UNITED STATES REPORTS
VOLUME 257
CASES ADJUDGED
IN
THE SUPREME COURT
AT
OCTOBER TERM, 1921
FROM OCTOBER 3, 1921
TO AND INCLUDING, IN PART, FEBRUARY 27,1922
ERNEST KNAEBEL
BEFOBTEB
GOVERNMENT PRINTING OFFICE WASHINGTON
1922
The price of this volume is fixed under the Act of July 1, 1922 (Public No. 272), at $2.15 per copy, delivered. Sold by the Superintendent of Documents, Government Printing Office, Washington D. C.
n
JUSTICES
OF THE
SUPREME COURT
DURING THE TIME OF THESE REPORTS.1
WILLIAM HOWARD TAFT, Chief Justice.1 2 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.
HARRY M. DAUGHERTY, Attorney General.
JAMES M. BECK, Solicitor General.
WILLIAM R. STANSBURY, Clerk?
FRANK KEY GREEN, Marshal.
1	For allotment of The Chief Justice and Associate Justices among the several circuits, see next page.
2	On June 30, 1921, President Harding nominated William Howard Taft of Connecticut to succeed Mr. Chief Justice White, deceased; he was confirmed by the Senate on the same day; he took the oath of office July 11, 1921; the judicial oath was administered, and he took his seat upon the bench, at the opening of the October Term, 1921.
8 On October 4, 1921, by order of the court, William R. Stansbury of the District of Columbia was appointed clerk of the court in the place of James D. Maher, deceased. On October 10, 1921, by order of the court, Philander R. Stansbury of Maryland was appointed deputy clerk, and C. Elmore Cropley of the District of Columbia. was appointed an additional deputy clerk.
in
SUPREME COURT OF THE UNITED STATES.
October Term, 1921.1
Order of Allotment of Justices.
There having been a Chief 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, William H. Taft, 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 24, 1921.
• ■ .... ,  .—  ..   ................. --- - ,
1 For next previous allotment see 256 U. S., p. iv.
IV
PROCEEDINGS ON THE DEATH OF CHIEF JUSTICE WHITE.1 •»
The Bar of the Supreme Court of the United States and the officers of the Court met in the court room in the Capitol on Saturday, December 17, 1921, at 12 o’clock noon.
On motion of Mr. Frederic D. McKenney, Mr. John W. Davis was elected Chairman and Mr. William R. Stansbury, Clerk of the Court, Secretary.
On taking the Chair, Mr. Davis said:
“ Gentlemen of the Bar: We are assembled to pay our tribute of respect to the memory of the late Chief Justice of the United States. To the elevation of his life and the distinction of his career we can add nothing by any word of ours, but our duty to the profession which we serve and in whose service his life also was spent would be left undone if we failed to place on record our estimate of his personal character and of his contribution to the jurisprudence of his country. After a lifetime of public service, closing with twenty-seven years upon the Supreme Court of the United States, he died in the occupancy of the highest post open to an American lawyer, and one which, in its singular power, is without parallel in this or perhaps in any other country. During his incumbency as Associate Justice and Chief Justice there came a development and expansion of the powers of the federal government and a resulting increase in the labors of the Court unsurpassed during any equal period in the history of the Republic. Two foreign wars brought with them problems of novel and untried extent which tested to the full the vigor of our governmental
1 See also volume 256 of these Reports, pp. v-vii.
v
VI
EDWARD DOUGLASS WHITE.
structure; and legislation passed in response to advancing public sentiment spread the federal power to many untrodden fields.
“ Through all this sequence of great events, Chief Justice White moved as a foremost actor, and the future voyage of the Ship of State will be charted from precedents which he assisted to establish. Logical and penetrating in intellect, bold in thought and tenacious in conviction, lofty and unselfish in his devotion to his country, it is not too much to say that none of those who have occupied that great seat has filled it more worthily; and when his sculptured presentment comes to join those of his predecessors on the walls of this historic chamber, even that immortal company will be the richer for his presence.
“ Viewing in retrospect the panorama of his life, there come to my mind the words of the great commander who led the armies of his boyhood:
1 There is a true glory and a true honor, the glory of duty done, the honor of the integrity of principle.’ ”
The Chair then appointed as a Committee on Resolutions: Mr. George Sutherland, of Utah, Chairman, Mr. Charles F. Choate, Jr., and Mr. Frederick P. Fish, both of Massachusetts, Mr. William D. Guthrie and Mr. Elihu Root, both of New York, Mr. William A. Glasgow, Jr., and Mr. George Wharton Pepper, both of Pennsylvania, Mr. A. J. Montague, of Virginia, Mr. William L. Marbury, of Maryland, Mr. Henry P. Dart and Mr. George Denegre, both of Louisiana, Mr. Lawrence Maxwell and Mr. Judson Harmon, both of Ohio, Mr. J. M. Dickinson and Mr. John S. Miller, both of Illinois, Mr. Frederick W. Lehmann, of Missouri, Mr. Frank B. Kellogg, of Minnesota, Mr. Garret W. Mc-Enerney and Mr. Charles S. Wheeler, both of California, and Mr. Frederic D. McKenney and Mr. Nathaniel Wilson, both of the District of Columbia.
EDWARD DOUGLASS WHITE. vit
Mr. Sutherland, for the Committee, presented the following:
RESOLUTIONS
Edward Douglass White, ninth Chief Justice of the United States, was born in Thibodeaux, Lafourche Parish, State of Louisiana, on the 3d day of November, 1845, and died in the City of Washington on the 19th day of May, 1921.
When but sixteen years of age, and yet at school, the Civil War broke out. He thereupon laid aside his books, returned to his home, and, as a private of infantry, espoused the cause of the Confederate States.
After the close of the Civil War, he undertook the study of the law, and in 1868 was admitted to practice at the Bar of the Supreme Court of Louisiana.
In 1874, he was elected to the State Senate, in which body he served for four years, when, by appointment, he became an Associate Justice of the Supreme Court of Louisiana. He faithfully discharged the duties of that office until the reorganization of the Court in 1879, when he resumed the practice of the law. On March 4th, 1891, having been elected by the Legislature of Louisiana, he assumed the office of Senator of the United States, which he filled with distinction until February 19th, 1894.
By appointment of President Cleveland, and with the immediate and unanimous consent of the Senate, he then became an Associate Justice of the Supreme Court of the United States.
Sixteen years of service as an Associate Justice so firmly established his reputation and character as a jurist that, upon the death of Chief Justice Fuller, President Taft, himself a lawyer of distinction and of a different political party, commissioned him on December 12th, 1910, Chief Justice of the United States.
On December 19th, 1910, he assumed the central seat upon that historic Bench, from which, with ability un
VIII EDWARD DOUGLASS WHITE.
surpassed, he fulfilled until his death the duties of his greatest office.
Of his seventy-five years of life, almost one-half was devoted to the public good, six years in the service of his native State, and thirty years in that of the Nation, which he served with singleness of purpose and intensity of devotion.
As Associate Justice and Chief Justice, together, for twenty-seven years, he labored upon the Bench of this great Court, and, by patience, courtesy and fulness of learning, combined with an exceptional ability to grasp and correlate, not only intricate masses of detail, but divergent systems of law, he constructed for himself, while striving for the benefit of others, a monument as enduring as the Court itself.
What he said aptly of his immediate predecessor is applicable precisely to himself:
His “ labors find an enduring memorial in the reported decisions of the Court rendered during the long period of his service. * * * They have become the heritage of his countrymen, for whose good he labored with untiring devotion.”
It is accordingly resolved by the members of the Bar of the Supreme Court of the United States here assembled, speaking for the membership of that Bar at large and voicing the grief of their brethren throughout the United States:
That the services of the late Chief Justice constitute a notable contribution to the achievements of the great tribunal of which he was so long an illustrious member; that by his modest bearing, his sense of kinship with his fellow-men, his wholesome outlook upon life, and his vigorous support of American institutions and ideals, no less than by the height of his intellect and the depth of his learning, he has left to his countrymen a memory at once an ennobling inspiration and a priceless example.
It is further resolved that the Attorney General of the United States be requested to present these Resolutions
EDWARD DOUGLASS WHITE. ix
to the Court and to move their inscription upon its records; and that the Chairman of this meeting send a copy of the Resolutions to Mrs. White as an expression of the sympathy of the American Bar.
In presenting the Resolutions, Mr. Sutherland said:
“ Mr. Chairman : The resolutions presented by your committee and which I have just read constitute but an inadequate expression of the high regard in which the memory of the late Chief Justice is held by the American bar. Indeed, to those who knew him both on and off the bench, and, still more, to those who were so fortunate as to be numbered among his intimate friends, no language which could be employed to estimate his character or describe his great personality would seem to be entirely sufficient. There was a charm which went with his learning, a gentleness woven into and through the fabric of his strength, essentially of the spirit, which no words can quite express, and which only those who came within the circle of close and familiar association are able entirely to appreciate. A great lawyer, a judge of clear and vigorous apprehension, a scholar of rare attainment and insight, he brought to the discharge of his official duties an intellectual ability which has never been surpassed in our judicial history/ With his comprehensive knowledge of legal principles, his keen and discriminating judgment, his wonderful power of logical analysis and facility and felicity of expression, the judicial opinions which he handed down not only satisfied the coldly critical faculties of the lawyer but brought delight to the sensibilities of the lover of literary excellence as well.
“ I am sure I speak the universal sentiment when I say that no man of our profession, in our time, has possessed in more complete measure the admiration, the respect, as well as the affections, of his brethren of the bench and bar.
“ Mr. Chairman, I have the honor to submit these resolutions and move their adoption.”
x EDWARD DOUGLASS WHITE.
The motion was duly seconded and the resolutions were adopted. Addresses in eulogy of the distinguished dead were made by Messrs. Dart, Kellogg, and Maxwell, of the committee, and by Messrs. William C. Fitts, of Alabama, S. P. Freeling, of Oklahoma, and Charles Henry Butler and Levi P. Cooke of the District of Columbia. These addresses are printed in extenso in a memorial volume published by the Clerk of the Court, as Secretary of the meeting, where also will be found messages, conveyed directly to the Court or through the State Department, from The Lord Chancellor, on behalf of the Bench and Bar of England, from Alberto M. Gonzales, Magistrate of the Supreme Court of Justice of Mexico, from L. Rumeu Burgues, President of the High Court of Justice of Uruguay, from the Governments of Cuba, Guatemala and of Panama; also Memorial Resolutions adopted by the House of Representatives of Massachusetts, the Bar Association of Alexandria, Louisiana, and the District Court, Division B, of the Parish of Rapides, Louisiana, the Second Judicial District Court of Nevada, and the Allen County Bar Association, of Indiana, and an address delivered by Mr. Henry P. Dart before the Supreme Court of Louisiana, on behalf of the Memorial Committee of the Louisiana Bar Association.
EDWARD DOUGLASS WHITE.
XI
SUPREME COURT OF THE UNITED STATES.
Monday, January 16, 1922.
Present: The Chief Justice, Mr. Justice McKenna, Mr. Justice Holmes, Mr. Justice Day, Mr. Justice Van Devanter, Mr. Justice Pitney, Mr. Justice McReynolds, Mr. Justice Brandeis, and Mr. Justice Clarke.
Mr. Attorney General Daugherty presented to the Court the resolutions above set forth, (ante, p. vii,) and addressed the Court as follows:
“May it Please Your Honors: There is no higher virtue among any people than the reverence in which it holds the memory of its illustrious dead. To commemorate the life of a man who has spent his days in useful service to his country is not only a just tribute to him but is distinctively an example for those who follow after him. The richest heritage that any nation can have is the record of the lives and services of its distinguished sons who have devoted themselves unselfishly and faithfully to the cause of their country. Such lives furnish inspiration, give faith, point the way, and stimulate others to useful service. Hence, it is deemed fitting that these resolutions be presented to this court to commemorate the fife and public labors of its late Chief Justice, who for twenty-seven years rendered most distinguished and useful service to his country as a Justice of the Supreme Court of the United States.
“Edward Douglass White, late Chief Justice of the United States, was born in Lafourche Parish, Louisiana, November 3, 1845. He died in the City of Washington at 2 o’clock in the morning on May 19, 1921. He was a soldier in the Confederate Army at the age of sixteen, entering in 1861; was taken prisoner at the fall of Port
XII EDWARD DOUGLASS WHITE.
Hudson July 6, 1863; received his education at Mount Saint Mary’s College, near Emmittsburg, Md., at the Jesuit College, New Orleans, Louisiana, and at Georgetown University, Washington, D. C. He was admitted to the Louisiana bar in 1868 and immediately manifested an active interest in politics. He was elected to the State Senate of Louisiana in 1874, and was later appointed an Associate Justice of the Supreme Court of Louisiana in 1878 at the age of thirty-three. After serving with distinction and ability in this capacity he relinquished public office to resume the practice of law. For a time he was chairman of the board of examiners for admission to the Bar of Louisiana and was also a member of the board of administrators of Tulane University, of New Orleans.
“ The high order of ability which he manifested while associate justice upon the Louisiana supreme bench, and the courageous and able fight which he made for clean government in Louisiana, and especially his efforts against the Louisiana State Lottery, which finally resulted in ridding the State of this evil, so impressed the people of that State that he was elected to a seat in the United States Senate, commencing his term March 4,1891.
“ His call, however, was to judicial and not to legislative service, for upon February 19, 1894, in the forty-ninth year of his age, President Cleveland appointed him an Associate Justice of the Supreme Court of the United States, and he took the oath of office on March 12 of that year.
u Then followed a service of nearly seventeen years as an Associate Justice upon the Supreme Bench, during which time he displayed such marked ability that, as a recognition of eminent attainments and special fitness for this office, he received the crowning reward of all judicial service in this Government and was appointed Chief Justice of the United States by President Taft December 12,1910, at the age of sixty-five, and took the oath on December
EDWARD DOUGLASS WHITE. xni
19, 1910, thereby succeeding Chief Justice Fuller as the ninth man to be appointed to this high office. Such, in brief, is the outline of the facts of the life and public service of the late Chief Justice.
“ Chief Justice White came to the Supreme Court of the United States a profound lawyer, an able jurist and statesman in the prime of life, then the youngest member of that body, with the full measure of physical strength, intellectual and moral endowment, and practical experience both as a lawyer and a statesman in public affairs, and was destined soon to take a leading place upon that bench.
“No greater eulogy can be pronounced upon Chief Justice White than to say that as Associate Justice for nearly seventeen years, and later as Chief Justice for more than ten years, he responded in full measure to the requirements of that high office.
“ To be Chief Justice of the United States is the highest judicial honor in this country—in fact, in many ways it is the crowning honor that can come to any lawyer in the Nation—for in our whole history only ten men have occupied this position. Chief Justice White received this honor. He served his country well, and his memory is entitled to the reverence of a grateful nation.
“The Supreme Court of the United States occupies a unique position in the political science of the world; in fact, it was our chief original contribution to the science of government. It is not only like the courts of last resort of other nations in that it makes decisions upon juristic questions, but it exercises the additional function of declaring laws, in proper cases, unconstitutional.
“ Great as is our debt to the fathers who gave us the Constitution, it may still be questioned whether the work of Hamilton, Madison, and other constitutional fathers would have been complete had not that long train of men from Marshall to White interpreted it and told us what it meant.
XIV EDWARD DOUGLASS WHITE.
“ This court has maintained its place not by force but by the power of logical reasoning, clear thinking, careful analysis, masterly argument, moral rectitude, and statesman-like vision to see and to understand. The people, through the work of this court, have come to realize what their Government is.
“ The function of the Supreme Court of the United States is of vital importance. It is the anchor which holds us to constitutional government, the ever-watchful guardian of the liberties of the people against transgression by legislative or executive action, the balance wheel holding in equipoise and true relationship the various parts of our complex system. What higher or more noble work has ever been committed to the heart and hand and mind of man?
“ Chief Justice White was deeply conscious of the great responsibility devolving upon this court. He realized fully the transcendent importance of its function and place in our system of government. He gave unreservedly all the power of his mighty intellect to upholding its dignity, its traditions, and its usefulness.
“ It has often occurred to me, and especially in studying the life of Chief Justice White, that this court furnishes the most inspiring example of service, full, without stint, unselfishly given to the nation. In this respect, men far past the age when they might retire steadfastly remain at their posts. Chief Justice White for twenty-seven years labored faithfully in his work and died at his post in the service of his country. In this day, when men dare to scoff at the Constitution, when many prefer ease to the service of their country, when the whole world seems to have lost its balance and is in turmoil, it is indeed an inspiring hope to contemplate the lives and service of the men who have occupied this bench. They furnish encouragement to those of us who believe in the Constitution, in our country, and in its destiny.
“ The period of Chief Justice White marked a great era for the Supreme Court of the United States. In the
EDWARD DOUGLASS WHITE.
xv
thirty years between the Civil War and. the advent of Chief Justice White to the Bench, the nation, by leaps and bounds, entered upon an era of industrial and commercial development unparalleled in the history of the world. This brought new problems.
“As to the opinions written by Chief Justice White it may be said that it would be a very inadequate and therefore futile tribute to him to present in digest form the points decided in a few of the more than seven hundred masterly opinions that he wrote. Certain common characteristics run through all of these opinions. They bear evidence of a profound legal mind, painstaking investigation, a wealth of knowledge, a statesman-like vision to see the probable consequences resulting from such decisions, and, above all, an intense belief in our constitutional system of government.
“ In all the work of the court during this period Chief Justice White performed his full share. The record of his judicial labors is contained in one hundred and four volumes of the opinions of this court, as found in volumes 153-256, inclusive. During his incumbency upon the Supreme Bench the court disposed of, in one way or another, more than fourteen thousand cases, and rendered opinions in more than seven thousand cases. Chief Justice White wrote about seven hundred opinions for the court, ten concurring opinions, and thirty-three dissenting opinions. These opinions cover the whole range of the work of the court during this era. He was no specialist in that he confined his labors to any one particular field of work. On the contrary, his range of work was general and covered the main fields of litigation that came before the court.
“ The first opinion that Chief Justice White wrote on any great constitutional question was a dissent in the case of Pollock v. Farmers’ Loan & Trust Co. (157 U. S. 429), decided April 8, 1895. This opinion, delivered the first year after he came upon the Bench, is a prophecy of
XVI EDWARD DOUGLASS WHITE.
the high rank he was to take as a jurist upon that Bench. In this first dissenting opinion he shows the characteristics as a jurist that followed him through his entire judicial career. The question before the court was whether a tax by the Federal Government under the revenue law of 1894 upon certain incomes was a direct tax and therefore repugnant to the provisions of the Constitution requiring direct taxes to be levied according to the rule of apportionment.
“A respect for precedent and a firm adherence to the doctrine of stare decisis are evidenced in this first opinion. After reviewing the history of all the cases from the beginning of the Government, showing that direct taxes within the meaning of the Constitution included only taxes on land and capitation taxes, he said :
‘And now, after a hundred years, after long-continued action by other departments of the Government, and after repeated adjudications of this court, this interpretation is overthrown, and the Congress is declared not to have a power of taxation which may at some time, as it has in the past, prove necessary to the very existence of the Government.’ (157 U. S., 637.)
“ In this case Chief Justice White goes back of juristic arguments and reveals his political philosophy with reference to the doctrine of precedent and the sound reasons and principles upon which it is based. He takes the position that the Supreme Court is intended to be a stabilizing agency in making for certainty, uniformity, and fixedness of judicial decision, and says further:
‘ Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people.’
EDWARD DOUGLASS WHITE.
XVII
“ This opinion also reveals another favorite method of legal analysis of Chief Justice White; that is, to test the soundness of any decision by following its effect to its logical consequence. This, it may be said with assurance, is one of the highest characteristics that any jurist can have who occupies a place in the Supreme Court of the United States. Again and again, running through the opinions of Chief Justice White is the principle that the statesman-jurist will not plant himself upon a decision that works ill in its ultimate results if he can find a ground that will work beneficially. On this point in the Pollock case he said:
1 The injustice of the conclusion points to the error of adopting it. * * * A rule which works out this result, which, it seems to me, stultifies the Constitution by making it an instrument of the most grievous wrong, should not be adopted, especially when, in order to do so, the decisions of this court, the opinions of the law writers and pubheists, tradition, practice, and the settled policy of the Government must be overthrown.’ (158 U. S., 712.)
“ Closely akin to this last characteristic method in argument on this point is that to limit or to deny to Congress the power of direct taxation, as in this case, would mean that the nation would no longer be supreme, but would be at the mercy of the state governments. He concludes this point by saying:
‘Hence, the decision now rendered, so far as taxing real and personal property and invested wealth is concerned, reduces the Government of the United States to the paralyzed condition which existed under the Confederation, and to remove which the Constitution of the United States was adopted.’ (158 U. S. 714-715.)
“ This opinion also gives the prophecy that Chief Justice White was a nationalist in political theory, believing and advocating that the National Government should be endowed with every power for its own functioning and should not be dependent upon the states to supply funds
6267°—22--2
xvni
EDWARD DOUGLASS WHITE.
for conducting the Government. Here we see the soldier of the Confederacy, the idol of his native state, bom and reared and steeped in the political philosophy of states rights, developing in majestic splendor, and when the hour came for him under the responsibility of office, with broadening vision, we see him take his place as a worthy successor to Marshall as an apostle of nationalism. He protested against any decision in this case that would enfeeble the National Government and make it a helpless prey to the whim or caprice of the states. He lived to see the triumph of these views. After a lapse of twenty-one years they became the law of the land by the sixteenth amendment to the Constitution. That he fully realized this is seen from the statement in the case of Brushaber v. Union Pacific Railroad Company (240 U. S., 1), in which the income-tax provisions of the tariff act of 1913 were before the court. Rendering the opinion, he said:
‘Indeed, in the fight of the history which we have given and of the decision in the Pollock Case and the ground upon which the ruling in that case was based, there is no escape from the conclusion that the amendment was drawn for the purpose of doing away for the future with the principle upon which the Pollock Case was decided * *	(240 U. S., 18.)
“Another opinion especially important in illustrating the characteristics of Chief Justice White as a jurist is that of Knowlton v. Moore (178 U. S., 41), decided May 14, 1900. The main question involved in this case was whether a tax upon legacies under the war revenue act of 1898 was a direct tax, and therefore subject to apportionment, or indirect, and therefore to be governed by the rule of uniformity. Chief Justice White reviewed the inheritance tax laws of Rome and other ancient nations and the modern law of France and other continental countries, as well as those of England and her colonies, and declared that an examination of all shows that:
‘ Tax laws of this nature in all countries rest in their essence upon the principle that death is the generating
EDWARD DOUGLASS WHITE. xix source from which the particular taxing power takes its being and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested.’ (178 U. S., 56.)
“ Hence, the opinion held that the tax levied was upon the right to inherit and not upon the property itself. Being a tax upon the right instead of upon the property, it was in the nature of an excise tax, and hence indirect. For wealth of learning, thorough familiarity with the literature of the subject—economic, historical, and juristic—the discussion of Chief Justice White in this opinion has few superiors in our American jurisprudence. It is a genuine contribution to the jurisprudence of our country on the subject of taxation with reference to the devolution of property by inheritance or will. It fully vindicates and demonstrates the value of the study of comparative jurisprudence. Chief Justice White, profoundly learned in the jurisprudence of ancient and modem times, with a wealth of comparative knowledge of the civil as well as the common law, was able to bring his civil-law knowledge to bear as the handmaid to assist the common law when necessary, but was wise and judicious enough never, in a pedantic way, to force the discussion of the civil law in his opinions unless it was necessary and vitally con-tributive as an aid to the development of his subject.
“ Neither the time nor the occasion permits an extended discussion of the Insular Cases. In working out the problems incident to these cases Chief Justice White made his full contribution of labor, of thought, and of learning. Starting as a dissenter, his views and those of others associated with him finally prevailed and became the rule of law for the court, and in the last of these cases (Rassmussen v. United States, 197 U. S., 516) he was able to write the opinion, reaffirming the views that he and his associates had held from the beginning, for the majority of the court.
“Among the most famous of the opinions of Chief Justice White are those defining the powers of Congress
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under the commerce clause of the Constitution and legislation thereunder, such as the Sherman Antitrust Act of July 2, 1890, in which opinions the so-called rule of reason was announced. His position on this subject first occurs in a dissenting opinion in the case of United States v. Trans-Missouri Freight Association (166 U. S., 290), delivered in 1896. The court had occasion to consider this subject in other cases during the succeeding fourteen years, and the attitude of the court on this question was such that at the end of this interval the Chief Justice was able to write the opinion for the court, in 1910, in the case of Standard Oil Company v. United States (221 U. S., 1) and in the case of United States v. American Tobacco Company (221 U. S., 106). Speaking for the court, he said:
‘Applying the rule of reason to the construction of the statute, it was held in the Standard Oil case that as the words * restraint of trade ’ at common law and in the law of this country at the time of the adoption of the Anti-Trust Act only embraced acts or contracts or agreements or combinations which operated to the prejudice of the public interests by unduly restricting competition, or unduly obstructing the due course of trade, or which, either because of their inherent nature or effect, or because of the evident purpose of the acts, etc., injuriously restrained trade, that the words as used in the statute were designed to have and did have but a like significance.’ (221 U. S., 179.)
“ Chief Justice White never permitted economic theory to dominate his views of constitutional law. This is shown in the Pollock case, where he stood for the historic definition of the fathers as to direct taxes rather than to accept the definition as given by the economists in 1895. Likewise, he held his social and political philosophy subordinate to his juristic views of the Constitution. He did not believe that because legislation was desirable it was therefore constitutional. He should not, however,
EDWARD DOUGLASS WHITE. xxi for this reason, be classed as opposed to progress and as opposed to an interpretation of the Constitution as a living vital organism adapted to twentieth century needs. A careful study of the two cases, Lochner v. New York (198 U. S., 45) and Hammer v. Dagenhart (247 U. S., 251), as types of many other similar cases, will show that his position must be explained upon the theory of constitutional law and not upon any theory of social philosophy. He supported social welfare legislation by the states in the exercise of their police power. He opposed any definite enlarging the power of Congress to regulate commerce or any other power of the Federal Constitution to enact similar legislation, where such legislation, as he thought, was an exercise of the police power reserved to the states.
“ Closely akin to this subject it may be said that he was no extreme advocate of absolute liberty, either of person or of contract, nor did he believe in the unnecessary extension of governmental control over individuals. In an address before the American Bar Association at Montreal, Canada, in 1913, introducing the Lord High Chancellor of Great Britain, after epitomizing the experiences of Roman government and the history of the development of jurisprudence as illuminated by the teachings of Christianity, he said:
‘ When analyzed, these conceptions give the clearest apprehension of the rudimentary truths underlying all constitutional systems of government, and demonstrate that mere questions of municipal law are of minor importance when compared with the fundamental considerations which are at the basis of the preservation of free institutions; that is, the conservatism which is necessary to conserve representative government, the willingness of one to submit to such restraints upon his own conduct as are essential to the preservation of the rights of all. In other words, the power of a free people to restrain themselves in order that freedom may endure?
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“ Chief Justice White was a believer in the Constitution, yet he saw the dangers resulting from an abuse of the Constitution by those who seek to invoke it through the agency of our judiciary for their own purposes as against the legitimate rights of all the people. In an address delivered before the American Bar Association in this city, in October, 1914, he said:
‘There is great danger, it seems to me, to arise from the constant habit which prevails where anything is opposed or objected to, of resorting without rhyme or reason to the Constitution as a means of preventing its accomplishment, thus creating the general impression that the Constitution is but a barrier to progress instead of being the broad highway through which alone true progress may be enjoyed.’
“ Nature was kind to Chief Justice White. The elements were so mixed in him that he was destined to be one of earth’s noblemen. His profound mind in all its manifestations was supplemented by a largeness of personality and of life. He was a man of dignity, yet his dignity was a natural manifestation of a great soul rather than of any conscious effort. He had the modesty, the simplicity, and the tenderness of a child, yet a firmness and courage that made him a power in any cause in which he believed. He was no egotist. In everything that he has written about himself, as well as in his personal demeanor, there is a significant absence of anything that would bear the impress of self-glorification. He was considerateness itself for those about him. To the members of the court, to the members of the Bar, to all with whom he came in contact, whether rich or poor or of high or low degree, he manifested a kindly, considerate spirit. He was courteous and polite, but he was far more than polite. Courtesy and politeness are sometimes formal rules of conduct. In him they were the outward expression of a nature that loved human fellowship. High official position, great learning, raised no impulse of false
EDWARD DOUGLASS WHITE.
xxin
pride in him. He was deeply conscious of the great obligations that power brought with it. With a keen sense of responsibility he cheerfully set forth for the accomplishment of his work and humbly fashioned his life to render service. He was humble, yet his humility was not that superficial deference that one man formally pays to another. His great mind had penetrated far enough into spiritual things to understand the smallness of man in the infinite purpose of God. Of him it could truly be said that his purpose was to do justice, to love mercy, and to walk humbly with his God. He had the true humanitarian spirit. He loved his fellowman. Those who came in contact with him felt the radiance of his nature, and men .everywhere loved him. Such a nature as his must have been the inspiration of Lowell when he wrote those beautiful lines containing life’s truest philosophy:
‘ Be noble! and the nobleness that lies In other men, sleeping but never dead, Will rise in majesty to meet thine own.’
“All these qualities of personal endowment, together with a tact and skill in his relationship to those about him, rarely equaled, combined to make him a leader of men. As leader of this court he will rank among the great Chief Justices—certainly the equal of any since the days of Marshall.
“ In closing I can describe this great statesman and gifted jurist in no better way than to use his own eloquent words. Speaking on a similar occasion of one of his colleagues on the Bench—Mr. Justice Lamar—he said:
‘ 0 true American and devoted public servant, 0 cherished friend and faithful comrade, 0 sweet and noble soul, may it be vouchsafed that the results of your work may endure and fructify for the preservation of the rights of mankind, and may there be given to us who remain, wiping from our eyes the mists begotten of your loss, to
XXIV EDWARD DOUGLASS WHITE.
see that through the mercy of the inscrutible providence of God you have been called to rest and to your exceeding reward!’ ”
The Chief Justice responded:
" Mr. Attorney General, the resolutions of the Bar and the words in which you present them are an appropriate expression of the inestimable loss which the people of this country and the members of the Bar feel in the death of Chief Justice White. Expressions of sympathy and appreciation of his high standing as a jurist before the world from the Lord Chancellor of England and the Bar of that country have been forwarded to the court and will be preserved in its records.
“ Twenty-seven years of service upon this Bench, sixteen years as an Associate Justice and eleven years as head of the court, makes Chief Justice White’s record nearly equal to that of John Marshall. The critical period covered by the span of so many years, beginning early in the last decade of one century and extending into the third of the next, likens itself in importance to that covered by the term of the great interpreter of the Constitution. It embraced two wars, and a period of social and business reforms involving substantial and necessary changes in our methods of government, with the application of which this court has had much to do. In the necessary adjustment, the opinions of Chief Justice White were most able and helpful contributions.
“ The enormous material expansion of the latter half of the nineteenth century developed a corporate power and political control through wealth which threatened the welfare of the Republic, and the abuses then existing led to the enactment of most far-reaching remedial legislation.
“ The antitrust act directed toward dangerous restraints of trade and monopolies, necessarily couched in words of general import, required the adjudication of this court to interpret its meaning and apply the remedies to the evil which its framers had in mind.
EDWARD DOUGLASS WHITE. xxv
“ The interpretation of the Sherman Act by Chief Justice White, in his opinion in the Standard Oil case, is monumental and the most satisfactory exposition of its purpose and scope in the books.
“ Of the same period and responding to the same popular impulse was the income tax, and the great difference of opinion in this court as to its constitutionality was followed by a popular reversal of the judgment of the majority through constitutional means. Mr. Justice White was one of the minority in that case, and it remained for him as Chief Justice, speaking for a unanimous court, to interpret the amendment which made the opinion of the minority the fundamental law.
“ The capital importance which our railroad system has come to have in the welfare of this country made the judicial construction of the interstate commerce act of critical moment. It is not too much to say that Chief Justice White in construing the measure and its great amendments has had more to do with placing this vital part of our practical government on a useful basis than any other judge. His opinions in the case of the Texas & Pacific Railway Co. v. The Abilene Cotton Oil Co., and the cases which followed it, are models of clear and satisfactory reasoning which gave to the people, to state legislatures, to Congress, and the courts a much-needed knowledge of the practical functions the Commerce Commission was to discharge, and of how they were to be reconciled to existing governmental machinery, for the vindication of the rights of the public in respect of national transportation. They are a conspicuous instance of his unusual and remarkable power and facility in statesmanlike interpretation of statute law.
“ The Interstate Commerce Commission was authorized to exercise powers the conferring of which by Congress would have been, perhaps, thought in the earlier years of the Republic to violate the rule that no legislative power can be delegated. But the inevitable progress and exigencies of government and the utter inability of Congress
XXVI EDWARD DOUGLASS WHITE.
to give the time and attention indispensable to the exercise of these powers in detail forced the modification of the rule. Similar necessity caused Congress to create other bodies with analogous relations to the existing legislative, executive, and judicial machinery of the Federal Government, and these in due course came under the examination of this court. Here was a new field of administrative law which needed a knowledge of government and an experienced understanding of our institutions safely to define and declare. The pioneer work of Chief Justice White in this field entitles him to the gratitude of his countrymen.
“ The chief question presented by the Spanish War was the application of the Constitution to the new possessions of the Government. We were to administer them for the benefit of their peoples of races alien to ours and with but little understanding of our free institutions. Was there elasticity enough in our governmental structure to permit this to be done with the application of specific constitutional guaranties of liberty sacred to the traditions of our people, but dangerous and impracticable in a society untrained in their use?
“ After much difference of opinion between the members of the court, the distinction in the rigid application of these guaranties as between territory acquired by the United States and belonging to it, and territory thereafter incorporated by Congress into the Union, originally insisted on by Mr. Justice White, became the settled opinion of the court and the law of the land. It enabled our Government to do a beneficent colonial work for retarded peoples. The once genuine fear of imperialistic tendency from the distinction has faded away.
“ The enlargement of the national governmental functions by the use of the regulatory power over commerce among the States, in the lottery statute, the pure food act, the white slave act, and other measures, a power which in these forms of exercise had lain dormant since the beginning of the Government, was actively employed
EDWARD DOUGLASS WHITE. xxvn to suppress growing evils. All presented new remedial legislation requiring accurate construction with a view to keeping within the limits fixed by the fundamental law on the one hand, and giving effect to their beneficent purpose on the other. Here, too, the genius of Chief Justice White as a statesman and a jurist shone forth.
“ In the World War his opinions supporting statutes enacted to enable the Government to carry on the struggle, to mass all its resources of men and money in the country’s defense, and to restrain sinister efforts to obstruct it reveal an intense patriotic appreciation of the necessity of vesting full powers in the nation when its integrity is threatened and of the existence of ample authority to this end in the Constitution. The Chief Justice, in the Selective Draft case, delivered one of his great opinions.
“Any association with Chief Justice White left no doubt of the force and strength of his convictions. Massive, dignified, impressive as was his physical mould, his mental structure was like it. There is an indefinable something about a leader of men that we call ‘personality,’ difficult to define, but which makes itself felt wherever they are. This quality Chief Justice White had in a marked degree. In the settlement of every issue he had to be reckoned with. With lofty ideals as a statesman, with profound learning, with a love of logical processes and of the manifestation of them in his exposition of his views, he drove home his conclusion with a confidence and a convincing assurance that distinguishes his judicial expression.
“ His capacity for work was enormous. During his service on the bench the court in one way or another disposed of many thousands of cases, and he himself prepared more than seven hundred opinions for the court. The number of opinions is usually made the measure of a judge’s work, but it is only a part of it. The study of cases with a view to their decision in conference is the greater task, and this varies with the individual judge and with his conscience and feeling of responsibility. No one
XXVIII EDWARD DOUGLASS WHITE.
could be more sensitive in this regard than Chief Justice White. He carried for eleven years the additional burden of the executive direction of the court. In his later years he did his work with the burden of growing physical defects entailing obstacle and suffering, which he refused to betray and to which he would not yield. His whole being was absorbed by his anxious concern for the maintenance of the prestige of the court in the preservation of the Constitution and the upholding of its principles. He took infinite pains even in the lesser details of his duties. He regarded his office as a sacred trust, as a Holy Grail, which awakened an intense scrutiny of his own conduct and of that of every member of the court.
“ Of the story of his career, which began as a soldier of the Confederacy at sixteen years, and the quick recognition of his power for usefulness from his early professional beginnings until by noteworthy steps he reached this Bench, there is not time to speak. His leadership of the long but successful fight against the lottery evil in Louisiana showed how formidable he was in organization and how courageous in action. His power as a speaker was revealed in later years only by the few addresses he was induced reluctantly to make to the American Bar Association. At Montreal and Washington his hearers were captivated by the grace and fluency of his diction, the exquL site charm, dignity, and force of his bearing, and the depth of his expressed conviction. His touching metaphor to illustrate his own change of heart toward ‘Old Glory/ of the fading of the gray of the Confederacy into the blue of the Union, ‘ the invisible blue/ as he adapted it from the moving story of the Cricket on the Hearth, will never fade from the memory of those who were privileged to hear him.
“Edward Douglass White was the exemplary citizen, the considerate neighbor and friend, and the loving husband. He had a great heart, full of sympathy for mankind. He had an unfailing courtesy and a sweetness of manner which endeared him to all with whom he was
EDWARD DOUGLASS WHITE.
XXIX
associated. The strength and ruggedness and dignity of his character were stamped in his face, and these things but lent a peculiar charm to his gentleness and kindly manner. He was a gentleman of the old school.
“ Of his personal relations to the members of the court in the intimacy of conference, I can not, of course, speak from personal experience. They are shown in the touching words in which, immediately after his death, the senior Associate Justice of this court, so long a loved and loving comrade in service with Chief Justice White, expressed the affectionate esteem in which the colleagues of this great Chief Justice held him. In closing this response for the court to these resolutions, I can best express their estimate of his judicial work by quoting Mr. Justice McKenna when he said:
‘Anticipating the future, I see no shadow on his fame or service. I venture to make comparisons. I make full concession of the recognized and distinguished merit of those who preceded him. I make full admission in assured prophecy of the ability of those who will succeed him. Yet, considering his qualities, their variety and degree, and estimating them, I dare to say that he will forever keep a distinct eminence among the Chief Justices of the United States.’
“ The resolutions and the accompanying remarks will be entered upon the records of the court.”
TABLE OF CASES REPORTED.
Page.
Abdul Samad v. Behrandt, U. S. Marshal........ 613
A. Bourjois & Co. v. Katzel................... 630
Acme Mfg. Co., Arminius Chemical Co. v........ 647
Adams et al., Trustees, Olson v..............  634
Aetna Life Ins. Co., Ryan v...................... 639 Akins, Davis, Director General, v............. 658
A. Klipstein & Co. v. Dilsizian............... 639
Alabama & Vicksburg Ry. v. Journey............ Ill
Allied Machinery Co., Lehigh Valley R. R. v.... 614
American Bonding Co., Miller v................ 304
American Column & Lumber Co. v. United States.. 377 American Engineering Co., Davis v............. 653
American Fidelity Co., Ewen v................. 625
American Mills Co. v. American Surety Co. of New
York...................................... 626
American Railway Express Co. v. Lindenburg..... 627
American Steel Foundries v. Tri-City Central Trades
Council................................... 184
American Surety Co. of New York, American Mills
Co. v..................................... 626
A. M. Holter Hardware Co., Boyle v............ 666
Anaheim Sugar Co. v. Jenkins & Co............. 659
Anderson, O’Brien v.......................     640
Anderson v. United States..................... 647
Anderson-Tully Co., Wineman v................. 647
Arizona, State of, ex rei. Burgoon, Treasurer,
Watts v.................................   617
Arkansas, State of, ex rei. Attorney General, Martineau, Chancellor, v...................... 665
Arminius Chemical Co. v. Acme Mfg. Co......... 647
Armsby Co. v. Steamship Esrom................. 634
Arnold et al., Exrs., Stevens v............... 631
XXXI
xxxn TABLE OF CASES REPORTED.
Page.
Arnot, Master, Gans S. S. Line v................ 662
Attorney General, State of Arkansas ex rel., Mar-
tineau, Chancellor, v...................... 665
Atwood, Rhode Island Hospital Trust Co., Admr., v.. 661
Avon, Township of, v. Detroit United Ry......... 618
Bain, Ex parte.................................. 609
Bankers Trust Co., Exr., Virginia Ry. & Power Co. v. 649
Barber, Rousso v................................ 658
Barber & Co. v. Wilhelmsen...................... 655
Basletta, Herrick v............................. 658
Beech-Nut Packing Co., Federal Trade Comm, v.... 441
Behrandt, U. S. Marshal, Abdul Samad v.......... 613
Benn, Executrix, Minnesota Commercial Men’s
Assn, v.................................7.^. 625
Berg,-Philadelphia & Reading Ry. v............... 638
Billingsley v. United States (2 cases).......... 656
Blackistone v. Groomes.......................... 624
Board of Assessors, Parish of Orleans, Krauss Bros.
Lumber Co. v.......................... 618, 636
Board of Supervisors, Pocahontas County, Iowa,
Breiholz v................................. 118
Bondurant, Dahnke-Walker Milling Co. v......... 282
Bourjois & Co. v. Katzel........................ 630
Bowen v. Hickey................................. 656
Bowles v. United States......................... 667
Boylan v. United States......................... 614
Boyle v. Holter Hardware Co..................... 666
Brattleboro, Town of, Champlain Realty Co. v.... 626
Breiholz v. Board of Supervisors, Pocahontas County,
Iowa....................................... 118
Brixton Operating Corporation, State of New York
ex rel., v. La Fetra,	Justice.............. 665
Brown-Ketcham Iron Works, United States ex rel.,
Robinson v ................................ 664
Bryan, Clerk, Everglades Sugar & Land Co. v..... 667
Bryan v. Miles, Collector of Internal Revenue...491
TABLE OF CASES REPORTED. xxxin
Page.
Bulk Oil Transports v. Thompson.................. 657
Burgoon, Treasurer, State of Arizona ex rel.,
Watts v..................................... 617
Burke Constr. Co., Terral, Secy, of State, Arkansas, v529
Buschalewski, Admx., Director General of Railroads v  ...................................  639
Butler, Hines, Director General, v............... 659
Byron v. United States........................... 653
California Industrial Accident Comm., Southern Pa-
cific Co. v................................. 647
California Packing Co., Dunkley Co. v............ 644
Candelaria, Pueblo of Laguna v................... 623
Carolinian, The.................................  419
Caster, United States	v......................... 666
C. D. Kenny Co., Pharr & Sons, Ltd., v........... 648
Central of Georgia Ry. v. Newberry............... 662
Central Railroad Co. of New Jersey v. United States
and Interstate Commerce Comm................ 247
Central Trust Co., Trustee, Heldman v............ 664
Chaloner v. Dunn................................  609
Champlain Realty Co. v. Town of Brattleboro...... 626
Chan Wy Sheung v. United States.......... 629, 652, 654
Chicago, City of, v. Chicago Railways Co......... 617
Chicago Bar Assn., State of Illinois ex rel., Ward v.. 666 Chicago, Burlington & Quincy R. R., Railroad Comm.
of Wisconsin v.............................. 563
Chicago & Northwestern Ry., State of North Dakota
ex rel. Lemke, Attorney General, v.........  485
Chicago Railways Co., City of Chicago v.......... 617
Citizens Natl. Bank of Cincinnati, Administrator, v.
Durr, Auditor................................ 99
Clarendon Boat Oar Co., Missouri Pacific R. R. v... 533 Clark et al., Constituting Interstate Commerce
Comm., State of New York v.................. 591
6267°—22---3
xxxiv TABLE OF CASES REPORTED.
Page.
Clarksdale, City of, Yazoo & Mississippi Valley R. R.
v..........................................  10
Cohen v. United States........................... 657
Colby, Secy, of State, United States ex rel. Mecart-
ney v....................................... 619
Cole v. Sullinger, U. S. Attorney............... 663
Colonial Beach Co. v. Quemahoning Coal Co....... 626
Colvin, Davis, Director General, v............... 652
Commission of Fisheries of Virginia, Hurley v... 223
Commissioners of Road Improvement Dist. No. 2,
Lafayette County, v. St. Louis Southwestern Ry. 547
Compania General De Tabacos De Filipinas, Rafferty,
Collector of Internal Revenue, v........... 226
Computing Scale Co., Toledo Scale Co. v......... 657
Concrete Steel Co. v. Vandenburg................ 632
Condon Natl. Bank, Liberty Oil Co. v.... 628, 630, 651
Conlin v. Rose.................................. 647
Connly, Curtis, Receiver, v..................... 260
Connolly, Admr., v. Diamond..................... 656
Consolidation Coal Co., Peninsular Portland Cement
Co. v...................................... 641
Continental Ins. Co. v. United States........... 622
Continental Mines, Power & Reduction Co., Stem-
berger v................................... 617
Cook, Exr., United States	v..................... 523
Cooksey, Davis v................................ 665
Copper Queen Consolidated Mining Co. v. Mayne... 663
Cornell v. Moore, Collector of Internal Revenue.... 491
Corporation Comm, of Oklahoma, Oklahoma Gas &
Elec. Co. v................................ 666
Corrigan, Truax et al., Copartners, v........... 312
Costaguta, De Rees v............................ 648
Cott, Admx., Erie R. R. v. (2 cases)............ 636
Crescent Cotton Oil Co. v. State of Mississippi. 129
Crittenden v. Dorn.............................. 648
Crittenden v. Widrevitz,	Admx................... 636
Cromwell Bros., Panhandle Grain & Elevator Co. v.. 635
TABLE OF CASES REPORTED. xxxv
Page.
Crookshank v. Stone, Chief of Police............ 664
Cross v. Ramdullah.............................. 655
Crown Die & Tool Co. v. Nye Tool & Machine
Works...................................... 632
Crutchley, Collector of Internal	Revenue, Eastes v. 491
Cunningham v. Rodgers........................... 466
Curtis, Receiver, v. Connly..................... 260
Dahnke-Walker Milling Co. v. Bondurant.......... 282
Dakota County, Sioux City Bridge Co. v.. 628, 630, 652 Dallas, City of, v. Dallas Tel. Co......... 638,	668
Dallas Tel. Co., City of Dallas v.......... 638,	668
Dantzler Lumber Co., Davis, Director General, v.... 632 Davidge v. Simmons (2 cases).................... 667
Davidson, Individually and as Collector, Interna-
tional Ry. v............................... 506
Davidson, Individually and as Collector, Snyder v... 620 Davis v. American Engineering Go..............   653
Davis v. Cooksey................................ 665
Davis, Agent, Leigh Ellis & Co. v............... 659
Davis, Director General, v. Akins............... 658
Davis, Director General, v. Colvin.............. 652
Davis, Director General, v. Dantzler Lumber Co.... 632 Davis, Director General, Ford, Admx., v......... 641
Davis, Director General, v. Green, Admx......... 627
Davis, Director General, v. Smith, Admr......... 625
Davis, Director General, v. State Industrial Comm.. 642 Davis, Director General, v. Wallace............. 478
DeRees v. Costaguta............................. 648
Dermott Land & Lumber Co. v. Zelnicker Supply Co. 648 Detroit Edison Co. v. Jewett Bigelow & Brooks... 641
Detroit United Ry., Township of Avon v.......... 618
Detroit United Ry., State of Michigan ex rei. Groes-
beck, Attorney General, v.................. 609
Dharandas Tulsidas v. Insular Collector of Customs. 624 Diamond, Connolly, Admr., v....................  656
Dierkes v. United States.......................  646
Dilsizian, Klipstein & Co. v..................'.. 639
xxxvi TABLE OF CASES REPORTED.
Page.
Director General of Railroads v. Buschalewski,
Admx....................................... 639
Doo Fook v. United States.............. 628,	652, 654
Dorn, Crittenden v.............................. 648
Douglas, Gould & Curry Mining Co. v............. 645 Drake, Tennessee, Alabama & Georgia R. R. v...... 612 Drennen, Receiver, Tilton v...........  631,	651, 657
Dubman v. United States......................... 650
Dunkley Co. v. California Packing Co............ 644
Dunn, Chaloner v................................ 609
Durr, Auditor, Citizens Natl. Bank of Cincinnati, Ad-
ministrator, v.............................. 99
Eastes v. Crutchley, Collector of Internal Revenue.. 491 Eberlein v. United States........................ 82
Edwards, Collector of Internal Revenue, New York
Trust Co. et al., Exrs., v................  176
Eibel Process Co. v. Minnesota & Ontario Paper Co.. 628 Electro Bleaching Gas Co. v. Miller............. 660
Elliott, Wabash Ry. v........................... 632
Ellis & Co. v. Davis, Agent..................... 659
Elwell v. United States......................... 647
Embry v. United States.......................... 655
Emergency Fleet Corporation v. Wood, Trustee.... 627
Erath County v. Powell, Garard & Co ........ 645,	646
Erie R. R. v. Cott, Admx. (2 cases)............. 636
Esrom, Steamship, Armsby Co. v.................. 634
Essex Rubber Co., Ex parte...................... 621
Essex Rubber Co., I. T. S. Rubber Co. v..........664
Eureka Pipe Line Co. v. Hallanan, State Tax
Commr....................................   265
Evans, District Attorney, Keeley v.............. 667
Everglades Sugar & Land Co. v. Bryan, Clerk..... 667
Ewen v. American Fidelity Co.................... 625
Ex parte Bain................................... 609
Ex parte Essex Rubber Co........................ 621
Ex parte Lincoln Gas & Elec. Light Co............. 6
Ex parte Oregon Eilers Music House.. ........... 613
TABLE OF CASES REPORTED, xxxvn
Page.
Ex parte United States, Owner of The Carolinian... 419 Ex parte United States, Owner of The Liberty.... 419
Ex parte United States, Owner of The Western Maid. 419 Ex parte Warner................................. 614
Fall, Secy, of Interior, Southern Pacific R. R. v.460
Farmers Life Ins. Co. v. Foster Bldg. & Realty Co... 654 Farrell v. First Natl. Bank of Philadelphia. 634, 635
Federal Trade Comm. v. Beech-Nut Packing Co.... 441 Federal Trade Comm. v. Fruit Growers’ Express, Inc. 627 Federal Trade Comm. v. Sinclair Refining Co..... 631
First Natl. Bank of Philadelphia v. Farrell. 634, 635
First Trust & Savings Bank, Trustee, Smietanka, Col-
lector of Internal Revenue, v........... 602,	628
Fisher, Star Co. v.............................. 654
Fonda v. City of St. Albans.................. 640,	666
Fook, Doo, v. United States............. 628, 652, 654
Ford, Admx., v. Davis, Director General......... 641
Ford Motor Co., K. W. Ignition Co. v............ 658
Foster Bldg. & Realty Co., Farmers Life Ins. Co. v.. 654
Fruit Growers’ Express, Inc., Federal Trade Comm, v. 627
Gans S. S. Line v. Arnot, Master...............  662
Gans S. S. Line v. Isles Steamshipping Co., Ltd... 662
Garcia v. Holohan, U. S. Marshal................ 663
Garcia, Admr., Western Fuel Co. v............... 233
Gear Grinding Machine Co., Studebaker Corporation
v........................................   653
George H. McFadden Bros. Agency v. Standard
Warehouse & Compress Co.................... 643
Georgia, State of, v. State of South Carolina..... 516
Gettys v. Newburger.........................>... 649
Ghio v. Moore, Collector of Internal Revenue......491
Gibson, Rennie v..............................   611
Gillespie v. State of Oklahoma.................. 501
Globe & Rutgers Fire Ins. Co. v. Hines, Agent..... 643
Goodrich v. West Lumber Co...................... 610
Gould & Curry Mining Co. v. Douglas............. 645
xxxviii TABLE OF CASES REPORTED.
Page.
Grant Smith-Porter Ship Co. v. Rohde........... 469
Grayson v. United States....................... 637
Great Northern Ry. v. Steinke.................. 629
Green, Admx., Davis, Director General, v....... 627
Greevy v. Commonwealth of Pennsylvania.......... 659
Grinnell Overland Co. v. Merchants Natl. Bank.... 640
Groesbeck, Attorney General, State of Michigan ex
rel., v. Detroit United Ry................ 609
Grogan v. United States........................ 656
Groomes, Blackistone v......................... 624
Guayaquil & Quito R. R. v. New York & Cuba Mail
S. S. Co.................................. 642
Hallanan, State Tax Commr., Eureka Pipe Line
Co. v..................................... 265
Hallanan, State Tax Commr., United Fuel Gas
Co. v..................................... 277
Halliday, Slocum, Trustee, v................... 637
Hannah Neilson, Steamship, Tolo v...... 628, 651, 653
Hanvey, Strahan v.............................. 668
Harris, Leopold, v. United States.............. 646
Harris, P. H., v. United States................ 623
Hartford Rubber Works Co., Metallic Rubber Tire
Co. v....................................... 650
Harvey v. Union Traction Co...................... 624
Heldman v. Central Trust Co., Trustee.......... 664
Henry v. United States........................... 640
Hereford v. Meserve.............................. 636
Herrick v. Basletta.............................. 658
Herschberger, Woodrow-Parker Co. v............... 661
Hewitt-Lea Lumber Co., King County v....... 622, 661
Hickey, * Bowen v................................ 656
Hildreth v. Mastoras............................ 27
Hill v. Smith...................................   630
Hill v. Wallace, Secy, of Agriculture...... 310,	615
Hines, Agent, Globe & Rutgers Fire Ins. Co. v... 643
Hines, Director General, v. Butler............. 659
TABLE OF CASES REPORTED. xxxix
Page.
Hines, Director General, v. Kowalski............ 649
Hines, Director General, v. Mauldin............. 669
Hing, Pang, v. White, Commr. of Immigration..... 639 Hinkle, Secy, of State, Washington, Takuji Yama-
shita v...................................  628
Holohan, U. S. Marshal, Garcia v................ 663
Holter Hardware Co., Boyle v.................... 666
Horstmann Co. v. United States.................. 138
Hubbard, McConnell, Receiver,	v................ 635
Hughes, Kansas City Motion Picture Machine Op-
erators v.................................. 621
Hughes, Secy, of State, United States ex rel. Widen-mann v..................................... 619
Hunt, Exr. v. United States..................... 125
Hunter v. United States......................... 633
Hurley v. Commission of Fisheries of Virginia... 223
Illinois, State of, ex rel. Chicago Bar Assn., Ward v.. 666 Indiana Steel Co., Smietanka, Collector of Internal
Revenue, v................................... 1
Industrial Accident Comm, of California, Southern
Pacific Co. v.............................. 647
Ingle, Landis Tool Co.	v........................ 644
Insular Collector of Customs, Dharandas Tulsidas v. 624 International Brotherhood of Electrical Workers v.
Kinloch Tel. Co............................ 662
International Ry. v. Davidson, Individually and as
Collector.................................. 506
Interstate Commerce Comm., Central R. R. Co. of
New Jersey v................................. 247
Interstate Commerce Comm., State of New York v.. 591 Iowa Gas & Elec. Co. v. City of Mt. Pleasant.... 662
Isles Steamshipping Co., Gans S. S. Line v...... 662
Israel v. Moore & McCormack, Inc..............   668
I.	T. S. Rubber Co. v. Essex Rubber Co.......... 664
Izard County Highway Improvement Dist. No. 1,
Missouri Pacific R. R. v................... 623
XL TABLE OF CASES REPORTED.
Page.
Jackson, Receiver, v. White..................... 659
Janowitz, United States v........................ 42
Jenkins & Co., Anaheim Sugar Co. v.............. 659
Jewett Bigelow & Brooks, Detroit Edison Co. v.... 641
J.	K. Armsby Co. v. Steamship Esrom............. 634
J.	N. Pharr & Sons, Ltd., v. Kenny Co........... 648
John Hortsmann Co. v. United States............. 138
John Lysaght, Ltd., Lehigh Valley R. R. v........613
Johnson v. State of South Carolina.............. 668
Jones v. Seiffert............................... 618
Journey, Alabama & Vicksburg Ry. v.............. Ill
Kahn et al., Exrs., v. United States............ 244
Kaisha, Osaka Shosen, v. Pacific Export Lumber Co. 626
Kansas City Motion Picture Machine Operators v.
Hughes..................................... 621
Kansas City Southern Ry. v. Van Zant............ 627
Katz v. United States........................... 641
Katzel, Bourjois & Co. v.S. 630
Keeley v. Evans, District Attorney.............. 667
Keith, Trustee, Kilmer, Trustee, v.............. 639
Kelley v. West Braddock Bridge Co............... 641
Kenny Co., Pharr & Sons, Ltd., v................ 648
Kern River Co. v. United States................. 147
Keystone Watch Case Co. v. United States (2 cases). 664
Kilmer, Trustee, v. Keith, Trustee.............. 639
King, Zucht v................................... 650
King County v. Hewitt-Lea Lumber Co......... 622, 661
Kinloch Tel. Co., Local Union No. 2, International
Brotherhood of Electrical Workers, v....... 662
Kinney, New York Central & Hudson River R. R. v. 626
Kissel Motor Car Co. v. Walker.................. 634
Klipstein & Co. v. Dilsizian.................... 639
Koenig, Wabash Ry. v............................ 660
Kowalski, Hines, Director General, v............ 649
Krauss Bros. Lumber Co. v. Board of Assessors, Parish
of Orleans.............................. 618,	636
K.	W. Ignition Co. v. Ford Motor Co............ 658
TABLE 0/ CASES REPORTED. xli
Page.
Lafayette County Road Improvement Dist. v. St.
Louis Southwestern Ry....................... 547.
La Fetra, Justice, State of New York ex ret. Brixton
Operating Corporation v...................... 665
Laguna, Pueblo of, v. Candelaria.................. 623
Landis Tool Co. v. Ingle........................... 644
Langan v. City of Louisville...................... 612
Lashar, O’Brien v................................. 640
Lauria v. United States........................... 635
Lederer, Collector, Traylor Engineering & Mfg. Co. v. 638 Lefkowitz v. United States........................ 637
Lehigh Valley R. R. v. Allied Machinery Co........ 614
Lehigh Valley R. R. v. John Lysaght, Ltd.......... 613
Lehigh Valley R. R., Intervener, State of New York
v. United States et al....................... 591
Leigh Ellis & Co. v. Davis, Agent................. 659
Lemke, Attorney General, State of North Dakota ex
rel., v. Chicago & Northwestern Ry..........  485
Lezinsky v. Mason Malt Whiskey Distilling Co...... 637
Liberty, The...................................... 419
Liberty Oil Co. v. Condon Natl. Bank.... 628, 630, 651
Lincoln Gas & Elec. Light Co., Ex parte............. 6
Lind, Admx., Payne, Director General, v........... 652
Lindenburg, American Railway Express Co. v........ 627
L.	N. Dantzler Lumber Co., Davis, Director Gen-
eral, v.....................................  632
Local Union No. 2, International Brotherhood of
Electrical Workers, v. Kinloch Tel. Co....... 662
Loucks, United States v........................... 630
Louisiana & Pine Bluff Ry. v. United States....... 114
Louisiana Ry. & Nav. Co. v. Williams.............. 610
Louisville, City of, Langan v............>........	612
Louisville, City of, v. Louisville Ry............. 619
Louisville Ry., City of Louisville v.............. 619
Lowenthal v. United States.......................  644
Lysaght, John, Ltd., Lehigh Valley R. R. v........ 613
xlii TABLE OF CASES REPORTED.
Page. McConnell, Receiver, v. Hubbard.................. 635
.McDonnell, Willson v............................ 665
McFadden Bros. Agency v. Standard Warehouse &
Compress Co................................. 643
McKelvey v. United States........................ 625
Maresca v. United States........................ 657
Marine Ry. & Coal Co. v. United States............ 47
Martens v. Twin Falls-Oakley Land & Water Co.... 637 Martineau, Chancellor, v. State of Arkansas ex rel.
Attorney General............................ 665
Mason Malt Whiskey Distilling Co., Lezinsky v.... 637 Mastoras, Hildreth v. 27 Matthey v. United States......................... 658
Mauldin, Hines, Director General, v.........	669
Mayne, Copper Queen Consolidated Mining Co. v.. 663 Mecartney, United States ex rel., v. Colby, Secy, of
State....................................... 619
Melin v. Northland Pine Co....................... 650
Merchants Natl. Bank, Grinnell Overland Co. v.... 640 Merrell Chemical Co., Upjohn Co. v. 638 Merriam, Pickens v............................... 656
Meserve, Hereford v..... .^ .i................... 636 Metallic Rubber Tire Co. v. Hartford Rubber Works
Co.......................................... 650
Mexico North Western Ry. v. Williams............. 644
Michigan, State of, ex rel. Groesbeck, Attorney Gen-
eral, v. Detroit United Ry.................. 609
Miles, Collector of Internal Revenue, Bryan v..... 491 Miller v. American Bonding Co.................... 304
Miller, Electro Bleaching Gas Co. v.............. 660
Miller, Schaff, Receiver, v...................... 651
Minnesota, State of, Pullman Co. v............... 663
Minnesota, State of, Townley v................... 643
Minnesota Commercial Men’s Assn. v. Benn, Execu-
trix ....................................... 625
Minnesota & Ontario Paper Co., Eibel Process Co. v. 628 Mississippi, State of, Crescent Cotton Oil Co. v. 129
TABLE OF CASES REPORTED. XLin
Page.
Missouri Pacific R. R. v. Clarendon Boat Oar Co.... 533
Missouri Pacific R. R. v. Izard County Highway Im-
provement Dist. No. 1..................... 623
Mitchell Furniture Co. v. Selden Breck Constr. Co.. 213
Moore, Collector of Internal Revenue, Cornell v.... 491
Moore, Collector of Internal Revenue, Ghio v....491
Moore & McCormack, Inc., Israel v...............668
Moorehead v. United States..................... 643
Moreland, United States v...................... 631
Morse Dry Dock & Repair Co. v. Steamship Nord
Alexis.................................  .•	635
M.	Rice & Co., United States v................ 536
Mt. Pleasant, City of, Iowa Gas & Elec. Co. v... 662
Muck v. Weyerhaeuser Timber Co................. 645
Munger, Perlman Rim Corporation v.............  645
National Discount Co., Williams, Trustee, v........ 635
Natron Soda Co. v. United States............... 138
Nesmith v. State of Ohio....................... 622
Newberry, Central of Georgia Ry. v............. 662
Newburger, Gettys v............................ 649
New York, City of, v. Title Guarantee & Trust Co.. 654
New York, State of, ex rei. Brixton Operating Corporation v. LaFetra, Justice................. 665
New York, State of, v. United States, Clark et al., Constituting Interstate Commerce Comm., and (intervening) Lehigh Valley R. R. et al.... 591
New York Central & Hudson River R. R. v. Kinney.. 626
New York & Cuba Mail S. S. Co., Guayaquil & Quito
R. R. v................................... 642
New York State Industrial Comm. v. Nordenholt
Corporation............................... 631
New York Trust Co. et al., Exrs., v. Edwards, Collector of Internal Revenue.................... 176
Nicholas v. United States....................... 71
Nord Alexis, Steamship, Morse Dry Dock & Repair
Co. v......................................   635
xliv TABLE OF CASES REPORTED.
Page.
Nordenholt Corporation, State Industrial Comm, of New York v.................................. 631
Norris v. United States.......................... 77
North Dakota, State of, ex rel., Lemke, Attorney
General, v. Chicago & Northwestern Ry...... 485
North Pacific S. S. Co. v. Soley................ 216
Northland Pine Co., Melin v..................... 650
Nye Tool & Machine Works, Crown Die & Tool
Co. v...................................... 632
O’Brien v. Anderson............................. 640
O’Brien v. Lashar............................... 640
O’Connor v. Slaker, Admr........................ 610
O’Connor, Virginia Ry. & Power Co. v............ 649
Ohio, State of, Nesmith v.................t..... 622
Ohio, State of, ex rel. Seney, Prosecuting Attorney,
v. Swift & Co.............................  633
Ohio, State of v. State of West Virginia........ 620
Oklahoma, State of, Gillespie v..............t... 501
Oklahoma, State of, v. State of Texas.......... 308,
609, 611, 616, 621
Oklahoma Corporation Comm., Oklahoma Gas & Elec. Co. v................................. 666
Oklahoma Gas & Elec. Co. v. Corporation Comm, of
Oklahoma................................... 666
Olson v. Adams et al., Trustees................. 634
Oregon Eilers Music House, Ex parte............. 613
Oregon Eilers Music House v. Sitton, Trustee.... 646
Orleans, Parish of, Krauss Bros. Lumber Co. v.. 618, 636 Osaka Shosen Kaisha u. Pacific Export Lumber Co.. 626
Pace v. Zerbst, Warden.......................... 669
Pacific Export Lumber Co., Osaka Shosen Kaisha v.. 626
Paden, Rockford Palace Furniture Co. v.......... 645
Pang Hing v. White, Commr. of Immigration....... 639
Panhandle Grain & Elevator Co. v. Cromwell Bros.. 635
Payne, Director General, v. Lind, Admx.......... 652
Payne, Director General, Schauffele, Admx., v... 661
TABLE OF CASES REPORTED. xlv
Page.
Payne, Director General, v. Shotwell, Admx........ 653
Payne, Director General, v. Stevens.............  642
Peninsular Portland Cement Co. v. Consolidation
Coal Co..................................... 641
Pennsylvania, Commonwealth of, Greevy v........... 659
Pennsylvania, Commonwealth of, v. State of West
Virginia.................................... 620
Pennsylvania R. R. v. Weber, Surviving Partner.... 85
Perlman Rim Corporation v. Munger................ 645
Perrin, Admx., Union Pacific R. R. v............. 661
Pharr & Sons, Ltd., v. Kenny Go.................. 648
Phellis, United States v......................... 156
Philadelphia &'Reading Ry. v. Berg............... 638
Philadelphia & Reading Ry. v. Smith.............. 613
Philadelphia Rubber Works Co., U. S. Rubber Re-
claiming Works v..........................   660
Pickens v. Merriam.............................   656
Pocahontas County, Iowa, Board of Supervisors,
Breiholz v.................................  118
Postal Telegraph Cable Co., City and County of San
Francisco v................................. 648
Powell, Garard & Co. v. Erath County........... 645, 646
Prioleau v. United States.......................  633
Prosser v. United States.......................   622
Public Service Elec. Co. v. Town of Westfield..... 669
Pullman Co. v. State of Minnesota...............  663
Quemahoning Coal Co., Colonial Beach Co. v........ 626
Rafferty, Collector of Internal Revenue, v. Compania
General De Tabacos De Filipinas.............. 226
Rafferty, Collector of Internal Revenue, v. Smith, Bell & Co.................................... 226’
Rafferty, Collector of Internal Revenue, v. Visayan
Refining Co................................. 226
Railroad Comm, of Wisconsin v. Chicago, Burlington
& Quincy R. R............................... 563
Ramdullah, Cross v............................. 655
XLvi TABLE OF CASES REPORTED.
Page.
Regal Drug Corporation v. Wardell, Collector of In-
ternal Revenue............................ 625
Rennie v. Gibson.............................. 611
Republic Iron & Steel Co., Wilson v............ 92
Rhode Island Hospital Trust Co., Admr., v. Atwood. 661
Rice & Co., United States v................... 536
Road Improvement Dist. No. 2, Lafayette County, v.
St. Louis Southwestern Ry................. 547
Robert Mitchell Furniture Co. v. Selden Breck
Constr. Co................................ 213
Robinson v. United States ex rel. Brown-Ketcham
IronWorks................................  664
Robinson, Texas Ranger Producing & Refg. Co. v... 646
Rockefeller v. United States.................. 176
Rockford Palace Furniture Co. v. Paden....•....645
Rodgers, Cunningham v........................... 466
Rohde, Grant Smith-Porter Ship Co. v.......... 469
Rose, Conlin v................................ 647
Rose v. United States......................... 655
Rousso v. Barber.............................. 658
Rowan v. United States........................ 660
Ryan v. Aetna Life Ins. Co.................... 639
Sacks, United States v.......................... 37
St. Albans, City of, Fonda v.............. 640,	666
St. Louis Southwestern Ry., Commissioners of Road
Improvement Dist. No. 2, Lafayette County, v.. 547
Salt River Valley Water Users’ Assn., Verde Water &
Power Co. v............................... 643
Samad v. Behrandt, U. S. Marshal.............. 613
San Francisco, City and County of, v. Postal Tel.
Cable Co.................................  648
Savage v. United States.....................   642
Schaff, Receiver, v. Miller................... 651
Schauffele, Admx., v. Payne, Director General.... 661
Schoyen, Admr., United States v.............   667
Schurmann v. United States.................... 621
TABLE OF CASES	REPORTED.	xlvii
Page.
Sedberry, Watkins, Trustee, v..................... 633
Seiffert, Jones v................................  618
Selden Breck Constr. Co., Robert Mitchell Furniture
Co. v........................................ 213
Seney, Prosecuting Attorney, State of Ohio ex rel., v.
Swift & Co................................... 633
Sheung, Chan Wy, v. United States......... 629, 652, 654
Shosen Kaisha, Osaka, v. Pacific Export Lumber Co. 626
Shotwell, Admx., Payne, Director General, v....... 653
Simmons, Davidge v. (2 cases)......................667
Sinclair Refining Co., Federal Trade Comm, v......631
Sioux City Bridge Co. v. Dakota County... 628, 630, 652
Sitton, Trustee, Oregon Eilers Music House v......646
Slaker, Admr., O’Connor v......................... 610
Slocum, Trustee, v. Halliday...................... 637
Smietanka, Collector of Internal Revenue, v. First
Trust & Savings Bank, Trustee.............602,	628
Smietanka, Collector of Internal Revenue, v. Indiana
Steel Co....................................... 1
Smith, Admr., Davis, Director General, v.......... 625
Smith, Hill v..................................... 630
Smith, Philadelphia & Reading Ry. v............... 613
Smith v. United States..........................   667
Smith, Bell & Co., Rafferty, Collector of Internal
Revenue, v..................................  226
Snyder v. Davidson, Individually and as Collector.. 620
Soley, North Pacific S. S. Co. v.................. 216
South Carolina, State of, State of Georgia v......516
South Carolina, State of, Johnson v............... 668
Southern Express Co. v. Spigener, Treasurer....... 669
Southern Pacific Co. v. Industrial Accident Comm, of California................................. 647
Southern Pacific R. R. v. Fall, Secy, of Interior.460
Spigener, Treasurer, Southern Express Co. v....... 669
Springfield, City of, Springfield Gas & Elec. Co. v.. 66
Springfield Gas & Elec..Co. v. City of Springfield... 66
xlviii TABLE OF CASES REPORTED.
Page,
Standard Warehouse & Compress Co., McFadden
Bros. Agency v............................ 643
Star Co. v. Fisher............................. 654
Star Co. v. Wheeler Syndicate, Inc............. 654
State Industrial Comm., Davis, Director General, v.. 642 State Industrial Comm, of New York v. Nordenholt
Corporation............................... 631
Steinke, Great Northern Ry. v.................. 629
Stemberger v. Continental Mines, Power & Reduction Co..................................... 617
Stevens v. Arnold et al., Exrs................. 631
Stevens, Payne, Director General, v............... 642
Stewart, Wabash Ry. v. 641
Stone, Chief of Police, Crookshank v........... 664
Strahan v. Hanvey.............................. 668
Strick Line, Ltd., v. Suna, Master............. 638
Studebaker Corporation v. Gear Grinding Machine
Co........................................ 653
Sullinger, U. S. Attorney, Cole v.............. 663
Suna, Master, Strick Line, Ltd., v................ 638 Swift & Co., State of Ohio ex rel. Seney, Prosecuting
Attorney, v............................... 633
Takuji Yamashita v. Hinkle, Secy, of State, Washington ....................................    628
Tennessee, Alabama & Georgia R. R. v. Drake..... 612
Terral, Secy, of State, Arkansas, v. Burke Constr. Co. 529 Texas, State of, State of Oklahoma v.............. 308, 609, 611, 616, 621
Texas, State of, Texas-Cherokees and Associate
Bands v................................... 615
Texas-Cherokees and Associate Bands v. State of
Texas..................................... 615
Texas Ranger Producing & Refg. Co. v. Robinson... 646 Thompson, Bulk Oil Transports v................ 657
Tilton v. Drennen, Receiver............ 631, 651, 657
Title Guarantee & Trust Co., Trustee, City of New
York ....................................  654
TABLE OF CASES REPORTED. xlix
Page.
Toledo Scale Co. v. Computing Scale Co................. 657
Tolo v. Steamship Hannah Neilson......... 628, 651, 653
Townley v. State of Minnesota.......................... 643
Traylor Engineering & Mfg. Co. v. Lederer, Collector. 638
Tri-City Central Trades Council, American Steel
Foundries v....................................... 184
Truax et al., Copartners, v. Corrigan.........	312
Tulsidas, Dharandas, v. Insular Collector of Customs. 624 Twin Falls-Oakley Land & Water Co., Martens v.. 637 T. W. Jenkins & Co., Anaheim Sugar Co. v............... 659
Union Pacific R. R. v. Perrin, Admx.................... 661
Union Traction Co., Harvey v........................... 624
United Fuel Gas Co. v. Hallanan, State Tax Commr. 277
United States, Owner of The Carolinian, Ex parte... 419 United States, Owner, of The Liberty, Ex parte..........419
United States, Owner of The Western Maid, Ex parte. 419 • United States, Intervener, State of Oklahoma v.
