UNITED STATES REPORTS VOLUME 248 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1918 FROM OCTOBER 7, 1918, TO MARCH 3, 1919 ERNEST KNAEBEL REPORTER THE BANKS LAW PUBLISHING CO. NEW YORK 1919 Copyright, 1918, 1919, by THE BANKS LAW PUBLISHING COMPANY NOTICE The price of this volume is fixed by statute (§ 226, Judicial Code, 36 U. S. Statutes at Large, 1153) at one dollar and seventy-five cents. Cash must accompany the order. The purchaser must pay the cost of delivery. SUPREME COURT OF THE UNITED STATES. Allotment of Justices, October Term, 1916.1 Order: There having been an Associate Justice of this court appointed since the adjournment of the last term, It is ordered, That the following allotment be made of the Chief Justice and Associate Justices of this court among the circuits agreeably to the act of Congress in such case made and provided, and that such allotment be entered of record, viz: For the First Circuit, Oliver Wendell Holmes, Associate Justice. For the Second Circuit, Louis D. Brandeis, Associate Justice. For the Third Circuit, Mahlon Pitney, Associate Justice. For the Fourth Circuit, Edward D. White, Chief Justice. For the Fifth Circuit, J. C. McReynolds, Associate Justice. For the Sixth Circuit, William R. Day, Associate Justice. For the Seventh Circuit, John H. Clarke, Associate Justice. For the Eighth Circuit, Willis Van Devanter, Associate Justice. For the Ninth Circuit, Joseph McKenna, Associate Justice. October 30, 1916. 1 For next previous allotment see 241 U. S., p. iv. JUSTICES OF THE SUPREME COURT DURING THE TIME OF THESE REPORTS.1 EDWARD DOUGLASS WHITE, Chief Justice. JOSEPH McKENNA, Associate Justice. OLIVER WENDELL HOLMES, Associate Justice. WILLIAM R. DAY, Associate Justice. WILLIS VAN DEVANTER, Associate Justice. MAHLON PITNEY, Associate Justice. JAMES CLARK McREYNOLDS, Associate Justice. LOUIS D. BRANDEIS, Associate Justice. JOHN H. CLARKE, Associate Justice. THOMAS WATT GREGORY, Attorney General. JOHN W. DAVIS, Solicitor General.1 2 ALEXANDER C. KING, Solicitor General.3 JAMES D. MAHER, Clerk. FRANK KEY GREEN, Marshal. 1 For allotment of The Chief Justice and Associate Justices among the several circuits see next page. 2 Resigned November 9,1918, to take effect November 26,1918. 3 On November 18,1918, President Wilson nominated Alexander C. King, of Georgia, as Solicitor General to succeed John W. Davis, resigned. He was confirmed by the Senate November 21, 1918, and took the oath of office November 27, 1918. PROCEEDINGS ON THE DEATH OF MR. THEODORE ROOSEVELT SUPREME COURT OF THE UNITED STATES. Monday, January 6, 1919. Present: The Chief Justice, Mr. Justice McKenna, Mr. Justice Holmes, Mr. Justice Day, Mr. Justice Van Devanter, Mr. Justice Pitney, Mr. Justice Brandeis, and Mr. Justice Clarke. Mr. Attorney General Gregory addressed the court as follows: May it please the court: It is with pain and sadness that I announce the death of Colonel Theodore Roosevelt, twenty-sixth President of the United States. He held that high office from the year 1901 to 1909. Colonel Roosevelt passed away at Oyster Bay, Long Island, at a quarter p^st 4 o’clock this morning. The end was not anticipated, except by his physician, his family, and a few personal friends. He died in his sixty-first year. I move that the court adjourn as a mark of respect to the memory of this distinguished statesman, soldier, and citizen. The Chief Justice responded: Mr. Attorney General, the court sorrows to learn of the death of the great and conspicuous public servant whose services the country has lost, and it is consoling to be able to give that mark of respect and veneration to his memory which is suggested by your motion, and the court will transact no business today, but stand adjourned until tomorrow. vi THEODORE ROOSEVELT SUPREME COURT OF THE UNITED STATES. Wednesday, January 8, 1919. Present: The Chief Justice, Mr. Justice McKenna, * Mr. Justice Holmes, Mr. Justice Day, Mr. Justice Van Devanter, Mr. Justice Pitney, Mr. Justice Brandeis, and Mr. Justice Clarke. The Chief Justice said: Gentlemen of the bar, the funeral of Mr. Roosevelt takes place today. The two Houses of Congress have adjourned and, following an order of the President, the departments of the Government will be closed. With these things in mind, the court feels that it can not transact public business today. It has, therefore, determined to adjourn until tomorrow morning, not only as an additional manifestation of its sense of the loss which the country has suffered, but also as an indication that, at least in spirit, its members will, in unison with all his countrymen, sorrowfully follow his remains to their last resting place. TABLE OF CASES REPORTED PAGE Abbot, Columbia-Knickerbocker Trust Co. v. . 558 Adair, Faison v. . . . . . . 583 Adams Express Co. v. Reynolds . . . 548 Aktieselskabet Kom-Og Foderstof Kompagniet, Rederiaktiebolaget Atlanten v. . . . 553 Aktieselskabet Stavangeren, Hubbard-Zemurray S. S. Co. v. ...................................558 Alabama, State of, Louisville & Nashville R. R. v................................. . .533 Alaska Pacific Fisheries v. United States . . 78 Alaska S. S. Co. v. National Carbon Co. . . 573 Allanwilde Transport Corp. v. Pidwell . . 377 Allanwilde Transport Corp. v. Vacuum Oil Co. 377 Allen, Collector of Internal Revenue, Altheimer & Rawlings Investment Co. v. ... 578 Allen, Orr v. ....... 35 Allen v. Trimmer, Treasurer .... 590 Altheimer & Rawlings Investment Co. v. Allen, Col- lector of Internal Revenue .... 578 Amendment, Rule 22 . . . . . 528 Amendment, Rule 37 . . . . . 529 American Packing Co. v. Luketa . . . 547 Ames, F. Lothrop, Columbia-Knickerbocker Trust Co. v..................................558 Ames, John S., Columbia-Knickerbocker Trust Co. v. ......................... .558 Ana Maria Sugar Co. v. Quinones . . . 555 Anderson, Hultberg v. .... . 581 Anderson, Illinois Central R. R. v. . 546, 583 Andrews, Admx., v. Virginian Ry. . . .272 Ann Arbor R. R. v. Glasgow .... 588 Appenzellar v. Conrad, Associate Judge . .591 (vii) viii TABLE OF CASES REPORTED. PAGE Arctic Iron Co., Cleveland-Cliffs Iron Co. v. . . 178 Arizona Eastern R. R., Van Dyke v. . . .49 Associated Press, International News Service v. . 215 Atlanta & West Point R. R., Western Union Tele- graph Co. v. ..... 535, 575 Atlantic Coast Line R. R. v. Keels . . . 591 Ayers v. Kingsbury, Surveyor General . . . 544 Babcock Lumber & Land Co., Ferguson v. . 540, 570 Bales v. United States ..... 589 Baltimore & Ohio R. R. v. Block . . . 550 Baltimore & Ohio R. R. v. Futhey . . . 569 Baltimore & Ohio R. R., Western Union Tele- graph Co. v. . . . . . • 471 Baltimore & Ohio Southwestern R. R. v. United States 540 Baltzer v. United States ..... 593 Bank of California v. Richardson, Treasurer . 476 Bank of California v. Roberts, Treasurer . . 497 Barber Asphalt Paving Co. v. Woerheide . . 557 Barker, Attorney General, State of Missouri ex rel.f Merchants Exchange of St. Louis v. . . 365 Barse v. Saul ....... 537 Beckwith, Estate of, Inc., v. Commissioner of Pat- ents . . . . . . . • 556 Benjamin Electric Mfg. Co., Northwestern Electric Equipment Co. v. ..... 579 Bird, County Treasurer, Farson, Son & Co. v. . 268 Bishop, Admr., v. Great Lakes Towing Co. . . 578 Bixby et al., Receivers, Cudahy Packing Co. v. . 577 Bjomquist, Boston & Albany R. R. v. . . 573 Black Mountain Ry., Carolina Spruce Co. v. . 597 Black Mountain Ry. v. Mumpower, Admx. . . 559 Bliss Co. v. United States ..... 37 Bliss Co., United States v, .... 593 Block, Baltimore & Ohio R. R. v. . . . 550 Bluefields S. S. Co., to use of Wood, Ancillary Receiver, v. United Fruit Co. . . • 595 TABLE OF CASES REPORTED. ix PAGE Board of Commrs., Port of New Orleans, Clmt., River Sand & Gravel Co. v. ... 562 Board of Supervisors, Pike County, Mississippi, Magnolia Bank v. . . ... 546 Boehmer v. Pennsylvania R. R. . . . . 554 Bonvillain v. Howell, Trustee .... 588 Bosch Magneto Co. v. Rushmore . . . . 584 Boston & Albany R. R. v. Bjornquist . . . 573 Boxley v. Scott . . . . . . . 550 Boyd, King et al., Receivers, v. . . . . 572 Brennan Constr. Co. v. Newbold .... 579 Bressler v. Ludwig ...... 585 Brewster, Attorney General, State of Kansas ex rel., Payne v. ...... 112 Bris, Steamship, Standard Varnish Works v. . . 392 Brotherhood of Railroad Trainmen v. Groves . 587 Brown v. Fletcher, Testamentary Trustee, . . 569 Brown, Pennsylvania R. R. v. . . . 558 Brown, Executor, Western Union Telegraph Co. v. 552 Browning v. Fidelity Trust Co. . . . . 564 Brunswick-Balke-Collender Co. v. Evans . . 587 Buckeye Powder Co. v. DuPont De Nemours Powder Co. ......................................55 Buffalo Dry Dock Co., Richland S. S. Co. v. . 582 Burk, Fensterwald v. . . . . . . 592 Butte & Superior Mining Co., Minerals Separation, Ltd., v. . . . . . . . 557 Butterick Co., United States v...............587 California, State of, Mooney v. . . . . 579 California Adjustment Co., Southern Pacific Co. v. ...............................595 Camp Bird, Ltd., v. Howbert, Collector . . 590 Camp Bros. & Co. v. Portable Wagon Dump & Ele- vator Co. ....... 572 Campbell v. Wadsworth ..... 169 Carlin Constr. Co., Guerini Stone Co. v. . . 334 TABLE OF CASES REPORTED. PAGE Carolina Spruce Co. v. Black Mountain Ry. . . 597 Cavanaugh v. Looney, Attorney General . . 453 Central of Georgia Ry., Lee v. 552 Central of Georgia Ry. v. Wright, Comptroller General ....... 525 Chavelle, Trustee, v. Washington Trust Co. . . 545 Chesapeake & Ohio Ry. v. United States (2 cases) . 580 Chicago, Burlington & Quincy R. R., State of Mis- souri v. ...... 589 Chicago & Eastern Illinois R. R., Metropolitan Trust Co., Trustee, v. . . . . . 586 Chicago Great Western R. R., Postal Telegraph- Cable Co. v...................................471 Chicago, Milwaukee & St. Paul Ry., Kinzell v. . 552 Chicago, Milwaukee & St. Paul Ry. v. O’Connor, Admx. ....... 536 Chicago, Rock Island & Pacific Ry. v. Maucher . 359 Chicago, Rock Island & Pacific Ry. v. Ward . . 555 Churchill et al., Co-partners, v. Rafferty, Collector of Internal Revenue . . . . .591 Churchill Lumber Co., Detroit & Mackinac Ry. v. 30 Cincinnati, City of, Cincinnati Traction Co. v. . 537 Cincinnati, New Orleans & Texas Pacific Ry., Wheeler v. . . . . . . . 548 Cincinnati Southern Ry., State of Georgia v. . 26 Cincinnati Traction Co. v. City of Cincinnati . 537 Cleveland-Cliffs Iron Co. v. Arctic Iron Co. . . 178 Cleveland-Cliff's Iron Co. v. Township of Republic . 592 Cochnower v. United States .... 405 Cohen v. State of New York . . . .571 Cohn v. Malone, Trustee ..... 450 Cole v. Ralph (2 cases) ... . . . 553 Colton et al., Trustees, Midkiff v. ... 563 Columbia-Knickerbocker Trust Co. v. Abbot . 558 Columbia-Knickerbocker Trust Co. v. F. Lothrop Ames ....... 558 Columbia-Knickerbocker Trust Co. v. John S. Ames 558 TABLE OF CASES REPORTED. xi PAGE Columbia Knickerbocker Trust Co. v. Cordingly . 558 Columbia-Knickerbocker Trust Co. v. Evans, Ex- ecutrix ....... 558 Columbia-Knickerbocker Trust Co. v. George E. Keith ....... 558 Columbia-Knickerbocker Trust Co. v. Preston B. Keith ....... 558 Columbus, City of, Federal Gas & Fuel Co. v. . 547 Commissioner of Patents, Estate of Beckwith, Inc., v. ....... 556 Cornyns, United States v. . . . . . 349 Connolly, Admr., v. Diamond .... 561 Conrad, Associate Judge, Appenzellar v. . .591 Cooley, Danciger v. . . . . . .319 Coon, Ex parte . . . . . . . 532 Coon v. Kennedy ...... 457 Cordingly, Columbia-Knickerbocker Trust Co. v. 558 Cordova v. Grant, Executor. . . . .413 County Commrs., Love County, Oklahoma, Ward v. 556 County Commrs., Muskogee County, Oklahoma, Fink et al., Trustees, v. .... 399 Craig et al., Executors, Yazoo & Mississippi Valley R. R. v.................................573 Creek Nation of Indians, Turner v. . . . 354 Crocker et al., Trustees, v. Malley, Collector of Internal Revenue ..... 556 Cudahy Packing Co. v. Bixby et al., Receivers . 577 Curtice Brothers Co., Weigle v. . . . . 285 Cushing, Executrix, v. Whaley .... 589 Dallas, City of, Southwestern Telegraph & Telephone Co. v.........................590 Danciger v. Cooley . . . . . .319 Daniels, Guardian, Welch v. .... 580 Darling v. City of Newport News . . . 567 Darrow v. Postal Telegraph-Cable Co. . . . 563 Deere & Webber Bldg. Co., Turner v. . . . 566 xii TABLE OF CASES REPORTED. PAGE Denver & South Platte Ry., City of Englewood v. . 294 De Prevost v. Young ...... 570 Deschutes R. R. v. Eastern Oregon Land Co. . 534 Detroit, City of, Detroit United Ry. v. . . 429 Detroit & Mackinac Ry. v. Churchill Lumber Co. 30 Detroit & Mackinac Ry. v. Fletcher Paper Co. . 30 Detroit & Mackinac Ry. v. Island Mill Lumber Co. 30 Detroit & Mackinac Ry. v. Michigan Veneer Co. . 30 Detroit & Mackinac Ry. v. Richardson Lumber Co. 30 Detroit United Ry. v. City of Detroit . . . 429 Diamond, Connolly, Admr., v. . . . .561 Dick v. Hohmann, Acting Chief of Police . . 568 Dickerson, Postal Telegraph-Cable Co. v. . . 555 Dillon v. Stratheam S. S. Co., Clmt. . . . 182 Dock Sue, Gin, v. United States .... 586 Draper v. Georgia, Florida & Alabama Ry. . . 539 Duluth S. S. Co. v. Northern Pacific Ry. . . 575 Duncan, Ex parte . . . . . . 581 Dunne, Catholic Bishop, County of Rock Island v. 532 DuPont De Nemours Powder Co., Buckeye Powder Co. v....... .55 Dyason, Master, Pennsylvania R. R. v. . . 566 Eagle Cliff Fishing Co., McGowan v. . . . 589 Eastern Oregon Land Co., Deschutes R. R. v. . 534 Edwards v. United States ..... 560 Ellett, Harley-Davidson Motor Co. v. . . 563 Englewood, City of, v. Denver & South Platte Ry. 294 Erickson, Union Fish Co. v. .... 308 Erie R. R. v. Hamilton, County Treasurer . . 369 Erie R. R. v. Mahla . . . . . . 572 Erie R. R., Van Buskirk, Admx., v. ... . 549 Erlanger et al;, Partners, v. Oelwerke Teutonia . 521 Escanaba, City of, North Michigan Water Co. v. 561 Estate of Beckwith, Inc., v. Commissioner of Pat- ents . . . . . . . . 556 Evans, Brunswick-Balke-Collender Co, v. . . 587 TABLE OF CASES REPORTED. xiii PAGE Evans, Executrix, Columbia-Knickerbocker Trust Co. v. ...................................558 Ex parte Coon, ....... 532 Ex parte Duncan ...... 581 Ex parte Fricke ....... 551 Ex parte Frohwerk ...... 540 Ex parte Hamilton ...... 548 Ex parte Kinney. ...... 551 Ex parte O’Connell ...... 547 Ex parte Sylvester ...... 544 Ex parte Weiss . . . . . . . 539 Faison v. Adair ....... 583 Farson et al., Partners, Flexner v. . • . . 289 Farson, Son & Co. v. Bird, County Treasurer . 268 Federal Gas & Fuel Co. v. City of Columbus . 547 Federal Pub. Co., United States y. 587 Feick, Union Savings Bank & Trust Co. v. . . 562 Fensterwald v. Burk . . . . . . 592 Ferguson v. Babcock Lumber & Land Co. . 540, 570 Fidelity Trust Co., Browning v. . . . . 564 Fink et al., Trustees, v. County Commrs., Muskogee County, Oklahoma ..... 399 Finley v. Halliburton . . . . . . 575 Fisher v. Rule . . . . . . . 314 Fletcher, Testamentary Trustee, Brown v. . . 569 Fletcher Paper Co., Detroit & Mackinac Ry. v. . 30 Flexner v. Farson et al., Partners . . . 289 Forbes, Madden v. ..... 535 Fricke, Ex parte . . . . . . 551 Fritch, J. Homer, Inc., v. United States . . 458 Frohwerk, Ex parte . . . . . . 540 Fullinwider v. Southern Pacific R. R. . . . 409 Futhey, Baltimore & Ohio R. R. v. . . . 569 Galen v. United States ..... 585 Gallagher, Guardian, New York Central R. R. v. 559 xiv TABLE OF CASES REPORTED. PAGE Gallup, Norfolk Southern R. R. v. . . . 596 Gee Woe v. United States ..... 562 Georgia, State of, v. Cincinnati Southern Ry. . 26 Georgia, Florida & Alabama Ry., Draper v. . . 539 Georgia Public Service Corp., Union Dry Goods Co. v.......................................372 Georgia State Board of Examiners of Optometry v. Mott......................................541 Gin Dock Sue v. United States .... 586 Gish, Walker v. ...... 565 Glasgow, Ann Arbor R. R. v. . . . . 588 Godby, Wilson et al., Receivers, v. . . . 595 Going, Admx., v. Norfolk & Western Ry. . . 538 Gracie D. Chambers, The, International Paper Co. v. ..........................387 Grand Lodge, Brotherhood of Railroad Trainmen, v. Groves . . . . . . . 587 Grand Rapids & Indiana Ry. v. United States . 561 Grand Trunk Ry. Co. v. Mt. Clemens Sugar Co. . 568 Grant, Executor, Cordova v. .... 413 Grauten, Peyser v. ..... 586 Gray, Seaboard Air Line Ry. v. . . . . 557 Great Lakes Towing Co., Bishop, Admr., v. . . 578 Great Lakes Towing Co., Pittsburgh Coal Co. v. . 579 Groves, Grand Lodge, Brotherhood of Railroad Trainmen, v. ..... 587 Guerini Stone Co. v. Carlin Constr. Co. . . 334 Gulf Oil Corp. v. Lewellyn, Collector of Internal Revenue ....... 71 Gulfport Towing Co., Clmt. v. Ollinger & Bruce Dry Dock Co.....................................560 Hall, Admr., v. Paine...........................581 Halliburton, Finley v. ..... 575 Hamilton, Ex parte ...... 548 Hamilton, County Treasurer, Erie R. R. v. . . 369 Hancey v. Taylor, Trustee ..... 585 TABLE OF CASES REPORTED. XV PAGE Hardy v. Shepard & Morse Lumber Co., Clmt. . 205 Harley-Davidson Motor Co. v. Ellett . . . 563 Hartenbower v. State of Illinois .... 550 Hartford Life Ins. Co., State of Ohio ex ret., v. Langdale ....... 564 Head v. United States ..... 593 Hebe Co. v. Shaw, Secy, of Agriculture . . 297 Henderson v. Ressor . . . . . . 536 Hill, United States v. ..... 420 Hill Mfg. Co., New Orleans, Mobile & Chicago R. R. v....................................571 Hills, Trustee, v. Stimson Co. .... 577 Hodge, Admx., v. Meyer . . . . . 565 Hohmann, Acting Chief of Police, Dick v. . . 568 Holt v. Supreme Lodge, Knights of Pythias . . 588 Home Ins. Co., Reichert Towing Line v. . . 565 Hooper v. Kingsbury, Surveyor General . . 544 Hope, City of, Pierce Oil Corp. v.. . . . 498 Horton, Admx., Seaboard Air Line Ry. v. . . 553 Houston Oil Co. v. State of Texas . . .561 Howard, State Auditor, Large Oil Co. v. . . 549 Howbert, Collector, Camp Bird, Ltd., v. . . 590 Howell, Trustee, Bonvillain v. . . . . 588 Howland Co., Inc., Industrial Comm, of New York v. ...... 574 Hubbard-Zemurray S. S. Co. v. Aktieselskabet Stavangeren ...... 558 Hull, Admx., v. Philadelphia & Reading Ry. . . 552 Hultberg v. Anderson ...... 581 Hunt, Snyder, use of, Snyder v. . . . . 566 Hutchins et al., Trustees, Robinson, Trustee, v. . 568 Illinois, State of, Hartenbower v. . . . . 550 Illinois, State of, Metropolitan State Bank v. .591 Illinois Central R. R. v. Anderson . . 546, 583 Industrial Comm, of New York v. Howland Co., Inc.................................... . 574 xvi TABLE OF CASES REPORTED. PAGE Industrial Comm, of New York v. Johnson Lighterage Co. ....... 574 Industrial Comm, of New York v. Rock Plaster Mfg. Co....................................574 International Harvester Co. v. United States . 587 International Life Ins. Co., Lukens v. . . . 596 International News Service v. Associated Press . 215 International Paper Co. v. The Gracie D. Chambers .................................387 Iowa, State of, v. Slimmer . . . . .115 Island Mill Lumber Co., Detroit & Mackinac Ry. v..................................30 Jersey City, Leary v. . . . . . . 328 J. Homer Fritch, Inc., v. United States . . 458 John Wanamaker, New York, Meccano, Ltd., v. . 554 Johnson Lighterage Co., Industrial Comm, of New York v. ...... 574 Jones et al., Co-partners, v. United States ex rel. Pressprich & Son Co. '................564 Kansas, State of, Missouri Pacific Ry. v. . . 276 Kansas, State of, ex rel. Brewster, Attorney General, Payne v. ...... 112 Kansas City Railways v. McAllister, Attorney General (2 cases).....................595 Keels, Atlantic Coast Line R. R. v. . . . 591 Keith, George E., Columbia-Knickerbocker Trust Co. v. ........ 558 Keith, Preston B., Columbia-Knickerbocker Trust Co. v. ...............................558 Kennedy, Coon v. ..... 457 Kibler & Bros. Co., Toledo & Ohio Central Ry. v. . 569 Kimball, Admx., New York Central R. R. v. . 572 King et al., Receivers, v. Boyd . . . . 572 King v. Putnam Investment Co. .... 23 King v. Rhodes . . . . . . . 560 TABLE OF CASES REPORTED. xvu PAGE King County, Washington, Snyder v. . . . 539 Kingsbury, Surveyor General, Ayers v. . . . 544 Kingsbury, Surveyor General, Hooper v. . . 544 Kinney, Ex parte . . . . . .551 Kinzell v. Chicago, Milwaukee & St. Paul Ry. . 552 Klopstock, Landes v. . . . . . . 570 Klopstock, Liebman v. ..... 570 Knights of Pythias, Supreme Lodge, Holt v. . . 588 Kornmann v. United States .... 594 La Crosse Plow Co. v. Pagenstecher . . . 572 Landes v. Klopstock . . . . . . 570 Langdale, State of Ohio ex ret. Hartford Life Ins. Co. v. . . . . . . . 564 Large Oil Co. v. Howard, State Auditor . . 549 Larson, Jr., Co., Wrigley, Jr., Co. v. 580 La Tourette v. McMaster, Insurance Commr. . 465 Lauter Piano Co., Turner v. .... 560 Lawhead, Trustee, Monroe Building Co. v. . .581 Lay v. Lay . . . ■ . . . .24 Leader Realty Co., New Orleans Land Co. v. . 550 Leary v. Jersey City . . . . . . 328 Lee v. Central of Georgia Ry. .... 552 Le More v. United States ..... 586 Levy, Trustee, Weidhom v. .... 555 Lewellyn, Collector of Internal Revenue, Gulf Oil Corp. v. . . . . . . .71 Liebman v. Klopstock . . . . 570 Life Preserver Suit Co. v. National Life Preserver Co..........................................571 Long, Admx., Pennsylvania R. R. v, . . 561 Looney, Attorney General, Cavanaugh v. . . 453 Louisiana, State of, v. New Orleans Land Co. . 577 Louisiana, State of, ex ret. Schmidt, v. Sanders, Governor . . . . . . . 534 Louisiana, State of, Selsor v. ... . 545 Louisiana Nav. Co. v. Oyster Comm, of Louisiana . 577 xviii TABLE OF CASES REPORTED. PAGE Louisville & Nashville R. R. v. State of Alabama 533 Louisville & Nashville R. R., Western Union Tele- graph Co. v. ..... 532, 576 Love County, Oklahoma, County Commrs., Ward v. 556 Luckenbach v. McCahan Sugar Refg. Co. ,. . 139 Ludwig, Bressler v. ..... 585 Lukens v. International Life Ins. Co. . . . 596 Luketa, American Packing Co. v. ... 547 McAllister, Attorney General, Kansas City Rail- ways v. (2 cases) . . . . . 595 McCahan Sugar Refg. Co., Luckenbach v. . 139 McCardle, New Orleans, Mobile & Chicago R. R. v.....................................592 McDonald, Chnt., Sandberg v. . . . u 185 McGowan v. Eagle Cliff Fishing Co. . . . 589 McMaster, Insurance Commr., La Tourette v. . 465 McNeill, Admr., Yazoo & Mississippi Valley R. R. v............................ . . 594 MacMath, Admx., v. United States . . .151 Madden v. Forbes ...... 535 Magnolia Bank v. Board of Supervisors, Pike County, Mississippi . . . . . 546 Mahla, Erie R. R. v. . . . . . . 572 Malley, Collector of Internal Revenue, Crocker et al., Trustees, v. ..... 556 Mallory, Sunday v. ..... 545 Malone, Trustee, Cohn v. . . . . . 450 Malvin v. United States ..... 564 Mason, Mitchell v. ..... 584 Maucher, Chicago, Rock Island & Pacific Ry. v. . 359 Mayer v. Mutschler . . . . . . 563 Maynard v. Reynolds ...... 578 Meccano, Ltd., v. John Wanamaker, New York . 554 Mechanics Loan & Trust Co., Searle v. . . 592 Merchants Exchange of St. Louis v. State of Mis- souri ex rel. Barker, Attorney General . . 365 TABLE OF CASES REPORTED. xix PAGE Metropolitan State Bank v. State of Illinois . .591 Metropolitan Trust Co., Trustee, v. Chicago & Eastern Illinois R. R. . . . . . 586 Meyer, Hodge, Admx., v. . . . . . 565 Meyran v. Watt, Trustee ..... 562 Meysenburg, O’Toole v. .... . 583 Michigan, State of, Watters v. . . . .65 Michigan R. R. Comm., Pontiac, Oxford & Northern R. R. v. . . . . . .584 Michigan Veneer Co., Detroit & Mackinac Ry. v. ....... 30 Midkiff v. Colton et al., Trustees . . . 563 Milner, Executrix, v. United States . . . 594 Minerals Separation, Ltd., v. Butte & Superior Mining Co. ...... 557 Minneapolis & St. Louis R. R., Polluck v. . . 558 Minnesota, State of, Pure Oil Co. v. . . . 158 Missouri, State of, v. Chicago, Burlington & Quincy R. R......................................589 Missouri, State of, ex rel. Barker, Attorney General, Merchants Exchange of St. Louis v. . . 365 Missouri, Kansas & Texas Ry. v. Sealy et al., Partners ....... 363 Missouri Pacific Ry. v. State of Kansas. . . 276 Missouri Public Service Comm., Union Pacific R. R. v. . . . . . .67 Mitchell v. Mason ...... 584 Mitchell, Phillips v. . . . . . .531 Mohney, New York Central R. R. v. . . 554 Monroe Building Co. v. Lawhead, Trustee . . 581 Montezuma Valley Irrig. Dist. v. Norris . . 569 Mooney v. State of California .... 579 Mott, Georgia State Board of Examiners of Optom- etry v. . . . . . . . 541 Mount Clemens Sugar Co., Grand Trunk Ry. Co. v. 568 Mount Saint Mary’s Cemetery Assn. v. Mullins . 501 Mullins, Mount Saint Mary’s Cemetery Assn. v. . 501 XX TABLE OF CASES REPORTED. PAGE Mumpower, Admx., Black Mountain Ry. v. . . 559 Murray v. Ray, Trustee, ..... 584 Muskogee County, Oklahoma, County Commrs., Fink et al., Trustees, v. .... 399 Mutschler, Mayer v. . . . . . . 563 Naam Looze Vennoot Schap, Pennsylvania R. R. v. 566 Nahant, Town of, Herbert M. Sears v. . . . 542 Nahant, Town of, Frederick P. Sears v. . . 543 Nampa & Meridian Irrig. Dist., Petrie v. . . 154 Nashville, Chattanooga & St. Louis Ry., Western Union Telegraph Co. v. ... 542, 576 National Carbon Co., Alaska S. S. Co. v. . . 573 National Life Preserver Co., Life Preserver Suit Co. y........................................571 Neilson v. Rhine Shipping Co., Clmt. . . . 205 Nevada, State of, Wells, Fargo & Co. v. . . 165 Newbold, Brennan Constr. Co. v. ... 579 New Orleans, Port of, Board of Commrs., River Sand & Gravel Co. v. . . . . . 562 New Orleans Land Co. v. Leader Realty Co. . 550 New Orleans Land Co., State of Louisiana v. . 577 New Orleans, Mobile & Chicago R. R. v. Hill Mfg. Co. .........................................571 New Orleans, Mobile & Chicago R. R. v. Mc- Cardle.......................................592 New Orleans Pacific Ry., United States v. . . 507 Newport News, City of, Darling y. 567 New York, City of, Schneider y. . . . 575 New York, State of, Cohen y. 571 New York Central R. R. y. Gallagher, Guardian . 559 New York Central R. R. y. Kimball, Admx. . 572 New York Central R. R. y. Mohney . . . 554 New York Industrial Comm. y. Howland Co., Inc. . 574 New York Industrial Comm. y. Johnson Lighterage Co. ....... 574 New York Industrial Comm. y. Rock Plaster Mfg. Co. .574 TABLE OF CASES REPORTED. xxi PAGE Nicoulin v. O’Brien . . . . . .113 Norfolk Southern R. R. v. Gallup.... 596 Norfolk Southern R. R. v. Whitehurst . . . 588 Norfolk & Western Ry., Going, Admx., v. . . 538 Norris, Montezuma Valley Irrig. Dist. v. . . 569 Northern Pacific Ry., Duluth S. S. Co. v. . . 575 North Michigan Water Co. v. City of Escanaba . 561 Northwestern Electric Equipment Co. v. Benjamin Electric Mfg. Co..........................579 Oakley, Richards et al., Partners, v. . . .541 O’Brien, Nicoulin v. . . . . . .113 O’Connell, Ex parte . . . . . . 547 O’Connor, Admx., Chicago, Milwaukee & St. Paul Ry. v.....................................536 Oelwerke Teutonia v. Erlanger et al., Partners . 521 Ohio, State of, ex rel. Hartford Life Ins. Co. v. Langdale ....... 564 Ohio, State of, Palmer v. . . . . .32 Oklahoma City Mill & Elevator Co. v. Pampa Grain Co. ....... 582 Old Homestead Co., Turner v. ... . 590 Ollinger & Bruce Dry Dock Co., Gulfport Towing Co., Clmt., v. ..... 560 Oregon-Washington R. R. & Nav. Co. v. Stoddard Lumber Co. . . . . . . 535 Orr v. Allen................................ .35 O’Toole v. Meysenburg ..... 583 Oyster Comm, of Louisiana, Louisiana Nav. Co. v. 577 Pacific Mail S. S. Co. v. Panama R. R. . . 567 Pagenstecher, La Crosse Plow Co. v. . . . 572 Paine, Hall, Admr., v. . . . . . 581 Palmer v. State of Ohio ..... 32 Pampa Grain Co., Oklahoma City Mill & Elevator Co. v.....................................582 Panama R. R., Pacific Mail S. S. Co. v. . . 567 xxii TABLE OF CASES REPORTED. PAGE Patterson, Rousney v. ..... 593 Payne v. State of Kansas ex rel. Brewster, Attorney General ....... 112 Penfold, et al., Executors, v. Travis, Comptroller . 537 Pennsylvania R. R., Boehmer v. . . . . 554 Pennsylvania R. R. v. Brown .... 558 Pennsylvania R. R. v. Dyason, Master . . . 566 Pennsylvania R. R. v. Long, Admx. . . . 561 Pennsylvania R. R. v. Naam Looze Vennoot Schap 566 Petrie w.Nampa & Meridian Irrig. Dist. . . 154 Peyser v. Grauten ...... 586 Philadelphia, Baltimore & Washington R. R. v. Smith . . . . . . .551 Philadelphia & Reading Ry., Hull, Admx., v. . 552 Phillips v. Mitchell . . . . . .531 Pidwell, Allanwilde Transport Corp. v. . . 377 Piedmont & Georges Creek Coal Co. v. Seaboard Fisheries Co., Clmt. ..... 556 Pierce Oil Corp. v. City of Hope .... 498 Pike County, Mississippi, Board of Supervisors, Magnolia Bank v. ..... 546 Pittsburgh Coal Co. v. Great Lakes Towing Co, . 579 Pittsburgh Melting Co. v. Totten, Inspector. . 1 Polluck v. Minneapolis & St. Louis R. R. . . 558 Pontiac, Oxford & Northern R. R. v. Michigan R. R. Comm. ....... 584 Portable Wagon Dump & Elevator Co., Camp Bros. & Co. v. .................................572 Postal Telegraph-Cable Co. v. Chicago Great West- ern R. R. . . . . . . . 471 Postal Telegraph-Cable Co., Darrow v. . . 563 Postal Telegraph-Cable Co. v. Dickerson . . 555 Postal Telegraph-Cable Co. v. Tonopah & Tidewater R. R......................................471 Pressprich & Son Co., United States ex rel., Jones et al., Co-partners, v. . . . . . 564 Preston, Western Union Telegraph Co. v. . . 585 TABLE OF CASES REPORTED. xxiii PAGE Public Service Comm, of Missouri, Union Pacific R. R. v. . . . . . . .67 Public Utility Comrnrs. v. Yuchausti & Co. . . 554 Purdy, Robinson, Trustee, v. ... . 567 Pure Oil Co. v. State of Minnesota . . . 158 Putnam Investment Co., King v. . . . .23 Quinones, Ana Maria Sugar Co. v. . . . 555 Rafferty, Collector of Internal Revenue, Churchill et al., Co-partners, v. . . . . . 591 Railroad Trainmen, Brotherhood of, v. Groves . 587 Ralph, Cole v. (2 cases) ..... 553 Ray, Trustee, Murray v. .... . 584 Reade v. United States ..... 539 Rectanus Co., United Drug Co. v. . . .90 Red Jacket, Jr., Coal Co. v. United Thacker Coal Co. 531 Rederiaktiebolaget Atlanten v. Aktieselskabet Kom- Og Foderstof Kompagniet . . . . 553 Reeves, Trustee, v. York Engineering & Supply Co. 584 Reichert Towing Line v. Home Ins. Co. . . 565 Reichert Towing Line v. Rice . . . . 565 Republic, Township of, Cleveland-Cliffs Iron Co. v. 592 Ressor, Henderson v. . . . . . . 536 Reynolds, Adams Express Co. v. . . . 548 Reynolds, Maynard v. ..... 578 Reynolds, United States v. . . . . . 554 Rhine, The . . . . . . .205 Rhine Shipping Co., Clmt., Neilson v. . . . 205 Rhodes, King v. ...... 560 Rice, Reichert Towing Line v. . . . . 565 Rice v. United States ..... 574 Richards et al., Partners, v. Oakely . . . 541 Richardson, Treasurer, Bank of California v. . 476 Richardson Lumber Co., Detroit & Mackinac Ry. v. 30 Richland S. S. Co. v. Buffalo Dry Dock Co. . . 582 River Sand & Gravel Co. v. Board of Comrnrs., Port of New Orleans, Clmt. .... 562 xxiv TABLE OF CASES REPORTED. PAGE Roach, Admx., Savannah & Northwestern Ry. v. 596 Roberts, Treasurer, Bank of California v. . . 497 Robinson, Trustee, v. Hutchins et al., Trustees . 568 Robinson, Trustee, v. Purdy .... 567 Robinson, Trustee, v. Seaboard National Bank of New York . . . . . . .567 Robinson v. Steele . . . . . 546 Rock Island, County of, v. Dunne, Catholic Bis- hop ........ 532 Rock Plaster Mfg. Co., Industrial Comm, of New York v.............................574 Rosenthal v. United States . ■ . . . . 571 Ross, Wertz v. ...... 570 Rossi, Ruddy v. . . . . . . . 104 Rousney v. Patterson ...... 593 Ruddy v. Rossi . . . . . . . 104 Rule 22, Amendment....................528 Rule 37, Amendment ..... 529 Rule, Fisher v. . . . . . . .314 Rushmore, Bosch Magneto Co. v. ... 584 Ruysdael, Tevander v. ..... 585 Sandberg v. McDonald, Clmt. .... 185 Sanders, Governor, State of Louisiana ex rel. Schmidt v. . . . . . . . 534 Saul, Barse v. ...... . 537 Savannah & Northwestern Ry. v. Roach, Admx. . 596 Schadrach, Trustee, Schmitt v. . . . . 538 Schmidt, State of Louisiana ex rel., v. Sanders, Governor ....... 534 Schimtt v. Schadrach, Trustee .... 538 Schneider v. City of New York .... 575 Scott, Boxley v. . . . . . . . 550 Seaboard Air Line Ry. v. Gray .... 557 Seaboard Air Line Ry. v. Horton, Admx. . . 553 Seaboard Fisheries Co., Clmt., Piedmont & Georges Creek Coal Co. v. ..... 556 TABLE OF CASES REPORTED. XXV PAGE Seaboard National Bank of New York, Robinson, Trustee, v. . . . . . . . 567 Sealy et al., Partners, Missouri, Kansas & Texas Ry. v........................... . .363 Searle v. Mechanics Loan & Trust Co. . . 592 Sears, Herbert M., v. Town of Nahant . . . 542 Sears, Frederick R., v. Town of Nahant. . . 543 Second National Bank of Cincinnati, Sterrett, Receiver, v. ...... 73 Selsor v. State of Louisiana ..... 545 Shaffer, Tyrrell v. ..... 556 Shauver, United States v. . ...............594 Shaw, Secy, of Agriculture, Hebe Co. v. . . 297 Shea v. United States ...... 581 Shepard & Morse Lumber Co., Clmt., Hardy v. . 205 Slimmer, State of Iowa v. . . . . 115 Smith, Philadelphia, Baltimore & Washington R. R. v...................• . . .551 Snyder v. King County, Washington . . . 539 Snyder v. Snyder, use of Hunt .... 566 Southern Express Co., Tribble v. ... 582 Southern Pacific Co. v. California Adjustment Co. . 595 Southern Pacific R. R., Fullinwider v. . . 409 Southern Pacific Co., Clmt., v. Stag Line, Ltd., Clmt. 573 Southern Pacific Co. v. Stewart .... 446 Southwestern Telegraph & Telephone Co. v. City of Dallas ....... 590 Spearin v. United States . . . . . 132 Stag Line, Ltd., Clmt., Southern Pacific Co., Clmt., v. 573 Standard Varnish Works v. Steamship Bris . . 392 Steele, Robinson v. ..... 546 Sterrett, Receiver, v. Second National Bank of Cincinnati ....... 73 Stewart, Southern Pacific Co. v. . . . . 446 Stimson Co., Hills, Trustee, v. ... . 577 Stoddard Lumber Co., Oregon-Washington R. R. & Nav. Co. v. ..... 535 xxvi TABLE OF CASES REPORTED. PAGE Stratheam, The ...... 182 Strathearn S. S. Co., Clmt., Dillon v. . . . 182 Stump, Sturm v. ...... 578 Sturm v. Stump ....... 578 Sue, Gin Dock, v. United States . . . . 586 Sugar v. United States . . . . . 578 Sunday v. Mallory . . . . . 545 Supreme Lodge, Knights of Pythias, Holt v. . 588 Sylvester, Ex parte . . . . . . 544 Talus, The, . . . . . . • 185 Taylor, Trustee, Hanecy v. .... 585 Tempel v. United States ..... 121 Teutonia, Oelwerke, v. Erlanger et al., Partners . 521 Tevander v. Ruysdael . . . . 585 Texas, State of, Houston Oil Co. v. . . . 561 Toledo & Ohio Central Ry. v. Kibler & Bros. Co. . 569 Tonopah & Tidewater R. R., Postal Telegraph-Cable Co. v. . . . . . . . 471 Totten, Inspector, Pittsburgh Melting Co. v. . 1 Travis, Comptroller, Penfold et al., Executors, v. . 537 Tribble v. Southern Express Co. .... 582 Trimmer, Treasurer, Allen v. ... . 590 Trustees of Cincinnati Southern Ry., State of Georgia v. . . • . . . . .26 Turner v. Deere & Webber Bldg. Co. . . . 566 Turner v. Lauter Piano Co. . . . . 560 Turner v. Old Homestead Co. .... 590 Turner v. United States ..... 354 Tyrrell v. Shaffer . . . . . . 556 Union Dry Goods Co. v. Georgia Public Service Corp. . . . . ... 372 Union Fish Co. v. Erickson ..... 308 Union Pacific R. R. v. Public Service Comm, of Missouri . . .... 67 Union Savings Bank & Trust Co., Trustee, v. Feick . 562 TABLE OF CASES REPORTED. xxvii PAGE Union Tool Co. v. Wilson ..... 559 Union Tool Co. v. Wilson & Willard Mfg. Co. . 559 Unione Austriaca di Navigazione, Watts, Watts & Co. v. ....... 9 United Drug Co. v. Rectanus Co. ... 90 United Fruit Co., Bluefields S. S. Co., to use of Wood, Ancillary Receiver, v. . . . . . 595 United States, Alaska Pacific Fisheries v. . . 78 United States, Bales v. . . . . . 589 United States, Baltimore & Ohio ''Southwestern R. R. v........................................540 United States, Baltzer v. .... . 593 United States, Bliss Co. v. ' . . . .37 United States v. Bliss Co. . . . . . 593 United States v. Butterick Co. .... 587 United States, Chesapeake & Ohio Ry. v. (2 cases). 580 United States, Cochnower v. .... 405 United States v. Cornyns . . . ... 349 United States, Edwards v. . . . . . 560 United States v. Federal Pub. Co. . . . 587 United States, Galen v. .... . 585 United States, Gee Woe v. . . . . . 562 United States, Gin Dock Sue v. . . . . 586 United States, Grand Rapids & Indiana Ry. v. . 561 United States, Head v. ..... 593 United States v. Hill ... . . . . 420 United States, International Harvester Co. v. . 587 United States, J. Homer Fritch, Inc., v. . . 458 United States ex rel. Pressprich & Son Co., Jones et al., Co-partners, v. . . . . . 564 United States, Kornmann v. .... 594 United States, Le More v. . . . . . 586 United States, MacMath, Admx., v. . . . 151 United States, Malvin v. . . . . . 564 United States, Milner, Executrix, v. . . . 594 United States v. New Orleans Pacific Ry. . . 507 United States, Reade v. .... . 539 xxviii TABLE OF CASES REPORTED. PAGE United States v. Reynolds ..... 554 United States, Rice v. ..... 574 United States, Rosenthal v. . . . .571 United States v. Shauver ..... 594 United States, Shea v. ..... 581 United States v. Spearin ..... 132 United States, Sugar v. ....... . 578 United States, Tempel v. .... . 121 United States, Turner v. .... . 354 United States, Wierse v. . . .. . 568 United States, Williams v. . . . . . 583 United States, Yeates v. . . . . 583 United Thacker Coal Co., Red Jacket, Jr., Coal Co. v........................................531 Vacuum Oil Co., Allanwilde Transport Corp. v. . 377 Van Buskirk, Admx., v. Erie R. R. . . . 549 Van Dyke v. Arizona Eastern R. R. . . .49 Virginia, Commonwealth of, Wise, Trustee, v. . 582 Virginian Ry., Andrews, Admx., v. . . . 272 Wadsworth, Campbell v. .... . 169 Walker v. Gish . . . . . . . 565 Wanamaker, John, New York, Meccano, Ltd., v. . 554 Ward, Chicago, Rock Island & Pacific Ry. v. . 555 Ward v. County Commrs., Love County, Oklahoma . . . . . . . . 556 Washington Trust Co., Chavelle, Trustee, v. . . 545 Watt, Trustee, Meyran v. . . . . . 562 Watters v. State of Michigan .... 65 Watts, Watts & Co. v. Unione Austriaca di Navi-gazione ....... 9 Weidhom v. Levy, Trustee .... 555 Weigle v. Curtice Brothers Co. .... 285 Weiss, Ex parte . . . . . 539 Welch v. Daniels, Guardian .... 580 Wells, Fargo & Co. v. State of Nevada . . . 165 TABLE OF CASES REPORTED. xxix PAGE Wertz v. Ross ....... 570 Western Union Telegraph Co. v. Atlanta & West Point R. R. ..... 535, 575 Western Union Telegraph Co. v. Baltimore & Ohio R. R........................................ 471 Western Union Telegraph Co. v. Brown, Executor ....... . 552 Western Union Telegraph Co. v. Louisville & Nashville R. R................................... 532, 576 Western Union Telegraph Co. v. Nashville, Chat- tanooga & St. Louis Ry. . . . 542, 576 Western Union Telegraph Co. v. Preston . . 585 Whaley, Cushing, Executrix, v. . . . . 589 Wheeler v. Cincinnati, New Orleans & Texas Pacific Ry............................................548 Whitaker, Individually, etc., v. Whitaker Iron Co. 564 Whitaker Iron Co., Whitaker, Individually, etc., v. 564 Whitehurst, Norfolk Southern R. R. v. . . 588 Wierse v. United States ..... 568 Williams v. United States ..... 583 Williams, Zanesville & Western Ry. v. . . 533, 575 Wilson et al., Receivers, v. Godby. . . . 595 Wilson, Union Tool Co. v. . . . . . 559 Wilson & Willard Mfg. Co., Union Tool Co. v. . .559 Windrush, The ....... 205 Wise, Trustee, v. Commonwealth of Virginia . 582 Woe, Gee, v. United States . . . . 562 Woerheide, Barber Asphalt Paving Co. v. . . 557 Wood, Ancillary Receiver, Bluefields S. S. Co., to use of, v. United Fruit Co. . . . . 595 Wright, Comptroller General, Central of Georgia Ry. v.........................................525 Wrigley, Jr., Co. v. Larson, Jr., Co. . . . 580 Yazoo & Mississippi Valley R. R. v. Craig et al., Executors . . . . . . . 573 Yazoo & Mississippi Valley R. R. v. McNeill, Admr. 594 xxx TABLE OF CASES REPORTED. PAGE Yeates v. United States ..... 583 York Engineering & Supply Co., Reeves, Trustee, v. 584 Young, De Prevost v. .. ( . . . . . 570 Yuchausti & Co., Public Utility Commrs. v. . 554 Zanesville & Western Ry. v. Williams, Admr. 533, 575 TABLE OF CASES CITED IN OPINIONS. PAGE Abernethy v. Hutchinson, 3 L. J. (O. S.) Ch. 209 254 Adams v. Tanner, 244 U. S. 590 113 Adams Express Co. v. Cron-inger, 226 U. S. 491 363 Adams Express Co. v. Ohio, 165 U. S.194;166 U. S.185 167 JEtna Ins. Co. v. Commonwealth, 106 Ky.. 864 99 Alabama v. Schmidt, 232 U. S. 168 110 Alaska Pacific Fisheries v. United States, 240 Fed. Rep. 274 79, 86 Allanwilde Transport Corp. v. Vacuum Oil Co., 248 U. S. 377 391, 396 American Banana Co. v. United Fruit Co., 213 U. S. 347 195 American Express Co. v. Iowa, 196 U. S. 133 324 American Tobacco Co. v. Werckmeister, 207 U. S. 284 254 Amoskeag Savgs. Bank v. Purdy, 231 U. S. 373 489, 497 Anicker v. Gunsburg, 246 U. S. 110 318 Anvil Mining Co. v. Humble, 153 U. S. 540 138, 339 Armour & Co. v. North Dakota, 240 U. S. 510 288, 304 Armour Packing Co. v. United States, 209 U. S. 56 43 Aronson v. Baker, 43 N. J. Eq. 365 254 Asbell v. Kansas, 209 U. S. 251 162 Associated Press v. International News Service, 240 Fed. Rep. 983; 245 Fed. Rep. 244 216, 232, 243 PAGE Atchison, T. & S. F. Ry. v. Matthews, 174 U. 8. 96 539 Atchison, T. & 8. F. Ry. v. O’Connor, 223 U. 8. 280 70 Atchison, T. & 8. F. Ry. v. United States, 225 U. S. 640 463 Atlantic Coast Line v. Georgia, 234 U. 8. 280 304 Atlantic Coast Line v. Goldsboro, 232 U. S. 548 376 Attorney General v. National Cash Register Co., 182 Mich. 99 258 Austin v. Tennessee, 179 U. 8. 343 304 Bacon v. Illinois, 227 U. S. 504 66 Baker v. Selden, 101 U. S. 99 254, 255 Baker & Co. v. Delapenha, 160 Fed. Rep. 746 101 Balt. & Ohio R. R. v. Western Union Tel. Co., 241 Fed. Rep. 162; 242 Fed. Rep. 914 471, 473 Balt. & Potomac R. R. v. Hopkins, 130 U. S. 210 372 Bamforth v. Douglass Post Card Co., 158 Fed. Rep. 355 260 Bank of California v. Richardson, 248 U. S. 476 498 Bank of California v. Richardson; 175 Cal. 813 477 Bank of California v. Roberts, 173 Cal. 398 487, 489, 497 Bank of Commerce v. New York City, 2 Black, 620 492 Bank of Commerce v. Tennessee, 161 U. 8. 134 495 Bank of Hamilton v. Dudley, 2 Pet. 492 443 (xxxi) xxxii TABLE OF CASES CITED. PAGE Bank of Redemption v. Boston, 125 U. S. 60 484,486, 488, 489, 490 Bank Tax Case, 2 Wall. 200 492 Bankers Mutual Casualty Co. v. Minneapolis &c. Ry., 192 U. S. 371 534 Banks Law Pub. Co. v. Lawyers’ Co-operative Pub. Co., 169 Fed. Rep. 386 254 Banning Co. v. California, 240 U. S. 142 544, 545 Barker v. Merchants Ex- change, 269 Mo. 346 365, 367 Barnes v. Miner, 122 Fed. Rep. 480 255 Barr v. Essex Trades Council, 53 N. J. Eq. 101 237 Barron v. Baltimore, 7 Pet. 243 34 Bartlett v. Crittenden, 5 Mc- Lean, 32 254 Bartlette v. Crittenden, 4 Mc- Lean, 300 254 Beers’®. Arkansas, 20 How. 527 34 Belgenland, The, 114 U. S. 355 20 Bement ®. National Harrow Co., 186 U. S. 70 98 Bentley ®. State, 73 Wise. 416 136 Bernheimer ®. Converse, 206 U. S. 516 77, 78 Berry ®. Davis, 242 U. S. 468 21 Bigby ®. United States/ 188 U. S. 400 . 129 Bilby ®. Stewart, 246 U. S. 255 532, 534, 535, 537, 538, 541, 543, 548 Blair ®. Chicago, 201 U. S. 400 444 Bleistein ®. Donaldson Lithographing Co., 188 U. S. 239 254 Board of Liquidation v. Louisiana, 179 U. S. 622 534 Board of Revenue ®. Farson, Son & Co., 197 Ala. 375- 271 Board of Trade v. Celia Comm. Co., 145 Fed. Rep. 28 252 Board of Trade ». Christie Grain & Stock Co., 198 U. S. 236 237, 251, 252, 366 Board of Trade ®. Hadden-Krull Co., 109 Fed. Rep. 705 252 PAGE Board of Trade ®. Price, 213 Fed. Rep. 336 252 Board of Trade ®. Thomson Comm. Co., 103 Fed. Rep. 902 252 Board of Trade v. Tucker, 221 Fed. Rep. 305 252 Bohall ®. Dilla, 114 U. S. 47 318 Bonner ®. Gorman, 213 U. S. 86 365 Booth v. Clark, 17 How. 322 76, 77 Boston, The, 3 Fed. Cas. 921' 312 Boston Beer Co. v. Massachusetts, 97 U. S. 25 501 Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69 266 Boston & Maine R. R. ®. Hooker, 233 U. S. 97 363, 365 Boucicault v. Fox, 5 Blatchf. 87 254 Boucicault ®. Hart, 13 Blatchf. 47 254 Bowman v. Chicago & N. W. Ry., 125 U. S. 465 428 Brader ®. James, 246 U. S. 88 545 Bradley ®. Lehigh Valley R. R., 153 Fed. Rep. 350 148 Brazee ®. Michigan, 241 U. S. 340 113 Brennan v. United Hatters, 73 N. J. L. 729 236 Bristol v. Equitable Life Assur. Soc., 132 N. Y. 264 255, 257 Bristol v. Washington County, 177 U. S. 133 120 Brodnax ®. Missouri, 219 U. S. 285 368 Brolan ®. United States, 236 U. S. 216 531, 532, 534-538, 541, 543 Brown ». New Jersey, 175 U. S. 172 34 Brown Chemical Co. ». Meyer, 139 U. S. 540 259 Buchser ®. Buchser, 231 U. S. 157 HO Buckeye Powder Co. ®. DuPont Powder Co., 196 Fed. Rep. 514 61 TABLE OF CASES CITED. xxxiii PAGE Buckeye Powder Co. v. DuPont Powder Co., 223 Fed. Rep. 881 56, 60 Budd v. New York, 143 U. S. 517 375 Bunting v. Oregon, 243 U. S. 426 468 Burkhard v. Heinz Co., 71 N. J. L. 562 333 Burma, The, 187 Fed. Rep. 94 150 Burnell v. Chown, 69 Fed. Rep. 993 255 Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 254 Butchers’ Union Co. v. Crescent City Co., Ill U. S. 746 469 Butler v. Eaton, 141 U. S. 240 21 Caird v. Sime, L. R. 12 App. Cas. 326 254 Camfield v. United States, 167 U. S. 518 109 Caminetti v. United States, 242 U. S. 470 425 Campbell v. Wade, 132 U. S. 34 544, 545 Canal Co. v. Clark, 13 Wall. 311 97, 100, 259 Canal Co. v. Gordon, 6 Wall. 561 345 Cargill Co. v. Minnesota, 180 U. S. 452 368 Carib Prince, The, 170 U. S. 655 145 Carlin Constr. Co. v. Guerini Stone Co., 241 Fed. Rep. 545 336, 337, 341, 342, 348 Central R. R. v. Jersey City, 209 U. S. 473 114, 331 Central Vermont Ry. v. White, 238 U. S. 507 65 Chadwick v. Covell, 151 Mass. 190 257 Champion v. Ames, 188 U. S. 321 424, 425 Chase v. United States, 155 U. S. 489 461, 462 Chicago v. Pennsylvania Co., 119 Fed. Rep. 497 358 Chicago, Burl. & Q. R. R. v. McGuire, 219 U. S. 549 376 PAGE Chicago G. W. R. R. v. Postal Tel.-Cable Co., 245 Fed. Rep. 592; 249 id. 664 471, 473 Chicago, Mil. & St. P. Ry. v. O’Connor, 248 U. S. 536 538 Chicago, Mil. & St. P. Ry. v. Solan, 169 U. S. 133 365 Chicago, Mil. & St. P. Ry. v. United States, 224 U. S. 351 53 Chilton v. Progress Printing Co. [1895], 2 Ch. 29 255, 257 Choate v. Trapp, 224 U. S. 665 89, 403, 404 Choctaw & Gulf R. R. v. Harrison, 235 U. S. 292 549 Christie v. United States, 237 U. S. 234 136 Cincinnati, H. & D. R. R. v. McKeen, 149 U. S. 259 185 Clark v. Kansas City, 176 U. S. 114 539 Clark Distilling Co. v. Western Md. Ry., 242 U. S. 311 279, 425, 426, 428, 546 Clayton v. Stone, 2 Paine, 382 234, 254 Cleveland Tel. Co. v. Stone, 105 Fed. Rep. 794 252 Cobbs v. Vizard Investment Co., 182 Ala. 372 77 Cochnower v. United States, 51 Ct. Clms. 461 405 Coffey v. Gay, 191 Ala. 137 77 Cohen v. Samuels, 245 U. S. 50 452 Colburn v. Wilson, 23 Idaho, 337 155 Columbia Mill Co. v. Alcorn, 150 U. S. 460 100 Commercial Bank v. Chambers, 182 U. S. 556 496 Commonwealth v. Barber, 143 Mass. 560 204 Consolidated Turnpike Co. v. Norfolk &c. Ry., 228 U. S. 596 531, 532, 534, 537, 541-545, 547 Converse v. Hamilton, 224 U. S. 243 77, 78 Cook v. Bayonne, 80 N. J. L. 596 333, 334 xxxiv TABLE OF CASES CITED. page: Coon v. Kennedy, 91 N. J. L. 598 457 Cooper v. Roberts, 18 How. 173 110 County Commrs. v. Fink, 59 Okla. — 399 County Commrs. v. Gates, 83 Oh. St. 19 37 Covington v. First Natl. Bank, 198 U. S. 100 483 Cramp & Sons v. Curtis Turbine Co., 246 U. S. 28 131 Creswill v. Knights of Pythias, 225 U. S. 246 24, 70 Crowe v. Aiken, 2 Biss. 208 254 Crozier v. Krupp, 224 U. S. 290 21 Cudahy Packing Co. v. Minnesota, 246 U. S. 450 167 Cuyahoga River Power Co. v. Northern Realty Co., 244 U. S. 300 532, 534, 535, 537, 538, 541, 543, 548 Danciger v. Cooley, 98 Kans. 38, 484 319, 321 David v. Youngken, 250 Fed. Rep. 208 545 Davidson v. New Orleans, 96 U. S. 97 506 Day v. United States, 245 U. S.159 136 Debs, In re, 158 U. S. 564 236 Del., Lack. & W. R. R. v. Yurkonis, 238 U. S. 439 540 Deming v. Carlisle Packing Co., 226 U. S. 102 532, 534, 542 Denver v. Denver Union Water Co., 246 U. S. 178 435, 436, 443-445 Denver & South Platte Ry. v. Englewood, 62 Colo. 229 294 Dermott v. Jones, 2 Wall. 1 136 Deschutes R. R. v. Eastern Oregon Land Co., 245 U. S. 672 534 Detroit v. Detroit Citizens’ . St. Ry., 184 U. S. 368 28 Detroit & Mackinac Ry. v. Michigan R. R. Comm., 235 U. S. 402 32 Detroit United Ry. v. Detroit, 229 U. S. 39 433, 438, 443, 445 page: Detroit United Ry. v. Michigan, 242 U. S. 238 437 Dillon v. Strathearn S. S. Co., 248 U. S. 182 180, 197, 213 Dinsmore v. Southern Express Co., 183 U. S. 115 21 District of Columbia v. Gannon, 130 U. S. 227 372 Dobbins v. Los Angeles, 195 U. S. 223 500 Dodge v. Osborn, 240 U. S. 118 266 Dodge Co. v. Construction Information Co., 183 Mass., 62 252 Donnell v. Herring-Hall-Marvin Safe Co., 208 U. S. 267 259 Dorsey v. Kyle, 30 Md. 512 21 Drummond v. Altemus, 60 Fed. Rep. 338 254 Duluth & Iron Range R. R. v. Roy, 173 U. S. 587 318 Dunlop v. United States, 165 U. S. 486 353 Dunshee v. Standard Oil Co., 152 Iowa, 618 258 Durland v. United States, 161 U. S. 306 353 Eastern Bldg. & Loan Assn. v. Ebaugh, 185 U. S. 114 536 Eastland v. Gould, 31 Minn. 189 285 Eckman’s Alterative v. United States, 239 U. S. 510 287 Elgin Natl. Watch Co. v. Illinois Watch Co., 179 U. S. 665 259 Eliza Lines, The, 199 U. S. 119 70 Elmendorf v. Taylor, 10 Wheat. 152 34 Elmer v. Fessenden, 151 Mass. 359 65 Embree v. Kansas City Road Dist., 240 U. S. 242 506 Empire State-Idaho Mining Co. v. Hanley, 205 U. S. 225 534-538, 541, 543 English v. Richardson, 224 U. S. 680 403 Enterprise Irrig. Dist. v. Farmers Mutual Canal Co., 243 U. 8.157 157 TABLE OF CASES CITED. XXXV PAGE Equitable Life Assurance Soc. v. Brown, 187 U. S. 308 531, 532, 534, 542, 544 Erie R. R. v. Stone, 244 U. S. 332 449 Erlanger & Galinger v. Swedish East Asiatic Co., 34 Phil. Rep. 178 522 Escanaba Co. v. Chicago, 107 U. S. 678 123 Exchange, The, 7 Cr. 116 203 Exchange Tel. Co. v. Central i News, Ltd. [1897], 2 Ch. 48 253 Exchange Tel. Co. v. Gregory & Co. [1896], 1Q. B. 147.252,253 Exchange Tel. Co. v. Howard, 22 T. L. Rep. 375 253 Fairbank v. United States, 181 U. S. 283 442 Farmers Union Warehouse Co. v. Mclntoch, 1 Ala. App. 407 285 Farrell v. O’Brien, 199 U. S. 89 536, 537, 541, 543 Farrington v. Tennessee, 95 U. S. 679 494 Farson, Son & Co. v. Bird, 197 Ala. 384 268, 271 Ferris v. Frohman, 223 U. S. 424 254 Filbert v. Philadelphia, 181 Pa. St. 530 136 Fisher v. Rule, 232 Fed. Rep. 861 315 Fisher v. Rule, 42 L. D. 62,64; 43 L. D. 217 316 Flagg Mfg. Co. v. Holway, 178 Mass. 83 257 Fletcher v. Peck, 6 Cr. 87 442 Fletcher Paper Co. ®. Detroit & Mackinac Ry., 198 Mich. 469 30, 31 Flexner v. Farson, 268 Ill. 435 289, 293 Flint -v. Stone Tracy Co., 220 U. S. 107 279 Fonotipia, Ltd., v. Bradley, 171 Fed. Rep. 951 258 Foote & Co. v. Maryland, 232 U.S. 494 162, 163 Franklin Co. Conservancy Dist. v. Valentine, 94 Oh. St. 440 37 PAGE Fritch, J. Homer, Inc., v. United States, 234 Fed. Rep. 608; 236 id. 133 459 Fullinwider v. Southern Pac. R. R., 229 Fed. Rep. 717 409 Gallup v. Schmidt, 183 U. S. 300 168 Galveston, H. & S. A. Ry. v. Texas, 210 U. S. 217 167 German Alliance Ins. Co. v. Lewis, 233 U. S. 389 375, 467 Gibbons v. Ogden, 9 Wheat. 1 423 Giertsen v. Turnbull & Co., 45 Scottish Law Rep. 916 150 Giles v. Harris, 189 U. S. 475 266 Glasgow, Ex parte, 223 U. S. 709 539 Glavey v. United States, 182 U. S. 595 152, 407 Gleason v. Wood, 224 U. S. 679 403 Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 423 Gonzales v. French, 164 U. S. 338 544, 545 Goodrich ®. Ferris, 214 U. S. 71 534-538, 541, 543 Gorham Mfg. Co. ®. Wein- traub, 196 Fed. Rep. 957 101 Gracie D. Chambers, The, 253 Fed. Rep. 182 387 Great Falls Mfg. Co. ®. Attor- ney General, 124 U. S. 581 343 Great Northern Ry. ®. Knapp, 240 U. S. 464 536, 538 Great Northern Ry. ®. Man- chester, Sheffield &c. Ry., 5 DeG. & Sm. 138 29 Great Western Mining Co. ®. Harris, 198 U. S. 561 77 Green ®. Menominee Tribe, 233 U. S. 558 358, 359 Green ®. Mills, 69 Fed. Rep. 852 266 Green ®. Weller, 32 Miss. 650 285 Greene ®. Louis. & Interurban R. R., 244 U. S. 499 456 Guerini Stone Co. ®. Carlin Constr. Co., 240 Ü. S. 264 336, 339, 346, 347, 348 Guerini Stone Co. ®. Carlin Constr. Co., 245 U. S. 643 337 Gulf, Colo. & Santa Fe Ry. ®. Dennis, 224 U. S. 503 21 XXXVI TABLE OF CASES CITED. PAGE Gulf Oil Corp. v. Lewellyn, 242 Fed. Rep. 709 71 Hagar v. Reclamation Dist., Ill U. S. 701 168 Hale v. Allinson, 188 U. S. 56 77 Hamblin v. Western Land Co., 147 U. S. 531 520 Hamilton v. Erie R. R., 169 App. Div. 936; 219 N. Y. 343 369 Hammer v. Dagenhart, 247 U. S. 251 425 Hanover Milling Co. v. Metcalf, 240 U. S. 403 97, 101, 103, 258 Hans v. Louisiana, 134 U. S. 1 34 Harman v. Chicago, 147 U. S. 396 123 Harris v. Bell, 250 Fed. Rep. 209 545 Harvey v. Richards, 1 Mason, 381 121 Haseltine v. Central Bank, 183 U. S. 130 549 Haskins v. Ryan, 71 N. J. Eq. 575 • 255 Hawkins v. Glenn, 131 U. S. 319 77 Hebe Co. v. Shaw, 248 U. S. 297 500 Heckman v. United States, 224 U. S. 413 518 Higgins v. Keuffel, 140 U. S. 428 254 Hijo v. United States, 194 U. S. 315 129 Hill v. United States, 149 U. S. 593 130 Hipolite Egg Co. v. United States, 220 U. S. 45 287, 425 Hirsch ®. Leatherbee Lumber Co., 69 N. J. L. 509 343 Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229 48, 236, 260 Hobart v. Drogan, 10 Pet. 108 524 Hoke v. United States, 227 U. S. 308 425 Höllerbach v. United States, 233 U. S. 165 136 Home Telephone Co. v. Los Angeles, 227 U. S. 278 456 PAGE Hooper v. California, 155 U. S. 648 468 Houck v. Little River Drainage Dist., 239 U. S. 254 37, 505 House v. Mayes, 219 U. S. 270 366, 368 Hovey v. Elliott, 167 U. S. 409 22 Howard v. Oil Companies, 247 U. S. 503 549 Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118 241, 259 Hubbard v. Soby, 146 U. S. 56 460 Hudson County Water Co. v. McCarter, 209 U. S. 349 375 Hudson Tunnel Co. v. Attorney General, 27 N. J. Eq. 573 333, 334 Hughes Land Co. v. Bailey, 30 Okla. 194 176 Hull v. Burr, 234 U. 8. 712 534, 540, 543 Hundley v. Hewitt, 195 Ala. 647 77 Hunt v. New York Cotton Exchange, 205 U. S. 322 251 Hunt v. Wamicke’s Heirs, 3 Ky. 61 99 Hutchings v. Railway Co., 84 Kans. 479 364 Hutchings, Sealy & Co. v. Missouri, Kans. & Tex. Ry., 98 Kans. 225 363, 364 Hutchinson Ice Cream Co. v. Iowa, 242 U. S. 153 302, 307 Illinois Cent. R. R. v. Illinois, 146 U. S. 387 123 Illinois Comm. Co. v. Cleveland Tel. Co., 119 Fed. Rep. 301 252 Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U. S. 522 549 Indiana v. Kentucky, 136 U. S. 479 114 International News Service v. Associated Press, 245 U. S. 644 232 International Paper Co. v. The Gracie D. Chambers, 248 U. S. 387 396 TABLE OF CASES CITED. xxxvii PAGE International Paper Co. Massachusetts, 246 U. S. 135 69 International Textbook Co. v. Pigg, 217 U. S. 91 424 Irvine v. The Hesper, 122 U. S. 256 21 Irvine v. Marshall, 20 How. 558 109, 111 James v. James, L. R. 13 Eq. 421 257 Jamestown & Northern R. R. v. Jones, 177 U. S. 125 53 Jersey City v. Speer, 78 N. J. L. 34; 79 N. J. L. 598 330 Jetton v. University of the South, 208 U. S. 489 527 Jewelers’ Mercantile Agency v. Jewelers’ Pub. Co., 155 N. Y. 241 256 J. Homer Fritch, Inc., v. United States, 234 Fed. Rep. 608; 236 id. 133 459 Johnson v. Riddle, 240 U. S. 467 318 Jones v. Montague, 194 U. S. 147 21 Joy v. St. Louis, 201 U. S. 332 534 Julia Luckenbach, The, 235 Fed. Rep. 388 140, 145 Kaiser Wilhelm II, The, 246 Fed. Rep. 786 23 Kalem Co. v. Harper Bros., 222 U. S. 55 255 Kansas v. Missouri Pac. Ry., 96 Kans. 609 276 Kansas City, Memphis &c. R. R. v. Stiles, 242 U. S. Ill 533 Kansas City So. Ry. v. Albers Comm. Co., 223 U. S. 573 24 Kansas Indians, 5 Wall. 737 404 Keatley v. Furey, 226 U. S. 399 77 Kellogg Bridge Co. v. Hamilton, 110 U.S. 108 138 Kelly v. Morris, L. R. 1 Eq. 697 244 Kendrick & Co. v. Lawrence & Co., L. R. 25 Q. B. D. 99 255 Kensington, The, 183 U. S. 263 201 PAGE Keystone Type Foundry v. Portland Pub. Co., 186 Fed. Rep. 690 257 Kiernan v. Manhattan Quot. Tel. Co., 50 How. Pr. 194 252 Kimball, The, 3 Wall. 37 149 Kirmeyer v. Kansas, 236 U. S. 568 327 Klinger v. Missouri, 13 Wall. 257 157 Knox v. Lee, 12 Wall. 457 376 Kofka v. Rosicky, 41 Nebr. 328 317 Kronprinzessin Cecilie, The, 244 U. S. 12 386 Lafayette Ins. Co. v. French, 18 How. 404 293 Larrowe-Loisette v. O’Lough- lin, 88 Fed. Rep. 896 256 Lathrop v. Commercial Bank, 8 Dana, 114 99 La Tourette v. McMaster, 104 S. Car. 501 465 Lau Ow Bew v. United States, 144 U. S. 47 460 Lawlor v. Loewe, 235 U. S. 522 65 Lay v. Lay, 118 Miss. 549 24 Leary v. Jersey City, 189 Fed. Rep. 419; 208 Fed. Rep. 854 329, 331 Lee v. Johnson, 116 U. S. 48 318 Leisy v. Hardin, 135 U. S. 100 428 Levy v. Walker, L. R. 10 Ch. D. 436 262 Lewellyn ®. Gulf Oil Corp., 245 Fed. Rep. 1 71 Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82 129 Lincoln, In re, 202 U. S. 178 539 Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 539 Llanelly Ry. & Dock Co. v. London & N. W. Ry., L. R. 8 Ch. 942 29 Long Dock Co. v. Board of Equalization of Taxes, 87 N. J. L. 22 333 Long Dock Co. v. State Board of Assessors, 89 N. J. L. 108; 90 N. J. L. 701 334 Looney v. Crane Co., 245 U. S. 178 69 xxxviii TABLE OF CASES CITED. PAGE Lottawanna, The, 21 Wall. 558 313 Lottery Case, 188 U. S. 321 424, 425 Louisiana v. Mayor of New Orleans, 109 U. S. 285 358 Louisiana Nav. Co. v. Oyster Conun. of Louisiana, 226 U. S. 99 549 Louisville v. Cumberland Tel. Co., 224 U. S. 649 29 Louis. & Nash. R. R. v. Cook Brewing Co., 223 U. S. 70 327 Louis. & Nash. R. R. v. Louisville, 166 U. S. 709 372 Louis. & Nash. R. R. v. Melton, 218 U. S. 36 536 Louis. & Nash. R. R. v. Mott-ley, 219 U. S. 467 376 Louis. & Nash. R. R. v. West- ern Union Tel. Co., 234 U. S. 369 531 Louis. & Nash. R. R. v. Western Union Tel. Co., 237 U. S. 300 532-534, 542 Louis. & Nash. R. R. v. Woodford, 234 U. S. 46 365 Luckenbach v. McCahan Sugar Co., 242 U. S. 638 145 Lyle v. Patterson, 228 U. S. 211 318 Lynch v. Hornby, 247 U. S. 339 72 Lynch v. Turrish, 247 U. S. 221 72 McCain v. Des Moines, 174 U. S. 168 543 McCulloch v. Maryland, 4 Wheat. 