral King and Assistant
Attorney Qeneral -Fiierwa argued the
cause and filed a brief for appellants in
No. 794.
For tbeir oontentions, see supra, pp.
958, 966, 969, 974.
Mr. Kalph W. Jackman argued the
cause, and, with Mr. William H. Austin,
filed a brief for appellee:
Neither Congress nor the several states
have power to define the words "intoxi-
cating liquor" by virtue of any power
granted under tlie 18th Amendment.
Slate V. Piche, 98 Me. 351, 56 All.
1052; Com. v. Bios, 116 Maes. 58; Intosi-
eating-Liquor Cases, 25 Kan. 768, 37 Am.
Rep. 284; 23 Cyc. 57; Marks v. State, 159
Ala. 81, 133 Am. St. Rep. 20, 48 So. 864;
Decker v. State, 39 Tex. Criin. Rep. 20,
44 S. W. 845; Mason v. State, 1 Ga. App.
534, 58 S. E. 139; Board of. Excise v.
Taylor, 21 N. Y. 173; Blata v. Rohrbach,
116 N. Y. 455, 6 L.R.A. 669, 22 N. E.
1049; Black, Intoxicating Liquors, § 2;
United States v. Standard Brewery, 251
U. S. 210, ante, 229, 40 Sup. Ct. Rep.
139; Re La Fayette County ex rel.
Knowlton, 2 Pinney (Wis.) 523; Plumer
V. Marathon County, 46 Wis. 163, 50 N.
W. 416; Hodges v. United States, 203
U. S. 1, 51 L. ed. 65, 27 Sup. Ct. Rep.
6; Civir Rights Cases, 109 U. S. 3, 27
L. ed. 836, 3 Sup. Ct. Rep. 18; United
SUtes v. Harris, 106 U. S. 629, 27 L. ed.
290, 1 Sap. Ct. Rep. 601; United Statea
V. Smith, 5 Wheat. 153, 5 L. ed. 57;
Monongahela Kav. Co. v. United States,
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
Ct. Rep. 190; New York v. Compagnie
Gen^rale Transatlantique, 107 U. S. 59,
63, 27 L. ed. 383, 385, 2 Sup. Ct. Rep.
87; Waterloo Woolen Mfg. Co. v. Shana-
han, 128 N. Y. 357, 14 L.R.A. 481, 28
N. E. 358; San Mateo County v. Cobnm,
1^0 Cal. 634, 63 Pac 78, .621; Clyatt v.
United States, 197 U. S. 207, 49 L. ed.
726, 25 Sup. Ct. Rep. 429; Robertson v.
Baldwin, 165 U. S. 275, 292, 41 L. ed.
715, 721, 17 Sup. Ct. Hep. 326.
Congress has no power under the en-
forcement clause to enlarge the scope of
the express grant of power as contained
in the 18th Amendment so as to include
beverages nonintoxicating in fact. The
.incidental power to enforce a grant can-
not be used to enlarge the grant itself.
Hodges V. United States, 203 U. S. 1,
51 L. ed. 65, 27 Sup. Ct. Rep. 6 ; Kansas
V. Colorado, 206 U. S. 46, 87, 88, 51 L.
ed. 956, 970, 971, 27 Sup. Ct. Rep. 655;
United States v. Lackey, 99 Fed. 963;
Trade-Mark Cases, 100 U. S. 82, 25 L.
ed. 550; Eisner v. Macomber, 252 U. S.
189, ante, 521, 9 A.LJL 1570, 40 Sup.
Ct. Rep. 189; Slaughter-House Cases, 16
Wall. 36, 42, 21 L. ed. 394; Civil Rights
Cases, 109 U. S. 3, 27 L. ed. 836, 3 Sup.
Ct Rep. 18; United States v. Harris, 106
U. S. 629, 27 L. ed. 290, 1 Sup. Ct. Rep.
601; KeUer v. United States, 213 U. S.
138, 149, 53 L. ed. 737, 741, 29 Sup. Ct.
Rep. 470, 16 Ann. Cas. 1066; Karem v.
United States, 61 L.R.A. 437, 57 Q. C. A.
486, 121 Fed. 250; Lackey v. United
ftates, 53 L.R.A. 660, 46 C. C. A. 189, 107
ed. 114; James v. Bowman, 190 U. S.
127, 47 L. ed. 979, 23 Sup. Ct Rep. 678;
United States v. Miller, 107 Fed. 913;
Le Grand v. United States, 12 Fed. 577;
Clyatt V. United States, 197 U. S. 207, 49
L. ed. 726, 25 Sup. Ct Rep. ^9 ; United
States V. Reynolds, 235 U. S. 133, 59 L.
ed. 162, 35 Sup. Ct Rep. 86; Bailey v.
Alabama, 219 Ut S. 219, 55 L. ed. 191,
31 Sup. Ct. Rep. 145; MTuUoch v. Mary-
land, 4 Wheat. 316, 4 L. ed. 579 ; People
V. Brady, 40 Cal. 198, 6 Am. Rep. 604;
Towne v. Eisner, 245 U. S. 418, 62 L. ed.
372, L.R.A.1918D, 254, 38 Sup. Ct. Rep.
158; United States v. Wong Kim Ark,
169 U. S. 649, 42 L. ed. 890, 18 Sup. Ct
Rep. 456; United States v. De Witt, 9
Wall. 41, 19 L. ed. 593; United States
v. Reese, 92 U. S. 214, 23 L. ed. 563;
Lottery Case (Champion v. Ames) 188
U. S. 321, 367, 47 L. ed. 492, 505, 23 Sup.
Ct. Bep. 321, 13 Am. Crim. Rep. 561;
Hare, Am. Const. Law, p. 533; Gibbons
v. Ogden, 9 Wheat 1, 203, 6 L. ed. 23.
71; License Tax Cases, 5 WalL 471, 18
L. ed. 500; Ghema v. State, 16 Ariz.
344, 146 Pao. 494, Ann. Cas. 1916D, 98;
t76
State* V. Weiss, 84 Kan. 165, 36 L.RJL.
(N.S.) 73, 113 Pac. 389; State v. BureiD,
70 Kan. 13, 15 L.R.A.(N.S.) 908, 80 Pac.
994; Hammer v. Dagenhart, 247 U. S.
251, 273, 276, 62 L. ed. 1101, 1106, 1107,
3 A.L.R. 649, 38 Sup. Ct. Rep. 529, Ann.
Cas. 1918E, 724; Re Rahrer, 140 U. S.
545, 554, 35 L. ed. 572, 574, 11 Sup. Ct.
Rep. 865; Re Heff, 197 U. S. 488, 505,
49 L. ed. 848, 855, 25 Sup. Ct Rep. 506;
Cooley, Const. Lim. 7th ed. 158; Thorpe
V. Rutland & B. R. Co. 27 Vt 140, 62
Am. Dec. 625.
Congress and the respective states are
gp*anted concurrent power to enforce the
prohibition. The state of Wisconsin hav-
ing, under the power reserved by and
granted to it by the 18th Amendment,
enacted l^islation to enforce the prohibi-
tion contained in such amendment, and
not having concurred in the congressional
legislation. Congress is without power to
enforce its legislation as to strictly intra-
state transactions, and override the state
enactment.
Covington & C. Bridge Co. v. Ken-
tucky, 154 U. S. 204, 38 L. ed. 962, 4
Inters. Com. Rep. 649, 14 Sup. Ct. Rep.
1087; Konkel v. State, 168 Wis. 335, 170
N. W. 715; Second Employers' Liability
Cases (Mondou v. New York, N. H. &
H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38
L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169,
1 N. C. C. A. 875; New York C. R. Co.
V. Winfield, 244 U. S. 147, 61 L. ed. 1045,
L.R.A.1918C, 439, 37 Sup. Ct. Rep. 546,
Ann. Cas. 1917D, 1139, 13 N. C. C. A.
680 ; State v. Chicago, M. & St. P. R. Co.
136 Wis. 407, 19 L.R.A.(N.8.) 32», 117
N. W. 686; McDermott v. Wisconsin, 228
U. S. 115, 57 L. ed. 754, 47 L.R.A.(N.S.)
984, 33 Sup. Ct. Rep. 431, Ann. Cas.
1915A, 39; Com Products Ref. Co. v.
Eddy, 249 U. 8. 427, 63 L. ed. 689, 39
Sup. Ct Rep. 325; Weigle v. Curtice
Bros. Co. 248 U. S. 285, 63 L. ed. 242,
39 Sup. Ct Rep. 124; Passenger Cases,
7 How. 283, 397, 12 L. ed. 702, 749; State
ex rel. Cook v. Houser, 122 Wis. 550, 100
N. W. 964; McFall v. Com. 2 Met. (Ky.)
394; Postmaster General v. Early, 12
Wheat. 136, 148, 6 L. ed. 577, 582; Davis
V. Planters' Trust Co. 196 Fed. 970;
Phelps V. Mutual Reserve Fund Life
Asso. 61 L.R.A. 717, 50 C. C. A. 339, 112
Fed. 464; Ex parte Siebold, 100 U. S.
371, 389, 25 L. ed. 717, 724; Lowenston
y. Evans, 69 Fed. 911; Roberts v. F^er-
ton, 117 Wis. 222, 65 L.R.A. 95^ 93 N.
W. nil; State v. Bowen, 149 Wk a03>
39 L.R.A.(N.S.) 200, 135 N. W. 4W;
Central R. Co. v. Jersey City, 70 N. J.
L. 81, 56 Atl. 239, 209 U. 8. iTO, 52 L.
ed. 896, 28 Sup. Ct Rep. 592; MeCrei^
1919.
BBODE ISLAND v. PALMER.
384, 385
V. Yixgiiua, 94 U. S. 391, 3M, 2i L. ed.
248; Wedding v. Meyler, 192 U; S. 573,
584, 48 L. ed. 570,575, 66 KR.A. 833, 24
Sup. Ct Bep. 322; Delaware Bridge Co.
V. Trenton City Bridge Co. 13 N. J. Eq.
46; Nico^in v. O'Brien, 172 Ky. 473,
189 S. W. 72^ 248 U. S. U3, 63 L. ed.'
155, 39 Snp. Ct. Rep. 23; Indiana y.
Kentucky, 136 U. S. 479, 34 L. ed. 329,
10 Snp. Ct. Rep. 1051; Re Mattson, 69
Fed. 535; Ex parte Desjeiro, 152 Fed.
1604; Nielsen v. Or^on, 212 U. S. 315,
53 L. ed. 528, 29 Sup. Ct. Rep. 383; Mc-
Qowan v. Columbia River Packers' Asao.
245 U. S. 352, 62 L. ed. 342, 38 Sup. Ct.
Rep. 129; Arnold v. Shields, 5 Dana. 18,
22: Fairbank v. United Stotes, 181 U. 8.
283, 288, 45 L. ed. 862, 865, 21 Sup. Ct
Rep. 648, 15 Am. Crim. Rep. 135.
The 18th Amendment is not a valid
amendment within the meanuig of article
5 of the Constitution, and is in violation
of article 10 of the Amendments.
H'Culloch V. Maryland, 4 Wheat. 316,
403, 4 L. ed. 579> 600.
Messrs. Wayne B. Wheeler, B. W.
Hicks, E. L. Mclntyre, Walter H. Ben-
der, J. A. White, George S. Hobart, and
G. R. Munroe idso filed a brief as amici
cnriiB.
For their contentions, see supra, 974.
Messrs. Oharles A. Houts, John T.
ritMimmim^ and Edward 0. Crow
submitted the cause for appellant in No.
837:
Three fourths of the states have not
ratified the 18th Amendment.
. Chisholm v. Georgia, 2 Dall. 419, 471,
1 L. ed. 440, 462; State ex rel. Davis v.
Hildebrant, 94 Ohio St. 154, 114 N. E.
55, afOrmed in 241 U. S. 565, 60 L. ed.
1172, 36 Sup. Ct. Rep. 708; State ex rel.
MuUen v. HoweU, 107 Wash. 167, 181
Pac. 920; State ex reL Schrader v. PoUey,
26 S. D. 5, 127 N. W. 848; South Caro-
lina V. United States, 199 U. S. 454, 50
L. ed. 266, 26 Sup. Ct Rep. 110, 4 Ann.
Cas. 737.
The 18th Amendment is invalid as an
amendment to the Federal Constitution
because it is of a class of amendment
which could lead to the destruction of
either the United States or the states.
United States v. Cruikshank, 92 U. S.
552, 553, 23 L. ed. 591; Texas v. White,
7 WaU. 700, 725, 19 L. ed. 227, 237.
The 18th Amendment is an attempt
to exercise ordinary l^islative power
through the means of a Federal amend-
ment, .and this cannot be done.
State ex rel. Halliburton v. Roach, 230
Mo. 410, 139 Am. St. R^. 639, 130 S. W.
689: Kamper v. Hawkins, 1 Ya. Cas. 20,
•4 L. ed.
24; SUte v. Ah Chmey, 14 Nev. 79, 33
Am. Rep. 530; Cooley, Const. lim. p. 37;
Hollingsworth v. Virginia, 3 Dall. 378, 1
L. ed. 644.
Title n. of the Act of Congiess of
October 28, 1919, the short title of which
is the ''National Prohibition Act," is not
appropriate enforcement legislation un-
der § 2 of the 18th Amendment.
Hodges V. United States, 203 U. S. 1,
51 L. ed. 65, 27 Sup. Ct. Rep. 6; United
States V. Reese, 92 U. S. 214, 23 L. ed.
563; Civil Rights Cases, 109 U. S. 3,
27 L. ed. 835, 3 Sup. Ct. Rep. 18; James
V. Bowman, 190 U. S. 127, 47 L. ed. 979,
23 Sup. Ct. Rep. 678.
The destruction of the beverages law-
fully pre-existing tiieretofore by means
of the 18th Amendment, and the legisla-
tion enacted to enforce the same by the
Federal govemm^it, are unconstitutional.
Barten^yer v. Iowa, 18 Wall. 129, 21
L. ed. 929; Eberle v. Michigan, 232 U. S.
700, 58 L. ed. 803, 34 Sup. Ct. Rc|>. 464.
Solicitor General King and Assist-
ant Attorney General Friereon sub-
mitted the cause for appellees.
For their contentions, see supra, 958,
966, 969, 974.
Mr. Justice Van Devanter announced
the conclusions of the court :
Power to amend the Constitution was
reserved by article 5, which reads:
^'The Congress, whenever two thirds
of both Houses shall deem it necessary,
shall propose Amendments to this Con-
stitution, or, on the Application of the
Legislatures [385] of two thirds of the
several States, shall call a Convention
for proposing Amendments, which, in
either case, Sail be valid to all Intents
and Purposes, as Part of this Constitu-
tion, when ratified by the Legislatures of
three fourths of the several States, or
by Conventions in three fourths thereof,
as the one or the other Mode of Ratifica-
tion may be proposed by the Congress;
Provided that no Amendment which
may be made prior to the Year One
thousand eight hundred and eight shall
in any Manner affect the first and fourth
Clauses in the Ninth Section of the first
Article; and that no State, without its
Consent, shall be deprived of its equal
Suffrage in the Senate.^
The text of the 18th Amendment, pro-
posed by CJongress in 1917 and pro-
claimed as ratified in 1919 (December 19,
1917, January 29, 1919, 40 Stat, at L.
1050, 1941), is as fdliows:
"Section 1. After one year from the
ratification of this article the manufac-
•S 977
385-387
SUPREaiB COURT OF THE UNITED STATES.
Oct. Tkmm,
ture, sale, or transportation of intoxicat-
ing liquors within, the importation there-
of into, or the exportation thereof from
the United States and all territory sub-
ject to the jurisdiction thereof for bever-
age purposes is hereby prohibited.
^^Sec. 2. The Congress and the several
states shall have concurrent power to en-
force this article by appropriate legis-
lation."
We here are concerned with seven
cases involving the validity of that
Amendment and of certain general fea-
tures of the National Prohibition Law,
known as the Volstead Act, 41 Stat, at
L. 305, chap. 83, Acts 66th Cong., 1st
Sess., which was adopted to enforce the
Amendment. The relief sought in each
case is an injunction against the execu-
tion of that act. Two of the cases — ^Nos.
20 and 30, Original — were brought in
this court, and the others in district
courts. Nos. 696, 752, 788, and 837 are
here on appeals from decrees refusing
injunctions, and No. 794 from a decree
granting an injunction. The cases have
been elaborately argued at the bar and in
[3861 printed briefs; and the arguments
have been attentively considered, with
the result that we reach and announce
the following conclusions on the ques-
tions involved:
1. The adoption by both Houses of
Congress, each by a two-thirds vote, of
a joint resolution proposing an amend-
ment to the Constitution, sufficiently
shows that the proposal was deemed nec-
essary by all who voted for it. An ex-
press declaration that they regarded it
as necessary is not essential. None of
the resolutions whereby prior amend-
ments were proposed contained such a
declaration.
2. The two-thirds vote in each House
which is required in proposing an amend-
ment is a vote of two thirds of the mem-
bers present, — assuming the presence of
a quorum, — and not a vote of two thirds
of the entire membership, present and
absent. Missouri P. R. Co. v. Elansas,
248 U. S. 276, 63 L, ed. 239, 2 ^.L.B.
1589, 39 Sup. Ct. Rep. 93.
3. The referendum provisions of state
^constitutions and statutes cannot be ap-
plied, consistently with the Constitution
of the United States, in the ratification
or rejection of amendments to it. Hawke
V. Smith, 263 U. S, 221, ante, 871, 40 Sup.
Ct. Rep. 495, decided June 1, 1920,
4. The prohibition of the manufacture,
sale, transportation, importation, and
exportation of intoxicating liquors for
beverage purposes, as embodied in the
••78
\ 18th Amendment, is within the power
to amend reserved by article 5 of the
Constitution.
. 5. That Amendment, by lawful pro-
posal and ratification, has become a part
of the Constitution, and must be respect-
ed and given effect the same as other
provisions of that instrument.
6. The first section of the Amendment
— the one embodying the prohibition —
is operative throughout the entire ter-
ritorial limits of the United States, binds
all legislative bodies, courts, public of-
ficers, and individuals within those lim-
its, and of its own force invalidates
every [887] legislative act — ^whether
by Congress, by a state legislature, or by
a territorial assembly — ^whicb authorize
or sanctions what the section prohibits.
7. The second section of the Amend-
ment— the one declaring ''the Congress
and the several statcfs shall have con-
current power to enforce this article by
appropriate legislation" — does not enable
Congress or the several states to defeat
or thwart the prohibition, but only to
enforce it by appropriate means.
8. The words "concurrent power" in
that section do not mean joint power,
or require that legislation thereunder by
Congress, to be effective, shall be ap-
proved or sanctioned by the several
states or any of them; nor do they mean
that the power to enforce is divided be-
tween Congress and the several states
along the lines which separate or dis-
tinguish foreign and interstate commerce
from intrastate affairs.
9. The power confided to Congpres^ by
that section, while not exclusive, is ter-
ritorially coextensive with the prohibi-
tion of the first section, embraces manu-
facture and other intrastate transactions
as well as importation, exportation, and
interstate tralffic, and is in no wise de-
pendent on or affected by action or in-
action on the part of the several states
or any of them.
10. That power may be exerted against
the disposal for beverage purposes of
liquors manufactured before the Amend-
ment became effective, just as it may
be against subsemient manufacture for
those purposes. In either case it is a
constitutional mandate or prohibition
that is being enforced.
IL While recognizing that there are
limits beyond which Congress cannot go
in treating beverages as within its pow-
er of enforcement, we think those limits
are not transcended by the prov&ion of
the Volstead Act (title 11. § 1), where-
in liquors containing as much as 1 of 1
MS 17. S.
19dft.
RHODE ISLAND v. PALMER.
387-390
per cenfc of alcohol by volumey and fit
for use for beverage [388] purposes,
are treated as within that power. Jacob
Ruppert V. Caffey, 251 U. S. 264, ante,
260, 40 Sup. Ct. Rep. 141.
Giving effect to these conclusions, we
dispose of the cases as follows :
In Nos. 29 and 30, Original, the bills
are dismissed.
In No. 794 the decree is reversed.
In Nos. 696, 752, 788, and 837 the
decrees are affirmed.
Mr. Chief Justice White, concurring:
I profoundly regret that in a case of
this magnitude, affecting, as it does, an
amendment to the Constitution dealing
with the powers and duties of the na-
tional and state governments, and inti-
mately concerning the welfare of the
whole people, the court has deemed it
proper to state only ultimate conclusions,
without an exposition of the reasoning
by which they have been reached.
I appreciate the difficulties which a
solution of the cases involves and the
solicitude with which the court has ap-
proached them, but it seems to my mind
that the greater the perplexities the
greater the duty devolving upon me to
express the reasons which have led me
to the conclusion that the Amendment
accomplishes and was intended to accom-
plish the purposes now attributed to it
in the propositions concerning that sub-
ject which the court has just annouhced
and in which I concur. Primarily in
doing this I notiee various contentions
made conoeming the proper construction
of the provisions of the Amendment
which I have been unable to accept, in
order that by contrast they may add
cogency to the statement of the under-
. standing I have of the Amendment.
The Amendment, which is reproduced
in the announcement for the court, con-
tains three numbered paragraphs or sec-
tions, two of which only need be noticed.
The first prohibits "the manufacture^
sale, or transportation of intoxicating
liquors within, the importation thereof
into, [389] or the exportation thereof
from the United States and all territory
subject to the jurisdiction thereof for
beverage purposes." The second is as
follows : "Sec. 2. The Congress and the
several states shall have concurrent pow-
er t6 enforce this article by appropriate
legislation."
1. It is contended that the result of
these provisions is to require concurrent
action of Congress and the states in en«
forcing the prohibition of the first sec-
114 Ij. ed.
tion, and hence that, in the absence of
such concurrent action by Congress and
the states, no enforcing l^slation can
exist, and therefore until this takes place
the prohibition of the first section is a
dead letter. But, in view of the mani-
fest purpose of the first section to apply
and make efficacious the prohibition, and
of the second, to deal with the methods
of carrying out that purpose, I cannot
accept this interpretation, since it would
result dimply in declaring that the pro-
visions of the second section, avowedly
enacted to provide means for carrying
out the first, must be so interpreted as
to practically nullify the first.
2. It is said, conceding that the con-
current power given to Congress and to
the states does not, as a prerequisite,
exact the concurrent action of both, it
nevertheless contemplates the possibility
of action by Congress and by the states,
and makes each action effective; but, as
under the Constitution the authority of
Congress in enforcing the Constitution
is paramount, when state legislation and
congressional action confiict, the state
legislation yields to the action of Con-
gress as controlling. But as the power
of both Congress and the states in this
instance is given by the Constitution in
one and the same provision, I again find
myself unable to accept the view urged
because it ostensibly accepts the consti-
tutional mandate as to the concurrence
of the two powers and proceeds imme-
diately by way of interpretation to de-
stroy it by making one paramount over
the other.
3. The proposition is that the concur-
rent powers conferred [390] upon Con-
gress and the states are not subject to
confiict because their exertion is author-
ized within different areas; that is, by
Congress witKin the field of Federal au-
thority, and by the states within the
sphere of state power; hence leaving the
states free within their jurisdiction to de-
termine separately for themselves what,
within reasonable limits, is an intoxicat-
ing liquor, and to Congress, the same
right within the sphere of its jurisdic-
tion. But the unsoundness of this more
plausible contention seems to me at once
exposed by directing attention to the
fact that in a ease where no state legis-
lation was enacted, there would be no
prohibition; thus again frustrating the
first section by a construction affixed to
the second. It is no answer to suggest
that a regulation by Congress would in
such event be operative in such a state,
since the basis of the distinction upon
IT? 9
390-392
SUPREME COURT OP THE UNITED STATES.
Oct.
which the aigument rests is that the
'concurrent power conferred upon Con-
gress is ecmfined to the area of its juris-
diction, and therefore is not operative
within a state.
I Comprehensively looking at all these
contentions, the confusion and contradic-
tion to which they lead, serve, in my
judgment, to make it certain that it can-
not possibly be that Congress and the
states entered into the great and im-
portant business of amending the Con-
stitution in a matter so vitally concern-
ing all the people solely in order to ren-
der governmental action impossible, or,
if possible, to so define and limit it as
to cause it to be productive of no re-
sults and to frustrate the obvious intent
and general purpose contemplated. It
is true, indeed, that the mere words of
the second section tend to these results,
but if they be read in the light of the
cardinal rule which compels a eonsidera-
tion of the context in view of the situa-
tion and the subject with which the
amendment dealt, and the purpose which
it was intended to accomplish, the con-
fusion will be seen to be only apparent.
In the first place, it is indisputable, as
I have stated, [801] that the first sec-
tion imposes a general prohibition which
it was the purpose to make universally
and uniformly operative and efficacious.
In the second place, as the prohibition
did not define the intoxicating beverages
which it prohibited, in the absence of
anything to the contrary, it clearly, from
the very fact of its adoption, cast upon
Congress the duty, not only of defining
the prohibited beverages, but also of en-
acting such regulations and sanctions as
were essential to make them operative
when defined. In the third place, when
the second section is considered with
these truths in mind it becomes clear
that it simply manifests a like purpose
to adjust, as far as possible, the exercise
of the new powers cast upon Congress
by the Amendment to the dual system
of government existing under the Con-
stitution. In other words, dealing with
the new prohibition created by the (Urn-
stitution, operating throughout the
length and breadth of the United States,
without reference to state lines or the
distinctions between sti^ and Federal
power, and contemplating the exercise
by Congress of the duty cast upon it to
make the prohilntion efficacious, it was
sought by the second section to unite
national and state administrative agen-
cies in giving effect to the Amendment
980
and the legislation of Congress enacted
to make it completely operative
Marie the relation of the text to this
view, since the power which it gives to
state and nation is not to construct or
perfect or cause the Amendment to be
completely operative, but, as already
made completely operative, to enforce
it. Observe also the words of the grant
which confines the concurrent power
given to legislation appropriate to the
purpose of enforcement.
I take it that if the second section of
the article did not exist, no one would
gainsay that the first section, in and
of itself, granted the power and im-
posed the duty upon Congress to legis-
late to the end that, by definition and
sanction, the Amendment would become
fully operative. This being [892] true,
it would follow, if the contentions under
consideration were sustained, that the
second section gave the states the power
to nullify the first section, since a re-
fusal of a state to define and sanction
would again result in no amendment to
be enforced in such refusing state.
Limiting the concurrent power to en-
force given by the second section to the
purposes which I have attributed to it,
that is, to the subjects appropriate to
execute the Amendment as defined and
sanctioned by Congress, I assume that
it will not be denied that the effect of
the* grant of authority was to eonfer
upon both Congress and the states power
to do things which otherwise there would
be no right to do. This being true, I
submit that no reason exists for saying
that a grant of concurrent power to
Congress and the states to* give effeet
to, that is, to carry out or enforce, the
Amendment as defined and sanctioned
by Congress, should be interpreted to
deprive Congress of the power to create,
by definition and sanction, an enforee-
able amendment.
Mr. Justice McBeynolds, concurring:
I do not dissent from- the disposition
of these causes as ordered by the ooart,
but confine my concurrenoe to that. It
is impossible now to say with fair cer-
tainty what construction should be given
to the 18th Amendment. Because of the
bewilderment which it creates, a multi-
tude of questions, will inevitably arise
and demand solution here. In the cir-
cumstances I prefer to ronain free to
consider these questions when they ar-
rive.
SS8 V. S.
1919.
RHODE ISLAND v. PALMER.
392-395
Mr. Jnstiee McKeima, dissenting:
This ease is concerned with the 18th
Amendment of the Constitution of the
United States, its validity and construc-
tion. In order to have it and its scope
in attention, I quote it:
[993] "Section 1. After one year
from the ratification of this article, the
manufacture, sale, or transportation of
intoxicating liquors within, the importa-
tion thereof into, or the exportation
thereof from the United States and all
territory subject to the juris^ction
thereof for beverage purposes is hereby
prohibited.
'^Section 2. The Congress and the sev-
eral states shall have concurrent power
to .enforce this article by appropriate
le^slation/'
The court, in applying it, has dis-
missed certain of the bill^, reversed the
decree in one, and afKrmed the decrees
in four others. I am unable to agree
with the judgment reversing No. 794
and affirming Nos. 752, 696, 788, and
337.
I am, however, at a loss how, or to
what extent, to express the grounds for
this action. The court declares conclu-
sions Qnly, without giving any reasons
for them. The instance may be wise —
establishing a precedent now, hereafter
wisely to be imitated. It will undoubt-
edly decrease the literature of the court
if it does not increase its hicidity. How-
ever, reasons for the conclusions have
been omitted, and my comment upon
them may come from a misunderstand-
ing of them, their present import and
ultimate purpose and force.
There are, however, clear declarations
that the 18th Amendment is part of the
Constitution of the United States, made
80 in observance of the prescribed con-
stitutional procedure, and has become
part of the Constitution of the United
States, to be respected and given effect
like other provisions of that instrument.
With these conclusions I agree.
Conclusions 4, 5, and 6 seem to assert
the undisputed. I neither assent to them
nor dissent from them except so far as I
shall presently express.
Conclusion 7 seems an unnecessary
declaration. It may, however, be con-
sidered as supplementary to some other
declaration. My only comment is that I
know of no [894] intimation in the case
that § 2, in conferring concurrent power
on Congress and the states to enforce the
prohibition of the 1st section, conferred
a power to defeat or obstruct prohibi-
tion. Of course, the power was con-
64 Ii. ed.
ferred as a means to enforce the pro-
hibition, and was made concurrent to
engage the resources and instrumentali-
ties of the nation and the states. The
power was conferred for use, not for
abuse.
Conclusions 8 and 9, as I view them,
are complements of each other, and ex-
press, with a certain verbal detail, the
power of Congress and the states over
the liquor traffic, using the word in its
comprehensive sense as including the
production of liquor, its transportation
within the states, its exportation from
them, and its importation into them.
In a word, give power avef the liquor
business from {nrodueer to consumer, pre-
scribe the quality of tatter's beverage.
Certain determining elements are ex-
pressed. It is said that the words ^'con-
current power'' of § 2 do not mean joint
power in Congress and the states, nor
the approval by the states of congres-
sional legislation, nor its dependency
upon state action or inaction.
I cannot confidently measure the force
of the declarations or the deductions
that are or can be made from them.
They seem to be regarded as sufficient
to impel the conclusion that the Vol-
stead Act is legal legislation and opera-
tive throughout the United States. But
are there no opposing considerations, no
conditions upon its operation t And
what of conflicts, and there are eonfiicts,
and more there may be, between it and
state legislation? The conclusions of the
court do not answer ^e questions and
yet they are submitted for decision ; and
their importance appeals for judgment
upon them. It is to be remembered
states are litigants as well as private
citizens; the former presenting the
rights of the states, the latter seeking
protection against the asserted aggres-
sion of the act in controversy. And
there is opposing state legislation; why
not a decision [395] upon it? Is it on
account of the nature of the actions be-
ing civil and in equity, the proper forum
being a criminal court investigating a
criminal chai^t There should be some
way to avert the necessity or odium of
either.
I cannot pause to enumerate the con-
tentions in the case. Some of them pre-
sent a question of joint action in Con-
gress and the states, either collectively
with all or severally with each. Others
assert spheres of the powers, involving
no collision, it is said, the powers of
Congress and the states being supreme
and exclusive within the spheres of their
39a~3&7
SUPREME OOUBT OF THB UNITED STATES.
Oct. TiftM^
exercise,* — called by counsel 'liistorioal
fields of jurisdiction." I submit again,
they should have consideration and de-
cision.
The government has felt and exhibited
the necessity of such consideration and
decision. It knovs the coiiflicta that
exist or impend. It desires to be able
to meet them, silence them, and bring
the. repose that will come from a dis-
tinct declaration and delimitation of the
power of Congress and the states. The
eourt, however, thinks otherwise, and I
pass to the question in the case. It is
a simple one, it involves the meaning of
a few English words, — in what siense
they shall be taken,— whether in their
ordinary sense, or have put upon them
an unusual sense.
Recurring to the first section of the
Amendment, it will be seen to be, a re-
striction upo^ state and congressional
power, and the deduction from it is that
neither the states nor Congress can en-
act legislation that contravenes ^ts pror
hibition. And th^re is no room for con-
troversy as to its. requirement. Its pro-
hibition of '%toxicating liquors'^ ^'for
beverage, purposes" is ab^olut^. And, as
accessory to that prohibition, is the fur-
ther prohibition of their manufacture,
sale, or transportation within or their
importation into or exportation '^f rom
the United States." Its prohibition^
therefore, is national, and, considered
alone, the means of its enforo^nent
might be such as Congress, the agency of
national power, might [906] prescribe.
But it does not stand alone. Section 2
associates Congress and the states in
power to enforce it Its words are, '^The
Congress and the several stat^ ^ shall
have concurrent power to. enforce tbii^
article by appropriate legislation."
. What, then, is meant by the words
"concurrent power?" Do they mean
united action, or separate and independ-
ent action, and, if the actions differ
{there is no practical problem unless
they differ), shall that of Congress be
supreme ?
The government answers that th^
words mean separate and independent
action, and, in case of conflict^ that of
Congress is supreme, and assei'ts besides,,
that the answer is sustained by histoxieal
and legal precedents. ^ I contest the as-
sertions and oppose to them the com-
mon usage of our language, and the defi-
nitions of our lexicons, [397] general
and legal.* Some of the de^ltions assign
to the words "concurrent power," action
in conjunction, contribution 9f.. effort,
certainly harmony of action, not, an-
tagonism. Opposing laws are not con-
curring laws, and to assert the suprem-
acy of one over the other is to assert
the exclusiveness of one over the othiierv
not their concomitahce. Such is the re-
sult of the government's contention. It
does not. satisfy the definitions, 'or the
requirement of § 2, — "a concurrent pow-
er excludes the idea of a dependent powr
er," — Mr. Justice McLean in the Pas-
senger Cases, 7 How. 283, 399, 12 L. ed.
702, 750.
Other definitions assign to the words,
^^existing or happening at the same
time," "concurring together," '^co^xiat-
ent." These definitions are, as the oth-
iThe following is the contention of the
government which we give to accurately
represent it: "It is true that the word
'ooneurrent' has various meanings, accord-
s' to the connection in which it is used.
It may undoubtedly be used to indicate
that something is to be accomplished b^
two or more persons acting together. It
is equally true that it means, in other con-
nections, a right which two or more per-
sons, acting separately and apart from each
other, may exercise at the same time. It
would be idle, however, to go into all the
meanings which may attach to this word.
In certain connections, it has a well -fixed
and established meaning, which is controlled
in this case."
And again: "It is to be noted that §
2 does not say that legislation ahaU he con-
cturrentf but that concurrent power to legis-
late shall exist. The concurrent power of
the states and Congress to legislate is noth-
ing new. And its meaning has been too
long settled, historically ai^ judicially, to
now admit of question. The term has ac-
quired a fixed meaning through its frequent
•88
use by this court and eminent statesmen
and writers in referring to the eoncorreni
power of Congress and the states to legis-
late."
, And after citing cases, the government
says: ''It will thus be seen that in kgaT
nomenclature the concurrent power of the
states and of Gongress is clearly and un-
mistakably defined. It simply means the
right of each to act with respect to a par-
ticular subject-matter separately and inde-
pendently."
> Definitions of the dictionaries are as fol-
lows: The Century: "Concurrent: . . .
2. Concurring; or acting in conjunction*,
'agreeing in the same act; contributing to
the same event or effect; operating with;
coincident. 3. Conjoined; joint; concomi-
tant; co-ordinate; combined . . . That
which concurs; a joint or contributory
thing." Webster's first definition is the
same as that of the Century. The second
is as follows: "Joint; associate; ccmoomi-
tant; existing or happening at the same-
' time."
25S r. 8.
i9iir.
RHODE ISLAND v. PALMER.
307-309
ers are, inconsistent with the govern-
ment's contention. If coexistence of the
power of legislation is given to Congress
and the state by § 2, it is given to be
coexistently exercised. It is to be i^
membered that the 18th Amendment was
intended to deal with a condition, not a
theory, and one demanding something
more than exhortation and precept. The
habits of a people were to be changed,
large business interests were to be dis-
turbed, and it was considered that the
eh'i^)^ and disturbance could only be
effected by punitive and repressive legis-
lation, and it was naturally thought
th£(t legislation enacted by '^the Congress
and the several states," by its concur-
rence, would better enforce prohibition
and avail for its enforcement the two
great divisions of our governmental sys-
tem, [308] the nation and the states,
with their influences and instrumentali-
ties.
JVom my standpoint, the exposition of
the case is concluded by the defiiiition of
the words of § 2. There are, however,
confirming considerations; and militat-
ing considerations are nrged. Among
the confirming considerations are the
cases of Wedding v. Meyler, 192 U. S.
573, 48 L. ed. 570, 66 L.R.A. 833, 24
Sup. Ct. Rep. 322, and Nelson v. Oregon,
212 U. S. 315, 53 L. ed. 528, 29 Sup. Ct.
Rep. 383, in which "concurrent jurisdic-
tion" was given respectively to Ken-
tucky and Indiana over the Ohio river
by the Virginia compact, and respective-
ly to Washington and Oregon over the
Columbia river by act of Congress. And
it was. decided that it conferred equality
of powers, "legislative,* judicial, and ex-
ecutive," and that neither state could
override the l^islation of the other.
Other courts have given like definitions.
2 Words & Phrases, 1391 et seq.; 1
Bouvier's Law Diet., Rawle's 3d Rev. p.
679. Analogy of the word "concurrent"
in private instruments may also be in-
voked.
Those cases are examples of the ele-
mental rule of construction that, in the
exposition of statutes and constitutions,
every word "is to be expounded in its
plain, obvious, and common sense, unless
the context furnishes some ground to
control, qualify, or enlarge it;" and there
cannot be imposed upon the words "any
recondite meaning or any extraordi-
nary gloss." 1 Story, Const. § 461 ; Lake
County V. Rollins, 130 tJ. S. 662, 32 L.
ed. 1060, 9 Sup. Ct. Rep. 651. And it is
the rule of reason as well as of technical-
ity, that if the words so expounded be
64 li. ed.
"plain and clear, and the sense distinct
and perfect arising on them," interpreta-
tion has nothing to do. TMs can be as-
sorted of § 2. Its words express no
^double sense," and should be accepted
in their single sense. It has not yet been
erected into a legal maxim of constitu-
tional construction, that words were
made to conceal thoughts. Besides, when
we depart from the words, ambiguity
comes. There are as many solutions
[390] as there are minds considering
the section, and out of the confiict, I had
almost said chaos, one despairs of find-
ing an undisputed meaning. It may be
said that the court, realizing this, by a
declaration Of conclusions only, has es-
caped the expression of antithetical
views, and considered it better not to
blaze the trails, though it was believed
that they all led to the same' destination.
If it be conceded, however, that to the
words "concurrent power" may be as-
cribed the meaning for which the govem-
inent contends, it certainly cannot be
asserted that such is their ordinary
meaning, and I might leave § 2, and the
presumptions that support it, to resist
the precedents adduced by the govern-
ment. I go farther, however, and deny
the precedents. The Federalist and cer-
tain cases are cited as such. There is
ready explanation of both, and neither
supports the government's contention.
The dual system of government contem-
plated by the Union encountered con-
troversies, fears, and jealousies that had
to be settled or appeased to achieve
union, and the Federalist, in good and
timely sense, explained to what extent
the "alienation of state sovereignty'^
would be necessary to 'National sover-
eignty," oonstitutCNd by the "consolida^
tion of the states," and the powere that
would be surrendered, and those that
would be retained. And the explanation
composed the controversies and allayed
the fears of the states that their local
powere of government would be dis-
placed by the dominance of a centralized
control. And this court, after union
had been achieved, fulfilled the assur-
ances of the explanation and adopted
its distribution of powers, designating
them as follows: (1) Powers that were
exclusive in the states — reserved to
them; (2) XM>were that were exclusive in
Congress, conferred upon it; (3) powere
that were not exclusive in either, and
hence said to be "concurrent." And it
was decided that, when exereised by
Congress, they were supreme,^"the au-
thority of the states then retires" to in-
98S
40(M02
SUBfi£M£ OOURT OF THE UNITED STATES.
Oct. Tbuc,
action. [400] To understand them, it
must be espeeiaUy observed that their
emphaas was, as the fundamental prin-
ciple of the new government was, tJiat it
had no powers that were not conferred
upon it, and that all other powers were
reserved to the states. And this neces-
sarily must not be absent from our
minds, whether construing old provisions
of the Constitution or amendments to it,
or laws passed under the amendments.
The government nevertheless contends
that the decisions (they need not be
cited) constitute precedents for its con-
struction of § 2 of the 18th Amendment.
In other words, the government contends
(or must so contend, for its reasoning
must bear the test of the generalization)
that it was decided that in all cases
where the powers of Congress are con-
current with those of the states, th^
are supreme as incident to concurrence.
The contention is not tenable; it over-
looks the determining, consideration.
The powers of Coi^iress were not decided
to be supreme because they were concur-
rent with powers in the states, btt be-
cause of their source, their source being
the Constitution of the United States
and the laws made in pursuance of the
Constitution, as against the source of
the powers of the states, their source
being the Constitution and laws of the
states, the Constitution and laws of the
United States being made by article 6
the supreme law of the land, ''any Thing
in the Constitution or Laws of any State
to the Contrary notwithstanding."
M'CuUoch V. Maryland, 4 Wheat. 316,
426, 4 L. ed. 579, 606.
This has example in other powers of
sovereignty that the states and Congress
possess. In M'Culloch v. Maryland, at
pages, 425, 430, Chief Justice Marshall
said that the power of taxation retained
by the states ^was not abridged by the
granting of a similar power to the gov-
ernment of the Union, and that it was
to be concurrently exercised; and these
truths, it was added, had never been de-
nied, and that there was no ''clashing
sovereignty" from incompatibility of
right. And necessarily, a concurrence
[401] of power in the States and Con-
gress excludes the idea of supremacy in
either. Therefore, neither {principle nor
precedent sustains the contention that §
2, by giving concurrent power to Con-
gress and the states, gave Congress su-
preme power over the states. I repeat
the declaration of Mr. Justice McLean:
'*A concurrent power excludes the idea
of a dependent power."
984
It is, however, suggested (not by the
government) that ifCongress is not su-
preme upon the considerations urged
by the government, it is made supreme
by article 6 of the Constitution. The
article is not applicable. It is not a dec-
laration of the supremacy of one pro-
vision of the Constitution or laws of the
United States over another, but of the
supremacy of the Constitution and laws
of the United States over the constitu-
tions and laws of the states. Gibbons v.
Ogden^ 9 Wheat 1, 209, 211, 6 L. ed. 23,
73, 74; 2 Story, Const. 5th ed. §S 1838 at
seq.
The 18th Amendment is part of the
Constitution of the United States, there-
fore, as of hifl^ sanction as article 6.
There seems to be a denial of this, based
on artide 5. That article provides that
the amendments proposed by either of
the ways there caressed "shall be valid
to all intents and purposes as part of
this C!onatitution." Some undefinable
power is attributed to this in connectioo
with article 6, as if article 5 limits in
some way, or defeats an amendment to
the Constitution inconsistent with a pre-
viously existing provision. Of course,
the immediate answer is that an amend-
ment is made to change a previously ex-
isting provision. What other purpose
could an amendment have, and it would
be nullified by the mythical power aJt-
tributed to article 5, either alone or in
conjunction with article 6. A contention
that ascribes such power to those arti-
cles is untenable. The 18th Amendment
is part of the Constitution, and as potent
as any other part of it. Section 2, there-
fore, is a new pr^^vision of power,— pow-
er to the [402] states as well as to Con-
gress^— ^and it is a contradiction to say
that a power constitutionally concurrent
in Congress and the states in some way
becomes constitutionally subordinate in
the states to Congress.
If it be said that the states got no
power over prohibition that they did
not have before, it cannot be said that
it was not preserved to them by the
Amendment, notwithstanding the policy
of prohibition was made national; and
besides, there was a gift of power to
.Congress that it did not have before, —
a gift of a right to be exercised within
state lines, but with the limitation or
condition that the powers of the states
should remain with the states, and be
participated in by Congress only in con-
currence with the states, and thereby
preserved from abuse by either, or exer-
cise to the detriment of probibitioiu
253 V. a.
1019.
RHODE ISLAND v. PALMER.
402-404
There was, however, a power given to
the states, — a power over importations.
This power was subject to concurrence
with Congress and had the same safe-
guards.
This construction of § 2 is enforced by
other considerations. If the supremacy
of Congress had been intended, it would
have been directly declared, as in the
13th, 14th, and 15th Amendments. And
such was the condition when the Amend-
ment left the Senate. The precedent of
preceding amendments was followed;
there was a single declaration of juris*
diction in Congress.
Section 2 was amended in the House
upon recommendation of the Judiciary
Committee, and the provision giving con-
current power to Congress and to the
states was necessarily estimated and in-
tended to be additive of something. The
government's contention makes it prac-
tically an addition of nothing but words,
in fact denuding it of function, making
it a gift of impotence, not one of power,
to be exercised independently of Con-
gress concurrently with Congress, or,
indeed, at all. Of this there can be no
contradiction, for what power is as-
signed to the states to legislate if the
legislation be immediately [403] super-
seded,— indeed, as this case shows, is pos-
sibly forestalled and precluded by the
power exercised in the Volstead Actf
And meaningless is the difference the
government suggests between concurrent
power and concurrent legislation. A
power is given to be exercised, and we are
cast into helpless and groping bewilder-
ment in trying to think of it apart from
its exercise or the effect of its exercise.
The addition to § 2 was a conscious
adaptation of means to the purpose. It
changed th^ relation between the states
and the national government. The lines
of exclusive power in one or the other
were removed, and equality and com-
munity of powers substituted.
There is a suggestion, not made by
the government, though assisting its con-
tention, that § 2 was a gift of equal pow-
er to Congress and to the states; not,
however, to be concurrently exercised,
but to be separately exercised; con-
ferred and to be exercised is the sug-
gestion, to guard against neglect in
either Congress or the states, the in-
activity of the one being supplied by the
activity of the other. But here again
we encounter the word "concurrent" and
its inexorable requirement of coincident
or united action, not alternative or emer-
gent action to safeguard against the
64 Ii# ed.
delinquency of Congress or the states.
If, however, such neglect was to be
apprehended, it is strange that the fram-
ers of § 2, with the whole vocabulary of
the language to draw upon, selected
words that expressed the opposite of
what the f ramers meant. In other words,
expressed concurrent action instead of
substitute action. I cannot assent. I
believe they meant what they said, and
that they must be taken at their, word.
The government, with some conscious-
ness that its contention requires indul-
gence or excuse, but, at any rate, in rec-
ognition of the insufficiency of its con-
tention to satisfy the words of § 2,
makes some concessions to the states.
They are, however, not very tangible to
measurement. They seem to yield a pow-
er of legislation to the states [404] and
a power of jurisdiction to their courts,
but almost at the very instant of con-
cession, the power and jurisdiction are
declared to be without effect.
I am not, therefbre, disposed to re-
gard the concessions seriously. They
confuse, ^%ake not light but darkness
visible." Of what use is a concession of
power to the states to enact laws which
cannot be enforced f Of what use a con-
cession of jurisdiction to the courts of
the states when their judgments cannot
be executed; indeed, the very law upon
which it is exercised may be declared
void in an antagonistic jurisdiction ex-
erted in execution of an antagonistic
power f And equally worthless is the
analogy that the government assays be-
tween the power of the national govern-
ment and the power of the states to
criminally punish violations of their re-
spective sovereignties; as, for instance,
in counterfeiting cases. In such cases
the exercises of sovereignty are not in
antagonifim. Each is inherently pos-
sessed and independently exercised, and
can be enforced no matter what the
other sovereignty may do or abstain
> The government feels the inconsistency
of its concessions and recessions. It asserts
at one instant that the lenslation of the
states may be enforced in their courts, but
in the next Instant asserts that the convic-
tion or acquittal of an offender there will
not bar his prosecution in the Federal
courts for the same act as a violation of the
Federal law. From this situation the gov-
ernment hopes that there will be rescue by
giving the 18th Amendment "such meaning
that a prosecution in the courts of one
government may be held to bar a prosecu-
tion for the same offense in the courts of
the other." The government comsiders,
however, the question is not nqw presented.
985
404-407
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
from doing. On the other hand, under
the government's construction of § 2,
the l^islation of Congress is supreme
and exclusive. Whatever the states may
do is abortive of efifect.
The government, seeking relief from
the perturbation of mind and opinions
produced by departure from the words
of § 2, suggests a modification of its con-
tention that, in case of conflict between
state legislation and congressional [405]
legislation, that of Congress would pre-
vail, by intimating that if state legisla-
tion be more drastic than congressional
legislation, it might prevail, and, in sup-
port of the suggestion, urges that § 1 is a
command to prohibition, and that the
purpose of § 2 is to enforce the com-
mand, and whatever legislation is the
most prohibitive subserves best the com-
mand, displaces less restrictive legisla-
tion, and becomes paramount. If a
state, therefore, should define an intoxi-
cating beverage to be one that has less
than i of 1 per cent of alcohol, it would
supersede the Volstead Act, and a state
might even keep its legislation supreme
by forestalling congressional retaliation
by prohibiting all artificial beverages of
themselves innocuous, the prohibition
being accessory to the main purpose of
power; adducing Purity Extract & Tonic
Co. V. Lynch, 226 U. S. 192, 57 L. .ed. 184,
33 Sup. Ct. Rep. 44; Jacob Ruppert v.
Caffey, 251 U. S. 264, ante, 260, 40
Sup. Ct. Rep. 141. Of course, this con-
'cession of the more drastic legislation
destroys all that is urged for congres-
sional supremacy, for necessarily su-
premacy* cannot be transferred from the
states to Congress, or from Congress to
the states, as the quantity of alcohol
may vary in the prohibited beverage.
Section 2 is not quite so flexible to man-
agement. I may say, however, that one
of the conclusions of the court has lim-
ited the range of retaliations. It recog-
nizes "that there are limits beyond which
Congress cannot go in treating beverages
as within its power of enforcement," and
declares "that those limits are not tran-
scended by the provisions of the Vol-
stead Act." Of course, necessarily, the
same limitations apply to the power of
the states as well.
From these premises the deduction
seems inevitable that there must be unit-
ed action between the states and Con-
gress, or, at any rate, concordant and
harmonious action; and will not such
action promote better the purpose of the •
Amendment — will it not bring to thej
enforcement, of prohibition the power of
the states and the power of [406] Con-
gress, make all the instrumentalities of
the states, its courts and officers, f^en-
cies of the enforcement, as well as the
instrumentalities of the United States,
its courts and officers, agencies of the en-
forcement? Will it not bring to the
states as well, or preserve* to them, a
partial autonomy, satisfying, if you will,
their prejudices, or better say, their
predilections? And it is not too much
to say that our dual system of govern*
ment is biased upon them. And this pre-
dilection for self-government the 18th
Amendment regards and respects, and,
by doing so, sacrifices nothing of the
policy of prohibition.
It is, however, urged that to require
such concurrence is to practically nullify
the prohibition of the Amendment, for
without legislation its prohibition would
be ineffectual, and that it is impossible
to secure. the concurrence of Congress
and the states in legislation. I cannot
assent to the propositions. The convic-
tion of the evils of intemperance — ^the
eager and ardent sentiment that impelled
the Amendment — will impel its execu-
tion through Congress and the states.
It may not be in such legislation as the
Volstead Act, with its i of 1 per cent
of alcohol, or in such legislation as some
of the states have enacted with their
2.75 per cent of alcohol, but it will be
in a law that will be prohibitive of in-
toxicating liquor for beverage purposes.
It may require a little time to achieve,
it may require some adjustments, but
of its ultimate achievement there can be
no doubt. • However, whatever the diffi-
culties of achievement in view of the
requirement of § 2, it may be answered
as this court answered in Wedding v.
Meyler, 192 U. S. 573, 48 L. ed. 570, 66
L.RJL. 833, 24 Sup. Ct. Rep. 322. T^e
conveniences and inconveniences of con-
current power by the Congress and the
states are obvious and do not need to be
stated. We have nothing to do with
them when the lawmaking power has
spoken.
I am, I think, therefore, justified in
my dissent. I am alone in the grounds
of it, but in the relief of the solitude of
my position, I invoke the coincidence of
my views with [407] those entertained
by the minority membership of the Judi-
ciary Committee of the House of Repre-
sentatives, and expressed in its report
upon the Volstead Act.
Mr. Justice Olarke, dissenting:
I concur in the first seven paragraphs
and in the tenth paragraph of the an-
S5S U. 8.
1919.
RHODE ISLAND v. PALMER.
407-409
nounced ''CondoBions'' of the court, but
I dissent from the remaining ^hree para-
graphs.
The eighth, ninth, and eleventh para-
^aphSy taken together, in effect declare
the Volstead Act of October 28, 1919
[41 Stat, at L. 305, chap. 83], to be the
supreme law of the land, — paramount to
any gtate law with which it may conflict
in any respect.
Suck a result, in my judgment, can be
anived at only by reading out of the
^d section of the 18th Amendment to
the Consititution the word '^concurrent,''
aa it is used in the grant to Congress
4ind the several states of ''concurrent
power to enforce this article by appro-
priate legislation." This important
word, which the record of Congress
^hows was introduced, with utmost de-
liberation, to give accurate expression
to a very definite purpose, can be read
out of the Constitution only by violating
the sound and wise rule of constitutional
•construction early announced and often
4ipplied by this court, — that, in expound-
ing the Constitution of the United
States, no word in it can be rejected as
superfluous or unmeaning, but effect
must be given to every word, to the ex-
tent that this is reasonably possible.
This rule was flrst announced in 1824
in Gibbons v. Ogden, 9 Wheat. 1, 6 L.
'Cd. 23; it was applied with emphasis in
1840 in Holmes v. Jennison, 14 Pet. 540,
570, 10 L. ed. 579, 594; and in the re-
cent ijase of Knowlton v. Moore, 178
U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep.
747, it is referred to as an elementary
<7anon of constitutional constructipn.
The authoritative dictionaries, .genetal
smd law, and the decided cases, agree,
that ^'concurrent" means "joint and
equal authority," ''running together,
having the same [408] authority," and
therefore the grant of concurrent power
to the Congress and the states should
give to each equal — the same — authority
to enforce the Amendment by appropri-
ate legislation. But the conclusions of
the court from which I dissent, by ren-
dering the Volstead Act of Congress
paramount to state laws, necessarily de-
prive the states of all power to enact
legislation in conflict with it, and con-
strue the Amendment precisdy as if the
word "concurrent" were not in it. The
power of Congress is rendered as su-
preme as if the grant to enforce the
Amendment had been to it alone, as it
is in the 13th, 14th, and 15th Amend-
ments, and as it was in one proposed
form of the 18th Amendment which was
rejected by Congress (Cong. Rec, July
<64 Ij. ed.
30, 1917, p. 5548, and December 17, 1917,
p. 469).
Such a construction should net be
given the Amendment if it can reason-
ably be avoided, as it very clearly may ■.
be, I think, with a resultant giving of a
large and beneficent effect to the grant,
as it is written. Qiving to the word
"concurrent" its usual and authoritative
meaning would result in congressional
legislation under this grant of power
being effective within the boundaries of
any state only when concurred in by ac-
tion of Congress and of such state,
which, however, could readily be acc<Hn-
plished by the approval by either of the
legislation of the other, or by the adop^
tion of identical legislation by both.
Such legislation would be concurrent in
fact and in law, and could be enforced
by the courts and officers of either the
nation or the state, thereby insuring a
more general and satisfactory observ-
ance of it than could possibly be ob-
tained by the Federal authorities alone.
It would, to a great extent, relieve Con-
gress of the burden, and the general
government of the odium to be derived
from the antagonism which would cer-.
tainly spring from enforcing within
states Federal laws which* must touch
the daily life of the people very inti-
mately and often very irritatingly.
[400] Such co-operation in legisla-
tion is not unfamiliar to our Constitu-
tion inr in our practical eiqperience.
By § 10 of art. 1 of the Constitution
of the United States the states are de-
prived of power to do many things with-
out the consent of Congress, and that
consent has frequently been given; es-
pecially to contracts and agreements
between states, which, Without it, woiild
be unconstitutional and void. The Wil-
son Act of August 8, 1890 [26 Stat, at
L. 915, chap. 728, Comp. Stat. § 8738,
4 Fed. Stat. Anno. 2d ed. p. 685], the
Webb-Kenyon Act of March. 1, 1913 [37
Stat, at L. 699, chap. 90, Comp. Stat. %
8739, 4 Fed. Stat. Anno. 2d ed. p. 593],
and the Reed Amendment of March 3,
1917 [39 Stat, at U 1069, chap. 162,
Comp. Stat. § 8739a, Fed. Stat. Anno.
Supp. 1918, p. 394], are familiar ex-
amples of co-operative legislation on the
subject of intoxicating liquors. Other
instances could readily be supplied.
When to this we add that the Volstead
Act is obviously in very large part a
compilation from the prohibition codes
of various states, and is supposed to
contain what is best in each of them,
there is every reason to believe that, if
concurrent legislation were insisted up-
•97
40U-411
. SUPREME COURT OF THE UNITED STATES.
Oct. Tum,
on, the act would be promptly approved
by the legislatures of many of the states,
and would thereby become the conour-
rent law of the state and nation through-
out a large part of the Union.
Under this construction, which I think
should be given the Amendment, there
would be large scope also for its opera-
tion even in states which might refuse
to concur in congressional legislation for
its enforcement. In my judgment the
law in such a state would be as if no
special grant of concurrent power for
the enforcement of the first section had
be^ made in the second section, but,
nevertheless, the first section, prohibit-
ing the manufacture, sale, transporta-
tion, importation, or exportation, of in-
toxicating liquors for beverage purposes,
would be the supreme law of the land
within the nonconouning states, and
they would be powerless to license, tax, or
otherwise recognize as lawful anything
violating that section, so that any state
law in form attempting such recogni-
tion would be unconstitutional and void.
Congress would have full power under
the interstate commerce clause, [410]
and it would be its duty, to prevent the
movement of such liquor for beverage
purposes into ov out of such a state,
and the plenary police power over the
subject, so firmly established in the
states before the 18th Amendment was
adopted, would continue* for use in the
restricted field which the first section
of the Amendment leaves unoocuiHed>—
and the presumption must always be inr
dulged that a state will observe, and not
defy, the requirements of the national
Constitution.
Doubtless such a construction as I am
proposiag would not satisfy the views of
extrem*' ^voeates of prohibition or of
its opponents; but| in my judgment, it
is required by the salutajy rule of con-
stitutional construction referred to, the
importance of which cannot be over-
stated. It is intended to prevent courts
from rewriting the Constitution in a
form which judges think it should have
been written, instead of giving effect
to the language actually used in it, and
very certainly departures from it will
return to plague the authors of them.
It does not require the eye of a seer to
see contention at the bar of this court
against liberal, paramount, congression-
al definition of intoxicating liquors as
strenuous and determined as that which
we have witnessed over the strict defini-
tion of the Volstead Act.
999
With respect to the Hth conehi^on
of the court, it is enough to say that it
approves as valid a definition of liquor
as intoxicating which is expressly ad-
mitted not to be intoxicating in each of
the cases in which it is considered* This
is deemed warranted, I suppose, as leg-
islation appropriate to the enforeemest
of the first section, and precedent is
found for it in prohibition legislation by
states. But I cannot agree that the
prohibition of the manufacture, sale,
etc., of intoxicating liquors in the first
section of the 18th Amendment ffV9»
that plenary power over the subject
which the legislatures of the states de-
rive from the people, or which may be
derived from the war powers [411] of
the Constitution. Believing, as I do,
that the scope of the first section can- '
not constitutionally be enlarged by^
the language contained in the second
section, I dissent from this conclusion
of the couii;.
In the Slaughter House and other
cases, this court was urged to give a
construction to the 14th Amendment
which would have radically changed the
whole constitutional theory of the re-
lations of our state and Federal govern-
ments by transferring to the general
government that police power, through
the exercise of which the people of the
various states theretofore r^^olated
their local affairs in conformity with the
widely differing standards of life, of
conduct, and of duty which must neces-
sarily prevail in a country of so great
extmit as ours, with its varieties of
climate, of indastry, and of haifeits of tba
people* But this courts resisting the
pressure of the passing hoor> maintainad
the integrity of state control oter leeal
affairs to the extent that it had not
been deliberately and clearly sarrea-
dered to the general government, in a
number of decisions which came to com-
mand the confidence even of the genera-
tion active when they were rendered,
and which have been regarded by our
succeeding generation as sound and wise
and hi^y fortunate for our country.
The cases now before us seem to me
to again present questions of like charac-
ter tO| and of not less importance than,
those which were presented in thoee
great cases, and I regret profoundly
that I cannot share in the disposition
which the majority of my associates
think should be made of them.
S53 C. 8.
1919.
ROYSTER QVASO 00. t. VIRGINIA.
412
C412] F. S. ROYSTER GUANO COM-
PANY, Plff. in Err.,
T.
COMMONWEALTH OF VIRGINIA.
(See S. C. Reporter's ed. 412-420.)
ConsUtational laiv — equal protection
of the laws — classification — income
tax — discrimination.
The exemption of domestic corpora-
tions doing business outside the state, but
none within the state, except the holding of
stockholders* meetings, from the payment
of any income tax, while domestic corpora-
tions doing business both within and with*
out the state are required to pay a tax
OR income derived from their business
traB«acted outside the state as well as up-
on the income derived from that done with-
in the state, which is the result of Va.
Laws 1916, chap. 472, read in connection
with Laws 1916, chap. 495, amounts to an
arbitrary discrimination forbidden 'by the
^ual protection of the laws clause of the
14th Amendment to the Federal Constitu-
tion.
I For other cases, see Constitutional Law, IV.
a. 4, in Digest Sup. Ct. 1908.]
[No. 166.]
Argued March 10 and 22, 1920. Decided
Jime 7, 1020.
IN ERROR to the Supreme Court of
Appeals of the Commonwealth of Vir-
ginia to review a judgment which in
effect affirmed a judgment of the Cor-
poration Court of the City of Norfolk,
in that state, sustaining an income tax.
Reversed and remanded for further pro-
ceedinga.
The facts are stated in the opinion.
Note.---As to personal property hav-
ing a situs for taxation elsewhere, as
subject of taxation in the state of the
owner's domicil — see notes to Com. v.
West India Oil Ref. Co. 36 L.R.A.(N.S.)
295; New England Mut. L. Ins. Co. v.
Board of Assessors, 26 LJt.A.(N.S.)
1120; Johnson County v. Hewitt, 14
L.R.A.(K.S.) 493; Monongahela River
Consol, Coal & Coke Co. v. Board of
Assessors, 2 L.R.A.(N.S.) 637; and
Fidelity & C. Trust Co. v. Louisville,
L.R.A.1918C, 124.
As to constitutionality of income tax
— see notes to State ex rel. Bolens v.
Prear, L.R.A.1915B, 569; and Alder-
man V. Wells, 27 L.R.A.(N.S.) 864.
As to the validity and construction
of statutes taxing the income of a res-
ident derived from foreign trade or in-
vestments— see note to Maguire v.
Trefry, ante, 739,
64 L. ed.
Mr. Oadwaflader J. CtoUins ai^ed
the cause and filed a brief for plaintiff
in error.
Mr. J. D. Hank, Jr., argued the
cause, and, with Mr. John R. Saunders,
Attorney General qi Virginia, filed a
brief for defendant in error:
The tax in question does not deny
the plaintiff the equal protection of the
laws.
BelFs Gap R. Co. v. Pennsylvania,
134 U. S. 232, 237, 33 L. ed. 892, 895,
10 Sup. Ct. Rep. 533; Michigan C. R.
Co. V. Powers. 201 U. S. 245, 293, 50
L. ed. 744, 761, 26 Sup. Ct. Rep. 459;
Northwestern Mut. L. Ins. Co. v. Wis-
consin, 247 U. S. 132, 62 L. ed. 1025,
38 Sup. Ct. Rep. 444; Keeney v. New
York, 222 U. S. 525, 536, 56 L. ed. 299,
305, 38 L.R.A.(N.S.) 1139, 32 Sup. Ct.
Rep. 105; Citizens' Teleph. Co. v. Ful-
ler, 229 U. S. 322, -57 L. ed. 1206, 33
Sup. Ct. Rep. 833; Northwestern Mut.
L. Ins Co. V. State, 163 Wis. 491, 155
N. W. 609, 158 N. W. 328; Pembina
Consol. Silver Min. & Mill. Co. v. Penn-
sylvania, 125 U. S. 181, 31 L. ed. 650,
2 Inters. Com. Rep. 24, 8 Sup. Ct. Rep.
737; Northwestern Mut. L. Ins. Co. v.
Wisconsin, 247 U. S. 132, 137, 62 L. ed.
1025, 1036, 38 Sup. Ct. Rep. 444 ; Kan-
sas City, M. & B. R. Co. v. Stiles, 242
U. S. Ill, 118, 61 L. ed. 176, 37 Sup.
Ct. Bep. 58; Pacific Exp. Co. v. Seibert,
142 U. S. 339, 35 L. ed. 1035, 3 Inters.
Com. Rep. 810, 12 Sup. Ct. Rep. 250;
New York v. Roberts, 171 U. S. 658, 43
L. ed. 323, 19 Sup. Ct. Rep. 58; Mc-
Lean V. Arkansas, 211 U. S. 539, 53
L. ed. 316, 29 Sup. Ct. Rep. 206; King
V. Mullins, 171 U. S. 404, 43 L. ed. 214,
18 Sup. Ct. Rep. 925: Middleton v.
Texas Power & Light Co. 249 U. S. 152,
63 L. ed. 527, 39 Sup. Ct. Rep. 227;
Magoun v. Illinois Trust & Sav. Bank,
170 U. S. 283, 42 L. ed. 1037, 18 Sup.
Ct. Rep. 594; Home Ins. Co. v. New
York, 134 U. S. 594, 606, 607, 33 L. ed.
1025, 1031, 1032, 10 Sup. Ct. Rep. 593.
Mr. Justice Pitney delivered the opin-
ion of the court:
Plaintiff in error is a corporation
created by and existing under the laws
of Virginia, engaged in the business of
manufacturing and selling commercial
fertilizers. It operates a manufacturing
plant in the county of Norfolk, in that
state, and several plants in other states.
From the operation of its plant in Vir-
ginia it made net profits during the
year ending December 31, 1916, amount-
ing in round figures to $260,000; and
969
385-387
SUPREME COURT OF THE UNITED STATES.
Oct.
ture, sale, or transportation of intoxicat-
ing liquorB within, the importation there-
of into, or the exportation thereof from
the United States and all territory sub-
ject to the jurisdiction thereof for bever-
age purposes is hereby prohibited.
"Sec. 2. The Congress and the several
states shall have concurrent power to en-
force this article by appropriate legis-
lation."
We here are concerned with seven
cases involving the validity of that
Amendment and of certain general fea-
tures of the National Prohibition Law,
known as the Volstead Act, 41 Stat, at
L. 305; chap. 83, Acts 66th Cong., 1st
Sess., which was adopted to enforce the
Amendment. The relief sought in each
case is an injunction against the execu-
tion of that act. Two of the cases — ^Nos.
29 and 30, Original — ^were brought in
this court, and the others in district
courts. Nos. 696, 752, 788, and 837 are
here on appeals from decrees refusing
injunctions, and No. 794 from a decree
granting an injunction. The cases have
been elaborately argued at the bar and in
[8861 printed briefs; and the arguments
have been attentively considered, with
the result that we reach and announce
the following conclusions on the ques-
tions involved:
1. The adoption by both Houses of
Congress, each by a two-thirds vote, of
a joint resolution proposing an amend-
ment to the Constitution, sufficiently
shows that the proposal was deemed nec-
essary by all who voted for it. An ex-
press declaration that they regarded it
as necessary is not essential. None of
the resolutions whereby prior amend-
ments were proposed contained such a
declaration.
2. The two*thirds vote in each House
which is required in proposing an amend-
ment is a vote of two thirds of the mem-
bers present, — assuming the presence of
a quorum, — and nqt a vote of two thirds
of the entire membership, present and
absent. Missouri P. R. Co. v. Kansas,
248 U. S. 276, 63 L. ed. 239, 2 ^.L.B.
1589, 39 Sup. Ct. Rep. 93.
3. The referendum provisions of state
^constitutions and statutes cannot be ap-
plied, consistently with the Constitution
of the United States, in the ratification
or rejection of amendments to it. Hawke
V. Smith, 253 U. S. 221, ante, 871, 40 Sup.
Ct. Rep. 495, decided June 1, 1920.
4. The prohibition of the manufacture,
sale, transportation, importation, and
exportation of intoxicating liquors for
beverage purposes, as embodied in the
-978
1 18th Ameiidment, is within the power
to amend reserved by article 5 of the
Constitution.
. 5. That Amendment, by lawful pro-
posal and ratification, has become a part
of the Constitution, and must be respeet-
*ed and given effect the same as other
provisions of that instrument.
6. The first section of the Amendment
— the one embodying the prohibition —
is operative throughout the entire ter-
ritorial limits of the United States, binds
all legislative bodies, courts, public of-
ficers, and individuals within those lim-
its, and of its own force invalidates
every [887] legislative act — whether
by Congress, by a state legislature, or by
a territorial assembly — which authorizes
or sanctions what the section prohibits.
7. The second section of the Amend-
ment— the one declaring ''the Congress
and the several states shall have con-
current power to enforce this article by
appropriate legislation'^ — does not enable
Congress or the several states to defeat
or thwart the prohibition, but only to
enforce it by appropriate means.
8. The words "concurr^it power'' in
that section do not mean joint power,
or require that legislation thereunder by
Congress, to be effective, shall be ap-
proved or sanctioned by the several
states or any of them; nor do they mean
that the power to enforce is divided be-
tween Congress and the several states
along the lines which separate or dis-
tinguish foreign and interstate conuneree
from intrastate affairs.
9. The power confided to Congress^ by
that section, while not exclusive, is ter-
ritorially coextensive with the prohibi-
tion of the first section, embraces manu-
facture and other intrastate transactions
as well as importation, exportation, and
interstate traffic, and is in no wise de-
pendent on or affected by action or in-
action on the part of the several states
or any of them.
10. That power may be exerted against
the disposal for beverage purposes of
liquors manufactured before the Amend-
ment became effective, just as it may
be against subseqjuent manufacture f6r
those purposes. In either case it is a
constitutional mandate or prohibition
that is being enforced.
IL While recognizing that there are
limits beyond which Congress cannot go
in treating beverages as within its pow-
er of enforcement, we think those limits
are not transcended by the provision of
the Volstead Act (title 11. § 1)| where-
in liquors containing as much as i of 1
19d0.
RHODE ISLAND v. PALMER.
387-390
per cent of alcohol by volnme, and fit
for use for beverage [388] purposes,
are treated as within that power. Jacob
Ruppert V. Caffey, 251 U. S. 2G4, ante,
260, 40 Sup. Ct. Rep. 141.
Giving effect to these conclusions, we
dispose of the cases as follows :
In Nos. 29 and 30, Original, the bills
are dismissed.
In No. 794 the decree is reversed.
In Nos. 696, 752, 788, and 837 the
decrees are affirmed.
Mr. Chief Justice White, concurring:
I profoundly regret that in a case of
this magnitude, affecting, as it does, an
amendment to the Constitution' dealing
with the powers and duties of the na-
tional and state governments, and inti-
mately concerning the welfare of the
whole people, the court has deemed it
proper to state only ultimate conclusions,
without an exposition of the reasoning
by which they have been reached.
I appreciate the difficulties which a
solution of the cases involves and the
solicitude with which the court has ap-
proached them, but it seems to my mind
that the greater the perplexities the
^^reater the duty devolving upon me to
express the reasons which have led me
to the conclusion that the Amendment
accomplishes and was intended to accom-
plish the purposes now attributed to it
in the propositions concerning that sub-
ject which the court has just annouhced
and in which I concur. Primarily in
doing this I notice various contentions
made concerning the proper construction
of the provisions of the Amendment
which I have been unable to accept, in
order that by contrast they may add
cogency to the statement of the under-
standing I have of the Amendment.
The Amendment, which is reproduced
in the announcement for the court, con-
tains three numbered paragraphs or sec-
tions, two of which only need be noticed.
The first prohibits ^'the manufacture,
sale, or transportation of intoxicating
liquors within, the importation thereof
into, [380] or the exportation thereof
from the United States and all territory
subject to the jurisdiction thereof for
beverage purposes.'* The second is as
follows : "Sec. 2. The Congress and the
several states shall have concurrent pow-
er td enforce this article by appropriate
legislation.''
1. li is contended that the result of
these provisions is to require concurrent
action of Congress and the states in en-
forcing the prohibition of the first sec-
• 4 li. ed.
tion, and hence that, in the absence of
such concurrent action by Congress and
the states, no enforcing legislation can
exist, and therefore until this takes place
the prohibition of the first section is a
dead letter. But, in view of the mani-
fest purpose of the first section to apply
and make efficacious the prohibition, and
of the second, to deal with the methods
of carr>'ing out that purpose, I cannot
accept this interpretation, since it would
result simply in declaring that the pro-
visions of the second section, avowedly
enacted to provide means for carrying
out the first, must be so interpreted as
to practically nullify the first.
2. It is said, conceding that the con-
current power given to Congress and to
the states does not, as a prerequisite,
exact the concurrent action of both, it
nevertheless oontemplates the possibility
of action by Congress and by the states,
and makes each action effective; but, as
under the Constitution the authority of
Congress in enforcing the Constitution
is paramount, when state legislation and
congressional action conflict, the state
legislation yields to the action of Con-
gress as controlling. But as the power
of both Congress and the states in this
instance is given by the Constitution in
one and the same provision, I again find
myself unable to accept the view lu^d
because it ostensibly accepts the consti-
tutional mandate as to the concurrence
of the two powers and proceeds imme-
diately by way of interpretation to de-
stroy it by making one paramount over
the other.
3. The proposition is that the concur-
rent powers conferred [390] upon Con-
gress and the states are not subject to
conflict because their exertion is author-
ized within different areas; that is, by
Congress wittiin the field of Federal au-
thority, and by the states within the
sphere of state power; hence leaving the
states free within their jurisdiction to de-
termine separately fur themselves what,
within reasonable limits, is an intoxicat-
ing liquor, and to Congress, the same
right within the sphere of its jurisdic-
tion. But the unsoundness of this more
plausible contrition seems to me at once
exposed by directing attention to the
fact that in a ease where no state legis-
lation was enacted, there would be no
prohibition; thus again frustrating the
first section by a construction afi&xed to
the second. It is no answer to suggest
that a regulation by Congress would in
such event be operative in such a state,
since the basis of the distinction upon
1
385-387
SUPREME COURT OF THE UNITED STATES.
Oct.
ture, sale, or transportation of intoxieat- \
ing liquors within, the importation there-
of into, or the exportation thereof from
the United States and all territory sub-
ject to the jurisdiction thereof for bever-
age purposes is hereby prohibited.
"Sec. 2. The Congress and the several
states shall have concurrent power to en-
force this article by appropriate legis-
lation."
We here are concerned with seven
cases involving the validity of that
Amendment and of certain general fea-
tures of the National Prohibition Law,
known as the Volstead Act, 41 Stat, at
L. 305, chap. 83, Acts 66th Cong., 1st
Sess., which was adopted to enforce the
Amendment. The relief sought in each
case is an injunction against the execu-
tion of that act. Two of the cases — ^Nos.
29 and 30, Original — were brought in
this court, and the others in district
courts. Nos. 696, 752, 788, and 837 are
here on appeals from decrees refusing
injunctions, and No. 794 from a decree
granting an injunction. The cases have
been elaborately argued at the bar and in
[8861 printed briefs; and the arguments
have been attentively considered, with
the result that we reach and announce
the following condusions on the ques-
tions involved:
1. The adoption by both Houses of
Congress, each by a two-thirds vote, of
a joint resolution proposing an amend-
ment to the Constitution, sufficiently
shows that the proposal was deemed nec-
essary by all who voted for it. An ex-
press declaration that they regarded it
as necessary is not essential. None of
the resolutions whereby prior amend-
ments were proposed contained such a
declaration.