State of Texas.............. 308, 609, 611, 616, 621
United States, American Column & Lumber	Co.	v..	377
United States, Anderson v.......................... 647
United States, Billingsley v. (2 cases)............ 656
United States, Bowles v............................ 667
United States, Boylan v............................ 614
United States, Byron v................................. 653
United States v. Caster............................ 666
United States, Central Railroad Co. of New Jersey	v.	247
United States, Chan Wy Sheung v........	629,	652, 654
United States, Cohen v................................. 657
United States ex rel. Mecartney v. Colby, Secy, of
State............................................. 619
United States, Continental Ins. Co. v.................. 622
United States v. Cook, Exr............................. 523
United States, Dierkes v..............................  646
United States, Doo Fook v................ 628,	652, 654
United States, Dubman v................................ 650
6267°—22--4
l TABLE OF CASES REPORTED.
Page.
United States, Eberlein v........................ 82
United States, Elwell v......................... 647
United States, Embry v.......................... 655
United States, Grayson v........................ 637
United States, Grogan v......................... 656
United States, Leopold Harris v................. 646
United States, P. H. Harris v................... 623
United States, Henry v.......................... 640
United States, Horstmann Co. v.................. 138
United States ex rel. Widenmann v. Hughes, Secy.
of State................................... 619
United States, Hunt, Exr. v................ J..... 125
United States, Hunter v............... J.. 633
United States v. Janowitz........................ 42
United States, Kahn et al., Exrs., v.... i........... 244
United States, Katz v. >........................ 641
United States, Kern River Co. v....'............ 147
United States v. Keystone Watch Case Co. (2 cases). 664
United States, Lauria v. 635
United States, Lefkowitz v....................... 637
United States v. Loucks......................... 630
United States, Louisiana & Pine Bluff Ry. v...... 114
United States, Lowenthal v...................... 644
United States, McKelvey v....................... 625
United States, Maresca v........................ 657
United States, Marine Ry. & Coal Co. v........... 47
United States, Matthey v........................ 658
United States, Moorehead v...................... 643
United States v. Moreland....................... 631
United States, Natron Soda Co. v................ 138
United States et al., State of New York v....... 591
United States, Nicholas v.................... i/.. 71
United States, Norris v...................... i... 77
United States v. Phellis........................ 156
United States, Prioleau v. 633
United States, Prosser v. . 622
United States v. Rice & Co...................... 536
TABLE OF CASES REPORTED. li
Page.
United States ex rel. Brown-Ketcham Iron Works,
Robinson v.................................. 664
United States, Rockefeller v.................... 176
United States,	Rose v.......................... 655
United States,	Rowan	v........................ 660
United States v. Sacks........................... 37
United States,	Savage	v........................ 642
United States v. Schoyen, Admr..................?	667
United States, Schurmann v...................... 621
United States, Smith v.........................  667
United States, Vincenti v.....................   634
United States v. Volk, Trustee.................. 667
United States, Wallace v........................ 541
United States, Weitzel v........................ 644
United States, Wilson v......................... 649
United States Rubber Reclaiming Works v. Philadelphia Rubber Works Co.........................660
United States Shipping Board Emergency Fleet Corporation v. Wood, Trustee................... 627
Upjohn Co. v. Merrell Chemical Co............... 638
Vandenburg, Concrete Steel Co. v................ 632
Van Zant, Kansas City Southern Ry. v............ 627
Verde Water & Power Co. v. Salt River Valley Water
Users’ Assn................................. 643
Vincenti v. United States...........;........... 634
Virginia Commission of Fisheries, Hurley v....... 223
Virginia Ry. & Power Co. v. Bankers Trust Co., Exr. 649
Virginia Ry. & Power Co. v. O’Connor............ 649
Visayan Refining Co., Rafferty, Collector of Internal
i Revenue, v........................................  226
Volk, Trustee, United States v.................. 667
Wabash Ry. v. Elliott........................    632
Wabash Ry. v. Koenig............................ 660
Wabash Ry. v. Stewart........................... 641
Walker, Kissel Motor Car Co. v.................. 634
lu TABLE OF CASES REPORTED.
Page.
Wallace, Davis, Director General, v.............	478
Wallace, Secy, of Agriculture, Hill v...... 310,	615
Wallace v. United States....................... 541
Walter A. Zelnicker Supply Co., Dermott Land &
Lumber Co. v............................... 648
Ward v. State of Illinois ex rei. Chicago Bar Assn.... 666 Ward v. State of Washington.................... 612
Wardell, Collector of Internal Revenue, Regal Drug
Corporation v625 Warner, Ex parte................................ 614
Washington, State of, Ward v................ »... 612 Watkins, Trustee, v. Sedberry.................. 633
Watts v. State of Arizona ex rei. Burgoon, Treasurer. 617 Weber, Surviving Partner, Pennsylvania R. R. v.... 85 Weitzel v. United States....................... 644
West Braddock Bridge Co., Kelley v............. 641
West Lumber Co., Goodrich v.............. i..... 610 West Virginia, State of, State of Ohio v........... 620 West Virginia, State of, Commonwealth of Pennsyl-
vania v.. 620 Western Fuel Co. v. Garcia, Admr............... 233
Western Maid, The.............................. 419
Westfield, Town of, Public Service Elec. Co. v.. 669
Weyerhaeuser Timber Co., Muck	v.............. 645
Wheeler Syndicate, Inc., Star Co. v............ 654
White, Jackson, Receiver, v.................... 659
White, Commr. of Immigration, Pang Hing v....... 639
Widenmann, United States ex rei., v. Hughes, Secy.
of State.................................   619
Widrevitz, Admx., Crittenden v................. 636
Wilhelmsen, Barber & Co. v.................. J. > 655 William S. Merrell Chemical Co., Upjohn Co. v.... 638 Williams, Louisiana Ry. & Nav. Co. v........... 610
Williams, Mexico North Western Ry. v........... 644
Williams, Trustee, v. National Discount Co...... 635
Willson v. McDonnell........................... 665
Wilson v. Republic Iron & Steel Co.............. 92
TABLE OF CASES REPORTED. Lin
Page.
Wilson v. United States....................... 649
Wineman v. Anderson-Tully Co.................. 647
Wisconsin R. R. Comm. v. Chicago, Burlington &
Quincy R. R............................... 563
Wood, Trustee, United States Shipping Board Emergency Fleet Corporation v.................... 627
Woodrow-Parker Co. v. Herschberger............-	661
Wy Sheung, Chan, v. United States...... 629, 652, 654
Yamashita v. Hinkle, Secy, of State, Washington... 628
Yazoo & Mississippi Valley R. R. v. City of Clarksdale ....................................... 10
Zelnicker Supply Co., Dermott Land & Lumber
Co. v..................................... 648
Zerbst, Warden, Pace v........................ 669
Zucht v. King................................... 650
TABLE OF CASES
Cited In Opinions.
Page.
Addyston Pipe & Steel Co. v.
United States, 175 U. S.
211	291,418,601
Alabama & Vicksburg Ry. v.
Journey, 122 Miss. 742 111, 113 Alaska, The, 130 U. S. 201	240
Alexandria Canal Co. v. Dist.
of Columbia, 1 Mackey,
217	66
Allen v. Flood [1898] A. C.
1	362
American Bonding Co. v.
United States, 233 Fed.
364	305
American Creosoting Co. v.
Director General, 61 I. C.
C. 145	254
American Engineering Co. v.
International Moulders
Union, 25 Pa. Dist. 564	365
American Express Co. v.
Caldwell, 244 U. S. 617 580 American Express Co. v.
Iowa, 196 U. S. 133	290
American Federation of La-
bor v. Buck’s Stove & Range
Co., 33 App. D. C. 83	364
American Security & Trust
Co. v. District of Colum-
bia, 224 U. S. 491	47,63
American Steamboat Co. v.
Chase, 16 Wall. 531	240,241
American Steel Foundries v.
Tri-City Central Trades
Council, 257 U. S. 184
313,340,362,365,371 American Steel & Wire Co. v.
Speed, 192 U. S. 500 290,618 American Sugar Refg. Co. v.
Louisiana, 179 U. S. 89	137
Ames v. Kansas, 111 U. S.
449	491
Page.
Amy v. Watertown, 130 U. S.
301	12,26
Anderson v. Durr, 20 Oh. N.
P. (n. s.) 538; 29 O. C. A.
465; 100 Oh. St. 251	100,106
Anderson v. Watt, 138 U. S.
694	221
Arant v. Lane, 249 U. S. 367 76 Arizona Employers’ Liability
Cases, 250 U. S. 400
338,353,356,372 Arkadelphia Milling Co. v.
St. Louis S. W. Ry., 249
U. S. 134	136,350
Arkansas v. Tennessee, 246
U. S. 158	522
Arthur v. Dodge, 101 U. S.
34	540
Arthur v. Fox, 108 U. S. 125 540 Arthur v. Morgan, 112 U. S.
495	540
Arthur v. Oakes, 63 Fed. 310 374 Atchison, T. & S. F. Ry. v.
Gee, 139 Fed. 582	206,365
Atchison, T. & S. F. Ry. v.
Vosburg, 238 U. S. 56	339
Athol, The, 1 Wm. Rob. 374 434 Atkin v. Kansas, 191 U. S.
207	356
Atlantic & Pacific R. R. v.
Mingus, 165 U. S. 413	155
Atlantic Transport Co. v. Im-
brovek, 234 U. S. 52	476
Attualita, The, 238 Fed. 909 440 Auburn Draying Co. v.
Wardell, 227 N. Y. 1 363,364 Avery v. Popper, 179 U. S.
305	16
Baash v. Cooks Union, 99
Wash. 378	365
Bacon v. Illinois, 227 U. S.
504	618
LV
Lvi TABLE OF CASES CITED.
Page
Bailey v. Alabama, 219 U. S. 219	324
Baldwin Lumber Co. v. Brotherhood of Teamsters, 91 N. J. Eq. 240	365
Baltic Mining Co. v. Massachusetts, 231 U. S. 68	137
Balt. & Ohio R. R. v. Interstate Com. Comm., 221 U. S. 612	589
Balt. & Potomac R. R. v.
Hopkins, 130 U. S. 210 295,303
Barbier v. Connolly, 113 U. S. 27	333,334,351
Barnes & Co. v. Chicago Typographical Union, 232 Ill.
424	205,349,365
Barr v. Essex Trades Council, 53 N. J. Eq. 101	328
Barron v. Burnside, 121 U. S. 186	532
Barrow S. S. Co. v. Kane, 170 U. S. 100	532
Bayersdorfer v. United States, 7 Cust. App. 66	537
Beal v. Carpenter, 235 Fed. 273	22
Beaumont v. Prieto, 249 U. S. 554	214
Beck v. Railway Teamsters’
Union, 118 Mich. 497	205,
349,364,365
Bedford v. United States, 192
U. S. 217	146
Beech-Nut Packing Co. v.
Federal Trade Comm., 264
Fed. 885	442,444
Berry v. Donovan, 188 Mass. .354	211
Bisbee v. Arizona Ins.
Agency, 14 Ariz. 313	375
Blake v. United States, 103
U. S. 227	544,545
Bliss v. Anaconda Copper
Min. Co., 167 Fed 342	375
Bliss v. Washoe Copper Co., 186 Fed. 789	375
Blumenstock Bros. Adv.
Agency v. Curtis Pub. Co., 252 U. S. 436	296
Board of Trade of Chicago v.
Hammond Elev. Co., 198 U. S. 424	214
Page.
Bogni v. Perotti, 224 Mass. 152	339
Bond v. Dustin, 112 U. S. 604 562
Bondurant v. Dahnke-Walker
Milling Co., 175 Ky. 774 287,297
Boom Co. v. Patterson, 98 U.
S.	403	555
Booth v. Burgess, 72 N. J.
Eq. 181	362-364
Boots v. Grundy, 82 L. T. R. 769	358
Bomemann v. Norris, 47 Fed. 438	26
Bossert v. Dhuy, 221 N. Y. 342	363-365
Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69	374
Boyd v. Mutual Fire Assn., 116 Wise. 155	265
Branson v. Bush, 251 U. S. 182	123
Breiholz v. Board of Supervisors, 186 la. 1147	119
Brennan v. United Hatters of
N. Amer., 73 N. J. L. 729 211
Bridge Proprietors v. Hoboken Co., 1 Wall. 116 289,558
Brolan v. United States, 236
U. S. 216	614
Brown v. Houston, 114 U. S. 622	618
Brown v. Maryland, 12
Wheat. 419	290
Brown v. New Jersey, 175
U. S. 172	374
Bruce v. Tobin, 245 U. S. 18 622
Buchanan v. Alexander, 4
How. 20	433
Bulcock v. St. Anne’s Master
Builders’ Federation, 19
T.	L. R. 27	358
Bull v. Northern Pacific R.
R., 26 L. D. 693	464
Burnap v. United States, 252
U.	S. 512	81,84
Burnham v. Dowd, 217 Mass. 351	362,364
Business Men’s League v.
Atchison, T. & S. F. Ry., 49 I. C. C. 713	579
TABLE OF CASES CITED. lvii
Page. Butler v. Boston & Savannah
S. S. Co., 130 U. S. 557	241
Butterick Pub. Co. v. Typographical Union, 100 N. Y.
S. 292	364
California v. Central Pac.
R. R. 127 U. S. 1	590
Cameron Furnace Co. v.
Pennsylvania Canal Co., 2 Pearson (Pa.) 208	375
Caminetti v. United States, 242 U. S. 470	589
Capital City Dairy Co. v.
Ohio, 183 U. S. 238	136
Carew v. Rutherford, 106
Mass. 1	362
Cargill Co. v. Minnesota, 180
U. S. 452	137
Carino v. Insular Government, 212 U. S. 449	432
Carolinian, The, 270 Fed.
1011	431,440
Carr v. United States, 98
U. S. 433	434
Car roll v. Greenwich Ins. Co.,
199 U. S. 401	343
Carson v. Dunham, 121 U. S.
421	97
Cary v. Curtis, 3 How. 236	4
Casey v. Cincinnati Typographical Union, 45 Fed.
135	328
Casseday v. Norris, 49 Tex.
613	24
Cedar Rapids Gas Light Co.
v. Cedar Rapids, 223 U. S.
655	324
Chalker v. Birmingham & N.
W. Ry., 249 U. S. 522	300
Champion Lumber Co. v.
Fisher, 227 U. S. 445	302
Chandler v. Hanna, 73 Ala.
390	375
Chelentis v. Luckenbach S. S.
Co., 247 U. S. 372	241,477
Cherokee Nation v. Georgia,
5 Pet. 1	615
Ches. & Ohio Ry. v. Cockrell,
232 U. S. 146	97
Chicago, In re, 64 Fed. 897
559,561 Chicago v. Dempcy, 250 U. S.
651	617
Page.
Chicago & Alton R. R. v.
Tranbarger, 238 U. S. 67 348 Chicago Board of Trade v.
Hammond Elev. Co., 198
U. S. 424	214
Chicago Board of Trade v.
United States, 246 U. S.
231	415
Chicago, Mil. & St. P. Ry. v.
Minnesota, 134 U. S. 418 324 Chicago & N. W. Ry. v.
Ochs, 249 U. S. 416	300
Chicago, R. I. & Pac. Ry. v.
Arkansas, 219 U. S. 453	356
Chicago, R. I. & Pac. Ry. v.
Dowell, 229 U. S. 102	97
Chicago, R. I. & Pac. Ry. v.
Schwyhart, 227 U. S. 184	99
Chicot County v. Sherwood,
148 U. S. 529	557
China, The, 7 Wall. 53	436
Chipman, Ltd. v. Thomas B.
Jeffery Co., 251 U. S. 373 214-216,299 Choctaw, Okla. & Gulf R. R.
v. Harrison, 235 U. S. 292
501,503,504
C., N. O. & T. P. Ry. v. Clark
& Bennett, 11 Ky. Law
Rep. 286	339
Citizens Natl. Bank v. Durr,
257 U. S. 99	299
Clarage v. Luphringer, 202
Mich. 612	365
Clayton v. Utah Territory,
132 U. S. 632	303
Clement Natl. Bank v. Ver-
mont, 231 U. S. 120	108
Cleveland, &c. Ry v. Backus,
154 U. S. 439	110
Clough v. Curtis, 134 U. S.
361	'	303
Coe v. Armour Fertilizer
Works, 237 U. S. 413	622
Coe v. Errol, 116 U. S. 517
136,301,618 Cohens v. Virginia, 6 Wheat.
264	491
Cohn & Roth Elec. Co. v.
Bricklayers Union, 92
Conn. 161	362,363,365
Coleman v. United States, 250
U. S. 30	245
LVIII
TABLE OF CASES CITED.
Page.
Colorado Eastern Ry. v.
Union Pae. Ry., 34 Fed. 312 96
Colorado Midland Ry. v.
Jones, 29 Fed. 193	562
Commissioners Road Im-
provement Dist. No. 2 v.
St. Louis S. W. Ry. 265
Fed. 524	548
Commonwealth v. Chattanooga Impl. & Mfg. Co., 126 Ky. 636	297
Commonwealth v. Eclipse
Hay Press Co., 104 S. W.
224	297
Commonwealth v. Hogan,
McMorrow & Tieke Co., 74 S. W. 737	297
Commonwealth v. Hunt, 4
Mete. Ill	362
Conger v. New York, W. S.
& B. R. R., 120 N. Y. 29 375 Connecticut Mutual Life Ins.
Co. v. Hillmon, 188 U. S.
208	308
Connolly v. Union Sewer
Pipe Co., 184 U. S. 540	314,
335,339,341,343
Consolidated Turnpike Co. v.
Norfolk &c. Ry., 228 U. S.
596	612,618
Conway v. Wade, [1909]
A. C. 506	359
Cook v. United States, 55
Ct. Clms.	215	524
Cooley v. Board of Wardens,
12 How. 299	240
Corkran Oil Co. v. Arnaudet,
199 U. S. 182	106
Com Products Refining Co.
v. Eddy, 249 U. S. 427	289,
300,324
Cotter v. Osborne, 18 Man. 471	361
Cotting v. Kansas City Stock
Yards Co., 183 U. S. 79	339
Court of Industrial Relations
v. Wolff Packing Co., 109
Kans. 629	361
Cream of Wheat Co. v. Grand
Forks, 253 U. S. 325	109
Creole, The, 2 Wall. Jr. 485 436 Crescent Cotton Oil Co. v.
State, 121 Miss. 615	130
Page.
Crump v. Commonwealth, 84 Va. 927	364
Crutcher v. Kentucky, 141 U. S. 47	291
Cunningham v. Rodgers, 50
App. D. C. 51; 267 Fed. 609	466
Curran v. Delano, 235 Pa. St. 478	375
Curran v. Galen, 152 N. Y. 33	211
Curtis v. Connly, 264 Fed. 650	261
Curtis v. Metcalf, 259 Fed. 961	261
Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282	276,506
Dahnke-Walker Milling Co. v. Bondurant, 185 Ky. 386 283,287
Dalrymple v. Dalrymple, 2 Hagg. Cons. 54	432
Dana v. Dana, 250 U. S. 220 16,299
Davidson v. New Orleans, 96 U. S. 97	124
Davies v. Thomas [1920] 1 Ch. 217	359
Davis, The, 10 Wall.	15	439
Davis v. American Society, etc., 75 N. Y. 362	375
Davis v. Foreman [1894] 3
Ch. 654	374
Davis v. Mills, 194 U. S. 451 243
Delaney v. Flood, 183 N. Y. 323	375
Delaware County v. Diebold Safe Co., 133 U. S. 473	557
Del., Lack. & W. R. R. v. Pennsylvania, 198 U. S.
, 341	301
Del., Lack. & W. R. R. v.
Yurkonis, 238 U. S. 439	612
Delmas v. Insurance Co., 14 Wall. 661	558
Delta, Town of, 32 L. D. 461'153
Denny v. Bennett, 128 U. S. 489	343
Denver, N. W. & Pac. Ry. v. Hydro-Elec. Power Co., 32 L. D. 452	153
TABLE OF CASES CITED.
LIX
Page.
Detroit Coal Exchange v.
Michigan Central R. R., 38 I. C. C. 79	117
Detroit & Mackinac Ry. v.
Michigan R. R. Comm., 240 U. 8. 564	96
Diamond Glue Co. v. United
States Glue Co., 187 U. 8. 611	505
Dillon v. Gloss, 256 U. 8. 368	498
Dimmick v. Del., Lack. & W.
R. R., 180 Pa. St. 468	375
Dishon v. Cincinnati, N. 0. &
Tex. Pac. Ry., 133 Fed. 471 98
District of Columbia v. Gannon, 130 U. 8. 227	303
Dr. Miles Medical Co. v.
Park & Sons Co., 220 U. 8. 373	451 452
Dodge v. Osborn, 240 U. 8. 118	376
Dominion Hotel v. Arizona, 249 U. S. 265	355,372
Donovan v. Wells, Fargo &
Co., 169 Fed. 363	98
Dow v. Bradstreet Co., 46 Fed. 824	98
Dower v. Richards, 151 U. 8. 658	324
Doyle v. Continental Ins. Co., 94 U. 8. 535	529,532,533
Drainage Dist. No. 19 v. Chicago, Mil. & St. P. Ry., 198 Fed. 253	561
Duplex Printing Press Co. v.
Deering, 254 U. 8. 433	184,
186,201-203,212,327,364,589
Durkee v. Illinois Cent. R.\
R., 81 Fed. 1	98
East Tennessee, Va. & Ga.
Ry. v. Interstate Com.
Comm., 181 U. 8.1	259
Eastern States Retail Lumber
Dealers’ Assn. v. United
States, 234 U. S. 600 400,418
Eastern Texas R. R. v. Railroad Comm., 242 Fed. 300 579
Eberlein v. United States, 257
U. 8. 82	71,77
Eberlein v. United States, 53 Ct. Clms. 466	83
Page.
Eisner v. Macomber, 252
U. S. 189	156,
168,169,175,176
Elliott v. Swartwout, 10 Pet.
137	4
Embree v. Kansas City Road
Dist., 240 U. 8. 242	123
Emerson v. Gaither, 103 Md.
564	264
Empire State-Idaho Min. Co.
v. Hanley, 205 U. 8. 225 536 Empire Theatre Co. v. Cloke,
53	Mont. 183	364,365
Equitable Life Assur. Soc. v.
Brown, 187 U. 8. 308 296,618 Erdman v. Mitchell, 207 Pa.
St. 79	362
Erskine v. Van Arsdale, 15
Wall. 75	5
Eureka Pipe Line Co. v.
Hallanan, 257 U. 8. 265 277, 280,290,292,300 Eureka Pipe Line Co. v.
Hallanan, 87 W. Va. 396 265 Evans v. Gore, 253 U. 8.
245	505
Evans v. United States, 31
App. D. C. 544	64,66
Everett Waddey Co. v.
Richmond Typographical
Union, 105 Va. 188	365
Ex parte 74, 58 I. C. C. 220 116, 488,565,598,599 Farnsworth v. Minnesota &
Pac. R. R., 92 U. 8. 49	155
Farrell v. O’Brien, 199 U. 8.
89	536,611,617,619,622-624
Federal Trade Comm. v.
Gratz, 253 U. 8. 421	453
Ferry v. King County, 141
U. 8. 668	303
F. J. Luckenbach, The, 267
Fed. 931	440
Fidelity, The, 16 Blatchf.
569	433,434
Fidelity & Columbia Trust
Co. v. Louisville, 245 U. S.
54	109
Fidelity Mutual Life Assn.
v. Mettler, 185 U. 8. 308	355
Field v. Barber Asphalt Pav.
Co., 194 U. 8. 618	482
LX
TABLE OF CASES CITED.
Page.
Field v. Clark, 143 U. S. 649	527
First Trust & Savings Bank v. Smietanka, 268 Fed. 230 603,604
Fleitas v. Richardson, 147 U.
S. 538	561
Florence H., The, 248 Fed. 1012	440
Florida Cent. & Pertinsular R.
R., 15 L. D. 529	464
Ford v. United States, 260 Fed. 657	562
Foreman v. Meyer, 227 U. S. 452	302
Fort Smith Lumber Co. v.
Arkansas, 251	U. S. 532	137
Foster v. Retail Clerks’ Assn., 78 N. Y. S.	860	364
Frank & Dugan v. Herold, 63
N. J. Eq. 443	205
Franklin Union v. People, 220 IB. 355	205
Frey & Son v. Cudahy Packing Co., 256 U. S. 208 452,458
Frisbie v. United States, 157 U. S. 166	527
Fullerton v. Texas, 196 U. S. 192	106
Funkhouser v. Randolph, 287
Ill. 94	339
Gaines v. Fuentes, 92 U. S. 10	557
Gasquet v. Lapeyre, 242 U. S. 367	610,612
Gast Realty & Inv. Co. v. Schneider Granite Co., 240 U. S. 55	123
General Mutual Ins. Co. v.
Sherwood,,14 How. 351	436
General Oil Co. v. Crain, 209
U. S. 211	289
Georgetown v. Alexandria Canal Co., 12 Pet. 91	64
German Natl. Bank v. Speck-ert, 181 U. S. 405	96,623
Gilbert v. David, 235 U. S. 561	221
Giles v. Harris, 189 U. S. 475	374
Gill Engraving Co. v. Doerr, 214 Fed. Ill	362-364
Glide, The, 167 U. S. 606	436
Page.
Gloria, The, 267 Fed. 929	440
Godchaux Co. v. Estopinal, 251 U. S. 179	293
Goldberg, Bowen & Co. v.
Stablemen’s Union, 149
Cal. 429	205,339
Gompers v. Bucks Stove &
Range Co., 221 U. S. 418 328
Gooch v. Stephenson, 1 Shep-ley (Me.) 371	373
Goodrich v. Ferris, 214 U. S. 71	536
Gossard v. Crosby, 132 la. 155	374
Gould v. Gould, 245 U. S. 151	606
Grant Constr. Co. v. St. Paul
Building Trades Council, 136 Minn. 167	362,363
Gray v. Building Trades Council, 91 Minn. 171 363,364
Gray’s Harbor Co. v. Coats-
Fordney Co., 243 U. S.
251	622
Great Southern Hotel Co., v. Jones, 193 U. S. 532 356
Greely’s Administrator v.
Burgess, 18 How. 413	540
Greene v. Louis. & Interurban R. R., 244 U. S. 499 482
Groesbeck v. Detroit United
Ry., 257 U. S. 609	619
Guethler v. Altman, 26 Ind.
App. 587	364
Guggenheim Smelting Co., In re, 112 Fed. 517	538,539
Gulf, Colo. & S. F. Ry. v.
Ellis, 165 U. S. 150	336,
337,339
Gulf Oil Corporation v. Lew-ellyn, 248 U. S. 71	168
Guthrie v. Harkness, 199 U.
S. 148	263
Haas v. Henkel, 216 U. S. 462	514
Hagar v. Reclamation District, 111 U. S. 701	123
Hahn v. Erhardt, 78 Fed. 620	538,539
Hake v. People, 230 Ill. 174 367
Hamilton, The, 207 U. S. 398	241,343
TABLE OF CASES CITED.
LXI
Page.
Hammer v. Dagenhart, 247
U. S. 251	136
' Hammond Packing Co. v. Arkansas, 212 U. S. 322	137
Handly’s Lessee v. Anthony,
5 Wheat. 374	521
Harrisburg, The, 119 U. S.
204	240,242
Harrison v. St. Louis & S. F.
R.	R., 232 U. S. 318	135,532
Hawkins v. Bleakly, 243 U.
S.	210	338,353
Hawley v. Malden, 232 U. S.
1	109
Hayes v. Missouri, 120 U. S.
68	333,351,374
Heinze v. Arthur’s Execu-
tors, 144 U.S. 28	539
Hennessy v. Richardson Drug
Co., 189 U. S. 25	97
Henrici Co. v. Alexander, 198
Ill. App. 568	205
Henry v. United States, 251
U. S. 393	245
Herndon v. Chicago, R. I. &
Pac. Ry., 218 U. S. 135	532
Hildreth v. Lauer & Suter
Co., 208 Fed. 1005	34
Hildreth v. Mastoras, 253
Fed. 68	28
Hillsboro v. Public Service
Comm., 255 U. S. 562	619
Hillsdale Coal & Coke Co. v.
Pennsylvania R. R., 19 I.
C. C. 362	87
Hisko, The (unreported)	440
Hitchman Coal & Coke Co. v.
Mitchell, 245 U.	S.	229	186
211 212 Hodges v. Webb [1920] 2 Ch.’
70	359
Holden v. Hardy, 169 U. S.
366	356
Hooper v. California, 155 U.
S. 648	296
Hopkins Academy v. Dickin-
son, 9 Cush. 544	521
Hom v. Mitchell, 243 U. S.
247	621
Horn Silver Min. Co. v. New
York, 143 U. S. 305	137
Horstmann Co. v. United
States, 54 Ct. Clms. 214	139
Page.
Houck v. Little River Drainage Dist., 239 U. S. 254 123
Houston v. Pulitzer Pub. Co.,
249 Mo. 332	339
Houston, E. & W. Tex. Ry.
v. United States, 234 U. S.
342	563,579,584,587-589
Howard v. Gipsy Oil Co., 247
U. S. 503	504
Hull v. Burr, 234 U. S. 712 615
Hunnicutt v. Peyton, 102
U. S. 333	65
Hunt v. United States, 55
Ct. Clms. 77	125
Hunter v. Illinois Cent. R. R., 188 Fed. 645	98
Hunter v. Pittsburgh, 207
U. S. 161	619
Hurley v. Commission of
Fisheries, 264 Fed. 116 223,225
Hurtado v. California, 110
U. S. 516	332,348
Hyde v. Woods, 94 U. S.
523	108
Illinois Cent. R. R. v. Shee-gog, 215 U. S. 308	97
Illinois Cent. R. R. v. State
Public Utilities Comm., 245
U. S. 493	489,
490,563,579,580,587,589
Illinois Surety Co. v. Peeler,
240 U. S. 214	307
Increased Rates, 1920, 58 I.
C. C. 220 116,488,565,598,599
Indian Territory Oil Co. v.
Oklahoma, 240 U. S. 522 501,
503-505
Industrial Relations Court v.
Wolff Packing Co., 109
Kans. 629	361
Insurance Co. v. Morse, 20
Wall. 445	. 532
International Ry. v. Davidson, 271 Fed. 313; 273 id.
153	507,510
International Textbook Co. v.
Pigg, 217 U. S. 91	291,296
Interstate Com. Comm. v.
Diffenbaugh, 222 U. S. 42 257
Inyo Consolidated Water Co., 37 L. D. 78	154
Iowa v. Illinois, 147 U. S.
1	522,531
Lxii TABLE OF CASES CITED.
Page.
Iowa Cent. Ry. v. Iowa, 160 U. S. 389	374
Ira M. Hedges, The, 218
U. S. 264	434,477
Ireland v. Woods, 246 U. S. 323	302
Iron Molders’ Union v< Allis-Chalmers Co., 166 Fed. 45	207,365
Janney v. Buell, 55 Ala., 408 375
Jamecke Ditch, In re, 69 Fed. 161	561
Jefferson Branch Bank v.
Skelly, 1 Black, 436	558
Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571	289,350
Jenner v. Dickinson, 25 App.
D. C. 316	34
Jenners v. Doe, 9 Ind. 461	24
Jensen v. Cooks’ & Waiters’
Union, 39 Wash. 531	205,
349,364
Jersey City Printing Co. v.
Cassidy, 63 N. J. Eq. 759 205
J. E. Rumbell, The, 148 U.
S. 1	436
Jett Bros. Co. v. Carrollton, 252 U. S. 1	293,
611,617,618,621,624
Jetton-Dekle Lumber Co. v.
Mather, 53 Fla. 969	362
John G. Stevens, The, 170 U. S. 113	435,437
Johnson v. Maryland, 254 U. S. 51	505
Johnson v. United Rys. Co., 227 Mo. 423	375
Johnson Lighterage Co., 231 Fed. 365	440
Joint Stock Discount Co. v.
Brown, L. R. 8 Eq.	381	264
Jonas-Glass Co. v. Glass Bottle Blowers’ Assn., 72 N. J.
Eq. 653 ; 77 id. 219	205,
349,362
Jones v. Casey-Hedges Co., 213 Fed. 43	98
Jones v. Rodgers, 85 Miss. 802	23
Jones v. .Van Winkle Machine
Works 131 Ga. 336	206,365
Jones Natl. Bank v. Yates, 240 U. S. 541	325
Page.
Jose v. Metallic Roofing Co., [1908] A. C. 514	362
Kahn v. United States, 55 Ct.
Clms. 271	244
Kansas v. Colorado, 206 U.
S. 46	146
Kansas City v. Public Service
Comm., 250 U. S. 652	619
Kansas City, M. & B. R. R.
v. Stiles, 242 U. S. Ill	225
Kansas City So. Ry. v. Albers
Commission Co., 223 U. S. 573	324
Kansas City So. Ry. v. Anderson, 233 U. S. 325	289
Karges Furniture Co. v.
Amalgamated, etc., Union,
165 Ind. 421	365
Kawananakoa v. Polyblank,
205 U. S. 349	433
Keim v. United States, 177
U. S. 290	84
Kelley v. Rhoads, 188 U. S. 1 301 Kemp v. Division No. 241,
255 Ill. 213	362
Kenney v. Supreme Lodge,
252 U. S. 411	300
Kentucky v. Powers, 201 U.
S. 1	98
Keyes v. United States, 109
U. S. 336	545
Kidd v. Alabama, 188 U. S.
730	109
Kidd v. Pearson, 128 U. S.
1	136,291
Kiersage, The, 2 Curtis, 421 436 King v. Journeymen Tailors,
8 Mod. 10	358
Kirst v. Street Improvement
Dist., 86 Ark. 1	554
Knickerbocker Ice Co. v.
Stewart, 253 U. S. 149 241,477 Knoxville Iron Co. v. Harbi-
son, 183 U. S. 13	356
Koch v. Bridges, 45 Miss.
247	23
Krug Furniture Co. v
Union of Woodworkers, 5
O. L. R. 463	.	361
La Bourgogne, The, 210 U. S.
95	240
Ladd & Tilton Bank v. Hicks
Co., 218 Fed. 310	562
TABLE OF CASES CITED.
LXIII
Page.
Lake Erie & W. R. R. v. State
Public Utilities Comm., 249
U. S. 422	300
Lake Monroe, The, 250 U. S. 246	430
Langdell, In re, 178 Mich. 305	205
Large Oil Co. v. Howard, 248 U. S. 549	504
Larkin v. Long [1915] A. C. 814	359
Lau Ow Bew v. United
States, 144 U. S. 47	621
Lauter & Suter Co. v. Hildreth, 219 Fed. 753	34
Leathers v. Blessing, 105 U. S. 626	476
Lehigh Valley R. R. v. Public
Service Comm., 272 Fed. 758	592
Le Roi Min. Co. v. Rossland
Miners Union, 8 B. C. 370 361
Liberty, The (unreported) 440
Lincoln Gas & Elec. Light
Co., Ex parte, 256 U. S. 512	7
Lincoln Gas & Elec. Light
Co. v. Lincoln, 250 U. S. 256	7,10
Lindsay & Co. v. Montana
Fed. of Labor, 37 Mont. 264	362,364,371
Lindsley v. Natural Carbonic
Gas Co., 220 U. S. 61	137
Linford v. Ellison, 155 U. S. 503	303
Liverpool, Brazil &c. Nav.
Co. v. Brooklyn Eastern Dist. Terminal, 251 U. S.
48	433
Local Union No. 313 v.
Stathakis, 135 Ark. 86	205
Loeber v. Schroeder, 149 U.
S. 580	106
Loewe v. Lawlor, 208 U. S.
274	212,418
Logan v. Davis, 233 U. S. 613 154
Long v. Bricklayers Union, 17 Pa. Dist. 984	367
Looney v. Eastern Texas R.
R, 247 U. S. 214	579
Lottawanna, The, 21 Wall.
558	432.436
Page.
Louisiana Nav. Co. v. Oyster Comm., 226 U. S. 99	622
Louisiana & Pine Bluff Divs., 40 I. C. C. 470; 53 id. 475	115,117,118
Louisiana & P. B. Ry. v.
United States, 274 Fed. 372 114
Louis. & Jeff. Ferry Co. v.
Kentucky, 188 U. S. 385 100,
108,109
Louis. & Nash. R. R. v. Barber Asphalt Pav. Co., 197 U. S. 430	342
Louis. & Nash. R. R. v. Garrett, 231 U. S. 298	482
Louis. & Nash. R. R. v. Melton, 218 U. S. 36	356
Louis. & Nash. R. R. v. Mott-ley, 219 U. S. 467	601
Louisville Trust Co. v. Bayer Co., 166 Ky. 744	297
Lucke v. Clothing Cutters’
Assembly, 77 Md. 396 210,362
Luckenbach, The F. J., 267 Fed. 931	440
Ludwig v. Western Union
Tel. Co., 216 U. S. 146	135
Luigi, The, 230 Fed. 493	440
Luxton v. North River Bridge
Co., 153 U. S. 525	590
Lynch v. Turrish, 247 U. S. 221	168
Lyon & Healy v. Piano Workers’ Union, 289 Ill. 176	365
Lyons v. Wilkins [1896] 1
Ch. 811; [1899] 1 Ch. 255 358
McAllister v. Ches. & Ohio Ry., 243 U. S. 302	96
McCarthy v. Bunker Hill &
Sullivan Min. Co., 164 Fed. 927	375
McClaine v. Rankin, 197 U.
S. 154	t 262
McCluskey v. Marysville &
N. Ry., 243 U. S. 36	136
McCoach v. Pratt, 236 U. S. 562	245
McCollum v. United States, 17 Ct. Clms. 92	82
McCormick v. Local Union, 13 Ohio Cir. Ct. (N. S.) 545	364,365
LXIV
TABLE OF CASES CITED.
Page.
McCullough v. Virginia, 172
U. S.102	289
McElrath v. United States,
102 U. 8. 426	545
McGinis v. California, 247 U.
8. 91, 95	300,301
McLean v. Arkansas, 211 U.
8. 539	356
McLean & Co. v. Denver &
Rio Grande R. R., 203 U.
8.38	303
McLish v. Roff, 141 U. S.
661	96
McNeal v. Dombaugh, 20 Oh.
St. 167	484
McNiel, Ex parte, 13 Wall.
236	240
Mackay v. Dillon, 4 How.
421	324
Madisonville Traction Co. v.
St. Bernard Min. Co., 196
U. S. 239	555,558,562
Magoun v. Illinois Trust &
Savgs. Bank, 170 U. 8.
283	337,355
Manhattan Life Ins. Co. v.
Cohen, 234 U. 8. 123	612
Manufacturers Ry. v. United
States, 246 U. S. 457 116,256 Marconi Wireless Tel. Co. v.
Simon, 227 Fed. 906 ; 231
id. 1021	375
Marine Ry. & Coal Co. v.
United States, 49 App. D.
C. 285; 265 Fed. 437	49
Martin v. Balt. & Ohio R. R.,
151 U. 8. 673	532
Martin «.West, 222 U.S. 191 476 Marx & Hass Jeans Clothing
Co. v. Watson, 168 Mo.
133	364
Maryland v. West Virginia,
217 U. 8.1, 577	48,63
Mason City & Ft. Dodge R.
R. v. Boynton, 204 U. 8.
570	558
Master Builders’ Assn. v.
Domascio, 16 Colo. App.
25	363
Mastoras v. Hildreth, 263
Fed. 571	28
Maxwell v. Dow, 176 U. 8.
581	374
Mayurka, The, 2 Curtis, 72 436
Page.
Meeker v. Lehigh Valley R.
R. Co., 236 U. S. 412, 434 90
Melder v. White, 28 L. D. 412	463
Merchants’ Loan & Trust Co. v. Smietanka, 255 U. S. 509	606
Merchants’ Natl. Bank v.
Richmond, 256 U. S. 635 280, 300
Mergenthaler Linotype Co. v.
Davis, 251 U. S. 256	293
Mergenthaler Linotype Co. v.
Press Pub. Co., 57 Fed. 502	34
Merriam Co. v. Syndicate
Pub. Co., 237 U. S. 618	516
Metallic Roofing Co. v. Jose, 14 O. L. R. 156	362
Middleton v. Texas Power &
Light Co., 249 U. S. 152
338,350,353
Miles Medical Co. v. Park &
Sons Co., 220 U. S. 373 451,452
Miller v. American Bonding
Co., 262 Fed. 103	304,306
Miller v. Eagle Mfg. Co., 151 U. S. 186	36
Mills v. Lehigh Valley R. R., 238 U. S. 473	90
Mills v. United States Print-
ing Co., 99 App. Div. Q05;
199 N. Y. 76	364,365
Minneapolis & St. Louis Ry.
v. Emmons, 149 U. S. 364 356
Minneapolis, St. P. & Sault
Ste. Marie Ry. v. Merrick
Co., 254 U. S. 376	10
Minnesota Iron Co. v. Kline, 199 U. S. 593	356
Minnesota Rate Cases, 230
U. S. 352	587,589,590
Missouri v. Lewis, 101 U. S. 22	336,373
Missouri, Kans. & Tex. Ry.
y. Cade, 233 U. S. 642	353
Missouri, Kans. & Tex. Ry.
y. May, 194 U. S. 267	356
Missouri Pac. R. R. v. Ault,
256 U. S. 554	111,114,300
Missouri Pac. Ry. v. Fitzgerald, 160 U. S. 556	96
TABLE OF CASES CITED. lxv
Page.
Missouri Pac. R. R. v. Izard
County Imp. Dist., 143
Ark. 261	558
Mitchell v. Leland Co., 246
Fed. 102	22
Mitchell Furniture Co. v.
Selden Breck Construction
Co., 257 U. S. 213	536
Mobile, Jackson & K. C. R.
R.	v. Turnipseed, 219 U. S.
35	356
Montague & Co. v. Lowry, 193U. S. 38	418
Montana Min. Co. v. St.
Louis Min. Co., 204 U. S.
204	516
Montoya v. Gonzales, 232 U.
S.	375	65
Moody’s Heirs v. Moeller, 72
Tex. 635	24
Morley Sewing Mach. Co. v.
Lancaster,	129 U. S. 263	36
Morrill v. Jones, 106 U. S.
466	514
Morris v. United States, 174
U. S. 196	48,63
Mountain Timber Co. v.
Washington, 243 U. S. 219
338,353 Mugler v. Kansas, 123 U. S.
623	324
Mullan v. United States, 140
U. S. 240	'	545
Muller v. Oregon, 208 U. S.
412	338,355-357
Munn v. Illinois, 94 U. S. 113 348 My Maryland Lodge v. Adt,
100 Md. 238	364
Myles Salt Co. v. Iberia
Drainage Dist., 239 U. S. 478	123
National Prohibition Cases,
253 U. S. 350	498,619
National Protective Assn. v.
Cumming, 170 N. Y. 315 362 Natron Soda Co. v. United
States, 54 Ct. Clms. 169;
55 id. 66	139
Nevada County v. Hicks, 50
Ark. 416	557
Newark, The (unreported) 440 6267°—22-----------5
Page.
New Orleans & N. E. R. R.
v. Scarlet, 249 U. S. 528	300
New York, State of, Ex parte, No. 1, 256 U. S. 490 434,440
New York, State of, Ex parte, No. 2, 256 U. S. 503 433,434,440
New York Cent. R. R. v.
Mohney, 252 U. S. 152	136
New York Cent. R. R. v.
White, 243 U. S. 188	313,
329,338,348,353 New York Cent. R. R. v.
Winfield, 244 U. S. 147	299
New York, N. H. & H. R. R. v. New York, 165 U. S.
628	505
New York Trust Co. v. Edwards, 274 Fed. 952	177
Nicholas v. United States, 257 U. S. 71 77,78,80,83,547
Nicholas v. United States, 53
Ct. Clms. 463; 55 id. 188 71-73
Noble v. Union River Logging R. R. Co., 147 U. S.
165	152
Noble State Bank v. Haskell, 219 U. S. 104	356
Norris v. United States, 257
U.S. 77	71,83,547
Norris v. United States, 55 Ct. Clms. 208	77,78
North Dakota Rates Fares &
Charges, 61 I. C. C. 504 488 Northern Pac. Ry., 43 L. D.
534	464
Northern Pac. Ry. v. North Dakota, 236 U. S. 585	325
Northern Securities Co. v
United States, 193 U. S.
197	400
Northwestern Natl. Life Ins.
Co. v. Riggs, 203 U. S. 243 355
Norwalk, City of, 55 Fed. 98 241
Oahu Ry. & Land Co., v.
Pratt, 14 Hawaii, 126	506
Ohio R. R. Comm. v. Worthington, 225 U. S. 101	281
O’Keefe v. United States, 240
U. S. 294	117
lxvi TABLE OF CASES CITED.
Page.
Oklahoma v. Atchison, T. &
8. F. Ry., 220 U. 8. 277	489
Oklahoma v. Texas, 256 U. S.
603	309
Old Wayne Mutual Life Assn.
v. McDonough, 204 U. 8.
8	216,536
One Pearl Chain tz. United
States, 123 Fed. 371	513
Othello, The, 5 Blatchf. 343 440 Pacific R. R. Removal Cases,
115 U. 8. 1	555,560,561
Page v. Edmunds, 187 U. 8.
596	108
Paper Bag Patent Case, 210
U. 8. 405	36
Park v. Detroit Free Press
Co., 72 Mich. 560	339
Parkinson Co. v. Building
Trades Council, 154 Cal.
581	364,371
Parsons v. United States, 167
U. 8. 324	545
Patch Mfg. Co. v. Protection
Lodge, 77 Vt. 294	364
Patton v. Brady, 184 U. 8.
608	5
Paving District v. Sisters of
Mercy, 86 Ark. 109	555
Pawhuska v. Pawhuska Oil
Co., 250 U. 8. 394	610,
617,619
Payne v. Central Pac. Ry„
255 U. 8. 228	465
Peabody v. Eisner, 247 U. 8.
347	168,175
Pearson v. Portland, 69 Me.
2?8O	339
Peck & Co. v. Lowe, 247 U. 8.
165	504
Penn Refg. Co. v. Western N.
Y. & Pa. R. R., 208 U. 8.
208	259
Pennsylvania Fire Ins. Co. v.
Gold Issue Min. Co., 243
U. S. 93	216
Pennsylvania Hospital v.
Philadelphia, 245 U. 8. 20 618 Pennsylvania R. R. v. Clark
Coal Co., 238 U. 8. 456
90,2921
Page.
Pennsylvania R. R. v. International Coal Co., 230 U.
S. 184	589
Pennsylvania R. R. v. Jacoby
& Co., 242 U. S. 89 85-87,91 Pennsylvania R. R. v. Public
Service Comm,, 250 U. 8. 566	300
Pennsylvania R. R. v. Weber, 269 Fed. Ill	85,87,91
People v. Grifenhagen, 152
N. Y. 8. 679	22
People v. Kostka, 4 N. Y.
Crim. 429	363
People v. Tefft, 3 Cow. 340 367 People v. Wilzig, 4 N. Y.
Crim. 403	363
People’s Tobacco Co. v.
American Tobacco Co., 246
U. S. 79	299
Perkins v. Pendleton, 90 Me. 166	210
Pettibone v. United States, 148 U. 8. 197	327
Phellis v. United States, 56
Ct. Clms. 157	157
Philadelphia, The City of, 263
Fed. 234	440
Phila. & Read. Coal & Iron
Co. v. Gilbert, 245 U. S. 162	16,299
’hila. & Read. Ry. v. Di Donato, 256 U. S. 327
299,613 ’hila. & Read. Ry. Co. v.
Hancock, 253 U. S. 284	299
’hila. & Read. Ry. Co. v.
McKibbin, 243 U. 8. 264 299 ’hila. & Read. Ry. v. Polk, 256 U. S. 332	299
’hila. & Read. Ry. v. United
States, 240 U. 8. 334	257
’hila., W. & B. R. R. v.
Phila. Towboat Co., 23
How. 209	476
hipps v. Wisconsin Cent.
Ry., 133 Wise. 153	339
ickett v. Walsh, 192 Mass.
572	362
iedmont Power & Light Co.
v. Graham, 253 U. 8.193 536, 617,619,622-624
TABLE OF CASES CITED. lxvii
Pagi Pierce v. Stablemen’s Union,
156 Cal. 70	20f
328,339,363-36
Pipe Line Cases, 234 U. S. 548	18(
Plant v. Woods, 176 Mass.
492	211,362,36]
Planters’ Bank v. Sharp, 6
How. 301	30j
Plymouth, The, 3 Wall.	20	47(
Pocahontas, The (unreport-
ed)	44(
Poindexter v. Greenhow, 114
U. S. 270	28i
pollock v. Farmers’ Loan &
Trust Co., 157 U. S. 429:
158 U. S. 601	50£
Postal Tel. Cable Co. v.
Adams, 155 U. S. 688	11C
Powers v. Ches. & Ohio Ry.,
169 U. S. 92	9f
Pratt v. British Medical
Assn. [1919] 1 K. B. 244 35£ Prentis v. Atlantic Coast
Line, 211 U. S. 210	554
Propeller Commerce, The, 1
Black, 574	476
Prudential Assurance v.
Knott, L. R. 10 Ch. App. 142	374
Puget Sound Natl. Bank v.
Mather, 60 Minn. 362	22
Pullman Co. v. Kansas, 216
U. S. 56	135
Pullman’s Palace Car Co. v.
Pennsylvania, 141 U. S. 18 110 Purvis v. United Brother-
hood, 214 Pa. St. 348	328
362,364 Quackenbush v. United States,
177 U. S. 20	547
Quinn v. Leathern [1901],
A. C. 495	358
Quong Wing v. Kirkendall,
223 U. S. 59	343
Rafferty v. Smith, Bell & Co., 257 U. S. 226	201
Railroad Comm. v. Aransas
Harbor Terminal Ry., 41
I. C. C. 83	579
Railroad Comm. v. Chicago, Burl. & Q. R,. R., 257 U. S. 563	592,600-602
Page.
Railroad Comm. v. St. Louis
S. W. Ry., 34 I. C. C. 472 579
Balli v. Troop, 157 U. S. 386 436
Rast v. Van Deman & Lewis
Co., 240 U. S. 342	137
Read v. Friendly Society of
Stonemasons, [1902] 2 K.
B. 88, id. 732	359
Redfield v. Bartels, 139 U. S.
694	6
Reetz v. Michigan, 188 U. S.
505	374
Regina v. Bauld, 13 Cox C. C.
282	358
Regina v. Rowlands, 2 Den.
363	,	358
Rex v. McGuire, 16 O. L. R.
522	36i
Rice & Co. v. United States,
10 Cust. App. 165	536,537
Rigby v. Connol, L. R. 14
Ch. D. 482	358
Riggs v. Cincinnati Waiters,
5 Oh. N. P. 386	364,365
Rio Grande Western Ry. v.
Stringham, 239 U. S. 44	152
Roanoke, The (unreported) 440
Roberts v. Lowe, 236 Fed.
604	5
Robinson v. Caldwell, 165 U.
S. 359	%	97
Rock Island Bridge, The, 6
Wall. 213	436
Rogers v. Hennepin Co., 240
U. S. 184	109
Rogers v. Highway Improvement Dist., 139 Ark. 322 554
Root v. Anderson, 207 S. W.
255	364
Rosenthal v. New York, 226
U. S. 260	350,353
Rounds v. Cloverport Foundry & Mach. Co., 237 U. S.
303	435
Royster Guano Co. v. Virginia, 253 U. S. 412	300
Ryman Steamboat Line Co.
v. Commonwealth, 125 Ky.
253	297
Sage v. United States, 250 U.
S. 33	1,4,6,245 ■
LXVIII
TABLE OF CASES CITED.
Page.
St. Anthony Church v. Pennsylvania R. R., 237 U. S. 575	615,620
St. Germain v. Bakery & Confectionery Workers’ Union, 97 Wash. 282 205,349
St. Louis v. Gloner, 210 Mo. 502	365,372
St. Louis, I. Mt. & St. P. Ry. v. Paul, 173 U. S. 404	356
St. Louis, I. Mt. & So. Ry. v.
Wynne, 224 U. S. 354	289
St. Louis & S. F. Ry. v.
Mathews, 165 U. S. 1	356
St. Louis & S. F. Ry. v. Public Service Comm., 254 U.
S. 535	*	300
St. Louis, S. F. & Tex. Ry. v.
Seale, 229 U. S. 156	299
St. Louis S. W. Ry. v. Arkansas, 235 U. S. 350	109
St. Louis S. W. Ry. v. Commissioners, Road Imp. Dist., 265 Fed. 524	548
St. Louis, S. W. Ry. v.
United States, 245 U. S. 136	259
Schell’s Executors v. Fauché, 138 U. S. 562	539,540
Schlosser v. Hemphill, 198 U. S. 173	622
Scorie v. United States, 217 Fed. 871	367
Scottish Co-operative Society v. Glasgow Fleshers, 35 Scottish L. R. 645	358
Scranton v. Wheeler, 179 U.
S. 141	601
Seaboard Air Line Ry. v.
Seegers, 207 U. S. 73	356
Searl v. School Dist. No. 2, 124 U. S. 197	555, 562
Second Employers’ Liability
Cases, 223 U. S. 1	313,
338,348,353,356,589 I Security Mutual Life Ins. Co.
v. Prewitt, 202 U. S. 246 529, 532 533
Seubert v. Reiff, 164 N. Y.
S. 522	364
Shaffer v. Carter, 252 U. S. 37	504,505
Page. Sheffield Furnace Co. v.
Witherow, 149 U. S. 574 561 Sherlock v. Alling, 93 U. S.
99	240,241
Sherry v. Perkins, 147 Mass.
212	328,363,366 Shreveport Case, 234 U. S.
342	563,579,584,587-589
Shulthis v. McDougal, 225
U. S. 561	615
Siler v. Louis. & Nash. R. R.,
213	U. S. 175	482
Simon v. Southern Ry., 236
U. S. 115	216,536
Simpson v. United States, 252
U. S. 547	245
Sinclair v. Stanley, 64 Tex.
72	24
Sioux Remedy Co. v. Cope,
235 U. S. 197	291
Siren, The, 7 Wall. 152	421,
433,434,436,437, 440,441 Sixaola, The (unreported)	440
Skinner v. Kitch, 10 Cox C.
C.	493; L. R. [1867] 2 Q.
B. 393	358
Skinner & Eddy Corp. v.
United States, 249 U. S.
557	600
Smith v. Cockrill, 6 Wall.
756	12,25
Smith, Bell & Co. v. Rafferty,
40 Phil. Rep. 691	226
Smoot v. District of Colum-
bia, 23 App. D. C. 266	66
Smoot v. Heyl, 227 U. S. 518 303 Snow v. United States, 118
U. S. 346	303
Snyder v. Marks, 109 U. S.
189	376
South Carolina v. Seymour,
153 U. S. 353	303
South Wales Miners’ Feder-
ation v. Glamorgan Coal
Co., [1905] A. C. 239	359
Southern Pac. Co. v. Den-
ton, 146 U. S. 202	532
Southern Pac. Co. v. Indus-
trial Accident Comm., 251
U. S. 259	298
Southern Pac. Co. v. Jensen,
244 U. S. 205	241,
242,470,476,477
TABLE OF CASES CITED.
LXlX
Page.
Southern Pac. Co. v. Lowe, 247 U. S. 330	168
Southern Pac. Co. v. Schuyler, 227 U. S. 601	325
Southern Pac. Co. v. Stewart, 245 U. S. 359	613
Southern Pac. Ry., 46 L. D. 279	463,464
Southern Pac. R. R. v. Lane, 49 App. D. C. 241; 263 Fed. 637	460,462
Southern Ry. v. Greene, 216
U. S. 400	337,339
Southern Ry. v. United States, 222 U. S. 20	589
Sparhawk v. Yerkes, 142 U.
S. 1	108
Spencer v. Merchant, 125 U.
S. 345	123
Spiller v. Atchison, T. & S. F.
Ry., 253 U. S. 117	116
Spokane & B. C. Ry. v. Washington & Gt. No. Ry., 219 U. S. 166	155
Spreckels Sugar Refg. Co. v.
McClain, 192 U. S. 397	516
Springfield Gas & Elec. Co.
v. Springfield, 292 Ill. 236	66
Springhead Spinning Co. v.
Riley, L. R. 6 Eq. 551	366
State v. Chouteau County
Court, 51 Monti 337	367
State ex rel. McNeal v. Dom-baugh, 20 Oh. St. 167	484
State v. Erickson, 66 Wash. 639	367
State v. Gillespie, 81 Okla. 103	501
State v. Glidden, 55 Conn. 46	363,364
State v. Howat, 107 Kans. 423; 109 id. 376	361
State v. Van Pelt, 13( N. Car. 633	362
Steffes v. Motion Picture
Union, 136 Minn. 200 364,365
Steinmetz v. Allen, 192 U. S. 543	303
Stephens v. Ohio State Telephone Co., 240 Fed. 759	206
Stone v. South Carolina, 117 U. S. 430	97
Page.
Stoner v. Robert, 43 Wash.
L. R. 437	364,365
Street v. Lincoln Safe Deposit
Co., 254 U. S. 88	492,
494,497,499 Stuart v. Maxwell, 16 How.
150	540
Stutsman County, In re, 88
Fed. 337	561,562
Substitution of Tonnage at Transit Points, T8 I. C. C.
280	257
Sugannan v. United States,
249U. S. 182	296,611,614
Sweitzer, Ex parte, 13 Okl.
Cr. 154	364,365,372
Swift & Co. v. United States,
196 U. S. 375	292
Taff Vale Ry. v. Amalga-
mated Society Ry. Serv-
ants, [1901] A. C. 426	358
Tampico, The, 16 Fed. 491 440 Tap Line Cases, 234 U. S. 1 116 Tap Line Case, 23 I. C. C.
277, 549; 31 id. 490 ; 34 id.
116	115
Taylor v. Taft, 203 U. S.
461	303
Taylor v. Wallace, 143 Ark.
67	551
Telephone Cases, 126 U. S.
1	34
Tempel v. United States, 248
U. S. 121	146
Temperton v. Russell [1893],
1 Q. B. 715	358
Texas Portland Cement Co.
v. McCord, 233 U. S. 157 307 Thacker Coal Co. v. Burke,
59 W. Va. 253	210
Thames Towboat Co. v.
“ Francis McDonald,” 254
U. S. 242	476
Thomas v. Gay, 169 U. S.
264	506
Thompson Nav. Co. v. Chi-
cago, 79 Fed. 984	440
Thomsen v. Cayser, 243 U. S.
66	418
Three States Buggy Co. v. Commonwealth, 105 S. W.
971	297
Lxx TABLE OF CASES CITED.
Page.
Tinsley v. Anderson, 171 U.
S. 101	367
Toop v. Ulysses Land Co., 237 U. S. 580	536,
611,617,619,622-624
Transit Case, The, 24 I. C. C. 340	257
Treat v. White, 181 U. S. 264	606
Tri-City Central Trades Council v. American Steel Foundries, 238 Fed. 728 186,195 Truax v. Bisbee Local No.
380, 19 Ariz. 379	328,
346,370,371 Truax v. Corrigan, 257 U. S.
312	485
Truax v. Corrigan, 20 Ariz.
7	314,346,370
Truax v. Raich, 239 U. S. 33 339 Tucker v. Alexandroff, 183
U. S. 424	436
Tullis v. Lake Erie & W. R.
R., 175 U. S. 348	356
Union Bridge Co. v. United
States, 204 U. S. 364	601
Union Fish Co. v. Erickson,
248 U. S. 308	241,
470,476,477 Union Land Stock Co. v.
United States, 257 Fed. 635	155
Union Pac. R. R. v. Public Service Comm., 248 U. S. 67	300
Union Pac. R. R. v. Ruef, 120 Fed. 102	206
Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194	109
Union Tank Line Co. v.
Wright, 249 U. S. 275	300
United Fuel Gas Co. v. Hal-lanan, 257 U. S. 277	266,
290,292,300
United Fuel Gas Co. v. Hal-lanan, 87 W. Va. 396	277
United States v. American Column & Lumber Co., 263 Fed. 147	377
United States v. Beatty, 232 U. S. 463	623
Page.
United States v. Colgate &
Co., 250 U. S. 300	451,452,
454,458
United States v. Congress
Constr. Co., 222 U. S. 199 307
United States v. Cress, 243 U. S. 316	146
United States v. Dearberg Bros., 135 Fed. 245; 143 id. 472	539
United States v. Emery, Bird, Thayer Co., 237 U. S. 28	6
United States v. Fidelity
Trust Co., 222 U. S. 158 245
United States v. Field, 255
U. S. 257	606,607
United States ex rel. Champion Lumber Co. v. Fisher, 227 U. S. 445	302
United States v. Garlinger, 169 U. S. 316	515
United States v. George, 228 U. S. 14	514
United States v. Grimaud, 220 U. S. 506	46
United States v. Heinszen &
Co., 206 U. S. 370	226,232
United States v. Jahn, 155 U. S. 109	97
United States v. Jones, 236 U. S. 106	245
United States v. Kern River
Co., 264 Fed. 412	148,151
United States v. Knight Co., 156 U. S. 1	136,291
United States v. Krall, 174 U. S. 385	623
United States ex rel. Arant v.
Lane, 249 U. S. 367	76
United States v. Louisiana, 123 U. S. 32	491
United States v. Lynah, 188
U. S. 445	139,145,146
United States v. Lynch, 137 U. S. 280	303
United States ex rel. Foreman v. Meyer, 227 U. S. 452	302
United States v. Phellis, 257
U. S. 156	177,183,184
United States v. Reading Co., 226 U. S. 324	281,292
TABLE OF CASES CITED.
txxt
Page.
United States v. Reading Co., 253 U. S. 26	623
United States v. Realty Co., 163 U. S. 427	527
United States v. Rockefeller, 274 Fed. 952	177
United States v. Repentigny,
5	Wall. 211	155
United States v. Sacks, 257
U. S. 37	43,46
United States v. San Jacinto
Tin Co., 125	U.	S. 273	155
United States v. Schrader’s
Son, 252 U. S.	85	452,458
United States v. Snellenburg
6	Co., 9 Cust. App. 59	539
United States v. Union Pac.
R. R., 226 U. S. 61	400
United States v. United Shoe
Machinery Co., 247 U. S. 32	419
United States v. United
States Steel Corp., 251
U. S. 417	419
United States v. Utah, Nevada & Cal. Stage Co., 199 U. S. 414	125,128
United States v. Welles, 256 Fed. 545	306
United States v. Wickersham, 201 U. S. 390	71,75,80
United States Glue Co. v.
Oak Creek, 247 U. S. 321 504
University v. People, 99 U. S. 309	558
Unlawful Rates & Practices,
7	I. C. C. 240	257
Upshur County v. Rich, 135
U. S. 467	558-560
Utah Power & Light Co. v.
United States, 243 U. S. 389	147,152,154
Uterhart v. United States, 240 U. S. 598	247
Valentine v. Hyde [1919] 2
Ch. 129	359
Vanderbilt, Matter of, 4
Johns Ch. 57	367
Vanderbilt v. Eidman, 196 U. S. 480	247
Page.
Vegelahn v. Guntner, 167
Mass. 92	205,349,363,365
Vicksburg, Shreveport & Pac.
R.	R. v. Dennis, 116 U. S.
665	301
Vulcan Iron Works v. Winne-
peg Lodge, 21 Man. 473	361
Wagner v. Baltimore, 239 U.
S.	207	123
Walker v. Cronin, 107 Mass.
555	210
Walker v. Daimwood, 80 Ala.
245	375
Walker v. Sauvinet, 92 U. S.
90	374
Wallace v. Hines, 253 U. S.
66	479,481,482,484
Wallace v. Lincoln Savings
Bank, 89 Tenn. 630	265
Wallace v. United States, 55
Ct. Clms. 396	542
Walsby v. Anley, 3 E. & E.
516	358
Wapponocca Outing Club v.
Road Improvement Dist.,
135 Ark. 196	552
Waring v. Clarke, 5 How. 441	476
Watkins v. North American
Land Co., 106 La. 621 534,535 Webb v. Cooks, etc. Union,
205 S. W. 465	364,365
Weber v. Pennsylvania R. R.,
263 Fed. 945	86,91
Wecker v. National Enamel-
ing Co., 204 U. S. 176 96,97,99 Weighing of Freight by Car-
rier, 28 I. C. C. 7	117
Welton v. Missouri, 91 U. S.
275	291
Western Fuel Co. v. Garcia,
257 U. S. 233	476,477
Western Union Tel. Co. v.
Commercial Milling Co.,
218 U. S. 406	356
Western Union Tel. Co. v.
Foster, 247 U. S. 105	281
Western Union Tel. Co. v.
Kansas, 216 U. S. 1 135,289,291 Weston v. Charleston, 2 Pet.
449	506
Lxxii TABLE OF CASES CITED.
Page, Wetmore v. Rymer, 169 U. S.
115	221
White Mountain Freezer Co.
v. Murphy, 78 N. H. 398 365 Wilkins v. Diven, 106 Kans.
283	375
Williams v. Fears, 179 U. S.
270	137
Williams v. Talladega, 226 U.
S. 404	505
Wilmington Star Min. Co. v.
Fulton, 205 U. S. 60	356
Wilson v. Hey, 232 Ill. 389
328,364
Wilson v. Hinton, 63 Ark.
145	553
Wilson v. Shaw, 204 U. S.
24	59C
Wisconsin v. Phila. & Read.
Coal Co., 241 U. S. 329	532
Wisconsin Passenger Fares,
59 I. C. C. 391	565
Page.
Wisconsin R. R. Comm. v.
Chicago, Burl. & Q. R. R., 257 U. S. 563	592,600-602
Wisconsin Rate Case, 257 U.
S. 563	592,600-602
Wood v. Carpenter, 101 U.
S. 135	264
Workman v. New York City, 179 U. S. 552	421,434,439
Yankee Blade, The, 19 How. 82	436
Yazoo & M. V. R. R. v.
Clarksdale, 81 So. 178	12
Yazoo & M. V. R. R. v. Jack-son Vinegar Co., 226 U. S.
217	289,356
Yazoo & M. V. R. R. v. Mullins, 249 U. S. 531	300
Yick Wo v. Hopkins, 118 U.
S. 356	'	333
Young Mechanic, The, 2 Curtis, 404	436
TABLE OF STATUTES
Cited In Opinions.
(A.) Statutes of the United States.
Page.
1789, Sept. 24, c. 20, 1 Stat.
73 (see Judiciary Act).
1799, Mar. 2, c. 22, 1 Stat.
627...,................... 513
1828, May 19, c. 68, 4 Stat.
278........................ 25
1839, Feb.' 16, c.’ 27’ 5 Stat.
317........................ 23
1865,	Mar. 3, c. 79, 13 Stat.
489 ...................... 545
1866,	July 13, c. 176, 14 Stat.
92.......................  545
1866,	July 27, c. 278, 14 Stat.
292 ................. 460
§ 3..................... 461
§ 6....................  465
§ 18.................... 461
1867,	Feb. 5, c. 28, 14 Stat.
385, § 2.................. 301
1867, Mar. 2, c. 154, 14 Stat.
430 ...................... 545
1872,	June 1, c. 255, 17 Stat.
196..................... 11,20
1873,	Mar. 3, c. 240, 17 Stat.
57g	  515
1875, Mar.’ 3, c. 137, 18 Stat.
470....................... 221
1878,	May 17, c. 107, 20 Stat.
62, § 2............... 125,129
1879,	Mar. 3, c. 196, 20 Stat.
481 ...................... 48,64
1882, May 4, c. 116, 22 Stat.
54...................  125,128
1884,	June 26, c. 121, 23 Stat.
53, § 25.............  513,515
1885,	Mar. 3, c. 355, 23 Stat.
443....................... 302
1887, Feb. 4, c’ ’104, 24 Stat.
379 (see Interstate Commerce Acts).
Page.
1890, July 2, c. 647, 26 Stat. _
209 (Sherman Act) .. 377,
391,412,413, 441,451,457,583
§ 1.....................399
1890,	Sept. 29, c. 1040, 26
Stat. 496 ............... 461
1891,	Mar. 3, c. 517, 26 Stat.
826 (see Judiciary Act).
1891, Mar. 3, c. 559, 26 Stat.
1093................  148,155
1891, Mar. 3, c. 561, 26 Stat.
1095............. 147,149
§§ 18-21............ 147,149
1893,	Mar. 3, c. 225, 27 Stat.
751................ 11,18
§§1,2................... 25
1894,	June 5, c. 92, 28 Stat.
85	515
1894,’ Aug.’ 13, c. 280,’ 28 Stat.
278.................. 304,306
1896, May 14, c. 179, 29 Stat.
120.................. 147,152
1898,	May 11, c. 292, 30 Stat.
404 .............. 148,149
§ 2.................... 152
1898, June 13, c. 448, 30 Stat.
448, § 29................ 244
1898,	Dec. 21, c. 36, 30 Stat.
770...................... 467
1899,	Feb. 8, c. 121, 30 Stat.
822	1 5
1900,	May 31, c. 600,' 31 Stat.
249........................ 515
1901,	Feb. 15, c. 372, 31 Stat.
790.................. 147,151
1902,	June 27, c. 1160, 32
Stat. 406 ........ 244,245
§ 3...................  245
LXXIII
lxxiv TABLE OF STATUTES CITED.
Page.
1902, Dec. 16, c. 2, 32 Stat. 753........................   515
1905,	Feb. 24, c. 778, 33 Stat.
811................... 304,306
1906,	June 29, c. 3591, 34
Stat. 584 (see Interstate Commerce Acts).
1906, June 30, c. 3909, 34 Stat. 633 ................... 515
1906,	June 30, c. 3912, 34
Stat. 636 ................ 232
1907,	Mar. 2, c. 2564, 34 Stat.
1246 (see Criminal Appeals Act).
1908,	May 27, c. 200, 35 Stat.
318....................... 525
1909,	Mar. 4, c. 321, 35 Stat.
1088 (see Criminal Code).
1909,	Aug. 5, c. 6, 36 Stat.
11, 112, § 38............... 3
1910,	June 18, c. 309, 36 Stat.
539 (see Interstate Commerce Acts).
1910,	June 25, c. 382, 36 Stat.
630 ....................... 61
1911,	Feb. 13, c. 46, 36 Stat.
899.............. 506,508
§§ 1-4.................. 510
§ 5..................... 510
1911,	Feb. 27, c. 166, 36 Stat.
933........................ 61
1911,	Mar. 3, c. 231, 36 Stat.
1087 (see Judicial Code).
1912,	July 27, c. 256, 37 Stat.
240 ...................... 245
1912,	Aug. 24, c. 355, 37 Stat.
434........................ 74
1912,	Aug. 24, c. 389, 37 Stat.
555, § 6....... 71,72,74,77,78
1913,	Mar. 1, c. 92, 37 Stat.
701....................... 587
1913,	Oct. 3, c. 16, 38 Stat.
114................. 156,
157,168,177,180, 536,537,602-604 Par. 210...............  537
347 ............... 537
3§6 ........... 536,	537
Sec.	II................ 604
Par.	A (1), (2).........604
B, D, E,	G........604
Sec.	Ill, Par.	N.... 536,538
Page.
1913,	Oct. 22, c. 32, 38 Stat.
208, 219, 220.............. 116,
254,486,489,598
1914,	Aug. 22, c. 267, 38 Stat.
703 ........................ 537
1914,	Sept. 26, c. 311, 38 Stat.
717......... 180,441,444,456
§ 5.................’... 444
1914,	Oct. 15, c. 323, 38 Stat.
730, § 20 (Clayton Act).. 184, 201,313,340,344,370 1916, Aug. 29, c. 416, 39 Stat.
545 ................ 226,231
§ 11  .................... 231
1916,	Aug. 29, c. 418, 39 Stat.
619 (see Articles of War). 1916, Sept. 6, c. 448, 39 Stat.
726......................... 16,
106,231,282,288,293,611,
612,614,617,618,621,624 § 2.......................293,
611,617,618,621,624 § 3....................... 612
§ 6....................... 614
1916,	Sept. 7, c. 451, 39 Stat.
728, § 9............ 419,420,430
1916,	Sept. 8, c. 463, 39 Stat.
757....................  603,607
1917,	Mar. 3, c. 163, 39 Stat.
1106, § 1............... 515
1917,	Sept. 24, c. 56, 40 Stat.
291............. 37,39,40,43
§ 6.......................r	39
1917,	Oct. 3, c. 63, 40	Stat.
331..................... 607
1918,	Mar. 21, c. 25, 40 Stat.
451................. 111,114
§ 10...................... 114
1918,	Sept. 24, c. 176, 40 Stat.
966................ 37,39,43
§ 2........................ 39
1919,	Oct. 28, c. 83, 41 Stat.