316 107, 482 McCune v. Essig, 199 U. S. 382 110 McDearmott Comm. Co. v. Board of Trade, 146 Fed. Rep. 961 252 McDermott v. Severe, 202 U. S. 600 348 McDermott v. Wisconsin, 228 U. S. 115 287, 288, 304 McDougal v. McKay, 237 U. S. 372 177 McGowan v. Columbia River Packers’ Assn., 245 U. S. 352 114 PAGE McGowan v. Parish, 237 U. S. 285 25 McIver & Co. v. Tate Steamers [1903], 1 K. B. 362 150 McLean v. Fleming, 96 U. S. 245 96, 97, 100, 102 McLean & Co. v. Denver & Rio Grande R. R., 203 U. S. 38 162 McLish v. Roff, 141 U. S. 661 460 McVeigh v. United States, 11 Wall. 259 21, 22 MacKnight Flintic Stone Co. v. The Mayor, 160 N. Y. 72 136 MacMath v. United States, 51 Ct. Clms. 356 151 Magee Furnace Co. v. LeBar-ron, 127 Mass. 115 259 Magoun v. Illinois Trust Co., 170 U. S. 283 539 Male v. Atchison, T. & S. F. Ry., 240 U. S. 97 531 Malone v. Cohn, 236 Fed. Rep. 882 451, 452 Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123 544, 545 Manigault v. Springs, 199 U. S. 473 375 Manufacturing Co. v. Trainer, 101 U. S.. 51 100 Marshall v. Dye, 231 U. S. 250 541 Maucher v. Chicago, R. I. & Pac. Ry., 100 Nebr. 237 359, 362 Memphis Street Ry. v. Moore, 243 U. S. 299 34 Menendez v. Holt, 128 U. S. 514 96, 102 Mercantile Bank v. New York, 121 U. S. 138 483 Messenger v. Kingsbury, 158 Cal. 611 544 Miami County ». Dayton, 92 Oh. St. 215 37 Miles Medical Co. v. Park & Sons Co., 220 U. S. 373 252 Mills v. Green, 159 U. S. 651 21 Milwaukee Elec. Ry. Co. v. R. R. Comm, of Wisconsin, 238 U. S. 174 296 Minneapolis &c. Ry. v. Doughty, 208 U. S. 251 53 TABLE OF CASES CITED. xxxix PAGE Minnesota v. Gould, 31 Minn. 189 285 Minnesota v. Northern Secur- ities Co., 184 U. S. 199 119 Minnesota Rate Cases, 230 U. S. 352 425, 427 Mirzan, Ex parte, 119 U. S. 584 539 Missouri & Kans. Interurban Ry. v. Olathe, 222 U. S. 185 549 Montgomery Bank & Trust Co. v. Walker, 181 Ala. 368 77 Morison v. Moat, 9 Hare, 241 236, 260 Morris v. Ashbee, L. R. 7 Eq. 34 244, 257 Morris v. Wright, L. R. 5 Ch. App. 279 244, 257 Morris Canal & Banking Co. v. Baird, 239 U. S. 126 527 Mugler v. Kansas, 123 U. S. 623 499 Mullins v. Mt. St. Mary’s Cemetery, 239 Mo. 681; 259 Mo. 142 502 Mullins v. Mt. St. Mary’s Cemetery, 268 Mo. 691 501, 503 Municipal Securities Corp. v. Kansas City, 246 U. S. 63 537, 547 Munn v. Illinois, 94 U. S. 113 375 Murdock Grate Co. v. Commonwealth, 152 Mass. 28 358 Muskogee County v. Fink, 59 Okla. — 399 Mutual Reserve Life Assn. v. Phelps, 190 U. S. 147 293 Myles Salt Co. v. Iberia Drainage Dist., 239 U. S. 478 505 Nampa & Meridian Irrig. Dist. v. Petrie, 28 Idaho, 227 155 National Bank v. Commonwealth, 9 Wall. 353 494 National Bank v. County of Yankton, 101 U. S. 129 87 National Council, United American Mechanics, v. State Council of Virginia, 203 U. S. 151 64 National Exchange Bank v. Peters, 144 U. S. 570 460 PAGE National Tel. News Co. v. Western Union Tel. Co., 119 Fed. Rep. 294 237,252,254 Neilsen v. Oregon, 212 U. S. 315 114 Nevada v. Wells, Fargo & Co., 38 Nev. 505 165, 166 New Jersey v. Wilson, 7 Cr. 164 404 New Orleans v. Citizens’ Bank, 167 U. S. 371 495 New Orleans Pac. Ry. Grant, 5 L. D. 688; 15 L. D. 575 517 New York & Chicago Exchange v. Board of Trade, 127 Ill. 153 267 New York Life Ins. Co. v. Dunlevy, 241 U. S. 518 293 Nicol v. Ames, 173 U. S. 509 442 Nicols v. Pitman, L. R. 26 Ch. D. 374 254 Nicoulin v. O’Brien, 172 Ky. 473 113, 114 Nider v. Commonwealth, 140 Ky. 684 99 Northern Pac. Ry. v. North Dakota, 236 U. S. 585 24, 164 Northern Pac. Ry. v. Townsend, 190 U. S. 267 110 Northern Securities Co. v. United States, 193 U. S. 197 62 Norton v. Whiteside, 239 U. S. 144 543 Oates v. Smith, 176 Ala. 39 77 Ocean Front Imp. Co. v. Ocean City Co., 103 Atl. Rep. 419 333, 334 Ogden v. Saunders, 12 Wheat. 213 442 Ogden v. United States, 148 U. S. 390 461, 462 Old Colony Trust Co. v. Omaha, 230 U. S. 100 34 Omaha Baum Iron Store Co. v. Moline Plow Co., 244 U. S. 650 531 Orr v. Allen, 245 Fed. Rep. 486 35 Osborn v. United States Bank, 9 Wheat. 738 482 Overby v. Gordon, 177 U. S. 214 121 xl TABLE OF CASES CITED. PAGE Owensboro v. Cumberland Tel. Co., 230 U. S. 58 28 Owensboro Natl. Bank v. Owensboro, 173 U. S. 664 483, 488, 495 Palmer ®. State, 96 Oh. St. 513 33 Paper Bag Patent Case, 210 U. S. 405 98 Park v. Duncan & Sons, 35 Scottish Law Rep. 378 150 Park & Sons Co. v. Hartman, 153 Fed. Rep. 24 252 Patapsco Guano Co. v. North Carolina Bd. of Agriculture, 171 U. S. 345 162 Patterson v. Bark Eudora, 190 U. S. 169 194, 195, 198, 202, 204 Patterson v. Kentucky, 97 U. S. 501 162, 499 Pendleton v. Benner Line, 246 U. S. 353 149, 151 Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U. S. 93 293, 536 Pennsylvania R. R. v. Burr, 130 Fed. Rep. 847 148 Pennsylvania R. R. v. Hughes, 191 U. S. 477 362, 365 Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1 532, 542 People v. Banning Co., 166 Cal. 635 544 People v. California Fish Co., 166 Cal. 576 544 People v. Commissioners, 4 Wall. 244 494 People v. Watters, 192 Mich. 462 65, 66 People v. Weaver, 100 U. S. 539 483 People’s Natl. Bank v. Marye, 191 U. S. 272 497 People’s Natl. Bank v. Marye, 107 Fed. Rep. 570 496 Perris v. Hexamer, 99 U. S. 674 255 Phillips Constr. Co. v. Seymour, 91 U. S. 646 345 Phoenix Bridge Co. v. United States, 211 U. S. 188 136 PAGE Phoenix Ins. Co. v. Erie & Western Transp. Co., 117 U. S. 312 146 Pierce Oil Corp. v. Hope, 127 Ark. 38 498, 499, 500 Pike v. Nicholas, L. R. 5 Ch. App. 251 244, 255, 257 Pioneer Irrig. Dist. v. Walker, 20 Idaho, 605 155 Pipe Line Cases, 234 U. S. 548 424 Pittsburgh Melting Co. v. Balt. & Ohio R. R., 229 Fed. Rep. 214 4, 7 Pittsburg & Southern Coal Co. v. Louisiana, 156 U. S. 590 368 Plymouth Coal Co. ®. Pennsylvania, 232 U. S. 531 440 Polhemus v. Bateman, 60 N. J. L. 163 333 Pollard v. Hagan, 3 How. 212 109 Portland Gold Min. Co. v. Stratton’s Independence, 158 Fed. Rep. 63 62 Post v. Jones, 19 How. 150 524 Postal Tel.-Cable Co. v. Tay- lor, 192 U. S. 64 162 Postal Tel.-Cable Co. v. Ton- opah &c. R. R., 176 App. Div. 910 471 Potomac, The, 105 U. S. 630 147 Prentis v. Atlantic Coast Line, 211 U. S. 210 500 Prest-O-Lite Co. v. Auto Acetylene Light Co., 191 Fed. Rep. 90 259 Prest-O-Lite Co. v. Avery Lighting Co., 161 Fed. Rep. 648 259 Prest-O-Lite Co. v. Davis, 209 Fed. Rep. 917; 215 Fed. Rep. 349 258 Prest-O-Lite Co. v. H. W. Bogen, Inc., 209 Fed. Rep. 915 258 Price v. Illinois, 238 U. S. 446 303 Prudential Assurance Co. v. Knott, L. R. 10 Ch. App. 142 266 Public Service Comm. v. Union Pac. R. R., 271 Mo. 258 70 TABLE OF CASES CITED. xli PAGE Purity Extract Co. v. Lynch, 226 U. S. 192 303, 500 Putnam Investment Co. v. King, 82 Kans. 216; 87 Kans. 842 ; 96 Kans. 109 23 Quinn v. Lowell Elec. Lt. Corp., 140 Mass. 106 204 Rachel, The Schooner, v. United States, 6 Cr. 329 21 Racine Paper Goods Co. v. Dittgen, 171 Fed. Rep. 631 258 Rail & River Coal Co. v. Ohio Industrial Comm., 236 U. S. 338 376 Railroad Co. v. Tennessee, 101 U. S. 337 34 Railroad-Telegraph Contracts, Matter of, 12 I. C. C. 10 475 Railway Co. v. Hutchings, 78 Kans. 758 364 Rainey v. United States, 232 U. S. 310 279 Rast v. Van Deman & Lewis Co., 240 U. S. 342 113, 288, 304, 468 Raudabaugh v. State, 96 Oh. St. 513 33 Ray v. Sweeney, 14 Bush, 1 99 Rectanus Co. v. United Drug Co., 226 Fed. Rep. 545 90, 93 Red ”C.” Oil Co. v. Board of Agriculture, North Carolina, 222 U. S. 380 162 Regis v. Jaynes, 185 Mass. 458 94 Reid v. American Express Co., 241 U. S. 544 21 Reid v. United States, 211 U. S. 529 461, 462, 463, 464 Reinman v. Little Rock, 237 ' U. S. 171 501 Relfe v. Rundle, 103 U. S. 222 77 Rhine, The, 244 Fed. Rep. 833 212 Rhodes v. Iowa, 170 U. S. 412 323, 327 Richter v. Anchor Remedy Co., 52 Fed. Rep. 455 100 Richter v. Reynolds, 59 Fed. Rep. 577 101 Ricker v. Railway, 90 Me. 395 259 PAGE Riggins v. United States, 199 U. S. 547 539 Robinson & Co. v. Continental Ins. Co. [1915], 1 K. B. 155 23 Rochester Ry. v. Rochester, 205 U. S. 236 527 Rosenberger v. Pacific Express Co., 241 U. S. 48 327 Ruckman v. Cory, 129 U. S. 387 519 Ruddy v. Rossi, 28 Idaho, 376 104, 106 Ryder v. Holt, 128 U. S. 525 99 St. Anthony Church v. Pennsylvania R. R., 237 U. S. 575 540 St. Louis ®. Rutz, 138 U. S. 226 129 St. Louis, I. Mt. & So. Ry. v. Hesterly, 228 U. S. 702 427 St. Louis, I. Mt. & So. Ry. v. Starbird, 243 U. S. 592 449 St. Louis, San Francisco & Tex. Ry. v. Seale, 229 U. S. 156 427 St. Louis S. W. Ry. v. Arkansas, 235 U. S. 350 443, 533 Sandberg v. McDonald, 248 U. S. 185 212, 213 Santa Fe, Prescott & Phoenix Ry. v. Grant Bros. Constr. Co., 228 U. S. 177 362, 474 Savage v. Jones, 225 U. S. 501 162, 302, 304 Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19 96, 102, 103 Saxlehner v. Siegel-Cooper Co., 179 U. S. 42 96, 102, 103 Saxlehner v. Wagner, 216 U. S. 375 259 Sawyer, In re, 124 U. S. 200 236 Schillinger ®. United States, 155 U. S. 163 131 Schlosser v. Hemphill, 198 U. S.173 549 Schmitt v. Shadrach, 248 U. S. 538 545 Schonwald v. Ragains, 32 Okla. 223 258 Seaboard Air Line Ry. v. Horton, 233 U. S. 492 427 xlii TABLE OF CASES CITED. PAGE Seaboard Air Line Ry. v. North Carolina, 245 U. S. 298 546 Seaboard Air Line Ry. v. Padgett, 236 U. S. 668 536, 538 Searchlight Gas Co. v. Prest-O-Lite Co., 215 Fed. Rep. 692 258 Seven Cases, Eckman’s Alterative, v. United States, 239 U. S. 510 287 Shapiro v. United States, 235 U. S. 412 531 Shively v. Bowlby, 152 U. S. 1 87, 109 Simpson v. United States, 172 U. S. 372 136 Sinking-Fund Cases, 99 U. S. 700 442 Slaughter-House Cases, 16 Wall. 36 469 Sligh v. Kirkwood, 237 U. S. 52 304 Smelting Co. v. Kemp, 104 U. S. 636 318 Smith v. Jennings, 67 S. C. 324 285 Snyder v. Deeds, 91 Oh. St. 407 37 Snyder v. Marks, 109 U. S. 189 266 South v. Maryland, 18 How. 396 358 South Carolina v. Seymour, 153 U. S. 353 372 Southern Pac. Co. v. Jensen, 244 U. S. 205 313, 458 Southern Pac. Co. v. Lowe, 247 U. S. 330 73 Southern Pae. Co. v. Schuyler, 227 U. S. 601 363 Southern Pac. Co. v. Stewart, 245 U. S. 359; id. 562 449 Southern Pac. Co. v. Stewart, 233 Fed. Rep. 956 447, 449 Southern Pae. R. R. v. Bell, 183 U. S. 675 512 Southern Ry. v. King, 217 U. S. 524 500 Southern Ry. v. Puckett, 244 U. S. 571 536, 538 Southworth v. Palmyra & Jack-son R. R., 2 Mich. 287 285 PAGE Sparks v. Pierce, 115 U. S. 408 318 Spearin v. United States, 51 Ct. Clms. 155 133 Spencer v. McDougal, 159 U. S. 62 520 Spencer v. Merchant, 125 U. S. 345 505 Sperry & Hutchinson Co. v. Pommer, 199 Fed. Rep. 309 258 Sports & General Press Agency v. Our Dogs Pub. Co. [1916], 2 K. B. 880 255 Stadelman v. Miner, 246 U. S. 544 372 Stalker v. Oregon Short Line R. R., 225 U. S. 142 53 State v. McBride, 4 Mo. 303 285 State v. Merchants Exchange, 269 Mo. 346 365, 367 State ex rel. Brewster v. Mohler, 98 Kans. 465 112 State v. Pure Oil Co., 134 Minn. 101 159 State ex rel. Franklin Co. Conservancy Dist. v. Valentine, 94 Oh. St. 440 37 State of Maine, The, 22 Fed. Rep. 734 194 Stearns v. Minnesota, 179 U. S. 223 534 Sterrett v. Second Natl. Bank, 246 Fed. Rep. 753 73, 74 Stevenson v. Fain, 195 U. S. 165 540 Stewart v. Kansas City, 239 U. S. 14 534, 535, 538, 541 Strathearn, The, 239 Fed. Rep. 583 183 Stratton’s Independence v. Howbert, 231 U. S. 399 185 Sundstrom v. New York, 213 N. Y. 68 136 Swafford v. Templeton, 185 U. S. 487 266 Tabor v. Hoffman, 118 N. Y. 30 257 Talley v. Burgess, 246 U. S. 104 545 Talus, The, 242 Fed. Rep. 954; 248 Fed. Rep. 670 186, 192 Tate v. Fullbrook [1908], 1 K. B. 821 255 TABLE OF CASES CITED. xliii PAGE Taylor v. Anderson, 234 U. S. 74 534 Taylor v. Taft, 203 U. S. 461 372 Tennessee v. Whitworth, 117 U. S.129 494 Texas & N. O. R. R. v. Mil- ler, 221 U. S. 408 501, 536 Thames & Mersey Ins. Co. v. United States, 237 U. S. 19 463 Thompson v. United States, 246 U. S. 547 358 Thompson Co. v. American Law Book Co., 122 Fed. Rep. 922 245, 257 Tiger v. Western Investment Co., 221 U. S. 286 405 Tompkins v. Halleck, 133 Mass. 32 254 Tornado, The, 108 U. S. 342 386 Totten v. Pittsburgh Melting Co., 232 Fed. Rep. 694 1, 4, 7 Trade-Mark Cases, 100 U. S. 82 98 Transportation Co. v. Chicago, 99 U. S. 635 123 Tregea v. Modesto Irrig. Dist., 164 U. S. 179 157 Tribune Co. v. Associated Press, 116 Fed. Rep. 126 260 Truax v. Raich, 239 U. S. 33 236, 456 Turner v. Robinson, 10 Ir. Eq. Rep. 121 254 Turner v. United States, 51 Ct. Clms. 125 354, 357 Tuttle v. Buck, 107 Minn. 145 258 Tweedie Trading Co. v. United States, 245 U. S. 645 463 Union Dry Goods Co. v. Georgia P. S. Comm., 145 Ga. 658 372 Union Fish Co. v. Erickson, 235 Fed. Rep. 385 308, 312 Union Pac. R. R. v. Pub. Service Comm., 268 Mo. 641 67, 69 United Drug Co. v. Rectanus Co., 206 Fed. Rep. 570 93 United States v. American Bell Tel. Co., 128 U. S. 315 518 United States v. Andrews, 240 U. S. 90 152, 407 PAGE United States v. Beebe, 127 U. S. 338 518, 519 United States v. Behan, 110 U. S. 338 139, 342, 343, 348 United States v. Bell Tel. Co., 167 U. S. 224 98 United States v. Bliss Co., 224 Fed. Rep. 325; 229 Fed. Rep. 376 37 United States v. Buffalo Pitts Co., 234 U. S. 228 463 United States v. Chandler-Dunbar Co., 229 U. S. 53 129 United States v. Chavez, 228 U. S. 525 201, 424 United States v. Cress, 243 U. S. 316 128, 131, 463, 464 United States v. Davis, 131 U. S. 36 460, 464 United States v. Del. & Hudson Co., 213 U. S. 366 111 United States v. DuPont de Nemours & Co., 188 Fed. Rep. 127 63 United States v. Emery, Bird, Thayer Co., 237 U. S. 28 463 United States v. Freeman, 239 U. S. 117 196, 201 United States v. Garlinger, 169 U. S. 316 153 United States v. Gratiot, 14 Pet. 526 106 United States v. Hamburg-Amerikanische &c. Gesellschaft, 239 U. S. 466 21 United States v. Hvoslef, 237 U. S. 1 463 United States ®. Kagama, 118 U. S. 375 88 United States v. Kelly, 243 U. S. 316 463 United States v. Lynah, 188 U. S. 445 128, 129, 131 United States v. Lynch, 137 U. S. 280 372 United States v. Mescall, 215 U. S. 26 326 United States v. Mille Lac Chippewas, 229 U. S. 498 358 United States v. New Orleans Pac. Ry., 235 Fed. Rep. 841; id. 846 508, 511 xliv TABLE OF CASES CITED. PAGE United States v. Nixon, 235 U. S. 231 352 United States v. Patten, 226 U. S. 525 352 United States v. The Schooner Peggy, 1 Cr. 103 21 United States v. Rickert, 188 U. S. 432 88, 404 United States v. San Jacinto Tin Co., 125 U. S. 273 518 United States v. Simms, 1 Cr. 252 204 United States v. -Taft, 203 U. S. 461 372 United States v. U. S. Fidel- ity Co., 236 U. S. 512 348, 349 United States v. Utah Stage Co., 199 U. S. 414 136 United States v. Wildcat, 244 U. S. Ill 174 United States v. Winans, 198 U. S. 371 88 Universal Film Co. v. Copper-man, 218 Fed. Rep. 577 254 Van Allen v. The Assessors, 3 Wall. 573 492, 493 Vance v. Vandercook Co., 170 U. S. 438 327 Van Dyke v. Arizona Eastern R. R., 18 Ariz. 220 49 Virginian Ry. v. Andrews’ Admx., 118 Va. 482 273 Wadsworth v. Crump, 154 Pac. Rep. 60; 53 Okla. 728 169, 172, 173, 176 Wager v. Providence Ins. Co., 150 U. S. 99 146 Wagner v. Baltimore, 239 U. S. 207 505 Wagner v. Conried, 125 Fed. Rep. 798 256 Walter Baker & Co. v. Dela-penha, 160 Fed. Rep. 746 101 Ward v. Racehorse, 163 U. S. 504 109 Warder v. Cotton, 207 U. S. 582 420 Warder v. Loomis, 197 U. S. 619 420 Washington v. Miller, 235 U. S. 422 177 Washington v. Northern Securities Co., 185 U. S. 254 119 PAGE Waterman Co. v. Modern Pen Co., 235 U. S. 88 259 Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159 162 Watts v. Camors, 115 U. S. 353 313 Watts, Watts & Co., Ex parte. 241 U. S. 655 21 Watts, Watts & Co. v. Unione Austriaca &c., 241 U. S. 677 21 Watts, Watts & Co. v. Unione Austriaca &c., 224 Fed. Rep. 188; 229 id. 136 9, 20 Wedding v. Meyler, 192 U. S. 573 114 Weigle v. Curtice Bros. Co., 248 U. S. 285 304 Werckmeister v. American Lithographic Co., 134 Fed. Rep. 321 254 West Chicago St. R. R. v. Chicago, 201 U. S. 506 123,129 West Pub. Co. v. Thompson Co., 176 Fed. Rep. 833 245, 257 Western Union Tel. Co. v. Andrews, 216 U. S. 165 456 Western Union Tel. Co. v. Ann Arbor R. R., 178 U. S. 239 532, 542, 543 Western Union Tel. Co. v. Louis. & Nash. R. R., 244 U. S. 649 533, 542 Western Union Tel. Co. v. Louis. & Nash. R. R., 248 U. S. 532 535, 542 Western Union Tel. Co. v. New Hope, 187 U. S. 419 163 Western Union Tel. Co. v. Pennsylvania R. R., 195 U. S. 540 533, 542 Western Union Tel. Co. v. Richmond, 224 U. S. 160 533, 542 Weston v. Charleston, 2 Pet. 449 482 Wheeler v. New York, 233 U. S. 434 120 Whipple v. Mississippi & Yazoo Packet Co., 34 Fed. Rep. 54 150 White-Smith Music Co. v. Apollo Co., 209 U. S. 1 255 TABLE OF CASES CITED. xlv PAGE Wilcox v. Jackson, 13 Pet. 498 110 Wildcroft, The, 201 U. 8. 378 145 Wilkins v. Ellett, 108 U. 8. 256 121 William H. Hoag, The, 168 U. S. 443 312 Williams v. Johnson, 239 U. 8. 414 405 Willink v. United States, 240 U. 8. 572 129 Windrush, The, 250 Fed. Rep. 180 205, 212 Windsor v. McVeigh, 93 U. S. 274 22 Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526 168 PAGE Withers v. Buckley, 20 How. 84 109 Witkop & Holmes Co. v. Great Atlantic & Pacific Tea Co., 124 N. Y. Supp. 956 258 Wood v. Beach, 156 U. S. 548 520 Workman v. New York City, 179 U. S. 552 313 Wright v. Central of Georgia Ry., 236 U. S. 674 526 Wright v. Central of Georgia Ry., 146 Ga. 406 526 Wright v. Morgan, 191 U. S. 55 106, 110 Yeaton v. United States, 5 * Cr. 281 21 Young, Ex parte, 209 U. S. 123 456 TABLE OF STATUTES CITED IN OPINIONS. (A.) Statutes of the United States. page 1790, May 31, c. 15, 1 Stat. 124 ..................... 234 1802, April 29, c. 36, 2 Stat. 171.......................234 1834, June 28, c. 126, 4 Stat. 708 ..................... 330 1862, May 20, c. 75, 12 Stat. 392.............105, 111 §4..................... 105 1864, June 3, c. 106, 13 Stat. 99, §41............482, 492 1866, July 26, c. 269,14 Stat. 289, §3.................. 152 1866, July 27, c. 278,14 Stat. 292 ..................... 410 1868, Feb. 10, c. 7,15 Stat. 34 482 1871, March 3, c. 122, 16 Stat. 573.......410, 510 §9......................411 §23.................... 410 1875, March 3, c. 152, 18 Stat. 482 ................ 50 1878, June 3, c. 151, 20 Stat. 89..................... 351 1881, March 3, c. 138, 21 Stat. 502 ................ 94 1884, June 26, c. 121,23 Stat. 53..............149, 193 §10.................... 199 §18.................... 149 1886, June 19, c. 421,24 Stat. 79 199 1887, Feb. 4, c. 104, 24 Stat. 379 (See Interstate Commerce Acts) 1887, Feb. 8, c. 120, 24 Stat. 391................. 514 .§§ 1, 2, 3, 4, 5, 6..■. 514 1887, March 3, c. 359,24 Stat. 505 (Tucker Act) 127, 460 §§4,9...................464 PAGE 1890, July 2, c. 647, 26 Stat. 209 (Sherman Act)... 60 §§1,2.................. 61 §7..................... 60 1890, Aug. 8, c. 728, 26 Stat. 313 (Wilson Act).....323, 423 1891, March 3, c. 517, 26 Stat. 826 (See Judiciary Act) 1891, March 3, c. 561,26 Stat. 1095, §15................ 86 1894, July 31, c. 174,28 Stat. 162, §2.................. 154 1896, March 2, c. 39, 29 Stat. 42...................... 518 1896, June 3, c. 314, 29 Stat. 202..................... 124 1897, June 4, c. 2, 30 Stat. 11 124 1898, June 28, c. 517,30 Stat. 495, §21.............177, 403 1898, July 1, c. 541, 30 Stat. 544 (See Bankruptcy Act) 1898, July 1, c. 546, 30 Stat. 597..................... 125 1898, Dec. 21, c. 28, 30 Stat. 755, §24................ 199 1899, March 3, c. 425, 30 Stat. 1121................ 124 1899, March 3, c. 427,30 Stat. 1233 .................... 53 1900, June 2, c. 610, 31 Stat. 250 171 1900, June 6, c. 791, 31 Stat. 588..................... 125 1901, March 1, c. 676,31 Stat. 861.........177, 356, 401 §§3,28.................177 §46 .................. 356 1902, June 13, c. 1079, 32 Stat. 331............... 125 (xlvii) xlviii TABLE OF STATUTES CITED. PAGE 1902, June 30, c. 1323,32 Stat. 500..............175, 401 §§7,8,9............... 177 §16.................... 401 1902, July 1, c. 1362,32 Stat. 641.................... 403 1905, Feb. 20, c. 592,33 Stat. 724................... 99 §12.................... 100 1906, June 11, c. 3074, 34 Stat. 233 ................ 51 1906, June 16, c. 3335, 34 Stat. 267................ 401 1906, June 29, c. 3591, 34 Stat. 584 (See Interstate Commerce Acts) §7.................362, 365 1906, June 30, c. 3913, 34 Stat. 674.................. 4 1906, June 30, c. 3915, 34 Stat. 768 (Food & Drugs Act).................286, 304 1907, March 2, c. 2509, 34 Stat. 1073............... 125 1907, March 2, c. 2564, 34 Stat. 1246 (See Criminal Appeals Act) 1907, March 4, c. 2907, 34 Stat. 1260 ................ 4 1908, April 22, c. 149,35 Stat. 65 (See Employers’ Liability Act) 1908, May 27, c. 199,35 Stat. 312...................... 402 1908, May 28, c. 213,35 Stat. 429...................... 125 1908, May 29, c. 216,35 Stat. 444, §26................. 356 1909, March 4, c. 314,35 Stat. 1065 ................ 406 §2......................406 §8..................:.. 407 1909, March 4, c. 320, 35 Stat. 1075.......234, 265 §§4,5...................234 §25.................... 266 1909, March 4, c. 321, 35 Stat. 1088 (See Criminal Code) 1910, June 18, c. 309,36 Stat. 539 (See Interstate Commerce Acts) §7.........:........... 474 PAGE 1911, Feb. 17, c. 103,36 Stat. 913......................273 1911, March 3, c. 210, 36 Stat. 1058, § 17.........357 1911, March 3, c. 231, 36 Stat. 1087 (See Judicial Code) 1913, March 1, c. 90,37 Stat. 699 (Webb-Kenyon Act) 278, 322, 423, 428, 546 1913, Oct. 3, c. 16, 38 Stat. 114, § II (Income Tax Act)................. 71 Par. G(c)...'.......... 73 Par. 8................ 73 1914, July 13, Proclamation, 38 Stat. 1785............. 265 1914, Oct. 15, c. 323, 38 Stat. 730, § 5 (Clayton Act).... 63 1915, Jan. 28, c. 22, 38 Stat. 803.... 93, 336, 538, 545 §2 93 §3 336 §4.................538, 545 §6 336 1915, March 4, c. 153, 38 Stat. 1164. .183, 190, 197, 212, 213 §4.................183, 197 §...............11...........192, 197, 212 1916, Aug. 11, c. 313,39 Stat. 482 ................ 368 Pt. B, §7..............368 Pt. C, §29............ 368 1916, Sept. 6, c. 448, 39 Stat. 726.. 166, 173, 274, 321,370,458,533,535, 540,541,546,547,548, 550, 551 §7.................... 173 1917, March 3, c. 162, 39 Stat. 1058, § 5......422, 428 1917, Oct. 6, c. 97, 40 Stat. 395..................... 458 1917, Oct. 6, c. 106, 40 Stat. 411, § 3(c).............. 22 Constitution. See Index at end of volume. Revised Statutes. §2296..............105, .108 §2621................. 152 §2634................. 152 §3224 ................ 266 TABLE OF STATUTES CITED. xlix PAGE Revised Statutes—(cont.) §3477..................... 25 §3744............... 137 §4283............... 149 §4530............183, 200 §5154 .............. 487 §5219............482, 488 Bankruptcy Act............451 Compiled Statutes, 1916. vol. 7, §8323............ 193 vol. 12, Index, “Masters of Vessels”......... 314 Criminal Appeals Act. .350, 421, 528 Criminal Code.........321, 350 §215................ 350 §§238-240 .......... 325 § 239............... 321 Employers’ Liability Act.... 273 PAGE Interstate Commerce Acts 32, 362, 365, 474 §1 474 §20................362, 365 Judicial Code.....93, 336, 463 § 24 (20) 127 § 128. .93, 532, 534, 540, 542 §237. .173,362,364,370, 533,535,540,541,546, 547, 548, 550, 551 §239..........178, 181, 184 §241.................. 549 §244 ................. 336 §266................36, 456 §294 463 §295 463 Judiciary Act, 1891....... 460 National Bank Act. 480,482, 492 §41 ......482, 492 (B.) Statutes of the States and Territories. Alabama. Constitution........... 268 Code, 1907, §§ 3509, 3511 75 §§ 3512, 3560 76 California. Constitution............487 Civil Code, § 1624 .... 312 Georgia. Constitution............527 Constitution, Art. 7, § 16 29 1879, Laws, No. 234... 27 1916, Laws, No. 539... 28 Code, 1910, § 2498 ..... 452 Idaho. Rev. Codes, §§ 2397,2398, 2401.............. 156' §2400................. 158 Illinois. 1897, Laws, p. 308..... 124 Kansas. 1915, Laws, c. 371..... 112 Kentucky. Stats., § 2572c, (7).... 99 §§4749-4755.... 99 Civil Code, § 51 (6).... 289 Massachusetts. 1895, Acts, p. 519, c. 462, §1.................... 94 Minnesota. 1909, Laws, c. 502..... 160 Gen. Stats., 1913, §§3622, 3625, 3626, 3627.................. 160 §§ 2271, 2281, 7205.. 120 §7278................ 121 Missouri. Constitution............502 1913, Laws, p. 354, § 63 366 1915, Laws, p. 302..... 366 Nebraska. Rev. Stats., 1913, § 1615 317 Nevada. Rev. Laws, 1912, §§ 3621, 3622, 3624, 3797-3801,3807.......... 166 §§3659-3665,3664... 168 New Jersey. Constitution............329 1856, P. L., p. 67 .... 334 1864, P. L., p. 681.... 330 1869, P. L., p. 1017.... 329 1886, P. L., p. 149 ... 330 1911, P. L., c. 95 .... 458 New York. Constitution, 1777..... 281 1901, Laws, c. 436 .... 229 1 TABLE OF STATUTES CITED. PAGE Ohio. Constitution........... 36 Constitution, Art. I, § 16 (Arndt. 1912)...... 33 Laws, vol. 104, p. 13... 35 Gen. Code, § 5778..... 302 §§ 6828-1 to 6828- 79............ 35 § 12720.....303, 306 § 12725.....302, 305 Oklahoma. Constitution .............401 PAGE South Carolina. Constitution............466 1916, Act Mar. 2.......466 §§ 1,2............... 466 §3....................468 Texas. Constitution............454 1911, Act Aug. 30, c. 6.. 454 Virginia. 13 Hennings Stats, at Large, c. 14, p. 17, § 11 114 Wisconsin. Stats., 1913, § 4601g... 286 (C.) Treaties. American Republics. Copyright Convention, Aug. 11, 1910, 38 Stat. 1785........ 265 Art. 11...............265 Indian. Creek Nation, June 14, 1866, 14 Stat. 785, Art. X.................355 Russia. 1832, 8 Stat. 444, Art. VIII...................370 (D.) Foreign Laws. Great Britain. 1911, Act Dec. 16, 1 & 2 Geo. V, c. 46.......*..............*.. 266 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1918. PITTSBURGH MELTING COMPANY v. TOTTEN, INSPECTOR OF THE BUREAU OF ANIMAL INDUSTRY OF THE DEPARTMENT OF AGRICULTURE. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 28. Argued April 22, 1918.—Decided November 4, 1918. Oleo oil, a substance made from the fat of slaughtered beeves, seldom used by itself as food, but employed largely in making oleomargarine and somewhat in cooking, is a “meat food product,” within the Meat Inspection Act of 1906-1907, when manufactured fit for human consumption and not “denatured,” and is debarred from interstate and foreign commerce unless first inspected and passed as by that act provided. P. 7. So held, where the shipper labeled the product “inedible,” asserting it was not intended for food purposes, but retained no control of the use and declined to certify, as required by regulations of the Secretary of Agriculture, that it was suitable for industrial purposes only, and incapable of being used as food by man. 232 Fed. Rep. 694, affirmed. The case is stated in the opinion. (1) 2 OCTOBER TERM, 1918. Argument for Appellant. 248 U. S. Mr. Samuel McClay, with whom Mr. William M. Robinson and Mr. Allen H. Kerr were on the brief, for appellant: The act is directed against meat-food products which are unfit for human food, and applies only to establishments whose products are for human consumption, not to those that prepare and sell exclusively oils intended for industrial purposes. This view harmonizes with the purpose of the act as expressed in its title and with the construction by the Department of Agriculture in the regulations of April 1, 1908, which, with the approval of the Attorney General’s opinion (28 Ops. Atty. Gen. 369, 377), restricted meatfood products to those intended for human use and limited the scope of the act, and jurisdiction under it, accordingly. The regulations of November 1, 1914, extending the definition to products “ capable of being used as food by man,” and requiring appellant to certify that its products were not capable of being so used, are unreasonable, and exceed the intent of the act and the power of the Secretary of Agriculture under it. The words “meat” and “meat food products” cannot be separated from the purpose for which the products are to be used. Commonwealth v. Schollenberger, 153 Pa. St. 625. The Secretary cannot by his regulations alter, amend, extend or modify the act of Congress. Morrill v. Jones, 106 U. S. 466; United States v. 11,150 lbs. of Butter, 195 Fed. Rep. 657, 663; St. Louis Independent Packing Co. v. Houston, 215 Fed. Rep. 553, 559, 561. The act does not give him power over inedible grease intended solely for industrial purposes. There was no evidence that appellant was guilty of an attempted evasion. The Secretary may adopt such regulations not inconsistent with law as are necessary to carry out the purposes of the act, but the act confers no power whatever to determine what shall constitute a “meat” or a “meat food product.” The meaning of those words, as used, is clear. PITTSBURGH MELTING CO. v. TOTTEN. 3 1. Argument for Appellee. Congress cannot delegate legislative authority to an executive officer, and did not intend to do so. If the meaning of the words, as used in the act, is doubtful, the construction which the Secretary placed upon them for a period of more than six years should have great if not controlling weight. Appellant’s product was tallow oil and not oleo oil. Appellant rendered its oils from fats purchased from retail butchers and dealers (not subject to the act—§ 21), and from inspected wholesalers, and it had the right to ship them if they were not unhealthful or unwholesome, and even then, if they were intended for industrial and not for food purposes. The Secretary may impose inspection either on the retail dealer or butcher, but, until he elects to do so, neither the retail butcher or dealer nor his product are within the act. He could not require appellant to buy its fats from official establishments rather than retail butchers or dealers. The Department having withdrawn inspection for failure to accede to this demand, appellant thereafter shipped its product solely as inedible, and so marked it, in accordance with the regulations of 1908, certifying that it was intended for industrial uses. Purchasers were not deceived; if any of them converted the oils into a use for which they were not sold, appellant was in no way responsible. Neither tallow nor oleo oil is ordinarily used as a food. Denaturing is not practicable and is only adopted in cases of fats taken from diseased animals which have been condemned. Mr. Assistant Attorney General Frierson for appellee: Appellant’s product is a meat-food product within the meaning of the act. Being a food product, it is no less so because it may also be used for industrial purposes. If an article is, in fact, a food product, its shipment 4 OCTOBER TERM, 1918. Opinion of the Court. 243 U. S. in interstate or foreign commerce without inspection is prohibited whether the manufacturer intended it for food or other purposes. The evidence fails to show any good faith intention on the part of appellant to confine its product to industrial uses. The validity or invalidity of the regulations called in question can not affect the decision of this case, since, if they were wholly void, appellant would not be entitled to ship its product in interstate or foreign commerce without inspection. The regulations in question are, however, valid. Mr. Justice Day delivered the opinion of the court. The Pittsburgh Melting Company filed a bill in the District Court of the United States for the Western District of Pennsylvania against the Baltimore & Ohio Railroad Company and G. E. Totten, Inspector of the Bureau of Animal Industry of the Department of Agriculture, seeking a mandatory injunction requiring the Railroad Company to receive and carry in interstate and foreign commerce shipments of oil, the manufacture of the Melting Company, and to restrain the Government Inspector from interfering with the shipments. A decree in favor of the complainant was rendered in the District Court. 229 Fed. Rep. 214. Upon appeal this decree was reversed by the Court of Appeals, and the cause remanded to the District Court with directions to dismiss the bill. 232 Fed. Rep. 694. The case arises under the Meat Inspection Act of 1906, 1907, c. 3913, 34 Stat. 674, 675; c. 2907, 34 Stat. 1260, 1262, 1265. The act provides an elaborate system of inspection of animals before slaughter, and of carcasses after slaughter and of meat-food products, with a view to prevent the shipment of impure, unwholesome, and PITTSBURGH MELTING CO. v. TOTTEN. 5 1. Opinion of the Court. unfit meat and meat-food products in interstate and foreign commerce. The act in part provides: “That for the purposes hereinbefore set forth the Secretary of Agriculture shall cause to be made by inspectors appointed for that purpose an examination and inspection of all meat food products prepared for interstate or foreign commerce in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, and for the purposes of any examination and inspection said inspectors shall have access at all times, by day or night, whether the establishment be operated or not, to every part of said establishment; and said inspectors shall mark, stamp, tag, or label as ‘Inspected and passed’ all such products found to be sound, healthful, and wholesome, and which contain no dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food; and said inspectors shall label, mark, stamp, or tag as ‘Inspected and condemned’ all such products found unsound, unhealthful, and unwholesome, or which contain dyes, chemicals, preservatives, or ingredients which render such meat or meat food products unsound, unhealthful, unwholesome, or unfit for human food, and all such condemned meat food products shall be destroyed for food purposes, as hereinbefore provided, and the Secretary of Agriculture may remove inspectors from any establishment which fails to so destroy such côndemned meat food products. . . And the act further provides: “That on and after October first, nineteen hundred and six, no person, firm, or corporation shall transport or offer for transportation, and no carrier of interstate or foreign commerce shall transport or receive for transportation from one State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to any place under the jurisdiction of the United 6 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. States, or to any foreign country, any carcasses or parts thereof, meat, or meat food products thereof which have not been inspected, examined, and marked as ‘Inspected and passed,’ in accordance with the terms of this Act and with the rules and regulations prescribed by the Secretary of Agriculture: . . .” The facts appearing of record so far as we deem them necessary to the decision of the case are: The Melting Company has long been engaged in rendering or converting animal fats into various products, including the oil which is the subject-matter of this controversy. At one time the Company made oleomargarine, but owing to adverse legislation of the State of Pennsylvania desisted from doing so. Government inspectors were in the works of the Melting Company and inspected and marked the products until 1909, when a controversy arose between the Company and the Government officers as to the purchase of the fats used by the Company. Upon refusal to comply with the orders of such officers, inspection was withdrawn. Whether this action was right or not we do not stop to enquire, since the claim for relief is based upon the allegation that complainant’s oil is not a meat-food product within the meaning of the statute. After inspection was withdrawn, the Company continued to ship its oil, but did so under the then regulations of the Department of Agriculture concerning the shipment of fat for industrial use, as “ inedible,” and so marking the receptacle containing the same and making the certificate then required by the Department of Agriculture that it was inedible and not intended for food purposes. On November 1, 1914, the Department adopted a new regulation requiring a certificate to accompany the shipment of such fats claimed not to be food products, stating that the same “is not capable of being used as food by man, is suitable only for industrial purposes, is not for food purposes, and is of such character or for PITTSBURGH MELTING CO. v. TOTTEN. 7 1. Opinion of the Court. such a use that denaturing is impracticable.” The regulation permits the shipment of oil for industrial uses after it is “denatured,” that is, treated with a substance which renders it unfit for food, while still fit for use in industrial purposes. The Melting Company refused to make this certificate, which resulted in the notice to the Railroad Company to refuse to carry the oil, and brought about this suit to compel the carrier to receive and transport it. The District Court found that the oil manufactured and shipped by the Melting Company was not within the terms of the act, as it was not a meat-food product, which is prohibited from shipment without inspection. The reasons for reaching that conclusion are set forth in the opinion of the District Judge. 229 Fed. Rep. 214. The Circuit Court of Appeals reached the opposite conclusion upon the testimony adduced. 232 Fed. Rep. 694. An examination of the record satisfies us that the Circuit Court of Appeals reached the right conclusion. The oil, here in controversy, the testimony shows is generally known as “oleo” oil, and is not “tallow” oil as that term is generally understood by the trade. Both oils are made from the fat of slaughtered beeves. Oleo oil by itself is seldom used as a food. It is, however, largely used in the manufacture of oleomargarine. In fact it constitutes a large percentage of that product. It is used in cooking for shortening purposes. Made as it is by the Melting Company it has no quality which prevents its use for such food purposes. It is not a tallow oil, distasteful and unfit to use in the making of food products. Without elaborating the discussion, we reach the conclusion that this product was clearly a “meat food product,” within the meaning of the statute. It is true that the Melting Company does not sell it as such, and now marks it as “inedible.” But that does not change the fact that a main use of such oil is in making edible products. The Company has no control over the use of the oil after it is shipped, and the record 8 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. does not disclose what use is made of a large percentage of its product which was shipped abroad at the time this action was begun. Thé enactment of the statute was within the power of Congress in order to prevent interstate and foreign shipment of impure or adulterated meat-food products. The statute does not specifically define a meat-food product. In our view the product of the Melting Company is a meat-food product in the sense of the use of those terms in the statute, and as such subject to the regulations of the Secretary of Agriculture. It being such meat-food product the Melting Company could not truthfully claim that it was not capable of being used as food by man, and hence could not make the certificate required. The theory of the bill is that the product in question was not within the terms of the act; the District Court reached the conclusion that this theory was the correct one, and so rendered a decree which required the Railroad Company to receive the oil for transportation in interstate and foreign commerce, without inspection, when labeled “inedible,” and accompanied by the certificate of the Melting Company that such oil is inedible and not intended for food purposes and is of such a character that denaturing is impossible or will render the oil unavailable for the desired industrial use. This decree is consistent only with the finding of the District Court that the product was not a meat-food product within the meaning of the statute. As we have said, we think the record shows, as found by the Circuit Court of Appeals, that the oil made and offered for shipment by the Melting Company was a meat-food product, and hence subject to the regulation of the statute requiring inspection before shipment. The decree requiring such oil to be shipped without inspection was properly reversed. Affirmed. WATTS, WATTS & CO. v. UNIONE AUSTRIACA &c. 9 Argument for Petitioner. WATTS, WATTS & COMPANY, LIMITED, v. UNIONE AUSTRIACA DI NAVIGAZIONE &o. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 25. Argued April 17, 1918.—Decided November 4,1918. Upon review of an admiralty case, the court has jurisdiction to make such disposition of it as justice may require at the time of decision, and therein must consider changes in fact and in law which have supervened since the decree below was entered. P. 21. In a libel in personam, brought by a British against an Austro-Hungarian corporation, while their countries were at war and the United States was a neutral, to recover for coal furnished before the war by the libelant to the respondent in Algiers, jurisdiction was obtained by attachment of a ship (for which a bond was substituted); but, after answer and submission of the cause upon agreed facts and proof of foreign law, the District Court declined to proceed, because of prohibitions placed by the belligerent countries on payment of debts to each other’s subjects, and dismissed the libel without prejudice. This country having entered the war after the case came to this court— Held: (1) That the libelant as a co-belligerent had a right to maintain the suit against the respondent, an alien enemy, and that jurisdiction should not be declined as an act of discretion. P. 21. (2) That respondent, though an alien enemy, was entitled to defend, and that, in view of the non-intercourse laws and the actual impossibility of free intercourse between residents of this country and of Austria-Hungary, further prosecution should be suspended until through restoration of peace, or otherwise, adequate presentation of respondent’s defense should become possible. P. 22. 229 Fed. Rep. 136, reversed. The case is stated in the opinion. Mr. John M. Woolsey, with whom Mr. J. Parker Kirlin and Mr. Cletus Keating were on the brief, for petitioner: The drafts did not constitute a novation or waiver. 10 OCTOBER TERM, 1918. Argument for Petitioner. 248 U. S. The Emily Souder, 17 Wall. 666. The obligation sued on is in essence for goods sold and delivered—an obligation justiciable in any civilized country, Cuba R. R. Co. v. Crosby, 222 U. S. 473, 478, and one peculiarly within the jurisdiction of every maritime tribunal which could obtain jurisdiction over the defendant by attachment or otherwise. If the debt had been assigned to a subject of any power not at war with England, no question could have been raised against enforcement here. The Anna Catharina, 4 C. Rob. 107, 112-113. The respondent, conceding the obligation to pay, appeared generally and expressly admitted the jurisdiction of the court. The objection raised, on the trial, viz, that as a subject of Austria, and because of an alleged Austrian moratorium, it should not be compelled to pay to a British subject, should have been pleaded. It was personal to the respondent, not going to the subject-matter of the suit, and the court, sua sponte, could not have made it. Under well-settled principles, any objection to the court’s taking jurisdiction over respondent’s person was waived. But the courts below have erroneously allowed the respondent to come in and go out at will. Cf. Porto Rico v. Ramos, 232 U. S. 627, 632. They should have adjudicated the case in regular course. Our admiralty courts take jurisdiction, in proceedings between foreigners either in rem or in personam, notwithstanding the contract in suit was made and to be performed, or the tort complained of was committed, in a foreign country or on the high seas. The only requisite is jurisdiction of person or property. The Maggie Hammond, 9 Wall. 435; The Titanic, 233 U. S. 718; The Jerusalem, 2 Gall. 191; Thomassen v. Whitwell, 9 Ben. 113; Bernhard v. Greene, 3 Sawyer, 230; Mason v. Blaireau, 2 Cranch, 240; Cooper v. Newman, 14 Wall. 152; The Napoleon, Olc. 208; Davis v. Leslie, Abb. Adm. 123; Bucker v. Klorkgeter, Abb. Adm. 402; Fairgrieve v. Marine Ins. Co., 94 Fed. WATTS, WATTS & CO. v. UNIONE AUSTRIACA &c. 11 9. Argument for Petitioner. Rep. 686; The Attualita, 238 Fed. Rep. 909. Although in some suits between foreigners our admiralty courts may have discretion to decline jursidiction, this is not such a case. The discretion referred to is not absolute but has been strictly defined by this court. The Maggie Hammond, 9 Wall. 435, 456, 457; The Beigeriland, 114 U. S. 355. This suit is plainly outside the exceptions enumerated in The Beigeriland, supra, and within the rule laid down in that opinion, at pp. 368, 369. The controversy is communis juris, the parties do not belong to the same foreign nation, and, further, most of the coal was bought and used in carrying on trade between Trieste and New York, which gave the United States an interest in the transaction as directly supporting its commerce. See The Belgenland, p. 366; and The Jerusalem, 2 Gall. 191. The District Court’s decision in effect gives extraterritorial force to the Austrian war law to bar the claim of a British subject who had secured jurisdiction according to our practice. Strict neutrality required that we disregard the war measures of all belligerents and apply our laws, since neither party had any claim to have his own applied. If, as declared by our Government, commerce in munitions of war with the enemies of Germany was not unneutral (cf. Northern Pacific Ry. Co. v. American Trading Co., 195 U. S. 439), how can it be said that the enforcement of admitted simple contract obligations, having nothing to do with war, infringes neutrality? The failure of the courts to adjudicate this case is not comity, but a breach of comity. The defense is in reality a plea of alien enemy, which so long ago as 1799 was said by Lord Kenyon in Casseres v. Bell, 8 Term Reports, 166, to be “an odious plea.” Raised in the courts of a neutral nation, such a plea was absurd and should have been as unsuccessful as it is odious. Notwithstanding that when the case was tried we knew 12 OCTOBER TERM, 1918. Argument for Petitioner. 248 U. S. no alien enemies, this court is called upon by this defense to discriminate in favor of the Austrian Government against Englishmen. Since the obligation itself is not affected by the prohibition, it seems clear enough that the prohibition at most goes only to the party who shall sue. An alien enemy has no right to sue in the courts of a king with whom his own sovereign is at war, because a personal disability of suing under such circumstances attaches to an alien. Daimler Co. v. Continental Tyre & Rubber Co., [1916] 2 A. C. 307, 316. There is not any such disability in an alien friend. It is elementary, however, that the matter of parties is to be governed by the law of the forum, and a question, of personal jurisdiction of a defendant may be waived. A civil moratorium will be recognized in a foreign court as the law at the place of payment, provided it is not inconsistent with the public policy of the forum, and is otherwise enforceable. Rouquette v. Overman, L. R., 10 Q. B. 525. But there was no local moratorium prohibiting payment in England, where payment in this case should have been made, nor in Algiers where it might have been made. No rule of law which has hitherto been recognized can be invoked to call for the enforcement in this country of the Austrian prohibition as a moratorium. It was not intended to relieve Austrian subjects from the immediate pressure of debts, as is the case of ordinary moratorium decrees, nor intended to benefit them at all. It was promulgated for the avowed purpose of injuring British merchants’ commerce and property in connection with war, and is highly penal. It is immaterial that Great Britain enacted similar but less stringent prohibitions. Robinson & Co. v. Continental Ins. Co. of Mannheim, [1915] 1 Ki B. 155. The courts of one country will not enforce or recognize the penal laws of another. WATTS, WATTS & CO. v. UNIONE AUSTRIACA &c. 13 9. Argument for Petitioner. The Austrian proclamation has no extraterritorial operation. Comity in its true sense is limited to enforcing substantive rights, Wharton, Confl. of Laws, 3d ed., § 428A, vol. 2, pp. 938-939; Rorer, Interstate Law, p. 7; accruing under some foreign law which is analogous to the law existing in the State where the litigation arises. Effect cannot be given to the defense unless this Austrian war measure is enforced as a part of our municipal law. To do this would be the very denial of comity. The reasons stated by the District Judge have been strongly disapproved in Compagnie Universelle de Telegraphic v. United States Service Corporation, 84 N. J. Eq. 604; s. c., 85 id. 601. Confiscation of the debt in Austria, even if such proceedings had been taken, could not have any extraterritorial effect. Baglin v. Cusenier Co., 221 U. S. 580; Hall, International Law, 4th ed., p. 459. If as the respondent argues the effect of the giving of the drafts was to transfer the place of payment from Algiers to London, which the libelant denies, it does not avail as a defense. Under the law of England, as set forth in the King’s Proclamation, known as “ Trading with the Enemy Proclamation No. 2,” issued on September 9,1914, express permission was given to one in the position of the libelant to receive payment from an enemy, without being guilty of a prohibited transaction. Oronstein & Koppel v. Egyptian Phosphate Co., [1914] 2 Scotch L. T. 293; Trotter’s Law of Contract During War, 428; Ingle v. Mannheim Ins. Co., 31 T. L. R. 41, [1915] 1 K. B. 227. Further, under British law, if jurisdiction could have been obtained over the defendant, the libelant could have maintained an action for the amount due for the coal in the English courts. Robinson & Co. v. Continental Ins. Co. of Mannheim, supra; Ingle v. Mannheim Ins. Co., supra; Leader v. Direction Der Disconto Gesellschaft, 31 T. L. R. 83, [1915] 2 K. B. 154. 14 OCTOBER TERM, 1918. Argument for Petitioner. 248 U. 8. Our law is the same as the English law in this regard. McVeigh v. United States, 11 Wall. 259, 267, citing Bacon’s Abr., Tit. Alien, d; Story’s Equity Pleadings, § 53; Albrecht v. Sussman, 2 Vesey & Beam, 323; Dorsey n. Kyle, 30 Maryland, 512, 522; cf. Pollock on Contracts, 8th ed., p. 100; Compagnie Universelie de Telegraphic v. United States Service Corporation, supra. In no case was jurisdiction declined by our courts in their discretion where denial of justice or hardship upon the libelant would result. They have consistently taken and held jurisdiction where no other courts were available, regardless of the pressure of business, and in some instances of the protests of consuls of foreign countries whose subjects were involved in the litigation. Chubb v. Hamburg-American Packet Co., 39 Fed. Rep. 431; The Amalia, 3 Fed. Rep. 652; Boult v. Ship Naval Reserve, 5 Fed. Rep. 209; The Walter D. Wallet, 66 Fed. Rep. 1011; The Attualita, 238 Fed. Rep. 909; The Troop, 118 Fed. Rep. 769; The Noddleburn, 30 Fed. Rep. 142; The Lady Furness, 84 Fed. Rep. 679; Aktieselskabet K. F. K. v. Rederiaktiebolaget Atlantan, 232 Fed. Rep. 403; The City of Carlyle, 39 Fed. Rep. 807; The Sirius, 47 Fed. Rep. 825; Bolden v. Jensen, 70 Fed. Rep. 505; The Ucayali, 164 Fed. Rep. 897; The Ester, 190 Fed. Rep. 216. Goldman v. Furness, Withy & Co., 101 Fed. Rep. 467, distinguished. There is no suspension of claims against an enemy in the home forum or an allied forum for debts due under executed contracts. Halsey v. Lowenfeld, [1916] 2 K. B. 707; Robinson & Co. v. Continental Ins. Co. of Mannheim, [1915] 1 K. B. 155. Hiatt v. Brown, 15 Wall. 177; Janson v. Driefontein Consolidated Mines, [1902] A. C. 484; and Trotter, Law of Contract During War, p. 39, refer to executory contracts only. By the writ of certiorari the case has been removed to this court and is here to be tried de novo. The subject of WATTS, WATTS & CO. v. UNIONE AUSTRIACA &c. 15 9. Argument for Respondent. an ally seeks to recover an admitted debt from the subject of an enemy. The suit should be sustained. Irvine v. The Hesper, 122 U. S. 256, 266; Reid v. American Express Co., 241 U. S. 544; Caperton v. Bowyer, 14 Wall. 216, 236; Daimler Co. v. Continental Tyre & Rubber Co., [1916] 2 A. C. 307; the District Court’s opinion in this case, and cases there cited, 224 Fed. Rep. 188, 193; Taylor v. Carpenter, 3 Story, 458; Société Anonyme Belge v. Anglo-Belgian Agency, [1915] 2 Ch. 409, 414. Mr. Charles S. Haight, with whom Mr. Clarence Bishop Smith was on the brief, for respondent: If the court must take jurisdiction, against its better judgment, merely because it has the power to do so, there is no discretion. The claim that respondent admitted jurisdiction is erroneous. The courts in each case between foreigners, in connection with contracts made and to be performed abroad, should decide whether it is proper and will promote justice to take jurisdiction. This principle is clearly stated in The Maggie Hammond, 9 Wall. 435, and The Belgenland, 114 U. S. 355, which make it clear that “the question is one of discretion in every case.” In the case at bar a controversy communis juris has been modified by the war statutes of belligerent nations. The exercise of discretion will not be disturbed on appeal, unless that discretion has been abused. Earnshaw v. United States, 146 U. S. 60; Sun Cheong-K.ee v. United States, 3 Wall. 320; Silsby v. Foote, 14 How. 218; The Belgenland, supra; The Dos Hermanos, 10 Wheat. 306, 310, 311. This is so in trials de novo. The Eliza Strong, 130 Fed. Rep. 99; Bearse v. Three Hundred and Forty Pigs of Copper, 2 Fed. Cas., p. 1192. In refusing to take jurisdiction the court committed no breach of comity. Irrespective of war complications, where an action is brought by a non-resident against a non-resident, in con- 16 OCTOBER TERM, 1918. Argument for Respondent. 