2. The two*thirds vote in each House
which is required in proposing an amend-
ment is a vote of two thirds of the mem-
bers present, — assuming the presence of
a quorum, — and not a vote of two thirds
of the entire membership, present and
absent. Missouri P. R. Co. v. Kansas,
248 U. S. 276, 63 L. ed. 239, 2 .^.LJl.
1589, 39 Sup. Ct. Rep. 93.
3. The referendum provisions of state
constitutions and statutes cannot be ap-
plied, consistently with the Constitution
of the United States, in the ratification
or rejection of amendments to it. Hawke
V. Smith, 253 U. S. 221, ante, 871, 40 Sup.
Ct. Rep. 495, decided June 1, 1920.
4. The prohibition of the manufacture,
sale, transportation, importation, and
exportation of intoxicating liquors for
beverage purposes, as embodied in the
-978
18th Amendment, is within the power
to amend reserved by article 5 of the
Constitution.
5. That Amendment, by lawful pro-
posal and ratification, has become a part
of the Constitution, and must be respeet-
ed and given effect the same as other
provisions of that instrument.
6. The first section of the Amendment
— the one embodying the prohibition —
is operative throughout the entire ter-
ritorial limits of the United States, binds
all legislative bodies, courts, public of-
ficers, and individuals within those lim-
its, and of its own force invalidates
every [887] legislative act — whether
by Congress, by a state legislature, or by
a territorial assembly — which authorisea
or sanctions what the section prohibits.
7. The second section of the Amend-
ment— ^the one declaring ''the Congress
and the several states shall have con-
current power to enforce this article by
appropriate legislation'' — does not enable
Congress or the several states to defeat
or thwart the prohibition, but only to
enforce it by appropriate means.
8. The words "concurrent power" in
that section do not mean joint power,
or require that legislation thereunder by
Congress, to be efi!ective, shall be ap-
proved or sanctioned by the seveial
states or any of them; nor do they mean
that the power to enforce is divided be-
tween Congress and the several states
along the lines which separate or dis-
tinguish foreign and interstate commerce
from intrastate affairs.
9. The power confided to Congress by
that section, while not exclusive, is ter-
ritorially coextensive with the prohibi-
tion of the first section, embraces manu-
facture and other intrastate transactions
as well as importation, exportation, and
interstate traffic, and is in no wise de-
pendent on or affected by action or in-
action on the part of the several states
or any of them.
10. That power may be exerted against
the disposal for beverage purposes of
liquors manufactured before the Amend-
ment became effective, just as it may
be against subsequent manufacture for
those purposes. In either case it is a
constitutional mandate or prohibition
that is being enforced. , .
IL While recognizing that there are
limits beyond which Congress cannot go
in treating beverages as within its pow-
er of enforcement, we think those lunita
are not transcended by the provi^on of
the Volstead Act (title 11. § 1), where-
in liquors containing as much as i of 1
idda
RHODE ISIxAND v. PALMER.
387-390
per eeai of alcohol by volume, and fit
for use for beverage [388] purposes,
are treated as within that power. Jacob
Ruppert V. Caffey, 251 U. S. 264, ante,
260, 40 Sup. Ct. Rep. 141.
Giving effect to these conclusions, we
dispose of the cases as follows :
In Nos. 29 and 30, Original, the bills
are dismissed.
In No. 794 the decree is reversed.
In Nos. 696, 752, 788, and 837 the
decrees are affirmed.
Mr. Chief Justice White, concurring:
I profoundly regret that in a case of
this magnitude, affecting, as it does, an
amendment to the Constitution dealing
with the powers and duties of the na-
tional and state governments, and inti-
mately concerning the welfare of the
whole people, the court has deemed it
proper to state only ultimate conclusions,
without an exposition of the reasoning
by which they have been reached.
I appreciate the difficulties which a
solution of the cases involves and the
solicitude with which the court has ap-
proached them, but it seems to my mind
that the greater the perplexities the
€^ater the duty devolving upon me to
express the reasons which have led me
to the conclusion that the Amendment
accomplishes and was intended to accom-
plish the purposes now attributed to it
in the propositions concerning that sub-
ject which the court has just annouhced
and in which I concur. Primarily in
doing this I notice various contentions
made concerning the proper construction
of the provisions of the Amendment
which I have been unable to accept, in
order that by contrast they may add
cogency to the statement of the under-
standing I have of the Amendment.
The Amendment, which is reproduced
in the announcement for the court, con-
tains three numbered paragraphs or sec-
tions, two of which only need be noticed.
The first prohibits ''the manufacture,
sale, or transportation of intoxicating
liquors within, the importation thereof
into, [380] or the exportation thereof
froin the United States and all territory
subject to the jurisdiction thereof for
beverage purposes." The second is as
follows ; "Sec. 2. The Congress and the
several states shall have concurrent pow-
er tb enforce this article by appropriate
legislation.'^
1. ti is contended that the result of
these provisions is to require concurrent
action of Congress and the states in en*
forcing the prohibition of the first sec-
64 li. ed.
tion, and hence that, in the absence of
such concurrent action by Congress and
the states, no enforcing l^slation can
exist, and therefore until this tak^s place
the prohibition of the first section is a
dead letter. But, in view of the mani-
fest purpose of the first section to apply
and make efficacious the prohibition, and
of the second, to deal with the methods
of carrying out that purpose, I cannot
accept this interpretation, since it would
result simply in declaring that the pro-
visions of the second section, avowedly
enacted to provide means for carr>'ing
out the first, must be so interpreted as
to practically nullify the first.
2. It is said, conceding that the con-
current power given to Congress and to
the states does not, as a prerequisite,
exact the concurrent action of both, it
nevertheless contemplates the possibility
of action by Congress and by the states,
and makes each action effective; but, as
under the Constitution the authority of
Congress in enforcing the Constitution
is paramount, when state legislation and
congressional action conflict, the state
legislation yields to the action of Con-
gress as controlling. But as the power
of both Congress and the states in this
instance is given by the Constitution in
one and the same provision, I again find
myself unable to accept the view urged
because it ostensibly accepts the consti-
tutional mandate as to the concurrence
of the two powers and proceeds imme-
diately by way of interpretation to de-
stroy it by making one paramount over
the other.
3. The proposition is that the concur-
rent powers conferred [890] upon Con-
gress and the states are not subject to
conflict because their exertion is author-
ized within different areas; that is, by
Congress witKin the field of Federal au-
thority, and by the states within the
sphere of state power; hence leaving the
states free within their jurisdiction to de-
termine separately fur themselves what,
within reasonable limits, is an intoxicat-
ing liquor, and to Congress, the same
right within the sphere of its jurisdic-
tion. But the unsoundness of this more
plausible contrition seems to me at onee
exposed by directing attention to the
fact that in a ease where no state legis-
lation was enacted, there would be no
prohibition; thus again frustrating the
first section by a construction afi&xed to
the second. It is no answer to suggest
that a regulation by Congress would in
such event be operative in such a state,
since the basis of the distinction upon
390-302
SUPREME COURT OP THE UNITED STATES.
Oct.
which the argument rests is that the
'concurrent power conferred upon Con-
gress is confined to the area of its juris-
diction, and therefore is not operative
within a state.
I Comprehensively looking at all these
contentions, the confusion and contradic-
tion to which they lead, serve, in my
judgment, to make it certain that it can-
not possibly be that Congress and the
states entered into the great and im-
portant business of amending the Con-
stitution in a matter so vitally concern-
ing all the people solely in order to ren-
der governmental action impossible, or,
if possible, to so define and limit it as
to cause it to be productive of no re-
sults and to frustrate the obvious intent
and general purpose contemplated. It
is true, indeed, that the mere words of
the second section tend to these results,
but if they be read in the light of the
cardinal rule which compels a considerar
tion of the context in view of the situa-
tion and the subject with which the
amendment dealt, and the purpose which
it was intended to accomplish, the con-
fusion will be seen to be only apparent.
In the first place, it is indisputable, as
I have stated, [891] that the first sec-
tion imposes a general prohibition which
it was the purpose to make miiversally
and uniformly operative and efficacious.
In the second place, as the prohibition
did not define the intoxicating beverages
which it prohibited, in the absence of
anything to the contrary, it clearly, from
the very fact of its adc^tion, cast upon
Congress the duty, not only of defining
the prohibited hewengeSf but also of en-
acting such regulations and sanctions as
were essential to make them operative
when defined. In the third place, when
the second section is considered with
these truths in mind it becomes clear
that it simply manifests a like purpose
to adjust, as far as possible, the exercise
of the new powers cast upon Congress
by the Amendment to the dual system
of government existing under the Con-
stitution. In other words, dealing with
the new prohibition created by the Con-
stitution, operating thronghont the
length and breadth of the United States,
without reference to state lines or the
distinctions between state and Federal
power, and contemplating the exercise
by Congress of the duty cast upon it to
make the prohibition efficaciousi it was
sought by the second section to unite
national and state administrative agen-
cies in giving effect to the Amendment
•80
and the legislation of Congress enaeted
to make it completely operative.
Mark the relation of the text to this
view, since the power which it gives to
state and nation is not to construct or
perfect or cause the Amendment to be
completely operative, but, as already
made completely operative, to enforce
it. Observe also the words of the g^rant
which confines the concurrent power
given to legislation appropriate to the
purpose of enforcement.
I take it that if the second section of
the article did not exist, no one would
gainsay that the first section, in and
of itself, granted the power and im-
posed the duty upon Congress to legis-
late to the end that, by definition and
sanction, the Amendment would become
fully operative. This being [S92] true,
it would follow, if the contentions under
consideration were sustained, that the
second section gave the states the power
to nullify the first section, since a re-
fusal of a state to define and sanction
would again result in no amendment to
be enforced in such refusing state.
Limiting the concurrent power to en-
force given by the second section to the
purposes which I have attributed to it,
that is, to the subjects appropriate to
execute the Amendment as defined and
sanctioned by Congress, I assume that
it will not be denied that the effect of
the- grant of authority was to confer
upon both Congress and the states power
to do things which otherwise there would
be no right to do. This being tme, I
submit that no reason exists for saying
that a grant of concurrent power to
Congress and the states to* give effeet
to, that is, to carry out or enforce, the
Amendment as defined and sanctioaed
by Congress, should be interpreted to
deprive Congress of the power to create,
by definition and sanction, an enforce-
able amendment.
Mr. Justice McBeynolds, concurring:
I do not dissent from- the disposition
of these causes as ordered by the court,
but confine my concurrence to that. It
is impossible now to say with fair cer-
tainty what construction should be given
to the 18th Amendment. Because of the
bewilderment which it creates, a multi-
tude of questions, will inevitably arise
and demand solution here. In the dr-
cumstanees I preier to remain free to
consider these questi^is when they ar-
rive.
SS8 17. S.
1919.
RHODE ISLAND v. PALMER.
392-395
Mr. Justice McKeima, dissenting:
This case is concerned with the 18th
Amendment of the Constitution of the
United States, its validity and construc-
tion. In order to have it and its scope
in attention, I quote it:
[89S] ''Section 1. After one year
from the ratification of this article, the
manufacture, sale, or transportation of
intoxicating liquors within, the importa-
tion thereof into, or the exportation
thereof from the United States and all
territoiy subject to the jurisdiction
thereof for beverage purposes is hereby
prohibited.
''Section 2. The Congress and the sev-
eral states shall have concurrent power
to .enforce this article by appropriate
legislation."
The court, in applying it, has dis-
missed certain of the billsT, reversed the
decree in one, and affirmed the decrees
in four others. I am unable to agree
with the judgment reversing No. 794
and affirming Nos. 752, 696, 788, and
837.
I am, however, at a loss how, or to
what extent, to express the grounds for
this action. The court declares conclu-
sions Qnly, without giving any reasons
for them. The instance may be wise —
establishing a precedent now, hereafter
wisely to be imitated. It will undoubt-
edly decrease the literature of the court
if it does not increase its lucidity. How-
ever, reasons for the conclusions have
been omitted, and my comment upon
them may come from a misunderstand-
ing of them, their present import and
ultimate purpose and force.
There are, however, clear declarations
that the 18th Amendment is part of the
Constitution of the United States, made
so in observance of the prescribed con-
stitutional procedure, and has become
part of the Constitution of the United
States, to be respected and given effect
like other provisions of that instrument.
With these conclusions I agree.
Conclusions 4, 5, and 6 seem to assert
the undisputed. I neither assent to than
nor dissent from them except so far as I
shall presently express.
Conclusion 7 seems an unnecessary
declaration. It may, however, be con-
sidered as supplementary to some other
declaration. My only comment is that I
know of no [894] intimati<m in the ease
that § 2, in conferring concurrent power
on Congress and the states to enforce the
prohibition of the 1st section, conferred
a power to defeat or obstruct prohibi-
tion. Of course, the power was con-
64 ti. ed.
ferred as a means to enforce the pro-
hibition, and was made concurrent to
engage the resources and instrumentali-
ties of the nation and the states. The
power was conferred for use, not for
abuse.
Conclusions 8 and 9, as I view them,
are complements of each other, and ex-
press, with a certain verbal detail, the
power of Congress and the states over
the liquor traffic, using the word in its
comprehensive sense as including the
production of liquor, its transportation
within the states, its exportation from
them, and its importation into them.
In a word, give power over the liquor
business from producer to consumer, pre-
scribe the quality of latter^s beverage.
Certain determining elements are ex-
pressed. It is said that the words "con-
current power'' of § 2 do not mean joint
power in Congress and the states, nor
the approval by the states of congres-
sional legislation, nor its dependency
upon state acti<m or inaction.
I cannot confidently measure the force
of the declarations or the deductions
that are or can be made i^m them.
They seem to be regarded as sufficient
to impel the conclusion that the Vol-
stead Act is legal legislation and opera-
tive throughout the United States. But
are there no opposing considerations, no
conditions upon its operation f And
what of conflicts, and there are conflicts,
and more there may be, between it and
state legislation? The conclusions of the
court do not answer the questions and
yet they are submitted for decision; and
their importance appeals foir judgment
upon them. It is to be remembered
states are litigants as well as private
citizens; the former presenting the
lights of the states, the latter seeking
protection against the asserted aggres-
sion of the act in controversy. And
there is opposing state legislation; why
not a decision [395] upon itf Is it on
account of the nature of the actions be-
ing civil and in equity, the proper forum
being a criminal court investigating a
criminal chasge? There should be some
way to avert the necessity or odium of
either.
I cannot pause to enumerate the con-
tentions in the case. Some of them pre-
sent a question of joint action in Con-
gress and the states, either collectively
with all or severally with each. Others
assert spheres of the powers, involving
no collision, it is said, the powers of
Congress and the states being sij^reme
and exclusive within the spheres of their
•SI
427-429
SUPREMK COURT OF THE UNITED STATEiS.
Oct.
serve a complaint stating the charges
"in that respect," and give opportnnity
to the aconsed to show why an order
should not issue directing him to '^cease
and desist from the violation of the law
so charged in said complaint." If, after
a hearing, the Commission shall deem
^'the method of competition in question
is prohibited by this act/' it shall is-
sue an order requiring the accused "to
cease and desist from using such method
of competition."
If, when liberally construed, the com-
plaint is plainly insufficient to show un-
fair competition within the proper mean-
ing of these words, there is no founda-
tion for an order to desist, — the thing
which may be prohibited is the method
of competition specified in the com-
plaint. Such an order should follow the
complaint; otherwise it is improvident,
and, when challenged, will be annulled
by the court.
The words "unfair method of compe-
tition" are not defined by the statute,,
and their exact meaning is in dispute.
It is for the courts, not the Commission,
ultimately to determine,, as matter of
law, what they include. They are clear-
ly inapplicable to practices never hereto-
fore regarded as opposed to good morals
because characterized by deception, bad
faith, fraud, or oppression, or as against
public policy because of their dangerous
tendency unduly to hinder competition
or create monopoly. The act was [428]
certainly not intended to fetter free and
fair competition as commonly under-
stood and practised by honorable op-
ponents in trade.
Count one alleges, in effect, that War-
ren, Jones, & Gratz are engaged in sell-
ing either directly to the trade or
through their corespondents, cotton ties
produced by the Carnegie Steel Com-
pany, and also jute bagging manufac-
tured by the American Manufacturing
Company. That P. P. Williams 6q Com-
pany of Vicksburg, and C. 0. Elmer of
New Orleans, are the selling and dis-
tributing agents of Warren, Jones, &
Gratz, and as such sell and distribute
their ties and bagging to jobbers and
dealers, who resell them to retailers,
ginners, and farmers. That, with the
purpose and effect of discouraging and
stifling competition in the sale of such
bagging, all the respondents, for more
than a year, have refused to sell any of
such ties unless the purchaser would
buy from them a corresponding amount
of bagging, — six yards with as many
ties.
The complaint contains no intimation
that Warren, Jones, & Gratz did not
996
properly obtain their ties and bagging
as merchants usually do; the amouitt
controlled by them is no( stated; nor
is it alleged that they held a monopolj
of either ties or baggingi or had ability,
purpose, or intent to acquire one. So
far as appears, acting independently,
they undertook to sell their lawfully ae-
quired property in the ordinary course,
without deception, misrepresentifttion, or
oppression, and at fair prieea, to pur-
chasers willing to take it upon terms
openly announced.
Nothing is alleged which would justi-
fy the. conclusion that tHe public suf-
fered injury, or that competitors had
reasonable ground' for complaint All
question of mcNw^Mly or combination
being out of the way, a private mer-
chant, acting with entire good faith,
may properly refuse to sell except in
conjunction, such closely associated arti-
cles as ties and bagging. If real com-
petition is to continue, the right of the
individual to exercise reasonable disere-
tion [420] in respect of his own business
methods must be preserved. United
States V. Colgate & Co. 250 IT. S. 300,
63 L. ed. 992, 7 A.L.R. 443, 39 Sup, Ct.
Rep. 465; United States v. A. Schrader's
Son (March 1, 1920) 252 U. S. 85, ante,
471, 40 Sup. Ct. Rep. 251.
The first count of the complaint fails
to show any unfair method of competi-
tion practised by respondents, and the
order based thereon was improvident.
The judgment of the court below is
affirmed.
Mr. Justice Pitney concurs in the
suit.
Mr. Justice Brandeis dissenting, with
whom Mr. Justice Clarke concurs:
First. The court disposes of the ease
on a question of pleading. This, under
the circumstances, is contrarj' to estab-
lished practice. The circumstances are
these :
The pleading held defective is not one
in this suit. It is the pleading by which
was originated the proceeding before the
Federal Trade Commission, an adminis-
trative tribunal, whose order this suit
was brought to set aside. Ko sumes-
tion was made in the proceeding lm6re
the Commission that the complaint irma
defective. No such objection was raised
in this suit in the court below. It was
not made here by counseL The objec-
tion is taken now for the first time and
by the court.
Thi» suit, begun in the circuit eonrt
of appeals for the second circuit, was
brought to set aside an order of the Fed-
1S3 V. S.
]»19.
FEDERAL TRADE CO^miSSlON v. GRATZ.
429-431
era) Trade CommissioD. Before the lat-
ter tke matter involved was thoroughly
tried on the merits. There was a com-
plaint and answers. Thirty*ftve wit-
nesses were examined and cross-exam-
ined. A report of proposed findings as
to facts was submitted, by the examiner
and exceptions were filed thereto. Then,
the case was heard before the Commis-
sion, which made a finding of facts,
stated its conclusions as to the law,
and ultimately issued the order in ques-
tion. The proceedings occupied more
[480] than sixteen months. The report
of them fills four hundred pages of the
printed record. In my opinion it is our
duty to determine whether the facts
found by the Commission are sufficient
in law to support the order; and, also,
if it is questioned, whether the evi-
dence was sufficient to support the find-
ings of fact. ^
Second. If the sufficiency of the com-
plaint is held to be open for considera-
tion here, we should, in my opinion, hold
it to be sufficient. The complaint was
filed under § 5 of the Federal Trade
Commission Act [38 Stat, at L. 719,
ehap. 311, Comp. Stat. 8836e, 4 Fed.
Stat. Anno. 2d ed. p. 577], which de-.
elares unlawful Unfair methods of com-
petition in commerce;" empowers the
Commission to prevent their use; and
directs it to issue and serve '^a com-
plaint stating its charges in that re-
speet^' whenever it has reason to believe
that a concern '%as been or is using^
such methods. The function of the com-
plaint is solely to advise the respondent
of the charges made, so that he may
have due notice and full opportunity
for a hearing thereon. It does not pur-
port to set out the elements of a crime,
like an indictment or information, nor
the elements of a cause of action, like
a declaration at law or a bill in equity.
All that is requisite in a complaint be-
fore the Commission is that there be a
plain statement of the thing claimed to
be wrong, so that the respondent may
be put upon his defense. The practice
of the Federal Trade Commission in
this respect, as in many others, is mod-
eled on that which has been pursued by
the Interstate Commerce Commission for
a generation, and has been sanctioned by
this as well as the lower Federal courts.
United States Leather Co. v. Southern
R. Co. 21 Inters. Com. Rep. 323, 324;
Clinton Sugar Refin. Co. v. Chicago &
N. W. R. Co. 28 Inters. Com. Rep. 364,
367; Stuarts Draft MiU. Co. v. Southern
R. Co. 31 Inters. Com. Rep. 623, 624;
New York C. A H. R. R. Co. v. Interstate
•4 ti, ed.
Commerce Commission, 168 Fed. 181, 138,
139; Diekerscm v. Louisville A N. R. Co.
187 Fed. 874, 878; Texas & P. R. Co.
V. Interstate Commerce Commission, 162
[481] U. S. 197, 215, 40 L. ed. 940, 946,
5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep.
666; Cimnnnati, H. & D. R. Co. v. In-
terstate Commerce Commission, 206 U.
S. 142, 149, 51 L. ed. 995, 998, 27 Sup.
Ct. Rep. 648.
The complaint here under considera-
tion stated clearly that an imf air method
of competition had been used by re-
spondents, and specified what it was;
namely, refusing to sell cotton ties un-
less the customer would purchase with
each six ties also six yards of bagging.
The complaint did not set out the cir-
cumstances which rendered this tying
of bagging to ties an unfair practice.
But this was not necessary. The co|p-
plaint was similar in form to those filed
with the Interstate Commerce Commis-
sion on complaints to enforce the pro-
hibition of ^'unjust and unreasonable
charges" or of ^'undue or unreasonable
preference or advantage" which the
Act to Regulate Commerce imposes. It
is unnecessary to set forth why the rate
specified was unjust, or why the prefer-
ence specified is undue or unreasonable,
because these are matters not of law,
but of fact, to be established by the
evidence. Pennsylvania Co. v. United
States, 236 U. S. 351, 361, 59 L. ed. 616,
623, P.U.R.1915B, 261, 35 Sup. Ct. Rep.
370. So far as appears, neither this nor
any other court has ever held that an
order entered by the Interstate Com-
merce Commission may be set aside as
void, because the complaint by which
the proceeding was initiated, failed to
set forth the reasons why the rate or
the practice complained of was imjust
or unreasonable; and I cannot see why
a different rule should be applied to or-
ders of the Federal Trade Commission,
issued under § 5.^
1 See Report Senate Committee on In-
terstate Commerce, June 13, 1914, Sixty-
third Congress, Second Session, No. 597,
p. 13: It is believed that the term "un-
fair competition" has a legal significance
which can be enforced by the Commission
and the courts, and that it is no more
difficult to determine what is unfair com-
petition than it is to determine what is a
reasonable rate or what is an unjust dis-
crimination. The committee was of the
opinion that it would be better to put in a
general provision condemning unfair com-
petition than to attempt to define the nu-
merous unfair practiaes, such as local price
cutting, interlocking directorates, and hold-
ing companies intended to restrain substan-
tial competition.
••7
432-434
SUPREME COURT OF THE UNITED STATES.
Oct. Tbm,
[4S2] In considering whether the
complaint is sufficient, it is necessary to
bear in mind the nature of the proceed-
ing under review. The proceeding is not
punitive. The complaint is not made
with a view to subjecting the respond-
ents to any form of punishment. It is
not remedial. The complaint is not filed
with a view to affording compensation
for any injury alleged to have resulted
from the matter charged, nor with a view
to protecting individuals from any such
injury in the future. The proceeding is
strictly a preventive measure taken in
the interest of the general public. And
what it is brought to prevent is not the
commission of ctcts of unfair competi-
tion, but the pursuit of unfair methods.
Furthermore, the order is not self-execu-
tory. Standing alone it is only informa-
tive and advisory. The Commission can-
not enforce it. If not acquiesced in by
the respondents, the Commission may
apply to the circuit court of ai^>eal8 to
enforce it. But the Commission need
not take such action; and it did not do
so in aspect to the order here in ques-
tion. Respondents may, if they see fit,
become the actors and ask to have the
order set aside. That is what was done
in the case at bar.
The proceeding is thus a novelty. It
is a new device in administrative ma-
chinery, introduced by Congress in the
year 1914, in the hope thereby of remedy-
ing conditions in business which a great
majority of the American people regard-
ed as menacing the general welfare, and
which, for more than a generation, they
had vainly attempted to remedy by the
ordinary processes of law. It was be-
lieved that widespread and growing con-
centration in industry and commerce
restrained trade, and that monopolies
were acquiring increasing control of
business. Legislation designed t^ arrest
the movement and to secure disintegra-
tion of existing combinations had ^en
enacted by some of the states as early
as 1889. In 1890 Congress passed the
Sherman Law. [Act of July 2, 1890, 26
Stat, at L. 209, chap. 647,^Comp. Stat.
§ 8820, 9 Fed. Stat. Anno. 2d ed. p. 644.]
It was followed by much [433] legisla-
tion in the states^ and many official in-
vestigations. Between 1906 and 1913 re-
SSee Laws on Trusts and Monopolies.
Compiled under direction of the Clerk of
Uie House Committee on the Judiciary,
Sixty-third Congress, by Nathan B. Wil-
liams. Revised January 10, 1914; also
Trust Laws and Unfair Competition, (Fed-
eral I Bureau of Corporations. March 15, 1
1915.
998
ports were made by the Federal Boreaa
of Gacporations of its inveatigmtioBs iate
the petroleum industry, the tobaeeo in-
dustry, the steel industry, and the fam
impUonent industry. A special com-
mittee of Congress investigated the af-
fairs of the United States Steel Corpora-
tion. And in 1911 this court readered
its decision in Standard Oil Co. v. Unit-
ed States, 221 U. S. 1, 55 L. ed. 619, 34
L.R.A.(N.S.) 684, 31 Sup. Ct. Bap Sfl?,
Ann. Cas. 1912D, 734, and in American
Tobacco Co. v. United Stotes, 221 U. 8.
106, 55 L. ed. 663, 31 Sup. Ct. Rep. 632.
The conviction became genend in
America, that the legislation of the past
had been largely ineffective. There was
general agreement that further legisla-
tion was desirable. But there was a
clear division of opinion as to what its
character should be. Many believed
that concentration (called by its oppo-
nents monopoly) was inevitable and de-
sirable; and these desired that concen-
tration should be recognized by law and
be regulated. Others believed that con-
centration was a source of evil ; that ex-
isting combinations could be disinte-
grated, if only the judicial machinery
were perfected ; and that further eoneen-
tration could be averted by providing
additional remedies, and particuJarlj
through regulating competition. The
latter view prevailed in the Sixty-third
Congress.' [484] The Clayton Aet
(October 15, 1914, chap. 323, 38 SUt at
L. 730, Comp. Stat. § 8835a, 9 Fed. Stat
Anno. 2d ed. p. 730) was framed laigely
with a view to making more effective the
remedies given by the Sherman Law.
The Federal Trade Commission Act
(September 26, 1914, chap. ^LL, 38 Stat
at L. 717, Comp. Stat. § 8836a, 4 Fed.
Stat. Anno. 2d ed. p. 575) created an ad-
ministrative tribunal, largely with a view
to regulating competition.
^^■^^"^~~"^^~^~*~ "^"— ^^^■"^■^"— ""^■^~~*"
sSee Report of Senate Committee on la-
terstate Commerce, Jime IS, 1914, Sixty-
third Con^^esSy Second Session, No. 597, p.
10, reporting the bill:
**Some would found such a oommiasioa
upon the theory that monopolistic industry
is the ultimate result of econ<miic erohi-
tion, and that it should be so recogniied,
and declared to be vested with a pobUe
interest, and, as such, reaulated by a com-
mission. This contemplates even the regu-
lation of prices. Others hold that private
monopoly is intolerable, unscientific, and
abnormal, but recognize that a commiseioe
is a necessary adjunct to the preserratioa
of competition and to the practical enforce
ment of the law. . . .
'*The commission which is proposed by
your committee in the biU sulmiitted is
founded upon the latter purpose and idea."*
35a u. s.
my.
FEDERAL TRADE COMMISSION v. ORATZ.
434-480
. 'Many of the daties imposed upon the
Trade Commission had been theretofore
petioixaed by the Bureau of Coiipora-
tioBs.. That which was in essence new
legislation was the power conferred by
§ 5. The belief was widespread that the
gn^eat trusts had acquired their power, in
the main, through destroying or over-
reaching their weaker rivals by resort
to unfair practices.^ As Standard Oil
rebates led to the creation of the In-
terstate Commerce Commission,^ othei
unfair methods of competition, which
the investigations of the trusts had laid
bare, led t6 the creation of the Feder^
Trade Commission. It was hoped that
as the former had substantially elimi-
nated rebates, the latter might put an
end to all other unfair trade practices;
and that it might prove possible thereby
to preser\'e the competitive system. It
was a new experiment on old lines; and
the machinery employed was substan-
tially similar.
In undertaking to regulate competition
through the Trade Commission, Congress
(besides resorting to administrative, as
distinguished from judicial, machinery)
departed in two important respects from
the methods and measures theretofore
applied in dealing with trusts and re-
straints of trade.
(I) Instead of attempting to inflict
punishment for having done prohibited
acts, instead of enjoining the [435]
continuance of prohibited combinations,
and compelling distintegration of those
formed in violation of law, the act un-
dertook to preserve competition through
supervisory action of the Commission.
The potency of accomplished facts had
already been demonstrated. The task of
the Commission was to protect competi-
tive business from further inroads by
monopoly. It was to be ever vigilant.
If it discovered that any business con-
cern had used any practice which would
be likely to result in public injury, be-
cause in its nature it would tend to aid
or develop into a restraint of trade, the
Commission was directed to intervene,
before any act should be done or condi-
tion arise violative of the Anti-trust Act.
And it should do this by filing a com-
plaint with a view to a thorough in-
vestigation; and, if need be, the issue of
an order. Its action was to be prophy-
lactic. Its purpose in reiqpect to re-
I I — *
4 See "Unfair Competition," by William
8. Stevens, Political Science Quarterly
(1914), p. 283; "The Morals of Monopoly
and Competition" (1916), by H. B. Reed.
. »See Railway Problems, by William Z.
Ripley ( 1907 ) . p. X.
•4 li. ed.
straints of trade was prevention of dis-
eased business conditions, not cure.*
[436] (2) Instead of undertaking to
define what practices should be deemed
unfair, as had been done in earlier legis-
lation, the act left the determination to
the Conmiission.'' Experience with ezist-
< Senator Cummins, chairman of the com-
mittee which reported the bill, said (Cong.
Rec., vol. 61| p. 11,455) :
''Unfair competition must usually pro-
ceed to great lengths and be destructive
of competition before it can be seized and
denounced by the Anti-trust Law. In other
cases it must be associated with, coupled
with, other vicious and unlawful practices
in order to bring the person or the corpora-
tion guilty of the practice within the scoj^
of the Anti-trust Law. The purpose of this
bill in this section and in other sections
which I hope will be added to it is to seize
the offender before his ravages have gone to
the length necessary in order to bring him
within the law that we already have.
''We knew little of th^e things in 1890.
The commerce of the United States has
largely developed in the last twenty-five
years. The modern methods of carrying on
business have been discovered and put into
operation in the last quarter of a century;
and as we have gone on under the Anti-trust
Law and under the decisions of the court in
their effort to enforce that law, we have ob-
served certain forms of industrial activity
which ought to be prohibited, whether, in
and of themselves, thev restrain trade or
commerce, or not. We have discovered that
their tendency is evil; we have discovered
that the end which is inevitably reached
through these methods is an end .which is
destructive of fair commerce between the
states. It is these considerations which, in
my judgment, have made it wise, if not
necessary, to supplement the Anti-trust Law
by additional legislation, not in antago-
nism to the Anti-trust Law, but in harmony
with the Anti-trust Law, to more effectively
put into the industrial life of America the
principle of the Anti-trust Law, which is
fair, reasonable competition, independence
to the individual, and disassociation among
the corporations. . . .''
7 See Report Senate Committee on Inter-
state Commerce, June 13, 1914, Sixty-third
Congress, Second Session, No. 597, p. 13:
**The committee gave careful consideration
to the question as to whether it would at-
tempt to define the many and variable im-
fair practices which prevail in commerce,
and to forbid their continuance, or whether
it would, by a general declaration condemn-
ing unfair practices, leave it to the Commis-
sion to determine what practices were im-
fair. It concluded that the latter course
would be the better. . . ." See also "Un-
fair Competition," by W. H. S. Stevens
(University of Chicago Press, 1916), pp. 1,
2. For laws prohibitmg specific acts of un-
fair competition, see "Trust Laws and Un-
fair Competition," (Federal) Bureau of
Corporations (March 15, 1915), pp. 184,
' 199.
• 9»
436-438
SUPREME COURT OF THE UNITED STATES.
Oct. T
ing laws bad taught that definition, be-
ing necessarily rigid, would prove em-
barrassing, and, if rigorously applied,
might involve great hardship. Methods
of competition which would be unfair in
one industry, under certain circum-
stances, might, when adopted in another
industry, or even in the same industry
under different circumstances, be entire-
ly unobjectionable.* [487] Further-
more, an enumeration, however compre-
hensive, of existing methods of unfair
competition, must necessarily soon prove
incomplete, as, with new conditions con-
stantly arising, novel unfair methods
would be devised and developed. In
leaving to the Commission the determina-
tion of the question whether the method
of competition pursued in a particular
case was unfair, Congress followed the
precedent which it had set a quarter of
century earlier, when, by the Act to Reg-
ulate Commerce, it. conferred upon the
Interstate Commerce Commission power
to determine whether a preference or ad-
vantage given to a shipper or locality
fell withm the prohibition of an undue
or unreasonable preference or advan-
tage.* See Pennsylvania Co. v. United
States, 236 U. S. 361, 59 L. ed. 623,
P.U.R.1915B, 261, 35 Sup. Ct. Rep, 370;
Texas & P. R. Co. v. Interstate Com-
merce Commission, 162 U. S. 197, 219,
220, 40 L. ed. 940, 947, 948, 5 Inters.
Com. Rep. 405, 16 Sup. Ct. Rep. 666.
Recognizing that the question whether a
method of competitive practice was un-
fair would ordinarily depend upon
special facts, Congress imposed upon the
Commission the duty of finding the
facts; and it declared that findings of
fact so made (if duly supported by evi-
dence) were to be taken as final. The
question whether the method of com-
• Report of ( Federal ) Bureau of Corpora-
tions on the International Ifarvester Com-
pany, March 3, 1913, p. 30: "In discussing
the competitive methods of the company it
should be recognized that some practices
which might be regarded with indifference
if there were a number of competitors of
Aubstantially equal size and power may be-
come objectionable when one competitor far
outranks not only its nearest rival, but
practically all rivals combined, as is true of
the International Harvester Company, so
far as several of its most important lines
are concerned."
The Australian Industries Preservation
Act, 1908-1910, expressly declares that "un-
fair competition means competition which
is unfair in the circumstances." "IVust
Laws and Unfair Competition/* (Federal)
Bureau of Corporations (March 15, 1915),
pp. 552, 747.
* See note 1, supra.
1000
petition pursued could, on those facts,
reasonably be held by the Commission to
constitute an unfair method of competi-
tion, being a question of law^ was neces-
sarily left open to review by the court
Compare Interstate Conmieree Commis-
sion V. Diffenbaugh^ 222 U. S. 42, 56 L
ed. 83, 32 Sup. Ct. Rep. 22; IntersUte
Commerce Commission v. Baltimore ft
O. R. Co. 145 U. S. 263, 36 L. ed. 699,
4 Inters. Com. Rep. 92, 12 Sup. Ct. Rep.
844.
Third. Such a question of law is pre-
sented to us for decision; and it is this:
Can the refusal by a manufacturer to sell
his product to a jobber or retailer except
upon condition that the purchaser will
buy from him also his [488] trade
requirements in another article or ar-
ticles reasonably be found by the Com-
mission to be an unfair method of com-
petition under the circumstances set
forth in the findings of fact 9 If we were
called upon to consider the sufSci^cy
of the complllint, and that merely, tbe
question for our decision would be,
whether the particular practice could,
under any circumstances, reasonably be
deemed an unfair method of <K>mpetitios.
But as this suit to set aside the order
of the Commission brings before us its
findings of fact, we must determine
whether these are sufficient to support
their conclusion of law that the practice
constituted
^'nnder the circumstances therein set
forth, unfair methods of competition is
interstate commerce against other manu-
facturers, dealers, and distributers in tbe
material known as sugar-bag cloth, and
against manufacturers, dealers, and dis-
tributers of the bagging known as re-
woven bagging and secondhand bagging,
in violation of' [the statute].
It is obvious that the imposition of
such a condition is not necessarily and
universally an unfair method; but that
it may be such under some circumstaneee
seems equally clear. Under the usual
conditions of competitive trade the
practice might be wholly unobjectionable.
But the history of combinations has
shown that what one may do with im-
punity may have intolerable results
when done by several in co-operation.
Similarly, what approximately equal in-
dividual traders may do in honorable
rivalry may result in grave injustice and
public injury if done by a great corpora-
tion in a particular field of business
which it is able to dominate. In other
words, a method of competition fair
among equals may be very unfair if ap^
plied where there is inequalitv of re-
953 r. 6.
X»X9.
FEDERAL TRADE COMMISSION v. QRATZ.
438-441
souroes.'* Without providing for those
cases where the method of competition
here inyolved would be unobjectionable^
[499] Massachusetts legislated against
the practice, as early as 1901, by a stat-
ute (chap. 478) of gener# application.
Its highest court, in applying the law
which it held to be constitutional, de-
scribed the prohibited method as ^'nn-
fair competition/' Com. v. Strauss, 188
Mass. 229, 74 N. E. 308, 191 Mass. 545, 11
L.R.A.(N.S.) 968, 78 N. E. 136, 6 Ann.
Cas. 842. Compare People v. Duke, 19
Miae. 292, 44 N. Y. Supp. 336. The [Fed-
eral] Bureau of Corporations held the
practice, which it described as ^ull-line
forcing," to be highly reprehensible.**
Congress, by § 3 of the Clayton Act, spe-
cifically prohibited the practice in a lim-
ited field under certain circumstances.
An injunction against the practice has
been included in severi^l decrees in favor
of the goyemment, entered in cases un-
der the Sherman Law.** In the decree by
which the American Tobacco Company
was disintegrated pursuant to the man-
date of this court, each of the fourtee*
companies was enjoined from '^refusing
to sell to any jobber any brand of any
tobacco product manufactured by it, ex-
cept upon condition that such jobber
shall purchase from the vendor some
other brand or product also manufac-
tured and sold by it. . . J^ United
States V. American Tobacco Co. 191 Fed.
371, 429. The practice here in question
is merely one form of the so-called .'Hy-
ing clauses" or ^'conditional require-
ments" which had been declared in a dis-
cerning study of the whole subject to be
''perhaps the most interesting of any of
^e methods of unfair competition."**
The following facts found by the Com-
mission, and which the circuit court of
appeals held were si^>ported by suffi-
cient evidence, show that- the conditions
in the [440] cotton tie and bagging
trade were, in 1918, such that the Feder-
al Trade Commission could reasonably
find that the tying clause here in ques-
%
^ ■ '
w See "The Morals of Monopolv and Com-
fetition," by H. B. Reed (1916), pp. 120-
22.
1^ Report of the ( Federal ) Bureau of Cor-
porations on the International HarrestMr
Company (March 3, 1913), p. 308.
^See "Unfair Methods of Competition
and their Prevention," by W. H. S. Stevens,
Annals American Academy of Political and
Social Science (1916), pi>. 42, 43. "Trust
Laws and Unfair Competition/' (Federal)
Bureau of Corporations (March 15, 1915),
pp. 484-486, 493.
l« "Unfair Competition," by W. H. 8.
Stevens (1916). p. 54.
64 L. ed.
tioQ was an unfair method of competi-
tion: Cotton, America's chief staple, is
marketed in bales. To bale ootton, steel
ties and jute bagging are essentiaL The
Carnegie Steel Company, a subsidiary of
the 'United States Steel Corporation,
tnanuf aetuies so large a proportion of all
such steel ties that it dominates the cot-
ton tie situation in the United States,
and is able to fix and control the price of
such ties throughout the country. The
American Mannfacturing Company
manufactures about 45 per cent of all
haggis^ used for cotton baling; one oth-
er c<HDpany about 20 per cent; and the
remaining 35 per cent is made up of
secon^and bagging and a material
called sugar-bag cloth. Warren, Jones,
& Gratz, of St. Louis, are the Carnegie
Company's sole agents for selling and
distributing steel ties. They are also
the American Manufacturing Coo^any's
sole agents for selling and distributing
jute bagging in the cotton-growing sec-
tion west of the Mississippi By virtue
of their selling agency for the Carnegie
Company, Warren, Jones, & Gratz held
a dominating and oontroliine position in
the sale and distribution of cotton ties
in the entire cotton-growing section of
the country, and thereby it was in a po-
sition to force would-be purchasers of
ties to also buy from them bagging
manufactured by the American Manu-
facturing Company. A great many mer-
chants, jobbers, and dealers in bagging
and ties throughout the cotton-growing
states were many times unable to pro-
cure ties from any other firm than War-
ren, Jones, & Gratz. In many instances
Warren, Jones, & Gratz refused to sell
ties unless the purchaser would also buy
from them a corresponding amount of
bagging, and such purchasers were often-
times compelled to buy from them bag-
ging manufactured by the American
Manufacturing Company in order to pro-
cure a sufficient supply of steel ties.
[441] These are conditions closely re-
sembling those under which '^full-line
forcing,'' "exclusive-dealing require-
ments," or ''shutting off materials, sup-
plies, or machines from competitors," —
well-known methods of competition, —
have been held to be unfair when prac-
tised by concerns holding a preponderant
position in the trade. ^^
Fourth. The circuit court of appeals
set aside the order of the Commission
solely on the ground that it was with^
out authority to determine the merits
14 See ''Trust Laws and Unfair Competi*
tion/' (Federal) Bureau of Corporations
(March 15, 1015) » pp. 319-328, 828.
1001
441, 442
SUPREME COURT OF THE UNITED STATES.
Oct. Tdui
of specific individual grievances, and
that the evidence did not support its
finding that Warren, Jones, & Gratz had
^'adopted and practised the policy of re-
fusing to sell steel ties to those mer-
chant and dealers who wished to buy
from them unless such merchants and
dealers would also buy from them a cor-
responding amount of jute bagging."
The reason assigned by the circuit
court of appeals for so holding was that
the evidence failed to show that' the
practice complained of (although acted
on in individual cases by respondents)
had become their '^general practice."
But the power of the Trade Commission
to prohibit an unfair method of com-
, petition found to have, been used is not
limited to cases where the practice had
become general. What § 5 declares un-
lawful is not unfair competition. That had
been unlawful before. What that sec-
tion made unlawful were 'Unfair methods
of competition;" that is, the method or
means by which an imfair end might
be accomplished. The Coounission was
directed to act if it had reason to be-
lieve that an ''unfair method of compe-
tition in commerce has been or is being
used." The purpose of Congress was to
prevent any unfair method which may
have been used by any concern in com-
petition from becoming its general prac-
tice. It was only by stopping its use be-
fore it became a general practice [442]
that the apprehended effect of an unfair
method in suppressing competition by
destroying rivals could be averted. As
the circuit court of appeals found that
the evidence was sufScient to support
the facts set forth above, and since on
those facts the Commission could reason-
ably hold that the method of competition
in question was unfair under the circum-
stances, it had power under the act to
issue the order complained of.
In my opinion the judgment of the
Circuit Court of Appeals should be re-
versed.
JOSEPH E. NADEAU, Martha Nadeau,
His Wife, et al., Plaintiffs in Err.,
V.
UNION PACIFIC RAILROAD COMPANY.
1 (See S. 0. Reporter's ed. 442-446.)
Public lands — railway right of way —
Indian lands.
1. Congress could and did, by the Act
of July 1, 1862, granting a railway right
of way over the public lauds, include lands
forming a part of the Pottawatomie Indian
leoa
Reservation not actually allotted hi aer*
eralty when the grant took effect, not^itk-
standing the agreement on the part of tht
United States in the Treaty of June 5 and
17, 1846, to grant to such Indians posteft-
sion and title to a specified district, and
to guarantee Villi and complete possession
thereof as their land and home forever, asd
the stipulation in the Treaty of Novenh
ber 5, 1861, that land within the reserra-
tion designated in the earlier treaty should
be allotted thereafter in severalty to tribe
members.
(For other cases, see Public Lands, I. e, 3, d;
I. c 2. k, in Dlg^ Sup. Ct. 1908.]
Adverse possession — pnbUc lands —
railway right af way.
2. Adverse possession could confer no
rights to lands within the Pottawatomie
Indian Reservation granted by the Act of
July 1, 1862, to a railway company for a
right of way.
[For other cases, see Adverse PossesdOB. I. h,
in DlgeBt Sup. Ct 1008.)
[No. 119.]
«
Argued January 9 and 12, 1920. Decided
June 7, 1920.
IN ERROR to the District Court of
the United States for the District of
Kansas to review a judgment in favor
of plaintiff in an action in ejectment
Affirmed.
The facts are stated in the opinion.
Mr. A. E. Oraae argued the cause, and,
with Messrs. Z. T. Hazen and J. B. Laii-
mer, filed a brief for plaintiffs in error:
The lands involved in this action were
not public lands on July 1, 1862, nor
were they public lands on July 2, 1864,
within the meaning of the acts of Con-
gress of those dates.
Missouri, K. & T. R. Co. v. United
States, 235 U. S. 40, 69 L. ed. 120, 35
Sup. Ct. Rep. 6; Union P. R. Co. v. Har-
ris, 215 U. S. 386, 54 L. ed. 246, 30 Sup.
Ct. Rep. 138; Kindred v. Union P. R. Co.
225 U. S. 595, 66 L. ed. 1220, 32 Sup.
Ct. Rep. 780; Leavenworth, L. & Q. K
Co. V. United States, 92 U. S. 733, 23
L. ed. 634; Wilcox v. Jackson, 13 Pet
513, 10 L. ed. 271: Bardon r. Northern
P. R. Co. 145 U. S. 543, 36 L. ed. 810,
12 Sup. Ct. Rep. 856.
The Acts of Congress of July 1, 1862,
and July 2, 1864, were not intended to
grant a right of way across the lands
Note. — ^As to land grants to railroads,
generally — see note to Kansas P. R. Co.
V. Atchison, T. ft S. F. R. Co. 28 L. «C
U. S. 794.
On adverse possession of railroad
right of way — see note to Dulin v. Ohio
River R. Co. L.R.A.1916B, 667.
258 r. ^.
1919.
NADEAU V. UNION PACIFIC K. CO.
involved in this action under the term
"public lands."
Bardon v. Northern P. R. Co. 145 U.
S. 543, 36 L. ed. 810, 12 Sup. Ct. Rep.
856; Wilcox v. Jackson, 13 Pet. 513, 10
L. ed. 271; Leavenworth, L. & G. R. Co.
V. United States, 92 U. S. 733, 23 L. ed.
634; Missouri, K. & T. R. Co. v. United
States, 235 U. S. 37, 40, 59 L. ed. 116,
120, 35 Sup. Ct. Rep. 6; Leavenworth,
L. & G. R. Co. v., United States, 92 U.
S. 742, 23 L. ed. 638; Northern P. R.
Co. V. Musser-Sauntrv Land, Logging &
Min. Co. 168 U. S. 610, 42 L. ed. 598,
18 Sup. Ct. Rep. 205.
The lands in question became individ-
ual property at the date of signing the
Treaty of November 15, 1861, and when
the 'patents were issued they took effect
as of that time.
Francis v. Francis, 203 U. S. 238, 239,
61 L. ed. 165, 167, 27 Sup. Ct. Rep. 129;
Jones V. Meehan, 175 U. S. 1, 44 L. ed.
49, 20 Sup. Ct. Rep. 1; Stockton v. Wil-
liams, 1 Dougl. (Mich.) 546; McAffee v.
Lynch, 26 Miss. 259; Best v. Polk, 18
Wall. 118, 21 L. ed. 808; Francis v.
Francis, 136 Mich. 288, 99 N. W. 15;
Doe ex dem. Mann v. Wilson, 23 How.
457, 16 L. ed. 584; Hartman v. Warren,
22 C. C. A. 30, 40 U. S. App. 245, 76
Fed. 157; Meehan v. Jones, 70 Fed. 453.
The Treaty of November 16, 1861,
gave to the allottees the equitable title in
the lands allotted to them from the date
of signing the treaty, and the legal title
by their complying with its provisions.
Jones V. Meehan, 175 U. S. 1, 44 L. ed.
49, 20 Sup. Ct. Rep. 1 ; Stockton v. Wil-
liams, 1 Dougl. (Mich.) 546; McAffee v.
Lynch, 26 Miss. 259; Smith v. Bonifer,
132 Fed. 889; Lownsberry v. Rakestraw,
14 Kan. 151; Oliver v. Forbes, 17 Kan.
130; Francis v. Francis, 203 U. S. 238,
51 L. ed. 166, 27 Sup. Ct. Rep. 129; Doe
ex dem. Mann v. Wilson, 23 How. 457,
16 L. ed. 584; Clark v. Lord, 20 Kan.
390 ; Briggs v. McClain, 43 Kan. 653, 23
Pac. 1045.
Such treaty gave the prospective allot-
tees at the time of signing it a vested in-
terest in the allotments, and no acts of
theirs estOp them from claiming that the
right of way should not exceed 100 feet
in width.
Briggs V. HcClain, 43 Kan. 653, 23
Pac. 1045; Clark v. Lord, 20 Kan. 390;
Francis v. Frauds, 203 U. S. 239, 51
L. ed. 167, 27 Sup. Ct. Rep. 129; Bird
v. Terry, 129 Fed. 472; Oliver v. Forbes,
17 Kan. 130; Doe ex dem. Mann v. Wil-
son, 23 How. 457, 16 L. ed. 684.
The Indian title has not been ex-
tinguished to the lands involved in this
•4 li. ed.
action, and the title therefore remains in
the grantee of the Indians.
Atlantic & P. R. Co. v. Mingus, 165 U.
S. 437-440, 41 L. ed. 779-781, 17 Sup.
Ct. Rep. 348; Missouri, K. & T. R. Co.
V. United States, 235 U. S. 39, 40, 59
L. ed. 120, 121, 35 Sup. Ct. Rep. 6;
Leavenworth, L. & G. R. Co. v. United
States^ 92 U. S. 743, 23 L. ed. 638; Mis-
souri, K. & T. R. Co. V. United States,
235 U. S. 41, 59 L. ed. 121, 35 Sup. Ct.
Rep. 6; Doe ex dem. Mann v. Wilson, 23
How. 463, 16 L. ed. 586.
The Indians and their grantees were
the first to commence proceedings to ac-
quire title to the allotments, and have the
best title thereto.
Union P. R. Co. v. Harris, 215 U. S.
386, 54 L. ed. 246, 30 Sup. Ct. Rep. 138 ;
Northern P. R. Co. v. Musser-Sauntry
Land, Logging & Min. Co. 168 U. S. 610,
42 L, ed. 599, 18 Sup. Ct. Rep. 205; Mis-
souri, K. & T. R. Co. V. United States,
235 U. S. 37, 59 L. ed. ?.16, 35 Sup. Ct.
Rep. 6; Leavenworth, L. & G. R. Co. v.
United States, 92 U. S. 733, 23 L. ed.
684; Shepley v. Cowan, 91 U. S. 331, 23
L. ed. 4*24; United States v. Detroit Tim-
ber & Lumber Co. 200 U. S. 334, 335, 50
L. ed. 504, 505, 26 Sup. Ct. Rep. 282;
Benson Min. & Smelting Co. v. Alta
Min. & Smelting Co. 145 U. S. 433, 36
L. ed. 764, 12 Sup. Ct. Rep. 877, 17 Mor.
Min. Rep. 488.
The railroad company accepted its
grant of right of way under the Act of
Congress of 1862, with full knowledge of
the provisions of the treaty between the
United States and the Pottawatomie
Trie of Indians, and was bound there-
by.
33 Cyc. 86, 87; West Virginia & P. R.
Co. V. Harrison County Ct. 47 W. . Va.
273, 34 S. E. 789; 1 Elliott, Railroads,
•11 116, 117; Atlantic & P. R. Co. v. Min-
gus, 165 U. S. 439, 440, 41 L. ed. 780,
781, 17 Sup. Ct. Rep. 348; Missouri, K.
& T. R. Co. V. United States, 235 U. S.
41, 59 L. ed. 121, 35 Sup. Ct. R«p. 6.
The railroad company lost all of its
rights as against parties acquiring an in*
teorest by its failure to file its map of gen-
eral location with the Department of the
Interior within two years from July 1,
1862.
Smith County v. Lahore, 37 Kan. 483,
15 Pac. 577 ; Pugh v. Reat, 107 111. 440 ;
Sheets v. Selden, 2 Wall. 177, 17 L. ed.
822.
An amendment to an act of Congress
gives to the portions retained no further
force and effect than existed at the time
of the amendment.
Brandrup v. Britten. 11 N. D. 376, 92
N. W. 453.
IOCS
SUPREME COURT OF THE UNITED STATES.
Oct. Teem,
By the Act of Congress of July 2,
1864, the railroad company was for the
first time given the right to build its
road on the north side of the Kansas
river, and its rights to a right of way
date from that time.
Union P. R. Co. v. Harris, 215 U» S.
389, 54 L. ed. ^8, 30 Sup. Ct. Rep. 138.
The grant of the right of way of the
defendant did not take effect until July
2, 1864.
Ibid.
Indian treaties made prior to March 2,
1871, were valid and binding between
the United States and the Indian tribe.
Uhlig V. Garrison, 2 Dak. 98, 2 N. W.
253; Ware v. Hvlton, 3 Dali. 199, 1 L.
ed. 568; Re Race Horse, 70 Fed. 607.
The decision of the court below disre-
gards the treaty of 1861, and the provi-
sions of the two acts of Congress, and
cannot be sustained.
Missouri, K. & T. R. Co. v. United
States, 235 U. S. 40, 59 L. ed. 121, 35
Sup. Ct. Rep. 6; Leavenworth, L. & G.
R. Co. V. United States, 92 U. S. 742, 23
L. ed. 638; Uhii^ v. Garrison, 2 Dak. 98,
2 N. W. 253; Ware v. Hvlton, 3 Dall.
199, 1 L. ed. 568; Atlantic & P. R. Co.
V. Mingus, 165 U. S. 439, 440, 41 L. ed.
780, 781, 17 Sup. Ct. Rep. 348.
Why should there be a difference be-
tween a partv who has filed a pre-emp-
tion entry on the public domain and an
Indian allottee under the Treatv of
1861 1
Union P. R. Co. v. Harris, 215 U. S.
386, 64 L. ed. 246, 30 Sup. Ct. Rep. 138,
76 Kan. 255, 91 Pac. 68.
Messrs. E. W. Blair and N. H. LoomiB
argued the cause, and, with Mr. H. W.
Clark, filed a brief for defendant in er-
ror:*
The lands involved in this action were
public lands within the meaning of the
Pacific Railroad Acts of July 1, 1862,
and July 2, 1864.
Kindred v. Union P. R. Co. 225 U. S.
582, 56 L. ed. 1216, 32 Sup. Ct. Rep.
780; Grinter v. Kansas, P. R. Co. 23
Kan. 642; State v. Horn, 34 Kan. 556, 9
Pac. 208; State v. Horn, 35 Kan. 717,
12 Pac. 148; Union P. R. Co. v. Kin-
dred, 43 Kan. 134, 23 Pac. 112; Veale v.
Ma^*nes, 23 Kan. 1; United States v.
Chase, 245 U. S. 89, 62 L, ed, 168, 38
Sup. Ct Rep. 24; United States v.
Rowell, 243 U. S. 464, 61 L. ed. 848, 37
Sup. Ct Rep. 425; Leavenworth, L. ft
G, R. Co. V. United States, 92 U. S. 733,
23 L. ed. 634. *
The Acts of Congress of July 1, 1862,
and July 2, 1864, were intended to, and
did, grant a right of wav across the
1001
lands involved in this action, they being
a part of the Pottawatomie Indian Res-
ervation.
Grinter v. Kansas P. R. Co. 23 Kan.
642; Union P. R. Co. v. Kindred, 43
Kan. 134, 23 Pac. 112 ; Kindred v. Union
P. R. Co. 225 U. S. 582, 56 L. ed. 1216,
32 Sup. Ct. Rep. 780.
The Treaty of 1861 gave the Potta-
watomie Indians the usual Indian title,
and after allotment ^ gave the allottees
only the right to iomvidttal occupancy
of the tract assigned. .
Veale v. Mavnes, 23 Kan. 1; Grinter
V. Kansas P. R. Co. 23 Kan. 642; Kin-
dred v. Union P. R. Co. 225 U. S. 582,
56 L. ed. 1216, 32 Sup. Ct. Rep. 780;
United States v. Chase, 245 U. S. 89, 62
L. ed. 168, 38 Sup. Ct. Rep. 24.
The grant of the right of way was in
presenti, and when the railroad was
finally located or constructed, the title to
the right of wav related back to the date
of the grant, July 1, 1862.
St. Joseph & D. C. R. Co. v. Baldwin*
103 U. S. 426, 26 L. ed. 578; Stuart v.
Union P. R. Co. 227 U. S. 342, 57 L. ed.
535, 33 Sup. Ct. Rep. 338.
Congress conclusively determined that
a right of way 400 feet wide was neces-
sary for a public work of such impor-
tance.
Northern P. R. Co. v. Smith, 171 U.
S. 260, 43 L. ed. 157, 18 Sup. Ct. Bep.
194; Northern P. R. Co. v. Townsend,
190 U. S. 267, 47 L. ed. 1044, 23 Bap.
Ct. Rep. 671.
The construction of the railroad fixed
the boundary of the ri^t of way.
Northern P. R. Co. v. Smith, supra;
Jamestown & N. R. Co. v. Jones, 177 U.
S. 125, 44 L. ed. 698, 20 Sup. Ct Rep.
568; Stalker v. Oregon Short Line R.
Co. 225 U. S. 142, 66 L. ed. 1027, 32
Sup. Ct Rep. 636; Stuart ▼. Union P.
R. Co. 227 U. S. 342, 57 L. ed. 536, 33
Sup. Ct Rep. 338; Barlow v. Noithem
P. R. Co. 240 U. S. 484, 60 L. ed. 760,
36 Sup. Ct. Rep. 456.
Plaintiffs in error purehased the land
adjoining the railroad more than twen-
ty-five years after it was constructed,
and they cannot claim that they pur-
chased without notice of the claim of the
railroad company to own the right of
way.
Kindred v. Union P. R: Co. 225 U. S.
582, 56 L. ed. 1216, 32 Sup. Ct. Rep,
780; Northern P. R. Co. v. Smith, 171
U. S. 260, 43 L. ed. 157, 18 Sup. Ct
Rep. 794; St Joseph & D. C. R. Co. v.
Baldwin, 103 U. S. 426, 26 L. ed. 578;
Stuart v. Union P. R. Co. 227 U. S. 342,
57 L. ed. 53r^, 33 Sup. Ct. Rep. 338;
258 r. S.
1019.
K ADEAU V. UNION PACIFIC R, CO.
443, 444
Roberts v. Northena P. R. Co. 158 U. S.
1, 39 L. ed. 873, 15 Sup. Ct. Rep. 756.
Even if the government should have
extinguished the Indian title and paid
the Indians for the right of way^
grantees of the Indians cannot complain.
Kindred v. Union P. R. Co. 225 U. S.
582, 56 L. ed. 1216, 32 Sup. Ct. Rep.
780; Roberts v. Northern P. R. Co. 168
U. S. 1, 39 L. ed. 873, 15 Sup. Ct. Rep.
756.
The railroad was built under the su-
pervision of, and approved and accepted
by, the government, and an individual
cannot question the proceedings.
Van Dyke v. Arizona Eastern R. Co.
248 U. S. 49, 63 L. ed, 119, 39 Sup. Ct.
Rep. 29; Northern P. R. Co. v. Smith,
171 U. S. 260, 43 L. ed. 157, 18 Sup. Ct.
Rep. 794; Roberts v. Northern P. R. Co.
158 U. S. 1, 39 L. ed. 873, 15 Sup. Ct
Rep. 756.
The right of way was granted by the
Act of July 1, 1862, as amended by the
Act of July 2, 1864.
Missouri, K. & T. R. Co. v. Kansas P.
R. Co. 97 U. S. 491, 24 L. ed. 1095;
Stuart V. Union P. R, Co. 227 U. S. 342,
57 L. ed. 535, 33 Sup. Ct. Rep. 338.
Having been granted a ri^t of way,
the company retains title to it, whether
the full width is occupied by it or not.
•Stuart v. Union P. R. Co. supra.
By building its road in accordance
with the requirement of the act, the
grant became final, and not even the
government could deprive the company
of its title after it had performed its
part.
Sinking Fund Case, 99 U. S. 700, 25
L. ed. 496 ; United States v. Union P. R.
Co. 160 U. S. 1-33, 40 L. ed. 319-330,
16 Sup. Ct. Rep. 190 ; Roberts v. North-
em P. R. Co. 158 U. S. 1, 39 L. ed. 873,
15 Sup. Ct. Rep. 756.
The Act of June 24, 1912, «ititled
"An Act to Legalize Certain Convey-
ances Heretofore Made by the Union Pa-
cific Railroad Company,'' is not retro-
active.
Union P. R. Co. v. Laramie Stock
Yards Co. 231 U. S. 190, 58 L. ed. 179,
34 Sup. Ct. Rep. 101; Union P. R. Co,
V. Sides, 231 U. S. 213, 58 L. ed. 189,
34 Sup. Ct. Rep. 107; Union P. R. Co.
V. Snow, 231 U. S. 204, 58 L. ed. 184,
34 Sup. Ct. Rep. 104.
Mr. Justice McSeynolds delivered the
opinion of the court :
Defendant in error brought this action
to obtain possession of certain land%
formerly part of the Pottawatomie In-
dian Reservation and now in Pottawa-
•4 li. ed.
tomie county, Kansas, which lie in the
margins of the 400-foot strip claimed by
it as legal successor to the original
grantee. Counsel for plaintiffs in error
well say, but one question is presented
for our determination: "Were the lands
involved in this action public lands'
within the meaning of the acts of Con-
rss dated July 1, 1862 [12 Stat, at
489, chap. 120], and July 2, 1864
[13 Stat, at L. 356, chap. 216], granting
a right of way to the Leavenworth, Paw-
nee, & Western Railroad Company and
its successors?"
The cause was tried by the court be-
low upon pleadings and Agreed State-
ment of Facts; and a memorandum
states the reasons for judgment favoi:-
able to the railroad.
By the Act of July 1, 1862 (12 Stat,
at L. 489, chap. 120), Congress granted
a right of way "200 feet in width on
each side of said railroad, where it may
pass over the public lands'' (Stuart v.
Union P. R. Co. 227 U. S. 342, 345, 57
L. ed. 535, 540, 33 Sup. Ct. Rep. 338),
and declared: *'The United States shall
extinguish as rapidly as may be the In-
dian titles to all lands falling under
the operation of this act, and required
for the said [444] right of way and
grants hereinafter made." Some amend-
ments addled by the Act of July 3, 1866
(14 Stat, at L. 79, chap. 159), are not
specially important here.
It is said that under Treaties of June
5 and 17, 1846, and November 5, 1861,
with the United States (9 Stat, at L. 853;
12 Stat, at L. 1191), the Pottawatomie
Reservation was no part of the "public
lands;" moreover, that Congress lacked
power to grant rights therein to a rail-
road company.
In Kindred v. Union P. R. Co. 225 U.
S. 582, 596, 56 L. ed. 1216, 1220, 32
Sup. Ct. Rep. 780, lands in the Delaware
Diminished Indian Reservation: — east of
the Pottawatomies — ^were declared "pub-
lic lands" within the intendment of the
right-of-way clause. Act of 1862, al-
though then actually occupied by individ-
ual members of the Tribe, under assign-
ments executed as provided by treaty.
That case renders clear the definite pur-
pose of Congress to treat Indian Reser-
vations, subject to its control, as public
lands within the right-of-way provision.
This provision is no£ to be regarded as
bestowing bounty on the railroad; it
stands upon a somewhat different foot-
ing from private grants, and should re*
ceive liberal construction favorable to
the purposes in view. United States v.
1005
444-44i
SLPREME COURT OF THE UNITED STATES.
Oct. Iom,
Denver & R. G. R. Co. 150 U. S. 1, 8, 14,
37 h. ed. 976, 977, 979, 14 Sup. Ct. Rep.
11.
Whether Congress had power to make
grants in respect of the lands here in-
volved must be determined upon a con-
sideration of their historv.
November 14, 1862, the railroad com-
pany accepted the Act of 1862, and dur-
ing 1865 and 1866 duly constructed its
road through the Pottawatomie Reserva-
tion: so far as appears, without protest
or objection,
s By the Treaty of 1846,— article 4,—
the United States agreed to grant to the
Pottawatomie Indians possession and
title to a district 30 miles square, on
the Kansas river, and to guarantee full
and complete possession thereof "as
their land and home forever." 9 Stat,
at L. 854.
In 1861 the same parties entered into
another treaty [445] which stipulated
— articles 1 and 2 — that land within the
Reservation designated by the Treaty of
1846 should be allotted thereafter in sev-
eralty to tribal members who had acquired
customs of the whites, and desired sepa-
rate tracts; that the IJnited States agent
should take an accurate census showing
those desiring to hold in severalty and
those desiring to hold in common, and
"thereupon there shall be assigned, un-
der the direction of the Commissioner
of Indian Affairs," specified amounts of
land, "to include, in every case, as far as
practicable, to each family, their im-
provements and a reasonable portion of
timber, to be selected according to the
legal subdivision of survey."- "When
such assignments shall have been com-
pleted, certificates shall be issued by the
Commissioner of Indian Affairs for the
tracts assigned in severalty-, specifying
the names of the individuals to whom
they have been assigned, respectively,
and that said tracts are set apart for the
perpetual and exclusive use and benefit
of such assignees and their heirs."
Article 5, Treaty of 1861, offered cer-
tain privileges to the railroad company
which were never accepted ; the road was
not constructed as provided by the
treaty, but under the act of Congress.
Subsequent to July 1, 1862, a census
was duly taken; commissioners, appoint-
ed January 16, 1863, made allotments,
and in November, 1863, submitted their
report. The Secretary of the Interior,
December 12, 1864, approved allotments
for the lands now involved to tribal
members having improvements thereon
before the Treaty of 1861, ani who had
continued to live there. Patents thereto
issued at different dates, the earliest
1006
being June 14, 1867, without expressly
reserving a right of way for the railroad.
Plaintiffs in error claim through mesne
conveyances from those who received
such allotments and patents.
It seems plain that, at least, until ac-
tually allotted in [446] severalty (1864),
the Lands were but part of the domain held
by the Tribe under the ordinary Indian
claim, — the right of possession and oc-
cupancy,— with fee in the United States.
Beecher v. Wetherbv, 95 U. S. 517, 525,
24 L. ed. 440, 441. " The power of Con-
gress, as guardian for the Indians, to
legislate in respect of such lands, is set-
tled. Cherokee Nation v. Southern Kan-
sas R. Co. 135 U. S. 641, 653, 34 L. ed.
295, 300, 10 Sup. Ct. Rep. 965; United
States V. Rowell, 243 U. S. 464, 468, 61
L. ed. 848, 851, 37 Sup. Ct. Rep. 425;
United States v. Chase, 245 U. S. 89, 62
L. ed. 168, 38 Sup. Ct. Rep. 24.
The grant of the right of way in 1862
was present and absolute, and, upon
identification of the route, took effect as
of the date of the act. All who there-
after acquired public lands took subject
to such granted right. St. Joseph & D.
C. R. Co. V. Baldwin, 103 U. S. 426, 430,
26 L. ed. 578, 579. Although parties to
the Treaty of 1861 contemplated future
allotments, it made none. No individ-
ual title to any portion of the latad
arose until allotted, and none was al-
lotted until after 1862.
Any claim by plaintiffs in error based
upon adverse occupancy or possession is
precluded by Northern P. R. Co. v.
Smith, 171 U. S. 260, 43 L. ed. 157, 18
Sup. Ct. Rep. 794; Northern P. R. Co. v.
Townsend, 190 U. S. 267, 47 L. ed. 1044,
23 Sup. Ct. Rep. 671 ; Northern P. R. Co.
V. Ely, 197 U. S. 1, 49 L. ed. 639, 25
Sup. Ct. Rep. 302; Kindred v. Union P.
R. Co. 225 U. S. 597, 56 L. ed. 1220, 32
Sup. Ct. Rep. 780.
We find no error in the judgment be-
low, and it is affirmed.
Mr. Justice Clarke dissents.
Mr. Justice Holmes, Mr. Justice Pit-
ney, and Mr. Justice Brandeis did not
participate in consideration or decision
of this case.
[4471 GEORGE C. BEIDLER, Appt.,
V.
UNITED STATES.
(See 8. C Reporter's ed. 447-454.)
Patents — oonstmctlon — state of art.
1. The claim of invention embodied ia
' patent No. 1,057,397, for an improrement
I in photographing and developing apparatut,
95S U. 8.
BEIDLEU V. UNITED STATES.
44^-41»
mast, in tIcw of th« prior art, be restricted
to the discloBed. conBtruction and opera-
tion of the meclianiBm for carrying the
expoBed section of fllra through tlie de-
veloping and other solutions or Itquid^aft^r
it leaver the camera.
. [For other csmb. «ee Pateata, XI. In DlgeR
Sao. Cr. l»(iS.]
Patents — description — disclosure of
invention.
2. A practical and useful inventitin ia
not diBclosed bv patent No. 1,057.397, for
an improvement in photographing and de-
-TBlopiog apparatus, where the short re-
eipracating movement of tlie fltmH^rryiDg
rack, without which the machine confessed-
Ij cannot be successful); operated, is not
disclosed io the patent, as it must be under
U. S. Rev. Stat. § 4888, in order to render
.it valid.
(POf other cai's. ace Pateots. Vrl. b. In Digest
Sup. Ct. VMS.]
(No. 200.]
Argued April 27 and 28, 1!I20. Decided
June 7, 1U20.
APPEAL from the Court of ClaimB to
review a judgment dismiasing the
petittoD in a euit against the United
States to recover damages for the al-
leged iafringement of a patent. Af-
firmed.
See same case below, 53 Ct. CI. 636.
The facts are stated in the opinion.
Mr. OhulM J. WUliuuMii argaed the
cause, and, with Mr. Prank S. Apple-
man, filed a brief for appellant.
Mr. Daniel L. Honis argued the cauB&
and, with Assistant Attorney General
Davis and Mr. Edward O. Curtis, filed
a brief for appellee.
Mr. .Justice Clarke delivered the opin-
ion of the court:
This is a suit to recover damages for
the infringement of five of the forty-
one claims of letters patent No. 1,057,-
397, applied for March 23, 1907, and
granted on March 25, 1913.
The specification describes the claimed
invention aa an Improvement in Photo-
graphing and Developing Apparatus), and
a? designed primarily for reproducing
writings, drawings, pictures, or the like,
— "novel means being also provided lo
convey the sensitized film through a
series of receptacles containing suitable
developing and fizii^ fluids, or through
anitable baths, according to reqn"
menta."
[448] The patent is for a machine
made np of a combination of elementB
all of which wer« old, to produce s
suit which was old, but hy a method of
Note. — As to constraction of patents
— see notes to Dashiell v. Grosvenor, 40
L. ed. U. 8. 1025, and Evans v. Eaton,
4 L. «d. U. S. 433.
«« L. ed.
co-ordination and operation which it is
claimed is new and useful. The inven-
tion is dedared in the apeoifioation to
Bonaist in "the details of construction
and in the arrangement and. combina-
tion of the parts," as "set forth and
claimed" by the inventor.
Figure 1 of the drawings, forming a
part of the specification, will aid in
explaining the eonstmction and function
of the invention as claimed, and in de-
termining the character and extent of
the disclosures of the patent.
[449]
1,067,397.
o '
449-451
SUPREME COURT OF THE UNITED TSTATES.
Oct.
The described mode of operation is
substantially as follows:
W is a roll of sensitised paper or film,
placed immediately below the exposure
chamber F of a camera, with its sensi-
tized surface uppermost to receive the
desired image, reflected from the mirror
H. This film is fed into the chamber
between the rolls b, and thence along
the floor thereof to the rollers D, where
it emerges from the camera and is seized
by "clips" or clamps N. These clamps
are supported and carried by a rack M,
and may be moved to and fro (recipro-
cated) by turning the pinions L on the
shaft Kf by means of a crank.
1, Jf and J' are shallow pans or "tanks"
in wluch suitable "developing," '%dng,"
and "washing" solutions or fluids are
placed, and the whole of the construc-
tion to the right of the camera, as we
face the print, is inclosed in a light-
proof case E, referred to in the patent
sometimes as a "compartment" and some-
times as a "chamber." The rack M, and
the clamps which hold and support the
film, move above the tanks and neces-
sarily above the level of the liquid with-
in them. By turning the pinion L, the
rack M is moved outwardly away from
the camera, and the damps draw the
film after them until the required length
is attained, when it is severed from the
roll by a manually operated cutter, 0.
When the film is thus cut to the [450]
desired length, obviously only the free
end will fall to the surface of the solu-
tion in the tank I, and by continuing the
outward movement of the rack M, the
specification declares, ^he film is carried
through the several tanks." The "dips"
or clamps are set and released auto-
matically, and at the limit of the out-
ward movement the film is released and
falls into the tank J'. By reversing the
turning of the pinions L the rack and
clamps are returned inwardly to the
camera, so that the operation just de-
tailed may be refloated.
The court of claims carries into its
findings of fact fourteen patents as illus-
trative .of the prior art, and with this
exhibit before us we fully agree with
that court that the claim of invention
of appellant must be restricted to the
disclosed construction and operation of
the mechanism for carrying the exposed
section of film ^through the developing
and other solutions or liquids" after it
leaves the camera.
In the description of the operation of
the machine as we have just given it,
there is no provision other than gravity
for causing the free end of the film,
1008
when it is cut from the roll, to sink into
the developing fluid, and the other end
of it is held between the clamps, above
the surface of the fluid, as it is drawii
along from one tank to another. The
court of claims found, that under sneh
conditions of operation all of the tim
would not be submerged with suflioient
rapidity and uniformity to secure a
proper and useful development of the
image, and this conclusion is not se-
riously disputed. But the appellant con-
tends that the required submeig^iee may
be obtained by oscillating the rack and
clamps (and thereby the film) back and
forth within the range of a few inches
when the film is over the first tank I,
with the result that the free end of the
film, first sinking into the fluid, is turned
under and over «id the exposed side
of it wholly submerged and thereby de-
veloped.
[451] In reply to this it is contended
by the government that the disclosures of
the patent do not contain any suggestion
of a short, reciprocating movement of the
rack, such as is thus relied upon, and
that the drawings provide for a con-
struction of the machine which would
be inoperative if such movement were
resorted to.