305 (Prohibition Act).491, 493 4Q0
Tit.	II,	§	3......... 492*494
§	25 ....... 492,495
§	33........ 492,495
§	37........ 492,496
Tit.	Ill,	§	6......... 492,497
1920,	Feb. 7, c. 61, 41 Stat.
402 .................... 506,508
TABLE OF STATUTES CITED. lxxv
Page. 1920, Feb. 28, c. 91, 41 Stat.
456 (Transportation Act) .......... 248,260,
488,563,564,578,592,598
Tit. II............... 584
Tit. IV............... 584
§ 416 .... 488,564,
580,581,592,600 § 422 ........ 563,
565,580-582,598 § 433 ......... 587
1920, Mar. 9, c. 95, 41 Stat.
525, § 4 ........... 420,430
1920, Mar. 30, c. Ill, 41 Stat.
537..................... 243
1920,	June 5, c. 253, 41 Stat.
1015................ 226,231
1921,	Aug. 24, c. 86, 42 Stat.
187..............310,615
§ 5................... 311
Constitution. See Index at end of volume.
Articles of Confederation.... 518 Revised Statutes.
§	161... 77,81,507,514,515
§	245.............. 77,81
§	649 ........... 548,562
§	700............ 548,562
§	709 ............... 301
§	771................ 1,5
§	914.............. 11,18
§	916.............. 11,18
§	989................ 1,5
§	1230 .......... 541,543
§	1342 (Articles of War). 541,
544
§	1697 .......... 466,467
§	1764............... 515
§	1790............... 515
§	2581............... 513
§	2799............... 513
§	2800............... 513
§	2801............... 513
§	2802 .............. 513
§	2867............... 513
§	2871............... 515
§	2872........... 513,515
§	2962 .............. 513
§	3097 .............. 513
Page. Revised Statutes—Continued.
§ 3098 ................ 513
§ 3099 ................ 513
§ 3100................. 514
§ 3101................. 514
§ 3102................. 514
§ 3224................. 376
Articles of War....... 541,543
Art. 99 ............... 544
118 .......... 541,543
Criminal Appeals Act. 38,43,451 Criminal Code.
§ 37.................... 43
§ 147................... 40
§ 148 ............. 37,38,43
§ 151................37,38
§ 154................... 40
§ 238 ............... 47,62
nterstate Commerce Acts... 90, 180,247,254,563,
564,582,587,598 § 1 .................. 247,254
§ 1	(4).............. 258
§ 3................ 247,254
§ 6	(1).............. 258
§ 13	............. 563,599
§ 13 (3)....... 564, 580,581
§ 13	(4)............ 488,
564,578,580,581,592,600 § 15................... 582
§ 15a................. 489,
563,565,580,	581,582,598
§ 16.................... 90
§ 19a.............. 489,587
Judiciary Act, 1789....... 301
§ 25 .................. 301
Judiciary Act,	1891....... 302
§ 5.................... 302
§ 6.................... 302
Judicial Code.............. 62
§ 24 ...... 216,220,548,561
§ 28 .......... 96,97,548,551
§ 29 .......... 97,547,551
§ 37 .............. 216,220
§ 128 ................. 604
§ 195 ...............   537
§ 208 ............. 486,489
§211 .............. 485,489
lxxvi TABLE OF STATUTES CITED.
Page.
Judicial Code—Continued.
§ 237 ............... 10,
15,99,106,282,288,
293,611,617,618,621,624
§ 238 ......... 47,62,92,
95,182,302,482,530
§ 239 ........... 238,473
Page.
Judicial Code—Continued.
§ 240................ 604
§ 241................ 302
§ 250.......... 47,62,302
§ 250 (1).......... 47,62
§ 265................ 376
§ 266................ 567
Statutes of the States and Territories.
Alabama.
Code 1907, § 3^10, cl. 3.. 93
Arizona.
Const., 1912............341
Code 1901 (Territorial). 341 Civil Code, 1913, Tit. 6, c. Ill...................354
par. 1456...... 313,331
par. 1464......... 312,
322,344,354,370
Arkansas.
Constitution, 1874, Art.
VII, § 1............. 556
§ 28................. 556
1907, Act May 13, § 1.. 530 Crawford & Moses Stats.,
Tit. VII, c. 81...... 551
§ 2236 ............ 553
§§ 5399,5402,5404, 5405, 5407, 5409-5419............. 551
§§ 5419, 5421, 5422, 5423, 5424, 5425, 5427............. 552
§§ 5432, 5437...... 553
California.
Code Civil Proc., § 312.. 239 § 335.. 239 § 340.. 242 §340(3) 239 Workmen’s Comp. Act.. 217, 219,239 §26..; 220
District of Columbia.
Rev. Stats. 1874, § 1.... 48, 62,65
Illinois.
1913, Laws, p. 455...... 69
1913, Laws, p. 459, §§ 33,
34.............. 66,68,69
Iowa.
Code Supp. 1913, Tit. X, c 2-A	121
§ 1989-a2E.’ ** ’ ÜÓ,121 Kansas.
1920, Laws, c. 29 ..... 361
Kentucky.
Stats., 1915, § 571.. 286,296 Louisiana.
1912,	Laws, Act No. 243. 534
1914, Laws, Act No. 267. 534 Minnesota.
1917, Laws, c. 493..... 365
Mississippi.
1914,	Laws, c. 162 (Anti-
Gin Act)......... 132,133
Code 1871,	§ 846 ....... 23
§	849. 11,20
Code 1892,	§	3467....	11,21
Hemingway’s Code, 1917,
§ 4752 et seq......... 133 Anti-Trust Act......... 133
North Dakota.
1919,	Laws, c. 222.. 478,479 Ohio.
Gen.	Code,	§	179..... 213
§	181........216
§	5499.. 214,215
Oklahoma.
1915,	Laws, c. 164....... 503
Oregon.
1913,	Laws,	c.	112.. 470,474
§	12....... 475
1915,	Laws,	c. 271.... 474
1917, Laws,	c.	288.... 474
Philippine Islands.
1916,	Act No. 2657, Feb.
24, § 1614........... 231
Rhode Island.
1909, Gen. Laws, c. 284,
§ 7.............. 260,262
TABLE OF STATUTES CITED.
LXXVH
Page.
South Carolina.
1852, Res. Dec. 15.......520
Code, 1861.............. 520
Utah.
1917,	Laws, c. 68... 364,365
Page.
Washington.
1915,	Laws, c. 181.......365
West Virginia.
1919, Acts, Ex. Sess., c.
5 ................ 269,280
Code 1913, § 3564....... 271
(C.) Foreign Laws.
Australia.
1904r-1915, Commonwealth Conciliation and Arbitration Act, §§ 6-9.. 360
§ 19-31  ............361
§ 38(e)..............360
Canada.
1907,	Industrial Disputes Investigation Act, 6-7 Edw. 7, c. 20, §§ 56, 57.............. 361
9-10 Edw. 7, c. 29.. 361
1918,	Industrial Disputes Investigation Amendments Act, 8-9 Geo. 5, c. 27................... 361
1920,	Industrial Disputes Investigation Amendments Act, 10-11 Geo.
5, c. 29.....-........ 361
Criminal Code, § 501... .361
Rev. Stats., British Columbia, c. 228.......... 361
Great Britain.
23 Edw. 3, c. 1-8........357
25 Edw. 3, c. 1-7........357
34 Edw. 3, c. 9......... 358
5 Eliz., c. 4........... 357
1 Jac. 1, c. 6.......... 357
53 Geo. 3, c. 40........ 357
5 Geo. 4, c. 95......... 3581
Great Britain—Continued. 6 Geo. 4, c. 129....... 358
34 and 35 Vic., c. 32, §
1,	sub-sec. 2........ 358
38 and 39 Vic., c. 86, §§
3,7....................358
6 Edw. 7, c. 47, §§ 1, 2,
3..................... 359
New South Wales.
1908,	Industrial Disputes
Act, § 60............. 360
1912-1918, Industrial Arbitration Act, §§ 44-48.............. 360
§§ 48D, 48E.........360
New Zealand.
1908,	Industrial Conciliation and Arbitration Act, §§ 53-104 ................... 361’
§ 108  ............. 360
1908, Industrial Concilia-
tion and Arbitration Amendment Act, Part
I	...................360
1908, Acts No. 239, Part
II	..................361
1911, Acts,	No.	33..... 361
1913, Acts,	No.	7.......361
Queensland.
1916,	Industrial Arbitration Act, § 65.......... 360
CASES ADJUDGED
IN THE
SUPREME COUET OF THE UNITED STATES
AT
OCTOBER TERM, 1921.
SMIETANKA, COLLECTOR OF INTERNAL REVENUE FOR THE FIRST DISTRICT OF ILLINOIS, v. INDIANA STEEL COMPANY.
ON CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 214. Argued October 14, 1921.—Decided October 24, 1921.
1.	An action against a collector of internal revenue to recover taxes erroneously exacted by him, is based upon his personal liability and cannot be maintained against his successor in office who had no part in the assessment, collection or disbursement of the taxes. P. 4. Sage v. United States, 250 U. S. 33.
2.	The statutory provisions for defence by the district attorney and for withholding execution against the collector and paying the judgment from the Treasury where the judgment contains a certificate of probable cause, etc., (Rev. Stats., §§ 771, 989) do not create a new statutory liability attached to the office and passing to successors. P. 4.
3.	The Act of February 8, 1899, c. 121, 30 Stat. 822, providing that a suit against an officer of the United States in his official capacity shall not abate by reason of his death or the expiration of his term of office but may be allowed to be maintained against his successor, supposes a suit already begun against the officer in his lifetime. P. 5.
Certificate from the Circuit Court of Appeals propounding questions arising upon the review of a judg-
. . 1 *
2	OCTOBER TERM, 1921.
Argument for the Indiana Steel Co. 257 U. S. ment against Smietanka in an action to recover taxes exacted by his predecessor as Collector of Internal Revenue.
Mr. Assistant Attorney General Ottinger, with whom Mr. Solicitor General Beck was on the brief, for Smietanka.
Mr. William Beye, with whom Mr. K. K. Knapp and Mr. R. W. Campbell were on the brief, for Indiana Steel Company.
The action was properly brought against the collector who was in office at the time of the commencement of the suit. The United States has “ enacted a system of corrective justice ” by which the taxpayer is permitted “ to sue the Government through its collector,” and if the tax “ was wrongfully exacted the courts will give him relief by a judgment which the United States pledges herself to pay.” Cheatham v. United States, 92 U. S. 85, 88; Philadelphia v. Collector, 5 Wall. 720, 733.
The statute requiring the collector to pay the moneys collected by him into the Treasury took away the common-law action theretofore existing, and provided only a purely statutory remedy, which, while not in form, is in substance against the United States. Hubbard v. Collector, 12 Wall. 1, 11, 13; Cary v. Curtis, 3 How. 236; Philadelphia v. Collector, 5 Wall. 720, 732; Schoenfeld v. Hendricks, 152 U. S. 691; Kinney v. Connat, 166 Fed. 720; United States v. Frerichs, 124 U. S. 315; Kings County Savings Institution v. Blair, 116 U. S. 200, 205; Arnson v. Murphy, 115 U. S. 579.
The proper defendant is the collector in office at the time suit is commenced. Armour n. Roberts, 151 Fed. 846.
The pertinent statutes are, §§ 3220, 3219, 3224, 3226, 3227, 3228, 3210, 771, 3689, 989, Rev. Stats., and Act of February 8, 1899, c. 121, 30 Stat. 822. These remedial statutes should be liberally construed to accomplish the purpose of their enactment.
SMIETANKA v. INDIANA STEEL CO. 3
1.	Opinion of the Court.
In cases of this kind, the collector is merely the nominal defendant, and it would seem immaterial whether the suit was brought against the collector who collected the money or his successor in office, so long as the Government has an opportunity to defend. The question before the court is whether the United States has received moneys which properly belong to the plaintiff.
The arguments advanced in the opinions in Roberts v. Lowe, 236 Fed. 604; Philadelphia, H. & P. R. R. Co. v. Lederer, 242 Fed. 492; 239 Fed. 184, are not well founded.
Mr. Justice Holmes delivered the opinion of the court.
This is a suit brought to recover internal revenue special excise taxes for the years 1910 and 1912, assessed under the Act of Congress of August 5, 1909, c. 6, § 38, 36 Stat. 11, 112; and paid by the plaintiff, the defendant in error, under duress. The taxes were collected by S. M. Fitch, then collector of internal revenue, and it was certified by the District Court as part of its judgment that there was probable cause for the act of the collector, that he acted under the direction of the Commissioner of Internal Revenue, and that the amounts recovered should be provided for and paid out of the proper appropriation from the Treasury of the United States. The defendant is the present collector for what was Fitch’s district and was held liable by this judgment. The case was taken to the Circuit Court of Appeals which has certified the following questions:
“ 1. Assuming that the declaration states a good cause of action had the suit been brought against S. M. Fitch, the internal revenue collector who actually collected and received the taxes, does it state any cause of action whatever against said S. M. Fitch’s successor in office, the plaintiff in error, against whom the suit was brought, but who had no participation in the collection, receipt or disbursement of such taxes?
6267°—22-6
4
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
“ 2. May suit in the District Court of the United States properly be brought and maintained against a United States collector of internal revenue for the recovery of the amount of a United States internal revenue tax, unlawfully assessed and collected, but in the collection and disbursement of which such collector had no agency, the entire transaction of such assessment, collection and disbursement having occurred during the incumbency of such office of a predecessor in office of such collector? ”
As the law stood before later statutes a collector was liable personally for duties mistakenly collected, if the person charged gave notice, at the time, of his intention to sue, and warning not to pay over the amount to the Treasury. Elliott v. Swartwout, 10 Pet. 137. But, after an act of Congress had required collectors to pay over such monies, it was held, against the dissent of Mr. Justice Story, that the personal liability was gone. Cary v. Curtis, 3 How. 236. Later statutes however recognize suits against collectors in such cases, and the plaintiff contends that they should be construed to create a new statutory liability attached to the office and passing to successors, as was held in this case, the formal defendant being saved from harm by the United States. This however is not the language of the statutes and hardly can be reconciled with the decision of this Court in Sage v. United States, 250 U. S. 33, and other cases to which we shall refer.
To show that the action still is personal, as laid down in Sage v. United States, 250 U. S. 33, 37, it would seem to be enough to observe that when the suit is begun it cannot be known with certainty that the judgment will be paid out of the Treasury. That depends upon the certificate of the Court in the case. It is not to be supposed that a stranger to an unwarranted transaction is made answerable for it; yet that might be the result of the suit if it could be brought against a successor to the collector
SMIETANKA v. INDIANA STEEL CO. 5
1.	Opinion of the Court.
ship. A personal execution is denied only when the certificate is given. It is true that in this instance the certificate has been made, but the intended scope of the action must be judged by its possibilities under the statutes that deal with it. The language of the most material enactment, Rev. Stats., § 989, gives no countenance to the plaintiff’s argument. It enacts that no execution shall issue against the collector but that the amount of the judgment shall “ be provided for and paid out of the proper appropriation from the Treasury,” when and only when the Court certifies to either of the facts certified here, and “ when a recovery is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty.” A recovery for acts done by the defendant is the only one contemplated by the words “ by him.” The same is true of Rev. Stats.; § 771, requiring District Attorneys to defend such suits.
No different conclusion results from the Act of. February 8, 1899, c. 121, 30 Stat. 822. That is a general provision that a suit by or against an “ officer of the United States in his official capacity ” should not abate by reason of his death, or the expiration of his term of office, &c., but that the Court upon motion within twelve months showing the necessity for the survival of the suit to obtain a settlement of the question involved, may allow the same to be maintained by or against his successor in office. Whether this would apply to a suit of the present kind is at least doubtful. Roberts v. Lowe, 236 Fed. 604, 605. In Patton v. Brady, 184 U. S. 608, a suit against a collector begun after the passage of this statute, it was held that it could be revived against his executrix, which shows again that the action is personal; as also does the fact that the collector may be held liable for interest. Erskine v. Van
6	OCTOBER TERM, 1921.
Syllabus.	257 U. S.
Arsdale, 15 Wall. 75. Redfield v. Bartels, 139 U. S. 694. But in any event the statute supposes a suit already begun against the officer in his lifetime. We need not consider the remedies against the United States. United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28; Sage v. United States, 250 U. S. 33. It appears to us plain without further discussion that both questions must be answered: No.
Answers to Questions 1 and 2-' No.
Mr. Justice McKenna and Mr. Justice Clarke dissent.
EX PARTE IN THE MATTER OF LINCOLN GAS & ELECTRIC LIGHT COMPANY, PETITIONER.
ON PETITION FOR REHEARING OF APPLICATION FOR WRIT OF MANDAMUS.
No. 29, Original. October Term, 1920.—Decided October 24, 1921.
Where a decree of the District Court, upholding as adequate a gas rate fixed by a city ordinance, was affirmed by this court without prejudice to the bringing of a new suit to restrain enforcement if changed conditions should make the rate confiscatory,—
Held: (1) That, until such new suit was begun, the ordinance was established by the decision as the lawful and exclusive measure of the rates chargeable by the plaintiff gas company. P. 9.
(2)	That the original suit did not end until the going down of the mandate from this court. P. 9.
(3)	That a new suit filed at that time, and the granting of a restraining order therein, could affect only the then future operation of the ordinance, and could not oust the District Court of its jurisdiction, ancillary to the former suit, to award restitution, gauged by the ordinance rate, of overcharges exacted by the plaintiff from its consumers during the period between the original decree of that court and the going down of the mandate. P. 9.
(4)	That the ancillary jurisdiction was independent of whether the plaintiff’s injunction bond, in the former suit, was sufficient to cover the overcharges. P. 10.
Rehearing denied.
EX PARTE LINCOLN GAS CO. 7
6.	Opinion of the Court. v
Mr. Robert A. Brown, Mr. Maxwell V. Beghtol, Mr. Charles A. Frueauff and Mr. Wade H. Ellis, in support of the petition.
Mr. Justice Pitney delivered the opinion of the court.
Petitioner asks a rehearing of this matter and a reconsideration of our decision of June 1, 1921, 256 U. S. 512, by which we refused to award a mandamus requiring the Judge of the District Court to refrain from exercising jurisdiction in the cause of Lincoln Gas & Electric Light Co. v. City of Lincoln, et al., after our disposal of the final decree on appeal, for the purpose of requiring restitution to gas consumers of amounts exacted by petitioner pending the suit in excess of the maximum rates permitted by the ordinance that was under attack therein.
We have permitted the petition for rehearing to be filed and shall state briefly why it cannot be granted.
In our opinion in the principal case delivered June 2, 1919 (250 U. S. 256), while sustaining generally the decree of the District Court dated September 23, 1915, which dismissed the bill of complaint, we nevertheless said (p. 268) that the decree should be modified “ so as to permit complainant to make another application to the courts for relief against the operation of the ordinance hereafter, if it can show, as a result of its practical test of the dollar rate since May 1, 1915, or upon evidence respecting values, costs of operation, and the current rates of return upon capital as they stand at the time of bringing suit and are likely to continue thereafter, that the rate ordinance is confiscatory in its effect under the new conditions.” To that end we modified the decree so that the dismissal of the bill as to the rate ordinance should be “ without prejudice to the commencement of a new action to restrain the enforcement of said ordinance hereafter,” and affirmed it as thus modified.
8
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
Upon the going down of the mandate the District Court on January 6, 1920, entered an order modifying its decree of September 23, 1915, as required, and retaining jurisdiction for the purpose of requiring the petitioner to make refund and restitution to consumers of gas for amounts collected over and above the legal rate pending the litigation; and against this order relief was sought through mandamus.
In the opinion refusing a mandamus, in response to the contention that the jurisdiction of the District Court to require restitution did not extend to overcharges subsequent to September 23, 1915, we stated that the decree of that date was conclusive evidence that petitioner had failed in the attempt to prove the ordinance rate noncompensatory, and hence that it not only was lawful and binding, but would so continue unless and until the petitioner, under the leave reserved, should begin a new suit and maintain its contention that the rate, through changed conditions, had become noncompensatory. It is now urged that this was based upon the assumption that no suit had been instituted attacking the rate since our decision of the appeal in the main case; and petitioner sets up, as the principal ground for asking a rehearing, that on January 6, 1920, a new suit was brought by it in the same court against the city and its officials for the purpose, as stated, of taking advantage of the permission granted in the mandate following our decision of June 2, 1919.
Petitioner exhibits a copy of its petition in the new suit, which is in the nature of a bill in equity; also a copy of a restraining order granted by the District Court thereon.
In our opinion refusing the mandamus we did not mention the new suit, for the very good reason that it had not been brought to our attention; not being mentioned either in the petition for mandamus, in the return of the
EX PARTE LINCOLN GAS CO. 9
6.	Opinion of the Court.
district judge to our order to show cause, or in the briefs or arguments on either side.
It hardly was to be expected that the commencement of a new suit asking for an injunction because of changed conditions would oust the court of its jurisdiction over proceedings ancillary to the suit theretofore terminated and having for their purpose the bringing to a conclusion of rights arising out of it; and it will easily be seen that it can have no such effect.
Instead of addressing itself to the question whether the rate ordinance was confiscatory under the conditions existing at the time of bringing the suit and likely to continue thereafter, it is largely devoted to an attack upon the adequacy of the rate, and consequently upon the validity of the ordinance, from and after September 23, 1915; there being specific averments and prayers as to the period from that date to the commencement of the new suit, with only inferential reference to the operation of the ordinance rate thereafter.
But the former suit was terminated not upon the making of the District Court’s decree of September 23, 1915, nor upon the announcement of our decision affirming it on June 2, 1919, but upon the going down of the mandate, which, for reasons that do not appear, was delayed until January 5,1920. Until that date the ordinance was established by the decision as the lawful and exclusive measure of the rates chargeable by petitioner for gas served to consumers, and the gauge by which its liability to make refund for overcharges exacted during suit was to be determined. The beginning of the new suit, and the granting of a restraining order therein, can properly have effect only with respect to the then future operation of the ordinance, and cannot affect the measure of recovery to be applied by the District Court in awarding restitution for the period covered by the former suit; much less its juris-
10	OCTOBER TERM, 1921.
Syllabus.	257 U. S.
diction to award such restitution. See Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Merrick Co., 254 U. S. 376.
In truth the new suit, in so far as it may purport to bear at all upon the proceedings against which mandamus was sought, is not within the leave reserved in the “ without prejudice ” provision, indeed is in the nature of a bill of review, although leave to file such a bill was asked of us pending appeal in the former suit and refused for reasons stated in 250 U. S. 261-262. In any aspect, neither the pendency of the new suit, nor the granting of a restraining order therein, constitutes the least reason for granting the rehearing asked for.
Other points are suggested, but they are without substance. The fact, if it be a fact as alleged, that the bond given in the former suit is not sufficient in amount to cover the aggregate overcharges collected by petitioner pendente lite in excess of the ordinance rate, manifestly raises no question about the jurisdiction of the District Court to award restitution.
Rehearing denied.
YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY ET AL. v. CITY OF CLARKSDALE.
ERROR AND CERTIORARI TO* THE SUPREME COURT OF THE STATE OF MISSISSIPPI.
No. 15. Argued October 6, 1921.—Decided November 7, 1921.
1.	A judgment of a state court denying the validity of a title claimed under an execution sale based upon a federal court judgment, because of supposed irregularities in the marshal’s attempted exercise of his authority to sell, the authority itself not having been drawn in question, is reviewable by certiorari and not by writ of error, under Jud. Code, § 237, as amended. P. 15.
2.	The application of state laws to a marshal’s sale of property under a common-law execution issued on praecipe from a federal court,
YAZOO & M. V. R. R. CO. v. CLARKSDALE. 11
10.	Syllabus.
is governed by the conformity provisions of Rev. Stats., §§ 914, 916. P. 18.
3.	The provisions of the Act of March 3, 1893, c. 225, 27 Stat. 751, relative to the place of sale, apply only to judicial sales made under order or decree and requiring confirmation by the court for their validity. P. 18.
4.	An assignment of error held sufficient to submit to the court below the question whether a marshal’s sale was valid under Rev. Stats., § 916. P. 19.
5.	Under Rev. Stats., § 916, giving to the party who has recovered judgment in a federal court “ similar remedies * * * by execution * * * as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of any such circuit or district court,” the state law applicable is that which was in force when the act of which § 916 was a part was originally enacted, viz, June 1, 1872, in the absence of general rules adopting later state law. P. 19.
6.	Under § 849 of the Mississippi Code of 1871, which, prior to amendment by § 3467 of the Code of 1892, provided that shares or interests in any corporation, as well as banknotes or evidences of debt circulating as money, might be taken and sold under an execution in the same manner as goods and chattels, or applied to the payment of the execution, and required the custodian of the corporate books to give the levying officer a certificate of the number of shares or amount of interest held by the defendant in the company, and declared that the purchaser of such shares or interest at the execution sale should become the owner thereof in the same manner as if such shares or interest had been regularly assigned to him by the defendant,—a certificate of shares issued to a judgment debtor and found in the custody of his agent or trustee was a proper subject of levy and sale. P. 20.
7.	Under the laws of Mississippi, a venditioni exponas is not necessary to enable the officer to proceed with the sale of property taken under a fieri facias of which the return day has not gone by; and, where the return on the latter writ shows due levy and sale, references therein to a 'venditioni exponas may be treated as surplusage. P. 22.
8.	Under Rev. Stats., § 914, which requires that proceedings in common-law cases in the federal courts shall conform to those of state courts “ as near as may be,” and § 916, which gives the judg-
12	OCTOBER TERM, 1921.
Argument for Defendant in Error. 257 U. S.
ment creditor remedies on common-law executions “ similar ” to those of the state court, an execution sale of personal property which under the state law (Miss. Code, 1871) must be made at the court house of the county may be made at the court house of the United States where the judgment was entered and execution issued. P. 22. Smith v. CockriU, 6 Wall. 756, and Amy v. Watertown, 130 U. S. 301, distinguished.
81 So. 178, reversed.
Certiorari to review a judgment of the Supreme Court of Mississippi rendered in favor of the City of Clarksdale in a suit brought by the city to assert its ownership in shares of stock in a railway company. The facts are stated in the opinion.
Mr. H. D. Minor, with whom Mr. Charles N. Burch and Mr. Blewett Lee were on the briefs, for plaintiffs in error and petitioners.
Mr. Gerald Fitzgerald, with whom Mr. Geo. F. Maynard and Mr. W. W. Venable were on the briefs, for defendant in error and respondent.
The writ of error should be dismissed. Jud. Code, § 237, as amended. The federal question presented was not of sufficient importance to warrant certiorari.
The Act of 1893, 27 Stat. 751, has no application to a sale of property under execution in common-law cases.
Under §§ 914, 916, Rev. Stats., the only way to enforce one’s judgment in the federal court is to proceed according to state practice. Chamber lain v. Mensing, 47 Fed. 435; Ex parte Boyd, 105 U. S. 647; Perez v. Fernandez, 202 U. S. 80; Amy v. Watertown, 130 U. S. 301. Section 914 contains the significant words not contained in the former acts,—“ any rule of court to the contrary notwithstanding.” See Ward v. Chamberlain, 2 Black, 430. The state rules can be varied only where necessary to enable federal officers to function under them.
YAZOO & M. V. R. R. CO. v. CLARKSDALE. 13
10.	Argument for Defendant in Error.
The rule of court need not be in writing, but may exist in the general practice of the court. Wayman v. Southard, 10 Wheat. 1; Logan v. Goodwin, 104 Fed. 409; Citizens Bank v. Farwell, 56 Fed. 570.
The form of the marshal’s return shows that he was acting under the Mississippi Code of 1892, and is convincing evidence that it was the custom of the court to use the statute in force at the time the officer acted.
The decisions of the state courts construing their own statutes are binding upon the federal court even though it might be said that such state statutes when adopted by the federal courts become pro hac federal statutes.
The writs and levy and sale thereunder are all void and of no effect and subject to collateral attack.
At common law, stock in a corporation could not be levied upon, and it is only by statutory authority that this can now be done; the statute must be literally and strictly followed. 17 Cyc. 944, 945; ’Cook, Corporations, vol. 2, 6th ed., § 480; Jellenik v. Huron Copper Mining Co., 177 U. S. 1; Miss. Code, 1892, § 3467.
There is a sharp difference between the real interests of a person in a corporation and the stock certificate or indicium of ownership of the share or interest. Section 3467, Code 1892, especially draws this distinction, and does not provide for the sale of the stock certificate. The distinction is plainly drawn in the Jellenik Case, supra. See Simpson v. Jersey City Contracting Co., 165 N. Y. 193.
The Code of 1871, § 849, also makes this distinction, for it requires that demand be made upon the company, in which the debtor is supposed to own a share or interest, for the amount and value of said share or interest belonging to the debtor, which provision precludes the idea that the stock certificate itself could be sold as such.
A sale made by the marshal of the United States of personal property or real estate in front of the federal
14
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. 8.
court building is void. Koch v. Bridges, 45 Miss. 247; Jones v. Rogers, 85 Miss. 802; Moody's Heirs v. Moeller, 72 Tex. 635; Sinclair v. Stanley, 64 Tex. 72; Smith v. Cockrill, 6 Wall. 756; Bornemann v. Norris, 47 Fed. 438.
Where a sale is void and not merely voidable, it may be attacked in collateral proceedings. 17 Cyc. 1286; Harper v. Hill, 35 Miss. 63; Koch v. Bridges, supra; Jones v. Rogers, supra; Smith v. Cockrill, supra; 2 Freeman on Execution, 3d ed., § 289.
Mr. Chief Justice Taft delivered the opinion of the court.
This is a controversy over the ownership of 250 shares of the stock of the Louisville, New Orleans & Texas Railway Company, a corporation of Mississippi. The City of Clarksdale acquired the stock in 1891, in consideration of $25,000 of bonds issued by it to aid in the construction of a new branch of the Railway Company in which it was interested. The certificate for the stock, the City left in the custody of a Clarksdale bank. The Louisville, New Orleans & Texas Railway Company in 1892 was merged by consolidation in the Yazoo & Mississippi Valley Railroad Company. In 1897, the Pacific Improvement Company, a bondholder, recovered against the City in the United States Circuit Court for the Northern District of Mississippi a judgment for unpaid interest on the bonds amounting to $3,058.13. Execution issued to the marshal who levied on, and took possession of, the stock certificate in the Clarksdale bank and at public sale sold the certificate and shares to the judgment creditor for $100, which was credited on the judgment. In 1898, the City made a compromise with the bondholders, by which, for payment of the principal of the bonds in cash, the bondholders released all claim of interest and transferred the unsatisfied judgment. No mention was made of the
YAZOO & M. V. R. R. CO. v. CLARKSDALE. 15
10.	Opinion of the Court.
stock in this settlement. In 1904, the Pacific Improvement Company for $2,770.50 sold the stock to the Mississippi Valley Company, an investment company, and transferred the certificate to that company. The value of the stock, which was little or nothing at the time of the judgment and the compromise, has greatly enhanced and is averred to be $75,000.
By its bill in equity in the state chancery court, the City sought to compel the Yazoo & Mississippi Valley Railroad Company to recognize the City’s ownership of this stock and to issue to it stock of the consolidated company in lieu thereof, in accordance with the terms of the merger. The Mississippi Valley Company, after the answer to the bill revealed its ownership of the stock, was made a defendant and the real contest became one between the City and that company.
In the pleadings and at the hearing the City attacked the marshal’s sale as void under the statutes of Mississippi, and relied on the duty of the United States courts under federal statutes to conform their executions and sales to the laws of the State in which they are held. The state chancery court declared the sale void and granted the relief asked by the City. The state Supreme Court affirmed the decree. No opinion was filed in either court.
We are met by a preliminary question of jurisdiction. The case was first brought here by a writ of error to the state Supreme Court. Then, within due time, a petition for a certiorari was also presented, and consideration of the latter was postponed until the hearing on the writ of error. Under which writ can the case be reviewed here? The Mississippi Valley Company relied below, and here insists, on a title acquired under an execution sale of a United States marshal. This is a title claimed under an authority of the United States. Under § 237 of the
16	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
Judicial Code as amended by Act of September 6, 1916, c. 448, 39 Stat. 726, if the validity of an authority exercised under the United States is drawn in question and the decision is against its validity, review is by writ of error. If only a title claimed under an exercise of such an authority is in dispute, then certiorari is the proper writ. The authority of the United States marshal to make sales upon judgments in the United States courts and to give title thereby is not drawn in question in this case. What is denied here is the regularity of the marshal’s attempted exercise of his conceded authority and the validity of the resulting title. Hence, the only way of reviewing this cause is by certiorari. Dana v. Dana, 250 U. S. 220; Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245 U. S. 162; Avery v. Popper, 179 U. S. 305,314. The writ of error is dismissed, the petition for certiorari is granted, and we now proceed to dispose of the case on the latter writ.
The validity of the judgment upon which the execution issued is conceded. The questions to be decided arise on the levy and sale. On the first day of June, 1897, a fieri facias issued. This writ the marshal executed and made the following return on it:
11 Executed the within writ this the 13th day of Aug. 1897, by levying on and taking into my possession one Certificate of stock, the property of said defendant in the Louisville, New Orleans and Texas R. R. Number 147—for 250 shares, issued to the town or city of Clarksdale, Miss. Further executed on this the 6th day of Dec. 1897, at 12 o’clock meridian by selling said certificate of stock No. 147 after due advertisement by posting notices in three public places for the period of 10 days as provided by law, to the highest and best bidder for cash, before the Western door of the United States Court House, and post office building in the town of Oxford, Miss., at which sale the Pacific Improvement Company
YAZOO & M. V. R. R. CO. v. CLARKSDALE. 17
10.	Opinion of the Court.
became the highest and best bidder, at and for the price of $100.00 and at the same time and place I executed the writ of vende exponas issued to me in this cause and offered for sale all the interest which the City or Town of Clarksdale had in the Capital Stock of the Louisville, New Orleans & Texas Railway Co. or in the Yazoo & Mississippi Valley Railroad Company, offering said interest at the same time with said certificate of stock to the said Pacific Improvement—for the said sum of $100.00, that being the highest and best bid offered for same.
“ Dec. 6th, 1897.
“(Signed) A. J. Cooke,
“U. S. Marshal.’’
On the back of the certificate the marshal inscribed the following:
“ Pacific Improvement Company vs. No. 3900 law. City or town of Clarksdale, Mississippi, in the Circuit Court of the United States for the Western District of the Northern District of Mississippi by virtue of a writ of fieri facias issued in said cause, I levied upon certificate of stock on August 3, 1897, and thereon December 6, 1897, pursuant to said execution and to a certain writ of venditioni exponas, I in the manner provided by law sold this certificate of stock, all the interest of the city or town of Clarksdale in the stock of the Louisville, New Orleans & Texas Railway Company, to the Pacific Improvement Company. Witness my signature this, the 6th day of December, 1897. A. J. Cooke, United States Marshal.”
Counsel for the City attack the sale chiefly on two grounds, first that the levy was void because made on a mere muniment or indicium of title to the stock, the certificate, and not on the stock itself; and second that the sale was void because not made at the county court house, as required by the laws of Mississippi.
18
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
In applying the laws of Mississippi to the validity of this sale, we are governed by §§ 914 and 916 of the Revised Statutes of the United States, as follows:
“ Sec. 914. The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.”
“ Sec. 916. The party recovering a judgment in any common-law cause in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of any such circuit or district court; and such courts may, from time to time, by general rules, adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise.”
Counsel for the petitioner also relies on the Act of March 3, 1893, c. 225, 27 Stat. 751, which provides in its first section “ that all real estate or any interest in land sold under any order or decree of any United States Court shall be sold at public sale at the Court-house of the county, parish, or city in which the property, or the greater part thereof, is located, or upon the premises, as the court rendering such order or decree of sale may direct,” and in its second section “ that all personal property sold under any order or decree of any Court of the United States shall be sold as provided in the first section of this act, unless in the opinion of the court rendering
YAZOO & M. V. R. R. CO. v. CLARKSDALE. 19
10.	Opinion of the Court.
such order or decree, it would be best to sell it in some other manner.”
We think that the language of this act limits its application to judicial sales made under order or decree of the court and requiring confirmation by the court for their validity, and that it does not extend to sales under common-law executions which issue by mere praecipe of the judgment creditor on the judgment without order of the court, and in which the levy and sale of the marshal are ministerial, do not need confirmation to give them effect, and only come under judicial supervision on complaint of either party. The sale in such a case depends for its validity on the marshal’s compliance with the requirements of law. While the Act of 1893 is not limited to equity and admiralty cases, its passage was doubtless chiefly prompted by the fact that they were excepted from the conformity sections.
It is objected that petitioners can not now rely on § 916 because they did not rely on it in the courts below. Their seventh assignment of error on appeal to the state Supreme Court complained of the refusal of the chancery court “ to hold and adjudge that whether the said Act of Congress [i. e. the Act of 1893] or the laws of Mississippi governed the sale under said execution, the validity vel non of said execution was a Federal question, for that even if the statutes of the State were applicable, the same became Federal statutes by adoption under Act of Congress of June 1, 1872, U. S. Revised Statutes, Section 916 It seems to us that this submitted in the alternative with sufficient specification to the state Supreme Court the question whether § 916 of the Revised Statutes conferred validity oil the marshal’s sale.
Section 916 gives to the judgment creditor “similar remedies ... by execution . . . as are now provided in like causes by the laws of the State in which 6267°—22-----7
20	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district court ”. This section was part of an act “ to further the Administration of Justice”, enacted by Congress June 1st, 1872, c. 255, 17 Stat. 196. The law of Mississippi applicable to this subject-matter, therefore, is the law which was in force at that date, unless the United States Court for the Northern District of Mississippi has since adopted by general rules later state law. We are not advised that it has done so.
In 1872, the law of Mississippi as to levies on stock of a corporation was § 849 of the Code of 1871, as follows:
“ Bank notes, bills, or evidences of debt, circulating as money, or any shares or interest in any incorporated company, belonging to the defendant in execution, may be taken and sold, by virtue of an execution, in the same manner as goods and chattels, or applied to the payment of the execution; and the clerk, cashier, or other officer having the custody of the books of the company, shall, upon exhibiting to him the writ of execution, be bound to give to the officer having such writ, a certificate of the number of shares or amount of the interest held by the defendant in such company, and if he shall neglect or refuse to do so, or if he shall willfully give a false certificate thereof, he shall be liable to the plaintiff for double the amount of all damages occasioned by such neglect or false certificate, to be recovered in an action on the case against him. The purchaser of such share or interest, at such sale, shall become the owner thereof, in the same manner as if such share or interest had been regularly assigned to him by the defendant.”
We are not advised of any construction of this section by the Supreme Court of Mississippi, and we must, therefore, treat it as a case of first impression in determining the proper mode of levying upon shares of corporate stock under its terms.
YAZOO & M. V. R. R. CO. v. CLARKSDALE. 21
10.	Opinion of the Court.
Taking the section as a whole, it classes bank notes, bills, or evidences of indebtedness circulating as money, and shares in an incorporated company together, and makes them subject to be “ taken and sold as goods and chattels ”, or to be “ applied to the payment of the execution”. At common law, choses in action were not subject to levy as personal property. Here the legislative purpose appears to be to treat the written evidences of the choses in action circulating as money as in themselves capable of manual seizure by the execution officer, and, in appropriate cases, of actual application as money on the execution debt. The joining of shares of stock in this section with such choses in action indicates that the shares are to be regarded as in pari materia, and to be dealt with, as nearly as may be, in like manner.
The elaborate and specific provision for a levy upon corporate stock of § 3467 of the Mississippi Code of 1892, which succeeded the Code of 1871, was, and was evidently intended to be, a departure from, and a substantial amendment of § 849 in this respect. Under the later code, provision for levy on bank notes, bills and other evidences of indebtedness is separated from that prescribing the levy on shares of stock. Shares of stock are no longer dealt with expressly as “ goods and chattels ”. The officers of the corporation are no longer required to give a “ certificate ” of the number of shares held by the judgment debtor to the levying officer, but are to make a statement in writing.
The procedure provided in § 849, in our view, was intended to furnish to the levying officer a certificate of the shares of the defendant which the officer could manually take and offer for sale as the shares, and which when endorsed by the officer with a record of his proceedings and sale would work an assignment of the shares to the purchaser “ as if regularly assigned to him by defendant,” i. e., by the usual transfer of a certificate. If we are right
22
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
in this view, and the absence of any specific form for a levy in the section confirms us in it, then of cdfôrseÿ à certificate of shares issued to the debtor and found in the custody of his agent or trustee is the proper subject of levy and sale under the section. This statutory method of treating shares of stock and certificates for them as the same for purposes of levy and “ as goods and chattels ” is not without parallel. People v. Grifenhagen, 152 N. Y. S. 679; Mitchell v. Leland Co., 246 Fed. 102; Beal v. Carpenter, 235 Fed. 273; Puget Sound National Bank v. Mather, 60 Minn. 362.
We think the levy was valid.
Counsel for respondent criticise the recitals of the return as to a venditioni exponas and urge that neither ground nor time enough was shown for the issue and return of such a writ. Under the Code of Mississippi, as elsewhere, this is a writ used to compel an officer to proceed to a sale under a fieri facias, if any of the property taken remains in the hands of the officer unsold. The writ is not necessary to enable the officer to proceed with the sale unless the return day of the writ has gone by. With this exception, it gives him no authority not previously possessed. Reference to it in the return may well be treated as surplusage, not affecting the validity of the proceedings, if in other respects they are regular.
The chief objection of respondent is to the place of sale, which was at the western door of the United States court house for the Western District of Mississippi in thé town of Oxford. Counsel for respondent contend that, under the Mississippi statute, the place of the sale should have been at the court house of Coahoma County at Clarksdale, the county of the judgment debtor, and where the certificate of stock was levied on, and that the sale at the court house of the United States where the judgment was entered and execution issued was void»
YAZOO & M. V. R. R. CO. ,v. CLARKSDALE. 2a
10.	Opinion of the Court.
The provision in the Mississippi Code of 1871 as to the place of sales on execution was as follows:
“ 846. All sales by any sheriff or other officer, by virtue of any execution or other process, shall be made at the court house of the county, except when personal property, too cumbersome to be removed, shall be levied on, which may be sold at the place where the same may be found, or at any other convenient place, and also, except where cattle, hogs, sheep, or stock, other than horses and mules, are levied on, the sale of which may be made within the usual hours, on ten days’ notice, at the most public place in the neighborhood of the defendant.”
The Supreme Court of Mississippi has decided in Koch v. Bridges, 45 Miss. 247, and Jones v. Rogers, 85 Miss. 802, that, where land is not sold at the proper county court house, the sale is void. In Jones v. Rogers the sale was by a United States marshal. It was made at the State House in Jackson. A special Act of Congress of February 16, 1839, c. 27, 5 Stat. 317, provided that the United States marshal for the district of Mississippi should be authorized to sell property at the court house in each county, but that he might, at the written request of the defendant, change the sale to the place where the United States court for the district was held. The court, in the absence of any request of the defendant, held the sale void, saying:
“ Statutes fixing the place of'sale of lands under executions are mandatory, and not merely directory; and it is the imperative duty of officers to make such sales at the very place designated, and a sale made at any other place is not voidable merely but absolutely null and void. The place of sale is the very essence of the sale, and strict compliance with the statute is absolutely essential in order to transfer a good title to realty.”
24	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
The court cites other cases of land sales by United States marshals in support of this. Moody’s Heirs n. Moeller, 72 Tex. 635, in which the sale was at the United States court house just across the street from the county court house; Sinclair v. Stanley, 64 Tex. 72; Casseday v. Norris, 49 Tex. 613; Jenners v. Doe, 9 Ind. 461. Mr. Freeman, in his work on Executions, § 289, vol. 2, says of these cases that although a view that such sales were voidable only would be reasonable, the weight of authority sustains them.
With respect to goods and chattels, however, the sale at the place fixed by statute has not been regarded as so essential as compliance with the requirement that the officer selling them shall have the goods in view of the buyers, Freeman on Execution, § 290, vol. 2; and yet, the authorities are divided on the question whether a departure from this requirement renders the sale of personalty void. We do not feel called upon, however, to inquire and decide which is the better view, because we think that under § 916, in respect to sales of personalty, the federal court house was a proper place for holding the sale.
Section 914 requires that the proceedings in commonlaw cases in the federal court shall conform to those of state courts “ as near as may be.” Section 916 gives the judgment creditor remedies on common-law executions “ similar ” to those of the state court. These qualifying words recognize the necessity for some play in adapting the state procedure to the practice of the federal courts. Certain things must be changed. The officer issuing the writ of execution must be the United States clerk, the officer executing it must be the marshal, and not the sheriff, the name of the court must be different, and it is but a reasonable and obvious consequence that the place of the proceedings generally shall be at the federal
YAZOO & M. V. R. R. CO. v. CLARKSDALE. 25
10.	Opinion of the Court.
court house instead of at the state court house. The inconvenience and danger of injustice to the judgment debtor in having his land sold at the federal court house when it may lie at a great distance from there in a remote county of the State, furnish strong reason why federal and other courts should hold compliance with the injunction of the state laws as to the place of sale of realty indispensable to its validity. But in case of goods and chattels which after seizure and levy can be viewed by bidders as well at a federal court house as at a state court house, there is little ground for holding that such sales, like other proceedings under its authority, may not be properly carried on at the place where the court sits. The distinction between realty and goods and chattels in this matter is recognized in the provisions already noticed, of the Act of Congress of 1893. The first section provides that the real estate must be sold either at the county court house in the county where the land is, or on the premises. No discretion is given the court to change the sale to any other place. The second section, however, while it directs that personalty shall be sold as provided in the realty section, vests full discretion in the court to sell it elsewhere.
The case of Smith v. Cockrill, 6 Wall. 756, is relied on by counsel for respondent. That was a sale of real estate. The state law required appraisal before sale and a sale at not less than two-thirds the- value thus fixed, both of which requirements were wholly disregarded by the marshal. The federal statute applying was the Act of Congress of 1828, c. 68, 4 Stat. 278, which provided that the forms of process, etc., should be the same as that used in the state courts. The requirement for appraisal of real estate and its sale at not less than two-thirds of the appraised value by a ministerial officer is much more important in protecting the rights of the judgment debtor
26	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
than the place in a sale of personalty. The case of Borne-mann v. Norris, 47 Fed. 438, was also a sale of real estate, and, moreover, was a direct proceeding to quash.
Nor do we think that the quoted language of the court speaking through Mr. Justice Bradley in Amy v. Watertown, 130 ,U. S. 301, is in conflict with our view of the effect of these conformity sections. The question in that case was whether when the state statute provided that process could be served on a city, only by leaving the summons with the Mayor, and there was no Mayor, the the federal court could order service to be made on some one else. The court held that, under § 914, the United States courts were limited to the method of service prescribed by the state statute. In adopting a state statute as a guide to the conduct of the business of a United States court and its officers, service on a state municipal corporation specified by a state statute is a very different matter from the fixing of the place for performing the functions of the United States court and its officers. The corporation is completely the creature of a State, and it is usually within the function of the creator to say how the creature shall be brought before judicial tribunals. It was with reference to such a matter that Mr. Justice Bradley said that the statute of 1872 was peremptory, and federal courts must conform to the practice of state courts.
For the reasons given, we hold that the sale of the 250 shares of stock to the Pacific Improvement Company vested a good title.
The decree of the Supreme Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.
HILDRETH v. MASTORAS.	2?
Syllabus.
HILDRETH v. MASTORAS.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 51. Argued October 21, 1921.—Decided November 7, 1921.
1.	The presumption of priority and novelty which arises from the granting of a patent has greatly increased weight when the claim of the inventor was subjected to close and careful scrutiny in the Patent Office under the stimulus of a heated contest. P. 32.
2.	It is not necessary, in order to sustain a generic patent, to show that the device is a commercial success. The machine patented may be imperfect in operation, but if it embodies the generic principle, and works,—that is, if it actually and mechanically performs, though only in a crude way, the important function by which it makes the substantial change claimed for it in the art, it is enough. P. 34.
3.	A patentee who took the important but long-delayed and therefore not obvious step from the pulling of candy by hand to the performance of the same function by machine, the ultimate effect of which, with the mechanical and patentable improvements of his device, was greatly to reduce its cost, and to enlarge the field of the art, was a pioneer. P. 34.
4.	The Dickinson patent, No. 831,501, claim 1, for a candy-pulling machine comprising a plurality of oppositely-disposed candy hooks or supports, a candy-puller (consisting of a third pin or support), and means for producing a specified relative in-and-out motion of these parts for the purpose of alternately pulling and overlapping the candy, AeZd:(a) Not anticipated by the earlier Firchau patent, comprising two hooks or pins attached to oppositely rotating discs and passing each other in concentric circles. P. 32. (b) Infringed by the later, Langer patent which, instead of having one stationary pin and two others which move relatively to it and to each other, as in the Dickinson construction, has two stationary pins and a third which moves relatively to both of them, the path of the candy under the operation of the pins being in both cases along a course corresponding in form to a figure 8. P. 35.
5.	The Dickinson patent, supra, provided a trough to support the candy against gravity, but specified that any other support suitable to support it while being operated might be used. Held, that the trough was not an essential element and that an arrangement of the pins in a horizontal instead of a vertical position, so that the
28	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
candy was supported by them, was at most an improved equivalent. P. 36.
6.	A generic patent is entitled to broad equivalents. P. 36.
263 Fed. 571, reversed.
Certiorari to review a judgment of the Circuit Court of Appeals in a suit brought by the present petitioner to enjoin an infringement of his patent. The District Court granted the injunction, 253 Fed. 68; but it was reversed by the court below, 263 Fed. 571.
Mr. George P. Dike, with whom Mr. Frederic D. McKenney was on the briefs, for petitioner.
Mr. Joseph L. Atkins, for respondent, submitted. Mr. W. A. Robbins was also on the briefs.
Mr. Chief Justice Taft delivered the opinion of the court.
This is a certiorari to the Circuit Court of Appeals for the Ninth Circuit bringing here for review a decree of that court, reversing one of the District Court of Oregon, granting an injunction against infringement of a patent for a candy pulling machine. The patent, No. 831,501, was issued to Hildreth as assignee by mesne assignments of Dickinson. Mastoras, the defendant in the District Court, made and used a candy pulling machine, under a later patent of Langer. The Circuit Court of Appeals held the claim of the Dickinson patent sued on to be so limited as not to cover the Langer device. 253 Fed. 68; 263 Fed. 571.
The chief question in this case is infringement, and that turns on the question whether Dickinson’s invention is held to be a primary or generic invention, or a narrow one limited solely to the device shown.
Not all candy is pulled, but much of it is. The process is first the mixture of the ingredients, then the boiling,
HILDRETH v. MASTORAS.	29
27.	Opinion of the Court.
then the cooling on a slab, and then the pulling. After boiling and cooling, it is a compact mass of dark color. The pulling aerates it and makes it less in weight but larger in bulk, lighter in color and more capable of holding flavor. Until the beginning of this century, candy was pulled only by hand. It required much strength. Candy pullers were hard to get. The work was strenuous and produced perspiration and uncleanliness. It was done with the bare hands, and it was impossible to avoid danger from eczema and abrasions of the skin of the hands. It was neither appetizing nor sanitary. A good candy puller might pull three hundred pounds of candy a day. The capacity of the large machines now in use is two and one-half tons each, and one man can attend to two machines. Thus since 1900, the art has advanced from a production of 300 pounds a day to 10,000 pounds, with the same labor.
In April, 1900, Dickinson published an article in the trade journal, “ The Confectioner,” describing a machine for pulling candy and offering it for sale. He advertised it quite largely. Hildreth ordered the Dickinson machine, tested it and rejected it as unsatisfactory. One of Hildreth’s men, Thibodeau, having seen and worked on the Dickinson machine, made a machine which worked better. Hildreth filed an application for a patent for one device for pulling candy September 21, 1900. Thibodeau filed an application for another November 26, 1900, and an interference was declared between them. Thibodeau thereafter bought Dickinson’s invention and caused him to file an application for a patent November 5, 1901. Six applications were pending in the Patent Office at the same time, those of Dickinson, Hildreth, Jenner, Thibodeau, Robinson and Henry, and the Patent Office framed the issue between them in terms exactly those afterwards granted to Dickinson as the claim relied on in this case.
30	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
The controversy in the Patent Office lasted five years, was strenuously contested, and was carried to the Court of Appeals of the District of Columbia. The controversy involved, among other issues, that of the operativeness of Dickinson’s device, as does the present case in one of its phases. He had given a public test of his machine at Grand Rapids where he lived, in 1900, and had invited a number of witnesses. They were called before the Examiner to testify whether the machine had worked successfully, and the Examiner found from the great weight of evidence that it had. Hildreth was a witness in the District Court below on this issue. He was in the embarrassing situation of having fought, in the Patent Office, Dickinson’s claim, which he was now supporting as his property. He testified that while Dickinson’s machine was not a success commercially, he had found that by shortening it and speeding it up, in accord with a suggestion of Dickinson, he could and did make satisfactory candy. The record shows that the judge in the District Court below had a working model before him which he refers to as demonstrating that the device is operative.
Hildreth has been a candy manufacturer of Boston for many years, and since 1906 has made candy machines. In addition to his own patent, he has acquired by purchase all the other patents in interference with Dickinson. He acquired the Dickinson patent from Thibodeau before its issue, for $75,000.
By these new devices the art of candy making has been revolutionized. Some kinds of candy which if pulled at all had to be pulled when cold, could not be pulled by hand, because it required more than man strength; but they are now pulled by power machines. The production of candy has greatly increased, and 90 per cent, of all the pulled candy made is pulled by machine. Hildreth makes a half dozen different classes of machines which embody the devices of his own patent and others which he has
HILDRETH v. MASTORAS.	31
27.	Opinion of the Court.
purchased, but none of the model of Dickinson’s. Mas-toras, the respondent here, was for some time a licensee of Hildreth until he made and used his present machine.
In candy pulling by hand, the puller works the boiled candy, cooled but still warm and sticky, into a sausagelike piece two or three feet long, and weighing 20 or 25 pounds, called a batch. He throws the middle of this over a hook fixed in the wall about the level of his chin. He pulls down the two ends, stretching the batch two or three times its length. Then he holds the ends together with one hand and with the other seizes the two strands about their middle and carries them over the hook, thus making a new bight of the folded or lapped strands over the hook, and shortening the lengths hanging from the hook, the ends of which are now brought together and pulled down again. This operation repeated often, brings the candy into desired condition.
In the Dickinson machine, the candy is placed in the bottom of a trough, in the center of which is an upright pin, referred to in the patent as the “ candy-puller.” There are two other pins suspended over the trough from the ends of an arm or plate which in turn is fixed to a support and made to rotate. By suitable contrivance, the support which carries the pins is made to move back and forth from end to end of the trough. At each end of the trough, the pins are made by the rotary motion of the plate to which they are suspended, to reverse their positions from one side of the trough to the other before beginning their movement in the opposite direction. In this way there is produced an in-and-out movement of the suspended pins relative to the stationary pin every time they reach and depart from the ends of the trough. This movement causes the “ batch ” of the candy in the trough, attached itself to the movable pins, to be pulled by lapping on itself as the suspended pins pass and repass the fixed pin and as their positions are reversed. The change
32
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
of the relative position of the three pins is such that in a complete cycle of operation of the machine one of the pins passes through the space between the other two, and then another of the pins passes through a space between the other two, and then the third between the other two, each pin at one phase of the operation passing between two others, and at another phase of the operation being one of the pair between which the third one is passing. Just as the hand pulling of the candy produced a bundle of parallel fibers between which were formed air cells rendering the mass porous, so the mechanism of Dickinson’s machine secures the same result. It elongates the candy, folds it upon itself, again elongates the folded mass, again folds it upon itself and repeats the operation in order. So far as this record discloses, no candy pulling has been successful which does not in some form by an arrangement of three or more pins show this in-and-out movement to pull and lap the candy, and no one had shown it prior to Dickinson.
Dickinson’s claim here sued on is as follows:
“A candy-pulling machine comprising a plurality of oppositely-disposed candy hooks or supports, a candy-puller, and means for producing a specified relative in-and-out motion of these parts for the purpose set forth.”
This, as already said, is the claim which was framed in the Patent Office as the issue of the interference proceeding, and of which Dickinson was given priority over all. The presumption of priority and novelty which arises from the granting of a patent must have greatly increased weight when the claim of the inventor is subjected to such close and careful scrutiny under the stimulus of a heated contest.
The Circuit Court of Appeals held the claim of Dickinson to be limited by a prior patent to Firchau for a candy working machine applied for in March, 1893, and issued
HILDRETH v. MASTORAS.	33
27.	Opinion of the Court.
December 19, 1893. The machine shown in the Firchau patent comprises two discs which are rotated in opposite directions. On each disc is a finger which projects into a drum, into which the candy is put. The pins pass each other twice during each revolution of the disc and move in concentric circles, but do not have the relative in-and-out motion or figure 8 movement of the Dickinson machine. With only two hooks there could be no lapping of the candy, because there was no third pin to re-engage the candy while it was held between the other two pins. The movement of the two pins in concentric circles might stretch it somewhat and stir it, but it would not pull it in the sense of the art. The Firchau device never, so far as appears in the record, made candy experimentally or otherwise. Indeed, no candy was commercially pulled by machine before or after the issuing of the Firchau patent in 1893. until the introduction of the Dickinson principle, nine or ten years later.
Counsel for the respondent in seeking to narrow the construction of the broad claim of Dickinson rely on the circumstance that one of Dickinson’s claims in the Patent Office was canceled on a reference to Firchau. The canceled claim of Dickinson was:
“ In a candy-pulling machine in combination a series of pins or pulling members, and automatically acting means for causing said members to feed the candy to each other and pull the same.”
The Examiner evidently considered that the word “series” might be held to cover a device with only two pins, as shown in the Firchau patent; though, having in mind the essential elements of the Dickinson patent, it could hardly have borne such a construction. However that may be, as neither Firchau nor anyone else has shown, with two pins only, the in-and-out movement in pulling candy, which is the fundamental element of the
34	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
Dickinson invention, the cancelation does not seem to us important or to require a narrowing of Dickinson’s claim for the described and indispensable cooperation of three or more pins to produce that movement.
The Court of Appeals bases something of its conclusion in this case on the alleged inoperativeness of the Dickinson machine. As to this, we find no reason in the record for disturbing the finding of the District Judge, with the working model and the witnesses before him, supported as he is by the finding of the Patent Office and the District Court of Appeals on extended evidence on this very point before them. It is not necessary, in order to sustain a generic patent, to show that the device is a commercial success. The machine patented may be imperfect in its operation; but if it embodies the generic principle, and works, that is, if it actually and mechanically performs, though only in a crude way, the important function by which it makes the substantial change claimed for it in the art, it is enough. Telephone Cases, 126 U. S. 1, 535; Mergenthaler Linotype Co. v. Press Publishing Co., 57 Fed. 502, 505.
The Patent Office treated the Dickinson invention as a primary or generic one. So did the Court of Appeals of the District of Columbia (25 App. D. C. 316), Judge Rose of the District Court of Maryland (Hildreth v. Lauer & Suter Co., 208 Fed. 1005), and the Circuit Court of Appeals of the Fourth Circuit (Lauter & Suter Co. N. Hildreth, 219 Fed. 753). In this view, after a consideration of the record, and for the reasons stated, we concur. The history of the art shows that Dickinson took the important but long delayed and therefore not obvious step from the pulling of candy by two hands guided by a human mind and will to the performance of the same function by machine. The ultimate effect of this step with the mechanical or patentable improvements of his device was to make candy pulling more sanitary, to re-
HILDRETH v. MASTORAS.	35
27.	Opinion of the Court.
duce its cost to one-tenth of what it had been before him, and to enlarge the field of the art. He was, therefore, a pioneer.
We come now to the question of infringement. In the Langer patent, applied for in 1916 and issued in 1917, which the alleged infringement embodies, there is a so-called “ floating puller,” which is carried through a course of travel corresponding in form to the figure 8, and around fixed supporting pins arranged concentrically within the two circular portions of figure 8. The candy is pulled by the floating puller and alternately carried thereby around the fixed supporting pins. Instead of having Dickinson’s single stationary pin and two other pins which move relatively to it and to one another, the machine of the Langer patent has two stationary pins and a third one which moves relatively to both of them in an actual and rigid figure 8.
Taking the first claim of Dickinson’s patent as it reads, one can trace every element of it in the Langer machine. We find there a plurality of oppositely-disposed candy hooks or supports. The candy-puller is found in the movable pin of Langer, and a relative in-and-out motion in the pulling process is palpably present.
Both Dickinson and Langer in their specifications characterize the path of the candy under the operation of the hooks as being along a course of travel corresponding in form to the figure 8. The Circuit Court of Appeals found, however, that the in-and-out movement of the Langer patent was different from the in-and-out movement of the Dickinson patent, in that it was a true figure 8 in the former, whereas in the Dickinson patent the candy follows a path of a series of V’s and not a true figure 8 path at all. We differ from the Court of Appeals in this view. The actual movement of the candy in the Langer patent, even though the movable pin follows a fixed path of figure 8, forms a succession of V’s closely resembling the V’s 6267°—22-------§
36
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
of the Dickinson patent, so that in each the path of the candy is better described as an in-and-out movement than as a figure 8. The arrangement of the hooks by Langer is better than Dickinson’s, but the principle of their operation is the same.
The counsel for the respondent, however, urge that the trough, not shown in the alleged infringement, is a necessary element of Dickinson’s claim, because without it the batch of candy could not be supported against gravity, and he suggests no alternative. Dickinson says in his specifications that he shows a trough for supporting the candy, but any suitable support may be used which has the capacity for supporting the candy while it is being operated upon. Two of the machines, the Jenner and the first Thibodeau, which were in interference in the Patent Office with Dickinson, had the pins set, not in an upright but in a horizontal position, and thus the candy in their machines needed no trough support but rested on the pins themselves, and this Langer has adopted. Doubtless this was an improvement which was perhaps patentable, but none of the tribunals in the Patent Office proceedings deemed this to be more than an improved equivalent of the trough which did not take these machines out of the domination of the claim awarded to Dickinson. As the Dickinson patent is a generic patent, the doctrine of broad equivalents properly applies here. Morley Sewing Machine Co. v. Lancaster, 129 U. S. 263, 273; Miller v. Eagle Manufacturing Co., 151 U. S. 186, 207; Paper Bag Patent Case, 210 U. S. 405.
The Circuit Court of Appeals held that the issuing of the Langer patent, after the Dickinson patent, raised the presumption of a patentable difference between that patent and the Dickinson patent, and against infringement. It is not necessary for us, however, to discuss that question, for we think that whatever presumption against infringement may attach to the issuing of the second
UNITED STATES v. SACKS.	37
27.	Syllabus.
patent, if any, the evidence here is quite sufficient to overcome it.
The decree of the Circuit Court of Appeals is reversed, and that of the District Court is affirmed.
UNITED STATES v. SACKS.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 48. Argued October 20, 1921.—Decided November 7, 1921.
1.	Under the Act of September 24, 1917, amended September 24, 1918, cc. 56, 176, 40 Stat. 291, 966, authorizing the Secretary of the Treasury to borrow money and to issue therefor, at such price or prices and upon such terms and conditions as he might determine, war savings certificates in amounts of not more than $100 to any one person at any one time, and of which no one person at any one time should hold more than $1,000, and further providing that the Secretary, might issue stamps, under such regulations and upon such terms and conditions as he might prescribe, to evidence payments for or on account of the certificates, the Secretary was empowered to issue non-transferable certificates valid only when bearing one or more such stamps and when endorsed with the name of its owner. Pp. 39, 41.
2.	War savings certificates and war savings certificate stamps, issued pursuant to the act and the regulations, are obligations of the United States within the meaning of §§ 148 and 151 of the Criminal Code. P. 40.
3.	One who tears war savings certificate stamps from a war savings certificate issued to another, with intent to use them apart from the certificate bearing the purchaser’s name, alters the obligation with intent to defraud (the United States) in the sense of Criminal Code, § 148, since the purposes of the Act of September 24, 1917, supra, and the conditions provided to insure them, will thus be fraudulently defeated. P. 42.
4.	Possession of part of such certificate and attached stamps, with intent to defraud the United States as above, is a violation of Criminal Code, § 151. P. 42.
Reversed.
•38	OCTOBER TERM, 1921.
Opinion of the Court. ,	257 U. S.
Writ of error under the Criminal Appeals Act, to review a judgment quashing an indictment. See post, 42.
Mr. William C. Herron, with whom Mr. Assistant Attorney General Stewart was on the brief, for the United States.
Mr. Joseph A. Seidman, for defendant in error, submitted.
Mr. Justice McKenna delivered the opinion of the court.
This case presents for consideration an indictment in three counts for the violation, respectively, of §§ 148 and 151 of the Criminal Code of the United States, as dependent upon the construction of an act of Congress to which we shall refer.
The first two counts charge that Sacks did, “ with intent to defraud, alter an obligation of the United States, to wit, a war savings certificate of the United States of the series of 1918, ... in that [he] did . . '. fear from the face of said war savings certificate two war savings certificate stamps of the United States of the series of 1918, thereto before attached.”
The third count charges Sacks with having in his possession, with intent to defraud the United States, and with intent to pass and sell the same, an altered obligation of the United States, to wit, a portion of a war savings certificate of the United States of the series of 1918, with three war savings certificate stamps thereto attached, in that the portion which he had and kept in his possession had been torn from a whole war savings certificate.
The indictment is illustrated by having examples of the certificates attached. They certify, subject to the terms and conditions expressed thereon, that the owner will be entitled to receive January 1, 1923, in respect to each
UNITED STATES v. SACKS. 39
37.	Opinion of the Court.
stamp of the series of 1918 then affixed thereto, the amount indicated thereon as then payable, or at his option, will be entitled to receive at an earlier date a lesser amount indicated by a table thereon.
Among the terms and conditions are the following: “(1) This certificate is not a valid obligation unless a United States War-Savings Certificate Stamp of the Series of 1918 is affixed hereto. (2) This certificate is of no value except to the owner named hereon, and is not transferable. (3) Not more than twenty United States War-Savings Certificate Stamps, and only such Stamps of the Series of 1918, may be affixed hereto. . . . (6) The law provides that no one person shall at any one time hold War-Savings Certificates to an aggregate amount exceeding One Thousand Dollars.”
The names of the owners are endorsed on the certificates, and their addresses.
The indictment was quashed on Sacks’ motion on the ground, recited in the judgment, that the indictment was not “ authorized under any construction of the act of Congress upon which it is alleged to be predicated, to wit, the act of Congress of September 24, 1917, and section 6, and as amended by the act of Congress of September 24, 1918, section 2 thereof, and sections 148 and 151 of the Criminal Code of the United States, or under the construction of any other statute of the United States now in force.”
The judgment and the action of the court are assigned as error. The construction of the sections of the Criminal Code and the act of Congress referred to is necessarily involved: Section 148 makes an offender “ whoever, with intent to defraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States. . . .” Section 151 makes an offender “whoever, with intent to defraud, shall pass, utter, publish, or sell,” or attempt to do either act, “ or shall keep in
40
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. 8.
possession or conceal with like intent, any falsely made, forged, counterfeited, or altered obligation or other security of the United States. . . .”
Section 147 of the Criminal Code defines obligations and securities of the United States to be evidences of indebtedness, and adds to a specific enumeration the comprehensive words “ stamps and other representatives of value, of whatever denomination, which have been or may be issued under any act of Congress.”
Section 154 makes dealing in the false and counterfeited obligations of either section an offense.
The Act of Congress of September 24, 1917, c. 56, 40 Stat. 291, authorizes the Secretary of the Treasury to borrow, from time to time on the credit of the United States, such sum or sums as in his judgment may be necessary, and to issue therefor, at such price or prices, and upon such terms and conditions as he may determine, war savings certificates of the United States on which interest to maturity may be discounted in advance at such rate or rates and computed in such manner as he may prescribe. Further detail of the act is not necessary except to say that the amount of certificates sold to any one person at any one time shall not exceed $100—nor shall any one person at any one time hold more than $1,000. And it is provided that the Secretary of the Treasury may upon such terms and regulations as he may prescribe, issue or cause to be issued, stamps to evidence payment for or on account of such certificates.
It will be observed from this statement of the provisions of the law that to sustain the indictment there must be the fact of an alteration of an obligation of the United States, or having in possession an altered obligation with intent to pass and sell the same. It is contended by Sacks that such was not the condition, and to sustain the contention two propositions are urged: (1) That neither the certificate nor the stamps was an obliga-
UNITED STATES v. SACKS. 41
37.	Opinion of the Court.
tion of the United States. (2) That the removal of the stamps was the destruction of the certificate, not its alteration. The purpose of § 148, it is contended, is to prevent the utterance and passing of spurious instruments and the alteration of genuine ones either by changing their form, or increasing or decreasing their obligation. In development and illustration of the contention, it is asserted that the Government received full value for the stamps, and its liability thereon was fixed when the stamps came into Sacks’ possession and continued the same no matter how many times the stamps changed hands. “ The owner of the stamp could affix it to or remove it from the card [certificate] without changing the obligation of the United States.” And further, “ the definition to be given the word ‘ alteration ’ is no different in the case of a Government obligation than the alteration of a private obligation. If the alteration does not prejudice the rights of the obligor the act of alteration will not constitute a crime.” Cases are cited in support of the contentions.
The contentions are based on a misapprehension of the act providing for the certificates and the necessary relation of the sections of the Criminal Code to the purposes of that act. Whether the certificates or the stamps be considered individual or composite obligations of the United States, necessarily the alteration of both or either is within § 148 of the Criminal Code. Their purpose is defeated and perhaps perverted by alteration. They are but instruments of the law and the law is to be considered. It provided an opportunity of investment for persons of small means, and the power to prescribe ways adequate to the purpose was given to the Secretary of the Treasury. In other words, details of execution were committed to him with power to give to the certificate and the stamps such character, quality and legal effect that he should consider to be efficient. And, exercising the power, he in-
42
OCTOBER TERM, 1921.
Syllabus..
257 U. S.
eluded, as au condition to the validity of the certificate as an obligation of the United States, the affixing of a stamp thereto, and that not more than twenty stamps of the series of 1918 might be affixed, and that no one person could at any one time hold certificates of an aggregate amount exceeding $1,000.
These conditions were defeated and intended to be defeated by the action of Sacks in tearing from the face of the certificate two stamps. Such action constituted an alteration of the certificate and the stamps with intent to use the same without the remainder of the certificate signed by the purchaser and thus to defraud the United States by defeating the purposes of the law of September 24, 1917, and the circulars of the Secretary of the Treasury empowered to be issued under that law, and the terms and conditions endorsed on the certificate, and the court’s decision to the contrary was a misconstruction of the Act of September 24.
There therefore was a violation of § 151 as charged in the third count of the indictment, Sacks having in his possession, with intent to defraud the United States, an altered obligation of the United States.
Judgment reversed and cause remanded for further proceedings in conformity with'this opinion.
UNITED STATES v. JKKQmTL ET AL.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 49. Argued October 20, 1921.—Decided November 7, 1921.
A conspiracy to purchase war savings certificates from their owners, remove the stamps therefrom, attach them to other, blank war savings certificates to be illegally procured, write upon the latter the names of persons other than the conspirators, and present them, so stamped and signed, at a post office of the United States
UNITED STATES v. SXTXCymTL. 43
42.	Opinion of the Court.
for payment, is a conspiracy to defraud the United States (Crim. Code, § 37) and to commit the offense of altering, with intent to defraud, obligations of the United States (Crim. Code, §§ 37, 148.) P. 45. United States v. Sacks, ante, 37.
Reversed.
Writ of error under the Criminal Appeals Act to review a judgment sustaining a demurrer to an indictment.
Mr. William C. Herron, with whom Mr. Assistant Attorney General Stewart was on the brief, for the United States.
Mr. Jonah J. Goldstein, for defendants in error, submitted. Mr. David Goldstein and Mr. Aiken A. Pope were also on the brief.
Mr. Justice McKenna delivered the opinion of the court.
This case was submitted with No. 48, United States v. Sacks, ante, 37. It was decided in the District Court at the same time as the Sacks Case and upon the same opinion, the legal propositions being the same in both cases. They were presented upon demurrers to the indictments.
The indictment in the present case is in two counts, the first charging a violation of § 37 of the Criminal Code and the second charging a conspiracy under § 37 to violate § 148. The basis of both is a conspiracy to defraud the United States by the violation of the Act of Congress of September 24, 1917, c. 56, 40 Stat. 291, passed on in United States v. Sacks. The ways and means of the execution of the conspiracy are described with much detail by a recitation of the Acts of Congress of September 24, 1917, and September 24, 1918, c. 176, 40 Stat. 966, and the provisions of the circulars issued by the Secretary of the Treasury providing for the execution of the purpose of those acts. And specifically, it is averred that the de-
44
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
fendants in the case, defendants in error here, purchased from persons not authorized by the Secretary of the Treasury to sell the same, a quantity of war savings certificates of the series of 1918 and 1919, with savings certificate stamps affixed thereto, and that the defendants well knew that the certificates and the stamps were not transferable, were worthless in their hands, and could not be redeemed by them at or prior to maturity dates thereof, and were not payable to anyone save one who had purchased them from an authorized agent of the United States, and to a person whose name was written on them at the time of issue and purchase, but conspired to obtain them for themselves from the United States prior to the maturity date of the certificates and stamps knowing that they were not entitled thereto and that the United States was not obligated to pay them, and thereby defraud the United States.