248 U. S. nection with a contract which is made and to be performed outside of the United States, the District Court, in its discretion, ordinarily does not take jurisdiction if one party objects. Goldman v. Furness, Withy & Co., 101 Fed. Rep. 467. Not only are all of the reasons of convenience opposed to the trial of such cases here, but an American court is not the appropriate forum to pronounce upon questions of foreign law, especially where the parties are all foreigners. Foreign law is difficult to prove, and in cases of doubt the court should be slow to assume that the law of these countries is the same as that of the United States. Cuba R. R. Co. v. Crosby, 222 U. S. 473. The complications of the war have strengthened and emphasized the reasons for refusing to take jurisdiction. War prevents intercourse between belligerents and suspends the payment of debts, so that belligerent nations in modem times do not consider it necessary to confiscate debts. In recent times it has been customary to confiscate only property at sea; but there can be no question about the right of a belligerent to confiscate every kind of enemy property within its reach, on land and on sea, including the debts owed by its subjects. 1 Kent, Com., 64, 65; Brown v. United States, 8 Cranch, 110, 122, 124; Porter v. Freudenberg, [1915] 1 K. B. 857, 869; The Rapid, 1 Gall. 295. Baglin v. Cusenier Co., 221 U. S. 580; Hall, International Law, p. 458, distinguished. It is clear, therefore, that the rights and liabilities of the parties in the case at bar have been vitally altered by the declaration of war. Their contracts and rights of property are suspended, and, in addition, the Austrian Government has the clear right to confiscate the credits of the libelant, by ordering the respondent to pay to the Austrian Government itself. Such a confiscation would destroy the right of the libelant to recover from the respondent. WATTS, WATTS & CO. v. UNIONE AUSTRIACA &c. 17 9. Argument for Respondent. If the courts do not recognize this suspension of obligations, confiscation of debts by belligerents will be stimulated, which is undesirable. Austrian law having forbidden any payments to English citizens, during the war, under penalty of imprisonment and fine, and England having similarly forbidden her citizens to make payments to Austrians, it can hardly be supposed that this court would undertake to order a foreign corporation, in such a case as this, to commit a crime against the laws of its own country. To have taken jurisdiction would have amounted to an abuse of discretion. The only case cited for the proposition that the United States should entertain a suit between citizens of belligerent nations, during war, is Compagnie Universelle de Telegraphie v. United States Service Corporation, 84 N. J. Eq. 604, a case distinguishable, among other reasons, as involving a contract for the sale of land in the United States, to be performed here. This court does not give extraterritorial force to a German or Austrian law when it recognizes the fact that the defendant is absolutely prohibited, by the law of his own country, from paying the debt sued upon, and is subject to heavy penalties if he does so. The power of a government to prohibit its own citizens from doing any treasonable act beyond its own boundaries is well illustrated by the cases where the courts of one State have restrained citizens of that State from bringing suit in another State or in a foreign country. Cole v. Cunningham, 133 U. S. 107; Riverdale Mills v. Manufacturing Co., 198 U. S. 188; French v. Hay, 22 Wall. 250, 252; Dehon v. Foster, 4 Allen, 545, 550; Matter of Belfast Shipowners Co., [1894] 1 L. R., Ir. 321; Lord Portarlington v. Soulby, 3 M. & K. 104, 108; Canada Southern R. R. Co. v. Gebhard, 109 U. S. 527. As for there being a trial de novo here, Irvine v. The Hes-per, 122 U. S. 256, 266, and Reid v. American Express Co., 18 OCTOBER TERM, 1918. Argument for Respondent. 248 U. S. 241 U. S. 544, both hold that an appeal to the Circuit Court of Appeals is such a trial, but neither so holds of a review of that court’s decision on certiorari. The trend of legislation is to have cases disposed of in the Circuit Court of Appeals as far as possible. But, were jurisdiction discretionary, it should be declined, because of the foreign character of the parties and the contract, and the inaccessibility of witnesses,—reasons accentuated by the war, and to avoid which the parties made a stipulation whose construction is now in dispute. That one is not obliged to perform a contract made before the war, when its performance has become illegal, see The Teutonia, L. R., 3 A. & E. 394; s. c. L. R., 4 P. C. 171, 181, 187; The Rapid, 1 Gall. 295. The important point to note is that the relations which exist between individual enemies during war are treated by a general rule, and individual instances are not considered to determine whether some person in this country, or the country as a whole, will be benefited thereby. All debts are suspended during war, and no interest then accrues because the obligation is wholly suspended. See Hiatt v. Brown, 15 Wall. 177, (which is not distinguishable as involving an executory contract, since the money was due during the war); DuBelloix v. Lord Waterpark, 24 Rev. Rep. 628, 630, s. c. 1 Dowl. & Ry. 16-20; Rederei Action Gesellschaft Oceana v. Clutha Shipping Co., 226 Fed. Rep. 339, 342. The fact that an express permission was given in England to enable creditors to sue under the policy laid down in Great Britain for this war, is evidence of the general rule that during war contracts are suspended. See Robinson & Co. v. Continental Ins. Co. of Mannheim, [1915] 1 K. B. 155. The McVeigh Case, 11 Wall. 259, and the authorities cited in it do not in any way affect the question whether contractual obligations are suspended during war. WATTS, WATTS & CO. v. UNIONE AUSTRIACA &c. 19 9. Opinion of the Court. Authorities cited by libelant, and in the District Judge’s opinion, to show that there is no suspension of claims against recovery in the home forum or an allied forum, do not support the assertion; some of them sustain the contention of the respondent. See Hangar v. Abbott, 6 Wall. 532, 539, et seq.; Janson v. Driefontein Consolidated Mines, [1902] A. C. 484, 499; Caperton v. Bowyer, 14 Wall. 216, 236; Robinson & Co. v. Continental Ins. Co. of Mannheim, supra. Libelant cannot recover since the drafts were not surrendered. The Emily Souder, 17 Wall. 666; Ramsay v. Allegre, 12 Wheat. 611, 613. Mr. Justice Brandeis delivered the opinion of the court. On August 4, 1914, Great Britain declared war against Germany, and on August 12, 1914, against Austria-Hungary. Prior to August 4, Watts, Watts & Co., Limited, a British corporation, had supplied to Unione Austriaca di Navigazione, an Austro-Hungarian corporation, bunker coal at Algiers, a dependency of the French Republic. Drafts on London given therefor having been protested for non-payment, the seller brought, on August 24, 1914, a libel in personam against the purchaser in the District Court of the United States for the Eastern District of New York. Jurisdiction was obtained by attaching one of the steamers to which the coal had been furnished. The attachment was discharged by giving a bond which is now in force. The respondent appeared and filed an answer which admitted that the case was within the admiralty jurisdiction of the court; and it was submitted for decision upon a stipulation as to facts and proof of foreign law. The respondent contended that the District Court, as a court of a neutral nation, should not exercise its juris- 20 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. dictional power between alien belligerents to require the transfer, by process of judgment and execution, of funds by one alien belligerent to another; an act which it alleged was prohibited alike by the municipal law of both belligerents. The libelant replied that performance of the contract by respondent, that is, the payment of a debt due, was legal by the law of the place of performance, whether that place be taken to be Algiers or London; that it was immaterial whether it was legal by the Austro-Hungarian law, since Austria-Hungary was not the place of performance; and that the enforcement of legal rights here would not infringe the attitude of impartiality which underlies neutrality. The District Court held that it had jurisdiction of the controversy, and that it was within its discretion to determine whether it should exercise the jurisdiction, since both parties were aliens and the cause of action arose and was to be performed abroad. It then dismissed the libel without prejudice, saying: “From the standpoint of this neutral jurisdiction the controlling consideration is that the law of both belligerent countries [Great Britain and Austria-Hungary] forbids a payment by one belligerent subject to his enemy during the continuance of war. This court, in the exercise of jurisdiction founded on comity, may not ignore that state of war and disregard the consequences resulting from it.” 224 Fed. Rep. 188, 194. The dismissal by the District Court was entered on May 27, 1915. On December 14, 1915, the decree was affirmed by the Circuit Court of Appeals, on the ground that it was within the discretion of the trial court to determine whether to take or to decline jurisdiction, The Belgenland, 114 U. S. 355; and that the exercise of this discretion should not be interfered with, since no abuse was shown. 229 Fed. Rep. 136. On June 12, 1916, an application for leave to file a petition for writ of mandamus to compel the Court of Appeals to review the WATTS, WATTS & CO. v. UNIONE AUSTRIACA &c. 21 9. Opinion of the Court. exercise of discretion by the District Court was denied (241 U. S. 655), and a writ of certiorari was granted by this court. 241 U. S. 677. The certiorari and return were filed July 21, 1916. On December 7, 1917, the President issued a proclamation declaring that a state of war exists between the United States and Austria-Hungary. The case was argued here on April 17, 1918. This court, in the exercise of its appellate jurisdiction, has power not only to correct error in the judgment entered below, but to make such disposition of the case as justice may at this time require. Butler v. Eaton, 141 U. S. 240; Gulf, Colorado & Santa Fe Ry. Co. v. Dennis, 224 U. S. 503, 506. And in determining what justice now requires the court must consider the changes in fact and in law which have supervened since the decree was entered below. United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U. S. 466, 475, 478; Berry v. Davis, 242 U. S. 468; Crozier v. Krupp, 224 U. S. 290, 302; Jones v. Montague, 194 U. S. 147; Dinsmore v. Southern Express Co., 183 U. S. 115,120; Mills v. Green, 159 U. S. 651; The Schooner Rachel v. United States, 6 Cranch, 329; United States v. The Schooner Peggy, 1 Cranch, 103, 109-110. In the case at bar the rule is the more insistent, because, in admiralty, cases are tried de novo on appeal. Yeaton v. United States, 5 Cranch, 281; Irvine v. The Hesper, 122 U. S. 256, 266; Reid v. American Express Co., 241 U. S. 544. Since the certiorari was granted, the relation of the parties to the court has changed radically. Then, as earlier, the proceeding was one between alien belligerents in a court of a neutral nation. Now, it is a suit by one belligerent in a court of a co-belligerent against a common enemy. A suit may be brought in our courts against an alien enemy. McVeigh v. United States, 11 Wall. 259, 267. See also Dorsey v. Kyle, 30 Maryland, 512. If the libel had been filed under existing circumstances, security for 22 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. the claim being obtained by attachment, probably no American court would, in the exercise of discretion, dismiss it and thus deprive the libelant not only of its security, but perhaps of all possibility of ever obtaining satisfaction. Under existing circumstances, dismissal of the libel is not consistent with the demands of justice. The respondent, although an alien enemy, is, of course, entitled to defend before a judgment should be entered. McVeigh v. United States, supra. See also Windsor v. McVeigh, 93 U. S. 274, 280; Hovey v. Elliott, 167 U. S. 409. It is now represented by counsel. But intercourse is prohibited by law between subjects of Austria-Hungary outside the United States and persons in the United States. Trading with the Enemy Act of October 6, 1917, § 3 (c), c. 106, 40 Stat. 411. And we take notice of the fact that free intercourse between residents of the two countries has been also physically impossible. It is true that, more than three years ago, a stipulation as to the. facts and the proof of foreign law was entered into by the then counsel for respondent, who has died since. But reasons may conceivably exist why that stipulation ought to be discharged or modified, or why it should be supplemented by evidence. We cannot say that, for the proper conduct of the defense, consultation between client and counsel and intercourse between their respective countries may not be essential even at this stage. The war precludes this. Under these circumstances, we are of opinion that the decree dismissing the libel should be set aside and the case remanded to the District Court for further proceedings, but that no action should be taken there (except such, if any, as may be required to preserve the security and the rights of the parties in statu quo) until, by reason of the restoration of peace between the United States and Austria-Hungary, or otherwise, it may become KING v. PUTNAM INVESTMENT CO. 23 9. Opinion of the Court. possible for the respondent to present its defense adequately. Compare The Kaiser Wilhelm II, 246 Fed. Rep. 786. Robinson & Co. v. Continental Insurance Company of Mannheim, [1915] 1 K. B. 155, 161-162. Reversed. KING v. PUTNAM INVESTMENT COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. No. 10. Submitted November 7, 1918.—Decided November 18, 1918. The contention that a contract of agency to sell real estate was void because federal lands, under homestead entry, were included, presents no federal question where the state court found they were not included and the record supports the finding. Writ of error to review 96 Kansas, 109, dismissed. The case is stated in the opinion. Mr. Lee Monroe for plaintiff in error. Mr. James A. McClure and Mr. C. M. Monroe were also on the brief. Mr. B. I. Litowich for defendant in error. Memorandum for the court by The Chief Justice. Having previously considered this case (82 Kansas, 216; 87 Kansas, 842) the court awarded relief because of the violation of a contract of employment to procure the sale of real estate. 96 Kansas, 109. The case is here in reliance upon a federal question based upon the assumption that the authority to sell included land belonging to the United States covered by an inchoate homestead entry. But the court below expressly 24 OCTOBER TERM, 1918. Counsel for Defendants in Error. 248 U. S. found that such land was not included in the contract, hence the sole basis for the asserted federal question disappears. And this result is not changed by considering, to the extent that it is our duty to do so, the question of fact upon which the existence of the alleged federal question depends. Northern Pac. Ry. Co. v. North Dakota, 236 U. S. 585, 593; Creswill v. Knights of Pythias, 225 U. S. 246, 261; Kansas City Southern Ry. Co. v. Albers Commission Co., 223 U. S. 573, 591. We so conclude because the result of discharging that duty leaves us convinced that the finding below was adequately sustained; indeed, that the record makes it clear that the alleged ground for the federal question was a mere afterthought. The case, therefore, must be and is Dismissed for want of jurisdiction. LAY ET AL. v. LAY ET AL. ERROR TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI. No. 633. Motion to dismiss or affirm submitted November 4, 1918.— Decided November 18, 1918. As between the parties to it, an assignment of a claim against the Government for property taken during the Civil War, or of the right to a fund appropriated by Congress to satisfy a judgment therefor, is not made void by Rev. Stats., § 3477. 118 Mississippi, 549, affirmed. The case is stated in the opinion. Mr. Wm. H. Watkins, for defendants in error, submitted the motion. LAY v. LAY. 25 24. Opinion of the Court. Mr. John C. Bryson, for plaintiffs in error, in opposition to the motion. Mr. Wm. I. McKay was also on the brief. Memorandum for the court by The Chief Justice. The right to a fund resulting from the payment of an appropriation by Congress to satisfy a judgment for the value of property taken during the Civil War is the issue here involved. The contestants are the heirs at law of the original claimant and persons holding under an assignment by her of all her right to the claim or fund. The court enforced the assignment. Under the assumption that the claimant was prohibited by the law of the United States (§ 3477, Rev. Stats.) from making an assignment, the heirs at law prosecute error to correct the federal error thus assumed to have been committed. But the assumption indulged in as to the effect of the law of the United States is without merit. McGowan v. Parish, 237 U. S. 285,294, and cases cited. This renders it unnecessary to consider whether, if the heirs at law were entitled to the fund, they would be liable to pay the full sum of the attorney’s fee contracted for by the transferee and the duty to pay which the transferee and those in privity do not dispute. Judgment affirmed. 26 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. STATE OF GEORGIA v. THE TRUSTEES OF THE CINCINNATI SOUTHERN RAILWAY AND THE CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY. IN EQUITY. No. 21 Original. Argued November 7,1918.—Decided November 18,1918. In the absence of language suggesting a different intention, a grant of the use of a railroad right of way must be taken as granting the right of way itself. So held, where the purpose was to supply a roadbed for a trunk line, necessitating expenditure by the grantee. P. 28. A grant of a railroad right of way to a corporation, or to perpetual trustees holding for corporate uses, does not need words of succession to be perpetual. Ib. A grant of right of way for a railway from which great public benefit is expected held not a gratuity within the provision of the Georgia constitution forbidding the general assembly to grant any donation or gratuity in favor of any person, corporation, or association. P. 29. By the Act of October 8, 1879, the State of Georgia granted a perpetual right of way for the Cincinnati Southern Railway, not a revocable license. Bill dismissed. The case is stated in the opinion. Mr. William A. Wimbish for complainant. Mr. Edward Colston, with whom Mr. Michael M. Allison, Mr. Washington T. Porter, Mr. John Weld Peck and Mr. Henry T. Hunt were on the briefs, for defendants. Mr. Justice Holmes delivered the opinion of the court. This is a suit brought in this Court by the State of Georgia to prevent the defendants from longer occupying or using any portion of the right of way of the Western and Atlantic Railroad, a railroad built and owned by the GEORGIA v. CINCINNATI SO. RY. 27 26. Opinion of the Court. plaintiff State. The question, although argued at considerable length, is a very short one. On October 8, 1879, the State passed an act sufficiently explained by its contents.1 On August 21, 1916, reciting that the Cincinnati 1 An Act granting right-of-way to the Cincinnati Southern Railway, where its route adjoins that of the Western and Atlantic Railroad. Section I. Be it enacted by the General Assembly of the State of Georgia, That whereas the city of Cincinnati has nearly completed the Cincinnati Southern Railway, a grand trunk line which will be of great benefit to the State of Georgia, forming a most important feeder and, practically, an extension of the Western and Atlantic Railroad, which is the property of the State, and giving to our commerce the advantage of a direct and admirable connection with the railway system of the North and West; And whereas, said railway reaches the Western and Atlantic Railroad at Boyce’s Station, and for the most of the distance to the termini of the two railroads in Chattanooga, their routes run parallel to and adjoining each other, a distance of about five miles; And whereas, it is to the advantage of both railroads to be able to locate their tracks and works close together, thus saving expense to one in construction, and to both in maintaining the road-bed and facilitating railroad operations; and giving to both railroads the advantage of a stronger and firmer road-bed through a route subject to overflow by floods in the Tennessee river; there is hereby granted to the Trustees of the Cincinnati Southern Railway, for the use of said railway, the use of that portion of the right-of-way of the Western and Atlantic Railroad between Boyce’s Station, Tennessee, and the Chattanooga, Tennessee, terminus that lies westerly of a line running parallel with, and nine and a half feet westerly from the center of the track of the Western and Atlantic Railroad, so as to admit of laying track, if desired, near enough to the track of the Western and Atlantic Railroad to leave the distance between the centers of tracks fourteen feet, and between the nearest rails of the two railroads nine feet; Provided always, that this grant is subject to the consent and approval of the lessees of the Western and Atlantic Railroad as to the term of their lease; Provided further, that the grade adopted by the said Cincinnati Southern Railroad [sic] along and over the aforegranted right-of-way shall always be the same as that of the Western and Atlantic Railroad. Sec. II. Be it further enacted, That all Acts and parts of Acts inconsistent with this Act are hereby repealed. [Laws 1879, No. 234]. 28 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. Southern Railway now is controlled by a competitor of the Western and Atlantic road and that the Western and Atlantic needs the space, Georgia undertook to repeal the former act and to treat it as giving a license only, that the State was free to revoke. [Laws 1916, No. 539.] The defendants say that the words 11 there is hereby granted to the Trustees of the Cincinnati Southern Railway, for the use of said railway the use of that portion of the right-of-way of the Western and Atlantic Railroad” &c. grant a right of way in fee. The Ohio statute under which the Cincinnati Southern Railway was constructed by the City of Cincinnati provided for a board of trustees to be appointed and kept filled by the Superior Court of the city, to have control of the fund raised by the city, and to acquire and hold all the necessary real and personal property and franchises either in Ohio or in any other State into which the line of railroad should extend. Therefore the grant to the trustees was the proper form for a grant in effect to the Railway, as it was styled in the title of the Georgia act, or to the city if the city was in strictness the cestui que trust. No other facts of much importance appear. Considerations are urged on behalf of Georgia to show that the motives for a perpetual grant were weak, but nothing that affects the construction of the words used or that shows that they are not to be given their ordinary meaning, as indeed the argument for the plaintiff agrees. But if that be true, cadit quaestio. A grant of the use of a right of way is the grant of a right of way in the ordinary meaning of words, and a grant of a right of way to a corporation or to perpetual trustees holding for the corporate uses does not need words of succession to be perpetual. The words “and its successors” or “in fee” would not enlarge the content of a grant to a corporation. Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58, 66. Detroit v. Detroit Citizens’ Street Ry. Co., 184 U. S. 368, 395, GEORGIA v. CINCINNATI SO. RY. 29 26. Opinion of the Court. Great Northern Ry. Co. v. Manchester, Sheffield, & Lincolnshire Ry. Co., 5 DeG. & Sm. 138, 146. If a grantor wishes to limit the effect of words sufficient on their face to convey a fee it should express the limitation in the instrument. The purpose of the grant in this case, to supply a roadbed for a trunk line, necessitating considerable expenditure on the part of the grantee, confirms, if confirmation were required, the legal effect of the words unexplained. Louisville v. Cumberland Telephone & Telegraph Co., 224 U. S. 649, 663. Llanelly Ry. & Dock Co. v. London & Northwestern Ry. Co., L. R., 8 Ch. 942, 950. Great Northern Ry. Co. v. Manchester, Sheffield, & Lincolnshire Ry. Co., 5 DeG. & Sm. 138. We think it unnecessary to refer to the language in detail beyond saying that there is nothing in the statute to suggest an intent to limit the scope of the grant and that such expressions as 11 Provided further, that the grade adopted by the said Cincinnati Southern Railroad along and over the aforegranted right-of-way shall always be the same as that of the Western and Atlantic Railroad,” further confirm our interpretation, as does also the requirement of the consent of the lessees “as to the term of their lease,” since those words imply that that grant is of something more that does not require their assent. Elaborate discussion of the circumstances seems to us superfluous. But it is necessary to mention the objection that by the constitution of Georgia the general assembly was forbidden to “grant any donation or gratuity in favor of any person, corporation, or association,” and that there was no consideration for this grant. Even if the contemplated and invited change of position on the part of the Cincinnati Southern Railway and the benefit to the State expressly contemplated as ensuing from it were not the conventional inducement of the grant, and so, were not technically a consideration, we are of the opinion that the grant was not a gratuity within the meaning of 30 OCTOBER TERM, 1918. Syllabus. 248 U. S. the state constitution. A conveyance in aid of a public purpose from which great benefits are expected is not within the class of evils that the constitution intended to prevent and in our opinion is not within the meaning of the word as it naturally would be understood. We deem further argument unnecessary to establish that the State of Georgia made a grant which it cannot now revoke. Bill dismissed. DETROIT & MACKINAC RAILWAY COMPANY v. FLETCHER PAPER COMPANY. SAME v. ISLAND MILL LUMBER COMPANY. SAME v. CHURCHILL LUMBER COMPANY. SAME v. RICHARDSON LUMBER COMPANY. SAME v. MICHIGAN VENEER COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN. Nos. 336-340. Motions to dismiss or affirm or place on the summary docket submitted October 8, 1918.—Decided November 18, 1918. Various questions of law, involving the fixing of railroad rates on intrastate traffic and reparation to shippers, held local, and not reviewable in error to the state court. Where the carrier has full opportunity to test whether rates are confiscatory in a suit against the rate-fixing commission, provision of the state law making the judgment conclusive against the carrier in subsequent actions for reparation, is consistent with the Fourteenth Amendment. 198 Michigan, 469, affirmed. ( The cases are stated in the opinion. DETROIT & MACKINAC RY. v. PAPER CO. 31 30. * Opinion of the Court. Mr. Edward S. Clark and Mr. I. S. Canfield, for defendants in error, submitted the motions. Mr. James McNamara and Mr. Fred A. Baker,for plaintiff in error, in opposition to the motions. Mr. C. R. Henry was also on the briefs. Mr. Justice Holmes delivered the opinion of the court. These five suits were actions of assumpsit brought to recover the difference between the rates fixed by the Michigan Railroad Commission on logs carried wholly within the State, from points on the defendant’s (the plaintiff in error’s) road to Alpena, and the higher rates that the defendant actually charged. The plaintiffs got judgments which were affirmed by the Supreme Court of Michigan, (198 Michigan, 469), and the cases are brought here upon lengthy assignments of error. The plaintiff’s now move to dismiss or affirm. We are of opinion that the judgments should be affirmed. Most of the assignments of error concern questions of local law with which we cannot deal. Such are whether the orders of the Commission were in force pending an injunction and before the defendant railroad had fixed rates in pursuance of a mandate of the State Court; whether the state laws permit an action to be maintained without an order of reparation by the Commission ; and whether the statutes purport to make the order fixing the rates conclusive in the present suits. These questions depend upon the construction of the state laws, as to which, upon writs of error to the State Court that Court has the last word. Its power would not be diminished if similar provisions in an act of Congress had been differently construed by this Court. The only question properly before us is whether the statutes as construed run against the Fourteenth Amendment of the Constitution of the United States. It is argued that they do, if, 32 OCTOBER TERM, 1918. Syllabus. 248 U. S. as was held, they preclude an inquiry in these proceedings into the confiscatory character of the rates in present circumstances. But the defendant had had its chance to have the validity of the rates judicially determined in a suit for that purpose and had used it. Detroit & Mackinac Ry. Co. v. Michigan Railroad Commission, 235 U. S. 402. There is nothing to hinder a State from providing that after a judicial inquiry into the validity of such an order it shall be binding upon the parties until changed. The defendant was free to apply to the Commission. A milling-in-transit rate allowing the defendant to add fifty cents a thousand feet on lumber if, instead of being carried on, after it was manufactured, on the through rate, the product was not reshipped by the defendant’s fine, was held to be permitted by the statute. It is said that this would be contrary to the Interstate Commerce Act if these cases involved interstate commerce, which they do not. We see no question concerning it that requires to be dealt with here. Judgments affirmed. PALMER ET AL. v. STATE OF OHIO. ERROR TO THE SUPREME COURT OF THE STATE OF OHIO. No. 260. Motion to affirm submitted October 28, 1918.—Decided November 18, 1918. The right of individuals to sue a State depends entirely on the consent of that State. Whether an amendment of the Ohio constitution (Art. I, § 16, as amended 1912) gives such consent directly or requires legislation to put it into effect, held a question of local law, in no sense involving rights under the due process clause of the Fourteenth Amendment of individuals suing the State for damage to property. PALMER v. OHIO. 33 32. Opinion of the Court. The Fifth Amendment relates to federal action only. Upon error to a state court, this court, finding no substantial federal question, will dismiss, sua sponte, denying a motion to affirm. Writ of error to review 96 Ohio St. 513, dismissed. The case is stated in the opinion. Mr. Clarence D. Laylin and Mr. Frank Davis, Jr., for defendant in error, submitted the motion. Mr. Joseph McGhee, Attorney General of the State of Ohio, was also on the brief. Mr. I. F. Raudabaugh and Mr. John G. Romer, for plaintiffs in error, in opposition to the motion. Mr. Justice Clarke delivered the opinion of the court. The plaintiffs in error sued the State of Ohio for damages for flooding lands by elevating the spillway of a state-maintained dam. The Supreme Court of the State affirmed the action of the lower courts in dismissing the petition on the ground that the State had not consented so to be sued, and we are asked to review this decision. The plaintiffs in error agree, as they must, that their suit cannot be maintained without the consent of the State, but they claim that such consent was given in an amendment to § 16 of Article I of the state constitution, adopted in 1912, which reads: “Suits may be brought against the State, in such courts and in such manner, as may be provided by law.” The State Supreme Court held that this amendment is not self-executing, and that the General Assembly of the State having failed to designate the courts and the manner in which such suits might be brought, effective consent to sue had not been given. This decision, the plaintiffs in error claim, vaguely and indefinitely, somehow deprives them of their property without due process of law, in 34 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. violation of the Fourteenth Amendment to the Constitution of the United States. The right of individuals to sue a State, in either a federal or a state court, cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the State. Beers v. Arkansas, 20 How. 527; Railroad Company v. Tennessee, 101 U. S. 337; Hans v. Louisiana, 134 U. S. 1. Whether Ohio gave the required consent must be determined by the construction to be given to the constitutional amendment quoted, and this is a question of local state law, as to which the decision of the State Supreme Court is controlling with this court, no federal right being involved. Elmendorf v. Taylor, 10 Wheat. 152, 159; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 116; Memphis Street Ry. Co. v. Moore, 243 U. S. 299, 301. The further claim that the plaintiffs in error are deprived of their property without compensation in violation of the Fifth Amendment to the Constitution of the United States, is palpably groundless. Barron v. Baltimore, 7 Pet. 243, 250; Brown v. New Jersey, 175 U. S. 172, 174. No federal question being presented by the record, the motion to affirm is denied and this court, sua sponte, dismisses the writ of error for want of jurisdiction. Dismissed. ORR v. ALLEN. 35 Opinion of the Court. ORR v. ALLEN ET AL. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. No. 288. Submitted October 14, 1918.—Decided December 9, 1918. The “Conservancy Act of Ohio,” designed to prevent floods, and authorizing creation of drainage districts, and drainage improvements through administrative boards empowered to exert eminent domain, and to tax, assess for benefits, and issue bonds, affords full opportunity for testing private grievances judicially, and, as correctly construed by the court below, is consistent with the state and federal constitutions. 245 Fed. Rep. 486, affirmed. The case is stated in the opinion. Mr. Robert J. Smith for appellant. Mr. Oren Britt Brown for appellees. Mr. John A. McMahon was also on the brief. Memorandum opinion by The Chief Justice. The “Conservancy Act of Ohio” is the name given the statute by its first section. Its seventy-nine sections are thus epitomized in the title: “To prevent floods, to protect cities, villages, farms and highways from inundation, and to authorize the organization of drainage and conservation districts.” Ohio Gen. Code, §§ 6828-1 to 6828-79; Laws of Ohio, vol. 104, p. 13. The statute was admittedly designed to prevent the recurrence of the unprecedented and disastrous flood which invaded the Miami Valley in 1913. Briefly, there was provision for drainage districts, for boards to plan, construct and maintain the works contemplated, with the right to 36 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. exert eminent domain, and to raise money by taxation, by assessments for benefits, and, in some cases, by issue of bonds. Every person affected who was aggrieved was undoubtedly given ample means by the statute to test judicially his grievance. A district was organized embracing land along each side of the Miami River which had been flooded in 1913 or which was required for reservoir sites or for furnishing material. The appellant, a citizen of California owning property within this district, filed his bill .to enjoin the enforcement of the statute on the ground that it was repugnant to both the constitution of the State and that of the United States. The court, organized under § 266 of the Judicial Code, in a careful and clear opinion disposed adversely of every proposition upon which the contention was based. The injunction was refused. This direct appeal was taken. All the contentions rest upon one or the other or both of two propositions; (1) That the statute is unconstitutional because of some particular provision relied upon; and (2) because of the inherent want of constitutional authority by Government to exert the powers which the statute gave. The first assumes that the statute has a significance which the Supreme Court of Ohio has expressly decided it has not, and, in addition, that the constitution of the State forbids the exertion of a legislative power which the same court has expressly held the legislature possessed. The second disregards a line of conclusive decisions of this court which leave nothing open for controversy, or, which is tantamount thereto, separates expressions in opinions of this court from their context in order to give to them a meaning which the opinions do not sanction and which it has been repeatedly declared would be inconsistent with the decided cases. Thus concluding, we think nothing is required to dis- BLISS CO. v. UNITED STATES. 37 35. Syllabus. pose of the controversy but to cite the two lines of cases referred to. (1) Snyder v. Deeds, 91 Ohio St. 407; Miami County v. Dayton, 92 Ohio St. 215; County Commissioners v. Gates, 83 Ohio St. 19, 34; State ex ret. Franklin County Conservancy District v. Valentine, 94 Ohio St. 440; (2) Houck v. Little River Drainage District, 239 U. S. 254, 262, and cases cited. Affirmed. E. W. BLISS COMPANY v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 15. Argued November 20,21,1918.—Decided December 9, 1918. In a contract for supplying torpedoes, the manufacturer agreed with the Government not to make use of any device the design for which was furnished to it by the United States, in torpedoes constructed for other person^ or governments, and not to disclose such devices, but no device or design was to come within the prohibition unless so designated in writing by the Government at the time when it was conveyed to the manufacturer. Held: (1) That the obligation to secrecy was not confined to devices which were secret, or to inventions by the United States, but extended to such as were furnished—communicated with certainty—, and designated for secrecy, by the United States, even where the design was subsequently worked out by employees of the manufacturer. Pp. 43-48. (2) That injunction against disclosure should be confined to devices in use, but without prejudice to the right of the Government to enjoin disclosure of others, upon proof of intention to make use of them. P. 48. Davison patent relating to propulsion of torpedoes construed. P. 44. 224 Fed. Rep. 325; 229 Fed. Rep. 376, modified and affirmed. The case is stated in the opinion. 38 OCTOBER TERM, 1918. Argument for Appellant. 248 U. S. Mr. George W. Field, with whom Mr. Frank H. Platt and Mr. Eli J. Blair were on the briefs, for appellant: To furnish a design, it is necessary to furnish something concrete. So of a device. One cannot exhibit an idea. A device has been defined as a thing 11 devised or formed by design; a contrivance; an invention.” “Device” meant some contrivance which could be installed in the torpedo. The Government has published by the Davison patent and otherwise the nature of the balanced turbine and has therefore waived secrecy. This clause must be construed against the Government because drawn by it. Further, it is a restriction on the defendant’s power of alienation of its own property. , It should be construed to avoid absurdity or unfair advantage to one party over the other. Bell v. Bruen, 1 How. 169; Sanford v. Brown Brothers Co., 208 N. Y. 90. The balanced turbine principle being public property, the Government could not furnish it to the defendant. The purpose was to prevent knowledge of new inventions going to the other nations. By the issuance of patents, both domestic and foreign, this purpose is frustrated by the plaintiff itself. As no irreparable injury can be suffered by repetition of such knowledge, injunction was improper. The position of the defendant is analogous to that of the holder of a trade secret. Once a trade secret has become generally known, regardless of the contract between the parties, its further promulgation will not be protected by injunction. Bell & Bogart Soap Co. v. Petrolia Mfg. Co., 25 Mise. (N. Y.) 66; National Tube Co. v. Eastern Tube Co., 23 Ohio C. C. 468; Chain Belt Co. v. Von Sprocket-sen, 117 Wisconsin, 106. Mr. Assistant to the Attorney General Todd, with whom Mr. A. F. Myers was on the brief, for the United States. BLISS CO. v. UNITED STATES. 39 37. Opinion of the Court. Mr. Justice McKenna delivered the opinion of the court. Appeal from a decree of the United States Circuit Court of Appeals amending and affirming a decree of the District Court for the Eastern District of New York entered in a suit brought by the United States against appellant (herein referred to as the Bliss Company) restraining the latter from exhibiting or communicating the construction and operation of a torpedo known as the Bliss-Leavitt torpedo. The controversy turns upon the construction and application of certain clauses of the contracts between the Bliss Company and the United States and is not, we think, in broad compass. In support of its contention in the main the United States has the sanction of the two courts. The development, construction and operation of the torpedo gave animation and attraction to the argument, but it is enough to say that its method of propulsion is the balanced turbine method, so called, that is, turbines revolving in opposite directions. The United States asserts that to this method of propulsion the excellence and efficaby of the torpedo is due and that it was the conception of the United States; that it was the result of much experimentation on the part of its engineers and those of the Bliss Company and the expenditure of substantial sums of money by the Government, and that because of the superior speed, range and power of this new weapon, other nations have been eager to learn the secrets of its construction. The Bliss Company denies these assertions, opposes them, besides, by the contentions that the balancing of rotary bodies analogous to turbines rotating in opposite directions was a matter of common knowledge long prior to any transactions with the United States and that the 40 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. torpedoes constructed by it under its contract contained balanced turbines, so called, of its own design and property; or, to quote counsel:1 ‘The torpedo is the product of the assiduity and genius of the defendant’s officers and engineers, and not that of the Government.” And, further, that it purchased from Lieutenant Davison, with full knowledge of the United States, all of his rights to foreign patents, and to this patent, it is said, the United States assigns a special excellence. This is the issue in outline. The Bliss Company asserts the right to have other customers than the United States and to seek other markets, and not subject to restriction by the United States. The United States claims an exclusive service and even concealment from all others except as it may concede it. The resolution of the contentions is in the contract of the parties. Their transactions date to 1905 and are exhibited in three contracts, one of November 22,1905, one of June 12, 1912, and an intervening one dated June 16, 1909. In the 1905 contract there was a provision which it is admitted was embodied in all subsequent contracts. Disputes arose as to the meaning of the provision, the rights and restraints under it, and the Bliss Company brought them to litigation by expressing its desire to negotiate with Messrs. Whitehead & Company for the right to manufacture the torpedo in foreign countries. The Bureau of Ordnance objected, and on May 9, 1913, the company addressed the Secretary of the Navy as follows: “Asa means to this end we notify you hereby that it is our intention to communicate the complete construction and operation of the existing type of Bliss-Leavitt torpedo, and to make a demonstration of the operation of said torpedo, to a representative of Messrs. Whitehead and Company on or immediately after June 1, 1913.” To restrain the threatened action this suit was brought. The prayer of the bill covers the balanced turbine and BLISS CO. v. UNITED STATES. 41 37. Opinion of the Court. certain other features, and it is manifest that whether it should be granted depends particularly upon a provision of the contract which prohibits the exhibition of the torpedo or its performance to any person whatsoever or to any other government, or its representatives, than that of the United States. That provision is that the Bliss Company “will not make use of any device the design for which is furnished to it” by the United States “in any torpedo constructed or to be constructed for any person or persons, firms, corporations, or others, or for other governments than” the United States and “will not exhibit such device or in any way describe it to or give any information in regard to it to any person . . . or to other governments, or their representatives” or exhibit its performance “either in shop or in service tests.” A violation of the contract incurs its cancellation and releases the United States from all claims or demands under it. It is, however, provided that no design shall be considered as coming within the provisions unless the United States communicates in writing to the Bliss Company that it (the United States) thinks it is embraced by the provision.1 It is disputed whether the condition of the pro- 1 “Nineteenth. It is hereby expressly further stipulated, covenanted, and agreed, that the party of the first part will not make use of any device the design for which is furnished to it by the party of the second part in any torpedo constructed or to be constructed for any person or persons, firms, corporations, or others, or for other governments than the party of the second part hereto; that the party of the first part will not exhibit such device or in any way describe it to or give any information in regard to it to any person or persons, firms, corporations, or others, or to other governments, or their representatives, than the party of the second part hereto; that the party of the first part will not exhibit the performance of any torpedo containing such device, either in shop or in service tests, to any person or persons, firms, corporations, or others, or to other governments, or their representatives, than the party of the second part hereto: * * * * * * * * “Provided furthermore, That no device or design shall be considered 42 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. vision was performed, but both the lower courts have found that it was, and we concur in their judgment. The condition of the provision, then, having been performed, we come to its meaning, the Bliss Company contending that the device must be of the invention of the United States, and the latter contending that it need only be “furnished” by the United States. The Bliss Company’s contention in its detail is somewhat difficult to state concisely. It rests as much in implication as in expression. It is said that the restrictive clause “applies only to a ‘device the design for which is furnished by the Government’” and “expressly and clearly excludes ideas, methods or principles.” And it is further urged that “to furnish a design, it is necessary to furnish something concrete. A device also is something as coming within the provisions of this clause unless the party of the second part shall state to the party of the first part in writing, at the time when the said device or design is itself conveyed to the party of the first part by written communication from the party of the second part, that the party of the second part considers that the said device or design is embraced within the provisions of this clause.” In the contract of June 12,1912, the foregoing clause became clause Twentieth. The 1912 contract contained, however, in the second clause, the following new matter, which (save that part enclosed by brackets) had not been included in previous contracts: “[Second. The manufacture of said torpedoes] (the word ‘torpedoes’ as used throughout this contract being intended to include everything covered by the drawings, plans, and specifications above referred to) [shall conform in all respects to and with said drawings, plans and specifications], including duly authorized changes therein, but said drawings, plans and specifications are not hereto annexed or made a part hereof. They contain information of a confidential character that can not be made public without detriment to the Government’s and the contractor’s interests, and they are to be treated as confidential by the parties to this contract, it being understood, however, that nothing in this clause shall be construed as depriving the party of the first part of the right to make and sell such torpedoes to any other party or government whatsoever, except as limited by clause twentieth of this contract.” BLISS CO. v. UNITED STATES. 43 37. Opinion of the Court. concrete. One cannot exhibit an idea?’ To support these declarations legal and other definitions are adduced. One is selected from Armour Packing Co. v. United States, 209 U. S. 56, which explains a device to be a thing “ devised or formed by design; a contrivance; an invention.” It is hence asserted that the United States did not comply with these definitional requirements—indeed, from the state of the art, could not; and therefore could not impose secrecy upon the Bliss Company. The tangibility of the definitions and the arguments based upon them are not very clear nor what purpose they tend to establish. The company asserts a right to employ the principle of propulsion and this principle it asserts to be—to quote counsel—“the balancing of rotary bodies analogous to turbines rotating in opposite directions and of equal speeds for the purpose of eliminating gyroscopic effect,” and that it was “long prior to 1906 [the first contract was made in 1905] a matter of common knowledge and known to the defendant” (the company); and again, “The balanced turbine principle was public property and not the property of the Government. It was a matter of public knowledge and not a secret.” Therefore, as we have said, the contention is that it was not within the prohibition of the contracts. Immediately it may be asked: This being the condition, of what value was the restrictive clause to the Government? Surely the Government sought to secure something valuable and practical, and yet it was apparently only the promise of words never to have effective realization. Instead of security the Government got a controversy. Anything it might offer or suggest or, to use the word of the contract, “furnished,” would be open to dispute and the charge of being anticipated, already in existence among the things available to the company as “public property and not the property of the Government” —“a matter of public knowledge and not a secret.” And the Govern- 44 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. ment could not even fortify itself by the presumptions of a patent. To have done so would have been to break the seal of secrecy and relieve the company from the obligations imposed by the contract. To this contention the Bliss Company is driven to get rid of the Davison patent, the design for which was furnished the company by the United States. Counsel say: “Assuming that the particular design of a balanced turbine produced by Davison was a secret, it lost every attribute of a secret upon the issuance by the United States Government of letters patent to Davison.” And further: “The issuance of this patent, therefore, became an act of the Navy Department. Thus, the Government through the same department by which it entered into the several contracts with the defendant [the company], caused the alleged secret of the balanced turbine to be laid open to the public.” And, besides, it is said that the Government “tacitly permitted Davison, one of its officers and subject to its discipline, to assign” to the company “foreign patents for the device in issue”; and that therefore “it cannot now successfully contend that its design is within the restrictive clause.” But this gives an exaggerated effect of publicity to a patent and cannot dispense with the explicit obligation of the restrictive clause. Indeed, we may repeat, Of what avail was the restrictive clause to the Government under the contentions of the company? It was assured of nothing but opposition and litigation. We may cite in further illustration of this that the Bliss Company asserts that the Davison device was without novelty in the field of “opposite revolving turbines” (another name for a balanced turbine) and that all he did was to take a “design of unbalanced turbine shown” in a prior patent “and reverse one of the turbine wheels with the incidental and necessary change in the gearing.” The assertion is that “the designing of this gearing is what occupied Lieutenant Davison’s time and thought.” We BLISS CO. v. UNITED STATES. 45 37. Opinion of the Court. may say that we concur with the lower courts and think the patent is not so limited. The Bliss Company thought well enough of it to buy its foreign rights. The several contentions of the company are but fragments of the broader one that there were in the world’s knowledge and available to the company practical devices as well as principles of operation which precluded a demand of secrecy by the Government and which left the company free to use or exhibit or sell to anybody torpedoes embodying them, the final and dominant contention being that the Government’s reservation was only of inventions—inventions, however, undisclosed, patentable but not patented. Yet the word of the contract is “furnished,” not invented, and the words are of different significance. To invent means to create; to furnish means to supply. And the difference was too important, too pertinent to the purpose to have been overlooked—indeed, must have been deliberately contemplated to achieve the object of the parties. The Government in its situation, considering the use of torpedoes and the uncertainty against whom to be used, would want to avail itself of the whole universe of things then existing or that might be brought into existence, in whatever way or combination it could. It is easy to believe that an arrangement of old devices might have value. And secrecy was an especial object, as far as it could be maintained and for such length of time as it could be maintained. The fact and the time might in instances be critical and determinative of a decisive result. The Government considered the provision important to insert in the contract of 1905 and to repeat in every subsequent contract, to and including that of 1912, and to disregard the plea of the company for some relaxation of it to accommodate the company’s interests. There was some relaxation in 1912 and 1913, but the confidential relation of the parties was emphasized as we have seen. 46 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. This was the simple situation. It is free from the tangle and perplexities of the company’s contentions. It gives use to the restrictive clause, directness of right and remedy, not dependent upon explorations into the prior art or the delays and termination of law suits. These observations apply to other parts of the torpedo as well as to the balanced turbine. The remarks of the Circuit Court of Appeals are pertinent. The court said: “Throughout the entire record, in the contracts, correspondence and dealings of the parties, the importance of secrecy is everywhere manifest. The nature of the services rendered was such that secrecy might almost be implied. It is difficult to imagine a nation giving to one of its citizens contracts to manufacture implements necessary to the national defense and permitting that citizen to disclose the construction of such implement or sell it to another nation. The very nature of the service makes the construction urged by the defendant untenable. We are of the opinion, therefore, that the injunction should include all designs, drawings, plans and specifications used by the defendant in making the Bliss-Leavitt torpedo for the Government which were approved by the Ordnance Bureau, notice of which was given to the Bliss Company pursuant to the provisions of Clauses 19 and 20 of the contracts in question.” The court hence directed the amendment of the decree of the District Court, “adding such a provision.” A rehearing was asked of the case. It was denied as to the balanced turbine and granted as to the other devices, that is, Double Regulation of Air, Ball Bearings for Gyroscope, and Inside Superheater. To the inclusion of these in the decree it is objected, as to the Double Regulation of Air, that written notice was not given the company as required by the restrictive clause. The assertion is that what was done by the Government was BLISS CO. v. UNITED STATES. 