Upon this subject the flnding of the
court of claims is, that the machine can
be rendered operative only '^y resorting
to a new oscillating mode of operation
evolved by the claimant for submerging
and developing the fllm," and that such
mode of operation is not disclosed in
the patent. On the contrary,- it is es-
pecially found that:
^fBy the method contemplated aiid dis-
closed in the patent, the fllm with the
exposed side up, held at one end b^ the
clamps attached to the rack M and mov-
ing in a plane above the pans containing
the developing and flxing fluids, is in-
tended, by the outward movement of the
rack, to be drawn successively throng^
the developing and flxing fluids, the rack
moving in one direction only through ita
entire course, the end of the fllm next
the knife and away from the danqxa
falling, when severed by the knife, <m
the surface of the developer in the first
pan and submerging by gravity/'
Treating this finding by the court as
an interpretation of the patent, and
therefore as a condusion of hpNr, and
subject to review, we are brought to the
question whether the short, reciprocat-
ing movement of the raek, confessedly
necessary to successful operation of the
machine, is disclosed in the patent, aa
it must be to render it valid. Key. Stat.
MS V. 8.
1919.
BEIDLER V. UNITED STATES.
451-454
§ 4888, Comp. Stat. § 9432, 7 Fed. Stat
2d ed. p. 145.
The only description of the mode of
operation of appellant's nUUshine, and
the statute requires that this must be
the best mode known to the patentee
(Rev. Stat. § 4888), is found in the
specification, and is as follows:
^In order to draw the film through
the several compartments, I provide a
mechanism consisting of a shaft K,
[452] having toothed wheels L, which
mesh with a rack M, the said rack being
suitably guided in the compartment E,
and being alternately reciprocated
through the rotation of the shaft K, in
opposite directions. When the shaft is
turned to the right, the said rack will be
projected from the compartment until
the inner end thereof is nearly above the
shaft K. When the shaft is rotated in
the opposite direction, ^the said rack wilt,
of course, be retracted and thrust into
the compartment. It is the purpose of
this invention that the said rack shall
carry clips N, which are designed to
clamp on the edges of the film Y, and as
the said rack is moved outwardly, the
film is carried through the several tanks
as indicated. The clips are automatically
released and set through the contact with
trips within the casing in the path of
travel of said clips."
We agree with the court of claims
that this language describes a move-
ment of the rack M, carrying the clamps
N in one direction only — outwardly and
progressively away from the camera —
until the movement is completed and
the film is released, and that the recipro-
cating movement referred to in the pat-
ent is the return of the mechanism for
clamping and carrying the film to its
initial position for the purpose of repeat-
ing the operation.
There is nothing in the disclosure or
in the claims to suggest the arresting
of the outward movement of the clamps
as soon as the film is severed from the
roll, and the initiating thereupon of a
short oscillating movement of the mecha-
nism to and fro, until the film shall have
been immersed in the developing liquid
sufficiently to bring out the image photo-
graphed. It is very clear that no such
operation can be derived from the dis-
closure in the patent, and we agree
with the further finding of the court of
claims that, in order to permit ^this
new oscillating mode of operation evolved
by the claimant," material changes
would be required in the construction
of the machine, from that disclosed in
the description and drawings.
[453] The statutes, which are the
§4 li. ed.
source of all patent rights, provide that
a valid patent may be granted for a new
and useful machine, or for a new and
useful improvement thereof (Rev. Stat.
§ 4886), but they require that every ap-
plicant for a patent shall file a written
description of the manner and process of
making and using his invention, ''in such
full, clear, concise, and exact" terms as
to enable any person skilled in the art
to which it relates to make and construct
it, and in case of a machine the descrip-
tion must disclose the best mode in
which the inventor has contemplated
the application of his discovery. Rev.
Stat. § 4888.
Ever since Grant v. Raymond, 6 Pet.
218, 247, 8 L. ed. 376, 386, it has been
consistently held that a correct and ade-
quate description or. disclosure of a
claimed discovery (which, in the case of
a machine, involves particularly the
operation of it) is essential to the va>
lidity of a patent, for the reason that
such a disclosure i^ necessary in order
to give the public the benefit of the in-
vention after the patent shidl expire.
The sonree of the power to grant pat-
ents, and the consideration for granting
them, is the advantage which the public
will derive from them, especially after
the expiration of the patent monopoly,
when the discoveries embodied in them
shall become a part of the public stock
of knowledge.
The application of these requirements
of the law to our conclusion that the
only form of construction of the ma^
chine and the only method of operation
of it which are disclosed in the patent
would not produce a sufficiently uniform
and rapid development of the fifan to
render it useful must result in the ap-
proval of the judgment of the court of
claims, that the patent is invalid and
void, for the reason that it fails to dis-
close a practical and useful invention.
This result, renders it unnecessary to
consider the further conclusion of the
court below that the use by the [454]
United States of photo-copying machines
of a tyi>e known as ''Photostat," manu-
factured and sold under warrant of let-
ters patent issued to D. S. Qreen, No%
1,001,019, would not have constituted an
infringement of appellant's patent had it
proved to be valid. However, for its
bearing on future possiUe controversy
we add that the construction and rela-
tion of the two iqypliances, designed to
produce the same result or product, have
been fully considered, and that we agree
with the conclusion of the C!ourt of
Claims.
Affirmed
64 1009
SUPREME COURT OF THE UNITED STATES.
Oct. Term,
KWOCK JAN FAT, Petitioner,
V.
EDWARD WHITE, as Commissioner of
Immigration at Uie Port of San Fran-
cisco.
(See 8. C. Reporter's ed. 464-465.)
Habeas corpus — petition — construc-
tion — subsequent proceeding.
1. Allegations in tlie petition for ha-
beas corpus sued out by a Cliinese appli-
cant for admission to the United States
may be interpreted in the light of the im-
migration records filed with the petition
and with respondent's return, where, with
such petition, were filed all the testimony
and papers pertaining to the proceedings
prior to the appeal to the Secretary of La-
bor, and there was a prayer that when
the copy of the proceedings thereafter had
should become available, tliey might be
made a part of the petition.
[For other cases, see Habeas Corpus, IV. in
Digest Sup. Ct. 1908.]
Constitutional law — due process of law
— Chinese exclusion.
2. A decision of. the Secretary of La-
bor denying the admission into the United
States of a Chinaman claiming American
citizenship was rendered without the fair
hearing which due process of law demands,
where the only form in which the recogni-
tion of the Chinese applicant by three
white witnesses called by him and examined
in his presence by the government inspector
was placed before the Secretary was a let-
ter wnich the acting commissioner of immi-
gration, who did not himself render the
decision, sent te applicant's counsel and
placed with the record, and where appar-
ently there was no record of such recogni-
tion before the immigration commissioner
when he decided the case.
[For other cases, see Constitutional Law, IV. b,
8. in Diprest Sup. Ct. 1908.]
Appeal — judgment — remanding for
trial.
3. The denial of a fair hearing to a
Chinese applicant who was refused admis-
sion into the United States requires that a
judgment of the Federal circuit court of
appeals which affirmed a judgment of the
district court, sustaining a demurrer to the
petition of such Chinaman for habeas cor-
pus, be reversed and the cause remanded
Koie. — On habeas corpus in Federal
courts — see notes to Tinsley v. Anderson,
43 L. ed. U. S. 92, and Re Reinitz, 4
L.R.A. 236.
As to what constitutes due process of
law, generally— see notes to People v.
O'Briai, 2 L.RJL 255; Kuntz v. Sump-
tion, 2 L.R.A. 655; Re Gannon, 5 IaR.A.
359; Ulman ▼. Baltimore, 11 L.R.A. 224;
Oilman v. Tucker, 13 LJLA. 304; Pear-
son V. Yewdall, 24 L. ed. U. S. 436; and i
Wilson V. North Carolina, 42 L. ed. U. S. |
865.
1010
to the district court for trial of the mer-
its.
[For other cases, see Appeal and Error, IX I,
in Digest Sup. Ct. 1908.]
[No. 'SIS.]
Argued and submitted April 30, 1920. De-
cided June 7, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Ninth Circuit to review a judgment
which affirmed a judgment of the Dis-
trict Court for the Northern District of
California, First Division, sustaining a
demurrer to a petition for habeas cor-
pus. Reversed; writ of habeas corpus
to issue.
See same case below, 166 C. C. A. 493,
255 Fed. 323.
The facts are stated in the opinion.
Mr. Jackson H. Balaton argued the
cause, and, with Mr. Dion R. Holm, died
a brief for petitioner:
A fair hearing must be granted by the
immigration authorities.
Chin Yow v. United States, 208 U. S.
8, 52 L. ed. 369, 28 Sup. Ct. Rep. 201;
Zakonaite v. Wolf, 226 U. S. 272, 57 L
ed. 218, 33 Sup. Ct. Rep. 31; Low Wah
Suey y. Baokns, 225 U. S. 461, 56 L. ed.
1165, 32 Sup. Ct. Rep. 734; IntersUte
Commerce Commission v. Louisville &
N. R. Co. 227 U. S. 88, 91, 57 L. ed.
431, 433, 33 Sup. Ct. Rep. 185; Tang
Tun v. Edsell, 223 U. S. 673, 56 L. ed.
606, 32 Sup. Ct. Rep. 359.
The hearing accorded Kwoek Jan Fat
was inadequate and manifestly unfair.
Chew Hoy Quong v. White, 162 C. C.
A. 103, 249 Fed. 869; Re Can Pon, 93
C. C. A. 635, 168 Fed. 479; Ex parte
Chooey De Ying, 214 Fed. 873.
Assistant Attorney General Stewsit
and Mr. Harry S. Ridgely submitted the
cause for respondent:
These executive hearings are eon-
ducted in a summary manner, and it
would destroy the effectiveness and the
purpose of such hearings if omission to
record a fact or facts considered, which
record is subsequently supplied as in the
case at bar, could be made the basis of
securing a judicial hearing on habeas
corpus.
Ex parte Wong Yee Toon, 227 Fed.
249; Re Jem Yuen, 188 Fed. 353.
It can hardly be contended that peti-
tioner, in a hearing by the immigration
officials, IB entitled to see the official re-
port of the inspector, and even though,
as petitioner contends, it should have
been withdrawn from the record, if not
to be considered as evidence, its reten-
S5S U. 8.
1919.
KVVOCtC JAN FAT v. WHITE.
■4o5-4o7
tion merely made out a case of ineompe-
tent evidence.
Ex parte Pouliot, 196 Fed. 442: Low
Wah Suey v. Backus, 225 U. S. 460, 471,
56 L. ed. 1165, 1168, 32 Sup. Ct. Rep.
734; Tang Tun v. Edsell, 223 U. S. 673,
677, 679, 56 L. ed. 606, 608, 609, 32 Sup.
Ct. Rep. 350: Streeter v. Sanitarv* Dist.
66 C. C. A. 190, 133. Fed. 124.
The mere fact that the findings and
other papers were prepared by the in-
spector does not make the deei:aion any
the less that of the commissioner, for the
findings and papers are so signed.
Tang Tun v. Edsell, 223 U. S. 673, 682,
56 L. ed. 606, 610, 32 Sup. Ct. Rep. 359.
Petitioner has been accorded every op-
portunity to submit all the evidence he
desired. His case has received the care-
ful consideration of the immigration
officials, and the claims of unfair hear-
ing are not well founded.
Ex parte Garcia, 205 Fed. 53.
Mr. Justice Clarke delivered the opin-
ion of the court:
In January*. 1915, Kwock Jan Fat, the
petitioner, intending to leave the Unit-
ed States on a temporarj' visit to China,
filed with the commissioner of immigra-
tion for the port of San Francisco an
application, as provided for by law, for
a '7)reinvestigation of his claimed status
as an American citizen by birth.''
He claimed that he was eighteen years
of age, was bom at Monterey. California,
was the son of Kwock Tuck Lee, then
deceased, who was bom in America of
Chinese parents and had resided at
Monterey for * many years ; that his
mother at the time was living at Mon-
terey; and that there were fi\e children
in the family, — three girls and two
boys.
The Department of Immigration made
an elaborate investigation of the case
presented by this application, taking the
testimony of the petitioner, of his moth-
er, of his brother and one sister, and of
three white men, of whom the inspector
said in his report: "The three white
witnesses are representative men of this
town and would have no motive in mis-
stating the facts." As a result of this
inquiry, the original of his application,
approved, signed, and sealed by the com-
missioner of immigration at San Fran-
cisco, was delivered to the petitioner,
and [456] with this evidence in his pos-
session, which he was amply justified in
believing would secure his readmission
into the United States when he returned,
he went to China.
The record ghows that during his ab-
•4 li. ed.
sence anonymous information reached
the San Francisco Immigration Office (in
which there had been a change of of-
ficials) to the effect that petitioner's
name was not Kwock Jian Fat, as
claimed, but was Leu Suey Chong, and
that he had entered the United States
in 1909 as the minor son of a merchant,
Lew "Wing Tong, of Oakland, California.
Thereupon an investigation was conduct-
ed, chiefly by the comparison of photo-
graphs, for the purpose of determining
the truthfulness of this anonymous sug-
gestion, with the result that when the
petitioner returned to San Francisco he
was not allowed to land, and a few days
thereafter was definitely denied entry
to the country by the commissioner of
immigration. Thereafter, this decision
of the commissioner was reconsidered,
the case reopened, and testimony for
and against the petitioner was taken,
but the commissioner adhered to his de-
nial of admission. The only reason giv-
en for the decision was ''the claimed
American citizenship is not, established
to my satisfaction."
Thereupon an appeal was taken to the
Secretary of Labor, who approved the
order appealed from.
Promptly thereafter the petition for a
writ of habeas corpus in this case was
filed, which is based ohiefiy upon two
claims, viz. :
(1) That the examining inspector re-
ported to the commissioner of immigra-
tion as evidence, statements purporting
to have been obtained from witnesses
under promise that their names would
not be disclosed, and that when demand
was made for the names of such witness-
es for purpose of reply, it was refused,
with the result that petitioner did not
have a fair hearing.
(2) That the examining inspector did
not record an [457] important part of
the testimony of three white witnesses
called by petitioner, with the result that
it was not before the commissioner of
immigration or the Secretary of Labor
when they decided adversely to him, and
thereby he was arbitrarily denied a fair
hearing.
A general demurrer to this petition
was sustained by the district court, and
on appeal to the circuit court of appeals
that judgment was affirmed. The case
is here on writ of certiorari.
With the petition were filed all of the
testimony and papers pertaining to the
proceedings prior to the ap^al to the
Secretary of Labor, and since it is prayed
that when the copy of the proceedings
thereafter had shall become available,
1011
441>-451
SUPREME COURT OF THE UNITED STATES.
Oct. Tbhi,
The described mode of operation is
substantially as follows:
W is a roll of sensitized paper or film,
placed immediately below the exposure
chamber F of a camera, with its sensi-
tized surface ui^rmost to receive the
desired image, reflected from the mirror
H. This film is fed into the chamber
between the rolls b, and thence along
the floor thereof to the rollers D, where
it emerges from the camera and is seized
by ''clips'' or clamps N. These clamps
are supported and carried by a rack M,
and may be moved to and fro (recipro-
cated) by turning the pinions L on the
shaft Ky by means of a crank.
I, J, and y are shallow pans or ''tanks"
in which suitable "developing," "fljdng,"
and "washing" solutions or fluids are
placed, and the whole of the construc-
tion to the right of the camera, as we
face the print, is inclosed in a light-
proof case £, referred to in the patent
sometimes as a "compartment" and some-
times as a "chamber." The rack M, and
the clamps which hold and support the
film, move above the tanks and neces-
sarily above the level of the liquid with-
in them. By turning the pinion L, the
rack M is moved outwardly away from
the camera, and the clamps draw the
film after them until the required length
is attained, when it is severed from the
roll by a manually operated cutter, O.
When the film is thus cut to the [450]
desired length, obviously' only the free
end will fall to the surface of the solu-
tion in the tank I, and by continuing the
outward movement of the rack M, the
specification declares, ^he film is carried
through the several tanks." The "clips"
or clamps are set and released auto-
matically, and at the limit of the out-
ward movement the film is released and
falls into the tank J'. By reversing the
turning of the pinions L the rack and
clamps are returned inwardly to the
camera, so that the operation just de-
tailed may be repeated.
The court of claims carries into its
findings of fact fourteen patents as illus-
trative .of the prior art, and with this
exhibit before us we fully agree with
that court that the claim of invention '
of appellant must be restricted to the
disclosed construction and operation of
the mechanism for carrying the exposed
section of film "through the developing
and other solutions or liquids" after it
leaves the camera.
In the description of the operation of
the machine as we have just given it,
there is no provision other than gravity
for causing the Iree end of the film,
1008
when it is cut from the roll, to sink into
the developing fiuid, and the other end
of it is held between the clamps, abofve
the surface of the fiuid, as it is drawn
along from one tank to another. The
court of claims found, that under such
conditions of operation all of the fih»
would not be submerged with sufficient
rapidity and uniformity to secure a
proper and useful development of the
image, and this conclusion is not se-
riously disputed. But the appellant ccm-
tends that the required submeigence nay
be obtained by oscillating the rack and
clamps (and thereby the film) back and
forth within the range of a few inches
when the film is over the first tank I,
with the result that the free end of the
film, first sinking into the fluid, is turned
under and over and the exposed side
of it wholly submerged and thereby de-
veloped.
[451] In reply to this it is contended
by the government that the disclosures of
the patent do not contain any suggestion
of a short, reciprocating movement of the
rack, such as is thus relied upon, and
that the drawings provide for a con-
struction of the machine which would
be inoperative if such movement were
resorted to.
Upon this subject the finding of the
court of claims is, that the machine can
be rendered operative only "by resorting
to a new oscillating mode of operation
evolved by the claimant for submerging
and developing the film," and that such
mode of operation is not disclosed in
the patent. On the contrary,- it is es-
pecially found that:
"By the method contemplated and dis-
closed in the patent, the film with the
exposed side up, held at one end by the
clamps attached to the rack M and mov-
ing in a plane above the pans containing
the developing and fixing fluids, is in-
tended, by the outward movement of the
rack, to be drawn successively through
the developing and fixing fiuids, the raiek
moving in one direction only through its
entire course, the end of the film next
the knife and away from the clanqps
falling, when severed by the knife, od
the surface of the developer in the first
pan and submerging by gravity."
Treating this finding by the court u
an interpretation of the patent, and
therefore as a conclusion of law, and
subject to review, we are brou^t to the
question whether the short, recipioeat-
ing movement of the rack, confeesedlj
necessary to successful (q^mtion of tbe
machine, is disclosed in the patent, as
it must be to render it valid. Kev. Btat
1919.
BEIDLER V. UNITED STATES.
451-454
§ 4888, Comp. Stat. § 9432, 7 Fed. Stat
2d ed. p. 145.
The only description of the mode of
operation of appellant's mAehine, and
the statute requires that this must be
the best mode known to the patentee
(Rev. Stat. § 4888), is found in the
specification, and is as follows:
"In order to draw the film through
the several compartments, I provide a
mechanism consisting of a shaft K,
[4L52] having tooth^ wheels L, which
mesh with a rack M, the said rack being
suitably guided in the compartment E,
and being alternately reciprocated
through the rotation of the shaft K, in
opposite directions. When the shaft is
turned to the right, the said rack will be
projected from the compartment until
the inner end thereof is nearly above the
shaft K. When the shaft is rotated in
the opposite direction, the said rack will,
of course, be retracted and thrust into
the compartment. It is the purpose of
this invention that the said rack shall
carry clips N, which are designed to
clamp on the edges of the film Y, and as
the said rack is moved outwardly, the
film is carried through the several tanks
as indicated. The clips are automatically
released and set through the contact with
trips within the casing in the path of
travel of said clips."
We agree with the court of claims
that this language describes a move-
ment of the rack M, carrying the clamps
N in one direction only — outwardly and
progressively away from the camera —
untU the movement is completed and
the film is released, and that the recipro-
cating movement referred to in the pat-
ent is the return of the mechanism for
clamping and carrying the film to its
initial position for the purpose of repeat-
ing the operation.
There is nothing in the disclosure or
in the claims to suggest the arresting
of the outward movement of the clamps
as soon as the film is severed from the
roll, and the initiating thereupon of a
short oscillating movement of the mecha-
nism to and fro, until the film shall have
been immersed in the developing liquid
sufficiently to bring out the image photo-
graphed. It is very clear that no such
operation can be derived from the dis-
closure in the patent, and we agree
with the further finding of the court of
claims that, in order to permit "this
new oscillating mode of operation evolved
by the claimant,^' material changes
would be required in the construction
of the machine, from that disclosed in
the description and drawings.
[453] The statutes, which are the
•4 I/, ed.
source of all patent rights, provide that
a valid patent may be granted for a new
and useful machine, or for a new and
useful improvement thereof (Rev. Stat.
§ 4886), but they require that every ap-
plicant for a patent shall file a written
description of the manner and process of
making and using his invention, "in sueh
full, clear, concise, and exact'' tenns as
to enable any person skilled in the art
to which it relates to make and construct
it, and in case of a machine the descrip-
tion must disclose the best mode in
which the inventor has contemplated
the application of his discovery. Rev.
Stat. § 4888.
Ever since Grant v. Raymond, 6 Pet.
218, 247, 8 L. ed. 376, 386, it has been
consistently held that a correct and ade-
quate description or. disclosure of a
claimed discovery (which, in the case of
a machine, involves particularly the
operation of it) is essential to the va-
lidity of a patent, for the reason that
such a disclosure i^ necessary in order
to give the public the benefit of the in-
vention after the patent shall expire.
The source of the power to grant pat-
ents, and the consideration for gpranting
them, is the advantage which the public
will derive from them, especially after
the expiration of the patent monopoly,
when the discoveries embodied in them
shall become a part of the public stock
of knowledge.
The application of these requirements
of the law to our conclusion that the
only form of construction of the ma-
chine and the only method of operation
of it which are disclosed in the patent
would not produce a sufficiently uniform
and rapid development of the film to
render it useful must result in the ap-
proval of the judgment of the court of
claims, that the patent is invalid and
void, for the reason that it fails to dis-
close a practical and useful invention.
This result, renders it unnecessary to
consider the further conclusion of the
court below that the use by the [454]
United States of photo-copying machines
of a type known as "Photostat," manu-
factured and sold under warrant of let-
ters patent issued to D. S. Green, No»
1,001,019, would not have constituted an
infringement of appellant's patent had it
proved to be vaHd. However, for its
bearing on future possible controversy
we add that the construction and rela-
tion of the two appliances, designed to
produce the same result or product, have
been fully considered, and that we agree
with the conclusion of the Court of
Claims.
Affirmed
64 1009
449-451
SUPREME COURT OF THE UXITED STATES.
Oct.
The described mode of operation is
substantially as follows:
W is a roil of sensitized paper or film,
placed immediately below the exposure
chamber F of a camera, with its sensi-
tized surface ni^rmost to receive the
desired image, reflected from the mirror
H. This film is fed into the chamber
between the rolls b, and thence along
the floor thereof to the rollers D, where
it emerges from the camera and is seized
by ''dips'' or clamps N. These clamps
are supported and carried by a rack M,
and may be moved to and fro (recipro-
cated) by turning the pinions L on the
shaft Ky by means of a crank.
I, J, and y are shallow pans or 'Hanks"
in which suitable "developing/' "flxing,"
and "washing" solutions or fluids are
placed, and the whole of the construc-
tion to the right of the camera, as we
face the print, is inclosed in a light-
proof case £, referred to in the patent
sometimes as a "compartment" and some-
times as a "chamber." The rack M, and
the clmnps which hold and support the
film, move above the tanks and neces-
sarily above the level of the liquid with-
in them. By turning the pinion L, the
rack M is moved outwardly away from
the camera, and the clamps draw the
film after them until the required length
is attained, when it is severed from the
roll by a manually operated cutter, O.
When the film is thus cut to the [450]
desired length, obviously only the free
end will fall to the surface of the solu-
tion in the tank I, and by continuing the
outward movement of the rack M, the
specification declares, ^he film is carried
through the several tanks." The "clips"
or clamps are set and released auto-
matically, and at the Iknit of the out-
ward movement the film is released and
falls into the tank J'. By reversing the
turning of the pinions L the rack and
clamps are returned inwardly to the
camera, so that the operation just de-
tailed may be repeated.
The court of claims carries into its
findings of fact fourteen patents as illus-
trative .of the prior art, and with this
exhibit before us we fully agree with
that court that the claim of invention '
of appellant must be restricted to the
disclosed construction and operation of
the mechanism for canning the exposed
section of film "through the developing
and other solutions or liquids" after it
leaves the camera.
In the description of the operation of
the machine as we have just given it,
there is no provision other than gravity
for causing the free end of the film,
1008
when it is cut from the roll, to sink into
the developing fiuid, and the other end
of it IS held between the clamps, above
the surface of the fiuid, as it is draws
along from one tank to another. The
court of claims found, that under siieb
conditions of operation all of the filtt
would not be submerged with sufBoieot
rapidity and uniformity to secure a
proper and useful development of the
image, and this conclusion is not se-
riously disputed. But the appellant con-
tends that the required submeigence nay
be obtained by oscillating the rack and
clamps (and thereby the film) back and
forth within the range of a few inches
when the film is over the first tank I,
with the result that the free end of the
film, first sinking into the fluid, is turned
under and over and the exposed side
of it wholly submerged and thereby de-
veloped.
[451] In reply to this it is contended
by the government that the disclosures of
the patent do not contain any suggestion
of a short, reciprocating movement of the
rack, such as is thus relied upon, and
that the drawings provide for a eon-
stmction of the machine which would
be inoperative if such movement were
resorted to.
Upon this subject the finding of the
court of claims is, that the machine can
be rendered operative only "by resorting
to a new oscillating mode of operation
evolved by the claimant for submerging
and developing the film," and that such
mode of operation is not disclosed in
the patent. On the contrary,* it is es-
pecially found that:
"By the method contemplated and dis-
closed in the patent, the film with the
exposed side up, held at one end b^ the
clamps attached to the rack M and mov-
ing in a plane above the pans containing
the developing and fixing fluids, is in-
tended, by the outward movement of the
rack, to be drawn successively through
the developing and flxing fluids, the rack
moving in one direction only through its
entire course, the end of the film next
the knife and away from the clamps
falling, when severed by the knife, od
the surface of the developer in the first
pan and submerging by gravity."
Treating this finding by the court sf
an interpretation of the patent, aod
therefore as a conclusion of law, aod
subject to review, we are brou^t to the
question whether the short, reciprocat-
ing movement of the rack, confessedtj
necessary to successful <q»mtion of tht
machine, is disclosed in the patent, as
it must be to render it valid. Rev. Stat
1919.
BEIDLER V. UNITED STATES.
451-454
'W
7
'if
ft »
§ 4888, Comp. Stat. § 9432, 7 Fed. Stat
2d ed. p. 145.
The only description of the mode of
operation of appellant's mdchine, and
the statute requires that this must be
the best mode known to the patentee
(Rev. Stat. § 4888), is found in the
specification, and is as follows:
'^In order to draw the film through
the several compartments, I provide a
mechanism consisting of a shaft K,
[4L52] having tooth^ wheels L, which
mesh with a rack M, the said rack being
suitably guided in the compartment E,
and being alternately reciprocated
through the rotation of the shaft K, in
opposite directions. When the shaft is
turned to the right, the said rack will be
projected from the compartment until
the inner end thereof is nearly above the
shaft K. When the shaft is rotated in
the opposite direction, the said rack will,
of course, be retracted and thrust into
the compartment. It is the purpose of
this invention that the said rack shall
carry clips N, which are designed to
clamp on the edges of the film Y, and as
the said rack is moved outwardly, the
film is carried through the several tanks
as indicated. The clips are automatically
released and set through the contact with
trips within the casing in the path of
travel of said dips."
We agree with the court of claims
that this language describes a move«
ment of the rack M, carrying the clamps
N in one direction only — outwardly and
progressively away from the camera —
untU the movement is completed and
the film is released, and that the recipro-
cating movement referred to in the pat-
ent is the return of the mechanism for
clamping and carrying the film to its
initial position for the purpose of repeat-
ing the operation.
There is nothing in the disclosure or
in the claims to suggest the arresting
of the outward movement of the clamps
as soon as the film is severed from the
roll, and the initiating thereupon of a
short oscillating movement of the mecha-
nism to and fro, until the film shall have
been immersed in the developing liquid
sufficiently to bring out the image photo-
graphed. It is very clear that no such
operation can be derived from the dis-
closure in the patent, and we agree
with the further finding of the court of
claims that, in order to permit ^this
new oscillating mode of operation evolved
by the claimant,'^ material changes
would be required in the construction
of the machine, from that disclosed in
the description and drawings.
[4531 The statutes, which are the
•4 I/, ed.
source of all patent rights, provide that
a valid patent may be granted for a new
and useful machine, or for a new and
useful improvement thereof (Rev. Stat.
§ 4886), but they require that every ap>
plicant for a patent shall file a written
description of the manner and process of
making and using his invention, ''in such
full, clear, concise, and exact" terms as
to enable any person skilled in the art
to which it relates to make and construct
it, and in case of a machine the descrip-
tion must disclose the best mode in
which the inventor has contemplated
the application of his discovery. Rev.
Stat. § 4888.
Ever since Grant v. Raymond, 6 Pet.
218, 247, 8 L. ed. 376, 386, it has been
consistently held that a correct and ade-
quate description or. disclosure of a
claimed discovery (which, in the case of
a machine, involves particularly the
operation of it) is essential to the va^
lidity of a patent, for the reason that
such a disclosure i^ necessary in order
to give the public the benefit of the in-
vention after the patent shall expire.
The source of the power to grant pat-
ents, and the consideration for granting
them, is the advantage which the public
will derive from them, especially after
the expiration of the patent monopoly,
when the discoveries embodied in them
shall become a part of the public stock
of knowledge.
The application of these requirements
of the law to our conclusion that the
only form of construction of the ma-
chine and the only method of operation
of it which are disclosed in the patent
would not produce a sufficiently uniform
and rapid development of the film to
render it useful must result in the ap-
proval of the judgment of the court of
claims, that the patent is invalid and
void, for the reason that it fails to dis-
close a practical and useful invention.
This result, renders it unnecessary to
consider the further conclusion of the
court below that the use by the [454]
United States of photo-copying machines
of a type known as **Photostat," manu-
factured and sold under warrant of let-
ters patent issued to D. S. Chreen, No»
1,001,019, would not have constituted an
infringement of appellant's patent had it
proved to be valid. However, for its
bearing on future possible controversy
we add that the construction and rela-
tion of the two appliances, designed to
produce the same result or product, have
been fully considered, and that we agree
with the conclusion of the Court of
Claims.
Affirmed
64 1009
SUPREME COURT OF THE UNITED STATES.
Oct. T£Sm,
KWOCK JAN FAT, Petitioner,
V.
EDWARD WHITE, as Commissioner of
Immigration at the Port of San Fran-
cisco.
(See 8. C. Reporter's ed. 464-465.)
Habeas corpus — petition — oonstrac-
tion — subsequent proceeding.
1. Allegations in the petition for ha-
beas corpus sued out by a Chinese appli-
cant for admission to the United States
may be interpreted in the light of the im-
migration records filed with the petition
and with respondent's return, where, with
such petition, were filed all the testimony
and papers pertaining to the proceedings
prior to the appeal to the Secretary of La-
bor, and there was a prayer that when
the copy of the proceedings* thereafter had
should become available, they might be
made a part of the petition.
(For other cases, see Habeas Corpus, IV. In
Digest Sup. Ct. 1908.]
Constitutional law — due process of law
— Chinese exclusion.
2. A decision of. the Secretary of La-
bor denying the admission into the United
States of a Chinaman claiming American
citizenship was rendered without the fair
hearing which due process of law demands,
where the only form in which the recogni-
tion of the Chinese applicant by three
white witnesses called by him and examined
in his presence by the government inspector
was placed before the Secretary was a let-
ter Tmich the acting commissioner of immi-
gration, who did not himself render the
decisicm, sent to applicant's counsel and
placed with the record, and where appar-
ently there was no record of such recogni-
tion before the immigration commissioner
when he decided the case.
[For other cases, see Constittitional Law, IV. b,
8. in Digest Sup. Ct. 1908.]
Appeal — Judgment — remanding for
trial.
3. The denial of a fair hearing to a
Chinese applicant who was refused admis-
sion into the United States requires that a
judgment of the Federal circuit court of
appeals which affirmed a judgment of the
district court, sustaining a demurrer to the
petition of such Chinaman for habeas cor-
pus, be reversed and the cause remanded
Note. — On habeas corpus in Federal
courts — see notes to Tinsley v. Anderson,
43 L. ed. U. S. 92, and Re Beinitz, 4
L.R.A. 236.
As to what constitutes due process of
law, generally — see notes to People v.
O'Brien, 2 L.BJL 255; Kunts v. Sump-
tion, 2 ULA. 655; Re Gannon, 5 L.R.A.
359; Ulman v. Baltimore, 11 L.R.A. 224;
Oilman v. Tueker, 13 L.R.A. 304; Pear-
son V. Yewdall, 24 L. ed. U. S. 436; and
Wilson V. North Carolina, 42 L. ed. U. S.
865.
1010
to the district court for trial of the mer-
its.
[For other cases, see Appeal and Error, IX. I,
in Digest Sup. Ct. 1908.]
[No. '313.]
Argued and submitted April 30, 19*20. De-
cided June 7, 1920.
ON WRIT of Certiorari to the United
States Circuit Court of Appeals for
the Ninth Circuit to review a judgment
which affirmed a judgment of the Dis-
trict Court for the Northern District of
California, First Division, sustaining a
demurrer to a petition for habeas cor-
pus. Reversed; writ of habeas corpus
to issue.
See same case below, 166 C. C. A. 493,
255 Fed. 323.
The facts are stated in the opinion.
Mr. Jackson H. Ralston argued the
cause, and, with Mr. Dion B. Holm, filed
a brief for petitioner:
A fair hearing must be granted by the
immigration authorities.
Chin Yow v. United States, 208 U. S.
8, 52 L. ed. 369, 28 Sup. Ct. Bep. 201;
Zakonaite v. Wolf, 226 U. S. 272, 57 L
ed. 218, 33 Sup. Ct. Rep. 31 ; Low Wab
Suey v. Backus, 225 U. S. 461, 56 L. ed.
1165, 32 Sup. Ct. Rep. 734; Interstate
Commerce Conunission v. Louisville &
N. R. Co. 227 U. S. 88, 91, 57 L. ed.
431, 433, 33 Sup. Ct. Rep. 185; Tang
Tun V. EdseU, 223 U. S. 673, 56 L. ed.
606, 32 Sup. Ct. Rep. 359.
The hearing accorded Kwock Jan Fat
was inadequate and manifestly unfair.
Chew Hoy Quong v. White, 162 C. C.
A. 103, 249 Fed. 869; Re Can Pon, 93
C. C. A. 635, 168 Fed. 479; Ex parte
Chooey De Ying, 214 Fed. 873.
Assistant Attorney General Stewart
and Mr. Harry 8. Bidgely submitted the
cause for respondent:
These executive hearings are con-
ducted in a summary manner, and it
would destroy the effectiveness and the
purpose of such hearings if omission to
record a fact or facts considered, which
record is subsequently supplied as in the
case at bar, could be made the basis of
securing a judicial hearing on habeas
corpus.
Ex parte Wong Yee Toon, 227 Fed.
249; Re Jem Yuen, 188 Fed. 353.
It can hardly be contended that peti-
tioner, in a hearing by the inmugration
ofBicials, is entitled to see the official re-
port of the inspector, and even thoagfa*
as petitioner contends, it should have
been withdrawn from the record, if not
to be considered as evidence, its reten-
SSS V, s.
1019.
IvVVOCK' J AS FAT v. WHITE.
455-457
tion merely made out a case of incompe-
tent evidence.
Ex parte Pouliot, 196 Fed. 442; Low
Wah Suey v. Backus, 225 U. S. 460, 471,
56 L. ed. 1165, 1168, 32 Sup. Ct. Rep.
734; Tang Tun v. Edsell, 223 U. S. 673,
677, 679, 56 L. ed. 606, 608, 609, 32 Sup.
Ct. Rep. 350; Streeter v. Sanitary Dist.
66 C. C. A. 190, 133 Fed, 124,
The mere fact that the findings and
other papers were prepared by the in-
spector does not make the decision any
the less that of the commissioner, for the
findings and papers are so signed.
Tang Tun v. Edsell. 223 U. S. 673, 682,
66 L. ed. 606, 610, 32 Sup. Ct, Rep. 359.
Petitioner has been accorded every op-
portunity to submit all the evidence he
desired. His case has received the care-
ful consideration of the immigration
officials, and the claims of unfair hear-
ing are not well founded.
Ex parte Garcia, 205 Fed. 53.
Mr. Justice Clarke delivered the opin-
ion of the court :
In Januar>% 1915, Kwock Jan Fat, the
petitioner, intending to leave the Unit-
ed States on a temporary visit to China,
filed with the commissioner of immigra-
tion for the port of San Francisco an
application, as provided for by law, for
a "preinvestigation of his claimed status
as an American citizen by birth."
He claimed that he was eighteen years
of age, was bom at Monterey, California,
was the son of Kwock Tuck Lee, then
deceased, who was bom in America of
Chinese parents and had resided at
Monterey for * many years ; that his
mother at the time was living at Mon-
terey; and that there were ftve children
in the family, — three ^rls and two
boys.
The Department of Immigration made
an elaborate investigation of the case
presented by this application, taking the
testimony of the petitioner, o£ his moth-
er, of his brother and one sister, and of
three white men, of whom the inspector
said in his report: "The three white
witnesses are representative men of this
town and would have no motive in mis-
stating the facts.'' As a result of this
inquiry, the original of his application,
approved, signed, and sealed bv the com-
missioner of immigration at San Fran-
cisco, was delivered to the petitioner,
and [456] with this evidence in his pos-
session, which he was amply justified in
believing would sectire his readmission
into the United States when he returned,
he went to China.
The record shows that during his ab-
•4 li. ed.
sence anonymous information reached
the San Francisco Immigration Office (in
which there had been a change of of-
ficials) to the effect that petitioner's
name was not Kwock Jjan Fat, as
claimed, but was Leu Suey Chong, and
that he had entered the United States
in 1909 as the minor son of a merchant,
Lew Wing Tong, of Oakland, California.
Thereupon an investigation was conduct-
ed, chiefly by the comparison of photo-
graphs, for the purpose of determ,ining
the truthfulness of this anonymous sug-
gestion, with the result that when the
petitioner returned to San Francisco he
was not allowed to land, and a few days
thereafter was definitely denied entrj-
to the country by the commissioner of
immigration. Thereafter, this decision
of the commissioner was reconsidered,
the case reopened, and testimony for
and against the petitioner was taken,
but the commissioner adhered to his de-
nial of admission. The only reason giv-
en for the decision was ''the claimed
American citizenship is not, established
to my satisfaction."
Thereupon an appeal was taken to the
Secretary of Labor, who approved the
order appealed from.
Promptly thereafter the petition for a
writ of habeas corpus in this case was
filed, which is based chiefiy upon two
claims, viz.:
(1) That the examining inspector re-
ported to the commissioner of immigra-
tion as evidence, statements purporting
to have been obtained from witnesses
under promise that their names would
not be disclosed, and that when demand
was made for the names of such witness-
es for purpose of reply, it was refused,
with the result that petitioner did not
have a fair hearing.
(2) That the examining inspector did
not record an [457] important part of
the testimony of three white witnesses
called by petitioner, with the result that
it was not before the commissioner of
immigration or the Secretary of Labor
when they decided adversely to him, and
thereby he was arbitrarily denied a fair
hearing.
A general demurrer to this petition
was sustained by the district court, and
on appeal to the circuit court of appeals
that judgment was affirmed. The case
is here on writ of certiorari.
With the petition were filed all of the
testimony and papers pertaining to the
proceedi]^ prior to the ap^al to the
Secretary of Labor, and since it is prayed
that when the copy of the proceedings
thereafter had ^hall become available,
1011
457-469
SUPREME COURT OF THE UNITED STATES.
Oct. Tnoi,
they may be made a part of the peti-
tion, it was proper for the courts below,
and is proper for this court, to interpret
the allegations of the petition, giving
due effect to the immigration records'
filed with the petition and with respond-
ent's return. Low Wah Suey v. Backus,
225 U. S. 460, 469, 472, 56 L. ed. 1165,
1 168, 1169, 32 Sup. Ct. Rep. 734
(3) It is not disputed that if petitioner
is the son of Kwock Tuck Lee and his
wife,. Tom Ying Shee, he was bom to
them when they were permanently domi-
ciled in the United States, is a citizen
thereof, and is entitled to admission to
the country. United States v. Wong Kim
Ark, 169 U. S. 649, 42 L. ed. 890, 18
Sup. Ct. Rep. 456. But while it is eon-
ceded that he is certainly the same per-
son who, upon full investigation, was
found, in March, 1915, by the then com-
missioner of immigration, to be lEt nat-
ural bom American citizen, the claim
is that that commissioner was deceived,
and that petitioner is really Lew Suey
Chong, who was admitted to this coun-
try in 1909, as son of a Chinese mer-
chant, Lew Wing Tong, of Oakland,
California.
It is fully settled that the decision by
the Secretary of Labor, of such a ques-
tion as we have here, is final, and con-
elusive upon the courts, unless it be
shown that the proceedings were '^mani-
festly unfair," were "such as to prevent
[458]. a fair investigation," or show
^'manifest abuse" of the discretion com-
mitted to the executive officers by the
statute (Low Wah Suey v. Backus,
supra), or that ''their authority was not
fairly exercised; that is,' consistently
with the fundamental principles of jus-
tice embraced within the conception of
due process of law." Tang Tun v. Edsell,
223 U. S. 673, 681, 682, 56 L. ed. 606,
610, 32 Sup. Ct. Rep. 359. The decision
must be after a hearing in good faith,
however siunmary (Chin Yow v. United
States, 208 U. S. 8, 12, 52 L. ed. 369,
370, 2S Sup. Ct. Rep. 201), and it must
tind adequate support in the evidence
(Zakonaite v. Wolf, 226 U. S. 272, 274,
57 L. ed. 218, 220, 33 Sup. Ct. Rep. 31).
As to the first ground of complaint
in the petition for habeas corpus:
After the final decision by the oom-
missioner of immigration adverse to pe-
titioner, his counsel requested an oi^x>r-
t unity to examine the record on which
it was rendered. This request was g^nt-
ed, and promptly thereafter demand was
made for permission to see the testi-
uxony referred to, but not reported, in a
designated report of Inspector Wilkin-
lOll
son. Assistant Commissioner Boyee an-
swered this request, saying:
"The portion df Inspector Wilkinson's
report which was withheld from you con-
tained no evidence whatsoever and noth-
ing material to the issue in this ease.
As a matter of fact, this inspector's
report in no way influenced my decision,
and was useful only in locating other
material witnesses, whose testimony ap-
pears in the record."
This report appears in the record be*
fore us, and is of a remarkable char-
acter. It is dated August 8th, and after
saying that "only upon the assurance
that the identity of the witness would
be kept secret" could the information
contained in it be obtained, the writer
proceeds with much detail to narrate
what, if believed, would be evidence of
first importance making against the
claim of petitioner. The report con*
tinues, that after his first visit the in-
spector [459] returned to Monterey
and learned from his confidential witness
that in the interval he had inquired of
"an old* Chinese resident" who said that
"Tuck Lee had no son," and adds, "I
was unable to ascertain the name of this
Chinese person."
On the margin of this letter is written
August 8, 1917, "approved, Edward
White" (the immigration commissioner).
In this manner, with much detaO,
statements of a person who must remain
unknown, and in part derived from an-
other person who must remain unknown,
were communicated by the investigat-
ing inspector to his supei;ior, who was to
dispose of the case on the evidence
which was furnished him, and he, in
form at least, approved of this import
This approval is explained by the acting
conmiissioner as referring to the recom-
mendation contained in it that further
investigation should be made, and there
is confirmation of this explanation in
the fact that the record shows that im-
mediately thereafter evidence of the
character suggested in the report wts
taken in affijdavits which were open to
the insi>ection of the petitioner. While
we would not give the weight to these
affidavits which the commissioner of im-
migration and the Secretary of Labor
seem to have given to them, neverthe-
less, when taken with the statement of
the acting commissioner that the inspec-
tor's report objected to was not allowed
to infiuence his decision, we might not
say that the taking and reporting of the
testimony objected to of witnesses whose
names are not disclosed, rendered the
hearing so manifestly unfair as to le^
25S 17. 8.
int.
KWOCK JAN FAT v. VVHITK.
43l»-46ti
quire reversal, if there were nothing
etoe objeetionable in the reeord.
There remains the question whether
the hearing accorded to the petitioner
was unfair and inconsistent with the
fundamental principles of justice em-
braced within the conception of due proc-
ess of law because an inspector failed
to record in its proper place an impor-
tant part of [460] the testimony of
three white witnesses called by the peti-
tioner.
A discussion of what the record shows
and of the character of the witnesses
involTed will be necessary to an ap-
preciation of the importance, in deter-
mining the issue presented, of having a
full report of what was said and done
by these three witnesses.
When the petitioner, before going to
China, applied for a preinvestigation of
his claimed status as an American citi-
zen, three white witnesses from Mon-
terey were called in his behalf, — two of
whom were notable.
Ernest Michaelis, for twenty-six years
a justice of the peace, and for many
years the official collector of fish li-
censes, testified^ making reference, for
purpose of identification, to a photo-
graph of the petitioner. He said he
had known the parents of the boy since
shortly after he himself went to live at
Monterey, in 1879; that there were two
boys and three girls in the family; that
he had seen the petitioner frequently as
a little fellow when he went to collect
fish licenses (the boy's father was a
fisherman) ; and had known him ever
since; and, referring to the photograph,
he declared positively that he was sure
of his identity, and that he was bom
in Monterey. He added that the father
of the boy was native bom and was a
voter in that community.
W. E. Parker testified that he had been
agent for the Wells Fargo Company at
Monterey for twenty-five years, and was
also chief of the fire department and
city clerk for many years. He said,
referring to a photograph of petitioner,
that he had known the parents of the
boy for many years and the boy him-
self since he was five or six years old;
that he remembered two boys and at
least one girl, but later he stated that
he recalled that there were three giris
in the family, and his identification of
the petitioner by photograph was very
definite. He stated that the father of
the boy was a fisherman and shipped fish
frequently [461] by express, so that he
came to know him well and his wife also,
because she often transacted business for
•4 I/, ed.
her husband. He recalled that after the
fire and earthquake the petitioner was
sent to school at San Francisco, but re-
turned to Monterey every few months
when he saw him.
A third witness, Manuel Ortins, a re-
tired business man, gave similar testi-
mony, but it is not so definite and cir-
cumstantial as that of the others and
need not be detailed.
The government inspector to whom
the case in this preliminary stage was
referred, wrote the commissioner of im-
migration at San Francisco that the tes-
timony of petitioner, of his alleged
brother, his mother, and three credible
white witnesses, had been taken; that
the petitioner gave his testimony mostly
in English, presented a good appearance
and ''tells his story in a straightfor
ward manner in a way to convince one
that he is telling the truth,'' and that
"the three white witnesses are repre-
sentative men of this town and would
have no motive in misstating the facts."
He concluded with the statement that in
his mind there was no doubt that the
Chinaman named Quock Tuck Lee
(claimed by applicant to be his faither)
had lived in Pacific Grove (tlie China-
town of Monterey), and was a regis-
tered voter there; that he was married
and had several children, and that the
testimony seemed to prove that the peti-
tioner was a member of his family. He
added that a sister of the boy lived at
a given number in Chicago, and suggest-
ed that her testimony should be taken.
This sister's testimony was taken, as
recommended, and then the inspector
reported to the commissioner of immi-
gration that her testimony did not vary
in the main from that of the mother or
brother of the petitioner; that 'Hhe white
witnesses. Judge Michaelis, and chief of
the fire department and Wells Fargo
agent, and retired grocer, Mr. Ortins, are
men of standing in this town," and that
he had no reason to doubt their testi-
mony. He added that, taking the testi-
mony as a whole, '^e [462] believed the
applicant made a good showing, and
recommended favorable action." On this
record the application was approved and
the young man went to China.
When the petitioner returned from
China and the investigation was re-
newed, Michaelis, Ortins, and another im-
portant white witness, Pugh, were eil-
amined at San Francisco by an inspector.
Michaelis and Ortins testified substan-
tially as they had done a year before,
and Pugh, also a business man of Mon-
terey, gave similar testimony and def-
toiu
462-404
SI PREME COURT OK THE UNITED STATES.
Oct. T
i'nitely identified the petitioner as the son
of Kwock Tuck Lee. The examination
of these witnesses, by question and an-
swer, was taken down and is in the
jecord, but no reference whatever was
made to the fact that the petitioner was
brought into their presence to test their
recognition of him and his recognition
of them, or of any examination in his
presence.' The testimony was in this
form when it was sent to the commis-
sioner of immigration for his considera-
tion and decision, and, acting upon it,
on September 6, 1917, he denied the
petitioner admission to the country.
After this decision, on September 12th,
counsel for petitioner wrote the com-
missioner that Michaelisy Pugh, and Or-
tins had told him that when they were
examined at San Francisco they were
confronted with the petitioner, and that
they recognized him, that he recognized
them, and that the examining inspector
was present and asked a number of ques-
tions, which were answered, and calls
this to the attention of the commission-
er, ''as it may have been an oversight on
the part of the official stenographer in
recording everything said and aone at
the hearing of the case." On the same
date affidavits by Michaelis, Pugh, and
Ortins were filed, in each of which, after
^erring to his examination at San
Francisco, the affiant says in substance,
as Michaelis does in form, that ''after
by the inspector the
affiant was confront^i^-,5^th Kwock Jan
Fat, who m^t him whilellfeM^spector
was present, and that said in^eS^Hcir
[463] heard everything said between
affiant and Kwock Jan Fat;'' and that
affiant then told the inspector that the
petitioner was the son of Tuck Lee, that
he had known him from infancy, and
that he was a native of Monterey.
To this letter of counsel for petitioner
an acting conunissioner replied, saying:
'*With regard to the identification of
the applicant by Messrs. Michaelis, Pugh,
and Ortins, you are advised that these
witnesses were confronted with the ap-
plicant, with the result that said wit-
nesses mutually recognized and identified
the applicant as the person whom they
had known as Kwock Jan Fat, and the
applicant was equally prompt in recog-
nizing said witnesses. While I was ad-
vised of this incident and gave it full
consideration in arriving at my decision,
it was not made of record in connection
with the statements taken from the wit-
nesses. A copy of this letter will be
placed with the record as evidence to
the fact that there was mutual recotrni-
1014
I tion between said witnesses and the
I plicant which will thus be available for
the consideration of the Secretary on
appeal."
This excerpt from the letter of an act*
ing commissioner (the decision was rea-
dered by the commissioner personally)
is the only form in which the facts and
circumstances of the recognition of the
petitioner by these important witnesses,
and their examination in his pres^iee
by the inspector, were placed before the
Secretary of Labor, and appaiently
there was no record whatever of either
before the commissioner of immigration
when he decided the case.
Comment cannot add to the impm-
sion which this plain statement of facts
should make upon every candid mind.
Here was testimony being taken which
was to become the basis for decision by
men who must depend wholly upon the
report of what was said and done by the
witnesses. The men examined were im-
portant, intelligent, and very [464] cer-
tainly^ as dependable as any who were
cidled. All they had said with respect to
the identity and nativity of the petition-
er when his photograph was exhibited to
them was carefully reported, but when
their knowledge of him and their ae-
quaintance with him were put to the
final test of having him brought before
them (he had then been in China for a
year), nothing whatever was recorded
of what they said and did. Very cer-
tainly this must be regarded as such an
important part of the testimony of these
most important witnesses that it may
U have been of such character as to
prov^S^^ci^Jit to determine the result
in a cas^ ^^^^ much stronger against a
claim of^U^nited States citizenship than
was made\iii this record against the
claim of pemitioner, and a report which
suppressed or^<>^^tt^^ i^ ^^ ^^^ ^ ^^^
report, and a i|f aring based upon it was
not a fair heannp^j within the definition
of the cases cited. _^
The acts of CongHiL^^® great power
to the Secretary of LaP^ ^^®^ Chinese
immigrants and persons
scent. It is a power to be
not arbitrarily and secretly,
and openlj% under the rest
tradition and principles of
ment applicable where the
rights of men are involve
of their origin or race. It is
Chinese de-
inistered.
but fairly
ts of the
ee govem-
nndauKental
regardless
e prov-
ince of the courts, in proceedj***!^ ^^'
review, within the limits amply
in the cases cited, to prevent abiifle^<>'
this extraordinary power, and this
possible only when a full record is pre
1919.
OKLAHOMA v. TEXAS.
464-167
served of the essentials on which the
executive officers proceed to judgment.
For failure to preserve such a record for
the information, not less of the commis-
sioner of immigration and of the Secre-
tary of Lahor than for the courts, the
judgment in this case must be reversed.
It is better that many Chinese immi-
grants should be impr<^>erly admitted
than that one natural bom citizen of
the United States should be permanent-
ly excluded from his country.
[465] The practice indicated in Chin
Yow V. United States, 208 U. S. 8, ^2 L.
ed. 369, 28 Sup. Ct. Rep. 201, is approved
and adopted, the judgment of the Circuit
(llourt of Appeals is reversed, and the
cause is remanded to the District Court
for trial of the merits.
Judgment reversed.
Writ of habeas corpus t& issue.
STATE OF OKLAHOMA, Complainant,
V.
STATE OF TEXAS, Defendant; the Unit-
ed States of America, Intervener.
(See S. C. Reporter's ed. 466-470.)
[No. 27, Original.]
June 7, 1920.
Order Instructing Receiver.
Announced by Mr. Chief Justice
White:
Upon consideration of the first report
of Frederic A. Delano, receiver, in the
above-entitled cause, and of the supple-
mental report of June 3, 1920, and the
various suggestions of the United States,
intervener, and of the state of Texas,
and of the several motions, applications,
exceptions, and suggestions heretofore
tiled by parties claiming an interest in
the subject-matter of this suit, it is,
this 7th day of June, a. d. 1920, ad-
judged and ordered that the action of
said receiver in taking possession of and
operating under his own management
and control the property described in
the order of this court of April 1, 1920,
until the further order of this court,
including the oil and gas wells and
plants, toll bridges, water plants, tank
wagons, pipe lines, storage tanks, and
other property locked thereon and
therein; the arrangements made by said
receiver for guarding and policing said
property; the office and field organiza-
tion created by [466] him for the opera-
tion and development of the property
•4 h, ed.
and the resources thereof, and for col-
lecting, conserving, and investing the
proceeds of the sale of all oil. gas, gas-
olene, and other products taken there-
from since April 1, 1920, be, and they
are hereby, ratified and approved.
2. So much of the land described in
the order of this court of April 1, 1920,
in range 14 west, as lies between the
south edge of the present sand bed of
the Red river (marked generally by the
border line of vegetation along the edge
of the flood plain) and the foot of the
Texas bluff, as was, on the 1st day of
April, 1920, in the possession of persons
claiming under patents from the state
of Texas, and is not included in the
river-bed lands, as hereinafter defined,
shall be returned by the receiver to the
several operators or claimants in pos-
session on April 1, 1920, or their assigpas,
together with all wells, tanks, pipe lines,
struotures, equipment, and material, up-
on condition that such operator, claim-
ant, or assigns account for, pay over to,
and impound with the receiver, if not
already done, three sixteenths of the
gross proceeds of all oil taken from the
respective lands on and since April 1,
192D, and the royalty on conunercial
gas cust(Hnary in the Burk-Bumett and
Northwest Extension oil fields, and roy-
alty on casing-head gas in accordance
with the regulations and schedule of
prices promulgated for Indian lands by
the Secretary of the Interior August 10,
1917, the proceeds thereof to be either
paid in cash, or the payment thereof
within ninety days to be secured by
good and sufficient surety to be approved
by the receiver, and upon the further
condition that said operator or claimant
shall enter into an agreement in writing
with the receiver, by the terms of which
the operator shall develop and operate
said properties in a workmanlike and
businesslike manner, subject to the su-
pervision of the receiver and to the or-
ders of this court, and shall impound
with the receiver three sixteenths of the
gross amount of the proceeds from the
sale of oil [467] thereafter produced,
and the royalty on gas and casing-head
gas as hereinbefore specified. This agree-
ment to contain such further stipulations
as the receiver may deem proper for
regulating the production of gas and oil
and to prevent waste or the entrance of
water to the oil sands or oil-bearing
strata, to the destruction or injury of the
oil deposits, or the damage of wells in
the possession of the receiver; and pro-
vided further, that the receiver, in his
discretion, may agree with any operator
1015
4e7Hl«0
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
or cUimant to operate for his ben^t and
at his expense the lands in said ''Big
Bend'' area. Until the several operators
or elaimants eomply with the foregoing
conditions, the receiver shall retain pos-
session of the respective properties and
s'lall operate the same in accordance with
the order of this court of April 1, 1920,
as modified by this order.
In the event of failure or refusal of
any operator to operate the property as
directed by the receiver, or if any oper-
ator shall violate his agreement with the
receiver, the receiver is authorized to
take possession of and operate such
property, impound three sixteenths of
the. proceeds, as provided by this order,
and pay out of said proceeds the ex-
penses of operation, keeping a separate
account of the expense of production of
each well, as nearly as practicable.
3. The river-bed lands, for the pur-
poses of this order, shall comprise all
lands not hereinbefore excepted, being
more specifically that part covered by
the receivership of all the broad and
approximately flat sandy stretch which
extends from the foot of the bluff or
the edge of the flood plain, as the case
may be, on the south side of the river,
to the midchannel of the river, as de-
fined in said order of April 1, 1020, and
as it then existed, including- everything
within the bounds just described.
4. It is further ordered that said re-
ceiver be and he is hereby authorized
and directed, out of the gross proceeds
derived from the production of any well
in the riv^-bed [468] area paid to hkn
since April 1, 1920, (1) to pay to
the operator or operators of any such
well the actual cost of operating tlie
same since April 1, 1920, inclusive,
including in such cost a reasonable al-
lowance for field supervision, but ex-
cluding any allowance for general or
office supervision; (2) to refund to
those operators or drillers who have
drilled and brought into production
new wells in said area since April 1,
1920, a fair percentage of the entire
actual cost of such work, including a
reasonable allowance for field supervi-
sion, but excluding any allowance for
general or office supervision; (3) to
pay the just claims of mechanics and
materialmen for work done and ma-
terials furnished on wells in said area
brought in since April 1, 1920, and the
claims of persons, associations, and cor-
porations for advancements made in
good faith for drilling operations upon
such wells, provided satisfactory evi-
loie
dence of the existence of all of such
claims be furnished.
5. Said receiver is further autkorixed
and direeted to release and surrender to
the lawful owners thereof (1) aU oil
and gas stinred within the receivership
area which is shown by evidence satis-
factory to him to have been produced by
operations outside of said area; (2) all
machinery, tools, and other equipment
stored within the receivership area when
the receiver took possession, and not ac-
tually used in the production, storage,
transportation, etc., of the oil and gas
products thereof, and such other ma-
chinery, tools, drilling rigs, and similar
ai^>aratu8 found within the receivership
area as may not be required for the re-
ceivership operations; (3) all oil, gas,
and the pn>ducts thereof which are
shown by cadence satisfactory to the
receiver to have been produced by opera-
tions outside of the receivership area.
but which were mingled and stored with
similar products produced within said
area on and subsequent to April 1, 1920.
6. Said receiver is further authorized
and directed (1) to arrange for the sale
and disposition of all oil, gas, [469]
gasolene, water, and other products of
said property; (2) to take possession
and license the operation of all toll
bridges within the receivership area,
and to regulate and limit the tolls charge-
able thereon; (3) to sell at the best
price obtainable, properly credit and
account for, such derricks, tanks, pipe
lines, tools, appliances, and materials
not claimed by the owners thereof,
and not required for the receiver's oper-
ations; (4) to purchase at the best
price obtainable such tanks, machin-
ery, appliances, tools, motor cars, and
equipment, as may be necessary for
the operation, protection, and develop-
ment of the property in his chaige; (5)
to retain and employ whatever techni-
cal or other assistants he may require
or may deem necessary to satisfactorily
operate, develop, and protect the prop-
erty in his charge, fix the terms of em-
ployment, and the rate of compensation :
(6) to make such banking arrangements
as he may deem necessary to properly
conserve and safeguard the funds re-
sulting from his operations, and to in-
vest the surplus funds in United States
Treasury certificates; (7) to make such
contracts for fire, tprnado, employee, and
public liability insurance as may be
deemed necessary or advisable, and take
whatever other reasonable precautions
are customarily employed in the man-
agement, operation, development, and
sat u. s.
1919.
OKLAHOMA v. TEXAS.
4W-471
protection of oil and gas properties of
similar magnitude.
7. The receiver is hereby further au-
thorized and directed to drill in the river-
bed area, described in t ^ hereof, and
*bring into production whatever new
wells he may be advised by his geologist
and other experts are necessary for the
conservation and development of the
river-bed lands as a whole, pay the cost
thereof out of the funds in his hands
derived from the production of the wells
in said river-bed area, keep separate ac-
counts of the costs of drilling and oper-
ating and of the proceeds of the pro-
duction of each well, and make a full
report thereof, with his recommendations
for the equitable allocation and distribu-
tion [470] of such costs and proceeds,
as soon after the court reconvenes in
^ October next as may be practicable.
8. In addition to the specific powers
herein contained, the receiver, until the
further order of this court, is hereby
given whatever additional administra-
tive powers may be found to be necessary
to properly protect, operate, manage,
and develop the property within the re-
ceivership area and the oil and gas de-
posits therein.
9. The receiver is directed to report
to the court, for such action as it may
deem necessary and proper, any inter-
ference with the property or operations
in his charge and any violation of the
orders and directions given by him in
the performance of his official duties;
and he may apply in vacation to the
Chief Justice or any Associate Justice
of this court for a writ of injunction in
any case where an injunction might be
granted by the court.
10. Nothing in the order of this court
of April 1, 1920, or in this order, shall
be construed to prevent or in any wise
obstruct the duly constituted authorities
of the United States and of the states
of Texas and Oklahoma in the exercise
of their several and respective jurisdic-
tions, as heretofore, in the prevention,
iletection, and punishment of crime with-
in the area embraced within the orders
of this court.
The parties hereto and their respec-
tive officers and agents are requested to
afford to the receiver and his agents all
reasonable and appropriate assistance in
guarding, protecting, and conserving the
property within said area.
•4 li. ed.
STATE OF OKLAHOMA, Complainant,
V.
STATE OF TEXAS, Defendant; the Unit-
ed States of America, Intervener.
(See S. C. Reporter's ed. 470, 471.)
[No. 27, Original.]
Submitted June 7, 1920. Decided June 7,
1920.
ORIGINAL SUIT in Equity, brought
by the State of Oklahoma against
the State of Texas. On motions for leave
to file petitions for interventioo* Mo-
tions granted.
Messrs. Jesse B. Roote and J. I.
Howard for the motions.
Order announced by Mr. Chief Justice
White:
The motions of the Judsonia Develop-
ing Association, Burk Divide Oil Com-
pany No. 2 and others, Burk Divide Oil
Company No. 3 and others, and Mellish
Consolidated Placer Oil Company, for
leave to file petitions in intervention
[471] herein, are hereby granted; and
similar leave is granted to any and all
other parties claiming any title to or in-
terest in the lands in the possession of
the receiver herein by virtue of the or-
ders of April 1, 1920, and June 7, 1920.
STATE OF OKLAHOMA, Complainant,
V.
STATE OF TEXAS, Defendant; the Unit-
ed States of America, Intervener.
(See S. C. Reporter's ed. 471, 472.)
[No. 27, Original.]
June 7, 1920.
Order Setting Cause Down for Hearing:
upon Certain Questions.
Announced by Mr. Chief Justice
White:
On consideration of the motion of the
United States and the state of Okla-
homa, requesting that this cause be set
down for hearing at an early day upon
certain questions of law, and of the re-
sponse of the state of Texas to said
motion, this day presented.
It is ordered that this cause be and
it is hereby set down for hearing on the
15th day of November, 1920, upon the
following questions ^f law, to wit :
(1) Is the decree of this court in Unit-
ed States V. Texas, 162 U. S. 1, 40 L. ed.
1017
471, 472
SUPREME COURT OF THE UNITED STATES.
Oct. Tebm,
867, 16 Snp. Ct. Rep. 725, final and eon-
elusive upon the parties to this cause in
so far as it declares that the Treaty of
February 22, 1819 [8 Stat, at L. 252],
between the United States and Spain,
fixed -the boundary along the south bank
of Red river t
(2) If said decree is not conclusive,
then did the Treaty of 1819, construed in
the light of pertinent public documents
and acts, fix the boundary along the mid-
channel of Red river, or along the south
.bank of said river t
It is further ordered that the parties
be permitted to take and present testi-
mony in respect of the governmental
practice on the part of all governments
and states, concerned at the time, bear-
ing upon the construction and effect of
said Treaty as to the second question
above stated.
1018
The evidence in chief of the United
States and the state of Oklahoma shall
be taken and closed on or before August
15, 1920; the evidence in chief of the
state of Texas [472] shall be taken and
closed on or before October 1, 1920 ; an(^
rebuttal testimony on the part of the
United States and the state of Oklahonda
shall be taken and closed on or before
October 15, 1920. The evidence in each
case to be taken on seven days' notice,
unless notice is waived.
Ernest Knaebel, Esq., of the District
of Columbia, is hereby appointed as com-
missioner to take the said evidence and
report the same to the court, without
findings or conclusions.^
1 Frederick S. Tyler, Esq., of the District
of Columbia, appointed hj order of the
Chief Justice, in place of Ernest KnaebeU
Esq., June 30, 1920.
259 U. S.
MEMORANDA.
or
Cases I>ibpo8kd or Without Opinions.
City Trust Compakt, Plaintiff in Error,
V. Bankers* Mortgage Loan Compakt.
[No. 493.]
Error to state court — Federal question —
error or certiorari.
In Error to the Supreme Court of the
State of Nebraska to review a judgment
which dismissed an appeal from a judg-
ment of the District Court of Douglas
County, in that state, in favor of defend-
ant in a suit for an accounting.
See same case below, on first appeal,
102 Neb. 532, 167 N. W. 785.
Mr. Sylvester R. Budi for plaintiff in
error.
Messrs. Frank H. Gaines and C. J.
Baird for defendant in error.
April 26, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of § 237 of the Judicial Code
(36 Stat, at L. 1156, cliap. 231, 5 Fed.
Stat. Anno. 2d ed. p. 723), as amended
by the Act of September 6, 1916 (39 Stat,
at L. 726, chap. 448, Comp. Stat. § 1214,
Fed. SUt. Anno. Supp. 1918, p. 411), § 2.
Ex Parti : In the Matter or James J.
O'Brien, Petitioner. [No. — , Orig-
inal.]
Motion for leave to file petition for
Writ of Mandamus or Prohibition.
Mr. James J. O'Brien, petitioner, pro
se.
April 26, 1920. Denied.
Edward A. Shedd et aL, Appellants, ▼.
' Guardian Trust Compakt et al. [No.
231.]
Appeal — from district court — frivolous
Federal question.
Appeal from the District Court of the
United States for the Western District j
of Missouri to re\new a compromise dc- 1
•4 li. ed.
oree entered in a minority stockholders'
suit.
Mr. J. C. Rosenberger for appellants.
Messrs. Charles [474] W. German and
J. D. BowersocS for appellees.
May 17, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Farrell v. O'Brien (O'Cal-
laghan v. O'Brien) 199 U. S. 89, 100, 50
L. ed, 101, 107, 26 Sup. Ct. Rep. 727;
Empire State-Idaho Min. Co. y. Hanley,
206 U. S. 225, 232, 61 L. ed. 779, 782,
27 Sup. Ct. Rep. 476; Goodrich v. Fer-
ris, 214 U. S. 71, 79, 53 L. ed. 914, 917,
29 Sup. Ct. Rep. 580; Brolan v. United
States, 236 U. S. 216, 218, 59 L. ed. 544,
547, 35 Sup. Ct.Rep. 285? Sugarman v.
United States, 249 U. S. 182, 184, 63 L.
ed. 550, 551, 39 Sup. a. Rep. 191.
County of Douglas, in the State of
Nebraska, Plaintiff in Error, v. Georos
Warren Smith. [No.. 437.]
Error to circuit court of appeals — ^juris-
diction below — Federal question.
In Error to the United States Circuit
Court of Appeals for the Eighth Circuit
to review a judgment which reversed a
judgment of the District Court for the
District of Nebraska, in favor of plaintiff,
in a suit to assess an inheritance tax.
See same case below, 165 C. C. A. 532,
254 Fed. 244.
Mr. William C. Lambert for plaintiff
in error.
Messrs. Francis A. Brogan and A. G.
Ellick for defendant in error.
May 17, 1920. Per Curiam: Dis-
missed for the want of jurisdiction upon
the authority of
(1) § 128 of the Judicial Code [36
Stat, at L. 1133, chap. 231, Comp. Stat.
§ 1120, 5 Fed. Stat. Anno. 2d ed. p. 607] ;
Shulthis V. McDougal, 225 U. S. 561,
568, 56 L. ed. 1205, 1210, 32 Sup. Ct.
1019
474, 475
supremp: court of the united states.
Oct. Tiabif^
Rep. 704; HuU v. Burr, 234 U. S. 712,
720, 58 L. ed. 1557, 1561, 34 Sup. Ct.
Rep. 892; Louisville & N. R. Co. v.
Western U. Teleg. Co. 237 U. S. 300, 302,
59 L. ed. 965, 966, 35 Sup. Ct. Rep.
598; Delaware, L. & W. R. Co. v. Yur-
konis, 238 U. S. 439, 444, 59 L. ed. 1397,
1400, 35 Sup. Ct Rep. 902.
(2) Brown v. Alton Water Co. 222 U.
S. 325, 332, 333, 56 L. ed. 221, 224, 32
Sup. Ct. R«p. 156; Alaska Pacific Fish-
eries V. Alaska, 249 U. S. 53, 61, 63 L.
ed. 474, 478, 39 Sup. Ct. Rep. 208.
Robert D. Kinney, Plaintiff in Error, v.
Plymouth Rock Squab Company.
[No. 324.]
Error to district court — ^frivolous Federal
question.
In Error to the District Court of the
United States for the District of Massa-
chusetts to review a judgment dismissing
an action brought by writ of scire facias.
Mr. Robert D. Kinney, plaintiff in
error, pro se.
No appearance for defendant in error.
May 17, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of
(1) Farrell v. O'Brien (O'Callaghan
V. O'Brien) 199 U. S. 89, 100, 50 L. ed.
101, 107, 25 Sup. Ct, Rep. 727 ; Goodrich
V. Ferris, 214 U. S. 71, 79, 53 L. ed. 914,
917, 29 Sup. Ct. Rep. 580; Brolan v.
United States, 236 U. S. 216, 218, 59 L.
ed. 544, 547, 35 Sup. Ct. Rep. 285;
Sugarman v. United States, 249 U. S.
182, 184, 63 L. ed. 550, 561, 39 Sup. Ct.
Rep. 191.
(2) Kinney v. Plymouth Rock Squab
Co. 236 U. S. 43, 49, 59 L. ed. 457, 459,
35 Sup. Ct. lep. 236.
James K. Perrine, Plaintiff in Error, v.
State op Oklahoma ex rel. John
Embry, County Attorney. [No. 310.]
Error to state court — Federal question —
who may raise.
In Error to the [475] Supreme Court
of the State of Oklahoma to review a
judgment which afSrmed a judgment of
the District Court for Oklahoma Coimty,
in that state, enforcing a penalty for per-
mitting the use of certain premises for
traffic in intoxicating liquors.
See same case below, — Okla. — , 178
Pac. 97.
1020
Mr. E. G. McAdams for plaintiif in
error.
Messrs. S. P. Freeling and W. C. HaD
for defendant in error.
May 17, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon tbe
authority of
(1) Equitable Life Assur. Soc. ▼.
Brown, 187 U. S. 308, 314, 47 L. ed. 190,
193, 23 Sup. Ct. Rep. 123; ConsoUdated
Tump. Co. V. JJorfolk & O. V. R. Co.
228 U. S. 596, 600, 57 L. ed. 982, 983,
33 Sup. Ct. S«p. 609; Pennsylyania
Hospital V. Philadelphia, 245 U. S. 20,
24, 62 L. ed. 124, 128, 38 Sup. Ct. Rep.
35.
(2) Southern R. Co. v. King, 217 XT.
S. 524, 534, 54 L. ed. 868, 871, 30 Sap.
Ct. Rep. 594; Gaar, S. & Co. v. Shan-
non, 223 U. S. 468, 473, 56 L. ed. 510,
513, 32 Sup. Ct Rep. 236; Middleton v.
Texas Power & Light Co. 249 U. S. 152,
157, 63 L. ed. 527, 531, 39 Sup. Ct. Rep.
227.
(3) Shevlin-Carpenter Co. v. Minne-
sota, 218 U. S. 57, 67, 54 L. ed. 930, 934,
30 Sup. Ct. Rep. 663.
Samuel W. Scott et al.. Plaintiffs in
Error, v. Ida B. W. Booth [No. 256.]
Error to state court — final judgment.
In Error to the Supreme Court of the
State of Missouri to review a judgment
which reversed a judgment of the Cironit
Court of Jackson County, in that state,
in favor of defendants in an action to
avoid a sale of real property, and re-
manded the cause for further proceed*
ings.
See same case helow, 276 Mo. 1, 205
S. W. 633.
Messrs. H. M. Langworthy and Ja<^-
son H. Ralston for plaintiff in error.
Mr. C. W. Prince for defendant in
error.
May 17, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
authority of Schlosser v. Hemphill, 198
U. S. 173, 175, 49 L. ed. 1000, 1002, 25
Sup. Ct. Rep. 654; Louisiana Nav. Co.
V. Oyster Commissimi, 226 U. S. 99, 101,
57 L. ed. 138, 140, 33 Sup. Ct. Rep. 78 ;
Grays Harbor Logging Co. v. Coats
Fordney Logging Co. (Washington ex
rel. Grays Harbor Logging Co. v. Su-
perior Ct.) 243 U. S. 251, 255, 61 L. ed.
702, 705, 37 Sup. Ct Rep. 295; Bmce ▼.
Tobin, 245 U. S. 18, 19, 62 L. ed. 123,
124, 38 Sup. Ct. Rep. 7.
25S 17. 8.
1»1».
MEMORAi^DA CASES.
475-477
FbB) W. Weitzsl, Plaintiff in Error, v.
Vursm Stmtbb. [No. 633.]
Error to district court — frivolous Federal
question.
In Error to the District Court of the
United States for the Eastern District of
Kentucky to review a conviction of a
receiver of a national bank for embezzle-
ment and making fake reports.
Mr. A. E. Strieklett for plaintiff in
€rror.
Solicitor Qeneral King for defendant
in «rror.
May 17, 1920. Per Curiam: Dis-
missed for want of jurisdiction upon the
anthority of
(1) Equitable Life Assur. Soc v.
Brown, 187 U. S. 308, 314, 47 L. ed. 190,
193, 23 Sup. Ct. Rep. 123; [47«] Con-
solidated Tump. Co. v. Norfolk d; 0. V.
R. Co. 228 U. S. 596, 600, 57 L. ed. 982,
983,* 33 Sup. Ct. Rep. 609; Pennsylvania
Hospital v. Philadelphia, 245 U. S. 20,
24, 62 L. ed. 124, 128, 38 Sup. Ct. Rep.
35.
(3) Lamar v. United States, 240 U.- S.
60, 60 L. ed. 526, 36 Sup. Ct. Rep. 255;
Lamar v. United States, 241 U. S. 103,
60 L. ed. 912, 36 Sup. Ct. Rep. 535.
John F. Dokahus, Appellant, v. Helen
May Donahue, alias Helen May Hus-
key. [No. 570.] ,
Appeal — from district court — frivolous
Federal question.
Appeal from the District Court of the
United States for the District of Nevada
to review a decree which dismissed the
bill in suit to set aside a decree of divorce
in which a writ of Jiabeas corpus was
sought.