The defendants as part of their conspiracy, is the further averment, conspired to obtain in a manner contrary to the provisions of the act of Congress to the effect that the amount of certificates sold to any one person at any one time should not exceed $100, a number of blank certificates of a maturity value in excess of $100, to which stamps had not been affixed and on which the name of the owner had not been written, to detach from the certificates so purchased, the stamps, and to affix the stamps to blank certificates and to write upon them the name of some person, other than any one of the defendants, and to present them at a post office of the United States for payment.
To effect the object of the conspiracy it is averred that the defendant Janowitz, at the Southern District of New York, maintained during the months of August and September, 1919, an office for the purpose of purchasing certificates and stamps, and that in the manner described, the defendants at the times and places set forth conspired
UNITED STATES v. JANOWITZ. 45
42.	Opinion of the Court.
to defraud the United States, and one of them did an “act to effect the object of said conspiracy, against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided.” (§ 37, Crim. Code.)
The second count, with about the same detail of circumstances as contained in the first count, charges that the defendants at a particular time conspired to commit an offense against the United States in that they conspired to alter, with intent to defraud, obligations of the United States, that is, the war savings certificates of the United States issued under the Act of September 24, 1917, with war savings certificate stamps affixed thereto.
It is difficult to succinctly represent the contentions of defendants. Their basic proposition seems to be that the certificates and war stamps were lawfully purchased from the Secretary of the Treasury and became the property of the purchaser and that, therefore, in the absence of an express statutory enactment, the right of the purchaser to alienate or sell them and of the defendants in error to acquire them was absolute and could not be made unlawful by a mere executive regulation. Or, to put it another way, as counsel puts it, “ that the exchange, sale, or barter of war savings stamps is a perfectly lawful business under the strictest letter of the enabling statute.” The deduction, therefore, is that the Secretary of the Treasury had not power conferred upon him to issue the circulars and prescribe the conditions endorsed upon the certificates, and their violation was no crime but was the exercise of a property right.
This- is the ultimate deduction and emphasis of defendants in error’s argument. It is not contended that Congress could not have prescribed such limitation, but it is contended Congress did not do so nor authorize the Secretary of the Treasury to do so and that, therefore, his regulations are void. They write, it is asserted, “ an en-
46
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
tirely new law—a law which would hinder and obstruct persons from the exercise of the valuable property right which such persons have exercised in the full belief of its propriety for some years past.”
These contentions prevailed with Judge Hough in the District Court. He said: “ When Congress authorized the issuance of ‘ stamps to evidence payments for or on account of such certificates,’ and did not deny to the stamp holders the right of transfer, such right existed. The Treasury has sought to take it away by making the certificates non-transferable. Assuming that power exists to prohibit transfer of the certificates, I am wholly unable to perceive that there is any congressional authority for the Secretary’s prohibiting the transferability of the stamps affixed to the certificates.
“ Nowhere is it said that any particular stamp shall evidence a payment on any particular certificate.
“ This I think is the gist of the matter: Is a regulation which as interpreted, in terms takes away a property right in a manner not specifically authorized by statute, a valid rule? I cannot persuade myself that such is the case.” And after citing United States v. Grimaud, 220 U. S. 506, and other cases, and attempting to confine them to mere “ procedural regulation,” he said: “A stamp is a thing of value, bought and paid for, and to deprive it of the quality of assignability is a diminution of lawfully existing property rights for which in my judgment congressional action alone will suffice.”
The act of Congress has broader meaning than that assigned to it by the District Court, as we expressed in the Sycks Case, and there decided that the Secretary had the power which he exercised.
The reasoning of the opinion in that case applies in this, and determines the reversal of the judgment of the District Court. In other words, determines that the facts stated in the counts are sufficient to constitute crimes
MARINE RY. CO. v. UNITED STATES. 47
42.	Syllabus.
under §§37 and 148 of the Criminal Code and the Act of Congress of September 24, 1917, properly construed.
Judgment reversed and cause remanded for further proceedings in conformity with this opinion.
MARINE RAILWAY & COAL COMPANY, INC. v. UNITED STATES.
ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
No. 45. Argued October 18, 1921.—Decided November 7, 1921.
1.	The jurisdiction of this court to review judgments of the Court of Appeals of the District of Columbia “ in cases in which the jurisdiction of the trial court is in issue” (Jud. Code, § 250, cl. 1), attaches to a case originating in the Supreme Court of the District in which the issue concerned the territorial limits of that court’s jurisdiction. P. 62.
2.	The Supreme Court of the District of Columbia being a court of general jurisdiction, there is no occasion to limit the natural scope of Jud. Code, § 250, cl. 1, after the maimer in which the similarly worded § 238, applicable to the District Courts of the United States, has been confined to cases in which their jurisdiction as federal courts is involved. P. 62.
3.	A certificate of the question of jurisdiction-is not necessary, under Jud. Code, § 250, supra, where the issue was clearly made by plea and a certificate could add nothing to the record. P. 62.
4.	Quaere: Whether the rule construing the sixth clause of Jud. Code, § 250, as conferring jurisdiction only when the law drawn in question is of general application throughout the United States, as distinguished from one local to the District, would apply in a case involving a statute fixing the boundary of the District. P. 62. Cf. American Security & Trust Co. v. District of Columbia, 224 U. S. 491.
5.	The original title of Maryland, to which the United States succeeded in the District of Columbia, extended at least to the low water mark on the Virginia side of the Potomac River. P. 63,
48	OCTOBER TERM, 1921.
Syllabus.	257 U. S.
See Maryland v. West Virginia, 217 U. S. 1, 45, 46; id. 577, 578; and Morris v. United States, 174 U. S. 196.
6.	The Maryland title was not affected by later charters granted by James I to Virginia. P. 63.
7.	A grant made by the Governor of Virginia to one Howsing in 1669, with a boundary “ extending down Potomack River by various courses 3152 po. making a S. Wtly line to a pokecory,” etc., and “including several small creeks or inlets,” held consistent with as well as subordinate to the Maryland grant, merely following the line of the stream and not intended to include an indentation or cove. P. 63.
8.	The grant made by Virginia to the United States of territory formerly included in the District of Columbia and its re-grant by the United States did not enlarge Virginia’s rights as they were originally. P. 63.
9.	The compact entered into between Virginia and Maryland, in 1785, to regulate commerce, which provided, inter alia, that the Potomac should be a common highway for purposes of navigation and commerce to the citizens of both States and gave the citizens of each full property in the shores of the river adjoining their lands with wharfing and fishing rights, did not settle the question of boundary between the States. P. 63.
10.	The arbitration of boundary between Virginia and Maryland, the award in which was accepted by those States in 1878 and assented to by the United States (Act of March 3, 1879, c. 196, 20 Stat. 481,) fixing the line at low water mark on the Virginia side of the Potomac drawn from headland to headland, did not involve or affect the boundary as between Virginia and the District of Columbia. P. 64.
11.	The filling in and adverse occupation of land originally below low water mark on the Virginia side of the Potomac under an erroneous claim that the Virginia line included a cove in which the land was situated by extending from headland to headland, gave no prescriptive right, as against Maryland or the United States, to land lying in the cove, and below low water next to the areas so filled, even though the claim was supported by Virginia statutes. P. 65.
12.	The description of the District of Columbia in the Revised Statutes relating thereto, June 22, 1874, § 1, as “including the river Potomac in its course through the District,” imports an assertion by Congress that the title of the United States embraces the whole river; and the jurisdiction of the District over the river seems to have been exercised without dispute. P. 65.
MARINE RY. CO. v. UNITED STATES. 49
47.	Argument for Plaintiff in Error.
13.	The United States is entitled to the possession of land in the District which it has reclaimed by filling below low water fine on the Virginia side, though access to the water from private lands adjacent be thereby interrupted. P. 66.
49 App. D. C. 285; 265 Fed. 437, affirmed.
Error to review a judgment of the Court of Appeals of the District of Columbia which affirmed a judgment of the Supreme Court of the District in favor of the United States in a suit brought by the United States to recover a strip of made land on the Potomac River.
Mr. James R. Caton for plaintiff in error.
In Maryland v. West Virginia, 217 U. S. 1, 517, this court recognized that the arbitration and award established the boundary line between Virginia and Maryland, to be the true boundary line between said States, agreeably to the Compact of 1785. And see Wharton v. Wise, 153 U. S. 155, 172, 173.
The claim of the plaintiff in error not being founded on the Culpeper grant, is distinguished from Morris v. United States, 174 U. S. 196. There was no evidence in that case of any substantial claim by Lord Fairfax, or by his grantees, to property rights in the Potomac River or the soil thereunder; nor was there any evidence that Virginia ever exercised the power to grant ownership in the islands or soil under the river to private persons. In this case, the Howsing grant of 1669, and its history, show that Virginia claimed the right and exercised the power, and has for 243 years, and up to the time of this suit, consistently and continuously claimed and exercised territorial dominion and jurisdiction.
The true boundary between Maryland and Virginia in 1785, and for a long time prior thereto, on the Virginia side of the Potomac, was a uniform line at low-water mark from one headland to low-water mark at another,
50
OCTOBER TERM, 1921.
Argument for Plaintiff in Error.
257 U.S.
without following indentations, bays, creeks, etc.; and to this line Virginia had become entitled as early as 1785 by prescriptive right, and it was fixed and established by the Compact of 1785, all of which appears from the report and award of the arbitrators selected under agreement by Maryland and Virginia, and the subsequent acceptance thereof by the acts of assembly of both States and the consent thereto by Congress.
The grants by James I to Virginia do not appear to have been in evidence, or even considered, in Morris v. United States, supra. Out of these conflicting grants there arose a lengthy controversy between Maryland and Virginia,—Maryland claiming by virtue of the charter of Charles I to Lord Baltimore the whole of the Potomac to high-water mark on the Virginia side, and Virginia claiming by virtue of the charters of James I and by prescription to high-water on the Maryland side, Virginia insist-ing that the boundaries of the territory under the grant to Lord Baltimore extended only to high-water mark on the Maryland side. During the 150 years or more this controversy continued, Virginia always asserted territorial jurisdiction, ownership and possession of the shores or strands on the Virginia side, which is evidenced by the grant of land to include the soil under the waters on the Virginia side of the river to Howsing, in 1669, which was prior to the grant of James I, in 1688, to Lord Culpeper. See Maryland v. West Virginia, 217 U. S. 1, 45; s. c. 217 U. S. 577-581.
The Act of Congress of 1874, defining the political boundaries of the District of Columbia, does not alter the boundary line between Virginia and the District, as set forth in the arbitration and award of 1878; according to the true interpretation of the act, it serves only to confirm the contention of plaintiff in error.
Although that act is a political declaration of the boundaries of the District, yet, when the United States
MARINE RY. CO. v. UNITED STATES. 51
47.	Argument for Plaintiff in Error.
comes into a court of law and sues to recover the fee of a parcel of land claimed by it to be within the boundaries of the District, and that fact is put in issue by plea to the jurisdiction, it is bound to establish that fact, and the case must be tried on the law and the facts of the case.
Battery Cove, which includes the land in controversy, is no part of the course or of the navigable body of the river.
In the Howsing grant it is expressly stated that the line is a southwesterly line from Alexander’s Island to Jones’ Point, which is a straight line. The presumption is that a line between monuments is a straight one. This is not overcome by the fact that monuments are at points on the same river. Slade v. Etheridge, 13 Ired. Law, 553.
The Howsing grant, the legislation of the Colony and State of Virginia, from 1753 to 1789, and from 1846 to 1912, the making of land by Virginia and her citizens into the Potomac all along the Alexandria river front, covering a distance of two blocks east of the shore line of 1748, making 14 city blocks and including streets containing an area of about 35 acres, sustain the prescriptive claim of territorial sovereignty and jurisdiction in Virginia.
Possession under the Howsing grant of a part of the land comprehended within its boundaries, constitutes possession of the whole; especially is this true where acts of possession and claim of ownership under the grant, and the exercise of sovereignty and jurisdiction by the State and city, have continued for so long a period. Taxes have been imposed and collected thereon by both Virginia and Alexandria during all that period, except between the cession and recession of the Virginia territory. All titles to property within the lines of the Howsing grant in Alexandria City and County, including Alexander’s Island and Pearson’s Island, and to the made lands on the Alexandria river front, are recorded in Virginia. Jackson v. Camp, 1 Cowp. 605, 612. This constructive possession has its origin in the maxim of the common law that (( possession 6267°—22-------9
52
OCTOBER TERM, 1921.
Argument for Plaintiff in Error.
257 U. S.
of a part shall be construed as possession of the whole.” Garrett v. Ramsey, 26 W. Va. 345, 351; Lowndes v. Huntington, 153 U. S. 1, 32.
Sovereignties may lose territory by prescription as individuals may lose their title by adverse possession. Rhode Island v. Massachusetts, 4 How. 591, 639; Vattel, Law of Nations, bk. 2, c. 11, § 149. The constant and approved practice of nations shows that, by whatever name it be called, the uninterrupted possession of territory for a certain length of time by one State excludes the claim of every other. Wheaton, Int. Law, pt. 2, c. 14, § 164; Indiana v. Kentucky, 136 U. S. 479; Virginia v. Tennessee, 148 U. S. 503, 523, 524; Maryland v. West Virginia, 217 U. S. 1, 577, 585; Phillips v. Payne, 92 U. S. 130.
The Act of Congress of June 25, 1910, read with related legislative documents, clearly recognizes the territorial rights and jurisdiction of Virginia over the whole line of the authorized improvement along the Alexandria river front from Jones’ Point to the northern corporate limits of said city.
If the contention that the original line of the Calvert grant of 1632 is the present boundary between the District and Alexandria were upheld, it would cut off Alexandria entirely from the river and place in the District all the land made in the coves prior to 1785, covering a large number of city blocks, and would disturb the title of their owners.
Whilst Alexandria was a part of the District of Columbia, Congress preserved the integrity of the territorial and jurisdictional limits of Alexandria, and since the recession neither the United States nor the District has made any claim to the territory within these lines or exercised any act of jurisdiction over the same during the 67 years previous to the time Battery Cove was filled.
After the lapse of time between the date of the How-sing grant and the present, the presumption of law is in
MARINE RY. CO. v. UNITED STATES. 53
47.	Argument for Plaintiff in Error.
favor of the validity of that grant. Fletcher v. Fuller, 120 U. S. 534; Carino v. Insular Government, 212 U. S. 449; Costas v. Insular Government, 221 U. S. 623; Matthews v. Burton, 17 Gratt. 312; 32 Cyc. 1202. An original grant carries with it constructive or legal possession of the whole area covered by the grant. Dawson v. Watkins, 2 Rob. (Va.) 259, 268; Green v. Liter, 8 Cr. 229; Green v. Watkins, 7 Wheat. 27; Howdashall v. Crenning, 103 Va. 30.
There is no evidence showing that either Maryland or the United States ever made any claim to Alexander’s Island or Pearson’s Island, or any of the bays, creeks or inlets, included in the Howsing grant.
The Compact of 1785 was a complete and binding agreement between Maryland and Virginia, and their respective territorial rights thereunder had become fixed before the formation of the Federal Government and the adoption of the Federal Constitution. Wharton v. Wise, 153 U. S. 155, 166; Virginia v. Tennessee, 148 U. S. 503, 521.
The compact confirmed the territorial ownership and jurisdiction of Virginia. The acts of cession of these States did not modify the compact in so far as it fixed the territorial boundaries and jurisdiction of Virginia. Georgetown v. Alexandria Canal Co., 12 Pet. 91.
The riparian right of making wharves and other river improvements is property, subject only to the power of Congress under the commerce clause, and can then be interfered with only when necessary to promote navigation. Illinois Central R. R. Co. v. Illinois, 146 U. S. 387; Yates v. Milwaukee, 10 Wall. 497, 504.
The right of a riparian owner is not a mere license, or privilege, but is property in the soil up to the line of navigation, though covered by water. Norfolk v. Cook, 27 Gratt. 430, 434, 435; Railroad Co. v. Schurmeir, 7 Wall. 272, 290; Dutton v. Strong, 1 Black, 1, 29; Grover v. Foster, 96 Va. 650; Peck v. Hampton, 115 Va. 855.
54	OCTOBER TERM, 1921.
Argument for the United States. 257 U. S.
The United States did not acquire title to or jurisdiction over the filled area because of the fact that in the improvement of the river and harbor it made and reclaimed the land. Illinois Central R. R. Co. v. Illinois, 146 U. S. 387.
By the act of Congress approving and consenting to the agreement and award, the United States became a party thereto as fully and as effectually as if it had been a party at the very inception of the agreement to submit to arbitration. Wharton v. Wise, 153 U. S. 155, 172, 173; Virginia v. Tennessee, 148 U. S. 503, 521. The reservation in the act consenting to the arbitration and award, of jurisdiction over the waters and islands, referred only to the powers of Congress over the waters and islands under the commerce clause of the Constitution. The reservation does not relate to territorial or property rights, but to jurisdiction only.
Mr. Henry H. Glassie, Special Assistant to the Attorney General, with whom Mr. Solicitor General Frierson and Mr. Leslie C. Garnett, Special Assistant to the Attorney General, were on the brief, for the United States.
The United States, as successor to the lord proprietary of Maryland and as complete territorial sovereign of the District of Columbia, has not only the dominion but the absolute property of the soil of the Potomac River. Any land, therefore, raised upon the submerged bed in the course of a lawful public improvement, is owned in absolute property by the United States. Hale, De Jure Maris, c. 6; Shively v. Bowlby, 152 U. S. 1, 48; Austin v. Rutland R. R. Co., 45 Vt. 215, 244; Hoboken v. Pennsylvania R. R. Co., 124 U. S. 656, 690.
It is settled that the Maryland Charter of 1632 embraced the Potomac River and the soil under it to high-water mark on the Virginia bank. Morris v. United
MARINE RY. CO. v. UNITED STATES. 55
47.	Argument for the United States.
States, 174 U. S. 196, 225; Alexandria Canal Co. v. District of Columbia, 1 Mackey, 257. It is true that the Marshall claim rejected in the Morris Case was based upon the Culpeper grant of 1688, whereas the claim here is based on the Howsing grant of 1669. But the Culpeper grant was a confirmation of the original grant to Hopton of September 18, 1649, confirmed to his successors on May 8, 1669 (4 Hen. Stat. Va., c. XVIII, pp. 514, 519). In holding that the Maryland title was “ not affected by the subsequent grant to Culpeper” the court held in effect that it was superior to the original Hopton grant which was itself senior to Howsing.
The Howsing grant embraced no part of the Potomac River: (a) Because it was an ordinary conveyance, under a general system for the disposition of unappropriated lands, which even by Virginia law carried no soil under public tidal waters. Home n. Richards, 4 Call (Va.) 441, 446, 447; Mann v. Tacoma Land Co., 153 U. S. 273, 284. (b) Because, the Governor of Virginia being without power to enlarge the political boundaries of the colony, the grant must be construed as confined to land in Virginia. (c) Because the description, beginning on land and “ extending down the Potomack River various courses 3152 poles,” does not call for straight lines in the river. Brown v. Huger, 21 How. 305, 320; Hardin v. Jordan, 140 U. S. 371, 380; Smith v. Aldridge, 2 Hayw. 382; Rogers v. Mabe, 15 N. Car. 180, 184. The river being public, the grant stops at the water’s edge, notwithstanding the words “ including several small creekes or inlets for the said quantity.” The last expression means only that the quantity had been measured approximately without allowance for small water areas within the tract.
While some so-called islands now forming part of the Virginia mainland were taken possession of under the Howsing grant, no part of the locus, which remained submerged until the improvement, was ever in the possession
56
OCTOBER TERM, 1921.
Argument for the United States.
257 U. S.
of the grantees. Constructive adverse possession under color of title—itself a mere legal fiction, Carey v. Cagney, 109 La. 77, 82—has no application to lands not susceptible of possession in the ordinary sense. Chandler v. Spear, 22 Vt. 388, 404; Paine v. Hutchins, 49 Vt. 314, 318; Bailey v. Carleton, 12 N. H. 9; Thompson v. Barhans, 61 N. Y. 52, 68. Nor to land which the grantor is incapable to convey. Proctor v. Railroad, 100 Me. 27, 29; Roberts v. Baumgarten, 110 N. Y. 80, 83. Hence not to land covered by water, which is not only publici juris but lies over the frontier in the territory of an independent sovereignty. Hoye v. Swann, 5 Md. 237, 249; Casey v. Inloes, 1 Gill. 497, 500. In the absence of occupancy, the seizin remains in him who has the title. Hunnicutt v. Peyton, 102 U. S. 333, 368. The Maryland proprietary was not bound to notice domestic conveyances in Virginia. Nor would possession of upland under such conveyances indicate that the patentees claimed soil under the river, patentable neither in Virginia nor in Maryland.
The Maryland-Virginia Compact of 1785 was without effect on the Potomac boundary.
The purpose was not to change the charter line but to make provision for the concurrent use and police of the waters. Proc. Md. Conv. 1774-1776, pp. 291, 293. Attorney General v. Del. & B. B. R. R. Co., 27 N. J. Eq. 1, 121 ; Nicoulin v. O'Brien, 248 U. S. 113, 114; Wedding v. Mey-ler, 192 U. S. 573, 584.
The shore and wharf rights allowed the Virginia upland owners, being consistent with continued ownership in Maryland, did not involve alteration in the line.
The compact was not regarded by the parties as having determined the boundary. This is established: (a) By the repeated efforts subsequently made to secure a settlement. Laws Md. 1831, Res. No. 128; 1833, Res. No. 80; 1834, Res. No. 99. (b) By Virginia’s claiming, as late as 1872, the whole river to the north bank. Report and Accom-
MARINE RY. CO. v. UNITED STATES. 57
47.	Argument for the United States.
panying Documents of Virginia Commissioners appointed to ascertain the Boundary Line between Maryland and Virginia. Rich. 1873, p. 3, Append. B, p. 86.
No reason exists for giving the compact the effect suggested. Shore lines are physical, not imaginary lines. A boundary from headland to headland is highly inconvenient in practice and inconsistent with dominion of the river, as such, which unquestionably belonged to Maryland. Hall, Int. Law, 7th ed., p. 125; 1 Moore, Int. Law Digest, p. 617; Grotius, De Jur. Bell, et Pac., Lib. II, c. 3.
Construing the compact as a treaty between two sovereign States {Howard v. Ingersoll, 13 How. 381, 412), the privileges in the waters and adjacent shores are no more than a recognition of servitudes in the stream generally allowed in favor of the subjects of the opposite sovereign. The Apollon, 9 Wheat. 362, 369; Wheaton, Int. Law, §§ 193, 194; Kaeckenbeck, International Rivers, 15, 34, 74, 134, 184. The cession of a right of user, for whatsoever purpose, cannot be deemed a surrender either of the basic right of property or of territorial sovereignty. Rivier, Droit des Gens, 1.1., p. 296; Vattel, bk. I, c. 22, § 273.
The compact, being made between Virginia and Maryland in their character as States, was subject to alteration by their joint will. Georgetown v. Alexandria Canal Co., 12 Pet. 91, 96; Opphenheim, Int. Law, vol. I, §§ 204, 520. It was, therefore, abrogated by the vesting of this absolute power in a single sovereign, when the two States ceded to the United States the original District, including the whole of the river, its bed, and the shores on both sides. Evans v. United States, 31 App. D. C. 550. The principle of consolidatio is recognized as applicable to international servitudes. Calvo, Droit Int. I, p. 33; Heffter, Droit Int. (traduc-francaise), § 43, p. 93. The retrocession to Virginia (Act of July 9, 1846, c. 35, 9 Stat. 35) making no mention of them, the merged
58
OCTOBER TERM, 1921.
Argument for the United States.
257 U. S.
easements and privileges were not revived. Evans n. United States, 31 App. D. C. 544, 552; Capron v. Greenway, 74 Md. 289, 293 ; Denton v. Leddell, 23 N. J. Eq. 64, 66; Rogers v. Powers, 204 Mass. 262, 264; Greenwood n. Metropolitan Elevated R. R. Co., 12 N. Y. S. 919; Pardessus, Traité des Servitudes, §§ 16, 296, 299.
The arbitration award of 1877, being limited to the boundary .between Virginia and Maryland, was without effect on the Virginia-District of Columbia boundary. Nor did the Act of March 2, 1879, 20 Stat. 481, giving the consent of Congress to the award, make it applicable to the Virginia-District of Columbia boundary, notwithstanding the proviso, inserted out of abundant caution, that nothing therein contained should impair or affect any right or jurisdiction of the United States over the islands and waters forming the subject of such award. In re Devoe Manufacturing Co., 108 U. S. 401, 415.
Maryland v. West Virginia, 217 U. S. 1, 577, is not an authority on the Potomac boundary. The real question there was the western, not the river boundary. The court’s attention was not directed to the question of high or low water mark. The suggestion in the supplementary opinion (217 U. S. 580) that the privileges on the shores were inconsistent with the charter boundary was grounded on a tacit concession, for Maryland after the award of 1877 had never pressed a claim to high water mark. The expression of opinion is not binding. The Genessee Chief, 12 How. 443, 455.
The headland to headland theory has no possible application to an interstate river boundary. It is not recognized by the United States as a general principle even in maritime boundaries. 1 Moore, International Law Dig., 719. The line cannot be drawn across the ordinary indentations and sinuosities of the shore. Direct United States Cable Co. v. Anglo-American Tel. Co., L. R., 2 A. C. 394, 418. Maritime boundaries are drawn from
MARINE RY. CO. v. UNITED STATES. 59
47.	Argument for the United States.
headland to headland only when they mark the entrance to a landlocked estuary or bay. 1 Moore, Int. Law Dig., pp. 703, 704, 741; 1 Ops. Atty. Gen. 32; Stetson v. United States, 32 Alb. Law Journ. 484; 4 Moore, Int. Arb. 4332-41. The present points claimed as headlands cannot be taken because they have been artificially created. The old, obliterated points some distance inland cannot be taken because, if ever headlands, they are such no longer. A headland call requires a definite, permanent, visible object. The claim for a headland line is an attempt to apply the Maryland-Virginia arbitration line of 1877, reached upon the erroneous assumption that boundary is determined by the extent of the wharfing privileges.
Domestic statutes of Virginia authorizing extensions of Alexandria into the river do not make a new interstate boundary. Acquiescence cannot be inferred from Maryland’s failure, during the Revolutionary period, to prevent such fillings. The land so made may be treated as an accomplished fact. Indiana v. Kentucky, 136 U. S. 479, 510. But failure to prevent by force particular encroachments cannot be treated, in the face of Maryland’s denial, as an acknowledgment of a general right to make them. It is the fact of occupancy, not the claim, which works the change. Arkansas v. Tennessee, 246 U. S. 158, 172. Between 1791 and 1847 the United States was sovereign of both shores, and changes in the water front then made cannot affect the question because there was then no boundary to affect. Virginia statutes passed after the retrocession are merely paper claims of jurisdiction not acquiesced in by the United States. Congress, on the contrary, has expressly defined the District, and governed it, as the territory ceded by Maryland, “including the river Potomac in its course through the District, and the islands therein.” Rev. Stats. D. C. § 1. In such a conflict the legal title must prevail. United States v. Texas, 162 U. S. 1, 88.
60
OCTOBER TERM, 1921.
Argument for the United States.
257 U. S.
Virginia has not shown such long continued possession of, or exercise of dominion over, the disputed area as would be equivalent to the relocation of a common boundary line by acquiescence. Calls of private conveyances for lines running “ into the river,” etc., do not constitute adverse occupation of the bed of a public river. The United States had all the possession of which such soil was susceptible. Such actual jurisdiction as has been exercised has been in accordance with the Government’s claim: By police of the waters and protection of the fisheries. Act April 6, 1880, 21 Stat. 71; Act March 2, 1885, 23 Stat. 340. By taxation of physical objects affixed to the soil of the bed. Acts of February 5, 1808, 2 Stat. 457; July 14, 1832, 4 Stat. 502; June 30, 1834, 4 Stat. 727; July 27, 1868, 15 Stat. 231; June 21, 1886, 24 Stat. 84; July 18, 1888, 25 Stat. 314. By the execution of process and the enforcement of the District excise laws on boats even while in the slips at Alexandria.
The title of the United States, like the Crown title in tidal rivers in England, is an absolute right of property in the soil. Rex v. Parmenter, 10 Price, 378, 409. Hence, the Government being the owner of the fee of the soil while submerged, remains the owner of the fee of the soil reclaimed. Shively v. Bowlby, 152 U. S. 1, 11; Barney n. Keokuk, 94 U. S. 324; Haight v. Keokuk, 4 la. 199; Tomlin n. Dubuque R. R. Co., 32 la. 10Q; Hoboken v. Pennsylvania R. R. Co., 124 U. S. 656; Stevens v. Paterson & N. R. R. Co., 34 N. J. L. 532.
No riparian rights annexed to the Virginia upland could preclude the United States from intercepting such upland by a seawall. Gibson v. United States, 166 U. S. 269; Scranton v. Wheeler, 179 U. S. 141. Riparian rights, being subject to the obligation to suffer the consequences of all lawful operations in the stream (Jackson v. United States, 230 U. S. 1, 21; Darling v. Newport News, 249 U. S. 540, 543) are enjoyed in subordination to the power
MARINE RY. CO v. UNITED STATES. 61
47.	Opinion of the Court.
to confine the channel by a seawall and to deposit the material dredged out of the channel behind such wall. Sage v. Mayor, 154 N. Y. 61, 76; Home v. Commonwealth, 202 Mass. 422,429; Scranton v. Wheeler, 179 U. S. 141, 169.
But conceding that defendant’s riparian rights were infringed by the reclamation, that fact would not invest defendant with title to the reclaimed area. An owner of land having a statutory right to wharf out acquires no title to reclamation on submerged soil in front of him, even when made by a stranger. Austin v. Ru t-land R. R. Co., 45 Vt. 215, 242; Coburn v. Ames, 52 Cal. 385, 398. Much less, when, made by the sovereign itself. No economic reason exists for giving the reclaimed soil to the upland owner even if wrongfully deprived of access, since reclaimed soil is not a proper measure of compensation. The shore land having the least valuable riparian rights would, in that event, acquire the major portion of the reclamation.
Mr. Justice Holmes delivered the opinion of the court.
This is a suit brought by the United States in the Supreme Court of the District of Columbia to recover possession of a strip of land on the Potomac River front of the City of Alexandria. Except an insignificant portion as to which no special defence was made and which it is agreed may be disregarded, this strip lay below low water mark until it was filled in by the United States in 1910-1912 by dredging from the bottom of the river and depositing the material on the other side of a riprap wall built on the river bed. Act of June 25, 1910, c. 382, 36 Stat. 630, 639. Act of February 27, 1911, c. 166, 36 Stat. 933, 937. The United States enclosed the made land by a fence at high water mark, but the defendant, the plaintiff in error, claiming title to the adjoining land inshore, destroyed the fence and took possession, whereupon this
62
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
action was brought. The defendant pleaded to the jurisdiction of the Court alleging that the land was not in the District but was part of Virginia. On this issue the Court found or ruled in favor of the plaintiff and afterwards did the same upon the general issue, a jury having been waived. Judgment for the plaintiff was affirmed by the Court of Appeals and the defendant took a writ of error to bring the case to this Court.
A question is raised by the defendant in error as to the jurisdiction of this Court. The language of the Judicial Code, Act of March 3, 1911, c. 231, § 250, 36 Stat. 1087, 1159, is that any final judgment of the Court of Appeals may be reexamined “ First. In cases in which the jurisdiction of the trial court is in issue.” The words taken literally cover this case, but it is argued that they should be construed as similar words in § 238 concerning the District Courts are construed. In the latter instance, as is well known, they are confined to the jurisdiction of the District Courts as courts of the United States. But the jurisdiction of the District Courts is a limited jurisdiction based upon statutory grounds, and therefore the words of § 238 naturally enough were confined to what always is the first question in a case before them. The Supreme Court of the District of Columbia on the other hand is a court of general jurisdiction, and whether or not the clause of § 250 was suggested by the earlier one, we see no sufficient justification for denying to it the scope that it must have if it is given its natural sense. The plea to the jurisdiction raises the question clearly, and a certificate would add nothing to what the record shows.
We are not prepared to say that the judgment before us was not “ otherwise reviewable ” on the question of the boundary between the United States and Virginia, so far as the defendant drew in question the construction of the Revised Statutes relating to the District of Columbia, § 1, June 22, 1874, hereafter discussed. We should hesi-
MARINE RY. CO. v. UNITED STATES. 63
47.	Opinion of the Court.
tate to apply the decision in American Security & Trust Co. v. District of Columbia, 224 U. S. 491, to such a case.
The question of the jurisdiction of the trial Court and that of the merits very nearly coalesce, as the original title, at least, of Maryland and its jurisdiction were founded upon the same facts, and as the United States succeeded to the rights of Maryland by the grant of the District completed in 1791. That the original title of Maryland extended at least to low water mark on the Virginia side it now is too late to deny, in view of the decisions in Maryland v. West Virginia, 217 U. S. 1, 45, 46; s. c. ibid. 577, 578; and Morris v. United States, 174 U. S. 196. An attempt to throw doubt upon these authorities and upon the effect of the charter of Charles I, June 20, 1632, granting Maryland to Lord Baltimore (ad ulteriorem dicti Fluminis Ripam et earn sequendo &c., 217 U. S. 25) “ to the farther bank of the said [Potomac] river and following it,” by the charters of James I to Virginia and especially by the terms of a grant from the Governor of Virginia to Howsing in 1669 must fail. The latter grant is subordinate to the former and is not inconsistent with it as the language is “ extending down Potomack River by various courses 3152 po. making a S. Wtly line to a pokecory ” &c. The implication of the words “by various courses” that the grant follows the line of the stream is not changed by the words “ including several small creeks or inlets.” The land in question is situated upon an indentation, called Battery Cove, but the place is not a creek or inlet. The former decisions of the Court must be followed so far as they go.
The original state of things was not changed by the grant of Virginia and the regrant by the United States of the part of the District on the Virginia side. They at least did not enlarge the rights of that State. The compact between Virginia and Maryland in 1785 also seems to us to have no bearing upon the case. It says nothing
64	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
about the boundary in terms. Without going into the history of the compact or reciting it, we only need to remark that it was a regulation of commerce, and while with a view to opening up a route to the West it provided in Article 6 that the Potomac should be considered as a common highway for the purposes of navigation and commerce to the citizens of Virginia and Maryland, and in Article 7 gave the citizens of each State full property in the shores of the river adjoining their lands and the privilege of carrying out wharves, &c., with a common right of fishing, it left the question of boundary open to long continued disputes. It may be laid on one side even if it ever was in force in the District of Columbia, which has been denied on the ground that the compact was abrogated so far as it affected this land by the grant of Virginia and was not revived by the grant of the United States. Evans v. United States, 31 App. D. C. 544, 550. See Georgetown v. Alexandria Canal Co., 12 Pet. 91.
The question of boundary remaining open was submitted to arbitration which ended in an award accepted by the parties in 1878. But that was an arbitration between the two States and did not purport to affect the boundary of the District. The assent of the United States did not enlarge its scope. Act of March 3, 1879, c. 196, 20 Stat. 481. It is said that as the submission was to an ascertainment of the true boundary line the award must be taken to have determined it, but the question was confined to the boundary between the States as they then were, and whatever may be the force of the argument that the same principle ought to govern here, it was not and could not be adjudicated. Further discussion on this point is not needed. The award fixed low water mark on the Virginia side as the boundary, and is only material if at all as suggesting a claim that the low water line should be drawn from headland to headland and in that
MARINE RY. CO. v. UNITED STATES. 65
47.	Opinion of the Court.
way include the indentation or cove where the United States has filled. But we know of no reason for construing the charter to Lord Baltimore as so limited or that to Howsing as importing such a rule.
The only important aspect of the last mentioned suggestion is in connection with a claim of prescriptive right. The land behind the filling of the United States is made land, and the fillings on the Alexandria side go below the original low water mark. In this case, however, there is no attempt to disturb the long maintained possession of such extensions whether originally warranted or not. The only question before us is of the rights of the United States to fill land that hitherto has been under water. The plaintiff in error seeks to exclude it by force of what already has been done and the claims of right that have been made in connection with it. If the taking possession of land were under a deed purporting to convey more than the portion actually occupied, no doubt, within reasonable limits, the sovereign power might give to it the effect of adverse possession of the whole, as against other subjects of the same power. Montoya v. Gonzales, 232 U. S. 375, 377, 378. But the effect of filling in upon the edge of a stream as against a different power is another matter. Such acts in themselves import no claim beyond the land thus occupied. Maryland and the United States are not called upon to scrutinize the discourse of those in Virginia even if in statutory form. Except so far as actually occupied the seizin of the land remains in the party that has the title. “ One who enters upon the land of another, though under color of title, gives no notice to that other of any claim, except to the extent of his actual occupancy.” Hunnicutt v. Peyton, 102 U. S. 333, 369. Still more is this true as against independent sovereign rights.
Finally, on the other hand, the Revised Statutes relating to the District of Columbia, June 22, 1874, § 1, de-
66	OCTOBER TERM, 1921.
Statement of the Case.	257 U. S.
scribe the District as “ including the river Potomac in its course through the District/’ which imports an assertion by Congress that the title of the United States embraces the whole river bed; and the jurisdiction of the District over the river seems to have been exercised without dispute. For cases that have reached the reports see Alexandria Canal Railroad & Bridge Co. v. District of Columbia, 1 Mackey, 217, 225, 226. Smoot v. District of Columbia, 23 App. D. C. 266. Evans v. United States, 31 App. D. C. 544.
It may happen that such filling as is done in this case will interrupt previously existing access to the water front. But that does not affect the right of the United States to possession of the land. What other rights, if any, the plaintiff in error may have does not concern us now.
Judgment affirmed.
SPRINGFIELD GAS & ELECTRIC COMPANY v. CITY OF SPRINGFIELD.
ERROR TO THE SUPREME COURT OF THE STATE OB' ILLINOIS.
No. 46. Argued October 19, 1921.—Decided November 7, 1921.
State legislation permitting a city owning an electric plant to sell electricity to private consumers and fix the rates by ordinance or resolution of the city council while subjecting a competing private corporation to regulation of its rates by a public commission, held not to deny the corporation the equal protection of the laws. Illinois Public Utilities Act, June 30, 1913, §§ 33, 34. .P. 69.
292 Ill. 236, affirmed.
The plaintiff in error brought this suit in a circuit court of Illinois to enjoin the City of Springfield from operating its plant for the production and sale of electricity to private consumers without having first filed rates, etc., as required by the Public Utilities Act of the State (Laws 1913, p. 459). A decree dismissing the bill was ultimately
SPRINGFIELD GAS CO. v. SPRINGFIELD. 67
66.	Argument for Plaintiff in Error.
affirmed by the state Supreme Court, whose decision is brought here by the present writ of error.
Mr. Philip Barton Warren and Mr. Joseph S. Clark, with whom Mr. William L. Patton was on the brief, for plaintiff in error.
A municipal corporation which supplies its inhabitants with electricity, gas or water, does so in its capacity of a private corporation, and not in the exercise of its powers of local sovereignty. Walla Walla v. Walla Walla Water Co., 172 U. S. 1; Los Angeles v. Los Angeles Gas Corporation, 251 U. S. 32; Safety Wire Co. v. Baltimore, 66 Fed. 140; Walker v. Rock Island, 146 Ill. 139; Springfield v. Springfield Gas Co., 292 Ill. 236.
In exercising its private functions a municipality is, from every viewpoint and for every purpose, a private corporation.
The patron of a public utility service furnished by a municipality has the same rights to reasonableness of rates and equality of facilities as the patron of service furnished by any other private corporation.
A municipality furnishing public utility service owes the same duties and obligations to its patrons that any other private corporation does.
The attempted exemption of municipally operated commercial plants by § 10 of the Utilities Act is void, as being in violation of both the state and federal constitutional provisions against class legislation, because it is a special immunity granted the commercially operated municipal plant and relieves it from the same regulations imposed on the like plant of all other private corporations.
The regulation provided for in the Municipal Ownership Act is not of the same kind provided for in the Utilities Act.
The reason assigned by the Illinois court, as a substantial distinction, justifying the exemption of municipal 6267°—22-------10
68	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
plants, viz, that because municipal records are open to inspection it is not necessary to require their utility rates to be published and approved by the State Commission, is untenable.
The other reason assigned, viz, that they may not profit to the same extent as plants operated by other private corporations, is also not tenable.
Under the Illinois court’s interpretation of the act, that the city must fix rates sufficient to produce the revenue specified (§ 12), no higher, no lower, the city can not be required to fix reasonable rates.
Any legislative attempt to deny the city profits to the same extent as that granted other corporations in the operation of a utility, would be unconstitutional.
That one owner may not profit to the same extent as another does not constitute the kind of difference that justifies its exemption from regulation.
The elimination of the provisions exempting municipally owned utilities does not extend the scope of the Utilities Act beyond the intention of the legislature, as by § 83 it expressly manifested its intention to exempt municipalities only in the event it could do so without violating the Constitution.
Mr. Bayard Lacey Catron, with whom Mr. Albert D. Stevens was on the brief, for defendant in error.
Mr. Justice Holmes delivered the opinion of the court.
This is a bill in equity brought by the plaintiff in error, a private gas and electric company, to restrain the defendant City from producing and selling electricity to private consumers without first filing schedules of rates and printing and posting the same as required by §§ 33, 34 of the Public Utilities Act of June 30, 1913. [Laws 1913, p. 459.] The bill was dismissed on demurrer by the Court of first instance. An appeal was taken to the
SPRINGFIELD GAS CO. v. SPRINGFIELD. 69
66.	Opinion of the Court.
Supreme Court where the decree was affirmed on rehearing, after a previous decision the other way. The Public Utilities Act and the Municipal Ownership Act [Laws 1913, p. 455] were enacted by the State of Illinois within a few days of each other and, according to the Supreme Court of the State, as parts of a single plan. The former excepts municipal corporations from its requirements and the latter allows cities to go into this business among others and to fix the rates, which in the plaintiff’s case are subject to the approval of the State Public Utilities Commission. The plaintiff contends that the exception of municipal corporations from the Public Utilities Act is void under the Fourteenth Amendment and that the act should be enforced as if the exception were not there.
It might perhaps be a sufficient answer to the plaintiff’s case that the Supreme Court has intimated after careful consideration that the Utilities Act must stand or fall as a whole, so that if the plaintiff’s attack upon the exception were sustained the whole statute would be inoperative and the only ground of the suit would fail. The plaintiff attempts to reargue the question, but upon this point the decision of the State Court would be final and would control. However, as the Supreme Court did not stop at that point, but, assuming that under the law of Illinois the plaintiff had a standing to demand the relief sought if its case was otherwise good, went on to decide the validity of the exception, we think it proper to follow the same course and to deal with the constitutional question raised.
The plaintiff’s argument shortly stated is that in selling electricity the city stands like any other party engaged in a commercial enterprise and that to leave it free in the matter of charges while the plaintiff is subject to the Public Utilities Board is to deny to the plaintiff the equal protection of the laws. But we agree with the Supreme Court of the State that the difference between the two types of corporation warrants the different treatment that they have received.
70
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
The private corporation, whatever its public duties, is organized for private ends and may be presumed to intend to make whatever profit the business will allow. The municipal corporation is allowed to go into the business only on the theory that thereby the public welfare will be subserved. So far as gain is an object it is a gain to a public body and must be used for public ends. Those who manage the work cannot lawfully make private profit their aim, as the plaintiff’s directors not only may but must. The Supreme Court seems to interpret the Municipal Ownership Act as limiting the charges allowed to what will be sufficient to meet outlays and expenses of every kind, thus emphasizing the purely public nature of the interests concerned and excluding the latitude for wrong that the plaintiff fears. The Court further says that the municipalities can exercise their power to make all needful rules and regulations only by ordinances and resolutions as in other public action. It calls attention to the fact that the accounts are regulated by law and open to the public eye, and that the consumers in this as in the other case may have a resort to the courts.
The plaintiff did not venture to contend that the submission of similar duties of different bodies to different tribunals was of itself unconstitutional, or that the fixing of rates might not be entrusted to city councils. But the fact that the municipality owned the plant for which its council fixed the rate was supposed to disqualify its officers, at least when other plants were submitted to the judgment of strangers. But a city council has no such interest in the city’s electric plant as to make it incompetent to fix the rates. Whatever the value of the distinction between the private and public functions of the municipality, the duty of its governing board in this respect as we have said is public and narrowly fixed by the act. The conduct of which the plaintiff complains is not extortion but, on the contrary, charging rates that
NICHOLAS v. UNITED STATES. 71
66.	Statement of the Case.
draw the plaintiff’s customers away. The standard for these rates, however, according to the Supreme Court, is fixed by the legislature. If the rates had been fixed by law at the present amounts it would be vain to deny then-validity. The trouble with the plaintiff’s argument is that it attempts to go behind the interpretation that the Supreme Court has given to the acts concerned and to overwork the delicate distinction between the private and public capacities of municipal corporations. It is unnecessary to refer to the numerous cases upon classification by state laws in order to show that the distinction in question here is very far from being so arbitrary that we can pronounce it bad.
Decree affirmed.
NICHOLAS v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 10. Argued October 5, 1921.—Decided November 7, 1921.
1.	A person who has been removed from a place in the classified civil service, by the proper authority, but without charges or opportunity to answer, in violation of § 6 of the Act of August 24,1912, c. 389, 37 Stat. 555, can not recover subsequent salary attached to the position if he has not been diligent in asserting his rights. P. 75. United States v. Wickersham, 201 U. S. 390, distinguished.
2.	After summary removal, without charges, from the office of Inspector of Customs, claimant did nothing for his vindication for three years, when he sued for the salary since accrued. Held, that he had abandoned his title and could not recover. P. 76.
53 Ct. Clms. 463; 55 id. 188, affirmed.
Appeal from a judgment of the Court of Claims in a suit to recover the emoluments of an office accruing after appellant’s unlawful removal from it. See also post, 77, 82.
72
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
Mr. William E. Russell, with whom Mr. L. T. Michener and Mr. P. G. Michener were on the brief, for appellant.
Mr. Assistant Attorney General Riter, with whom Mr. Assistant Attorney General Davis and Mr. William D. Harris were on the brief, for the United States.
Mr. Justice Day delivered the opinion of the court.
Claimant brought suit in the Court of Claims to recover compensation as inspector of customs at the port of Baltimore from February 20, 1913, to May 20, 1916, in the sum of $4,740.00, being at the rate of $4.00 per day for the period covered. He alleged that he was summarily removed from the service of the United States without charges of any kind being preferred against him, and without an opportunity to be heard, in violation of § 6 of an Act of Congress approved August 24, 1912, c. 389, 37 Stat. 555. He afterwards amended his petition so as to claim $4.00 per day to the day of rendering judgment, September 30, 1917, being the sum of $6,732.00. The Court of Claims rendered judgment for the United States. 53 Ct. Clms. 463.
The Court of Claims made a finding of fact from which it appears that Nicholas was appointed an inspector of customs at the port of Baltimore on January 28, 1902, at a compensation of $4.00 per day; that he continued to discharge the duties of such inspectorship until February 20, 1913, when he was summarily discharged by the Collector of Customs at the port of Baltimore pursuant to instructions issued by the Secretary of the Treasury; that he was in the classified civil service of the United States; that charges had been preferred against him by a committee appointed by the Secretary of the Treasury to examine into and report the conduct of the customs business at Baltimore; that Nicholas had no notice of the charges, was not furnished with a copy thereof, nor was he allowed
NICHOLAS v. UNITED’ STATES. 73
71.	Opinion of the Court.
a reasonable time to personally answer the same in writing. The court further found that there was no evidence of the willingness and ability of the claimant to perform the duties of the office of inspector of customs from the date of his removal on February 20, 1913; that it did not appear that he made any report in person, or writing, to the office of the Collector at Baltimore. As a conclusion of law the court found the claimant not entitled to recover.
An appeal was taken to this court from the judgment of the Court of Claims. Upon motion the Court of Claims was directed to set aside its judgment, reopen the case, and make additional findings of fact. In obedience to a mandate of this court the Court of Claims set aside its judgment, took additional proof, made new findings, and again concluded that the claimant was not entitled to a recovery. 55 Ct. Clms. 188. That judgment is here for review.
From the amended findings of fact it appears that Nicholas entered the customs service in 1899 as an inspector; that the committee, appointed by the Secretary of the Treasury to examine into and report the conduct of the customs service at Baltimore, made a report from which they concluded that owing to the conduct of Nicholas, and from personal observation, they were of the opinion that the service would be benefited by his removal therefrom. On February 5, 1913, the Secretary of the Treasury approved this recommendation, and instructed the Collector of Customs at Baltimore to remove the claimant on account of his use of intoxicating liquors, and the unsatisfactory and perfunctory manner in which he performed his work. On February 20, 1913, he was removed from the service. At the time of his dismissal • he was in the classified civil service, and had no notice of any charges against him. On August 24, 1912, Congress passed an act authorizing the President to reorganize the
74
OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
customs service (c. 355, 37 Stat. 434). This reorganization was reported to Congress March 3, 1913. Thirty-three inspectors of customs were provided for the District of Maryland, including the State of Maryland, the District of Columbia, and the City of Alexandria, Virginia, which offices were filled since March 3, 1913, by persons appointed by the Secretary of the Treasury; claimant made no appeal to the Secretary of the Treasury at the time of his removal from office; he was willing and physically able to resume the duties of the office, and capable of discharging the same, but did not apply for reinstatement at any time, nor notify the Secretary of the Treasury of his desire therefor, or for a revocation of the order for his dismissal.
It appears that the petition was filed in the Court of Claims more than three years after claimant had been removed from office. It alleged that, being able and willing to discharge the duties of the office, plaintiff was entitled to compensation because of his illegal removal by failure to comply with the provisions of the Act of August 24, 1912, 37 Stat. 555:
“ Sec. 6. That no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing; and affidavits in support thereof; but no examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made a part of the records of the proper department or office, as shall also the reasons for reduction in rank or compensation; and
NICHOLAS v. UNITED STATES. 75
71.	Opinion of the Court.
copies of the same shall be furnished to the person affected upon request, and the Civil Service Commission also shall, upon request, be furnished copies of the same.”
The purpose of this statute, as its terms plainly show, is to require that one in the classified civil service of the United States have an opportunity to know of the charges against him before removal with an opportunity to answer them and, if awarded a trial, to have one before the officer empowered to act in the matter. The question presented is whether the plaintiff may recover his salary when removed without compliance with the statute, where he delays taking any steps to test the legality of his removal, or asking for an opportunity to be heard, for the length of time herein shown.
We agree with the Court of Claims that a person illegally dismissed from office is not thereby exonerated from obligation to take steps for his own protection and may not for an unreasonable length of time acquiesce in the order of removal, which it was within the power of the Secretary to make, and then recover for the salary attached to the position. In cases of unreasonable delay he may be held to have abandoned title to the office and any right to recover its emoluments. The claimant relies upon the Wickersham Case, 201 U. S. 390. In that case this court held that one entitled to the protection of a rule, or statute, requiring notice to be given him could not legally be separated from the service by suspension without compliance with the rule or statute, and was entitled to compensation during the period of his wrongful suspension. In that case the record disclosed that Wickersham was suspended on November 1, 1897, and that on November 5, 1897, he protested against his suspension and on December 28, 1897, demanded his salary. The case did not present and there was no occasion to decide the question of the effect of delay and acquiescence upon the right to recover compensation. It appeared that Wickersham
76
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
was diligent in asserting his rights as well as ready and willing to discharge the duties of the Government employment in which he was engaged.
It must be remembered that we are dealing with the discharge of public duties which it is important shall be carried on regardless of the personnel of those who discharge them. While one inducted into office or public employment is entitled to the privileges or emoluments thereof, until legally separated therefrom, he is not absolved from the duty of diligence upon his part in the assertion of his right to the office, or to the compensation attached thereto. Public policy requires that the Government shall be seasonably advised of the attitude of its officers and employees attempted to be displaced when they assert illegal removal or suspension as a basis for the recovery of the office or its emoluments. This is necessary in order that proper action may be taken in the public interest, as well as that which is required to vindicate the rights of one wrongfully removed from the public service. This principle was recognized in United States ex ret. Arant v. Lane, 249 U. S. 367. That case was one in mandamus to compel the restoration of an officer, who alleged that he was wrongfully removed without notice or an opportunity to be heard, and it was held that a delay of twenty months barred by laches his right to the writ. The reasoning of the opinion, and the comments as to the character of public employment and the conduct required of one who would assert his rights when wrongfully deprived of them, are apposite here. The findings in this case disclose that plaintiff took no steps to question the order dismissing him from the service, nor to ask for a copy of the charges upon which he was removed. He did nothing for his vindication until he brought this suit three years after his removal from the office, to recover compensation. We hold, therefore, as did the Court of Claims, that such a lack of diligence evidenced an
NORRIS v. UNITED STATES. 77
71.	Counsel for Appellant.
abandonment of his title to the office, and of his right to recover the emoluments thereof.
Affirmed.
NORRIS v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 11. Argued October 5, 1921.—Decided November 7, 1921.
N, having been wrongfully removed from the office of customs inspector, without being furnished a copy of the charges against him or opportunity to answer, as required by the Act of August 24, 1912, c. 389, § 6, 37 Stat. 555, waited eleven months before asserting his rights. He was reinstated for the purpose of affording him a due hearing, suspended from duty and pay meanwhile, and was exonerated, but the office was then abolished and his services dispensed with, for the reason that there was no existing vacancy in the service to which he could be assigned.
Held'. (1) That he was not entitled to official pay from the time of his removal to the time of his reinstatement. P. 80. Nicholas v. United States, ante, 71.
(2)	The power to determine the number of customs inspectors and to appoint and remove them was lodged with the Secretary of the Treasury. P. 81.
(3)	The order abolishing the place to which N was reinstated, made by an assistant secretary and being part of the archives of the Department, must be presumed to have been within the scope of the authority conferred upon the assistant by the Secretary, there being no evidence to the contrary. Rev. Stats., §§ 161, 245.
P. 81.
(4)	N could not recover pay since the time of his reinstatement. P. 82.
55 Ct. Clms. 208, affirmed.
Appeal from a judgment of the Court of Claims in a suit to recover the emoluments of an office accruing after appellant’s removal from it. See also ante, 71, post, 82.
Mr. William E. Russell, with whom Mr. L. T. Michener and Mr. P. G. Michener were on the briefs, for appellant.
78
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
Mr. Assistant Attorney General Riter, with whom Mr. Assistant Attorney General Davis and Mr. William D. Harris were on the brief, for the United States.
Mr. Justice Day delivered the opinion of the court.
This is an appeal from the Court of Claims which was argued and submitted at the same time with No. 10, just decided, ante, 71. Judgment was rendered against Norris. 55 Ct. Clms. 208. The case was brought to this court on appeal, and was remanded to the Court of Claims for further findings.
It appears that Norris was a customs employee at the port of Baltimore. On July 2, 1907, he was made a Customs Inspector at the compensation of $4.00 per day. On February 20, 1913, he was advised by the Collector of Customs that his services as inspector would be dispensed with, and his position vacated at the close of business on that day. On December 22, 1913, he addressed a communication to the Secretary of the Treasury in which he stated that he had been dismissed from the service on the previous February 20th; that no reason was assigned for the dismissal, nor charges furnished him, nor opportunity given him to be heard as provided by § 6 of the Act of August 24, 1912, c. 389, 37 Stat. 555. He stated that, therefore, his dismissal seemed contrary to law, and asked for reinstatement, and an examination of his case on the merits as prescribed in that act. The Assistant Secretary of the Treasury, on January 12, 1914, replied in substance that, as it appeared that he had been removed without being furnished a copy of the charges, the Department was willing to request the Civil Service Commission to issue a certificate for his reinstatement, and give him a written copy of the charges which led to his separation from the service. In reply to this letter the claimant Wrote the Secretary of the Treasury renewing his request for reinstatement. On February 10, 1914, Norris’ rein-
NORRIS v. UNITED STATES. 79
77.	Opinion of the Court.
statement was requested in order that he might be furnished with a copy of the charges and allowed to answer them. On the same day the Assistant Secretary wrote the Collector at Baltimore enclosing a letter reinstating the plaintiff, and adding that upon Norris subscribing to the oath of office he would be suspended pending an investigation of the charges. On February 12, 1914, the Treasury Department requested the Civil Service Commission to issue the necessary certificate for the reinstatement of Norris as Inspector of Customs in order that he might be given the opportunity to answer the charges against him. On February 20, 1914, by direction of the Secretary of the Treasury, Norris was reinstated, and appointed an Inspector of Customs in order that he might be given an opportunity to answer the charges which resulted in his removal. Plaintiff executed the oath of office on March 5, 1914. He was suspended from duty and pay, charges were preferred against him. On March 9, 1914, Norris answered the charges. On April 25, 1914, the Treasury Department, by the Assistant Secretary of the Treasury, advised that the Department was of the opinion that the charges and the evidence against the plaintiff were not sufficient to have warranted his dismissal, stating, however, that, inasmuch as there was no vacancy at that time in the force of customs inspectors, plaintiff’s services could not be utilized; that the position of inspector was created in order that he might take the oath of office so that the charges against him could be tried; that his services would therefore necessarily be dispensed with; the order would be effective upon receipt of the letter by the Collector of Customs at the port of Baltimore, and the position abolished; that plaintiff was eligible for reinstatement within one year, provided his services could be utilized and he should be properly recommended for an existing vacancy. On May 27, 1914, a letter was written by the President of the National Asso-
80
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
ciation of Customs Inspectors asking for the reinstatement of Norris. On June 6, 1914, the Assistant Secretary of the Treasury responded that there was no position of inspector vacant at Baltimore; that Norris was entitled to reinstatement, and, should a vacancy occur, he would be given consideration. On February 18, 1915, the plaintiff wrote a letter to the Secretary of the Treasury asking for reinstatement to the position of inspector of customs.
In the additional findings it appears that after the plaintiff was dismissed he remained a few months in Baltimore, and then went to a farm in Virginia; that he occasionally visited in Baltimore, and that no facts appear to show that he was not ready, willing, and able to perform the duties of the office up to and including May 20, 1916, and at the time of the taking of his deposition in August, 1919.
The question is, upon these findings, and the additional findings: Is the claimant entitled to recover the compensation which is sought by his petition in this case? It appears that during the period of eleven months after his suspension without compliance with the statute, plaintiff took no steps to vindicate his right to the office, nor to recover the compensation incident to the same.
We need not repeat the discussion in the Nicholas Case, No. 10, just decided, of the principles which we deem controlling in cases of this character. The question here is: Did Norris use reasonable diligence, in view of the obligation placed upon him, notwithstanding his wrongful removal, to assert his right to the compensation attached to the office? It is true that it has been found that he was ready, willing, and able to discharge its duties, but no fact is found explaining his failure to assert his right to the office, or its emoluments, for the period of eleven months and a little over. He did not, as did Wickersham (201
NORRIS v. UNITED STATES. 81
77.	Opinion of the Court.
U. S. 390), promptly demand a restoration to the office, nor make any claim to its emoluments because the power of removal had been exercised without giving him the opportunity for a hearing which the statute affords. Each case must be decided upon its own facts, and we are of opinion that the findings here do not disclose that exercise of reasonable diligence on Norris’ part which the law imposes upon him as a duty if he would recover compensation for services in an office which the Government might fill with another, or otherwise adjust its service so as to dispense with the service of the plaintiff. Public policy requires reasonable diligence upon the plaintiff’s part, which we think the findings in this record do not disclose.
It is contended that claimant is entitled to recover after his reinstatement, although the office, which the findings show was created for the purpose of affording Norris a hearing, was immediately abolished. If the office was legally abolished, it follows, of course, that the courts cannot afford him relief. The power of the Secretary of the Treasury to determine the number of inspectors to be employed cannot be reasonably questioned. Nor can the power of removal be doubted. It is included in the power to appoint, the statute not otherwise providing. Burnap v. United States, 252 U. S. 512, 515. The objection urged upon our attention is that the order was made by an Assistant Secretary. We have no doubt of the authority of the Assistant Secretary of the Treasury to take this action. Section 245 of the Revised Statutes provides : “ The Assistant Secretaries of the Treasury shall examine letters, contracts, and warrants prepared for the signature of the Secretary of the Treasury, and perform such other duties in the office of the Secretary of the Treasury as may be prescribed by the Secretary or by law.” Section 161 of the Revised Statutes gives to the
82
OCTOBER TERM, 1921.
Syllabus.
257 U. S.
heads of the Departments the right to prescribe regulations, not inconsistent with law, for the government of their respective departments, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. Moreover, the action of the Assistant Secretary in this case was reduced to writing and became a part of the archives of the Department. It does not appear to have been modified, nor in any way changed by the Secretary. There is nothing in the record to show that the action of the Assistant Secretary did not have the full sanction and approval of the Secretary. Under such circumstances the act of the Assistant Secretary must be presumed to be within the scope of the authority which the Secretary conferred upon his Assistant. McCollum v. United States, 17 Ct. Clms. 92.
We are of opinion that after the order restoring Norris for the purpose of a hearing by creating a place for him and abolishing the office after the hearing there can be no recovery. It follows that the judgment of the Court of Claims must be
Affirmed.
EBERLEIN v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 12. Argued October 5, 1921.—Decided November 7, 1921.
E, having been removed by the Secretary of the Treasury from a place in the customs service after due hearing upon charges, was later reinstated by the same authority, pursuant to an order of the President based on further investigation and findings that the charges were not just.
Held: (1) That the removal was an act of discretion not subject to revision by the court. P. 84.
EBERLEIN v. UNITED STATES. 83
82.	Opinion of the Court.
(2)	That the power of appointment and removal in the case was constitutionally lodged in the Secretary of the Treasury; the President’s order could not and was not intended to operate as a reinstatement, but merely restored E’s eligibility to appointment. P. 84.
(3)	E had no claim to the salary between the dates of his removal and his reinstatement by the Secretary.
53 Ct. Clms. 466, affirmed.
Appeal from a judgment of the Court of Claims, in an action to recover salary accruing between the dates of appellant’s removal from an office and his reinstatement. See also, ante, 71, 77.
Mr. William E. Russell, with whom Mr. L. T. Michener and Mr. P. G. Michener were on the briefs, for appellant.
Mr. Assistant Attorney General Riter, Mr. Assistant Attorney General Davis and Mr. William D. Harris, for the United States, submitted.
Mr. Justice Day delivered the opinion of the court.
In this case the plaintiff, who was a United States Storekeeper in the customs service at the port of New York, brought suit in the Court of Claims to recover from the United States the sum of $4,164.44, that being the salary of the office from the date of his removal therefrom to the date of his reinstatement. The Court of Claims decided against him. 53 Ct. Clms. 466. On May 9, 1910, he was suspended without pay pending an investigation of written charges preferred against him. He had a hearing upon his answer to the charges, and on May 26, 1910, was removed from office. The charges involved the acceptance of bribes in the matter of underweighing cargoes of sugar, and thereby defrauding the Government. * In May, 1912, the Attorney General reinvestigated claimant’s record, and reported that in his judgment the charges were 6267°—22--------11
84
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. 8.
not sustained, and the Surveyor of the port made a similar report. On December 3, 1912, the’President of the United States by an executive order of that date in pursuance of further investigation directed the reinstatement of the plaintiff. On December 16, 1912, he was reinstated.
There can be no question from the findings in this case that the plaintiff had the benefit of a hearing according to the regulations then in force. The Court of Claims in its opinion stated that the subsequent investigation established his innocence of the charges made against him. But the things required by law and regulations, were done, and the discretion of the authorized officers was exercised as required by law. It is settled that in such cases the action of executive officers is not subject to revision in the courts. Keim v. United States, 177 U. S. 290.
The order of the President could not have the effect of reinstating the plaintiff to the office from which he was removed. The power of appointment and removal was in the Secretary of the Treasury. It was within the power of Congress to confer this authority on the Secretary. Burnap v. United States, 252 U. S. 512.
The President’s order, while reciting the wrong which had been done to the plaintiff, could have no more effect than to reinstate him to eligibility for reappointment in the Government service. Indeed, such was found to be the import of the order itself, and fairly so. It provides that Eberlein may be reinstated in any appropriate classified position in the Customs Service in New York, without regard to the length of time he has been separated from the service. That was the purpose of the order, although it goes on to say, doubtless in fairness to Eberlein, that he was separated from the service on May 26, 1910, and charged with having accepted money from importers for undenweighing merchandise; that upon rehearing, the Surveyor of Customs of New York was of the opinion that
PENNSYLVANIA R. R. CO. v. WEBER. 85
82.	Statement of the Case.	<
the charges had not been sustained, and that the Attorney General recommended that the plaintiff be restored to the office from which he had been dismissed. It is apparent that the President’s order was intended to have no more effect than to restore him to eligibility for appointment. Such was the view of the Court of Claims, and we find no error in its judgment.
Affirmed.
PENNSYLVANIA RAILROAD COMPANY v. WEBER, SURVIVING PARTNER OF JACOBY AND WEBER, COPARTNERS, TRADING UNDER THE FIRM NAME OF W. F. JACOBY & COMPANY.
ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 210. Argued October 13, 1921.—Decided November 7, 1921.
1.	In an action to enforce reparation awarded a shipper by the Interstate Commerce Commission as damages resulting from unfair practices of the defendant carrier in the distribution of coal cars, the findings and order of the Commission are prima facie evidence of the facts therein stated. P. 90.
2.	In such an action the award, though its amount appear by the Commission’s own record to have been calculated upon an erroneous basis, (see s. c. 242 U. S. 89,) may be sustained by evidence before the Commission, supplemented at the trial, tending to prove that damages equal to the award resulted from the unfair practices condemned by the Commission, as shown by its report. P. 91.
269 Fed. Rep. Ill, affirmed.
Error to a judgment of the Circuit Court of Appeals which affirmed a judgment for damages entered upon a verdict in the District Court, in an action to enforce a reparation order of the Interstate Commerce Commission. See s. c. 242 U. S. 89.
86
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
Mr. Henry Wolf Bikie, with whom Mr. Frederic D. McKenney and Mr. Francis I. Gowen were on the brief, for plaintiff in error.
Mr. William A. Glasgow, Jr., for defendant in error.
Mr. Justice Day delivered the opinion of the court.
This cause has been the subject of much and long continued controversy. This is its third appearance in this court. The previous history of the litigation is set out in 242 U. S. 89. The action is based upon a reparation order made by the Interstate Commerce Commission in favor of Jacoby & Company. A recovery was had in the sum awarded by the Commission, with interest. At the first trial plaintiffs did not introduce the record of the testimony before the Commission. The defendant railroad company introduced testimony tending to show that the Commission in making its award of damages had used a table, attached as exhibit 10 to the record of the case, showing a discrimination of the railroad company against the plaintiffs in the distribution of coal cars in times of shortage, and produced a witness who testified that the effect of the use of the percentages in that table as the basis of awarding damages by the Commission was to give plaintiffs the undue preference in the distribution of coal cars which favored shippers had received. That being so, this court held that the recovery of a sum thus arrived at would defeat the purpose of the act to place shippers on a basis of equality. For the refusal of the trial court to give a charge based upon such use of the table the judgment of the Circuit Court of Appeals for the Third Circuit, affirming that of the District Court, was reversed, and the cause remanded for a new trial. The second trial in the District Court resulted in a verdict and judgment for the plaintiffs in the sum awarded by the Commission with interest. 263 Fed. 945. That judgment was affirmed
PENNSYLVANIA R. R. CO. v. WEBER. 87
85.	Opinion of the Court.
by the Circuit Court of Appeals, 269 Fed. Ill, and the case is again here.
We need not repeat the discussion concerning distribution of cars in times of shortage which was held to result in undue advantage. See 242 U. S. supra, pp. 90, 91; Hillsdale Coal & Coke Co. v. Pennsylvania R. R. Co., 19 I. C. C. 362, 363, 364.
At the last trial the testimony before the Commission was put in evidence, with some additional testimony tending to show that plaintiffs had been discriminated against because of the special allotment to the Berwind-White Company of five hundred cars daily; and the sale to it, and to other companies, of a large number of cars in times of car shortage. There was evidence tending to show that but for these discriminations the plaintiffs would have received a sufficient number of cars to furnish them with all they needed during the periods complained of.
The Commission in the report condemned the practice of giving to the Berwind-White Coal Company five hundred cars daily by special allotment, and the selling of the company’s own cars during the same period to favored shippers, thereby diminishing its capacity to supply the coal car requirements of other coal companies along its line.
When the Commission came to assess damages it allowed the plaintiffs $21,094.39 with interest from June 28, 1907. The order on which this award was made is set forth in 242 U. S. supra. Upon the new trial, with the additional testimony and the whole record of the Commission introduced in evidence, the judge, after charging the jury that there might be a recovery if the discriminations alleged and proved resulted in damages in the sum awarded by the Commission, charged:
“ If you should find that the conclusion of the Interstate Commerce Commission that the plaintiff in the year ending April 1, 1905, should have received cars equal in
88
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
capacity to 59.9 per cent, of the aggregate of their mine’s daily rating, and in the period between April 1 and October 18, 1905, cars equal in capacity to 59.6 per cent, of the aggregate of their mine’s daily rating—if you should find that that conclusion was reached or arrived at because of the evidence presented by the plaintiff that the aggregate of the cars placed by the defendant at certain mines which had been selected for the purpose of comparison from those comprised in the region in which the plaintiff’s mine was located, had been equal in the earlier period to 59.9 per cent, and in the later period to 59.6 per cent, of the aggregate ratings of these selected mines, [These being the percentages of cars given to preferred companies as shown in Exhibit 10.] for the basis of the Commission’s conclusion, then the award was an erroneous one, and under those circumstances the finding of the Commission would lose its effect as prima facie evidence, and you would only be justified in finding for the plaintiff if you find that from the other evidence offered before the Commission, either of discrimination through distribution to favored shippers in the Tyrone region or through withholding cars from the Tyrone region, which should have been distributed there, the Commission was justified in arriving at that conclusion. If you find that the Commission was justified in arriving at that conclusion, or are satisfied from that evidence, and that evidence is reinforced by further evidence that the plaintiff has offered in the case, then you would be justified in finding a verdict in favor of the plaintiff, and assessing damages at the amount found by the Commission.
“ If, however, you should find that that was an erroneous finding, then it would be your duty to find to what extent the plaintiff was damaged, I mean in case you find that the plaintiff was actually damaged you would have to find to what extent the plaintiff was actually damaged. If you leave out the evidence before the Commission the
PENNSYLVANIA R. R. CO. v. WEBER. 89
85.	Opinion of the Court.
Court is unable to say that there is any other evidence standing alone which would be sufficient, but the evidence which was before the Commission has all been offered before you, and some additional testimony. The proper basis of damages in that case, if the Commission has not reached the proper basis, would be upon the theory set out in the Commission’s report, but not based on.a comparison between what the favored shippers received and what the plaintiff received.
“ If the plaintiff is entitled to recover and has suffered damages, the measure of damages would be the loss in operating, upon the coal that was actually shipped, through discrimination in favor of other shippers, together with the profits it would have made on the coal they would have been able to ship. The question as to what coal they would have been able to ship is a question for you gentlemen to decide under the evidence in this case. You have had the schedules laid before you, counsel have argued the case to you and explained the grounds on which they respectively base their demand on the one side and the defense on the other, and the questions of fact are for your determination. The defendant has offered in evidence, and has shown you these facts, in regard to the 59.9 per cent, and the 59.6 per cent., and as I have already instructed you, if you find the Commission’s finding was based on that, then the Commission’s finding as to the amount of damages suffered should not be considered by the jury, but the jury will be obliged independently, if they can do so, to arrive at a proper amount of damages.
“ If the jury do not believe that the plaintiffs suffered any damages, or do not believe that they were discriminated against in favor of other shippers, either by the distribution of cars that were sent into this region or by the failure of the railroad company to send cars to the Tyrone region which should have been distributed there, then it
90	OCTOBER TERM, 1921.
Opinion of the Court.	257 IL S.
would be your duty to find a! verdict in favor of the defendant.”
As there was substantial testimony in the record to support the finding of the Commission in awarding damages in a sum at least equal to the amount assessed by it, the principal question to be decided is: May a plaintiff recover in such circumstances in a suit based upon a reparation order of the Interstate Commerce Commission when there is testimony fairly tending to show that recovery was justified because of unfair practices in the distribution of coal cars in times of shortage, which practices, as its report shows, were condemned by the Commission, although it may appear that the sum awarded by the Commission was actually based upon an erroneous calculation?
In determining the rule to govern this situation we must bear in mind that the Commission is empowered to act upon questions of unfair practices and discrimination. Pennsylvania R. R. Co. v. Clark Coal Co., 238 U. S. 456, and the previous cases in this court cited at p. 469. While this is true, when an action is brought upon a reparation order of the Commission, as it may be under § 16 of the Act to Regulate Commerce, its findings and order are prima facie evidence of the facts therein stated. Meeker v. Lehigh Valley R. R. Co., 236 U. S. 412; Second Meeker Case, 236 U. S. 434; Mills n. Lehigh Valley R. R. Co., 238 U. S. 473. These cases have disposed of the question of the right of the defendant to attack the prima facie value of the award, and have dealt with the nature of the award of the Commission in view of the statutory provisions as to its character.