47 37. Opinion of the Court. nothing but suggestions, first verbal, and then by letter, but not accompanied by “blue prints of design.” 1 The objection is based on the contention already referred to that a device or design must be something concrete or, it is now said, if not that, “it at least imports something as to dimensions, size, shape, weight, etc., from which a device could be constructed.” The objection * 2 3 4 5 6 1 Bureau of Ordnance Navy Department 25698/102-(G)-O. January 18, 1913. Sirs: 1. The Bureau is pleased to note the decided improvement shown in the dynamometer tests of the Mark VII torpedo by the use of double regulating valves. 2. This plan or idea of double regulation was first submitted to the Bureau by a letter from Lieut. E. Frederick, then Assistant Inspector of Ordnance at your works, dated March 9, 1911, which was received and filed in this office on or about March 15, 1911, and the value of the invention was successfully established by the actual tests at the Naval Torpedo Station, Newport, R. I. 3. The Bliss Company had been furnished verbally with the idea and the fact that its value had been established by actual trials. This was also furnished the E. W. Bliss Company by the Bureau’s letter No. 25698/92 (G) of January 4, 1913. 4. In view of the above the Bureau requests that you will note for record that the double regulating principle has been submitted by the Bureau, and that this principle of any device embodying the same falls under the provisions of Clause 20 of the contracts now existing. 5. While the Bureau has no actual blue prints of design it has on record cards and certain data obtained by experiments at the Torpedo Station which the Bureau will be pleased to furnish the E. W. Bliss Company for their information if they so desire and will request it. 6. The Bureau again desires to express its pleasure in noting the improvement in the dynamometer tests due to the double regulation and the change in angle spray which was introduced at the suggestion of the Bureau’s inspectors at your works. Respectfully, N. C. TWINING, E. W. Bliss Co., Brooklyn, N. Y. Chief of Bureau. (Through Inspector of Ordnance.) 48 OCTOBER TERM, 1918. Dissent. 248 IKS. is hypercritical and we are somewhat surprised at it. There was no uncertainty in the Government’s demand and no misunderstanding of it. There were discussions concerning the practical means of using it, and it was testified that “the sole question practically reducing itself to whether or not they had sufficient space to apply this design or principle.” And the design was subsequently worked out by the employees of the company. The objection was rested on other grounds, and it was rightfully dealt with by the Circuit Court of Appeals. The same objection is not made as to the Superheater and the Ball Bearings. It is said of them that they are not used in the existing type of torpedo. As this is conceded by the Government, and as we do not agree with its assertion that the company “displays a disposition to violate its trust whenever it seems advantageous to do so,” we think the decree should not include the devices. In other words, it should be modified to exclude them, without prejudice, however, to the Government’s right to obtain an injunction against their disclosure, upon proper proof of an intention to use the devices, in proceedings supplemental to this action or in an independent action. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 262. The decree is modified as stated, and, as modified, affirmed. Affirmed. The Chief Justice dissents. Mr. Justice McReynolds took no part in the consideration or decision of the case. VAN DYKE v. ARIZONA EASTERN R. R. 49 Counsel for Parties. VAN DYKE ET AL. v. ARIZONA EASTERN RAILROAD COMPANY. ERROR TO THE SUPREME COURT OF THE STATE OF ARIZONA. No. 59. Argued November 19, 1918.—Decided December 9, 1918. A railroad company, having surveyed a line over public land and filed map and application for right of way under the Act of March 3, 1875, (which affects public land only,) and the land having in the interim become part of a National Forest, made application, upon the same map, to the Commissioner of the General Land Office for permission to construct in the Forest; received such permission from the Forest Service, to which the matter was referred; amended its location somewhat, so as to lay the right of way, staked 200 feet wide, across a mining claim in the Forest; obtained conveyance of 100 feet in width from the mining claimants, and constructed and operated its road. Thereafter, the original application was approved by the Secretary of the Interior, and thereafter the tract crossed was thrown open to entry. Held, (construing the Act of 1875, supra, and the Act of March 3, 1899, relating to rights of way in forest reservations,) (1) That the right of the railroad, to the full 200 feet, was superior to the right of one who held under the mining claim until the land was thrown open and who then settled, and ultimately obtained patent, under the Homestead Law, although his homestead right was initiated before the company amended its map to show the change of location and before the Secretary approved the application as thus amended. P. 53. (2) That the question whether failure to describe the route in its charter left the company without power to construct upon it, and unqualified to receive the grant, was not subject to be raised by the homesteader. P. 54. 18 Arizona, 220, affirmed. The case is.stated in the opinion. Mr. William C. Prentiss, with whom Mr. Richard E. Sloan and Mr. F. C. Jacobs were on the brief, for plaintiffs in error. Mr. Charles L. Rawlins for defendant in error. 50 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. Mr. Justice McKenna delivered the opinion of the court. Error to review a judgment of affirmance of a judgment rendered in the Superior Court of Gila County, Arizona, quieting the title of the Railroad Company to 2.23 acres of land in the N. W. jkt of the S. E. Sec. 30, T. 1 N., R. 15 E., Gila County, Arizona. The trial court made findings of fact which were concurred in by the Supreme Court. And we see no reason for not accepting them, notwithstanding plaintiffs in error urge a review of them. They are as follows: The railroad, as the successor of the Gila Valley Globe & Northern Railway Company, acquired its rights, including rights of way and all other assets. In March, 1906, the latter company platted a line of railroad from Globe to Miami, Arizona, about nine miles in length, passing over and across certain public land, and, November 5, 1908, filed in the local land office its map or profile of definite location as provided by the Act of Congress of March 3, 1875. Prior to that time the land covered by the map as well as the land in dispute was thrown into the Crook National Forest Reserve. April 19, 1909, written application to the United States Department of Agriculture, Forest Service, with map of right of way attached, was made by the railroad to enter and extend its line across a portion of the Forest Reserve. The rn.il-road was given permission, on July 6, 1909, to enter the reservation and to locate and construct its road therein. The map and profile of its road was approved September 21,1909, by the Secretary of the Interior in accordance with the act of Congress. In April, 1909, the Globe Company commenced the construction of its road and completed it in September of that year, and it and the appellee company have operated trains ever since October, 1909. Before construction was commenced, to-wit, in November and December, 1908, VAN DYKE v. ARIZONA EASTERN R. R. 51 49. Opinion of the Court. the Globe Company amended its line of survey and changed the course of its road upon and across the land in dispute and along its entire length to the extent of 100 feet in width on each side of the center line of its railroad and constructed its road on the amended location conforming on the ground to the staked and marked line. At the time of the amended location the land was held by the Miami Land & Improvement Company, a corporation, as mineral land, and the Globe Company accepted a deed from it to a right of way across the land. By executive order the land in dispute was restored to the public domain December 22, 1909, on which date appellant, Cleve Van Dyke, filed upon the same under the homestead law. He had theretofore accepted it under an option to purchase as a mineral location from the Miami Improvement Company. On that date he went off the land, but immediately returned and estab-fished his residence with a view to homesteading. In due course he made final proof and on February 12, 1912, a patent without any reservation was issued to him for his homestead. December 30,1909, the Globe Company filed its amended map and profile of its right of way in the local land office which was regularly and duly approved March 4, 1911. Van Dyke attempted to show that he had established residence upon the land prior to December 22, 1909, the date upon which he filed his homestead entry. But it is clear that he did not go upon the land prior to its inclusion in the Forest Reserve. He was upon the land under the option to purchase mentioned, and he attempted to show that he was there under a verbal permit from the Forest Supervisor with the intention of entering the land as a homestead and that he made application to the Forestry Department for an examination and listing thereof under the Act of June 11, 1906 [c. 3074, 34 Stat. 233]; application, however, was rejected. 52 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. That he did not rely upon the settlement prior to December 22, 1909, is clearly shown by his testimony. He said: “It is a fact that about midnight on the 22nd of December, 1909, I took up my residence in the house testified to. That is, I went off the ground and back on again at midnight.” December 22nd was the first time the land could have been settled upon without permission from the National Government, and this permission he did not obtain. Upon these facts the Supreme Court said certain contentions arose: (1) It is that of the railroad that its rights were fixed and established in August and September, 1909, when it completed the construction of its railroad. (2) Opposing, plaintiffs in error assert that, because the railroad changed its route as located by its original map and profile approved by the Secretary of the Interior, it acquired no rights until it filed with the local land office on December 30, 1909, its amended map of location, which was too late, Van Dyke having taken the land as a homestead December 22, 1909. And to the contention of the company that if the land was public it was not bound to follow the line as shown on its map and profile, plaintiffs in error reply that the land had ceased to be public land by being thrown into the National Forest Reserve and that the railroad was hence restricted to the specific right of way shown on its approved map and profile; or, if changed to another and different route, the consent of the Interior Department was necessary and that such permission had not been given and hence the railroad acquired no rights, at least against plaintiffs in error. It is conceded, however, that the railroad company was entitled to a right of way to the extent of 50 feet on each side of the center of its line of track acquired by deed from the Miami Land & Improvement Company, in the execution of which deed Van Dyke “acquiesced.” Therefore, as said by the Supreme Court, “Fifty feet on each side of VAN DYKE v. ARIZONA EASTERN R. R. 53 49. Opinion of the Court. the center line of the track, or 100 feet of the right of way, are not involved in this suit; the area in question being the excess of 100 feet up to 200 feet, amounting to 2.23 acres.” We have had occasion to consider the Act of 1875, 18 Stat. 482, and what constituted a definite location of the right of way under it, and have decided that such event occurs by the actual construction of the road. Jamestown & Northern R. R. Co. v. Jones, 177 U. S. 125; Minneapolis &c. Ry. Co. v. Doughty, 208 U. S. 251; Stalker v. Oregon Short Line R. R. Co., 225 U. S. 142. It was found by the courts below that the construction of the railroad was commenced in April, 1909, and completed September, 1909, and that trains have been operated on it ever since. This satisfies the condition expressed in the cited cases of the appropriation of a right of way. But it is objected that the land was not then subject to appropriation, being within a Forest Reserve. In reply the Act of Congress of March 3, 1899, c. 427, 30 Stat. 1233, is adduced. It reads as follows: “That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby.” Of this act we said, in Chicago, Milwaukee & St. Paul Ry. Co. v. United States, 244 IT. S. 351, 357, 358, that it commits to the Secretary of the Interior the question of determining whether the public will be injuriously affected by the grant of a right of way to a railroad through a forest reserve and authorizes him to file and approve surveys and plats of the right of way. The measure of his discretion is large and only through his approval can a right of way be acquired. The condition was satisfied in this case. The Globe Company—to the rights of which defendant in error 54 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. succeeded—in 1906, in preparation for the construction of its road, platted its road and filed in the local land office its map and profile of definite location under the Act of 1875, in November, 1908. Several months prior to the latter date the land of the platted line and the land in dispute were thrown into the Crook National Forest Reserve. In the following year the railroad company made application to the Commissioner of the General Land Office for permission to enter the reserve and to locate and construct its road thereon. And the application was communicated to the Department of Agriculture and approved by the Acting District Forester; the permission was granted and the map and profile of the road was approved September 21, 1909, by the Secretary of the Interior, pursuant to the Act of Congress of March 3, 1875. The road was constructed, and, as we have said, completed in September, 1909, and put in operation in October. And these successive steps were before the date on which Van Dyke attempted to initiate a homestead right. The discretion of the Secretary of the Interior was therefore exercised, and we agree with the Supreme Court that we cannot infer a rule of the Department which precluded the granting of permission upon the original map and profile. Plaintiffs in error contend that the railroad company had no power to construct a road from Globe to Miami, Arizona, because its charter failed to designate such a line as within the project for which it was incorporated. This was made an issue by the pleadings and the court found against it. Besides, it is not within the province of plaintiffs in error to make the objection; it was a matter for the Secretary of the Interior to determine. And, again, plaintiffs in error have not such relation to the railroad company as to complain of the exercise of power outside of its charter. Judgment affirmed. BUCKEYE POWDER CO. v. DuPONT POWDER CO. 55 Syllabus. BUCKEYE POWDER COMPANY v. E. I. DuPONT De NEMOURS POWDER COMPANY ET AL. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 7. Argued April 30, May 1, 1917; restored to docket for reargument June 10, 1918; reargued November 13, 1818.—Decided December 9, 1918. In an action for triple damages under § 7 of the Sherman Act, where the scope of the declaration, plaintiff’s interpretation of it and the nature of the proofs characterized the case as based on § 2 of the Act, dealing with attempted and effected monopolies, rather than on § 1, dealing with contracts and combinations in restraint of trade, and where the case was fully tried upon this basis, without objection, and the jury was allowed to consider contracts so far as they bore upon the supposed attempt to subject plaintiff to a monopoly,— Held: (1) That technical error committed at the close of the trial in requiring plaintiff to elect whether it would rely on the first or second section of the act (whereupon it elected the second without asking to amend,) was harmless. P. 60. (2) That instructions pointing out that § 2 extends to attempts to monopolize were advantageous rather than harmful to plaintiff. P. 62. In such an action, where the only ground for holding a defendant is responsibility (through stock ownership) for the acts of another defendant, error in directing a verdict for the former is harmless if the latter be exonerated upon the merits by the jury, after instructions fairly presenting the case against it. P. 62. Before the Clayton Act, c. 323, 38 Stat. 731, a judgment in a Government proceeding finding a company guilty of an attempt to monopolize was inadmissible in a private action for triple damages under § 7 of the Sherman Act. P. 63. The provisions of § 5 of the Clayton Act for admitting such judgments, “hereafter rendered” in Government cases, in other litigation, and for suspending the statute of limitations as to private rights pending Government prosecutions, do not affect retrospectively, on review, a judgment rendered in an action for triple damages before the Clayton Act was passed. Id. A corporation suing for triple damages under the Sherman Act has 56 OCTOBER TERM, 1918. Argument for Plaintiff in Error. 248 U. S. no ground to complain of the mere existence of a power in trade attained by a defendant and known to the organizers of the plaintiff before the plaintiff was created, without proof of some oppressive use of it afterwards. P. 63. An instruction held to state correctly that, on the question whether plaintiff’s failure in trade was due to its incapacity or to defendant’s oppression, the jury might consider whether the motive in organizing plaintiff was to sell out to defendant or to compete. P. 64. In an action for triple damages under the Sherman Act, the court excluded statements by third parties of their reasons for refusing or ceasing to do business with plaintiff. Held correct, as the statements were wanted not as evidence of motives but as evidence of facts recited as furnishing the motives. P. 65. Where the jury found for defendant, rulings as to damages held immaterial. P. 65. 223 Fed. Rep. 881, affirmed. The case is stated in the opinion. Mr. Twyman 0. Abbott, with whom Mr. Willard U. Taylor was on the briefs, for plaintiff in error, among other points, urged that § 7 of the Sherman Act, prescribing a remedy for injuries suffered “by reason of anything forbidden or declared to be unlawful by this act,” gives a single and indivisible right of action, and makes no distinction between the things that are declared to be unlawful by § 1 and those that are declared to be unlawful by § 2; citing United States v. Kissel, 218 U. S. 601, 607; Cilley v. United Shoe Machinery Co., 202 Fed. Rep. 598; Strout v. United Shoe Machinery Co., 202 Fed. Rep. 602; Carey v. Independent Ice Co., 207 Fed. Rep. 459, 463; Monarch Tobacco Works v. American Tobacco Co., 165 Fed. Rep. 774; People’s Tobacco Co. v. American Tobacco Co., 170 Fed. Rep. 396, 407; Occidental &c. Co. v. Comstock Tunnel Co., Ill Fed. Rep. 135. Furthermore, in practically all equity cases brought by the Government under the Sherman Act, both §§ 1 and 2 were involved, and the Government had never been compelled to elect under BUCKEYE POWDER CO. v. DuPONT POWDER CO. 57 55. Argument for Plaintiff in Error. which section it would proceed. Under the Clayton Act,, it was now provided that private persons might sue in equity. Act of October 15, 1914, § 16, 38 Stat. 731. If the ruling of the trial court were correct, the absurd situation would be presented of requiring a private person to elect in an action at law, but not in an equity proceeding. The error in requiring an election, was not harmless. The opinion below, in stating that “practically” all the evidence was directed to a monopoly, conceded that there was some to show a contract or combination. But in any event, plaintiff was entitled to have the scheme or combination considered as a whole, by the jury, and not in part only. Amendment at that stage of the case was entirely out of the question, as a matter of fact, even if not as a matter of law. Furthermore, the order came as a complete surprise to the plaintiff as it was a reversal of the earlier position taken by the court upon the motion to strike the declaration. Plaintiff relied, and had a right to rely, upon the ruling made at that time, as being the law of the case. Defendants did not acquire the right to perpetuate their monopoly by reason of long continued misconduct; and the fact that defendants were large and powerful as factors in the trade and that plaintiff’s promoter had knowledge of this fact, and of their monopoly and of their practices and policies in maintaining it, did not alter plaintiff’s right of action under § 7 of the act to recover for injuries suffered by reason of conduct forbidden by that act. Plaintiff was not bound to enter the business at its peril by reason of this knowledge, nor did plaintiff occupy any different position as a competitor than it would have occupied if it had been in existence during the period that the defendant’s, influence was being developed, and had suffered injuries at the hands of the defendants during said period or afterwards. In Loewe v. Lawlor, 208 U. S. 58 OCTOBER TERM, 1918. Argument for Plaintiff in Error. 248 U. S. 274, it was said that: “The act made no distinction between classes.” It did not create any distinction between the rights or remedies of a person injured by an unlawful combination, whether such person or corporation was in existence before the combination had developed its power and influence, or afterwards; or whether it had previous knowledge, or acquired it later. It was unnecessary and improper for the court to instruct the jury upon a supposititious case which was not in issue. The question was not what would have been the plaintiff’s rights had it been in existence earlier, nor what would have been the rights of some other person who might not have been cognizant of the facts. The sole question before the court was, What are plaintiff’s rights now? United States v. Breitling, 20 How. 252; Railroad Co. v. Houston, 95 IT. S. 697, 703. The question whether plaintiff was sufficiently cap--italized to compete was a question of fact, not of intention. Even if the intention had been, as it was not, to be bought out rather than to compete, that would not afford the slightest excuse in law for the unlawful acts of the defendants, since the exercise of a legal right cannot be affected by the motive which controls it. Sullivan v. Collins, 107 Wisconsin, 291; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Strait v. National Harrow Co., 51 Fed. Rep. 819; Northwestern Consolidated Milling Co. v. Callam & Son, 177 Fed. Rep. 786; Independent Baking Powder Co. v. Boorman, 130 Fed. Rep. 726. A combination of individuals engaged in interstate commerce is a veritable outlaw. It has no right to exist. And whatever it does “by reason” of which any person suffers injury, must be compensated for. The contention is that any and all injuries which may be suffered by reason of the competition induced by an unlawful combination in interstate commerce, must be BUCKEYE POWDER CO. ». DuPONT POWDER CO. 59 55. Argument for Plaintiff in Error. compensated for regardless of whether the acts which caused them were “fair” or “unfair,” and regardless of whether such acts might have been in themselves lawful. It has been several times held by this court that it is not alone the actual doing of the prohibited thing which the anti-trust acts strike at, but the power to do it. National Cotton Oil Co. v. Texas, 197 U. S. 115, 129; Swift & Co. v. United States, 196 U. S. 375; United States v. Trans-Missouri Freight Assn., 166 U. S. 290, 322; Monarch Tobacco Works v. American Tobacco Co., 165 Fed. Rep. 774, 780. The reasons given by customers for ceasing to do business with plaintiff, as shown by their letters and by their statements to its officers and agents, should have been received. The question of the admissibility of such evidence is no longer an open one since the decision in Lawlor v. Loewe, 235 U. S. 522. 3 Wigmore, Evidence, § 1729 (2); Elmer v. Fessenden, 151 Massachusetts, 161; Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 295. The testimony rejected by the trial court all touched upon the vital issue whether the acts charged against the defendants and their co-conspirators had really accomplished the object of “inducing” consumers not to use plaintiff’s product. The decrees in the “Government Case” which adjudged the defendants guilty of violation of the Sherman Act upon a state of facts almost identical with those presented in this case, and directed their dissolution, should have been received. Portland Gold Mining Co. v. Stratton’s Independence, 158 Fed. Rep. 63. The grounds upon which plaintiff relies to sustain admissibility are: (1) As evidence of the fact that the defendants had been adjudged guilty of forming the same combination and conspiracy in restraint of trade which was in issue. St. Louis Mutual Life Ins. Co. v. Cravens, 69 Missouri, 72; 1 Greenleaf, 60 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. Evidence (16th ed.), § 538; National Cash Register Case, 222 Fed. Rep. 599, 629; Coffey v. United States, 116 U. S. 436. (2) As an admission of guilt. Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683, 691; United States v. Parker, 120 U. S. 89; Nashville &c. Ry. Co. v. United States, 113 U. S. 261. As supporting the first of these grounds, it was important to consider that plaintiff’s president and chief promotor and sponsor made the petition which led to the government suit, assisted actively and was virtually treated as the plaintiff in that case,—facts which were fully brought out by the defendants in this one. As supporting the second ground, the decree in the government case was made by consent, after months of negotiation. Mr. William H. Button and Mr. Frank S. Katzeribach, Jr., with whom Mr. John P. Laffey was on the brief, for defendants in error. Mr. Justice Holmes delivered the opinion of the court. This is an action brought by the plaintiff in error to recover triple damages under the Sherman Act, July 2, 1890, c. 647, § 7, 26 Stat. 209, 210. There was a trial that lasted five months, in which the facts were shown at great length, and after a very full and fair charge by the presiding judge the jury found a verdict in favor of the principal defendant, the E. I. DuPont de Nemours Powder Company, on the merits, and for the other two by direction of the Court. Elaborate exceptions were taken but they were overruled by the Circuit Court of Appeals. 223 Fed. Rep. 881. 139 C. C. A. 319. The first one that we shall deal with complains of the Court’s sustaining a motion at the end of the trial that the plaintiff should elect whether it would rely upon the BUCKEYE POWDER CO. v. DuPONT POWDER CO. 61 55. Opinion of the Court. first or the second section of the Sherman Act. If the case were different the question presented might be grave. In the one before the Court the only error was in the use of the word election and the implied admission that the trial possibly could be taken not to have proceeded upon the second section of the act, coupled of course with § 7, giving a private action to persons injured by breach of the statute. The first section deals with contracts in restraint of trade, the second with monopolizing and attempting to monopolize it. The declaration, after stating the organization of the plaintiff in January, 1903, for the purpose of manufacturing and selling powder, particularly black blasting powder, alleges a long previous conspiracy on the part of various companies to monopolize the trade in explosives, which ended in the organization of the E. I. DuPont de Nemours Powder Company in May, 1903, in order more completely to carry out that end. It is alleged that the defendants and others have carried out that end, and that in pursuance of it they did acts, detailed at great length, for the purpose of compelling the plaintiff to join them or else go out of business. That, with an allegation that they succeeded and forced the plaintiff to sell out at a loss, is the whole scope of the declaration. There was a motion to strike it out for duplicity, but the motion was overruled on the ground that the declaration was as we have stated. 196 Fed. Rep. 514. The trial proceeded on that footing without complaint. So far as contracts bore upon the supposed attempt to subject plaintiff to the monopoly the jury was allowed to consider them. The case was fully tried upon the ground taken by the plaintiff at the outset and the only one on which it could hope to succeed. The plaintiff did not ask to amend. It is unnecessary to advert to the statement of the judge that in his opinion the exception to be considered should have the whole record behind it, or whether, as has been suggested, the 62 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. second section is not the only one addressed to transactions such as were alleged. Northern Securities Co. v. United States, 193 U. S. 197, 404. When the plaintiff, after the ruling of the judge, went through the form of electing to rely upon acts done contrary to § 2 of the statute, it simply adhered to the interpretation of its declaration that it had accepted at the beginning and had endeavored to sustain throughout. Portions of the charge are criticised in this connection for pointing out to the jury that § 2 embraced not only monopoly but attempts to monopolize. But this was wholly to the plaintiff’s advantage, as it explained that if the plaintiff was driven out of business by the defendant’s acts it was entitled to recover if those acts were done in the course of an attempt to monopolize, whether or not they were crowned with success. It allowed the jury to consider everything that indicated such an attempt. Next in importance is an exception to the Court’s directing a verdict in favor of the Eastern Dynamite Company and the International Smokeless Powder and Chemical Company. There were no acts done by either of these companies that were aimed at the plaintiff. The only substantial ground for charging them was that if they were parties to a conspiracy as alleged they became responsible for the acts of the DuPont Company as their own. As the jury exonerated the latter company this ground fails. So that even if the ruling was wrong it did no harm unless something more can be found in the case. Portland Gold Mining Co. v. Stratton’s Independence, 158 Fed. Rep. 63. The ruling did not import that there was no evidence against the DuPont Company, the case against which was put fairly to the jury, but that there was no evidence that the other defendants conspired with it, so far at least as the plaintiff was concerned. These companies did not make black blasting powder and had no interest immediately adverse to the plaintiff. BUCKEYE POWDER CO. v. DuPONT POWDER CO. 63 55. Opinion of the Court. The basis of the charge of conspiracy affecting the black blasting powder business was that the DuPont Company directly or through another company was interested in their stock. No other is suggested in the declaration and it would be hard to extract any act from the evidence. Certainly none could be found that was more than an infinitesimal fraction of those done by the DuPont Company. Here again the Court was of opinion that the exception to be considered should have the whole record behind it, but on the record as it stands we think it sufficiently appears that the plaintiff suffered no real harm. The next matter requires but a few words. The plaintiff offered in evidence decrees in a proceeding by the Government finding the DuPont Company guilty under the Sherman Act of an attempt to monopolize. 188 Fed. Rep. 127. These of course were held inadmissible. The Court also ruled that the statute of limitations barred recovery for any damage suffered before September 18, 1905, six years before the beginning of the present suit. The plaintiff now contends that the Clayton Act of October 15, 1914, c. 323, § 5, 38 Stat. 731, making admissible such criminal judgments “hereafter rendered,” in some way should affect our decision upon a ruling made years before, and that by virtue of the same section the running of the statute of limitations was suspended retrospectively as to claims already barred, pending the Government suit. These matters do not need more than a statement of what was argued and what was done. Another exception seems to us over-critical. Mr. Waddell, the organizer of the plaintiff corporation and chief witness on its behalf, started it directly after leaving the DuPont Company, with which he had been for many years. He knew all the elements of the situation before he embarked on the venture, and did not do so until the DuPont Company had reached the height of its power. The judge remarked in his charge that the plaintiff did 64 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. not stand like a competitor that had been in existence while the defendant’s influence was being developed and that had been injured in its business during the course of such development—that the mere existence of the defendant’s power as it was when the plaintiff was born was not in itself a cause of action to the plaintiff, but that the plaintiff must show that the defendant used its power oppressively, if not against the plaintiff, at least in the course of defendant’s business. This was innocuous truth. The plaintiff could not be called into being in order to maintain a suit for conduct that made it not pay to be born. Claims for such antenatal detriments are not much favored by the law. See National Council, United American Mechanics, v. State Council of Virginia, 203 U. S. 151, 161. Another statement in the charge concerning Mr. Waddell’s knowledge of the defendant’s power and policy is complained of, but the complaint seems to us based upon a perversion of its meaning. The defendant had put in evidence tending to show that Mr. Waddell organized the plaintiff merely to sell it out to the defendant, without any real intent to compete. The Court said that of course Mr. Waddell had a right to go into business and that his motive was of little moment so far as that was concerned, but that it might have a bearing on the question whether the plaintiff was sufficiently capitalized to meet normal conditions, adding that it did not matter whether it was or not as against a competition forced upon it by unlawful means. This is treated as if it had made the motive an answer to the claim. What it really did was to state correctly that, on the question whether the plaintiff’s failure was due to the defendant’s oppression or to the plaintiff’s incapacity, the jury in estimating the evidence and finding what the facts were might consider Mr. Waddell’s motive if they should find it to have been what the defendant alleged. We agree with the Circuit Court of Appeals that it is not WATTERS v. MICHIGAN. 65 55. Syllabus. necessary to deal specifically with all the details brought up by the dragnet of the plaintiff’s exceptions and assignments of error, sixty-nine in number and occupying more than sixty pages of the record. Central Vermont Ry. Co. v. White, 238 U. S. 507, 508, 509. Several exceptions were taken to the exclusion of statements by third persons of their reasons for refusing or ceasing to do business with the plaintiff. We should be slow to overthrow a judgment on the ground of either the exclusion or admission of such statements except in a very strong case. But the exclusion in this instance was proper. The statement was wanted not as evidence of the motives of the speakers but as evidence of the facts recited as furnishing the motives. Lawlor v. Loewe, 235 U. S. 522, 536; Elmer v. Fessenden, 151 Massachusetts, 359, 362. In view of the finding of the jury the rulings as to damages are immaterial and need no discussion here. The defendant put in evidence tending to show that its conduct was not the cause of the plaintiff’s failure, and its evidence, or the weakness of the plaintiff’s, prevailed. Our conclusion upon the whole case is that the plaintiff has had a fair trial and that the judgment should not be disturbed. Judgment affirmed. WATTERS v. PEOPLE OF THE STATE OF MICHIGAN. ERROR TO THE SUPREME COURT OF THE STATE OF MICHIGAN. No. 58. Submitted November 19,1918.—Decided December 9, 1918. Whether a city ordinance regulating peddling and canvassing from house to house for sale of property on subscription, is confined to a general course of such business or applies also to isolated transactions, is a local question determinable by the state court. 192 Michigan, 462, affirmed. * 66 OCTOBER TERM, 1918. Opinion òf the Court. 248 U. S. The case is stated in the opinion. Mr. Maurice B. Dean for plaintiff in error. No appearance for defendant in error. Mr. Justice Holmes delivered the opinion of the court. The plaintiff in error was complained of for having engaged in peddling goods and having canvassed and taken orders from house to house for the sale of goods in the city of Munising, Michigan, without having received a license as required by a city ordinance. It may be assumed that much the greater part of his business was interstate commerce and free from any obligation that the ordinance imposed. But in the course of his business he did sell two cans, of toilet cream that were at rest in the State before the sale, and it is admitted that this transaction was not protected from state legislation. Bacon v. Illinois, 227 U. S. 504. On this ground the Supreme Court of the State sustained a conviction and fine. 192 Michigan, 462. The ordinance makes it unlawful to engage in peddling any goods or to canvass from house to house for the sale of property on subscription without a license, which may be had on payment of specified fees. The plaintiff in error argues that the application of this law should be determined by the general course of business, not by an isolated transaction, and the argument has force. It depends, however, on the construction of the ordinance, and as the State Court has construed it to apply to and forbid the act proved, the judgment must be affirmed. Judgment affirmed. UNION PAC. R. R. CO. v. PUB. SERVICE COMM. 67 Argument for Defendant in Error. UNION PACIFIC RAILROAD COMPANY v. PUBLIC SERVICE COMMISSION OF MISSOURI. ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI. No. 65. Argued November 19,20, 1918.—Decided December 9, 1918. • A Utah corporation, operating an extensive railroad through several States, with but slight mileage, and small proportion of its property, and no intrastate business, in Missouri, seeking to issue over $30,000,000 bonds under mortgage of its whole line to meet expenditures incurred but in small part in that State, was charged for the privilege, by a Missouri commission, over $10,000, calculated by a percentage of the entire issue. Held, a direct, unconstitutional interference with interstate commerce. P. 69. This court must examine for itself whether there is any basis in fact for a finding by a state court that a constitutional right has been waived. P. 69. Where a State exacted an unconstitutional fee for a certificate of authority to issue railroad bonds, under statutes threatening heavy penalties and purporting to invalidate the bonds, and so rendering them unmarketable, if the certificate were not obtained, held, that application for and acceptance of the certificate, with payment under protest, were made under duress. P. 70. 268 Missouri, 641, reversed. The case is stated in the opinion. Mr. N. H. Loomis, with whom Mr. Henry W. Clark was on the briefs, for plaintiff in error. Mr. A. Z. Patterson, with whom Mr. Wm. G. Busby and Mr. James D. Lindsay were on the brief, for defendant in error: This court has no jurisdiction because the alleged federal question did not control nor even affect the decision of the state court. This court has repeatedly 68 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. ruled that where a state court has decided against the plaintiff in error on a matter of general law broad enough to sustain the judgment, this court will not consider the federal questions, even in cases where the state court actually considered and decided such questions adversely to plaintiff in error’s contention. Mr. Justice Holmes delivered the opinion of the court. This case concerns the validity of a charge made by the Public Service Commission of Missouri for a certificate authorizing the issue of bonds secured by a mortgage of the whole line of the Union Pacific road. The statutes of Missouri have general prohibitions against the issue of such bonds without the authority of the Commission, impose severe penalties for such issue and purport to invalidate the bonds if it takes place. Moreover the bonds would be unmarketable if the certificate were refused. Upon these considerations the plaintiff in error applied, in all the States through which its line passed, for a certificate authorizing the issue of bonds to the amount of $31,848,900. The Missouri Commission granted the authority and charged a fee of $10,962.25. The Railroad Company accepted the grant as required by its terms, but protested in writing against the charge as an unconstitutional interference with interstate commerce, and gave notice that it paid under duress to escape the statutory penalties and to prevent the revocation of the certificate. It moved for a rehearing on the ground that the statutes of Missouri, if they gave the Commission jurisdiction, did not purport to authorize the charge, or, if they did purport to do so and to invalidate an issue without the Commission’s assent, were in conflict with the Constitution of the United States. The rehearing was denied and thereupon the Railroad, pursuant to state law, applied to a local Court for a certiorari to set UNION PAC. R. R. CO. v. PUB. SERVICE COMM. 69 67. Opinion of the Court. the Commission’s judgment aside as an interference with interstate commerce and as bad under the Fourteenth Amendment. The Court decided that the charge was unreasonable and that the minimum statutory fee of $250 should have been charged. On appeal by the Commission the Supreme Court held the Railroad estopped by its application, reversed the Court below and upheld the charge. 268 Missouri, 641. The Railroad Company is a Utah corporation having a line over thirty-five hundred miles long, extending through several States, from Kansas City, Missouri, and elsewhere, to Ogden, Utah. It has only about six-tenths of one mile of main track in Missouri, and its total property there is valued at a little more than three million dollars, out of a total valuation of over two hundred and eighty-one millions. The bonds were to reimburse the Company for expenditures of which again less than one hundred and twenty-five thousand dollars had been made in Missouri. The business done by the Railroad in Missouri is wholly interstate. On these facts it is plain, on principles, now established, that the charge, which, in accordance with the letter of the Missouri statutes, was fixed by a percentage on the total issue contemplated, was an unlawful interference with commerce among the States. Looney v. Crane Co., 245 U. S. 178, 188. International Paper Co. v. Massachusetts, 246 U. S. 135. The Supreme Court of the State avoided this question by holding that the application to the Commission was voluntary and hence that the Railroad Company was estopped to decline to pay the statutory compensation. It is argued that a decision on this ground excludes the jurisdiction of this Court. But the later decisions show that such is not the law and that on the contrary it is the duty of this Court to examine for itself whether there is any basis in the admitted facts, or in the evidence when the facts are in dispute, for a finding that the federal 70 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. right has been waived. Creswill v. Knights of Pythias, 225 U. S. 246. Were it otherwise, as conduct under duress involves a choice, it always would be possible for a State to impose an unconstitutional burden by the threat of penalties worse than it in case of a failure to accept it, and then to declare the acceptance voluntary, as was attempted in Atchison, Topeka & Santa Fe Ry. Co. v. O’Connor, 223 U. S. 280. On the facts we can have no doubt that the application for a certificate and the acceptance of it were made under duress. The certificate was a commercial necessity for the issue of the bonds. The statutes, if applicable, purported to invalidate the bonds and threatened grave penalties if the certificate was not obtained. The Railroad Company and its officials were not bound to take the risk of these threats being verified. Of course, it was for the interest of the Company to get the certificate. It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called. The Eliza Lines, 199 U. S. 119, 130, 131. If, as may be, the Supreme Court of the State regards or will regard this statute as inapplicable, Public Service Commission v. Union Pacific R. R. Co., 271 Missouri, 258, probably the State would not wish to retain the charge, but we repeat, the Railroad Company was not bound to take the risk of the decision, and no proceeding has been pointed out to us by which it adequately could have avoided evils that made it practically impossible not to comply with the terms of the law, Atchison, Topeka & Santa Fe Ry. Co. v. O’Connor, 223 U. S. 280, 286. Judgment reversed. GULF OIL CORP. v. LEWELLYN. 71 Opinion of the Court. GULF OIL CORPORATION v. LEWELLYN, COLLECTOR OF INTERNAL REVENUE FOR THE TWENTY-THIRD DISTRICT OF PENNSYLVANIA. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT. No. 310. Argued November 4, 1918.—Decided December 9, 1918. Dividends of earnings by subsidiaries to a company holding all their stock and controlling them in conducting a single enterprise, the result of the transfers being merely that the main company became the holder of debts in the business, previously due from one subsidiary to another, held not taxable as income under the Income Tax Act of October 3, 1913, where the earnings were accumulated before the taxing year and had practically become capital. Southern Pacific Co. v. Lowe, 247 U. S. 330. 245 Fed. Rep. 1, reversed. The case is stated in the opinion. Mr. Wm. A. Seifert, with whom Mr. J. H. Beal was on the brief, for petitioner. Mr. William C. Herron for respondent. Mr. Justice Holmes delivered the opinion of the court. This is a suit to recover a tax levied upon certain dividends as income, under the Act of October 3, 1913, c. 16, § II, 38 Stat. 114, 166. The District Court gave judgment for the plaintiff, 242 Fed. Rep. 709, but this judgment was reversed by the Circuit Court of Appeals. 245 Fed. Rep. 1. 158 C. C. A. 1‘. The facts may be abridged from the findings below as follows. The petitioner was a holding company owning 72 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. all the stock in the other corporations concerned except the qualifying shares held by directors. These companies with others constituted a single enterprise, carried on by the petitioner, of producing, buying, transporting, refining and selling oil. The subsidiary companies had retained their earnings, although making some loans inter se, and all their funds were invested in properties or actually required to carry on the business, so that the debtor companies had no money available to pay their debts. In January, 1913, the petitioner decided to take over the previously accumulated earnings and surplus and did so in that year by votes of the companies that it controlled. But, disregarding the forms gone through, the result was merely that the petitioner became the holder of the debts previously due from one of its companies to another. It was no richer than before, but its property now was represented by stock in and debts due from its subsidiaries, whereas formerly it was represented by the stock alone, the change being effected by entries upon the respective companies’ books. The earnings thus transferred had been accumulated and had been used as capital before the taxing year. Lynch v. Turrish, 247 U. S. 221, 228. We are of opinion that the decision of the District Court was right. It is true that the petitioner and its subsidiaries were distinct beings in contemplation of law, but the facts that they were related as parts of one enterprise, all owned by the petitioner, that the debts were all enterprise debts due to members, and that the dividends represented earnings that had been made in former years and that practically had been converted into capital, unite to convince us that the transaction should be regarded as bookkeeping rather than as “dividends declared and paid in the ordinary course by a corporation.” Lynch v. Hornby, 247 U. S. 339, 346. The petitioner did not itself do the business of its subsidiaries and have STERRETT v. SECOND NATIONAL BANK. 73 71. Counsel for Petitioner. possession of their property as in Southern Pacific Co. v. Lowe, 247 U. S. 330, but the principle of that case must be taken to cover this. By § II, G, (c), 38 Stat. 174, and S, id. 202, the tax from January 1 to February 28, 1913, is levied as a special excise tax, but in view of our decision that the dividends here concerned were not income it is unnecessary to discuss the further question that has been raised under the latter clause as to the effect of the fact that excise taxes upon the subsidiary corporations had been paid. Judgment reversed. STERRETT, AS RECEIVER OF THE ALABAMA TRUST & SAVINGS COMPANY, v. SECOND NATIONAL BANK OF CINCINNATI, OHIO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 378. Argued November 8, 1918.—Decided December 9, 1918. A chancery receiver has no authority to sue in the courts of a foreign jurisdiction to recover demands or property therein situated. Booth v. Clark, 17 How. 322. P. 76. Certain Alabama laws, relating to the administration of the assets of insolvent banking and other corporations (Code, 1907, §§ 3509, 3511, 3512, 3560), held not to vest title in the receiver so as to enable him to sue in the District Court in another State without an ancillary appointment. P. 77. 246 Fed. Rep. 753, affirmed. The case is stated in the opinion. Mr. Edmund H. Dryer, with whom Mr. Philip Roet-tinger and Mr. S. C. Roettinger were on the briefs, for petitioner. 74 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. Mr. Lawrence Maxwell, with whom Mr. Charles M. Leslie was on the brief, for respondent. Mr. Justice Day delivered the opinion of the court. The plaintiff, as receiver of the Alabama Trust & Savings Company, a banking corporation organized under the laws of the State of Alabama, filed his bill in the United States District Court for the Southern District of Ohio, against the Second National Bank of Cincinnati, to recover sums of money for which he alleged the Second National Bank was liable on account of certain transactions which had taken place between the National Bank and the Savings Company and its officers, the details of which it is unnecessary to set forth. Upon final hearing the District Court found the defendant liable for the application of a balance of the Savings Company’s deposit in the National Bank, upon paper held by it on which the Savings Company appeared as principal maker, but which was found to have been given for the benefit of certain of the Savings Company’s officers. Plaintiff’s remaining claims were rejected. Both parties appealed to the Circuit Court of Appeals for the Sixth Circuit, which reversed the decree of the District Court, upon the ground that the Receiver had no authority to bring the suit, (246 Fed. Rep. 753) and the case is here on writ of certiorari to the Circuit Court of Appeals. In the year 1911 certain creditors of the Savings Company, an Alabama corporation, filed a bill against it in a chancery court of Alabama alleging its insolvency. The chancery court on April 27, 1911, rendered a final administration decree, wherein it found that the defendant Savings Company was insolvent; that its assets constituted a trust fund for the payment of its creditors, and the same should be marshalled and administered in that court; that the defendant was a corporation organized under the General Laws of Alabama; that upon final STERRETT v. SECOND NATIONAL BANK. 75 73. Opinion of the Court. settlement it should be dissolved; that it had suspended business and was not about to resume the same, and could not do so with safety to the public; that, therefore, W. C. Sterrett be appointed receiver of defendant, and empowered and directed to demand and take into his possession all of the defendant’s assets and property to which it was entitled and to recover the same and reduce it to money, and administer the same under the further order of the court. And the court further authorized the Receiver to employ counsel and to bring such actions at law or in equity as he might be advised and to incur such expenses as might be necessary. Later, on March 8th, 1912, the Alabama chancery court specifically directed the Receiver, plaintiff herein, to bring this suit in the District Court of the United States for the Southern District of Ohio, Western Division. The material parts of the sections of the Code of Alabama, (1907, vol. II, pp. 430, 433) pertinent to this case, provide as follows: “3509. . . . The assets of insolvent corporations constitute a* trust fund for the payment of the creditors of such corporations, which may be marshalled and administered in courts of equity in this state.” Section 3511 provides for the dissolution of corporations by action of the stockholders, and enacts that the court . Shall appoint a receiver of all the books, property, and assets of the corporation . . . [who] shall, under the direction of the court, collect all debts due the corporation, and sell all the property, real and personal, of the corporation, pay the debts thereof ratably or in full as the funds realized may admit, and divide the residue after the debts and costs are paid, among the several classes of stockholders, according to the amount owned by each, and according to the preferences, if any, of the several classes as provided in the certificates of incorporation.” 