Mr. George C. Otto for appellant
Mr. H. W. Huskey for appellee.
June 1, 1920. Per Curiam: Dismissed
for want of jurisdiction upon the au-
thority of Farrell v. O'Brien (O'Callag-
han V. O'Brien) 199 U. S. 89, 100, 50
L. ed. 101, 107, 25 Sup. Ct. Rep. 727;
Empire State-Idaho Min. ft Developing
Co. V. Hanley, 205 U. S. 225, 232, 51
L. ed. 779, 782, 27 Sup. Ct. Rep. 476;
Goodrich v. Ferris, 214 U. S. 71, 79, 53
L. ed. 914, 917, 29 Sup. Ct. Rep. 580;
Brolan v. United Stat^ 236 U. S. 216,
218, 59 L. ed. 544, 547,*35 Sup. Ct. Rep.
285; Sugarman v. United States, 249
U. S. 182. 184, 63 L. ed. 550, 551, 39
Sup. Ct. Rep. 191.
•4 L. ed.
J. D. PuROELL et al., Plaintiffs in Er-
ror, V. City of Lexington on Re-
lation OF Thomas E. Cotne, Back
Tax Assessor. [No. 708.]
Error to state court — ^Federal question —
impairing contract obligations.
In Error to tiie Court of Appeals of
the State of Kentudgr to review a judg-
ment which afBirmed a judgment of the
Circuit Court of Fayette County, in that
state, for the assessment and collection of
taxes.
See same case below, 186 Ey. 381, 216
S. W. 599.
Messrs. George C. Webb and George
R. Hunt for plaintiffs in error.
Messrs. Jesse J. Miller and Harry B.
Miller for defendant in error.
June 1, 1920. Per Curiam: Dismissed
for want of jurisdiction upon the au-
thority of
(1) New Orleans Waterworks Co. v.
Louisiana Sugar Ref. Co. 125 U. S. 18,
38, 39, 31 L. ed. 607, 614, 615, 8 Sup.
Ct. Rep. 741; Central Land Co. v. Laid-
ley, 159 U. S. 103, 111, 40 L. ed. 91, 94,
16 Sup. Ct Bep. 80; Bacon v. Texas,
163 U. S. 207, 216, 41 L. ed. 132, 136, 16
Sup. Ct Rep. 1023; McCullough v. Vir-
ginia, 172 U. S. 102, 116, 43 L. ed. 382,
387, 19 Sup. Ct Rep. 134; Louisiana
ex rel. Hubert v. New Orleans, 215 II.
S. 170, 175, 54 L. ed. 144, 147, 30 Sup.
Ct Rep. 40; Missouri ^ E. Interurban
R. Co. V. Olathe, 222 U. S. 187, 56 L.
ed. 156, 32 Sup. Ct Rep. 47.
(2) FarreD ▼. O'Brien (O'Callaghan
V. O'Brien) 199 U. S. 89, 100, 50 L.
ed. 101, 107, 25 Sup. Ct Rep. 727; Em-
pire State-Idaho Min. & Developing Co.
V. Hanley, 205 U. S. 225, 232, 51 L. ed.
779, 782, 27 Sup. Ct Rep. 476; Good-
ridi V. Ferris, 214 U. 8. 71, 79, 53 L.
ed. 914, 917, 29 Sup. Ct. Rep. 580 ; Bro«
Ian V. United States, 236 U. S. 216, 218,
59 L. ed. 544, 547, 35 Sup. Ct Rep. 285 ;
[477] Sugaralan ▼. United SUtes, 249 U.
S. 182, 184, 63 L. ed. 550, 551, 39 Sup.
Ct. Rep. 191.
John W. Davidgb v. Leo Simmons.
[No. .]
Petition for the allowance of a Writ
of Er>x>r to the Court of Appeals of
the District of Columbia.
Mr. Chapin Brown for the petitioner.
June 1, 1920. Allowed upon petitioner
giving bond in the sum of $1,000.
1021
477-479
SUPREME CX)URT OF THE UNITED STATES.
Oct.
Lincoln Gas & Electric Light Com-
pany, Appellant, v. City of Lincoln
et al. [No. 810.]
Appeal — ^from district court — ^final judg-
nient.
. Appeal from the District Court of the
United States for the District of Ne-
bn^a to review a decree ordering a pub-
lic service corporation to refund excess
charges to consumers, reserving jurisdic-
tion to make further orders, and continu-
ing the cause for that purpose.
Messrs. Edmund C. Strode, Charles A.
Frueauff, and Robert Bums for appel-
lant.
Mr. C. Petrus Peterson for appellees.
June 7, 1920. Per Curiam: Dismissed
for want of jurisdiction upon the author-
ity of Heike v. United States, 217 U. S.
423, 429, 54 L. ed. 821, 824, 30 Sup. Ct.
Rep. 539; United States v. Beatty, 232
U. S. 463, 466, 58 L. ed. 686, 687, 34
Sup. Ct. Rep. 392; Rexford v. Bruns-
wick-Balke Collender Co. 228 U. S. 339,
346, 57 L. ed. 864, 867, 33 Sup. Ct. Rep.
516; and see Eichel v. United States
Fidelity & G. Co. 239 U. S. 629, 60 L. ed.
475, 36 Sup. Ct. Rep. 165.
State ov Georgia, Complainant, v.
State op South Cabouna. [No. 22,
Original.]
Motion for the appointment of a spe-
cial master to take such testimony as may
be necessary, and to receive in evidence
such exhibits as may be offered by the
parties hereto.
Mr. Clifford Walker for complainant.
Messrs. A. M. Lumpkin and Sam A.
Wolfe for respondent.
June 7, 1920. Granted, and on the
suggestion of counsel for both parties,
Mr. Charles S. Douglas, of Washington,
D. C, appointed [478] as such special
master, and directed to report the testi-
mony and exhibits to the court without
conclusions of law or findings of fact.
United States op America, Appellant,
V. Reading Company et al. [No. 3] ;
and Reading Company et al.. Appel-
lants, v. United States of America
[¥o. 4].
Motions to modify the decree in these
cases.
Solicitor General King and Mr. C. B.
Ames, Assistant to the Attorney General,
for appellants.
1022
Messrs. William Clarke Mason, Rob-
ert W. De Forest, and Charlee E. Miller
for appellees.
June 7, 1920. Denied.
New York Central & Hudson Rivn
Railroad Company, Plaintiff in Error,
V. York & Whitney Company. [No.
802.]
Petition for a Writ of Certiorari to4lM
Superior Court of the State of Massa-
chusetts.
3Ir. William L. Parsons for plaiiitiff in
error.
Mr. Amos L. Taylor for defendant in
error.
April 26, 1920. Granted.
York & Whitney Company, Plaintiff in
Error, v. New York Central & Hud-
son EiVEB Railroad Company. [No»
803.]
Petition for a Writ of Certiorari
[479] to the Superior Court of the SUte
of Massachusetts.
Mr. Amos L. Taylor for plaintiff in
error.
Mr. William L. Parsons for defendant
in error.
April 26, 19*20. Granted.
District of Columbia, Petitioner, v. R.
P. Andrews Paper Company. [No.
805.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Co-
lumbia.
See same case below, 263 Fed. 1017.
Mr. F. H. Stephens for petitioner.
No appearance for respondent.
April 26, 1920. Granted.
District or Columbia, Petitioner, ▼.
Saks & Company. [No. 806.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Co-
lumbia.
See ssLite case, below, — App. D. C.
— , 263 Fed. 1020.
Mr. F. H. Stephens for petitioner.
No appearance for respondent.
April 26, 1920. Granted.
35a IT. 8.
1919.
MEMORANDA CASES.
479-481
DiSTBiOT OF COLUMBLA, Petitioner, v.
Abraham Lisner. [No. 807.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Co-
lumbia.
See same case below, — App. D. 0.
— , 263 Fed. 1020.
Mr. F. H. Stephens for petitioner.
No appearance for respondent.
April 26, 1920. Granted.
Anna Lang, as Administratrix, etc., Pe-
titioner, V. New York Central Rail-
road Company. [No. 817.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of New York.
See same case below, in supreme court,
187 App. Div. 967, 175 N. Y. Supp. 908 ;
in court of appeals, 227 N. Y. 507, 125
N. E. 681.
Mr, Hamilton Ward for petitioner.
Mr. M. C. Spratt for respondent.
April 26, 1920. Granted.
Archie J. McLaren^ Administrator, etc.,
Petitioner, v. L. G. FLBiscfHEB. [No.
831.]
Petition for a Writ [480] of Cer-
tiorari to the Supreme Court of the State
of California.
See same case below, — Cal. — , 185
Pac. 967.
Mr. Samuel Herrick for petitioner.
No appearance for respondent.
April 26, 1920. Granted.
Robert L. Culpepper, Petitioner, v.
Jambs M. Ocheltrbe. [No. 832.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Cali-
fornia.
See same case below, — Cal. — , 185
Pac. 971.
Mr. Samuel Herrick for petitioner.
No appearance for respondent.
April 26, 1920. Granted.
Western Union Telegraph Compant,
Petitioner, v. S. B. Poston. [No. 833.J
Petition for a Writ of Certiorari to the
Supreme Court of the State of South
Carolina.
Messrs. Rush Taggart, Francis Ray-
mond Stark, P. A. Willcox, and Henry
E. Davis for petitioner.
No appearance for respondent.
By leave of court, Solicitor General
King filed a brief herein in behalf of the
United States.
April 26, 1920. Granted.
6i Jj, ed.
Philadelphia & Reading Railway Com-
pany, Petitioner, v. Maria Domenioa
Di DoNATO. [No. 842.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Pennsyl-
vania.
See same case below, 266 Pa. 412, 109
Atl. 627.
Mr. George Gowen Parry for peti-
tioner.
No appearance for respondent.
April 26, 1920. Granted.
Philadelphia & Reading Railway Com-
pany, Petitioner, v. Marie E. Polk.
[No. 844.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of [481]
Pennsylvania.
See same case below, 266 Pa. 335, 109
Atl. 627.
Mr. George Gowen Parry for peti-
tioner.
Mr. Francis M. McAdams for re-,
spondent.
April 26, 1920. Granted.
Weber Electric Company, Petitioner, v.
E. H. Freeman Electric Company.
[No. 789.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Third Circuit.
See same case below, 262 Fed. 769.
Mr. Charles Neave for petitioner.
Messrs. Livingston Gifford and David
P. Wolhaupter for respondent.
May 3, 1920. Granted,
United States of America, Petitioner,
v. ^tna Explosives Company. [No.
841.]
Petition for a Writ of Certiorari to the
United States Court of Customs Appeals.
Solicitor General Eling and Assistant
Attorney General Hanson for petitioner.
Mr. Addison S. Pratt for respondent.
May 3, 1920. Granted.
Michigan Central Railroad Company,
Petitioner, v. Mark Owen & Com-
pany. [No. 847.]
Petition for a Writ of Certiorari to the
Suprane Court of the State of IllinMs.
See same case below, 291 HI. 149, 125
N. E. 767.
Mr. Ralph M. Shaw for petitioner.
No appearance for respondent.
May 3, 1920. Granted.
109S
4^1-484
SUPREME COURT OF THE UNITED STATES.
Oct.
Henry Albsrs^ Petitioner, v. United]
. States of America. [No. 871.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Nintii Circuit.
See same case below, 263 Fed. 27.
Messrs. Charles H. Carey and James
B. Kerr for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respond-
ent.
June 1, 1920. Granted.
Philadelphia & Reading Railway Com-
pany, Petitioner, v. Amy Smith.
[No. 900.]
Petition for a Writ of [482] Cer-
tiorari to the Supr^ne Court of the State
of Pennsylvania.
. See same case below, 267 Pa. 123, 110
Ail. 142.
Mr. George GU)wen Parry for petition-
er.
No appearance for respondent.
June 1, 1920. Granted.
Federal Trade Commission, Petitioner,
V. Beech-Nut Packing Company.
[No. 916.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, 264 Fed. 885.
Solicitor General King and Mr. Claude
R. Potter for petitioner.
No appearance for respondent.
June.l, 1920. Granted.
Eugene Sol Loxhe, Petitioner, v. United
States op America. [No. 926.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 264 Fed. 295.
Mr. Robert Eariy McFarland for peti-
tioner.
Assistant Attorney General Stewart
and Mr. W. C. Herron for respondent.
June 7, 1920. Granted.
John Simmons Company, Petitioner, v.
Grier Brothers Company. [No. 932.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Third Circuit.
Sbe same ease below, 265 Fed. 481.
Mr. James Q. Rice for petitioner.
Messrs. Clarence P. B3rme8, George H.
Parmelee, and Geoiige E. Stebbins for
respondent.
June 7, 1920. Granted.
1034
Lehigh Valley Raiiaoa]) Company, Pe-
titioner, V. Frederick W. Howell et
al., as Firm of B. H. Howell, Son A
Company, et al. [No. 818.1
Petition for a Writ of Certiorari to the
Court of Errors and Appeals of the State
of New Jersey.
See same case below, — N. J. L. — f
109 Atl. 309.
Messrs. Lindley [483] M. Garrison,
Edgar H. Boles, Richard W. Barrett, and
George S. Hobart for petitioner.
Messrs. Frederick B. Campbell sod
John O. H. Pitney for respondents.
April 26, 1920. Denied.
Lehioh Valley Railroad Company, Pe-
titioner, V. Royal Indemnity Com-
pany and others. [Nos. 819 to 830.]
Petition for Writs of Certiorari to the
Court of Errors and Appeals of the State
[484] of New Jersey.
See same case below, — N. J. L. — ,
109 Atl. 745.
Messrs. lindley M. Garrison, Edgar H.
Boles, Richard W. Barrett, and George
S. Hobart ior petitioner.
Messrs. M. M. Stallman, Edwin F.
Smith, and Jamea D. Carpenter, Jr., for
resppndents.
April 26, 1920. Denied.
David G. Wine, Petitioner^. United
States ov America. [No. 615.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appaids
for the Eighth Circuit.
See same case below, 260 Fed. 911.
Mr. C, C. Flansburg for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely £(nr respondent.
April 26, 1920. Denied.
State op Louisiana, Petitioner, v. Wil-
UAM T. Joyce Company et al. [No.
. 767.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Cinmt.
See same case b^w, 261 Fed. 128.
Mr. William Winuis Wall for peti-
tioner.
Messrs. Robert R. Reid and Henry
Fitts for respcmdenta.
April 26, 1920. Denied.
95S V. 8.
19X9.
MEMORANDA CASES.
4S4-48(S
HlRifAW Bloch, Petitiouer, v. Unitsd
States of America. [No. 782.]
Petition for a Writ of Certiorari to the
United States Circuit Court of App^ds
for the Fifth Circuit.
See same case below, 261 Fed. 321.
Messrs. C. B. Hudspeth, George E.
Wallace, and St. Clair Adams for peti-
tioner.
Assistant Attorney (General Stewart
and Mr. Harry S. Ridgely for respond-
ent.
April 26, 1920. Denied.
E. A. Kino (and Those Who Wish Also
to Intervene for Their Benefit), Peti-
tioner, V. Robert H. Babb et al. [No.
786.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Ninth Circuit.
See same case below, 262 Fed. 56.
Messrs. William C. Bristol and Levi
Cooke for petitioner.
Mr. C. E. S. Wood for respondents.
April 26, 1920. Denied.
f485] CuYAMEL Fruit Company, Peti-
tioner, V. JoHNSOK Iron Works. Lim-
ited. [No. 797.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit.
See same case below, 262 Fed. 387.
Mr, Walter S. Penfield for petitioner.
Mr. Monte M. Lemann for respondent.
April 26, 1920. Denied.
Geriiardt Wessels, Petitioner, v. Unft-
ED States of America. [No. 798.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit.
See same case below, 262 Fed. 389.
Mr. R. H. Ward for petitioner.
Assistant Attorney General Stewart and
Mr. Harry S. Ridgely for respondent.
April 26, 1920. Denied.
Dunk LET Company and Michigan Can-
ning A Maehinery Compasy, Petition-
ers, V. Pasadena Canning Company
and Qewg9 E. Gner. [Na 80d.]
Petition for a Writ of Certiorari to the
•4 li. ad.
United States Circuit Court of Appeals
for the Ninth Circuit.
See same case below, 261 Fed. 386.
Messrs. Fred L. Chappell, Drury W.
Cooper, and William S. Hodges for peti-
tioners.
Messrs. Kemper B. Campbell, Franeb
J. Heney, Frederick S. Lyon, and Wil-
liam J. Carr for respondents.
April 26, 1920. Denied.
Herman Theden and Anna Theden, Peti-
tioners, V. Union Paoihc RAHiROAD
Company. [No. 812.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Kansas.
See same case below, 104 Kan. 289, 178
Pae. 441; on rehearing, 106 Kan. 40, 186
Pac. 752.
Mr. L. W. Keplinger for petitioners.
Messrs. N. H. Loomis, R. W. Blair, and
T. M. lillard for respondent
April 26, 1920. Denied.
Albert F. Houghton et aL, Petitioners,
V. Eugene F. Enslen et al. [No. 816.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth [486] Circuit-
See same case below, 261 Fed. 113.
Mr. Z. T. Rudolph for petitioners.
No appearance for respondents.
April 26, 1920. Denied.
Philajdelphia & Reading Railway Com-
pany, Petitioner, v. Annie Reynolds.
[No. 843.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Pennsyl-
vania. '
See same case below, 266 Pa. 400, 109
Atl. 660.
Mr. George (Jowen Parry for petitioner.
Mr. Francis M. McAdams for re-
spondent.
April 26, 1920. Denied.
Fbeeman-Sweet Company, Petitioner, v.
Luminous Unit Company. [No. 852.]
Petition for a Writ of Certiorari to the
Untted* States Circuit Court of Appeals
for the Seventh Circuit
See same case below, 2f4 F«d. 107.
Mr. Paul Bakewell for petitioner.
Mr. Harrv Lea Dodson for rtspondent.
April 26,* 1920. Denied.
486-488
SUPREME COURT OF THE UNITED STATES.
Oct.
D. W. Ryan Towboat CoMPAirr (Inc.),
Petitioner, v. Cabiob S. Drapsb et al.
[No. 856.]
Petition for a Writ of Certiorari to the
United States Circuit Court ef Appeals
for the Fifth Circuit.
See same case below, 263 Fed. 31.
Mr. John Charles Harris for petitioner.
No appearance for respondents.
April 26, 1920. Denied.
Bowers SouTBoaiN Dredging Company,
Petitioner, V. Carbie S. Draper et aL
[No. 857.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit
See same case below, 263 Fed. 31.
Messrs. J. W. Terry and John Neethe
for petitioner.
No appearance for respondents.
April 26,. 1920. Denied.
* Thomas D. Thomas, Petitioner, v. South
Butte Mining Company. [No. 781.]
Petition for a Writ of Certiorari
[487] to the United States Circuit Court
of Appeal? for the Ninth Circuit.
See same case below, 171 C. C. A. 540,
260 Fed. 814.
Mr. Char]e3 A. Beardsley for peti-
tioner.
Mr. John A. Shelton for respondent
May 3, 1920. Denied.
Ephraim Lederer, Collector of Internal
Revenue, Petitioner, v. Northern
Trust Company and Henry R. Zesing-
er. Executors, etc. [No. 845.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Third Circuit.
Sre same case below, 262 Fed. 52.
Solicitor Qeneral King and Assistant
Attorney General Frierson for petitioner.
Mr. William M. Stewart, Jr., for re-
spondents; . . :
May 3, 1920. Denied.
C. T. Doremus, Petitioner, v. United
States op America. [No. 853.]
Petition for a Writ of Certiorari to the
United States Circuit Couft of Appeals
for the FifUi Circuit.
See same case below — A* L. E. -*-,
262 Fed. 849.
Mr. C. A. Davis for petitioner.
Assistant Attorney General Stewart
and Mr. W. C. Herron for respondent.*
May 3, 1920. Denied
IOS«
Grace McMillan Gibson, Petitioner, ▼.
Ethel M. Gernat. [No. 875.]
Petition for a Writ of Certiorari to the
Court of Appeals of the District of Co-
lumbia.
See same case below, — App. D. C.
— , 267 Fed. 305.
Messrs. Frederic D. McKenney, John
Spalding Flannerj', and G. Bowdoin
Craighill for petitioner.
Messrs. Thomas P. Littlepage and Sid-
ney F. Taliaferro for respondent
May 3, 1920. Denied.
Emily Db Four, Petitioner, ▼. Unfek)
States of America. [No. 840.]
Petition for a Writ of Certiorari to tke
United States Circuit Court of Appeab
for the Ninth Circuit.
See same case below, 171 C. C. A. 36^,
260 Fed. 596.
Mr. Marshall B. Woodworth for peti-
tioner.
Assistant Attorney General Stewart
and Mr. W. C. Herron for respondent
May 17, 1920. Denied.
[488] Backstay Machine &
Co., Petitioner, v. Helen Wadb Ham-
ilton. [Nos. 848 and 84Q.]
Petition for Writs of Certiorari to th«
United States Circuit Court of Appeak
for the First Circuit.
See same case below, 262 Fed. 411.
Messrs. Henry D. Williams amd Fred-
eric D. McKenney for petitioner.
Mr. W. Orison Underwood for re-
spondent.
May 17, 1920. Denied.
Texas A Gulf Steamship Go., Petition-
er, y. Clabbncs Pabker et aL [No.
850.]
.Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the Fifth Circuit.
See same case below, 263 Fed. 864.
}b. William B. Lockhait for peti-
tioner.
No appearance for respoBdeots. t
May 17, 1920. Denied.
S58 V. S.*
1V19.
MEMORANDA CASES.
488-490
Beckwith Company (formerly the es-
tate of P. D. Beckwith, Inc.), Peti-
tioner, V. Minnesota Stove Company.
[No. 860.]
. Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Eighth Circuit.
See same case below, 264 Fed. 337.
Mr. Harry C. Howard for petitioner.
Mr. Walter H. Chamberlain for re-
spondent.
May 17, 1920. Denied.
Jbannbtte W. Lee, Petitioner, v. Rich-
ard C. Minor, as Trustee, etc., et al.
[No. 861.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Ninth Circuit.
See same case below, 263 Fed. 507.
Messrs. F. C. Heffron and Samuel
Herrick for petitioner.
Mr. John H. Miller for respondents.
May 17, 1920. Denied.
Commercial Credit Company et al., Pe-
titioners, V. Continental Trust Com-
pany. [No. 866.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for [489] the Fifth Circuit.
See same case below, 263 Fed. 873.
Mr. Alex. W. Smith for petitioners.
Messrs. Warren Grice and Robert C.
Alston for respondent.-
May 17, 1920. Denied.
Chicago, Rock Island, & Pacific Rail-
way Company, Petitioner, v. Mrs.
Minnie Owens, Administratrix, etc
tNo. 868.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Okla-
homa.
See same case below, 78 Okla. 50^ 186
Pac. 1092.
Messrs. Willard R. Bleakmore, C. O.
Blake, and Thomas P. Littlepage for pe-
titioner.
No appearance for respondent.
May 17, 1920. Denied.
•4 li. ed.
Atlantic Coast Line Railroad Com-
pany, Petitioner, v. State op Ala-
bama. [No. 869.]
Petition for a Writ of Certiorari to the
Supreme Court of the State of Alabama.
See same case below, 202 Ala. 558, 81
So. 60.
Mr. Richard V. Lindabury for peti-
tioner.
' Messrs. J. Q. Smith and Lawrence E.
Brown for respondent.
May 17, 1920. Denied.
Charles Kollman, Petitioner, v. Unit-
ed States. [No. 873.]
Petition for a Writ of Certiorari to the
Supreme Court of the Philippine Is-
lands.
Messrs. Samuel T. Ansell, Edward S.
Bailey, and Chester J. Gerkin for peti-
tioner.
No brief was filed for respondent
May 17, 1920. Denied.
Pennsylvania Railroad Company, Pe-
titioner, V. Alfred Stiedler. [No.
888.]
Petition for a Writ of Certiorari to the
Court of Errors and Appeals of the
State of New Jersey.
See same case below, — N. J. L. — ,
109 Atl. 512.
Messrs. F. D. McKenney, Albert C.
Wall, and John A. Hartpence for peti-
tioner.
Mr. Alexander Simpson for respond-
ent.
May 17, 1920. Denied.
[490] Delaware, Lackawanna, A
Western Railroad Company, Peti-
tioner, V. Charles S. Candee, Jr.
[No. 889.]
Petition for a Writ of Certiorari to
the Supreme Coilrt of the State of New
Jersey.
See same case below, in court of errors
and appeals, — N. J. L. — , 109 Atl. 202.
Mr. Frederic B. Scott for petitioner.
No appearance for respondent
June 1, 1920. Denied. *
1027
490-492
SUPKEME COUKT OF THE UNITED STATES.
Oct. Tbbm.
G. W. BouLDiN, Petitioner, v. United
States op America. [No. 839.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 261 Fed. 674.
Mr. George W. Huntress for petition-
er.
Assistant Attorney General Stewart
and Mr. Harry S. Kidgely for respond-
♦^nt.
June 1, 1920. Denied.
National Surety Company, Petitioner,
V. Lefloke County, in the State of
Mississippi. [No. 851.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 262 Fed. 325.
Mr. John R. Tyson for petitioner.
Mr. R. C. McBee for respondent.
June 1, 1920. Denied.
Samuel L. Sneierson, Petitioner, v.
United States op America. [No.
.863.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fourth Circuit.
See same case below, 264 Fed. 268.
Mr. William Shaw McCallum for pe-
titioner.
Assistant Attorney General Stewart
and Mr. Franklin G. Wixson for re-
spondent.
June 1, 1920. Denied.
H. M. Wheeler, Petitioner, v; Charles
P. Tapi' and H. W. Inscore. [No.
872.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the^Fifth Circuit.
See same case below, 261 Fed. 978.
Mr. G. P. Bullis for petitioner.
Mr. Henry J. Livingston for respond-
ents.
June 1, 1920. Denied.
[491] F. H. Orcutt & Son Company
et al., Petitioners, v. National Trust
& Credit Company. [No. 880.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Seventh Circuit.
See same case below, on first appeal.
170 C. C. A. 630, 259 Fed. 830, on second
appeal, 265 Fed. 267.
Messrs. H. Musg^^ve and William S.
Oppenheim for petitioners.
Mr. James W. Hyde for respondent.
June 1, lf>50. Denied.
102ft
ClIEJ^APEAKE StBAHS^IP COtHPAlTTy of
Baltimore City, Owner, etc., et al., Pe-
titioners, V. Frank Hand, Master, etc.
[No. 885.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap
peals for the Fourth Circuit.
See same case below, 266 Fed. 641.
Mr. Floyd Hughes for petitioners.
Mr. R. M. Hughes, Jr., for respondent-
June 1, 1920. Denied.
Anthony Phillips, Petitioner, v. Unit-
ed States op America. [No. 891.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 264 Fed. 657.
Mr. Frederick T. Saussy for petitioner.
Assistant Attorney General Stewart
and Mr. Franklin G. Wixson for re-
spondent.
June 1, 1920. Denied.
Hirak N. Stancil et al., Petitioners,
V. Frederick Leyland & Company,
Limited, Claimant, etxj., et al. [No
898.]
Petition for a Writ of Certiorari to
the Unifced States Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 264 Fed. 511.
Messrs. John D. Grace and Frederick
S. Tyler for petitioners.
No appearance for respondents.
June 1, 1920. Denied.
Arnold Jacob Uhl, Petitioner, v.
United States op America. [No.
907.]
Petition for a Writ of Certiorari to
the United States [492] Circuit Court
of Appeals for the Fifth Circuit.
See same case below, 263 Fed. 79.
Mr. William Augustus Denson for
petitioner.
Assistant Attorney General Stewart
and Mr. W. C. Herron for respondent.
June 1, 1920. Denied.
Curacao Trading Company (Cura
caosehe Handel Mattschappij), Peti-
tioner, V. Carl B.fORGE, Master and
Claimant, etc., et al. [No. 914.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 263 Fed. 693.
Messrs. J. Blanc Monroe and Mob*
te M. Lemann for petitioner.
Mr. William Waller Young for i«-
I spondents.
June 1, 1920. Denied.
MS V. S.
II^IO.
MEMORANDA CASES.
402-494
Boston West Africa Trading Com-
PANT, Petitioner, v. Quaker City Mo-
Rooco Company. [No. 730.]
Petition for a Writ of Certiorari to the
United States Circuit Court of Appeals
for the I^^rst Circuit.
See same case below, 261 Fed, 665.
Mr. Lee M. i^Viedman for petitioner.
Mr. William L. Putnam for respond*
ent.
June 7, 1920. Denied.
R. L. Mayfield, Petitioner, v. State of
Tennessee ex rel. F. M. Qerakd.
[No. 854.]
Petition for a Writ of Certiorari to
the Supreme Court of the State of Ten-
Mr. James A. Cobb for petitioner.
No appearance for respondent.
Jvne 7, 1920. Denied.
B. SuLLiVAK, Petitioner, v. P. San-
Ross, Inc. [No. 874.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Seeond Circuit
See same ease below, 263 Fed. 348.
Mr. Henry J. Bi^am for petitioner.
Mr. A. Leo Everett for respondent
June 7, 1920. Denied.
[4M] Angel Vargas, Petitioner, ▼. P.
M. Yaptioo & Company. [No. 882,]
Petition for a Writ of Certiorari to
the Supreme Court of the Philippine
Islands.
Mr. Ernest Wilkinson for petitioner.
No appearance for respondent.
June 7, 1920. Denied.
Harmon P. MacKnight, Petitioner, ▼.
United States of America. [No.
884.]
Petition for a Writ of CerUorari to
the United States Circuit Court of Ap-
peals for the First Circuit.
See same case below, 263 Fed: 832.
Mr. Uarmon P. MacKnigbt for peti-
tioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridge ly for respond-
ent.
June 7, 1920. Denied.
• 4 li. ed.
Missouri Paoifio RAn.ROiP Company,
Petitioner, v. R. L. Block. [No. 893.]
Petition for a Writ of Certiorari to
the Supreme Court of the State of Ar«
See same case below, — Ark. — , 218
S. W. 682.
Mr. Troy Pace for petitioner.
No appearance for respondent.
June 7, 1920. Denied. .
George W. Canfikld et al., Petitioners,
V. Lusanna Brink. [No. 894.]
Petition for a Writ of Certiorari to
the Supreme Court of the State of Okla-
homa.
See same case below, 78 Okla. 189, 187
Pac. 223.
Messrs. William J. Hughes and
Charles W. Grimes for petitioners.
Messrs. D. A. McDougal and W. V.
Pryor for respondent.
June 7, 1920. Denied.
George W. Casvosld et al., Petitioners,
V. Ira £. Cornelius et al. [No. 895.]
Petition for a Writ of Certiorari to
the Supreme Court of the State of Okla-
homa.
See same case below, 78 Okla. 127, 188
Pac. 1040.
Messrs. William J. Hughes and
Charles W. Grimes for petitioners.
Messrs. L. O. Lytle, Joseph C. Stone,
[494] Charles A. Moon, and Francis
Stewart for respondents.
June 7, 1920. Denied..
C. B. Schoberg, Petitioner, t. United
States op America. [No. 902.]
Petition' for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Sixth Circuit.
See same case below, 2o4 Fed. 1.
Mr. Sherman T. McPherson for peti-
tioner.
Assistant Attorney General Stewart
and Mr. W. C. Herron for respondent.
June 7, 1920. Denied.
Henry Krusb, Petitioner, v. United
States of America. [No. 903.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Sixth Circuit.
See same case below, 264 Fed. 1.
Mr. Sherman T. McPherson for peti-
tioner.
Assistant Attorney General Stewart
and Mr. W. C. Horron for respondent.
June 7, 1020. Doniod.
loss
494-496
SUPREME COUKT OF THE UNITED STATES.
Oct. Turn.
EfiNBT Fsi/TMAN, Petitioner, v. United
States or America. [No. 904.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Sixth Circuit.
See same case below, 264 Fed. 1.
Mr. Sherman T. McPherson for peti-
tioner. .
Assistant Attorney General Stewart
and Mr. W. C. Herron for respondent.
June 7, 1920. Denied.
Peter Wimheb, Petitioner, v. United
States oj* America. [No. 905.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Sixth Circuit.
See same case below, 264 Fed. 11.
Mr. Frederick M. Schmitz for peti-
tioner.
Assistant Attorney General ' Stewart
ind' Mr. W. C. Herron for respondent..
June 7, 1920. Denied.
Fidelity & Casuai/tt Company of New
York, Petitioner, v. Wallace L.
ScHAMBS, Trustee in Bankruptcy for
the estate of Hudson D. Fowler. [No.
908.]
[495] Petition for a Writ of Cer-
tiorari to the United States Circuit Court
of Appeals for the Sixth Circuit.
See same case helow, on first writ of
error, 6 A.L.K. 1231, 170 C. C. A. 65,
259 Fed. 55 ; on second writ of terror, 263
Fed. 895.
Mr. J. Wilmer Latimer for petitioner.
Mr. Newton t). Baker for respondent.
June 7, 1920. Denied.
Joseph Bivens, Sb., Petitioner, v.
Ukitbd Timber Corporation. [No.
913.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fourth Circuit.
See same case below, 264 Fed. 308.
Messrs. Julian Mitchell, Charles A.
Douglas, and Hugh H. Obear for peti-
tioner.
Mr. Legare Walker for respondent.
June 7, 1920. Denied.
Obvillb Anderson, Petitioner, v. Ukitbd
States of America. [No. 919.]
Petition for a Writ of Certiorari to
the United States Circuit Court of
peals for the Eighth Circuit.
See siune case below, 264 Fed. 75.
Mr. Joe Kirby for petitioner.
Assistant Attorney General Stewart
and Mr. Harry S. Ridgely for respond-
ent. ^
June 7, 1920. Denied.
Joseph Bivens, Sr.', Petitioner, v.
United Timber Corporation. [No.
912.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Fourth Circuit.
See same case below, 264 Fed. 308.
Messrs. Julian Mitchell, Charles A.
Douglas, and Hugh H. Obear for peti-
tioner.
Mr. Legare Walker for respondent
June 7. 1920. Denied.
1030
Day Amherman, Petitioner, v. Uititbo
States of America. [No. 925. J
Petition for a Writ of Certiorari to
the United States Circuit Court of Afi-
peals for the Eighth Circuit.
See same case below, 262 Fed. 124.
Mr. Robert S. Morrison for petitiomer
Assistant Attorney General Stewart
for respondent.
June 7, 1920. Denied.
[496] Commercial Credft Compauti,
Petitioner, v. Sponge Exchakge BIkk
op Tarpon Sprixcis. [No. 928.]
Petition for a \.'rit of Certiorari to
the United States 'Circuit Court of Ap-
peals for the Fifth Circuit.
See same case below, 263 Fed. 20.
Messrs. N. B. K. Pettingill^ M. B.
Macfarlane, and Leo Oppenheimer for
petitioner.
Mr. James F. Glen for respondent.
June 7, 1920. Denied.
John White, Petitioner, v. UNmsD
States op America. [No. 940.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Sixth Circuit.
See same case below, 263 Fed. 17.
Mr. Frederick S. Tyler for petitioner.
Assistant Attorney General Stewart
and Mr. W. C. Herron for respondent.
June 7. 1920. Denied.
S5S U. S.
19X9.
MEMORANDA CASES.
496-498
iErwA LiFB Insurance Company, Peti-
tioner, V. Walter N. Brand. [No.
942.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, — A.LJt. — ,
265 Fed. 6.
Mr. William H. Foster for petitioner.
Mr. Louis L. Waters for respondent.
June 7, 1920. Denied.
W. B. Tbedwell, Petitioner, t. Unitbd
SvArrBs ov America. [No. 945.]
Petition for a Writ of Certiorari to
ike United States Circuit Court of Ap-
peals for the Fourth Circuit.
See same case below, 266 Fed. 350.
Mr. Harry K. Wolcott for petitioner.
.. Aawstant Attorney General Stewart
and Mm. W. C. Herron for respondent.
June 7, 1920. Denied.
Mary L. Greer Conklin, Appellant, T.
Augusta Chronicli Publishino Com-
PAFY. [No, 946.]
> Petition for a Writ of Certiorari here-
in.
Mrs. Mary [497] L. Greer Conklin, in
propria persona, for the petitiim.
June 7, 1920. Denied.
George E. Vandenburgh, Petitioner, v.
Electric Welding Company. [No.
947.]
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Third Circuit.
See 5ame case below, 263 Fed. 95.
Mr. Carlos P'. Griffin for petitioner.
Mr. Frederick W. Winter for respond-
ent
June 7, 1920. Denied.
G. Sanbaa, Master and Claimant, etc., et
al., Petitioners, v. United States of
America et al. [Xo. 949.]
Petition for a Writ of Certiprari to
the United States Circuit Court of Ap-
peals for the Fourth Circuit.
See same case below, 265 Fed. 921.
. Mr. Henry H. Little for petitioners.
Assistant Attorney General Spellacy.
Mr. J. Frank Staley, and Mr. James W.
Byan for respondents.
June 7. 1920. Denied.
•4 li. ed.
Peck, Stow, & Wilcox Company, Peti-
tioner, V. H. D. Smith* & Company.
[No. 957.1
Petition for a Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, 262 Fed. 415.
Mr. Frederick P. Fish for petitioner.
Mr. Archibald Cox for respondent.
June 7, 1920. Denied.
Thomas Pennacchio, Petitioner, ▼.
United States of America. [No.
959.]
Petition for Writ of Certiorari to
the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, 263 Fed. 66.
Mr. John B. Golden for petitioner.
No bri^ was filed for respondent.
June 7, 1920. Denied.
St. Paul Fire & Marine Insu^ncb
Company, Petitioner, v. Hagemeyer
Trading Company [No. 960] ; and
[498] St. Paxil Fire & Marine In-
surance Company, Petitioner, v. Hugo
A. Thomsen et al. [No. 961.]
Petition for Writs of Certiorari to
the United States Circuit Court of Ap-
peals for the Second Circuit.
See same case below, 266 Fed. 14.
Messrs. D. Roger Englar and Oscar R.
Houston for petitioner.
Mr. Van Vechten Veeder for respond-
ents.
June 7, 1920. Denied.
RoxpORD KNrrriNG Company, Petitioner,
V. MooRB & Tierney (Inc.) [No
965.]
Petition for a Writ of Certiorari to the
United States Circuit Court of A !> peals
for the Second Circuit.
See same case below, — A.L.R. — ,
265 Fed. 177.
Messrs. Walter S. Hilbom and David
J. Gallert for petitioner.
Mr. Thomas O'Connor for respondent.
Juno 7, 1920. Denictl
for, I
498, 499
SUPREME COURT OF THE UNITED STATES.
Oct.
RoxFORD Knitting Company, Petitioner,
V. William Moore Kjjitting Com-
pany. [No. 966.] .
Petition for a Writ of Certiorari to
the United States Cireoit Court of Ap-
peals for the Second Circuit.
See same case below, — A.L.R. — ,
265 Fed. 177.
Messrs. Walter S. Hilbom and David
J. Gallert for petitioner.
Mr. Thomas O'Connor for respondent.
June 7, 1920. Denied.
Pete Mobgan, Petitioner, v. State of
Louisiana. [No. 971.]
Petition for a Writ of Certiorari to
the Supreme Court of 'the State of Louis-
iana.
See same case below, on first appeal,
142 La. 755, 77 So. 588; on seeond ap-
peal, 145 La. 585, 82 So. 711; on third
appeal, 147 La. — , 84 So. 589.
Messrs. R. E. Milling, Allan Shdara,
and J. B. Roberts for petitioner.
No appearance for respondent.
June 7, 1920. D^ied.
[499] Interurban Railway Company
and London Guarantee & Aeeident
Company, Petitioners v. Mas. Fred
Smith. [No. 846.]
On Petition for Writ of Certiorari to
the Supreme Court of the State of Iowa.
See same case below, — Iowa, — , 171
N. W. 134.
Mr. Frank J. Hogan for petitioners.
No appearance for respondent.
April 26, 1920. Dismissed on' moti<Hi of
counsel for the petitioners.
Lillian B. Pbmbleton, Petitioner, v.
Illinois Commercial Men's Associa-
tion. [No. 625.]
On Writ of Certiorari to the Supreme
Court of the State of Illinois.
1032
See same case bdow, 289 IlL 99, 124
N. E. 355.
Messrs. Harrison Musgrave and Wil-
liam S. Oppenheim for petitioner.
Mr. James Q. Condon for respondent.
April 29, 1920. Dismissed with costs^
on motion of counsel for the petitioner.
John S. Randolph, Plaintiff in Error, v.
United States op Amkrioa. [No.
346.]
In Error to the District Court of the
United States for the Northern Distriet
of New York.
Mr. Frederick A. Mohr for plaintiff in
error.
The Attorney G^eral for defendant is
error.
May 17, 1920. Dismissed, ob motioik
of counsel for the plaintiff in enor.
United States, Appelant, t. Quaksb
Oats Company et al. [No. 14.]
Appeal from the District Court of thm
United Stated for the Northern District
of Illinois.
See same case below, 232 Fed. 499.*
The Attorney (General for appeUaat.
Mr. EUmer H. Adams for i^;>pellee8.
June 1, 1920. Dismissed, on motion
of counsel for the appellant
Ex pakte: In the Matter of Wai/eeb
Peterson, as Receiver, etc., Petitioner.
[No. , Original.]
Motion for leave to file petition for
writ of prohibition or mandamus.
Mr. Abram J. Rose for petitioner.
January 12, 1920. Grants, and a rule
to show cause awarded.
S5S U. 8.
APPSJISTDIX I.
§^txpvtmt Conrt of the WinittA J^tates.
OcTOBEB Term, 1910.
ORDER.
It is ordered that the bond of James D. Malier, as clerk of this court, presented this
day, be approved and recorded, and that the original of said bond be filed in the Depart-
ment of Justice, pursuant to § 220 of the Judicial Code.
October 16, 1919.
APPENDIX 11.
SfXi}^vtmt Court of the United States.
October 'J>:bm, 1919.
ORDER.
It is ordered by the court that the bond presented by the Marshal this day be approved
and recorded.
January 5, 1920.
€4 L. ed. loss
APPENDIX III
^ixpvtmt ^ovLXt of the 'United states.
OcTDBEB Teem, 1919.
OKDER.
The Reporter having represented that, owing to the number of decisions at the pres-
ent term, it would be impracticable to put the reports in one volume, it is, therefore,
now here ordered that he publish an additional voliune in this year, pursuant to i
of the Judicial Code, approved March 3, 1911.
May 17, 1920,
APPENDIX IV.
§VLpvtmt Court of the United states.
OcTOBEX Tebm, 1919.
OEDER.
It is now here ordered by the court that all the cases on the docket not decided, and
all the other business of the term not disposed of, be, and the same are hereby, oontisued
to the next term.
June 7, 1920.
1034
GENERAL INDEX
TO TSB
THBEE VOLUMES CONTAINED IN THIS BOOK,
251, 252, 253
OCTOBER TERM, 19)9.
Bdiiorial Notes are Indexed by the word "Annotated" appended to the pftragraphe
to wkSck they apply.
ABATBBfBNT.
Tenalnatlon of office.
Mandamus proceedings against the
Saoretary of the Treasury abated when,
that officer haying resigned his office , his
successor was not substituted as defend-
ant within twelve months, which is the
limit for substitution afforded by the Act
of February 8, 1899, and the fact that the
District of C!olumbia Code, § 1278, allows
the petitioner to recover damages in the
same proceeding, does not justify the re-
tention of the petition to charge the Secre-
tary personally, since the damages are
only incident to the allowance of the writ.
Le Crone v. McAdoo, 263 U. S. 217, 40
Sup. Ct. Rep. 610, 64: 869
AOQUITTAI/.
Former jeopardy, see Criminal Law, 2.
AOnON OR SUIT.
Matters peculiar to particular kinds
of actions and proceedings, see
Assumpsit; Habeas Corpus; In-
junction; Mandamus.
Abatement of action, see Abatement.
Abolishing common-law defense of
contributory negligence as deny-
ing due process of law, see Con-
stitutional Law, 62.
Making contributory negligence a
question for the jury as denying
due process of law, see Constitu-
tional Law, 63.
Affirmative defense in suit to cancel
Satent to public lands, see Evi-
ence, 6.
Condition precedent to suit to recover
back excessive tax, see Internal
Revenue, 23, 24.
Limitation of actions or suits, see
Limitation of Actions.
Proceedings to adverse mining claim,
see Mines, .'>-9.
04 li. ed.
Parties to action, see Parties.
Suits by or against state, see States.
Matters as to trial, see Trial.
Suits by or against United States.
see United States, 6, 6.
Prematurity.
1. A cause of action against a na-
tional bank director for knowingly par-
ticipating in an excessive loan, contrary
to U. S. Rev. Stat. §§ 5200 and 6239, ac-
crues when the bank, through his act.
parts with the money loaned, receiving in
return negotiable paper that it cannot
lawfully accept because the transaction is
prohibited. The damage, as well as the
mjury, is complete at that time, and the
bank is not obliged to await the maturity
of the paper before suing. Corsicana Nat.
Bank v. Johnson, 251 U. S. 68, 40 Sup. Ct
Rep. 82, (Annotated) 64: 141
Misjoinder.
2. Rights conferred by Federal law are
not denied by the refusal of a state court
to permit the joinder in a single count
which alleged concurring negligence of a
cause of action against a railway company
to recover damages under the Federal Em-
ployers' Liability Act, and of .a common-
law action against the railway employee
whose concurrent negligence was alleged
to have contributed in producing the in-
jury. Lee V. Central of Georgia R. Co. 252
U. S. 109, 40 Sup. Ct. Rep. 254,
(AnnoUted) 64: 482
ADAMSON LAW.
See Master and Servant, 1.
ADMIRAliTY.
Final judgment in admiralty proceed-
ing, see Appeal and Error, 4.
Pleading foreign law, see Pleading, 2.
Admiralty rules, see Rules of Courts
10.3.%
ADMISSIONS— ANSWER.
BxcluslTeness of Federal jnrisdiction.
1. The Federal Constitution itaelf
adopted and established, as part of the
laws of the United States, approved rules
of the general maritinie law, and empow-
ered Congress to legislate in respect of
them and other matters within the admir-
alty and maritime jurisdiction. Moreover,
it took from the states all power, by leg-
islation or judicial decision, to contravene
the essential purposes of, or to work ma-
terial injury to, characteristic features of
such law, or to interfere with its proper
harmony and uniformity in its interna-
tional and interstate relations. To pre-
serve adequate harmony and appropriate
uniform rules relating to maritime' mat-
ters, and bring them within control of the
Federal government, was the fundamental
purpose; and to such definite end Congress
WIS empowered to legislate within that
ei^Mre. Knickerbocker Ice Co. v. Stewart,
263 U. S. 149, 40 Sup. Ct. Rep. 438,
64:834
2. The mere reservation of partially
concurrent cognizance to state courts by
an act of Congress conferring an other-
wise exclusive admiralty jurisdiction upon
the Federal courts could not create sub-
stantive rights or obligations, nor indicate
assent to their creation by the states.
Knickerbocker Ice Co. v. Stewart, 253 U.
8. 149, 40 Sup. Ct. Rep. 438, 64: 834
3. Congress exceeded its constitution-
al power to legislate concerning rights and
liabilities within the maritime jurisdic-
tion, and remedies for their enforcement,
by attempting, as it did in the Act of
October 6, 1917, to permit the application
of Workmen's Compensation Laws # of the
several states to injuries within the ad-
miralty and maritime jurisdiction, thus
virtually destroying the harmony and uni-
formity which the Constitution not only
contemplated, but actually established.
Knickerbocker Ice Co. v. Stewart, 263 U.
S. 149, 40 Sup. Ct. Rep. 438, 64: 834
4. A state Workmen's Compensation
IjBLW may not be applied to an injury sus-
tained prior to the enactment of the Act
of October 6, 1917, by a longshoreman
while he was unloading a vessel lying in
navigable waters, in view of the Judicial
Code, §§ 24 and 256, giving Federal dis-
trict courts exclusive judicial cognizance
of all civil .causes of admiralty and mari-
time jurisdiction, saving to suitors in all
cases the right to a common -law remedy
where the common law is competent to
give it. Peters v. Veasey, 251 U. S. 121,
40 Sup. Ct. Rep. 65, 64: 180
6. A cause of action accruing before
the enactment of the Act of October 6,
1917, is not affected by the provision of
that act which amends the clauses of the
Judicial Code, §§ 24 and 256, giving Fed-
eral district courts exclusive judicial cog-
nizance of all civil causes of adnftralty and
maritime jurisdiction, saving to suitors in
all cases the right of a common-law rem-
My where the common law was competent
to give it. by addinjr the words, "and to
10.16
claimants the rights and remedies oiider
the Workmen's Oompensation Law of any
state." Peters v. Veasey, 261 U. S. 121,
40 Sup. Ct. Rep. 66, 64: 180
ADMISSIONS.
As evidence, see Evidence, 8.
ADVEXtSE POSSESSION.
Adverse possession could confer no
rights to lands within the Pottawatomie
Indian Reservation granted by the Act of
July 1, 1862, to a railway company for a
right of way. Nadeau v. Union P. R. Co.
263 U. S. 442, 40 Sup. Ct. Rep. 570,
64: lOOS
AGREEMENTS.
Contracts generally, see Contracts.
AlilENS.
Remanding cause for hearing of Cki-
nese applicant for admission to
United States, see Appeal and
Error, 66.
Due process of law in Chinese exdn-
sion, see Constitutional Law, 65.
Alienage as affecting jurisdiction, nee
Courts, 6.
Habeas corpus on behalf of Chinese
applicant for admission to thM
United States, see Habeas Om>-
pus, 2.
Remedy of alien enemy, see War, 12
Deportation.
A Chinese person claiming the right
to re-enter the Uhited States under the
Act of November 3, 1803, as a returning
merchant, may not be deported by execu-
tive action on the ground that the original
entry was fraudulent, but he must be
deemed to be entitled to a judicial inquiry
and determination of his rights, in view
of the provision of that act that a China-
man who applies for admission into the
United States on the ground that he wa«
formerly engaged therein as a merchant
must establish the fact bv two credible
witnesses other than Chinese that he wa«i
such at least one year before his depar
ture from the United States, and had not
engaged during such year in any manual
labor except such as was necessary in the
conduct of his business. White v. Chin
Fong, 253 U. S. 90, 40 Sup. Ct. Rep. 449.
64: 797
AMENDMENT.
Allowing amendment of pleading aa
reversible error, see Appeal and
Error. 42.
Of Constitution, see Constitutional
Law, T.
ANIMATiS.
Validity of Migratory Bird Treaty,
see Treaties.
ANSWER.
See. Pleading.
2.51. 252. 253 U. &.
ANTICIPATION— A1*PE A L AND KKKOK.
ANTICIPATION.
0f patent, see Patents.
ANTITRUST liAW.
See Monopoly.
APPKAIi AND ERROR.
I; Appellate jurisdiction generally, l--d.
a. Decisions reviewable; f)nal judg-
ments, 1-5.
b. Review by government in crim-
inal case, 6.
IL Jurisdiction of United States Su-
preme CJourt, 7-26.
a. Over Federal courts, 7-10.
b. Over state courts, 11-25.
III. The record, 26, 27.
IV. Objections and exceptions, 28.
V. Preliminary motions and orders, 29.
VT. Hearing and determination, 30-51.
VII. Judgment, 52-59.
Revision of proceedings of courts of bank-
ruptcy, see Bankruptcy, 6.
Mandamus as substitute for writ of error
or appeal, see Mandamus, 1.
Rules for appeals from court of claims, see
Rules of Courts.
I. Appellate jurisdiction generally.
a. Decisions reviewable; final judgments.
See also infra, 8, 30.
1. An order of a Federal district court
which denied the application of a receiver
of an insolvent corporation, appointed by
a state chancery court, for an order turn-
ing over to him the assets of the corpora-
tion in the possession of a receiver previ-
ously appointed by the Federal court, is a
final decision within the meaning of the
Judicial Code, § 128, governing the appel-
hite review in the circuit courts of appeals
of final decisions of the district eourt.
Re Tiffany, 252 U. S. 32, 40 Sup. Ct. Rep.
239, 64: 443
2. An order of a Federal district court
denyin<r the application of a municipality
to intervene in a suit by a gas company
against the attorney general, the district
attorney, and the state Public Service
Commission, to enjoin the enforcement of
state legislation fixing gas rates, is not of
that final character which furnishes the
basis for an appeal. New York v. Consol-
idated Gas Co. 253 U. S. 219, 40 Sup. Ct.
Rep. 611, • 64: 870
3. A single judgment upon a petition
for a writ of habeas corpus setting forth
a detention of the relator in extradition
proceedings on three separate afiidavits is
not reviewable on appeal, where such judg-
ment, though directing that the writ be
denied as to the commitment on one of
these affidavits, also declared that the
writs ot habeas corpus are granted as to
the commitments on the other two affida-
vits, and ordered that the case be remand-
ed for further hearing, since, ^nly one
branch of the case having been finally dis-
posed of below, none of it is reviewable.
64 tj. Oil,
Colling v. Miller, 252 U. S. 364, 40 Sup. a.
Rep. 347, 64: 616
4. A decree of a Federal district court
dismissing for lack of jurisdiction the pe-
tition of the defendant vessel owner in an
admiralty suit to bring in as a party de-
fendant a corporation which it is asserted
would be liable as an indemnitor if the
liability of the vessel should be established
lacks the finality essential to support an
appeal. Oneida Nav. Corp. v. W. & S. Job
& Co. 252 U. S. 621, 40 Sup. Ct. Rep. 357,
64:697
5. Decrees of a circuit court of ap-
peals which reversed decrees below for the
recovery of amounts awarded in a rep-
aration order made by the Interstate Com-
merce Commission, and remanded the
cause for a new trial, are not final for the
purpose of a writ of error. Spiller v.
Atchison, T. & S. F. R. Co. 253 U. S. 117,
40 Sup. Ct. Rep. 466, 64: 810
b. Review by government in criminal case.
6. A ruling taking the form of a grant
of a motion to quash an indictment on the
ground that the charges, having been sub-
mitted to a previous grand jury which
failed to indict, were resubmitted to a
later grand jury by the Federal district
attorney without leave of court first ob-
tained, is a ^^decision or judgment sustain-
ing a special plea in bar when the defend-
ant has not been put in jeopardy," within •
the meaning of the Criminal Appeals Act
of March 2, 1907, granting the govemmeni
a right to review in a criminal case.
United States v. Thompson, 261 U. S. 407,
40 Sup. Ct. Rep. 289, (Annotated) 64: 388
n. Jurisdiction of United States Supreme
Court.
*
a. Over Federal courts.
Over circuit courts of appeals.
Certiorari to circuit courts of appeals,
see Certiorari, 2-6.
See also supra, 6.
7. An appeal having been taken to a
circuit court of appeals in a case in which
jurisdiction below was based upon consti-
tutional grounds, and hence was not ap-
pealable to that court, nnd a final order
having been made by the circuit court of
appeals, the Federal Supreme Court has
jurisdiction under the Judicial Code, § 241,
to review the question of the jurisdiction
of the circuit court of appeals. New York ▼.
Consolidated Gas Co. 263 U. S. 219, 40 Sup.
Ct. Rep. 511, 64: 870
Over district courts.
See also supra, 1-4, 6.
8. An appeal to the Federal Supreme
Court, taken under the Judicial Code,
§ 266, from the denial by a district
court of an interlocutory application for
an injunction to restrain the enforcement
of a state statute on constitutional
grounds, must be dismissed where the de-
cree as entered not only disposed of the
1037
APPEAL AND ERROR.
application, but dismissed the action, and
another appeal was later taken from the
same decree under § 238/ this being the
proper practice, since the denial of the ap-
plication was merged in the final decree.
Shaffer v. Carter, 262 U. S. 37, 40 Sup. Ct.
Rep. 221, 64: 446
9. The question whether the obliga-
tions of a contract with the state were im-
paired by subsequent state legislation is
one which will warrant a direct writ of
error from the Federal Supreme Court to a
district court.* Hays v. Seattle, 251 U. S.
233, 40 Sup. Ct. Rep. 125, 64: 243
10. The contention, by the owner of a
nonexclusive franchise to use the streets of
a town for the distribution of electric cur-
rent, tliat competition in business likely
to result from a similar grant to another
corporation would be a violation of its own
contract, or a taking of its property in
violation of the Federal Constitution, is too
plainly frivolous to serve as the basis of
an appeal to the Federal Supreme Court
from a decree of a district court, dismiss-
ing a suit for injunctive relief. Piedmont
Power & Light Co. v. Graham, 263 U. S.
193, 40 Sup. Ct. Rep. 453, 64: 856
b. Over state courts.
Error or certiorari.
j Certiorari to state court, see Certio-
rari, 1.
11. Since the amendment of September
6, 1916, to the Judicial Code, § 237, a writ
of error to a state court lies only where
there was drawn in question the validity
of a treaty or statute of or an authority
exercised under the United States, and the
decision was against their validity, or
where there was drawn in question the va-
lidity of a statute of or an authority exer-
cised under any state, on the ground of
their being repugnant to the Constitution,
treaties, or laws of the United States, and
the decision was in favor of their validity.
Godchaux Co. v. Estopinal, 251 U. S. 179,
40 Sup. Ct. Rep. 116, 64: 213
12. The mere objection to an exercise
of authority under a state statute whose
validity is not attacked cannot be made
the basis of a writ of error from the Fed-
eral Supreme Court to a state court since
the amendment of September 6, 1016, to
the Judicial Code, § 237. There must bt.
a substantial challenge of the validity of
the statute or authority upon the claim
that it is repugnant to the Federal Consti-
tution, treaties, or laws, so as to require
the state court to decide the question of
validity in disposing of the contention.
Jett Bros. Distilling Co. v. Carroll ton, 262
U. S. 1, 40 Sup. Ct. Rep. 256, 64: 481
13. The assertion of a title, right, priv-
ilege, or immunity under the Federal Con-
stitution may afford the basis for a writ
of certiorari from the Federal Supreme
Court to a state court, but it constitutes
no ground for a writ of error. Mergen-
1038
thaler Linotype Co. ▼. Davis, 261 U. S-
256, 40 Sup. Ob. Rep. 133, 64: S69
14. Writ of error, not certiorari, is the
proper mode of reviewing, in the Federal
Supreme Court, a judgment of the highest
court of a state upholding a state statute
challenged as repugnant to the Federal
Constitution. Kenney v. Supreme Lodge
of the World, Loyal Order Moose, 252 V
S. 411, 40 Sup. Ct. Rep. 371, 64: 638
When Judgment is that of high<^t
state court.
16. A judgment of a Missouri court ot
appeals which reversed the judgment belov
after the state supreme court had, on
certiorari, quashed a prior judgment of af
Hrmance in the court of appeals, and bad
remanded the cause to tliat court for de
cision, is a judgment of the highest state
court for purposes of a writ of error from
tho Federal Supreme Court. Mergenthaler
Linotype Co. v. Davis, 251 U. S. 256, 40
Sup. Ct. Rep. 133, 64: 265
16. A judgment of a California district
court of appeal refusing certiorari to as
inferior court is the judgment of the state
court of last resort having power to con-
sider the case so far as the appellate juris
diction of the Federal Supreme Court is
concerned, where such appellate court as
sumed jurisdiction of the cause, and the
supreme a;>urt of the state refused, for
want of jurisdiction, to review the judj;
ment, although the district court of appeal
may have erred in assuming jurisdiction,
since this is purely a question of state law.
Pacific Gas & Electric Co. v. Police Court
251 U. S. 22, 40 Sup. a. Rep. 79, 64: 112
Presentation of Federal question to
state court.
17. The claim in the state trial court
that a ruling was contrary to U. S. Const,.
I4th Amend., affords no basis for a writ
of error from tlie Federal Supreme Court,
where no such contention was made in the
assignment of .errors in the highest eoort
of the state, nor was it, so far as appears
by the record, otherwise presented to or
passed upon by that court. Hiawasnee
River Power Co. v. Carol ina-Tenne*se*
Power Co. 252 U. S. 341, 40 Sup. Ot. Rep
330. 64: 601
18. A Federal question first raised on
motion for rehearing in a state appellate
court comes too late to serve as the basi«
of a writ of error from the Federal Su
preme Court. Mergenthaler Linotype Co
V. Davis, 251 U. S.- 256, 40 Sup. Ct. Rep
133, 64: 266
19. To give the Federal Supreme Court
jurisdiction to review the judgment of a
state court upon writ of error, the esaen-
tial Federal question must have been spe-
cially set up there at the propw time Mid
in the proper manner, and if first presentetl
in a petition for rehearing to the state
court of last resort, it comes too late, un
less the court actually entertains the peti
tion and passes upon the point. Godchaux
Co. ▼. Estopinal, 251 U. S. 170, 40 Sup
Ct. Rep. 116, 64: SU
20. The overruling by the highest oourt
Sftl, S6S, SftS U. 8.
APPEAL AND ERROB.
of ft state without opinion of a petition
for reheaHng cannot be made the basis of
a writ of error from the Federal Supreme
Court. Jett Bros. Distilling Co. v. Carroll-
ton, 252 U. S. 1, 40 Sup. Ct. Rep. 265,
•4:421
21. The omission to set up a Federal
question in the highest court of a state is
not cured by the allowance of a writ of
error from the Federal Supreme Court by
the chief justice of the highest state court,
nor by the specific assertion of such ques-
tion in the petition for such writ of error,
and in the assignment of errors filed in the
Federal Supreme Court. Hiawassee River
Powwr Co. V. Carolina-Tennessee Power Co.
252 U. S. 341, 40 Sup. Ct. Rep. 330,
64:601
Decision on non-Federal grounds.
As defeating certiorari to state court,
see Certiorari, 1.
22. A decision of the highest court of a
state is not reviewable in the Federal Su-
preme Court as presenting the question
whether contract obligations were impaired
by the effect given to a municipal ordinance
repealing a street lighting and power fran-
chise, where this contention was first maUie
in the intermediate state appellate court,
and no effect whatever was given to such
ordinance, either by that coui^ or by the
state court of last resort, each court reach-
ing the oonclusion under review independ^
ently of and without reference to such ordi-
nance. Hardin-Wyandot Lighting Co. v.
Upper Sandusky, 251 U. S. 173, 40 Sup. Ct.
Rep. 104, 64:210
Wbat reviewable generally.
See also infra, 65.
23. The validity of state statutes is a
question, the decision of which by the
highest state court is not open to review
in the Federal Supreme Court on writ of
error to the state court. Green v. Frazier,
253 U. S. 233, 40 Sup. Ct. Rep. 499.
64:878
24. The Federal Supreme Court, when
dealing with the constitutionality of state
statutes challenged under U. S. Const., 14th
Amend., accepts the meaning of such stat-
utes as construed by the highest court of
the state. Farncomb v. Denver, 262 U. S.
7. 40 Sup. Ct. Rep. 271, 64:424-
25. Whether a state statute did or did
not validate a contract theretofore unen-
forceable is a question for the state courts
to decide, and their decision is not subject
to review in the Federal Supreme Court.
Munday v. Wisconsin Trust Co. 252 U. S.
499, 40 Sup. Ct. Rep. 365, 64:684
ni. The record.
Bill of exceptions.
26. The trial court could not, without
the consent of the adverse party, extend
the time for filing a bill of exceptions by
an order made after the term had expired,
and subsequent to the day to which the
term was extended, by a general rule for
the purpose of filinsr snch bills. CConneli
64 Ti. ed.
v. United States, 258 U. 8. 142, 40 Sup. Ct.
Rep. 444, 64:887
27. The Federal Supreme Court may
not consider a bill of exceptions not pre-
sented until after the power ol the trial
oovrt over the same had expired* O'Con-
nell y. United States, .253 U. S. 142, 40
Sup. Ct Rep. 444, 64:887
IV. Objections and exceptions.
On error to state court, see supra, 17-21.
Review of question not raised below^ see
infra, 38.
See also infra, 39.
28. Assertions by counsel during a
hearing before the Interstate Commerce
Commission in a reparation proceeding that
there was a failure of proofs and suggestions
that the proceeding ought to be dismissed,
come too late and are too general in char-
acter to be equivalent to an objection to
the reception of certain evidence as hear-
say. Spiller V. Atchison, T. ^ S. F. R. Ca
263 IJ, S. 117, 40 Sup. Ci Rep. 466, '
* 64:810
T. Preliminary motions and orders.
Dismissal.
Remanding for dismissal, see infra,
67-59.
See also supra, 8; infra, 34.
29. The enactment of the Transporta-
tion Act of February 28, 1920, which neces-
sitates changes in bills of lading prescribed
by the Interstate Commerce Commission,'
renders moot the controversy presented by a'
petition which seeks to set aside an order
of the Commission requiring carriers to use
such bills of lading, and requires that an
order granting a preliminary injunction to
restrain the Commission from putting into
force the bills of lading in the form pre-
scribed be reversed, and that the cause be
remanded to the court below with directions
to dismiss t^e petition without costs to
either party, and without prejudice to the
right of the complainants to assail in the
future anv order of the Commission pre-
scribing bills of lading after the enactment
of the Transportation Act. United States
V. Alaska S. S. Co. 253 U. S. 113, 40 Sup.
Ct. Rep. 448, 64:808
VI. Hearing and determination.
Review on certiorari, see Certiorari, 4-6.
Denying hearing in banc as affording due
process of Uw, see Constitutional Law,
64.
Judicial notice by appellate court, see Evi-
dence, 1, 2.
30. The fundamental question whether
the judgment appealed from is a final one
must be answered, although not raised by
either party. Collins v. Miller, 252 U. S.
364, 40 Sup. Ct. Rep. 347, 64:616
31. The Federal Supreme Court will not
ordinarily disturb the decision of the trial
16S6
APPEAL AND ERROR.
court, made after both parties moved for a
directed verdict, that a certain issHe was
determined in a former suit tried bv the
aamp judge. Birge-Forbes Co. T. Heye,
261 U. & 317, 40 Sup. Ct. Rep. Ii60,
What reviewable generally.
On error to state courts see supra,
23-26.
32. The failure of the court of claims
to find certain facts in accordance with
claimant's contention may not be assigned
as error on appeal to the Federal Supreme
Court, since Uie review by the latter court
is based upon the findings as made. United
States v. Omaha Tribe of Indians, 263 U^ S.
275, 40 Sup. Ct. Rep. 522, 64: 901
33. A finding of the court of claims
that an infirmary building constructed by
the government for Indians was not used
and was not such a building as was con-
templated bv treaties with such Indians
means not that a building of this general
character was not contemplated, but that
the particular building was not what it
ought to have been, and not suitable for
the use of the Indians, and, so construed,
it is either a finding upon a mere question
of fact, or, at most, is a finding of mixed
fact and law, where the question of law is
inseparable, and in either case the finding
is not reviewable by the Federal Supreme
Court on appeal. United States v. Omaha
Tribe of Indians, 253 U. S. 275, 40 Sup. Ct.
Rep. 522, 64: 901
34. The power of circuit courts of ap-
peals under the Judicial Code, § 129, to
review preliminary orders granting injunc-
tions, is not limited to the mere considera-
tion of, and action upon, the order ap-
pealed from, but, if insuperable objection
to maintaining the bill clearly appears, it
may be dismissed and the litigation ter-
minated. Meccano v. Wanamaker, 253 U. S.
136, 40 Sup. a. Rep. 463, 64: 822
Extending review beyond Federal
question.
35. Jurisdiction of a direct writ of er-
ror from the Federal Supreme Court to
a district court once having attached be-
cause of the presence of constitutional
questions continues, although such ques-
tions liave since been decided in other cases
to be without merit, for the purpose of
disposing of other questions raised in the
record. Pierce v. United States, 252 U. S.
239, 40 Sup. Ct. Rep. 205, 64: 542
Discretionary matters.
36. Whether a preliminary injunction
shall be awarded rests in the sound dis-
cretion of the trial court, and on appeal
an order granting or denying such an in-
junction will not be disturbed unless con-
trary to some rule of equity, or the result
of improvident exercise of judicial dis-
cretion. Meccano v. Wanamaker, 253 U. S.
136, 40 Sup. Ot Rep. 463, 64: St2
37. The discretion of the trial judge in
a criminal tsase in bverrulthg motions to
change the venue on grounds of local preju-
dice, and to quash the panel of prospectivn
jurors on like grounds, will not be disturbed
1040
by an appellate court except for abuse.
Stroud T. United States, 261 U. 8. 16, 40
Sup. Ct Rep. 60, 64: 103
Question not raised below.
38. The action of a Federal circuit court
of appeals in simply reversing the judg-
ment of a district court against a collector
of internal revenue for the recovery ba^dL
of certain taxes paid under protest with-
out remanding the case for a new trial
is not open to attack in the Federal Su-
preme Court where there was no objectioa
made to that action and no request for a
remand of the case, — especially where there
was nothing to retry, the case involving
only propositions of law. Forged Steel
Wheel Co. v. Lewellyn, 251 U. S. 511, 40
Sup. Ct. Rep. 285, 64: 880
E2rrors waived or cured below.
Waiver of defect in pleading, see Plead-
ing, 1.
39. Any lack of precision in some of
the allegations of a complaint which fdllj
meets tiie requirement of the local Cod«
is waived by failure to make timely objec-
tion after the case has been removed from
a state to a Federal court. Cole v. Ralph,
262 U. S. 286, 40 Sup. Ct. Rep. 321,
64: M7
40. Defendant in a suit by placer min-
ing claimants against a conflicting lode
claimant has no right to complain Uiat he
was not permitted, on cross-examination of
a witness for the plaintiffs, to show the
contents of certain assay reports, wh^-e,
though some of these reports were at first
excluded, they were all produced under a
new ruling of the court except two, which
covered samples taken from openings made
after the placer claims were located, and
defendant did not call for them when the
witness was recalled, or reserve any ex-
ceptions to the new ruling, and it is more
than inferable from the record' that he ac-
quiesced in it. Cole v. Ralph, 262 U. S.
286, 40 Sup. Ct. Rep. 321, 64: 507
Review of facts.
See also supra, 33.
41. The concurrent judgment of the two
courts below that a railway carrier was
not negligent in failing to give warning to
a brakeman concerning the use of freight
ears with handholds only at two diagonal
comers will not be disturbed by the Fed-
eral Supreme Court. Bochmer v. Pennsyl-
vania R. Co. 262 U. S. 496, 40 Sup. Ct.
Rep. 409, 64: 600
What errors warrant reversal.
42. The allowance of an amendment to
the declaration after the Statute of Limi-
tations had run is not error, where the
original declaration was sufficient, and the
.amendment plainly left the cause of action
unchanged. Fidelity Title k T. Co. v. Du-
bois Electric Co. 253 U. S. 212, 40 Sup. Ct.
Rep. 514, 64: 800
43. The conceded insufficiency of one of
the counts in an indictment does not war-
rant a reversal of a conviction where Urn
sentence imposed upon the defendants doea
not exceed that which naight lawfully have
been imposed under the good counts upon
251, 252, ass U*. S.
APPSAL AND ERROR.
which they were also found guilty. Pierce
n United SUtee, 252 U. S. 239, 40 Sup. Ct.
Rep. 205, 64: 542
44. A charge that contributory negli-
gence would prevent a recovery under the
Federal £m|>loyers' Liability Act could not
> have prejudiced the defendants, being more
favorable to them than they were entitled
to. Chicago, R. I. & P. R. Co. v. Ward,
252 U. S. 18, 40 Sup. Ct. Rep. 275,
64:430
45. The inaccuracy of a charge on the
assumption of risk could have worked no
harm to the defendant where the situation
did not make the doctrine of assumed risk
a defense to the action. Chicago, R. I. &
P. R. Co. V. Ward, 252 U. S. 18, 40 Sup.
Ct. Rep. 275, 64:430
46. No valid objection can be urged
against that part of a charge to the jury,
in a prosecution under the Espionage Act
of June 15, 1917, for publishing and con-
spiring to publish false news despatches
with intent to interfere with the military
and naval success of the United States
and promote the success of its enemies; to
cause insubordination in the military or
naval forces, and to obstruct the recruiting
or enlistment service, in which the minds
of the jurors were directed to the gist of
the case, which was despatches received
and then changed to express falsehood, to
the detriment of the success of the United
States, and they were told that, in passing
upon the questions of the falsity of these
publications and of whether tne United
States was at war, and any other questions
which were, in like manner, a matter of
public knowledge and of general informa-
tion, they might call upon the fund of gen-
eral information which was in their keep-
ing. Schaefer v. United States, 251 U. S.
466, 40 Sup. Ct. Rep. 250, 64: 360
47. An erroneous ruling in a homicide
case upon defendant's challenge of a juror
for cause could not prejudice the accused
where such juror was peremptorily chal-
lenged by the accused, and the latter was in
fact allowed two more than the statutory
number of peremptory challenges, and there
is nothing in the record to show that any
juror who sat upon the trial was in fact
objectionable. Stroud v. United States, 251
U. S. 15, 40 Sup. Ct. Rep. 50, 64: 103
48. Any error in overruling defendant's
challenge of a juror for cause in a homi-
cide case could not have prejudiced the ac-
cused, where such juror was excluded on
peremptory challenge, and the accused was
allowed one more than the statutory num-
l>er of peremptory challenges, and had
other peremptory challenges which he might
use after the ruling and challenge to this
juror, — the record not disclosing that other
than an impartial jury sat on the trial.
Stroud V. United SUtes, 251 U. S. 380, 40
Sup. Ct. Rep. 176, 64: 317
49. The refusal of the trial court to
direct a verdict for defendant will not he
disturbed by the Federal Supreme Court
questions of fact which it was the province
of the jury to determine, and this was
the view, not only of the judge who pre-
sided at the trial, but of another judge
who overruled a motion for a new trial.
Cole V. Ralph, 252 U. S. 286, 40 Sup. Ct.
Rep. 321, . 64; 567
50. A verdict on the trial of an indict-
ment containing two counts which finds de-
fendants "guilty on the count of the
indictment, and on the count of
the indictment," will be regarded on writ
of error as a general verdict of guilty upon
both counts, where apparently a printed
form was used in preparing the jury's ver-
dict, and when presented no objection was
made to its form or wording, neither the
motion for a new trial nor in arrest of judg-
ment indicating any such objection, and de-
fendants mentioning none when called upon
to show why sentence should not be imposed.
O'Connell v. United States, 253 U. S. 142, 40
Sup. Ct Rep. 444, 64: 827
Effect of matters occurring after deci-
sion below.
51. A circuit court of appeals, on appeal
from an order of a district court which had
granted a preliminary injunction in entire
reliance upKDn a decree of another district
court, properly takes notice of and con-
siders the changed circumstances arising out
of the subsequent reversal of such decree.
Meccano v. Wanamaker, 253 U. S. 136, 40
Sup. Ct. Rep. 463, 64: 822
VII. Judgment.
Rendering proper judgment.
52. A final decree upon the merits may
not be entered by a circuit court of appeals
on grounds of estoppel by judgment upon
an appeal from an order granting a pre-
liminary injunction. Meccano v. Wana-
maker, 253 U. S. 136, 40 Sup. Ct. Rep. 463.
64: 829
53. The want of prosecution of an ap-
peal by one of several joint appellants
should not result in the affirmance of the
judgment below as to such appellant, where
the judgment is reversed on the merits upon
the appeal of the other appellants. Newman
V. Moyers, 253 U. S. 182, 40 Sup. Ct. Rep.
478, 64: 850
54. Where a majority of the individual
defendants in a suit to dissolve a combina-
tion found to contravene the Sherman Anti-
trust Act have died since the suit was
instituted, and their successors in office
have not been made parties, and the con-
clusion to be announced can be given full
effect by an appropriate decree against the
corporate defendants, the case as against
the remaining individual defendants need
not be considered, and as to them the bill
will be dismissed without prejudice. United
States V. Reading Co. 253. U. S. 26, 40
Sup. Ct. Rep. 425, 64: 760
55. A judgment of the highest court of
a state which, by affirming, without more,
^*MBfwu.u^^ w^j Mvc ^^j^xwMmM ic»u^mcuK> v/^/t<«v.a judgmcut of thc trial court directing a
wWo that court is ot the opinion that [ reassessment against the property itself
the evidence presented several disputable instead of against a street railwiay companv
64 It. cd* 66 1041
APPEARANCE— ATIORNEYS.
of the share of the expense of a payement
properly apportioned to a central strip in
a highway owned in fee by the street rail-
way company, leaves in serious doubt the
right of the company to a new and adequate
hearing in respect of the assessment, will
be 80 modified and corrected by the Federal
Supreme Court on writ of error as definite-
ly to preserve such right. Oklahoma R. Co.