That the Commission used a wrong basis in awarding damages, now that the whole record is before us, admits of no doubt. Indeed, the coincidence in the award made and the use of the percentage table shown in Exhibit No. 10 is difficult to account for except upon the basis pointed
PENNSYLVANIA R. R. CO. v. WEBER. 91
85.	Opinion of the Court.
out by the witness introduced by the defendant, whose testimony was made the basis of the request to charge, the refusal of which led to the reversal of the judgment in 242 U. S. supra.
The defendant in error argues that the Commission could not have used this table because it covers a different period of operation as evidenced by the number of days shown than the Commission found to have been the period covered by the operation of the plaintiffs’ mine. Nevertheless, the coincidence of percentage and award remains, and the conclusion is inescapable that the Commission in determining the sum awarded used percentages which had the effect of placing the plaintiffs on a basis of equality with the favored companies. On the other hand, there is testimony tending to show that had the cars been distributed upon a basis of general equality approved by the Commission, and without resort to practices condemned by it, there would have been cars enough to have furnished plaintiffs with a sufficient number to meet their trade and requirements during the period in question. Under the circumstances here shown, when the case is fairly and fully submitted, as it was in the charge of the judge to the jury, giving a correct basis upon which there might be a recovery of damages, and there is testimony tending to show damages in at least the sum awarded by the Commission, there is no prejudicial error because of the erroneous calculation of the Commission which was the basis of its award.
Other questions are argued, but they are disposed of satisfactorily in the opinion of the Circuit Court of Appeals (269 Fed. supra), and in the opinion of the trial judge upon the motion for a new trial (263 Fed. supra).
It follows that the judgment of the Circuit Court of Appeals must be
Affirmed.
92	OCTOBER TERM, 1921.
’	Syllabus.	257 U.S.
WILSON v. REPUBLIC IRON & STEEL .COMPANY ET AL.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ALABAMA.
No. 21. Argued October 6, 7, 1921.—Decided November 7, 1921.
1.	Whether a District Court into which a case has been removed from a state court may retain the case and proceed to its adjudication, or must remand it to the court whence it came, is a jurisdictional question a decision of which sustaining the jurisdiction may be reviewed here by direct writ of error, under Jud. Code, § 238, after final judgment. P. 95.
2.	A judgment of the District Court dismissing an action after removal, for failure of the plaintiff to pay the costs in an earlier one brought in that court upon the same cause of action, wherein he had taken a voluntary nonsuit, is a final judgment, for purposes of review, even though not a bar to another action. P. 96.
3.	But upon a direct review under Jud. Code, § 238, involving the District Court’s jurisdiction to retain the case after removal, the propriety of its action in dismissing it for failure to pay such costs cannot be considered. P. 96.
4.	The fact that a joinder of a resident defendant, fair on its face, is a fraudulent device to prevent removal, may be shown by a verified petition alleging the facts as distinct from conclusions; and the statements so made must be accepted by the state court as true. P. 97.
5.	After removal, the plaintiff, by motion to remand, plea or answer, may traverse the allegations of the petition, and then the issues so arising must be heard and determined by the District Court, and the petitioning defendant must carry the burden of proof, but, if the plaintiff fail to take issue with them he must be deemed to assent to the truth of what is stated in the petition and the petitioning defendant need not produce any proof to sustain it. P. 97.
6.	Where a petition to remove an action for personal injuries brought by an employee against an employer and a coemployee, aptly and clearly showed that the coemployee was joined without any purpose to prosecute the action in good faith against him and with the purpose of fraudulently defeating the employer’s right of re-
WILSON v. REPUBLIC IRON CO. 93
92.	Opinion of the Court.
moval, held, that a motion to remand for want of jurisdiction merely specifying as grounds that the plaintiff and the coemployee were citizens of the same State and that the object of the removal was to delay the trial, did not put in issue the facts averred in the petition, and that the question whether an employer and a coemployee might be jointly liable, under the state law, for the same injury, although the liability of the one was statutory and of the other at. common law, was irrelevant. P. 98.
7.	The fact that a removal was made for delay does not affect the jurisdiction of the District Court to retain the case. P. 99.
Affirmed.
Direct writ of error to determine the jurisdiction of the District Court to retain a case removed from a state court.
Mr. W. A. Denson for plaintiff in error.
Mr. Augustus Benners, for defendants in error, submitted.
Mr. Justice Van Devanter delivered the opinion of the court.
This was an action by an employee against his employer and a coemployee to recover for injuries sustained by the plaintiff by reason, as was alleged, of his conforming to an order or direction negligently given to him by the coemployee and to which he was bound to conform. The injuries were sustained in Alabama and the action was brought in a court of that State. The employer’s liability was based on an Alabama statute, Ala. Code, 1907, § 3910, cl. 3, and that of the coemployee on the common law. The complaint was in a single count and treated the defendants as jointly liable.
In due time the employer presented to the state court a petition and bond for the removal of the cause to the District Court of the United States, and the removal was ordered and completed. The petition was properly veri-
94
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
fied and as grounds for the removal stated in substance, that the amount in controversy exceeded three thousand dollars, exclusive of interest and costs; that the plaintiff and the employer were citizens of different States, the former of Alabama and the latter of New Jersey; that the controversy between them was separable and properly could be fully determined without the presence of any other party; that the coemployee was a citizen of Alabama and was wrongfully and fraudulently joined as a defendant with the sole purpose of preventing a removal of the cause to the District Court; that it was not the purpose of the plaintiff to prosecute the action in good faith against the coemployee and the joinder of the latter was merely a sham or device to prevent an exercise of the employer’s right of removal; that the plaintiff had brought an earlier action in the District Court against the employer alone to recover for the same injuries and on the trial had taken a voluntary nonsuit because it appeared that he probably could not recover in that court on the evidence presented; that soon thereafter the present action, with the coemployee joined as a defendant, was begun in the state court; that the plaintiff personally and intimately knew every person who could by any possible chance have caused his injuries and knew the coemployee was not in any degree whatsoever responsible therefor; and that, as the plaintiff well knew all along, the coemployee was not guilty of any joint negligence with the employer, was not present when the plaintiff’s injuries were received, and did no act or deed which caused or contributed to such injuries.
Shortly after the removal the plaintiff filed in the District Court a motion to remand the cause to the state court. This motion challenged the jurisdiction of the District Court on the grounds that one of the defendants, the coemployee, was a citizen of the same State as the plain-
WILSON v. REPUBLIC IRON CO. 95
92.	Opinion of the Court.
tiff and that the removal was taken for the purpose of delaying the trial of the cause; but the plaintiff did not by the motion or in any wise traverse or take issue with any of the allegations of the petition for removal. The motion was heard on the record as it then stood with an admission that the citizenship of the parties and the amount in controversy were as stated in the petition for removal, neither party producing any affidavits or other evidence. As a result of the hearing the motion was denied because, as the order recites, the court was of opinion that “ the grounds of said motion are not well taken.” The plaintiff excepted. Then, on the motion of the employer, the court made an order requiring the plaintiff, within a fixed time, to pay the costs in the earlier action wherein he had taken a voluntary nonsuit,—in default of which the present action was to be dismissed. The plaintiff excepted to this order and also failed to comply with it. After the time for compliance had passed the court, conforming to the prior order, entered a judgment of dismissal.
To obtain a review of the ruling on the jurisdictional question presented by the motion to remand the plaintiff sought and obtained this direct writ of error; and in that connection the District Court certified that the jurisdictional question presented to and decided by it was whether in the circumstances already stated it had jurisdiction to retain the cause and proceed to a determination thereof in regular course, or was required to remand the same to the state court.
Our power, on this direct writ, to review the ruling on the question indicated, although challenged, is altogether plain.
Section 238 of the Judicial Code provides for a review by us, on a direct appeal or writ of error, of the decision of a District Court “ in any case in which the jurisdiction of the court is in issue,” and then adds, “ in which case the
96	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision.”
Whether a District Court into which a case has been removed from a state court may retain the same and proceed to its adjudication or must remand it to the court whence it came is a jurisdictional question the decision of which, where the jurisdiction is sustained,1 may be reviewed under that section. Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 92, 96; McAllister v. Chesapeake & Ohio Ry. Co., 243 U. S. 302, 305.
Of course, the review can be had only after a final judgment. McLish v. Roff, 141 U. S. 661. But a judgment of dismissal, such as is shown here, is a final judgment. That it leaves the merits undetermined and may not be a bar to another action does not make it interlocutory. It effectually terminates the particular case, prevents the plaintiff from further prosecuting the same and relieves the defendant from putting in a defense. This gives it the requisite finality for the purposes of a review. Wecker v. National Enameling & Stamping Co., 204 U. S. 176, 181-182; Detroit & Mackinac Ry. Co. v. Michigan Railroad Commission, 240 U. S. 564, 570; McAllister v. Chesapeake & Ohio Ry. Co., supra; Colorado Eastern Ry. Co. v. Union Pacific Ry. Co., 94 Fed. 312.
The jurisdictional question is all that is before us. The propriety of the ruling respecting the costs of the prior action is challenged in the assignments of error but cannot be considered. The plaintiff was at liberty to take the whole case to the Circuit Court of Appeals or to bring it here on the question of jurisdiction alone. He took the latter course and by doing so waived all right to a review of the ruling on the other matter. McLish v. Roff, supra;
1 If the cause be remanded the order is not open to review. Jud. Code, § 28; Missouri Pacific Ry. Co. v. Fitzgerald, 160 U. S. 556, 580-583; German National Bank v. Speckert, 181 U. S. 405.
WILSON v. REPUBLIC IRON CO. 97
92.	Opinion of the Court.
United States v. Jahn, 155 U. S. 109; Robinson n. Caldwell, 165 U. S. 359; Hennessy v. Richardson Drug Co., 189 U. S. 25, 33.
A civil case, at law or in equity, presenting a controversy between citizens of different States and involving the requisite jurisdictional amount, is one which may be removed from a state court into the District Court of the United States by the defendant, if not a resident of the State in which the case is brought, § 28 Jud. Code; and this right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. Wecker v. National Enameling & Stamping Co., 204 U. S. 176, 185-186. If in such a case a resident defendant is joined, the joinder, although fair upon its face, may be shown by a petition for removal to be only a sham or fraudulent device to prevent a removal; but the showing must consist of a statement of facts rightly leading to that conclusion apart from the pleader’s deductions. Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U. S. 146, 152. The petition must be verified, § 29 Jud. Code, and its statements must be taken by the state court as true. Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, 316. If a removal is effected, the plaintiff may, by a motion to remand, plea or answer, take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the District Court, Stone v. South Carolina, 117 U. S. 430, 432; Chicago, Rock Island & Pacific Ry. Co. v. Dowell, 229 U. S. 102, 113; Chesapeake & Ohio Ry. Co. v. Cockrell, supra, pp. 152, 154, and at the hearing the petitioning defendant must take and carry the burden of proof, he being the actor in the removal proceeding. Carson v. Dunham, 121 U. S. 421, 425-426. But if the plaintiff does not take issue with what is stated in the petition, he must be taken as assenting to its truth and the petitioning defendant
98
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
need not produce any proof to sustain it. Kentucky v. Powers, 201 U. S. 1, 33-34, 35.1
Here but for the joinder of the coemployee the case plainly was one which the employer was entitled to have removed into the District Court on the ground of diverse citizenship; and, if the showing in the petition for removal be taken as true, it is apparent that the coemployee was joined as a defendant without any purpose to prosecute the action in good faith as against him and with the purpose of fraudulently defeating the employer’s right of removal. This is the rational conclusion from the facts appropriately stated, apart from the pleader’s deductions. The petition was properly verified and the plaintiff, although free to take issue with its statements, did not do so. He therefore was to be taken as assenting to their truth, relieving the employer from adducing evidence to sustain them, and merely challenging their sufficiency in point of law. We hold they were sufficient, in that they disclosed that the joinder was a sham and fraudulent and hence was not a legal obstacle to the removal or to the retention of the cause by the District Court*
The briefs disclose that the parties differ as to whether the local law gives any color for treating the employer and the coemployee as jointly liable,—the asserted liability of one resting on a statute and that of the other on the common law. But we do not find it necessary to solve this question. As the joinder was a sham and fraudulent— that is, without any reasonable basis in fact and without any purpose to prosecute the cause in good faith against the coemployee—the result must be the same whether the
1And see Dow v. Bradstreet Co., 46 Fed. .824, 828; Durkee v. Illinois Central R. R. Co., 81 Fed. 1; Dishon v. Cincinnati, New Orleans & Texas Pacific Ry. Co., 133 Fed. 471, 474-476; Donovan v. Wells, Fargo & Co., 169 Fed. 363, 368-369; Hunter v. Illinois Central R. R. Co., 188 Fed. 645, 648; Jones v. Casey-Hedges Co., 213 Fed. 43, 46-47.
CITIZENS NATIONAL BANK v. DURR. 99
92.	Syllabus,
local law makes for or against a joint liability. See Wecker v. National Enameling & Stamping Co., supra, p. 183; Chicago, Rock Island & Pacific Ry. Co. v. Schwy-hart, 227 U. S. 184, 194.
In his motion to remand the plaintiff asserted that the removal was obtained for purposes of delay. But this had no jurisdictional bearing, no attempt was made to prove it and it is not relied on here.
We think the District Court rightfully sustained its jurisdiction under the removal.
Judgment affirmed.
CITIZENS NATIONAL BANK OF CINCINNATI, ADMINISTRATOR OF ANDERSON, v. DURR, AS FORMER AUDITOR, ET AL.
ERROR AND CERTIORARI TO THE SUPREME COURT OF THE STATE OF OHIO.
No. 27. Argued October 7, 1921.—Decided November 7, 1921.
1.	Where objection to a tax imposed under general state statutes was limited to a claim of constitutional immunity for the particular subject taxed, without drawing in question the validity of the statutes as construed or of the authority exercised under the State in imposing the tax, a judgment sustaining the tax is reviewable by certiorari but not by writ of error, under Jud. Code, § 237, as amended. P. 106.
2.	A constitutional ground advanced for the first time in a petition for rehearing, presented to a state Supreme Court and denied without reasons given, comes too late to raise a question for review by this court. P. 106.
3.	A membership in the New York Stock Exchange, although partaking of the nature of a personal privilege and assignable only with qualifications, is a valuable property right subject to property taxation. P. 108.
4.	Whether such a membership, when held by a resident of Ohio, is subjected to taxation by the Ohio taxing laws, is a question of state law determinable by the Supreme Court of that State. P. 108.
6267°—22---12
100	OCTOBER TERM, 1921.
Argument for Plaintiff in Error. 257 U. S.
5.	Since a membership carries peculiar and valuable privileges, not confined to the real estate of the Exchange in New York, which enable a nonresident member to conduct a lucrative business in the State of his residence through other members in New York, his membership is taxable as intangible personal property at his domicile. P. 108. Louisville & Jeffersonville Ferry Co. n. Kentucky, 188 U. S. 385, distinguished.
6.	Taxation by two States upon identical or closely related property interests falling within the jurisdiction of both is not forbidden by the Fourteenth Amendment. P. 109.
7.	A discrimination, in imposing a tax in Ohio on a membership in the New York Stock Exchange while exempting memberships in a local stock exchange, which may have been due to mere accident or negligence of subordinate officials, or have been based upon some fair reason, the presumption of which was not rebutted, held not to render the tax invalid under the Equal Protection Clause. P. 109.
8.	The fact that non-resident members of the New York Stock Exchange may deal in its securities through other members for less commissions than are charged non-members, affords a reasonable ground for taxing the privilege in the one case and not in the other. P. 110.
9.	A tax on a membership in the New York Stock Exchange employed by an Ohio broker in executing orders for his Ohio clients through the exchange in New York, held not an unconstitutional burden on interstate commerce. P. 110.
100 Oh. St. 251, affirmed.
Review of a judgment of the Supremte Court of Ohio sustaining a tax in a suit brought by Anderson to enjoin its enforcement.
Mr. Murray Seasongood for plaintiff in error and petitioner.
A voluntary association like this has no technical name or place in the law. Each member does his own business and is not interested in the business done by any other member. The Exchange, as such, does no business; there are no profits or losses to be divided. Although the Exchange owns property, the ownership is a mere incident
CITIZENS NATIONAL BANK v. DURR. 101
99.	Argument for Plaintiff in Error.
and not the main object of the association. The member has no severable property interest in it, nor a right to any proportionate part on withdrawing. Substantially, the whole property of the association is the Exchange real estate, consisting of its land and the building in New York City. The title to this land and building is in a New York corporation, of which the entire capital stock is beneficially owned by the Exchange. This method of holding the real estate is adopted in order to avoid difficulty of conveying the land.
A seat or membership is a species of incorporeal property, a personal, individual right to exercise a certain calling in a certain place, but without the attributes of descendibility or assignability characteristic of other species of property. It cannot be attached or seized on execution, being, in substance, a mere license to buy and sell.
A privilege inseparably connected with real estate should be regarded, in taxation statutes, as in the nature of real estate. § 5322, Ohio Code.
The membership is exactly analogous to the ferry franchise considered in Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385. See Currier n. Studley, 159 Mass. 17, 24.
Whether a personal right to go on certain real estate at certain hours only and transact there, either in person or by others having the same right, business in a limited class of securities, subject to rules prescribed by the governing body of the owners of the real estate, is technically an easement, a franchise, a private right of way or way in gross, the substantial rights, by whatever name called, are inseparably connected with real estate, just as much as was the ferry right in the Jeffersonville Ferry Case. Crops growing in the ground are personal property and leases for years are things personal or chattels real, yet they certainly relate to real estate. So of an estate pur autre vie.
102
OCTOBER TERM, 1921.
Argument for Plaintiff in Error.
257 U. S.
Fixtures, title deeds, family portraits, money, slaves and other heirlooms are personal property, but were treated sometimes as realty. 2 Bouvier, 14th ed., 414. The method of conveyance does not determine the essence of the thing. Immovables and movables were the divisions in the civil law of what we call real and personal property. Ibid.
Rogers v. Hennepin County, 240 U. S. 184, and Goetz-man v. Minnesota Tax Commission, 136 Minn. 260, are conclusive that what gives a membership value is the right, exercisable where the Exchange is located and that that, therefore, fixes the situs for taxation. See Thompson v. Adams, 93 Pa. St. 55; Pancoast v. Gowen, 93 Pa. St. 66; Page v. Edmunds, 187 U. S. 596; Barclay v. Smith, 107 Ill. 349; Lowenberg n. Greenebaum, 99 Cal. 162; London & Canada Loan, etc. n. Morphy, 10 Ont. Rep. 86; Ketcham v. Provost, 141 N. Y. S. 437; Weston v. Ives, 97 N. Y. 222; Lemmon v. Feitner, 167 N. Y. 1; Baltimore v. Johnson, 96 Md. 767; San Francisco v. Anderson, 103 Cal. 69; Caldicott v. Griffiths, 8 Exch. 898; Belton v. Hatch, 109 N. Y. 593; White v. Brownell, 4 Abb. Pr., N. S., 162; s. c. 3 Abb. Pr., N. S., 324; In re Hurlbutt Hatch & Co., 135 Fed. 504; In re Stringer, 253 Fed. 352.
These cases recognize that a membership in the Exchange is unquestionably property, but they also recognize that it is unique and cannot be realized on in the way that ordinary real or personal property is subjected to seizure,—all rights must be worked out through the New York Stock Exchange and subject to its constitution and conditions. These cases all tend to show that the situs of the property is where the Exchange is located and not elsewhere. Cf. Standard Gas Power Co. of Georgia v. Standard Gas Power Co. of Delaware, 224 Fed. 990; Murphy v. Ford Motor Co., 241 Fed. 134.
While this privilege is not granted by the State of New York, as is the franchise of a New York corporation, the
CITIZENS NATIONAL BANK v. DURR. 103
99.	Argument for Plaintiff in Error.
right conferred by the Committee on Admissions is to do business in New York, just as much as if the right had been conferred by the State of New York. It is immaterial whether the member does this business in person, or through others on a basis more favorable than such others would do the business for non-members. The business, in either case, is transacted on the floor of the Exchange in New York City. If no business is done, no income is earned. Nor has plaintiff in error any muniment of title in Ohio, or elsewhere.
In the case of stocks, the owner has power at his domicile to effect a sale or pledge, to will them specifically, to receive, at his domicile, earnings of the corporation, and he has a proportionate share of the corporate assets. He has a stock certificate, which is a negotiable document of title, personal property, in many States, subject to seizure by execution.
In the case of bonds, the owner has a right to a definite income, at his domicile, without the necessity of effort on his part to produce such income. Even if the bond is not kept in the State of his domicile, it is readily removable thereto, at any time; whereupon a complete enjoyment of it there will be in the owner. In the case of money or bank accounts, the same is true. The owner is in complete control and can transfer the account from one State to another by signing his name to a check.
But, in the case at bar, plaintiff, to acquire his membership, paid $60,000 in 1911. As there are 1,100 members and less than $6,000,000 of assets, it is obvious the plaintiff did not pay $60,000 to get an interest in these assets, since his proportionate share would be less than $5,500 and since the Exchange has not made and does not make any distribution of assets to members.
It is contended by us that a privilege inseparably connected with real property is in the nature of real property for taxation purposes. If this membership is to be classed
104
OCTOBER TERM, 1921.
Argument for Plaintiff in Error.
257 U. S.
as intangible personal property, it is not such as may be taxed at the State of domicile, as other intangible property may be, because this intangible right has a permanent situs in New York. Cream oj Wheat Co. v. Grand Forks, 253 U. S. 325.
The plaintiff is taxed because of a mere incident, on the whole value of his membership, the substantial value of which, as the court concedes, is doing business in another State, which may not be taxed. This is a mere “ quibble ’’ (Selliger v. Kentucky, 213 U. S. 200, 206), analogous to taxing a corporation doing both intrastate and interstate business on its intrastate business, so that taxation of the interstate business done will also be included. The decisions of this court have forbidden that. International Paper Co. v. Massachusetts, 246 U. S. 135; Delaware, Lackawanna & Western R. R. Co. v. Pennsylvania, 198 U. S. 341.
The court below was in error in assuming that the “ incident ” of division of commissions is business done in Ohio. A member in Ohio divides the fixed commission earned for transacting business in New York with the member in New York transacting the business. A nonmember in Ohio may not divide the commission earned by his correspondent in transacting the business, but he can have the business transacted, nevertheless, and earn a commission. In neither case does the Ohio broker execute transactions in Ohio. That is impossible. Both send on orders, to be executed by a member of the Exchange in New York. The orders cannot be executed except on the floor of the Exchange.
An Ohio citizen may own real estate in New York and enjoy increased credit from general knowledge of his ownership of it. He may derive rents in Ohio from such real estate, but, if such rents were taxable, surely that would not permit taxation by Ohio of the real estate. Whatever fraction of commission the member earns from orders
CITIZENS NATIONAL BANK v. DURR. 105
99.	Argument for Plaintiff in Error.
forwarded to New York is taxed as money or credits in Ohio. The fact that he earns such fractions does not justify taxing his membership in the New York Exchange, any more than it would justify taxing real estate he might own in New York or justify taxing a non-member broker on the membership in the New York Exchange of the broker who executes his orders.
Plaintiff, subjected to unreasonable, discriminatory and multiple taxation, is deprived of the equal protection of the laws.
The tax sought to be levied is a direct burden on interstate commerce. Plaintiff transacted no business in Ohio by virtue of his membership in the Exchange. Securities listed on that Exchange must be bought and sold there and not elsewhere, under penalty of expulsion for non-compliance with the rule requiring this. The Ohio tax is said to be a property tax. Applied, however, to the privilege here in question, it is a tax levied on the privilege, and the privilege, if any business is done in Ohio, is to do only interstate commerce. Union Tank Line Co. v. Wright, 249 U. S. 275.
The decision of the court below denied plaintiff due process of law and the equal protection of the laws. It amounted to so gross a mistake as not to be possible, if well recognized rules of decision and precedents had been followed. Chicago Life Insurance Co. v. Cherry, 244 U. S. 25, 30. Again, the settled course of construction of the Ohio taxing statutes had become a rule of property conferring, for the years preceding, immunity from taxation on this privilege, within the spirit of Gelpcke v. Dubuque, 1 Wall. 175; Louisiana v. Pilsbury, 105 U. S. 278; Muhl-ker v. New York & Harlem R. R. Co., 197 U. S. 544; Milwaukee Electric Ry. Co. v. Milwaukee, 252 U. S. 100; Chisholm v. Shields, 67 Oh. St. 374.
Mr. Charles S. Bell, with whom Mr. Louis H. Capelie was on the brief, for defendants in error and respondents.
106	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
Mr. Justice Pitney delivered the opinion of the court.
A suit for injunction brought in a state court by Anderson against Durr, then Auditor, and Cooper, then Treasurer, of Hamilton County, Ohio, raised the question whether a certain property tax imposed under authority of the State of Ohio upon plaintiff, a resident of that State, by reason of his owning a membership—figuratively termed a “ seat ”—in the New York Stock Exchange, infringed his rights under the commerce clause of the Constitution of the United States or the “ due process of law ” or “ equal protection ” provisions of the Fourteenth Amendment. His assault upon the tax was sustained by the court of first instance (20 Ohio N. P., N. S., 538), but overruled by the Court of Appeals (29 0. C. A. 465), and finally by the Supreme Court of the State (100 Ohio St. 251). Until the decision of the latter court the federal right had been asserted merely as a claim of immunity from the tax under the constitutional provisions referred to, without drawing in question the validity of any statute of, or authority exercised under the State on the ground of their being repugnant to those provisions. After the final decision, in an application to the Supreme Court for a rehearing, plaintiff for the first time asserted that the decision, if adhered to, rendered the Ohio taxation statutes invalid because of such repugnance. This application was denied without reasons given, and hence must be regarded as having come too late to raise any question for review by this court. Loeber v. Schroeder, 149 U. S. 580, 585; Fullerton v. Texas, 196 U. S. 192,193; Corkran Oil Co. n. Arnau-det, 199 U. S. 182, 193. Therefore a writ of error, allowed by the chief justice of the Supreme Court, must be dismissed because not the proper mode of review under § 237 Judicial Code, as amended by Act of September 6, 1916, c. 448, 39 Stat. 726. But an application for the allowance of a writ of certiorari, made to this court under
CITIZENS NATIONAL BANK v. DURR. 107
99.	- Opinion of the Court.
the same section, consideration of which was postponed until the hearing on the writ of error, will be granted, and the case determined thereunder.
The essential facts are as follows: Plaintiff holds a membership or seat in the New York Stock Exchange for which he paid $60,000, and which carries valuable privileges and has a market value for the purposes of sale. The Exchange is not a corporation or stock company, but a voluntary association consisting of 1100 members, governed by its own constitution, by-laws and rules, and holding the beneficial ownership of the entire capital stock of a New York corporation which owns the building in which the business of the Exchange is transacted, with the land upon which it stands, situated in the City of New York and having a value in excess of $5,000,000. A member has the privilege of transacting a brokerage business in securities listed upon the Exchange, but may personally buy or sell only in the Exchange building. Membership is evidenced merely by a letter from the secretary of the Exchange notifying the recipient that he has been elected to membership. Admissions to membership are made on the vote of the Committee on Admissions. Membership may be transferred only upon approval of the transfer by the committee, and the proceeds are applied first to pay charges and claims against the retiring member arising under the rules of the Exchange, any surplus being paid to him. On the death of a member, his membership is subject to be disposed of by the committee; but his widow and descendants are entitled to certain payments out of a fund known as the “ Gratuity Fund.” In the business of brokers in stocks and bonds a differentiation is made between members of the Exchange and nonmembers, in that business is transacted by members on account of other members at a commission materially less than that charged to non-members. A firm having as a general partner a member of the Exchange is entitled to
108	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
have its business transacted at the rates prescribed for members.
That a membership held by a resident of the State of Ohio in the Exchange is a valuable property right, intangible in its nature but of so substantial a character as to be a proper subject of property taxation, is too plain for discussion. That such a membership, although partaking of the nature of a personal privilege and assignable only with qualifications, is property within the meaning of the bankrupt laws, has repeatedly been held by this court. Hyde v. Woods, 94 U. S. 523, 524r-525; Sparhawk v. Yerkes, 142 U. S. 1, 12; Page v. Edmunds, 187 U. S. 596, 601. Whether it is subjected to taxation by the taxing laws of Ohio, is a question of state law, answered in the affirmative by the court of last resort of that State, by whose decision upon this point we are controlled. Clement National Bank v. Vermont, 231 U. S. 120, 134.
The chief contention here is based upon the due process of law provision of the Fourteenth Amendment: it being insisted that the privilege of membership in the Exchange is so inseparably connected with specific real estate in New York that its taxable situs must be regarded as not within the jurisdiction of the State of Ohio. Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385, is cited. It is very clear, however, as the Supreme Court held, that the valuable privilege of such membership is not confined to the real estate of the Stock Exchange; that a member has a contractual right to have the association conducted in accordance with its rules and regulations, and, incidentally, has the right to deal through other members on certain fixed percentages and methods of division of commissions; that this right to secure the services of other members and to “ split commissions ” is a valuable right by which plaintiff in Cincinnati may properly hold himself out as a member entitled to the privileges of the Exchange, denied to non-members; and
CITIZENS NATIONAL BANK v. DURR. 109
99.	Opinion of the Court.
that thus he is enabled to conduct from and in his Cincinnati office a lucrative business through other members in New York. The court held, and was warranted in holding, that the membership is personal property, and being without fixed situs has a taxable situs at the domicile of the owner. Mobilia sequuntur personam. See Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 205. The asserted analogy to Louisville & Jeffersonville Ferry Co. v. Kentucky, supra, cannot be accepted. That decision related to a public franchise arising out of legislative grant, held to be an incorporeal hereditament in the nature of real property and to have no taxable situs outside the granting State. It did not involve the taxation of intangible personal property. See Hawley v. Malden, 232 U. S. 1, 11 ; Cream of Wheat Co. v. Grand Forks, 253 U. S. 325, 328.
Nor is plaintiff’s case stronger if we assume that the membership privileges exercisable locally in New York enable that State to tax them even as against a resident of Ohio. (See Rogers v. Hennepin County, 240 U. S. 184, 191.) Exemption from double taxation by one and the same State is not guaranteed by the Fourteenth Amendment (St. Louis Southwestern Ry. Co. v. Arkansas, 235 U. S. 350, 367-368) ; much less is taxation by two States upon identical or closely related property interests falling within the jurisdiction of both, forbidden. Kidd v. Alabama, 188 U. S. 730, 732; Hawley v. Malden, 232 U. S. 1, 13 ; Fidelity & Columbia Trust Co. v. Louisville, 245 U. S. 54, 58.
That plaintiff is denied the equal protection of the laws, within the meaning of the Fourteenth Amendment, cannot be successfully maintained upon the record before us. The argument is that other brokers in the same city are not taxed upon the value of their memberships in the local stock exchange, nor upon the privilege of doing business in New York Stock Exchange securities. As to the
110	OCTOBER TERM, 1921.
Holmes, Van Devanter and McReynolds, JJ., doubting. 257 U. S.
local exchange memberships, it may be that the failure to tax them is but accidental or due to some negligence of subordinate officers, and is not properly to be regarded as the act of the State. If it be state action, there is a presumption that some fair reason exists to support the exemption, not applicable to a membership in the New York Exchange, and plaintiff has shown nothing to overcome the presumption. As to the privilege referred to, it already has been shown that the rights incident to plaintiff’s property interest give him pecuniary advantages over others in the same business. Manifestly this furnishes a reasonable ground for taxing him upon the property right, although others enjoying lesser privileges because of not having it may remain untaxed.
The contention'that the tax constitutes a direct burden upon interstate commerce is groundless. Ordinary property taxation imposed upon property employed in interstate commerce does not amount to an unconstitutional burden upon the commerce itself. Pullman’s Palace Car Co. v. Pennsylvania, 141 U. S. 18, 23; Cleveland, &c. Ry. Co. v. Backus, 154 U. S. 439, 445; Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 700.
Writ of error dismissed.
Writ of certiorari granted. Judgment affirmed.
Mr. Justice Holmes.
The question whether a seat in the New York Stock Exchange is taxable in Ohio consistently with the principles established by this Court seems to me more difficult than it does to my brethren. All rights are intangible personal relations between the subject and the object of them created by law. But it is established that it is not enough that the subject, the owner of the right, is within the power of the taxing State. He cannot be taxed for land situated elsewhere, and the same is true of personal
ALABAMA &c. RY. CO. v. JOURNEY. Ill
99.	Syllabus.
property permanently out of the jurisdiction. It does not matter, I take it, whether the interest is legal or equitable, or what the machinery by which it is reached, but the question is whether the object of the right is so local in its foundation and prime meaning that it should stand like an interest in land. If left to myself I should have thought that the foundation and substance of the plaintiff’s right was the right of himself and his associates personally to enter the New York Stock Exchange building and to do business there. I should have thought that all the rest was incidental to that and that that on its face was localized in New York. If so, it does not matter whether it is real or personal property or that it adds to the owner’s credit and facilities in Ohio. The same would, be true of a great estate in New York land.
As my brothers Van Devanter and McReynolds share the same doubts it has seemed to us proper that they should be expressed.
ALABAMA & VICKSBURG RAILWAY COMPANY ET AL. v. JOURNEY.
ERROR AND CERTIORARI TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI.
No. 55. Argued October 21, 1921.—Decided November 7, 1921.
1.	The order of the Director General of Railroads, prescribing that all suits against carriers while under federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose, was a reasonable exercise of the power conferred by Congress on the President, through the Federal Control Act. P. 114. Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554.
2.	So held, where the action was against the railroad company, in a state court, on a cause which arose before federal control.
122 Miss. 742, reversed.
112	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
Certiorari to a judgment of the Supreme Court of Mississippi affirming a judgment for damages against the present petitioners.
Mr. J. Blanc Monroe, with whom Mr. Monte M. Le-mann and Mr. R. H. Thompson were on the briefs, for plaintiffs in error and petitioners.
Mr. Robert B. Mayes, for defendant in error and respondent, submitted. Mr. J. A. Teat, Mr. Chalmers Potter and Mr. Clayton D. Potter were also on the brief.
Mr. Justice Brandeis delivered the opinion of the court.
On April 30, 1918, Smith Journey sued the Alabama & Vicksburg Railway Company in the Circuit Court for the Second District of Hinds County, Mississippi, for an injury suffered on October 24, 1917. At the time of the accident the railroad was being operated by the company. When suit was brought the railroad was under federal control. The company pleaded in abatement that the plaintiff was not a resident of Hinds County when the alleged injury occurred and that the alleged cause of action did not arise in the district of the county in which suit was brought. And it set up Order No. 18 of the Director General of Railroads, as amended April 18, 1918, which prohibited the institution of suits against railroads under federal control in the court for any district other than that in which the plaintiff had resided or in which the alleged cause of action arose.1 A demurrer to the
1 General Order No. 18. April 9,1918.
Whereas the Act of Congress approved March 21, 1918, entitled, “An Act to Provide for the Operation of Transportation Systems While under Federal Control,” provides (section 10) “ That carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provi
ALABAMA &c. RY. CO. v. JOURNEY. 113
111.	Opinion of the Court.
plea was sustained; the plaintiff then recovered a verdict; and the judgment entered thereon was affirmed by the highest court of the State. 122 Miss. 742. The case was brought here by writ of error. A petition for a writ of certiorari was also filed and consideration of the latter was postponed until the hearing on the writ of error. It is now granted; and the writ of error is dismissed.
The Supreme Court of Mississippi overruled the plea in abatement on the ground that Order No. 18 exceeded the powers conferred by Congress on the President and by him on the Director General. Whether the state court erred in so holding is the only question before us. That it
sions of this Act or with any order of the President. . . . But no process, mesne or final, shall be levied against any property under such Federal control ”; and,
Whereas it appears that suits against the carriers for personal injuries, freight and damage claims, are being brought in States and jurisdictions far remote from the place where plaintiffs reside or where the cause of action arose, the effect thereof being that men operating the trains engaged in hauling war materials, troops, munitions or supplies, are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more; which practice is highly prejudicial to the just interests of the government and seriously interferes with the physical operation of the railroads; and the practice of suing in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs.
It is therefore ordered, that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resides, or in the county or district where the cause of action arose.
General Order No. 18A. April 18,1918.
General Order No. 18, issued April 9, 1918, is hereby amended to read as follows:
“ It is therefore ordered that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose.”
114	OCTOBER TERM, 1921.
Syllabus.	257 U. S.
did err is clear from what we said in Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554, decided since entry of the judgment under review. Section 10 of the Federal Control Act of March 21, 1918, c. 25, 40 Stat. 451, 456, permitted enforcement of liabilities against carriers while under federal control except “ in so far as may be inconsistent . . . with any order of the President.” It was within the powers of the Director General to prescribe the venue of suits; and the facts set forth in the order show both the occasion for it and that the venue prescribed was reasonable.
Writ of error dismissed.
Writ of certiorari granted. Judgment reversed.
LOUISIANA & PINE BLUFF RAILWAY COMPANY v. UNITED STATES.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.
No. 291. Argued October 14,1921.—Decided November 7, 1921.
1.	In a suit to set aside an order of the Interstate Commerce Commission, a claim that the order was unsupported by evidence can not be considered if only part of the evidence taken before the Commission is introduced in the suit. P. 116.
2.	One of numerous lumber tap lines whose allowances, under joint rates and through routes with trunk lines, were fixed by the Commission with reference to length of tap-line haul, added to its haul a preliminary out-of-line movement to a scales, where it weighed the shipments. The Commission, finding no necessity for weighing by the tap line rather than by the trunk line, and that an increase of allowance based on such out-of-line haul would result in discrimination unjust to other tap lines and open the way for relocation of scales by other tap lines and increases of allowances amounting to rebates, refused to allow the out-of-line haul to be considered. Held, that its order was not arbitrary or unreasonable. P. 117.
274 Fed. 372, affirmed.
LOUISIANA & P. B. RY. CO. v. UNITED STATES. 115
114.	Opinion of the Court.
Appeal from a decree of the District Court dismissing the bill in a suit to set aside an order of the Interstate Commerce Commission.
Mr. Luther M. Walter, with whom Mr. John S. Burch-more was on the brief, for appellant.
Mr. Blackburn Esterline, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for the United States.
Mr. W. R. McFarland, with whom Mr. P. J. Farrell was on the brief, for the Interstate Commerce Commission.
Mr. Justice Brandeis delivered the opinion of the court.
The Louisiana & Pine Bluff Railway Company, a common carrier owned by the Union Sawmill Company, serves it by means of a tap line which connects its mill at Huttig, Arkansas, with the Missouri Pacific Railway at Dollar Junction. The trunk line and the tap line joined in establishing through routes and joint rates from the mill to points on the trunk line and beyond. The division or allowance given to the tap line out of the joint rates was large. It was held by the Interstate Commerce Commission to amount to a rebate to the Union Sawmill Company and to discriminate unjustly against the Wisconsin Lumber Company, an independent concern also served by the tap line.* 1 • After proceedings before the Commission, which extended over many years, its supplemental order, entered June 10, 1919, limited the division receivable by the tap line for. hauling lumber from the Union Sawmills
1See The Tap Line Case, 23 I. C. C. 277; 23 I. C. C. 549; 31 I. C. C. 490 ; 34 I. C. C. 116; Louisiana & Pine Bluff Divisions, 40
I. C. C. 470; 53 I. C. C. 475.
6267°—22--13
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
to Dollar Junction to $3 per car.1 The Louisiana & Pine Bluff Railway Company then brought this suit in the Federal District Court for Western Arkansas against the United States to enjoin enforcement of the order and to annul the same. The bill charged that the order deprived plaintiff of property without due process of law; that it discriminated against plaintiff by denying to it the same compensation which other carriers were allowed to charge for like service; and that the Commission was without authority in law or fact to make the order complained of. The Interstate Commerce Commission intervened. Answers setting forth the proceedings taken were filed; and, by consent of parties, the case was submitted for final hearing upon the pleadings. The District Court entered a decree dismissing the bill, and the case comes here on appeal under the Act of October 22, 1913, c. 32, 38 Stat. 208, 220.
No claim is made here that the division allowed is so low as to be confiscatory. No claim is made that there was lack of notice or of opportunity to be heard before the Commission or that the proceedings before it were otherwise irregular. Nor could a claim that the order was unsupported by evidence be insisted upon. For only a part of the evidence taken before the Commission was introduced. Manufacturers Ry. Co. v. United States, 246 U. S. 457, 481; Spiller v. Atchison, Topeka & Santa Fe Ry. Co., 253 U. S. 117,125. The claim now urged is that the order was arbitrary and so unreasonable that it should be set aside.
After the decision in The Tap Line Cases, 234 U. S. 1, the Commission made, in respect to each of the many tap line
1 By the fifth supplemental order the maximum division for shipments after May 31, 1919, was raised to $3.50 per car; and a further increase to $4.50 per car was made by the sixth supplemental order. Increased Rates, 58 I. C. C. 220. Corresponding increases were made for hauls greater than three miles. These increases do not affect the legal questions involved,
LOUISIANA & P. B. RY. CO. v. UNITED STATES. 117
114.	Opinion of the Court.
companies which were party to the proceeding, an order, 40 I. C. C. 470, like that sustained in O’Keefe v. United States, 240 U. S. 294. By these orders the maximum division to a tap line for hauling a car from the mill to the junction with the trunk line for a distance of not more than three miles was fixed at $3. For a distance over three and not more than six miles the division to the tap line was fixed at 1% cents per 100 pounds or approximately 89 a car. The plaintiff contends that it should be allowed to receive the division of 1^ cents per 100 pounds on the ground that its haul from the Union Sawmill plants to Dollar Junction was longer than three miles. Cars loaded with lumber at the platforms of the Union Sawmills, if hauled direct to Dollar Junction, would travel only 2.41 miles. But they are not hauled direct to the junction; they are taken first in the opposite direction to a track scale located on and controlled by the trunk line. Because of this fact the distance actually traveled is 3.42 miles. The Commission, interpreting its own order, directed that for this service the plaintiff could not be allowed by the trunk line more than $3. The contention is that weighing the car is an integral part of the transportation service, In re Weighing of Freight by Carrier, 28 I. C. C. 7; Detroit Coal Exchange v. Michigan Central R. R. Co., 38 I. C. C. 79; and that to refuse to make an allowance for the out-of-line haul is arbitrary and so unreasonable as to invalidate the order. For the haul from the Wisconsin Lumber Company’s mill to Dollar Junction, which is 3.24 miles in the direct line, the Commission authorized the division to the plaintiff of l1/} cents per 100 pounds.
The contention that the order is invalid ignores both the nature of the proceeding before the Commission and the findings upon which the order was made. The proceeding was one to remove unjust discrimination. The Commission’s decision is based upon a consideration both
118
OCTOBER TERM, 1921.
Syllabus.
257 U.S.
of general conditions and of the particular situation. It finds that allowance of more than $3 a car for hauling the car from the Union Sawmill plant to Dollar Junction would result in unjust discrimination. That the finding was supported by evidence we must assume in this proceeding. And not only does plaintiff fail to show that the conclusion reached was arbitrary; but additional findings in the report afford abundant reason why the out-of-line haul to the scales should not be allowed for in fixing the division. The Commission finds, 53 I. C. C. 475, 476, that : “ The evidence does not show that it is necessary that the shipments be weighed by the tap line rather than by the trunk line; ” and, 40 I. C. C. 470, 471, that allowing the larger division on these facts would place the plaintiff in a more advantageous position than any other tap line in that territory performing a similar service and would “ open the way in the case of many tap lines for a relocation of their track scales so as to require a long back haul, and in that way to lay a basis for divisions or allowances very materially in excess of those fixed by the Commission for the distance covered by a direct movement from the mill to the junction.” In other words, divisions that would operate as rebates.
Affirmed.
BREIHOLZ ET AL. v. BOARD OF SUPERVISORS OF POCAHONTAS COUNTY, IOWA, ET AL.
ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.
No. 23. Argued October 7, 1921.—Decided November 7, 1921.
1. A state law under which a drainage district has been established, the ditches constructed and the cost assessed upon the landowners in proportion to benefits, all after due notice and opportunity to be heard, does not violate their right to due process, under the Fourteenth Amendment, in empowering a supervising board, without further notice, to determine the necessity and
BREIHOLZ v. BOARD OF SUPERVISORS. 119
118.	Argument for Plaintiffs in Error.
extent of cleaning and repairs, and to assess the cost upon the lands in proportion to the original assessments. P. 123.
2. So held of an Iowa law (Code Supp. 1913, § 1989-a21) which permits the board for the purpose of “ repair ” to enlarge, reopen, deepen, widen, straighten or lengthen ditches, but where the work done was within the scope of a cleaning, alteration and repair of the ditch system, necessary to promote its usefulness, and no new taking of property was involved. P. 124.
186 la. 1147, affirmed.
Error to a judgment of the Supreme Court of Iowa affirming a judgment of a lower court of the State adverse to the present plaintiffs in error in a suit attacking special drainage assessments.
Mr. Denis M. Kelleher, with whom Mr. Clarence M. Hanson, Mr. Richard F. Mitchell and Mr. Thomas F. Lynch were on the brief, for plaintiffs in error.
Where a legislature attempts to confer upon a subordinate body authority to enlarge or repair a previously constructed ditch, either by widening its banks, deepening its channel or lengthening it, and to assess the cost and expense to adjacent property without notice to or opportunity to be heard by interested property owners, the statute is unconstitutional as offending against the due process clause of the Fourteenth Amendment. In re Renville County, 109 Minn. 88; Harmon v. Bolley, 120 N. E. 33.
Here the old ditches were materially deepened, widened and extended. The enlargement of a ditch already constructed would, for all practical purposes, constitute a new ditch, depending perhaps upon the extent of the enlargement. There is a distinction between repairing a ditch, by removing obstructions therefrom, and widening or deepening or extending it. In re Renville County, supra; and other cases.
The Supreme Court of Iowa has repeatedly held that land within a drainage district can be assessed for im
120	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. 8.
provements made therein only for the actual (not theoretical) benefits accruing to the particular tracts of land within the district, Jenison v. Greene County, 145 la. 215; In re Johnson Drainage District, 141 la. 380; Theilen v. Board, 179 la. 248; Rystad v. Drainage District, 157 la. 85; and that, in passing on the equality of the assessment, the depth of the improvement, as affording outlet to lands, should be taken into consideration, and, where a ditch has been cleaned out or deepened, consideration should be given to the adequacy of the original ditch prior to the cleaning out or the deepening, as furnishing an outlet for lands in making assessments therefor.
The levying of a special assessment imposing a burden upon lands without a compensating advantage is not due process of law. Myles Salt Co. v. Iberia Drainage District,
239	U. S. 478; Gast Realty Co. v. Schneider Granite Co.,
240	U. S. 55; Fallbrook Irrigation District v. Bradley, 164 U. S. 112; Norwood v. Baker, 172 U. S. 269.
Mr. F. C. Gilchrist and Mr. Robert Healy, with whom Mr. Frederick F. Faville and Mr. Maurice J. Breen were on the brief, for defendants in error.
Mr. Justice Clarke delivered the opinion of the court.
Conformably to the statutes of the State, Drainage District No. 29 was organized in Pocahontas County, Iowa, in 1907, and a system of drainage, regularly planned, adopted and constructed, was completed in 1909. An assessment to pay for this improvement was imposed upon the lands within the District in proportion to the benefits which each tract would derive from it.
Two years later, in 1911, parts of the ditches having become so filled up as to impair the usefulness of the system, the County Board of Supervisors adopted a resolution declaring that it was expedient that the drainage
BREIHOLZ v. BOARD OF SUPERVISORS. 121
118.	Opinion of the Court.
improvement should be “ re-opened, cleaned and otherwise repaired ” for the better service of the land tributary to it, and to that end a contract was let to “ deepen, clean, re-open and repair” the ditches in the parts and in a manner specified. An assessment to pay for this re-opening, cleaning and repairing was made upon the lands in the District in the same proportion to benefits as that made to pay for the original construction, and the controversy in this case is as to the constitutionality of the statute under which this assessment was levied upon the lands of the plaintiffs in error.
The state statutes (Supplement to the Code of Iowa, 1913, Tit. X, c. 2-A) committed to the Board of Supervisors of the County, the power to establish drainage districts, to adopt systems of drainage, to determine the extent of any damage which might be caused to lands thereby, and to make assessment on the lands in the District, in proportion to benefits, to pay for the improvement.
Elaborate provision is made for notice to all owners of land within a proposed drainage district, of the application for the establishment of it, of the time for hearing claims for damages likely to be caused by the construction of the drainage system, and of the time when objections may be made to the assessment in proportion to benefits. From the determination of the Board with respect to each of these a right of appeal to the state District Court is given.
It is admitted that all of the requisite action was taken to establish the system of drainage involved and for making the assessment upon the benefited lands, including those of the plaintiffs in error, to pay for the original work done, and that sufficient notice thereof to satisfy all constitutional requirements was given to all concerned.
The action in this case was taken under § 1989-a21 of the Iowa Code (Supplement, 1913) which provides that
122
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
after any drainage district shall have been established and the improvement constructed (as in this case):
“. . . the same shall at all times be under the control and supervision of the board of supervisors and it shall be the duty of the board to keep the same in repair and for that purpose they may cause the same to be enlarged, reopened, deepened, widened, straightened or lengthened for a better outlet. . . . The cost of such repairs or change shall be paid by the board from the drainage fund of said . . . .drainage district, or by assessing and levying the cost of such change or repair upon the lands in the same proportion that the original expenses and cost of construction were levied and assessed, except where additional right of way is required or additional lands affected thereby, in either of which cases the board shall proceed,” giving notice and hearing as is otherwise provided.
It will be noted that the section thus quoted does not require that notice shall be given to landowners of such intended enlarging, re-opening, etc., of the drainage system as is provided for therein, and that no provision is made for a hearing with respect thereto, at which objections may be made either to the doing of the work or to the assessment to pay for it, and the contention of the plaintiffs in error is that the failure to provide for such notice and hearing renders the section unconstitutional for the reason that if enforced it would deprive them of their property without due process of law.
To this contention of invalidity it is replied that the section assailed is a legislative determination of the amount which should be assessed upon the lands of plaintiffs in error to pay for the preservation and repair of the drainage system, and that, therefore, due process of law did not require a new notice and opportunity to be heard before the work was determined upon or the assessment
BREIHOLZ v. BOARD OF SUPERVISORS. 123
118.	Opinion of the Court.
made,—this under authority of decisions of this court, extending from Spencer v. Merchant, 125 U. S. 345, to Branson v. Bush) 251 U. S. 182, 189.
The Supreme Court of Iowa held the statute and assessment both valid, and a writ of error brings the case here for review.
The contention that a new notice and hearing was not required in this case by the due process provision of the Fourteenth Amendment is a sound one. We are dealing with the taxing power of the State of Iowa, exerted through the familiar agency of a regularly organized drainage district, which it is admitted, properly included, and by the system of drainage adopted benefited, the lands of the plaintiffs in error. It is admitted also that their lands were lawfully assessed to pay for the original drainage construction in the same proportion to benefits as that which was applied in this case to the cost of the improvements and repairs. Thus Myles Salt Co. v. Iberia Drainage District, 239 U. S. 478, and Gast Realty & Investment Co. v. Schneider Granite Co., 240 U. S. 55, which are much relied upon, are plainly inapplicable.
The provision of the section assailed, that the cost of repairs shall be assessed upon the lands of the District in the same proportion that the original cost was assessed, since it only requires a simple calculation to determine the amount of each assessment when the cost of the improvement is once determined, is a legislative declaration that the lands will be benefited, and that in such case notice and hearing before such a legislative determination is not necessary, is settled by many decisions of this court, among others, Hagar v. Reclamation District No. 108, 111 U. S. 701, 708; Spencer v. Merchant, 125 U. S. 345; Embree v. Kansas City Road District, 240 U. S. 242, 250; Wagner v. Baltimore, 239 U. S. 207, 217, 218; Houck v. Little River Drainage District, 239 U. S. 254, 265, and Branson v. Bush, 251 U. S. 182, 189.
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
The only possible source of objection remaining is the committing to the Board of Supervisors the power to determine, without notice and hearing, when repairs are necessary and the extent of them. But these are details of state administration with which the federal authority will not interfere, except, possibly, to prevent confiscation or spoliation of which there is no suggestion in this case. Davidson v. New Orleans, 96 U. S. 97, 106, and cases cited supra.
The propriety or resorting to such a practice—process of law applicable to such a case—is commended to us by the comment of the Supreme Court of Iowa, in deciding this case, saying:
“ The duty [to keep the drainage system open and in repair] is one which is continuous, calling for supervision from day to day and month to month, or, in the language of the statute, ‘ at all times.’ The work to be done may involve considerable expense, or it may be a succession of petty repairs, each of which is comparatively inexpensive. To require that in each case the board must advertise the job and seek the lowest bidder [and hold hearings with respect to it] would be to hamper and prevent its efficient action, without any corresponding benefit to the public.”
It is not necessary that we should consider whether a case can be imagined in which the ditches of a district might be enlarged, deepened, widened and lengthened to an extent such as to constitute a new construction and a new taking of property, which would require a further notice and hearing before a new assessment for it could be constitutionally imposed, for we have no such case here. There was some widening of the ditches for the purpose of securing a better angle of repose for the sides and some slight widening and deepening of the bottom at various points for the purpose of getting a better fall and outlet for the water, but we quite agree with the two state courts that the changes made were of a character
HUNT v. UNITED STATES. 125
118.	Syllabus.
and extent fairly within the scope of a cleaning, alteration and repair of the ditch system and necessary to promote its usefulness.
While the principles of law applicable to this proceeding are well settled, we have preferred to again refer thus briefly to the controlling cases rather than to dismiss the petition in error.
It results that the motion to dismiss will be overruled and the judgment of the Supreme Court of Iowa
Affirmed.
Mr. Justice McReynolds concurs in result.
HUNT, EXECUTOR OF WEIGHEL, v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 38. Argued October 17, 1921.—Decided November 7, 1921.
1.	United States v. Utah, Nevada & California Stage Co., 199 U. S. 414, followed to the effect that a general stipulation in a mailcarriage contract obliging the contractor to perform new, additional or changed service without additional compensation, when ordered by the Postmaster General, does not authorize the exaction without pay of a heavy and expensive service not within the contemplation of the parties. P. 127.
2.	Where a contract for mail-carriage was sublet, without filing a copy of the sub-contract under c. 116, 22 Stat. 54, or obtaining the written consent of the Postmaster General, required by § 2, c. 107, 20 Stat. 62, and the Government, though accepting the service performed by the subcontractor, neither had nor recognized any contractual relation except with his principal, treating the former as the agent of the latter, an action in the Court of Claims for extra service exacted by the Government over his protest, but performed by the subcontractor, was properly brought by and in the name of the contractor. P. 128.
55 Ct. Clms. 77, reversed.
126	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
Appeal from a judgment of the Court of Claims, against the claimant, in an action to recover for extra mail-carriage service.
Mr. A. C. Travis and Mr. Burt E. Barlow, with whom Mr. A. R. Ser ven was on the brief, for appellant.
Mr. Assistant Attorney General Lovett, with whom Mr. Frank Davis, Jr., and Mr. Joseph Stewart, Special Assistants to the Attorney General, and Mr. Wm. D. Harris were on the brief, for the United States.
Mr. Justice Clarke delivered the opinion of the court.
This is an appeal from a judgment of the Court of Claims in favor of the United States.
On January 17, 1895, appellant’s decedent, William Weighel, entered into a written contract with the United States for the transportation of mail on route No. 235,001, “ being covered regulation wagon mail messenger, transfer, and mail station service,” between designated points in the City of Chicago, Illinois, for the term of four years, commencing on July 1, 1895.
On February 6, 1895, Ezra J. Travis contracted in writing with Weighel to perform the entire contract for somewhat less than the latter was to receive from the Government. The Postmaster at Chicago and the Postmaster General were advised of this subletting, and for the entire four years during which Travis performed the contract he was recognized by the Post Office Department as a subcontractor, performing Weigh el’s obligations under the contract. The full amount stipulated for in the contract was paid by the Government, all payments being made to Weighel, who made settlement with Travis.
At the time Weighel bid on the route no mail service was being performed by contractors in Chicago to and from street cars, and the advertisement of the Post Office Department for proposals did not mention such service,
HUNT v. UNITED STATES. 127
125.	Opinion of the Court.
but, on the contrary, before he made his bid, Weighel was notified by the Postmaster at Chicago, who was authorized by the Postmaster General to give information to bidders, that the successful bidder would not be required to perform such service.
On November 14, 1895, about four months after Travis, as subcontractor, entered upon the performance of the contract, and again on May 12, 1896, and on February 27, 1897, and May 3, 1897, the Postmaster General issued orders requiring the contractor to perform specified mail service to and from street cars in Chicago. The Government claimed that this new service was within the scope of Weighel’s contract, but he claimed that it was not, and performing it under protest he notified the Government that compensation therefor would be demanded. Travis performed all of the extra service for Weighel and the Court of Claims found that he was obliged to employ twenty-four men, four double vans and seven single wagons to perform the service which had previously been performed by four drivers and four single wagons, and that the reasonable value of the extra service imposed by the orders of the Postmaster General was $52,327.60.
This suit, brought by Weighel to recover the fair value of the extra service rendered, has since his death been prosecuted by his executor.
The Court of Claims decided that because Travis performed all of the extra service which was the subject of the suit, Weighel had no interest in the subject-matter of it and dismissed the petition.
We agree with the lower court that the contention of the Government cannot be allowed, that the extra service rendered was within the paragraph of the contract providing that the contractor is “ to perform all new or additional or changed covered regulation wagon mail messenger, transfer, and mail station service that the Postmaster General may order in the City of Chicago, Illinois,
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
during the contract term, without additional compensation.” This paragraph is in precisely the terms quoted and considered in United States v. Utah, Nevada & California Stage Co., 199 U. S. 414, which on this point plainly rules the case before us and gives the appellant a right of action unless it is defeated by the fact that Travis instead of Weighel performed the service.
The finding of the Court of Claims is that while the Government had notice that Weighel had sublet his contract and while in practice it recognized Travis as a subcontractor, yet no copy of the subcontract was filed with the Department, as is provided for in c. 116, 22 Stat. 53, 54, but that, on the contrary, Travis certified to the Postmaster General that he did not intend that “ the contract shquld be filed for recognition by the Department or as a lien against the pay of the contractor.” Thus, while the Government accepted service from Travis, it consistently retained its contract relation with Weighel during the entire four years. Three of the four orders for the extra service were addressed to Weighel and the second of the four, which was addressed to Travis, probably by inadvertence, contained, as each of the others did, a requirement that the “ contractor ” should perform the service designated without additional pay, “ in accordance with the terms of his contract.” All payments were made to Weighel and it was from him that the protest came against being required to perform the extra service and the notice that extra pay would be demanded for it. While Travis was called a subcontractor, he was treated by all concerned throughout the entire transaction as if he were (and he seems to have so regarded himself) a mere agent, performing for Weighel. The Government did not have, and did not by any implication recognize, any contractual relations whatever with Travis, and if he had failed in performing it would not have had any right of action against him, for the subletting of such a contract
CRESCENT OIL CO. v. MISSISSIPPI. 129
125.	Syllabus.
was forbidden by statute, except with the consent in writing of the Postmaster General, which was never given, (c. 107, 20 Stat. 62, § 2.) Weighel was the only person legally bound to perform the original contract; it was from him that the Government demanded the extra service, and under the facts found by the lower court the obligation to pay for that service was to him, whether he performed it personally or through another. The Government accepted performance of the extra service by Travis precisely as it accepted performance by him of the obligation under the original contract and the law requires payment to Weighel for the former as much as it required the payment which was made to him for the latter.
It results that the judgment of the Court of Claims must be reversed and the case remanded for further proceedings in conformity with this opinion.
Reversed.
CRESCENT COTTON OIL COMPANY v. STATE OF MISSISSIPPI.
ERROR TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI.
No. 41. Argued October 17, 1921.—Decided November 14, 1921.
Plaintiff in error, a Tennessee corporation, engaged in the manufacture of cotton-seed oil in that State, finding it impracticable to carry on the business successfully when purchasing its supply of cotton seed from ginners or from brokers, acquired and operated cotton gins in Mississippi and other States, where it ginned cotton for cotton growers, purchased from them the seed thus separated from the fiber and then shipped it to its Tennessee factory. Mississippi passed a law forbidding corporations interested in the manufacture of cotton-seed oil from owning or operating cotton gins, except of a prescribed capacity and in the city or town where their oil plants were located.
Held: (1) That, since the ginning was merely manufacture,'and the seeds were not in interstate commerce until purchased and com-
130
OCTOBER TERM, 1921.
Argument for Plaintiff in Error.
257 U. S.
mitted to a carrier, the gins were not instrumentalities of interstate commerce and the prohibition of their operation did not infringe the company’s rights under the commerce clause. P. 135.
(2) That the prohibition did not deny to the company the equal protection of the laws in applying to corporations and not to individuals, because the inherent difference between corporations and natural persons sustained the classification and because it might be assumed, in the absence of any contrary showing, that only corporations were engaged in operating both oil mills and cotton gins when the act was passed. P. 137.
121 Miss. 615, affirmed.
Error to a decree of the Supreme Court of Mississippi, in a suit by the State, imposing a penalty on the plaintiff in error, forfeiting its right to do local business, enjoining it from operating its cotton gins and requiring it to dispose of them within a prescribed time.
Mr. J. B. Harris, with whom Mr. Thos. A. Evans and Mr. A. W. Shands were on the brief, for plaintiff in error.
The Act of June 18, 1910, amending the Interstate Commerce Act, extended the conception of transportation, so that it does not await actual delivery of goods to a carrier. This has a bearing on the present case.
If the State could not impose a tax upon a local business carried on in connection with interstate commerce, and make the payment of that tax or the filing of statements a condition to the carrying on of the local business, (Pullman Co. v. Kansas, 216 U. S. 86; Western Union Telegraph Co. v. Taggart, 163 U. S. 1; Ludwig v. Western Union Telegraph Co., 216 U. S. 146; Harrison v. St. Louis & San Francisco R. R. Co., 232 U. S. 318; International Textbook Co. v. Pigg, 217 U. S. 91; Atchison, Topeka & Santa Fe Ry. Co. v. O’Connor, 223 U. S. 280; Looney v. Crane Co., 245 U. S. 178), manifestly it could not under any guise prevent the carrying on of the local business in this case.
It is conceded that the oil company was in the State for no other purpose than for acquiring cotton seed to be shipped in interstate commerce; and that the operation of
CRESCENT OIL CO. v. MISSISSIPPI. 131
129.	Argument for Plaintiff in Error.
the gin had become absolutely necessary to enable it to carry on its business with success. It is found as a matter of fact that the operation of the gin was a mere feeder to its oil mill in Tennessee; that the cotton seeds were actually purchased in the lint before they were put through the process of ginning and that it was necessary to separate them in order that they might be shipped, and when separated they were blown into the seed house and immediately shipped into Tennessee.
We are insisting here that the local business of ginning, which had been established long prior to the passage of the Act of 1914, had become a necessary agency or corporate facility and instrumentality in carrying on interstate commerce. Therefore, the act as applied to the oil company, being destructive of its interstate commerce, was a violation of the commerce clause of the Constitution.
The state court based its decision upon Kidd v. Pearson, 128 U.S. 1, and Hammer v. Dagenhart, 247 U. S. 251. In those cases the court was dealing with the particular state of facts presented. The manufacturing of liquor in the one case and of cotton goods in the other was the dominant business, the purpose for which the distillery and the cotton mill were established. The interstate commerce was merely incidental. In the case at bar, the interstate commerce was the dominant business, the business for the carrying on of which the oil company had entered the State of Mississippi. The ginning was merely incidental to this business, a necessary instrumentality for carrying it on.
There is no question here about any mere intention in reference to the interstate commerce. The oil company was doing no other business in Mississippi.
The act provides that oil mills may operate ginneries located in the town where the oil mill is located. This is 6267°—22-------14
132	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
a discrimination against the plaintiff in error and all oil companies whose oil plants are located outside of the State.
The discrimination between corporations and individuals engaging in the same business violates the Fourteenth Amendment. There is no essential difference in the business of operating oil mills and gins by individuals and the same business carried on by corporations. There must be a substantial difference in the business to warrant classification and imposition of burdens upon one class and not upon another class of persons or corporations.
Whether the power exercised is sought to be justified upon the exercise of the police power or under the reserved power to alter, amend and repeal charters or under the general powers in the State to regulate corporations and businesses affected by the public interest, the power must be reasonably exercised. It must be necessary for the protection of the public, and, if a classification, must not be arbitrary but based upon some natural difference which bears a proper and just relation to the classification sought to be made.
Mr. Frank Roberson, Attorney General of the State of Mississippi, for defendant in error.
Mr. Justice Clarke delivered the opinion of the court.
An act of the Legislature of Mississippi, approved March 28, 1914, (designated in the record the “Anti-Gin Act”), prohibits corporations, whether organized under the laws of that State or authorized under the laws thereof to do any local business therein, among other things, from owning or operating any cotton gin, when such corporation is interested in the manufacture of cotton seed oil or cotton seed meal. A penalty is provided for violation of the act, but corporations are permitted to operate their gins for a reasonable time until they may be sold. A pro
CRESCENT OIL CO. v. MISSISSIPPI. 133
129.	Opinion of the Court.
viso permits cotton seed oil companies to operate gins of a prescribed capacity, but only in the city or town where their oil plants are located. Mississippi Laws 1914, c. 162 ; § 4752, et seq. Hemingway’s Code, 1917.
The plaintiff in error, a corporation organized under Tennessee Laws, prior to 1914 owned and operated a cotton seed oil mill at Memphis in that State, and two cotton gins in Mississippi. Disregarding the Anti-Gin Act, it continued to operate its two gins in Mississippi until October, 1915, when, for the purpose of enforcing the law, the State, on the relation of its Attorney General, instituted a suit in equity against the company in a county court of chancery, which, after various vicissitudes, resulted in a decree that the act was constitutional, and that the plaintiff in error was guilty of violating it. A penalty was imposed upon the company, its right to do intrastate or local business in Mississippi was declared forfeited, it was perpetually enjoined from operating cotton gins in the State, and it was ordered that, within ninety days, the company should dispose of the two cotton gins which it owned and operated in Mississippi. The company was also found guilty of violating the Anti-Trust law of the State and a penalty therefor was imposed.
This is a proceeding in error to review the decree of the Supreme Court of Mississippi affirming that decree of the county court as to the Anti-Gin Act. The holding that the Anti-Trust laws were violated was reversed by the Supreme Court.
Without proof of it in the record, the case is argued upon the assumption that the statute assailed was enacted in aid of the Anti-Trust laws of the State, under the conviction on the part of the legislature that it was the practice of corporations operating oil mills and cotton gins to depress the price of ginning, regardless of cost, until local competition was suppressed, or brought to terms, and then to charge excessive prices for ginning and to pay
134
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
unfairly low prices for seed. There is evidence in the record tending to show resort to such methods by the plaintiff in error.
It clearly appears that in practice it is an advantage to the purchaser of cotton seed to operate gins, hot only for the profit that may be made from them directly, but because the grower of cotton often prefers to sell his seed to the company ginning it rather than carry it to another purchaser. It is also in evidence that individuals, as well as corporations, owned and operated gins and that other oil companies than the plaintiff in error obtained their supplies of seed from growers, from gin owners and from brokers.
The plaintiff in error has heretofore relied, and here relies, for its defense, upon the unconstitutionality of the Anti-Gin Act, which it asserts upon two grounds, viz: first, that, as applied to the plaintiff in error, it imposes a direct and substantial, and therefore an unconstitutional, burden upon an instrumentality of interstate commerce; and, second, mildly, that, the act being applicable to corporations and not to individuals owning and operating cotton gins, it denies to the plaintiff in error the equal protection of the laws and therefore offends against the Constitution of the United States.
The basis of the first contention is the claim that it had become impracticable for the oil company to carry on its oil manufacturing business successfully when purchasing its cotton seed supply from other ginners or from brokers, that for this reason the company acquired its two cotton gins in Mississippi, and nine in other States, to obtain the advantage of purchasing seed direct from the growers of cotton, and that all of the cotton seed which it had purchased in connection with its gins was shipped in interstate commerce to its oil mill at Memphis, the gins being, in effect, “ feeders ” to its oil mill.
These facts, not disputed in the record, it is argued, constitute the gins an essential means and instrumentality of
CRESCENT OIL CO. v. MISSISSIPPI.	135
129.	Opinion of the Court.
interstate commerce and that therefore the act imposes a direct and unconstitutional burden on commerce between the States in violation of § 8 of Article I of the Constitution of the United States.
Western Union Telegraph Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56; Ludwig v. Western Union Telegraph Co., 216 U. S. 146; and Harrison n. St. Louis & San Francisco R. R. Co., 232 U. S. 318, are relied upon to sustain this contention of the plaintiff in error. In the first two of the cases cited an attempt was made by the State of Kansas to tax interstate carriers on the basis of all of their property, wherever situated, as measured by the capital stock of the companies. In the third case a similar attempt was made by the State of Arkansas.
There was no question in any of these cases but that the principal business of the companies challenging the taxing law was interstate in character and that their chief investment was in property used in and necessary to the conduct of their interstate commerce. The controversy in the cases was as to the incidence of the tax,—whether it was so imposed upon the property of the companies or the stock representing it, as to constitute a direct and substantial burden upon the interstate commerce in which they were engaged.
It is clear that these decisions cannot be of aid in determining the question we are now considering, which is, whether a cotton gin operated by an oil company in Mississippi is rendered an instrumentality of interstate commerce by the fact that the owner of it ships out of the State, for its use in another State, all of the cotton seed which may be purchased in connection with its ginning operations.
The fourth case relied upon, Harrison v. St. Louis & San Francisco R. R. Co., 232 U. S. 318, was an attempt on the part of a State to prevent removal of causes from state to United States courts and is, if possible, yet more in-
136	. OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
The separation of the seed from the fiber of the cotton which is accomplished by the use of the cotton gin, is a short but important step in the manufacture of both the seed and the fiber into useful articles of commerce, but that manufacture is not commerce was held in Kidd v. Pearson, 128 U. S. 1, 20, 21; United States v. E. C. Knight Co., 156 U. S. 1, 12, 13; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 245; McCluskey v. Marysville & Northern Ry. Co., 243 U. S. 36, 38; Hammer v. Dagenhart, 247 U. S. 251, 252; and in Arkadelphia Milling Co. n. St. Louis Southwestern Ry. Co., 249 U. S. 134, 151, 152. And the fact, of itself, that an article when in the process of manufacture is intended for export to another State does not render it an article of interstate commerce. Coe v. Errol, 116 U. S. 517, and New York Central R. R. Co. v. Mohney, 252 U. S. 152, 155. When the ginning is completed the operator of the gin is free to purchase the seed or not, and if it is purchased to store it in Mississippi indefinitely, or to sell or use it in that State or to ship it out of the State for use in another, and, under the cases cited, it is only in this last case and after the seed has been committed to a carrier for interstate transport that it passes from the regulatory power of the State into interstate commerce and under the national power.
The application of these conclusions of law to the manufacturing operations of the cotton gins, which we have seen precede but are not a part of interstate commerce, renders it quite impossible to consider them an instrumentality of such commerce, which is burdened by the Anti-Gin Act, and the first contention of the plaintiff in error must be denied.
There remains the second contention, that the Anti-Gin Act denies to plaintiff in error the equal protection of the laws, because \t applies to corporations and not to individuals.
CRESCENT OIL CO. v. MISSISSIPPI. 137
129.	Opinion of the Court.
Where, as we have found in this case, a foreign corporation has no federal right to continue to do business in a State, and where, as here, no contract right is involved and there is no employment by the Federal Government, it is the settled law that a State may impose conditions, in its discretion, upon the right of such a corporation to do business within the State, even to the extent of excluding it altogether. Horn Silver Mining Co. v. New York, 143 U. S. 305; Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 83, and cases cited. And in such case the inherent difference between corporations and natural persons is sufficient to sustain a classification making restrictions applicable to corporations only. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 343, 344; Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 83. And see Fort Smith Lumber Co. v. Arkansas, 251 U. S. 532, 533; American Sugar Refining Co. v. Louisiana, 179 U. S. 89; Williams v. Fears, 179 U. S. 270, 276; W. W. Cargill Co. v. Minnesota, 180 U. S. 452.
This would be sufficient to dispose of this second contention, but we may add that the law assailed was enacted by the State in the exercise of its police power, to prevent a practice conceived to be promotive of monopoly with its attendant evils. It is clearly settled that any classification adopted by a State in the exercise of this power which has a reasonable basis, and is therefore not arbitrary, will be sustained against an attack based upon the equal protection of the laws clause of the Fourteenth Amendment, and also that every state of facts sufficient to sustain such classification which can be reasonably conceived of as having existed when the law was enacted will be assumed. Lindsley v. Natural Carbonic Gas Co., 220 U. 8. 61, and cases cited; Rast v. Van Deman & Lewis Co., 240 U. S. 342.