76 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. Section 3512 covers the application for receivership and dissolution of insolvent corporations upon bill of creditors or stockholders in the chancery court, and provides: “. . . The court . . . may appoint a receiver of all the property and assets of the corporation, . . . [who] under the direction of the court, must exercise the same powers and perform the same duties as are required of receivers in the next preceding section, and otherwise manage the affairs of the corporation pending final settlement thereof as the court shall direct. . . .” There is also a provision for proceedings by the attorney general (p. 444): “3560. Proceedings when bank found not solvent.— Whenever the treasurer finds that a bank or corporation chartered by the laws of this state and doing a banking business, is not in a solvent condition, he shall immediately report the condition of the bank to the governor, and the governor shall direct the attorney-general to institute proceedings in a court having jurisdiction in the county where the bank or parent bank is located, to put the bank in the hands of some competent person, who shall give bond in an amount to be fixed by the judge for the faithful discharge of his duties, and said person so appointed shall immediately take charge of the business of said bank, collecting its assets and paying off its liabilities under the law and rules of such court.” The question presented for our consideration is whether the receiver appointed in the chancery court is authorized to sue in the federal court for the recovery of such property. Since the decision of this court in Booth v. Clark, 17 How. 322, it is the settled doctrine in federal jurisprudence that a chancery receiver has no authority to sue in the courts of a foreign jurisdiction to recover demands or property therein situated. The functions and authority of such receiver are confined to the jurisdiction in which STERRETT v. SECOND NATIONAL BANK. 77 73. Opinion of the Court. he was appointed. The reasons for this rule were fully discussed in Booth v. Clark, and have been reiterated in later decisions of this court. Hale v. Allinson, 188 U. S. 56; Great Western Mining Co. v. Harris, 198 U. S. 561, 575, 577; Keatley v. Furey, 226 U. S. 399, 403. This practice has become general in the courts of the United States, and is a system well understood and followed. It permits an application for an ancillary receivership in a foreign jurisdiction where the local assets may be recovered and, if necessary, administered. The system established in Booth v. Clark has become the settled law of the federal courts, and if the powers of chancery receivers are to be enlarged in such wise as to give them authority to sue beyond the jurisdiction of the appointing court, such extension of authority must come from legislation and not from judicial action. Great Western Mining Co. v. Harris, supra, p. 577. Counsel for petitioner insists that the case is not ruled by the doctrine of Booth v. Clark, and that under the Alabama statutes and the decisions of the Supreme Court of that State the title to the property of the Trust Company is vested in the Receiver in such wise that he is authorized to sue for its recovery in the courts of a foreign jurisdiction. If this contention is well founded there is no question of the authority of the Receiver to prosecute the action. Relfe v. Rundle, 103 U. S. 222; Hawkins v. Glenn, 131 U. S. 319; Bernheimer v. Converse, 206 U. S. 516, 534; Converse v. Hamilton, 224 U. S. 243,257; Keatley v. Furey, 226 U. S. 399, 403. The Alabama cases, Oates v. Smith, 176 Alabama, 39; Montgomery Bank & Trust Co. v. Walker, 181 Alabama, 368; Cobbs v. Vizard Investment Co., 182 Alabama, 372; Coffey v. Gay, 191 Alabama, 137; Hundley v. Hewitt, 195 Alabama, 647, are fully reviewed in the opinion of the Circuit Court of Appeals. To rehearse them now would be but a repetition of what is said in that opinion. 78 OCTOBER TERM, 1918. Syllabus. 248 U. S. An examination of the sections of the statutes, here involved, in the light of the decisions of the Supreme Court of Alabama, does not in our opinion warrant the conclusion that title is vested in the Receiver as assignee or as statutory successor of the insolvent corporation in such wise as to authorize the action to recover in a foreign jurisdiction. Collectively, these sections provide for a receivership to administer the property and assets of the insolvent corporation under the authority and direction of the appointing court. The statutes do not undertake to vest in the receiver an estate in the property to be administered for the benefit of creditors, as was the case in Bernheimer v. Converse, 206 U. S. 516; Converse v. Hamilton, 224 U. S. 243, in which the right to sue in the courts of a foreign jurisdiction was sustained. The Circuit Court of Appeals left open the question of the right to apply for an ancillary receivership in the District Court, and the effect of such appointment, if made, upon the pending suit. We pursue the like course, and as such an application could only originate in the District Court we express no opinion concerning it. The decree of the Circuit Court of Appeals is Affirmed. ALASKA PACIFIC FISHERIES v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 212. Argued November 4, 1918.—Decided December 9, 1918. For safeguarding and advancing a dependent Indian people, resident on islands belonging to the United States in the Territory of Alaska, Congress has power to reserve for their use, until otherwise provided by law, not only the upland of the islands but also the ad- ALASKA PACIFIC FISHERIES v. UNITED STATES. 79 78. Argument for Appellant. jacent submerged land and deep waters supplying fisheries essential to the Indians’ welfare. P. 87. An act of Congress set aside, “until otherwise provided by law the body of lands known as Annette Islands,” in Alaska, for the use of the Metlakahtla Indians (recently emigrated from British Columbia and settled on the islands with the encouragement of executive and administrative officers,) and such other Alaskan natives as might join them, to be held and used by them in common, under regulations of the Secretary of the Interior. The islands were a well-defined group, uninhabited before the coming of the Indians, who were peculiarly dependent on the adjacent fisheries. Held, in view of the circumstances at time of the enactment and its subsequent construction, that the reservation included adjacent deep waters; and that a fish net constructed therein by defendant 600 feet beyond high tide line, and whose operation might materially reduce the supply of fish accessible to the Indians, was subject to abatement at the suit of the United States. P. 89. 240 Fed. Rep. 274, affirmed. The case is stated in the opinion. Mr. John A. Hellenthal in a brief for appellant: The act is explicit, reserving only the “body of lands known as Annette Islands.” The water surrounding an island forms no part of it. Grants of land on navigable water go only to ordinary high tide. Public navigable waters are not part of the public domain. In a Territory, the United States holds them, not as land-owner, but as sovereign, in trust for all the people, who have common rights therein of fishery and navigation. And this right of fishery is a property right. McCready v. Virginia, 94 U. S. 391; Rossmiller v. State, 114 Wisconsin, 169. The Government as in the case of a State may regulate the use for the benefit of all, but neither can create a private fishing reserve for the benefit of a few to the exclusion of all others. Illinois Central R. R. Co. v. Illinois, 146 U. S. 387; Arnold v. Mundy, 6 N. J. L. 1; Illinois Central R. R. Co. v. Chicago, 176 U. S. 646; Martin v. Waddell, 16 Pet. 345; Pewaukee v. Savoy, 103 Wis- 80 OCTOBER TERM, 1918. Argument for Appellant. 248 U. S. consin, 271; Rossmiller v. State, supra. These authorities show that a State cannot substantially impair the public rights of fishery and navigation, but is bound to preserve the public waters so that the people may be able to exercise these rights forever. These rights are no different and are no less binding on the Government when, the waters being in a Territory, title is held in trust for a future State. Shively v. Bowlby, 152 U. S. 1. The authority of the sovereign to make grants below high-water mark depends in each case upon whether the value of the public right will be enhanced or destroyed. Manchester v. Massachusetts, 139 U. S. 240. This is recognized in Illinois Central R. R. Co. v. Illinois, supra, as applied to a State. It applies also to the United States, in Alaska, where the Constitution is in full force. Rasmussen v. United States, 197 U. S. 516. See United States v. Mackey, 214 Fed. Rep. 146; Shively v. Bowlby, supra; Illinois Steel Co. v. Bilot, 109 Wisconsin, 418. Grants of limited exclusive privileges, as for those who produce new supplies of fish or oysters, are upheld as benefiting the public right. Commonwealth v. Weatherhead, 110 Massachusetts, 175; Rowe v. Smith, 48 Connecticut, 444; Commonwealth v. Vincent, 108 Massachusetts, 441. The effect of the proclamation is to create an exclusive fishery for the benefit of the Metlakahtlans. This is quite different from a withdrawal from entry of public land. United States v. Midwest Oil Co., 236 U. S. 459. The Constitution nowhere confers upon the President any special power respecting navigable waters or fisheries; and the common law, in the light of which the Constitution must be considered, recognized no such right in the King. The fisheries in the navigable waters belong to the people at large. The Government has no interest therein which it can reserve for the use of any individual or class. The President cannot include such waters in an Indian reservation. United States v. Ashton, 170 Fed. Rep. 509. ALASKA PACIFIC FISHERIES v. UNITED STATES. 81 78. Argument for Appellant. The proclamation is contrary to § 254, Alaska Compiled Laws, prohibiting aliens from fishing in Alaskan waters. The Metlakahtlans are not natives of Alaska. The fish-trap was not a purpresture. It was sanctioned by §§ 261, 262, c. 3, Alaska Compiled Laws, and in the exercise of appellant’s right of fishing. Lincoln v. Davis, 53 Michigan, 375. It was vested property. McCready v. Virginia, supra; Farnham on Waters, § 394; Lewis v. Portland, 25 Oregon, 133; Pitkin v. Olmstead, 1 Root (Conn.), 217; Lay v. King, 5 Day (Conn.), 72; Gallup v. Tracy, 25 Connecticut, 10; Post v. Kreischer, 32 Hun (N. Y.), 49; Glover v. Powell, 10 N. J. Eq. 211. The trap did not obstruct navigation, and authority under the Rivers and Harbors Act was not required. Mr. C. H. Hanford argued the case for appellant: The injunction strikes a legitimate business. The proclamation creates a private monopoly out of what by right is common to all. It is contrary to public policy. The act is not ambiguous and to strain its construction would not be permissible in the interest of the Indians who are neither wards of the Nation nor in need of charity. Government surveys of land stop at the water’s edge. Barney v., Keokuk, 94 U. S. 324-328; Mann v. Tacoma Land Co., 153 U. S. 273-286. Hence, a grant or reservation of a body of land described as an island is a tract having a water boundary; all within the line of separation between the solid and liquid elements constitutes the granted or reserved tract. Shively v. Bowlby, 152 U. S. 1. The only absolute right appurtenant to land bounded by navigable water is the right of access. An exclusive right was not necessary, in the case of these Indians, to the beneficial pursuit of their calling as fishermen. An exclusive right of fishery offshore is different from a right appertaining to land, so different in essence, so extraordinary, and so unnecessary to the beneficial use 82 OCTOBER TERM, 1918. Argument for Appellant. 248 U. S. of land, that it does not come within the category of rights appurtenant to the title to real estate. Baron v. Alexander, 206 Fed. Rep. 272; Parker v. People, 111 Illinois, 588. Cf. Kennedy v. Becker, 241 U. S. 556. Russian-American Co. v. United States, 199 U. S. 579, distinguished. The act is special, to be strictly construed. Expressum fadt cessare taciturn. The President is unauthorized to appropriate any part of the public domain for alien Indians. 18 Opin. Atty. Gen. 557. Congress alone has power to make rules and regulations respecting Alaska, and its governmental power is to be exercised with a view to the erection of new States to enter the Union on an equal footing with the original States. Congress has declared the status of Alaska to be territory eligible to become one or more States of the Union which will have governmental and proprietary rights with respect to its waters. Act of May 14,1898, 30 Stat. 409; Alaska Compiled Laws, 1913, § 92. The proclamation is the first and only public assertion of exclusive rights of fishery in the public waters of Alaska. It was not issued until after the appellant located and constructed its fish-trap, involving a large investment, with due observance of the fishing laws. Since Magna Charta control and regulation of fishing rights has been by the common law of England a legislative function, Crown grants of exclusive rights being expressly forbidden; and in the jurisprudence of this country based upon the common law, the right of fishery in public waters belongs to all the people, controlled and regulated within the States by statutes enacted by their respective legislatures. Gould on Waters, 3d ed., §§ 1, 2, 30, 32, 34, 36, 39, 189; McCready v. Virginia, 94 U. S. 391; Manchester v. Massachusetts, 139 U. S. 259, 260; United States v. Shauver, 214 Fed. Rep. 157; United States v. McCullagh, 221 Fed. ALASKA PACIFIC FISHERIES v. UNITED STATES. 83 78. Argument for the United States. Rep. 292. This means that in a Territory the subject can only be regulated by acts of Congress. The Government is not the real party in interest, but appears as a volunteer for the benefit of others to whom it is not legally or morally obligated. United States v. San Jacinto Tin Co., 125 U. S. 273, 286. The fish-trap is a lawful structure on a lawful site. The Rivers and Harbors Act affords no justification for an injunction in this case. Mr. Assistant Attorney General Brown for the United States: The power of the Government to reserve parts of the public domain for the exclusive use of Indian tribes is undoubted. This reservation was not for the Metlakaht-lans alone, and they, besides, had acquired the same status as other Indian peoples longer resident within the bounds of our country. The locus in question is part of the public domain within this rule. The United States has a title in these waters which it could even grant outright to individuals. Shively v. Bowlby, 152 U. S. 1. Undoubtedly, the United States has exercised sparingly its power to make such grants—they are not made under general laws—and has recognized that such lands, chiefly valuable for the public purposes of commerce, navigation and fishery, should be held as a whole, to be ultimately dealt with by the future State. See Mann y. Tacoma Land Co., 153 U. S. 273. If, however, it be said that this is a holding in trust, it is a trust like that under which all the public lands of the Nation are held for the people of the whole country. United States v. Trinidad Coal Co., 137 U. S. 160. “It is not for the courts to say how that trust shall be administered.” Light v. United States, 220 U. S. 523, 537. So far as the policy interposes any check upon the free dis- 84 OCTOBER TERM, 1918. Argument for the United States. 248 U. S. position of these tide lands it is a check upon the conscience and guide to the intelligence of Congress and is not a limitation upon its power. Where the grant is reasonably in aid of a public purpose, the power of the United States to make the grant is absolute. The power to make the reservation is superior to any right of fishery the appellant may claim, and most especially the right to maintain a permanent fish-trap, affixed to the soil and necessarily excluding all others. A general right of fishery at common law, if existing, is inapplicable to these waters, which were derived by the United States from the Emperor of all the Russias, with all the rights, franchises and privileges belonging to Russia when the cession was made. Treaty of 1867, 15 Stat. 539. Under the law of Russia, such property was at the sovereign’s disposal. Russian Civil Code, bk. II, tit. I, c. II, arts. 248, 251; ib. tit. II, c. I, arts. 263, 264; Code Civil de 1’Empire de Russie. Traduit sur les editions officielles par un Jurisconsulte Russe (with a prefatory essay by Victor Poucher, Advocat-General du Roi), Paris, 1841. The United States succeeded to the rights of the Czar. Strother v. Lucas, 12 Pet. 410. There is, however, no such general right of fishery as the appellant asserts, effective against a reservation of the waters, for a public purpose, by the United States. The rights of a State in tide-lands depend in each case on the local law. Packer v. Bird, 137 U. S. 661; Hardin v. Jordan, 140 U. S. 371; Illinois Central R. R. Co. v. Chicago, 176 U. S. 646, 659. The state laws differ widely, and state decisions must therefore be applied with caution. Shively v. Bowlby, supra, p. 26. But it is established law in substantially every State of the Atlantic and Gulf seaboard that the sovereign may grant rights of fishery despite the alleged general right of the public [citing numerous state grants]. It is true these legislative grants are in general designed to encourage development of the fishing, espe- ALASKA PACIFIC FISHERIES v. UNITED STATES. 85 78. Argument for the United States. cially the shell-fish, industry thus benefiting the public; but they are exclusive, and they do not, as appellant contends, add value to the public right of fishing. Such grants can serve no higher public purpose than does this Indian reservation. Arnold v. Mundy, 6 N. J. L. 1, seems to have been overruled, Shively V. Bowlby, supra; Stevens v. Patterson &c. R. R. Co., 5 Vroom, 532; Pennsylvania R. R. Co. v. New York &c. R. R. Co., 23 N. J. Eq. 157; Hoboken v. Pennsylvania R. R. Co., 124 U. S. 656, 688, 690, 691; and if accepted as law is fatal to appellant’s claim of a vested right in an exclusive location. McCready v. Virginia, 94 U. S. 391, upholds the state power, as does also Lincoln v. Davis, 53 Michigan, 375. See Donnelly v. United States, 228 U. S. 243; s. c. 228 U. S. 708, 711. Illinois Central R. R. Co. v. Illinois, 146 U. S. 387, decided a question of Illinois law on peculiar facts, and did not involve rights of the United States. A grant to a railroad for its own profit generally of the control of practically the entire harbor of Chicago was held revocable. Here there is but a reservation, expressly revocable, for a public purpose. The Illinois Case contains dicta, doubtless among those referred to disapprovingly in Shively v. Bowlby. The act of Congress contemplated not only the reservation of the uplands of “that body of lands known as Annette Islands,” but also of the adjacent waters and, fairly construed, was such a reservation. In any event the President’s proclamation of April 28, 1916, was an effective exercise of the power of the United States to reserve such adjacent waters. The proclamation was within the authorization of § 465, Rev. Stats. The fish-trap, erected without license, was a pur-presture and the appellant a mere trespasser. Webber v. Harbor Commissioners, 18 Wall. 57; Russian-American Co. v. United States, 199 U. S. 570. 86 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. The trap was erected in violation of the Rivers and Harbors Act of 1899. Mr. Justice Van Devanter delivered the opinion of the court. This is a suit by the United States to enjoin the Alaska Pacific Fisheries, a California corporation, from maintaining, and to compel it to remove, an extensive fish-trap erected by it in navigable waters at the Annette Islands in Alaska. The objections urged against the trap are, first, that it is within a reservation lawfully established for the use of the Metlakahtla and other Indians, and, second, that it is an unauthorized obstruction to the navigable capacity of waters of the United States. A decree was entered granting the refief sought, and this was affirmed by the Circuit Court of Appeals. 240 Fed. Rep. 274. The Annette Islands are a group of small islands in southeastern Alaska. During the summer of 1887 some 800 Metlakahtla Indians emigrated from British Columbia and settled on one of these islands. The emigration and settlement were not only acquiesced in but encouraged by executive and administrative officers of the United States,1 and subsequently were sanctioned by Congress through the enactment of § 15 of the Act of March 3, 1891, c. 561, 26 Stat. 1101. That section reads as follows: “That until otherwise provided by law the body of lands known as Annette Islands, situated in Alexander Archipelago in Southeastern Alaska, on the north side of Dixon’s entrance, be, and the same is hereby, set apart as a reservation for the use of the Metlakahtla Indians, and those people known as Metlakahtlans who have recently emigrated from British Columbia to Alaska, and such 1 House Ex. Docs., 50th Cong., 1st sess., vol. 10, p. 64, vol. 13, p. 34; Sen. Mis. Doc., No. 144, 53d Cong., 2d sess.; Sen. Doc., No. 275, 55th Cong., 2d sess. ALASKA PACIFIC FISHERIES v. UNITED STATES. 87 78. Opinion of the Court. other Alaskan natives as may join them, to be held and used by them in common, under such rules and regulations, and subject to such restrictions, as may [be] prescribed from time to time by the Secretary of the Interior.” The fish-trap was erected in 1916 without the consent of the Indians or the Secretary of the Interior. It is a formidable structure consisting of heavy piling and wire webbing, is located in water of considerable depth, approximately 600 feet from the high tide line of the island on which the Indians settled, is intended to catch about 600,000 salmon in a single season, and its operation will tend materially to reduce the natural supply of fish accessible to the Indians. The principal question for decision is whether the reservation created by the Act of 1891 embraces only the upland of the islands or includes as well the adjacent waters and submerged land. The question is one of construction—of determining what Congress intended by the words 1 ‘the body of lands known as Annette Islands.” As an appreciation of the circumstances in which words are used usually is conducive and at times is essential to a right understanding of them, it is important, in approaching a solution of the question stated, to have in mind the circumstances in which the reservation was created—the power of Congress in the premises, the location and character of the islands, the situation and needs of the Indians and the object to be attained. That Congress had power to make the reservation inclusive of the adjacent waters and submerged land as well as the upland needs little more than statement. All were the property of the United States and within a district where the entire dominion and sovereignty rested in the United States and over which Congress had complete legislative authority. National Bank v. County of Yankton, 101 U. S. 129, 133; Shively v. BowTby, 152 88 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. U. S. 1, 47-48, 58; United States v. Winans, 198 U. S. 371, 383. The reservation was not in the nature of a private grant, but simply a setting apart, “until otherwise provided by law,” of designated public property for a recognized public purpose—that of safe-guarding and advancing a dependent Indian people dwelling within the United States. See United States v. Kagama, 118 U. S. 375, 379, et seq.; United States v. Rickert, 188 U. S. 432, 437. The islands are in the interior of the Alexander Archipelago and separated from other islands by well known bodies of water. Before the Metlakahtla settlement they were wild and uninhabited. While bearing a fair supply of timber, only a small portion of the upland is arable, more than three-fourths consisting of mountains and rocks. Salmon and other fish in large numbers frequent and pass through the waters adjacent to the shore and the opportunity thus afforded for securing fish for local consumption and for salting, curing, canning and sale gives to the islands a value for settlement and in-habitance which otherwise they would not have. The purpose of the Metlakahtlans, in going to the islands, was to establish an Indian colony which would be self-sustaining and reasonably free from the obstacles which attend the advancement of a primitive people. They were largely fishermen and hunters, accustomed to five from the returns of those vocations, and looked upon the islands as a suitable location for their colony, because the fishery adjacent to the shore would afford a primary means of subsistence and a promising opportunity for industrial and commercial development. After their settlement and before the reservation was created, the Indians, under the guidance of a noted missionary, adopted a form of self-government suited to their needs; established for themselves a village with substantial dwellings, schoolhouses and the like, and ALASKA PACIFIC FISHERIES v. UNITED STATES. 89 78. Opinion of the Court. constructed and installed an extensive establishment where they canned salmon for the market.1 The purpose of creating the reservation was to encourage, assist and protect the Indians in their effort to train themselves to habits of industry, become self-sustaining and advance to the ways of civilized life. True, the Metlakahtlans were foreign bom, but the action of Congress has made that immaterial here. The circumstances which we have recited shed much light on what Congress intended by “the body of lands known as Annette Islands.” The Indians could not sustain themselves from the use of the upland alone. The use of the adjacent fishing grounds was equally essential. Without this the colony could not prosper in that location. The Indians naturally looked on the fishing grounds as part of the islands and proceeded on that theory in soliciting the reservation. They had done much for themselves and were striving to do more. Evidently Congress intended to conform its action to their situation and needs. It did not reserve merely the site of their village, or the island on which they were dwelling, but the whole of what is known as Annette Islands, and referred to it as a single body of lands. This, as we think, shows that the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands. This conclusion has support in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally constmed, doubtful expressions being resolved in favor of the Indians. Choate v. Trapp, 224 U. S. 665, 675, and cases cited. And it has further support in the facts that, save for the de- 1 House Ex. Docs., 50th Cong., 2d sess., vol. 10, p. cii; House Mis. Docs., 52d Cong., 1st sess., vol. 50, part 9, pp. 27-29,188. 90 OCTOBER TERM, 1918. Syllabus. 248 U. S. fendant’s conduct in 1916, the statute from the time of its enactment has been treated, as stated in the opinion of the Alaska court, by the Indians and the public, as reserving the adjacent fishing grounds as well as the upland, and that in regulations prescribed by the Secretary of the Interior on February 9, 1915, the Indians are recognized as the only persons to whom permits may be issued for erecting salmon traps at these islands. These views are decisive of the suit and sustain the decree below. Decree affirmed. UNITED DRUG COMPANY v. THEODORE RECTANUS COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. No. 27. Argued March 12,13,1918.—Decided December 9, 1918. A right of trade-mark is not a right in gross; it exists only as appurtenant to an established business and for the protection of the good will thereof. P. 97. The adoption of a trade-mark does not project the right of protection in advance of the extension of the trade. P. 98. Where A had a trade-mark in Massachusetts, in connection with a business there and in neighboring States, and B, afterwards, in good faith, without notice of A’s use or intent to injure or forestall A, adopted the same mark in Kentucky, where A’s business theretofore had not extended, and built up a valuable business under it there, held, that A, upon entering B’s field with notice of the situation, had no equity to enjoin B as an infringer, but was estopped. P. 103. 226 Fed. Rep. 545, affirmed. The case is stated in the opinion. UNITED DRUG CO. v. RECTANUS CO. 91 90. Argument for Petitioner. Mr. Laurence A. Janney, with whom Mr. Alexis C. Angell and Mr. Frederick L. Emery were on the briefs, for petitioner: When the first user of a trade-mark, reasonably diligent in extending the territory of his trade, ultimately engages, in good faith, in competition with a later user in a common market under the same mark, the first user is entitled to an injunction. Whether the first user has been reasonably diligent is a question of fact in each case. Mrs. Regis did her utmost to promote her business; did no act which amounted to an abandonment of any territory; by federal registration she gave notice of her countrywide claim. If the first user innocently promotes his business, and in the course of a natural growth encounters competition of a later user, he has acted in good faith, particularly if he has been, until the beginning of competition, ignorant of the later user’s activities, as in the case at bar. The application of this principle would be nothing more than a recognition of the prior legal title and the prior equity of the first as against a mere subsequent equity of the later user. It would also protect the public against confusion and deception. In granting the injunction, the District Court accepted the rules laid down in McLean v. Fleming, 96 U. S. 245; Menendez v. Holt, 128 U. S. 514; Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19; Saxlehner v. Siegel-Cooper Co., 179 U. S. 42; and interpreted those decisions as they had been interpreted for many years. The Circuit Court of Appeals attempted to distinguish them on the ground that the defendants had not acted innocently. But this court did not treat that fact as controlling; and the decisions would have been the same if each party had proceeded in ignorance of the other’s acts. In the Siegel-Cooper Case, defendant’s innocence was not held to exonerate it from the charge of infringement nor to relieve it from liability to injunction. See also Merriam v. Smith, 11 Fed. Rep. 588. 92 OCTOBER TERM, 1918. Argument for Petitioner., 248 U. S. The McLean Case presents all the elements of an estoppel, and this court so held in denying an accounting. The complainant knowingly acquiesced in the respondent’s use of the mark, and the respondent knowingly relied thereon and made his investment accordingly. He had acted innocently and in good faith. Nevertheless, the court sanctioned complainant’s repudiation of acquiescence and did not exonerate the respondent from the charge of infringement. The decision was no doubt influenced largely by the obligation to protect the public. In Menendez v. Holt, the McLean Case was followed. The Court of Appeals erred in holding that Rectanus had a right to assume that he was entitled to continue using the mark because he remained ignorant of any adverse rights. He has no better excuse than had the defendant in the McLean Case. If any estoppel could arise from acquiescence, the intentional acquiescence of complainants in the McLean and Menendez Cases would create estoppels much more surely than the conduct of Mrs. Regis and her successor in this case. It is the conduct of the party against whom the estoppel is urged which determines the existence of estoppel. The Saxlehner Cases sustain the contention that innocence on the part of defendants is not a defense; that their ignorance or knowledge cannot possibly determine the existence of estoppel against the complainant. See also Merriam v. Smith, 11 Fed. Rep. 588; New York Grape Sugar Co. v. Buffalo Grape Sugar Co., 18 Fed. Rep. 638; Sawyer Spindle Co. v. Taylor, 56 Fed. Rep. 110; 69 Fed. Rep. 837; Taylor v. Sawyer Spindle Co., 75 Fed. Rep. 301; Ide v. Trorlicht, 115 Fed. Rep. 137; Fahrney v. Ruminer, 153 Fed. Rep. 735; Layton Pure Food Co. v. Church & Dwight Co., 182 Fed. Rep. 35; Paul, Trade-Marks, par. 109; Hopkins, Trade-Marks, 2d ed., par. 75, p. 172. The well settled rules governing estoppel in general UNITED DRUG CO. v. RECTANUS CO. 93 90. Opinion of the Court. preclude the possibility of finding that Mrs. Regis and her successor are estopped in the circumstances at bar. See Bigelow, Estoppel, 5th ed. The cases of Carroll v. Mcllvaine, 171 Fed. Rep. 125; 183 Fed. Rep. 22; Mac-mahan Co. v. Denver Co., 113 Fed. Rep. 468; and Hanover Milling Co. v. Allen & Wheeler Co., 208 Fed. Rep. 513; s. c. Hanover Milling Co. v. Metcalf, 240 U. S. 403, referred to by the Circuit Court of Appeals, and Saxlehner v. Eisner & Mendelson Co., supra, and Kahn v. Gaines, 155 Fed. Rep. 639; 161 id. 495, are distinguishable, and are not authority for finding an estoppel upon the facts of this case. Mr. Clayton B. Blakey for respondent. Mr. Justice Pitney delivered the opinion of the court. This was a suit in equity brought September 24, 1912, in the United States District Court for the Western District of Kentucky, by the present petitioner, a Massachusetts corporation, against the respondent, a Kentucky corporation, together with certain individual citizens of the latter State, to restrain infringement of trade-mark and unfair competition. The District Court granted an injunction against the corporation defendant pursuant to the prayer of the bill. 206 Fed. Rep. 570. The Circuit Court of Appeals reversed the decree and remanded the cause with directions to dismiss the bill. 226 Fed. Rep. 545. An appeal was allowed by one of the judges of that court, and afterwards we allowed a writ of certiorari. Pursuant to a stipulation, the transcript of the record filed for the purposes of the appeal was treated as a return to the writ. Under § 128, Judicial Code, as amended by Act of January 28, 1915, c. 22, § 2, 38 Stat. 803, the appeal must be dismissed, and the cause will be determined on the writ of certiorari. 94 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. The essential facts are as follows: About the year 1877 Ellen M. Regis, a resident of Haverhill, Massachusetts, began to compound and distribute in a small way a preparation for medicinal use in cases of dyspepsia and some other ailments, to which she applied as a distinguishing name the word “Rex”—derived from her surname. The word was put upon the boxes and packages in which the medicine was placed upon the market, after the usual manner of a trade-mark. At first alone, and afterwards in partnership with her son under the firm name of “E. M. Regis & Company,” she continued the business on a modest scale; in 1898 she recorded the word “Rex” as a trademark under the laws of Massachusetts (Acts 1895, p. 519, c. 462, § 1); in 1900 the firm procured its registration in the United States Patent Office under the Act of March 3, 1881, c. 138, 21 Stat. 502; in 1904 the Supreme Court of Massachusetts sustained their trade-mark right under the state law as against a concern that was selling medicinal preparations of the present petitioner under the designation of “Rexall remedies” {Regis v. Jaynes, 185 Massachusetts, 458); afterwards the firm established priority in the mark as against petitioner in a contested proceeding in the Patent Office; and subsequently, in the year 1911, petitioner purchased the business with the trade-mark right, and has carried it on in connection with its other business, which consists in the manufacture of medicinal preparations, and their distribution and sale through retail drug stores, known as “Rexall stores,” situate in the different States of the Union, four of them being in Louisville, Kentucky. Meanwhile, about the year 1883, Theodore Rectanus, a druggist in Louisville, familiarly known as “Rex,” employed this word as a trade-mark for a medicinal preparation known as a “blood purifier.” He continued this use to a considerable extent in Louisville and vicinity, spending money in advertising and building up a trade, so that— UNITED DRUG CO. v. RECTANUS CO. 95 90. Opinion of the Court. except for whatever effect might flow from Mrs. Regis’ prior adoption of the word in Massachusetts, of which he was entirely ignorant—he was entitled to use the word as his trade-mark. In the year 1906 he sold his business, including the right to the use of the word, to respondent; and the use of the mark by him and afterwards by respondent was continuous from about the year 1883 until the filing of the bill in the year 1912. Petitioner’s first use of the word “Rex” in connection with the sale of drugs in Louisville or vicinity was in April, 1912, when two shipments of “Rex Dyspepsia Tablets,” aggregating 150 boxes and valued at $22.50, were sent to one of the “Rexall” stores in that city. Shortly after this the remedy was mentioned by name in local newspaper advertisements published by those stores. In the previous September, petitioner shipped a trifling amount—five boxes—to a drug store in Franklin, Kentucky, approximately 120 miles distant from Louisville. There is nothing to show that before this any customer in or near Kentucky had heard of the Regis remedy, with or without the description “Rex,” or that this word ever possessed any meaning to the purchasing public in that State except as pointing to Rectanus and the Rectanus Company and their “blood purifier.” That it did and does convey the latter meaning in Louisville and vicinity is proved without dispute. Months before petitioner’s first shipment of its remedy to Kentucky, petitioner was distinctly notified (in June, 1911,) by one of its Louisville distributors that respondent was using the word “Rex” to designate its medicinal preparations, and that such use had been commenced by Mr. Rectanus as much as 16 or 17 years before that time. There was nothing to sustain the allegation of unfair competition, aside from the question of trade-mark infringement. As to this, both courts found, in substance, that the use of the same mark upon different but somewhat 96 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. related preparations was carried on by the parties and their respective predecessors contemporaneously, but in widely separated localities, during the period in question— between 25 and 30 years—in perfect good faith, neither side having any knowledge or notice of what was being done by the other. The District Court held that because the adoption of the mark by Mrs. Regis antedated its adoption by Rectanus, petitioner’s right to the exclusive use of the word in connection with medicinal preparations intended for dyspepsia and kindred diseases of the stomach and digestive organs must be sustained, but without accounting for profits or assessment of damages for unfair trade; citing McLean v. Fleming, 96 U. S. 245; Menendez v. Holt, 128 U. S. 514; Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19, 39; Saxlehner v. Siegel-Cooper Co., 179 U. S. 42. The Circuit Court of Appeals held that in view of the fact that Rectanus had used the mark for a long period of years in entire ignorance of Mrs. Regis’ remedy or of her trade-mark, had expended money in making his mark well known, and had established a considerable though local business under it in Louisville and vicinity, while on the other hand during the same long period Mrs. Regis had done nothing, either by sales agencies or by advertising, to make her medicine or its mark known outside of the New England States, saving sporadic sales in territory adjacent to those States, and had made no effort whatever to extend the trade to Kentucky, she and her successors were bound to know that, misled by their silence and inaction, others might act, as Rectanus and his successors did act, upon the assumption that the field was open, and therefore were estopped to ask for an injunction against the continued use of the mark in Louisville and vicinity by the Rectanus Company. The entire argument for the petitioner is summed up in the contention that whenever the first user of a trade-mark has been reasonably diligent in extending the UNITED DRUG CO. v. RECTANUS CO. 97 90. Opinion of the Court. territory of his trade, and as a result of such extension has in good faith come into competition with a later user of the same mark who in equal good faith has extended his trade locally before invasion of his field by the first user, so that finally it comes to pass that the rival traders are offering competitive merchandise in a common market under the same trade-mark, the later user should be enjoined at the suit of the prior adopter, even though the latter be the last to enter the competitive field and the former have already established a trade there. Its application to the case is based upon the hypothesis that the record shows that Mrs. Regis and her firm, during the entire period of limited and local trade in her medicine under the Rex mark, were making efforts to extend their trade so far as they were able to do with the means at their disposal. There is little in the record to support this hypothesis; but, waiving this, we will pass upon the principal contention. The asserted doctrine is based upon the fundamental error of supposing that a trade-mark right is a right in gross or at large, like a statutory copyright or a patent for an invention, to either of which, in truth, it has little or no analogy. Canal Co. v. Clark, 13 Wall. 311, 322; McLean v. Fleming, 96 U. S. 245, 254. There is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade in connection with which the mark is employed. The law of trade-marks is but a part of the broader law of unfair competition; the right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his; and it is not the subject of property except in connection with an existing business. Hanover Milling Co. v. Metcalf, 240 U. S. 403, 412-414. The owner of a trade-mark may not, like the proprietor 98 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. of a patented invention, make a negative and merely prohibitive use of it as a monopoly. See United States v. Bell Telephone Co., 167 U. S. 224, 250; Bement v. National Harrow Co., 186 U. S. 70, 90; Paper Bag Patent Case, 210 U. S. 405, 424. In truth, a trade-mark confers no monopoly whatever in a proper sense, but is merely a convenient means for facilitating the protection of one’s good-will in trade by placing a distinguishing mark or symbol—a commercial signature—upon the merchandise or the package in which it is sold. It results that the adoption of a trade-mark does not, at least in the absence of some valid legislation enacted for the purpose, project the right of protection in advance of the extension of the trade, or operate as a claim of territorial rights over areas into which it thereafter may be deemed desirable to extend the trade. And the expression, sometimes met with, that a trade-mark right is not limited in its enjoyment by territorial bounds, is true only in the sense that wherever the trade goes, attended by the use of the mark, the right of the trader to be protected against the sale by others of their wares in the place of his wares will be sustained. Property in trade-marks and the right to their exclusive use rest upon the laws of the several States, and depend upon them for security and protection; the power of Congress to legislate on the subject being only such as arises from the authority to regulate commerce with foreign nations and among the several States and with the Indian tribes. Trade-Mark Cases, 100 U. S. 82, 93. Conceding everything that is claimed in behalf of the petitioner, the entire business conducted by Mrs. Regis and her firm prior to April, 1911, when petitioner acquired it, was confined to the New England States with inconsiderable sales in New York, New Jersey, Canada, and Nova Scotia. There was nothing in all of this to give her UNITED DRUG CO. v. RECTANUS CO. 99 90. Opinion of the Court. any rights in Kentucky, where the principles of the common law obtain. Hunt v. Warnicke’s Heirs, 3 Kentucky (Hardin), 61, 62; Lathrop v. Commercial Bank, 8 Dana (Ky.), 114, 121; Bay v. Sweeney, 14 Bush (Ky.), 1, 9; Aetna Ins. Co. v. Commonwealth, 106 Kentucky, 864, 881; Nider v. Commonwealth, 140 Kentucky, 684, 687. We are referred to no decision by the courts of that State, and have found none, that lays down any peculiar doctrine upon the subject of trade-mark law. There is some meager legislation, but none that affects this case (Kentucky Stats., § 2572c, subsec. 7; §§ 4749-4755). There was nothing to prevent the State of Kentucky (saving, of course, what Congress might do within the range of its authority) from conferring affirmative rights upon Rec-tanus, exclusive in that Commonwealth as against others whose use of the trade-mark there began at a later time than his; but whether he had such rights, or respondent now has them, is a question not presented by the record; there being no prayer for an injunction to restrain petitioner from using the mark in the competitive field. It is not contended, nor is there ground for the contention, that registration of the Regis trade-mark under either the Massachusetts statute or the act of Congress, or both, had the effect of enlarging the rights of Mrs. Regis or of petitioner beyond what they would be under common-law principles. Manifestly, the Massachusetts statute (Acts 1895, p. 519, c. 462) could have no extraterritorial effect. And the Act of Congress of March 3, 1881, c. 138, 21 Stat. 502, applied only to commerce with foreign nations or the Indian tribes, with either of which this case has nothing to do. See Ryder v. Holt, 128 U. S. 525. Nor is there any provision making registration equivalent to notice of rights claimed thereunder. The Act of February 20, 1905, c. 592, 33 Stat. 724, which took the place of the 1881 Act, while extending protection to trade-marks used in interstate commerce, does not en- 100 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. large the effect of previous registrations, unless renewed under the provisions of its twelfth section, which has not been done in this case; hence we need not consider whether anything in this act would aid the petitioner’s case. Undoubtedly, the general rule is that, as between conflicting claimants to the right to use the same mark, priority of appropriation determines the question. See Canal Co. v. Clark, 13 Wall. 311, 323; McLean v. Fleming, 96 U. S. 245, 251; Manufacturing Co. v. Trainer, 101 U. S. 51, 53; Columbia Mill Co. v. Alcorn, 150 U- S. 460, 463. But the reason is that purchasers have come to understand the mark as indicating the origin of the wares, so that its use by a second producer amounts to an attempt to sell his goods as those of his competitor. The reason for the rule does not extend to a case where the same trademark happens to be employed simultaneously by two manufacturers in different markets separate and remote from each other, so that the mark means one thing in one market, an entirely different thing in another. It would be a perversion of the rule of priority to give it such an application in our broadly extended country that an innocent party who had in good faith employed a trademark in one State, and by the use of it had built up a trade there, being the first appropriator in that jurisdiction, might afterwards be prevented from using it, with consequent injury to his trade and good-will, at the instance of one who theretofore had employed the same mark but only in other and remote jurisdictions, upon the ground that its first employment happened to antedate that of the first-mentioned trader. In several cases federal courts have held that a prior use of a trade-mark in a foreign country did not entitle its owner to claim exclusive trade-mark rights in the United States as against one who in good faith had adopted a like trade-mark here prior to the entry of the foreigner into this market. Richter v. Anchor Remedy Co., 52 Fed. UNITED DRUG CO. v. RECTANUS CO. 101 90. Opinion of the Court. Rep. 455, 458; Richter v. Reynolds, 59 Fed. Rep. 577, 579; Walter Baker & Co. v. Delapenha, 160 Fed. Rep. 746, 748; Gorham Mfg. Co. v. Weintraub, 196 Fed. Rep. 957, 961. The same point was involved in Hanover Milling Co. v. Metcalf, 240 IT. S. 403, 415, where we said: “In the ordinary case of parties competing under the same mark in the same market, it is correct to say that prior appropriation settles the question. But where two parties independently are employing the same mark upon goods of the same class, but in separate markets wholly remote the one from the other, the question of prior appropriation is legally insignificant, unless at least it appear that the second adopter has selected the mark with some design inimical to the interests of the first user, such as to take the benefit of the reputation of his goods, to forestall the extension of his trade, or the like.” In this case, as already remarked, there is no suggestion of a sinister purpose on the part of Rectanus or the Rectanus Company; hence the passage quoted correctly defines the status of the parties prior to the time when they came into competition in the Kentucky market. And it results, as a necessary inference from what we have said, that petitioner, being the newcomer in that market, must enter it subject to whatever rights had previously been acquired there in good faith by the Rectanus Company and its predecessor. To hold otherwise—to require Rectanus to retire from the field upon the entry of Mrs. Regis’ successor—would be to establish the right of the latter as a right in gross, and to extend it to territory wholly remote from the furthest reach of the trade to which it was annexed, with the effect not merely of depriving Rectanus of the benefit of the good-will resulting from his long-continued use of the mark in Louisville and vicinity, and his substantial expenditures in building tip his trade, but of enabling petitioner to reap substantial benefit from the publicity that Rectanus 102 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. has thus given to the mark in that locality, and of confusing if not misleading the public as to the origin of goods thereafter sold in Louisville under the Rex mark, for, in that market, until petitioner entered it, “Rex” meant the Rectanus product, not that of Regis. In support of its contention petitioner cites the same cases that were relied upon by the District Court, namely, McLean v. Fleming, 96 U. S. 245; Menendez v. Holt, 128 U. S. 514; Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19, 39; and Saxlehner v. Siegel-Cooper Co., 179 U. S. 42. They exemplify the rule that, where the proof of infringement is clear, a court of equity will not ordinarily refuse an injunction for the future protection of the proprietor of a trade-mark right, even where his acquiescence and laches have been such as to disentitle him to an accounting for the past profits of the infringer. The rule finds appropriate application in cases of conscious infringement or fraudulent imitation, as is apparent from a reading of the opinions in those cases; but it has no pertinency to such a state of facts as we are now dealing with. In McLean v. Fleming, the only question raised in this court that affected the right of the appellee to an injunction was whether the Circuit Court had erred in finding that defendant’s labels “Dr. McLean’s Universal Pills,” etc., infringed complainant’s label “Dr. C. McLane’s Celebrated Liver Pills,” and this turned upon whether the similarity was sufficient to deceive ordinarily careful purchasers. The evidence showed without dispute that from the beginning of his use of the offending labels the defendant (McLean) had known of the McLane liver pills, and raised at least a serious question whether he did not adopt his labels for the purpose of palming off his goods as those of complainant. What he controverted was that his labels amounted to an infringement of complainant’s, and when this was decided agaihst him the propriety of the injunction was clear. In Menendez v. UNITED DRUG CO v. RECTANUS CO. 103 90. Opinion of the Court. Holt, likewise, defendants (Menendez) admitted the existence of the brand in question—the words “La Favor it a” as applied to flour—and admitted using it, but denied that Holt & Company were the owners, alleging that one Rider was a former member of that firm and entitled to use the brand, and that under him defendants had sold their flour branded “La Favorita, S. 0. Rider.” There was, however, no question but that defendants adopted the brand knowing it to be already in use by others. In the Saxlehner Cases, the facts were peculiar, and need not be rehearsed; injunctions were allowed to restrain the sale of certain waters in bottles and under labels in which those of complainant were intentionally imitated. In all four cases the distinguishing features of the present case were absent. Here the essential facts are so closely parallel to those that furnished the basis of decision in the Allen & Wheeler Case, reported sub nom. Hanover Milling Co. v. Metcalf, 240 U. S. 403, 419-420, as to render further discussion unnecessary. Mrs. Regis and her firm, having during a long period of years confined their use of the “Rex” mark to a limited territory wholly remote from that in controversy, must be held to have taken the risk that some innocent party might in the meantime hit upon the same mark, apply it to goods of similar character, and expend money and effort in building up a trade under it; and since it appears that Rectanus in good faith, and without notice of any prior use by others, selected and used the “Rex” mark, and by the expenditure of money and effort succeeded in building up a local but valuable trade under it in Louisville and vicinity before petitioner entered that field, so that “Rex” had come to be recognized there as the “trade signature” of Rectanus and of respondent as his successor, petitioner is estopped to set up their continued use of the mark in that territory as an infringement of the Regis trade-mark. Whatever confusion may have 104 OCTOBER TERM, 1918. Argument for Plaintiff in Error. 248 U. S. arisen from conflicting use of the mark is attributable to petitioner’s entry into the field with notice of the situation; and petitioner cannot complain of this.. As already stated, respondent is not complaining of it. Decree affirmed. RUDDY v. ROSSI. ERROR TO THE SUPREME COURT OF THE STATE OF IDAHO. No. 17. Submitted November 13, 1918.—Decided December 9, 1918. Section 4 of the Homestead Act of May 20,1862, (§ 2296, Rev. Stats.), providing that no lands acquired under the act shall in any event become liable to the satisfaction of any debt contracted prior to the issuance of patent therefor, applies as well to debts contracted after final entry and before patent as to debts contracted before final proof, and in both respects is within the constitutional power of Congress. 