V. Severns Paving Co. 251 U. S. 104, 40
Sup. Ct. Rep. 73, 64: 168
Remanding; directions to lower court.
Reversal without remanding for a new
trial, see supra, 38.
. See also supra, 29, 34.
56. The denial of a fair hearing to a
Chinese applicant who was refused admis-
sion into the United States requires that a
judgment of the Federal circuit court of
appeals which afiirmed a judgment of the
district court, sustaining a demurrer to the
petition of such Chinaman for habeas cor-
pus, be reversed and the cause remanded
to the district court for trial of the mer-
its. Kwock Jan Fat v. White, 253 U. S.
454, 40 Sup. Ct. Rep. 566, 64: 1010
57. The proper course for the Federal
Supreme Court on an appeal from a decree
of affirmance made by a circuit court of
appeals in a case wrongfully appealed to
that court is to reverse the judgment of
the circuit court of appeals and remand the
case to that court, with directions to dis-
miss the appeal. New York v. Consolidated
Gas Co. 253 U. S. 219, 40 Sup. Ct. Rep.
511, • 64: 870
58. Error below in overruling the ob-
jection of Treasury officials in a suit by
attorneys against their client and such
officials, that a valid act of Congress pro-
hibited the recovery sought, requires that
a judgment for plaintiffs be reversed upon
the appeals of such officials, and that the
cause be remanded, with directions to dis-
miss the bill as to them. Newman v.
Moyers, 253 U. S. 182, 40 Sup. Ct. Rep.
478, 64: 849
Sub«oqnent proceedings below.
59. A dismissal of an appeal for want
of prosecution will remit the cause to the
lower court in the same condition as before
the appeal was taken, and will leave the
lower court free to take appropriate action
to prevent itself from being used as an
instrument in iller?ality. Newman v.
Moyers, 263 U. S. 182, 40 Sup. Ct. Rep. 478,
64:849
APPEARANCK.
By real party in interest as waiver of
objection to jurisdiction, see
Courts, 7.
APPOINTMENT.
Of officer,. see Officers.
Of Federal employee, see United States,
1-4J.
ARBITRATION.
Of dispute under charter party, see
Shipping, 1.
I04S
ARCHITECT.
Appointment of, see United States,
ARKANSAS.
Boundary between Arkansas and Mis-
sissippi, see Boundaries, 1.
ARMT.
Exclusive jurisdiction of military tri-
bunal, see War, 13.
ARREST.
Release on bail, see BaiL
A person charged with a felony by
an indictment found in one Federal dis-
trict, who has fled to another district, may
be arrested without warrant by a peace
officer in the latter district, and be de-
tained a reasonable time to await the in-
stitution of proceeding for his removal to
the district where the indictment was found.
The arrest being lawful without warrant
was none the less so because the peace offi-
cer was possessed of a bench warrant issued
in the Federal district where the indict-
ment was found. Stall ings v. Splain, 253
U. S. 339, 40 Sup. Ct. Rep. 637, 64: 940
ASSESSMENT WORK.
On mining claim, see Mines, 3.
ASSIGNMENT.
Of claim against United States, see
Claims, 10, 11.
Suit by assignee of legal title, see Par-
ties, 1.
There is nothing in the letter or
spirit of the Interstate Commerce Acts in-
consistent with the view that claims for
reparation because of the exaction of un-
reasonable freight charges are assignable.
Spiller V. Atchison, T. & S. F. R. Co. 253
U. S. 117, 40 Sup. Ct. Rep. 466, 64: 810
ASSIGNMENT FOR CREDITORS.
As to bankruptcy matters, see Bank-
ruptcy.
ASSOCIATIONS.
Illegal combination, see Monopoly.
ASSUMPSIT.
The United States as the drawee of a
forged draft cannot recover as for money
paid out under a mistake of fact the sum
paid by it on such draft to an innocent
collecting bank, even though the signature
of the indorser as well as that of the drawer
was forged. United States v. Chase Nat.
Bank, 262 U. S. 485, 40 Sup. Ct Rep. 361,
•4:675
ASSUMPTION OF RISK.
By serrant, see Master and Serrant.
0-12.
ATTORNBY8.
Compensation for prosecntin^ daini
against United States, see Claims.
3.
sfti, sfts, sfts V. n.
AUDITOR— BANKS.
AUDITOR.
Appointm^t of, as infringing right to
jury trial> see Jury, 3.
Power of court to appoint, see Eefer-
ence.
WULSION,
Effect on state boundary, see Bound-
aries, 1.
BAili.
1. Funds held in trust primarily as
security against liability on a bail bond
may not be charged by the surety with the
cost of defending against proceedings
brought by the United States to collect
a judgment upon such bond as forfeited,
merely because the United States impound-
ed the funds available for payment. Leary
V. United States, 253 U. S. 94, 40 Sup.
a. Rep. 446, 64: 798
2. The surety on a forfeited bail bond
cannot charge a fund held in trust as
security against liability on such bond witb
his expenses in defending the trust and
establishing its priority over the claims of
the United States, nor with the poundage
fees of a clerk of court having possession
of such fund. Leary v. United States,
253 U. S. 94, 40 Sup. Ct. Rep. 446, 64: 798
BANKRUPTCY.
General orders and forms in, see Rules
of Courts.
Referee.
1. A referee in bankruptcy is not in
any sense a separate court nor endowed
with any independent judicial authority.
He is merely an oflScer of the court of bank-
ruptcy, having no jwwer except as con-
ferred by the order of reference, read in
the light of the Bankruptcy Act, and his
judicial functions, however important, are
subject always to the review of the bank-
ruptcy court. Weidhorn v. Levy, 253 U.
S. 268, 40 Sup. Ct. Rep. 534, -64: 898
2. A referee in bankruptcy, by virtue
of a sroneral reference under General Or-
ders in Bankruptcy No. 12, which provides
that **thereafter all the proceeding, except
such as are required by the act or by these
General Orders to be had before the judge,
shall be had before tlie referee." has y^n
i'urisdiction of a plenary suit in equity
>rought by the trustee in bankrupt<7
against a tnird party to set aside a fraudu-
lent transfer or conveyance under § 70e of
the Bankruptcy Act, and affecting property
not in the custody or control of the court
of bankruptcy. Weidhorn v. Levy, 263 U. 8.
268, 40 Sup. Ct. Rep. 534, 64: 898
Claims and distribution.
3. A claim for unliquidated damages
arising out of a pure tort which neither
constitutes a breach of an express contract
nor results in any unjust enrichment of the
tort-feasor that may form the basis of an
implied contract is not made provable in
tmnkniptcy by the provision of the Bank-
rupt Act of July 1, 1808, § 63b, that un-
HqHidated claims against the bankrupt may,
«4 Ia. ed.
pursuant to application to the court, be
liquidated in such manner as it shall direct,
and m^y thereafter be proved and allowed
against his estate, since this provision does
not add claims of purely tortious origin
to the provable debts enumerated in para-
graph a of such section, but provides a
procedure for liquidating claims provable
under that paragraph if not already liqui-
dated. Schall V. Camors, 251 U. S. 239, 40
Sup. Ct. Rep. 135, 64: 247
4. The class of provable claims in bank-
ruptcy, as set forth in the provisions of the
Bankrupt Act. of July 1, 181)8, § 63, was
not €nlarged so as to include mere tort
claims by anything in the amendment to
§ 17 made by the Act of February 5, 1903,
confessedly designed to restrict the scope
of a discharge in bankruptcy. Schall v.
Camors, 251 U. S. 239, 40 Sup. Ct. Rep. 135,
64: 247
5. No legal or equitable claim as
against individual partners that mi^ht, by
waiver of the tort or otherwise, be deemed
to arise out of a tort done in the course
of the partnership business for the bene-
fit of the firm, and witliout benefit to the
partners as individuals, can displace the eq-
uity of other creditors recognized in the
Bankrupt Act of July 1, 1898, § 5, and
put the claimants in a position of equality
with others who were actual creditors of
the individual partners, and of preference
over other firm creditors. Schall v. Camors
251 U. S. 239, 40 Sup. Ct. Rep. 135,
64: 247
Review.
6. A decision of a bankruptcy court
that the referee had no jurisdiction of a
bill filed by the trustee to avoid certain
transfers as in fraud of creditors is re-
viewable in the circuit court of appeals
by petition to revise under the Bankruptcy
Act, § 24b, although, had the district court
sustained the jurisdiction and passed upon
the merits, the exclusive remedy would
have been by appeal under § 24a, as the
court thereby would have determined a
controversy arising in bankruptcy proceed-
ings. Weidhorn v. Levy, 253 U. S. 268, 40
Sup. Ct. Rep. 534, ^ 64: 898
BANKS.
Power to contract with loan company
notwithstanding identity of stock
ownership and afliliation in man
agement, see Corporations, 3.
Measure of damages, see Damages, 2.
Usury by national bank, see Usury.
Powers; limitation on loans.
1. The limitation in U. 8. Rev. Stat.
§ 6200, upon the total liabilities to a na-
tional bank of any single borrower, will not
be construed as including his liability as
surety or indorser for money borrowed by
another, in view of the long-continued prac-
tice and administrative rulings of the
Comptroller of the Currency not to include
such liabilities in the computation. Cor-
1048
BANKS.
Bicana Xat. Bank v. Johnson, 251 U. S.
68, 40 Sup. Ct. Rep. 82,
(Annotated) 64: 141
^liability of officers.
Prematurity of suit against national
bank director, see Action or Suit,
1.
Want of denial by director of knowl-
edge of excessive loan, see Evi-
dence, 11.
Limitation of actions to enforce lia-
bility of bank director for exces-
sive loan, see Limitation of Ac-
tions, 3.
Sufficiency of allegations in complaint
in action against national bank
director, see Pleading, 6.
2. The failure of the president and ex-
ecutive officer of a national bank to heed
hint-8 and -warnings, including an apparent
shrinkage in deposits, which, however little
they may have pointed to the specific facts
of theft by a teller and bookkeeper, would,
if accepted, have led to an examination of
the depositors' ledger, thereby disclosing
past and preventing future thefts, may be
treated by the courts as such negligence
as renders him liable for thefts by such
employee after he had the warnings which
should have led to steps that would have
made fraud impossible, even though the
precise form that the fraud would take
hardly could have been foreseen. Bates v.
Dreeser, 251 U. S. 524, 40 Sup." Ct. Rep.
247, 64: 888
3. The directors of a national bank
did not necessarily so neglect their duty
as to be answerable for thefts by a teller
and bookkeeper, concealed by overcharging
a depositor, or by a false addition in the
column of drafts or deposits in the de-
positors' ledger, merely because they ac-
cepted the cashier's statement of liabilities
and did not inspect the depositors' ledger,
even after an apparent shrinkage in de-
posits, where the cashier's statements of as-
sets always were correct, the semiannual
examination by the government examiners
had disclosed nothing pointing to mal-
feasance, and they were encouraged in their
belief that all was well by the president,
whose responsibility as executive officer,
interest as large stockholder and depositor,
and knowledge from long daily presence
in the bank were greater than theirs. Bates
v. Dresser, 251 U. S. 524, 40 Sup. Ct. Rep.
247, 64: 888
4. Directors of a national bank cannot
be held liable, under U. S. Rev. Stat. §§
5200 and 5239, for knowingly participating
in or assenting to an excessive loan unless
such participation or assent was not
through mere negligence, but was knowing
and in effect intentional. If, however, a
director deliberately refrains from investi-
gating that which it is his duty to investi-
gate, any violation of the statute must
be regarded as in effect intentional. Cor-
sicana Nat. Bank v. Johnson, 251 U. S. 68,
40 Sup. Ct. Rep. 82, (Annotated) 64: 141
5. The question whether a director of
a national bank knowinglv participated in
1044
or assented to, contrary to U. S. Rev. Stat.
§ 5239, the making of a loan in ezeees of
the limit prescribed by § 5200, is not to be
confused by any consideration of the sup-
posed personal or financial standing of the
borrower. Cor sicana Nat. Bank v. Johnson,
251 U. S. 68, 40 Sup. Ct. Rep. 82,
(Annotated) 64: 141
6. The absence of any improper motive
or desire for personal profit on defendant's
part is no defense to an action against a
director of a national bank for violating
U. S. Rev. Stat. §§ 5200 and 5239, >y know-
ingly participating in or assenting to aA
excessive loan. • Corsicana Nat. Bank ▼.
Johnson, 261 U. S. 68, 40 Sup. Ct. Rep.
82, (AnnoUted) 64: 141
7. Every director of a national bank
knowingly participating in or assenting to
a loan in excess of the limit prescribed br
U. S. Rev. Stat. § 5200, is made liable by
§ 5239, in his personal and individual capac-
ity, without regard to tjie question whether
other directors likewise are liable; and he
may alone be sued. Corsicana Nat. Bank
V. Johnson, 251 U. S. 68, 40 Sup. Ct. Rep.
82, (Annotated) 64: 141
8. A national bank may recover from
a director the damages sustained by reason
of his knowing participation in or assent to
an excessive loan, contrary to U. S. Rev.
SUt. §§ 5200 and 5239, although it re-
mained solvent or even prosperous, and ir-
respective of any changes in stockholding
interest or control occurring between the
time the cause of action arose and the time
of the commencement of the suit or of the
trial, and even if the new stockholders ac-
Suired their interests with knowle^e of
he fact that a loss had been sustained, and
that such director was responsible for it.
Corsicana Nat. Bank v. Johnson, 251 U. S.
68, 40 Sup. Ct Rep. 82, (Annotated) 64: 141
.9. The damages sustained by a national
bank by reason of a director's knowing par-
ticipation in or assent to an excessive loaa,
contrary to U. S. Rev. Stat §§ 5200 and
5239, are satisfied by a transfer of the
borrower's notes and indebtedness to an-
other corporation for their full face value
if, and only if, the transfer is good and
valid as against such corporation and its
stockholders, or is duly ratified by them.
Corsicana Nat. Bank v. Johnson, 251 U.
S. 68, 40 Sup. Ct Rep 82,
(Annotated) 64: 141
10. A national bank director cannot es-
cape liability, under U. S. Rev. Stat. §5
5200 and 5239, for knowingly participating
in or assenting to an excessive loan because
of a sale of the borrower's notes and in-
debtedness for their full face value to a
loan company having the same directors and
managers as the bank, and identity of stock
ownership, if the transfer was made under
circumstances rendering it voidable as
against the loan company and as against
the stockholders of both corporations, and
the stockholders of the loan company exer-
cised their right to rescind without unrea-
sonable delay and gave notice to the bank,
and the bank, recognizing the jmtncaa of
251, 252. Sft3 r. 8.
BAR—BURDEN OF PROOF.
the claim, restored to the loan company
what was accepted as the equivalent in
value of that which the bank had received
for the transfer, the director not having
changed his position and not being preju-
diced by such delay as there was in exer*
cising the right to rescind. Corsicana Nat.
Bank v. Johnson, 251 U. S. 68, 40 Sup.
Ct. Rep. 82, (Annotated) 64: 141
. 11. The rescission for fraud of a sale by
a national bank of the notes and indebted-
ness of a borrower for their full face value
to a loan company having the same direct-
ors and managers as the bank, and identity
of stock interest, may not be challenged by
a director in the bank in an 'action against
him for having participated in, or assented
to, an excessive loan to such borrower, con-
trary to U. S. Rev. Stat. §§ 5200 and 5230,
merely because such rescission may have
been had in order to permit the bank to
bring the action. Corsicana Nat. Bank
T. Johnson, 251 U. S. 68, 40 Sup. Ct. Rep.
82, (Annotated) M: 141
12. The question whether a loan com-
pany having the same directors and man*
agers as a national bank and identity of
stock interest, upon rescinding for fraud a
sale to it by the bank of the notes and in-
debtedness of a borrower for their full face
value, received full restitution from the
bank, is not material as bearing either upon
the bank's right, under U. S. Rev. Stat. §§
5200 and 5230, to sue a direotor for having
knowingly participated in, or assented to,
an excessive loan to such borrower, or upon
the question of damages. Corsicana Nat.
Bank T. Johnson, 251 U. 8. 68, 40 Sup. Ct.
Rep. 82, (Annotated) 64: 141
BAR.
Of judgment, see Judgment, 2-4.
Of limitation, see Limitation of Ac-
tions.
BARRATRY.
Constitutionality of state statute pun-
ishing, see Constitutional Law,
15a.
BEKR.
Character of, see War, 2-4, 10.
BILL.
See Pleading.
BHiL OP EXCKPTIONS.
See Appeal and Error, 26, 27.
BILL OF LADING.
Limitation of liability In, see Carriers,
4.
BILLS AND NOTES.
Recovering back payment on forged
draft, see Assumpsit.
BIRDS.
Validity of Migratory Bird Treaty, see
Treaties.
64 L. ed.
BONA FIDK PURCHASERS.
Burden of proof by, see Evidence, 5.
BONDS.
Bail bonds, see Bail.
BOUNDARIKS.
Between states.
1. The boundary between Arkansas and
Mississippi adjudged to be tlie middle of
the main channel of the Mississippi river
as it existed just prior to the avulsion of
1848, and commissioners appointed to run
such line. Arkansas v. Mississippi, 252 U.
8. 344, 40 Sup. Ct. Rep. 333, 64: 605
2. The mouth of the St. Louis river
Within the meaning of the provision in the
Wisconsin Enabling Act of August 6, 1846,
describing the;, state boundary in part as
"thence iwestwardly] through the center
of Lake Superior to the mouth of the St.
Louis river," is at the junction of Lake
Superior and the deep channel between
Minnesota and Wisconsin points, — "The
Entry." Minnesota v. Wisconsin, 252 U. S.
273, 40 Sup. Ct. Rep. 313, 64: 558
3. The middle of the principal channel
of navigation — not necessarily the deepest
channel — is commonly accepted as the
boundary line where navigable water con-
stitutes the boundary between two states.
Minnesota v. Wisconsin, 252 U. 8. 273, 40
Sup. Ct. Rep. 313, ' 64: 558
4. The boundary line between Wiscon-
sin and Minnesota in Upper and Lower St.
Louis bays must be ascertained upon a
consideration of the situation existing at
the time of the enactment of the Wisconsin
Enabling Act of August 6, 1846, and ac-
curately disclosed by the Meade chart.
Minnesota v. Wisconsin, 252 U. 8. 273, 40
Sup. Ct. llep. 313, 64: 558
5. That part of the boundary line be-
tween Wisconsin and Minnesota described
in tlie Wisconsin Enabling Act of August
6, 1846, as proceeding from the mouth of
the St. Ix)uia river "up the main channel
of said river to the first rapids in the -same,
above the Indian village, according to Nicol-
let's map," is adjudged to run midway be-
tween Rice's point and Connor's point and
through the middle of Lower St. Louis bay
to and with the deep channel leading into
Upper St. Louis bay, and to a point there-
in immediately south of the southern ex-
tremity of Grassy point, thence westward
along the most direct course, through water
not less than 8 feet deep, eastward of
Fisherman's island and approximately 1
mile to the deep channel and immediately
west of the bar therein, thence with such
channel north and west of Big island, up
stream to the falls. Minnesota v. Wiscon
sin, 252 U. S. 273, 40 Sup. Ct. Rep. 31.3,
64: 558
BriLDIXGS.
Negli.i?ence as to condition of, sec Neg-
ligence, 1-3. •
BrRDFN OF PROOF.
See Evidence, 6.
1045
CABLE SUBSIDIES— CARRIERS.
CABLK SUBSIDIES.
Claim for, sec Claims, 2.
GANAIi ZONK.
Rule oi' damages in, see Damages, 3.
OANCCIiATION OF INSTRUMENTS.
Cancelation of patent to public land,
see Public Lands, 8.
CARRrERS.
Oil pipe line as common carrier, see
Constitutional Law, 43, 44.
Physical valuation of railway prop-
erty, see Intel state Commerce
Commission, 1.
Injury to employee, see Master and
Servant.
Combination of carriers and other com-
panies, see Monopoly, 5, 6.
Comjionsation for carrying mails, see
Postoffice. •
Matters relating to shipping, see Ship-
ping.
Demurrage.
1. No departure from the established
policy manifested in the Uniform Demur-
rage Code to treat the single car as the
unit in applying the allowance of free time
and the charges for demurrage, just as in
the making of carload freight rates, can
be inferred from the declaration in such
Code that no demurrage charges shall be
collected when shipments are frozen while
in transit so as to prevent unloading dur-
ing the prescribed free time, provided a
diligent effort to unload is made. If each
car containing frozen shipments could have
been unloaded, considered separately, with-
in the free time, any relief from the hard-
ship resulting from excessive receipts of
such cars on the same day must be found,
either under the so-called bunching rule,
under which the shipper is relieved from
demurrage charges if, by reason of the car-
rier's fault, the goods are accumulnted and
detention results, or under the average-
agreement rule, under which a monthly
debit and credit account is kept of deten-
tion, and the shipper is relieved of charpres
for detaining cars more than forty-eight
hours by credit for other car^ released
within twenty- four hours. Pennsylvania
R. Co. V. Kittaning Iron & Steel Mfg. Co.
253 U. S. 319, 40 Sup. Ct. Rep. 522,
64:928
rilmltlng liability.
State regulation prohibiting telegraph
company from limiting liability,
see Commerce, 5.
Limitation of liability of vessel owner,
see Shipping, 2, 3.
2. The mental purpose of a railway
employee traveling on an annual pass, good
only over a line wholly within the state,
to continue his journey into another state,
using another carrier to a point still with-
in the state, where he expected to find
awaiting him another pass from the first
carrier which would be good for the inter-
state part of his journey, does not make
him an interstate passonper while travel-
1046
ing on the first pass, so as to Talidate,
contrary to local public policy, a stipula-
tion in such pass releasing the carrier from
liability for negligence. New York C. R.
Co. V. Mohney, 252 U. 8. 162, 40 Sup. Ct,
Rep. 287, 64: 509
3. A carrier is liable to a person trav-
eling on a pass who is wilfully or wantonly-
injured by the carrier's employees, notwith-
standing a stipulation in such pass releas-
ing the carrier from liability for n^ligence.
New York C. R. Co. v. Mohney, 262 C. S.
152, 40 Sup. Ct. Rep. 287, 64: SOS
4. The stipulation in the uniform bill
of lading that the amount of any losa or
damage for which any carrier is liable shall
be computed on the basis of the value of
the property at the place and time af ship-
ment, including freight charges, if jpa>d«
which is sanctioned by the Interstate Com-
merce Commission as in no way limiting
the carrier's liability to less than the valu*
of the goods, but as merely offering the
most convenient way of finding, the value,
but which does in fact prevent a recovery
of the full actual loss, where the shipment
would have been worth more at destination
than at origin, is inconsistent with and in-
validated by the provision of the Cummins
Amendment of March 4, 1916, that carriers
shall be liable to the holder of the bill of
lading for the full actual loss, damage, or
injury, notwithstanding any limitation of
liability or limitation of the amount of re-
covery, or representation or agreement as
to value. Chicago, M. & St. P. R. Co. v.
McCauU-Dinsmore Co. 253 U. S. 97, 40 Sup.
Ct. Rep. 604, 64: $01
State retaliation.
Regulation as affecting interstate com-
merce, see Commerce, 6, 7.
Equal protection of the laws in rate
regulation, see Constitutional Law,
16.
Due process of law in regulation of,
see Constitutional Law, 29-32.
State regulation as denying due process
of law, see Constitutional I^w,
39-44, 47, 48.
Rate regulation as impairinu contract
obligations, see Constitutional
Iaw, 77.
6. A corporation which, in connection
with its sawmill and lumber business, has
operated a railroad on which it has done a
small business as a common carrier, cannot
be compelled to continue the operation of
the railroad after it has ceased to be profit^
able, merely because a profit would be de-
rived from the entire business, including
the operation of the railroad. Brooks-
Soanloii Co. v. Railroad Commission, 251 l'.
S. 396, 40 Sup. Ct. Rep. 183, 64: 383
6. A corporation carrying on a sawmill
and lumber business, which has granted to
the public an interest in a railroad op-
erated in connection with its business by
doing a small business as a' common canier
thereon, may withdraw its grant by dis-
continuing the use of the road when such
use can be kept up only at a loss. Brooks-
251, 252. 253 IT. 8.
CERTIORARI— CHALLENGES.
Scanlon Co. t. Railroad CommiBsion, 251
U. S. 39«, 40 Sup. Ct. Rep. 183, 64: 323
Anfloolation with commodity carried.
7. Hie e<Hiibinatioii in a single corpo-
ration of the ownership of all of the stoek
of a carrier and of all of the stock of a
ooal company violates the commodities
clause of the Act of June 20, 1906, making
it unlawful for any railway company to
transport in interstate commerce any ar-
tide mined or produced by it or imder
its authority, or which it may own, or in
which it may have any interest, direct or
indirect, where all three companies have
the same officers and directors, and it is
under their authority that the coal mines
are worked and the railway operated, and
they exercise that authority in the one
case in precisely the same character as in
the other; viz., as officials of the holding
company, the manner in which the stock
of the three is held resulting, as intend^,
in the abdication of all independent cor-
porate action by both the railway company
and the coal company, involving, as it docs,
the surrender to the holding company of the
entire conduct of their afTairs. United
States T. Reading Co. 253 U. S. 26, 40
Sup. Ct. Rep. 426, 64: 760
8. While the ownership by a railway
company of shares of the capital stock of
a mining company does not necessarily cre-
ate an identity of corporate interest be-
tween the two such as to render it unlaw-
ful, under the commodities clause of the
Act of June 29, 1906, for the railway com-
pany to transport in interstate commerce
the products of such mining company, yet,
where such ownership of stock is resorted
to,' not for the purpose of participating in
the affairs of the corporation in which it
is held in a manner normal and usual with
stockholders, but for the purpose of making
it a mere agent, or instrumentality, or de-
partment of another company, the courts
will look through the forms to the realities
of the relation between the companies as if
the corporate agency did not exist, and will
deal With them as the justice of the case
may require. United States v. Reading Co.
253 U. S. 26, 40 Sup. Ct. Rep. 425, 64: 760
CERTIORARI.
To state courts.
Error or certiorari, soe Appeal and Er-
ror, 11-14.
1. Non-Federal grounds put forward
by the higliest state court as the basis for
its decision, but which are plainly unten-
able, cannot serve to bring the case within
the rule that the Federal Supreme Court
will not review the judgment of a state
court where the latter has decided the case
upon an independent ground not within the
Federal objections taken, and that ground
is sufficient to sustain the judgment. Ward
v. Love County, 253 U. S. 17, 40 Sup. Ct.
Rep. 419, 64: 751
Broadwell v. Carter County, 253 U. S. 25,
40 Sup. Ct. Rep. 422, 64: 759
To clronlt courts of appeals.
Filing disclaimer on. soo Patents, 6.
64 li. cd.
2. The Federal Supreme Court may,
under the Judicial Code, § 240, bring up by
certiorari directed to a circuit court of
appeals a cause in which the decree of the
latter court is made final by § 128, and
may treat the cause as if on appeal. Mec-
cano V. Wanamaker, 253 U. S. 136, 40 Sup.
Ct. Rep. 463, 64: 682
3. Decrees of a circuit court of appeals
which reversed decrees below for the recov-
ery of the amounts awarded in a repara-
tion order made by the Interstate Com-
merce Commission, and remanded the cause
for a new trial, are reviewable in the
Federal Supreme Court by certiorari under
the Judicial Code, § 240, in the case of
those of such decrees which are made final
by the combined edect of §§ 128 and 241,
because the requisite jurisdictional amount
is not involved, and in the case of the other
decrees b^ virtue of § 262, in aid of the
ultimate jurisdiction of the Supreme Court
to review such decrees by writ of error.
Spiller V. Atchison, T. &; S. F. R. Co. 253
U. S. U7, 40 Sup. Ct. Rep. 466, 64: 810
4. A decree of a circuit court of ap-
peals which, upon a view of all relevant
circumstances, reversed an.order of the trial
court granting a preliminary injunction,
will not be disturbed by the Federal Su-
preme Court on certiorari except for strong
reasons. Meccano v. Wanamaker, 253 U. S.
136, 40 Sup. Ct. Rep. 463, 64: 822
5. The Federal Supreme Court will not
undertake, on certiorari sued out to review
a decree of a circuit court of appeals which
reversed a decree of a district court, grant-
ing a preliminary injunction, to decide
which one of two conflicting views ex-
pressed by two ^circuit courts of appeals is
the correct one, nor to decide the several
issues involved upon the merits. Meccano
V. Wanamaker, 253 U. S. 136, 40 Sup. Ct.
Rep. 463, 64: 822
6. The Federal Supreme Court, on cer-
tiorari to review a judgment of a circuit
court of appeals which reversed a judgment
below in favor of plaintiffs and ordered a
new trial, may deal only with the matter
considered by the circuit court of appeals,
and remand the cause for any needed action
upon other questions, or it may proceed it-
self to a complete decision, where defend-
ant does not rely entirely upon the ground
of decision advanced by the circuit court
of appeals, but urges that if it be not
well taken, the record discloses other
grounds not considered by that court for
reversing the judgment and ordering a new
trial, and that if its decision be right, it is
not sufficiently comprehensive to serve as
a guide to the court and the parties upon
another trial, plaintiffs . insisting that the
judgments in the district court were right
Und should be affirmed. Cole v. Ralph, 252
U. S. 286, 40 Sup. Ct. Rep. 321, 64: 567
CESSIONS AN1> COMPACTS.
Tribal cession, see Indians, 2.
CIIAIiliKNGKS.
To jurors, see Jury, 2.
1047
CnAKTER PARI Y— CLAIMb.
CHARTER PARTY.
See Shipping, 1, 2.
I
OHIBTKSE.
Deportation of Chinese merchant, see
Aliens.
Due process of law in Chinese exclu-
sion, see Constitutional Law, 65.
CIRCUIT COURTS OF APPEAIiS.
Appellate jurisdiction of, see Appeal
and Error, 1, Hi, 51, 52.
Appellate jurisdiction of Supreme
Court over, see Appeal and Error,
II. a.
Revision of bankruptcy proceedings in,
see Bankruptcy, 6.
Certiorari to, see Certiorari, &-6.
CITIZENS.
Abridging privileges and immunities of,
see Constitutional Law, n.
CITIZENSHIP.
As affecting jurisdiction, see Court*, 6.
CITY,
See Municipal Corporations.
CIVIIi RIGHTS.
Separate coach law as affecting inter-
state commerce, see Commerce, 6,
7.
CIiAIMS.
Scope of review on appeal from court
of claims, see Appeal and Error,
32, 33.
Against bankrupt estate, see Bankrupt-
cy, 3-5.
Compensation for property taken by
United States, see Damages, 1.
Interest on claims against United
States, see Interest, 1, 2.
Who may sue United States for in-
fringement of patent, see Patents,
7,8.
Rules for appeals from court of claims,
see Rules of Courts.
Contract express or implied.
For compensation for carrying mails,
see Postoffice.
Contracts of United States, generally,
see United States, 7-10.
1. A cause of action ex contractu, based
on the government use of a patented in-
vention, is not presented by a petition, the
allegations of which, taken together, not
only do not show a contract of the parties,
express or implied, to pay a royalty in any
amount, but distinctly and in terms nega-
tive the making of any such contract as is
necessary to give the court of claims juris-
diction. E. W. Bliss Co. V. United States,
263 U. S. 187, 40 Sup. Ct. Rep. 456, 64: 852
2. No contract, express or implied, on
the part of the United States, justiciable
in the court of claims, to pay tJbe annual
{subsidies provided for in a Spanish conces-
<iion for the construction and operation of
submarine cables in the Philippine Islands.'
1048
can be deduced from the use of such cables
by the United States government at the
reduced rate prescribed in such concession
for official despatches, where this was the
full rate demanded by the cable company,
nor from the acceptance by subordinate
officials of the Philippine government of
the tax on receipts from messages computed
as required by such concession, nor from a
statement of account showing a balance
favorable to the United States which was
paid to and accepted by the treasurer of the
Philippine government, which statement
was prepared without suggestion of de-
mand from the government of the United
States, or even from the Philippine govern-
ment, and in which, in order to give it the
form of an account, the company was ob-
liged to treat as unpaid, charges for tolhi
over the Hongkong-Manila cable, all of
which had been paid by the United States
f>vernment and accepted by the oompany.
astern Extension, A. & C. Teleg. Go. ▼.
United SUtes, 261 U. S. 365, 40 Sup. Ct.
Rep. 168, 64:309
Contracts for compensation of attor-
neys.
Limiting attorneys' fees as denying due
process of law, see Constitutional
Law, 49.
See also infra, 11.
3. An existing contract for the pay-
ment to an attorney for professional serv-
ices to be rendered in the prosecution of a
Civil War claim against the United States
of a sum equal to 60 per cent of whatever
might be collected was invalidated by the
provision of the Omnibus Claims Act of
March 4, 1916, which, after making an ap-
propriation for payment of such claim,
made it unlawful for any attorney to exact,
collect, withhold, or receive, any sum which,
in the aggregate, exceeds 20 per cent of the
amount of a«iy item appropriated in that
act, on account of services rendered or ad-
vances made in connection with said claim,
any contract to the contrary notwithstand-
ing. Newman v. Moyers, 263 U. S. 182, 40
Sup. Ct. Rep. 478, . 64: S49
Calhoun v. Massie, 253 U. S. 170, 40 Sup.
Ct. Rep, 474, 64: 643
Indian claims.
Interest on, see Interest, 1, 2.
When action is barred by statute of
limitations, see Limitation of Ac
tions, 4.
4. No liability, legal or equitable, on
the part of the United States to pay tlio
value of horses belonging to Omaha In
dians which were stolen in raids by the
Sioux Indians, can be asserted to arise iin
der the obligation the United States a>
Bumed in the Treaty of March 16, 1S.V4
with the Omaha Indians, to protect them
from the Sioux and other hostile* tribes
"as long as the President may deem such
protection necessary," unless there was a
failure on the part of the ffovemment to
provide the protection deemed by the Presi-
dent to be necosgary. United States v
Omaha Tribe of Indiana. 253 l\ 8. 276. 40
Sup. Ct. Rep. 622, 64: 901
251, 252. 25S V. R.
classification-<;lerk8.
5. Omaha Indians for whom the United
States agreed^ in the Treaty of March 6»
1866, by whidi the Indians ceded lands to
the United States, to pay a specified sum
to be expended for goods, proyisions, cat-
tle, horses, etc., for their benefit, are entitled
to an allowance of the value of certain
cattle delivered by the United States in
pursuance of this agreement which the court
of claims finds were in bad condition when
they reached the reservation, and there-
after died, the necessary import of which
finding is that the cattle either were in bad
condition when purchased, or were badly
cared for on the way to the reservation,
and in either event, the fault lying with the
agents of the United States, the Indians
are entitled to credit. United States u.
Omaha Tribe of Indians, 253 U. S. 275, 40
Sup. Ct. Rep. 522, 64: 901
6. The United States was hot obligated
to pay for Omaha Indians killed in Sioux
raids by its agreement in the Treaty of
March 16, 1854, to protect them from the
Sioux and other hostile tribes ''as long as
the President may deem such proted;ion
neeessary," ualeaa there vas a failure by
the government to provide the protection
deen^ by the President to be necessary.
United States t. Omaha Tribe of Indians,
253 U. 8. 276, 40 Sup. Ct. Rep. 622, 64: 901
7. Expenditure by the United States
of Indian moneys for a building not used
by the Indians, and one which, because of
its unfitness, they were not obliged to ac-
cept, is a misappropriation of funds of the
tribe "for purpoaee not for its material
benefit,** wiUiin the meaning of the Act of
June 22, 1010, conferring upon the court
of claims jurisdiction to hear and deter-
mine daims which the Indians may have
against the United States for such misap-
propriations. United States v. Omaha Tribe
of Indians, 263 U. S. 275, 40 Sup. Ct. Rep.
522, 64: 901
8. A claim for Indian depredations
which was dismissed by the court of claims
on the ground that the band committing
the depredations was not in amity with the
United States was not reinstated by the
Act of January 11, 1915, amending the Act
of March 3, 1891, so that in all claims for
property of citizens or inhabitants of the
UnHed States taken or destroyed by Indians
belonging to any tribe in amity with and
subject to the jurisdiction of the United
States the alienage of the claimant will not
be a defense, with a proviso that claims dis-
missed for want of proof of citizenship or
alienage shall be reinstated. Rex v. United
States, 251 U. S. 382. 40 Sup. Ct. Rep. 181,
64:318
Tort.
9. A suit to recover from the United
States the losses incurred by a public con-
tractor Iwcause of the misrepresentations
by the government as to the character of
the materials to be encountered cannot be
said to be one sounding in tort, and hence
»not tenable against the l.'nited States,
where tliere is no intimation of bad faith |
against the oflicers of the jjovernmcnt, niul
64 Ti. ed.
the court of claims regarded the represen-
tation as in the nature of a warranty, and
there was nothing punitive in its judgment,
it being simply compensatory of the cost of
the work of which the government received
the benefit. United States v. Atlfl^tic
Dredging Co. 253 U. S. 1, 40 Sup. Ct. Rep.
423, 64: 735
Assignment.
10. The restrictions imposed by U. S
Rev. Stat. § 3477, upon the assignment of
claims against the United States, form no
obstacle to a suit against Treasury officials
to establish an equitable lien for attorney's
fees upon a fund in the United States
Treasury appropriated by Congress for pay
ment to a specified person, also made a par-
ty defendant, in satisfaction of a finding of
the court of claims. Houston v. Ormes, 252
U. S. 469, 40 Sup. Ct. Rep. 369, 64:669
11. A provision in a contract for the
prosecution of a claim against the United
States which purports to make the con-
tingent attorney's fee therein provided for
a lien upon* any warrant which may be
issued in payment of such claim is re-
pugnant to U. S. Rev. Stat. § 3477, annul-
ling assignments of such claims, or of any
part or interest therein, made in adranet
of the allowance of the claim. Oalhoun v.
Massie, 253 U. S. 170, 40 Sup. Ct. Rep. 474,
64:649
CI4ASSIFICATION.
By statute, see Constitutional Law, n.
CIaASS liEXSISIiATION.
See Constitutional Law, IL
CliERKS.
Bond of clerk of Federal Supreme Court
approved, see ante, Appendix I., p.
1033.
•
Foes and commissions.
1. Fees and emoluments collected by a
clerk of a Federal district court, and de-
posited by him in a bank at interest, were
not public moneys of the United States,
so as to entitle the United States to the
interest as an increment of its ownership,
even where such clerk was, by exceptional
legislation, an officer whose salary was spe-
cincally appropriated, it not being disputed
that he was under obligation to meet the
expenses of his office from the fees and
emoluments thereof, and to pay over to the
United States only the resulting surplus
United SUtes v. MacMillan, 253 U. S. 195,
40 Sup. Ct. Rep. 640, 84: 857
2. Interest on tlie sum of the foes and
emoluments deposited by the clerk of a
Federal district court in a bank is not, in
and of itself, an emolument for which he
is liable to account to the United States.
United States v. MacMillan, 253 U. S. 195.
40 Sup. Ct. Rep. 540, * 64: 867
3. The clerk of a Federal district court
may properly deduct his poundage of 1 per
cent, under U. S. Rev. Stat. § 828, from
the amount allowed to the surety on a for
feited bail bond out of the impounded funds
1049
CLOUD ON TITLE— COMMERCE.
of the principal in such clerk's hands, which
are finally adjudged to have been held in
trust primarily as security against liability
on such bond. Leary v. United States, 253
U. S. 94, 40 Sup. Ct. Rep. 446, 64: 798
OliOUD OX TITIiE.
Remedy at law, sef Equity, 3.
Injunction to remove, see Injunction, 2.
COAL.
Combination of carrier and coal com-
pany, see Monopoly, 5, 6.
COMBINATIONS.
See Monopoly.
CO»IITY.
Recognition of decree of other state, see
Judgment, 6-7.
COMMERCE].
Powers of Interstate Commerce Com-
mission, see Interstate Commerce
Commission.
Conspiracy in restraint of, see Monop-
oly.
Uliat Is Interstate commerce.
Transportation under railway pass, see
Carriers, 2.
When railway employee is engaged in
interstate commerce, see Master
and Servant, 3-7.
1. The direct transmission of natural
gas from the source of supply outside the
state to local consumers in municipalities
within the state is interstate commerce.
Pennsylvania Gas Co. v. Public Service
Commission, 262 U. S. 23,' 40 Sup. Ct. Rep.
279, (Annotated) 64: 434
Oonflictins state and Federal legisla-
tion. .
2. Until Congress acts under its su-
perior authority by regulating the subject-
matter for itself, the exercise of authority
conferred by a state upon a public service
commission to regulate rates for natural
gM transmitted directly from the source
of supply outside the state to local con-
sumers in municipalities within the state
does not offend against the commerce clause
of the Federal Constitution. Pennsylvania
Gas Co. V. Public Service Commission, 252
U. S. 23, 40 Sup. Ct. Rep. 279,
(Annotated) 64: 434
3. A narrow construction need not, in
order to preserve the reserved power of a
state, be given to the provisions of the Act
of June 18, 1910, bringing telegraph com-
panies under the Act to Regulate Com-
merce, as well as placing them under the
administrative control of the Interstate
Commerce Commission. Western U. Teleg.
Co. r. Boegli, 261 U. S. 316, 40 Sup. Ct. Rep.
167, 64: 281
4. Congress has so far taken possession
of the field by enacting the provisions of the
Act of June 18, 1910, bringing telegraph
companies under the Act to Regulate Com-
merce, as well as placing them under the
administrative control of the Interstate
1050
Commerce Commission, as to prevent a statt
from thereafter penalizing the negligent
failure of a telegraph company to delivez
promptly an interstate telegram in that
state. Western U. Teleg. Co. v. Boegii, 253
U. S. 316, 40 Sup. Ct. Rep. 167, 64: Ml
6. Congress has so far occupied the en-
tire field of the interstate business of t^e-
graph companies by enacting the provisions
of the Act of June 18, 1910, respecting in-
terstate telegraph rates, as to exclude state
action invalidating a contract limiting the
liability of a tel^raph company for error
in sending an unrepeated interstate message
to the refunding of the price paid for the
transmission of the message. Postal Teleg.-
Cable Co. v. Warren -Godwin Lumber Co
261 U. S. 27, 40 Sup. Ct. Rep. 69, 64: 118
Reernlating carriers and transporta-
tion.
Regulations in matters not affecting
interstate commerce, see Carriers
See also supra, 1-6.
6. A Kentucky street railway may be
required by a statute of that state to fur-
nish either separate cars or separate com-
partments in the same car for white and
negro passengers, although its principal
business is the carriage of passengers in
interstate commerce between Cincinnati,
Ohio,, and Kentucky cities across the Ohio
river. St|ch a requirement affects interstate
commerce only incidentally, and does not
subject it to imreasonable demands. South
Covington & C. Street R. Co. v. Kentucky,
252 U. S. 399, 40 Sup. Ct. Rep. 378,
(Annotated) 64: 6S1
7. Interstate traflSc over a Kentucky In-
terurban electric railway may be subjected
to the operation of a statute of that state
requiring separate coaches, or separate com-
partments in the same- coach, for white and
negro passengers, without unlawfully inter-
fering with interstate commerce. Cincin-
nati, C. & E. R. Co. V. Kentucky, 252 U.
S. 408, 40 Sup. Ct. Rep. 381, 64: 637
8. The transportation by the owner in
his own automobile of intoxicating liquors
for his personal use is comprehended by
the prohibition of the Reed .^jnendment of
March 3, 1917, § 6, against the transporta-
tion of intoxicating liquors in interstate
commerce, except for scientific, sacramental,
medicinal, and mechanical purposes, into
any state the laws of which prohibit the
manufacture or sale therein of intoxicating
liquors for beverage purposes. United
States V. Simpson, 252 U. S. 465, 40 Sap
Ct. Rep. 364, 64: 665
liicenses and taxes.
9. A state, when taxing a foreign in-
terstate railway company, cannot take into
account the property of such railway com-
pany situated outside the state unless it can
be seen in some plain and fairly intelligible
way that such property adds to the value
of the railway and the rights exercised in
the state. Wallace v. Hines. 253 U. S. 66
40 Sup. Ct. Rep. 435, 64: 78S
10. A state may not, consistently with
the commerce and due process of law claused
of the Federal Constitution, fix the value of
231, 262, 253 V. B.
COMMON CAKRIERS— CONSPIKACY.
the property of foreign interBtate railway
companies for the purpose of levying a
special excise tax upon the doing of business
in the state by taking the total value of the
stock and bonds of each railway company
and assessing the proportion of this value
that the main track mileage bears to the
main track of the whole line, where, by rea-
son of topographical conditions, the cost of
the lines in that state was much less than
in other states, and the great and very valu-
able terminals of the railwaya are in other
states, and where the valuations as made in-
clude such item? as bonds secured by mort-
gage of lands in other states, a land grant
in another state, and other property that
adds to the riches of the corporation, but
does not affect that part of the railway in
the state. Wallace v. Hines, 253 U. S. 66,
40 Sup. Ct. Riep. 435, 64: 782
11. A state income tax ' upon the net
income of a nonresident from the business
carried on by him in the state is not a
burden on interstate commerce merely be-
cause th& products of the business are
shipped out of the state, since the tax, not
being upon gross receipts, but only upon
the net proceeds, is plainly sustainable even
if it includes net gains from interstate com-
merce. Shaffer r. Carter, 252 U. S. 37, 40
Sup. Ct Rep. 221, (Annotated) 64: 445
12. A state tax which is in effect a
privilege tax upon the business of selling
gasolene in the tank cars or other original
packages in which the gasolene was brought
into trie state, and which provides for the
levy of fees in excess of the cost of inspec-
tion, is invalid, as amounting to a direct
burden on interstate commerce. Askren v.
Continental OU Co. 252 U. S. 444, 40 Sup.
Ct. Rep. 355, 64: 654
13. The business of selling gasolene at
retail in quantities to suit customers, but
not in the original packages, is properly
taxable by the laws of the state, although,
the state itself producing no gasolene, it
must of necessity have been brought into
the state in interstate commerce. Askren v.
Continental Oil Co. 252 U. S. 444, 40 Sup.
Ct. Rep. 355, 64: 654
14. A nonresident manufacturer of "soft
drinks'' doing a business in a municipality
in the state which largely consists in carry-
ing a supply of such drinks from one re-
tailer's place of business to another's upon
the vehicle in which the goods were brought
across the state line, exposing them for
sale, soliciting and negotiating sales, and
immediately delivering the goods sold in the
original unbroken cases, may be required
to take out the license required of all whole-
salers in soft drinks without infringing the
commerce clause of the Federal Constitu-
tion. Wagner v. Covington, 251 U. S. 95,
40 Sup. Ct. Rep. 93, (Annotated) 64: 157
(Jilligan v. Covington, 251 U. S. 104, 40 Sup.
Ct. Rep. 93, 64: 168
COM.MOX CARiilERS.
Sec C'arriers.
64 L. cd.
I
COMMON LAW.
Abolishing defense of contributory neg-
ligence as denying due process of
law, see Constitutional Law, 62.
Making contributory negligence a ques-
tion for the jury as denying due
process of law, see Constitutional
Law, 63.
COMPLAINT.
In criminal proceeding, see Indictment
and Information.
See also Pleading.
CONCURRENT POWER.
Of Congress and states to enforce Pro-
hibition Amendment, see Constitu-
tional Law, 8-10.
CONDITION.
To injunctive relief against infringe-
ment of copyright, see Injunc-
tion, 5.
Condition precedent to suit to recover
back excessive tax, see Internal
Revenue, 23, 24.
Protest as condition precedent to re-
covery back of illegal taxes, see
Taxes, 3.
CONFISCATION.
See Constitutional Law.
CONGRESS.
Power over interstate commerce, see
Commerce.
Validity of legislation by, generally, see
Constitutional Law.
Relation of courts to, see Courts, 1, 2.
Power over insular possessions, see
Territories.
War powers of Congress, see War.
CONSPIRACY.
Sufficiency of evidence to support con
viction for, see Evidence, 12.
Sufficiency of indictment for, see Indict-
ment and Information, 1.
Combinations in restraint of trade,
commerce, or competition, see Mo-
nopoly.
1. The Espionage Act of June 15,
1917, § 3, makes criminal a conspiracy to
obstruct the recruiting and enlistment
service of the United States by inducement
or persuasion. O'Connell v. United States,
253 U. S. 142, 40 Sup. Ct. Rep. 444, 64: 827
2. A conspiracy to violate the Espion-
age Act of June 15, 1917, made criminal by
§ 4, provided one or more of the conspira-
tors do any act to effect the object of the
conspiracy, is none the less criminal, if
thus attempted to be carried into effect,
merely because the conspirators failed to
agree in advance upon the precise method
in which the law should be violated. Pierce
V. United States, 252 U. S. 239, 40 Sup. Ct.
Rep. 205, 64: 542
3. While the averment of a conspiracy
cannot be aided by allegations respecting
the overt acts, and while under the Es-
1051
CLOUD ON TITLE— COMMERCE.
of the principal in such clerk's hands, which
are finally adjudged to have been held in
trust primarily as security against liability
on such bond. Leary v. United States, 253
U. S. 94, 40 Sup. Ct. Rep. 446, 64: 798
CLOUD ON TITIiE.
Remedy at law, sef Equity, 3.
Injunction to remove, see Injunction, 2.
COAIi.
Combination of carrier and coal com-
pany, see Monopoly, 5, 6.
COMBINATIONS.
See Monopoly.
COMITY.
Recognition of decree of other state, see
Judgment, 6-7.
COMMERCE.
Powers of Interstate Commerce Com-
mission, see Interstate Commerce
Commission.
Conspiracy in restraint of, see Monop-
oly.
^liat is interstate commerce.
Transportation under railway pass, see
Carriers, 2.
When railway employee is engaged in
interstate commerce, see Master
and Servant, 3-7.
1. The direct transmission of natural
gas from the source of supply outsicle the
state to local consumers in municipalities
within the state is interstate commerce.
Pennsvlvania Gas Co. v. Public Service
Commission, 262 U. S. 23,' 40 Sup. Ct. Rep.
279, (Annotated) 64: 434
Oonflictlngr state and Federal legisla-
tion. ■
2. Until Congress acta undex' its su-
perior authority by regplating the subject-
matter for itself, the exercise of authority
conferred by a state upon a public service
commission to regulate rates for natural
gas transmitted directly from the source
of supply outside the state to local con-
sumers in municipalities within the state
does not offend against the commerce clause
of the Federal Constitution. Pennsylvania
Gas Co. V. Public Service Commission, 262
U. S. 23, 40 Sup. Ct. Rep. 279,
(Annotated) 64: 434
3. A narrow construction need not, in
order to preserve the reserved power of a
state, be given to the provisions of the Act
of June 18, 1910. bringing telegraph com-
panies under the Act to Regulate Com-
merce, as well as placing them under the
administrative control of the Interstate
Commerce Commission. Western U. Tel eg.
Co. V. Boegli, 251 U. S. 315, 40 Sup. a. Rep.
167, M: 281
4. Congress has so far taken possession
of the field by enacting the provisions of the
Act of June 18, 1910, bringing telegraph
companies under the Act to Regulate Com-
merce, as well as placing them under the
administrative control of the Interstate
1050
Commerce Commission, as to prevent a statt
from thereafter penalizing the negligent
failure of a telegraph company to delivei
promptly an interstate telegram in that
state. Western U. Teleg. Co. v. Boegii, 251
U. S. 316, 40 Sup. Ct. R^. 167, 64: 881
6. Congress has so far occupied the en-
tire field of the interstate business of tele-
graph companies by enacting the provisions
of the Act of June 18, 1910, respecting in-
terstate telegraph rates, as to exclude state
action invalidating a contract limiting the
liability of a telegraph company for error
in sending an unrepeated interstate message
to the refunding of the price paid for the
transmission of the message. Postal Teleg.-
Cable Co. v. Warren -Godwin Lumber Co-
251 U. S. 27, 40 Sup. Ct. Rep. 69, 64: 118
Regulating carriers and transporta-
tion.
Regulations in matters not affecting
interstate commoxie, see OtrrierB.
See also supra, 1-5.
6. A Kentucky street railway may be
required by a statute pf that state to fur-
nish either separate cars or separate com-
partments in the same car for white and
negro passengers, although its principal
business is the carriage of passengers in
interstate commerce between Cinoinnati,
Ohio,, and Kentucky cities across the Ohio
river. Si|ch a requirement affects interstate
commerce only incidentally, and does not
subject it to unreasonable demands. South
Covington & C. Street R. Co. v. Kentucky,
252 U. S. 309, 40 Sup. Ct. Rep. 378,
(Annotated) 64: 631
7. Interstate traffic over a Kentucky in-
terurban electric railway may be subjected
to the operation of a statute of that state
requiring separate coaches, or separate com-
partments in the same- coach, for white and
negro passengers, without unlawfully inter-
fering with interstate commerce. Cincin-
nati, C. & E. R. Co. V. Kentucky, 252 U.
S. 408, 40 Sup. a. Rep. 381, 64: 637
8. The transportation by the owner in
his own automobile of intoxicating liquors
for his personal use is comprehended by
the prohibition of the Reed Amendment of
March 3, 1917, § 5, against the transporta-
tion of intoxicating liquors in interstate
commerce, except for scientific, sacraraentnl.
medicinal, and mechanical purposes, into
any state the laws of which prohibit the
manufacture or sale therein of intoxicating
liquors for beverage purixwes. United
States V. Simpson, 252 U. S. 465, 40 Sup
Ct. Rep. 364, 64: 665
liicenses and taxes.
9. A state, when taxing a foreign in-
terstate railway company, cannot take into
account the property of such railway com
pany situated outside the state unless it C4in
be seen in some plain and fairly intelligible
way that such property adds to the value
of the railway and the rights exercised in
the state. Wallace v. Hincs, 253 U. S. «6
40 Sup. Ct. Rep. 435, . 64: 782
10. A state may not, consistently \% ith
the commerce and due process of law claused
of the Federal Constitution, fix the value of
251, 252, 25S V. B.
COMMON CARRIERS— CONSPIRACY.
the property of foreign interstate railway
companies for the purpose of levying a
special excise tax upon the doing of business
in the state by taking the total value of the
stock and bonds of each railway company
and assessing the proportion of this value
that the main track mileage bears to the
main track of the whole line, where, by rea-
son of topographical conditions, the cost of
the lines in that state was much less than
in other states, and the great and very valu-
able terminals of the railways are in other
states, and where the valuations as made in-
clude stich item9 as bonds secured by mort-
gage of lands in other states, a land grant
in another state, and other property that
adds to the riches of the corporation, but
does not affect that part of the railway in
the state. Wallace v. Hines, 253 U. S. 66,
40 Sup. C*t. Riep. 435. 64: 782
11. A state income tax' upon the net
ineome of a nonresident from the business
carried on by him in the state is not a
burden on interstate commerce merely be-
cause th^ products of the business are
shipped out of the state, since the tax, not
being upon gross receipts, but only upon
the net proceeds, is plainly sustainable even
if it includes net gains from interstate com-
merce. Shaffer v. Carter, 252 U. S. 37, 40
Sup. Ct. Rep. 221, (Annotated) 64: 445
12. A state tax which is in effect a
privilege tax upon the business of selling
gasolene in the tank cars or other original
packages in which the gasolene was brought
into the state, and which provides for the
levy of fees in excess of the cost of inspec-
tion, is invalid, as amounting to a direct
burden on interstate commerce. Askren v.
Continental OU Co. 252 U. S. 444, 40 Sup.
Ct. Rep. 355, 64:654
13. Tlie business of selling gasolene at
retail in quantities to suit customers, bat
not in the original packages, is properly
taxable by the laws of the state, although,
the state itself producing no gasolene, it
must of necessity have been brought into
the state in interstate commerce. Askren v.
Continental Oil Co. 252 U. S. 444, 40 Sup.
Ct. Rep. 355, 64: 654
14. A nonresident manufacturer of "soft
drinks" doing a business in a municipality
in the state which largely consists in carry-
ing a supply of such drinks from one re-
tailer's place of business to another's upon
the vehicle in which the goods were brought
across the state line, exposing them for
sale, soliciting and negotiating sales, and
immediately delivering the goods sold in the
original unbroken cases, may be required
to take out the license required of all whole-
salers in soft drinks without infringing the
commerce clause of the Federal Constitu-
tion. Wagner v. Covington, 251 U. S. 95,
40 Sup. Ct. Rep. 93, (Annotated) 64: 157
Oilliaan v. Covington, 251 U. S. 104, 40 Sup.
Ct. Rep. 93. 64: 168
COMMON CARillERS. |
Sec Carriers.
64 L. cd.
COMMON LAW.
Abolishing defense of contributory neg-
ligence as denying due process of
law, see Constitutional Law, 02.
Making contributory negligence a ques-
tion for the jury as denying due
£rocess of law, see Constitutional
aw, 63.
COMPLAINT.
In criminal proceeding, see Indictment
and Information.
See also Pleading.
CONCURRENT POWER.
Of Congress and states to enforce Pro-
hibition Amendment, see Constitu-
tional Law, 8-10.
CONDITION.
To injunctive relief against infringe-
ment of copyright, see Injunc-
tion, 5.
Condition precedent to suit to recover
back excessive tax, see Internal
Revenue, 23, 24.
Protest as condition precedent to re-
covery back of illegal taxes, see
Taxes, 3.
CONFISCATION.
See Constitutional Law.
CONGRESS.
Power over interstate commerce, see
Commerce.
Validity of legislation by, generally, see
Constitutional Law.
Relation of courts to, see Courts, 1, 2.
Power over insular possessions, see
Territories.
War powers of Congress, see War.
CONSPIRACY.
Sufficiency of evidence to support con
viction for, see Evidence, 12.
Sufficiency of indictment for, see Indict-
ment and Information, 1.
Combinations in restraint of trade,
commerce, or competition, see Mo-
nopoly.
1. The Espionage Act of June 15,
1917, § 3, makes criminal a conspiracy to
obstruct the recruiting and enlistment
service of the United States by inducement
or persuasion. O^Connell v. United States.
263 U. S. 142, 40 Sup. Ct. Rep. 444, 64: 827
2. A conspiracy to violate the Espion-
age Act of June 15, 1917, made criminal by
§ 4, provided one or more of the conspira-
tors do any act to effect the object of the
conspiracy, is none the less criminal, if
thus attempted to be carried into effect,
merely because the conspirators failed to
agree in advance upon the precise method
in which the law should be violated. Pierce
V. United States, 252 U. S. 239, 40 Sup. Ct.
Rep. 205, 64: 542
3. While the averment of a conspiracy
cannot be aided by allegations respecting
the overt acts, and while under the Es-
1051
CONSTITUTIONAL LAW.
pionago Act of June 15, 1917, § 4, as under
the Criminal Code, § 37, a mere conspiracy
without overt act done in pursuance of it
is not punishable criminally, yet the overt
act need not be, in and of itself, a crimi-
nal act, still less need it constitute the
very cnme that iff the object of the con-
spiracy. Pierce v. United States, 262 U.
S. 239, 40 Sup. Ct. Rep. 205, 64: 542
4. NonofRcial persons may be convict-
ed of a conspiracy to violate the provi-
sions of the Selective Service Act of May
18, 1017, § 6, that any person who shall
make or be a party to the making of any
false statement or certificate as to the fit-
ness or liability of himself or any other
person for service under the provisions of
this act, or regulations made by the Presi-
dent thereunder, or otherwise evades or
aids another to evade the requirements of
this act or of said regulations, shall be
guilty of a misdemeanor. O'Connell v.
United States, 263 U. S. 142, 40 Sup. a.
Rep. 444, 64: 837
CONSTITUTIONAIi liAW.
I. Adoption and amendment, 1-12.
II. Equal protection of the laws; abridginjj
privileges and immunities, 13-28.
ni. Due process of law; right to life, lib-
erty, or property, 29-71.
IV. Police power, 72.
V. Freedom of speech or press, 73, 74.
VI. Impairing contract obligations, 75-82.
Validity of state legislation affecting mari-
time law, see Admiralty.
Power of Congress to permit application of
state workmen's compensation laws to
maritime injuries, see Admiralty, 3.
As to r^ulation of interstate commerce,
see Commerce.
Relation of courts to other departments of
government, see Courts, 1-6.
Former jeopardy, see Criminal Law, 2.
As to self-crimination, see Criminal Law, 3.
Prohibiting diminution of salary of judge
during continuance in office, see Judges.
Full faith and credit to judgment of other
state, see Judgment, 6-7.
Right to trial by jury, see Jury.
As to search and seizure, see Search and
Seizure.
Construction of 8tatute favoring constitu-
tionality, see Statutes, 2.
Constitutional limitations upon congression-
al power over insular possessions, see
Territories.
Limitation of Federal Constitution on state
power of taxation, see Taxes, 1.
War power of Congress, see War.
I. Adoption and amendment.
.\inenditiont.
Validity and construction of Federal
Income Tax Amendment, see Inter-
nal Revenue, 5-9.
1. The two-thirds vote in each House
of Congress, which is required in propos-
ing an amendment to the (Constitution, is a
vote of two thirds of the members present.
1052
— assuming the presence of a quorum, — and
not a two-thirds vote of the entire mem-
bership, present and absent. Rhode Island
V. Palmer, 253 U. S. 350, 40 Sup. Ct. Rep.
486, 64: 947
2. The adoption by both Houses of
Congress, each by a two-thirds vote, of a
joint resolution proposing an amendment
to the Constitution, sufficiently shows that
the proposal was deemed necessary by all
who voted for it. An express declaration
that they regarded it as necessak-y is not
essential. Rhode Island v. Palmer, 253 U.
S. 350, 40 Sup. Ct. Rep. 486,* 64: 947
3. Referendum provisions of fstate con-
stitutions and statutes cannot be applied in
the ratification or rejection of amendments
to the Federal Constitution without violat-
ing the requirement of article 5 of aucb
Constitution, that such ratification shaU be
by the legislatures of the several states, or
by conventions therein, as Congress shall
decide. Hawke v. Smith, 253 U. a 221, 40
Sup. Ct Rep. «^, 64: 871
Hawke v. Smith, 263 U. S. 231; 40 Sup.
a. Rep. 498, 64: 877
4. Referendum provisiqios of state cod-
stitntions and statutes cannot be applied
in the ratification or rejection of amend-
ments to the Federal Constitution without
violating the requirement of article 5 of
such Constitution, that such ratification
shall be by the legislatures of the several
states, or by conventions therein, as Con-
gress shall decide. Rhode Island v. Palmer,
253 U. S. 360, 40 Sup. Ct. Rep. 486, 64: 946
5. The prohibition of the manufacture,
sale, transportation, importation, and ex-
portation of intoxicating liquors for bever-
age purposes, as embodied in the 18tb
Amendment to the Federal Constitution, is
within the power to amend reserved bv the
6th article of such Constitution. Rhode
Island V. Palmer, 263 U. S. 350, 40 Sup.
Ct. Rep. 486, 64: 9M
6. The Prohibition Amendment to the
Federal Constitution by lawful proposal
and ratification has become a part of that
Constitution, and must be respected and
given effect the same as other provisions of
that instrument. Rhode Island v. Palmer.
263 U. S. 350, 40 Sup. Ct. Rep. 486, 64: 946
7. That part of the Prohibition Amend-
ment to the Federal Constitution which em-
bodies the prohibition is operative through-
out the entire territorial limits of the
United States, binds all legislative bodies,
courts, public officers, and individuals with-
in those limits, and of its own force in-
validates every legislative act, whether by
Congress, by a state legislature, or by a
territorial assembly, which authorizes or
sanctions what the Amendment prohibits.
Rhode Island v. Palmer, 253 U. S. 350, 40
Sup. Ct. Rep. 486, 64: 946
8. Tlie declaration in the Prohibition
Amendment to the Federal Constitution
that "the Congress and the several states
shall have concurrent power to «aiforce this
article by appropriate legislation*' does not
enable Congress or the several states to de-
feat or thwart the prohibition, but only to
251. 252. 253 V. «.
CONSTITUTIONAL. LAW.
enforce it by appropriate meam. Rhode
Island V. Palmer, 253 U. S. 350, 40 Sup.
Ct. Rep. 486, 64: 946
9. ITie words ^'concurrent power** in the
declaration in the 18th Amendment to the
Federal Constitution that "the Congress
and the several states shall have concurrent
power to enforce this article by appropriate
legislation" do not mean joint power, or
require that legislation thereunder by Con-
gress, to be effective, shall be approvtni or
sanctioned by the several states or any of
them, nor do they mean that the power to
enforce is divided between Congress and
the several states along the lines which sep-
arate or distinguish foreign or interstate
commerce from intrastate affairs. Rhode
Island V. Palmer, 253 U. S. 350, 40 Sup.
Ct. Rep. 486, 64: 946
10. The power confided to Congress by
the provisions of the 18th Amendment to
the Federal Constitution, that "the Con-
gress and the several 'states shall have con-
current power to enforce this article by
appropriate legislation," while not exclu-
sive, is territorially coextensive with the
prohibition of that Amendment, embraces
manufacture and other intrastate transac-
tions as well as importation, exportation,
and interstate traffic, and is. in no wise de-
pendent on or affected by action or inac-
tion on the part of the several stated or any
of them. Rhode Island v. Palmer, 253 U.
8. 350, 40 Sup. Ct. Rep. 486, 64: 946
11. The power of Congress to enforce
the Prohibition Amendment to the Federal
Constitution may be .exerted against the dis-
posal for beverage purposes of liquors manu-
factured before the Amendment became ef-
fectiTe, just as it may be against subse-
quent manufacture for those purposes.
Rhode Island v. Palmer, 253 U. S. 350, 40
Sup. Ct. Rep. 486, 64: 946
12. Congress did not exceed its powers,
under U. S. Const., 18th Amend., to enforce
the prohibition therein declared against
the manufacture, sale, or transportation of
intoxicating liquors for beverage purposes,
by enacting the provisions of the Volstead
Aat of October 28, 1919, wherein liquors
containing as much as i of 1 per cent of
alcohol by volume, and fit for use for bever-
age purposes, are treated as within that
power. Rhode Island v. Palmer, 253 U. S.
too, 40 Sup. Ct. Rep. 486, 64: 946
II. Equal protection of the laws; abridg-
ing privileges and immunities.
13. One against whotn a judicial de-
cision has been rendered can base no rights,
under the equal protection of the laws
clause of the Federal Constitution, upon a
later decision between strangers which is
asserted to be irreconcilable on a matter of
law with the earlier decision. This consti-
tutional provision does not assure uniform-
ity of judicial decisions. Milwaukee Elec-
tric R. & Li^t Co. V. Wisconsin ex rel. Mil-
waukee, 252 U. S. 100, 40 Sup. Ct. Rep.
306, 64: 476
€4 Ii. e«.
Discrimination against nouresjdents.
In taxation, see infra, 22-28.
14. Constitutional privileges and immu-
nities of a nonresident citizen are not de-
nied by the exemption accorded to resident
citizens by the provisions of Minn. Gen.
Stat. 1913, § 7709, that "when a cause of
action has arisen outside of this state and,
by the laws of the place where it arose, an
action thereon is there barred by lapse of
time, no such action shall be maintained
in this state imless the plaintiff be a citi-
zen of th( state who has owned the cause of
action ever since it accrued," where the for
eign limitation, though shorter than that
of Minnesota, is not unduly short. Cana-
dian Northern R. Co. v. Eggen, 252 V. 8.
653, 40 Sup. Ct. Rep. 402, 64: 713
Regulation of- business.
See also infra, 16.
15. The equal protection of the laws in
not denied to a street railway company by
a municipal ordinance under which it is re-
quired to sprinkle the surface of the streets
occupied by its railway between the rails
and tracks, and for a sufficient distance
beyond the outer rails, so as effectually to
lay the dust and prevent the same from
arising whed the cars are in operation.
Pacific Gas & Electric Co. v. Police Court,
261 U. S. 22, 40 Sup. Ct. Rep. 79, 64: 112
15a. Rights under U. S. Const., 14th
Amend., were not violated by a state stat-
ute which made it a criminal offense for
any person by personal solicitation to seek
employment to prosecute or collect claims,
including unliquidated claims for personal
injuries, although the state may have made
causes of action in tort, as well as in con-
tract, assignable. McCloskey v. Tobin, 252
U. S. 107, 40 Sup. Ct. Rep. 306, 64: 481
Excessive penalties.
16. llie provisions of the Oklahoma laws
for the enforcement by penalties of rate-
fixing orders of the state Corporation Com-
mission violate U. S. Const., 14th Amend.,
because the only judicial review of such or
ders possible under the state laws is that
.arising in proceedings to punish for con-
tempts, in which the penalties imposed for
a refusal to obey such an order may be
$500 for each offense, each day^s continu-
ance of failure or refusal to obey the order
constituting a separate offense. Oklahoma
Operating Co. v. Love, 252 U. S. 331, 40
Sup. Ct. Rep. 338, 64: 596
Oklalioma Gin Co. v. Oklahoma, 252 V. S
339, 40 Sup. Ct. Rep. 341, 64: 600
Taxes and a8scs|^ent8.
See also infra, 51-54.
17. The consideration by assessing oSl
cers, conformably to state law, of the fran-
chises of a railway company, when assess-
ing for a public improvement the real es-
tate of a railway company within the tax-
ing district, does not, without more, justify
invalidating the tax as a denial of the equal
protection of the laws, on the theory that
tlie franchises of the railway company were
included as a separate personal-property
value in the real property assessment, thus
taxing the railway property at a hisher
1059
CONSTITUTIONAL LAW.
rate than other real property in the district.
Branson v. Bush, 261 U. S. 182, 40 Sup.
Gt. Kep. 113, 64: 215
18. A state may, so iar as the Federal
Constitution is concerned, tax its own cor-
porations in respect of the stock held by
them in other domestic corporations, al-
though unincorporated stockholders are
exempt. Fort Smith Lumber Co. v. Arkan-
sas ex rel. Arbuckle, 251 U. S. 632, 40 Sup.
Ct. Rep. 304, 64: 396
19. Confining the recovery of back taxes
to those due from corporations* does not
offend against the Federal Constitution.
Fort Smith Lumber Co. v. Arkansas ex rel.
Arbuckle, 251 U. S. 532, 40 Sup. Ct. Rep.
304, 64: 396
20. 21. The Federal Supreme. Court will
not interfere on constitutional grounds with
sewer assessments merely because certain
abutting property, a part of which might
be drained into the sewer, was omitted
from such district by the local authorities,
where the state courts have upheld * the
assessments, and the action of the state au-
thorities cannot be said to be arbitrary or
wholly unequal in operation and effect.
Goldsmith v. George G. Prendergast Constr.
Co. 262 U. S. 12, 40 Sup. Ct. Rep. 273,
64: 427
22. There is no unconstitutional dis-
crimination against citizens of other states
in a state income tax law merely because
it confines the deduction of expenses, losses,
etc., in the case of nonresident taxpayers,
to such as are connected with income aris-
ing from sources within the taxing state.
Travis v. Yale & T. Mfg. Co. 262 U. S. 60,
40 Sup. Ct. Rep. 228, 64: 460
23. A state income tax law does not
unconstitutionally discriminate against non-
citizens merely because it confines the
withholding at source to the income of
nonresidents, since such provision does not
in any way increase the burden of the tax
upon nonresidents, but merely recognizes
the fact that, as to them, the state im-
poses no personal liability, and hence adopts
a convenient substitute for it. Travis v.
Yale & T. ISIfg. Co. 262 U. S. 60, 40 Sup.
Ct. Rep. 228, 64: 460
24. Nonresidents are not denied their
constitutional privileges or immunities, nor
the equal protection of the laws, by a state
tax imposed upon the net income derived
by them from property owned within the
state, and from any business, trade or pro-
fession carried on within its borders, either
on the theory that, since the tax is, as to
citizens of the state, a purely personal
tax, measured by their incomes, while, as
applied to a nonresident, it is essentially
a tax upon his property and business with-
in the state, to which the property and busi-
ness of citizens and residents of the state
are not subjected, there was a discrimina.-
tion against the nonresident, or because the
taxing statute permits residents to deduct
from their gross income not only losses in-
curred within the state, but also those sus- 1
tained elsewhere, while nonresidents may '
deduct only those incurred within the state.
1054
Shaffer v. Carter, 262 U. S. 37, 40 Sup. Ct.
Rep. 221, (Annotated) 64: M5
26. Privileges and immunities of citi-
zens of New York are unconstitutionally
denied to citizens of Connecticut and New
Jersey by the provision of the New York
Income Tax Law which denies to all non-
residents, without special reference to citi-
zenship, the exemptions accorded to resi-
dents, viz., $1,000 of the income of a single
person, $2,000 in the case of a married per-
son, and $200 additional for each depend-
ent, although the nonresident, if liable to
an income tax in his oWn state, including
income derived from sources within New
York, and subject to taxation under the
New Y'ork act, is allowed a credit upon tlie
income tax otherwise payable to New York
by the same proportion of the tax payable
to the state of his residence as his income
subject to taxation by the New York act
bears to his entire income taxed in his
own state, provided that such credit shall
be given only if the laws of said state
grant a substantially similar credit to
residents of New York subject to income
tax under such laws, and although the
New York act also excludes from the in-
come of nonresident taxpayers annuities,
interest on bank deposits, interest on bonds,
notes, or other interest-bearing obligations,
or dividends from corporations, except to
the extent to which the same shall be a
part of income from any business, trade,
profession, or occupation carried on in the
state, subject to taxation under tiiat act.
Travis v. Yale & T. Mfg. Co. 262 U. S. 60,
40 Sup. Ct. Rep. 228, 64: 460
26. The discrimination against citizens
of Connecticut and New Jersey, produced
bv the provision of the New York Income
Tax Law which denies to all nonresidents,
without special reference to citizenship, the
exemptions accorded to residents, viz.,
$1,000 of the income of a single person,
$2,000 in the case of a married person,
and $200 additional for each dependent,
cannot be upheld on the theory that non-
residents have untaxed income derived from
sources in their home states or elsewhere
outside of the state of New York, corre-
sponding to the amount upon which resi-
dents of the latter state are exempt from
taxation under the act. Travis v. Yale
& T. Mfg. Co. 252 U. S. 60, 40 Sttp. Ct. Rep
228, 64: 460
27. The exemption of domestic corpora-
tions doing business outside the state, but
none within the state, except the holding of
stockholders' meetings, from the payment
of an income tax, while domestic corpora-
tions doing business both within and with-
out the stote are required to pay a tax
on income derived from their business
transacted outside the state as well as up-
on the income derived from that done with-
in the state, which is the result, of Va.
Laws 1016, chap. 472, read in* connection
with Laws 1910. chap. 495, amounts to an
arbitrary discrimination forbidden by the
equal protection of the laws clause of the
14th .Amendment to the Federal ConstHu-
251. 252. 91(8 tT. 8.
CONSTITUTIONAL LAW.
tioB. P. S. Royster Guano Co. v. Virginia,
263 U. S. 412, 40 Sup. Ct. Rep. 560, 64: 988
28. A discrimination by the state of
New York in its income tax legislation
against citizens of adjoining states would
not be cured were those st&tes to estab-
lish like discriminations against citizens
of the state of New York. Travis v. Yale
& T. Mfg. Co. 262 U. S. 60, 40 Sup Ct.
Rep. 228, 64: 460
in. Due process of law; right to life, lib-
erty or property.
Property rights genemlly; use and
enjoyment of property.
Federal question respecting, see Ap-
peal and Error, 10; Courts, 10.