138	OCTOBER TERM, 1921.
Syllabus.	257 U. S.
The record before us shows that, before the law assailed was enacted, cotton gins had been operated in Mississippi by individuals as well as by corporations, but there is no showing that oil mills and cotton gins were both operated by an individual or by groups of individuals, and we think it may well be assumed, under the rule stated, that because of the larger capital required, and perhaps for other reasons, oil mills and cotton gins may have been operated in that State, only by corporations, and that for this reason the restraint of the evil aimed at by the act of the legislature could be accomplished by controlling corporations only. Assuming this to be the fact when the law was enacted, obviously the classification objected to can not be pronounced so without reasonable basis as to be arbitrary.
A number of minor contentions are discussed in the briefs. These have all been considered, but are found to be not of sufficient substance to deserve special discussion.
It results that the judgment of the Supreme Court of Mississippi will be
Affirmed.
JOHN HORSTMANN COMPANY v. UNITED STATES.
NATRON SODA COMPANY v. UNITED STATES.
APPEALS FROM THE COURT OF CLAIMS.
Nos. 26, 32. Argued October 7, 1921.—Decided November 21, 1921.
In actions in the Court of Claims for damages resulting from an unforeseen flooding of claimants’ soda lakes following construction and operation of a government irrigation project by which water was brought into the watershed,—
Held: (1) That allegations that the water percolated through the ground, due to lack of proper lining in the Government’s canals and ditches, the manner of their construction and the natural con-
HORSTMANN CO. v. UNITED STATES. 139
138.	Argument for Appellant.
ditions, were not intended to set up negligence but merely to show causal connection between the project and the flooding, and hence did not characterize the cause of action as ex delicto. P. 144.
(2) That, as no intentional taking of claimants’ property could be implied, the Government was not liable ex contractu, assuming such causal relation. P. 145. United States v. Lynah, 188 U. S. 445, distinguished.
54 Ct. Clms. 169, 214; 55 id. 66, affirmed.
Appeals from judgments denying recovery for damages resulting from the flooding of claimants’ soda lakes.
Mr. Edward M. Cleary and Mr. Thomas A. Allan, for appellant in No. 26, submitted.
In the present case there is a taking as fully as in United States v. Lynah, 188 U. S. 445, i. e., the land is completely submerged and destroyed for all purposes for which it can be used. In Gibson v. United States, 166 U. S. 269, the only damage was the loss or inconvenience resulting from an improvement in the navigable waters (which the Government had a right to make), making access to the land more difficult from the waterfront.
In Bedjord v. United States, 192 U. S. 217, the Government’s acts were of the character that every riparian owner has the legal right to perform, i. e., to protect his own lands from overflow by the building of structures to prevent the overflow.
Jackson v. United States, 230 U. S. 1, is likewise a case involving riparian rights and subservience of private owners to the right of the Government to improve the navigability of a river. 48 Ct. Clms. 423. So of Heyward v. United States, 46 Ct. Clms. 484, affirmed by a divided court, 250 U. S. 633.
In United States v. Cress, 243 U. S. 316, we have a case of taking not even as strong as this one, where the question is of supplying irrigation facilities and not navigation.
The water-level of the river is the height of the river, and the water-level of the land is the ground-water
140	OCTOBER TERM, 1921
Argument for the United States. 257 U. S. level, which the Government in the present case admits raising.
The proposition that a private party would not be liable in this case is not the law in the arid States where irrigation is mostly practiced or where the irrigation was carried on in this case. [Citing authorities.]
Mr. Frank S. Bright and Mr. H. Stanley Hinrichs, for appellant in No. 32, submitted. (They also moved to remand for further findings.)
The court below made a fundamental error in considering that this case presented only the question of the rights of parties respecting percolating waters. The defendant brought into Carson River Valley an immense amount of surface water from the Truckee River, and transported it at the surface in its ditches to the neighborhood of the claimant’s land. As a direct result,, some of this surface water has flooded the land and destroyed its value. It is immaterial whether the water entered the land by overflow or by seeping. It is not the medium through which the water travels that determines the question of liability, and it is immaterial whether the course of the water was observable, or hidden and unobserved, so long as the result is certain.
Mr. Solicitor General Beck for the United States.
The chief reliance of appellants is upon United States v. Lynah,M£ U. S. 445, in which the court, divided four to three, held that where the Government constructed an embankment along the Mississippi, whose direct, certain, immediate and necessary effect was to cause an overflow upon the lands of the plaintiff, there was a taking within the Fifth Amendment. From the essential nature of the act, this court drew the reasonable inference that the Government intended to overflow Lynah’s lands, and thus to appropriate them. In the cases at bar, however, all these elements are absent.
HORSTMANN CO. v. UNITED STATES. 141
138.	Argument for the United States.
There must be an intention on the part of the United States, either expressed or implied, to take the property of another before there can be any implied promise to pay or contract liability incurred. This liability may be inferred where the results naturally and indubitably flow from the act or effect of the act and may be definitely ascertained or determined. In this case it was impossible for the United States engineers who laid out this irrigation project to have ascertained or determined what effect the irrigation of these lands would have upon the waters of Big and Little Soda Lakes. Tempel v. United' States, 248 U. S. 121; Bothwell v. United States, 254 U. S. 231.
The decision in the Lynah Case should not be extended beyond its reasonable scope. An extension of the rule could only operate to deprive the Government of its immunity from suits sounding in tort; for it would mean that, to the extent that any public improvement, whether carefully or negligently constructed, caused indirect and remote damage, the property thus damaged was taken for public use, a proposition which would be obviously absurd. See Bedford v. United States, 192 U. S. 217, and Jackson v. United States, 230 U. S. 1.
If a private corporation had constructed and maintained these canals under the Carson-Truckee project, it would not have been liable to the claimants. [Citing authorities.]
The United States, when it enters upon a public improvement for the common benefit of all the people, is not in a worse position than a private corporation or citizen. Bedford v. United. States, 192 U. S. 217, 223; Jackson v. United States, 230 U. S. 1, 21, 22.
Claimants had no vested right in the soda accretions from the ground waters of that vast section, nor in the maintenance of a certain density of the water entering the lakes, nor in the maintenance of the then existing ground-water level in the valley where the lakes are lo
142	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
cated. Lyons v. United, States, 26 Ct. Clms. 31, 45; Cohen v. United States, 162 Fed. 364, 371.
The plaintiff Natron Soda Company, having consented to the construction of the canals and granted the defendants a right of way, is estopped from any right of recovery in the absence of negligence. Daniels y. St. Francis Levee District, 84 Ark. 333; Lewis, Eminent Domain, 3d ed., § 474; Wallace v. Columbia &c. R. R. Co., 34 S. Car. 62; Nunnamaker v. Water Power Co., S. Car. 485.
Mr. Justice McKenna delivered the opinion of the court.
Actions in the Court of Claims to recover respectively the sums of $35,000 and $170,000 alleged values of certain properties charged to have been taken and appropriated by the United States.
Both appellants are corporations, and are respectively owners of lands in Churchill County, State of Nevada, surrounding and including lakes known as Little Soda Lake and Big Soda Lake. The Horstmann Company is owner of the former and the Natron Soda Company is owner of the latter.
In 1906 each appellant was manufacturing soda from the waters of the respective lakes and the controversy of the cases turns upon the condition of the lakes at that time, and their condition after an irrigation project was instituted by the Government, called the Truckee-Carson Project.
The lakes are situated in an area known as the Carson Sink Valley, and in 1906 were the source of soda supply to the respective appellants.
From prior to 1867 to 1906 the levels of the lakes had not varied more than 2 feet. In 1906 the United States Reclamation Service acting under the authority of acts of Congress constructed the Truckee-Carson Project consist-
HORSTMANN CO. v. UNITED STATES. 143
138.	Opinion of the Court.
ing of dams, canals, and other structures whereby through the usual means large quantities of surface waters theretofore confined to the watershed of the Truckee River were in 1906 and during each year since then transported to the watershed of the Carson River and distributed to various and sundry tracts of land in the Carson River Valley for irrigation purposes.
Details of the project need not be given but with its advent the body of the ground water in the entire section covered by the project rose, and the volume of water in the lakes has continually increased, and the level of the lakes has risen about 19 vertical feet during the period of 1906 to 1916, in consequence of which the value of the properties of appellants has been destroyed, that of the Horstmann Company being $9,000 and that of the Natron Company being $45,000, according to the findings of the Court of Claims.
There have been additions to the canal project and its ultimate development contemplates the reclamation of 206,000 acres of land. At present the canals of the project ramify an area of 100,000 acres.
No negligence on the part of the United States is alleged or proven.
The conclusion of the court was that appellants were not entitled to recover, hence it dismissed the actions and rendered judgments against appellants for costs of printing the records. Motions for new trials were made and denied.
The question of the jurisdiction of the Court of Claims of the actions is intimated, if not urged, based on the allegation in the petition of the Horstmann Company that owing to the porous condition of the soil in the canals and ditches and “ the lack of proper lining in said canals and ditches, and owing to the way said canals and ditches were built, and also to the natural condition existing,” the
144	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
water flowed into the lake and seeped and percolated through the canals and ditches.1
The Government is cautious in its characterization of this allegation and says that it “apparently based the claim of the Horstmann Company upon a tort ” and adds if the claim be so based, the Court of Claims had no jurisdiction “as the Government has never waived its immunity from suit in such cases.”
We do not think, however, that the allegation was intended as an accusation of negligence but rather to forestall a defense, based on the character of the works,—that from them there could be no causal connection between the project of the Government and the rise of waters in the lakes. The Court of Claims besides explicitly found that there was no negligence.
Upon the merits, the contention of the Government is the absence of such causal connection between its works and the injury to the properties of appellants. It concedes, however, that the contention is a deduction from obscure findings, the court not finding affirmatively that a causal connection did not exist. “ Its decision was the Scotch verdict of ‘ not proved ’ ”, to quote counsel.
Appellants oppose the Government’s contention and deductions, oppose to them the difference in conditions before and after the execution of the canal project, and their reasoning seems to have the support of the methods that the world employs in the investigation of its phenomena and instances.
Post hoc, therefore, propter hoc may not be confidently asserted, but there is a suggestion of effect and cause in it, of sequence, something more than unrelated occurrence. And of this there seems to be pertinent application in the present case. The transfer of water from one
1The petition of the Natron Soda Company directly alleges that the acts of the Government were legally done in the exercise of a constitutional and legal power.
HORSTMANN CO. v. UNITED STATES. 145
138.	Opinion of the Court.
watershed to another—from the Truckee River watershed to the Carson River watershed—accompanied by an increase of the water in the lakes from a level, not varied in 29 years more than 2 feet, to 19 vertical feet would seem to demonstrate this as an effect of the canal project. And there can be no doubt of the adequacy of the cause even though, to quote from the findings, “percolating waters are hidden and invisible ” and “ It does not appear from the evidence how they are governed, or how they move underground.” Their effects above ground, a rise of water in the lakes from 2 feet to 19 feet of water, are certainly visible and unmistakable. Indeed, the court explicitly found that with the advent of the irrigation project the body of ground water in the entire section covered by the project rose.
However, we need not arbitrate the contentions but will assume with appellants that there was causal connection between the work of the Government and the rise of waters in the lakes, and the consequent destruction of the properties of appellants, but it does not follow that the Government is under obligation to pay therefor, as for the taking of the properties.
The Court of Claims, as we have seen, decided against such obligation and to its reasoning it would be difficult to add anything. The reasoning of the court is attacked, however, by appellants, and United States v. Lynah, 188 U. S. 445, is adduced against it.
The instance of the cited case and a certain generality in its reasoning and basic principle gives plausible support to the contention. It is declared that the rule deducible from prior cases, which are reviewed, is that the appropriation of property by the Government implies a contract to pay its value, and it is further declared that there need not be a physical taking, an absolute conversion of the property to the use of the public. It is clear from the authorities, it is said, that, if by public works
146
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
the value of the property of an individual is substantially destroyed, its value is taken, within the scope of the Fifth Amendment. And it was decided that “ the law will imply a promise to make the required compensation, where property to which the government asserts no title, is taken, pursuant to an act of Congress, as private property to be applied for public uses.” Tempel v. United States, 248 U. S. 121, 129, 130.
This generality has had exception in subsequent cases. It is to be remembered that to bind the Government there must be implication of a contract to pay, but the circumstances may rebut that implication. In other words, what is done may be in the exercise of a right and the consequences only incidental, incurring no liability. Bedford v. United States, 192 U. S. 217; Kansas v. Colorado, 206 U. S. 46; Tempel v. United States, supra. And there is characterization of the Lynah Case in United States v. Cress, 243 U. S. 316.
We think the cases at bar are within the latter decisions, and it would border on the extreme to say that the Government intended a taking by that which no human knowledge could even predict. Any other conclusion would deter from useful enterprises on account of a dread of incurring unforeseen and immeasurable liability. This comment is of especial pertinence. That the result of the Government’s work to the properties of plaintiffs could not have been foreseen or foretold is a necessary deduction from the findings of the Court of Claims. The court found that there is obscurity in the movement of percolating waters, and that there was no evidence to remove it in the present case, and necessarily there could not have been foresight of their destination nor purpose to appropriate the properties.
In the Natron case the Company’s predecessors in interest conveyed a right of way to the United States of certain lands of the Company, and, prior to the conveyance,
KERN RIVER CO. v. UNITED STATES. 147
138.	Syllabus.
agreed with the United States that, in consideration of the benefits to be derived from the construction of the works through the lands conveyed, the United States might construct canals and ditches on and across the land, and further agreed “ that in consideration of the premises, the first party hereby releases the second party from all claims for damages for entry, survey, or construction of said works.”
The Government adduces the agreement and conveyance in opposition of the right of the Natron Soda Company to recover. The Company resists this effort. We, however, are not called upon to pass upon it. Independently of the agreement the Company’s claim is to be rejected.
Judgments affirmed.
KERN RIVER COMPANY ET AL. v. UNITED STATES.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 50. Argued October 20, 21, 1921.—Decided November 21, 1921.
1.	A right of way through public lands or reservations, obtained through an approval by the Secretary of the Interior of an application under the Act of March 3, 1891, c. 561, §§ 18-21, 26 Stat. 1095, is neither an easement nor a fee simple absolute, but a limited fee on implied condition of reverter in the event the grantee ceases to use or retain the land for the purpose named in the act—irrigation. P. 151.
2.	The Act of May 14, 1896, c. 179, 29 Stat. 120, which made special provision for rights of way through public lands and forest reservations for the purpose of developing electric power, allowing a revocable permit or license and not a limited fee, was superseded by the Act of February 15, 1901, c. 372, 31 Stat. 790, which deals with the subject along similar lines. P. 152. Utah Power & Light Co. v. United States, 243 U. S. 389.
6267°—22---15
148	OCTOBER TERM, 1921.
Statement of the Case.	257 U. S.
3.	The Act of May 11, 1898, c. 292, 30 Stat. 404, provided that rights of way approved under the Act of March 3, 1891, supra, “ may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation.” Held, construing it in the light of legislative history and administrative construction, that the use “for purposes of a public nature ” must be “ subsidiary to the main purpose of irrigation.” P. 152.
4.	Whether the use of such a right of way for the generation of electric power which is transmitted to other places and there commercially supplied for use in operating electric railways, lighting municipalities and operating pumps on farms and ranches, is to be classed as a use for “ purposes of a public nature ” or as a “ development of power ” within the meaning of the Act of May 11, 1898, supra, in either event it is a use which that act permits only where it is subsidiary to irrigation, and can not take the place of the latter as the main purpose to which the right of way must be devoted. P. 154.
5.	Where such a right of way has never been used for irrigation, and the grantees are effectually and permanently precluded from so using it by agreement and by a consent decree, the condition of the grant is not only broken but rendered impossible of performance, and the United States is entitled to a forfeiture. P. 154.
6.	For the assertion and enforcement of the forfeiture of the grant an act of Congress declaring it or directing suit is not necessary; these objects may be accomplished through a suit brought by the Attorney General, under his general authority, where no act of Congress forbids. P. 154.
7.	Where the right to a forfeiture is clear, and asserted in the public interest, a court of equity will not withhold appropriate relief. P. 155.
8.	A suit to enforce a forfeiture of a right of way granted through an approval by the Secretary, for a breach of a condition subsequent, is not subject to the six year limitation imposed by the Act of March 3, 1891, c. 559, 26 Stat. 1093, on “ suits to vacate and annul patents.” P. 155.
264 Fed. 412, modified and affirmed.
Appeal from a decree of the Circuit Court of Appeals reversing a decree of the District Court and directing that court to enter another canceling an approval of an
KERN RIVER CO. v. UNITED STATES. 149
147.	Opinion of the Court.
application for a right of way for canal purposes, which approval had been granted by the Secretary of the Interior under the Acts of March 3, 1891, c. 561, 26 Stat. 1095, and May 11, 1898, c. 292, 30 Stat. 404, and enjoining the present appellants from further maintenance of their canal, unless within a reasonable time they applied for and obtained a lawful permit or license therefor.
Mr. James A. Gibson, with whom Mr. Roy V. Reppy and Mr. Henry F. Prince were on the brief, for appellants.
Mr. Assistant Attorney General Riter, with whom. Mr. Leslie C. Garnett and Mr. H. L. Underwood, Special Assistants to the Attorney General, were on the brief, for the United States.
Mr. Justice Van Devanter delivered the opinion of the court.
A right of way for a canal, several miles in length, through lands of the United States in a public forest reserve, in California, is here in controversy. The right of way was acquired by the Kern River Company, one of the appellants, through the approval by the Secretary of the Interior of an original map of the canal on April 14, 1899, and of an amended map on November 27, 1905. The purpose of the amended map was to conform the right of way to intervening changes in the line of the canal. The Secretary’s approval, in both instances, was sought and was given under §§ 18-21 of the Act of March 3, 1891, c. 561, 26 Stat. 1095, as supplemented by § 2 of the Act of May 11, 1898, c. 292, 30 Stat. 404. The canal was constructed between July, 1902, and December, 1904, and ever since has been used for developing electric power, but never for irrigation. The power is transmitted to other parts of the State and there commercially supplied for use in operating electric railway systems, lighting municipalities and operating pumping appliances on farms and ranches, The
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
appellants other than the Kern River Company claim under and through that company.
This suit in equity was brought by the United States to obtain (a) a cancelation of the Secretary’s approval of the two maps on the ground that it was obtained fraudulently by falsely representing that the right of way was sought with irrigation as the main purpose and the development of electric power as a subsidiary purpose, when in truth the latter was the sole purpose, or (b) a judicial declaration and enforcement of a forfeiture of the right of way on the ground that, although granted on condition that it be used mainly for irrigation, it in fact has been used solely for developing electric power and its use for irrigation is precluded by a binding and continuing agreement on the part of the grantee. In the bill the first phase of the suit is set forth with greater precision and detail than are shown in the presentation of the other; but the other is there in full substance.1
1 The District Court, in a memorandum opinion, said:
“ There are two aspects of this bill. One charges fraud perpetrated upon the Government in the application for the grant. The other relies upon a forfeiture of the grant by reason of the alleged non-performance by the defendant of the condition subsequent in the grant or a breach of a continuing covenant.” And also: “The defendant is not using the right of way for irrigation and never has so used it, and the plaintiff claims that the grant should be forfeited to the Government for failure to so use said right of way.”
The Circuit Court of Appeals, taking a different view, said:
“ This is not a suit to declare a forfeiture of a land grant for breach of condition, but the ordinary suit to set aside the approval of the Secretary of the Interior on the ground of fraud and mistake.”
The appellants, in their brief in this court, speak of the suit as one “ seeking to forfeit the right of w’ay ” and also say:
“ The bill was brought against appellant, Kern River Company, on the ground that the right of way had been obtained by fraud and misrepresentation and upon the ground that appellant was using the right of way for purposes other than those for which it had been acquired, namely, for purposes other than irrigation or power purposes subsidiary to the main purpose of irrigation.”
KERN RIVER CO. v. UNITED STATES. 151
147.	Opinion of the Court..
The bill, while thus assailing the right of way obtained under the Acts of 1891 and 1898, concedes that the appellants may yet apply for and obtain, under the Act of February 15, 1901, c. 372, 31 Stat. 790, a permit or license to use the land for the purpose to which they now are applying it.
After issue was joined the cause was heard on an agreed statement of facts supplemented by the testimony of a single witness and by some documentary proof.
The District Court concluded that the charge of fraud in procuring the Secretary’s approval was not sustained, and that, in the absence of an act of Congress declaring a forfeiture or providing for a suit to that end, a forfeiture could not be decreed by the court. The bill was accordingly dismissed. On appeal by the United States the Circuit Court of Appeals concluded that the charge of fraud was adequately proved, and also that, if the Secretary acted with full knowledge of the facts, he exceeded his authority. So the decree of dismissal was reversed with directions that a decree be entered canceling the Secretary’s approval, and also enjoining the further maintenance of the canal unless within a reasonable time the claimants applied for and obtained a lawful permit or license to use the same. 264 Fed. 412.
The Act of 1891, §§ 18-21, provided for rights of way through the public lands and reservations of the United States for ditches, canals and reservoirs for the purpose of irrigation, but not for any other purpose. These rights of way were to be obtained by making application at the local land office and ultimately securing the approval by the Secretary of the Interior of a map of the ditch, canal or reservoir. There was no provision for a patent. The grant was to become effective when the approval was given; that is to say, the right of way was then to vest in the applicant for the purpose indicated in the act. The approval, once given, could not be recalled or annulled by
152
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
the Secretary, either for fraud practiced in procuring it or for mistake in giving it. To do that it was necessary to resort to a suit in equity. Noble v. Union River Logging R. R. Co., 147 U. S. 165, 172, 176. The right of way intended by the act was neither a mere easement nor a fee simple absolute, but a limited fee on an implied condition of reverter in the event the grantee ceased to use or retain the land for the purpose indicated in the act. Rio Grande Western Ry. Co. v. Stringham, 239 U. S. 44, 47.
An Act of May 14, 1896, c. 179, 29 Stat. 120, made express provision for rights of way through the public lands and forest reservations for the purpose of developing electric power; but this act differed from the one of 1891 in several respects, the one of most significance being that what the beneficiary was to receive was a revocable permit or license, and not a limited fee. This act was superseded by that of February 15, 1901, supra, which deals with the same subject along similar lines. Utah Power & Light Co. v. United States, 243 U. S. 389, 407.
The Act of May 11, 1898, enacted while those of 1891 and 1896 were in force, provided in its second section:
“ That the rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, nineteen, twenty, and twenty-one of the Act entitled ‘An Act to repeal timber-culture laws, and for other purposes,’ approved March third, eighteen hundred and ninety-one, may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation.”
This section did no more than to permit rights of way obtained under the Act of 1891, the use of which was restricted to irrigation, to be also used for the other purposes named in the section. Irrigation was still to be the “ main purpose ” and the other purposes were to be sub-
KERN RIVER CO. v. UNITED STATES. 153
147.	Opinion of the Court.
sidiary. True, there are in the section words and punctuation from which it might be argued that the “ purposes of a public nature ” were to be independent and might even be exclusive; but the fair import of the section as a whole is the other way. Besides, its legislative history indicates that what actually was intended was to recognize irrigation as the primary purpose and to make all the other purposes secondary to it. When the bill was introduced in Congress it contained a provision declaring, without any qualification, that rights of way under the Act of 1891 might be used for supplying water for “ domestic, public, and other beneficial uses.” The committee in charge of the bill sought the views of the Land Department, and the Assistant Commissioner of the General Land Office submitted a report wherein he criticised that provision as being too much of a departure from the principle and spirit of the Act of 1891 and recommended that it be eliminated and the present section substituted in its stead. In explaining and commending the section he said: “If it were allowable to use the right of way for domestic or public purposes or for certain other purposes, which will not diminish the amount of water available for irrigation, as subsidiary to the main purpose of irrigation, the act of 1891 would be much more satisfactory in its operation and the intention of the act as conferring a general benefit would be fully subserved.” The bill was amended in accordance with his recommendation and was enacted in that form. House Report, No. 2790, 54th Cong., 2d sess.; House Report, No. 279, 55th Cong., 2d sess. In, administering the Act of 1891 as thus supplemented the Secretary of the Interior was called upon to construe the section on several occasions and his decisions were uniformly to the effect that it regarded irrigation as the controlling purpose and all the other uses as essentially subsidiary. See 28 L. D. 474; 32 L. D. 452 and 461;
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
37 L. D. 78; House Doc. No. 5, pp. xii-xiii, 56th Cong., 1st sess.; Utah Power & Light Co. v. United States, supra. Even if the meaning were not otherwise made plain, we should be slow to reject the construction thus put on the section by the head of the department charged with administering it. Logan v. Davis, 233 U. S. 613, 627.
The appellants take the position that the purposes for which they are selling the electric power are such as to make their use of the right of way a use for “ purposes of a public nature ” in the sense of that section. But of this it suffices to say that whether such a use be regarded as falling under that head or under the one described as the “ development of power,” it is a use which the section permits only where it is subsidiary to irrigation. It cannot take the place of the latter as the main purpose.
With this understanding of the statutes under which the right of way was obtained, we pass the controverted charge of fraud in procuring the Secretary’s approval and come at once to the question of forfeiture.
The right of way, as we have seen, was granted on an implied condition that it should revert to the United States in the event the grantee ceased to use or retain it for the purpose indicated in the statutes. That purpose— the main and controlling one—was irrigation. The agreed statement of facts shows that the right of way never has been used for irrigation, and also that the appellants are effectually and permanently precluded from using it for that purpose by reason of an agreement entered into by the grantee and of a judicial decree to the rendition of which the grantee expressly consented. Thus it appears that the condition on which the grant was made has been not only broken but also rendered impossible of performance. This entitles the United States to assert and enforce a forfeiture of the grant; and it is for this purpose that the present suit is brought. True, Congress has neither declared a forfeiture nor directed the suit; but
KERN RIVER CO. v. UNITED STATES. 155
147.	Opinion of the Court.
this is not a valid objection. In the absence of some legislative direction to the contrary, and there is none, the general authority of the Attorney General in respect of the pleas of the United States and the litigation which is necessary to establish and safeguard its rights affords ample warrant for the institution and prosecution by him of a suit such as this. United States v. San Jacinto Tin Co., 125 U. S. 273, 278-285. A suit brought in virtue of that authority and otherwise appropriate to. the occasion is authorized by* law in the sense of our decisions. See United States v. Repentigny, 5 Wall. 211, 267-268; Atlantic & Pacific R. R. Co. v. Mingus, 165 U. S. 413, 430-434; Spokane & British Columbia Ry. Co. v. Washington & Great Northern Ry. Co., 219 U. S. 166, 173-174. This suit meets these requirements.
The appellants invoke the rule that a court of equity usually is reluctant to lend its aid in enforcing a forfeiture. But where, as here, the right to the forfeiture is clear and is asserted in the public interest, equitable relief, if otherwise appropriate, is not withheld. Farnsworth n. Minnesota & Pacific R. R. Co., 92 U. S. 49, 68; Union Land & Stock Co. v. United States, 257 Fed. 635.
The statute placing a limitation of six years on the time within which “ suits to vacate and annul patents ” may be brought (Act March 3, 1891, c. 559, 26 Stat. 1093) is also relied on. But in so far as this suit seeks to enforce a forfeiture for a breach of a condition subsequent it plainly is not a suit to vacate or annul a patent and so is not within the statute.
We conclude that the United States is entitled to a decree declaring and enforcing a forfeiture. This renders it unnecessary to deal with the other phase of the suit.
The decree of the Circuit Court of Appeals is accordingly so modified as to direct the District Court to enter a decree declaring and enforcing a forfeiture of the right of way, and also enjoining the appellants from further
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Syllabus.	257 U.S.
occupying or using the land, unless within some reasonable time, to be fixed by that court, they apply for and obtain a right or license to use the same under the Act of February 15, 1901, or some other applicable statute, and as so modified is affirmed.
Decree modified and affirmed.
UNITED STATES v. PHELLIS.
APPEAL FROM THE COURT OF CLAIMS.
No. 260. Argued October 11, 1921.—Decided November 21, 1921.
1.	Substance and not form should control in the application of the Sixteenth Amendment and the income tax laws enacted under it. P. 168.
2.	The Income Tax Law of October 3, 1913, in declaring that the tax shall be laid on gains, profits and income derived from dividends, means, not that everything in the form of a dividend must be treated as income, but that income derived in the way of dividends shall be taxed. P. 168.
3.	Income defined (p. 169) as in Eisner v. Macomber, 252 U. S. 189.
4.	With the concurrence of 90% of the stockholders of a corporation, a plan of reorganization was effected, pursuant to which a new corporation with an authorized capital stock nearly four times as great in par value as the aggregate stock and bonded indebtedness of the old was formed under the laws of a different State, all the assets of the old were transferred to the new, as a going concern, including the good will and a large surplus, and, in consideration, the old corporation retained money enough to redeem part of its bonds and received (1) the new company’s debenture (stock of par value sufficient to redeem the remainder, retire its own preferred stock and leave in its treasury an amount equal in par value to its own outstanding common stock, and (2) the new company’s common stock of par value double the amount of the old company’s outstanding common stock, which the latter immediately distributed to its common stockholders as a dividend, paying them two shares of the new for each of the old. Upon completion of the transaction, October 1, 1915, the personnel of the stockholders and officers of the two corporations was 'identical, the stockholders having pro-
UNITED STATES v. PHELLIS. 157
156.	Argument for the United States.
portionate holdings in each; but less than one-half of the new company’s authorized stock had been issued. Thereafter, the old corporation continued as a going concern, but, except for the redemption of its bonds and retirement of its preferred stock, and the holding of the debenture stock equal to its common, and collection and disposition of the dividends thereon, did no business. Held: (a) The shares of the new company’s common stock which passed to the old company and through it to its stockholders as a dividend, representing its surplus, were income of the shareholders, taxable under the Act of October 3, 1913. P. 169. (b) And this, although the market value of the stockholder’s old shares before the dividend was the same as that of his old and new shares after it. P. 170. (c) The new company must be regarded, not as substantially identical with the old, but as a separate entity, and its stockholders as having property rights and interests materially different from those incident to ownership of stock in the old company. P. 172. (d) The new common stock in the treasury of the old company being treasury assets representing accumulated profits and capable of distribution, its distribution transferred to the several stockholders new individual property, which they were severally entitled to enjoy or to sell,—their individual income. P. 174.
56 Ct. Clms. 157, reversed.
Appeal from a judgment sustaining a claim for a refund of moneys paid under protest in discharge of an income tax assessment.
Mr. Solicitor General Beck, with whom Mr. Carl A. Mapes, Mr. Newton K. Fox and Mr. Andrew J. Aldridge were on the brief, for the United States.
The New Jersey corporation could have distributed its large surplus in cash or in specie, either as securities or, if divisible, tangible property. In either case the distribution would have been income. However, it sold its entire plant to a new corporation. The fact that the new corporation was formed by the managing body of the old and that there was a momentary identity of stockholders can not in any way affect the question. They formed the new corporation in another State and with such franchises as that State granted corporations of this character.
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OCTOBER TERM, 1921,
Argument for the United States.
257 U. S.
Whether these franchises, as granted by Delaware, were the same or different from the franchise granted to the old company by New Jersey does not appear. Presumably, the promoters of the new company found some advantage in securing a different corporate situs.
The new corporation had a much larger authorized capital stock. The relations between the stockholders inter sese were likewise changed in regard to the amounts, kinds and proportions of stock authorized. Moreover, the Delaware company retained in its treasury one-half of its stock which was not issued; but, as it was authorized, its possible issue was contemplated. Therefore, potentially, the relative proportions of the common owners of this property would be very much changed, and the stockholders greatly augmented in numbers, if and when one-half of the whole capital stock of the new corporation was, as was possible, sold to the public.
The old company continued its operations as a company. Thenceforth it had the stock in question, out of which it proceeded to retire its bonded indebtedness and, so far as possible, its preferred stock, and it held the precise equivalent of its common stock in valuable interestbearing assets, and a large surplus, which it divided among its stockholders. Nothing prevented it from taking its existing assets, purchasing a new plant, and competing with the new company. For all legal and practical purposes the two corporations were separate. The identity of management and stockholders were potentially and probably but temporary. And when we are considering whether these corporations are or are not separate entities, the possibilities or powers affect the question quite as much as the temporary realities.
The fact that the distribution of securities by the New Jersey corporation was contemporaneous with the sale of its assets is also immaterial. It is not important when these transactions took place, but what was their essen-
UNITED STATES v. PHELLIS. 159
156.	Argument for the United States.
tial character. The controlling question is, Was this distribution by the New Jersey company of Delaware stock a distribution of surplus earnings, or was it merely a duplication of its own certificates, representing the same proportionate interest in the capital assets of the New Jersey company? It is not denied that, whatever the nature of this dividend may be, it represented a distribution of surplus profits, for the capital assets of the New Jersey company remained intact. Moreover, the Delaware stock represented corporate interests in assets, which had been severed from the New Jersey corporation by alienation. Thenceforth the New Jersey stock could not be regarded as representing proportionate interests in the plant and assets thus conveyed; and the New Jersey stockholders owned proportionate interests in securities of another corporation which wTere not only potentially but in fact different from those of the New Jersey corporation.
The reasoning in New York Trust Co. n. Edwards, 274 Fed. 952, seems more convincing than that of the court below, which based its conclusion largely upon the inconclusive fact that the market value of the New Jersey and Delaware stock in the stockholders’ hands after the dividend was the same as the value of the New Jersey stock before the dividend. This normally happens whenever a corporation declares a dividend. It generally loses in market value by the amount of the dividend, and this is especially true where the dividend is a large or unusual one. Judge Hand bases his conclusion upon the true ground, viz, that the assets which were represented by the Delaware stock were no longer the property of the New Jersey company.
What matters it whether the Delaware stock, which was issued against the assets purchased from the New Jersey company, was distributed as a dividend to the New Jersey stockholders, or the New Jersey stockholders first received the cash and then got the Delaware stock? In
160	OCTOBER TERM, 1921.
Argument for the United States. 257 U. S. either event, the New Jersey stockholder received cash or its equivalent, for he could sell his Delaware stock for cash without diminishing his proportionate interest in the capital stock of the New Jersey corporation.
The ownership by one corporation, or by the stockholders of one corporation, of the stock of another, does not destroy the distinct legal entity of the two corporations. In cases involving taxation the courts have consistently refused to disregard the principle of corporate entity. Eisner v. Macomber, 252 U. S. 189, 214. Southern Pacific Co. v. Lowe, 247 U. S. 330; and Gulf Oil Corporation v. Lewellyn, 248 U. S. 71, are clearly distinguishable from the instant case. There is little similarity between the facts in those cases and the facts in the instant case.
Peabody v. Eisner, 247 U. S. 347, is controlling. See Eisner v. Macomber, 252 U. S. 189, 211; Towne v. Eisner, 245 U. S. 418, 426.
The dividend in this case was not a liquidation dividend. Lynch v. Turrish, 247 U. S. 221, therefore, has no application. The limitations of the Turrish Case are clearly brought out in Lynch v. Hornby, 247 U. S. 339.
Fluctuation in market value is not the criterion which determines whether income has been derived from capital, but the segregation of corporate assets, which before segregation represented only an inchoate right of the stockholder, does determine whether income has been received. See Eisner v. Macomber, supra, 208. The dividend came ab extra and constituted “ a gain derived from capital ”— “ income derived from any source whatever.”
It is immaterial whether the property sold by the old corporation to the new was acquired prior fo, or after, March 1, 1913. Lynch v. Hornby, supra.
The argument which evidently impressed the court below is the alleged hardship upon the stockholder. But we are dealing with a distribution of profits which were un-
UNITED STATES v. PHELLIS. 161
156.	Argument for Appellee.
precedent ted in size. The case in principle would not differ whether the dividend was large or small in proportion to par value. This court should be very slow in asserting a principle with respect to a dividend of unusual size, which would necessarily be applicable to a very much smaller dividend. The hardship, however, is more apparent than real.
Mr. William A. Glasgow, Jr., and Mr. Frank S. Bright, with whom Mr. J. P. Laffey and Mr. C. R. Mudge were on the brief, for appellee.
The common stock of the Delaware company received by appellee was not “ income arising or accruing to him,” nor was it “ gain or profit derived by him ”; it was simply the evidence of his pro rata interest in the assets of the company which it was determined to retain in the business, in increasing the capital, upon a financial reorganization, and was not assessable under the Act of 1913.
It is evident that there was no purpose to distribute any part of the assets of the New Jersey company, but that the purpose was to fix and retain all of the assets, cash and good will in an operating corporation, as capital, and to prevent the distribution thereof to the stockholders, issuing to them, however, additional certificates as evidence of the same proportionate interests in exactly the same assets; and that the plan contemplated the continued operation of the business as an entirety, and under a new charter, as a going concern.
If upon a valuation of its assets the New Jersey company had determined that all of the assets were to be retained as capital, and had issued to its stockholders pro rata common stock based upon this valuation, there could be no contention that the stockholders had received income, gain or profit. This is admitted by the Government.
There is in substance no difference between an issue of common stock as evidence of pro rata interest in the
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OCTOBER TERM, 1921.
Argument for Appellee.
257 U.S.
same assets and business, whether issued by the old company or by the new. It is only a question of form. Before the transaction the stockholder’s interest was represented by one certificate,—afterwards by three; and his proportionate interest was the same in the undivided assets, as found by the court below. Gibbons v. Mahon, 136 U. S. 549, 558, 559; Eisner v. Macomber, 252 U. S. 189, 207, 210, 213.
On September 30, 1915, a stockholder of the old company having one share held a certificate which he could sell in the open market for $795. This value did not accrue in the preceding calendar year, but was the accumulated value based upon the company’s assets. By the reorganization of the old company and the transfer of its assets to the new, the same stockholder held, on October 1, 1915, three shares of stock represented by two certificates based upon exactly the same assets, undistributed, upon which his one share in the old company was based. There had been no segregation of profits; there was no certificate representing a personal gain to appellee, since the certificates new and old are alike in what they represent—& capital interest in the entire concerns of the corporation. The three shares were worth exactly what his one share in the old company was worth on September 30th, and appellee had no profit by the transaction, there had been no gain derived from capital, no gain had accrued to him, and under no proper construction of the facts can it be held that he derived income from this readjustment of the financial business of the company.
The capital and profits of the old company were so far absorbed in the business which was transferred to the new company as an entirety and as a going concern, that the effect thereof was to render it impracticable to separate them for withdrawal and distribution. This transaction added nothing to the interests of the shareholders, and
UNITED STATES v. PHELLIS. 163
156.	Argument for Appellee.
the only change was in the evidence which represents the interests of the shareholders in exactly the same assets and business.
The old company had at one time a large amount in Anglo-French bonds, which were afterward paid out to the stockholders by a dividend in kind, and upon which income tax was duly paid. If these were among the assets transferred to the new company, the position of the Government in this case would be that appellee must pay a tax on the common stock of the new company received by him at its market value, which market value was partly based upon the bonds; and that thereafter, when the bonds were segregated from the assets of the business and distributed to the stockholders, again the appellee must pay a tax upon the market value of these bonds. The effect would be to first tax the stockholders upon the assets represented by the stock certificates of the new company as a whole, and then to tax them upon these assets when distributed. This could not have been intended by the Income Tax Act.
As an illustration: An investor bought on September 25, 1915, one share in the New Jersey company for $795, its then alleged market value. This stockholder’s income from other sources was such that if the present law had then been in effect he would have been required to pay 50 per cent, of the income received as a tax. On October 1, 1915, there were issued to him two shares of the Delayware company worth at the time $347.50 per share, and he still held his one share in the New Jersey company of the par and market value of $100; the result of which was that he had three certificates representing his investment worth exactly the same amount as he had paid for the one certificate in the New Jersey company. The Government’s contention now is that both shares of the Delaware company are income, and that one share must be sold and the $347.50 realized thereon must be paid to the 6267°—22-------16
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OCTOBER TERM, 1921.
Argument for Appellee.
257 U.S.
Government as income tax, and then the stockholder would have left one share of the New Jersey company worth $100 and one of the Delaware company worth $347.50, a total of $447.50, in place of the $795 which he had paid for the share of the New Jersey company. Yet the Government urges that this stockholder has received in the calendar year by this transaction a gain or profit on his investment.
Another illustration: The estate of A, deceased, was in the hands of trustees, to pay the income to a life tenant and at his death to divide the capital among remaindermen. On October 1st the trustees received two shares of the Delaware stock for each share held by them of the common stock of the New Jersey company.
If the Government’s contention be correct, the corpus of the estate (shares of the New Jersey common stock,) was worth on September 30th, $795 for each share. On October 1st, the entire corpus was the New Jersey stock, worth $100 per share, and the life tenant was entitled to all of the shares issued to the trustees by the Delaware company, worth $347.50 per share. In other words, by the reorganization, the corpus of the.estate lost over night six-sevenths of its value.
Can there be any doubt that the Delaware stock was capital as well for purposes of the income tax law as for distribution between life tenant and remainderman? Towne v. Eisner, 245 U. S. 418, 426.
The fact that the value of the shares held by appellee was exactly the same after October 1st as the shares held by him prior to that date in the New Jersey company, was merely one of the facts relied upon by the court below in concluding that appellee had received no taxable income, gain or profit. The court was fully justified in taking this into consideration, in view of the decision in the Towne Case, supra.
The effect of this transaction, so far as the stockholder and the business were concerned, is the same as if a stock
UNITED STATES v. PHELLIS. 165
156.	Opinion of the Court.
dividend had been made by the New Jersey company. Eisner v. Macomber, 252 U. S. 189, 213.
The fact that the two companies were distinct legal entities is not controlling. It is evident that the entire business of the company was to be carried on as one enterprise, just as it had been before, with the intervention of a technical legal entity incorporated under the laws of Delaware. Exactly the same situation existed in Southern Pacific Co. v. Lowe, 247 U. S. 330, 337. The new company was simply an agency created by the old to carry on the business theretofore carried on by the latter. In mere form only this transaction bore the appearance of income to appellee, while in truth and in substance appellee had no greater interest than he had before the reorganization. See Gulf Oil Corporation v. Lewellyn, 248 U. S. 71, 72.
The facts in the Pedbody Case, supra, were so different that the reasoning there does not control.
The whole reasoning of the court in Towne v. Eisner, 245 U. S. 418, (which was affirmed in Eisner v. Macomber, supra,) is applicable to the facts of this case.
Mr. Justice Pitney delivered the opinion of the court.
The court below sustained the claim of C. W. Phellis for a refund of certain moneys paid by him under protest in discharge of an additional tax assessed against him for the year 1915, based upon alleged income equivalent to the market value of 500 shares of stock of a Delaware corporation called the E. I. du Pont de Nemours & Company, received by him as a dividend upon his 250 shares of stock of the E. I. du Pont de Nemours Powder Company, a New Jersey corporation. The United States appeals.
From the findings of the Court of Claims, read in connection with claimant’s petition, the following essential facts appear. In and prior to September, 1915, the New Jersey company had been engaged for many years in the business of manufacturing and selling explosives. Its
166	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
funded debt and its capital stock at par values were as follows:
5% mortgage bonds		.. $1, 230,000
4^% 30-year bonds		.. 14,166,000
Preferred stock ($100 shares) ..	.. 16, 068, 600
Common stock ($100 shares) ...	.. 29, 427,100
Total		. . $60, 891, 700
It had an excess of assets over liabilities showing a large surplus of accumulated profits; the precise amount is not important, except that it should be stated that it was sufficient to cover the dividend distribution presently to be mentioned. In that month a reorganization and financial adjustment of the business was resolved upon and carried into effect with the assent of a sufficient proportion of the stockholders, in which a new corporation was formed under the laws of Delaware with an authorized capital stock of $240,000,000 to consist in part of debenture stock bearing 6 per cent, cumulative dividends, in part of common stock; and to this new corporation all the assets and good-will of the New Jersey company were transferred as an entirety and as a going concern, as of October 1, 1915, at a valuation of $120,000,000, the new company assuming all the obligations of the old except its capital stock and funded debt. In payment of the consideration, the old company retained $1,484,100 in cash to be used in redemption of its outstanding 5% mortgage bonds, and received $59,661,700 par value in debenture stock of the new company (of which $30,234,-600 was to be used in taking up, share for share and dollar for dollar, the preferred stock of the old company and redeeming its 30-year bonds), and $58,854,200 par value of the common stock of the new company which was to be and was immediately distributed among the common stockholders of the old company as a dividend, paying them two shares of the new stock for each share they held
UNITED STATES v. PHELLIS. 167
156.	Opinion of the Court.
in the old company. This plan was carried out by appropriate corporate action; the new company took over all the assets of the old company, and that company besides paying off its 5% bonds acquired debenture stock of the new company sufficient to liquidate its 4^% 30-year bonds and retire its preferred stock, additional debenture stock equal in amount at par to its own outstanding common stock, and also two shares of common stock of the Delaware corporation for each share of the outstanding common stock of the New Jersey corporation. Each holder of the New Jersey company’s common stock (including claimant), retained his old stock and besides received a dividend of two shares for one in common stock of the Delaware company, and the New Jersey corporation retained in its treasury 6 per cent, debenture stock of the Delaware corporation equivalent to the par value of its own outstanding common stock. The personnel of the stockholders and officers of the two corporations was on October 1, 1915, identical, the new company having elected the same officers as the old; and the holders of common stock in both corporations had the same proportionate stockholding in each. After the reorganization and the distribution of the stock of the Delaware corporation, the New Jersey corporation continued as a going concern, and still exists but, except for the redemption of its outstanding bonds, the exchange of debenture stock for its preferred stock, and the holding of debenture stock to an amount equivalent to its own outstanding common and the collection and disposition of dividends thereon, it has done no business. It is not, however, in process of liquidation. It has received as income upon the Delaware company’s debenture stock held by it, dividends to the amount of 6% per annum, which it has paid out to its own stockholders including the claimant. The fair market value of the stock of the New Jersey corporation on September 30, 1915, prior to the reorganization, was $795
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Opinion of the Court.	257 U. S.
per share, and its fair market value, after the execution of the contracts between the two corporations, was on October 1, 1915, $100 per share. The fair market value of the stock of the Delaware corporation distributed as aforesaid was on October 1, 1915, $347.50 per share. The Commissioner of Internal Revenue held that the 500 shares of Delaware company stock acquired by claimant in the distribution was income of the value of $347.50 per share and assessed the additional tax accordingly.
The Court of Claims, observing that from the facts as found claimant’s 250 shares of stock in the New Jersey corporation were worth on the market, prior to the transfer and dividend, precisely the same that the same shares plus the Delaware company’s shares received by him were worth thereafter, and that he did not gain any increase in the value of his aggregate holdings by the operation, held that the whole transaction was to be regarded as merely a financial reorganization of the business of the company, producing to him no profit and hence no income, and that the distribution was in effect a stock dividend nontaxable as income under the authority of Eisner v. Macomber, 252 U. S. 189, and not within the rule of Peabody v. Eisner, 247 U. S. 347.
We recognize the importance of regarding matters of substance and disregarding forms in applying the provisions of the Sixteenth Amendment and income tax laws enacted thereunder. In a number of cases besides those just cited we have under varying conditions followed the rule. Lynch v. Turrish, 247 U. S. 221; Southern Pacific Co. v. Lowe, 247 U. S. 330; Gulf Oil Corporation v. Lewellyn, 248 U. S. 71.
The act under which the tax now in question was imposed, (Act of October 3, 1913, c. 16, 38 Stat. 114, 166-167), declares that income shall include, among other things, gains derived “ from interest, rent, dividends, securities, or the transaction of any lawful business carried
UNITED STATES v. PHELLIS. 169
156.	Opinion of the Court.
on for gain or profit, or gains or profits and income derived from any source whatever.” Disregarding the slight looseness of construction, we interpret “gains, profits, and income derived from . . . dividends,” etc., as meaning not that everything in the form of a dividend must be treated as income, but that income derived in the way of dividends shall be taxed. Hence the inquiry must be whether the shares of stock in the new company received by claimant as a dividend by reason of his ownership of stock in the old company constituted (to apply the tests laid down in Eisner v. Macomber, 252 U. S. 189, 207), a gain derived from capital, not a gain accruing to capital, nor a growth or increment of value in the investment, but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested, and coming in, that is, received or drawn by the claimant for his separate use, benefit and disposal.
Claimant’s capital investment was represented by his New Jersey shares. Whatever increment of value had accrued to them prior to September 30, 1915, by reason of the surplus profits that theretofore had been accumulated by the company, was still a part of claimant’s capital, from which as yet he had derived no actual and therefore no taxable income so far as the surplus remained undistributed. As yet he had no right to withdraw it or any part of it, could not have such right until action by the company or its proper representatives, and his interest still was but the general property interest of a stockholder in the entire assets, business and affairs of the company— a capital interest; as we declared in Eisner v. Macomber, supra (p. 208).
Upon the face of things, however, the transfer of the old company’s assets to the new company in exchange for the securities issued by the latter, and the distribution of those securities by the old company among its stock
170	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
holders, changed the former situation materially. The common stock of the new company, after its transfer to the old company and prior to its distribution, constituted assets of the old company which it now held to represent its surplus of accumulated profits—still however a common fund in which the individual stockholders of the old company had no separate interest. But when this common stock was distributed among the common stockholders of the old company as a dividend, then at once— unless the two companies must be regarded as substantially identical—the individual stockholders of the old company, including claimant, received assets of exchangeable and actual value severed from their capital interest in the old company, proceeding from it as the result of a division of former corporate profits, and drawn by them severally for their individual and separate use and benefit. Such a gain resulting from their ownership of stock in the old company and proceeding from it constituted individual income in the proper sense.
That a comparison of the market value of claimant’s shares in the New Jersey corporation immediately before, with the aggregate market value of those shares plus the dividend shares immediately after the dividend showed no change in the aggregate—a fact relied upon by the Court of Claims as demonstrating that claimant neither gained nor lost pecuniarily in the transaction—seems to us a circumstance of no particular importance in the present inquiry. Assuming the market values were a precise reflex of intrinsic values, they would show merely that claimant acquired no increase in aggregate wealth through the mere effect of the reorganization and consequent dividend, not that the dividend did not constitute income. There would remain the presumption that the value of the New Jersey shares immediately prior to the transaction reflected the original capital investment plus the accretions which had resulted through the company’s
UNITED STATES v. PHELLIS. 171
156.	Opinion of the Court.
business activities and constituted its surplus; a surplus in which, until dividend made, the individual stockholder had no property interest except as it increased the valuation of his capital. It is the appropriate function of a dividend to convert a part of a surplus thus accumulated from property of the company into property of the individual stockholders; the stockholder’s share being thereby released to and drawn by him as profits or income derived from the company. That the distribution reduces the intrinsic capital value of the shares by an equal amount is a normal and necessary effect of all dividend distributions— whether large or small and whether paid in money or in other divisible assets—but such reduction constitutes the dividend none the less income derived by the stockholder if it represents gains previously acquired by the corporation. Hence, a comparison of aggregate values immediately before with those immediately after the dividend is not a proper test for determining whether individual income, taxable against the stockholder, has been received by means of the dividend.
The possibility of occasional instances of apparent hardship in the incidence of the tax may be conceded. Where, as in this case, the dividend constitutes a distribution of profits accumulated during an extended period and bears a large proportion to the par value of the stock, if an investor happened to buy stock shortly before the dividend, paying a price enhanced by an estimate of the capital plus the surplus of the company, and after distribution of the surplus, with corresponding reduction in the intrinsic and market value of the shares, he were called upon to pay a tax upon the dividend received, it might look in his case like a tax upon his capital. But it is only apparently so. In buying at a price that reflected the accumulated profits, he of course acquired as a part of the valuable rights purchased the prospect of a dividend from the accumulations—bought “ dividend on,” as the phrase
172	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
goes—and necessarily took subject to the burden of the income tax proper to be assessed against him by reason of the dividend if and when made. He simply stepped into the shoes, in this as in other respects, of the stockholder whose shares he acquired, and presumably the prospect of a dividend influenced the price paid, and was discounted by the prospect of an income tax to be paid thereon. In short, the question whether a dividend made out of company profits constitutes income of the stockholder is not affected by antecedent transfers of the stock from hand to hand.
There is more force in the suggestion that, looking through and through the entire transaction out of which the distribution came, it was but a financial reorganization of the business as it stood before, without diminution of the aggregate assets or change in the general corporate objects and purposes, without change of personnel either in officers or stockholders, or change in the proportionate interest of any individual stockholder. The argument, in effect, is that there was no loss of essential identity on the part of the company, only a change of the legal habiliments in which the aggregate corporate interests were clothed, no substantial realization by individual stockholders out of the previous accumulation of corporate profits, merely a distribution of additional certificates indicating an increase in the value of their capital holdings. This brings into view the general effect of the combined action of the entire body of stockholders as a mass.
In such matters, what was done, rather than the design and purpose of the participants, should be the test. However, in this case there is no difference. The proposed plan was set out in a written communication from the president of the New Jersey corporation to the stockholders, a written assent signed by about 90 per cent, of the stockholders, a written agreement made between the old company and the new, and a bill of sale made by the former
UNITED STATES v. PHELLIS. 173
156.	Opinion of the Court.
to the latter, all of which are in the findings. The plan as thus proposed and adopted, and as carried out, involved the formation of a new corporation to take over the business and the business assets of the old; it was to be and was formed under the laws of a different State, which necessarily imports a different measure of responsibility to the public, and presumably different rights between stockholders and company and between stockholders inter sese, than before. The articles of association of neither company are made to appear, but in favor of the asserted identity between the companies we will assume (contrary to the probabilities) that there was no significant difference here. But the new company was to have authorized capital stock aggregating $240,000,000—nearly four times the aggregate stock issues and funded debt of the old company—of which less than one-half ($118,515,900) was to be issued presently to the old company or its stockholders, leaving the future disposition of a majority of the authorized new issues still to be determined. There was no present change of officers or stockholders, but manifestly a continuation of identity in this respect depended upon continued unanimous consent or concurrent action of a multitude of individual stockholders actuated by motives and influences necessarily to some extent divergent. In the light of all this we cannot regard the new company as virtually identical with the old, but must treat it as a substantial corporate body with its own separate identity, and its stockholders as having property rights and interests materially different from those incident to ownership of stock in the old company.
The findings show that it was intended to be established as such, and that it was so created in fact and in law. There is nothing to warrant us in treating this separateness as imaginary, unless the identity of the body of stockholders and the transfer in solido of the manufacturing business and assets from the old company to the
174
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
new necessarily have that effect. But the identity of stockholders was but a temporary condition, subject to change at any moment at the option of any individual. As to the assets, the very fact of their transfer from one company to the other evidenced the actual separateness of the two companies.
But further, it would be erroneous, we think, to test the question whether an individual stockholder derived income in the true and substantial sense through receiving a part in the distribution of the new shares, by regarding alone the general effect of the reorganization upon the aggregate body of stockholders. The liability of a stockholder to pay an individual income tax must be tested by the effect of the transaction upon the individual. It was a part of the purpose and a necessary result of the plan of reorganization, as carried out, that common stock of the new company to the extent of $58,854,200 should be turned over to the old company, treated by it as assets to be distributed as against its liability to stockholders for accrued surplus, and thereupon distributed to them “ as a dividend.” The assent of the stockholders was based upon this as a part of the plan.
In thus creating the common stock of the new company and transferring it to the old company for distribution pro rata among its stockholders, the parties were acting in the exercise of their rights for the very purpose of placing the common stockholders individually in possession of new and substantial property rights in esse, in realization of their former contingent right to participate eventually in the accumulated surplus. No question is made but that the proceedings taken were legally adequate to accomplish the purpose. The new common stock became treasury assets of the old company, and was capable of distribution as the manufacturing assets whose place it took were not. Its distribution transferred to the several stockholders new individual property rights which they
UNITED STATES v. PHELLIS. 175
156.	McReynolds, J., dissenting.
severally were entitled to retain and enjoy, or to sell and transfer, with precisely the same substantial benefit to each as if the old company had acquired the stock by purchase from strangers. According to the findings the stock thus distributed was marketable. There was neither express nor implied condition, arising out of the plan of reorganization or otherwise, to prevent any stockholder from selling it; and he could sell his entire portion or any of it without parting with his capital interest in the parent company, or affecting his proportionate relation to the interests of other stockholders. Whether he sold the new stock for money or retained it in preference, in either case when he received it he received as his separate property a part of the accumulated profits of the old company in which previously he had only a potential and contingent interest.
It thus appears that in substance and fact, as well as in appearance, the dividend received by claimant was a gain, a profit, derived from his capital interest in the old company, not in liquidation of the capital but in distribution of accumulated profits of the company; something of exchangeable value produced by and proceeding from his investment therein, severed from it and drawn by him for his separate use. Hence it constituted individual income within the meaning of the income tax law, as clearly as was the case in Peabody v. Eisner, 247 U. S. 347.
Judgment of the Court of Claims reversed, and the cause remanded with directions to dismiss the suit.
Mr. Justice McReynolds, dissenting.
In the course of its opinion, citing Eisner v. Macomber, 252 U. S. 189, 213, the Court of Claims declared:
“ We think the whole transaction is to be regarded as merely a financial reorganization of the business of the company and that this view is justified by the power and duty of the court to look through the form of the trans-
176
OCTOBER TERM, 1921.
Syllabus.
257 U. S.
action to its substance.” And further, “ It seems incredible that Congress intended to tax as income a business transaction which admittedly produced no gain, no profit, and hence no income. If any income had accrued to the plaintiff by reason of the sale apd exchange made it would doubtless be taxable.”
There were perfectly good reasons for the reorganization and the good faith of the parties is not questioned. I assume that the statute was not intended to put an embargo upon legitimate reorganizations when (deemed essential for carrying on important enterprises. Eisner v. Macomber was rightly decided and the principle which I think it announced seems in conflict with the decision just announced.
Mr. Justice Van Devanter concurs in this dissent.
ROCKEFELLER v. UNITED STATES.
NEW YORK TRUST COMPANY ET AL., EXECUTORS OF HARKNESS, v. EDWARDS, COLLECTOR OF UNITED STATES INTERNAL REVENUE FOR THE SECOND DISTRICT OF NEW YORK.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
Nos. 535, 536. Argued October 11-, 12, 1921.—Decided November 21, 1921.
1.	Where the stockholders of a corporation, which is engaged in pro-» ducing, buying and selling crude petroleum and in transporting it through its pipe lines, form a new corporation to which the pipe line property is conveyed by the old corporation and in consideration therefor and as part of the transaction all the capital stock of the new corporation, of par value equal to the valuation of the property so conveyed, is distributed among such stockholders pro rata, either by being issued to them directly, or by being first
ROCKEFELLER v. UNITED STATES. 177
176.	Argument for Plaintiffs in Error.
issued to the old corporation and then so distributed, and the old company possesses such a surplus that the transaction leaves its capital unimpaired and requires no reduction of its outstanding issues, the shares so received by the stockholders are a dividend within the meaning of the Income Tax Act of October 3, 1913, c. 16, 38 Stat. 166, and income within the meaning of the Sixteenth Amendment. P. 182. United States v. Phellis, ante, 156.
2.	Such a distribution of shares, whatever its effect upon the aggregate interests of the stockholders, constitutes, in the case of each individual, a gain in the form of actual, exchangeable assets transferred to him from the old company for his separate use, in partial realization of his former indivisible and contingent interests in the corporate surplus—in substance and effect a dividend of profits by the corporation, and individual income of the shareholder. P. 183.
274 Fed. 952, affirmed.
Error to judgments of the District Court sustaining income tax assessments under the Income Tax Law of October 3, 1913, and the Sixteenth Amendment. In No.
535,	the action was by the United States, to collect the tax, against the plaintiff in error Rockefeller. In No.
536,	the plaintiffs in error, having paid the tax under protest, sued the collector to recover the amount with interest.
Mr. George Wetwood Murray, with whom Mr. Harrison Tweed was on the briefs, for plaintiffs in error.
The fact is that the transaction was purely a capital transaction, the substance of which was merely an alteration in the form of the stockholder’s capital interest—an exchange of one form of capital interest for another— from which no income was derived.
The rules and principles established by this court and applied by it in the Towne and Macomber Cases prohibit a resort to metaphysics to establish the receipt of income in connection with a transaction which from the point of view of the corporation was a necessary separation of its
178	OCTOBER TERM, 1921.
Argument for Plaintiffs in Error. 257 U. S. two lines of business, and from the point of view of the stockholder was a mere change in the form of his capital investment.
Regard must be had to the substance and entirety of the transaction.
The meaning to be attached to the word “ income ” is not that ascribed to it by dictionarians or economists, but is, on the contrary, the meaning in which it is commonly used and understood.
There are three essential elements of income: (a) gain; (b) separated from the capital, and (c) realized by the recipient.
In the case of a stockholder, income is not realized unless and until something has been freed from corporate control and business risks and transferred to the absolute ownership of the stockholder.
The Towne Case illustrates the application of the foregoing rules and principles to facts very similar to the facts in the case at bar and is conclusive that the stock of the pipe line companies did not constitute income within the meaning of the Income Tax Law of 1913.
The opinion of the court in the Macomber Case is simply a more thorough analysis of the facts and principles which controlled the decision in the Towne Case, and an extension of that decision to cover the construction of the Sixteenth Amendment.
The Macomber Case is conclusive that the stock of the pipe line companies did not constitute income within the meaning of the Sixteenth Amendment.
Any dissent in the Macomber Case was based upon considerations which have no application in the case at bar.
The stock of the pipe line companies did not become a part of the assets of the oil companies.
There is a fundamental distinction between the distribution to stockholders of liquid treasury assets on the one hand, and, on the other hand, the proceeds of the disposi-
ROCKEFELLER v. UNITED STATES. 179
176.	. Argument for Defendants in Error.
tion of business plant constituting an integral part of the enterprise.
No part of the cause of action of plaintiffs in error in No. 536 is barred by the provisions of §§ 3226 and 3227, Rev. Stats.
Mr. Solicitor General Beck, with whom Mr. Carl A. Mapes, Mr. Newton K. Fox and Mr. Andrew J. Aldridge were on the brief, for defendants in error.
If there be any difference in principle between the facts of these two cases and those in the Phellis Case, ante 156, the facts now under consideration by the court are even stronger for the Government than in the Phellis Case. In that case the Du Pont Powder Company sold all its assets to the new corporation; and, had the former then proceeded to liquidate its affairs and dissolve as a corporation, a more serious question would have arisen, whether upon final liquidation that portion of the assets which were distributed—which undoubtedly represented accumulated earnings from operations—would or would not be taxable.
In the two present cases each oil company only sold a part of its assets (the part being far less than its surplus), and then vendor and vendee corporations continued actively in their respective businesses, the one as a producer, and the other as a transporter, of oil.
The argument that was made in the Phellis Case, that this court must regard the New Jersey and Delaware corporations as substantially one corporation qn the theory of practical identity of function and purpose, can not be applied to the two instant cases, for the very purpose of the transactions in these cases was to destroy any possible identity by dividing between the two corporations two separate and distinct functions in the oil industry. Thenceforth, the oil companies had no further concern with transportation and the pipe line companies had no further connection with production.
6267°—22-17
180	OCTOBER TERM, 1921.
Opinion of the Court.	s257 U. 8.
Mr. Justice Pitney delivered the opinion of the court.
These two cases were argued together, turn upon like facts, and may be disposed of in a single opinion. They involve the legality of certain income taxes assessed against the plaintiff in .error in the one case, and against the testator of plaintiffs in error in the other, under the Income Tax provisions of the Act of October 3, 1913, c. 16, 38 Stat. 114, 166-167, by reason of certain distributions of corporate stocks received by the respective taxpayers under the following circumstances. In and prior to the year 1914, the Prairie Oil & Gas Company, a corporation of the State of Kansas, was engaged in producing, purchasing and selling crude petroleum, and transporting it through pipe lines owned by the company in the States of Kansas and Oklahoma, and elsewhere. At the same time the Ohio Oil Company, a corporation of the State of Ohio, was engaged in producing and manufacturing petroleum and mineral oil and transporting the same through pipe lines owned by it in the States of Ohio, Indiana, Illinois and Pennsylvania. In the month of June, 1914, it was judicially determined by this court (The Pipe Line Cases, 234 U. S. 548), that with respect to the transportation business these companies were common carriers in interstate commerce, subject to the Act to Regulate Commerce as amended by Act of June 29, 1906, c. 3591, 34 Stat. 584, and as such subject to the supervision of the Interstate Commerce Commission. By Act of September 26, 1914, c. 311, 38 Stat. 717, the remainder of their business became subject to the supervision of the Federal Trade Commission. In order to avoid a probable conflict of federal authority in case the combined business of production and transportation should continue to be carried on as theretofore, it was in each case, upon advice of counsel, determined that the pipe line property should be owned and operated by a separate corporation. In the
ROCKEFELLER v. UNITED STATES. 181
176.	Opinion of the Court.
case of the Ohio company an added reason for segregation lay in the fact that by a section of the Ohio General Code its entire gross receipts, including those derived from business other than transportation, were subject to an annual assessment of 4% chargeable against the gross receipts of companies engaged in the transportation business. For these reasons, the stockholders of the Prairie Oil & Gas Company caused a corporation to be organized under the laws of the State of Kansas, by the name of the Prairie Pipe Line Company, to which all the pipe line property of the Prairie Oil & Gas Company was transferred in consideration of the issue and delivery of the entire capital stock of the new company, to be distributed pro rata to the stockholders of the Prairie Oil & Gas Company. And similarly, the stockholders of the Ohio Oil Company caused a corporation to be formed under the laws of that State, by the name of the Illinois Pipe Line Company, to which all the pipe line property of the Ohio Oil Company was transferred in consideration of the issue to it of the entire capital stock of the new company, which was to be distributed at once by the old company to its stockholders pro rata. These arrangements were carried out in like manner in both cases, except that in the case of the Kansas companies the stock of the pipe line company was issued directly to the stockholders of the oil company, whereas in the case of the Ohio companies the pipe line company issued its stock to the oil company, but in the same resolution by which the contract was made, an immediate distribution of the new stock among the oil company’s stockholders was provided for, and in fact it was carried out. The aggregate valuation of the Prairie pipe lines was $27,000,000, that of the Ohio pipe lines $20,000,000, and the total capitalization of the respective pipe line companies equaled these amounts.
In each case, the oil company had a surplus in excess of. the stated value of its pipe lines and of the par value of
182
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
the total stock of the corresponding pipe line company; so that the transfer of the pipe lines and the distribution of the stock received for them left the capital of the respective oil companies unimpaired and required no reduction in their outstanding issues.
Messrs. Rockefeller and Harkness respectively were holders of large amounts of the stock of both the Prairie and the Ohio oil companies and in the distributions each received an amount of stock in each of the pipe line companies proportionate to his holdings in the oil companies. This occurred in the year 1915. Neither Mr. Rockefeller nor Mr. Harkness nor the latter’s executors sold any of the stock in the pipe line companies.
Income tax assessments for the year 1915 were imposed upon Messrs. Rockefeller and Harkness, based upon the value of the stocks thus received as dividends; and these assessments are in question in the present suits, both of which were brought in the District Court of the United States for the Southern District of New York: one by the United States against Mr. Rockefeller, the other by the executors of Mr. Harkness against the Collector. In each case the facts were specially pleaded so as to present the question whether the distribution of the stocks of the pipe line companies among the stockholders of the oil companies constituted, under the circumstances, dividends within the meaning of the Act of 1913, and income within the meaning of the Sixteenth Amendment. In each case a final judgment was rendered sustaining the assessment, and the judgments are brought here by direct writs of error under § 238, Judicial Code, because of the constitutional question.
Under the facts as recited we deem it to be too plain for dispute that in both cases the new pipe line company shares were in substance and effect distributed by the oil company to its stockholders; as much so in the case of the Kansas company where the new stock went directly
ROCKEFELLER v. UNITED STATES. 183
176.	Opinion of the Court.
from the pipe line company to the stockholders of the oil company, as in the case of the Ohio company where the new stock went from the pipe line company to the oil company and by it was transferred to its stockholders. Looking to the substance of things the difference is unessential. In each case the consideration moved from the oil company in its corporate capacity, the new company’s stock issued in exchange for it was distributed among the oil company’s stockholders in their individual capacity, and was a substantial fruit of their ownership of stock in the oil company, in effect a dividend out of the accumulated surplus.
The facts are in all essentials indistinguishable from those presented in United States v. Phellis, decided this day, ante, 156. In these cases as in that, regarding the general effect of the entire transactions resulting from the combined action of the mass of stockholders, there was apparently little but a reorganization and financial readjustment of the affairs of the companies concerned, here a subdivision of companies, without immediate effect upon the personnel of the stockholders, or much difference in the aggregate corporate activities or properties. As in the Phellis Case, the adoption of the new arrangement did not of itself produce any increase of wealth to the stockholders, since whatever was gained by each in the value of his new pipe line stock was at the same moment withdrawn through a corresponding diminution of the value of his oil stock. Nevertheless the new stock represented assets of the oil companies standing in the place of the pipe line properties that before had constituted portions of their surplus assets, and it was capable of division among stockholders as the pipe line properties were not. The distribution, whatever its effect upon the aggregate interests of the mass of stockholders, constituted in the case of each individual a gain in the form of actual exchangeable assets transferred to him from the oil com-
184
OCTOBER TERM, 1921.
Syllabus.
257 U. S.
pany for his separate use in partial realization of his former indivisible and contingent interest in the corporate surplus. It was in substance and effect, not merely in form, a dividend of profits by the corporation, and individual income to the stockholder.
The opinion just delivered in United States v. Phellis, sufficiently indicates the grounds of our conclusion that the judgment in each of the present cases must be
Affirmed.
Mr. Justice Clarke took no part in the consideration or decision of these cases.
Mr. Justice Van Devanter and Mr. Justice McReynolds dissent.
AMERICAN STEEL FOUNDRIES v. TRI-CITY CENTRAL TRADES COUNCIL ET AL.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 2. Argued January 17, 1919; restored to docket for reargument June 1, 1920; reargued October 5, 1920; restored to docket for reargument June 6, 1921; reargued October 4, 5, 1921.—Decided December 5, 1921.
1.	A decree of injunction in a labor controversy was entered in the District Court before the date of the Clayton Act, c. 323, 38 Stat. 738, but was pending on appeal in the Circuit Court of Appeals when the act was approved. Held, that the plaintiff had no vested right in the decree, and that the act was to be regarded in determining the appeal. P. 201.
2.	The irreparable injury to property referred to in the first paragraph of § 20 of the Clayton Act, supra, includes injury to the business of an employer. P. 202.
3.	The second paragraph of § 20 of the Clayton Act does not apply to a dispute between an employer and persons who are neither ex-employees nor seeking employment. Duplex Printing Press Co. v. Deering, 254 U. S. 443. Held, in this case, that only those defendants who left the plaintiff’s employ when a strike was called
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 185
184.	Syllabus.
by the defendant labor union, as distinguished from those who had been employed but were laid off some months previously and those who had not been in the employment, could invoke § 20 in their behalf. P. 202.
4.	The Clayton Act, § 20, in forbidding injunctions to restrain employees, recent or expectant, from the use of peaceful persuasion in promotion of their side of the controversy, or from obtaining or communicating information in any place where they may lawfully be, merely declares and stabilizes what was always the best equity practice. P. 203.
5.	Workmen have the right to work for whom they will and to go freely to and from their place of labor undisturbed by annoying importunities or by the intimidation of numbers; and their employer has a right, incident to his property and business, that they have free access to the place where the business is conducted. P. 203.
6.	The “ picketing ” of an employer’s plant by groups of men stationed near the points of ingress and egress and in neighboring streets, who importunately intercepted the workmen of the employer or others seeking employment, and whose activities collected crowds of bystanders and resulted in personal violence, held unlawful and to be enjoined eo nomine, without adding the words “ in a threatening or intimidating manner.” Pp. 204, 207.
7.	Such “ picketing ” creates a condition of intimidation in which there can be no peaceable communication of information or peaceable persuasion in the sense of the Clayton Act. P. 205.
8.	An injunction for the protection of an employer in a strike controversy should be adapted to the facts of the particular case, safeguarding his rights while affording to ex-employees and others properly acting with them opportunity, consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join his opponents. Held, in this case, that the strikers and their sympathizers should be limited to one representative for each point of ingress and egress at the plant, and that all others should be enjoined from congregating or loitering about the plant or in neighboring streets affording access thereto, that such representatives should have the right of observation, communication and persuasion, avoiding abuse, libel or threats, and in their efforts singly should not obstruct an unwilling listener by importunate following or dogging of his steps. P. 206.
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9.	An injunction broadly forbidding ex-employees from persuading employees and would-be employees to leave or stay out of the employment conflicts with the Clayton Act, supra. P. 208.
10.	Where the members of a local labor union, though not exemployees within the Clayton Act, have reason to expect reemployment at a plant where wages have been reduced, interference by them and their union by peaceable persuasion and appeal to induce a strike against the lowered wages, is not malicious or without lawful excuse, and the principle against malicious enticement of laborers does not apply. P. 208. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229; and Duplex Printing Press Co. v. Deering, 254 U. S. 443, distinguished.