28 Idaho, 376, reversed. The case is stated in the opinion. Mr. Charles E. Miller for plaintiff in error. Mr. A. H. Featherstone was also on the brief: The jurisdiction of the Interior Department respecting a homestead entry is not divested until the patent is issued. [Citing Land Decisions.] The doctrine of relation is inapplicable in the construction of the statute. Debts contracted after final entry but before patent are within the intention no less than the clear letter. Wallowa National Bank v. Riley, 29 Oregon, 289; Watson v. Voorhees, 14 Kansas, 254; Doran v. Kennedy, 237 U. S. 362; Hussman v. Durham, 165 U. S. 144; (c/. Leonard v. Ross, 23 Kansas, 292); RUDDY v. ROSSI. 105 104. Opinion of the Court. Seymour v. Sanders, 3 Dill. 437; Brun v. Mann, 151 Fed. Rep. 145; In re Kohn, 171 Fed. Rep. 570; In re Parmeter's Estate, 211 Fed. Rep. 757; Grames v. Consolidated Timber Co., 215 Fed. Rep. 785. Numerous decisions by the Supreme Courts of Arizona, Arkansas, California, Minnesota, Missouri, Nebraska, Oregon, South Dakota, Washington and Wisconsin reach the same conclusion. No appearance for defendant in error. Mr. Justice McReynolds delivered the opinion of the court. By ‘‘An act to secure homesteads to actual settlers on the public domain,” approved May 20, 1862, c. 75, 12 Stat. 392, Congress prescribed the conditions under which citizens could acquire unappropriated public lands in tracts of not exceeding one hundred and sixty acres. A manifest purpose was to induce settlement upon and cultivation of these lands by those who, five years after proper entry, would become owners in fee through issuance of patents. The great end in view was to convert waste places into permanent homes. Such occupancy and use constituted a most important consideration and were rightly expected to yield larger public benefits than the small required payment of one dollar and a quarter per acre. Decision of this cause requires us to consider the meaning and validity of § 4 of the act (Rev. Stats., § 2296) which provides: “No lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.” Plaintiff in error made preliminary homestead entry of designated land within the State of Idaho August 6, 1903; submitted final proofs October 4, 1909; obtained 106 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. final receipt and certificate November 12, 1909; final patent issued August 26, 1912. In 1914 two judgments were obtained against him; the first upon indebtedness incurred prior to November 12, 1909; the second upon debts contracted subsequent to that date and prior to patent. Executions were issued and levied upon the homestead; and thereupon the proceeding under review was begun to declare asserted hens invalid and a cloud upon the title. The court below held the first judgment unenforceable against the land since it represented indebtedness which accrued prior to final entry. It further held the second judgment could be so enforced as it was based upon debts contracted after final entry, at which time the homesteader became legally entitled to his patent. 28 Idaho, 376. The language of § 4 is clear and we find no adequate reason for thinking that it fails precisely to express the law-maker’s intention. Did Congress have power to restrict alienation of homestead lands after conveyance by the United States in fee simple? This question undoubtedly presents difficulties which we are not disposed to minimize. In Wright v. Morgan, 191 U. S. 55, 58, a similar point was suggested but not decided. The Constitution declares “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States”; and it is settled that Congress has plenary power to dispose of public lands. United States v. Gratiot, 14 Pet. 526, 537. They may be leased, sold or given away upon such terms and conditions as the public interests require. Instead of granting fee simple titles with exemption from certain debts, long leases might have been made or conditional titles bestowed in such fashion as practically to protect homesteads from all indebtedness. RUDDY v. ROSSI. 107 104. Opinion per Holmes, J. “The sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421. Acting within its discretion, Congress determined that in order promptly to dispose of public lands and bring about their permanent occupation and development it was proper to create the designated exemption; and we are unable to say that the conclusion was ill-founded or that the means were either prohibited or not appropriate to the adequate performance of the high duties which the legislature owed to the public. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice Holmes: This case involves a question of theory that may be important and I think it desirable to state the considerations that make me doubt. The facts needing to be mentioned are few. On August 26, 1912, the United States conveyed land in Idaho to Ruddy in fee simple, in pursuance of a homestead entry by Ruddy on August 6, 1903, final proof on October 4, 1909, and final receipt of the purchase price on November 12,1909. In September, 1912, after the conveyance, Rossi began suits against Ruddy, attaching this land, and in June, 1914, levied executions upon the same. The debts for which the 108 OCTOBER TERM, 1918. Opinion per Holmes, J. 248 U. S. suits were brought were incurred before the issue of the patent and the present proceeding is to prevent Rossi from selling the land to satisfy the judgments. The question arises under Rev. Stats., § 2296, providing that no lands acquired under that chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor. The Supreme Court of Idaho narrowed the issue to the case of debts contracted after final proof, but that distinction is not important to the difficulty in my mind. My question is this: When land has left the ownership and control of the United States and is part of the territory of a State not different from any other privately owned land within the jurisdiction and no more subject to legislation on the part of the United States than any other land, on what ground is a previous law of Congress supposed any longer to affect it in a way that a subsequent one could not? This land was levied upon not on the assertion that any lien upon it was acquired before the title passed from the United States, but merely as any other land might be attached for a debt that Rossi had a right to collect, after the United States had left the premises. I ask myself what the United States has to do with that. There is no condition, no reserved right of reentry, no reversion in the United States, saved either under the Idaho law as any private grantor might save it, or by virtue of antecedent title. All interest of the United States as owner is at an end. It is a stranger to the title. Even in case of an escheat the land would not go to it, but would go to the State. Therefore the statute must operate, if at all, purely by way of legislation, not as a qualification of the grant. If § 2296 is construed to apply to this case, there is simply the naked assumption of one sovereignty to impose its will after whatever jurisdiction or authority it had has ceased and the land has come fully under the jurisdiction of what for this purpose RUDDY v. ROSSI. 109 104. Opinion per Holmes, J. is a different power. It is a pure attempt to regulate the alienability of land in Idaho by law, without regard to the will of Idaho, which we must assume on this record to authorize the levy if it is not prevented by an act of Congress occupying a paramount place. I believe that this Court never has gone farther in the way of sustaining legislation concerning land within a State than to uphold a law forbidding the enclosure of public lands, which little, if at all, exceeded the rights of a private owner, although it was construed to prevent the erection of fences upon the defendants’ own property manifestly for the sole purpose of enclosing land of the United States. Camfield v. United States, 167 U. S. 518. At most it was a protection of the present interests of the United States under a title paramount to the State. On the other hand, it is said in Pollard v. Hagan, 3 How. 212, 224, that no power in the nature of municipal sovereignty can be exercised by the United States within a State; that such a power is repugnant to the Constitution. This case was referred to in Withers v. Buckley, 20 How. 84, and it was decided that the act of Congress authorizing the formation of the State of Mississippi and providing that the Mississippi River should be forever free “could have no effect to restrict the new State in any of its necessary attributes as an independent sovereign government,” and both these cases were cited upon this point with approval in Ward v. Racehorse, 163 U. S. 504, 511, 512. See also Shively v. Bowlby, 152 U. S. 1, 27. In Irvine v. Marshall, 20 How. 558, where it was held that the laws of a territory abolishing constructive trusts were ineffectual to protect the holder of a certificate from the United States against the establishment of such a trust, it was said that “when the subject, and all control over it, shall have passed from the United States, and have become vested in a citizen or resident of the territory, then indeed the territorial regulations may operate upon it,” and 110 OCTOBER TERM, 1918. Opinion per Holmes, J. 248 U. S. later in the decision there is cited a passage from Wilcox v. Jackson, 13 Pet. 498, 517, to the same effect—a passage also cited and relied upon by the four justices who dissented and held that the territorial laws governed even then. It has been repeated ever since. McCune v. Essig, 199 U. S. 382, 390. Buchser v. Buchser, 231 U. S. 157,161. Coming to the precise issue, the question of the power of the United States to restrict alienation of land within a State after it had conveyed the land in fee was left open in Wright v. Morgan, 191 U. S. 55, 58, but it was said that the clearest expression would be necessary before it would be admitted that such a restriction was imposed. In Buchser v. Buchser, 231U. S. 157, it was held that the laws of the United States did not prevent homestead land becoming community property at the moment that title was acquired, and it was said that, the acquisition under the United States law being complete, that law had released its control. The statement in Wilcox v. Jackson, supra, that when the title has passed the land “like all other property in the State is subject to the state legislation,” was repeated. In Alabama v. Schmidt, 232 U. S. 168, following Cooper v. Roberts, 18 How. 173, it was held that land conveyed to the State by the United States for the use of schools could be acquired by adverse possession under state law, and that the trust, although as was said in the earlier case “a sacred obligation imposed on its public faith” imposed only an honorary obligation on the State. Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267, was distinguished as having been decided on the ground that in the grant to the Railway there was an implied condition of reverter in case the company ceased to hold the land for the purpose for which it was granted, a ground, which, as I have said, is absent here. It is said that where a statute is susceptible of two constructions, by one of which grave constitutional RUDDY v. ROSSI. 1Ù 104. Opinion per Holmes, J. questions arise and by the other of which they are avoided, our duty is to adopt the latter. United States v. Delaware & Hudson Co., 213 U. S. 366, 408. I am aware that this principle like some others more often is invoked in aid of a conclusion reached on other grounds than made itself the basis of decision, but it seems to me that it properly should govern here. It might without violence. When the Act of 1862, now Rev. Stats., § 2296, was passed, the United States owned territories to which it could be applied with full scope. Irvine v. Marshall, 20 How. 558. The greater part of the public land was in those territories. Without stopping to suggest other possibilities of construction this fact is enough to explain and give validity to the act when passed. There is no need to import to it the intent to anticipate the future and to reach the States that were still in the bosoni of time. Of course the United States has power to choose appropriate means for exercising the authority given to it by the Constitution. But I see no sufficient ground for extending that authority to a case like this. It is not the business of the United States to determine the policy to be pursued concerning privately owned land within a State. According to all cases in this Court, so far as I know, when the patent issued its authority was at an end. I am aware that my doubts are contrary to manifest destiny and to a number of decisions in the State Courts. I know also that when common understanding and practice have established a way it is a waste of time to wander in bypaths of logic. But as I have a real difficulty in understanding how the congressional restriction is held to govern this case—a question which nothing that I have heard as yet appears to me to answer—I think it worth while to mention my misgivings, if only to show that they have been considered and are not shared. 112 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. PAYNE ET AL. v. STATE OF KANSAS EX REL. BREWSTER, ATTORNEY GENERAL. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. No. 49. Argued November 15, 1918.—Decided December 9, 1918. A state law forbidding sale of farm produce on commission without a license, to be procured upon a proper showing as to character, responsibility, etc., a bond conditioned to make honest accounting, and payment of a fee of ten dollars, held consistent with the Fourteenth Amendment. 98 Kansas, 465, affirmed. The case is stated in the opinion. Mr. Ray Campbell, with whom Mr. J. Graham Campbell was on the brief, for plaintiffs in error. Mr. J. L. Hunt, Assistant Attorney General of the State of Kansas, with whom Mr. S. M. Brewster, Attorney General of the State of Kansas, Mr. S. N. Hawkes and Mr. T. F. Railsback, Assistant Attorneys General of the State of Kansas, were on the brief, for defendant in error. Memorandum opinion by Mr. Justice McReynolds. The validity of c. 371, Laws of Kansas, 1915—“An act in relation to the sale of farm produce on commission”—is challenged by certain grain dealers carrying on business in that State. It forbids the sale of farm produce on commission without an annual license, to be procured from the State Board of Agriculture upon a proper showing as to character, responsibility, etc., and a bond conditioned to make honest accounting. A fee of ten dollars is required. NICOULIN v. O’BRIEN. 113 112. Counsel for Plaintiff in Error. Plaintiffs in error maintain that the statute is class legislation which abridges their rights and privileges, that it deprives them of the equal protection of the laws and also of their property without due process of law— all in violation of the Fourteenth Amendment. Manifestly, the purpose of the State was to prevent certain evils incident to the business of commission merchants in farm products by regulating it. Many former opinions have pointed out the limitations upon powers of the States concerning matters of this kind, and we think the present record fails to show that these limitations have been transcended. Rast v. Van Dernau & Lewis Co., 240 U. S. 342; Brazee v. Michigan, 241 U. S. 340; Adams v. Tanner, 244 U. S. 590. The judgment of the court below is Affirmed. NICOULIN v. O’BRIEN. ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY. No. 113. Submitted October 21, 1918.—Decided December 9, 1918. The territorial limits of Kentucky extend across the Ohio River to low-water mark on the Indiana side, and no limitation on the power of Kentucky to protect fish within those limits by proper legislation resulted from the establishment of concurrent jurisdiction by the Virginia Compact. 172 Kentucky, 473, affirmed. The case is stated in the opinion. Mr. Augustus Everett Willson for plaintiff in error. Mr. Richard Priest Dietzman and Mr. Edmund Andrew Larkin were also on the brief. 114 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. Mr. D. A. Sachs, Jr., for defendant in error. Mr. J os. G. Sachs, Jr., was also on the brief. Memorandum opinion by Mr. Justice McReynolds. Plaintiff in error was adjudged guilty of violating the prohibition of a Kentucky statute by seining for fish in the Ohio River south of low-water mark on the Indiana side. 172 Kentucky, 473. We are asked to hold that by reason of the Virginia Compact (13 Hening’s Statutes at Large, c. 14, pp. 17, 19), Kentucky had no power to regulate fishing in the river at that point without Indiana’s concurrence. The provision relied upon is this:“ Seventh, that the use and navigation of the river Ohio, so far as the territory of the proposed state, or the territory which shall remain within the limits of this Commonwealth lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of this Commonwealth and of the proposed state on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river.” The territorial limits of Kentucky extend across the river to low-water mark on the northerly shore. Indiana v. Kentucky, 136 U. S. 479, 519. And we think it clear that no limitation upon the power of that Commonwealth to protect fish within her own boundaries by proper legislation resulted from the mere establishment of concurrent jurisdiction by the Virginia Compact. See Wedding v. Meyler, 192 U. S. 573; Central R. R. Co. v. Jersey City, 209 U. S. 473; Nielsen v. Oregon, 212 U. S. 315; McGowan v. Columbia River Packers’ Assn., 245 U. S. 352. The judgment below is Affirmed. IOWA v. SLIMMER. 115 Argument for Complainant. STATE OF IOWA v. SLIMMER ET AL. MOTION FOR LEAVE TO FILE BILL OF COMPLAINT. No. —•, Original. Argued April 15, 1918.—Decided December 9, 1918. A. motion to file an original bill will be denied when the complaining State is clearly not entitled to the relief sought. P. 120. Where the only effective relief sought is to enjoin the administration by the courts of another State of personal property (in this case notes and bonds) located there at the time of the owner’s death, relief must clearly be denied; because, even though the property may have been fraudulently placed there to avoid taxation in the complainant State, which is alleged to be the domicile of the owner, the State of the actual situs had the right to administer the property. Id. Motion for leave to file bill of complaint denied. The case is stated in the opinion. Mr. H. M. Havner, Attorney General of the State of Iowa, with whom Mr. Burton E. Sweet was on the brief, for complainant, contended: That the decedent was at the time of his death and previously a resident of Iowa, and the property had been placed and kept in Minnesota, and the Minnesota proceedings set on foot, to defraud Iowa of her rights of taxation. This was alleged in the bill, whose allegations stood unchallenged. Looking at the matter from the international and interstate standpoints, correct doctrine required that original probate and principal administration be had in Iowa, the State of domicile. Iowa had a special interest in insisting that this be done because under her laws, upon the admitted facts, she was entitled to collect back taxes upon the property for five years during which they had been eluded, to tax it during administration, and to tax for collateral inheritance. And under the laws of 116 OCTOBER TERM, 1918. Argument for the State of Minnesota. 248 U. S. Iowa it required primary administration to avail of these rights. Even assuming that Minnesota would entertain these claims in her courts, relief would depend on their finding as to domicile; and, Iowa, a sovereign State, should not be compelled to litigate her rights in a possibly hostile forum. Indeed, the very purpose of the Constitution, Art. Ill, § 2, par. 2, and the act of Congress (Jud. Code, § 233), concerning the original jurisdiction of this court, was to furnish an impartial tribunal in such cases. See Chisholm v. Georgia, 2 Dall. 419, 475; Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 289. That jurisdiction depends upon the character of the parties and not upon the nature of the action. California v. Southern Pacific Co., 157 U. S. 229. If the lower federal courts will entertain a bill between citizens with reference to a testator’s domicile, where that question is material (Harrison v. Nixon, 9 Pet. 483), a sovereign State has a right to have that question determined here in an original action. On the face of the bill, the original jurisdiction exists. It is no answer to say that Iowa may go to the courts of Minnesota. If she did so, there would be no right to have an adverse decision reviewed by this court, because there would be no federal question. Nor is it an answer that cases of this character would unnecessarily burden the docket of this court. If jurisdiction exists under the Constitution, Iowa has a right to a determination. Mr. Thomas D. O’Brien, with whom Mr. Edward T. Young and Mr. Alexander E. Horn were on the brief, for defendants. Mr. Clifford L. Hilton, Attorney General of the State of Minnesota, and Mr. Egbert S. Oakley, Assistant Attorney General of the State of Minnesota, in a separate brief on behalf of that State, contended: It is for the state legislatures to prescribe how property IOWA v. SLIMMER 117 115. Opinion of the Court. is to be assessed and to provide the remedies by means of which the payment of the taxes levied shall be accomplished. The legislative remedies are exclusive, and if they fail, the collection of the tax must also fail. Plymouth County v. Moore, 114 Iowa, 700; Preston v. Sturgis Milling Co., 183 Fed. Rep. 1, 3; Preston v. Chicago, St. Louis & N. O. R. R. Co., 183 Fed. Rep. 20, 22; Postal Telegraph Cable Co. v. Alabama, 155 IT. S. 482, 487. The probate courts in Minnesota, under the state constitution and statutes, have exclusive jurisdiction to control and administer the personal assets within its borders of a resident or nonresident decedent. Schouler on Wills, 5th ed., § 1091; Wilkins v. Ellett, 108 U. S. 256, 258; Baker v. Baker, Eccles & Co., 242 IJ. S. 394, 401; Hanson v. Nygaard, 105 Minnesota, 30; Byers v. McAuley, 149 U. S. 608; Borer v. Chapman, 119 U. S. 587, 600; Moran v. Sturges, 154 U. S. 256, 274; Rev. Stats., § 720, now Jud. Code, § 265; Whitney v. Wilder, 54 Fed. Rep. 554; Gregory v. Lansing, 115 Minnesota, 73; Putnam v. Pittman, 45 Minnesota, 242; New Orleans v. Stempel, 175 TJ. S. 309; Wheeler v. New York, 233 U. S. 434. Mr. Justice Brandeis delivered the opinion of the court. With a view to collecting ultimately at least $13,750 for taxes which the State of Iowa alleges it is entitled to have assessed and levied against the property of Abraham Slimmer, deceased, it asks leave to file in this court an original bill of complaint against the State of Minnesota, Abraham Slimmer, Junior, and Charles Bechhoefer, citizens of Minnesota, and Adolph Lipman, a citizen of Wisconsin. The bill alleges in substance as follows : 1. Slimmer, who had for many years been a resident of and domiciled in Iowa, died there testate on August 15, 1917, leaving personal property valued at $550,000, and 118 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. consisting, with the exception of personal effects and a few United States Liberty* Bonds, wholly of promissory notes. All of this property, except the personal effects and one note for $3,000, was then in Minnesota in the possession of Slimmer Junior, who had had custody of the decedent’s property for at least five years before his death. The $3,000 note was brought by him and Bechhoefer into Minnesota immediately thereafter. 2. For the period of at least five years before his death, Slimmer Senior had conspired with Slimmer Junior and Bechhoefer to defraud the State of Iowa of taxes which, by reason of his domicil in Iowa, might and should have been assessed there against his property during his life time; and to this end he had arranged with them that his will (if he should leave one) should be probated in Minnesota; had placed in the custody of Slimmer Junior, in Minnesota, all his property except his personal effects and the one note for $3,000; and had concealed his property from the Iowa officials and refused to return the same for taxation there. 3. Pursuant to this conspiracy, Slimmer Junior and Bechhoefer filed his will for probate in Minnesota on or about August 21, 1917, and procured the appointment of Bechhoefer as special administrator; and by falsely claiming that decedent was domiciled there, secured ex parte a finding to that effect, the probate of the will, and the appointment of themselves as executors. From this decree, the defendant Lipman, claiming to be an heir, appealed; and this appeal, which is now pending, has the effect of suspending the decree and leaving the property in the hands of the special administrator. The State of Iowa has not become a party to these proceedings. 4. Under the laws of Iowa, omissions to list and assess property may be corrected and the taxes collected within five years from the date of such omission. But the amount properly payable for taxes by Slimmer’s estate cannot be IOWA v. SLIMMER. 119 115. Opinion of the Court. collected without assessment and levy thereof against his personal representatives; and such assessment and levy must be made within the State of Iowa. 5. On January 7,1918, the District Court of Dubuque County, Iowa, (in a proceeding begun apparently on or about that day) decreed, at the instance of the treasurer of that State, that Slimmer Senior was domiciled therein, and granted to one Mullany letters of administration of his estate. About the same date the State, learning that Slimmer Junior and Bechhoefer were about to come into it for the purpose of taking testimony in the Minnesota probate proceedings, obtained from said district court an injunction restraining the witness from testifying and the designated officers from taking their depositions. Slimmer Junior and Bechhoefer have not been served in the Iowa suit and have declared their purpose to avoid service within that State. The bill prays that it be adjudged and decreed: (a) that Slimmer Senior had for more than five years prior to his death been domiciled in Iowa; (6) that his estate consisted of evidences of indebtedness to him and that no part of his estate was, at his death, in Minnesota; (c) that Iowa has, and Minnesota has not, jurisdiction to administer upon his estate; and prays also (d) that such order be entered as will ensure the dismissal of the Minnesota probate proceedings, and the administration of the estate in Iowa; and (e) that, pending this suit, an injunction issue restraining the prosecution of the Minnesota probate proceedings. The motion for leave to file the bill was submitted ex parte. In view of doubt entertained as to the propriety of granting it, consideration of the application was postponed (as in Minnesota v. Northern Securities Co., 184 U. S. 199, and Washington v. Northern Securities Co., 185 IT. S. 254) so that the parties might be heard; and the motion was fully argued orally and upon briefs. Both the State 120 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. of Minnesota and the individual defendants, other than Lipman, objected to the granting of leave to file the bill. The State objected on the grounds that the only effective relief sought was an injunction against a proceeding in a state court; that the Minnesota probate court had exclusive jurisdiction to administer assets of a decedent within its borders, regardless of his domicil; and also that there was no authority granted by the state legislature for such an action in the federal courts. The individual defendants objected on the grounds that the Iowa administrator was the proper party plaintiff; that he was in any event a necessary party and joining him would oust the court of jurisdiction; that the refief sought would deny to the action of the Minnesota court full faith and credit; and that plaintiff had an adequate remedy at law. The original jurisdiction of the court to entertain a bill of this character was also questioned. Only one of these objections need be considered, for it presents a conclusive reason why leave to file the bill of complaint should be denied. Substantially the whole of decedent’s estate consisted of notes and bonds. Under an arrangement which had been in force for five years or more, these securities were, at the time of his death, in Minnesota in the custody and possession of an agent resident there. Minnesota imposes inheritance taxes; and its statutes provide (Minnesota Gen. Stats., 1913, § 2281) that no transfer of the property of a nonresident decedent shall be made until the taxes due thereon shall have been paid. Regardless of the domicil of the decedent, these notes and bonds were subject to probate proceedings in that State and likewise subject, at least, to inheritance taxes. Minnesota Gen. Stats., 1913, §§ 7205, 2271; Bristol v. Washington County, 177 U. S. 133; Wheeler v. New York, 233 U. S. 434. Furthermore, so far as concerns the property of the decedent, located at his death in Minnesota, the probate courts of TEMPEL v. UNITED STATES. 121 115. Syllabus. that State had jurisdiction to determine the domicil. Overby v. Gordon, 177 U. S. 214. But even if decedent was not domiciled in Minnesota, its court had the power either to distribute property located there according to the terms of the will applicable thereto, or to direct that it be transmitted to the personal representative of the decedent at the place of his domicil to be disposed of by him. Minnesota Gen. Stats., 1913, § 7278; Harvey v. Richards, 1 Mason, 381. See Wilkins v. Ellett, 108 U. S. 256, 258. On or about August 21, 1917, Slimmer’s executors filed their petition in the probate court for Ramsey County, Minnesota; and the court, in the exercise of its jurisdiction, appointed the defendant Bechhoefer, special administrator. As such, he took and now holds, pending an appeal to the state district court, possession of the whole of decedent’s estate, consisting of the notes and Liberty Bonds as well as the personal effects. The only effective relief sought here is to enjoin the further administration of the estate of the deceased by the courts of Minnesota. It is clear that the State of Iowa‘is not entitled to such relief. The motion for leave to file the bill of complaint is, therefore, Denied. TEMPEL v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 29. Argued November 5, 1917.—Decided December 9, 1918. Not knowing that certain land on the Chicago River had become submerged through excavations privately made without the owner’s consent, the Government, believing it to be within the de jure stream, 122 OCTOBER TERM, 1918. Argument for Plaintiff in Error. 248 U. S. and not intending to exercise the power of eminent domain, dredged the submerged land, claiming then and thereafter that it did so under the power to improve navigation. Held, that there was no ground for implying a promise to compensate the owner; that his cause of action, if any, was in tort; and that an action by him against the United States was not within the jurisdiction of the District Court under the Tucker Act. Hill v. United States, 149 U. S. 593, followed. United States v. Lynah, 188 U. S. 445, and United States v. Cress, 243 U. S. 316, distinguished. P. 128. Reversed. The case is stated in the opinion. Mr. Thomas B. Lantry, with whom Mr. Timothy F. Mullen was on the briefs, for plaintiff in error: A riparian owner may maintain his bank in its original condition, or restore it. Prescription seems to be the test of determining whether the owner loses his right to compensation. The public has no proprietorship in soil under small streams which are navigable only in a modified sense, for the floatage of logs and lumber, as it has under navigable waters at common law, where the tide ebbs and flows. The statute of limitations does not run against the landowner’s action for a taking until the work has been completed. Land is not taken, in the meaning of the Fifth Amendment, until compensation is paid and the title passes from the owner. The filing of the petition for compensation is an acceptance of the taking, and the right of action accrues upon such acceptance. The right of the public to improve the navigability of a stream without compensation is confined to the natural bed. The commencement of a suit for damages is the acceptance of the taking of the property held for public use. In this case it is not questioned that the title was in the plaintiff, and that the Government had taken his prop- TEMPEL v. UNITED STATES. 123 121. Opinion of the Court. erty for public use, nor was the value in dispute. An implied contract arose. Great Falls Mfg. Co. v. Garland, 124 U. S. 583, 597, 598; Great Falls Mfg. Co. v. United States, 112 U. S. 645, 656; United States v. Lynah, 188 U. S. 445, 463; United States v. Welsh, 217 U. S. 333; United States v. Grizzard, 219 TJ. S. 180. The Solicitor General for the United States: The Chicago River being a navigable stream in its natural state, there was no taking, because the submerged lands were subject to the paramount right of the Government to improve navigation. In improving navigation the Government was not confined to the channel shown by the survey of 1837, but might dredge any portion of the river bed. Such injury, if any, as claimant has suffered in this case was occasioned by the act of his lessee, and the remedy is in an action against him. The District Court correctly held that it was without jurisdiction under the Tucker Act, because the suit was instituted more than six years after the alleged right of action accrued. Mr. Justice Brandeis delivered the opinion of the court. • The Chicago River, its branches and forks lie wholly within the State of Illinois.1 Their aggregate length is about 35 miles. Originally the stream was a sluggish creek, nearly stagnant during much of the year and, in part, navigable only for row boats and canoes or for 1 The character of the river and rights incidental thereto have been frequently considered by this court. Transportation Co. n. Chicago, 99 U. S. 635; Escanaba Co. v. Chicago, 107 U. S. 678; Illinois Central R. R. Co. v. Illinois, 146 U. S. 387, 437; Harman v. Chicago, 147 U. S. 396; West Chicago Street R. R. Co. v. Chicago, 201U. S. 506,520. 124 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. floating of logs. The United States surveyed the river in 1837, but made no improvement above its mouth until 1896. Before the latter date, however, extensive improvements had been made from time to time by the city and by riparian owners. The river had become the inner harbor of Chicago and, measured by its tonnage, was one of the most important waterways of the globe. In number of arrivals and departures of vessels it led all the harbors of the United States. In tonnage it was second only to New York.1 In 1896 Congress made an appropriation “For improving the Chicago River, in Illinois, from its mouth to the stock yards on the South Branch and to Belmont avenue on the North Branch, as far as may be permitted by existing docks and wharves, to be dredged to admit passage by vessels drawing sixteen feet of water.” Act of June 3, 1896, c. 314, 29 Stat. 202, 228. This act was amended by the Act of June 4, 1897, c. 2, 30 Stat. 11, 47, which, as interpreted by the War Department, permitted a slight widening of the stream in certain places. The General Assembly of Illinois by resolution of April 22-23, 1897, [Laws, 1897, p. 308] gave assent to the United States’ acquiring by purchase or condemnation “all lands necessary for widening the Chicago river and its branches.” In 1899 Congress directed a sui5rey with a view to creating a deeper channel and adopting 21 feet “as the project depth for the improvement in Heu of that fixed by the Act of June third, eighteen hundred and ninety-six.” Act of March 3, 1899, c. 425, 30 Stat. 1121, 1156. No widening beyond the banks of the de jure stream was specifically authorized by this act, nor by any subsequent act. From time to time other appropriations were made by Congress for these improvements of the river, and work 1 Reports, War Department, Engineers, for 1893, pp. 2794-2804; for 1897, pp. 2793-2801; for 1900, pp. 3865-3871; for 1914, pp. 1157-1160; for 1916, pp. 1350-1354. TEMPEL v. UNITED STATES. 125 121. Opinion of the Court. was carried on thereunder.1 About 12.5 miles of the river was improved by the Government; and of this about 5 miles consisted of that part of the North Branch which lies between the main river and Belmont Avenue. Early in 1889 Tempel became the owner of certain land on the bank of the North Branch below Belmont Avenue. He leased his land for a brick yard; and by the terms of the lease the lessee was permitted to dredge the bottom of the river in front of the premises for the purpose of making brick from the clay thereunder. But the lessee was directed not to interfere with the upland; and he covenanted to deliver up the premises in the condition in which they were demised. Nevertheless, from time to time during a period of five years between 1889 and 1899, the lessee dug away, to a depth of from 6 to 14 feet, a large strip of the upland, extending in some places to a considerable width. In its natural state the stream opposite the plaintiff’s property varied in width from probably fifty to a hundred and fifty feet, and could be used only for floating logs and for travel by row boats or canoes; but before 1889 riparian owners had dug a channel and possibly greatly widened the stream; and schooners navigated to a point beyond Belmont Avenue. Between 1890 and 1899 boats drawing 5 to 8 feet of water were navigating the North Branch up to Belmont Avenue. In 1896 the river in front of Tempel’s property was in varying depths of from 6 to 14 or 15 feet. The United States did not do any dredging in front of 1 Act of July 1, 1898, c. 546, 30 Stat. 597, 632; June 6, 1900, c. 791, 31 Stat. 588; 626; June 13, 1902, c. 1079, 32 Stat. 331, 363, which authorized the construction of turning basins, but the one in the North Branch was constructed at a point considerably below the land in controversy; March 2, 1907, c. 2509, 34 Stat. 1073, 1102; May 28, 1908, c. 213, 35 Stat. 429. Reports, War Department, Engineers, for 1899, pp. 2826-2833; for 1900, pp. 3784-3788. 126 OCTOBER TERM, 1918. Opinion of the Court. 248 U. 8. Tempel’s property until 1899. Then it dredged a channel to the depth of 17 feet, about 30 feet wide—the excavation being made wholly in the then bed of the stream as submerged. Its next dredging there was in 1909, when this channel was deepened to 21 feet and widened to 60 feet, the excavation being again made wholly in the then bed of the stream as submerged. All of the dredging, both in 1899 and in 1909, which was not within the bed of the river in its natural state, was done within the limits of the strip of upland which had been submerged through the dredging done by the lessee prior to 1899. During the period from 1889 to 1899, the stream in front of Tempel’s premises was in constant and increasing use for the purpose of public navigation. The Government does not appear to have had knowledge of the fact that dredging had been done before 1899 by the lessee without the consent of Tempel or that the river had been widened by excavation. The reports of the Secretary of War show that he never specifically authorized, for the purpose of widening the river, the appropriation of any of the property herein involved and that the Government believed, when it dredged in front of Tempel’s property in 1899 and again in 1909, that the submerged land, in which the dredging was done, was either a part of the natural bed of the river, or that it had been dedicated by the owner for purposes of navigation, or that it had in some other manner become a part of the de jure stream.1 No 1 Reports, War Department, Engineers, for 1899, pp. 2828-2833; for 1900, pp. 3785-3788; for 1901, pp. 2993, 2995; for 1905, p. 545, show that, in the dredging under the project of 1896, the effort had been to secure title to all property necessary for the proposed development and that it was believed that (with exceptions not here material) this had been done. The property here involved was not included in the land which it was proposed to acquire. The reports also show that the Government was not aware that there was any property of a private owner which it was necessary to acquire in order to make the further improvement according to the 21-foot project; and in the TEMPEL v. UNITED STATES. 127 121. Opinion of the Court. objection was made by Tempel, until 1910, to the use, for navigation, of the river in front of his property; and he did not file any complaint as to the dredging of 1899. He had no knowledge, until 1910, of the dredging which had been done by his lessee, nor of that done by the Government. Promptly after learning of the dredging, Tempel demanded of the Government possession of that part of the land submerged which had formerly constituted a part of his upland. The demand was refused; and in 1911 he brought, in the District Court of the United States for the Northern District of Illinois, this suit, under the Tucker Act (Judicial Code, § 24, par. 20), to recover the value of property which he claimed had been taken by the Government. The complaint alleged that the river in front of his premises was, at the time he acquired the same and theretofore, a creek used only for surface drainage and was “not a navigable stream either in law or in fact”; that the Government “in the latter part of the year 1909 completely excavated a channel through the same” for the purpose of making said North Branch navigable; and that it holds possession thereof by virtue of the resolution of the General Assembly of Illinois above referred to; and that the reasonable value of the property taken was 810,000. The complaint did not refer either to the dredging done before 1889, when Tempel acquired the property, or to that done between 1889 and 1899 by Tempel’s lessee, or to that done in 1899 by the Government. The answer denied that the stream in front of accounting of the division of funds between different objects none were assigned to the securing of land for widening the river. Reports, War Department, Engineers, for 1907, p. 627; for 1908, p. 672; for 1909, p. 709; for 1910, pp. 784-785; for 1911, p. 842; for 1912, p. 1009; for 1913, p. 1119; for 1914, pp. 1157-1160. Nowhere does it appear that the Secretary of War ever authorized the taking of the property involved in this suit. 128 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. Tempel’s land was non-navigable when he purchased it or theretofore; asserted that all excavations by the Government were made in the center of the stream and were for the purpose of improving navigation; and denied that it had taken any of Tempel’s property under the resolution of the Illinois Assembly or otherwise. The trial court found as a fact, “That by reason of the changes in said river as aforesaid, the difference between the value of the premises of the petitioner at the time when he purchased the same as aforesaid, and the value of the same at the time that the demand as hereinbefore set forth was made, less the cost of reclaiming the same, were he entitled to make reclamation thereof, is $7,547.00.” As conclusions of law the trial court found that the North Branch was navigable in its natural state; that it was navigable in fact as early as 1889; that Tempel, having failed to complain of the use by the public of the stream in front of his property for a period of at least ten years prior to the first dredging by the United States, was estopped from thereafter disputing the navigability of the river; and that the river being then a navigable stream, the dredging of the bed in 1899 and in 1909 did not constitute a taking of Tempel’s property within the meaning of the Fifth Amendment. Judgment was entered for the United States; and the case comes here on writ of error. First. This is a suit, like United States v. Lynah, 188 U. S. 445, and United States n. Cress, 243 U. S. 316, to recover the value of property taken by the Government in making a river improvement. The property alleged to have been taken is land, part of which lies within the 30-foot channel first dredged by the Government in 1899; the balance within the additional 30 feet dredged by it in 1909, when the channel was widened to 60 feet; and all of which formed part of the river bed and was submerged when the Government commenced its improvement and has been since. But the property of Tempel, TEMPEL v. UNITED STATES. 129 121. Opinion of the Court. if any, which the Government has taken, is only the right to keep his land submerged, to navigate over it, and to improve it further for purposes of navigation. This right in the land the Government claimed and claims that it already possessed at the time when it dredged on the property in question; and it is the same right which the Government possesses in that portion of the present river bed lying within the original meander lines and which originally constituted the whole river bed. Under the law of Illinois, neither the United States nor the State owns the lands under a navigable river. Riparian owners own the fee to the middle of the stream, St. Louis v. Rutz, 138 U. S. 226, 242; subject to the paramount right of the Government to use the same and to make improvements therein for purposes of navigation, without the payment of compensation, West Chicago Street R. R. Co. v. Chicago, 201 U. S. 506, 520; United States v. Chandler-Dunbar Co., 229 U. S. 53, 62; Willink v. United States, 240 U. S. 572, 580. Included in such permissible improvement is dredging for the purpose of deepening the channel, Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82. It is only this right to use and improve for purposes of navigation that the Government claims here, a right which the Government undoubtedly possessed, if the land in question had been a part of the bed of the de jure stream, as was supposed. If the plaintiff can recover, it must be upon an implied contract. For, under the Tucker Act, the consent of the United States to be sued is (so far as here material) limited to claims founded 1 ‘upon any contract, express or implied”; and a remedy for claims sounding in tort is expressly denied. Bigby v. United States, 188 U. S. 400; Hijo v. United States, 194 U. S. 315, 323. As stated in United States v. Lynah, 188 U. S. 445, 462, 465: “The law will imply a promise to make the required compensation, where property to which the government asserts no title, 130 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. is taken, pursuant to an act of Congress, as private property to be applied for public uses”; or in other words: “Whenever in the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor.” But in the case at bar, both the pleadings and the facts found preclude the implication of a promise to pay. For the property applied to the public use is not and was not conceded to be in the plaintiff. Second. The answer, specifically denying that the United States has taken plaintiff’s land, excavated a channel through it, and claims possession thereof Under the resolution of the Illinois Assembly or otheiwise, asserts that in 1909 it did “excavate a channel in the Chicago river in the center of the stream and now claims possession thereof for the purpose of making more navigable the north branch.” The findings of fact made by the trial court (amplified by the reports of the Secretary of War, of which we take judicial notice) show that the Government claimed at the time of the alleged taking and now claims that it already possessed, when it made its excavation in 1909, the property right actually in question. It is unnecessary to determine whether this claim of the Government is well-founded. The mere fact that the Government then claimed and now claims title in itself and .that it denies title in the plaintiff, prevents the court from assuming jurisdiction of the controversy. The law cannot imply a promise by the Government to pay for a right over, or interest in, land, which right or interest the Government claimed and claims it possessed before it utilized the same. If the Government’s claim is unfounded, a property right of plaintiff was violated; but the cause of action therefor, if any, is one sounding in tort; and for such, the Tucker Act affords no remedy. Hill v. United States, 149 U. S. 593, which both in its pleadings and its facts bears a strong resem- TEMPEL v. UNITED STATES. 131 121. Opinion of the Court. blance to the case at bar, is conclusive on this point. See also Schillinger v. United States, 155 U. S. 163. The case at bar is entirely unlike both the Lynah Case and the Cress Case. In neither of those cases does it appear that, at the time of taking, there was any claim by the Government of a right to invade the property in question without the payment of compensation. Under such circumstances it must be assumed that the Government intended to take and to make compensation for any property taken, so as to afford the basis for an implied promise. And when the implied promise to pay has once arisen, a later denial by the Government (whether at the time of suit or otherwise) of its liability to make compensation does not destroy the right in contract and convert the act into a tort. In both of those cases the facts required the implication of a promise to pay. But here the Government has contended since the beginning of the improvement that, at the time of the dredging in 1899 and in 1909, it possessed the right of navigation over the land in question; which right of navigation, if it existed, gave it the right to dredge further in order to improve navigation. The facts preclude implying a promise to pay. If the Government is wrong in its contention, it has committed a tort. The United States has not conferred upon the District Court jurisdiction to determine such a controversy. See Cramp & Sons v. Curtis Turbine Co., 246 U. S. 28, 40-41. The District Court, instead of rendering judgment for the United States, should have dismissed the suit for want of jurisdiction. Judgment reversed and case remanded to the District Court with directions to dismiss it for want of jurisdiction. (Mr. Justice McReynolds took no part in the consideration and decision of this case.) 132 OCTOBER TERM, 1918. Syllabus. 248 U. S. UNITED STATES v. SPEARIN. SPEARIN v. UNITED STATES. APPEALS FROM THE COURT OF CLAIMS. Nos. 44,45. Argued November 14,15,1918.—Decided December 9,1918. S agreed, for a lump sum, to build a dry-dock in a Navy Yard in accordance with plans and specifications prepared by the Government and which provided, inter alia, for reconstructing a sewer which intersected the site, and prescribed the new location, dimensions, and materials therefor. S rebuilt the sewer as so required, and it was accepted by the Government, but owing to a dam, unknown to both parties, existing in a connecting sewer, within the Yard but beyond the limits of the operations, and to general conditions of drainage, known to the Government but not to S, back waters burst the new sewer, during heavy rain and high tide, and flooded the dry-dock excavation, causing damage and menacing the work. S, having declined to proceed unless the Government paid or assumed the damage and made safe the sewer system or assumed responsibility for future damage due to insufficient capacity, location and design, the Government annulled the contract. Held: (1) The provision for reconstructing the sewer was part of the dry-dock contract and not collateral to it. P. 136. (2) The articles prescribing the character, dimensions, and location of the sewer imported a warranty that if so constructed the sewer would prove adequate. P. 137. (3) Such warranty was not overcome by general clauses requiring the contractor to examine the site, check up the plans, and assume responsibility for the work until completion and acceptance. Id. (4) Neither Rev. Stats., § 3744, providing that contracts with the Navy Department shall be reduced to writing, nor the parol evidence rule, precluded reliance on such warranty, implied by law. Id. (5) The contractor, upon breach of the warranty, was not obliged to reconstruct the sewer and proceed at his peril, but, upon the Government’s repudiation of responsibility, was justified in refusing to resume work on the dry-dock. P. 138. (6) Having annulled the contract, the Government was liable for all damages resulting from the breach, including the contractor’s proper UNITED STATES v. SPEARIN. 133 132. Opinion of the Court. expenditures on the work (less receipts from the Government) and the profits he would have earned if allowed fully to perform. Id. 51 Ct. Clms. 155, affirmed. The case is stated in the opinion. Mr. Assistant Attorney General Thompson for the United States. Mr. Charles E. Hughes, with whom Mr. Frank W. Hackett and Mr. Alfred S. Brown were on the brief, for Spearin. Mr. Justice Brandeis delivered the opinion of the court. Spearin brought this suit in the Court of Claims, demanding a balance alleged to be due for work done under a contract to construct a dry-dock and also damages for its annulment. Judgment was entered for him in the sum of $141,180.86; (51 Ct. Clms. 155) and both parties appealed to this court. The Government contends that Spearin is- entitled to recover only $7,907.98. Spearin claims the additional sum of $63,658.70. First. The decision to be made on the Government’s appeal depends upon whether or not it was entitled to annul the contract. The facts essential to a determination of the question are these: Spearin contracted to build for $757,800 a dry-dock at the Brooklyn Navy Yard in accordance with plans and specifications which had been prepared by the Government. The site selected by it was intersected by a 6-foot brick sewer; and it was necessary to divert and relocate a section thereof before the work of constructing the drydock could begin. The plans and specifications provided that the contractor should do the work and prescribed the dimensions, material, and location of the section to be 134 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. substituted. All the prescribed requirements were fully complied with by Spearin; and the substituted section was accepted by the Government as satisfactory. It was located about 37 to 50 feet from the proposed excavation for the dry-dock; but a large part of the new section was within the area set aside as space within which the contractor’s operations were to be carried on. Both before and after the diversion of the 6-foot sewer, it connected, within the Navy Yard but outside the space reserved for work on the dry-dock, with a 7-foot sewer which emptied into Wallabout Basin. ' About a year after this relocation of the 6-foot sewer there occurred a sudden and heavy downpour of rain coincident with a high tide. This forced the water up the sewer for a considerable distance to a depth of 2 feet or more. Internal pressure broke the 6-foot sewer as so relocated, at several places; and the excavation of the dry-dock was flooded. Upon investigation, it was discovered that there was a dam from .5 to 5^ feet high in the 7-foot sewer; and that dam, by diverting to the 6-foot sewer the greater part of the water, had caused the internal pressure which broke it. Both sewers were a-part of the city sewerage system; but the dam was not shown either on the city’s plan, nor on the Government’s plans and blue-prints, which were submitted to Spearin. On them the 7-foot sewer appeared as unobstructed. The Government officials concerned with the letting of the contract and construction of the dry-dock did not know of the existence of the dam. ‘The site selected for the dry-dock was low ground; and during some years prior to making the contract sued on, the sewers had, from time to time, overflowed to the knowledge of these Government officials and others. But the fact had not been communicated to Spearin by anyone. He had, before entering into the contract, made a superficial examination of the premises and sought from the civil engineer’s office at the Navy UNITED STATES v. SPEARIN. 