Enforcement of Ftohibition Amend-
ment against sale of liquor pre-
viously manufactured, see supra,
Jl.
29. Railway companies may not, con-
sistently with due process of law, be com-
pelled by a state administrative order to
install cattle-weighing scales at stations
from which cattle are shipped. Great
Northern R. Co. v. Cahill, 253 U. S. 71, 40
Sup. Ct. Rep. 457,^ (Annotated) 64: 787
30. The operation at a loss of a rail-
road used in connection with a sawmill and
lumber business, on which a small amount
of business as a common carrier has been
done, cannot be compelled by the court or
state Railroad Commission on the ground
that the owner had failed to petition the
Commission for leave to discontinue the
business of the railroad, as required by a
local law, where the compulsory operation
of the railroad would amount to a taking
of property without due process of law.
Brooks-Scanlon Co. v. Railroad Commis-
sion, 251 U. S. 396, 40 Sup. Ct. Rep. 183,
64:323
31. A street railway company's contrac-
tual duty to repave that part of a street
which lies between its tracks and for 1 foot
outside cannot be evaded on the theory that
this additional burden will reduce its in-
come below a reasonable return on the in-
vestment.. Afilwaukee Electric R. & Light
Co. v. Wisconsin ex rel. Milwaukee, 252
U. S. 100, 40 Sup. Ct. Rep. 306, 64:476
32. A street railway company may, con-
sistently with due process- of law, be 're-
quired by municipal ordinance to sprinkle
the surface of the streets occupied by its
tracks between the rails and tracks, and
for a sufficient distance beyond the outer
rails, so as effectually to lay the dust and
prevent the same from arising when the
ears are in operation. Pacific Gas &, EHec-
trie Co. v. Police Court, 251 U. S. 22, 40
Sup. Ct. Rep. 70, 64:118
33. A landlord's property is not taken
without due process of law by the lien im-
posed upon the premises by a city charter
tor water supplied to a tenant by the city,
since the landlord's consent may be implied
from the leasing with knowledge of the
law, — especially as the lease as made cou-
teroplatcd the use of the water by the ten-
64 L. cd.
ant, and provided, so far as the landlord
could, for the payment of the water
charges; and it is of no consequence at
whose request the water meters were in-
stalled. Dunbar v. New York, 251 tJ. S.
516, 40 Sup. Ct. Rep. 250, 64:384
34. A suite statute under which convey-
ances to a foreign corporation of real prop-
erty situated within the state are invalid,
though executed and delivered in another
state, if the grantee had not theretofore
filed a copy oi its charter with the secre-
tary of state, does not take property with-
out due process of law. Munday v. Wis-
consin Trust Co. 252 U. S. 499, 40 Sup.
Ct. Rep. 365, 64:684
35. A municipality may not, consistent-
ly with U. S. Const., 14th Amend., as a
matter of public right, clear a space for the
construction of its own street lighting sys-
tem by removing or relocating the instru-
mentalities of a privately owned lighting
system occupying the public streets under
a franchise legally granted, without com-
pensating the owner of such system for
the rights appropriated. Los Angeles v.
Los Angeles Gas & Electric Corp. 251 U. S.
32, 40 Sup. Ct. Rep. 76, 64:121
36. If the nature and conditions of a
restriction upon the use or disposition of
property are such that a state could, under
the police power, impose it consistently
with tiie 14th Amendment without making
compensation, then the United States may.
for a permitted purpose, impose a like re-
striction consistently with the 5th Amend-
ment without making compensation. Ham-
ilton T. Kentucky Distilleries & Warehouse
Cb. 261 U. S. 146, 40 Sup. Ct. Rep. 106,
64:194
37. Private property was not taken for
public piu'poses without compensation, con-
trary to U. S. Const., 5th Amend., by the
enactment by Congress, in the exercise of
the war power, of the provisions of the
War-time Prohibition Act of November 21,
1918, fixing a period of seven months and
nine days from its passage, during which
distilled spirits might be disposed of free
from any restriction imposed by the Fed-
eral government, and thereafter permitting,
until the end of the war and the termina-
tion of demobilization, an unrestricted sale
for export, and, within the United States,
sales for other than beverage purposes.
Hamilton vi Kentuckv Distilleries & Ware-
house Co. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
38. Congress could, consistently with
the due process of law clause of U. S.
Const., 6tli Amend., make effective forth-
with ihe provisions of the Volstead Act of
October 28, 1919, extending the existing
war-time prohibition against the manufac-
ture and sale of intoxicating liquors to non-
intoxicating malt liquors with alcoholic
content of as much as i of 1 per cent by
volume, without making any compensation
to the owner of such intoxicating liquors
acquired before the passage of the act, and
which before that time he could lawfully
1055
CONSTITUTIONAI. LAW.
have sold. Ruppert v. Caflfey, 251 U. S.
264, 40 Sup. Ct. Rep. 141, 64:260
Regalation of business; freedom to
contract.
i See also supra, 15a, 16.
39. The imposition of severe penalties
as a means of enforcing railway passenger
rates prescribed by statute is not a denial
of due process of law in a case in which it
does not appear that the carrier was not
afforded an adequate opportunity for safely
testing the validity of the rate, or that its
deviation therefrom proceeded from any be-
lief that the rate was invalid. St. Louis,
1. M. & S. R. Co. V. Williams, 251 U. S. 63,
40 Sup. Ct. Rep. 71, 64:139
40. So far as due process of law is con-
cerned, the penalty imposed by a state
statute upon a railway company which ex-
acts more than the prescribed passenger
fares may be given to the aggrieved pas-
senger, to be enforced by private suit, and
such penalty need not be confined or ap-
portioned to his loss or damage. St. Louis,
I. M. & S. R. Co. V. Williams, 251 U. S.
63, 40 Sup. C^. Rep. 71, 64:139
41. The penalties prescribed by a statute
giving to a passenger aggrieved by a car-
rier's exaction of a fare in excess of the
prescribed rate the right to recover in a
civil suit not less than $50 nor more than
$300 and costs of suit, including a reason-
able attorney's fee, cannot be said to be so
severe and oppressive as to be wholly dis-
proportionate to the offense or obviously
unreasonable, and hence to amount to a
denial of due process of law. St. Louis,
T. M. A S. R. Co. V. Williams, 251 U. S.
63, 40 Sup. Ct. Rep. 71, 64:189
42. A municipal ordinance, confessedly
a valid exercise of the police power when
adopted, under which each street car used
in the city streets must be operated during
designated hours by two persons, a motor-
man and a conductor, cannot be said to be
so arbitrary and confiscatory as to deny
due process of law when so applied as to
prohibit the use on a line on which the
travel is heavy at times, and which has
at least one steep grade, of a new type
of car still in the experimental stage, so
equipped that it may plausibly be contended
that if all the appliances work as it is in-
tended that they shall, it may be operated
at a reduced cost by one motorman, with a
high degree of safety to the public in streets
where the traffic is not heavy. Sullivan v.
Shreveport, 251 U. S. 169. 40 Sup. Ct. Rep.
102, (Annotated) 64: 205
43. An oil pipe line constructed solely
to carry oil for particular producers under
strictly private contacts, and never devoted
by its owner to publie use, could not, by
mere legislative flat or by any regnUting
order of a state commission, be converted
by a state into a public utility, nor its
owner made a common carrier, since that
would be taking private property for pub-
lic use without just compensaticm, which
no state can do consistently with the due
process of law clause of the 14th Amend-
ment to the Federal Constitution. Produc-
1056
ers Transp. Co. v. Railroad Commission.
251 U. S. 228, 40 Sup. Ct. Rep. 131, Q€:tSB
44. A corporation which has voluntarily
devoted its oil pipe line to the use of t^e
public may, consistently with due process
of law, be subjected by a state to the regu-
latory powers of a state commission over
the rates and practices of public utilities.
Producers Transp. Co. v. Railroad Commis-
sion, 251 U. S. 228, 40 Sup. Ct. Rep. 131,
64:239
45. Withholding from the courts power
to determine the question of confiscation ac-
cording to their own independent judg-
ment, when the act of a state public service
commission in fixing the value of a water
company's property for rate-making pur-
poses comes to be considered on abpeal,
as is done by the Pennsylvania Public Serv-
ice Company Law of July 26, 1913, as con-
strued by the highest state court, must be
deemed to deny due process of law, in the
absence of a ruling by that court that the
remedy by injunction provided for by § 31
of that act affords adequate opportunity
«.for testing judicially an order of the com-
mission, alleged to be confiscatory. Ohio
Valley W^ater Co. v. Ben Avon, 253 U. S.
287, 40 Sup. Ct. Rep. 527, 64:906
46. Any modification of the rights of an
electric light and power company which it
may suffer by the enactment, in the exer-
cise of the police power, of a statute giv-
ing the municipal authorities complete
control over the placing in the streets of
poles and wires for'^ conducting electricity
lor lighting and power purposes, instead of
the like control which they had when the
franchise was granted, but subject to resort
to the probate court in case of disagree-
ment with the company as to the mode of
using the streets, does not constitute an
impairing of the obligation of the compa*
ny's contract with the state or municipal-
ity, and is not a taking of its property
without due process of law. Haitlin-Wy-
andot Lighting Co. v. Upper Sandusky, 251
U. S. 173, 40 Sup. Ct. Rep. 104, 64: 210
47. Neither the guaranty of the Philip-
pine Bill of Rights of due process of law
nor its prohibition against the taking of
private property for public use without
compensation can be said to have been vio-
late by a Philippine law which imposed
upon vessels engaged in the coastwise trade,
for the privilege of so engaging, the duty
to carry the mails free to and from their
ports of touch, in view of the plenary power
which the Philippine government had al-
ways possessed and exercised, and which
was recognized in the Act of Congress of
April 15, 1904, to limit the right to engage
in the coastwise trade to those who aipee
to carry the mails free. Public Utility
Comrs. V. Ynchausti k Co. 251 U. 8. 401, 40
Sup. Ct. Rep. 277, 64:SS7
48. Congress could, as it did in the Act
of March 4, 1915, § 4, make applicable to
foreign seamen on foreign vessels wlien ia
American ports the provisioii« of tkat eec-
tion authorizing seamen to demand and
receive one half the wages earned at ai^
951. 95S, SftS V. S.
CX)XSTnLT10NAL LAW.
port where the yessel, after the voyage has
D^n commenced, shall load or deliver cargo
before the voyage is ended, notwithstand-
ing any contracWal obligations to the con-
trary. Strathearn S. S. Co. v, Dillon, 252
XT. S. 348, 40 Sup. Ct. Rep. 360, 64:607
Thompson v. Lucas, 252 U. S. 391, 40 Sup.
Ct. Rep. 353, 64:61$
49. The limitation of the compensation
of attorneys in the prosecution of claims
against the United States to 20 per cent
of the amount collected, any contract to the
contrary notwithstanding, which was made
by the Omnibus Claims Act of ^larch 4,
1915, § 4, does not contravene U. S. Const.,
6th Amend., when applied .to invalidate a
contiiigent-fee contract entered into and
substantially performed before tiie passage
of the statute, — especially where, at the
time the contract was made, there was no
legislation, general or special, which, con-
ferred upon the claimant any right of re-
covery, even if he should establish to the
satisfaction of Congress that his claim was
equitable, and where the attorney accepted
and received from the United States Treas-
ury a warrant for 20 per cent of the amount
appropriated, although this was not ac-
cepted by him as a full settlement of his
rights against the client. Calhoun v.
Massie, 253 U. S. 170, 40 Sup. Ct. Rep. 474,
64:843
Taxation and public Improvements.
See also supra, 18-20, 22.
50. State taxation to enable the state
of North Dakota to carry out such enter-
prises as a state bank, a state warehouse,
elevator, and flour mill system, and a state
home building project, all of which have
been sanctioned by united action of the
people of the state, its legislature, and its
courts, cannot be said to deny taxpayers
the protection which the constitutional
guaranty of due process of law affords
against the taking of property for uses that
are private. Green v. Frazier, 253 U. S.
233. 40 Sup. Ct. Rep. 499, 64:878
61. Nothing in U. S. Const., 14th
Amend., prohibits a state from imposing
double taxation. Cream of Wheat Co. v.
Grand Forks County, 253 U. S. 325, 40 Sup.
Ct. Rep. 558, 64:931
52. Nothing in the Federal Constitu-
tion or in the 14th Amendment prevents
the states fr<Hn imposing double taxation
or any other form of unequal taxation so
long as the inequality is not based upon
arbitrary distinctions. Shaffer v. Carter,
252 U. S. 37, 40 Sup. Ct. Rep. 221, 64:445
53. The 14th Amendment to the Fed-
eral Constitution no more forbids double
taxation than it does doubling the amount
of the tax, short of confiscation or pro-
ceedings unconstiUitional on other grounds.
Fort Smith Lumber Co. v. Arkansas ex
r«l. Arbuckle, 251 U. S. 532, 40 Sup. Ct.
Rep. 304, 64:396
54. A state may, consistently with U.
8. Const., 14th Amend., tax a corporation
organised under its laws upon the value of
its outstanding capital stock, although the
corporation's property and bu*ines> are en
64 L. ed.
I tirely in another state. Cream of Wheat
I Co. V. Grand Forks County, 25Z U. S. 3^5,
40 Sup. Ct Rep. 558, 64:931
55. A state inay, consistently with due
process of law, impose an annual tax upon
the net income derived by nonresidents
from property owned by them within the
state, and from any business, trade, or pro-
fession carried on by them within its
borders. Shaffer v. Carter, 252 U. S. 37, 40
Sup. Ct. Rei). 221, (Annotated) 64:446
56. No violation of due process of law
results from the exercise of the state of
New York of its jurisdiction to tax incomes
of nonresidents arising from any business,
trade, profession, or occupation carried on
within its borders, and to enforce payment
so far as it can by the exercise of a just
control over persons and property within
the state, and by a garnislunent of credits
(of which the withholding provision of
such law is a practical equivalent).
Travis v. Yale & T. Mfg. Co. 252 U. S.
60, 40 Sup. Ct. Rep. 228, 64:460
57. A state may, without denying due
process of law, tax the income received by
a resident from securities held tor her ben-
efit by the trustee in a trust created and
administered by the law of another state,
and not directly taxable to the trustee.
Maguire v. Trefry, 253 U. S. 12, 40 Sup.
Ct. Rep. 417, (Annotated) 64:739
58. The facts that it required the per-
sonal skill and management of a nenresi
dent to bring his income from producing
property within the state to fruition, and
that his management was exerted from his
place of business in another state, did not,
by reason of the due process of law clause
of the Federal Constitution, deprive the
former state of jurisdiction to tax the in-
come which arose within Its own borders.
Shaffer v. Carter, 252 U. S. 37, 40 Sup.
Ct. Rep. 221, (Annotated) 64:446
59. A nonresident whose entire prop-
erty within the state consists of oil-produc-
ing land, oil and gas mining leaseholds,
and other property used in the production
of oil and gas, and whose entire net in-
come in the state was derived from his oil
operations, which he managed in that and
other states as one business, having pro-
ceeded, with notice of a law of the state
taxing incomes derived by nonresidents
from business carried on wiUiin its borders,
to manage the property and conduct the
business out of which arose the income
taxed under such law, cannot claim that
the state exceeded its power or authority
so as to deny due process of law by treat-
ing his property interests and his business
as a single entity, and enforcing payment
of the tax by thf imposition of a lien, to
be followed by execution or other appro-
priate process upon all the property em-
ployed by him within the state in the busi-
ness. Shaffer v. Carter, 252 U. S. 37, 40
Sup. Ct. Rep. 221, (Annotated) 64:446
60. The legislative determination as to
what lands within a local improvement dis-
trict will be benefited by an improvement
is conclusive upon the owners and the
67 1057
CONSTITUTIONAL LAW.
cotirts, and can be assailed, under U. S.
Const., 14th Amend., only where the legis-
lative action is arbitrary, wholly nnwar-
rantedy a flagrant abuse, and, by reason of
its arbitrary character, a confiscation of
particular property. Branson v. Bush, 251
U. S. 182, 40 Sup. Gt. Rep. 1}8, 64:816
61. The declaration by the legislature
that the real property of a railway com-
pany within a road improvement district
will be benefited by the construction of a
contemplated road improvement in such
district cannot be said to be so arbitrary,
capricious, or confiscatory as to invalidate,
under U. S. Const., 14th Amend., an assess-
ment for benefits against such real prop-
er^ of the railway company, where there is
evidence that the improved road, by mak-
ing more accessible a village terminus
where the railway company in question had
the only line, and by developing the ad-
jacent country, would increase the compa-
ny's business and would divert business
from a place where there was a competing
railroad, and that before the road was
completed a large gas-produdng district
was discovered not far from the improved
road which was tributary to it. Branson v.
Bush, 261 U. S. 182, 40 Sup. Ct Rep. 113,
64:816
Remedies and procedure.
62. A state may, consistently with due
process of law, abolish the defense of con-
tributory negligence. Chicago, R. I. & P.
R. Co. V. Cole, 251 U. S. 54, 40 Sup. Ct.
Rep. 68, 64:133
63. There is nothing in the 14th Amend-
ment to the Federal Constitution that de-
prives a state from providing in its Con-
stitution that the defense of contributory
negligence shall, in all cases whatsoever, be
a question of fact, and shall, at all times,
be left to the jury. Chicago, R. I. & P. R.
Co. V. Cole, 251 U. S. 64, 40 Sup. Ct. Rep.
68, 64:133
64. No Federal constitutional right is
violated because of the refusal to transfer
a cause from the division of the highest
court of the state which heard it to the
court in banc. Goldsmith v. George G.
Prendergast Constr. Co. 252 U. S. 12, 40
Sup. Ct. Rep. 273, 64:427
65. A decision of the Secretary of La-
bor denying the admission into the United
States of a Chinaman claiming American
citizenship was rendered without the fair
hearing which due process of law demands,
where the only form in which the recogni-
tion of the Chinese applicant by three
white witnesses called by him and exam-
ined in his presence by the government in-
spector was placed before the Secretary
was a letter Tniich the acting commissioner
of immigration, who did not himself ren-
der the decision, sent to applicant's counsel
and placed with the record, and where ap-
parently there was no record of such
recognition before the inunigration commis-
sioner when he decided the case. Kwock
Tan Fat v. White, 253 U. S. 454, 40 Sup,
Ct. Rep. 666, 64: 1010
66. Where the intended use of property
1058
taken by eminent domain is public, Ihs
necessity and expediency of the taking laaj
be determined by such agency and in sodt
mode as the state may designate, these be-
ing legislative questions, no matter who
may be charged with their decision, and a
hearing thereon is not essential to due
Srocess in the sense of the 14th Amendment
) the Federal Constitution. Bragg v.
Weaver, 251 U. S. 5?, 40 Sup. Ct. Rep. 62,
64:18S
67. It is essential to due process of law
that the mode of determining the compen-
sation to be paid for property taken by
eminent domam be such as to afford the
owner an opportunity to be heard. Bragg
V. Weaver, 251 U. S. 57, 40 Sup. Ct. Rep.
62, 64: m
68. A sufficient opportunity to be heard
respecting the compensation to be paid for
the taking, under legislative sanction, of
earth from land adjoining a highway, to
be used in repairing the road, is afforded
to the owner of sudi land, where the law
contemplates tiiat, in the absence of the
agreement,* the compensation is to be as-
sessed primarily by viewers, whose award
is to be examined by the supervisors and
approved or changed as to the latter may
appear reasonable, and that from the de-
cision of the supervisors an appeal may be
taken as of right to a court of general juris-
diction, in which the matter mav be heard
de novo, and where, under such law, the
proceedings looking to an assessment may
be initiated by the owner as well as l^
the road officers, either of whom may apply
to a justice for the appointment of viewers,
and where, although there is^ no express
provision for notice at the incepticm or
during the early stages of the proceediags.
the statute provides that the claimant, if
not present when the supervisors* decision
is made, shall be notified in writing and
shall have thirty days after such notiee
within which to appeal, and that, if he be
present when the decision is made, he is
regarded as receiving notice at that time,
the thirty days for taking the appeal be-
ginning to run at once. Bragg v. Weaver,
251 U. S. 57, 40 Sup. Ct. Rep. 62, 64:135
69. Where adequate provision is made
for the certain payment without imreaaon-
able delay of compensation for property
taken by eminent domain, the takmf^ does
not contravene due process of law in the
sense of U. S. Const., 14th Amend., merely
because it precedes the ascertainment of
what compensation is just. Bragg v.
Weaver, 251 U. S, 57, 40 Sup. Ct. Rep. 62.
64:135
70. The property rights, if any, of one
contracting with the stat^ for the construc-
tion of a waterway, cannot be said to kave
been taken without due process of law by
state legislation vacating a portion of bqA
waterway and vesting title thereto in a
municipal corporation, where there was ade-
quate provision in the state law for aa-
sured payment without unreasonable delay
of any compensation due sudi oontraetor
251, 252, 25S IT. 6.
CONSTITUTIONAL LAW.
on account of sueli taking. Hays ▼• Seat-
tle, 251 U. S. 233, 40 Sup. Ct. Rep. 125,
7L The hearing by a board of auper-
Tieors, sitting aa a bo*rd of equalisauon,
of all compUunta and objectiona reqiaoiing
aseessmenta for public improvement^
which was provided for by a city charter,
■atisfies the requirement of due proceea of
law, although such board apparently ia
given power only to make recommenda-
uona to the board of public worka tor re-
lief, where auch charter proviaion ia con-
strued by the state courta as not taking
away the legislative power and diaeretion
of the board of supervisors and vesting it
in the board of public worka, but as em-
powering the former board to paaa an
aasesaing ordinance charging property
with the cost of an improvement which,
aeoordin^ to its judgment, would be just
and equitable. Farncomb v. Denver, 252
U. a 7, 40 Sup. Ct. Rep. 271, 64: 494
IV. Police power.
Jndieial review of exercise of, see Coiurta,
5.
Police power of United States, see States,
1,2.
See also supra, 35, 36, 42, 46; infra, 78.
72. The police power of a state ex-
tends to requiring street railway com-
panies to sprinkle the surface of the
streets occupied by their railways be-
tween the rails and tracks, and for a suf-
ficient distance beyond the outer rafls so
as effectually to lay the dust and prevent
the same from arising when the cars are
in operation. Pacific Gas & Electric Co.
V. Police Cour^, 251 U. & 22, 40 Sup. Ct.
Rep. 79, 64: 118
V. Freedom of speech or press.
73. The freedom of speech and press
guaranteed by the Federal Constitution
was not violated by the provisions of the
Espionage Act of June 15, 1017, under
which convictions may be had for publish-
ing in the German language, dunng the
war with Germany, articles derisively con-
temptuous of the war activities of the
United States, and intended to convey the
idea that the war was not demanded by
the people, was the result of the madiina-
tions 01 the executive power, and which
in effect justified the German aggressions.
Schaefer v. United States, 251 U. S. 466,
40 Sup. Ct. Rep. 259, 64: 860
74. The Selective Service Act of May
18, 1917, and the Espionage Act of June
16, 1917. are constitutional. O'Connell v.
United States, 253 U. S. 142, 40 Sup. Ct.
Rep. 444, 64: 887
VI. Impairing contract obligations.
Federal question respecting, see Appeal
and Error, 9, 10, 22; Courts, 10.
See also supra, 46.
64 I/, ed.
75. The contract clause of the Federal
Constitution applies only to legialaticm
subsequent in tune to the contract i^l^JK^
to have been impaired. Monday v. Wia-
Qonain Trust Ca 252 U. & 499, 40 Sup.
OL Rep. 365, 64: 684
76. A statute that haa the effect of vio-
lating or repudiating an incompleted con-
tract previously made with the state does
not impair the obligation of a contract.
The obligation remains as before and
forms the measure of the contractor^
right to recover from the state the dam-
ages sustained. Hays v. Seattle, 251 U.
S. 233, 40 Sup. a. Rep. 125, 64: 848
77. A common carrier cannot, by mak-
ing contracts for future transportation or
business, noKHrtgaging its property, or pledg-
ing its income, prevent or postpone the
exertion by a state of the power to reg-
late the carriar'a rates and practices, nor
does the contract clause of the Federal
Ooitttitution interpose any obstacle to the
exertion of such power. Producers Tranap.
Co. V. Railroad Oommissi<m, 251 U. S. 228,
40 Sup. Ct. Ri^. 131, 64: 889
78. The obligation of the contract right
which a street railway company has under
its franchises to operate its railway in the
streets of a municipality is not impaired
by .an ordinance enacted in the exercise of
the police power, requiring the street rail-
way eompany to sprinkle the surface of
the streets occupied by its railway be-
tween the rails and tracks, and for a suf-
ficient distance beyond the outer rails, so
as effectually to lay the dust and prevent
the same from arising when the cars are
in operation. Pacific Gas & Electric Co. v.
Police Court, 251 U. IS. 22, 40 Sup. Ct.
Rep. 79, 64: 118
79. The terms and conditions in a street
railway franchise which require the street
railway company under certain conditions
to pave or pay for paving certain portions,
of occupied streets do not amount to a con-
tract which prevents, on constitutional
grounds, the imposition by the municipal-
ity upon a central strip in the highway
owned in fee by the street railway com-
Sany of its fair share, according to bene-
ts, of the expense of paving such street.
Oklahoma R. Co. v. Sevems Paving Co. 251
U. S. 104, 40 Sup. Ct. Rep. 78, 64: 168
80. A municipal ordinance requiring a
street railway company to bear the cost of
paving with asphalt upon a concrete foun-
dation, like the rest of a newly paved
street, that part of such street whicn lies
between the tracks and for a distance of 1
foot ouside, does not, although thereto-
fore the street had been paved from curb
to curb with macadam, impair the obliga-
tion of the street railway eompanv's fran-
chise contract under which its duty ex-
tends to keeping "in good repair the road-
way between the rails and for 1 foot on
the outride of each rail as laid, and the
space between the two inside rails of its
^uble tracks with the same material as
the city shall have last used to pave or re-
pave the^e spaces and the street previous
105»
C0X6TRLCTI0X— COPYRIGHT.
to such repairs," unless the railwav com-
panj and the city shall agree upon some
other materiaL Milwaukee Electric R. &
Light Go. y. Wisconsin ex rel. Milwaukee,
252 U. 8. 100, 40 Sup. Ct. Rep. 306, 64: 476
81. The obligation of a municipal elec-
tric light and power franchise covering
public and private uses, granted when the
applicable statute then in force gave the
municipality a qualified control over the
erection of electric light and power appli-
ances in the streets, was not impairea by
subsequent legislation givin? the munic-
ipality exclusive control, under which the
light and power company, having removed
and dismantled its street lighting system
upon the expiration of a street lighting
contract, may be restrained from erecting
any poles or wires in the street until the
consent of the municipality shall have
been obtained, without prejudice to the
company's right to maintain, repair, or re-
place such poles and wires as it is then
using for commercial lighting. Hardin-
Wyandot Lighting Co. v. Upper Sandusky,
261 U. S. 173, 40 Sup. Ot. Rep. 104, 64: 810
82. A foreign corporation doing busi-
ness within the state and elsewhere has no
just ground of complaint against a state
income tax, in the absence of any con-
tract limiting the state's power of regula-
tion, by reason of being required to adjust
its system of accounting and paying sal-
aries and wages to the extent required to
fulfil the duty of deducting and withhold-
ing the tax from that part of the salaries
and wages of its nonresident employees
which was earned by them within the
state, although the corporation asserts
that the statute impairs the obligation of
contracts between it and its employees,
there being no averment, however, that
Any such contract, made before the pas-
sage of the statute, required the wages or
salaries to be paid in the state of incor-
poration, where it has its principal place
of business, or contained other provisions
•H &ny wise conflicting with the withhold-
ing requirement. Travis v. Yale &> T. Mfg.
Co. 252 U. S. 60, 40 Sup. Ct. Rep. 228,
64:460
CONSTRUCTION .
Of statute, see Statutes.
CONTINGENT INTEREST.
Federal estate tax on, see Internal
Revenue, 18-20.
CONTRACTS.
Rescission as affecting liability of
bank director for excessive loan,
see Banks, 12. -
Limiting liability for negligence, see
Carriers, 2-4.
Impairing contract obligations, see
Constitutional Law, VI.
Combinations in restraint of trade or
commerce, see Monopoly.
Charter party, see Shipping, 1, 2.
1060
Sale or option.
A positive undertaking of the owa*
era of mining stock to sell,, and of the pur-
chasers to buy, upon terms named, is not
converted into an option to purchase, ter-
minable at the will of the purchaaers upon
their failure to make the required pay-
ments, merely because the agreement fur-
ther provides that the stock is to be de-
posited in a bank in escrow, to be delivered
to the purchasers when the final payment
agreed upon is made, and stipulates that,
in the event of default in payment, the
bank is authorized to deliver the stock to
the sellers, all prior payments to be for-
feited, and the rights of eadi of the parties
to cease and determine, since this forfeiture
provision is for the benefit of the sellers,
and may be insisted upon or waived, at
their election. Western U. Teleg. Co. ▼.
Brown, 263 U. S. 101, 40 Sup. Ct. Rep.
460, 64: 808
CONTRIRUTORY NEGLIGENCE.
Abolishing common-law defense of
contributory negligence as deny-
ing due process of law, see C<tt-
stitutional Law, 62.
Making contributory negligence a
Question for the jury as denying
ue process of law, see Constitu-
tional Law, 63.
COPYRIGHT.
Copyright practice and procedure, see
Rules of Courts.
Injunction against infringement of,
see Injunction, 5.
See also Patents, 6.
1. The five years* limitation in a fcrant
by a playwright of the sole* and exclusive
license and liberty to produce, perform, and
represent a copyrighted play within the
territorial limits stated, subject ' to the
other terms and copditions of the contract,
one of which bound the licensee to produce
the play for at leaat seventy-five perform-
ances in each ensuing theatrical season for
five years, and another provided for a for-
feiture in case the play should not have
been produced for the stipulated number
of performances in any one theatrical year,
limits all the rights and obligations of
both parties to the contract, — ^the license
to produce as well as the licensee's obliga-
tion to perform. Manners v. Morosco, 252
U. S. 317, 40 Sup. Ct. Rep. 335,
(Annotated) 64: 590
2. The right to represent a copyrighted
play in moving pictures cannot be deemed
to have been embraced in a grant by a
playwright of the sole and exclusive Ucenae
and liberty to produce, perform, and repre-
sent the play within the territorial limits
stated, subject to the other terms and eon-
ditions of the contract, under which the
play is to be continued for seventy-five
performances for each ensuing theatrical
season for five years, the royalties provided
for are adapted only to 'regular stage pres-
entation, and the play is to be presented
951, 952, 258 U. 6.
tX)RPORATI0NS— CX)URT8.
bk first-dasB theaters with a ' competent
company, and with a designated actress in
the title role, there bein^ stipulations
against alterations, eliminations, or addi-
tions, and that the rehearsals and produc-
tion of the play shall be under the direc-
tion of the author, and a further provi-
sion that the play may be released for
stock if it fails in ^ew York tity and on
the road, or in case the net profits fall be-
low a stipulated amount. Manners ▼.
Morosco, 252 U. S. 317, 40 Sup. Ct. Rep.
835, (Annotated) M: 590
3. There is implied a negative covenant
OB the part of the lessor of the right to
use a copyright not to use the ungranted
portion of the copyright estate to the
detriment, if not destruction, of the li-
censee's estate. Manners v. Morosco, 252
U. S. 317, 40 Sup. Ct. Hep. 335,
(Annotated) M: 690
CORPORATIONS.
Matters as to banks, see Banks.
Transportation corporations, see Car-
riers.
Interstate business of corporation, see
Commerce.
Taxation of foreign corporation as af-
fecting interstate commerce, see
Commerce, 9, 10.
Discrimination against^ see Constitu-
tional Law, 15, 18, 19.
Discrimination against corporation in
taxation, see Constitutional Law,
18, 19, 27.
Regulation of conveyance to foreign
corporation as denying due process
of law, see Constitutional Law, 34.
Due process of law in taxation of,
see Constitutional Law, 54.
Income tax on foreign corporation as
impairing contract obligations, ase
Constitutional Law, 82.
Income tax on stock dividends, see In-
temal Revenue, 8, 9.
Federal corporation excise tax, see
Internal Revenue, 10-17.
.Federal income taxation of, see Inter-
nal Revenue, 11-17.
Illegal combinations in restraint of
trade or commerce, see Monopoly.
Municipal corporations, see Municipal
Corporations.
Compulsory production of corporate
papers, see Search and Seizure.
Service of process on foreign corpora-
tions, see Writ and Process.
OfHcers.
Liability of ofBcers of national bank,
see Banks, 2-12.
1. A transfer between two corporations
having identity of stock ownership and
directorates, which transfer was fraudulent
as to the transferee corporation, could be
annulled by a dummy board of directors
chosen by, and acting for« the controlling
stoekholders for this very purpose, though
such a change in personnel was unnecessary,
as similar action by boards having identical
OMmbership would have had the same effect,
64 li. ed.
if done by tbe express authority of the
stockholders. Corsicana Nat. Bank v. John-
son, 251 U. 8, 68, 40 Sup. Ct. Rep. 82,
64: 141
2. In considering the practical effect of
intercorporate dealings, especially as bear-
ing upon the duties of common directors
and the authority of stockholders to con-
trol them, identity of stock ownership ought
not to be overlooked. Corsicana Nat. Bank
V. Johnson, 251 U. S. 68, 40 Sup. Ct. Rep.
82, 64: 141
Corporate powers.
Of national bank, see Banks, 1.
3. A national bank and a loan company
organized under state law must, notwith-
standing identity of stock ownership and
close affiliation in management, be regarded
for some purposes as separate corporations;
for instance, as being capable in law of
contracting with each otheY. Corsicana
Nat. Bank v. Johnson, 251 U. S. 68, 40 Sup.
Ct. Rep. 82, 64: 141
COSTS AND FEES.
While the compensation of auditor
and stenographer, in a reference of an ac-
tion at law involving complicated issues of
fact to such auditor to simplify and clarify
the issues and make tentative findings of
fact, may be taxed as costs, in the absence
of any statute. Federal or state, or rule of
court to the contrary, such costs must, in
view of U. S. Rev. Stat. § 983, be taxed
to the prevailing party, and may not be
taxed in whole or in part against the pre-
vailing party, in the discretion of the trial
court. Re Peterson, 253 U. S. 300, 40 Sup.
Ct Rep. 543, 64: 919
COURT OF CLAIMS.
Scope of review on appeal from} see
• Appeal and Error, 32, 33. i
Jurisdiction of, see Claims.
COURT RULES.
See Rules of Courts.
COURTS.
Jurisdiction of courts of admiralty,
see Admiralty.
Appellate jurisdiction, see Appeal and
Error.
Following decision of state courts on
appeal, see Appeal and Error,
23-26.
Jurisdiction of bankruptcy proceedings,
see Bankruptcy.
Jurisdiction on certiorari, see Certio-
rari.
Jurisdiction of court of claims, see
Claims^
Clerk of court, see Clerks.
Inconsistent judicial decision as de-
nial of equal protection of the
laws, see Constitutional Law, 13.'
Jurisdiction of courts of equity, see
Equily.
Judicial notice by, see Evidence, 1, 2.
Jurisdiction of injunction cases, see
Injunction.
As to judges, see Judges.
1661
COURTS.
Mandamus to, see Mandamus.
Power of Federal court to appoint au-
ditor, see Reference.
Rules of, see Rules of Courts.
Jurisdiction of suit against state, tee
States, 4.
Supreme Court of the United States,
see Supreme Court of the United'
States.
Respective provinces of court and jury,
see Trial.
Suit by Federal officer, see United
States, 6.
Immimity of United States from suit,
see United States, 6.
Relation to other departments of gov-
ernment.
Withholding judicial review of rate
regulation as denying due process
of law, see Constitutional Law,, 45.
Judicial review of decision of Inter-
state Commerce Commission, see
Interstate Commerce Commission,
2-4.
Judicial review of action of Land De-
partment, see Public Lands, 7.
Following executive construction of
statute, see Statutes, 4.
1. The Federal Supreme Court may i<ot,
in passing upon the validity of a Federal
statute, inquire into the motives of Con-
gress, nor ma^ it inquire into the wisdom
of the legislation, nor may it pass upon the
necessity for the exercise of a power pos-
sessed. Hamilton v. Kentucky Distilleries
& Warehouse Co. 251 U. S. 146, 40 Sup. Ct.
Rep. 106, 64: 194
2. It requires a clear case to justify
a court in declaring that a Federal statute
adopted to increase war efficiency has ceased
to D€ valid, on the theory that the war
emergency has passed and that the power
of Congress no longer continues. iTamilton
T. Kentucky Distilleries & Warehouse Co.
*^51 U. S. 146, 40 Sup. Ct. Rep. 106, 64: 194
3. Judicial interference with state tax
legislation, the purpose of which has been
declared by the people of the state, the
legislature, and the highest state court to
be of a public nature and within the tax-
ing power of the state, cannot be justified
unless it is clear beyond reasonable contrO'
versy that rights secured by the Federal
Constitution have been violated. Green v.
Frazier, 253 U. S. 233, 40 Sup. Ct. Rep. 499,
64:878
4. When the constituted authority of
the state undertakes to exert the taxing
power, and the validity of its action is
brought before the Federal Supreme Court,
every presumption in its favor is indulged,
and only clear and demonstrated usurpa-
tion of power will authorize judicial inter-
ference with legislative action. Green v.
Frazier, 253 U. S. 233, 40 Sup. Ct. Rep.
499, 64: 878
5. Every intendment is to be made in
favor of the lawfulness of the exercise of
municipal power in making regulations to
promote the publio health and safety, and
it is not the province of the courts, except
1662
in clear cikses, to interfere with the exer-
cise of the power reposed by law in munic-
ipal corporations for the protection of local
rights and the health and welfare of the
people in the community. Sullivan v.
Shreveport, 251 U. S. 169, 40 Sup. Ct. Rep.
102, 64: 905
Insular courts.
6. Jurisdiction of the Federal district
court for Porto Rico of a suit to which an
alien domiciled in Porto Rico is a party is
denied by the provision of the Act of March
2, 1917, § 41, which ^ives said court jurb-
diction of controversies ''where all of the
parties on either side of the controversy
are citizens or subjects of a foreign atate
or states, or citizens of a state, territorj,
or district of the United States not domi-
ciled in Porto Rico.'* The restriction •f
jurisdiction to 4sases where all the parties
on either side of the controversy are ''iiet
domiciled in Porto Rico" applies to aliens
as well as to American citizens. Porto Rico
R. Light & P. Co. V. Mor, 253 U. S. 345,
40 Sup. Ct. Rep. 516, 64: 944
District of Colombia courts.
7. Treasury officials joined with a non
resident claimant as defendants in a suit to
establish an -equitable lien for attorney's
fees upon a fund in the United States
Treasury appropriated by Congress to pay
claimant, conformably to a finding of thie
court of claims, may not successfully chal-
lenge the jurisdiction of the District of
Columbia courts on the ground that debts
due from the United States have no situs
in the District, where claimant voluntarily
appeared and answered the bill without ob-
jection, since the decree will bind her, and
constitute a good acquittance to the gov-
ernment. Houston V. Ormes, 252 U. S. 469,
40 Sup. Ct. Rep. 369, M: 669
Jurisdiction based on nature of case.
Sufficiency of jurisdictional averment,
see Pleading 3, 4.
8. Jurisdiction over a subject- ma ttct
limited by Federal law, for which recovery
can be had only in the Federal courts, at-
taches only when the suit presents a sub'
stantial claim under an act of Congress.
Blumenstoek Bros. Advertising Agency t.
Curtis Pub. Co. 252 U. S. 436, 40 Sup. Ct.
Rep. 385, ii: 649
9. The merely incidental relation to
interstate commerce of transactions con-
cerning advertising in periodicals which are
to be circulated and distributed throughout
the United States will not support the Fed-
eral jurisdiction of a suit brought under
the provisions of the Sherman Anti-trust
Act of July 2, 1890, § 7, creating a cause
of action in favor of any person to recover
by suit in any Federal district court in the
district in which the defendant resides or
is found threefold damages for injury tp
his business or property by reason of any-
thing forbidden and declared unlawful m
the act, on the theory that defendant's con-
duct in respect to such matters is forbid-
den by that act as a monopoly or attempted
monopoly of interstate commerce. Mumen-
stock Bros. Advertising Agen^ ▼. Curtis
251, 252, 999 V. 6.
COUKTS-MARllAir-CRIMINAL LAW.
Pub. Co. 252 U. 8. 436, 40 Sup. Ct. Kep.
10. The contention that a hydroelectric
company, incorporated under the general
lawa of a state, which has adoptc^l a reso-
lution designating certain parcels of land
as appropriated and necessary to carry out
the corporate purpose, had acquired rights
before appropriation was completed, as pro-
vided by the state condemnation laws, of
which it was unconstitutionally deprived by
the use of the designated parcels by other
public utility companies, — is too unsub-
stantial to serre as the basis of Federal ju-
risdiction where, independently of the in-
corporation and resolution, the company
had no rights or property to be taken, and
there was no state legislative or other
action against any charter rights which
such corporation possessed. Wluitever con-
troversies or causes of action the corpora-
tion had were against other companies as
rivals in eminent domain, or as owners of
the land, over which a Federal court has
no Jurisdioticm, diversity of citizenship not
existing. Cuyahoga River Power Go. ▼.
Northern Ohio Traction & Light Co. 252 U.
S. 388, 40 Sup. a. Rep. 404, 64: 626
Amount in controversy.
11. After final judgment entered by a
Federal district court and affirmed by a cir-
cuit court of appeals, the trial court's juris-
diction will not ordinarily be denied on the
theory that the requisite jurisdictional
amount was not involved, where the action
was in tort, the alleged damages exceeded
the prescribed amount, the declaration dis-
closes nothing rendering such a recovery
impossible, and no bad faith appears. Ches-
ttrough V. Northern Trust Co. 262 U. S. 83,
40 Sup. Ct. Rep. 237, 64: 470
ISfT The amount in controversy in a suit
in a Federal district court by taixpayers to
enjoin, on constitutional grounds, the pay-
ment of public funds out of the state treas-
ury, and the issuing of state bonds, must
equal the jurisdictional amount as to each
complainant. Scott v. Frazier, 253 U. S.
248, 40 Sup. Ct. Rep. 503, 64: 883
Proper district for snit.
Removal to other Federal district for
trial, see Criminal Law, 4-7.
18. A suit by a national bank to enjoin
the Comptroller of the Currency from doing
certain things under color of his office, de-
dared to be threatened, unlawful, arbitrary,
and oppressive, is one brought under the
National Banking Law, within the true in-
tendment of the provisions of the Judicial
Oode, §§ 24 and 49, which restrict suits,
inrought by national banking associations to
enjoin the Comptroller under such law, to
the district in which the bank' is located,
aad such restriction operates pro tanto to
diaplaoe the general provisions of § 51,
respecting the proper district for suits, and
auuiorises service of process upon the
Oompfooller wherever found. First Nat.
Bank v. Williams, 252 U. S. 504, 40 Sup.
Ct Bep. 372, 64: 690
Faderal practice.
14. A state rule of law which forbids
64 L. ed.
a district attorney, without first obtaining
leave of court, to present to one grand jury
charges which a previous grand jury has
ignored, can have no application by virtue
of U. S. Rev. Stat. § 7^, to a prosecution
in the Federal courts for a crime against
the United States, committed within such
state, in view of the existence of a con-
trolling Federal rule which would be over-
thrown by applying the state rule. United
States y. Thompson, 251 U. S. 407, 40 Sup.
Ct. Rep. 230, (Annotated) 64: 833
COURTS-MARTIAL.
Exclusive jurisdiction of military tribu-
nal, see War, 13.
COVBNANTS AND CONDITIONS.
Implied covenant of copyright licensor,
see Copyright.
Injunction against enforcement of cove-
nant, see Injunction, 6.
CRIMINAL LAW.
Appellate review by government in
criminal case, see Appeal and Er-
ror, I. b.
Discretion of trial judge as to venue
and jury, see Appeal and Error,
37.
Validity of sentence under good count
in indictment, see AppeU and Er-
ror, 43.
Prejudicial error in instruction in -crim-
inal prosecution under Espionage
Act, see Appeal and Error, 46.
Harmless error in refusing challenge
of juror for cause, see Appeal and
Error, 47, 48.
Sufficiency of verdict, see Appeal and
Error, 50.
Arrest without warrant, see Arrest.
Matters as to bail, see Bail.
Criminal conspiracy, see Conspiracy.
Following state practice forbidding
second presentation of charge to
grand jury, see Courts, 14.
District attorney, see District Attor-
ney.
Sufficiency of evidence to support con-
viction, see Evidence, 12, 13.
Matters as to grand jury, see Grand
Jury.
Matters as to indictment, see Indict-
ment and Information.
Right to jury trial in criminal case,
see Jury, 2.
Unreasonable searches and seizure, see
Search and Seizure.
Criminal statute not extended by ex-
ecutive construction, see Statutes,
4.
Sufficiency of evidence in criminal
prosecution as question for jury,
see Trial, 2-4.
Various particular crimes, see Homi-
cide; War.
1. Whether the statements contained in
a pamphlet, the distribution of which is
charged to amount to a violation of the
Espionage Act of June 15, 1917. had h
1668
CRIMINATION OF SELF— DAMAGES.
natural tendency to produce the forbidden
consequences as alleged, was a question to
be delennined, not upon demurrer, but by
the jury at the trial. Pierce v. United
States, 262 U. S. 239, 40 Sup. Ct. Rep.
205, M: 042
Former Jeopardy.
2. A person found guilty of murder in
the first degree by a verdict which, conform-
ably to the Criminal Code, ^ 330, mitigates
the punishment to life imprisonment, is not
placed twice in jeopardy by an tmquali-
fied conviction for first-degree murder car-
rying the death penalty in a new trial had
after the earlier conviction was reversed up-
on a writ of error sued out by the accused.
Stroud v. United States, 261 U. S. 16, 40
Sup. Ct. Rep. 60, M: 103
Self -crimination .
8. The use in evidence in a criminal
case of letters voluntarily written by the
accused after the crime, while he was in
prison, and which came into the possession
of the prison officials under established
Sractice reasonably demanded to promote
iscipline, did not infringe the constitution-
al safeguards against self-incrimination or
unreasonable searches and seizures. Stroud
V. United States, 251 U. 8. 16, 40 Sup. Ct.
Rep. 60, 64: 103
Removal to other Federal district for
trial.
Arrest without warrant, see Arrest.
Habeas corpus in proceedings for re-
moval, see Habeas Corpus, 1.
4. The introduction in evidence of the
indictment, together with the admission
of the accused that he is the person named
therein, establishes a prima facie case, in
the absence of other evidence, for the re-
moviri of the accused to the district in
which the indictment was returned. Gayon
V. McCarthy, 262 U. S. 171, 40 Sup. Ct.
Rep. 244, 64: 513
6. Substantial evidence before the
United States commissioner and the court,
tending to show that a penal statute of
the United States had b^n violated, and
that there was probable cause for believ-
ing the accused guilty of conspiracy to
compass that violation within the district
in which the indictment charging such con-
spiracy was returned, justifies an order for
the removal of the accused to that district.
Gayon v. McCarthy, 262 U. S. 171, 40 Sup.
Ct. Rep. 244, 64: 513
6. The pendency of a habeas corpus
proceeding raising the question of the legal-
ity of an arrest and detention to await
preceedings for the removal to another Fed-
eral district of a person there charged with
an offense against the United States did
not deprive a United States commissioner of
jurisdiction to entertain a subsequent appli-
cation for the arrest of the accused on an
affidavit of complaint settinff forth the same
offenses charged in the indictment. Stall-
ings V. Splain, 253 U. S.' 339, 40 Sup. Ct.
Rep. 537, 64: 940
7. Any reasonable doubt as to the va-
lidity of an indictment charging the com-
mission of an offense against the United
1664
States is to be resolved, not by the
mitting magistrate in another Federal dis-
trict, but by the court which found the
indictment after the accused had been re-
moved to that district for triaL Stall-
ingB V. Splain, 263 U. 8. 339, 40 6np. Ct.
Rep. 537, 64: M6
CRIMINATION OP SEIjF.
See Criminal Law, 3.
CUMMINS AMENDMENT.
See Carriers, 4.
CUSTOMS DUTIES.
See Duties.
DABIAGES.
State regulation penalizing delay la
delivery of interstate telegnLiii, sat
Commerce, 4.
Limitation of liability in chart«r party,
see Shipping, 2.
1. The compensation recoverable in ike
court of claims for the taking by the goT-
emment of private property in Alaska for
a public use is the value of the pn^rty
as of the date of the taking. It cuiaoi in-
clude any amount for use and oconpati<»
between the time of the taking and the en-
try of judgment, where, except for an .al-
legation in the petition that the United
States is indebted in a specified amount for
use and occupation, there was no request
in the court of claims of any kind in re-
spect to such allowance, and that court
md not mention the subject in its opinion,
and it is not referred to in the application
for an appeal, since, if it is interest that
the owner seeks, its allowance is forbidden
by the Judicial Code, § 177, and, if it'U not
interest, the facts found fail to supply tkir
basis on which any claim in addition to
that for the value of the propertT shoald
rest. United States v. North Amerieaa
Transp. & Trading Co. 263 U. a 830, 40
Sup. Ct. Rep. 518, 64: 686
2. The entire sum loaned, plus interest
and less salvage, should be treated ae tbe
damages sustained by a national bank
through a director's knowing pi^cipatioa
in or assent to an excessive loan, contrary
to U. S. Rev. Stat. §§ 5200 and 5239, and
not merely the excess above what lawfoUy
might have been loaned, where the oitire
excess loan formed but a single transaction.
Corsicana Nat. Bank v. Johnson, 251 U. 8.
68, 40 Sup. Ct. Rep. 82,
(AnnoUted) 64: 141
For death or personal injury.
3. Damages for physical pain could be
allowed in a personal- injury action by the
district court of the Canal Zone, irreapae
tive of whether the law of the Repnbllr
of Panama, the lex loci, or that ^ tlM
Canal Zone, the lex fori, controla. Paa*
ama R. Co. v. Toppin, 252 U. 8. 308, 46
Sup. Ct. Rep. 310, 64: Stt
4. Shame and humiliation beeauae of
disfigurement may be an element in the
recovery of damages for the injury. Brie
251, 252, 958 V. 8.
DAXGEROIS PREMISES— DIVERSE CITIZENSHIP.
R. Co. ?. Collins, 253 U. S. 17, 40 Sup. Ct.
Rep. 450, 64: 790
OANGEROUS PREMISES.
See Negligence^ 1-3.
DEBTOR AND CREDITOR.
Insolvency of debtor, see Bankruptcy.
DBdiARATIONS.
Evidence of, see Evidence, 9.
See also Pleading.
t>BCREE.
See Judges.
DEEDS.
Regulation of conveyance to foreign
corporation, as denying due proc-
ess of law, see Constitutional
Law, 34.
Validity of unstamped deed, see In-
ternal Revenue, 22.
DEFENSE*
Burden of proving, see Evidence, 6.
DEGREES.
Of homicide, see Homicide.
DEMAND.
For wages, see Seamen.
DEMURRAGE.
See Carriers, 1.
DEMURREai.
Dstermination of sufficiency of indict-
ment on demurrer, see Criminal
Law, 1.
•OlIPORTATION.
Of alien, see Aliens.
DEPOSITIONS.
1. The objection that the deposition of
^. party could not be taken, if valid at all,
ft not fairly open where there is no attempt
to fish for imormation, and an agreement
WM made that "time notice and copy are
hereby waived,*' and that "the officer may
proceed to take and return the depositions
of the witness on the original direct and
cross interrogatories, but commission is
not waived." Birge-Forbfes Oo. v. Heye,
251 U. S. 317, 40 SuD. Ct. Rep. 160, 64: 986
2. Depositions of foreign witnesses are
not inadmissible because the mode of re-
turn did not follow strictly the state stai*
ate, in that the officer to whom the com-
miMion was directed did not put the depo-
sitions into the mail and certffy on the en-
velop that he had done so, where the course
was impossible, owing to war, and the
officer did transmit the depositions in the
only practicable way, giving them to an
American consul, and £iving them trans-
mitted to the Department of State, and
then throu^ the mail to the clerk of
court, — the integrity of the depositions not
•4 li. ed.
being questioned. Birge-Forbes Co. v.
Heye, 251 U. S. 317, 40 Sup. Ct Rep. 160,
64:986
DIRECTORS.
Liability of director in national bank,
see Banks.
Of corporations, see Corporations.
DISCLAIMER.
Of descriptive words in trademark, see
Trademark, 2.
DISCOUNT.
l/sury in discount by national bank,
see Usury, 2.
DISCOVERT.
As to depositions, see Depositions.
Of mining claim, see Mines, 1-3.
DISCRIMINATION.
Unconstitutionality of, .see Constitu-
tional Law, n.
DISFIGUREMENT.
Damages for, see Damages, 4.
DISMISSAL AND DISCONTINUANCB.
Reversal for dismissal of moot case
see Appeal and Error, 29.
Remanding cause for dismissal, see
Appeal and Error, 56-59.
DISTRICT ATTORNEY.
Following state practice forbidding
seoond presentation of charge to
grand jury, see Courts, 14.
1. A Federal district attorney may,
without first obtaining leave of court, pre-
sent to one grand jury charges whicn a
previous grand jury has ignored. United
States V. Thompson, 261 U. S. 407, 40 Sup.
Ct. Rep. 289, (Annotated) 64: 333
2. The United States district attorney,
in virtue of his official duty, and to the
extent that criminal charges are suscepti-
ble of being preferred' by information, has
the power to present such informations
without the previous approval of the court,
and his duty to direct the attention of the
grand jury to crimes which he thinks have
been committed is coterminous with the
authority of the grand jury to entertain
such charges. United States v. Thompson,
251 U. S. 407, 40 Sup. Ct. Rep. 289,
(Annotated) 64: 333
DISTRICT COURTS.
Appellate jurisdiction of Supreme
Court over, see Appeal and Error,
n. a.
DISTRICT OF COLUMBIA.
Jurisdiction of courts of, see Courts, 7.
DISTRICTS.
Of Federal courts, see Courts, 13.
DIVERSE CITIZENSHIP.
As affecting jurisdiction, see Courts, 6.
t06S
DIVIDENDS— EQUITY.
DIVIDENDS.
Income tax on stock dividends, see In-
ternal Revenue, 8, 9.
Itsduding dividends from gross in-
come of insurance company for
tax purposes, see Internal Reve-
nue, 16, 17.
DOOUBCENTART EVIDENCE.
See Evidence, 6, 7.
DOMESTIC RELATIONS.
See Master and Servant.
DOUBIiE TAXATION.
See Constitutional Law, 51-63.
DRAINS AND SEWERS.
Constitutionality of sewer assessment,
see Constitutional Law, 20.
DRAWBACK.
Of customs duties, see Duties.
DUE PROCESS OF LAW.
See Constitutional Law, IH.
DUTIES.
Df«wliack.
The Federal Supreme Court will fol-
low the long-standing rulinff of the Treas-
ury Department under which the drawback
provided for by the Aet of August 27, 1894,
§ 22, upon the exportation of articles
manufactured from imiK>rted dutiable ma-
terials, to be "equal in amount to the
duties paid on the materials used," less 1
per cent, is computed, where linseed oil
and oil cake have both been manufactured
from imported linseed paying a specific
duty and the oil cake has been exported,
upon the basis of the value of the two
products, and not in proportion to their
respective weights. National Lead Co. v.
United SUtes, 252 U. S. 140, 40 Sup. Ct.
Rep. 237, 64: 496
EIGHT-HOUR LAW.
See Master and Servant, 1.
EJECTMENT.
Waiver of defect of pleading in, see
Pleading, 1.
ELECTION.
Of purchaser, see Contracts.
ELECTION OF REMEDIES.
Effect of remedv at law on jurisdic-
tion of equity, see Equity.
Bar of former judgment, see Judg-
ment, 2-4.
ELECTRIC LIGHTS AND POWER.
Municipal displacement of private
lifting plant as denying due
process of law, see Constitutional
Law, 35.
Validity of municipal regulation of
electric light company, see Con-
stitutional Law, 46.
Municipal regulation as impairing con-
tract obligations, see Constitu-
tional Law, 81.
Municipal construction of street light-
ing system, see Municipal Corpo-
rations, L *
Municipal rate regulation, see Munic-
ipal Corporations, 2.
An exclusive grant of the right to
use the streets of a town for the distribu-
tion of electric current mav not be deduced
from the declaration in the paragraph of
the franchise ordinance relating to the
trimming of trees that the town warrants
that it will, by its proper authorities, pro-
vide for the full and free use of ite streets,
lanes, etc. Piedmont Power A Light C6. t.
Graham, 253 U. S. 193, 40 Sup. Ot. Rep.
453, 64: 8&
EMBEZZLEMENT.
Sufficiency of indictment for, see In-
dictment and Information, 2.
EMINENT DOMAIN.
Taking private property without com-
pensation as denying due proeeaa
of law, see Constitutional Law,
35-38, 47.
State taxation for public use, see Co«-
stitutional Law, 50.
Notice and hearing in eminent domain
proceedings, see O>n8tituti0Dal
Law, 66-70.
Compensation for property taken by
United States, see Dkmages, 1.
Limitation of actions in suit agaiBst
United States to recover compen-
sation for takinff property, ■••
Limitation of Actions, 2.
Implied contract of United States to
make compensation for taking
private property, see United
States, 7, 8.
EMPLOYERS.
Rights, duties, and liabilities of, gen-
erally, see Master and Servant.
EMPLOYERS* LIABILITY ACT.
See Master and Servant.
EQUAL PRIVILEGES.
See Constitutional Law, IL
EQUAL PROTECTION OF
LAWS.
See Constitutional Law, IL
EQUITY.
Matters as to injunction, see I^jnne-
tlon.
Pleadings in, see Pleading.
Equity rul^, see Rules of Courts.
Mnlttpllclty of snlts.
Injunction against illegal tax, see In-
junction, 4.
1*. Equitable jurisdiction of a suit
which presents one ground for equitable
relief, with no adequate remedy at law, ex-
tends to the disposition of all the queii>
861, 262, 25S 17. ^
ERROR— EVIDENCE.
tions raited by the bill, since a court of
e^ty does Bot do justice by halves, and
will prevent, if possible, a multiplicity of
suits. Shaffer v. Carter, 252 U. S. 37, 40
Sup. Ct Rep. 221, M: 445
Doing complete Justice.
See also supra, 1.
2. Jurisdiction of a Federal district
court of a suit to enjoin, on constitutional
grounds, the enforcement of rate-fixing or-
ders made by a state Commission, should
be retained for the purpose of making the
equitable relief as full and complete as the
circumstances of the case and the nature
of the case and the nature of the proofs
may require, although, since the suit was
commenced, the state legislature has pro-
vided a direct judicial review of such or-
ders theretofore only possible in contempt
proceedings, and then only at the risk of
severe penalties if unsuccessful, and such
suits shopld therefore proceed for the pur-
pose of determining whether the maximum
rates fixed by the Commission are, under
the present conditions, confiscatory, and if
foui^ to be so injunction should issue to
restrain their enforcement; if found not to
be confiscatory, injunction should issue to
restrain the enforcement of penalties ac-
crued pendente lite, provided that it also
be found that plaintiff had reasonable
ground to contest the rates as being con-
Iscatory. Oklahoma Operating (>>. v.
Love, 252 U. S. 331, 40 Sup. Ct Rep. 338,
o4: 596
Oklahoma Gin Co. v. Oklahoma, 252 U« S.
339, 40 Sup. Ct. Rep. 341, 64: 600
Remedy mt law.
Remedy jtt law as bar to injunction
against Illegal tax, see Injunc-
tion, 2-4.
Recovery in equity as bar to recovery
at law, see Judgment, 4.
8. Statutes which may furnish an ade-
ijiaie legal remedy against taxes assessed
under an uneonstitutional law do not bar
resort to equity by a taxpayer who avers
that ilie tax lien asserted by virtue of the
levy and tax warrant, itself attacked on
eonstitutional grounds, creates a cloud on
title, where there appears to be no legal
remedy for the removal of a doud on title
cast by an invalid lien imposed for a tax
valid in itself. Shaffer v. Carter, 262 U.
& 37, 40 Sup. Ct. Rep. 221, 64: 445
BKROR.
See Appeal and Error,
ESPIONAGE ACT.
Conspiracy to violate, see Conspiracy,
1-3.
Constitutionality of, see Constitution-
al Law, 73, 74.
Sufficiency of evidence to support con-
viction for violating, see Evidence,
12, 13.
Sufficiency of indictment charging con-
spiracy to violate Espionage Act,
see Indictment and Information, 1.
•4 li. ed.
Sufficiency of evidence in prosecution
for violating Espionage Act as
question for jury, see Trial, 2-4.
Construetion of, see War, U.
See also Criminal Law, 1.
BSTOPPETL.
Of new stockholder to enforce liability
of bank director for making ex-
cessive loan, see Banks, 8.
By judgment, see Judgment, 2-4.
EVrDENCE.
Waiver of ruling on cross-examination,
see Appeal and Error, 40.
Compelling accused to furnish, see
Criminal Law, 3.
Use of evidence obtained by unreason-
able search and seizure, see Search
and Seizure.
Judicial notice.
Error in instruction respecting, see
* Appeal and Error, 46.
1. The Federal Supreme Court takes
judicial notice that in 1901 4 per cent was
very generally assumed to be the fair value
or earning power of money safely invested.
Simpson v. United States, 252 U. S. 547,
40 Sup. Ct. Rep. 367, 64: 709
2. The Federal Supreme Court cannot
sav as a matter of law that a beverage con-
taining not more than 1 of 1 per cent of
alcohol is intoxicating. United States v.
Standard Brewery, 251 U. S. 210, 40 Sup.
Ct: Rep. 139, 64: 8W
Presumptions and bnrden of proof.
Presumption in favor of validity of
statute, see Courts, 4, 5.
Prima facie case for removal to other
Federal district for trial, see
Criminal Law, 4.
3. Congress is presumed to have leels-
lated with knowl^e of an established
usage of an executive department of the
government. National Lead Co. v. United
States, 252 U. S. 140, 40 Sup. Ct. R^ 237,
4. In a suit by a German agent against
hit American principal to recover the
amounts of certain arbitration awards
which the former had paid on the hitter's
account, the value of the German mark in
which such payments were made will be
taken at par, in the absence of evidence
that it had depreciated at the time of such
payments. Birge-Forbes Co. v. Heye, 251
U. S. 317. 40 Sup. Ct. Rep. 160, 64: 986
5. The defense that defendant in a suit
by the Federal government to cancel a pat-
ent for public lands as issued in violation
of law is a bona fide purchaser is an affirm-
ative one, which he must set up and estab-
lish. United SUtes v. Poland, 251 U. S.
221, 40 Sup. Ct. Rep. 127, 64: 886
Documentary.
As to depositions, see Depositions.
Admissibility in evidence of unstamped
deed, see Internal Revenue, 22.
6. The Interstate Commerce Oommis-
sion is given a general degi;ee of latitude
in the investigation of reparation claims
1067
liXCEPTIONS; EXECUTIVE DEPARTMENTS.
by the Act of February 4, 1887, §§ 13, 16.
17, as amended by the Acts of March 2,
1889, and June 29, 1906, and June 18, 1910,
and the resulting findings and order of the
Commission may not be rejected as evi-
denoe in a suit to recover the amounts of
the reparation awards merely because of
errors m its procedure not amounting to a
denial of the right to a fair hearing, so long
as the essential facts found are based upon
substantial evidence. Spiller t. Atchison,
T. ft S. F. R. Co. 253 U. S. 117, 40 Sup.
Ct. Rep. 466, 64: 810
7. Formal proof of the handwriting of
the assignors of reparation claims by sub-
scribing witnesses or otherwise was not
necessary in a hearing before the Interstate
Commerce Commission in the absence of
objection or contradiction. Spiller t. Atchi-
son, T. ft S. F. R. Co. 253 U. S. 117, 40
Sup. Ct. Rep. 466, 64: 810
Admissions.
8. Placer claimants, by mistakenly
posting a notice stating that they had re-
located the ground as a lode claim, did not
thereby admit the validity of a prior con-
flicting lode location, where the mistake
was promptly corrected the next day by
the substitution of another notice stating
that the ground was located as a placer
claim, and no one was misled by the mis-
take. Cole V. Ralph, 252 U. S. 286, 40
Sup. Ct. Rep. 321, 64: 567
Hearsay; declarations; res gestse.
Hearsay testimony before Interstate
Commerce Commission, see Inter-
state Commerce Commission, 3.
9. Recitals of discovery in the record-
ed notices of location of lode mining claims
are mere ex parte self-serving declarations
on the part of the locators, and are not
evidence of discovery. Cole ▼. Ralph, 252
U. S. 286, 40 Sup. Ct. Rep. 321, 64: 667
Weight and snlHciency.
Review of facts in appellate court, see
Appeal and Error, 41.
Sufficiency of evidence to justify re-
moval to other Federal district
for trial, see Criminal Law, 4, 5.
Sufficiency of evidence as question for
jiury, see Trial.
10. An attempt to obtain a patent for
lands within the indemnity limits of the
Southern Pacific Railroad land grant of
July 27, 1866, by representing that the
lands were not mineral, when the railway
company's officers believed the fact was
otherwise, is shown by evidence that when
the patent was sought and obtained the
lands had no substantial value unless for
oil mining; that the interest and anxiety
displayed by the company's officers in se-
curmg the patent were wholly dispropor-
tionate to the value of the land! for any
oUier purpose; that the lands lay within a
recognized and productive oil region which
the company's geologists had ^en syste-
matically examining to determine in what
lands oil was to be expected; and that up-
on the advice and reconunendation of such
geologist s^ the company was treating and
dealing with Adjacent lands, of which it
1068
was the owner, as valuable for oiL Uaited
States V. Southern P. Co. 261 U. a 1, 40
Sup. Ct. Rep. 47, 64: 97
11. The denial by a director of a na-
tional bank, in an action against him for
knowingly participating, contrary to U. S
Rev. Stat. §§ 5200 and 6239, in an exces-
sive loan, that such loan was a .single one,
or that he knew it to be such, is not con-
clusive where there is substantial evidence
inconsistent with such denial, tending to
show facts and circumstances attendant
upon the transaction of which he had
knowledge, and subsequent conduct in the
nature of admissions by him, also incon-
sistent with such denial. Corsicana Nat.
Bank v. Johnson, 251 U. S. 68, 40 Sup. Ct.
Rep. 82, 64: 141
12. Evidence that defendants, acting in
concert, with full understanding of its con-
tents, distributed publicly a highly colored
and sensational pamphlet fairly to be con-
strued as a protest against the further
prosecution by the United States of the
war with Qermany, is sufficient to support
convictions of conspiring, contrary to the
Espionage Act of June 15, 1917, to catiae
insubordination, disloyalty, and refusal of
duty in the military or naval forces, and
to obstruct the recruiting and enlistment
service of the United States. Pierce ▼
United States, 252 U. S. 239, 40 Sup. Ct
Rep. 205, 64: 549
13. A conviction of making or convey-
ing false reports or false statements with
intent \o interfere with the operation or
success of the military or naval forces of
the Unitwi States, or to promote the suc-
cess of its enemies, contrary to the Espion-
age Act of June 15, 1917, is sustained by
evidence which warranted the jury in find-
ing that the statements in a pamphlet dis-
tributed by defendants during the war
with Germany were false in fact, and
known to be so by the defendants, or els«
were distributed recklessly without effort
to ascertain the truth, and were circulated
wilfully in order to interfere with the suc-
cess of the forces of the United States.
Pierce v. United States, 262 U. S. 239, 40
Sup. Ct. Rep. 205, 64: 649
14. The evidence introduced in a crimi-
nal case need not have been sufficient as to
all the counts in the indictment in order
to support a judgment upon a verdict of
guilty, where the sentence imposed does
not exceed that which might lawfully have
been imposed under any single count. It
suffices that the evidence be suffieieni to
sustain anv one of the counts. Sdiaefer
V. United States, 251 U. S. 466, 40 Sup. Ct.
Rep. 259, 64: 960
EXCEPTIONS.
Sufficiency of, generally, see Appeal
and Error, IV.
Bill of exceptions, see Appeal and Br-
ror, 26, 27. j
EXECUTIVE DEPARTMENTS. . ' '
Following departmental constmetida of
tariff act. see Duties.
851, S59, 96S IT. 8.
FAITH AND CREDIT— GRAND JURY.
MandamuB to control executive action,
see Mandamus, 4.
Following executive construction of
statute, see Statutes, 4.
Re-enactment of statute as recognition
of executive construction, see Stat-
utes, 8.
FAITH AND CREDIT.
To be given judgment of other state,
see Judgment, 5-7.
PBDERAI/ COURTS.
Appellate jurisdiction, see Appeal and
Error.
See also Admiralty; Courts.
FBDfiRAIi EMPIiOYSnRS* lilABUj-
ITY ACT.
See Master and Servant.
FEDEBAIi INCOME TAX.
See Interna] Revenue.
rBDERAIj QUESTION.
To sustain appellate jurisdiction, see
Appeal and Error.
As basis of jurisdiction, see Courts,
8-10.
FEDERAIi SAFETY APPIjIANCB
ACT.
See Master and Servant.
FEDERAIi SUPREME COURT.
See Supreme Court of the United
States.
FEDERAIi TRADE COMMISSION.
Complaint by, see Monopoly, 7.
FEES.
Of clerk of court, see Clerks.
See also Costs and Fees.
FINDINGS.
Review of concurrent findings below,
see Appeal and Error, 41.
FOREIGN CORPORATIONS.
State taxation of, as affecting inter-
state conunerce, see Conunerce, 9.
10.
Regulation of conveyance to foreign
corporation as denying due proc-
ess of law, see Constitutional
Law, 34.
Income tax on foreign corporation as
impairing contract obligations, see
Constitutional Law, 82.
Service of process on, see Writ and
Process.
FOREIGN SEAMEN.
Wages of, see Seamen.
FOREST RESERVE.
See Public Lands.
FORFEITURE.
Of rights under contract, see Contracts.
Of mining claim, see Mines, 4.
•4 li. ed.
Of patent to public lands, see Public
Lands, 8.
FORGERY.
Recovering ba^ payment on forged
draft, see Assumpsit.
FRANCHISE.
Assessment of railway franchise as
equal protection of the laws, see
Constitutional Law, 17.
, Exclusive electric light and power
Privilege, see Electric Lights and
'ower.
FRAUD.
Sufficiency of evidence as to fraudulent
representations as to character of
public lands, see Evidence, 10.
Fraudulent representations as basis for
cancelation of patent for land, see
Public Lands, 8.
FRAUDULENT CONVEYANCES.
Power of corporation to rescind fraud-
ulent transfer, see Corporations.
FREEDOM OF SPEECH AND PRESS.
See C'Onstitutional Law, V.
FULL FAITH AND CREDIT.
To judgment of other state, see Judg-
ment, 6-7.
GAME.
Validity of Migratory Bird Treaty, see
Treaties.
GAS.
Transportation of natural gas as in-
terstate commerce, see Commerce^
1.
State r^ulation of natural gas rates,
see Commerce, 2.
GASOLENE.
State license tax on sale of, see Com-
merce, 12, 13.
GRAB IRONS.
On freight car, see Master and Servant,
8.
GRAND CANYON.
As monument
Lands, 1.
reserve, tee Public
GRAND JURY.
Following state practice forbidding
second presentation of charge to
grand jiu'y, see Courts, 14.
Second presentation of charge by dis-
trict attorney, see District Attor-
ney.
The power and duty of the grand
jury to investigate is original and com-
plete, susceptible of exercise upon its own
motion, and upon such knowledge as it
may derive from any source which it may
deem proper, and ia not, therefQre, depend-
ent for its exertion upon the approval or
1069
INEQUALITY— INSURANCE.
the dAimant" Stallings v. Splain, 26S U.
8. 839, 40 Sup. Ct. Rep. 637, 64: 940
INIX)17AIjITY.
Of Immunities, privile^, and protec-
tion, see Oanstitutional Law, IL
INFORMATION.
For criminal offense, see Indictment
and Information.
INFRINGEMENT.
Of patent, see Patents.
INHERITANCE TAX.
Federal estate tax, see Internal Rer-
enue, 18-21.
INITIATIVE AND REFERENDUM.
State referendmQ as applicable to
amendment of Federal Constitu-
tion, see Constitutional Law, 3, 4.
INJUNCTION.
Discretion as to granting, see Appeal
and Error, 36.
Enterinc; final decree on merits on ap-
peal from interlocutory order, see
Appeal and Error, 62.
Review by certiorari of decision in in-
junction proceedings, see Certio-
rari, 4, 5.
Retention of jurisdiction of injunction
suit in order to do complete jus-
tice, see Equity, 2.
Against officers or boards.
Proper district for suit to enjoin
Comptroller of Currency, see
Courts, 13.
1. A court of equity may grant relief
against Treasury officials by way of manda-
tory injunction or a receivership to one
who has an equitable right in a fund ap-
propriated by Congress to pay a specified
person, conformably to a finding of the
court of claims, where such person is made
a party so as to bind her, and so that a
decree may afford a proper acquittance to
the government. Houston v. Ormes, 252
U. S. 469, 40 Sup. Ct. Rep. 369, 64: 667
Against illegal tax.
2. Equity has jurisdiction, {here being
no adequate remedy at law, of a suit to en-
join state officials from enforcing an alleged
unlawful tax upon foreign railway com-
panies where such tax is made a first lien
upon all the property of the railways in the
state, thus putting a cloud upon their titles,
and where delay in payment is visited with
considerable penalties. Wallace v. Hines,
253 U. S. 66, 40 Sun. Ct. Rep. 435, 64:788
3. Equitable relief by way of injunc-
tion against the enforcement of state taxes
allcffed to be unlawfully assessed will not
be denied on the ffround that an adequate
remedy at law exists under a local statu-
tory provision that an action respecting
the title to property, or arising upon con-
tract, may be brought in the state courts
against the state tne same as against a
1072
Sriyate person. Wallace t. Hinei, 258 D-
I. 66, 40 Sup. a. Rep. 435, 84:788
4. The remedies lUfforded to indiTiduale
under the state law to correct errors in as-
sessing taxes do not defeat the right of
the tJnited States, through its officers, to
invoke equitable relief against the enforce-
ment of state tax assessments on the sur-
plus lands of noncompetent Osage Indians
which are asserted to be based upon syste-
matic, arbitrary, grossly excessive, discrim-
inatory, and unfair valoatioas which
amount to a perversion of the state lawa»
conunitted in order to defeat the property
rights oonf^red by the Act of June %
1906, since the interposition of a eourt of
equity to prevent the wrong complained of
was essential in order to avoid a multipHe-
ity of suits, and, in addition, such wrens
was not a mere mistake or error committed
in the enforcement of the state tax laws.
United States v. Osage County Comrs. 251
U. S. 128, 40 Sup. Ct. Rep. 100, 64:184
Against infringement of copyright.
5. Injunctive relief to the owner of tha
copyright in a play against the unauthor-
izea representation of such play by his
licensee in moving pictures will only be
granted upon condition that the former
shall also abstain from presenting or au-
thorizing the representation of the play in
moving pictures during the life of the li-
cense agreement within the territorial lim-
its therein stated. Manners v. Morosco,
252 U. S. 317, 40 Sup. Ct. Rep. 335, 64:590
Against monopolistic contract.
6. Attempts to enforce covenant in
leases for the operation of coal'produciuff
lands that the lessee shall ship all coal
mined by rail routes which are named, or
which are to be designated, are properly
enjoined where such covenant was resorted
to as part of a scheme in contravention of
the Sherman Anti-trust Act to control the
mining and transportation of coal. United
States V. Reading Co. 253 U. S. 26, 40 Sup.
ex. Rep. 425, 64:700
INSOLVENCY.
As to bankruptcy, see Bankruptcy.
INSPECTION liAWS AND REGUIiA-
TIONS.
Inspection law as regulation of inter-
state commerce, see Commerce, 12.