238 Fed. 728, reversed in part and affirmed in part.
Review of a decree of the Circuit Court of Appeals which affirmed, with important modifications, a decree of injunction rendered by the District Court at the suit of the present petitioner against the respondent labor union and individuals.	/
Mr. Max Pam, with whom Mr. Harry Boyd Hurd and Mr. William E. Wheeler were on the briefs, for petitioner.
The statutes of Illinois and the decisions of its Supreme Court, establishing the rule in that State with respect to the subject-matter of conspiracy, picketing and persuasion, should prevail. Crim. Code, c. 38, §§ 46, 158, 159; Barnes & Co. v. Typographical Union, 232 Ill. 424, 431, 434; O’Brien v. People, 216 Ill. 371; Doremus v. Hennessy, 176 Ill. 608, 614; Purington v. Hinchliff, 219 Ill. 159,166, 167.
Kemp v. Division No. 2^1, 255 Ill. 213, does not modify the Illinois rule contended for by petitioner. Here the Trades Council arrogated to itself the prerogative to demand from petitioner a change in wages, without meeting or vote of the petitioner’s employees and without authority or request of the employees.
Even the two men who quit the employ had no relation to the initiation of the strike and knew nothing of it
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 187
184.	Argument for Petitioner.
until after the strike had been launched. See Henrici Co. v. Alexander, 198 Ill. App. 568.
In each of the cases cited by the court below in support of its opinion there existed a controversy between employer and employee; a strike had been called by the employees and not by any stranger to the employer, nor by any outside organization unauthorized to represent or speak for the employees. In Iron Molder s’ Union v. Allis-Chalmers Co., 166 Fed. 45, the company recognized the unions as the representatives of its employees and to have authority from them to strike, and in that capacity made the unions defendants.
There is involved here a strict rule of property, upon which the Supreme Court of Illinois has spoken. The federal courts will enforce the laws of the State, so construed.
Under the decisions of this court the rule in Illinois should control. The bill was filed on the basis of diversity of citizenship. Petitioner waived none of its rights under the laws of Illinois. Burgess v. Seligman, 107 U. S. 20, 33; Bucher v. Cheshire R. R. Co., 125 U. S. 555; Gormley v. Clark, 134 U. S. 338.
The rule in Illinois relating to picketing without physical violence is sustained in other States and jurisdictions. Atchison, Topeka & Santa Fe Ry. Co. v. Gee, 139 Fed. 582; Beck v. Teamsters’ Union, 118 Mich. 497; Gompers v. Bucks Stove & Range Co., 221 U. S. 418; Jones v. Van Winkle Gin & Machine Works, 131 Ga. 336; Sailors’ Union v. Hammond Lumber Co., 156 Fed. 450; Stephens v. Ohio State Telephone Co., 240 Fed. 759; Vonnegut Machinery Co. v. Toledo Machine Co., 263 Fed. 192; Kinloch Telephone Co. v. Local Union No. 2, 265 Fed. 312.
Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, and similar cases, sustain petitioner’s contentions. The respondents were engaged in a conspiracy to force the
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employees of petitioner, who were satisfied with their wages or conditions of labor, to abandon their employment, violate their contracts and thereby force the establishment of a new basis of employment between the petitioner and its employees. They were strangers to both and interlopers in a situation that was tranquil and contented and in which they had no interest.
It is not necessary that there should be time contracts. Employment at will is sufficient.
The law as announced in the Hitchman Case is supported in other States and jurisdictions. See Old Dominion S. 8. Co,. n. McKenna, 30 Fed. 48, 49; United States v. Haggerty, 116 Fed. 510; Casey v. Cincinnati Typographical Union, 45 Fed. 135; State v. Glidden, 55 Conn. 46; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759; Frank & Dugan v. Herold, 63 N. J. Eq. 443; Flaccus v. Smith, 199 Pa. St. 128.
In this case the conduct of respondents was so violent in its lawlessness, so brutal in its practice, that it comes within the class of cases requiring and justifying injunction because of the resort to intimidation, physical force and destruction.
The rights of petitioner by final decree were vested before the Clayton Act became law. No retroactive effect can be given it. While it may be contended that legislation subsequent to adjudication may affect proceedings between public bodies or between an individual and the public, no such rule can apply in a proceeding between private parties. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 431. A final judgment or decree is property just as much as any other form of property. Memphis n. United States, 97 U. S. 293, 296, 298; Fisher’s Negroes v. Dabbs, 6 Yerg. (Tenn.) 119; Livingston v. Livingston, 173 N. Y. 377, 381; Humphrey v. Gerard, 83 Conn. 346; Strafford v. Sharon, 61 Vt. 126; Merchants Bank v. Ballou, 98 Va. 112; Edwards v. Kearzey, 96 U. S. 595, 600.
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 189
184.	Argument for Respondents.
The Clayton Act was intended to govern the acts of courts of original jurisdiction and proceedings at nisi prius and could not practically be invoked on appeal. It cannot be made applicable to this case, because it is not a case involving or growing out of a dispute concerning terms or conditions of employment,—between employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment. There was no strike at this plant instituted by the employees or with the authority of the employees. There was no controversy or dispute between the petitioner and its employees. Only two of the employees left the employ of petitioner, and neither because of any strike of the employees.
Section 20 of the Clayton Act is further inapplicable because an injunction was necessary to prevent irreparable injury to property or to a property right for which there was no adequate remedy at law.
The Clayton Act not only is inapplicable in this case with reference to the acts of assault and violence and physical brutality, but also against picketing per se, unattended by acts of physical violence. Montgomery v. Pacific Electric Ry. Co., 258 Fed. 382; Dail-Overland Co. v. Willys-Overland, Inc., 263 Fed. 171; Kinloch Telephone Co. v. Local Union No. 2, 265 Fed. 312.
This court has decided that § 20 of the Clayton Act is not applicable to cases like this. Paine Lumber Co. n. Neal, 244 U. S. 459; Hitchman Coal & Coke Co. v. Mitchell, supra; Eagle Glass & Manufacturing Co. v. Rowe, 245 U. S. 275; Duplex Printing Press Co. V. Deering, 254 U. S. 443.
Mr. Frank C. Smith for respondents.
There is not a scintilla of evidence that the Trades Council, or other of the defendants, formed, or attempted to form, a conspiracy. The testimony of the officers is
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that no unlawful act was authorized. Quite true, there is a difference of opinion as to what may be considered lawful. The officers believed that to place pickets on the streets leading to the plant, to try and persuade workingmen not to go in to work while the strike was on, was within the law. The District Judge, however, was of the opinion that any kind of picketing was unlawful.
For workingmen to organize into unions and to concentrate their unions under one head, the object of which is to improve the conditions of the toilers, is not an unlawful combination.
To order a strike is not unlawful. Labor unions have this right; and to picket a plant, and for pickets to try to persuade men from taking the places of those who go out in response to a strike order, is not unlawful. Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45; In re Heffron, 179 Mo. App. 639; Beaton v. Tarrant, 102 Ill. App. 129; People v. Young, 188 Ill. App. 208; Karges Furniture Co. v. Amalgamated, etc., Union, 165 Ind. 421; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133; American Steel & Wire Co. v. Wire Drawers’ Unions, 90 Fed. 608; Gray v. Building Trades Council, 91 Minn. 171; 18 Am. & Eng. Encyc. of Law, 2d ed., 87; High on Injunction, § 1415-j; Levy v. Rosenstein, 66 N. Y. S. 101; Wood Co. v. Toohey, 186 N. Y. S. 95; Clayton Act, § 20.
An injunction in an industrial dispute should not prohibit either persuasion or picketing. Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45; United States v. Kane, 23 Fed. 748; Allis Chalmers Co. v. Reliable Lodge, 111 Fed. 264; Beck v. Teamsters’ Union, 118 Mich. 497; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212; Gray v. Building Trades Council, 91 Minn. 171; Everett Waddey Co. n. Richmond Typographical Union, 105 Va. 188; People v. Young, 188 Ill. App. 208; In re Hefjron, 179 Mo. App. 639; American Steel & Wire Co. v. Wire Drawers’ Unions, 90 Fed. 608; Pope Motor Car Co.
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184.	Argument for Respondents.
v. Keegan, 150 Fed. 148; Searle Manufacturing Co. v. Terry, 106 N. Y. S. 438; Kinloch Telephone Co. v. Local Union No. 2, 265 Fed. 312; Clayton Act, § 20.
Unless this court will hold an agreement to do peaceful picketing, thus trying to enforce a demand, unlawful, then the contention that the Council is an unlawful combination is without merit.
The claim £hat the Council did not represent the workers in the plant is beyond our comprehension. According to the testimony of plaintiff’s superintendent, of the 1,300 laid off in November, only about 400 were called for. He said that 80 or 90 per cent, were old men and members of the various organizations. If a man is “ laid off ”, that does not signify he has severed his connection with his employer. It was these employees—the 80 or 90 per cent.—who, as members of various organizations, made complaint to the Council. Furthermore, it is our contention that none of the remaining 1,300 had severed their connection with the company. These could have returned, but did not do so, because of the reduction of wages. To say that the Council has no right to intercede in behalf of the employees of the company is absurd. The principle of “ collective bargaining ” is now too well established.
In every case the alleged assaults took place some distance from the plant. Whether justified or not, those charged with doing picket duty feel that “ strikebreakers ” were responsible for the assaults committed.
We contend that the Trades Council was strictly within its rights in doing peaceful picketing. Lawless acts—if any were committed—we have not sought to defend. Kolley v. Robinson, 187 Fed. 415; Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45; Pope Motor Car Co. v. Keegan, 150 Fed. 148; People v. Young, 188 Ill. App. 208.
The Illinois court, in Kemp v. Division No. 24-1, 255 Ill. 213, refused to follow rulings in Franklin Union v.
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OCTOBER TERM, 1921.
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People, 220 Ill. 355; and Barnes & Co. v. Typographical Union, 232 Ill. 424. In Hitchman Coal <fc Coke Co. v. Mitchell, 245 U. S. 229, there were contracts not to join the union. In Duplex Printing Press Co. v. Deering, 254 U. S. 443, no question of combination or peaceful picketing was considered.
Section 20 of the Clayton Act applies, expressly sanctioning peaceful picketing.
A court is not warranted in enjoining persons from congregating on the sidewalk, or from addressing remarks concerning the business of another, or from distributing circulars. In re Hefjron, supra; People v. Young, supra; Gray v. Building Trades Council, supra; Marx & Haas Jeans Clothing Co. v. Watson, supra.
To prevent a workingman from exercising the right of persuasion would deprive him of the right of free speech, guaranteed by the Constitution. To prohibit his right at or near the plant, on the streets leading to it, or elsewhere, is too general. Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45; Marx & Haas Jeans Clothing Co. v, Watson, supra; 18 Am. & Eng. Encyc. of Law, 2d ed., 87; United States v. Kane, 23 Fed. 748; Kolley v. Robinson, 187 Fed. 415; Kinloch Telephone Co. v. Local Union No. 2,265 Fed. 312; Clayton Act. § 20.
The plant was not injured, and no injunction should have issued, because no property right was involved. Northern Pacific R. R. Co. v. Whalen, 149 U. S. 157. Labor is not a commodity (Clayton Act, §6,) and an employer has no property right in his workmen.
The decree of the District Court was fatally defective because it was vague and ambiguous,—a dragnet. Laurie v. Laurie, 9 Paige, 234; Avery v. Onillon, 10 La. Ann. 127; Swijt & Co. v. United States, 196 U. S. 375; Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45, 46.
The Clayton Act is retroactive and controlling.
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184.	Opinion of the Court.
Mr. Chief Justice Taft delivered the opinion of the court.
The American Steel Foundries is a New Jersey corporation operating a large plant for the manufacture of steel products in Granite City, Illinois, In May, 1914, it filed a bill in the District Court for the Southern District of Illinois to enjoin the defendants, the Tri-City Central Trades Council, and fourteen individual defendants, some of them officers of the Council, all of them citizens of other States than New Jersey, from carrying on a conspiracy to prevent complainant from retaining and obtaining skilled laborers to operate its plant. The bill charged that the conspiracy was being executed by organized picketing, accompanied by threats, intimidation and violence toward persons employed or seeking employment there. The defendants in their answer admitted that the Central Trades Council had established a picket upon streets leading to the plant, with instructions to notify all persons entering it that a strike had been called because of reduction of wages, and to use all honorable means to persuade such persons not to take the places of the men on the strike; admitted the participation of individual defendants in the picketing, but denied threats of injury or violence or responsibility for the violence that admittedly had occurred. After replication was filed, the cause was heard. A restraining order issued on filing of the bill, and a final decree was entered by which defendants were (C perpetually restrained and enjoined from in any way or manner whatsoever by use of persuasion, threats, or personal injury, intimidation, suggestion of danger or threats of violence of any kind, from interfering with, hindering, obstructing or stopping, any person engaged in the employ of the American Steel Foundries in connection with its business or its foundry in the City of
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Granite City, County of Madison, State of Illinois, or elsewhere; and from interfering by persuasion, violence or threats of violence in any manner with any person desiring to be employed by said American Steel Foundries in its said foundry or plant; and from inducing or attempting to compel or induce by persuasion, threats, intimidation, force or violence or putting in fear or suggestions of danger any of the employees of the American Steel Foundries or persons seeking employment with it so as to cause them to refuse to perform any of their duties as employees of the American Steel Foundries; and from preventing any person by persuasion, threats, intimidation, force or violence, or suggestion, of danger or violence, from entering into the employ of said American Steel Foundries; and from protecting, aiding or assisting any person, or persons in committing any of said acts; and from assembling, loitering or congregating about .or in proximity of the said plant or factory of the American Steel Foundries for the purpose of doing, or aiding or encouraging others in doing, any of the said unlawful or forbidden acts or things; and from picketing or maintaining at or near the premises of the complainant, or on the streets leading to the premises of said complainant, any picket or pickets, and from doing any acts or things whatever in furtherance of any conspiracy or combination among them, or any of them, to obstruct, or interfere with said American Steel Foundries, its officers, agents or employees, in the free and unrestrained control and operation of its plant, foundry and property and the operation of its business; and also from ordering, directing, aiding, assisting or in any manner abetting any person committing any or either of the acts aforesaid; and also from entering upon the grounds, foundry or premises of the American Steel Foundries without first obtaining its consent; and from injuring or destroying any of the property of the said American Steel Foundries.”
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184.	Opinion of the Court.
There were twelve assignments of error on the appeal to the Circuit Court of Appeals, but the important ones which raised the issue in this case were as follows:
“ Eighth. Because the complainant was not entitled to an injunction prohibiting the defendants while on the streets of Granite City or while in proximity to such foundry, from trying to persuade strike breakers from taking the places of the strikers.
“ Ninth. Because the complainant was not entitled to an injunction prohibiting the defendants from stopping employees of complainant and suggesting to them that they should not work at such plant while a strike was on.
“Tenth. Because the complainant wgs not entitled to an injunction prohibiting the defendants from assembling, or congregating, in proximity of said foundry, or on the streets leading to such foundry.
“ Eleventh. Because the complainant was not entitled to an injunction prohibiting the defendants from placing any picket, or pickets, upon the streets leading to such foundry, whose duty it was to notify those entering said foundry that there was a strike on.”
The Circuit Court of Appeals modified the final decree by striking out the word “ persuasion ” in the four places in which it occurred, and by inserting after the clause restraining picketing the following: “in a threatening or intimidating manner.” 238 Fed. 728.
The Tri-City Central Trades Council is a labor organization composed of representatives of thirty-seven trade unions of Granite City, Madison and Venice, adjoining towns in Illinois, including among them electricians, cranemen, mill hands, machinists, and stationary engineers. In April, 1914, the complainant, which ordinarily in full operation employed 1600 men, and whose plant had been shut down since November of the previous year, resumed operations with about 350 of its regular men, 150 of whom belonged to the skilled trades, electricians, fi267°—22-----18
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
cranemen, mill hands, machinists and blacksmiths. At this trial, the works manager testified: “ When we opened April 6th we employed whoever we saw fit, whoever applied for employment at the gate. We only had called for in round numbers 300 men, and laid off approximately 1300 men. Eighty or ninety per cent, of the employees were old men. I assume these men were members of various organizations; I can’t state definitely as to that.” When business was resumed in April, half of the skilled workmen were given wages at rates from two cents to ten cents an hour below those paid before the plant had shut down. The Trades Council wag advised of this about April 15th, and appointed a committee to secure reinstatement of the previous wages. The manager of the complainant told them that he ran an open shop, did not recognize organized labor and would not deal with the committee, but would entertain any complaint by an employee. The Council thereupon, on April 22nd, declared a strike on complainant’s plant and displayed outside of the entrance to the plant a printed notice announcing that a strike was on at the plant and calling on union men and all labor to remain away from the works in order that an increase in wages might be secured. Only two men, defendants Churchill and Cook, acted upon the order to strike. Churchill was a member of the Machinist’s Union. Cook was not a member of any union. The Council then established a picket, which was carried on for three or four weeks without intermission until the bill was filed on May 18th, and a restraining order issued.
Complainant’s plant was in an enclosure of twenty-five acres and fronted on Niedringhaus Avenue. The Wabash and other railroads crossed this street and ran along the side of the plant. There were four tracks. The time keeper’s gate of the plant opened on to the tracks. Directly opposite on the other side of the tracks was the Wabash depot, from three to four hundred feet from the
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184.	Opinion of the Court.
plant. It was on Niedringhaus Avenue, and this street was the one used by many of the plant’s employees in going to their homes in Granite City and in reaching the terminal of the street car line which many used. Complainant’s employees testified that, just as the picketing began, they were warned by some of the defendants that they would be hurt if they did not quit. The master mechanic of the plant, Hall, testified that Lamb, one of the defendants, the national representative of the Machinist’s Union at St. Louis, when in company with four other pickets, handed him the circular of the Trades Council, and told him, “We don’t like the way you have treated our boys down here, and we just came down to raise a little hell.” Lamb admitted saying to Hall that the cut in wages was a severe one and that it looked as though they were going to raise hell in the town because conditions were good; that he didn’t like to see a fight going on, but it looked as though it would come. The evidence showed that the pickets would stand about near the Wabash tracks, sometimes on the Foundries’ side, sometimes on the depot side, sometimes on Niedringhaus Avenue, and that there were three or four groups of them varying from four to a dozen in each group. The headquarters of all the groups was at the Wabash depot.
There was an assault on April 30th, in which one Hafner, an employee, was attacked by three of the picketers. On May 8th, a man named Crabtree and four other employees were attacked by a group of more than seven of the pickets. On May 13th, another assault occurred, which developed into a mob, and two witnesses for complainant swore positively that the President of the Trades Council, Galloway, was engaged in this disturbance and was throwing bricks. There were other assaults, the last one on May 18th before the restraining order issued that day reached the picketers. Officers of the company testified that a number of men wounded in these assaults
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were brought into the plant. All disturbances ceased after the restraining orders were served.
Galloway testified he was present at the plant three mornings for about fifteen or twenty minutes, and four or five evenings for maybe half an hour; that he engaged in no violence while he was there and saw none; that the representatives of the Central Trades were there doing picket duty, and that the closest he saw them to the plant was 20 feet in front of Wabash depot; that the Central Trades did not instruct anybody to assault anyone, but told them to picket the streets leading to the plant, and ask the men not to go into the plant or take work under the reduced wages. He said that the pickets were selected from the different crafts interested in the wages; that the joint board of the Council placed the pickets where they were, and the Council then sanctioned this action. He said he went down there to see that things were going right; that they placed the pickets there to prevent, if possible, the men from entering and working at the plant until they arbitrated the difference or advanced their wages to the former scale; that the pickets were not authorized to commit an unlawful act.
B. F. Lamb, already referred to, visited Granite City because he had a local union there affiliated with the Tri-City Trades Council. He went there three times a week during the strike, and did picket duty. He was on the picket line itself, which was about 100 or 120 yards from the plant. Pickets were merely there to convey information and ask cooperation. He denied that they authorized any assaults and he saw no assaulting. He heard of some fights which took place away from the plant, but he was in no way connected with them.
Hartbeck, who was business agent and secretary of the Blacksmith’s Union, said that he acted on the picket line every time he went over there, sometimes in the evening, sometimes at noon time. He said the pickets would ap-
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184.	Opinion of the Court.
proach a man and tell him the conditions and request him to come out; that he did that himself, but that he never threatened anyone and never used any violence of any kind. He said: “ In my estimation the four or five witnesses who swore to my presence at different times to assault testified falsely. . . . When the reduction of wages took effect, I was ordered by the superior of our District Board to go over there and to have men over there that would go to work to try to have them come out if they could under reduction of wages; probably some of our union men would go in unbeknowns of the trouble. At the time I went over there none of our men were at work in the plant because they had been sent for. But I went over anyway.”
Harry McKenny, a picket, testified that he did assault one of the fellows there; that he, Churchill and another picket, were standing together, and that he told a man named Hafner, an employee, to stay away from the building; that Hafner called him an insulting and profane name, and said he would work where he pleased, and that then he hit Hafner; that he never tried to stop anybody from going into the plant by force; that he did hit Hafner while he was on the picket line; that he did not hit him because he was going into the works, but just because he called him a bad name.
Churchill, a striker and picket, said he “ never struck a man over there; merely warned them, asked them to stay out of there; better keep away.” He said that he was present when Hafner was hit by McKenny for calling him a bad name, that Hafner begged them not to hit him again, but McKenny hit him twice. Then Hafner said he was going home. Churchill said he was present when the porter from the plant was bringing in two lunch baskets, that someone kicked the baskets out of the porter’s hands. Churchill said he was in the “ bunch ” standing there but he did not know who the man was
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that upset them. He said two or three fights took place, and that he (Churchill) saw the big one with *200 men in it. He was half a block away.
. Ishman, another picketer, said he was a craneman and resided at Granite City; that he was a member of the Cranemen’s Union, that he did picket duty during the strike, that he was there quite a bit morning and evening; that the duty of the pickets was to inform the employees of the plant that there was a strike on and to inform them of the conditions under which they were working. He said that on May 8th, Crabtree, an employee, and four other employees, were coming across the railroad tracks from their work; that they had seven pickets there. He said they got to talking to them and somebody started a fight; he said somebody made a pass at him and that he hit somebody. He said they claimed it was Crabtree; that it was 150 yards from the plant.
Cook, a defendant who was not a union man, went out with the strike. He said he left because he did not like his wages, and quit because there was a strike on. Nobody sent him there as a picket, but he joined them, and they were all together picketing and talking to some men going to or coming from work. He said he wanted to quit work and did not want anybody else to work in his place.
It is clear from the evidence that from the outset, violent methods were pursued from time to time in such a way as to characterize the attitude of the picketers as continuously threatening. A number of employees, sometimes fifteen or more, slept in the plant for a week during the trouble, because they could not safely go to their homes. The result of the campaign was to put employees and would-be employees in such fear that many abandoned work and this seriously interfered with the complainant in operating the plant until the issue of the restraining order.
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 201
184.	Opinion of the Court.
The first question in the case is whether § 20 of the Clayton *Act, October 15, 1914, c. 323, 38 Stat. 738, is to be applied in this case. The act was passed while this case was pending in the Circuit Court of Appeals. In Duplex Printing Press Co. v. Deering, 254 U. S. 443, 464, a suit to restrain a secondary boycott had been brought before the passage of the act, but did not come to hearing until after its passage. It was held that, because relief by injunction operates in futuro and the right to it must be determined as of the time of the hearing, § 20 of the act, relating to injunctions, was controlling in so far that decrees entered after its passage should conform to its provisions. The decree here appealed from in the District Court had been entered before the Clayton Act passed. But the whole cause was taken up by the appeal. The complainant had no vested right in the decree of the District Court while it was subject to review. Rafferty v. Smith, Bell & Co., this day announced, post, 226. The Circuit Court of Appeals was called upon to approve or to change the decree and was obliged, therefore, to regard the new statute in its conclusion, and so are we.
Section 20 is as follows:
“ That no restraining order or injunction shall be granted by any court of the United States, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property, or to a property right, of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.
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OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
“And no such restraining order or injunction shall prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do; or from paying or giving to, or withholding from, any person engaged in such dispute, any strike benefits or other moneys or things of value; or from peaceably assembling in a lawful manner, and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto; nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.”
It has been determined by this court that the irreparable injury to property or to a property right, in the first paragraph of § 20, includes injury to the business of an employer, and that the second paragraph applies only in cases growing out of a dispute concerning terms or conditions of employment, between an employer and employee, between employers and employees, or between employees, or between persons employed and persons seeking employment, and not to such dispute between an employer and persons who are neither ex-employees nor seeking employment. Duplex Printing Press Co. v. Deering, 254 U. S. 443. Only two of the defendants, Cook and Churchill, who left at the time of the strike, can invoke in their behalf § 20. We must, therefore, first consider the propriety of the decree as against them, and then as against the other defendants.
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 203
184.	Opinion of the Court.
The prohibitions of § 20, material here, are those which forbid an injunction against, first, recommending, advising or persuading others by peaceful means to cease employment and labor; second, attending at any place where such person or persons may lawfully be for the purpose of peacefully obtaining or communicating information, or peacefully persuading any person to work or to abstain from working; third, peaceably assembling in a lawful manner and for lawful purposes. This court has already called attention in the Duplex Case to the emphasis upon the words “ peaceful ” and “ lawful ” in this section. 254 U. S. 443, 473. It is clear that Congress wished to forbid the use by the federal courts of their equity arm to prevent peaceable persuasion by employees, discharged or expectant, in promotion of their side of the dispute, and to secure them against judicial restraint in obtaining or communicating information in any place where they might lawfully be. This introduces no new principle into the equity jurisprudence of those courts. It is merely declaratory of what was the best practice always. Congress thought it wise to stabilize this rule of action and render it uniform.-
The object and problem of Congress in § 20, and indeed of courts of equity before its enactment, was to reconcile the rights of the employer in his business and in the access of his employees to his place of business and egress therefrom without intimidation or obstruction, on the one hand, and the right of the employees, recent or expectant, to use peaceable and lawful means to induce present employees and would-be employees to join their ranks, on the other. If, in their attempts at persuasion or communication with those whom they would enlist with them, those of the labor side adopt methods which however lawful in their announced purpose inevitably lead to intimidation and obstruction, then it is the court’s duty which the terms of § 20 do not modify, so to limit what
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Opinion of the Court.	257 U. S.
the propagandists do as to time, manner and place as shall prevent infractions of the law and violations of the right of the employees, and of the employer for whom they wish to work.
How far may men go in persuasion and communication and still not violate the right of those whom they would influence? In going to and from work, men have a right to as free a passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. We are a social people and the accosting by one of another in an inoffensive way and an offer by one to communicate and discuss information with a view to influencing the other’s action are not regarded as aggression or a violation of that other’s rights. If, however, the offer is declined, as it may rightfully be, then persistence, importunity, following and dogging become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. From all of this the person sought to be influenced has a right to be free and his employer has a right to have him free.
The nearer this importunate intercepting of employees or would-be employees is to the place of business, the greater the obstruction and interference with the business and especially with the property right of access of the employer. Attempted discussion and argument of this kind in such proximity is certain to attract attention and congregation of the curious, or, it may be, interested bystanders, and thus to increase the obstruction as well as the aspect of intimidation which the situation quickly assumes. In the present case the three or four groups of picketers, were made up of from four to twelve in a group. They constituted the picket lines. Each union interested, electricians, cranemen, machinists and blacksmiths, had several representatives on the picket line, and assaults and violence ensued. They began early and continued from time to time during the three weeks of the strike
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 205
184.	Opinion of the Court.
after the picketing began. All information tendered, all arguments advanced and all persuasion used under such circumstances were intimidation. They could not be otherwise. It is idle to talk of peaceful communication in such a place and under such conditions. The numbers of the pickets in the groups constituted intimidation. The name “ picket ” indicated a militant purpose, inconsistent with peaceable persuasion. The crowds they drew made the passage of the employees to and from the place of work, one of running the gauntlet. Persuasion or communication attempted in such a presence and under such conditions was anything but peaceable and lawful. When one or more assaults or disturbances ensued, they characterized the whole campaign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to lawful methods to be pursued, however sincere. Our conclusion is that picketing thus instituted is unlawful and can not be peaceable and may be properly enjoined by the specific term because its meaning is clearly understood in the sphere of the controversy by those who are parties to it. We are supported in that view by many well reasoned authorities, although there has been contrariety of view. Barnes & Co. v. Typographical Union, 232 Ill. 424; Franklin Union v. People, 220 Ill. 355; Philip Henrici Co. v. Alexander, 198 Ill. App. 568; Vegelahn v. Guntner, 167 Mass. 92; Jonas Glass Co. v. Glass Association, 72 N. J. Eq. 653, s. c. 77 N. J. Eq. 219; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759; Frank & Dugan v. Herold, 63 N. J. Eq. 443; Goldberg, Bowen & Co. v. Stablemen's Union, 149 Cal. 429; Pierce v. Stablemen's Union, 156 Cal. 70; Local Union No. 313 v. Stathakis, 135 Ark. 86; Beck v. Teamsters' Union, 118 Mich. 497 ; In re Langell, 178 Mich. 305; Jensen v. Cooks' & Waiters' Union, 39 Wash. 531 ; St. Germain v. Bakery & Confectionery Workers' Union, 97 Wash. 282; Jones v.
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
Van Winkle Gin & Machine Works, 131 Ga. 336; Union Pacific R. R. Co. v. Ruej, 120 Fed. 102; Atchison, Topeka & Santa Fe Ry. Co. v. Gee, 139 Fed. 582; Stephens v. Ohio State Telephone Co., 240 Fed. 759.
A restraining order against picketing will advise earnest advocates of labor’s cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work, and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerve and physical strength and courage. But while this is so, we must have every regard to the congressional intention manifested in the act and to the principle of existing law which it declared, that ex-employees and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful economic struggle. Regarding as primary the rights of the employees to work for whom they will, and, undisturbed by annoying importunity or intimidation of numbers, to go freely to and from their place of labor, and keeping in mind the right of the employer incident to his property and business to free access of such employees, what can be done to reconcile the conflicting interests?
Each case must turn on its own circumstances. It is a case for the flexible remedial power of a court of equity which may try one mode of restraint, and if it fails or proves to be too drastic, may change it. We think that the strikers and their sympathizers engaged in the economic struggle should be limited to one representative for each point of ingress and egress in the plant or place of business and that all others be enjoined from congregating or loitering at the plant or in the neighboring streets by which access is had to the plant, that such representatives should have the right of observation, communica-
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 207
184.	Opinion of the Court.
tion and persuasion but with special admonition that their communication, arguments and appeals shall not be abusive, libelous or threatening, and that they shall not approach individuals together but singly, and shall not in their single efforts at communication or persuasion obstruct an unwilling listener by importunate following or dogging his steps. This is not laid down as a rigid rule, but only as one which should apply to this case under the circumstances disclosed by the evidence and which may be varied in other cases. It becomes a question for the judgment of the Chancellor who has heard the witnesses, familiarized himself with the locus in quo and observed the tendencies to disturbance and conflict. The purpose should be to prevent the inevitable intimidation of the presence of groups of pickets, but to allow missionaries.
With these views, it is apparent that we can not sustain the qualification of the order of the District Court which the Circuit Court of Appeals made. That court followed the case of Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45, and modified the order of the District Court which enjoins defendants “ from picketing or maintaining at or near the premises of the complainant, or on the streets leading to the premises of said complainant, any picket or pickets ” by adding the words “ in a threatening or intimidating manner.” This qualification seems to us to be inadequate. In actual result, it leaves compliance largely to the discretion of the pickets. It ignores the necessary element of intimidation in the presence of groups as pickets. It does not secure practically that which the court must secure and to which the complainant and his workmen are entitled. The phrase really recognizes as legal that which bears the sinister name of “ picketing ” which it is to be observed Congress carefully refrained from using in § 20.
There remains to consider, so far as defendants Churchill and Cook, the ex-employees, are concerned, the
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
part of the decree of the District Court which forbade them by persuasion to induce employees, or would-be employees to leave, or stay out of, complainant’s employ. The effect of it is to enjoin persuasion by them at any time or place. This certainly conflicts with § 20 of the Clayton Act. The decree must be modified as to these two defendants by striking out the word “ persuasion.”
The second important question in the case is as to the form of decree against the Tri-City Trades Council and the other defendants. What has been said as to picketing applies to them, of course, as fully as to the ex-employees, but how as to the injunction against persuasion?
The argument made on behalf of the American Foundries in support of enjoining persuasion is that the Tri-City Central Trades Council and the other defendants being neither employees nor strikers were intruders into the controversy, and were engaged without excuse in an unlawful conspiracy to injure the American Foundries by enticing its employees, and, therefore, should be enjoined.
It is to be noted, that while there was only one member of the unions of the Trades Council who went out in the strike, the number of skilled employees then engaged by the Foundries was not one-quarter of the whole number of men who would be engaged when it was in full operation. The works manager said that eighty or ninety per cent, of the employees were old men and that he assumed these men were members of various organizations. Other witnesses, members of the unions, testified that they had been employees of complainant in the previous fall. It is thus probable that members of the local unions were looking forward to employment when complainant should resume full operation and even though they were not exemployees within the Clayton Act, they were directly interested in the wages which were to be paid.
Is interference of a labor organization by persuasion and appeal to induce a strike against low wages under
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 209
184.	Opinion of the Court.
such circumstances without lawful excuse and malicious? We think not. Labor unions are recognized by the Clayton Act as legal when instituted for mutual help and lawfully carrying out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without more, to be without excuse and malicious. The principle of the unlawfulness of maliciously enticing laborers still remains and action may be maintained therefor in proper cases,
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Opinion of the Court.	257 U. S.
but to make it applicable to local labor unions, in such a case as this, seems to us to be unreasonable. |
The elements essential to sustain actions for persuading employees to leave an employer are first, the malice or absence of lawful excuse, and, second, the actual injury. The effect of cases cited as authority must be determined by an examination of the pleadings and facts to see how the malice or lack of lawful excuse was established, and whether there was not illegality present in the means used. Thus Walker v. Cronin, 107 Mass. 555, and Thacker Coal Co. v. Burke, 59 W. Va. 253, suits by an employer against members of a labor union in which the right of action for persuading was sustained, were heard on demurrer to the complaint. The element of malice was supplied by averment of the complaint, and was, of course, admitted by the demurrer. There are other cases in which the persuasion was accompanied by the intent to secure a breach of contract, or was part of a secondary boycott or had elements of fraud, misrepresentation or intimidation in it. Perkins v. Pendleton, 90 Me. 166, was a case of the latter kind. In Lucke v. Clothing Cutters, 77 Md. 396, it was held unlawful in a labor union to seek to compel an employer to discharge the plaintiff by intimidation, and it was said that the state law authorizing formation of trade unions to secure most favorable conditions for labor of their members was not a warrant for making war upon the non-union man or for illegal interference with his rights and privileges. A suit by an employee who seeks to hold a labor union liable for seeking his discharge by threatening to strike unless his employer discharges him, stands on a different footing from a mere effort by a labor union to persuade employees to leave their employment. There are in such a combination against an employee the suggestions of coercion, attempted monopoly, deprivation of livelihood and remoteness of the legal purpose of the union to better its mem-
AMER. FOUNDRIES v. TRI-CITY COUNCIL. 211
184.	Opinion of the Court.
bers’ condition, not present in a case like the present. Without entering into a discussion of those cases which include Brennan v. United Hatters of North America, 73 N. J. L. 729; Curran v. Galen, 152 N. Y. 33; Berry v. Donovan, 188 Mass. 354, and Plant v. Woods, 176 Mass. 492, it is sufficient to say they do not apply here.
The counsel for the Steel Foundries rely on two cases in this court to support their contention. The first is that of Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229. The principle followed in the Hitchman Case can not be invoked here. There the action was by a coal mining company of West Virginia against the officers of an International Labor Union and others to enjoin them from carrying out a plan to bring the employees of the complainant company and all the West Virginia mining companies into the International Union, so that the Union could control, through the union employees, the production and sale of coal in West Virginia, in competition with the mines of Ohio and other States. The plan thus projected was carried out in the case of the complainant company by the use of deception ancT misrepresentation with its non-union employees, by seeking to induce such employees to become members of the Union contrary to the express term of their contract of employment that they would not remain in complainant’s employ if union men, and after enough such employees had been secretly secured, suddenly to declare a strike against complainant and to leave it in a helpless situation in which it would have to consent to be unionized. This court held that the purpose was not lawful, and that the means were not lawful and that the defendants were thus engaged in an unlawful conspiracy which should be enjoined. The unlawful and deceitful means used were quite enough to sustain the decision of the court without more. The statement of the purpose of the plan is sufficient to show the remoteness of the benefit ultimately to be derived by 6267°—22------19
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OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
the members of the International Union from its success and the formidable country-wide and dangerous character of the control of interstate commerce sought. The circumstances of the case make it no authority for the contention here.
Duplex Printing Press Co. v. Deering, 254 U. S. 443, also cited, can have no bearing here. In that case, the International Association of Machinists, an unincorporated association, having a membership of more than 60,000, united in a combination to compel the complainant to unionize its factory, enforce the closed shop, the eight-hour day and the union scale of wages by boycotting the interstate trade of that company. They conducted in the City of New York a campaign of threatening the customers of the Printing Press Company, the trucking companies that carried its presses, and those who were engaged in the work of setting up such presses, with injury to them in their business, if they continued to deal with the Duplex Company or its presses. It was a palpable effort on the part of the International Association of Machinists to institute a secondary boycott, that is, by coercion, to use the right of trade of persons having nothing to do with the controversy between the Duplex Company and the Machinist’s Union, and having no interest in it, to injure the Duplex Company in its interstate trade. This was decided not to be within § 20 of the Clayton Act, but was held, following the case of Loewe v. Lawlor, 208 U. S. 274, to be an unlawful combination in restraint of interstate trade. The Hitchman Case was cited in the Duplex Case, but there is nothing in the ratio decidendi of either which limits our conclusion here or which requires us to hold that the members of a local labor union and the union itself do not have sufficient interest in the wages paid to the employees of any employer in the community to justify their use of lawful and peaceable persuasion to induce those employees to refuse to accept such reduced wages
MITCHELL FURN. CO. v. SELDEN BRECK CO. 213
184.	Syllabus.
and to quit their employment. For this reason, we think that the restraint from persuasion included within the injunction of the District Court was improper, and in that regard the decree must also be modified. In this we agree with the Circuit Court of Appeals.
The decree of the Circuit Court of Appeals is reversed in part and affirmed in part and the case is remanded to the District Court for modification of its decree in conformity with this opinion.
Mr. Justice Brandeis concurs in substance in, the opinion and the judgment of the court.
Mr. Justice Clarke dissents.
ROBERT MITCHELL FURNITURE COMPANY v. SELDEN BRECK CONSTRUCTION COMPANY.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.
No. 56. Argued November 7, 1921.—Decided December 5, 1921.
1.	A judgment of the District Court dismissing an action upon the ground that the process served was void and gave no jurisdiction over the defendant’s person, is reviewable directly here. P. 214.
2.	The purpose of a state law requiring foreign corporations to appoint local agents upon whom process may be served is primarily to secure local jurisdiction in respect of business transacted within the State, and the scope of the agency should not be extended further by implication unless so construed by the state Supreme Court. P. 215.
3.	In an action in Ohio by an Ohio corporation against a Missouri corporation, upon a contract to be performed in Michigan, negotiated by correspondence and consummated (it seems) in Illinois, it appeared that the defendant had appointed an agent in Ohio, upon whom process might be served (Ohio Gen. Code, § 179) and was engaged in building operations there when the contract was made, but, before the suit, had ceased such operations and withdrawn its property and men and thereafter it merely filed an
214	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
annual report in compliance with Ohio Gen. Code, § 5499, after service in the action was made on the agent. Held, that the service was void. Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U. S. 373. Affirmed.
Writ of error to review a judgment of the District Court dismissing an action against a foreign corporation, upon the ground that the service of process upon its statutory agent did not give jurisdiction over the person of the corporation.
Mr. Leo J. Brumleve, Jr., with whom Mr. Walter A. De Camp and Mr. Dudley V. Sutphin were on the brief, for plaintiff in error.
Mr. Simeon Nash, with whom Mr. C. C. Williams was on the brief, for defendant in error.
Mr. Justice Holmes delivered the opinion of the court.
This case is here on error to a judgment of the District Court that held thè summons in the suit void and, on the plaintiff’s statement that it could not secure service otherwise, dismissed the petition for want of jurisdiction over the person of the defendant. An appeal to this Court lies in such a case. Board of Trade of Chicago v. Hammond Elevator Co., 198 U. S. 424. The material facts are as follows: The action is brought by an Ohio corporation upon a contract made with the defendant, a Missouri corporation, to deliver “ F. 0. B. cars Ann Arbor, Michigan,” specified woodwork for the library building of the University of Michigan, upon which the defendant was engaged. The contract was made by correspondence between the plaintiff in Cincinnati and the defendant in Chicago, and would seem from the affidavits and exhibits to have become operative by the posting of a letter of the defendant accepting corrections, at Chicago, on February 10, 1917, although by the declaration it is alleged to have been made in Cincinnati. Beaumont v. Prieto, 249 U. S.
MITCHELL FURN. CO. v. SELDEN BRECK CO.215
213.	Opinion of the Court.
554. The defendant is a contractor, constructing buildings and the like, and, being a foreign corporation, in 1910 had designated Simeon Nash as a person upon whom process against it could be served within the State of Ohio, as required by statute. Subsequently it constructed buildings in Ohio, but its last work was finished on October 26, 1918, and its workmen and property were withdrawn from the State. Since that date it has made no bids for work there. This action was begun on April 5, 1919, in a State Court of Ohio, but afterwards was removed to the District Court of the United States. The only service was upon Nash, and the question is whether it was sufficient in the circumstances set forth.
An annual report is required by Gen. Code § 5499 from foreign corporations for profit doing business in the State. The defendant filed such a report in July, 1919, after the service, and no doubt would have been ready to bid upon Ohio contracts that seemed to it tempting, as it had done in the past. The plaintiff contends that these facts show that it was doing business in Ohio when the writ was served. The defendant says that the report was necessary for the ascertainment of taxes due from it for the last financial year, but it may be assumed that the wish to keep open the possibility of further employment was a contributing motive. It did nothing, however, and it contends that merely watching from outside for a chance was not enough to bring it into the trap. If it had withdrawn from the State the agency of Nash did not extend to receiving service in a suit upon a contract made and to be performed as this was. Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U. S. 373. The defendant relies upon the analogy of that case.
The purpose in requiring the appointment of such an agent is primarily to secure local jurisdiction in respect of business transacted within the State. Of course when a foreign corporation appoints one as required by statute it
216
OCTOBER TERM, 1921.
Syllabus.
257 U.S.
takes the risk of the construction that will be put upon the statute and the scope of the agency by the State Court. Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U. S. 93. But the reasons for a limited interpretation of a compulsory assent are hardly less strong when the assent is expressed by the appointment of an agent than when it is implied from going into business in the State without appointing one. In the latter case the implication is limited to business transacted within the State. Simon v. Southern Ry. Co., 236 U. S. 115, 131, 132. Old Wayne Mutual Life Association v. McDonough, 204 U. S. 8, 22, 23. Unless the state law either expressly or by local construction gives to the appointment a larger scope, we should not construe it to extend to suits in respect of business transacted by the foreign corporation elsewhere, at least if begun, as this was, when the long previous appointment of the agent is the only ground for imputing to the defendant an even technical presence. Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U. S. 373. The indications of the Ohio statutes, so far as they go, look to “ liability incurred within this State.” Gen. Code § 181. As we know of no decision to the contrary by the Supreme Court of Ohio, we are of opinion that the service upon Nash was bad.
Judgment affirmed.
NORTH PACIFIC STEAMSHIP COMPANY v. SOLEY.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.
No. 63. Submitted November 7, 1921.—Decided December 5, 1921.
1.	It is the duty of the District Court to dismiss, whenever it appears to its satisfaction that the suit does not really and substantially involve the requisite jurisdictional amount. Jud. Code, §§ 24, 37. P. 221.
NORTH PAC. S. S. CO. v. SOLEY. 217
216.	Argument for Appellant.
2.	When this question is raised by answer, the District Court will decide it upon the facts adduced and this court will review the decision upon the evidence as one presenting a jurisdictional question. P. 221.
3.	In a suit to enjoin execution of an award for disabling personal injuries, made under the California Compensation Act and requiring present payments and future indemnity payments during a maximum period, it was proven that the defendant was cured before the bill was filed, so that the total liability was less than $3,000, though it would have been more had his disability continued, and that the award had been reduced accordingly by action of the proper authority, upon his application, while the suit was pending. Held, that the District Court had no jurisdiction. P. 221.
Affirmed.
Direct appeal from a judgment of the District Court, dismissing after a hearing for want of jurisdiction.
Mr. Ernest Clewe and Mr. Frank W. Aitken for appellant.
The circumstances existing at the time of filing the bill of complaint are determinative of jurisdiction. Way v. Clay, 140 Fed. 352. This being the case, the order of the Commission entered August 25, 1919, terminating the liability of appellant as of December 10, 1917, cannot enter into the question.
The award of the Commission commanded payment to appellee of $3,496.60. The maximum sum which appellant could eventually be called upon to pay under its terms was definitely determined and did not depend upon any affirmative contingency. The obligation of appellant to pay the total sum had at that time been imposed upon it by the Commission as fully and completely as that body could have imposed it in any case.
Having filed the findings and award in the Superior Court and having obtained a judgment thereon, appellee’s legal right and power to collect the full sum of $3,496.60
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Opinion of the Court.	257 U. S.‘
by means of a series of levies of execution was complete. He could not be deprived thereof save by a further order of the Commission filed in the Superior Court.
Appellant was not bound to seek relief before the Commission. Remer v. Mackay, 35 Fed. 86.
The value of the matter in dispute exceeded, exclusive of interest and costs, $3,000. The object of the appellant in this action was to be rendered secure in its property to the same extent that it stood menaced by the award and judgment. Glenwood Light Co. v. Mutual Light Co., 239 U. S. 121 ; Lee v. Watson, 1 Wall. 337; Bureau of National Literature v. Sells, 211 Fed. 379.
Where, as in this case, the jurisdictional amount is pleaded in good faith or the determination of the amount involved depends upon issues of fact or law, the court has jurisdiction. Interstate Building & Loan Association v. Edgefield Hotel Co., 109 Fed. 692-694; Stillwell-Bierce Co. v. Williamston Oil Co., 80 Fed. 68.
Mr. Christopher M. Bradley, for appellee. Mr. Herbert N. Ellis and Mr. Henry Heidelberg were also on the brief.
Mr. Justice Day delivered the opinion of the court.
This case is here solely upon the question of the jurisdiction of the District Court to entertain the suit. The bill was filed in the District Court by the North Pacific Steamship Company against the Industrial Accident Commission of California, William T. Soley, and H. I. Mulcrevy, County Clerk of the City and County of San Francisco. The bill alleged that the complainant was engaged in the business of transportation in interstate commerce between various points on the Pacific Coast, and operated the steamer “ Breakwater ” ; that on or about the 12th of June, 1916, the said steamer, then in the navigable waters of the United States loading cargo, had in its
NORTH PAC. S. S. CO. v. SOLEY. 219
216.	Opinion of the Court.
employ the respondent, Soley, as a stevedore, and that said Soley was injured by falling down a hatchway of the steamer; that on the 27th day of November, 1916, Soley filed an application with the Industrial Accident Commission for damages under the Compensation Act of California; that, after a hearing, the Commission made the following award:
“ 1. Cash in hand the sum of two hundred eighty-one dollars and twenty-five cents ($281.25), this amount being the sum of weekly payments of said disability indemnity accrued up to and including the 18th day of December, 1916, less, however, the sum of thirty dollars ($30.00), to be deducted therefrom and paid to Herbert N. Ellis as his attorney’s fee, as attorney for the applicant herein.
“ 2. The further sum of eleven dollars and twenty-five cents ($11.25) per week payable weekly in advance beginning with the 19th day of December, 1916, until the termination of said disability or the further order of this Commission, the total period of payment-however not to exceed two hundred forty weeks.
“ 3. Cash in hand the sum of five hundred fifteen dollars and thirty-five cents ($515.35) for medical and hospital services rendered as follows:
Agnew Sanitarium			$149.85
Dr. E. H. Crabtree		.... 152.00
Dr. Maynard C. Harding			 203.50
Dr. L. C. Kinney, for X-ray		....	10. 00 ”
The bill averred that by virtue of the award the complainant had been ordered to pay Soley $3,015.35.
The bill further alleged that at the time of his injury Soley was engaged in the performance of a maritime contract aboard a vessel in the navigable waters of the United States engaged in interstate commerce; that his remedy was exclusively within the admiralty and maritime juris-
220
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
diction of the courts of the United States; that under § 26 of the Compensation Act a certified copy of the findings and award may be filed with the clerk of the Superior Court, and, that upon filing the copy of the findings and the award, execution may be issued upon the judgment; that Soley had filed certified copies of the findings and the award with the clerk of the Superior Court, and, unless restrained by injunction, would cause execution to be issued thereon for the purpose of making the amount of the award out of the property of the complainant. The bill prayed an injunction against any steps for the enforcement of the award.
Respondent, Soley, appeared and answered, and, among other things, set up:
“ Defendant denies that the value of the matter in controversy herein exclusive of interest and costs exceeds the sum of three thousand dollars; and alleges that the weekly indemnity of eleven and 25/100 dollars awarded to defendant from complainant under the terms of said award and judgment was contingent upon the continuance of defendant’s total disability, as appears at the foot of page 4 of complainant’s bill, and that at the time of the filing of complainant’s bill herein defendant’s said total disability had terminated and all of complainant’s subsequent liability under the terms of said award of the Industrial Accident Commission of the State of California had ceased; that the total liability of complainant under said judgment sought herein to be enjoined does not and will not exceed exclusive of interest and costs the sum of thirteen hundred eighty-one and 60/100 dollars ($1,381.60).”
In order that the District Court have jurisdiction of the cause it was necessary that the amount in controversy exceed exclusive of interest and costs the sum or value of $3,000. (Judicial Code, § 24.) Section 37 of the Judicial Code provides that “ if in any suit commenced in a dis-
NORTH PAG. S. S. CO. v. SOLEY. 221
216.	Opinion of the Court.
trict court ... it shall appear to the satisfaction of the said district court, at any time after said suit has been brought . . . that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court . . . the said district court shall proceed no further therein, but shall dismiss the suit . . . and shall make such order as to costs as shall be just.” Section 37 with the substitution of district court for circuit court is a reenactment of the Act of March 3, 1875, c. 137, 18 Stat. 470, 472.
The objection that jurisdiction to entertain the suit did not exist is one which may be taken by answer. Anderson v. Watt, 138 U. S. 694. Indeed, under § 37 it is the duty of the court, when it shall appear to its satisfaction that the suit does not really and substantially involve the necessary amount to give it jurisdiction, to dismiss the same, and this the court may do whether the parties raise the question or not. In the present case the issue was raised “by answer, and, therefore, it became necessary for the court to determine the question of jurisdiction upon the facts presented, and when brought directly here, it is the duty of this court to review the decision upon the testimony as one presenting a jurisdictional question. Wetmore v. Rymer, 169 U. S. 115; Gilbert v. David, 235 U. S. 561.
The award upon which the suit was brought provided for the payment of $11.25 per week in advance beginning on December 19, 1916, until the termination of Soley’s disability or the further order of the Commission, the total period of payment not to exceed 240 weeks. Upon the hearing upon the question of jurisdiction a copy of the findings and award of the Commission was put in evidence. Soley was called, and testified among other things, that after his doctor told him that he was cured he went back to work on or about December 10, 1917, and had been working ever since, and had made no claim upon
222
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
his employer since that time. An order of the Commission, filed August 25, 1919, was introduced in evidence, from which the Commission found that the disability suffered by Soley terminated on the 10th day of December, 1917; that the disability indemnity payable to him up to and including December 10,1917, amounted to $855, which together with the medical expenses theretofore awarded amounted to $515.35, making a total of $1,370.35, the total liability of the company to Soley by reason of his injury. It was also stipulated between the parties that the award in favor of Soley, a copy of which was in evidence, had been filed in the office of the clerk of the City and County of San Francisco, that a writ of execution had issued against the complainant on November 12, 1917, to satisfy said judgment to the extent of the amount which had accrued under such findings and award, which was less than $1,500; that said writ was returned unsatisfied; that the application of Soley for the termination of the award was made on August 20, 1919.
A witness was called who testified that at the time of the injury to Soley the steamer “ Breakwater ” was engaged in interstate commerce between ports on the Pacific coast.
Upon these facts the District Court found that the jurisdictional amount was not involved. In our judgment it did not err in reaching that conclusion. The award provided for weekly payments until the termination of the disability or until the further order of the Commission. The testimony showed that Soley had been pronounced cured by his physician, and had returned to work on December 10,1917, eight days before the action was brought. The order of the Commission, terminating the disability indemnity, found that the disability suffered by reason of the injury had terminated on December 10, 1917, and that the total liability of the defendant was $1,370.35. Under
HURLEY v. COMMISSION OF FISHERIES. 223
216.	Argument for Appellant.
these circumstances the court reached the conclusion that the jurisdictional amount was not involved. This conclusion, being sustained by the evidence, it was the duty of the court to proceed no further with the case.
Affirmed.
HURLEY v. COMMISSION OF FISHERIES OF VIRGINIA ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.
No. 33. Argued October 10, 11, 1921.—Decided December 5, 1921.
Decree of the District Court refusing a preliminary injunction, but not dismissing the bill, in a suit to enjoin the appellees from removing stakes, etc., designating oyster grounds planted by appellant, and thereby opening them to public use,—affirmed.
264 Fed. 116, affirmed.
For a fuller statement of the case see the report of the case below.
Mr. Thomas B. Snead and Mr. S. S. P. Patteson, with whom Mr. Herbert I. Lewis and Mr. Thomas J. Downing were on the brief, for appellant.
Their principal contentions may be summarized as follows:
The statute of Virginia, known as the Oyster Law, (Acts 1910, c. 343) contains only two sections applicable to the case at bar, to wit, §§15 and 39. These provide for the resurveying of planting grounds, and in neither, nor in any other portion of the oyster laws, is any provision for a trial of the rights of an oyster planter, lessee of the State, whose beds adjoin the Baylor line, demarking, the natural oyster grounds reserved to the public.
224
OCTOBER TERM, 1921.
Argument for Appellant.
257 U. S.
While the statute1 provides for the ascertainment of a fact and uses the words “ it shall appear,” etc., there is no provision even for a notice to the occupant.
It is therefore submitted that under the Constitution the Commission of Fisheries did not have jurisdiction to determine the property rights of appellant. Appellant had built up and improved the grounds by planting; had been allowed by the State’s officers to stake them and pay taxes for rental; was thereby an actual lessee of the State. At the time of the proceedings instituted by the Commission his property, in the shape of planted oysters upon the grounds held by the Commission to be public bottoms within the Baylor survey, were of the value of more than $8,000.
By the action of the Commission, it has been determined that the stakes designating the grounds of appellant shall be at once removed and that his planted oysters shall be thrown open to the public, and that he, the owner, shall not be permitted to take possession of or to remove the same,—thus confiscating, without any legal proceedings, the property of appellant.
It is contended by appellees that appellant appeared before the Commission. “ It is not enough that the
1 “ § 15. Resurveys oj Planting Ground.—When, by any resurvey of oyster-planting grounds or survey made to re-establish the lines of the State survey of natural oyster beds, rocks or shoals, which shall hereafter be made under the direction of the Commission of Fisheries, it shall appear that any holder, without his own default, and by mistake of any officer of the State, has assigned to him and included in the plat of his assignment any portion of the natural oyster beds, rocks or shoals as defined by law, and it shall further appear that such holder has oysters or shells planted on said ground, then, before the stakes shall be removed from said ground or the same opened to the public, the said holder shall be allowed a reasonable time, the length of which is to be determined by the Commission of Fisheries, in their discretion (and duly advertised), within which to remove his planted oysters or shells from said ground . . . ”
HURLEY v. COMMISSION OF FISHERIES. 225
223.	Opinion of the Court.
owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require notice and give them the right to a hearing, and an opportunity to be heard. . . . The constitutional validity is to be tested, not by what was done under writ, but by what may by its authority be done.” Stuart v. Palmer, 74 N. Y. 183; Taylor, Due Process, § 133; Coe v. Armour Fertilizer Works, 237 U. S. 413, 424; Central of Georgia Ry. Co. v. Wright, 207 U. S. 127.
Mr. Robert W. Shultice, with whom Mr. J. D. Hank was on the brief, for appellees.
Mr. Justice McReynolds delivered the opinion of the court.
Appellant sought a temporary injunction restraining the Virginia Commission of Fisheries from removing the stakes and marks which designated the boundaries of certain oyster grounds in the Rappahannock River, planted by him and which he claimed the right to occupy, and thereby opening the same for public use and enjoyment.
He maintained that the Commission was proceeding under a state statute invalid because it failed to provide for proper notice and hearing and that the proposed action would deprive him of property without due process of law contrary to the Fourteenth Amendment.
A majority of the three judges composing the court below concluded—264 Fed. 116—that the Commission had acted in substantial compliance with the challenged statute, that whatever rights of property appellant claimed in respect of the specified lands, or the oysters thereon, were necessarily based upon the statute itself and that he could not both assail it and rely upon it in the same proceeding. Kansas City, Memphis & Birmingham R. R. Co. v. Stiles, 242 U. S. Ill, 117. And further that the evidence showed conclusively that the threatened
226	OCTOBER TERM 1921.
Statement of the Case.	257 U. S.
action would not deprive him of any property which he could rightfully claim. It accordingly refused to grant a temporary injunction but did not dismiss complainant’s bill. We find no reason to interfere with this decree and it is affirmed.
Affirmed.
Mr. Justice Clarke concurs in the result.
RAFFERTY, COLLECTOR OF INTERNAL REVENUE FOR THE PHILIPPINE ISLANDS, v. SMITH, BELL & COMPANY, LIMITED.
SAME v. COMPANIA GENERAL DE TABACOS DE PILIPINAS.
SAME v. VISAYAN REFINING COMPANY.
CERTIORARI TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.
Nos. 138, 140, 142. Argued November 10, 1921.—Decided December 5, 1921.
1.	Taxes on the value of exports from the Philippine Islands collected under a Philippine Act, effective July 1, 1916, while duties on such exports were forbidden by the Act of Congress of August 29, 1916, c. 416, 39 Stat. 545, were legalized, ratified and confirmed by the congressional Act of June 5,1920, c. 253, 41 Stat. 1015, 1025. P. 231.
2.	This was within the power of Congress (United States v. Heinszen & Co., 206 U. S. 370,) even where the parties taxed had obtained judgments for restitution, in the Supreme Court of the Philippines, before the date of the ratifying statute but where the judgments at that date were still reviewable and subsequently were reviewed in this court by certiorari. P. 232.
40 Phil. Rep. 691, reversed.
Certiorari to the Supreme Court of the Philippine Islands for the review of judgments of that court holding illegal the collection of certain taxes and ordering the Col-
RAFFERTY v. SMITH, BELL & CO. 227
226.	Argument for Respondents.
lector of Internal Revenue for the Islands, defendant below, to refund them to the present respondents.
Mr. Grant T. Trent, with whom Mr. Cassius M. Dowell was on the briefs, for petitioner.
Mr. Clarence B. Miller, with whom Mr. W. H. Lawrence, Mr. J. G. Lawrence and Mr. Frederick C. Fisher were on the briefs, for respondents.
The transactions involved were exports.
The taxes in question were not legalized by the Act of Congress of July 1, 1916, 39 Stat. 286; nor by the Act of June 4, 1918, 40 Stat. 597.
The Act of Congress of June 5, 1920, 41 Stat. 1025, can not have the effect of confiscating the judgments under review. The Smith, Bell & Company case was commenced in the Court of First Instance of Manila in February, 1918; in July, 1918, that court ordered the entry of judgment; both parties appealed; the Philippine Supreme Court entered its judgment in March, 1920. The Compañía General case, was commenced in the Court of First Instance January 23, 1917; judgment in favor of respondent was rendered November 26, 1917; both parties appealed to the Supreme Court and judgment there was given in favor of respondent March 16, 1920. The Visa-yan Refining Company case was commenced in the Court of First Instance on January 20, 1917; judgment in favor of respondent was entered by that court on November 26, 1917; both parties appealed to the Supreme Court and judgment there was given in favor of respondent March 18, 1920. By these judgments respondents became entitled to recover from petitioner the amounts which the petitioner had exacted as taxes under the ostensible authority of § 1614, Act No. 2657.
The decisions upholding retrospective statutes to cure irregularities as against claims not reduced to judgment, of which many are quoted or cited by petitioner, do not 6267°—22--------20
228
OCTOBER TERM, 1921.
Argument for Respondents.
257 U. S.
require particular notice. All are distinguishable in that they do not involve the overthrow of judgments, and most of them present other obvious and vital differences that make them inapplicable herein. None of them goes so far toward being in point as United States v. Heinszen & Co., 206 U. S. 370, and if that case is not controlling, all the others fall with it.
The proposition that a statute may divest rights established by a judgment is so abhorrent to our fundamental principles and to natural justice, as well as to familiar constitutional limitations, that there are few instances in our jurisprudence where the attempt has been made and passed upon. Nevertheless, there is plain condemnation of the theory in the decisions of this court. McCullough v. Virginia, 172 U. S. 102, 103; Stephens v. Cherokee Nation, 174 U. S. 445, 478; Pennsylvania v. Wheeling Bridge Co., 18 How. 421, 431; Haley v. City, 68 Pa. St. 45; Taylor v. Place, 4 R. I. 337; Sanders v. Cabaniss, 43 Ala. 184; Lawson n. Jeffries, 47 Miss. 702; Griffin v. Cunningham, 20 Gratt. 54. While United States v. Heinszen & Co. holds that a congressional ratification may destroy a mere right of action, practically overruling in this respect DeLima n. Bidwell, 182 U. S. 1, yet the reasoning, by distinction, compels the conclusion that a claim reduced to judgment is immune.
The immunity of respondents’ judgments from legislative confiscation does not depend upon their finality in the sense of not being subject to judicial review. If the interposition of this court had the effect of vacating the judgments and bringing the causes here to be tried de novo, the case might, arguably, be different; but, upon the allowance of the writ, the judgment is reviewed “ as if brought up by writ of error,” and it is precarious only to the extent that error may be found. If the judgment is declared free from error, its affirmance by this court will in no way enhance its value or change its character. The ultimate
RAFFERTY v. SMITH, BELL & CO. 229
226.	Argument for Respondents.
question is whether the judgments are “ property ” of respondents, such as may not be taken without due process; the review herein is an examination of respondents’ title to the property—not a proceeding from which such title may arise. A judgment creditor in a case reviewable for error may be divested of his property in the judgment, but only by “ due process of law ”—which judicial reversal is, and legislative confiscation is not.
There is a fundamental difference between the ratification sustained in the Heinszen Case, and the ratification asserted by petitioner herein, in that the one supplied a mere absence of prior authority, while the other is invoked to cure an express denial of authority. This difference is inferentially recognized in the Heinszen opinion, p. 382.
It is obvious that where the principal has denied authority to his agent and third parties have relied upon such denial, the principal may not thereafter retroactively give validity, in prejudice of such third parties, to acts of the agent in contumacious exercise of the power denied.
The distinction is clear between an act of Congress withdrawing the Government’s consent to be sued, and an act which pretends to relieve one individual from his judgment debt to another.
Respondents’ vested rights in their judgments are analogous to vested rights secured by exemption from taxation. Choate v. Trapp, 224 U. S. 665; Ward v. Love County, 253 U. S. 17.
Even in the Philippine Islands no person may “ be deprived of life, liberty or property without due process of law.”
From a misunderstanding of the Insular Cases and certain subsequent decisions of this court there has arisen a wide-spread belief that Congress has power unlimited to legislate for the Insular Possessions. This belief has no foundation in the decisions of this court, and none in principle.
230	OCTOBER TERM, 1921.
Argument for Respondents.	257 U. S.
If there is no decision of this court affirmatively applying any guaranty or limitation of the Constitution in the Philippine Islands or Porto Rico, the reason is plain; the occasion has not arisen.
In cases wherein insular legislatures have encroached upon personal rights, the decisions have been based upon the guaranties of congressional organic laws, and the court has avoided as unnecessary determining whether the corresponding provisions of the Constitution would have been applicable. Kepner n. United States, 195 U. S. 100, 124.
On the other hand, the power of Congress over the Insular Possessions is derived from the same provision of the Constitution—Art. IV, § 3, par. 2—which supported the jurisdiction of Congress in the Territories which later became States. And it has been held that in legislating for those Territories Congress was not wholly exempt from constitutional limitations.
It lias been held that the uniformity clause of Art. I, § 8, does not apply to duties imposed by Congress in the Possessions, because the section requires uniformity only “ throughout the United States,” and the Possessions are not a part of the United States. Downes v. Bidwell, 182 U. S. 224, 262. But in that case even the majority of the court conceded that the Constitution contains limitations which operate upon the power of Congress wherever exercised. See also, Hawaii n. Mankichi, 190 U. S. 197; Dorr v. United States, 195 U. S. 138.
The grounds of dissent in the Insular Cases show that all of the Justices were agreed that the “ general prohibitions ” in support of “ natural rights ” limited the power of Congress to legislate for the Possessions.
Among these effective limitations is certainly that of the Fifth Amendment. Fletcher n. Peck, 6 Cr. 87.
The ratification by Act of June 5, 1920, covers only the period between July 1 and August 29, 1916.
RAFFERTY v. SMITH, BELL & CO. 231
226.	Opinion of the Court.
If petitioner’s collection of the taxes was unlawful, the award of interest was not error.
This is not an action against the Government.
Mr. Justice McReynolds delivered the opinion of the court.
These cases turn upon the same question and were argued together. In our view they can be disposed of by applying the Act of Congress, approved June 5, 1920, c. 253, 41 Stat. 1015, 1025, without passing upon any other point.
Acting under ostensible authority of § 1614, Act 2657, Philippine Legislature, approved February 24, 1916, and effective July 1 thereafter, the Collector of Internal Revenue for the Philippine Islands levied and collected the taxes here challenged upon the value of certain commodities exported from those Islands by respondents between October 1, 1916, and September 30, 1917.
The Supreme Court of the Islands gave judgments for the respondents during March, 1920. Petitions for writs of certiorari filed here in September thereafter and within time prescribed by law, were allowed. Act of Congress, approved September 6, 1916, c. 448, 39 Stat. 726.
Section 1614, Act 2657. “All merchants not herein specifically exempted shall pay a tax of one per centum on the gross value in money of the commodities, goods, wares, and merchandise sold, bartered, exchanged, or consigned abroad by them, such tax to be based on the actual selling price or value at which the things in question are disposed of or consigned, whether consisting of raw material or of manufactured or partially manufactured products, and whether of domestic or foreign origin. . . .”
Section 11, Act of Congress, approved August 29, 1916—Autonomy Act—c. 416, 39 Stat. 545. “ That no export duties shall be levied or collected on exports from the Philippine Islands, but taxes and assessments on
232
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
property and license fees for franchises, and privileges, and internal taxes, direct or indirect, may be imposed for the purposes of the Philippine government and the provincial and municipal governments thereof, respectively, as may be provided and defined by acts of the Philippine Legislature, and, where necessary to anticipate taxes and revenues, bonds and other obligations may be issued by the Philippine government or any provincial or municipal government therein, as may be provided by law and to protect the public credit. . .
The Act of Congress, approved June 5, 1920, supra, provides : “ The taxes imposed by the Philippine Legislature in section 1614 of the Act Numbered 2657, enacted by that body on February 24, 1916, are legalized and ratified, and the collection of all such taxes made under or by authority of such Act of the Philippine Legislature is legalized, ratified, and confirmed as fully to all intents and purposes as if the same had by prior Act of Congress been specifically authorized and directed.”
We think the language last quoted was intended to apply to the taxes collected from respondents, here called in question, and that it is sufficiently broad to include them. That the enactment is within the power of Congress necessarily follows from the doctrine announced in United States v. Heinszen & Co., 206 U. S. 370, 386, et seq.
The judgments below were subject to review here and the mere fact that the causes had proceeded to such stage gave respondents no higher rights than those possessed by Heinszen & Company, whose action to recover, although instituted prior to the passage of that enactment, was held to have been barred by the Act of June 30, 1906, c. 3912, 34 Stat. 636.
The judgments of the Supreme Court so far as adverse to Rafferty, the Collector, must be reversed and judg-
WESTERN FUEL CO. v. GARCIA. 233
226.	Argument for Petitioner.
ments entered here in his favor but without any allowance for costs either in this court or in the courts below.
Reversed.
Mr. Justice Clarke concurs in the result.
WESTERN FUEL COMPANY v. GARCIA, ADMINISTRATOR OF SOUZA.
CERTIFICATE FROM AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 28. Argued March 18, 1921; restored to docket for reargument and writ of certiorari ordered to issue to bring up entire record and cause, March 21, 1921; reargued October 7,^10, 1921.—Decided December 5, 1921.
1.	No suit to recover damages for the death of a human being caused by negligence may be maintained in the admiralty courts of the United States under the general maritime law. P. 240.
2.	But where death upon navigable waters follows from a maritime tort committed on navigable waters within a State whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam, for the damages sustained by those to whom such right is given. P. 242.
3.	The state statutes of limitation are applicable to such proceedings in the federal courts. So held, in a case where the injury and death occurred within the State where the libel was brought and whose statutes, creating the cause of action and providing a limitation, were applied. P. 242.
Judgment of District Court reversed.
Certiorari to review a case pending in the Circuit Court of Appeals on appeal from the District Court in admiralty.
Mr. Joseph F. Murray, with whom Mr. Robert M. McCormick was on the briefs, for petitioner.
This action is barred by the California statute of limitations. The Harrisburg, 119 U. S. 199. In that case the
234
OCTOBER TERM, 1921.
Argument for Petitioner.
257 U. S.
liability and the remedy in Pennsylvania were created by the Act of 1851 and the limitation was created by the Act of 1855. The liability and the remedy in this case are found in the same statutes, § 377, Code of Civil Procedure, and § 1970, Civil Code, and the limitation here is found in § 340, Code of Civil Procedure. Therefore, it would seem to follow that the limitation in this case is not only of the remedy but of the right. Davis v. Mills, 194 U. S. 451.
The respondent is not relieved of the bar of the statute of limitations by § 355, Code of Civil Procedure, Fay v. Costa, 2 Cal. App. 241, as there was no appeal, but the award in favor of Mrs. Souza was annulled by writ of review, the only reihedy available to the Western Fuel Company in the state courts. There is an entire failure to excuse the commencement of the action by the proper party, viz, the administrator. In Union Fish Co. v. Erickson, 248 U. S. 308, the right of action did not depend upon any state law; there was a maritime contract, and a right of action given by admiralty itself.
State statutes fixing the liabilities of parties in tort actions will not be applied in admiralty. Const., Art. Ill, § 2. Congress purposely excluded trials in admiralty from the operation of § 34 of the Judiciary Act of 1789 (Rev. Stats., § 721) so that the rights of litigants in courts of admiralty should be uniform and equal and not subject to the varying whims and ideas of the legislators of the different States; so that a claimant’s right to relief might not be limited by restrictive laws of any state legislature and so that the respondent might not be deprived of his recognized defenses.
In the same Judiciary Act, in what are now §§ 913 and 914 of the Revised Statutes, Congress expressly provided that not even the practice, forms or proceedings in admiralty should be the same as those in state courts. By these several statutes Congress showed unmistakably that
WESTERN FUEL CO. v. GARCIA.
235
233.	Argument for Petitioner.
courts of admiralty were to be independent of all state laws and decisions. Cf. American Steamboat Co. v. Chase, 16 Wall. 522, 534; Bucher v. Cheshire R. R. Co., 125 U. S. 555; Detroit v. Osborne, 135 U. S. 499; Mc-Claine v. Rankin, 197 U. S. 154. We have been unable to find any case where § 721 has been construed or any effect given it in an action in admiralty. Distinguishing: Trauffler v. Detroit & Cleveland Navigation Co., 181 Fed. 256, 261; Cornell Steamboat Co. v. Fallon, 179 Fed. 293; Quinette v. Bisso, 136 Fed. 825; The Alaska, 130 U. S. 201; and The Corsair, 145 U. S. 335.
The statutes of California under consideration here take away from an employer the defenses of assumption of risk, negligence of a fellow servant and contributory negligence. These statutes are not mere rules of evidence. They affect the rights and liabilities of the parties. New Orleans & Northeastern R. R. Co. v. Harris, 247 U. S. 367; Yazoo & Mississippi Valley R. R. Co. v. Mullins, 249 U. S. 531. If a state legislature, in actions by employees against employers brought in a court of admiralty, may take away the employer’s defenses, then it can go one step further and make the employer responsible for all injuries regardless of negligence. This would be going far beyond what was contended for in Southern Pacific Co. v- Jensen, 244 U. S. 205. If the New Jersey compensation law is not applicable to maritime torts, and there is no question but that it is not applicable (Coon v. Kennedy, 248 U. S. 457 ; 91 N. J. L. 598), how can it seriously be contended that the California Act, which is in effect a compensation law, is enforceable in a court of admiralty?