135 132. Opinion of the Court. Yard information concerning the conditions and probable cost of the work; but he had made no special examination of the sewers nor special enquiry into the possibility of the work being flooded thereby; and had no information on the subject. Promptly after the breaking of the sewer Spearin notified the Government that he considered the sewers under existing plans a menace to the work and that he would not resume operations unless the Government either made good or assumed responsibility for the damage that had already occurred and either made such changes in the sewer system as would remove the danger or assumed responsibility for the damage which might thereafter be occasioned by the insufficient capacity and the location and design of the existing sewers. The estimated cost of restoring the sewer was $3,875. But it was unsafe to both Spearin and the Government’s property to proceed with the work with the 6-foot sewer in its then condition. The Government insisted that the responsibility for remedying existing conditions rested with the contractor. After fifteen months spent in investigation and fruitless correspondence, the Secretary of the Navy annulled the contract and took possession of the plant and materials on the site. Later the dry-dock, under radically changed and enlarged plans, was completed by other contractors, the Government having first discontinued the use of the 6-foot intersecting sewer and then reconstructed it by modifying size, shape and material so as to remove all danger of its breaking from internal pressure. Up to that time $210,939.18 had been expended by Spearin on the work; and'he had received from the Government on account thereof $129,758.32. The court found that if he had been allowed to complete the contract he would have earned a profit of $60,000, and its judgment included that sum. The general rules of law applicable to these facts are well 136 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. settled. 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 unforeseen difficulties are encountered. Day v. United States, 245 U. S. 159; Phoenix Bridge Co. v. United States, 211 U. S. 188. Thus one who undertakes to erect a structure upon a particular site, assumes ordinarily the risk of subsidence of the soil. Simpson v. United States, 172 IT. S. 372; Dermott v. Jones, 2 Wall. 1. But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. MacKnight Flintic Stone Co. v. The Mayor, 160 N. Y. 72; Filbert v. Philadelphia, 181 Pa. St. 530; Bentley v. State, 73 Wisconsin, 416. See Sundstrom v. New York, 213 N. Y. 68. This responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the work, as is shown by Christie v. United States, 237 U. S. 234; Hollerbach v. United States, 233 U. S. 165, and United States v. Utah &c. Stage Co., 199 U. S. 414, 424, where it was held that the contractor should be relieved, if he was misled by erroneous statements in the specifications. In the case at bar, the sewer, as well as the other structures, was to be built in accordance with the plans and specifications furnished by the Government. The construction of the sewer constituted as much an integral part of the contract as did the construction of any part of the dry-dock proper. It was as necessary as any other work in the preparation for the foundation. It involved no separate contract and no separate consideration. The contention of the Government that the present case is to be distinguished from the Bentley Case, supra, and other similar cases, on the ground that the contract with reference to the sewer is purely collateral, is clearly without UNITED STATES v. SPEARIN. 137 132. Opinion of the Court. merit. The risk of the existing system proving adequate might have rested upon Spearin, if the contract for the dry-dock had not contained the provision for relocation of the 6-foot sewer. But the insertion of the articles prescribing the character, dimensions and location of the sewer imported a warranty that, if the specifications were complied with, the sewer would be adequate. This implied warranty is not overcome by the general clauses requiring the contractor, to examine the site,1 to check up the plans,1 2 and to assume responsibility for the work until completion and acceptance.3 The obligation to examine the site did not impose upon him the duty of making a diligent enquiry into the history of the locality with a view to determining, at his peril, whether the sewer specifically prescribed by the Government would prove adequate. The duty to check plans did not impose the obligation to pass upon their adequacy to accomplish the purpose in view. And the provision concerning contractor’s responsibility cannot be construed as abridging rights arising under specific provisions of the contract. Neither § 3744 of the Revised Statutes, which pro- 1 “271. Examination of site.—Intending bidders are expected to examine the site of the proposed dry-dock and inform themselves thoroughly of the actual conditions and requirements before submitting proposals.” 2 “25. Checking plans and dimensions; lines and levels.—The contractor shall check all plans furnished him immediately upon their receipt and promptly notify the civil engineer in charge of any discrepancies discovered therein. . . . The contractor will be held responsible for the lines and levels of his work, and he must combine all materials properly, so that the completed structure shall conform to the true intent and meaning of the plans and specifications.” * “21. Contractor's responsibility.—The contractor shall be responsible for the entire work and every part thereof, until completion and final acceptance by the Chief of Bureau of Yards and Docks, and for all tools, appliances, and property of every description used in connection therewith. . . .” 138 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. vides that contracts of the Navy Department shall be reduced to writing, nor the parol evidence rule, precludes reliance upon a warranty implied by law. See Kellogg Bridge Co. v. Hamilton, 110 U. S. 108. The breach of warranty, followed by the Government’s repudiation of all responsibility for the past and for making working conditions safe in the future, justified Spearin in refusing to resume the work. He was not obliged to restore the sewer and to proceed, at his peril, with the construction of the dry-dock. When the Government refused to assume the responsibility, he might have terminated the contract himself, Anvil Mining Co. v. Humble, 153 U. S. 540, 551-552; but he did not. When the Government annulled the contract without justification, it became liable for all damages resulting from its breach. Second. Both the main and the cross-appeal raise questions as to the amount recoverable. The Government contends that Spearin should, as requested, have repaired the sewer and proceeded with the work; and that having declined to do so, he should be denied all recovery except $7,907.98, which represents the proceeds of that part of the plant which the Government sold plus the value of that retained by it. But Spearin was under no obligation to repair the sewer and proceed with the work, while the Government denied responsibility for providing and refused to provide sewer conditions safe for the work. When it wrongfully annulled the contract, Spearin became entitled to compensation for all losses resulting from its breach. Spearin insists that he should be allowed the additional sum of $63,658.70, because, as he alleges, the lower court awarded him (in addition to $60,000 for profits) not the difference between his proper expenditures and his receipts from the Government, but the difference between such receipts and the value of the work, materials, and plant (as reported by a naval board appointed by the de- LUCKENBACH v. McCAHAN SUGAR CO. 139 132. * Syllabus. fendant). Language in the findings of fact concerning damages lends possibly some warrant for that contention; but the discussion of the subject in the opinion makes it clear that the rule enunciated in United States v. Behan, 110 U. S. 338, which claimant invokes, was adopted and correctly applied by the court. The judgment of the Court of Claims is, therefore, Affirmed. (Mr. Justice McReynolds took no part in the consideration and decision of this case.) LUCKENBACH ET AL. v. W. J. McCAHAN SUGAR REFINING COMPANY AND THE INSULAR LINE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 51. Argued November 18, 1918.—Decided December 9, 1918. Where the bills of lading stipulated that the carrier should have the benefit of any insurance that might be effected by the shipper, but the shipper’s policies provided that the insurers should not be liable for merchandise shipped under bills containing such stipulations or in the possession of any carrier who might be liable for its loss or damage, held, that an arrangement between the insurers and the shipper, whereby the former loaned to the latter the amount of a loss caused by the carrier’s negligence, to be repaid only in so far as the shipper recovered from the carrier, otherwise to operate in effect as absolute payment under the policies, and whereby, as security, the shipper pledged such prospective recovery and the bills of lading and agreed to prosecute suit against the carrier at the expense and under the exclusive direction and control of the insurers,—was a lawful arrangement; that the loan was not a payment of the insurance and the carrier was not entitled to the benefit of it; and that a libel 140 OCTOBER TERM, 1918. Argument for Petitioners. 248 U. S. brought in the shipper’s name, for the benefit of the insurers, pur« suant to the agreement, could be maintained against the carrier and the ship. P. 148. Liability for unseaworthiness, resting on the personal contract of the shipowner, is not limited by Rev. Stats., § 4283, or the Act of June 26, 1884. P. 149. A time charter characterizing the vessel as “tight, staunch, [and] strong,” on delivery, and binding the owners to “maintain her in a thoroughly efficient state in hull and machinery for and during the service,” imports a warranty, without limitation, of seaworthiness, not merely at delivery, but at the commencement of every voyage. P. 150. A time charter, like a charter for a single voyage, is not a demise of the ship, and leaves the charterer without control over her maintenance and repair, though liable without limitation to shippers for losses due to unseaworthiness discoverable by the exercise of due diligence on the part of the owners. Id. A charter party was signed by but one of the owners, but the rest, being impleaded with him, admitted that he acted for all, and the liability of all, if liability existed, was not controverted. Held, that a decree for damages should run against all. P. 151. 235 Fed. Rep. 388, modified and affirmed. The case is stated in the opinion. Mr. Roscoe H. Hupper, with whom Mr. Peter S. Carter and Mr. Charles C. Burlingham were on the brief, for petitioners: In this case (unlike Pennsylvania R. R. Co. v. Burr, 130 Fed. Rep. 847, and Bradley v. Lehigh Valley R. R. Co., 153 Fed. Rep. 350), we have complete evidence of the intentions of the underwriters when the moneys were advanced. The effect is to make the payments unconditional payments of insurance. It may be that the cargo owners’ acceptance of the bill of lading broke the warranty, and that the insurance companies could have refused to pay; but it is clear that any breach was waived and was always intended to be waived. This waiver cannot convert into something other LUCKENBACH v. McCAHAN SUGAR CO. 141 139. Argument for Petitioners. than insurance the money which the cargo owners received in return for their insurance premiums. So far as the carrier is concerned, there need have been no insurance policies at all, and it matters not in what form nr under what arrangement the money is paid the cargo owner, so long as it is in fact a payment to him for his own benefit. The only conclusion to be reached on the whole evidence is that there was an unconditional payment of insurance. This case is distinguished from Inman v. South Carolina Ry. Co., 129 U. S. 128. The insurance companies’ right to demand repayment of the “loan” is merely their right of subrogation parading in disguise. The value of the two rights is the same: the amount received from the carrier. They depend upon the same condition: liability of the carrier. The only distinction is in name. Since the insurance companies made their “loan” agreements with the cargo owners after they knew the latter were bound by contract to give the carrier the benefit of insurance, their rights are subordinate to those of the carrier, by analogy with the rule in equity that a second assignee taking with notice of the rights of a prior assignee is postponed. See Pomeroy’s Equity Jurisprudence, 3d ed., §§ 713, 715. The situation is also similar to that presented by a prior equity, uniformly held to be a burden on the legal estate. Id., § 730; Great Lakes & St. L. T. Co. v. Scranton Coal Co., 239 Fed. Rep. 603, 609. The authorities hold that the so-called “loans” are payments of insurance. Our contentions are supported by Roos v. Philadelphia, Wilmington & Baltimore R. R. Co., 199 Pa. St. 378; Lancaster Mills v. Merchants Cotton Press Co., 89 Tennessee, 1; Deming & Co. v. Merchants Cotton Press Co., 90 Tennessee, 310. The Limited Liability Statute applies to every case of liability on account of the vessel where the owner is free 142 OCTOBER TERM, 1918. Argument for Petitioners. 248 U. S. from privity or knowledge. There is no principle of construction to justify the exclusion of specific cases falling within the language of the statute, which has always been liberally construed. That the statute contemplated contracts is made clear by the reference to property, goods and merchandise shipped or put on board the vessel, and by the reference in § 4286, Rev. Stats., to the chartering of a vessel. When the Limited Liability Act was passed in 1851, the transportation of goods was always pursuant to contract, just as now, either by bill of lading or charter-party, to which the warranties of seaworthiness attached. Ships do not move and no service is performed with or by means of ships except by virtue of a contract or an agreement on the part of the shipowner, and therefore the personal contract doctrine could be applied to prevent limitation of liability in every case, as to carriage of passengers and cargo. This case is not similar to those where limitation of liability has been denied because of a “personal contract.” Great Lakes Towing Co. v. Mills Transportation Co., 155 Fed. Rep. 11; The Loyal, 204 Fed. Rep. 930; The Amos D. Carver, 35 Fed. Rep. 665, and Richardson v. Harmon, 222 U. S. 96, 106, illustrate the meaning of “personal contract,” and show that a personal contract is one to be performed by the owner entirely irrespective of the vessel. Benner Line v. Pendleton, 217 Fed. Rep. 497; 246 U. S. 353, involved a voyage charter-party containing a provision that the vessel should be “tight, staunch, strong, and in every way fitted” for the voyage, and the loss was found to have resulted from unseaworthiness existing when the schooner began the voyage. In this case the seaworthiness of the Juha Luckenbach when delivered under the time charter cannot be questioned. We cannot believe that the right to limitation depends on the accident of who signs the charter; it depends on the nature of the contract. Limitation has been granted notwithstand- LUCKENBACH v. McCAHAN SUGAR CO. 143 139. Argument for The Insular Line. ing contracts which were as much personal contracts as the charter-party in the case at bar. See Thé Republic, 57 Fed. Rep. 240, affd. 61 Fed. Rep. 109; LaBourgogne, 144 Fed. Rep. 781, affd. 210 U. S. 95; The Jane Grey, 99 Fed. Rep. 582, 585. Mr. Lawrence Kneeland for the W. J. McCahan Sugar Refining Co., respondent. Mr. J. Parker Kirlin, with whom Mr. Mark W. Maclay, Jr., was on the brief, for the Insular Line, respondent: The provision in the contract of carriage, that the carrier was to receive the benefit of any insurance, is valid, and prevents either the owner or insurer from maintaining an action against the carrier upon any terms inconsistent therewith. Phœnix Insurance Co. v. Erie & Western Transportation Co., 117 U. S. 312, 325. If the warranties had any effect at all, it was to avoid the policies when the libelant accepted the bill of lading with the provision giving the carrier the benefit of insurance. Carstairs v. Mechanics Insurance Co., 18 Fed. Rep. 473; Inman v. South Carolina Ry. Co., 129 U. S. 128. Payment of the loss with full knowledge of the facts was a waiver. The transaction was intended, and operated, as a final settlement with the insured. The so-called loan receipts do not evidence any loan justly so described, but merely secure to the insurers their ordinary rights of subrogation upon payment. In equity subrogation accrues to the insurer without any express stipulation, and he may assert it in his own name. By making the advance and entering into the agreement the insurer adjusted and paid the loss as between him and the assured, and the whole transaction was at an end. It is in this respect that the case at bar differs from Inman v. South Carolina Ry. Co., 129 U. S. 128. The insurer’s right of subrogation is limited by the benefit of insurance 144 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. clause in the bill of lading. Wager v. Providence Insurance Co., 150 U. S. 99,108. Mr. Justice Brandeis delivered the opinion of the court. The W. J. McCahan Sugar Refining Company shipped a cargo of sugar from Porto Rico to Philadelphia by the Julia Luckenbach, which was under charter to the Insular Line; and the cargo suffered severe damage. In the District Court of the United States for the Southern District of New York, a libel seeking damages was filed in the name of the shipper in personam against the Insular Line and in rem against the steamer. It alleged that the damages resulted from unseaworthiness of the hull, existing at the commencement of the voyage. The petitioners, owners of the ship, were impleaded. The bills of lading sued on contained a clause relieving the carrier from liability for damages arising from “any latent defect in hull, . . . or by unseaworthiness of the ship, even existing at time of shipment, or sailing on the voyage, but not discoverable by the exercise of due diligence by the ship owner or manager; . . .” The libel alleged that the unseaworthiness would have been discovered, had due diligence been exercised. The District Court so found and held that the libelant was entitled to recover. The damages were agreed to be $87,526.65, with interest; and the value of the ship and pending freight was found or agreed to be $66,600. The owners duly moved for limitation of liability. The District Court found that the damages sustained were occasioned without the privity or knowledge of the owners; held that they were entitled to limit their liability, both as against the shipper and as against the charterer, who claimed indemnity; and ordered that the owners should pay the shipper’s claim to the extent of the value of the LUCKENBACH v. McCAHAN SUGAR CO. 145 139. Opinion of the Court. ship and pending freight; and that the balance should be paid by the Insular Line. 235 Fed. Rep. 388. Both the owners and the Insular Line appealed to the Circuit Court of Appeals. That court modified the decree, so as to award that payment of the full amount be made to the shipper primarily by the steamer and the owners; and that the charterer should be called upon to make payment only of the deficiency, if any. 235 Fed. Rep. 388. The case comes here on writ of certiorari granted on the petition of the owners. 242 U. S. 638. It is urged, on three grounds, that the decision of the Circuit Court of Appeals should be reversed and that the District Court should be directed, either to dismiss the libel or to limit the owners’ liability to the value of the ship and pending freight. First. The owners contend that both lower courts erred in holding that the steamer was unseaworthy at the commencement of her voyage and that due diligence to make her seaworthy had not been exercised. The issue involved is one of fact; and no reason appears why the general rule should not apply, that concurrent decisions of the two lower courts on an issue of fact will be accepted by this court unless shown to be clearly erroneous. The Wildcroft, 201 U. S. 378, 387; The Carib Prince, 170 U. S. 655, 658. Second. The owners (and also the charterer) contend that the libel should be dismissed, because the shipper had already been compensated for the loss by insurance which it effected; and that the carrier is entitled to the full benefit of this insurance. The shipper had effected full insurance. The bills of lading sued on contain the following clause: “In case of any loss, detriment or damage done to or sustained by said goods or any part thereof for which the carrier shall be liable to the shipper, owner or consignee, the carrier shall to the extent of such liability have the 146 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. full benefit of any insurance that may have been effected upon or on account of said goods.” Such a clause is valid, because the carrier might himself have insured against the loss, even though occasioned by his own negligence; and if a shipper under a bill of lading containing this provision effects insurance and is paid the full amount of his loss, neither he nor the insurer can recover against the carrier. Phoenix Insurance Co. v. Erie & Western Transportation Co., 117 IT. S. 312; Wager v. Providence Insurance Co., 150 U. S. 99. In the case at bar, the shipper has received from the insurance companies an amount equal to the loss; but it is contended that the money was received as a loan or conditional payment merely, and that, therefore, the carrier is not relieved from liability. The essential facts are these: The policies under which the shipper was insured contained the following, or a similar, provision: “Warranted by the assured free from any liability for merchandise in the possession of any carrier or other bailee, who may be liable for any loss or damage thereto; and for merchandise shipped under a bill of lading containing a stipulation that the carrier may have the benefit of any insurance thereon.” The situation was, therefore, this: The carrier (including in this term the charterer, the ship, and the owners) would, in no event, be liable to the shipper for the damages occasioned by unseaworthiness, unless guilty of negligence. The insurer would, in no event, be liable to the shipper, if the carrier was liable. In case the insurer should refuse to pay until the shipper had established that recovery against the carrier was not possible— prompt settlement for loss (which is essential to actual indemnity and demanded in the interest of commerce) would be defeated. If, on the other hand, the insurers should settle the loss, before the question of the carrier’s LUCKENBACH v. McCAHAN SUGAR CO. 147 139. Opinion of the Court. liability for loss had been determined, the insurer would lose the benefit of all claims against the carrier, to which it would be subrogated in the absence of a provision to the contrary in the bill of lading, The “Potomac,” 105 U. S. 630, 634; and the carrier would be freed from liability to any one. In order that the shipper should not be deprived of the use of money which it was entitled to receive promptly after the loss, either from the carrier or from the insurers, and that the insurer should not lose the right of subrogation, agreements in the following (or similar) form were entered into between the insurers and the shipper: “New York, Aug. 15, 1912. “Received from the Federal Insurance Company, Twenty-three hundred four and 16/100 dollars, as a loan and repayable only to the extent of any net recovery we may make from any carrier, bailee or others on account of loss to our property (described below) due to damage on S/S Julia Luckenbach from Porto Rico/Philadelphia, on or about-----------------, 190—, or from any insur- ance effected by any carrier, bailee or others on said property, and as security for such repayment we hereby pledge to the said Federal Insurance Company, the said recovery and deliver to them duly endorsed the bills of lading for said property and we agree to enter and prosecute suit against said railroad, carrier, bailee, or others on said claim with all due diligence at the expense and under the exclusive direction and control of the said Federal Insurance Company. The W. J. McCahan Sugar Refining Co., $2,304.16 R. S. Pomeroy, Treasurer. “Description of property:—Sugar.” Upon delivery of this and similar agreements, the shipper received from the insurance companies, promptly after the adjustment of the loss, amounts aggregating 148 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. the loss; and this libel was filed in the name of the shipper, but for the sole benefit of the insurers, through their proctors and counsel, and wholly at their expense. If, and to the extent (less expenses) that, recovery is had, the insurers will receive payment or be reimbursed for their so-called loans to the shipper. If nothing is recovered from the carrier, the shipper will retain the money received by it without being under obligation to make any repayment of the amounts advanced. In other words, if there is no recovery here, the amounts advanced will operate as absolute payment under the policies. Agreements of this nature have been a common practice in business for many years. Pennsylvania R. R. Co. v. Burr, 130 Fed. Rep. 847; Bradley v. Lehigh Valley R. R. Co., 153 Fed. Rep. 350. It is clear that if valid and enforced according to their terms, they accomplish the desired purpose. They supply the shipper promptly with money to the full extent of the indemnity or compensation to which he is entitled on account of the loss; and they preserve to the insurers the claim against the carrier to which by the general law of insurance, independently of special agreement, they would become subrogated upon payment by them of the loss. The carrier insists that the transaction, while in terms a loan, is in substance a payment of insurance; that to treat it as if it were a loan, is to follow the letter of the agreement and to disregard the actual facts; and that to give it effect as a loan is to sanction fiction and subterfuge. But no good reason appears either for questioning its legality or for denying it effect. The shipper is under no obligation to the carrier to take out insurance on the cargo ; and the freight rate is the same whether he does or does not insure. The general law does not give the carrier, upon payment of the shipper’s claim, a right by subrogation against the insurers. The insurer has, on the other hand, by the general law, a right of subrogation against the carrier. Such claims, like tangible LUCKENBACH v. McCAHAN SUGAR CO. 149 139. Opinion of the Court. salvage, are elements which enter into the calculations of actuaries in fixing insurance rates; and, at least in the mutual companies, the insured gets some benefit from amounts realized therefrom. It is essential to the performance of the insurer’s service, that the insured be promptly put in funds, so that his business may be continued without embarrassment. Unless this is provided for, credits which are commonly issued against drafts or notes with bills of lading attached, would not be granted. Whether the transfer of money or other thing shall operate as a payment, is ordinarily a matter which is determined by the intention of the parties to the transaction. Compare The Kimball, 3 Wall. 37, 44. The insurer could not have been obliged to pay until the condition of their liability (i. e., non-liability of the carrier) had been established. The shipper could not have been obliged to surrender to the insurers the conduct of the litigation against the carrier, until the insurers had paid. In consideration of securing them the right to conduct the litigation, the insurers made the advances. It is creditable to the ingenuity of business men that an arrangement should have been devised which is consonant both with the needs of commerce and the demands of justice. Third. The owners contend that, under § 4283 of the Revised Statutes and § 18 of the Act of June 26, 1884, c. 121, 23 Stat. 53, 57, their liability should have been limited to the value of the ship and her pending freight; because the District Court found that her unseaworthiness was without their privity or knowledge; and this finding was not disturbed by the Circuit Court of Appeals. But the liability of the owners sought to be enforced here is one resting upon their personal contract; and to such liabilities the limitations acts do not apply. Pendleton v. Benner Line, 246 U. S. 353. It is also urged that, as between the owners and the Insular Line, the original warranty of seaworthiness was 150 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. exhausted upon delivery of the ship to the charterers and that the maintenance clause relied upon does not import a warranty of seaworthiness at the commencement of each voyage under a time charter, but merely an obligation to pay the expense of keeping her hull and machinery in repair throughout the service. Neither the language of the clause nor the character of time charters afford support for this contention. The charter of the vessel states clearly that the vessel “being, on her delivery, tight, staunch, [and] strong” the owners will “maintain her in a thoroughly efficient state in hull and machinery for and during the service”—not pay the expense of maintaining her. This duty to maintain the vessel in an efficient state is imposed by the contract, because a time charter, like a charter for a single voyage, is not a demise of the ship. In both, the charterer is without control over her repair and maintenance. In operations under each the charterer becomes liable to shippers without limitation for losses due to unseaworthiness discoverable by the exercise of due diligence on the part of the owners; and in each case he requires for his protection a warranty, without limitation, of seaworthiness at the commencement of every voyage. Compare The Burma, 187 Fed. Rep. 94; Whipple v. Mississippi & Yazoo Packet Co., 34 Fed. Rep. 54; McIver & Co., Ltd., v. Tate Steamers, Ltd., [1903] 1 K. B. 362; Park v. Duncan & Sons, 35 Scottish Law Rep. 378. If Giertsen v. Turnbull & Co., 45 Scottish Law Rep. 916, strongly relied upon by the owners, is inconsistent with this view, it should be disregarded. Fourth. The vessel was owned 54/80ths by Edgar F. Luckenbach, as sole trustee of the estate of Lewis Lucken-bach; 10/80ths by Edgar F. Luckenbach, individually; and 16/80ths by John W. Weber and Hattie W. Luckenbach, executors of the estate of Edward Luckenbach. All of these parties were impleaded as owners. The charter party was signed only by “Estate of Lewis Luckenbach, MacMATH v. UNITED STATES. 151 139. Syllabus. per Edgar F. Luckenbach, Trustee;” but it was admitted by all the petitioners that Edgar F. Luckenbach, Trustee, in so signing the charter party, acted for all the owners and intended to bind all. The decree in the District Court declares that libelant was entitled to recovery “from the respondents Edgar F. Luckenbach et al., her owners.” The decree in the Circuit Court of Appeals adjudged (presumably through inadvertence) that the payment should be made by “the Estate of Luckenbach.” The right to recover against all the owners, for the full amount, in case any of them was so liable, was not controverted. The decree of the Circuit Court of Appeals should be modified so as to render all the owners liable. Compare Pendleton v. Benner Line, 246 U. S. 353. As so modified, the decree is Affirmed. MacMATH, ADMINISTRATRIX OF MacMATH, v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 79. Argued November 22, 1918.—Decided December 9, 1918. Revised Statutes, § 2621, authorizes Collectors to employ, with the approval of the Secretary of the Treasury, weighers at the several ports, and does not prescribe their number; the Act of July 26,1866, c. 269, § 3, 14 Stat. 289, fixes their salaries at $2,500; Rev. Stats., § 2634, authorizes the Secretary to fix the number and compensation of clerks to be employed by any Collector. M received successive appointments as clerk “to act as acting U. S. weigher,” at compensations less than $2,500 per annum, and took oath as such. Held, that the fact that he was assigned, and performed, the duties of weigher did not place him in that office and entitle him to its salary. 51 Ct. Clms. 356, affirmed. The case is stated in the opinion. 152 OCTOBER TERM, 1918. Opinion of the Court. 248 U. S. Mr. William E. Russell, with whom Mr. Seward G. Spoor, Mr. Louis T. Michener and Mr. Perry G. Michener were on the briefs, for appellant. Mr. Assistant Attorney General Thompson, for the United States, submitted. Mr. Justice Brandeis delivered the opinion of the court. When an office with a fixed salary has been created by statute, and a person duly appointed to it has qualified and entered upon the discharge of his duties, he is entitled, during his incumbency, to be paid the salary prescribed by statute; and effect will not be given to any attempt to deprive him of the right thereto, whether it be by unauthorized agreement, by condition, or otherwise. United States v. Andrews, 240 U. S. 90; Glavey v. United States, 182 U. S. 595. Section 3 of the Act of July 26, 1866, c. 269, 14 Stat. 289, provides, that weighers at the port of New York shall receive an annual salary of $2,500. Section 2621 of the Revised Statutes authorizes collectors to employ, with the approval of the Secretary of the Treasury, weighers at the several ports; and it does not prescribe their number. Section 2634 authorizes the Secretary of the Treasury to fix the number and compensation of clerks to be employed by any collector. The statutes appear to have made no specific provision for the appointment of assistant or acting United States weighers. On May 12, 1909, plaintiff’s intestate (who had been appointed on August 1,1896, “assistant weigher of customs” at a salary, “when employed,” of $3 per diem and had later received a like appointment at $4 per diem) was appointed by the collector “clerk, class 3, new office, to act as acting U. S. weigher” with compensation at the rate MacMATH v. UNITED STATES. 153 151. Opinion of the Court. of $1,600 per annum. On August 18, 1911, he received a like appointment as clerk, class 4, at the rate of $1,800 per annum. He continued to perform the duties assigned and was paid the salary named until his death, October 8, 1913. In February, 1915, his administratrix filed with the Auditor of the Treasury a claim for salary of her intestate as “United States weigher of customs” at the rate of $2,500 per annum, from May 12, 1909, to and including October 7, 1913. Upon disallowance of the claim she brought this suit in the Court of Claims for the amount, namely, $11,013.89. The court found for the defendant and entered judgment dismissing the petition. The case conies here on appeal. There is a fundamental objection to the allowance of the claim or any part thereof. MacMath was never appointed weigher and never held office as such. His only appointment was that of clerk; his oath of office being as “clerk and acting U. S. weigher, class 3.” The Secretary of the Treasury clearly had the right to create and the collector to make appointment to the position of clerk and to designate duties of the appointee. The fact that the incumbent performed also some or all the duties of a weigher does not operate to promote him automatically to the statutory office of weigher. And the fact that his appointment as clerk in 1909 was made as a part of a reorganization of the service, whereby four of the five positions of United States weigher were abolished, is immaterial; except as showing even more clearly that it was the intention not to appoint him weigher. No contention is, or could successfully be, made that the weighing should be paid for as an extra service, even if it was not a duty attaching to his position as clerk. See United States v. Garbing er, 169 U. S. 316. We have, therefore, no occasion to consider whether effect should be given to the agreement by the intestate not to make claim to compensation as acting weigher, or 154 OCTOBER TERM, 1918. Syllabus. 248 U. S. to his acceptance of the lower compensation without protest during the entire term of his service; nor need we consider the effect of § 2 of the Act of July 31, 1894, c. 174, 28 Stat. 162, 205, which provides that “no person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law.” The judgment of the Court of Claims is Affirmed. PETRIE ET AL. v. NAMPA AND MERIDIAN IRRIGATION DISTRICT. ERROR TO THE SUPREME COURT OF THE STATE OF IDAHO. No. 47. Argued November 19,1918.—Decided December 9, 1918. Upon an application to an Idaho court for approval of a proposed contract for sale of water rights by the United States to an Irrigation District, and for sharing between them certain drainage expenses, landowners objected that the contract exceeded the powers of the United States, the Secretary of the Interior, and the District, that its execution would entail assessments on their land within the District otherwise supplied with sufficient water for irrigation, and that for this reason they would be deprived of property without due process of law, or compensation, in violation of the Fourteenth Amendment. Held, that a federal question was presented. P. 157. But, since the Idaho Supreme Court, while holding that the contract would be valid and that its confirmation would not invade the landowners’ constitutional rights as claimed, also decided that under the state law the objection was premature for the reason that such confirmation would not impose any burden upon their lands until assessments should be made upon them in subsequent pro- PETRIE v. NAMPA &c. IRRIG. DIST. 155 154. Opinion of the Court. ceedings on the basis of benefits conferred, and upon full notice and hearing with opportunity for plenary judicial review; Held, that the judgment was based upon an independent, nori-federal ground, broad enough to support it, and that a writ of error from this court must be dismissed. P. 158. Writ of error to review 28 Idaho, 227, dismissed. The case is stated in the opinion. Mr. Oliver 0. Haga, with whom Mr. J. B. Eldridge and Mr. James H. Richards were on the briefs, for plaintiffs in error. Mr. B. E. Stoutemyer, with whom Mr. H. E. McElroy and Mr. Will R. King were on the brief, for defendant in error. Mr. Justice Clarke delivered the opinion of the court. The Board of Directors of the Nampa and Meridian Irrigation District, a quasi-municipal corporation, organized under the laws of Idaho (Pioneer Irrigation District v. Walker, 20 Idaho, 605; Colburn v. Wilson, 23 Idaho, 337), filed an amended petition in the District Court of that State, praying for the examination, approval and confirmation by the court of a contract which it desired to enter into with the United States Government acting through the Secretary of the Interior, which provided that the United States should sell and the Irrigation District should purchase, and in the manner prescribed pay for, a supply of water to irrigate an extensive tract of arid land within the District and to supplement an insufficient supply, for other lands, which the District had theretofore acquired from other sources. The proposed contract also provided that the United States and the District should share in the expense of constructing a system of drainage, to reclaim considerable areas of land within the District which had become “water-logged” 156 OCTOBER TERM, 1918. Opinion of the Court. 248 U. 8. through seepage from both the Government and the District systems, of irrigation, and to prevent threatened damage to other lands from such seepage. The proceeding involved is prescribed by the state statutes, which provide that when such a petition is filed the court shall fix a day for hearing, and shall notify the persons interested therein by publication, for four weeks, in a newspaper published in the county. Any persons interested in the subject-matter may demur to or answer the petition, and the rules of pleading and practice prescribed in the Code of Civil Procedure of the State (Idaho Revised Codes, vol. I, title 14, c. 4, §§ 2397, 2398 and 2401) are made applicable. The required notice having been given, the plaintiffs in error, owners of lands within the Irrigation District, filed an “answer and cross complaint” in which they denied many allegations of the petition and affirmatively alleged: That if the contract should be entered into they would be obliged to pay an assessment of $75 upon each acre of their land for water rights which they did not require because they had a sufficient supply from other sources; that neither the United States, nor the Secretaiy of the Interior nor the Irrigation District had authority under the laws of the United States to enter into t.......................................... .420 5. Transportation upon the Person,—and for personal use, of interstate passenger, is “ interstate commerce.” Id. 6. Reed Amendment,—forbidding transportation into any State the laws of which prohibit manufacture or sale for beverage purposes, not limited to cases of importation for commercial purposes; and, as so construed, is within power of Congress. Id. 7. Webb-Kenyon Liquor Act, sustained. Missouri Pac. Ry. v. Kansas......................................... 276 INVENTIONS. See Patents for Inventions. IRRIGATION. See Waters, 1-3. JOINDER. See Parties, 8. JUDGMENTS. See Constitutional Law, XIV, 5, 6; Equity; Procedure, X. Finality of. See Jurisdiction, IV, 9, 12. Admissibility, in action for triple damages under Sherman Act, of judgment in Government criminal prosecution. See Anti-Trust Acts, 4, 5. 1. Where charter-party signed by one owner, but the rest, being impleaded with him, admitted that he acted for all, and liability of all, if liability existed, was not controverted, a decree for damages should run against all. Luckenbach v. McCahan Sugar Co.................................. 139 2. In action by United States against manufacturer of torpedoes, to enjoin disclosure (in violation of contract) of device the design for which was furnished by United States, held, that injunction should be confined to devices in use, but without prejudice to right to enjoin disclosure of others, upon proof of intention to make use of them. Bliss Co. v. United States...................................... 37 650 INDEX. JUDGMENTS—Continued. page 3. When grounds relied on by Circuit Court of Appeals for reversal prove untenable, this court will consider what judgment should have been rendered in view of other assignments of error. Guerini Stone Co. v. Carlin Constr. Co. 334 4. Where carrier, in suit against state commission, has opportunity to test whether rates are confiscatory, provision of state law making judgment conclusive against carrier in subsequent actions for reparation is consistent with Fourteenth Amendment. Detroit & Mackinac Ry. v. Fletcher Paper Co ............................... ,........... 30 JUDICIAL DISCRETION. Of District Court in declining to exercise jurisdiction in action between alien belligerents, and duty to proceed where, through entry of United States into war, action transformed into one between co-belligerent and common enemy. Watts, Watts & Co. v. Unione Austriaca........................ 9 JUDICIAL NOTICE. 1. Of reports of Secretary of War. Tempel v. United States........................................... 121, 130 2. Of action of state legislature in reducing inspection fee on oil and gasoline. Pure Oil Co. v. Minnesota....158, 164 3. Of fact that free intercourse between residents of this country and of an enemy country is physically impossible. Watts, Watts & Co. v. Unione Austriaca................. 9 4. Where it cannot be aided by judicial notice, averment that ordinance is unnecessary and unreasonable is too general and not admitted by demurrer. Pierce Oil Corp. v. City of Hope..........................................498 5. Allegations that gasoline was so stored as not to endanger buildings and that explosion was impossible, though conceding possibility of some combusion, held insufficient on demurrer to exclude danger of explosion of which court might take judicial notice. Id. JURISDICTION. I. In General, p. 651. II. Jurisdiction over the Person, p. 651. III. In Admiralty, p. 651. INDEX. 651 JURISDICTION—Continued. page IV. Jurisdiction of this Court: (1) Scope of Review; Admiralty, p. 652. (2) Original, p. 652. (3) Over Circuit Court of Appeals; Certificates, p. 652. (4) Over District Courts, p. 652. (5) Over State Courts, p. 653. V. Jurisdiction of District Courts, p. 655. VI. Jurisdiction of State Courts, p. 656. VII. Jurisdiction of Court of Claims, p. 656. See Constitutional Law; Equity; Procedure. Concurrent jurisdiction on Ohio River. See Boundaries, 1. I. In General. 1. Jurisdiction is power and matter of fact. Cordova v. Grant...........................................413, 419 2. Territorial jurisdiction of courts coextensive with de facto territorial jurisdiction of United States, and land titles may be determined notwithstanding locus involved in question of boundary with another nation. Id. 3. An inadvertent assumption of jurisdiction is not equivalent to decision that jurisdiction exists. J. Homer Fritch, Inc., v. United States................................. 458 4. Jurisdiction to enjoin state law on ground of unconstitutionality exercised only in clear cases and where intervention essential to protect against injuries otherwise irremediable. Cavanaugh v. Looney ........... i. 453 II. Jurisdiction over the Person. State has no power to provide that nonresident individuals, in suits growing out of transactions within State through local agent, shall be bound by process served upon him after agency is at an end. Flexner v. Farson.................. 289 III. In Admiralty. See IV, 1; V, 1, infra. State statute of frauds requiring writing is inapplicable to maritime contract employing master for distant service. Union Fish Co. v. Erickson............................ 308 IV. Jurisdiction of this Court. When judgment final. See 9, 12, infra. 652 INDEX. JURISDICTION—Continued. page (1) Scope of Review: Admiralty. See Procedure, VI. 1. Upon review of admiralty case, court may make such disposition of it as justice may require at time of decision, and therein must consider changes in fact and in law which have supervened since decree below. Watts, Watts & Co. v. Unione Austriaca...... J.\9 (2) Original. See Administration. 2. Motion to file original bill denied when complainant State clearly not entitled to relief. Iowa v. Slimmer... 115 (3) Over Circuit Court of Appeals; Certificates. See 6, infra. 3. A certificate consisting of recitals of facts interblended with questions of law, or of recitals which fail in themselves to distinguish between ultimate and merely evidential facts, affords no basis under Jud. Code, § 239, either for answering questions or for exercising discretionary power to call up whole record. Cleveland-Cliffs Co. v. Arctic Iron Co........ 178 4. Certificate under Jud. Code, § 239, Rule 37, must state facts pertinent to questions certified, and this cannot be dispensed with by reference to transcript and briefs in Court of Appeals, which are no part of record in this court. Dillon v. Strathearn S. S. Co................................. 182 (4) Over District Courts. 5. Criminal Appeals Act. Where indictment alleged scheme to defraud divers persons through use of mails, by representing that land could be purchased under Timber & Stone Act for less than value, and that defendants would secure it in return for fees part payable in advance, and would refund such advances in case of non-success, whereas defendants well knew they could not carry out agreement, but intended to appropriate advance payments to their own use, held, that decision sustaining demurrer was based upon construction of § 215, Crim. Code, and was reviewable under Criminal Appeals Act. United States v. Cornyns..............349 6. Tucker Act. Judgments of District Courts in suits against United States under act are reviewable directly and exclusively by this court. J. Homer Fritch, Inc., v. United States 458 7. Treaties. Mexican treaties for determination of boundary held not involved in controversy over land between INDEX. 653 JURISDICTION—Continued. page present and former beds of Rio Grande, where parties claimed under adverse possession law of Texas and Mexican grants, respectively. Cordova v. Grant.................413 (5) Over State Courts. 8. Error or Certiorari. Judgment held within saving provisions of § 7, Act of 1916, amending Jud. Code, § 237, and limiting jurisdiction in error. Campbell v. Wadsworth.. 169, 173 9. Id. Case reviewable by certiorari under Act of 1916, in which Virginia Court of Appeals did not finally deny writ of error until Nov. 13, 1916, cannot be brought here by writ of error, although judgment of Circuit Court preceded act which excepts judgments rendered before it became operative. Andrews v. Virginian Ry............... 272 10. Id.; Treaty Construction. Under Jud. Code, § 237, as amended, judgment of state court based on construction, but not denying validity, of a treaty, is not reviewable by writ of error, but only on certiorari. Erie R. R. v. Hamilton 369 11. Id.; Statutory Construction. Under Jud. Code, § 237, as amended, error does not lie to judgment of state court holding state workmen’s compensation law inapplicable to case of personal injuries governed by maritime law and holding Act Oct. 6, 1917, which changes rule in that regard, inapplicable retrospectively. Coon v. Kennedy 457 12. Finality of Judgment. State judgment not final when still reviewable at discretion of state appellate court. Andrews v. Virginian Ry................................. 272 13. Frivolous Question. In action for injury to circus employee while traveling upon circus train being hauled by locomotive of railroad company pursuant to contract declaring company not a common carrier and not liable for negligence, a contention that state law touching validity of contracts exempting carriers from liability to passengers for injuries due to negligence was superseded by Carmack Amendment raises no federal question, since Amendment clearly deals only with shipments of property. Chicago, R. I. & Pac. Ry. v. Maucher.............................. 359 14. Federal Question; Not Supported by Record. Contention that contract of agency to sell real estate was void because federal lands, under homestead entry, were included, pre- 654 INDEX. JURISDICTION—Continued. page sents no federal question where state court found they were not included and record supports finding. King v. Putnam Investment Co.........................,.......... 23 15. Id.; Raised too Late. When not presented within time allowed by state procedure, and refused consideration by state court for that reason, writ of error will not lie under Jud. Code, § 237. Missouri, Kans. & Tex. Ry. v. Sealy.... 363 16. Federal Question. Objection to approval of contract for sale of water rights by United States to Irrigation District and for sharing drainage expenses, because it exceeded powers of United States and District, and would entail assessments on land otherwise supplied with water, without due process or compensation, presents federal question. Petrie v. Nampa Irrigation Dist........................ 154 17. Id.; Independent Local Ground. But where state court, while holding contract not in violation of constitutional rights, also decided under state law that objection was premature because no burden would be imposed until lands assessed in subsequent proceedings on basis of benefits conferred, and upon notice and hearing, the judgment, based on independent, non-federal ground, is not reviewable. Id. 18. Id. In mandamus to compel county treasurer to devote proceeds of special tax to satisfaction of county warrants, state court held treasurer had no discretion under state law but to follow levy and remedy was against board of revenue or county. Held, judgment not reviewable because based on proposition of state law sufficient to sustain it. Farson, Son & Co. v. Bird..................................... 268 19. Local Questions. Questions of law, involving fixing of railroad rates on intrastate traffic and reparation to shippers, held local and not reviewable. Detroit & Mackinac Ry. n. Fletcher Paper Co.............................. 30 20. Id. Right of individual to sue State depends upon consent; whether Ohio constitution gives consent directly or requires legislation to put provision into effect is a question of local law, in no sense involving rights under due process clause of individuals suing State for damage to property. Palmer v. Ohio...................................c...... 32 INDEX. 655 JURISDICTION—Continued. page 21. Id. Whether city ordinance regulating peddling and canvassing from house to house for sale of property on subscription is confined to general course of such business or applies also to isolated transactions, is a question of local law. Watters v. Michigan............................ 65 22. Id. Whether in state court principal may recover from agent money collected by latter in carrying out arrangement which involved violation of Crim. Code, § 239, is a matter of local law. Danciger v. Cooley.......................... 319 23. Id. Subject to limitation that local assessment must not be arbitrary or unreasonable, questions whether it is justified by benefit conferred and whether property should be made separate improvement district are to be determined by local authorities. Mt. St. Mary’s Cemetery v. Mullins.. 501 24. Id. This court will not go behind state decision that municipality deriving powers from legislative grant could make no contract not subject to control by legislature. Englewood n. Denver & South Platte Ry..............294, 296 25. Waiver of Federal Right; Finding Reexaminable. This court will examine for itself whether there is basis in fact for finding by state court that constitutional right has been waived. Union Pac. R. R. v. Public Service Comm....... 67 V. Jurisdiction of District Courts. See I, 4; IV, (4), supra. 1. Where District Court, in libel in personam between alien belligerents brought while United States was a neutral, declined to proceed because of prohibitions by belligerent countries on payment of debts of each other’s subjects, and this country entered war after case came to this court, held, that libelant as co-belligerent had right to maintain suit against respondent, an alien enemy, and that jurisdiction should not be declined as an act of discretion. Watts, Watts & Co. v. Unione Austriaca.............................. 9 2. Not knowing land on Chicago River had become submerged through excavations privately made without owner’s consent, Government, believing it to be within de jure stream, and not intending to exercise eminent domain, dredged land under power to improve navigation. Held, there was no implied proiitise to compensate owner; that cause of action, if any, was in tort; and action against United States was not 656 INDEX. JURISDICTION—Continued. PAGE within jurisdiction of District Court under Tucker Act. Tempel v. United States............................... 