INSTRUCTIONS.
Harmless error in, see Appeal and Sr-
ror, 44-46.
INSUliAR POSSESSIONS.
Jurisdiction of insular
• Courts, 6.
See also Territories.
courts. Ma
INSURANCE.
Federal taxation of insurance compa*
ny, see Internal Revenue, 11-17.
The term "reeerre" or "wnifni^ is
the law of insurance means in MMral a
itad or oott>
sum of money variously ooa^ul
251. 262, 26S V. 6.
INTENT— INTERNAL REVENUE.
mated, which, with accretions from in-
tereet* is set aside, "reserved," as a fund
with which to mat\ire or liquidate either
by payment or reinsurance with other com-
panies, future imaccrued and contingent
claims, and claims accrued but contingent
and indefinite as to amount or time of pay-
ment, Maryland Casualty Co. v. United
SUtes, 261 U. S. 342, 40 Sup. Ct. Rep. 156,
64:887
OfTKNT.
SuflSciency of averment as to criminal
intent, see . Indictment and In*
formation, 1.
IKTUREST.
On fees and emoluments deposited by
clerk of court, see Clerks, 1, 2.
At element of damage, see Damages,
1, 2.
Judicial notice of interest ratee, see
Evidence, 1.
Interest rates in computing succession
tax, see Internal Revenue, 21.
Usurious interest, see Usury.
1. The provision of the Judicial Code,
I 177, against the allowance of interest
upon anv claim against the United States
up to the time of the rendition of judg-
ment thereon by the court of claims imless
upon a contract expressly stipulating for
the payment of interest, is applicable to
the unpaid consideration due to Indians un-
der a treaty which made a present cession
of their lands to the United States for a
consideration to be paid thereafter, with
no mention made of interest. United
States V. Omaha Tribe of Indians, 253 U.
S. 276, 40 Sup. Ct. Rep. 622, 64:901
2. Claims by Indians against the Unit-
ed States cannot be regarded as taken out
of the rule against the allowance of in-
terest, prescribed by the Judicial Code, §
177, on the theory that because the Act of
June 22, 1910, conferring jurisdiction of
such claims upon the court of claims, calls
for the consideration of equitable as well
as legal claims, the ordinary rule of eq-
uity ought to be followed as to the allow-
ance of interest United States v. Omaha
Tribe of Indians, 263 U. S. 276, 40 Sup.
Ct. Rep. 622, 64:901
3. The reduced amoimt which a circuit
oourt of appeals, modif3ring a decree of a
district court, finds to be due the receiver
of a national bank from its president on
account of the latter's failure to guard
against thefts by a teller and bookkeeper
should bear interest from the date of the
decree of the district court until the re-
ceiver interposed a delay by appealing to
the Supreme Court from the decree of the
circuit court of* appeals. Bates v. Dresser,
261 U. S. 624, 40 Sup. Ct. Rep. 247,
64:888
INTUKFERENCE.
In patent office, see Patents, 6.
•4 Xi. ed.
INTERNAL BEVKNVE.
Munitions tax.
1. A corporation which, having con-
tracted to manufacture and deliver to a
foreign government high explosive shells,
enters into contracts with others for the
performance of the necessary operations to
produce a completed shell, doing none of
the work itself except the manufacturing
of steel in bar form suitable for the shells,
and the furnishing its subcontractors with
certain other materials such as "transit
plugs," ''fixing screws," and "copper tub-
ing," is subject to the munitions manu-
facturer's tax imposed by the Act of Sep-
tember 8, 1916, S 301, upon every person
manufacturing projectiles, shells, or tor-
pedoes of any kind. Carbon Steel Co. v.
Lewellyn, 251 U. S. 501, 40 Sup. Ct. Rep.
283, 64:876
2. A corporation which, under inspec-
tion in behalf of the French government,
made the steel for, and did the forging on,
certain shell bodies under an order from
another corporation, to enable the latter
to carry out its contract with such .govern-
ment for certain explosive shells, was en-
gaged in manufacturing a part of such
shells within the meaning of the Munition
Manufacturer's Tax Act of September 8,
1916, imposing a tax upon the profits of
every person manufacturidg projectiles,
shells, or torpedoss, or any part of any of
such articles. Worth Bros. Co. v. Lederer,
251 U. S. 607, 40 Sup. Ct. Rep. 282,
64:377
3. The net profits received by a corpo-
ration from the manufacture and sale of
certain steel forgings to be used by the
vendee to fulfil the latter*s contract to
supply a foreign government with hig^ ex-
plosive shells are taxable under the Mu-
nition Manufacturer's Tax Act of Septem-
ber 8, 1016, imposing a tax on any person
manufacturing shells or any part of them.
Forged Steel Wheel Co. v. Lewellyn, 251
U. S. 611, 40 Sup. Ct. Rep. 286, 64:380
4. The question whether the subcon-
tractors of a corporation which has con-
tracted to manufacture and deliver to a
foreign government high explosive shells
were correctly assessed under the mtmitions
tax imposed by the Act of September 8,
1916, § 301, does not concern the corpo-
ration in its efforts to resist such a tax
on the profits made by it. Carbon Steel Co.
V. Lewellyn, 251 U. S. 501, 40 Sup. Ct.
Rep. 283, 64:876
Income tax.
Validity of state income tax, see Con-
stitutional Law, 22-28, 55-59.
See also infra, 23, 24.
6. The income tax amendment to the
Federal Constitution does not extend the
taxing power to new or excepted subjects,
but merely removes all occasion otherwise
existing for an apportionment among the
states of taxes laid on income, from what-
ever source derived. Evans ▼. Gore, 263
r. S. 245, 40 Sup. Ct. Rep. 650, 64:887
68 1078
INTERNAL REVENUE.
6. The income tax amendment to the
Federal Constitution should not be extend-
ed by looae conatructlon so as to repeal
or modify, except as applied to income,
those provisions of the Constitution that
require an apportionment according to
population for direct taxes upon property,
real and personal. Eisner v. Macomber, 252
U. S. 189, 40 Sup. Ct. Rep. 189, 64:521
7. A Federal district judge could not,
consistently with the provision of U. S.
Const, art. 3, that all Federal judges shall,
at stated times, receive for their services
a compensation "which shall not be di-
minished during their continuance in office,"
be subjected to an income tax imposed un-
der the 16th Amendment in respect of his
salary as such judge. Evans v. Gore, 253
U. S. 245, 40 Sup. Ct. Rep. 550, 64:887
8. Ccmgress was given no power by the
income tax amendment to the Federal
Constitution to tax, without apportion-
ment, as income of a stockholder m a cor-
poration, a stock dividend made lawfully
and in good faith against accumulated
profits earned by the corporation since the
adoption of such amendment. Such divi-
dends are not income. Eisner v. Macom-
ber, 252 U. S. 189, 40 Sup. Ct. Rep. 189,
64:581
9. The constitutional inhibition against
the taxation by Congress without appor-
tionment of a stockholder's interest in
the undivided accumulated earnings of a
corporation is not removed by the adop-
tion of the income tax amendment. Eisner
V. Macomber, 262 U. S. 189, 40 Sup. Ct.
Rep. 189, 64:581
10. With respect to domestic corpora-
tions no change wa« ifltended by the use in
the Income Tax Act of October 3, 1913, of
the expression income "arising or accruine*'
insteaa of income ''received,'' as used in the
Corporation Excise Tax Act of August 5,
1909, and the tax should be levied under
both acts upon the income "received" dur-
ing the year. Maryland Casualty Co. v.
United States, 251 U. S. 342, 40 Sup. Ct.
Rep. 155, 64:897
11. Insurance premiums collected by the
local agents of an insurance company, but
which, conformably to the agency contracts,
were not transmitted to the company's
treasurer within the calendar year, were
nevertheless a part of the gross income of
the company received by it during such year
within the meaning of the Corporation Ex-
cise Tax Act of August 5, 1909, and the
Income Tax Act of October 3, 1913. Mary-
land Casualty Co. v. United States, 251
U. S. 342, 40 Sup. Ct. Rep. 155, 64:897
12. An insurance company's "loss claims
reserve," intended to provide for liquida-
tion of claims for unsettled losses (other
than those provided for by the reserve for
liability losses) which had accrued at the
end of the tax year for which the return
was made and the reserve computed, is one
required by law to be maintained, within
the meaning of the prevision in both the
Corporation Excise Tax Law of August 5,
1909, and the Income Tax Act of October
1074
3, 1913, that "the net addition, if any, re-
quired by law to be made within the year
to reserve funds" may be deducted from
^oss, in determining the amount of net,
income to be taxed, where a state insur-
ance department, pursuant to statute, has,
at all times since and including 1909, re-
quired the company to keep on hand, aa a
condition of doing business in that state
"assets as reserves sufficient to cover out-
standing losses." Maryland Casualty Co.
V. United States, 261 U. S. 342, 40* Sup.
Ct. Rep. 156, 64:897
13. An insurance coofkpany's reserves re-
quired by rules or regulations of state in-
surance departments, promulgated in the
exercise of an appropriate power c(«ferred
by statute, are "required by law," within
the meaning of the provision in both the
Corporation Excise Tax Act of August 5,
1909, and the Income Tax Act of October 3,
1913, that "the net addition, if any, re-
quired by law to be made within the year
to reserve funds," may be deducted from
p^rbss, in determining the amoimt of net,
income to be taxed. Maryland Casualty
Co. v. United States, 261 U. S. 342, 40 Sup.
a. Rep. 155, 64:897
14. Unpaid taxes, salaries, brokerage,
and reinsurance due other companies at &e
end of each tax year may not be deducted
from the gross income of an insurance com-
pany, under the proyision either in the Cor-
poration Excise Tax Act of August 6, 1909,
or the Income Tax Act of October 3, 1913,
that "the net addition, if any, required by
law to be made within the year to reserve
funds," may be deducted from gross, in de-
termining the amount of net, income to be
taxed, although various state insurance de-
partments require that "assets as reserves"
be maintained to cover "all claims." "aU
indebtedness," "all outstanding liabilities,"
where these departments in these expres-
sions plainly used the word "reserves" in a
nontecnnical sense as equivalent to "assets."
Maryland Casualty Co. v. United States,
251 U. S. 342, 40 Sup. Ct. Rep. 165,
64:897
16. A decrease in the amount of reserves
required by law of an insurance company
for the year 1913. from the amoimt re-
quired in 1912, unless clearly shown to be
due to excessive reserves in prior years,
or to some other cause by which the free
assets of the company were increased dur-
ing the year 1913, cannot be treated by the
government as "released reserve" and
' charged to the company as income for 1913.
taxable imder the Corporation Excise Tax
Act of August 6, 1909, and the Income Tax
Act of October 3, 1913. Maryland Cas-
ualty Co. V. United States, 261 U. S. 342.
40 Sup. Ct. Rep. 155, 64:897
16. The amounts paid by a mutual legal
reserve level-premium life insurance com-
Sany in cash dividends to 'its policyholders
uring any taxable year, representing ex-
cess in premiums over actual cost of insur-
ance, if not applied by such policyholders
during that period of reduction of renewal
premiums, may not be excluded from gross
251, 252, 253 V* ».
INTERSTATE COMMERCE; INTERSTATE COMMERCE COMMISSION.
income under the provision of the Income
,Tax Act of October 3, 1913, § II. G, that
life insurance companies ''shall not include
as income in any year such portion of any
actual premium receiTed from any individ-
ual poucyholder as shall have been paid
back or credited to such individual policy-
holder, or treated as an abatement of pre-
mium of such individual policyholder with-
in such year." Penn Mut. L. Ins. Co. v.
Lederer, 252 U. S. 623, 40 Sup. Ct. Rep.
897, 64:698
17. The deduction from the gross income
of a Qiutual legal reserve level-premium life
insurance company of cash dividends to
policyholders, representing excess in pre-
miums over actual cost of insurance, is
expressly forbidden by the clause of the
Income Tax Act of October 3, 1913, § II. G,
defining allowable deductions from gross in-
come of insurance companies as *'the net
addition, if any, required by law to be made
wiUiin the year to reserve funds and the
sums other than dividends paid within the
year on policy and annuity contracts,'' ex-
cept in so far as such dividends are ex-
cluded from computation of gross income
under the so-called non inclusion clause of
such section, as having been applied in re-
duction of renewal premiums. Penn Mut.
L. Ins. Co. V. Lederer, 252 U. S. 523, 40
Sup. Ct. Rep. 397, 64:698
Sufwession tax.
18. The interest of legatees in legacies
paid over to them or to a trustee for them
Dv the executor prior to July 1, 1902, al-
though not demandable by them as of right
until after that date, because the time for
proving claims against the estate had not
expired, had become absolutely vested in
possession of such legatees prior to such
date, within the meaning of the Act of
June 27, 1902, providing for the refunding
of taxes collected on contingent beneficial
interests not vested prior to July 1, 1902,
notwithstanding the remote possibility
that the amounts so paid might have to be
returned to the executor for payment of
debts. Henry v. United States, 251 U. S.
393, 40 Sup. Ct. Rep. 185, 64:388
19. The interest in a fund transferred
from an estate to a trustee for ascertained
persons was vested in possession although
they had received no income from it prior
to July 1, 1902, within the provision of the
Act of June 27, 1902, for the refunding of
taxes collected on a contingent beneficial
interest not vested prior to such date.
Henry v. United States, 251 U. S. 393, 40
Sup. Ct. Rep. 185, . 64:388
20. Trust fimd legacies which it was the
legal duty of the executors to pay over to
the trustee before July 1, 1902, and for
compelling payment of which a statutory
remedy was given to the legatees before
that date, were vested in possession and
enjoyment within the meaning of the pro-
vision of the Act of Jime 27, 1902, for the
refund of succession taxes collected on con-
tingent beneficial interests not vested prior
•4 L. ed.
to July 1, 1902. Simpson v. United States,
252 U. S. 547, 40 Sup. Ct. Rep. 367,
64:708
21. It is much too late to assail success-
fully the use of mortuary tables by the
Internal Revenue Department in computing
the present, worth of life interests in per-
sonal property for the purpose of the suc-
cession tax imposed under the Spanish War
Revenue Act of June 13, 1898, or the as-
sumption that 4 per cent was then the fair
value or earning power of money. Simpson
V. United States, 252 U. S. 547, 40 Sup.
Ct. Rep. 367, 64:709
Stamp tax.
22. The absence of the internal revenue
stamps required on deeds by the Act of
October 22, 1914, § 22, neither invalidated
the deeds nor made them inadmissible as
evidence. Cole v. Ralph, 252 U. S. 286, 40
Sup. Ct. Rep. 321, 64:567
Refandins taxes and recovery of taxes
paid.
23. The right to recover back excessive
corporation excise tax payments is barred
where the corporation failed to appeal to
the Commissioner of Internal Revenue, as
required by U. S. Rev. Stat. § 3226, and
also failed to observe the requirement of
9 3227, that suit be begun within two years
after the cause of action accrued. Mary-
land Casualty Co. v. United States, 251 U.
S. 342, 40 Sun. Ct. Rep. 155, 64:897
24. The filing by the government of
amended returns for the assessment of an
insurance company und^r the Corporation
Excise Tax Act of August 5, 1909, cannot
be said to constitute the beginning of new
proceedings which so superseded the orig-
inal returns as to release the company from
its entire failure to observe the statutory
requirement for review of tho latter, where
in each case the purpose and effect of such
amended returns was to increase the pay-
ment which the company was reouired to
make under the law, though in dealing with
the same items the basis of computation
was in some cases varied, and where the
payments made on the original returns were
credited on the amounts computed as due
on the returns as amended. Maryland Cas-
ualty Co. V. United States, 251 U. S. 342, 40
Sup. Ct. Rep. 155, 64:897
INTEIRSTATE COMMSROE.
See Commerce.
INTERSTATE COMMERCE C03fMIS-
SION.
Sufficiency of objections in reparation
proceeding, see Appeal and Error,
28.
Assignment of reparation claim, see
Assignment.
Constitutional questions respecting in-
terstate commerce, see Commerce.
Admissibility of evidence on hearing
before, see Evidence, 7.
Suit upon reparation claim by assignee
of legal title, see Parties, 1.
1075
IXTEUVEXTIOX—JUDGMEKT.
1. The refusal of the Interstate Com-
inerce CommissioD, when making the phys-
ical Taluation of railway properties ordered
by the Act of March 1, 1913, § 19a, to
obey the command of that statute to in-
vestigate and find the present cost of con-
demnation and damages or of 'purchase in
excess of original co^ or present value of
the railway company's lands, cannot be jus-
tified on the theory that such command in-
volves a consideration by the Commission
of matters "beyond the possibility of ra-
tional determination/' ana calls for "inad-
missible assumptions," and the indulging
in "impossible hypotheses" as to subjects
"incapable of rational ascertainment," even
if it be conceded that the subject-matter
of the valuations in question, which the
statute expressly directed to be made, neces-
sarily opened a wide ranee of proof, and
called for the exercise of close scrutiny and
of scrupulous analysis and application.
United States ex rel. Kansas City South-
ern R. Co. V. Interstate Cbmmerce Com-
mission, 262 U. S. 178, 40 Sup. Ct. Rep.
1S7, 64: 517
Judicial review.
Final decrees in reparation suits, see
Appeal and Error, 5.
Findings in reparation order as evi-
dence, see Evidence, 6.
2. Whether a witness called before the
Interstate Commerce Commission had
shown such special knowledge as to qualify
him to testily as an expert was for the
Commission to determine, and its decision
thereon is not to be set aside by the courts
unless clearly shown to have been unfound-
ed. Spiller V. Atchison, T. A 8. F. R. Co.
253 U. S. 117, 40 Sup. Ct. Rep. 466,
64:810
3. The Interstate Commerce Commis-
•sion is not to be regarded as having acted
arbitrarily in making a reparation order,
nor may its findings and order be rejected
as wanting in support, simply because hear-
say evidence introduced without objection
and substantially corroborated by original
evidence clearly admissible against the par-
ties to be affected was considered with the
rest. Spiller v. Atchison, T. A S. F. R. Co.
263 U. S. 117, 40 Sup. Ct. Rep. 466,
64:810
4. The refusal of the trial court in a
suit for the recovery of amounts awarded
in a reparation order made by the Inter-
state Commerce Commission to treat the
award as void ih toto is not erroneous if,
to any substantial extent, the award was
legally valid. Spiller v. Atchison, T. & S.
F. R. Co. 263 V. S.
466,
117, 40 Sup. Ct. Rep.
64:810
INTERVENTION.
Intervention of parties in actions, see
Parties, 2, 3.
INTOXICATING lilQUORS.
Prohibiting carriage by private auto-
mobile for personal U5>e, see Com-
merce, 8.
1076
Validity and construction of Prohibi-
tion Amendment, see ConstitutioD-
al Law, 1.
War-time Prohibition Act as denying
due process of law, see Constitu-
tional Law, 37, 38.
Judicial notice of intoxicating char-
acter of liquor, see Evidence, 2.
War-time prohibition, see War, 2-10.
INVENTIONS.
Patents for, see Patents.
JOINT CREDITORS AND DEBTORS.
Joint or several liability of director of
national bank, see Banks, 7.
JUDGES.
Income tax on salary of Federal judget,
see Internal Revenue, 7.
Mandamus to, see Mandamus.
The conatitutional prohibition
against the diminution of salaries of Fed-
eral judges during continuance in office is to
be construed not aa a private grant, but at
a limitation imposed in the pi3>lic interest.
Evans v. Gore, 253 U. 8. 245, 40 Sup. Ct.
Rep. 550, 64: 887
JUDGMENT.
Finality of judgment for purpose of
appeal, see Appeal and Error, I. a.
Of appellate court, see Appeal and Er-
ror, VII.
Interest on judgment, see Interest, 8w
Fomi.
1. A combination of competing inter-
state railway carriers and competmg coal
companies, found to violate both the Sher-
man An ti -trust Act and the coAmodities
clause of the Act of June 29, 1906, must be
so dissolved as to give each of such com-
panies its entire independence, free from
stock or other control. United States t.
Reading Co. 253 U. S. 26, 40 Sup. Ct. Rep
425, 64: 700
ConclusiTeness generally.
Following decision below %s to, see
Appeal and Error, 81.
Effect of reversal on former jeopardy,
see Criminal Law, 2.
2. The denial b^ the California supreme
court, without opinion, of the petition of a
public service corporatfon for the review,
conformably to the California Public Utili-
ties Act, § 67, of an order of the state Rail-
road Commission, soueht upon the ground
that such order deprived the corporation
of its constitutional rights, is the equivalent
of a decision adverse £> the claims asserted
in such petition, and bars a subsequent suil
by the corporation to enjoin the enforce-
ment of such order on the same grounds.
Napa Valley Electric Co. v. Railroad Com-
missioners, 251 U. S. 366, 40 Sup. Ct. Rep.
174, 64: 310
3. A judgment for plaintiff in a suit to
recover the amounts of certain arbitration
awards which he had paid on defendant*s
account, though limited to sums which
plaintiff had then paid, must be regarded
351, 252. S5S U. 8.
JUDICIAL NOTICE— LACHES.
M * oonolutive adjudicatiolk ms to the valid-
ity of thfl awards in a second suit to recoTer
tha sums paid by plaiotilT, not embraced
In the first judgment, where, in the first
suit, the awards were dealt with as a whole,
obJ€|Ctions to them being general, and the ob-
jections were overruled, the ooujt assuming
that the awards were obligatory » but cutting
down the amount to be recovered to the
sum that had been paid. Birge- Forbes Co.
V. Heye, 251 U, S. 317, 40 Sup. Ct. Rep. 160,
64:986
4. The recovery of nominal damages
in an equity suit to restrain a trespass
does not bar the recovery at law of the
statutory penalty for the same trespass,
the claim for such penalty having been
rejected in the equity suit because pur>
sued in an action in which it could not be
entertained. Ash Sheep Co. v. United
SUtes, 262 U. S. 159, 40 Sup. Ct. Rep. 241,
64:507
FuU faith and credit.
5. The fact that the original cause of
action could not have been maintained in
the courts of a state is not an answer to a
suit upon a judgment rendered by a court
of another state. Kenney v. Supreme Lodge
of the World, Loyal Order Moose, 252 U.
6. 411, 40 Sup. Ct. Rep. 371. 64: 686
6. The constitutional obligation of a
state to give full faith and credit to the
judgments of courts of otlier states cannot
be escaped by the simple device of denying
jurisdiction in such cases to courts other-
wise competent. Kenney v. Supreme Lodge
of the World, Loyal Order Moose, 252 U. S.
411, 40 Sup. Ct. Rep. 371, 64: 638
7. A * state statute providing that no
action shall be brought or prosecuted in
that state for damages occasioned by death
occurring in another state in consequence
of wrongful conduct contravenes the full
faith and credit clause of the Federal Con-
stitution when construed by the state courts
as forbidding the maintenance of an action
upon a judgment recovered in a court of
another state, in conformity with the laws
of that state, for negligently causing the
death of plaintiff's intestate in that state.
Kenney v. Supreme Lodge of the World,
Loyal Order Moose, 252 U. S. 411, 40 Sup.
Ct. Rep. 871, 64: 638
JUDICIAIi NOTICE.
See Evidence, 1, 2.
lURISDIOTION.
Of admiralty courts, see Admiralty.
Appellate jurisdiction, see Appeal and
Error.
Of bankruptcy proceedings, see Bank-
ruptcy, 1, 2.
Of referee in bankruptcy, see Bankrupt^
cy, 1, 2.
Of court of claims, see Claims.
Of courts generally, see Courts.
Of United States commissioner, see
Criminal Law, 6.
Of courts of equity, see Equity.
•4 L. ed.
Of injunction cases, see Injunction.
Of mandamus proceeding, see Manda-
mus.
Sufficienirf of jurisdictional averments,
see Pleading, 3, 4.
Original jurisdiction of Federal Su-
preme Court, see Supreme Court of
the United States.
JURISDICTIONAL AMOUNT.
See Courts, 11, 12.
JURY.
Discretion as to quashing jury panel,
see Appeal and Error, 37.
Harmless error in refusing challenge
of juror for cause, see Appeal and
Error, 47, 48.
Matters as to grand jury, see Qrand
Jury.
Respective provinces of court and jury,
see Trial.
Right to Jnry trial.
Reversal without remanding for new
trial, see Appeal and Error, 38.
1. A Federal circuit court of appeals
may not reverse the judgment below, en-
tered on a verdict for pUiintiff in a per-
sonal-injury action, without ordering a new
triaL Fideli^ Title & T. Co. v. Dubois
Electric Co. 263 U. S. 212, 40 Sup. Ct.
Rep. 514, 64: 865
2. The constitutional rights of several
defendants tried jointly are not infringed
by the requirement of a Federal statute
that, in cases where there are several de-
fendants, they shall be treated as a single
party for the pujrpose of peremptory chal-
lenges. Schaefer v. United States, 251 U.
S. 466, 40 Sup. Ct. Rep. 259, 64: 360
3. The constitutional right to trial by
jury is not infringed by the compulsory ap-
pointment of an auditor, in an action at law
involving long accounts with many disputed
items, to make a preliminary investigation
as to the facts, hear the evidence, and re-
port his findings, with a view to simplify-
ing the issues for the jury, where the or-
der of appointment, though directing the
auditor to form and express an opinion up-
on facts and items in dispute, declares that
he riiall not finally determine any of the
issues, and that the final determination of
all issues of fact is to be made by the jury
at the trial. Re Peterson, 253 U. S. 300,
40 Sup. a. Rep. 543, 64: 918
4. State courts, when enforcing rights
under the Federal Employers' Liability Act,
may give effect to a local practice permit-
ting a less than unanimous verdict. Chi-
cago, R. I. & P. R. Co. V. Ward, 252 U.
S. 18, 40 Sup. Ct. Rep. 275, 64: 480
LABORERS.
In general, see Master and Servant.
LACHES.
Necessitv of pleading, see Pleading. 6.
1677
LANDLOKD AND TENAXT—MAJOKITY.
LANDLORD A>D TENANT. i
Imposing lien on landlord's premises I
for water rents as denying due
process of law, see Constitutional
Law, 33.
Injunction against enforcement of cove-
nant in lease of coal lands, see
Injunction, 6.
LANDSCAPE ARCHITECT.
Appointment of, see United States, 1-4.
LAW.
Pleading foreign law, see Pleading, 2.
As to statutes, see Statutes.
LAW OF THE LAND.
See Constitutional Law, IIL
LEGISLATURE.
Validity of legislation by, generally, see
Constitutional Law.
Relation of courts to, see Courts, 1-4.
Enactment of statute by, see Statutes.
LIBERTY.
Constitutional right to, tee Constitu-
tional Law, m.
Of speech and press, see Constitutional
Law, V.
LICENSE.
License tax as affecting interstate
commerce, see Commerce, 12-14.
Of right to use copyright, see Copy-
right.
LIENS.
Imposing Hen on landlord's premises
for water rents as denying due
process of law, see Constitutional
Law, 33.
3faritime lien^, tee Maritime Liens.
IiIMITATION OF ACTIONS.
Adverse possession, see Adverse Pos-
session.
Discrimination against nonresident in
statute respecting, see Constitu-
tional Law, 14.
Necessity of pleading laches, see
Pleading, 6.
1. The six months' limitation pre-
scribed by the German Civil Code, § 477,
for claims for defect of quality, did not
apply where the claims had been submitted
to arbitration and passed upon. Birge-
, Forbes Co. v. Heye, 251 U. S. 317, 40 Sup.
Ct. Rep. 160, 64: 986
When statute runs.
2. The taking of a placer mining claim
as part of a site for an army post must,
for the purpose of applying the Statute of
Limitations to a suit against the govern-
ment for compensation, be deemed to have
been on the date of the approval or ratifi-
cation by the Secretary of War of the
unauthorized action of a military com-
mander in taking possession, and not on
the date of the latter's action, in view of
the fact that the Secretary of War alone
19T8
possessed the requisite authorization fron
Congress to determine whether the army
post should be established and what land
should be taken therefor, and the Secre-
tary's action was none the less a taking
of the mining claim because the President,
when reserving the tract from sale and
setting it aside for military -purposes, ha4
done so '^subject to any legal rights which
may exist to any land within its limits."
United States v. North American Tranep.
& Trading Co. 253 U. S. 330, 40 Sup. Ct.
Rep. 518, 64: 9S6
When action harred.
Allowing amendment of pleading after
Statute of Limitations has run, see
Appeal and Error, 42.
Suit to recover back excessive tax,
see Internal Revenue, 23, 24.
For interference in patent office, see
Patents, 5.
3. The two years' limitation of Ver-
non's Sayles's Tex. Ohr. Stat. 1914, art.
5687, is not applicable to a cause of action
against a national bank director for know-
ingly participating in or assenting te an
excessive loan, but such suit is governed
by the four years' limitation prescribed by
art. 5690 for actions for which no limita-
tion is otherwise prescribed. Corsicana
Nat. Bank v. Johnson, 251 l\ R. 68, 40
Sup. Ct. Rep. 82, (Annotated) 64: 141
4. Considered as a new claim, a salt
brought since the amendment of January
11, 1915, to the Act of March 3, 1891, to
recover for depredations committed bj a
hostile band from an Indian tribe in amity
with the United States, is barred by the
three years' limitation in the original act.
Rex V. United States, 251 U. S. 382, 40
Sup. Ct. Rep. 181, 64: S18
•
LIBIITATION OF LIABILITY.
State regulation prohibiting telegraph
company from limiting liability,
see Commerce, 5.
Of vessel owner, see Shipping, 2, 3.
See also Carriers, 2-4.
LITERARY PROPERTY.
See Copyright.
LOCATION.
Of mining claim, see Mines, 1-4.
LODE LOCATION. -
See Mines, 1-4.
MAHER, JAMES D.
Bond of, approved, see ante, Appen-
dix I., p. 1033.
MAIL.
In genera], see Postoffice.
liAJORlTY.
Necessary for adoption of constitution-
al amendment, see Constitutional
Law, 1, 2.
251. 252. 25S U. 9.
MANDAMUS— MASTER AND SERVANT.
HANi>AMUS.
Abatement of mandamus proceedings
by resignation of officer, see Abate-
ment.
Existence of other remedy.
1. Resort may not be had to the extra-
ordinary writ of mandamus or prohibition
where the petitioner has the right to a
writ of error or appeal. Re Tiffany, 252
U. S. 32, 40 Sup. Ct. Rep.. 230, 64: 44S
2. The Federal Supreme Court has iu-
risdiction of a petition for writs of manda-
mus or prohibition directed to a district
court judge, by. which relief is sought
against the appointment of an auditor to
nuLke a preliminary investigation as to the
facts, hear the evidence, and report his
tindings. with a view to simplifying the is-
sues for the jury, where the petitioner as-
serts that, by the appointment of such au-
ditor and proceedings thereunder, his con-
stitutional right to trial by jury would be
violated. Re Peterson, 253 U. S. 300, 40
Sup. Ct. Rep. 543, 64: 819
3. £rror in providing, in an order for
the appointment of an auditor in an action
at law, that the expense be paid by one
or both of the parties, in accordance with
the discretion of the trial court, does not re-
quire that the extraordinary remedies of
mandamus or prohibition be granted, but,
if petitioner deems himself prejudiced by
the error, he may seek redress through ap-
plication to the district court for a modifi-
cation of the order, or, after final judgment,
by vnrit of error ^om the circuit court of
appeals. Re Peterson, 253 U. 8. 300, 40
Sup. Ct. Rep. 543, 64: 818
To control executive action.
4. The Secretary of the Interior cannot
be compelled by mandamus to place upon
the rolls of the Creek Nation the names
of certain persons who, on the last day
fixed by statute for the final completion
of the rolls, he decided, reversing his prior
decision without notice to the Indians,
should be excluded from the rolls, with a
direction that if they were already on the
rolls, which was not the case, they should
be stricken off. United States ex rel. John-
son V. Payne, 253 U. S. 200, 40 Sup. Ct.
Rep. 513, 64: 668
MANUFACTURE. '
What is, see Internal Revenue, 1-4.
MARITI31£ LAW.
See Admiralty,
^fARITniE lilENS.
A person furnishing supplies on the
ma sterns order to a chartered vessel in a
domestic port on the credit of the vessel,
although notified by the owner not to do
so, is entitled to a lien therefor where the
charter party recognizes that liens may be
imposed by the charterers and allowed to
Ktand for less than one month, in view of
the Act of June 23, 1010, which in $ 1
gives a maritime lien for such supplies,
and in § 3 declares the presumption that a
64 L. ed.
master appointed by a charterer has au-
thority to procure them, although the stat-
ute further provides that nothing in it
shall be considered to give a lien where
the furnisher knew, or, l^ the exercise
of reasonable diligence, could have ascer-
tained, that, because of the terms of the
charter purty, or for any other reason, the
person orderinpr necessaries was without
authoritjr to bind the vessel, since if the
assumption expressed in the words of the
charter party, that the charterers had
power to authorize the master to impose the
lien, was not equivalent to a grant of power,
it at least cannot be taken to have excluded
it, and there was nothing from which the
furnisher could have ascertained that the
master did not have power to bind the
ship. South Coast S. 8. Co. v. Rudbach,
251 U. S. 519, 40 Sup. Ct. Rep. 233,
64:366
MARK.
Presumption as to value of Qerman
mark, see Evidence, 4.
MARSHAIi.
Bond of, approved, see ante. Appendix
n., p. 1033.
MASTER AND SERVANT.
State workmen's compensation laws as
affecting maritime law, see Ad-
miralty.
Limiting liability to employee riding
on pass, see Carriers, 2, 3.
Wages of seamen, see Seamen.
Federal employees, tee United States,
1-4.
Hours of labor.
1. Nothing in the provisions of the
Adamson Act of 8eptem1>er 3, 5, 1016, fixing
a permanent eight-hour standard workihg
day for employees engaged in the opera-
tion of trains upon interstate railway car-
riers, and temporarily regulating the wages
of such employees, forbi<& the operation of
an insolvent road under an agreement be-
tween receiyer and employees for a lesser
wage, which agreement the employees de-
sire to keep. Fort Smith & W. R. Co. v.
Mills, 253 IT. S. 206, 40 Sup. Ct. Rep. 526,
oa: W9s
Employers' lilabillty Act.
Assumption of risk, see infra, 0-12.
Misjoinder of causes of action, see Ae-
tion or Suit, 2.
Harmless error in instruction in action
under, see Appeal and i^rror, 44.
Nonunanimous verdict in action under,
see Jury, 4.
2. A brakeman in the general employ
of an interstate railway company, whlcli
had a contract arrangement with a connect-
ing railway company for through freight
service without change of crews, was not in
the employ of the latter company within the
meaning of the Federal Employers' Liability
Act while his train was on that com-
pany's line, where, under such contract,
each company retained control of Its own
1076
MASTER AND SERVANT.
tram crews, what they did upon the line
of the other railroad was done as a part of
their duty to the general employer, and so
far at tiiey were subject, while upon the
tracks of the other company, to its rules,
regulations, discipline, and orders, this was
for the purpose of co-ordinating their move-
ments to the other operations of the own^
ing company, securing the safety of all con-
cerned, and furthering the general object
of the agreement between the companies.
Hull V. Philadelphia & R. R. Ck). 252 U. S.
476, 40 Sup. Gt. Rep. 358, 64: 670
3. A member of a train crew operating
a train of loaded coal cars from colliery
to freight yard, both within the state, is,
althou^ his duties never took him outside
of the state, employed in interstate com-
merce within the meaning of the Federal
Employers' Liability Act so as to exclude
the operation of a state Workmen's Com-
pensation Law, where the ultimate destina-
tion of some of the cars was a point out-
side the state, as appears from instruc-
tion cards or memoranda delivered to the
conductor b^ the shipping clerk of the mine,
each of which . referred to a particular car
by number, and contained certain code let-
ters indicating that such car with its load
would move beyond the state, the course
followed being to haul the cars to the yard
and place them upon appropriate tracks,
when the duties of the train crew ended,
then, having gathered them into a train,
to move them with another crew some 10
miles to a place still within the state, where
they were inspected, weighed, and billed to
specifically designated consignees in anoth-
er state, passing in due time to their final
destinations over proper lines, freight
charges bein^ at through rates and paid for
the entire distance, beginning at the mine.
Philadelphia & R. R. Co. v. Hancock, 253
U. S. 284, 40 Sup. Ct. Rep. 512, 64: 907
4. Generally, when the applicability of
the Federal Employers' Liability Act is* un-
certain, the character of the employment in
relation to commerce may be adequately
tested by inquiring whether, at the time of
the injury, the employee was engaged in
work so closely connected with interstate
transportation as practically to be a part
of it. Southern P. Co. v. Industrial Acci.
Commission, 251 U. S. 259, 40 Sup. Ct.
Rep. 130, 64: 958
5. An employee of an interstate railway
company assigned to duty in a signaling
tower and pumping station was engaged in
interstate commerce within the meanine of
the Federal Employers' Liabili^ Act while
starting a gasolene engine at the pumping
station, which was used to pump water
into a tank from which water was to be
supplied daily to locomotives in whatever
commerce, interstate or intrastate, engaged.
Erie R. Co. v. Collins, 253 U. S. 77, 40 Sup.
Ct. Rep. 450, 64: 790
6. A railway employee charged with the
duty of sanding the locomotives of a rail-
way company engaged both in intrastate
and interstate commerce is engaged in inter-
state' commerce within the meaning of the
1080
Federal Employers' Liability Act when,
having sanded the last locomotive an^ car-
ried the ashes from the drying stove in the
sand house to the ash pit across the tracka,
he was struck by a passine locomotive on
his way to get tne ash pail, which he had
left at the pit while he went for a drink
of water, and it is immaterial in what
kind of commerce the last locomotive sand-
ed was engaged. Erie R. Co. v. Szary,
253 U. S. 86, 40 Sup. Ct. Rep. 454, 64: 794
7. The work of an electric lineman in
wiping insulators on one of the main elec-
tric cables of an interstate railway carrier
running from a power house to a reduc-
tion and transforming station, whence the
current ran to the trolley wires and thence
to the motors of tiie carrier's cars engaged
in both intrastate and interstate commerce,
is so directly and intimately connected with
interstate transportation as to render a
state workmen's compensation law inappli-
cable, where the lineman was killed as the
result of an electric shock received while so
engaged. Southern P. Co. v. Industrial
Acci. Commission, 251 U. S. 250, 40 Sup.
Ct. Rep. 130, 64: SM
Safety Appliance Act.
Review of concurrent findings aa te
empl^^s negligence, see Appeal
and Error, 41.
8. Handholds or grab irons on all four
outside comers of freight cars are not re-
quired by the provision of the Safety Ap-
pliance Act of March 2, 1893, making un-
lawful the use of any car in interstate
commerce unless such car is provided with
secure grab irons or handholds in the ends
and sides for greater security to men in
coupling and uncoupling cars. The com-
mands of the statute are met by secure and
adequate handholds at two diagonal cor-
ners of the car. Boehmer v. Pennsylvania
R. Co. 252 U. 8. 496, 40 Sup. Ct. Rep. 409.
(Annotated) 64: 680
Assumption of risk.
Harmless error in instruction respect-
ing, see Appeal and Error, 45.
9. Assumption of risk is a defense to
which a defendant sued under the Federal
Employers' Liability Act is entitled, where
the injury was caused otherwise than by
the violation of some statute enacted to
promote the safety of employees. Chicago.
R. I. & P. R. Co. V. Ward, 252 IT. S. 19.
40 Sup. Ct. Rep. 275, 64: 430
10. So far as extraordinary hazards
are concerned, an interstate railway em-
ployee may assume that the employer and
his agents have exercised proper care with
respect to his safety until notified to the
contrary, unless the want of care and dan-
gers arising from it are so obvious that an
ordinarily careful person, under the circum-
stances, would observe and appreciate them.
Chicago, R. I. k P. R. Co. v. Ward, 252
U. S. 18, 40 Sup. Ct. Rep. 275, 64: 480
11. The Federal Employers' Liability
Act places a coemployee*s negligence, when
it is the ground of the action, in the same
relation as that of the ^nplover upon the
251, 252*. 258 17. S.
MAXIMS— MINES.
mitt«r of the aasumption of risk. Chicago,
B. I. 4 P. R. Co. V. Ward, 262 U. S. 18,
40 Sup. Ct. Rep. 275, 64: 430
12. A switchman riding on a cut of
freight cars which he was to eheck by ap-
plying a brake when these cars should be
eut off from the engine does not assume the
risk of sudden precipitation from the front
end of a car by the abrupt checking result-
ing from the failure of the engine foreman
10 make the disconnection at the proper
time. Chicago, R. I. & P. R. Co. v. Ward,
262 U. S. 18, 40 Sup. Ct. Rep. 276, 64: 430
fiJabillty of master to third person.
13. A railway company is not relieved
from liability in damages under the law
of the Republic of Panama for injuries re-
sulting from the negligence of an employee
merely because the negligent act was also
punishable as a crime. Panama K. Co.
y. Toppin, 252 U. S. 308, 40 Sup. Ct. Rep.
819, 64: 582
14. The exercise by a railway company
of care in the selection of an employee does
not relieve it, under the law of the Re-
public of Panama, from liability .in dam-
ages for injuries resulting from the neg-
ligence of such employee. Panama R. Co.
y. Toppin, 252 U. S. 308, 40 Sup. Ct. Rep.
310, 64: 588
HAXIMS.
Mobilia sequuntur personam. Maguire
y. Trefry, 263 U, 8. 12, 40 Sup.
Ct. Rep. 417, 64: 739
ICBCHANICS* IiI£N.
Maritime liens for supplies, see Mari-
time Liens.
•
MIGRATORY BIRDS.
Validity of Migratory Bird Treaty, see
Treaties.
MILITARY TRIBUNAIiS.
Exclusive jurisdiction of, see War, IS.
MIXERAti LANDS.
Sufficiency of fraudulent r^reecntation
as to character of, see Evidence, 10.
MINES.
Indemnity selection of mineral lands
by railroad, see Public Lands, 6.
Location; boundaries; work.
Admissions of locator of mining claim,
see Eyidence, 8.
Self-serying deelarations by locator of
mining claim, see Eyidence, 0.
Location within monument reserve, see
Public Lands, 6, 7.
1. To make a lode mining claim yalid,
or to inyest the locator with a right to pos-
ssssion, it is essential that the lands be
mineral in character, and that there be an
adequate mineral discovery within the lim-
its of the claim as located. Cameron y.
United States, 252 U. S. 450, 40 Sup. Ct.
Rep. 410, 64: 659
2. To support a lode mining location
i4 L. ed.
the discovery should be such as would jus-
tify a person of ordinary prudence in the
further expenditure of his time and means
in an effort to develop a paying mine.
Cameron v. United States, 262 U. S. 450,
40 Sup. Ct. Rep. 410, 64: 659
3. The necessity of a discovery to sus-
tain a lode mining location is not dispensed
with nor may its absence be cured by vir-
tue of the provisions of U. S. Rev. Stat, f
2332, that evidence of holding and working
a mining claim for a period equal to the
time prescribed by the Statute of Limita-
tions for mining claims of the state or
territory where the same may be situated
shall be sufficient to establish a right to a
patent thereto in the absence of any ad-
verse claim. Cole v. Ralph, 262 U. S. 286.
40 Sup. Ct Rep. 321, 64: 567
4. The Secretary of the Interiol, by
virtue of the general powers conferred by
U. S. Rev. Stat. §§ 441, 463, 2478, may de-
termine, after proper notice and upon ade*
quate hearing, whether an asserted lode
mining location which has not gone to pat-
ent, under which the locator is occupying
and using a part of the public reserves, is
a valid claim, and, if found to be invalid,
may declare it void and recognize the rights
of the public. Cameron v. United States,
252 U. S. 460, 40 Sup. Ct. Rep. 410, 64: 659
Adverse proceedings.
5. A party to an unrecorded contract
executed by the locators of a placer min-
ing claim which gave him a right to a
specified share in uie output or proceeds of
such claim, and possibly a right to have it
worked and thereby made productive, has
no such interest as to malce him . an es-
sential party to proceedings in the land
office adverse to a conflicting lode location,
but his interest is such as U) make him an
admissible party. Cole v. Ralph, 262 U. S.
286, 40 Sup. Ct. Rep. 321, 64: 567
6. The interest of a party to an un-
recorded contract executed by the locators
of a placer mining claim which gave him
a right to a specified share in the output
or proceeds of the claim, and possibly a
right to have it worked and thereby made
productive, though not such as to make him
an essential party to a suit in support of
such claim adverse to a conflicting lode lo-
cation, is such as to make him an t^missible
party plaintiff. Cole v. Ralph, 262 U. S.
286, 40 Sup. Ct. Rep. 321, 64: 567
7. Attachment proceedings against a
placer claimant, begun before he filed a
claim adversing a conflicting lode location,
but not resulting in a transfer of his title
until after an adverse suit was begun, did
not make him an inadmissible pi^rtv plain-
tiff in the latter suit. Cole v. Ralph, 258
U. 8. 286, 40 Sup. Ct Rep. 321, 64: 567
8. The conveyance by a husband to his
wife of his interest in a placer mining claim
under such circumstances that by the local
law such interest became community prop-
erty which he could lease or convey with-
out the wife's concurrence, and could sue
in respect of it in his own name alone,
did not nuike him an inadmissible party
1081
MINNESOTA— MONOPOLY.
plaintiff in suit in support of such claim
adverse to a conflicting lode location. Cole
V. Ralph, 252 U. S. 286, 40 Sup. Ct. Rep.
321, 64: 567
9. A mistake in the given name of a
party to adverse proceedings in the land
oifice is properly disregarded by the court
in a suit in support of the adverse claims,
where this was a mere inadvertence and
did not mislead or prejudice anyone. Cole
V. Ralph, 252 U. S. 286, 40 Sup. Ct. Rep.
321, 64: 567
MINNESOTA.
Boundary between Minnesota and Wis-
consin, see Boundaries, 2-5.
3U8JOINDER.
Of causes of action, see Action or Suit,
2. .
MISREPKESBNTATIONS.
Of conditions surrounding public im-
provement, see United States, 9, 10.
MISSISSIPPI.
Boundary between Arkansas and Mis-
sissippi, see Boundaries, 1.
MISTAKK.
Recovering back payment on forged
draft, see Assumpsit.
In posting notice of location of mining
claim, see Evidence, 8.
In name of party to adverse proceed-
ing in land office, see Mines 9.
MONEY.
Presumption as to value of foreign
money, see Evidence, 4.
MONOPOIiY.
Dismissal without prejudice of suit
to dissolve monopoly, see Appeal
and Error, 54.
Federal jurisdiction of treble damage
suit, see Courts, 9.
lujimction against enforcement of
monopolistic contract, see Injunc-
tion, 6.
Extent of relief in suit to dissolve
monopoly, see Judgment, 1.
1. A court, when asked to dissolve a
corporation as an alleged violator of the
Sherman Anti-trust Act, should consider,
not what the corporation had power to do
or did, but what it now has power to do
and is doing. United States v. United
States Steel Corp. 251 U. S. 417, 40 Sup.
Ct. Rep. 293, 64: 343
2. The Sherman Anti-trust Act is di-
rected against monopoly; not against an
expectation of it, but against ito realiza-
tion. United States v. United States Steel
Corp. 261 U. 8. 417, 40 Sup. Ct. Rep. 293,
64:843
8. The mere size of a corporation, or
the existence of unexerted power unlaw-
fully to restrain competition, does not of
itself make such a corporation a violator
of the Sherman Anti-trust Act. United
1082
States V. United SUtes Steel Corp. 251 U.
S. 417, 40 Sup. Ct. Rep. 293, 64: 848
4. A holding corporation which by its
formation united under one control com-
peting companies in the steel industry, but
which did not achieve monopoly, and only
attempted to fix prices through occasional
appeals to and confederation with compet-
itors, whatever there was of wrongful in-
tent not having been executed, and what-
ever there was of evil effect having been
discontinued before suit was brought,
should not be dissolved nor be separated
from some of its subsidiaries at the suit of
the government, asserting violations of the
Sherman Anti-trust Act, — especially where
the court cannot see that the public interest
will be served by yielding to the j^ovem-
ment's demand, and does see in so yielding
a risk of injury to the public interest, in-
cluding a material disturbance of, and, per-
haps, serious detriment to, the foreign
trade. United States v. United States Steel
Corp. 251 U. S. 417, 40 Sup. Ct. Rep. 293.
64:843
5. A covenant in a lease by a coal com-
pany of a railway owned by it to another
railway company, which may be construed
to require the coal company to ship to
market over the leased Ime three fourths
of all the coal it produces, cannot be said
to impose on undue restriction upon the
coal company in selecting its markets and
in shipping its coal, in violation of the
Sherman Anti-trust Act, where the lines
of the two railway companies are in no
sense competitive, the leased line serving
as a natural extension of the lessee rail-
way company's lines to the great tonnage
producing coal districts, and where the
rental to be paid is one third of the groea
earnings of the railway. United States
v. Reading Co. 253 U. 8. 26, 40 Sup. Ct.
Rep. 425, 64: 760
6. An undue and unreasonable restraint
of interstate trade and commerce in anthra-
cite coal, and an attempt to monopolize and
a monopolization of such trade and com-
merce, forbidden by the Sherman Anti-trust
Act, and calling for dissolution of the com-
bination, result from a scheme whereby a
holding company was created and placed
by stock control in a position to dominate,
not only two great competing interstate
railway carriers, but also two great com-
peting coal companies engaged extensively
m mining and sellii^ anthracite coal whicii
must be transported to interstate market^
over the controlled interstate railway lines,
which power of control was actually used.
once successfully, to suppress the building
of a prospective competitive railwav Hne.
and a second time successfully, until the
Federal Supreme Court condemned certain
percentage coal contracts as illegal, to sup-
press the last prospect of competition in an-
thracite production and transportation, the
holding company continuing, up to the time
the present dissolution suit waa begun, in
active dominating c<mtr<yi of the carriers
and coal companies, thus effectually sup-
pressing all competition between the four
251, 232, 258 U. •.
MONUMENT RESERVE— MUNICIPAL CORPORATIONS.
companies and pooling their eaminss. i
United States v. Reading Co. 253 U. S. §6, 1
40 Sup. Ct. Rep. 425, 64: 760
7. A complaint issued hy the Federal
Trade Commission under the Act of Sep-
tember 26, 1914, § 5, is wholly insufficient
to charge respondents with practising *iin-
fair methods of competition in commerce"
within the meaning of that section, and
hence affords no foundation for an order
of the Commission directing them to desist
from using such prohibited method of com-
petition, where it alleges that respondents,
engaged in selling cotton ties and bagging,
refused to sell any ties unless the pur-
chaser will buy from them a corresponding
amount of basging, but contains no inti-
mation that they did not properly obtain
their ties and bagging as merchants usual-
ly do, does not state the amount controlled
bj them, nor does it allege that they held
a monopoly of either ties or bagging, or
had the ability, purpose, or intent to ac-
quire one, averring nothing which would
justify the conclusion that the public suf-
fered injury, or that competitors had rea-
sonable ground for complaint. Federal
lYade Commission v. Gratz, 253 U. S. 421,
40 Sup. Ct. Rep. 572, 64: 993
Price restrictions.
8. A manufacturer of patented automo-
bile tire accessories violates the Sherman
Anti-trust Act when it requires all tire
manufacturers and jobbers to whom it sells
to execute uniform oontracts which obligate
them to observe certain fixed resale prices;
it would be otherwise if the manufacturer
had merely specified the resale -prices and
fefused to* deal with anyone who failed to
observe them, but had not entered into an^
oontract or combination which would obh-
fate the vendees to maintain such prices.
Fnited States v. A. Schrader's Son, 252
U. 8. 85, 40 Sup. Ct Rep. 251, 64: 471
MOHrUMENT RESERVE.
Location of mining claim within, see
Public Lands, 6.
See also Public Lands, 1.
MOOT CASE.
Reversal for dismissal of, see Appeal
and Error, 29.
MORTGAGE.
Compensation for carrying mails as
affected by foreclosure of mortgage
on railroad, see Postoffice, 10.
MORTUARY TABLES.
Use of, in computing succession tax, see
Internal Revenue, 21.
MOTIONS AND ORDERS.
Im appellate court, see Appeal and Er-
ror, V.
MOTIVE.
Suflkiency of averments in indict-
ment as to, see Indictment and
Information, 1.
•4 li. «d.
MOVING PICTURES.
Moving picture rights under copyright
license, see Copyright.
MUNICIPAL CORPORATIONS.
Relation of courts to municipal de-
partment of government, see
Courts, 5.
Requiring street sprinkling by street
railway company as denying equal
protection of the laws, see Consti-
tutional Law, 15.
Requiring street railway company to
pave street OM denying due process
of law, see Constitutional Law, 31.
Requiring street railway company to
sprinkle street as denying * due
process of law, see Constitutional
Law, 32.
Municipal displacement of private
lighting plant as denving due proc-
ess of Uw, see Constitutional Law,
35.
Prohibiting use of one-man street car
as d^iying due process of law, see
Constitutional Law, 42.
Validity of municipal regulation of
electric light company, see Con-
stitutional Law, 46.
Poliee power over street railway sprink*
ling, see Constitutional law, 72.
Compulsory street railway sprinkling
as impairing contract obligation,
see Constitutional Law, 78.
Requiring street railway company to
pave street as impairing contract
obligation, see Constitutional Law,
79.
Municipal regulation of electric com-
pany as impairing contract obli*
fations, see Constitutional Law,
1.
Exclusive electric light and power fran-
chise, see Electric Lights and
Power.
Regulation of water rates, see Waters.
1. The construction of a municipal
electric street lighting system was not done
in the city's governmental capacity, — an ex-
ettion of police power, — but in its pro-
prietary or quasi private capacity, and
therefore the city is subordinate in right
to a private corporation which was an
earlier and lawful occupant of the field.
Los Angeles v. Los Angeles Gas k Electric
Corp. 251 U. S. 32, 40 Sup. Ct. Rep. 76.
64: tin
2. Independently of a right to regulate
and control the rates to be charged for pub-
lic service reserved in a grant of a fran-
chise or right to use the city streets, a
city or other municipality has no power to
regulate rates to be charged by water, light-
ing, or other public service corporations, in
the absence of express or plain legislatire
authority to do so, nor does such authority
arise from the power to regulate the open-
ing and use of streets, nor from a grant
of the general right to control and regulate
the right to erect works and lay pipes in
the city streets. Winchester v. Winche»ter
1088
MINN£SOXA^MONOPOLY.
plaintiff in suit in support of such claim
adverse to a conflicting lode location. Cole
V. Ralph, 252 U. S. 286, 40 Sup. Ct. Rep.
321, 64: ff87
9. A mistake in the given name of a
party to adverse proceedings in the land
oiBce is properly disregarded by the court
in a suit in support of the adverse claims,
where this was a mere inadvertence and
did not mislead or prejudice anyone. Cole
V. Ralph, 262 U. S. 286, 40 Sup. Ct. Rep.
321, 64: 567
MINNESOTA.
Boundary between Minnesota and Wis-
consin, see Boundaries, 2-5.
MISJOINDER.
Of causes of action, see Action or Suit,
2. .
MISREPRESENTATIONS.
Of conditions surrounding public im-
provement, see United States, 9, 10.
MISSISSIPPI.
Boundary between Arkansas and Mis-
sissippi, see Boundaries, 1.
MISTAKE.
Recovering back payment on forged
draft, see Assumpsit.
In posting notice of location of mining
claim, see Evidence, 8.
In name of party to adverse proceed-
ing in land office, see Mines 9.
MONEY.
Presumption as to value of foreign
money, see Evidence, 4.
MONOPOLY.
Dismissal without prejudice of suit
to dissolve monopoly, see Appeal
and ii^rror, 54.
Federal jurisdiction of treble damage
suit, see Courts, 0.
Injunction against enforcement of
monopolistic contract, see Injunc-
tion, 6.
Extent of relief in suit to dissolve
monopoly, see Judgment, 1.
1. A court, when asked to dissolve a
corporation as an alleged violator of the
Sherman Anti-trust Act, should consider,
not what the corporation had power to do
or did, but what it now has power to do
and is doing. United States v. United
States Steel Corp. 261 U. S. 417, 40 Sup.
Ct. Rep. 293, 64: 343
2. The Sherman Anti-trust Act is di-
rected against monopoly; not against an
expectation of it, but against its realiza-
tion. United States v. United States Steel
Corp. 251 U. 8. 417, 40 Sup. Ct. Rep. 293,
64:843
8. The mere size of a corporation, or
the existence of unexerted power unlaw-
fully to restrain competition, does not of
itself make such a corporation a violator
of the Sherman Anti-trust Act. United
1082
States V. United SUtea Steel Corp. 251 U.
S. 417, 40 Sup. Ct. Rep. 293, 64: 36S
4. A holding corporation which by Us
formation united under one control com-
peting companies in the steel industry, but
which did not achieve monopoly, and only
attempted to fix prices through occasional
appeals to and confederation with compet-
itors, whatever there was of wrongful in-
tent not having been executed, and what-
ever there was of evil effect having been
discontinued before suit was brought,
should not be dissolved nor be •epar&tad
from some of its subsidiaries at the suit of
the government, asserting violations of th«
Sherman Anti-trust Act, — especially where
the court cannot see that the public interest
will be served by yielding to the jfovcm-
menVs demand, and does see in so yielding
a risk of injury to the public interest, in-
cluding a material disturbance of, and, {per-
haps, serious detriment to, the foreign
trade. United States v. United States Steel
Corp. 261 U. S. 417, 40 Sup. Ct. Rep. 293.
64:843
5. A covenant in a lease by a coal com-
pany of a railway owned by it to another
railway company, which may be construed
to require the coal company to ship to
market over the leased hne three fourths
of all the coal it produces, cannot be said
to impose on undue restriction upon the
coal company in selecting its markets and
in shipping its coal, in violation of the
Sherman Anti-trust Act, where the lines
of the two railway companies are in no
sense competitive, the leased line serving
as a natural extension of the lessee rail-
way company's lines to the great tonnage
producing coal districts, and where the
rental to be paid is one third of the groes
earnings of the railway. United States
V. Reading Co. 253 U. S. 26, 40 Sup. Ct.
Rep. 425, 64: 760
6. An undue and imreasonable restraint
of interstate trade and commerce in anUm-
cite coal, and an attempt to monopolize and
a monopolization of such trade and com-
merce, forbidden by the Sherman Anti-trust
Act, and calling for dissolution of the com-
bination, result from a scheme whereby a
holding company was created and placed
by stock control in a position to dominate,
not only two great competing interstate
railway carriers, but also two great com-
peting coal companies engaged extensively
in mining and selling anthracite coal which
must be transportecT to interstate market^
over the controlled interstate railway lines,
which power of control was actually used,
once successfully, to suppress the building
of a prospective competitive railway Une.
and a second time successfully, until the
Federal Supreme Court condemned certain
percentage coal contracts as illegal, to sup-
press the last prospect of competition in an-
thracite production and transportation, the
holding company continuing, up to the tinse
the present dissolution suit was begun, in
active dominating control of the carriers
and coal companies, thus effectually sup-
pressing all competition between the four
251, 252, 358 U. •.
MONUMENT RESERVE— MUNICIPAL CORPORATIONS.
compaiiiM and pooling their earnings, i
United States v. Reading Co. 253 U. S. ^6, 1
40 Sup. Ct. Rep. 425, 64: 760
7. A complaint issued by the Federal
Trade Commission under the Act of Sep-
tember 26, 1914, § 5, 19 wholly insufficient
to charge respondents with practising **un-
lair methods of competition in commerce"
within the meaning of that section, and
hence affords no foundation for an order
of the Commission directing them to desist
from using such prohibited method of com-
petition, where it allies that respondents,
engaged in selling cotton ties and bagging,
refused to sell any ties unless the pur*
chaser will buy from them a corresponding
amount of baffging, but contains no inti-
mation that they did not properly obtain
their ties and bagging as merchants usual-
ly do, does not state the amount controlled
bj them, nor does it allege that they held
a monopoly of either ties or bagging, or
had the ability, purpose, or intent to ac-
quire one, averring nothing which would
justify the conclusion that the public suf-
fered injury, or that competitors had rea-
sonable ground for complaint. Federal
lYade Commission v. Gratz, 253 U. S. 421,
40 Sup. Ct. Rep. 572, 64: 993
Price restrictions.
8. A manufacturer of patented automo-
bile tire accessories violates the Sherman
Anti-trust Act when it requires all tire
manufacturers and jobbers to whom it sells
to execute uniform contracts which obligate
them to observe certain fixed resale prices;
it would be otherwise if the manufacturer
had merely specified the resale -prices and
refused to* deal with anyone who failed to
observe them, but had not entered into an^
oontract or combination which would obli-
gate the vendees to maintain such prices.
United States v. A. Sdirader's Son, 252
U. 8. 85, 40 Sup. Ct Rep. 251, 64: 471
MOSVMEST RESERVE.
Location of mining claim within, see
Public Lands, 6.
See also Public Lands, 1.
MOOT CASE.
Reversal for dismissal of, see Appeal
and Error, 29.
MORTGAGE.
Compensation for carrying mails as
affected by foreclosure of mortgage
on railroad, see Postoffice, 10.
MORTUARY TABLES.
Use of, in coniputing succession tax, see
Internal Revenue, 21.
MOTIONS AND ORDERS.
Im appellate court, see Appeal and Er-
ror, V.
MOTIVE.
Suflkiency of averments in indict-
ment as to, see Indictment and
Information, 1.
•4 li. «d.
MOVING PICTURES.
Moving picture rights under copyright
license, see Ck^pyright.
MUNICIPAL CORPORATIONS.
Relation of courts to municipal de-
partment of government, see
Courts, 5.
Requiring street sprinkling by street
railway company as denying equal
protection of the laws, see Consti-
tutional Law, 15.
Requiring street railway company to
pave street ois denying due process
of law, see Constitutional Law, 31.
Requiring street railway company to
sprinkle street as ' denying * due
process of law, see Constitutional
Law, 32.
Municipal displacement of private
lighting plant as denying due proc-
ess of law, see Constitutional Law,
35.
Prohibiting use of one-man street car
as denying due process of law, see
Constitutional Law, 42.
Validity of municipal regulation of
electric light company, see Con-
stitutional Law, 46.
Police power over street railway sprink-
ling, see Constitutional law, 72.
Compulsory street railway sprinkling
as impairing contract obligation,
see Constitutional Law, 78.
Requiring street railway company to
pave street as impairing contract
obligation, see Constitutional Law,
79.
Municipal regulation of electric com-
pany as impairing contract obli*
fations, see Constitutional Law,
1.
Exclusive electric light and power fran-
chise, see Electric Lights and
Power.
R^ulation of water rates, see Waters.
1. The construction of a municipal
electric street lighting system was not done
in the city's governmental capacity, — an ex-
ettion of police power, — but in its pro-
prietary or quasi private capacity, and
therefore the city is subordinate in right
to a private corporation which was an
earlier and lawful occupant of the field.
Los Angeles v. Los Angeles Gas & Electric
Corp. 261 U. S. 32, 40 Sup. Ct. Rep. 76.
64: tin
2. Independently of a right to regulate
and control the rates to be charged for pub-
lic service reserved in a grant of a fran-
chise or right to use the city streets, a
eity or other municipality has no power to
regulate rates to be charged by water, light-
ing, or other public service corporations, in
the absence of express or plain legislative
authority to do so, nor does such authority
arise from the power to regulate the open-
ing and use of streets, nor from a grant
of the general right to control and regulate
the right to erect works and lay pipes in
the city streets. Winchester v. Winche»ter
1088
MUNITIONS TAX— NOTES (EDITORIAL) INDEX TO.
Waterworks Co. 261 U. S. 102, 40. Sup.
Ct. Rep. 123, 64: 281
HUNITIONS TAX.
See Internal ReTenue, 1-4.
MURDCR.
See Homicide.
NATIONAI^ BANKS.
See Banka.
NAVIGABIJS WATBRS.
As Btate boundary, see Boundaries.
NBGIilGfiNXE.
Of bank officer, see Banks, 2, 3.
Limiting liability of carrier for, see
Carriers, 2-4.
Abolishing common-law defense of
contributory negligence as deny-
ing due process of law, see Con-
stitutional Law, 62.
Making contributory negligence a
Suestion for the jury as denying
ue process of law, see Constitu-
tional Law, 63.
Of master or servant, see Master and
Senant.
In matters relating to shipping, see
Shipping.
1. The absence of any contract rela-.
tion between one who suspends a banner
across a city street and travelers in the
street below does not relieve him from the
duty to use reasonable care to protect such
travelers from injury resulting from his
act. Fidelity Title & T. Co. v. Dubois
Electric Co. 253 U. S. 212, 40 Sup. Ct. Rep.
614, 64: 865
2. When a dangerous condition has
been called fully into existence by a per-
son, he cannot escape liabilitv for an in-
jury, the resUt of such condition, which
he alone knew, had created, and had ar-
ranged to have continue, merely by sur-
rendering control shortly before the acci-
dent. Fidelity Title A T. Co. v. Dubois
Electric Co. 263 U. S. 212, 40 Sup. Ct. Rep.
614, 64: 866
3. Ona who, at the request of a mem-
ber of a political party, suspends a polit-
ical banner across a city street, cannot be
•aid, as matter of law, to have sur-
rendered control so as to relieve him from
liability for an injury to a person, due to
HiB negligent way in which the banner was
suspended, where there was evidence which,
if b^eved, warranted the finding that he
also undertook the care of the banner
while it was up. Fidelity Title & T. Co. v.
Dubois Electric Co. 253 U. S. 212, 40 Sup.
Ct. Rep. 614, 64: 866
NEGROES.
Separate coach law as affecting inter-
state commerce, see Commerce, 6,
7.
NEUTRAIilTY.
One may be retained in the sense
1084
of the Criminal Code, § 10, providbig for
the punishment of whoever, within tke
territory or jurisdiction of the United
States, hires or retains anotiier to ffo be-
yond such limits or jurisdiction with la-
tent to be enlisted in the service of another
foreign people, as effectively by a verbal
as by a written promise, by a prospect tm
payment in the future as by immediate
payment of cash. Gayon v. McCarthy, 262
IT. S. 171, 40 Sup. Ct. Rep. 244, 64: ill
NEW MEXICO.
Grant of public lands to, tee PaVUe
Lands, 2.
NEW TRIAI/.
Reversal without remanding for new '
trial, see Appeal and '&tot, 38.
NONRESIDENTS.
Unconstitutional discrimination against.
see Constitutional. Law, 14.
. Due process of law in taxing incomes
of, see Constitutional Law, 66-
69.
Taxation of income of, see Taxes, 2.
NOTES (Editorial) INDEX TO.
For Generar Index to Notes in this ae-
ries, see 66 L. ed. U. 8. p. 061.
Action or snit; joinder of parties or
causes of action in suits under
Federal Employers' liability Aot.
Banks; liability of national bank diree-
tors for excessive loan to bor-
rower. 64: 141
GiTil riglits; separating white and ne^pe
passengers as interference with
interstate commerce. 64: 6S1
Commerce; peddlers and drummers as re-
lated to interstate commeree.
64: IM
State regulation of natural gas rates
as affected by the commeroe
clause of the Federal Oonstitu*
tion. 64: 434
Constitutional law; power of municipal-
ity to* prohibit use of one-maB
^ street oar. 64: t06
Validity and construction of statutes
taxing the income of nonreai*
d€>pts from trade, buaineea, or
, other sources within the state.,
64:446
Validity and construction of statutes
taxing the income of a resideat
deriv^ from foreign trade or in-
vestment. 64: 78^
Duty of railway company to install
stock scales at station. 64: 767
• See also Civil Rishts.
Copyright; copyright license as including
moving picture rights. 64: 680
District attorney; right of grand jury to
reconsider, or district attorney to
resubmit, a charge that haa ooee
been acted upon by the grand
jury and "not a true bill** found.
64: 883
261, 852, 2M IT. 8.
NOTI C t— PARTN ERSH IP.
Gas; lee Gommerce.
Chrand jury; tee District Attorney.
Income tax; tee Constitutional La\r.
Master and servant; measure of duty
under requirement of safety ap-
pliance acts as to handholds or
grab irons on railway cars. 64: 681
See ako Action or Suit.
MoTin^ pictures; see Copyright.
Municipal corporations; see Constitu-
tional Law.
National banks; see Banks.
Negroes; see Civil Rights.
Parties; see Action or Suit.
Railroads; see Constitutional Law.
Statutes; see Constitutional Law.
Street railways; see Constitutional Law.
\; see Constitutional Law.
NOnCB.
Sufficiency of notice and hearing in
eminent domain proceeding, see
Constitutional Law, 66-70.
OBJECTIONS.
Sufficiency of, on appeal, see Appeal
and Error, IV.
OFFICCRS.
Abatement of action by resignation of
officer, see Abatement and Re-
vival.
Arrest by, see Arrest.
Of bank, see Banks.
Fees and commissions of clerk of
court, see Clerks.
Of corporation, see Corporations.
Jurisdiction of United States commis-
sioner, see Criminal Law, 6.
District attorney, see District Attor-
ney.
Injunction against Federal officials,
see Injunction, 1.
Judges, see Judges.
Appointment of auditor as infringing
right to jury trial, see Jury, 3.
Mandamus to, see Mandamus.
Federal employees, see United States,
1-4.
Suit against Federal officer, see Unit-
ed States, 6.
The power to remove an official is,
in the absence of statutory provision to
the contrary, an incident of the power to
appoint, and the power of suspension is
an incident of the power of removal.
Bumap V. United States, 252 U. S. 512. 40
Sup. Ct. Rep. 374, 64: 692
OUi.
Due process of law in rate regulation
of oil pipe line, tee Constitutional
Law, 43, 44.
OUi liANDS.
Sufficiency of fraudulent representa-
tion as to, see Evidence, 10.
Cancelation of patent for oil lands,
see Public Lands, 8
•4 I/, ed.
OPTION.
See Contracts.
ORIGINAL PACKAGES.
State license tax on sale of gasolene
in original package, see Com-
merce, 12, 18.
PANAMA.
Rule of damages in, see Damages, S.
Master's liability for negligence of
servant, see Master and Servant,
13, 14.
PARIilAMENTART LAW.
Two-thirds vote, see Constitutional
Law, 1.
PARTIES,
Misjoinder, see Action or Suit, 2.
In proceeding to adverse mining claim,
see Mines, 5-9.
Suits by or against state, see States.
Suit against Federal officer, see Unit-
ed Sttftes, 6.
Who may sue.
Suit by Federal officer, see United
States, 6.
Who may sue United States for in-
fringement of patent, see Pat-
ents, 7, 8.
1. An assi^ee of the legal title to
reparation claims may claim an award of
reparation by the Interstate Commerce
Commission, and recover the amounts
awarded by an action at law, brought in
his own name, but for the benefit of the
equitable holders of the claim, — especially
where such is the real purpose of the as-
signments. Spiller V. Atchison, T. & S. F.
R. Co. 253 U. S. 117, 40 Sup. Ct. Rep. 466,
64:810
Bringing in; intervention.
2. iSe trial court properly admitted as
a party plaintiff before trial a person who
had a real interest in the prosecution of
the suit, — especially where the local stat-
utes are very liberal in this regard, and
there is no ground for believing that his
presence as a party could have prejudiced
the defendant. Cole v. Ralph, 252 U. S.
286, 40 Sup. Ct. Rep. 321, 64: 667
3. In a suit between states the motion
of the United States for leave to inter-
vene therein for an injunction and the ap-
pointment of a receiver was granted.
Oklahoma v. Texas, 252 U. S. 372, 40 Sup.
Ct. Rep. 353, 64: 619
Oklahoma v. Texas, 253 U. S. 465, 40 Sup
a. Rep. 580, 64: 1015
Oklahoma v. Texas, 253 U. S. 470, 40 Sup.
Ct. Rep. 580, 64: 1017
Oklahoma v. Texas, 253 U. S. 471, 40 Sup.
Ct. Rep. 582, 64: 1017
PARTNERSHIP.
Individual and partnership creditors
in bankruptcy proceedings, see
Bankruptcy, 5.
1085
FASS^PERSONAL INJURIES.
PASS.
Limiting liability for negligence
toward passenger riding on pass,
•ee OarrierB, t, 3.
PA66BNGER.
limiting liability for negligence to
ipratoitous passenger, eee Car-
riers, 2, 3.
PATENTS.
InTention.
1. Patentable novelty cannot be as-
serted for a device which has been de-
scribed in forei^ printed publications.
Bone V. Marion County Comrs. 251 U. S.
134, 40 Sup. Ct. Rep. 96, 64: 188
2. In view of the prior art, the only
originality that can be accorded to the
Bone patent, number 705,732, for a steel
reinforced concrete retaining wall with a
heel and toe at the base, so constructed
that the weight of the retaining material
upon the heel of the inclosed metal struc-
ture will operate to retain the wall in a
vertical position, is in its special form,
and there can be no infringement except
by a copy of that form or a colorable im-
itation of it. Bone v. Marion County
Comrs. 251 U. S. 134, 40 Sup. Ct. Rep. 96,
64: 188
Description.
3. A practical and useful invention is
not disclosed by patent No. 1,057,397, for
an improvement in photographing and de-
veloping apparatus, where the short re-
ciprocating movement of the film-carrying
rack, without which the machine confessed-
ly cannot be successfully operated, is not
disclosed in the patent, as it must be under
(7. S. Rev. Stat. § 4888, in order to render
it valid. Beidler v. United SUtes, 253 U.
S. 447, 40 Sup. Ct Rep 564, 64: 1006
Oonstmction.
4. The claim of invention embodied in
patent No. 1,057,397, for an improvement
in photographing and developing appa-
ratus, must, in view of the prior art, be
restricted to the disclosed construction and
operation of the mechanism for carrying
the exposed section of film through the de-
veloping and other solutions or liquids
after it leaves the camera. Beidler v.
United States, 253 U. S. 447, 40 Sup. Ct.
Rep. r>64, 64: 1006
Interference.
.1. An inventor whose parent applica-
tion discloses, but does not claim, an in-
vention which conflicts with that of a
later unexpired patent, must, in the ab-
sence of laches, be deemed to have two
years from the date of the conflicting pat-
ent in which to file a second application,
makin^r <^-onflicting claims, in order to have
the question of priority of invention be-
tween the two determined in an interfer-
ence proceeding, in view of U. S. Rev. Stat.
§ 4886, as amended by the Act of March
3, 1897. which gives an inventor two years
after patent has issued to another for his
invention, in which he may file his own
application, and the time cannot be cut
1086
down to one year on grounds of equity mr
public poli<^, or because of the one-year
rule prescribed by § 4894, for further
prosecution of an application after oflke
action thereon. Qiapman v. Wintroath,
252 U. S. 126, 40 Sup. Ct. Rep. 234, 64: 481
Disclaimer.
6. Petitioner in a suit for infringe-
ment of a patent, for lufair competiti^m,
and for the infringement of a copyright,
may not file a disclaimer as to the patent
upon certiorari to a circuit court of ap-
peals to review a decree whi^ reversed an
order of the trial court, granting a prelim-
inary injunction. Mecdino v. Wanamaker,
253 U. S. 136, 40 Sup. Ct. Rep. 463, 64: ttt
Use by government.
Claim for government use of patented
invention, see Claims, 1.
7. The suit against the United States
for the infringement of a patent, given by
the Act of June 25^ 1910, to the ""owner^
of the infringed patent, may only be main-
tained b^ one who has at least such aa
interest m the patent as, without the stat-
ute, would 8i|pport such a suit against a
defendant other than the United Stat«».
E. W. Bliss Co. V. United States, 253 U.
S. 187, 40 Sup. Ct. Rep. 455, 64: 651
8. The licensee of a patent who has
no such assignment, grant, or conveyance,
either of the whole patent or of an undi-
vided part of it, or of an exclusive ri^t
imder it within 'and throughout a specined
part of the United States as is necessary
under U. S. Rev. Stat. § 4919, in order to
enable him to sue in his own name for in-
fringement at law or in equity without
joining the owner of the patent, may not
maintain a suit against the United States
for infringement under the Act of June 25,
1910, which empowers the "owner" of aa
infrmgea patent to recover reasonable com-
pensation in the court of claims, and re-
serves to the United States all defenses,
general or special, which might be pleaded
by a defendant in an action for infringe-
ment. E. W. Bliss Co. V. United States.