121 3. Plaintiff claimed, under laws of Texas, land lying between present and former beds of Rio Grande. Defendant, claiming under Mexican grants, set up that, as plaintiff’s title depended on whether international boundary had shifted with river, and as United States, though exercising de facto jurisdiction over locus, by treaties with Mexico had agreed upon commission with exclusive jurisdiction to settle it, the courts were thereby deprived of jurisdiction. United States had rejected action of commission and had waived objection, based on comity, to the litigation. t Held, that District Court had jurisdiction and that holding to that effect did not involve validity or construction of treaty. Cordova v. Grant.. 413 4. Chancery receiver has no authority to sue in courts of foreign jurisdiction; and Alabama laws, relating to administration of assets of insolvent banking corporations, held not to vest title in receiver so as to enable him to sue in District Court in another State without ancillary appointment. Sterrett v. Second Natl. Bank........................... 73 VI. Jurisdiction of State Courts. See II, supra. In probate. See Administration. Right of individual to sue State depends upon consent; whether Ohio constitution gives consent directly or requires legislation to put provision into effect is a question of local law. Palmer v. Ohio..................................... 32 VII. Jurisdiction of Court of Claims. 1. Act of May 29, 1908, authorizing suit in Court of Claims against Creek Nation for adjudication of claim of individual for destruction of property, did not validate claim itself or permit that United States be joined as defendant. Turner v. United States..............1........................ 354 2. Jurisdiction under Tucker Act. See IV, 6; V, 2, supra. JURY AND JURORS. Instructions. See Anti-Trust Acts, 2, 3, 7,9; Exceptions, 2. , Effect of verdict discharging one of two co-defendants. See Anti-Trust Acts, 3. INDEX. 657 KENTUCKY. PAGE Territorial limits of Kentucky extend across Ohio River to low-water mark on Indiana side, and no limitation on power of Kentucky to protect fish within those limits resulted from establishment of concurrent jurisdiction by Virginia Compact. Nicoulin v. O'Brien............................ 113 LABELS. See Food; Meat Inspection Act. LACHES. 1. While laches of private person is imputable to United States in suit brought for his benefit, settlers entitled to benefits of Act of 1887, who maintained peaceable and continued possession, affording notice of their equitable rights which they asserted and sustained before Land Department, and who relied upon promises of Department to secure their titles and on suits by Government to that end, held not guilty of laches, notwithstanding long delays in litigation. United States v. New Orleans Pac. Ry507 2. One who is in peaceable possession under equitable claim does not subject himself to charge of laches for mere delay in resorting to equity to establish his claim against holder of legal title where latter manifests no purpose to disturb him or to question his claim. Id., p. 519. LAND DEPARTMENT. See Public Lands. LAND GRANTS. See Public Lands. LANDS. See Deeds; Indians; Public Lands; Waters. LESSOR AND LESSEE. See Deeds. 1. Validity of tax on leasehold interest where special charters of lessor railroads contain perpetual tax exemptions. Central of Georgia Ry. v. Wright........................ 525 2. Creek Nation not liable to its lessee for destruction of fence by mob. Turner v. United States................. 354 LICENSE. See Franchises. License fees. See Constitutional Law, V, 4-8. Insurance brokers. See Id., XII; XIV, 7. Farm produce brokers. See Id., XIV, 8. Peddlers. See Ordinances, 4. As to tide lands. See Leary v. Jersey City............ 328, 333 658 INDEX. LIENS. PAGE For salvage. See Admiralty, 18. LIFE INSURANCE. See Insurance, 3, 4. LIMITATION OF LIABILITY. See Admiralty, 6; Carriers, 1. LIMITATIONS. See Laches. 1. In suit brought by United States on behalf of settlers to secure their rights under Act of 1887 against railway and its grantees holding legal title, through patents, affecting patent issued to railway before Act of Mar. 2,1896, the 5-year limitation of that act may be a bar to relief by cancellation, but bill may stand upon prayer to affix trust upon legal title in favor of settlers. United States v. New Orleans Pac. Ry.... 507 2. Provisions of Clayton Act, § 5, for admitting judgments, in government proceedings finding company guilty of attempt to monopolize “ hereafter rendered,” in other litigation, and for suspending statute of limitations as to private rights pending government prosecutions, do not affect retrospectively, on review, judgment rendered in action for triple damages before Clayton Act was passed. Buckeye Powder Co. v. Du Pont Powder Co................. 55 LITERARY PROPERTY. See Copyright. LIVE STOCK. Stipulation for written notice of loss in live stock contract. See Interstate Commerce Acts, 3. LOAN. See Payment, 4. LOCAL LAW. See Jurisdiction, IV, 14-24. MAILS. Use of, to defraud. See Criminal Law, 5. MANDAMUS. See Jurisdiction, IV, 18. MARITIME CONTRACTS. See Admiralty. MARRIAGE. See Indians, 1. INDEX. 659 MASTER AND SERVANT. See Workmen’s Compensation page Laws. Advance payment of wages to seamen. See Admiralty, . 10-12. Contract of employment for one year. See Statute of Frauds. MASTERS OF VESSELS. Contract of employment. See Admiralty, 13. ** MEAT FOOD PRODUCT.” See Meat Inspection Act. MEAT INSPECTION ACT. 1. Oleo oil held a “ meat food product ” within act, when manufactured fit for human consumption and not denatured; and debarred from interstate and foreign commerce unless first inspected and passed. Pittsburgh Melting Co. v. Totten 1 2. So held, where shipper labeled product “ inedible,” but retained no control of the use and declined to certify, as required by regulations of Secretary of Agriculture, that it was suitable for industrial purposes only, and incapable of being used as food by man. Id. METLAKAHTLA INDIANS. See Indians, 6, 7. MEXICO. See Boundaries, 2. MINING CLAIMS. See Public Lands, II, 2. MOBS. Action against Creek Nation for destruction of property. See Claims, 2, 3. MONOPOLIES. See Anti-Trust Acts; Copyright; Trademarks; Unfair Competition. MORTGAGES. Validity of state charge for privilege of issuing railroad bonds under mortgage. See Constitutional Law, V, 4. MOTIONS To affirm. See Procedure, IV. To file original bill. See Id., I. 660 INDEX. MOTIVE. See Evidence, 4, 5. page MUNICIPALITIES. See Ordinances. Regulating street car fares and service. See Franchises, 5-8. NATIONAL BANKS. 1. Extent to which States may tax property or shares is determined exclusively by § 5219, Rev. Stats. Bank of California v. Richardson...........................476 Same v. Roberts...................................... 497 2. The interest represented by shares of state bank, when held by national bank, can be reached only by tax upon shares of the latter, and is not taxable to national bank itself. Id. 3. Shares of national bank, when held by another national bank, are taxable to latter as shareholder, and are not to be included in valuing shares of latter when taxing its shareholders. Id. NAVIGABLE WATERS. See Waters. NAVY DEPARTMENT. Rev. Stats., § 3744, requiring approval in writing of contracts, does not affect implication of warranty by Government. United States v. Spearin................... 132 NEGLIGENCE. See Carriers, 3. 1. Power of States to establish and apply their own laws and policies touching validity of contracts exempting carriers from liability to passengers for injuries due to negligence, was not affected by Carmack Amendment, which deals only with shipments of property. Chicago, R. I. & Pac. Ry. v. Maucher.... ,....................................... 359 - 2. In action for injury to circus employee while traveling upon circus train being hauled by locomotive of railroad company pursuant to contract declaring company not a common carrier and not liable for negligence, held, that employee was not a passenger of company, and that cause of action was based on general right not to be injured by negligence of another. Id. INDEX. 661 NEW JERSEY. PAGE Conveyance and taxation of tide lands. See Deeds. NEWS. See Newspapers. NEWSPAPERS. See Unfair Competition. Suit by representative of a class. See Parties, 7, 8. 1. A news article in a newspaper may be copyrighted under Act of 1909, but news, as such, is not copyrightable. International News Service v. Associated Press................ 215 2. As against public, any special interest of producer of uncopyrighted news matter is lost upon first publication. Id. 3. But one who gathers news at pains and expense, for purpose of lucrative publication, has a quasi property in results, as against rival in same business; and appropriation of those results at the expense and to the damage of the one and for the profit of the other is unfair competition, against which equity will afford relief. Id. NONRESIDENTS. Service on agent of nonresident individual. See Jurisdic- tion, II. Right to engage in business of insurance broker. See Constitutional Law, XII; XIV, 7. NOTICE. See Constitutional Law, XIV, (1); Judicial Notice; Public Lands, II, 6-9; Trade-marks, 5. Live stock contracts; written notice of damage. See Inter- state Commerce Acts, 3. NUISANCES. See Constitutional Law, VI, 6. OCCUPANCY. Notice from. See Public Lands, II, 6-9. OFFICERS. See Indians, 7; Meat Inspection Act, 2; Public Lands, I, 2; II, 2, 7, 9. Participation by treasurer of Creek Nation does not make it liable for destruction of property by mob. Turner v. United States... t................................ 354 662 INDEX. OFFICERS—Continued page 1. Creation of offices and assignment of their compensation is a legislative function; and fact and extent of any delegation of it must clearly appear. Cochnower n. United States.. 405 2. Act of 1909, authorizing Secretary of Treasury “ to increase and fix ” compensation of inspectors of customs, did not empower him to decrease their salaries. Id. 3. Appointment of clerk by Collector of Customs, “ to act as acting U. S. weigher,” at compensation less than fixed by Act of 1866 ($2,500) for weighers, and assignment to, and performance of, duties of weigher, does not place him in that office and entitle him to its salary. MacMath n. United States............................................ 151 OHIO. 1. Whether Ohio constitution gives directly consent to suit by individuals against State or requires legislation to put provision into effect is a question of local law. Palmer v. Ohio............................................... 32 2. Conservancy Act, authorizing drainage districts and assessments, etc., for benefits, affords opportunity for testing private grievances judicially. Orr v. Allen........ 35 3. .Gen. Code, § 12725, regulating food standard and labeling of condensed milk, held to prohibit sale of wholesome condensed skimmed milk when combined with cocoanut oil and labeled “ a compound of evaporated skimmed milk,” etc. Hebe Co. v. Shaw............................ 297 OHIO RIVER. Territorial limits of Kentucky. See Boundaries, 1. OILS. See Meat Inspection Act. State inspection. See Constitutional Law, V, 6-8. Regulation of gasoline storage. See Constitutional Law, XIV, 10. OLEO OIL. See Meat Inspection Act. ORDINANCES. See Franchises. 1. Forbidding storage of gasoline within 300 ft. of any dwelling is within police power, though storage necessary to company’s business and plant could not be moved without expense and loss of profits. Pierce Oil Corp. v. City of Hope 498 INDEX. 663 ORDINANCES—Continued. PAGE 2. Fact that tanks were moved to present position at city’s request does not import contract not to require further removal for public welfare. Id. 3. Where it cannot be aided by judicial notice, an averment that an ordinance is unnecessary and unreasonable is too general and is not admitted by demurrer. Id. 4. Whether ordinance requiring license for peddling and canvassing for sale of property on subscription is confined to a general course of such business or applies also to isolated transactions is a local question. Watters v. Michigan...... 65 ORIGINAL JURISDICTION. See Jurisdiction, IV, (2). ORIGINAL PACKAGE. See Constitutional Law, V, 9-11. PARENT AND CHILD. Tribal status of children of mixed marriages. See Indians, 1. PAROL EVIDENCE. See Evidence, 6. PARTIES. Suits against United States under Tucker Act. See Jurisdiction, IV, 6; V, 2. By shipper against carrier for benefit of insurer. See Admiralty, 3. Who may question constitutionality of statutes. See Constitutional Law, XV. 1. State. Right of individual to sue State depends upon consent; and whether Ohio constitution gives consent is a local question. Palmer v. Ohio........................ 32 2. United States. Where act of Congress reserved for use of dependent Indians islands in Alaska, including adjacent deep waters supplying fisheries, a fish net constructed therein, whose operation might materially reduce supply of fish accessible to Indians, held subject to abatement at suit of United States. Alaska Pacific Fisheries n. United States.... 78 3. Id. Act May 29, 1908, authorizing suit in Court of Claims against Creek nation for adjudication of claim of individual for destruction of property, did not validate 664 INDEX. PARTIES—Continued. page claim itself or permit that United States be joined as defendant. Turner v. United States....................... 354 4. Id. United States may maintain suit on behalf of homestead settlers to secure their rights under Act of 1887 against railway and its grantees holding legal title through patents. United States v. New Orleans Pac. Ry................... 507 5. Co-Belligerent. May sue in our courts against alien enemy; latter is entitled to defend before judgment entered. Watts, Watts & Co. v. Unione Austriaca.......... 9 6. Chancery Receiver. May not sue in courts of foreign jurisdiction to recover property therein situated; Alabama laws, relating to administration of assets of insolvent banking corporations, held not to vest title in receiver so as to enable him to sue in District Court in another State without ancillary appointment. Sterrett v. Second Natl. Bank..... 73 7. Representative. Incorporated association of newspaper publishers, engaged in gathering news and distributing it to its members, is proper party to represent them in suit to protect their interests in news so collected against illegal acts of a rival organization. Equity Rule, 38. Interna- tional News Service v. Associated Press. ............. 215 8. Non-Joinder. Right to object to non-joinder waived if not made specifically in courts below. Equity Rules, 43, 44. Id. PASSENGERS. Right of carrier to limit liability for injuries due to negligence. See Carriers, 1, 2. Who are passengers. See Id. PATENTS FOR INVENTIONS. Davison patent, relating to propulsion of torpedoes by balanced turbine method, construed. Bliss Co. v. United States 37 See Contracts, 15. PATENTS FOR LAND. See Indians; Public Lands. Exemption of homesteads. See Public Lands, I, 4. PAY. See Officers. INDEX. 665 PAYMENT. See Duress* PAGE 1. Where building contract contemplates contractor’s ability to perform will depend upon his receiving stipulated payments on account as work progresses, substantial failure to pay as stipulated will justify declining to proceed. Guer-ini Stone Co. v. Carlin Constr. Co....................... 334 2. Amounts due under different branches of contract may be united. Id. 3. Where complaint alleged failure to make payments “ in accordance with contract,” while demands proved were based on modification, held, an unimportant variance. Id. 4. Where insurer loans shipper amount of loss caused by carrier’s negligence, to be repaid in so far as shipper recovers from carrier, otherwise to operate as absolute payment, and, as security, shipper pledges right of action and agrees to sue carrier at expense and under direction of insurer, held, that loan is not payment of insurance, and does not enure to carrier. Luckenbach v. McCahan Sugar Co.............. 139 PEDDLERS. See Ordinances, 4. PENALTIES. See Duress. PERFORMANCE. See Contracts, 17. PERSONAL INJURY. See Negligence; Workmen’s Compensation Laws. PERSONAL PROPERTY. See Administration. PHILIPPINE ISLANDS. Finding that vessel was abandoned, concurred in by court of first instance and Supreme Court of Philippines, in salvage case, accepted by this court when supported by evidence. Oelwerke Teutonia v. Erlanger .......................... 521 PLEADING. See Election of Remedies. 1. Bill of Particulars, supplementing indictment, is no part of record on demurrer. United States v. Cornyns...349 2. General Averment. Where not aided by judicial notice, averment that ordinance is unnecessary and unreasonable 666 INDEX. PLEADING '-Continued. page is too general and not admitted by demurrer. Pierce Oil Corp. v. City of Hope............................ 498 3. Contradicting Judicial Knowledge. Allegations that gasoline was so stored as not to endanger buildings and that explosion was impossible, though conceding possibility of some combustion, held insufficient on demurrer to exclude danger of explosion of which court might take j udicial notice. Id. 4. Bill; When Taken as True. Where District Court, in denying preliminary injunction, of own motion dismisses bill, its action is equivalent to sustaining demurrer, and, upon appeal, allegations of bill taken as true. Detroit United Ry. v. Detroit...................................... 429 5. Variance. In action for breach of building contract, complaint alleged failure to make payments “ in accordance with contract,” while demands proved were based on modification. Held, an unimportant variance not requiring amendment, particularly in view of relation of matter to former decision and mandate of this court. Guerini Stone Co. v. Carlin Constr. Co........................ 334 POLICE POWER. See Constitutional Law, V; XIV, (2). PREEMPTION SETTLEMENT. See Public Lands, II, 1. PREFERENCES. See Interstate Commerce Acts, 4. PRESIDENT. Overriding veto. See Constitutional Law, I, 2-4. PRESUMPTIONS. See Statutes, 1, 2, 10. PRINCIPAL AND AGENT. See Criminal Law, 2, 4; Insurance, 1, 2; Jurisdiction, II; IV, 14. PRIORITY. See Trade-marks. PRIVILEGES AND IMMUNITIES. See Constitutional Law, XII; XIV, 6-8. PROBATE. See Administration. INDEX. 667 PROCEDURE. See Demurrer; Election of Remedies; page Equity; Evidence; Jurisdiction; Parties; Pleading; Receivers. Affixing trust on patentee where suit to annul patent is barred by limitations. See Public Lands, II, 8. I. Motion to File Original Bill. 1. Denied when complaining State clearly not entitled to relief sought. Iowa v. Slimmer...................... 115 2. Submitted ex parte; and when doubt exists may be postponed for full argument on briefs. Id., p. 119. II. Certificates from Circuit Court of Appeals. 1. A certificate consisting of recitals of facts interblended with questions of law, or of recitals which fail in themselves to distinguish between ultimate and merely evidential facts, affords no basis under Jud. Code, § 239, either for answering questions or for exercising discretionary power to call up whole record. Cleveland-Cliffs Co. v. Arctic Iron Co. 178 2. Certificate under Jud. Code, § 239, Rule 37, must state facts pertinent to questions certified, and this cannot be dispensed with by reference to transcript and briefs in Court of Appeals, which are no part of record in this court. Dillon v. Strathearn S. S. Co................................. 182 III. Petitions for Certiorari. Rule 37, § 3, amended.......................... 529 IV. Motion to Affirm; Dismissal. Upon error to state court, this court, finding no substantial federal question, will dismiss, sua sponte, denying a motion to affirm. Palmer n. Ohio............................. 32 V. Arguments. See I, 2, supra. Rule 22, § 3, amended................................528 VI. Scope of Review. See Jurisdiction. 1. Examining all Assignments. When grounds relied on by Circuit Court of Appeals for reversal prove untenable, this court will consider what judgment should have been rendered in view of other assignments of error. Guerini Stone Co. v. Carlin Constr. Co................................ 334 2. Excessive Assignments. See Buckeye Powder Co. v. Du Pont Powder Co.....................................55, 64 668 INDEX. PROCEDURE—Continued. page 3. Cognizance of Changed Situation; Admiralty. Upon review this court may make such disposition of case as justice may require at time of decision, and therein must consider changes in fact and in law which have supervened since decree below entered. Waite, Waite & Co. v. Unione Austriaca.............................................. 9 4. Reexamining State Court’s Findings. This court will examine for itself whether there is any basis in fact for finding that constitutional right has been waived. Union Pac. R. R. v. Public Service Comm.......................... 67 5. Id. Where it is contended that contract of agency to sell real estate was void because federal lands, under homestead entry, were included, and state court found they were not included, this court will examine finding. King v. Putnam Investment Co......................................... 23 6. Concurrent Findings. Of fact, by two lower courts, ac- cepted. Van Dyke v. Arizona Eastern R. R.............. 49 Luckenbach v. McCahan Sugar Co........... 139, 145 Pure Oil Co. v. Minnesota.................. 158 7. Interlocutory Appeal. When merits decided. International News Service v. Associated Press.......... 215, 232 8. Id.; Salvage Questions. Finding that vessel was abandoned, concurred in by two lower courts, accepted by this court when supported by evidence. Oelwerke Teutonia v. Erlanger..............................................521 9. Id. Unless there has been some violation of principle or clear mistake, appeals to this court on amounts allowed for salvage are not encouraged. Id. 10. Taking Bill as True. Where District Court, in denying preliminary injunction, of own motion dismisses bill, action is equivalent to sustaining demurrer, and, upon appeal, allegations of bill must be taken as true. Detroit United Ry. v. Detroit........:.................... ................ 429 11. Bill of Particulars, supplementing indictment,—no part of record for purpose of demurrer. United States v. Cornyns 349 VII. Parties. See Parties. Right to object to nonjoinder treated as waived if not made INDEX. 669 PROCEDURE—Continued. page specifically in courts below. Equity Rules, 43, 44. International News Service v. Associated Press.........215 VIII. Raising Federal Question. When not presented within time allowed by state procedure, and refused consideration by state court for that reason, writ of error will not lie under § 237, Jud. Code. Missouri, Kans. & Tex. Ry. v. Sealy.............................. 363 IX. Exceptions. 1. Error in admitting evidence cannot be imputed to trial court upon theory that count of complaint was waived at trial, based on statement of plaintiff’s counsel in Court of Appeals, which was inconsistent with’ bill of exceptions. Guerini Stone Co. v. Carlin Constr. Co.................... 334 2. An exception to an instruction should be specific, directing mind of court to some single point of alleged error. Id. X. Scope and Form of Decree. 1. Where charter-party signed by one owner, but the rest, being impleaded with him, admitted that he acted for all, and liability of all, if liability existed, was not controverted, a decree for damages should run against all. Luckenbach v. McCahan Sugar Co'...................................... 139 2. In action by United States against manufacturer of torpedoes, to enjoin disclosure (in violation of contract) of device the design for which was furnished by United States, held, that injunction should be confined to devices in use, but without prejudice to right to enjoin disclosure of others, upon proof of intention to make use of them. Bliss Co. v. United States......................................... 37 3. Where libel in personam between alien belligerents came to this court for review after United States entered war, and it was held that libelant as co-belligerent could maintain suit, that jurisdiction should not be declined as an act of discretion, and that respondent, an alien enemy, was entitled to defend, this court directed, in vieW of impossibility of free intercourse between this and respondent’s country, that further prosecution be suspended until adequate presentation of respondent’s defense should become possible. Watts, Watts <& Co, v. Unione Austriaca................. 9 670 INDEX. PROCEDURE—Continued. page 4. Injunction restraining news-gathering agency from pirating rival’s news. International News Service v. Associated Press...................................215, 247 PROCESS. See Jurisdiction, II. PROFITS. See Damages, 2. PROPERTY. See Administration; Trade-marks. In news. See International News Service v. Associated Press..........................................215, 240 PUBLICATION. See Copyright. PUBLIC CONTRACTS. See Contracts, 1-16. PUBLIC LANDS. Jurisdiction of District Court to determine controversy over title to land lying between present and former beds of Rio Grande, claimed under laws of Texas and Mexican grants. See Jurisdiction, V, 3. Whether contention that contract of agency to sell real estate was void, because federal lands under homestead entry were included, presents federal question. See Jurisdiction, IV, 14. Indictment involving Timber & Stone Act. United States v. Cornyns.........................................349 I. Homesteads. See also II, 2-9, infra. 1. Head of Family; Showing. To initiate right under homestead act, a minor’s application must show he is head of family; general assertion that he is such, by reason of having adopted a minor, but without stating time, place, or mode of adoption, or identifying child, insufficient. Fisher v. Rule...............................................314 2. Withdrawal; Effect on Later Filing. When Secretary of Interior, after canceling final homestead entry, has ordered suspension of all action pending a reconsideration of decision, no adverse right may be initiated either by settlement and improvement or by filing preliminary application, while suspension remains in force. Id. INDEX. 671 PUBLIC LANDS—Continued. PAGE 3. Patentee as Trustee. To fasten trust on patentee of public land, plaintiff must show that better right to land is in himself; not enough to show that patentee ought not to have received patent. Id. 4. Exemption from Debts. Section 4, Act of 1862, providing that no lands acquired shall become liable to satisfaction of debts contracted prior to issuance of patent, applies as well to debts contracted after final entry and before patent as to debts contracted before final proof, and in both respects is within power of Congress. Ruddy v. Rossi.............. 104 II. Railroad Grants and Public Reservations. 1. When Subject to Settlement. Act of 1871 granted lands to Texas Pacific, conditioned that those not sold within 3 years from completion of road should be subject to settlement and preemption at maximum price, and other lands to Southern Pacific with same rights and subject to same limitations as were granted to Southern Pacific by Act of 1866. Held, that condition of Texas Pacific grant was inapplicable to Southern Pacific. Fullinunder v. Southern Pac. R.R....... 409 2. Right of Way; Acts of 1875,1899; Forest; Mining Claim; Homestead. A railroad, having surveyed line over public land and filed map and application for right of way, and land having in interim become part of National Forest, made application upon same map and received permission to construct; amended location so as to lay right of way, 200 ft. wide, across mining claim in Forest; obtained conveyance of 100 ft. in width from mining claimants, and constructed and operated road. Thereafter, original application was approved by Secretary of Interior, and tract crossed was thrown open to entry. Held, that its right to full 200 ft. was superior to right of one who held under mining claim until land was thrown open and who then settled, and ultimately obtained patent, although his homestead right was initiated before railroad amended map to show change of location and before Secretary approved application as amended. Van Dyke n. Arizona Eastern R. R.....i.............i.i.. .. 49 3. Id.; Defective Charter; Right of Homesteader. Whether failure to describe route in charter left company without 672 INDEX. PUBLIC LANDS—Continued. page power to construct, and unqualified to receive grant, cannot be raised by homesteader. Id. 4. New Orleans Pacific; Settlers1 Rights. Settlers who, before definite location of road, settled on odd-numbered sections within primary and indemnity limits of grant, and thereafter maintained their claims, residency, occupation and cultivation, held entitled to benefits of Act of 1887 confirming grant but excepting lands occupied by such settlers at date of definite location. United States n. New Orleans Pac. Ry.............................................. 507 5. Id.; Purchasers from Railway. Provisions of Act of 1887 in favor of settlers became applicable, when accepted by confirmee company, to all unpatented lands, to such of patented lands as it had not sold, and to indemnity as well as place lands; but not to lands withdrawn from entry and sale, and duly patented to railway and by it conveyed to bona fide purchasers before act was passed. Id. 6. Id.; Notice from Occupancy. Subsequent purchasers from railway charged with notice of Act of 1887, and of claims of settlers, entitled to its benefits, and occupying tracts purchased. Id. 7. Id.; Suit by United States. May be maintained on behalf of settlers to secure their rights under act against railway and its grantees holding legal title through patents. Id. 8. Id.; Patent; Limitations; Trust. In such suit, affecting patent to railway before Act Mar. 2, 1896, 5-year limitation of that act may be bar to relief by cancellation, but bill may stand upon prayer to affix trust upon legal title in favor of settlers. Id. 9. Id.; Laches. While laches of private person is imputable to United States in suit brought for his benefit, settlers entitled to benefits of Act of 1887, who maintained peaceable and continued possession, affording notice of their equitable rights which they asserted and sustained before Land Department, and who relied upon promise of Department to secure their titles and on suits by Government to that end, held not guilty of laches, notwithstanding long delays in litigation. Id. INDEX. 673 PUBLIC LANDS—Continued. page III. Indian Reservations; Rights of Fishery. See Indians, 7. For safeguarding and advancing dependent Indian people, resident on islands belonging to United States in Alaska, Congress has power to reserve for their use not only upland of islands but also adjacent submerged land and deep waters supplying fisheries essential to Indians’ welfare. Alaska Pacific Fisheries v. United States................... 78 PUBLIC OFFICERS. See Indians, 7; Meat Inspection Act, 2; Officers; Public Lands, I, 2; II, 2, 7, 9. PURE FOOD LAWS. See Food. RAILROADS. See Carriers; Franchises; Interstate Commerce Acts; Negligence; Public Lands, II; Taxation, II, 13. Validity of state charge for issuing railroad bonds under mortgage. See Constitutional Law, V, 4. RATES. See Carriers, 12, 13. Exchange of services; railroad and telegraph companies. See Interstate Commerce Acts, 4. Electric power companies. See Constitutional Law, VI, 5; XIV, 16. Street car lines. See Franchises, 6-9. REAL PROPERTY. See Deeds; Indians; Jurisdiction, IV, 14; V, 2, 3; Public Lands. Exemption of homesteads. See Public Lands, I, 4. RECEIVERS. 1. Chancery receiver has no authority to sue in courts of a foreign jurisdiction to recover property therein situated. Sterrett v. Second Natl. Bank........................ 73 2. Alabama laws, relating to administration of assets of insolvent banking corporations, held not to vest title in receiver so as to enable him to sue in District Court in another State without ancillary appointment. Id. REED AMENDMENT. See Intoxicating Liquors, 6. RENT. See Deeds. 674 INDEX. REPARATION. See Carriers, 12, 13. PAGE RESCISSION. See Contracts, 5, 8, 9. RESIDENCE. See Jurisdiction, II. Residence as condition to grant of insurance broker’s license. See Constitutional Law, XII; XIV, 7. RESTRAINT OF GOVERNMENT. Effect of embargo on contract of ocean carriage. See Admiralty, 14. RESTRAINT OF TRADE. See Anti-Trust Acts. RIGHTS OF WAY. See Franchises, 1-4, 6; Public Lands, II. RIO GRANDE. Jurisdiction of District Court to determine controversy over title to land lying between present and former beds of Rio Grande, claimed under laws of Texas and Mexican grants. Cordova v. Grant............................... 413 RIPARIAN LANDS. Construction of deed of New Jersey Riparian Commission. See Deeds; Rio Grande. RULES. Amendment of Rule 22, § 3.........................528 Amendment of Rule 37, § 3....................... 529 Certificate from Circuit Court of Appeals, Rule 37. See Jurisdiction, IV, (3). SALARIES. See Officers. SALES. See Intoxicating Liquors. State regulation: Foods; original and secondary packages. See Constitu- tional Law, V, 9-12. Farm produce on commission. Id., XIV, 8. Peddlers. See Ordinances, 4. SALVAGE. See Admiralty, 16-19. INDEX. 675 SEAMAN'S ACT. PAGE 1. Act of 1915, § 11, prohibiting payment of wages in advance, inapplicable to advancements to alien seamen shipping abroad on foreign vessel, pursuant to contracts valid under foreign law; such advancements may be allowed for in paying such seamen in port of United States. Sandberg y. McDonald....................................... 185 2. Provision for abrogation of inconsistent treaty provisions is not opposed to this construction, but refers to parts of act abolishing arrest for desertion and conferring jurisdiction over wage controversies arising in our jurisdiction. Id. 3. Nor does § 11 prohibit such advancements when made by an American vessel to secure seamen in foreign port. Neilson n. Rhine Shipping Co................... 205 4. See also Dillon v. Strathearn S. S. Co...... 162 SECRETARY OF AGRICULTURE. See Meat Inspection Act, 2. SECRETARY OF THE INTERIOR. See Indians, 7; Public Lands, I, 2; II, 2, 9. SECRETARY OF THE TREASURY. 1. Power to “ increase and fix ” compensation of inspectors of customs. Cochnower v. United States......... 405 2. Appointment and compensation of clerks and weighers by collectors of customs. MacMathv. United States.151 SECRET DEVICES. Injunction against disclosure, in violation of government contract. See Contracts, 15; Equity, 5. SEMINOLE INDIANS. See Indians, 1. SERVICE OF PROCESS. See Jurisdiction, II. SHIPPING. See Admiralty. STATE DEPARTMENT. Construction of Seaman’s Act of 1915, adopted in consular regulations. See Sandberg v. McDonald........ 185 676 INDEX. STATES. See Boundaries; Constitutional Law; Fran- page chises; Jurisdiction; Taxation, II. Administration of estates. See Administration. Regulation of rates. See Carriers, 12, 13; Franchises. Construction of state constitutions. See Georgia; Ohio. Power of Congress to convey title to public lands exempt from execution. See Public Lands, I, 4. Power of Congress over disposition of public lands under navigable waters, in a Territory. See Alaska Pacific Fisheries v. United States...................................... 78 1. Right of individual to sue State depends upon consent. Palmer v. Ohio....................................... 32 2. A sovereignty, on general principles, is not liable for injuries resulting from mob violence or failure to keep the peace. Turnery. United States........................ 354 STATUTE OF FRAUDS. A contract made orally in California, whereby respondent was engaged for one year to serve as master of vessel, mainly upon the sea, held a maritime contract; California statute of frauds requiring writing for agreements not to be performed within a year inapplicable in defense of action for breach. Union Fish Co. v. Erickson............................ 308 STATUTES. See Table of Statutes Cited, at front of volume; Anti-Trust Acts; Bankruptcy; Claims; Constitutional Law; Copyright; Criminal Law; Food; Grain Standards Act; Indians; Insurance; Interstate Commerce Acts; Intoxicating Liquors; Jurisdiction; Meat Inspection Act; National Banks; Officers; Public Lands; Receivers; Seaman’s Act; Statute of Frauds; Taxation; Waters; Workmen’s Compensation Laws. I. Principles of Construction. 1. Legislation Presumptively Territorial, and confined to limits over which law-making power has jurisdiction. Sandberg v. McDonald..................................185, 195 2. Harmony of Parts. Presumption that law of Congress is territorial is strengthened by provision for criminal punishment of acts in question. Id., p. 196. INDEX. 677 STATUTES—Continued. page 3. Id. Provision in Seaman’s Act of 1915 for abrogation of inconsistent treaty provisions, held not opposed to this court’s construction of § 11 as not prohibiting advancements to alien seamen shipping abroad on foreign vessel, where provision may properly be referred to other parts of act. Id. 4. Resort to Genesis, History, Practice. This construction is same as that adopted by State Department in consular instructions; and reports and proceedings attending legislation in Congress do not require different conclusion. Id. 5. Id. This court’s construction of constitutional provision requiring two-thirds vote to pass bill over veto held confirmed by context, proceedings in the Convention, practice of Congress under similar provision for submitting amendments, and practice of States before and since adoption of Constitution. Missouri Pac. Ry. n. Kansas.............. 276 6. Id. Conditions giving rise to enactment of § 239, Crim. Code, respecting interstate transportation of intoxicating liquor, and report of Senate Committee, examined in holding that practice of collecting price at destination, as condition of delivery, was evil aimed at. Danciger n. Cooley... 319 7. Ejusdem Generis. Never applied to defeat intent. Id. 8. Grant of Use. In absence of language suggesting different intention, grant of use of railroad right of way taken as granting right of way itself, where purpose to supply roadbed for trunk line, necessitating expenditure by grantee. Georgia v. Cincinnati So. Ry.......................... 26 9. Perpetual Grant. Grant of railroad right of way to corporation, or to perpetual trustees holding for corporate uses, does not need words of succession to be perpetual. Id. 10. Indians; Presumptions. Statutes passed for benefit of dependent Indian tribes are to be liberally construed, doubtful expressions being resolved in favor of Indians. Alaska Pacific Fisheries v. United States............... 78 11. Geographical Name. “ Body of lands known as Annette Islands,” held a use of geographical name, including islands surrounding and intervening waters. Id. STOCK DIVIDENDS. See Taxation, I. 678 INDEX. STOCKHOLDERS. See Corporations, 1. page Power of States to tax shares of national banks. See National Banks. STREET RAILWAYS. See Franchises, 5-8. STREETS AND HIGHWAYS. See Franchises, 5-8. SUBMERGED LANDS. Expropriating submerged lands. See Waters, 7. Construction of deed of New Jersey Riparian Commission. See Deeds. SUBROGATION. See Insurance, 5-7. TAXATION. Of tide lands in New Jersey. See Deeds. Validity, under commerce clause, of state license and inspection fees. See Constitutional Law, V, 4, 6-8. I. Income Tax of 1913. Dividends of earnings of subsidiaries to company holding all their stock and controlling them in conducting a single enterprise, the result of transfers being merely that main company became holder of debts in the business, previously due from one subsidiary to another, held not taxable as income, where earnings accumulated before taxing year and had practically become capital. Gulf Oil Corp. n. Lewellyn. 71 II. State Taxation. See Jurisdiction, IV, 18. 1. Property Used in Interstate Commerce. Where state board, under law providing for ad valorem tax on property, valued personal property within State of foreign express company on basis of mileage employed there in local and interstate commerce, and assessor in listing part in his county inaccurately characterized property as right to carry on express business, held, that tax was not on privilege of engaging in interstate commerce, but on property in county. Wells, Fargo & Co. v. Nevada.............................. 165 2. Id. In action to enforce tax, if valuation excessive and burdensome to interstate commerce, the company, under state law, was entitled to prove facts and secure reduction. Id. INDEX. 679 TAXATION—Continued. page 3. Indian Property. Upon conveyance of Creek allotment, exempt from taxation under Agreement of June 30, 1902, from which restrictions on alienation were removed by Act of May 27, 1908 (the latter act providing that land from which restrictions have been removed shall be subject to taxation), the tract is subject to state taxation in hands of grantees. Fink v. County Commissioners................. 399 4. Id. Act of 1908, supra, invades no right of Indian in making exercise of right of alienation a surrender of exemption from taxation. Id. 5. National Banks. Extent to which States may tax property of national banks is determined exclusively by § 5219, Rev. Stats. Bank of California v. Richardson.........».. 476 Same v. Roberts............................ 497 6. Id. Shares of state bank, when held by national bank, can be reached only by tax upon shares of latter, and are not taxable to national bank itself. Id. 7. Id. Shares of national bank, held by another national bank, are taxable only to latter as shareholder, and are not to be included in valuing shares of latter when taxing its shareholders. Id. 8. Sewer Districts. Where land of cemetery association assessed as a whole for local improvement, although part "had been disposed of for burial purposes, it appearing that fee remained in association, held, that latter was not deprived of property without due process. Mt. St. Mary’s Cemetery v. Mullins........................................... 501 9. Id. A local assessment must not be arbitrary or unreasonable. Id. 10. Id. Inclusion of cemetery for purpose of sewer improvement and assessment in district with larger area devoted to other uses, while other cemeteries have been districted separately, does not establish denial of equal protection, where similarity of situation and conditions not shown. Id. 11. Id. Notice and opportunity to be heard before creation of special improvement district not essential to due process if hearing afforded in subsequent proceedings to enforce tax. Id. 680 INDEX. TAXATION—Continued. page 12. Drainage Districts. Ohio Conservancy Act, authorizing drainage districts and improvements, assessment for bents-fits, taxation, etc., affords opportunity for testing private grievances judicially, and is consistent with state and federal constitutions. Orr v. Allen............................ 35 See Waters, 2, 3. > 13. Exemptions in Railroad Charters. Attempt to evade tax exemptions, (held in former decision to preclude taxing of lessee upon fee of leased property) by tax on leasehold interest, is invalid. Central of Georgia Ry. v. Wright... 525 14. Id. Contracts in special charters creating perpetual tax exemptions are not revocable by later provisions of state constitution. Id. 15. Valuation; Hearing. Tax is not wanting in due process where valuation originally made ex parte, if enforced only through judicial proceeding affording notice and hearing. Wells, Fargo & Co. v. Nevada...................... 165 16. Inheritance. As to inheritance taxes. See Iowa v. Slimmer........................................115, 120 TELEGRAPH COMPANIES. Contracts with railroads for exchange of services. See In- terstate Commerce Acts, 4. TERRITORIES. Power of Congress to reserve land under navigable waters, and rights of fishery, for dependent Indians. Alaska Pacific Fisheries v. United States......................... 78 TIDE LANDS. Construction of deed of New Jersey Riparian Commission. See Deeds. TITLE. See Boundaries, 2; Deeds; Indians; Public Lands; Receivers. Cloud on title. See Equity, 11. Exemption of homesteads. See Public Lands, I, 4. TORPEDOES. See Contracts, 15. TRADE-MARKS. 1. Nature of Right. Not a right in gross; exists only as ap- INDEX. 681 TRADE-MARKS—Continued. PAGE purtenant to established business and for protection of good will thereof. United Drug Co. v. Rectanus Co....... 90 2. Territorial Extent. Adoption of trade-mark does not project right of protection in advance of extension of trade. Id. 3. State and Federal Law. Property in trade-marks and right to exclusive use rest upon state law; power of Congress to legislate on subject is only such as arises from authority to regulate commerce. Id., p. 98. 4. Priority. As between conflicting claimants, priority of appropriation determines. Id. 5. Id.; Estoppel. Where A had trade-mark in Massachusetts, in connection with business there and in neighboring States, and B, afterwards, in good faith, without notice of A’s use or intent to injure or forestall A, adopted same mark in Kentucky, where A’s business theretofore had not extended, and built up valuable business under it there, held, that A, upon entering B’s field with notice of situation, had no equity to enjoin B as an infringer, but was estopped. Id. TRADE SECRETS. Disclosure, in violation of Government contract. See Contracts, 15. TRANSCRIPT. In Circuit Court of Appeals. Reference to, upon certificate under Jud. Code, § 239. See Procedure, II, 2. TRANSPORTATION. See Carriers. TREATIES. See Jurisdiction, IV, 10. 1. Provision in Seaman’s Act of 1915 for abrogation of inconsistent treaty provisions, held not opposed to construction of § 11 as not prohibiting advancements to alien seamen shipping abroad on foreign vessel, where provision may properly be referred to other parts of act. Sandberg n. McDonald ........................................... 185 2. As to jurisdiction of District Court to try conflicting claims of title based on Mexican grants and laws of Texas, respectively, to land between present and former bed of Rio Grande, over which United States has de facto sover- 682 INDEX. TREATIES—Continued. page eignty, and effect of treaties, etc., with Mexico, touching determination of international boundary, and of act of our Government in waiving objection to litigation, based on comity. Cordova v. Grant........................ 413 TRIAL. See Election of Remedies; Evidence; Exceptions; Variance; Verdict. Instructions. See Anti-Trust Acts, 2, 3, 7, 9. TRUSTS AND TRUSTEES. See Equity, 2, 3, 5. Effect of grant of use of right of way to trustees for a corporation, without words of perpetual succession. See Franchises, 2. To fasten a trust on patentee of public land, plaintiff must show that better right to land is in himself; not enough to show that patentee ought not to have received patent. Fisher v. Rule 314 TUCKER ACT. See Jurisdiction, IV, 6; V, 2. ULTRA VIRES. See Corporations, 2. UNFAIR COMPETITION. See Trade-marks. 1. An incorporated association of newspaper publishers gathered news and without copyright telegraphed it daily to its members for their exclusive publication; a rival organization obtained this news through early publications of first company’s members, and telegraphed it to its own customers, enabling them to compete in prompt publication. Held, that first company and its members, as against second, had an equitable quasi property in the news, even after publication; that its use by second company, not as basis for independent investigation but by substantial appropriation, for its own gain, amounted to unfair competition which should be enjoined, irrespective of false pretense involved in rewriting and distributing it without mentioning source. International News Service n. Associated Press............................ 215 2. Complainant not debarred from relief on ground of unclean hands by fact that, following practice engaged in by defendant and news agencies generally, it had used defendant’s news items, when published, as “ tips ” for investigation, the results of which it sold. Id. INDEX. 683 UNITED STATES. See Boundaries, 2; Claims; Contracts, page 1-16; Laches; Limitations; Officers; Public Lands. Suits against, under Tucker Act. See Jurisdiction, IV, 6; V, 2. United States as party. See Parties, 2-4. VARIANCE. In action for breach of building contract, complaint alleged failure to make payments in accordance with contract, while demands proved were based on a modification. Held an unimportant variance not requiring amendment, particularly in view of relation of matter to former decision and mandate of this court. Guerini Stone Co. v. Carlin Constr. Co................................................ 334 VERDICT. In action for triple damages under § 7 of Sherman Act, where only ground for holding defendant is responsibility (through stock ownership) for acts of co-defendant, error in directing verdict for former is harmless if latter exonerated upon merits by jury, after instructions fairly presenting case against it. Buckeye Powder Co. v. Du Pont Powder Co. 55 VESSELS. See Admiralty. VETO POWER. See Constitutional Law, I, 2-4. VIRGINIA COMPACT. See Constitutional Law, III. WAGES. Advancements to seamen. See Admiralty, 10-12. WAIVER. 1. This court must examine for itself whether there is any basis in fact for finding by state court that constitutional right has been waived. Union Pac. R. R. v. Public Service Comm................................................ 67 2. Right to object to non-joinder of parties waived if not made specifically in courts below. Equity Rules, 43, 44. International News Service v. Associated Press......215 3. Error in admitting evidence cannot be imputed to trial court upon theory that count of complaint was waived at 684 INDEX. WAIVER—Continued. PAGE trial, based on statement by plaintiff’s counsel in Court of Appeals, which was inconsistent with bill of exceptions. Guerini Stone Co. v. Carlin Constr Co.................334 4. Stipulation releasing carrier from loss of or damage to live stock unless written claim made on agent within 10 days after unloading not waived by fact that carrier with . knowledge of loss negotiated for compromise before and af ter period had expired. Southern Pac. Co. v. Stewart. 446 WAR. 1. Effect on rights of alien belligerents as parties in our courts where, through entry of United States into war, one becomes alien enemy and the other co-belligerent. Waiis, Watts & Co. v. Unione Austriaca................. 9 2. Provisions of bills of lading construed as relieving carrier of duty to carry and of obligation to return prepaid freight, where voyage frustrated or indefinitely delayed by government embargo, even though, in two cases, ship did not “ break ground.” Allanwilde Transp. Corp. v. Vacuum Oil Co....,....... 377 International Paper Co. v. The Gracie D. Chambers.......387 Standard Varnish Works v. TheBris..................... 392 WARRANTY. Of seaworthiness. See Admiralty, 6-8. By Government, implied in building contract. See Contracts, 2-5. WATERS. Construction of deed of New Jersey Riparian Commission. See Deeds. 1. Drainage Districts. Ohio Conservancy Act, authorizing drainage districts and improvements, assessment for benefits, taxation, etc., and to issue bonds, affords opportunity for testing private grievances judicially, and is consistent with state and federal constitutions. Orr v. Allen............ 35 2. Irrigation Districts. Objection to approval of contract for sale of water rights by United States to irrigation District and for sharing drainage expenses, because it exceeded powers of United States and District and would entail assessments on land otherwise supplied with water, without INDEX. 685 WATERS—Continued. page due process or compensation, presents federal question. Petrie v. Nampa Irrigation Diet..........................154 3. Id. But where state court, holding contract not in violation of constitutional rights, decided under state law that objection was premature because no burden imposed until lands assessed in subsequent proceedings on basis of benefits conferred, and upon notice and hearing, judgment not reviewable. Id. 4. Ohio River; Fish Regulation. Limits of Kentucky extend across Ohio River to low-water on Indiana side; no limitation on power to protect fish within those limits resulted from establishment of concurrent jurisdiction by Virginia Compact. Nicoulin v. O'Brien113 5. Reservation for Indians; Fishery. For advancing dependent Indian people, residents on islands belonging to United States in Alaska, Congress has power to reserve for their use not only upland of islands but also adjacent submerged land and deep waters supplying fisheries essential to Indians’ welfare. Alaska Pacific Fisheries v. United States............................................ 78 6. Id.; Obstructions. Act setting aside “ the body of lands known as Annette Islands,” to be held by Metlakahtla Indians in common, under regulations of Secretary of Interior, held to include adjacent deep waters; fish net constructed therein, whose operation might materially reduce supply of fish, held subject to abatement at suit of United States. Id. 7. Expropriating Submerged Land. District Court without jurisdiction to entertain suit against United States under Tucker Act, where Government dredged submerged land under power to improve navigation; cause of action, if any, is in tort. Tempel v. United States................. 121 8. Rio Grande; Boundary. As to jurisdiction of District Court to try conflicting claims of title based on Mexican grants and laws of Texas, respectively, to land between present and former beds of Rio Grande, over which United States has de facto sovereignty, and effect of treaties, etc., with Mexico touching determination of international boundary, and of act of our Government in waiving objection to litigation, based on comity. Cordova v. Grant.... 413 686 INDEX. WEBB-KENYON ACT. See Intoxicating Liquors, 7. page WEIGHERS. See Customs Officers, 2. At grain elevators. State regulation. See Constitutional Law, V, 13; XIV, 9; Grain Standards Act. WISCONSIN. Food regulations upheld. Weigle v. Curlice Bros. Co....... 285 WORDS AND PHRASES. 1. “ Body of lands known as Annette Islands,”—instance of use of geographical name, including surrounding and intervening deep waters, with the islands. Alaska Pacific Fisheries v. United States................................ 78 2. “ Device.” Bliss Co. v. United States........... 37 3. “ To furnish ” a design. Id. 4. “ Exchange ” of services. Postal Telegraph-Cable Co. v. Tonopah &c. R.R................................ 471 5. “ Increase and fix.” Cochnower n. United States. 405 6. “ Meat food product.” Pittsburgh Melting Co. v. Totten 1 7. “ News.” International News Service n. Associated Press............................................. 215 8. “ Publication.” Id. 9. “ Original package.” Hebe Co. v. Shaw.......... 297 Weigle v. Curtice Bros. Co...285 10. “ Seminole citizens.” Campbell v. Wadsworth........ 169 WORKMEN’S COMPENSATION LAWS. Under Jud. Code, § 237, as amended, writ of error does not lie to judgment of state court holding state Workmen’s Compensation Law inapplicable to case of personal injuries governed by maritime law and holding Act of Oct. 6, 1917, which changes rule in that regard, inapplicable retrospectively. Coon v. Kennedy........................... 457 WRITINGS. See Evidence, 6; Statute of Frauds. WRIT OF ERROR. See Jurisdiction; Procedure.