253 U. S. 187, 40 Sup. Ct. Rep. 455, 64: 65t
PEDDLERS.
Interstate business of, see Commerce,
14.
PENALTIES.
Excessive penalties as denying equal
protection of the laws, see Consti-
tutional Law, 16.
Penalty as denying due process of
law, see ConstHutional Law, 37.
38.
For breach of charter party, see Ship-
ping, 2.
PEREMPTORY CHALLENGES.
In criminal case, see Jury, 2.
PERSONAL INJURIES.
'Measure of damages, see Damages, 3,
4.
To employees, generally, see Master
and Servant.
251, 252, 253 U. a
PETITION— POSTOFFICE.
PfiTITIOir.
See Pleadini^.
PHIUPPIKi: ISLANDS.
Regulating Philippine coastwiM trade
as denj^inff due process of law,
see Oonstipitional Law, 47.
PIPC: LIMBS.
Due process of law in rate regulation
it, see Constitutional Law, 43, 44.
PLAINTIFFS.
Parties plaintiff, see Parties.
PLEADING.
Allowance of amendment as reversible
error, see Appeal and Error, 42.
Construct ion of petition in habeas
corpus proceeding, see Habeas
Corpus, 2.
In criminal prosecution, see Indict-
ment and Information.
Defects walred or cnred.
See also Appeal and Error, S9.
1. The failure of a complaint which
states a cause of action in the nature of
ejectment to aver with certainty that de-
fendant was in possession is cured by an
affirmative statement of such possession in
the answer. Cole t. Ralph, 252 U. 8. 286,
40 Sup. Ct. Rep. 821, 04: 667
Pleading laws.
2. The allegation in the answer to a
libel in admiralty, brought by a Danish
against a Swedish corporation, that by the
laws of both Denmark and Sweden an arbi*
tration clause in the charter party is bind-
ing, and that arbitration is a condition
precedent to the right to sue by reason of
any dispute arising under the charter,
means no more than that arbitration
agreeqients will be enforced according to
their intent. It does not extend the scope
or affect the construction of an agree-
ment which, if construed apart from that
allegation, has no application to the pres-
ent case. Rederiaktiebolaeet Atlanten ▼.
Aktieselskabet Kom-Og Foderstof Kom-
pagniet, 262 U. S. 313, 40 Sup. Ct. Rep.
332, 64: 686
Jurisdictional averments.
3. In any case alleged' to come within
the Federal jurisdiction, it is not enough
to allege that questions of a Federal char-
acter arise in the case, but it must plainly
appear that the averments attempting to
brmg the case within such jurisdiction are
real and substantiaL Blumenstock Bros.
Advertising Agency v. Curtis Pub. Co. 262
U. S. 436, 40 Sup. Ct. Rep. 386, 64: 648
4. Averments of a bill setting up al-
leged obligations of a contract between
claimant and the state, and the contention
that they were impaired by subsequent
legislation, presented a controversy under
the Federal Constitution and conferred ju-
risdiction (a sufficient amount being in-
volved) upon a Federal district court irre- 1
spective of the citizenship of the parties.'
64 L. ed.
Hays V. Seattle, 261 U. S. 233, 40 Sup. Ct.
Rep. 126, 64: MS
Sufficieiicy of allegations.
6. An allegation in the amended pe-
tition in an action against a director of a
national bank for knowingly participating,
contrary to U. S. Rer. Stat. §§ 6200 and
6239, in an excessive loan, that the trans-
action set forth was a loan of that char-
acter, whether regarded as one loan to two
persons designated as a '^m,*' as the
plaintiff alleges the fact to be, or regarded
as two loans, as contended for by 'the de-
fendant in his pleadings theretofore filed,
is sufficient if the proof tends to show a
single and excessive loan made to such per-
sons jointly in any capacity, or made in
form one half to each, but in substance as
a single loan. Corsicana Nat. Bank v.
Johnson, 261 U. S. 68, 40 Sup. Ct. Rep. 82,
64:141
What must be pleaded.
6. Laches is a defense that, in the
equity practice of the Federal courts, need
not be set up by plea or answer. It is for
the complainant in his bill to exense the
delay in seeking equitable relief, where
there has been such, and if it be not ex-
cused, his laches may be taken advantage
of either by demurrer or upon final hear-
ing. Hays V. Seattle, 261 U. & 233, 40
Sup. a. Rep. 126, 64: 648
POLICE.
Arrest by, tee Arrest.
POLICE POWER.
Judicial review of exercise of, see
Courts, 6.
Of United States, see States, 1, 8.
See also Constitutional Law, IV.
PORTO RICO.
Jurisdiction of Federal district court
for Porto Rico, see Courts, 6.
POSTMASTER GENERAL.
Powers of, see Postoffice.
POSTOFFICE.
Compensation for carrying malls.
Requiring free carriage of mails as
denying due process of law, see
Constitutional Law, 47.
1. Prior to the Act of July 28, 1916,
railroads — with the exception of certain
roads aided by land grants — ^were not re-
quired by law to carry the mails. New
York, N, H. & H. R. Co. v. United States,
251 U. S. 123, 40 Sup. Ct. Rep. 67, 64: 182
2. A railway company which volun-
tarily accepts and performs mail transpor-
tation service, with knowledge of what the
United States intends to pay, cannot re-
cover any greater compensation, even
though it might have been driven to per-
form the service for an inadeouate com-
Sensation by the fear that a refusal would
jcur the hostility of persons living along
its line, since this does not amount to
compulsion by the United States, and can-
not constitute the basis of a justiciable
1087
1
rOiiTOFFlCt.
claim against it for taking property for
public uae under an implied contract to
make adequate compensation. New York,
N. H. & H« R. Co. V. United feSUtes, 251
U. 8. 123, 40 Sup. Ct. Rep. 67, 64: 182
3. There is nothing to prevent Con-
gress, when fixing compensation for the
carriage of the mails, from directing, as it
did in the Act of May 27, 1908, that the
empty mail bags shall be withdrawn from
the nulls and be transported by freight or
express, the effect of which is to reduce
the compensation for carrying the mails
by excluding the weight of the empty bags
in determining the average weight of the
mails as the basis of fixing compensation.
St. Louii, I. M. & S. R, Co. v. United
States, 261 U. 8. 198, 40 Sup. Ct Rep. 120,
64:225
4. Congress, by directing, as it did in
the Act of Hay 27, 1908, that empty mail
bags be withdrawn from the mails and be
transported by freight or express, thereby
brought such bags when carried by freight
on a land-grant-aided railway within the
provision of the Land-Grant Acts that all
property and troops of the United States
•hall be transported at the railway com-
pany's expense, although by « wholly sepa-
rate provision it was declared that the
mails should be transported over the rail-
way company's lines at such prices as Con-
gress might direct, and the price was later
fixed by Congress at 80 per cent of the
compensation that would otherwise have
been received. St. Louis, L M. & S. R. Co.
V. United States, 251 U. S. 198, 40 Sup.
Ct. Rep. 120, 64: 22S
5. Payments to a railway company for
carrying the mails during each four-year
term upon the basis of weights taken im-
mediately prior to the beginning of such
term instead of annually must be deemed
to satisfy the requirement of U. S. Rev.
6tat. I 4002, that nayment of specified
sums per mile be maae per annum accord-
ing to weights, since such action accords
with prior practice followed for many
years, and was permitted by the letter of
the statute, the carrier having submitted
with full knowledge. Xew York, X» H. &
H. R. Co. V. United States, 251 U. S. 123,
40 Sup. Ct. Rep. 67. 64: 182
6. Railway companies carrying the
mails after the Postmaster General had,
by a readjustment order, directed that
compensation be based upon a calculation
of average weight, made by taking the
whole number of days included in the
weighing period as a divisor for obtaining
the average weight per day. instead of the
number of working or week days, as was
the former practice, are bound by such
order, either because the Postmaster Gen-
eral had the discretionary power to make
the order, as is held by four justices, or
because, aa is held by two justices, the
railway companies by their conduct in fact
accepted the terms offered by the Post-
master General by transporting the mails
and accepting the stated compensation.
1088
Northern P. R. Co. v. United SUtes, 2:.!
U. S. 326, 40 Sup. Ct. Rep. 162, 64: 890
7. The long-continued practice of the
Postofi&ce Department to pay the full mail
transportation rates to a certain railroad
company, instead of the 80 per cent pav
u
able if the construction of the railroad vu
land-aided, win not be given effect by the
courts under the rule of long-continaed
executive construction, where such practice
was not due to any construction of tlM
statute which the Department later sought
to abandon, but to what is alleged to be a
mistake of fact,— due, perhaps, to an over-
sight. Grand Trunk Western R. Co. f.
United States, 252 U. S. 112, 40 Sup. (X
Rep. 309, 64: 484
8. The obligation of a land-aided rail-
road, under the Act of July 12, 1876, $ 13.
to carry the mails at 80 per cent of tht
rates otherwise payable, affects every car-
rier which may thereafter use the rail-
road, whatever the nature of the tenure,
and it is immaterial that the railroad com-
pany which later carries the mail over such
road received none of the land and ob-
tained no benefit from the grant. Grand
Trunk Western R. Co. v. United SUtea.
252 U. S. 112, 40 Sup. Ct. Rep. 309, 64: 484
9. Railroad construction cannot be said
not to have been land aided, within the
meaning of the Act of July 12, 1876, § 13,
governing rates for mail transportation,
because in fact it may have been com-
pleted without the aid either of funds or
of credits derived from public lands, where,
before the road had been fully completed,
the railroad company asked that certain
lands be granted to it in aid of construc-
tion, and accepted from the state a patent
for the lands which recited that such was
the purpose of the conveyance, and ex-
pressly assented to the terms and condi-
tions of the grant which Congress im-
posed, and thereafter proceeded to dispose
of the lands. Grand Trunk Western R. Co.
v. United States, 252 U. S. 112, 40 Sup. Ct.
Rep. 309. 64: 484
10. The charge upon a railroad with
reference to compensation for carrying the
mails imposed by acceptance of a land
grant with its terms and conditions may
not be invalidated by any illegal act of the
railroad under a mortgage foreclosure, al-
though the mortgage was executed before
the railroad company had applied for the
grant, and it does not appear that the
mortgage purported specifically to cover
public lands, where the trustee under the
mortorage classed these lands as after-ac-
quired property, and the company's inter-
est in them was, by special proceeding,
made subject to the foreclosure proceed-
ings. Grand Trunk Western R. Co. v.
United States, 262 U. S. 112, 40 Sup. Ct
Rep. 309, 64: 484
11. The requirement in a congressional
grant of public lands to the state in aid
of railroad construction that the railroad
be completed within ten years was a con-
dition subsequently annexed to an e8tat«
in ^ee, and the title remained valid until
251, 252, 268 U. 8.
POUNDAGE— PUBLIC CORPORATIONS.
ep. It :
Wpff '
meff
liift.
im I
11 *s
I
.ill .i
KUrr
II 'it ■
us:-
V •*■■ ';
■ ■ s
. i
i:%-
i:.-
u:
the Federal government should take action
bv legislation or judicial proceeding to en-
force a forfeiture of the estate. Grand
Trunk Western JR. Co. v. United States,
252 U. S. 112, 40 Sup. Ct. Rep. 309, 64: 4M
12. The burden of a land-aided railroad,
under the Act of June 3, 1856, S 6> to
carry the mails at a price to be ftred by
Congr«^'33, attached upon the acceptance of
any aid whatever, no matter how dispro-
portionate to the cost of constructinff the
portion of the road so aided. Grand Tr.unk
Western R. Co. v. United States, 2.>2 U. S.
112, 40 Sup. Ct. Rep. 309, 64: 484
13. The right to have the mails car-
ried at a price to be fixed by Congress,
wbich was acquired by tlie Federal gov-
ernment by way of charge upon a railroad
under the Act of June 3, 1856, through
the railroad company's acceptance of a
tract of public land therein granted to the
state in aid of railroad construction, could
not be invalidated by any illegal act of the
authorities of the state in issuing a pat-
ent for a wholly different tract. Grand
Trunk Western R. Co. v. United States,
2:>2 C. -S. 112, 40 Sup. Ct. Rep. 309, 64: 484
14. The Postmaster General, having
satisfied himself that overpayments had
been made to a railway company for
carrying the mails, might, >vithout estab-
lishing the illegality by suit, deduct the
amount of such overpayments from the
moneys otherwise payable to the railway
company to which the overpayments had
been made. Grand Trunk Western R. Co.
V. United States, 252 U. S. 112, 40 Sup.
Ot. Rep. 309, 64: 484
15. The balances due to a railway com-
pany for carrying the mails, although aris-
ing" under successive quadrennial contracts,
are regarded as running accounts, and
moneys paid in violation of law upon bal-
ances certified by the government account-
ing officers may be recovered by means of
a' later debit in these accounts. It does
not matter how long a .time elapsed before
the overpayment was discovered, or how
long the attempt to recover it was de-
ferred. Grand Trunk Western R. Co. v.
United States, 262 U. S. 112, 40 Sup. Ct.
Rep. 309. 64: 484
16. The long-continued failure of the
Post maater. General to impose fines for de-
lays of less than twenty-four hours in
transporting the mails cannot be asserted
3L3 the equivalent of a departmental decla-
ration tliat no such power existed in be-
half of a railway company which had no-
tice before it contracted to carry the mail
that failure to maintain train schedules
was regarded by Congress and by the Post-
ofBoe Department as a violation of mail-
carrying contracts, justifying the imposi*
tion of fines or deductions, and that both
believed that there was authority under
the customary contracts and the law to
impose such deductions. Kansas City
Southern R. Co. v. United States, 252 U. S.
147, 40 Sup. Ct. Rep. 257, 64: 500
17. Failure of the Postmaster General
to exercise his power to impose fines for
64 L. ed. 1
delays of less than twenty-four hpurf^io
transporting the mails does not make
against the proper use of such power when,
in the judgment of that ofiGlcial, adequate
occasion for its use may arise. Kansas
City Southern R. Co. ▼. United Statea, 252
U. S. 147, 40 Sup. Ct. Rep. 257, 64: 500
POUNDAGE.
Of clerk of court, see Clerks, 8.
PREMATURITY.
Of suit, see Action or Suit, 1.
Of demand for wages, see Seamen.
PRESS.
Freedom of, see Constitutional Law, V.
PRESUMPTIONS.
See Evidence, 3. 4.
PRICES.
Conspiracy to control, see Monopoly.
PRINOIPAIi AND AGENT.
Service of process on designated t^ent
of foreign corporation, see Writ
and Process.
PRINCIPAIi AND SURETY.
Surety on bail bond, see Bail.
PRIVIIiEGE.
Of accused against self-crimination, see
Criminal Law, 3.
PRIVlIiEGES AND IMMUNITIES.
Of dtizenfl, see Constitutional Law, II.
PROCEDURE.
Due process of law in, see Constitution-
al Law, 62-71.
PROCESS.
See Writ and Process.
PROHIBITION.
See Mandamus, 1-3.
PROHIBITION AMENDMENT.
Validity of, lee Constitutional Law, I.
PROPERTY.
Protection oi righta in, tee Constitu-
tional Law.
Physical valuation of railway property,
see Interstate Conunerce Commis-
sion, 1.
PROSECUTING ATTORNEY.
See District Attorney.
PROTEST.
As condition precedent to recovery back
of illegal taxes, see Taxes, 3.
PROVABLE CLAIMS.
In bankruptcy, see Bankruptcy, 3-5.
PUBLIC CX>RPORATIONfe.
See Municipal Corporations.
69 1089
r
POSTOFFICK.
claim against it for taking property for
public use under an implied contract to
make adequate compensation. New York.
N. H. & H. R. Co. V, United States, 251
U. 8. 123, 40 Sup. Ct. Rep. 67, 64: 182
3. There is nothing to prevent Con-
gress, when fixing compensation for the
carriage of the mails, from directing, as it
did in the Act of May 27, 1908, that the
empty mail bags shall be withdrawn from
the mails and be transported by freight or
express, the effect of which is to reduce
the compensation for carrying the mails
by excluding the weight of the empty bags
in determining the average weight of the
mails as the basis of iixing compensation.
St. Louis, I. M. & S. R, Co. v. United
States, 251 U. S. 198, 40 Sup. Ct. Rep. 120,
04:225
4. Congress, by directing, as it did in
the Act of May 27, 1908, that empty mail
bags be withdrawn from the mails and be
transported by freight or express, thereby
brought such bags when carried by freight
on a land-grant-aided railway within the
provision of the Land-Grant Acts that all
property and troops of the United States
shall be transported at the railway com-
pany's expense, although by a wholly sepa-
rate provision it was declared that the
mails should be transported over the rail-
way company's lines at such prices as Con-
gress might direct, and the price was loiter
fixed by Congress at 80 per cent of the
compensation that would otherwise have
been received. St. Louis, I. M. & S. R. Co.
T. United States, 251 U. S. 198, 40 Sup.
Ct. Rep. 120, 64: 22S
6. Payments to a railway company for
carrying the mails during each four-year
term upon the basis of weights taken im-
mediately prior to the beginning of such
term instead of annually must be deemed
to satisfy the requirement of U. 8. Rev.
Stat. I 4002, that nayment of specified
sums per mile be made per annum accord-
ing to weights, since such action accords
with prior practice followed for many
years, and was permitted by the letter of
the statute, the carrier having submitted
with full knowledge. New York, N. H. &
H. R. Co. V. United States, 251 U. S. 123,
40 Sup. Ct. Rep. 67. 64: 182
6. Railway companies carrying the |
mails after the Postmaster General had,
by a readjustment order, directed that
compensation be based upon a calculation
of average weight, made by taking the
whole number of days included in the
weighing period as a divisor for obtaining
the average weight per day. instead of the
number of working or week days, as was
the former practice, are bound by such
order, either because the Postmaster Gen-
eral had the discretionary power to make
the order, as is held by four justices, or
because, as is held by two justices, the
railway companies by their conduct in fact
accepted the terms offered by the Post-
master General by transporting the mails
and accepting the stated compensation.
1088
Northern P. R. Co. v. United States, 251
U. S. 326, 40 Sup. Ct. Rep. 162, 64: 280
7. The long-continued practice of the
Postoffice Department to pay the full mail
transportation rates to a certain railroad
company, instead of the 80 per cent pay-
able if the construction of the railroad was
land-aided, will not be given effect by the
courts under the rule of long-continued
executive construction, where such practice
was not due to any construction of tkt
statute which the Department later sought
to abandon, but to what is alleged to be a
mistake of fact, — due, perhaps, to an over-
sight. Grand Trunk Western R. Co. t.
United States, 262 U. 8. 112, 40 Sup. Ct.
Rep. 309, 64: 484
8. The obligation of a land-aided rail-
road, imder the Act of July 12, 1876, § 13,
to carry the mails at 80 per cent of the
rat«s otherwise payable, affects every car-
rier which may thereafter use the rail-
road, whatever the nature of the tenure,
and it is immaterial that the railroad com-
pany which later carries the mail over such
road received none of the land and ob-
tained no benefit from the grant. Grand
Trunk Western R. Co. v. tfnited States,
252 U. S. 112, 40 Sup. Ct. Rep. 309, 64: 484
9. Railroad construction cannot be said
not to have been land aided, within the
meaning of the Act of July 12, 1876, § 13,
governing rates for mail transportation,
because in fact it may have been com-
pleted without the aid either of funds or
of credits derived from public lands, where,
before the road had been fully completed,
the railroad company asked that certain
lands be granted to it in aid of construc-
tion, and accepted from the state a natent
for the lands which recited that sucn was
the purpose of the conveyance, and ex-
pressly assented to the terms and condi-
tions of the grant which Congress im-
posed, and thereafter proceeded to dispose
of the lands. Grand Trunk Western R. Co.
V. United States, 252 U. S. 112, 40 Sup. Ct.
Rep. 309, 64: 484
10. The charge upon a railroad with
reference to compensation for carrying the
mails imposed by acceptance of a land
grant with its terms and conditions may
not be invalidated by any illegal act of the
railroad under a mortgage foreclosure, al-
though the mortgage was executed before
the railroad company had applied for the
grant, and it does not appear that the
mortgage purported specifically to cover
public lands, where the trustee under the
mortgage classed these lands as after-ac-
quired property, and the company's inter-
est in them was, by special proceeding,
made subject to the foreclosure proceed-
ings. Grand Trunk Western R. Co. v.
United States, 262 U. 8. 112, 40 Sup. Ct.
Rep. 309, 64: 484
11. The requirement in a congressional
grant of public lands to the state in aid
of raiht)ad construction that the railroad
be completed within ten years was a con-
dition subsequently annexed to an estate
in ^ee, and the title remained valid tmtfl
251, 252, 258 U. S.
POUNDAGE— PUBLIC CORPORATIONS.
the Federal government should take action
hy legislation or judicial proceeding to en-
force a forfeiture of the estate. Grand
Trunk Western JR. Co. v. United States,
252 U. S. 112, 40 Sup. a. Rep. 309, 64: 4((4
12. Tlie burden of a land-aided railroad,
under the Act of June 3, 1856, § 6, to
c»arrv the mails at a price to be fixed by
Congress, attached upon the acceptance of
anv aid whatever, no matter how dispro-
portionate to the cost of constructing the
portion of the road so aided. Grand Tr.unk
Western R. Co. v. United States, 2r)2 U. S.
112, 40 Sup. Ct. Rep. 309, 64: 484
13. The right to have the mails car-
ried at a price to be fixed by Congress,
which was acquired by the Federal gov-
emraeut by way of charge upon a railroad
under the Act of Jiuie 3, 1856, through
the railroad company's acceptance of a
tract of public land therein granted to the
state in aid of railroad construction, could
not be invalidated by any illegal act of the
authorities of the state in issuing a pat-
ent for a wholly difl'erent tract. Grand
Trunk Western R. Co. v. United States,
252 U. -S. Il2, 40 Sup. Ct. Rep. 309, 64: 484
14. The Postmaster. General, having
satisfied himself that overpayments had
been ma<le to a railway company for
carrying the mails, might, >vithout estab-
lishing the illegality by suit, deduct the
amount of such overpayments from the
moneys otherwise payable to the railway
company to which the overpayments had
been made. Grand Trunk Westerii R. Co.
V. United States, 252 U. S. 112, 40 Sup.
Gt. Rep. 309, 64: 484
15. The balances due to a railway com-
pany for carrying the mails, although aris-
ing under successive quadrennial contracts,
are regarded as running accounts, and
moneys paid in violation of law upon bal-
ances certified by the government account-
ing officers may be recovered by means of
a' later debit in these accounts. It does
not matter how long a .time elapsed before
the overpayment was discovered, or how
long the attempt to recover it was de-
ferred. Grand Trunk Western R. Co. v.
United States, 262 U. S. 112, 40 Sup. Ct.
Rep. 309. 64: 484
16. The long-continued failure of the
Postmaster*. General to impose fines for de*
lays of less than twenty-four hours in
transporting the mails cannot be asserted
a-* the equivalent of a departmental decla-
ration that no such power existed in be-
half of a railway company which had no-
tice before it contracted to carry the mail
that failure to muintain train schedules
was regarded by Congress and by the Post-
office Department as a violation of mail-
carrying contracts, justifying the imposi-
tion of fines or deductions, and that both
believed that there was authority under
the customary contracts and the law to
impose such deductions. Kansas City
Southern R. Co. v. United States. 252 U. S.
147, 40 Sup. Ct. Rep. 257, 64: 500
17. Failure of the Postmaster General
to exercise his power to impose fines for
•4 L. ed. I
delays of less than t^onty-four hours ^ in
transporting the mails does not make
against the proper use of such power when,
in the judgment of that ofiOlcial, adequate
occasion for its use may arise. Kansas
City Southern R. Co. v. United States, 252
U. S. 147, 40 Sup. a. Rep. 257, 64: 500
POUNDAGE.
Of clerk of court, see Clerks, 8.
PREMATURITY.
Of suit, see Action or Suit, 1.
Of demand for wages, see Seamen.
PRESS.
Freedom of, see Constitutional Law, V.
PRESUMPTIONS.
Sse Evidence, 3. 4.
PRICES.
Conspiracy to control, see Monopoly.
PRINCIPAIi AND AGENT.
Service of process on designated agent
of foreign corporation, see Writ
and Process.
PRINCIPAIi AND SURETY.
Surety on bail bond, see Bail.
PRIVILEGE.
Of accused against self-crimination, see
Criminal Law, 3.
PRIVIIiEGES AND IMMUNITIES.
Of citizens, see Constitutional Law, II.
PROCEDURE.
Due process of law in, see Constitution-
al Law, 62-71.
PROCESS.
See Writ and Process,
PROHIBITION.
See Mandamus, 1-3.
PROHIBITION AMENDMENT.
Validity of, see Constitutional Law, I.
PROPERTY.
Protection of righta in, tee Constitu-
tional Law.
Physical valuation of railway property,
see Interstate Commerce Conunis-
sion, 1.
PROSECUTING ATTORNEY.
See District Attorney.
PROTEST.
As condition precedent to recovery back
of illegal taxes, see Taxes, 3.
PROVABLE CLAIMS.
In bankruptcy, see Bankruptcy, 3-5.
PUBLIC CORPORATIONS.
See Municipal Corporations.
69
10851
PUBLIC niPROVEMENTS; PUBLIC LANDS.
PVBIilC IMPROVEMENTS.
AsBessment for public improvements
as affording equal protection of
/ the law8» see Constitutional Law,
17, 20.
Due process of law in assessment for
public improvement, see Constitu-
tional Law, 60, 61.
Sufficiency of hearing on assegsment for
public improvement, see Constitu-
tional Law, 71.
Assessing street railway company for
a public improvement as impairing
contract obligations, see Constitu-
tional Law, 79, 80.
Misrepresentation of conditions sur-
rounding public improvements, see
United States, 9, 10.
PUBLIC liANDS.
Mines on, see Mines.
As to lands of Indians, see Indians.
1. The Grand Canyon of the Colorado
could be created as a momuneat reserve by
the President under the power conferred
upon him by the Act of June 8, 1906, to
establish reserves embracing objects of his-
toric or scientific interest. Cameron, v.
United States, 262 U. 8. 450, 40 Sup. Ct.
Hep. 410, 64: 659
Grant to state for improveinents.
2. The specific enumeration in the New
Mexico Enabling Act of June 20, 1910, of
the purposes for which the public lands
therein granted to that state may be dis-
posed of, and the further provision that the
natural products and money proceeds of
such lands shall be subject to the same
trusts as the lands themselves, renders in^
valid state legislation authorizing the com-
missioner of public lands of that state to^
expend annually not to exceed 3 cents on
the dollar from the annual income of his
'office from sales and leases of the public
lands for making known the resources and
advantages of- the state generally, and par-
. ticularly to home seekers and investors,
and such a threatened breach of trust wiU
be enjoined at the instance of the United
States. Ervien v. United States, 251 U.
S. 41, 40 Sup. Ct. Rep. 75, M: JM
Soldiers* additional homestead rlg:tit8.
3. The prohibition in the Act of March
3. 1903, extending the homestead laws to
Ala^^ka, that not more than 160 acres of
land shall be entered in a single body by
means of soldiers* additional homestead
rights, may not be evaded by a mere resort
to two entries by the same person for two
* tracts separately surveyed, but contiguous
to the extent of having a common boundary
^ mile in length, each containing 160 acres
or less. United States v. Poland, 251 U. S.
221, 40 Sup. Ct. Rep. 127, 64: 236
Railway land grants.
Adverse possession of railway right of
way, see Adverse Possession.
Sufficiency of evidence of fraudulent
. . representations, see Evitlence. 10.
1090
Compensation of land grant railroad
for carrying mails, see Postofficc.
See also infra, 8.
4. Congress could and did, by the Act
of July 1, 1862, granting a rail^y right
of way over the public lands, include lands
forming a part of the Pottawatomie Indian
Reservation not actually allotted in sev-
eralty when the grant took effect, notwith-
standing the agreement on the part of the
United States in the Treaty of June 5 and
17, 1846, to grant to such Indians posses-
sion and title to a specified district/ and
to guarantee full and complete possession
thereof as their land and home forever, and
the stipulation in the Treaty of Xovem-
ber 5, 1861, that land within the reserva-
tion designated in the earlier treaty should
be allotted thereafter in several^ to tribe
members. Nadeau v. Union P. R. Co. 253
U. S. 442, 40 Sup. Ct. Rep. 570, 64: 1009
5. A report of a special agent of the
General Land Office as to the nonmineral
character of certain lands which were there-
after selected by the Southern Pacific Rail-
way Company as within the indemnity
limits of the land grant of July 27, 1866,
did not relieve the railway company from
showing before the Land bepartment that
the lands selected were not mineral.
United States v. Southern P. Co. 251 U.
S. 1, 40 Sup. Ct Rep. 47, 64: 97
Lands open to entry.
6. To bring a lode mining claim with-
in the saving clause in the withdrawal of
public lands for a monument reserve, under
the Act of June 8, 1906, in respect of any
"valid" mining claim theretofore acquired,
the discovery must have preceded the crea-
tion of that reserve. Cameron v. United
States, 252 U. S. 450, 40 Sup. Ct. Rep.
410, 64: 659
Review of action of I^and Department.
7. Whether a part of a public -reserve
covered by an unpatented lode mining claim
was mineral, and whether there had been
the requisite discovery, were questions of
fact the decision of which by the Secretary
of the Interior was conclusive on the courts,
in the absence of fraud or imposition.
Cameron v. United States, 252 U. S. 450,
40 Sup. Ct. Rep. 410, 64: 656
Forfeiture; aroldance; cancelatloii.
Burden of proof in suit to cancel pat-
ents, see Evidence, 5.
See also Postoffice. 11.
8. Lands within the indemnity limits of
the Southern Pacific Railroad land grant of
July 27, 1866,. were known to the railway
company to be valuable for oil when the
patent therefor was sought and obtained, ao
as to justify oanoelataon of the patent at
the aiiit of the government, iriiere the
known conditions at that tiise were vatch as
'reasonably to engender the belief that the
lands contained oil of sneh quality and in
such quantity as would render its extrac-
tion profitable and justify expenditures to
that end. United States ▼. Southern P. Co.
251 U. S. 1, 40 Sup. Ct. Rep. 47, 64: 97
251, 252, 256 V. S.
VALUE— WAR.
Bank of Savannah, 251 U. S. 108, 40 Sup.
Ot Rep. 58, 64: 171
VALUE.
Presumption m to value of foreign
money, see Evidence, 4.
Physfcal valuation of railway prop-
erty, see Interstate Commerce
Ck>mmi8sion, 1.
VENUE.
Discretion as to change of venue, see
Appeal and Error, 37.
Removal to other Federal district for
trial, see Criminal Law, 4-7.
VERDICT.
Error in refusing to direct verdict,
see Appeal and Error, 49.
8afficien<nr of verdict in criminal case,
see Appeal and Error, 50.
Nonunanimous verdict, see Jury, 4.
VESSEIi.
Matters as to shipping, see Shipping.
VESTED OR CONTINGENT IN-
TEREST.
Federal estate tax on, see Internal
Revenue, 18-20.
VESTED RIGHTS.
Enforcement of Prohibition Amend-
ment against sale of liquors pre-
viously manufactured, see Consti-
tutional Law, 11.
VOLSTEAD* ACT.
Validitv of, see Constitutional Law,
12.' 38.
Two-thirds vote, see Constitutional
Law. 1.
War-time prohibition,, see War, 2-10.
WAGES.
Of emplovee, see Master and Servant,
1.
Of seamen, see Seamen.
WAIVER.
Of errors in trial court, see Appeal
and Error, 39, 40.
By appearance, see Courts, 7.
Of defect in pleading, see Pleading, 1.
WAR.
. Conspiracy to violate Selective Service
Act, see Conspiracy, 4.
Constitutionality of Selective Service
Act, see Constitutional Law, 74.
Relation of judiciary to war measure,
see Courts, 2.
War taxes, see Internal Revenue.
Procuring enlistment in foreign serv-
ice as violation of neutrality, see
Neutrality.
1. The war power of the United States,
like its other powers, and like the police
power of the states, is subject to appli-
cable constitutional limitations; but the
5th Amendment to the Federal Constitu-
• i L. ed.
titn imposes, in this respect, no greater
limitation upon the national power than
does tiie 14th Amendment upon state power.
EEamilton v. Kentucky Distilleries & Ware-
house Co. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
War-time prohibition.
War-time Prohibition Act as denying
due process of law, see Constitu-
tional Law, 37, 38.
2. The war emergency had not passed
so as to invalidate as new legislation the
provision of the Volstead Act of October
28, 1919, extending the prohibition of the
Act of November 21, 1918, against the man-
ufacture and sale of intoxicating liquors, to
malt liquors, whether in fact intoxicating
or not, with an alcoholic content of as much
as i of • 1 per cent of alcohol by volume.
Ruppert V. Caffey, 251 U. S. 264, 40 Sup.
Ct. Hep. 141, 64:260
3. The implied war power of Congress
over intoxicating liquors extends to the en-
actment ef laws which will not merely pro-
hibit the sale of intoxicating liquors, but
will effectually prevent their sale. Ruppert
V. Caffey, 251 U. S. 264, 40 Sup. Ct. Rep.
141, 64:260
4. Congress, in the exercise of the war
power, could, in order to make effective the
existing war-time prohibition against the
manufacture and sale of intoxicating
liquors, enact the provisions of the Volstead
Act of Octob^ 28, J919, extending such pro-
hibition to malt liquors, whether in fact
intoxicating or not, with alcoholic content
of as much as } of 1 per cent of alcohol by
volume. Ruppert ▼. Caffey, 251 U, S. 264.
40 Sup. Ct Rep. 141, 64:260
5. Assuming that the implied power of
Congress to enact such a measure as the
War-time Prohibition Act of November 21,
1918, must depend not upon the existence
of a technical state of war, terminable only
with the ratification of a treaty of peace or
a proclamation of peace, but upon some
actual emergency or necessity arising out
of the war or incident to it, the power is
not limited to victories in the field and the
dispersion of the hostile forces. It carries
with it inherently the power to guard
aganst the immediate renewal of the con-
flict, and to remedy the evils which have
arisen from its rise and progress. Ham-
ilton T. Kentucky IHstilleries & Ware-
house Co. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
6. The War-time Prohibition Act of
November 21, 1918, cannot be said to have
ceased to be valid prior to the limitation
therein fixed, viz., "the conclusion of the
present war and thereafter until the termi-
nation of demobilization," on the theory
that the war emergency has passed, where
the Treaty of Peace has not yet been con-
cluded, the railways ar^ still under na-
tional control by virtue of the war powers,
other war activities have not been brought
to a close, and it cannot even be said that
the man power of the nation has been re-
stored to a peace footing. Hamilton v.
1099
RESTITUTION—SHERMAN ANTI-TRUST ACT.
RESTITUTIOX.
As a^ecting liability qI bank director
for excessive loan, see Banks, 12.
REVENUE.
See Internal Reyenue; Taxes.
RISK.
Assumption of, by employees, see Mas-
ter and Servant, ^12.
RIVER.
A9 state boundary, flee Boundaries.
RULES OF COURTS.
Admiralty rules, see Appendix, Vol. 5,
Digest Sup. Ct. 1908.
General orders and forms in bankrupt-
cy, see Appendix I., in Book
43 L. ed. U. S. p. 1189.
Amendments, see ATO>endix I., in
Book 60 L. ed. U. 8. p. 1177;
Appendix I., in Book 60 L. ed.
U. S. p. 1241; Appendix VI.,
in Book 61 L. ed. U. S. 1382.
Rules for appeals from court of
claims, see Appendix, VoU 6, XHr
gest Sup. Ct. 1908.
Copyright practice and procedure, see
Appendix III., in Book 53 L. ed.
U. S. p. 1074.
Equity rules, see Appendix IIL, in
Book 57 L. ed. U. S. p. 1632.
Supreme Court rules, see Appendix V.,
in Book 66 L. ed. U. S. p. 1296.
Amendments, see Appendices VI.;
VII., in Book 66 L. ed. U. S.
pp. 1306, 1807; Appendices V.;
VII.. in Book 60 L. ed. U. S.
pp. 1261, 1262; Appendix IV.,
m Book 61 L. ed. I . S. p. 1881;
Appendices I.; II., in Book 63
L. ed. U. S. p. 1205.
SAFETY APPIiTANCB ACT.
See Master and Servant.
SALE.
Sale or option, see Contracts.
SCAIiES.
Requiring railway company to install
scales as denying due process of
law, see Constitutional Law, 29.
SEAMEN.
Invalidating wage contract as denying
due process of law, see Constitu-
tional Law, 48.
1. Foreign seamen on foreigp ress^bi
in American ports are entitled to the bene-
fits of the provisions of the Act of March
4, 1915, § 4, authorizing seamen on Ameri-
can vessels to demand and receive one half
of the wages earned at every port whera
such vessel, after the voyage lias bceii
commenced, shall load or deliver cargo
l)efore the voyage is ended, notwithstand-
ing contractual obligations to the contrary,
and declaring that such section shall apply
to seamen on foretgn vessels whili- in
American harbors, and that tho Fedora 1
courts shall be open to such seamen for
its enforcement. Strathearn S. S. Co. v.
Dillon, 252 U. S. 348, 40 Sup. Ct. Rep.
360, 64: 607
Thompson v. Lucas, 262 U. 8. 391, 40 Sup.
Ct. Rep. 363, 64: 612
2. A foreign vessel need not have been
five days in an American port before sea-
men thereon may make the< wage demand
provided for by the Act of March 4, 1915,
§ 4, authorizing seamen to demand and re-
ceive one half of the wages earned at any
port where the vessel, after the voyage has
been commenced, shall load or deliver cargo
before the voyage is ended, notwithstand-
ing contractual obligations to the contrary,
and declaring that such section applies
to seamen on foreign vessels while in
American harbors, ^'provided such a de-
mand shall not be made before the expira-
tion of, nor oftener than once in, five days.*'
Strathearn S. S. Co. v. Dillon, 252 U. S.
348, 40 Sup. Ct. Rep. 350, 64: 607
Thompson v. Lucas, 252 U. S. 391, 40 Sup.
Ct. Rep. 363, 64:612
*
SEARCH AND SEIZURE.
See also Criminal Law, 3.
1. The rights of a corporation against
unlawful searches and seizures are to be
protected, even if the same result might
have been achieved in a lawful way, i. e.,
by an order for the production of its books
and papers. Silverthome Lumber Co. v.
United SUtes, 251 U. S. 385, 40 Sup. Ct.
Rep. 182, 64: 819
2. The knowledge gained by the Federal
government's own wrong in seising papers
in violation of the owner's constitutional
protection against unlawful searches and
seizures cannot be used by the government
in a criminal prosecution by serving sub-
poenas upon such owners to produce the
original papers, which it had returned after
copies had been made, and by obtaining a
court order commanding compliance with
such subpoenas. Silverthorne Lumber Co.
V. United SUtes, 251 U. S. 385, 40 Sup. Ct.
Rep. 182, 64: 319
SEIiECTIVK SERVICE ACT.
Conspiracy to violate, see Conspiracv,
4.
Constitutionality off see Constitution-
al I^w, 74.
SEIiF-CRIMJNATION.
See Criminal Law^ 3.
SERVANTS.
See Master and Servant.
SEWERS.
Constitutionality of sewer assessment,
see Cdnstitutional Law, 20.
SHAME.
As element of damage, see Damages, 4.
SHERMAX ANTI-TRtJST ACT.
Sec Monopoly.
251. 252, 25S U. S.
VALUE— WAR.
Bank of Savanuah, 251 U. S. 108, 40 Sup.
Ot Rep. 58, 64: 171
VAUJE.
Presumption aa to value of foreign
money, see £^ridence, 4.
Physfcal valuation of railway prop-
erty, see Interstate Commerce
Commission, 1.
VENUE.
Discretion as to cliange of venue, see
Appeal and Error, 37.
Removal to other Federal district for
trial, see Criminal Law, 4-7.
VEaiDICT.
Error in refusing to direct verdict,
see Appeal and Error, 49.
Sufficiency of verdict in criminal case,
see Appeal and Error, 50.
Nonunanimous verdict, see Jury, 4.
VESSEL.
Matters at to shipping, see Shipping.
VESTED OR CONTINGENT IN-
TEREST.
Federal estate tax on, see Internal
Revenue, 18-20.
VESTED RIGHTS.
Enforcement of Prohibition Amend-
ment against sale of liquors pre-
viously manufactured, see Consti-
tutional Law, 11.
VOLSTEAD* ACT.
Validitv of, see Constitutional Law,
12,* 38.
Two-thirds vote, see Constitutional
Law, 1.
War-time prohibition,, see War, 2-10.
WAGES.
Of emplovee, see Master and Servant,
1.
Of seamen, see Seamen.
WAIVER.
Of errors in trial court, see Appeal
and Error, 39, 40.
By appearance, see Courts, 7.
Of defect in pleading, see Pleading, 1.
W.\R.
. Conspiracy to violate Selective Service
Act, see Conspiracy, 4.
Constitutionality of Selective Service
Act, see Constitutional Law, 74.
Belation of judiciary to war measure,
see Courts, 2.
War taxes, see Internal Revenue.
Procuring enlistment in foreign serv-
ice as violation of neutrality, see
Neutrality.
1. The war power of the United States,
like its other powers, and like the police
power of the states, is subject to appli-
cable constitutional limitations; but the
5th Amendment to the Federal Constitu-
• 4 L. ed.
ti^n imposes, in this respect, no greater
limitation upon the national power than
does the 14th Amendment upon state power.
Hamilton v. Kentucky Distilleries &, Ware-
house Co. 261 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
War-time prohibition.
War-time Prohibition Act as denying
due nrocess of law, see Constitu-
tional Law, 37, 38.
2. The war emergency had not passed
so as to invalidate as new legislation tiie
provision of the Volstead Act of October
28, 1919, extending the prohibition of the
Act of November 21, 1918, against the man-
ufacture and sale of intoxicating liquors, to
malt liquors, whether in fact intoxicating
or not, with an alcoholic content of as much
as i ofl per cent of alcohol by volume.
Ruppert V. Caffey, 251 U. S. 264, 40 Sup.
Ct. Rep. 141, 64:860
3. The implied war power of Congress
over intoxicating liquors extends to the en-
actmentef laws which will not merely pro-
hibit the sale of intoxicating liquors, but
will effectually prevent their sale. Ruppert
V. Caffey, 261 U. S. 264, 40 Sup. Ct. Rep.
141, 64:260
4. Congress, in the exercise of the war
power, could, in order to make effective the
existing war-time prohibition against the
manufacture and sale of intoxicating
liquors, enact the provisions of the Volstead
Act of Octob^ 28, J919, extending such pro-
hibition to malt liquors, whether in fact
intoxicating or not, with alcoholic content
of as much as ^ of 1 per cent of alcohol by
volume. Ruppert v. Caffey, 251 U. S. 264.
40 Sup. Ct Rep. 141, 64:260
5. Assuming that the implied power of
Congress to enact such a measure as the
War-time Prohibition Act of November 21,
1018, must depend not upon the existence
of a technical state of war, terminable only
with the ratification of a treaty of peace or
a proclamation of peace, but upon some
actual emergency or necessity arising out
of the war or incident to it, the power is
not limited to victories in the field and the
dispersion of the hostile forces. It carries
with it inherently the power to guard
aganst the immediate renewal of the con-
flict, and to remedy the evils which have
arisen from its rise and progress. Ham-
ilton V. Kentucky IMstilleries k Ware-
house Co. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
6. The War-time Prohibition Act of
November 21, 1918, cannot be said to have
ceased to be valid prior to the limitation
therein fixed, viz., "the conclusion of Uie
present war and thereafter until the termi-
nation of demobilization," on the theory
that the war emergency has passed, where
the Treaty of Peace has not yet been con-
cluded, the railways ar^ still under na-
tional control by virtue of the war powers,
other war activities have not been brought
to a close, and it cannot even be said that
the man power of the nation has been re-
stored to a peace footing. Hamilton v.
1099
WAK.
Ketttucky Distilleries & Warehouse Co. 251
U. S*. 146, 40 Sup. Ct. Rep. 106, 64:194
7. The existing restriction on the sale
of distilled spirits for beverage purposes,
imposed by the War-time Prohibition Act
of November 21, 1918, was not impliedly
removed by the adoption of the 18th
Amendment to the Federal Constitution,
which, in express terms, postponed the ef-
fective date of the prohibition of the liquor
tra£Sc thereby imposed, until one year after
ratification. Hamilton v. Kentucky Distil-
leries & Warehouse Co. 251 U. S. 146, 40
Sup. Ct. Rep. 106, 64:194
8. The war with Germany cannot be
said to have been concluded within the
meaning of the War.-time Prohibition Act
of November 21, 1918, merely by reason
of the actual termination of war activities.
Hamilton v. Kentucky Distilleries Sl Ware-
house Co. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
9. The provision of the War-time Pro-
hibition Act of November 21, 191*8, that it
shall not cease to be operative until the
"conclusion of the present war and there-
after until the termination of demobiliza-
tion, the date of which shall be determined
and proclaimed by the President/' is not
satisfied by passing references in various
messages and proclamations of the Presi-
dent U> the war as ended, and to demobili-
zation as accomplished, nor by newspaper
interviews with high officers of the Army,
or with officials of the War Department.
Hamilton v. Kentucky Distilleries & Ware-
house Co. 261 U. S. 'l46, 40 Sup. Ct. Rep.
106, 64:194
10. The use of grains, cereals, fruit, or
other food products in the manufacture and
production of beer for beverage purposes,
which, while containing as much as ^ of 1
per cent of alcohol by weight and volume,
is not alleged to be intoxicating, was not
prohibited by the provisions of the War-
time Prohibition Act of November 21, 1918,
that to conserve the nation's man power
and to increase efficiency in the production
of war essentials no grains, cereals, fruit,
or other food products shall, after May 1,
1919, until the conclusion of the war and
until demobilization is proclaimed by the
President be used in the manufacture or
production of beer, wine, or other intoxi-
cating malt or vinous liquors for beverage
purposes. A different conclusion is not de-
manded because of Treasury Department
rulings that all beer containing J of 1 per
cent of alcohol is taxable, or of the de-
termination of the Internal Revenue De-
partment that a beverage containing that
amount of alcohol is to be regarded as in-
toxicating within the intendment of the
act. United States v. Standard Brewery,
251 U. S. 210, 40 Sup. Ct. Rep. 139,
64:229
Espionage.
Prejudicial error in instruction in
criminal prosecution under Es-
pionage Act, see Appeal and Er-
ror, 46.
1 100
Conspiracy to violate Espionage Act,
see Conspiracy, 1-3.
Constitutionality of Espionage Act,
see Constitutional Law, 73. 74.
Determining, on demurrer, sufficiency
of indictment, see Criminal Law, 1.
Sufficiency of evidence to support con-
victions under Espionage Act, see
Evidence, 12, 13.
Sufficiency of indictment charging con-
spiracy to violate Espionage Act.
see Indictment and Information, 1.
Sufficiency of evidence in prosecution
for violating Espionage Act as
question for jury, see IhrM. 2-4.
11. A construction cannot be given to
the provision of the Espionage Act of June
15, 1917, making it criminal, when the
United States is at war, wilfully to maJce
or convey false reports or false statements
with intent to interfere with the success
of the military or naval forces of the Unit-
ed States, or to promote the success of its
enemies, which will exclude statements thnt
on their face, to the common understand-
ing, do not purport to convey anything new,
but only to interpret or comment on mat-
ters pretended to be facta of public knowl-
edge, or will excuse statements, however
false, and with whatever evil purpose circu-
lated, if accompanied with a pretense of
comment upon them as matters of public
concern. Pierce v. United States, 252 U. S.
239, 40 Sup. Ct. Rep. 205, 64: 542
Alien enemies.
12. The existence of war did not make it
improper for a circuit courit of^ appeals
to affirm, with a modification that* the sum
recovered be paid over to the Alien Prop-
erty Custodian, a money judgment in favor
of an alien enemy, recovered in the district
court before war was declared, the collection
of which was delayed by defendant's act
in cari^ing the case up to the higher court.
Birge-Forbes Co. v. Heye, 261 U. f^. 317,
40 Sup. Ct. Rep. 160, 64: 286
Military tribunals.
13. Congress, by re-enacting in the Act
of August 29, 1916, the Articles of War»-
did not vest in the military courts in war
time exclusive jurisdiction to try and pun-
ish a soldier for the murder of a civilian
at a place within the jurisdiction of a state,
and not within the confines of any camp or
place subject to the control of the Federal
civil or military authorities, de«pite the
words in Art. 74, "except in time of war,"
qualifying the duty of a military com-
mander, imposed by that article, to respond
to the demund by state authority for the
surrender of military offenders against tbe
state criminal laws, and the grant in Art.
92, expressed in the form of a negative
pregnant, of authority to courts-martial to
try capital crimes when committed by an
ofBcer or soldier within the geographical
limits of the United States and the District
of Columbia in time of war, both of which
provisions take their origin in the Act of
March 3, 1863, and were drawn from the
terms of that act as re-expressed in the Re-
251, 252, 253 V. S.
WARRANT— WRIT OF ERROR.
vision of 1874. Caldwell v. Parker, 252 U.
S. 376, 40 Sup. Ct. Rep. 388, 64: 621
WARRANT.
Arrest without warrant, see Arrest.
WATERS.
As boundaries, see Boundaries.
Imposing lien on landlord's j^remises
for water rents as denying due
. process of law, see Constitutional
Law, 33.
Rates.
Due process of law in rate regulation,
see Constitutional Law, 45.
Municipal regulation of, see Municipal
Corporations, 2.
No grant of municipal authority to
fix water rates can be deduced from the pro-
visions of Ky. Stat. § 3490^ subsec. 25, that
the board of coimcil in cities of the fourth
class may grant the ri^ht of way over the
public streets to any railroad or street rail-
road company on such conditions as to it
may aeem proper, and shall have a super-
vising control over the use of the same, and
may regulate tlie speed of cars and signals,
and fares on street cars, and under like
conditions and supervision may grant the
necessary right of way to water companies,
nor from other subsections of this section
empowering the council to provide a water
supply or to contract for tnat purpose, to
protect the water supply system against
damage or molestation, to make by-laws and
ordinances to carry into effect the powers
granted, and to do all things properly be-
longing to the police of incorporated cities.
Winchester v. Winchester Waterworks Co.
251 U. S. 192, 40 Sup. Ct. I^ep. 123, 64: 221
WEIGHING.
Of mail, see Postoffice.
WISCONSIN.
Boundary between Minnesota and Wis-
consin, see Boundaries, 2-5.
«4 L. ed.
WITNESSES.
Waiver of ruling on cross-examination,
see Appeal and Error, 40.
Privilege of accused against self-crim-
ination, see Criminal Law, 3. ,
Depositions of, see Depositions.
Qualification of witness before Inter-
state Commerce Commission, see
Interstate Commerce Commission,
2.
WORKMEN'S COMPENSATION ACT.
As affecting admiralty jurisdiction, st^e
Admiralty-.
WRIT AND PROCESS.
Various particular writs, see Certi-
orari; Habeas Corpus; Injunction;
Mandamus.
Service of process outside Federal dis-
trict, see Courts, 13.
Service on foreign corporation.
The unrevoked designation by a for-
eign corporation, conformably to the New
York statute, of an agent upon whom serv-
ice may be made, does not give the corpo-
ration a constructive presence in the state,
so as to render it amenable to service of
process there after it has ceased to do busi-
ness within the state, in an action based
upon contracts made and to be performed
outside the state, there being no allegation
of performance within the state, nor that
the causes of action arose out of acts or
transactions within the state, although it is
asserted that at all of the times of the
duration of the contracts sued on and their
breaches the corporation was doing busi-
ness in the state, and at any time had the
right to transact business therein, and that
the contracts contemplated that they might
be performed within the state. Chipman v.
Thomas B. Jeffrey Co. 251 U. S. 373, 40
Sup. Ct. Rep. 172, 64: 314
WRIT OF ERROR.
See Appeal and Error.
1101
WAR.
Ketttucky Distilleries & Warehouse Co. 251
U. S; 146, 40 Sup. Ct. Rep. 106, 64:194
7. The existing restriction on the sale
of distilled spirits for beveraee purposes,
imposed by the War-time Prohibition Act
of November 21, 1918, was not impliedly
removed by the adoption of the 18th
Amendment to the Federal Constitution,
which, in express terms, postponed the ef-
fective date of the prohibition of the liquor
traffic thereby imposed, until one year after
ratification. Hamilton v. Kentucky Distil-
leries k Warehouse Co. 251 U. S. 146, 40
Sup. Ct. Rep. 106, 64:194
8. The war with Germany cannot be
said to have been concluded within the
meaning of the War.-time Prohibition Act
of November 21, 1918, merely by reason
of the actual termination of war activities.
Hamilton v. Kentucky Distilleries ^ Ware-
house Co. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
9. The provision of the War-time Pro-
hibition Act of November 21, 191*8, that it
shall not cease to be operative until the
''conclusion of the present war and there-
after until the termination of demobiliza-
tion, the date of which shall be determined
and proclaimed by the President/' is not
satisfied by passing references in various
messages and procmmations of the Presi-
dent U> the war as ended, and to demobili-
zation as accomplished, nor by newspaper
interviews with high officers of the Army,
or with officials of the War Department.
Hamilton v. Kentucky Distilleries & Ware-
house Co. 261 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
10. The use of grains, cereals, fruit, or
other food products in the manufacture and
production of beer for beverage purposes,
which, while containing as much as ^ of 1
per cent of alcohol by weight and volume,
IS not alleged to be intoxicating, was not
prohibited by the provisions of the War-
time Prohibition Act of November 21, 1918,.
that to conserve the nation's man power
and to increase efficiency in the production
of war essentials no grains, cereals, fruit,
or other food products shall, after May 1,
1919, until the conclusion of the war and
until demobilization is proclaimed by the
President be used in the manufacture or
production of beer, wine, or other intoxl-
eating malt or vinous liquors for beverage
purposes. A different conclusion is not de-
manded because of Treasury Department
rulings that all beer containing J of 1 per
cent of alcohol is taxable, or of the de-
termination of the Internal Revenue De-
partment that a beverage containing that
amount of alcohol is to be regarded as in-
toxicating within the intendment of the
act. United States v. Standard Brewery,
251 U. S. 210, 40 Sup. Ct Rep. 139,
64:229
Espionage.
Prejudicial error in instruction in
criminal prosecution under Es-
pionage Act, see Appeal and Er-
ror, 46.
1 100
Conspiracy to violate Espionage Act,
see Conspiracy, 1-3.
Constitutionality of Espionage Act,
see Constitutional I^aw, 73. 74.
Determining, on demurrer, sufficiency
of indictment, see Criminal Law. 1.
Sufficiency of evidence to support con-
victions under Espionage Act, see
Evidence, 12, 13.
Sufficiency of indictment charging con-
spiracy to violate Espionage Act.
see Indictment and Information. 1.
Sufficiency of evidence in prosecution
for violating Espionage Act a«
question for jury, see Trial. 2-4.
11. A construction cannot be given to
the provision of the Espionage Act of June
15, 1917, making it criminal, when the
United States is at war, wilfully to make
or convey false reports or false statements
with intent to interfere with the success
of the military or naval forces of the Unit-
ed States, or to promote the success of its
enemies, which will exclude statements that
on their face, to the common understand-
ing, do not purport to convey anything new.
but only to interpret or comment on mat-
ters pretended to be facte of public knowl-
edge, or will excuse statements, however
false, and with whatever evil purpose circu-
lated, if accompanied with a pretense of
comment upon them as matters of public
concern. Pierce v. United States, 252 U. S.
239, 40 Sup. Ct. Rep. 205, 64: 542
Alien enemies.
12. The existence of war did not make it
improper for a circuit courit of appeals
to affirm, with a modification that the sum
recovered be paid over to the Alien Prop-
erty Custodian, a money judgment in favor
of an alien enemy, recovered in the district
court before war was declared, the collection
of which was delayed by defendant's act
in cari^ing the case up to the higher court.
Birge-Forbes Co. v. Heye, 261 U. S. 317.
40 Sup. Ct. Rep. 160, 64: 286
Military tribunals.
13. Congress, by re-enacting in the Act
of August 29, 1916, the Articles of War.-
did not vest in the military courts in war
time exclusive jurisdiction to try and pun-
ish a soldier for the murder of a civilian
at a place within the jurisdiction of a state,
and not within the confines of any camp or
place subject to the control of the Federal
civil or military authorities, despite the
words in Art. 74, "except in time of war,''
qualifying the duty of a military com-
mander, imposed by that article, to respond
to the demand by state authority for the
surrender of military offenders against the
state criminal laws, and the grant in Art.
92, expressed in the form of a negative
pregnant, of authority to courts-martial to
try capital crimes when committed by an
ofl^er or soldier within the geographical
limits of the United States and the District
of Columbia in time of war, both of whieh
provisions take their origin in the Act of
March 3, 1863, and were drawn from the
terms of that act as re-expressed in the Re-
251, 252, 253 17. S.
WARRANT— WRIT OF ERROR.
vision of 1874. Caldwell v. Parker, 252 U.
S. 376, 40 Sup. Ct. Rep. 388, 64: 621
WARRANT.
Arrest without warrant, see Arrest.
WATERS.
As boundaries, see Boundaries.
Imposing lien on landlord's j^remises
for water rents as denying due
process of law, see Constitutional
Law, 33.
Rates.
Due process of law in rate regulation,
see Constitutional Law, 45.
Municipal regulation of, see Municipal
Corporations, 2.
No grant of municipal authority to
fix water rates can be deduced from the pro-
visions of Ky. Stat. § 3490^ subsec. 25, that
the board of coimcil in cities of the fourth
class may grant the right of way over the
public streets to any railroad or street rail-
road company on si)ch conditions as to it
may aeem proper, and shall have a super-
vising control over the use of the same, and
may regulate tlie speed of cars and signals,
and fares on street cars, and under like
conditions and supervision may grant the
necessary right of way to water companies,
nor from other subsections of this section
empowering the council to provide a water
supply or to contract for that purpose, to
protect the water supply system against
damage or molestation, to make by-laws and
ordinances to carry into effect the powers
granted, and to do all things properly be-
longing to the police of incorporated cities.
Winchester v. Winchester Waterworks Co.
251 L. S. 192, 40 Sup. Ct. Ucp. 123, 64: 281
WEIGHIXG.
Of mail, see Postoffice.
WISCONSIN.
Boundarv between Minnesota and Wis-
consin, see Boundaries, 2-5.
•4 L. ed.
WITNESSES.
Waiver of ruling on cross-examination,
see Appeal and £rror, 40.
Privilege of accused against self -crim-
ination, see Criminal Law, 3. .
Depositions of, see Depositions.
Qualification of witness before Inter-
state Commerce Commission, see
Interstate Commerce Commission,
2.
WORKMEN'S COMPENSATION ACT.
As affecting admiralty jurisdiction, see
Admiralty.
WRIT AND PROCESS.
Various particular writs, see Certi-
orari; Habeas Corpus; Injunction;
Mandamus.
Service of process outside Federal dis-
trict, see Courts, 13.
Service on foreign corporation.
The unrevoked designation by a for-
eign corporation, conformably to the New
York statute, of an agent upon whom serv-
ice may be made, does not give the corpo-
ration a constructive presence in the state,
so as to render it amenable to service of
process there after it has ceased to do busi-
ness within the state, in an action based
upon contracts made and to be performed
outside the state, there being no allegation
of performance within the state, nor that
the causes of action arose out of acts or
transactions within tlie state, although it is
asserted that at all of the times of the
duration of the contracts sued on and their
breaches the corporation was doing busi-
nesH in the state, and at any time had the
right to transact business therein, and that
the contracts contemplated that they might
be performed within the state. Chipman v.
Thomas B. Jeffrey Co. 251 U. S. 373, 40
Sup. Ct. Rep. 172, 64: 314
WRIT OF ERROR.
See Appeal and Error*
1101
WAU.
Ke»tucky Distilleries & Warehouse Co. 251
U. Si 146, 40 Sup. Ct. Rep. 106, 64:194
7. The existing restriction on the sale
of distilled spirits for beveraee purposes,
imposed by the War-time Prohibition 4ct
of November 21, 1918, was not impliedly
removed by the adoption of the 18th
Amendment to the Federal Constitution,
^hich, in express terms, postponed the ef-
fective date of the prohibition of the liquor
traffic thereby imposed, until one vear after
ratification. Hamilton v. Kentucky Distil-
leries & Warehouse Co. 251 U. S. 146, 40
Sup. Ct. Rep. 106, 64:194
8. The war with Germany cannot be
said to have been concluded within the
meaning of the War.-time Prohibition Act
of November 21, 1918, merely by reason
of the actual termination of war activities.
Hamilton v. Kentucky Distilleries & Ware-
house Co. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
9. The provision of the War-time Pro-
hibition Act of November 21, 191*8, that it
shall not cease to be operative until the
''conclusion of the present war and there-
after until the termination of demobiliza-
tion, the date of which shall be determined
and proclaimed by the President," is not
satisned by passing references in various
messages and proclamations of the Presi-
dent to the war as ended, and to demobili-
zation as accomplished, nor by newspaper
interviews with high oflBcers of the Army,
or with officials of the War Department.
Hamilton v. Kentucky Distilleries & Ware-
house Co. 261 U. S, 146, 40 Sup. Ct. Rep.
106, 64:194
10. The use of grains, cereals, fruit, or
other food products in the manufacture and
production of beer for beverage purposes,
which, while containing as much as ^^ of 1
per cent of alcohol by weight and volume,
is not alleged to be intoxicating, was not
prohibited by the provisions of the War-
time Prohibition Act of November 21, 1918,
that to conserve the nation's man power
and to increase efficiency in the production
of war essentials no grains, cereals, fruit,
or other food products shall, after May 1,
1910, until the conclusion of the war and
until demobilization is proclaimed by the
President be used in the manufacture or
production of beer, wine, or oUier intoxi-
cating malt or vinous liquors for beverage
purposes. A different conclusion is not de-
manded because of Treasury Department
rulings that all beer containing J of 1 per
cent of alcohol is taxable, or of the de-
termination of the Internal Revenue De-
partment that a beverage containing that
amount of alcohol is to be regarded as in-
toxicating within the intendment of the
act. United States v. Standard Brewery,
251 U. S. 210, 40 Sup. Ct. Rep. 139,
64:229
Espionage.
Prejudicial error in instruction in
criminal prosecution under Es-
pionage Act, see Appeal and Er-
ror, 46.
1100
Conspiracy to violate Espionage Act,
see Conspiracy, 1-3.
Constitutional it}' of Espionage Act,
see Constitutional Jaw, 73. 74.
Determining, on demurrer, sufficiency
of indictment, see Criminal Law. 1.
Sufficiency of evidence to support con-
victions under Espionage Act, see
Evidence, 12, 13.
Sufficiency -of indictment charging con-
spiracy to violate Espionage Act,
see Indictment and Information. 1.
Sufficiency of evidence in prosecution
for violating Espionage Act as
question for jury, see Trial. 2-4.
11. A construction cannot be given to
the provision of the Espionage Act of June
15, 1917, making it criminal, when the
United States is at war, wilfully to make
or convey false reports or false statements
with intent to interfere with the success
of the military or naval forces of the Unit-
ed States, or to promote the success of its
enemies, which will exclude statements that
on their face, to the common understand-
ing, do not purport to convey anything new.
but only to interpret or comment on mat-
ters pretended to be facts of public knowl-
edge, or will excuse statements, however
false, and with whatever evil purpose circu-
lated, if accompanied with a pretense of
comment upon them as matters of public
concern. Pierce v. United States, 252 U. S.
239, 40 Sup. Ct. Rep. 205, 64: 542
Alien enemies.
12. The existence of war did not make it
improper for a circuit cour<t of appeals
to affirm, with a modification that' the sum
recovered be paid over to the Alien Prop-
erty Custodian, a money judgment in favor
of an alien enemy, recovered in the district
court before war was declared, the collection
of which Mas delayed by defendant's act
in earrying the case up to the higher court.
Birge-Forbes Co. v. Heye, 261 U. S. 317.
40 Sup. Ct. Rep. 160, 64: 286
Military tribunals.
18. Congress, by re-enacting in the Act
of August 29, 1916, the Articles of War.*
did not vest in the military courts in war
time exclusive jurisdiction to try and pun-
ish a soldier for the murder of a civilian
at a place within the jurisdiction of a state,
and not within the confines of any camp or
place subject to the control of the Federal
civil or military authorities, despite the
words in Art. 74, "except in time of war/*
qualifying the duty of a military com-
mander, imposed, by that article, to respond
to the demund by state authority for the
surrender of military offenders against ihe
state criminal laws, and the grant in Art.
92, expressed in the form of a negative
pregnant, of authority to courts-martial to
try capital crimes when committed by an
officer or soldier within the geographical
limits of the United States and the District
of Columbia in time of war, both of which
provisions take their origin in the. Act of
Mftrch 3, 1863, and were drawn from the
terms of that act as re-expressed in the Re-
251, 252, 253 V. S.
WARRANT— WRIT OF ERROR.
vision of 1874. Caldwell v. Parker, 252 U.
S. 376, 40 Sup. Ct. Rep. 388, 64: 621
WARRANT.
Arrest without warrant, see Arrest.
WATERS.
As boundaries, see Boundaries.
Imposing lien on landlord's j^remises
lor water rents as denymg due
. process of law, see Constitutional
Law, 33.
Rates.
Due process of law in rate regulation,
see Constitutional Law, 45.
Municipal regulation of, see Municipal
Corporations, 2.
No grant of municipal authority to
fix water rates can be deduced from the pro-
visions of Ky. Stat. § 341)0* subsec. 25, that
the board of coimcil in cities of the fourth
class may grant the right of way over the
public streets to any railroad or street rail-
road company on such conditions as to it
may seem proper, and shall have a super-
vising eontrol over the use of the same, and
may regulate the speed of cars and signals,
and fares on street cars, and under like
conditions and supervision may grant the
necessary right of way to water companies,
nor from other subsections of this section
empowering the council to provide a water
supply or to contract for that purpose, to
protect the water supply system against
damage or molestation, to make by-laws and
ordinances to carry into effect the powers
srranted, and to do all things properly be-
longing to the police of incorporated cities.
Winchester v. Winchester Waterworks Co.
251 U. S. 192, 40 Sup. Ct. Uep. 123, 64; 221
WEIGHING.
Of mail, see Postoffice.
WISCONSIN.
Boundary between Minnesota and Wis-
consin, see Boundaries, 2-5.
•4 L. ed.
WITNESSES.
Waiver of ruling on cross-examination,
see Appeal and Error, 40.
Privilege of accused against self -crim-
ination, see Criminal Law, 3.
Depositions of, see Depositions.
Qualification of witness before Inter-
state Commerce Commission, see
Interstate Commerce Commission,
2.
WORKMEN^S COMPENSATION ACT.
As affecting admiralty jurisdiction, see
Admiralty.
WRIT AND PROCESS.
Various particular writs, see Certi-
orari; Habeas Corpus; Injunction;
Mandamus.
Service of process outside Federal dis-
trict, see Courts, 13.
Service on foreign corporation.
The unrevoked designation by a for-
eign corporation, conformably to the New
York statute, of an agent upon whom serv-
ice may be made, does not give the corpo-
ration a constructive presence in the state,
so as to render it amenable to service of
process there after it has ceased to do busi-
ness within the state, in an action based
upon contracts made and to be performed
outside the state, there being no allegation
of performance within the state, nor that
the causes of action arose out of acts or
transactions within tlie state, although it is
asserted that at all of the times of the
duration of the contracts sued on and their
breaches the corporation was doing busi-
ness in the state, and at any time had the
right to transact business therein, and that
the contracts contemplated that they might
be performed within the state. Chipman v.
Thomas B. Jeffrey Co. 251 U. S. 373, 40
Sup. Ct. Rep. 172, 64: 314
WRIT OF ERROR.
See Appeal and Error.
1101
WAR.
Ke»tucky Distilleries & Warehouse Co. 251
U. Sv 146, 40 Sup. Ct. Rep. 106, 64:194
7. The existing restriction on the sale
of distilled spirits for beveraee purposes,
imposed by the War-time Prohibition Act
of November 21, 1918, was not implied Iv
removed by the adoption of the 18tn
Amendment to the Federal Constitution,
which, in express terms, postponed the ef-
fective date of the prohibition of the liquor
traffic thereby imposed, until one year after
ratification. Hamilton v. Kentucky Distil-
leries k Warehouse Co. 251 U. S. 146, 40
Sup. Ct. Rep. 106, 64:194
8. The war with Germany cannot be
said to have been concluded within the
meaning of the War.-time Prohibition Act
of November 21, 1918, merely by reason
of the actual termination of war activities.
Hamilton v. Kentucky Distilleries & Ware-
house Cb. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
9. The provision of the War-time Pro-
hibition Act of November 21, 191*8, that it
shall not cease to be operative until the
"conclusion of the present war and there-
after until the termination of demobiliza-
tioii, the date of which shall be determined
and proclaimed by the President/' is not
satisfied by passing references in various
messages and proclamations of the Presi-
dent to the war as ended, and to demobili-
zation as accomplished, nor by newspaper
interviews with high officers of the Army,
or with officials of the War Department.
Hamilton v. Kentucky Distilleries & Ware-
house Co. 251 U. S. 146, 40 Sup. Ct. Rep.
106, 64:194
10. The use of grains, cereals, fruit, or
other food products in the manufacture and
production of beer for beverage purposes,
which, while containing as much as ^ of 1
per cent of alcohol by weight and volume,
is not alleged to be intoxicating, was not
prohibited by the provisions of the War-
time Prohibition Act of November 21, 1918,.
that to conserve the nation's man power
and to increase efficiency in the production
of war essentials no grains, cereals, fruit,
or other food products shall, after May 1,
1910, until the conclusion of the war and
until demobilization is proclaimed by the
President be used in the manufacture or
production of beer, wine, or other intoxi-
cating malt or vinous liquors for beverage
purposes. A different conclusion is not de-
manded because of Treasury Department
rulings that all beer containing J of 1 per
cent of alcohol is taxable, or of the de-
termination of the Internal Revenue De-
partment that a beverage containing that
amount of alcohol is to be regarded as in-
toxicating within the intendment of the
act. United States v. Standard Brewery,
251 U. S. 210, 40 Sup. Ct Rep. 139,
64:229
Espionage.
Prejudicial error in instruction in
criminal prosecution under Es-
pionage Act, see Appeal and Er-
ror. 46.
1100
Conspiracy to violate Espionage Act,
see Conspiracy, 1-3.
Constitutionality of Espionage Act,
see Constitutional Law, 73. 74.
Determining, on demurrer, tiufficiency
of indictment, see Criminal Law. 1.
Sufficiency of evidence to support con-
victions under Espionage Act, see
Evidence, 12, 13.
Sufficiency of indictment charging con-
spiracy to violate Espionage Act.
see Indictment and Information. 1.
Sufficiency of evidence in prosecution
for violating Espionage Act a«
question for jury, see lYial. 2-4.
11. A construction cannot be given to
the provision of the Espionage Act of June
16, 1917, making it criminal, when the
United States is at war, wilfully to maice
or convey false reports or false statements
with intent to interfere with the success
of the military or naval forces of the Unit-
ed States, or to promote the success of its
enemies, which will exclude statements that
on their face, to the common understand-
ing, do not purport to convey anything new.
but only to interpret or comment on mat-
ters pretended to be facts of public knowl-
edge, or will excuse statements, however
false, and with whatever evil purpose circu-
lated, if accompanied with a pretense of
comment upon them as matters of public
concern. Pierce v. United States, 252 U. S.
239, 40 Sup. Ct. Rep. 205, 64: 542
Alien enemies.
12. The existence of war did not make it
improper for a circuit cour^t of appeals
to affirm, with a modification that' the sum
recovered be paid over to the Alien Prop-
erty Custodian, a money judgment in favor
of an alien enemy, recovered in the district
court before war 'was declared, the collection
of which was delayed by defendant's act
in carrying the case up to the higher court.
Birge-Forbes Co. v. Heye, 261 U. S. 317.
40 Sup. Ct. Rep. 160, 64: 286
Military tribunals.
18. Congress, by re-enacting in the Act
of August 29, 1916, the Articles of War.-
did not vest in the military courts in war
time exclusive jurisdiction to try and pun-
ish a soldier for the murder of a civilian
at a place within the jurisdiction of a state,
and not within the confines of any camp or
place subject to the control of the Federal
civil or military authorities, despite the
words in Art. 74, "except in time of war,"
qualifying the duty of a military com-
mander, imposed, by that article, to respond
to the demand by state authority for the
surrender of military offenders against the
state criminal laws, and the grant in Art.
92, expressed in the form of a negative
pregnant, of authority to courts-martial to
try capital crimes when committed by an
officer or soldier within the geographical
limits of the United States and the District
of Columbia in time of war, both of which
provisions take their origin in the Act of
March 3, 1863, and were drawn from the
terms of that act as re-expressed in the Re-
251, 252, 253 V. S.
WARRANT— WRIT OF ERROR.
vision of 1874. Caldwell v. Parker, 252 U.
S. 376, 40 Sup. Ct. Rep. 388, 64: 681
WARRANT.
Arrest without warrant, see Arrest.
WATERS.
As boundaries, see Boundaries.
Imposing lien on landlord's j^remises
for water rents as denying due
. process of law, see Constitutional
Law, 33.
Rates.
Due process of law in rate regulation,
see Constitutional Law, 45.
Municipal regulation of, see Municipal
Corporations, 2.
No grant of municipal authority to
fix water rates can be deduced from the pro-
visions of Ky. Stat. § 3490', subsec. 25, that
the board of coimcil in cities of the fourth
class may grant the right of way over the
public streets to any railroad or street rail-
road company on si)ch conditions as to it
may seem proper, and shall have a super-
vising control over the use of the same, and
may regulate the speed of cars and signals,
and fares on street cars, and under like
conditions and supervision may grant the
necessary right of way to water companies,
nor from other subsections of this section
empowering the council to provide a water
supply or to contract for that purpose, to
protect the water supply system against
damage or molestation, to make by-laws and
ordinances to carry into effect the powers
granted, and to do all things properly be-
longing to the police of incorporated cities.
Winchester v. Winchester Waterworks Co.
2ol U. S. 192, 40 Sup. Ct. IJop. 123, 64: 281
WEIGHIXG.
Of mail, see Postoffice.
WISCONSIN.
Boundary between Minnesota and Wis-
consin, see Boundaries, 2-5.
•4 L. ed.
WITNESSES.
Waiver of ruling on cross-examination,
see Appeal and Error, 40.
Privilege of accused against self-crim-
ination, see Criminal Law, 3.
Depositions of, see Depositions.
Qualification of witness before Inter-
state Commerce Commission, see
Interstate Commerce Commission,
2.
WORKMEN'S COMPENSATION ACT.
As affecting admiralty jurisdiction, see
Admiralty.
WRIT AND PROCESS.
Various particular writs, see Certi-
orari; Habeas Corpus; Injunction;
Mandamus.
Service of process outside Federal dis-
trict, see Courts, 13.
Service on foreign corporation.
The unrevoked designation by a for-
eign corporation, conformably to the New
York statute, of an agent upon whom serv-
ice may be made, does not give the corpo-
ration a constructive presence in the state,
so as to render it amenable to service of
process there after it has ceased to do busi-
ness within the state, in an action based
upon contracts made and to be performed
outside the state, there being no allegation
of performance within the state, nor that
the causes of action arose out of acts or
transactions within the state, although it is
asserted that at all of the times of the
duration of the contracts sued on and their
breaches the corporation was doing busi-
ness in the state, and at any time had the
right to transact business therein, and that
the contracts contemplated that tbey might
be performed within the state. Chipman v.
Thomas B. Jeffrey Co. 251 U. S. 373, 40
Sup. Ct. Rep. 172, 64: 314
WRIT OF ERROR.
See Appeal and Error.
1101
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