This court has held in numerous cases in which actions were brought under the Federal Employers’ Liability Act that state statutes would have no application, although the suits were brought in state courts, because Congress had legislated. On the other hand, over maritime matters the States had never exercised any jurisdic-
236
OCTOBER TERM, 1921.
Argument for Petitioner.
257 U.S.
tion, because jurisdiction had been from the beginning reserved to Congress. The distinction was recognized in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149. And even though Congress, in enacting § 34 of the Judiciary-Act, had not shown conclusively that state statutes could not affect proceedings in admiralty, still its failure to legislate could not be construed as permission for the States to make their legislation binding in admiralty. Southern Pacific Co. v. Jensen, 244 U. S. 205; Knickerbocker Ice Co. n. Stewart, 253 U. S. 149; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372; Schuede v. Zenith S. S. Co., 244 U. S. 646; Workman v. New York City, 179 U. S. 552.
It has always been recognized that material differences in the liabilities of the parties may depend upon the forum, and that, whereas such liabilities at common law might change with the several States, they would remain the same in admiralty. Steamboat New York v. Rea, 18 How. 223; Atlee v. Packet Co., 21 Wall. 389; The Eagle v. Fraser, 8 Wall. 15; Smith v. Conary, 1 How. 28; Watts n. Camors, 115 U. S. 353. Even the dissenting members of this court in the recent cases recognized the rule.
A court of admiralty will recognize state statutes permitting a recovery for death, but wdll enforce them in accordance with the well-recognized principles of maritime law. Under the Judiciary Act a person injured by reason of a maritime tort has the election of proceeding in admiralty or proceeding at common law. If he proceeds in a court of common law he acquires the benefits and assumes the obligations of the common law. If he proceeds in admiralty, he acquires the benefits and assumes the obligations of admiralty. It was open to the plaintiff in this case to proceed in the state courts of California and there avail himself of the California statutes, but he chose the court of admiralty.
WESTERN FUEL CO. v. GARCIA. 237
233.	Argument for Respondent.
The argument that because in this case admiralty is enforcing a right given by a state statute the liabilities of the parties are fixed by the state statutes,* is satisfactorily answered in The J. E. Rumbell, 148 U. S. 1. Since Souza met his death by reason of the negligence of a fellow servant, no recovery can be had.
Mr. Henry Heidelberg, with whom Mr. Christopher M. Bradley was on the briefs, for respondent.
A suit by libel for damages for wrongful death can be maintained only because of the existence of a state statute and the recovery should be in accordance with the substantive law laid down in that statute.
Section 1970 of the Civil Code, and its modifications of the fellow-servant law, violates no “ characteristic ” features of admiralty law, for the reason that it is in relation to recovery for wrongful death, and there was no common law or admiralty law upon that subject.
The rule of laches should be applied as the law of limitations of actions in this case, for the reason that admiralty has as one of its “ characteristics ” the law of laches, which is the law of that forum.
The right given under § 1970 has no limitations attached to it as to the length of time in which suit must be brought. The limitation of actions for the State is found in a distinct enactment, § 337, Code of Civil Procedure, which provides for a limitation of one year.
The question thus involved has been passed upon in Gregory v. Southern Pacific Co., 157 Fed. 113, in which a suit for wrongful death, based upon an injury happening in California and upon the sections of the California law authorizing such recovery, was maintained in Oregon within two years, notwithstanding the fact that the law of limitation of action for recovery in that case in California was one year. And see Theroux v. Northern Pacific R. R. Co., 64 Fed. 84. It will be contended by our opponents
238
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
that the California statute of limitations should apply, and cases may be cited in which such statutes of limitation have been applied, but in those cases the law placed a limitation upon the right of recovery by making the statute read “ provided ” suit is brought within a certain length of time, and the limitation of time for suit will be found within the statute giving the right of suit.
No such limitation is contained in § 1970, Civil Code of California, and time is not made the essence of the right to sue. Courts of admiralty recognize the rule of laches in suits of this kind. The Harrisburg, 119 U. S. 199.
Ample excuse for delay was shown in this case.
Limitation of actions is a law of the forum and the law of the forum governs when there is a conflict as to limitations of actions. O’Sullivan v. Felix, 233 U. S. 318; Gregory v. Southern Pacific Co., 157 Fed. 113.
A writ of review, such as was the procedure for reviewing the award of the California Industrial Accident Commission, is not an appeal and hence no subsequent action could have been maintained in the state court pursuant to § 335, California Code Civil Procedure, Fay v. Costa, 2 Cal. App. 241.
Courts of admiralty are not bound by state statutes in determining the question of laches; they govern themselves by the analogies only, in the absence of special or exceptional circumstances.
Mr. Justice McReynolds delivered the opinion of the court.
The Circuit Court of Appeals certified certain questions for instruction and thereafter we directed that the cause be sent here for determination as if upon appeal. Judicial Code, § 239.
Manuel Souza, a citizen and resident of California, was instantly killed, August 5, 1916, while employed as a stevedore by the petitioner and at work in the hold of the
WESTERN FUEL CO. v. GARCIA. 239
233.	Opinion of the Court.
“ Tancred,” a Norwegian vessel under charter to it, then anchored in San Francisco Bay and discharging her cargo. The libel alleged that the injury was caused by coal negligently permitted to fall from a steel hoisting bucket.
Relying upon the California Workmen’s Compensation Act of 1913, the Industrial Accident Commission granted an award in favor of the widow and children which the Supreme Court of the State annulled August 6, 1917—a year and a day subsequent to the death.
Shortly thereafter—August 21st—the widow and children began an admiralty suit in personam against the petitioner in the United States District Court, Northern District of California, wherein they alleged that the accident resulted from its negligence and prayed for damages. Later, respondent, having been appointed administrator, filed an amended libel with like allegations and prayer; and upon this the cause was ultimately tried. Petitioner denied liability and relied upon § 340, sub-section 3, California Code of Civil Procedure, which requires that an action for damages consequent upon death caused by wrongful act, or negligence shall be brought within one year.1
1 CALIFORNIA CODE OF CIVIL PROCEDURE.
Title II. Time of Commencing Civil Actions.
Chapter I. Time of Commencing Actions in General.
Section 312. Commencement of civil actions. Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.
Chapter III. Time of Commencing Actions other than for Recovery of Real Property.
Section 335. Periods of limitation prescribed. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows: . . .
Section 340. Within one year. . . .
3. An action for libel, slander, assault, battery, false imprisonment, seduction or for injury to or for the death of one caused by the wrongful act or neglect of another or by a depositor against a bank for the payment of a forged or raised check.
240
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
The District Court held in favor of the administrator and awarded substantial damages; the Circuit Court of Appeals has sent up the whole cause under our direction.
It is established doctrine that no suit to recover damages for the death of a human being caused by negligence, may be maintained in the admiralty courts of the United States under the general maritime law. At the common law no civil action lies for an injury resulting from death. The maritime law as generally accepted by maritime nations leaves the matter untouched and in practice each of them has applied the same rule for the sea which it maintains on land. The Harrisburg, 119 U. S. 204, 213; The Alaska, 130 U. S. 201, 209; La Bourgogne, 210 U. S. 95, 138, 139.
How far this rule of non-liability adopted and enforced by our admiralty courts in the absence of an applicable statute may be modified, changed or supplemented by state legislation has been the subject of consideration here but no complete solution of the question has been announced.
In Cooley v. Board of Wardens, 12 How. 299, and Ex Parte McNiel, 13 Wall. 236, the power of a state to legislate concerning subjects maritime in their nature was under discussion; and it was pointed out that as to certain local matters a state statute may grant rights which will be enforced in an admiralty court.
In American Steamboat Co. v. Chase, 16 Wall. 531, 532, the decedent was killed on navigable waters within Rhode Island. Relying upon the death statute of that State, his administrator sued and recovered in one of its courts. This court affirmed the judgment. Whether an admiralty court could have entertained a proceeding based upon the statute was mooted but not determined.
Sherlock v. Alling, 93 U. S. 99, arose out of a collision between steamboats on the Ohio River within the limits
WESTERN FUEL CO. v. GARCIA. 241
233.	Opinion of the Court.
of Indiana, whose statute gave a right of action for death caused by wrongful act, and a recovery in the state court was affirmed here. The defense rested primarily upon the erroneous theory that the statute encroached upon the commercial powers of Congress. There was no discussion of the point now directly presented. In Butler v. Boston & Savannah S. S. Co., 130 U. S. 557, 558, the point was raised but left without expression of opinion.
The Hamilton, 207 U. S. 398, 405, an admiralty proceeding for limitation of liability, affirmed the validity of claims for damages resulting from death at sea based upon the statute of Delaware where the vessel’s owner had been incorporated.
The inferior federal courts on the admiralty side have enforced rights of action based upon death statutes holding they had jurisdiction as the claims grew out of torts on navigable waters and were maritime in their nature. The City of Norwalk, 55 Fed. 98, and the cases cited. See also Hughes on Admiralty, 2nd ed., pp. 228, 230, et seq.
In Southern Pacific Co. v. Jensen, 244 U. S. 205; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372; Union Fish Co. v. Erickson, 248 U. S. 308, and Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, we have recently discussed the theory under which the general maritime law became a part of our national law, and pointed out the inability of the States to change its general features so as to defeat uniformity—but the power of a State to make some modifications or supplements was affirmed. And we further held that rights and liabilities in respect of torts upon the sea ordinarily depend upon the rules accepted and applied in admiralty courts which are controlling wherever suit may be instituted. Under this view, American Steamboat Co. v. Chase, and Sherlock v. Alling, support the right to recover under a local statute in an admiralty court for
242	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
death occurring on navigable waters within the State when caused by tort there committed.
As the logical result of prior decisions we think it follows that, where death upon such waters results from a maritime tort committed on navigable waters within a State whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given. The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts, when following the common law, will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations. Southern Pacific Co. v. Jensen, supra.
The California Code of Civil Procedure, § 340, prescribes one year as the period within which an action for death caused by wrongful action or negligence shall be brought. It is admitted that under the circumstances here presented suit against petitioner, if instituted in a court of that State, would have been barred, and we are of opinion that the same limitation must be enforced in respect of the admiralty proceeding. It was so decided in The Harrisburg, 119 U. S. 213, 214, a proceeding in rem begun in the United States District Court, Eastern District of Pennsylvania. The steamer belonged to the Port of Philadelphia, where she was duly enrolled, and the accident occurred upon navigable waters within Massachusetts. The Pennsylvania statute permitted suit for damages resulting from death and provided that “ the action shall be brought within one year after the death, and not thereafter.” The Massachusetts statute provided that, in case of death resulting from the wrongful action of a corporation, the executor might recover by indictment a fine not exceeding $5,000.00, and further, that indictments
WESTERN FUEL CO. v. GARCIA. 243
233.	Opinion of the Court.
against a corporation for loss of life shall be prosecuted within one year from the injury causing the death. Through Mr. Chief Justice Waite, this court said:
“ The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. No one will pretend that the suit in Pennsylvania, or the indictment in Massachusetts, could be maintained if brought or found after the expiration of the year, and it would seem to be clear that, if the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. It matters not that no rights of innocent parties have attached during the delay. Time has been made of the essence of the right, and the right js lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.” See ■also Davis v. Mills, 194 U. S. 451, 453.
“An Act Relating to the maintenance of actions for death on the high seas and other navigable waters,” approved March 30, 1920, c. Ill, 41 Stat. 537, gives a right of action for damages resulting from death caused by wrongful act, neglect or default occurring on the high seas beyond one marine league from the shore. It expressly directs, “ That the provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this Act. Nor shall this Act apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone.”
In the present cause the District Court rightly assumed jurisdiction of the proceedings, but erred in holding the 6267°—-22------21
244	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
right of action was not barred under the state statute of limitation. Accordingly, its judgment must be reversed and the cause remanded there with instructions to dismiss the libel.
Reversed.
KAHN ET AL., EXECUTORS OF WOLFF, v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 52. Argued November 15, 1921.—Decided December 5, 1921.
Legacies of life interests in trust funds held vested in possession or enjoyment prior to July 1, 1902, within the meaning of the Refunding Act of June 27, 1902, and taxable under § 29 of the War Revenue Act of 1898, where, on or before July 1, 1902, the amounts of the legacies were ascertainable, all claims against the estate, save some for other taxes of relatively small amount, had been settled or barred, and the trustees were entitled to immediate possession of the funds from the executors and the beneficiaries to the beneficial enjoyment of the income. P. 247.
55 Ct. Clms. 271, affirmed.
Appeal from a judgment rejecting a claim for a refund of legacy taxes.
Mr. H. T. Newcomb, with whom Mr. Frederick L. Fish-back was on the brief, for appellants.
Mr. Assistant Attorney General Ottinger, with whom Mr. Solicitor General Beck and Mr. Harvey B. Cox were on the brief, for the United States.
Mr. Justice Brandeis delivered the opinion of the court.
This suit was brought in the Court of Claims by the executors of Abraham Wolff of New Jersey to have refunded $58,885.86 paid in taxes assessed upon legacies under the provisions of § 29 of the Act of June 13, 1898,
KAHN v. UNITED STATES. 245
244.	Opinion of the Court.
c. 448, 30 Stat. 448, 464-465. Wolff died on October 1, 1900. The taxes were paid on November 4, 1903. This suit was begun July 2, 1917. The contention is that the legacies were contingent beneficial interests not vested in possession or enjoyment on, or prior to, July 1, 1902; and that hence the amount paid is recoverable under the Acts of June 27, 1902, c. 1160, § 3, 32 Stat. 406, and of July 27, 1912, c. 256, 37 Stat. 240. The lower court dismissed the petition. Whether the interests assessed were contingent on July 1, 1902, and whether the claim sued on had been presented to the (Commissioner of Internal Revenue as required by the Act of 1912, are the questions argued before us. The view we take of the first question renders it unnecessary to consider the second.
Earlier decisions have settled the construction of these statutes. The test to be applied in determining whether the legacies were, on July 1, 1902, still contingent is a practical, not a technical one. The beneficial interests were contingent unless the legatees were then in actual possession or enjoyment, Henry v. United States, 251 U. S. 393, or were entitled to immediate possession or enjoyment, United States v. Jones, 236 U. S. 106; McCoach v. Pratt, 236 U. S. 562; Coleman v. United States, 250 U. S. 30; Sage v. United States, 250 U. S. 33. But a gift to trustees of a fund, the net income of which is to be paid over periodically during life, is, at least after the payments have commenced, a life estate, not a contingent beneficial interest. United States v. Fidelity Trust Co., 222 U. S. 158. And the mere failure of executors to establish the trust fund will not prevent the vesting of a legacy, if under the state law the time for payment has come, the right thereto is uncontroverted, and it is clear that the money retained will not be needed to satisfy outstanding claims. Simpson v. United States, 252 U. S. 547.
Wolff provided by his will, among other things, for fifteen separate trust funds, ranging in amount from
246
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
$20,000 to $100,000 and aggregating $730,000. The income of each was made payable for life to the beneficiary without power of anticipation or assignment. Provision was made that the executors should, until the several trusts were established, pay monthly to each a sum named; and these amounts were approximately, but not exactly, proportionate to the probable income of the respective funds. There was also a provision that if the aggregate amount of the funds to be so established should exceed one-fifth of the net estate, each should be proportionately reduced. A trust of the residue was provided for» the benefit of the testator’s daughters. The amount or value of the fifteen trusts was ascertainable before July 1, 1902. None of the funds directed to be paid to the trustees had been paid to them, or set apart or established by that date; but no reason was shown why they should not have been. The value of the estate (over seven million dollars) was such, and was before that date known to be such, that no pending controversy or outstanding claim could affect the value of any but the residuary legacies; and these only to a slight extent. The executors paid before that date certain small legacies, the fixed monthly allowances to the fifteen beneficiaries, and to each of the residuary legatees, as income, more than $300,000.
The will was admitted to probate by the Orphans Court for Morris County, on November 7, 1900, and letters testamentary issued on that day. By the law of New Jersey executors are required to state and settle their accounts within a year after their appointment, unless the time is extended for cause. The Orphans Court is empowered to fix a period of nine months for the presentation of claims against the estate; and claims not presented within that time may be declared barred. If no time is fixed in a will for the payment of legacies they are payable within a year after the probate; and if not so paid, legatees may maintain an action therefor. Publication of
CENTRAL R. R. CO. v. UNITED STATES. 247
244.	Syllabus.
the notice to creditors to present their claims within nine months was begun on November 7, 1900. On August 8, 1901, that court entered an order declaring that creditors who had neglected to do so, were barred. On July 1,1902, the only unadjusted matters, so far as shown, were claims for taxes for relatively small sums. These were not finally disposed of until November, 1903.
On July 1, 1902, therefore, the trustees were entitled to the possession of the funds and all the beneficiaries to the immediate enjoyment of the income thereof, with the exception of the amount involved in controversies over taxes. The executors might then have paid over the balance of the estate in their hands to the trustees, retaining funds sufficient to satisfy the claims in dispute. The amount on.which the taxes here in question were assessed is not shown to have exceeded the amount of such balance. The beneficial interests were, therefore, vested; and taxes were properly assessed thereon. In Vanderbilt v. Eidman, 196 U. S. 480, and Uterhart v. United States, 240 U. S. 598, the facts were different.
Affirmed.
CENTRAL RAILROAD COMPANY OF NEW JERSEY ET AL. v. UNITED STATES AND INTER-
STATE COMMERCE COMMISSION.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW JERSEY.
No. 436. Argued November 17, 1921.—Decided December 5, 1921.
1.	Orders of the Interstate Commerce Commission may be set aside when based upon mistake of law. P. 256.
2.	The Commission has power under § 1 of thé Act to Regulate Commerce, as amended, to determine in particular cases whether the granting or withholding of a transit privilege is unreasonable and unjust, and to require its allowance or its withdrawal accordingly. So held of the privilege of “ creosoting-in-transit,” whereby forest products may be unloaded at an intermediate point, subjected to
248	OCTOBER TERM, 1921.
Argument for Appellants.	257U.S.
the process of creosoting and forwarded on the original bill of lading to the destination therein named, without depriving the shipper of the benefit of through rates. P. 257.
3.	What Congress sought to prevent by § 3 of the Act to Regulate Commerce was not differences between localities in transportation rates, facilities and privileges, but unjust discrimination between them by the same carrier or carriers. P. 259.
4.	Participation in joint rates does not make connecting carriers partners, and they can be held jointly and severally responsible for unjust discrimination only if each has participated in some way in that which causes it. P. 259.
5.	Neither the Transportation Act of 1920, nor any earlier amendatory legislation, has changed, in this respect, the purpose or scope of §3. P. 260.
6.	Where the Commission found that denial of the creosoting privilege to a plant located at a point on the lines of certain carriers was not in itself unjust or unreasonable, but concluded that the plant suffered undue prejudice and disadvantage because they and other carriers before the Commission maintained joint rates, over routes passing through the point, in common with still other carriers, not parties, who had allowed the privilege to plants on their own lines as an item in their local tariffs and without the concurrence of the carriers before the Commission or participation by them in the revenues from the privilege, held, that the case was not remediable under § 3 of the Act to Regulate Commerce and that an order requiring the carriers proceeded against to remove the discrimination should be set aside. P. 257.
Reversed.
Appeal from a decree of the District Court denying a preliminary injunction in a suit brought by the Central Railroad Company of New Jersey, the Pennsylvania Railroad Company, and twenty-one other railroad corporations, to set aside an order made by the Interstate Commerce Commission.
Mr. Henry Wolf Bikl& and Mr. Alexander H. Elder, with whom Mr. Charles E. Miller was on the brief, for appellants.
A carrier is not chargeable with a violation of § 3 of the Interstate Commerce Act unless it participates in the
CENTRAL R. R. CO. v. UNITED STATES. 249
247.	Argument for Appellants.
service which is claimed to cause the undue prejudice prohibited.
In other words, there is no infraction of the section unless a carrier, serving two shippers, treats them differently in respect to the service which it renders, without just cause.
The applicable portion of § 3 is the first paragraph (24 Stat. 380). Paragraph 3 very clearly does not apply to the present litigation. It will also be found that neither paragraph 2, nor paragraph 4, of § 3, has any application.
Section 15 is one of the jurisdictional sections of the act. It does not expand the duties and obligations which are devolved upon the carriers by the other sections, principally § § 1, 2, 3 and 4, but it estabfishes the power of the Commission to enforce these duties and obligations. As illustrated by the Tank Car Case, United States v. Pennsylvania R. R. Co., 242 U. S. 208, carrier duties and commission power are not necessarily correlative.
Section 3 forbids any common carrier making or giving any undue or unreasonable preference or advantage to any particular person, or subjecting any particular person, etc., to undue or unreasonable prejudice or disadvantage. The prohibition against undue prejudice and disadvantage is the correlative of the prohibition against undue preference and advantage. The very word “ preference ” carries with it the thought of different treatment of two patrons by the same carrier. So also with respect to the words “ advantage ” or “ disadvantage ” and “ prejudice,” no carrier can create any advantage or disadvantage, or undue prejudice, unless, by its act, it places the one shipper in a more or less favorable position than it places the other. If this were not true the disadvantage, prejudice, etc., would arise not from its act, but from extraneous circumstances, with the result, illustrated in the case at bar, that a carrier would be required to accord a privilege,
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OCTOBER TERM, 1921.
Argument for Appellants.
257 U. S.
found upon hearing not reasonably demandable as to that carrier, merely because some other carrier granted the privilege under circumstances not in proof.
The decisions hold that, if a given commodity may be shipped to a common destination from different points of origin via the lines of two different carriers, there is no violation of § 3 even though the rates may be on an entirely different basis, relatively, and even though the effect of such different bases of rates is practically to exclude the shippers located at one point of origin from the common market. East Tennessee, &c. Ry. Co. v. Interstate Commerce Commission, 181 U. S. 1, 18. The Interstate Commerce Commission, in many cases, has followed this construction of the act.
It is manifest that in the present case the Commission has made a new departure which it seeks to justify upon the provisions of the Transportation Act, 1920. But no change was effected by this act in the applicable portion of § 3 of the Interstate Commerce Act. The Commission makes the general statement that the Transportation Act has greatly enlarged its powers “ and among other things we have been given authority to establish minimum rates.” What connection exists between the minimum rates and § 3 is not disclosed. .
The Interstate Commerce Act prescribes that a carrier party to a joint tariff must be shown as a participating carrier, (§6, par. 4, 34 Stat. 584). Clearly the law contemplates that a carrier shall not be regarded as participating in tariffs except when it is a party thereto.
While, when a joint through rate is established, it is ordinarily less than the sum of the combination of rates on some intermediate point, this is not a necessary feature of a joint rate, and, in fact, thousands of joint rates are the equivalent of the combination of so-called locals based on some intermediate point. In such a case, the handicap resulting to a shipper who does not have the
CENTRAL R. R. CO. v. UNITED STATES. 251
247.	Argument for the United States.
transit privilege, while it is accorded his competitor on another railroad participating in the transportation of the shipments, has no relation to the existence or non-existence of a joint rate. The disadvantage results from the establishment of the local privilege on the connecting line and the control of and responsibility for this rest alone with the railroad establishing it. The law requires the carriers to move the traffic, and no undue prejudice or discrimination can arise as a result of the service so rendered.
The Government and the Commission rely on the decision in United States v. Louisville & Nashville R. R. Co., 235 U. S. 314. But, in that case this court did not sustain the Commission’s finding under § 3 of the Interstate Commerce Act, but did uphold it under § 4. In this case there is no pretense that § 4 is involved, or violated.
The case at bar is different also from the other case in this court, relied on by the Government and the Commission,—St. Louis Southwestern Ry. Co. n. United States, 245 U. S. 136. The conclusive decision seems to be Penn Refining Co. v. Western New York & Pennsylvania R. R. Co., 208 U. S. 208, 221.
An order of the Commission based solely upon a violation of § 3 must be in the alternative, leaving the carrier free either to extend the practice or privilege to the complaining patron or to withdraw it from all. The order in this case, although in form an alternative order, leaves no real alternative in fact and actual operation.
If § 3 were construed as the Commission has construed it in this case, it would be unconstitutional as violative of the due process clause of the Fifth Amendment.
Mr. Blackburn Esterline, Special Assistant to the Attorney General, with whom Mr. Solicitor General Beck was on the brief, for the United States.
Appellants concur with connecting lines in publishing tariffs of through routes and joint rates. Presumably they
252
OCTOBER TERM, 1921.
Argument for Interstate Commerce Commission. 257 U. S. do that for the benefits and advantages they derive therefrom. In order to reap the rewards which flow from the Interstate Commerce Acts with solidarity they stand united. They should be gauged in that way, and not disconnectedly, when injury results in applying those rates. To hold that single companies by specific acts may at favored places and in selected instances break that unification and solidarity, to the advantage of shippers at those favored places and to the undue prejudice of other shippers at unfavored places, is to annihilate the statute.
As the Commission drew the order in the alternative, it may be assumed that it will accept compliance by allowing either the withdrawal of the appellants from the through routes and joint rates or the installation of creo-soting-in-transit at Newark. Great Northern Ry. Co. v. Minnesota, 238 U. S. 340. Distinguishing Penn Refining Co. v. Western New York & Pennsylvania R. R. Co., 208 U. S. 208; and Philadelphia & Reading Ry. Co. v. United States, 240 U. S. 334. Counsel fail in their endeavor to distinguish St. Louis Southwestern Ry. Co. v. United States, 245 U. S. 136.
Mr. Walter McFarland, with whom Mr. P. J. Farrell was on the brief, for the Interstate Commerce Commission.
What amounts to undue preference or prejudice is a question not of law, but of fact, with which the Commission was created to deal. United States v. Louisville & Nashville R. R. Co., 235 U. S. 314, 320; Pennsylvania Co. v. United States, 236 U. S. 351, 361; Interstate Commerce Commission v. Delaware, Lackawanna & Western R. R. Co., 220 U. S. 235, 255.
Appellants can comply with the order by pursuing any one of the following courses: (a) Establish the transit service at Newark; (5) cancel their participation in the joint rates through Newark; or (c) qualify their concur-
CENTRAL R. R. CO. v. UNITED STATES. 253
247.	Opinion of the Court.
rence in such rates to joint rates through Newark in connection with which transit service is not accorded at any point on the through route.
They are the principal carriers in trunk line and New England rate territories, and without their cooperation it would be impossible to subject the American Creosoting Company at Newark to undue prejudice.
The fact that a carrier has a certain policy can have no bearing upon its duty to obey the statute and lawful orders.
While it is true that appellants do not publish the transit services accorded to the favored competitors, it is equally true that their partners in the joint through rates do publish them and that by continuing to participate in the joint through rates appellants have made possible, and have made themselves effective instrumentalities in the execution of, the undue prejudice condemned by the Commission. Houston, East & West Texas Ry. Co. v. United States, 234 U. S. 342, 356; Interstate Commerce Commission v. Chicago, Rock Island & Pacific Ry. Co., 218 U. S. 88, 102, 103. St. Louis Southwestern Ry. Co. v. United States, 245 U. S. 136, is controlling in principle.
Mr. Justice Brandeis delivered the opinion of the court.
This suit was brought in the Federal District Court for New Jersey to enjoin the enforcement of an order of the Interstate Commerce Commission on the ground that it exceeds the powers of the Commission, was arbitrary and is void. The plaintiffs were the Central Railroad of New Jersey, the Pennsylvania, and twenty-one other railroads located in Trunk Line territory and New England. The defendants were the United States and the Interstate Commerce Commission. The former filed a motion to dismiss; the latter an answer which admitted the material allegations of the bill of complaint. On these pleadings
254
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
the case was heard before three judges on an application for a preliminary injunction. This was denied without written opinion; and the case is here on appeal under the Act of October 22,1913, c. 32,38 Stat. 208, 220.
The order of the Commission was entered upon a petition of the American Creosoting Company to which these twenty-three carriers—and no others1—were made respondents. American Creosoting Co. v. Director General, 61 I. C. C. 145. It alleged that the petitioner had a creosoting plant at Newark, New Jersey, which was connected by switch tracks with the Central and the Pennsylvania; that these carriers had failed to establish there the privilege known as creosoting-in-transit; that this failure was unjust and unreasonable in violation of § 1 of the Act to Regulate Commerce of February 4, 1887, as amended; and that it was also unjustly discriminatory in violation of § 3. The Commission found that failure to establish this transit privilege was not unjust or unreasonable and denied relief under § 1. But it found on the facts hereinafter stated that this failure subjected the company to unjust discrimination; and, granting relief under § 3, the Commission directed that the discrimination be removed by the respondents, who are the appellants here.
By the privilege called creosoting-in-transit, forest products received for shipment may be stopped and unloaded at an intermediate point, there subjected to the process of creosoting, and later forwarded on the original bill of lading to the destination therein named. Where the privilege is granted and availed of, delivery is made of the commodity to the creosoting plant, as if that were the final destination. It is there unloaded and treated;
1 Except the New York, Ontario and Western Railway Company, another carrier in the Trunk Line territory, whose interests were presumably not affected by the order. The number of carriers is, therefore, referred to herein as being twenty-three.
CENTRAL R. R. CO. v. UNITED STATES. 255
247.	Opinion of the Court.
and at some time thereafter it is redelivered to the carrier, as if there were an initial shipment of the creosoted product. Then it is forwarded to the final destination. Although some charge is made for the transit service, the shipper secures thereby a lower freight rate. For through rates are generally much less than the rate on the untreated forest product from point of origin to the transit point plus that on the treated product from there to destination.
The plant of the American Creosoting Company is not reached by lines of any of the twenty-three appellants except the Central and the Pennsylvania. Neither of these two carriers accords the creosoting-in-transit privilege at any point on its lines; and no competitor of the company has a plant on those of either. Nor is the privilege granted in Trunk Line territory by any carrier, with a single exception not here material. Some competitors of the American Creosoting Company have plants in Mississippi, Indiana, Illinois, Ohio and Pennsylvania; and the several railroads on which these plants are located have, each acting independently, established the privilege at the places where those plants are situated. Under the rules of the Commission governing the making, filing and publishing of tariffs, privileges like creosoting-in-transit are treated as a matter local to the railroad on which the transit point is situated. Whether the privilege shall be granted or withheld is determined by the local carrier. If granted, the local carrier determines the conditions; and these are set forth in the local tariff. Although a joint through route with joint rates is established by concurrent action of several carriers, the transit privilege may thus be granted by a carrier without the consent of, and without consulting, connecting carriers. And the whole revenue received for use of the privilege is retained by the local carrier. The appellants did not participate in any way in establishing the transit privileges enjoyed by
256
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
competitors of the Newark concern on lines of the southern and midwestern carriers; and none of those carriers is controlled by any of the appellants. But appellants did join with those southern and midwest railroads in establishing joint rates on forest products over routes which pass through the points at which this privilege prevails and also through Newark.1
The order entered by the Commission declares that the twenty-three carriers “ in so far as they respectively participate in tariffs carrying joint rates” on these forest products “ through Newark . . . from points in southern classification territory to points in northern New Jersey, eastern New York, and in New England ” subject the American Creosoting Company to undue prejudice and disadvantage; and it directs these twenty-three carriers to avoid this undue prejudice. How the discrimination shall be removed is not prescribed. In effect the order directs that unless the Central and the Pennsylvania establish the privilege at Newark, the twenty-three carriers must withdraw from all tariffs establishing the joint rates. As to administrative orders operating in futuro, the Commission’s findings of fact are conclusive, subject to qualifications here not pertinent; and a finding that the discrimination is unjust is ordinarily a finding of fact. Manufacturers Ry. Co. v. United States, 246 U. S. 457, 481, 482. But the question presented here is whether the discrimination found can be held in law to be attributable to the appellants, and whether they can be required to cancel existing joint rates, unless it is removed. No finding made by the Commission can pre-
1 The transit privilege so granted includes cutting of paving blocks into shape at creosoting plant. On some of the railroads the joint rates do not apply through the transit point. On them the privilege includes an out-of-line movement and on some lines also a back haul to reach final destination. This broadened privilege was sought for Newark.
CENTRAL R. R. CO. v. UNITED STATES. 257
247.	Opinion of the Court.
vent the review of such questions. Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42; Philadelphia & Reading Ry. Co. v. United States, 240 U. S. 334.
Creosoting-in-transit, like other transit privileges, rests upon the fiction that the incoming and the outgoing transportation services, which are in fact distinct, constitute a continuous shipment of the identical article from point of origin to final destination. The practice has its origin partly in local needs, partly in the competition of carriers for business. The practice is sometimes beneficial in its results; but it is open to grave abuses.1 To police it adequately is difficult and expensive. Unless adequately policed, it is an avenue to illegal rebates and seriously depletes the carriers’ revenues. Railroad managers differ widely as to the policy of granting such privileges. The Commission clearly has power under § 1 of the Act to Regulate Commerce as amended to determine whether in a particular case a transit privilege should be granted or should be withdrawn. For that section requires, among other things, that carriers establish, in connection with through routes and joint rates, reasonable rules and regulations. The Commission might, therefore, acting under § 1, have directed the Central and the Pennsylvania to establish the creosoting-in-transit practice at Newark, if it deemed failure to do so unreasonable or unjust; or it might, in an appropriate proceeding, have directed the southern and midwestern carriers to discontinue the practice on their lines, if it deemed the granting of the privilege to be unreasonable or unjust. But it did neither. Instead it sought to accomplish by indirection either one result or the other and ordered under § 3 that the discrimination found to exist be removed. Twenty-one of the appellants are powerless either to cause the Central
1 See In Matter of Alleged Unlawful Rates and Practices, 7 I. C. C. 240; In Matter of Substitution of Tonnage at Transit Points, 18
I.	C. C. 280; The Transit Case, 24 I. C. C. 340.
258
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
and the Pennsylvania to instal the privilege at Newark or to cause the southern and midwestern carriers to discontinue the practice on their lines. The Central and the Pennsylvania are likewise powerless to cause these connecting carriers to withdraw the privilege. They can, it is true, equalize conditions by establishing the privilege at Newark. But to do so would involve departure from a policy to which they have steadfastly adhered and adhesion to which was held by the Commission not to be unreasonable. If they should establish the privilege at Newark, they would act contrary to their judgment and would adopt a practice which some connecting carriers had introduced without their concurrence or consent, and which may hereafter, upon appropriate enquiry, be held by the Commission to be unjust and unreasonable. Congress could not have intended that under such circumstances relief should be afforded under § 3, when a direct remedy is available under § 1.
It is insisted that the order leaves appellants the alternative of withdrawing from the tariffs which establish joint rates with the southern and mid western carriers through Newark. The order does not so provide in terms; and in fact the alleged alternative is illusory. The undue prejudice found arises not from the existence of joint rates, but from conditions local to other railroads. Cancellation of the joint rates would not change those conditions. Although the joint rates were withdrawn, the established through routes would remain. The duty to provide such routes is specifically enjoined by paragraph 4 of § 1; and, under the provisions of paragraph 1 of § 6, the separately established rates of the several connecting carriers would, in the absence of joint rates, apply to through transportation. So far as appears the Newark concern would be under the same disadvantage as compared with its competitors, whether the traffic moved on the combination of the rates local to the several lines or
CENTRAL R. R. CO. v. UNITED STATES. 259
247.	Opinion of the Court.
on joint rates. Even the abolition of the through routes (which is not suggested) would leave the relative positions of the several creosoting concerns unchanged. Can-, cellation of the joint rates would, at most, relieve appellants from the charge that they are violating the provisions of § 3.
It is urged that, while the undue prejudice found results directly from the individual acts of southern and midwestern carriers in granting the privilege locally, the appellants, as their partners, make the prejudice possible by becoming the instruments through which it is applied. Discrimination may, of course, be practiced by a combination of connecting carriers as well as by an individual railroad; and the Commission has ample power under § 3 to remove discrimination so practiced. See St. Louis Southwestern Ry. Co. v. United States, 245 U. S. 136, 144. But participation merely in joint rates does not make connecting carriers partners. They can be held jointly and severally responsible for unjust discrimination only if each carrier has participated in some way in that which causes the unjust discrimination; as where a lower joint rate is given to one locality than to another similarly situated. Penn Refining Co. v. Western New York & Pennsylvania R. R. Co., 208 U. S. 208, 221, 222, 225. Compare East Tennessee, Virginia & Georgia Ry. Co. v. Interstate Commerce Commission, 181 U. S. 1,18. If this were not so, the legality or illegality of a carrier’s practice would depend, not on its own act, but on the acts of its connecting carriers. If that rule should prevail, only uniformity in local privileges and practices or the cancellation of all joint rates could afford to carriers the assurance that they were not in some way violating the provisions of § 3. What Congress sought to prevent by that section, as originally enacted, was not differences between localities in transportation rates, facilities and privileges, but unjust discrimination between them by the 6267°—22------22
260
OCTOBER TERM, 1921.
Syllabus.
257 U.S.
same carrier or carriers. Neither the Transportation Act 1920, February 28,1920, c. 91,41 Stat. 456, nor any earlier amendatory legislation has changed, in this respect, the purpose or scope of § 3.
Reversed.
CURTIS, RECEIVER OF ATLANTIC NATIONAL BANK OF PROVIDENCE, R. I. v. CONNLY
ET AL.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.
No. 69. Argued November 16, 17, 1921.—Decided December 12, 1921.
1.	The state statute of limitations applies to a suit in a federal court by a receiver of a national bank against its former directors to recover for losses sustained by the bank through improper loans and investments and dividends paid out of capital. P. 262.
2.	Such a suit being based on the common-law right of the bank, the statute will not be tolled upon the ground of fraudulent concealment of the cause of action (Gen. Laws, R. I., 1909, c. 284, § 7) where the bank was put on notice by the entries on its own books. P. 262.
3.	Where the misrepresentations relied on for suspending the statute of limitations were the entering at their face value upon the books, and in reports made to the Comptroller and published, of loans and investments known by the defendant directors to be improper or worthless, held: (a) That the bank was chargeable with notice of the parties to whom loans had been made and the specific character of assets; (b) that the representations to be implied from the reports could not be taken as continuing after they had been superseded by later reports; (c) that the misrepresentations of value imported by the valuations on the books were not a concealment of the cause of action after new directors, not in conspiracy with the defendants, came upon the board and knew the facts, since their knowledge was imputable to the bank, even if they also proved unfaithful. P. 264.
4.	The running of a statute of limitations on a cause of action of a bank against directors will not be suspended by its fraudulent con-
CURTIS, RECEIVER, v. CONNLY. 261
260.	Opinion of the Court.
cealment beyond a period in which new directors, performing their duty to learn the bank’s affairs, would presumably have discovered it. P. 264.
5.	The fiduciary relation between a bank and its directors ceased when they left the board. P. 264.
264 Fed. 650, affirmed.
Appeal from a decree of the Circuit Court of Appeals affirming a decree of the District Court dismissing the bill, as to the appellees, in a suit brought by the appellant receiver to charge them with losses suffered by the bank.
Mr. Edward F. McClennen, with whom Mr. George H. Huddy, Jr., was on the brief, for appellant.
Mr: William W. Mops and Mr. Arthur M. Allen, with whom Mr. Percy W. Gardner, Mr. Edward A. Stockwell and Mr. Claude R. Branch were on the briefs, for appellees.
Mr. Justice Holmes delivered the opinion of the court.
This is a bill brought by a receiver of a national bank to recover from former directors of the bank for losses sustained by it because of dividends paid out of capital and improper loans and investments made by the defendants. The bill states with particularity the dates at which each defendant began and ceased to serve, and thus discloses that six of those named left office more than six years before August 2, 1916, when this suit was begun. On motion the bill was dismissed by the District Court as against these six on the ground that the statute of limitations of the State of Rhode Island was a bar. 259 Fed. 961, sub nom. Curtis v. Metcalf. The decree was affirmed by the Circuit Court of Appeals. 264 Fed. 650. The receiver appeals, contending that the bill states facts suffi-cient to suspend the running of the statute until within six years from the beginning of the suit.
262
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
There is no dispute that the statute of Rhode Island governs the case. McClaine v. Rankin, 197 U. S. 154. The only question argued is whether the bill brings the defendants within the exception to the general rule in Gen. Laws, 1909, c. 284, § 7: “If any person, liable to an action by another, shall fraudulently, by actual misrepresentation, conceal from him the existence of the cause of such action, said cause of action shall be deemed to accrue against the person so liable therefor, at the time when the person entitled to sue thereon shall first discover its existence.” The misrepresentations charged are having the books and financial statements of the bank so kept and made as to show at their face value loans and investments known to be improper or worthless and thus to conceal the impairment of the capital of the bank. These books were exhibited to the examiners and reports thus falsely made were filed with the Comptroller of the Currency and published, and none of the facts was discovered by any other than the directors before 1913, and many of them not until the latter part of 1915. The over statement of assets is alleged to have grown from $50,000 in 1906 to $700,000 in 1913, when the bank was found to be insolvent and was put into the hands of a receiver. It is laid at $150,000 on January 12, 1909, when three of the appellees ceased to be directors; and when the other three left on January 11, 1910, at probably more than $200,000. The bank was then still solvent. The appellant says that these facts bring the case within the above § 7, and that no discovery of them appears until after August 3, 1910, that is, until within six years of this suit.
This suit is brought upon the common-law right of the bank to recover for acts that diminished its assets. Therefore the question is whether the bank’s claim is barred. The bank of course must be charged with knowledge of
CURTIS, RECEIVER, v. CONNLY. 263
260.	Opinion of the Court.
what appeared upon its books. It owned them; its stockholders had a right to inspect them. Guthrie v. Harkness, 199 U. S. 148. Hence it would seem, as suggested by the District Judge, that so far as concerns investments of a kind that national banks are not allowed to make, the bank was chargeable with knowledge from the beginning and can found no claim upon them now. The parties to whom loans were made and the specific character of the assets must also have been known at all times, so that the only misrepresentations were those concerning the credit of the debtors implied by entering the claims at their face value in the books and reports. It is said that these were continuing representations, and no doubt the documents still read as they did when written. Whether they can be regarded as looking to an indefinite future reliance upon them or can be taken to have been relied upon for more than a short time except as to the belief of the directors at the moment is a different matter. The reports at least were superseded by later reports each of which imported a judgment as to then present values, not as to past.
The question, therefore, is narrowed to the entries on the books, and as to these, again as suggested by the District Judge, it is to be remembered that credits and the value of business paper or securities are variable. Many of those said to be overvalued were for short terms. Most of the renewals are stated to have been new extensions of credit—that is new judgments on present responsibility, superseding the old. We agree with the Courts below that the valuations on the books cannot be regarded as continuing in an effective sense. Three new directors came upon the board before August 3, 1910. It is alleged unmistakably in the bill that all the directors were chargeable with notice and did in fact know that the dividends were paid out of assets and not earned and that the im-
264
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
proper loans should be recalled. Even if otherwise the statute of liniitations would not have run, which we do not imply, knowledge of the facts by the new directors was knowledge by the bank, and none the less that according to the bill they in their turn were unfaithful. It is not alleged that they conspired with the defendants whose case we are considering. They came to the board as the eyes of the bank. Anyone of them having notice was bound to do what he could to avert or diminish the loss. Indeed the bill seeks to charge one of them for not having done his duty. Notice to an officer, in the line of his duty, was notice to the bank. A single director like a single stockholder could proceed in the courts. Joint Stock Discount Co. v. Brown, L. R. 8 Eq. 381, 403.
The counsel for the plaintiff seemed to take the bill as admitting less than we have said in the way of knowledge. We are unable to read it otherwise than as we have indicated, but even if knowledge on the part of the new directors were not expressly charged, it was their business and duty in the year and seven months from the resignation of the first three to August 3, 1910, or the seven months after the resignation of the second three to the same date, to get some notion of the credits and assets of the bank. It does not appear that there would have been any difficulty in ascertaining at least enough to lead to further inquiry if they had. See Wood v. Carpenter, 101 U. S. 135. The statute of limitations must not be applied so narrowly that business men will be afraid to take directorships, and however this bill be read in its details it appears to us not to charge enough to deprive the appellees of the protection of the act. It is said that they stood in a fiduciary relation to the bank. But they were strangers to it when they left the board, more than six years before this suit was brought. We see no reason why the statute should not apply. See Emerson v. Gaither,
EUREKA PIPE LINE CO. v. HALLANAN. 265
260.	Syllabus.
103 Md. 564. Boyd v. Mutual Fire Association of Eau Claire, 116 Wise. 155. Wallace v. Lincoln Savings Bank, 89 Tenn. 630.
Decree affirmed.
Mr. Justice Brandeis took no part in the decision of this case.
EUREKA PIPE LINE COMPANY v. HALLANAN, STATE TAX COMMISSIONER, ET AL.
ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA.
No. 255. Argued November 9, 1921.—Decided December 12, 1921.
1.	A judgment of a state court which sustains a state tax on interstate commerce over the objection that the statute under which it was imposed is unconstitutional, is reviewable here by writ of error, and none the less so because the court below reached its result by construing the statute as applicable to intrastate commerce only and by erroneously classifying as intrastate the commerce in question. P. 270.
2.	A pipe line company received oil from producers in West Virginia, subject to their right thereafter to order equal quantities of like grade to be transported and delivered to local destinations, or to extra-state destinations under an interstate tariff, and subject to its duty under the state law to have in its pipes and connected reservoirs enough to satisfy such orders; it charged the producers a storage and gathering charge under the state law; the oil as received became subject to the company’s control, was commingled with other like oil, piped through the company’s gathering system to its trunk line pipes, and, except for relatively small quantities ordered diverted to local delivery, became part of a stream of oil passing through and out of the State. Held, that a tax on the transportation, in so far as measured by the quantities produced in but moving out of West Virginia, was void under the Commerce Clause. P. 271.
87 W. Va. 396, reversed; writ of certiorari denied.
266
OCTOBER TERM, 1921.
Argument for Plaintiff in Error.
257 U. S.
Error to a judgment sustaining a tax in a suit brought by the plaintiff in error to restrain its enforcement. See the next case, post, 277.
Mr. Frank L. Crawford, with whom Mr. James M. Beck was on the briefs, for plaintiff in error.
The oil having been transported in a continuous stream through and out of the State (except as to relatively small portions diverted to refineries within the State), and having at the very outset of its journey been delivered by the producers to, and remained in the custody of, a common carrier (the plaintiff) until so transported, was in interstate commerce from the moment it was received by the plaintiff. Western Union Telegraph Co. v. Speight, 254 U. S. 17; United States n. Hill, 248 U. S. 420; Chicago, Rock Island & Pacific Ry. Co. v. Wright, 239 U. S. 548; North Carolina R. R. Co. v. Zachary, 232 U. S. 248; Lottery Case, 188 U. S. 321; International Textbook Co. v. Pigg, 217 U. S. 91; Ohio R. R. Commission v. Worthington, 225 U. S. 101; Western Oil Refining Co. v. Lipscomb, 244 U. S. 346; Pennsylvania Gas Co. v. Public Service Commission, 252 U. S. 23; Pennsylvania Gas Co. v. Saxe, 229 N. Y. 446; Swift & Co. v. United States, 196 U. S. 375; Texas & New Orleans R. R. Co. v. Sabine Tram Co., 227 U. S. Ill; Bracht v. San Antonio &c. Ry. Co., 254 U. S. 489; Bailey v. Bensley, 87 Ill. 556; Coe v. Errol, 116 U. S. 517; Bacon v. Illinois, 227 U. S. 504; General Oil Co. v. Crain, 209 U. S. 211; Standard Oil Co. v. Graves, 249 U. S. 389. Distinguishing: McCluskey v. Marysville & Northern Ry. Co., 243 U. S. 36, and Arkadelphia Co. v. St. Louis Southwestern Ry. Co., 249 U. S. 134.
In view of plaintiff’s operating contracts, and of the Pipe Line Act of West Virginia as construed by its highest court, the delivery by plaintiff to a consignee of a like amount of oil of the same grade in lieu of that re-
EUREKA PIPE LINE CO. v. HALLANAN. 267
265.	Argument for Plaintiff in Error..
ceived, was equivalent in law to delivery of the very oil received. 87 W. Va. 396; Bailey v. Bensley, 87 Ill. 556; National Exchange Bank v. Wilder, 34 Minn. 149; Hall n. Pillsbury, 43 Minn. 33.
In view of such construction by the court below, and of the evidence that the oil, or like amounts thereof, was by its owners intended to be, and actually was, transported through and out of the State, it will be presumed that such oil was received by plaintiff for interstate transportation, and its transportation^ therefore, was interstate commerce. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498; Worthington Case, supra; Sabine Tram Case, supra; Railroad Commission of Louisiana v. Texas & Pacific Ry. Co., 229 U. S. 336; Lipscomb Case, supra. See Creswill v. Knights of Pythias, 225 U. S. 246.
Even if the view of the court below were adopted, that the gathering charge covered the service of gathering. and conveying the oil to plaintiff’s trunk lines, and that for the transportation through its main pipe lines to destination plaintiff charged the further rate allowed by the Interstate Commerce Commission (which is not admitted), still this would only be a case of rebilling en route, and such re-billing would be immaterial in view of the intention of the parties and the general course of business. Worthington Case, supra; Sabine Tram Case, supra; Lipscomb Case, supra; Atchison, Topeka & Santa Fe Ry. Co. v. Harold, 241 U. S. 371; South Covington Ry. Co. v. Covington, 235 U. S. 537. But as it was a case of a double charge for one continuous service, it is not necessary to interpret the transaction as one of re-billing.
Where intrastate and interstate transactions are so interwoven, the authority of Congress extends to the whole situation. Minnesota Rate Cases, 230 U. S. 352, 381, 382,
268
OCTOBER TERM, 1921.
Argument for Defendants in Error.
257 U. S.
399; Southern Ry. Co. v. United States, 222 U. S. 20; Erie R. R. Co. v. Winfield, 244 U. S. 170; Philadelphia & Reading Ry. Co. v. Polk, 256 IT. S. 332.
Mr. Fred 0. Blue and Mr. S. B. Avis^ with whom Mr. E. T. England, Attorney General of the State of West Virginia, and Mr. Wm. Gordon Mathews were on the brief, for defendants in error.
There is not drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, with the necessary decision in favor of such validity, so as to justify review here by writ or error; nor is there drawn in question any title, right, privilege or immunity claimed under the Constitution, treaties or laws of the United States, so as to justify review by certiorari. The claim of plaintiff is, in effect, that because the oil is a lawful subject of interstate commerce, it may neither be subject to a tax, nor made the measure of a tax, prior to the determination by its owner that it shall be placed in interstate commerce.
The court below was correct in holding that it was the legislative intent to impose a tax only upon the intrastate transportation of the plaintiff and measured by the amount of such commerce. Quong Ham Wah Co. v. Industrial Accident Commission, 255 U. S. 445; Kehrer v. Stewart, 197 U. S. 60; Pullman Co. v. Adams, 189 U. S. 420; Platt v. New York, 232 U. S. 58; Barrett v. New York, 232 U. S. 14; Louisville &c. Ry. Co. v. Mississippi, 133 U. S. 587; Peik v. Chicago &c. R. R. Co., 94 U. S. 164; Osborne v. Florida, 164 U. S. 650. This construction and interpretation is binding upon this court. Elmendorf v. Taylor, 10 Wheat. 152; Quong Ham Wah Co. v. Industrial Accident Commission, supra.
The gathering, running and transporting of oil from wells to delivery points in West Virginia, not tendered for
EUREKA PIPE LINE CO. v. HALLANAN. 269
265.	Opinion of the Court.
shipment but held subject to the order of the owner, is an intrastate service. Until the oil is tendered for shipment, the plaintiff’s relation thereto is that of bailee, not carrier. Not being committed to interstate commerce, it is subject to taxation by the State to the owners thereof until committed to such commerce. The essential character of the transaction, and not the purpose or mental state of the owners, determines whether state or national law applies. New York Central R. R. Co. v. Mohney, 252 U. S. 152; McCluskey v. Marysville & Northern Ry. Co., 243 U. S. 36; Arkadelphia Co. v. St. Louis Southwestern Ry. Co., 249 U. S. 134; General Oil Co. v. Crain, 209 U. S. 211; Gulf, Colorado & Santa Fe Ry. Co. v. Texas, 204 U. S. 403; Coe v. Errol, 116 U. S. 517.
The business of plaintiff under consideration is intrastate, and was so regarded and treated by it. Pennsylvania R. R. Co. v. Knight, 192 U. S. 20, is controlling. [Distinguishing many of the cases relied on by plaintiff in error.]
Mr. Justice Holmes delivered the opinion of the court.
This is a bill to prevent the enforcement against the plaintiff of a statute of West Virginia that forbids engaging in the business of transporting petroleum in pipe lines without the payment of a tax of two cents for each barrel of oil transported. Acts of 1919, Extraordinary Session, c. 5. It is set up that the statute is contrary to the Constitution of the United States in several ways, one of these being that as applied to the plaintiff it imposes a tax upon commerce among the States. The plaintiff owns a system of pipe lines in West Virginia connecting with other pipe lines in Ohio and Kentucky on the west and in Pennsylvania on the east of the State. Through the plaintiff’s pipes oil flows in a continuous stream to the state line and beyond—in all amounting to over twenty-two million barrels in the year ending June 30, 1919. There are four
270
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
grades of the oil thus moved. Two of these are produced partly in West Virginia. According to the figures accepted by the defendants in error, out of a total 9,076,599.83 barrels of the Pennsylvania grade 6,510,081.51 barrels came from this State, upon over six millions of which the plaintiff made a charge of twenty, later thirty, cents for gathering, on an interstate tariff and also under a local statute. But all the oil of the same grade was mixed, regardless of source, and of the Pennsylvania grade only 1,239,099.55 barrels were used, in West Virginia. It is admitted that the tax may be levied in respect of the last item, but the question before us is whether the tax can be laid upon the whole product of the State upon which was imposed the gathering charge.
The Circuit Court of the State held that the statute was void. The Supreme Court of Appeals sustained it so far as the oil produced in West Virginia was concerned. But as the Court declared that the act should be construed to apply only to commerce within the State it is urged that there is no jurisdiction here of the writ of error because there is no question as to the validity of a statute so limited. The plaintiff in error also applied for a writ of certiorari so that the objection would be immaterial were we not required to determine upon which proceeding the decree should issue. In view of that necessity we dispose of the matter before going further. Upon the declaration of the Court we may conjecture that if it had considered that the oil. in question moved in interstate commerce it would have agreed with the Court below, and on this ground it is argued ‘that the mistake, if any, was not in approving the statute but in the Court’s conception of interstate commerce. But we must look at what the Court has done, not at its mode of reaching the result. What it has done is to decide that the statute covers all the oil produced in West Virginia and that it shall be upheld in so doing. The nature of the mistake that in-
EUREKA PIPE LINE CO. v. HALLANAN. 271
265.	Opinion of the Court.
duced the act is immaterial. A case would not be withdrawn from the jurisdiction of this Court in error by a declaration that a statute was addressed only to intrastate commerce if it was applied wholesale to freight passing across the continent. The fact that the error was less does not affect the principle involved. But furthermore the Court only confined the statute to intrastate commerce “ as above defined,” that is, to commerce that embraced what the plaintiff carried on.
We return to the facts affecting the merits. When oil is received from the producer he receives a credit on the books of the plaintiff pipe line, and thereafter is charged for storage, as it is called, the plaintiff being required by the laws of West Virginia to keep enough oil in its tanks and pipes to satisfy such credits. Code, 1913, § 3564. If the producer desires to deliver oil outside the State it hands to the pipe line company what is called a tender of shipment for so many barrels of the specified kind of oil, naming the consignee, and expressed to be subject to an identified tariff filed with the Interstate Commerce Commission. This is said to be a joint tariff in which the connecting carriers share, but they do not share in the twenty or thirty cents charged for gathering the oil. The argument for the defendants in error of course is that the producer is free to sell within or without the State and that the movement of gathering having taken place before any order is given and while the producer still can do as he likes, it must be regarded as intrastate.
It does not seem to matter for the question before us, whether the delivery to the pipe line be regarded as making it the owner of what it receives and a debtor for the amounts, as in the case of a bank, or as akin to those transactions that are held to make the recipient a bailee of the mingled mass and the bailors tenants in common, as seems to have been assumed. Whether debtor or bailee the pipe line controls the movement of any specific oil in
272
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
its hands and the bailor assents to its doing so. The bailor assents to its becoming part of a stream that is pouring through and out of the State. Its only right is to call on the pipe line to divert a portion of that stream. So far as the oil that it calls for goes out of the State with the general current it seems to us not to be distinguishable from the rest admitted to move in interstate commerce. No bailor has title to any specific oil, and to deny the character of interstate commerce to the whole stream simply because some one might have called for a delivery that probably would have been made from it in an event that did not happen, is going too far. The charges for gathering and storage seem to us not to affect the case. The storage merely means that enough oil must be kept in the tanks and pipes to satisfy credits. The oil runs into a tank on one side and out on the other. The tank may be' regarded as a pipe of larger size. Whether the plaintiff in error was right or wrong in relying upon state law for its gathering charge its attitude does not matter here.
As has been repeated many times, interstate commerce is a practical conception, and, as remarked by the court of first instance, a tax to be valid “ must not in its practical effect and operation burden interstate commerce.” It appears to us as a practical matter that the transmission of this stream of oil was interstate commerce from the beginning of the flow, and that it was none the less so that if different orders had been received by the pipe line it would have changed the destination upon which the oil was started and at which it in fact arrived. We repeat that the pipe line company not the producer was the master of the destination of any specific oil. Therefore its intent and action determined the character of the movement from its beginning, and neither the intent nor the direction of the movement changed.
Decree reversed.
Writ of certiorari denied.
EUREKA PIPE LINE CO. v. HALLANAN. 273
265.	Clarke, J., dissenting.
Mr. Justice Clarke, dissenting.
I greatly regret that I cannot concur in the opinion and judgment of the court in this case, and I think it is my duty to state briefly as I may the grounds of my dissent.
The Eureka Pipe Line Company is a West Virginia corporation, owning pipe lines which are wholly within that State. Of the twenty-two and a half millions of barrels of oil which the company transported in the year in controversy, ending July 1, 1919, six and one-half millions of barrels were produced in West Virginia and the remainder came from other southern and western States. Of that produced in West Virginia, one and one-quarter millions of barrels were delivered to refineries in that State, and the balance was delivered to connecting carriers, at the state line, for interstate transportation. There is no controversy as to the oil from other States or as to the state-produced oil that was delivered to refineries 1 in the State; but to the holding of the court that the state-produced oil, which ultimately went out of the State, moved in interstate commerce from the time it left the wells, I cannot agree.
The company owns about forty-three hundred miles of pipe line in West Virginia, all of which, with the exception of a few hundred miles of main or trunk line, is used for the purpose of “ gathering ” oil from twenty-seven counties of the State,—it covers them as with a network.
The admitted method of doing business was as follows: When the oil was delivered by the producer to the company, it issued to him what is called a “ credit balance,” which was a paper reciting that he had credit on its books for the designated number of barrels of oil and it contained a blank for the entry of “ storage charges.” The oil thus delivered moved to some one of several points on the main lines of the company, all within the State and designated in the record as “ central points,” or “ delivery
274	OCTOBER TERM, 1921.
Clarke, J., dissenting.	257 U. S.
points,” or “ tariff points.” This movement of the oil was under a tariff filed by the company with the State Public Service Commission, which, in the year under discussion, read:
“ Local Tariff. The rates named in this tariff are for intrastate transportation of crude petroleum.”
“ For gathering and transporting oil from wells to delivery points within the State of West Virginia, 20 cents. Storage, per day, l/40th cent.”
Thus, by the contract between the parties, the oil was received for transportation to points within the State only. No consignee or destination was named, but, on the contrary, a charge was provided for indefinite storage, which the record shows was often paid, and the parties united in calling this part of the transportation a “ Local and an intra-state shipment.”
Further, in order to give the oil any intrastate delivery the owner was required to issue to the company a paper called a “ delivery order,” but, if he wished it to move in interstate commerce he must deliver to the company an entirely different order called a “ tender of shipment,” which was a paper naming a place of delivery outside the State and reciting that the transportation should be under a designated interstate tariff.
All transportation of the oil before the issuing of the “ tender of shipment ” was under the local tariff described. It was not released for transportation or delivery of any kind, either state or interstate, until a “ delivery order ” or a “ tender of shipment ” was delivered to the company by the owner and when the latter was delivered the oil moved thereafter under the terms of another, a joint interstate tariff, filed with the Interstate Commerce Commission at Washington by the Eureka Company, in conjunction with other companies owning lines connecting with its mains at the state line.
EUREKA PIPE LINE CO. v. HALLANAN. 275
265.	Clarke, J., dissenting.
To this we must add that, as a West Virginia corporation,- the Eureka Company was subject to the statute of that State, requiring that any company engaged in the transportation of petroleum in the State shall not in any manner ship or transport, or permit to be shipped or transported, or in any manner remove from the tanks or pipe lines of such company, any petroleum without a written order (a “ delivery order ” for intrastate, or a “ tender of shipment ” for interstate, delivery); and also that every such company “ shall at all times have in their pipes and tanks an amount of merchantable oil equal to the aggregate of outstanding . . . credit balances, on the books thereof.”
If this were all there was in the transaction, plainly the oil could not be considered as moving in interstate commerce until a “ tender of shipment ” was issued, for until that time it was without a consignee or destination and was held under a local tariff, providing a rate of twenty cents per barrel for intrastate transportation, and a charge for storage.
But the court concludes that this plainly intrastate shipment is converted into an interstate shipment by a single circumstance, viz: that when the oil, thus moving under a local tariff for a local charge, reached the trunk line, if that line happened to be “ running ” oil of the same kind and quality, the local oil was turned into the main and was at once moved out of the State, even though a “ tender of shipment ” may not have been issued to release it and give it destination. It is to be noted, however, that if the company was not “ running ” oil of the like kind and quality when the local oil reached the trunk line, it was held at the junction (tariff point) until like oil was to be “ run ” again, when it was sent forward. This may have been for a day or for two weeks.
This circumstance, that the oil became under these conditions a “ part of a stream that is pouring through 6267°—22-------23
276	OCTOBER TERM, 1921.
Clarke, J., dissenting.	257 U. S.
and out of the State,” it is held, gave the shipment an interstate character from the moment it left the wells. This holding is adopted, says the court, as a “ practical conception ” of the matter, but it is precisely because it seems to me a too highly technical conception to find place in the world of practical business, that I dissent from such a conclusion. It is true that the physical oil moved, as stated, out of the State, but its removal without a tender of shipment caused no reduction whatever in the volume of like oil in the State; that volume, by the statute, by the contract of the parties and by the tariff filed by the company, must continue undiminished to meet all outstanding “ credit balances ” and the evidence of the assistant superintendent of the company is that this requirement was constantly complied with. The conclusion of the court, therefore, allows the mere business convenience of the company (it saves storage tankage) to convert into interstate commerce that which all the parties, by their contract and conduct treated, and charged and paid for, as an intrastate transportation, and thereby subordinates, in my judgment, the substance to the merest form of the transaction.
Believing, as I do, that this transporting of oil over approximately four thousand miles of “ gathering ” lines in the State to the trunk lines, was a local shipment, as the parties all declared it to be, I think the State should be permitted to impose a reasonable license or occupation tax upon the company engaged in such extensive state activity, measured by the volume of such traffic, and that the judgment of the Supreme Court of Appeals of West Virginia restraining the statute to this scope should be affirmed.
For the reasons stated in the dissenting opinion of Mr. Justice Brandeis in No. 30 of this term, Dahnke-Walker Milling Co. v. Bondurant, post, 282, I think this case is subject to review in this court only upon writ of certiorari,
UNITED FUEL GAS CO. v. HALLANAN. 277
265.	Statement of the Case.
and that, therefore, the motion to dismiss the writ of error should have been granted, but it has seemed to me important to discuss, as I have done, the question of interstate commerce involved.
Mr. Justice Pitney and Mr. Justice Brandeis join in this opinion as to the merits of the controversy. Mr. Justice Brandeis also concurs as to the question of jurisdiction.
UNITED FUEL GAS COMPANY v. HALLANAN, STATE TAX COMMISSIONER OF THE STATE OF WEST VIRGINIA, ET AL.
ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA.
No. 276. Argued November 9, 10, 1921.—Decided December 12, 1921.
1.	A writ of error sustained, following Eureka Pipe Line Co. v. Hal-lanan, ante, 265. P. 280.
2.	Natural gas, collected and purchased by a pipe line company within a State and moving through its pipes, and the pipes of other companies to which it sells it, in continuous streams destined beyond the State, is a subject of interstate commerce, the transportation of which the State may not tax. P. 280.
3.	Held, that the interstate character of the gas so destined was not affected by the right of transporting companies to divert to local destinations, or by the fact that smaller quantities for local delivery were commingled with the other and the proportions between the two were not precisely fixed. P. 281.
87 W. Va. 396, reversed; petition for certiorari dismissed.
Error to a judgment sustaining a tax in a suit by the plaintiff in error to restrain its enforcement. See the preceding case, ante, 265.
278	OCTOBER TERM, 1921.
Argument for Plaintiff in Error.	257 U. S.
Mr. Malcolm Jackson, with whom Mr. R. G. Altizer and Mr. E. W. Knight were on the briefs, for plaintiff in error.
The final decree is reviewable by writ of error. Jud. Code, § 237; Merchants’ National Bank v. Richmond, 256 U. S. 635.
Natural gas is an article of commerce and its transportation from one State to another is interstate commerce.
Such transportation is none the less interstate commerce because accomplished by two or more connecting carriers, one or more of which operates within the limits of a single State. The Daniel Ball, 10 Wall. 557; Wabash &c. Ry. Co. v. Illinois, 118 U. S. 557; Norfolk & Western R. R. Co. v. Pennsylvania, 136 U. S. 114; Railroad Commission v. Texas & Pacific Ry. Co., 229 U. S. 336; Atchison, Topeka & Santa Fe Ry. Co. v. Harold, 241 U. S. 371.
In determining whether commerce is interstate or intrastate, regard must be had to its essential character—mere billing or the place at which title passes is not determinative.
The transportation and sale of natural gas by plaintiff to other companies for further transportation to points outside the State, under contracts contemplating such interstate transportation, were transactions in interstate commerce, to the extent that said gas was intended to be and actually was transported outside the State, notwithstanding said gas was delivered by plaintiff to the purchaser in West Virginia and notwithstanding a relatively small portion of the gas so delivered was resold by the purchasers to consumers along their lines in West Virginia. Public Utilities Commission v. Landon, 249 U. S. 236; Pennsylvania Gas Co. v. Public Service Commission, 252 U. S. 23; Ohio R. R. Commission v. Worthington, 225 U. S. 201.
The intrastate business—transportation from points of production to other localities in the same State, where
UNITED FUEL GAS CO. v. HALLANAN. 279
277.	Opinion of the Court.
the gas is sold to consumers—is conducted by plaintiff as a public service, regulated by the Public Service Commission. The same pipe lines are used for this transportation as those used for transportation to points outside the State. Plaintiff, therefore, not having power voluntarily to withdraw from a public service in West Virginia, is required by the decision under review to pay the tax upon its intrastate business as a condition precedent to continuing the interstate business. Pullman Co. v. Adams, 189 U. S. 420; A lien v. Pullman Co., 191 U. S. 171; Bowman v. Continental Oil Co., 256 U. S. 642; Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113.
The arbitrary power given the state tax commissioner, resulting from the failure of the statute to provide a definite measure of the tax, operates to deprive plaintiff of its property without due process of law and to deny to it the equal protection of the laws. Yick Wo v. Hopkins, 118 U. S. 356.
Mr. Wm. Gordon Mathews, with whom Mr. E. T. England, Attorney General of the State of West Virginia, Mr. 8. B. Avis and Mr. Fred 0. Blue were on the brief, for defendants in error.
No substantial federal question is involved and the writ of error should be dismissed and the writ of certiorari denied. Jud. Code, § 237. The court below construed the statute as imposing a tax only upon those engaged in the transportation of natural gas in intrastate commerce, and further construed it as authorizing the tax to be measured only by the amount of such commerce. Merchants’ National Bank v. Richmond, 256 U. S. 635, distinguished.
[See argument in the preceding case, ante, 268, for authorities cited on the merits.]
Mr. Justice Holmes delivered the opinion of the court.
This is a bill in equity that seeks to restrain the application to the plaintiff of the same statute that has been
280
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
considered in Eureka Pipe Line Co. v. Hallanan, just decided, ante, 265. Acts of Extraordinary Session, 1919, c. 5. The statute taxes the transportation of natural gas as well as of oil by pipe lines and the plaintiff Gas Company makes the same objection that was made by the Oil Company in the former case to the constitutionality of the act, as well as others that it will not be necessary to discuss. The two cases were heard together and were disposed of in a single opinion by the Supreme Court of Appeals. The Circuit Court of the State held the statute void, but the Supreme Court, as before, upheld it as valid with regard to intrastate business “ as above defined ” and defined the plaintiff’s business as intrastate. The plaintiff drew in question the validity of the statute “ as construed and applied,” Merchants’ National Bank v. Richmond, 256 U. S. 635, and took this writ of error. It also filed a petition for a writ of certiorari. For the reasons given in the Eureka Case the writ of error will be entertained and the petition for certiorari dismissed.
The case was heard upon the pleadings and a stipulation as to facts. It appears that the plaintiff gathers and purchases natural gas, mostly in West Virginia, and distributes it through its pipes which extend to or beyond the state line in various places and also connect with the pipes of other companies that extend beyond the State. The total amount dealt with by the plaintiff in the year ending July 1, 1919, was 54,973,588 M cubic feet of which all but a little over a million M cubic feet was gathered in West Virginia. There were sold directly to consumers in West Virginia 11,590,656 M cubic feet; a little over 10,000,000 M cubic feet to consumers in other States; and the remainder was sold to four connecting companies. It is admitted that the gas sold to one of these, the Ohio Fuel Supply Company, is transported in interstate commerce, so that that may be laid on one side. Another of them is the Columbia Gas & Electric Company. Ninety-
UNITED FUEL GAS CO. v. HALLANAN. 281
277.	Dissent.
nine per cent, of the gas received by it is carried out of the State and sold, yearly. A third is the Pittsburgh-West Virginia Gas Company which yearly disposes of eighty-eight per cent, of the gas in the same way. The fourth is the Hope Natural Gas Company, which in like manner carries sixty-seven per cent, of the gas bought from the plaintiff out of the State and sells it there.
In short the great body of the gas starts for points outside the State and goes to them. That the necessities of business require a much smaller amount destined to points within the State to be carried undistinguished in the same pipes does not affect the character of the major transportation. Neither is the case as to the gas sold to the three companies changed by the fact that the plaintiff, as owner of the gas, and the purchasers after they receive it might change their minds before the gas leaves the State and that the precise proportions between local and outside deliveries may not have been fixed, although they seem to have been. The typical and actual course of events marks the carriage of the greater part as commerce among the States and theoretical possibilities may be left out of account. There is no break, no period of deliberation, but a steady flow ending as contemplated from the beginning beyond the state line. Ohio R. R. Commission v. Worthington, 225 U. S. 101, 108. United States v. Reading Co., 226 U. S. 324, 367. Western Union Telegraph Co. v. Foster, 247 U. S. 105, 113. We have mentioned only such facts as are sufficient for our decision, and have not noticed other objections urged against the law. What we have stated seems to us enough to condemn it as applied to this case.
Decree reversed.
Petition for certiorari dismissed.
Mr. Justice Brandeis dissents.
Mr. Justice Clarke also dissents as to the jurisdictional question.
282
OCTOBER TERM, 1921.
Syllabus.
257 U.S.
DAHNKE-WALKER MILLING COMPANY v. BONDURANT.
ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.
No. 30. Argued March 18, 1921; restored to docket for reargument June 6, 1921; reargued October 10, 1921.—Decided December 12, 1921.
1.	A decision of a state court applying and enforcing a state statute of general scope against a particular transaction as to which there was, not merely a claim of a right or immunity under the Constitution, but a distinct and timely insistence that, if so applied to it, the statute was unconstitutional and void, necessarily affirms the validity of the statute when so applied, and the judgment based thereon is therefore reviewable by writ of error under § 237, Jud. Code, as amended by the Act of September 6, 1916. P. 288.
2.	That the statute, in such case, is not claimed to be invalid in toto and for every purpose is immaterial, since a statute may be invalid as applied to one state of facts and yet valid as applied to another; and a litigant, moreover, can be heard to question a statute’s validity only when and in so far as it is being, or is about to be, applied to his disadvantage. P. 289.
3.	The right to review the validity of a state statute under Jud. Code, § 237, is independent of the grounds or reasons on which the state court upholds the validity of the statute. P. 289.
4.	Where the state court denied enforceability to a contract made by a foreign corporation, upon the grounds that the contract was local in character and that the corporation had not complied with a statute conditioning the right of foreign corporations to do local business, although the corporation insisted that the contract was made in interstate commerce and that the statute, so applied, was therefore unconstitutional, held that the judgment was reviewable here by writ of error. P. 290.
5.	Interstate commerce is not confined to transportation from one State to another, but comprehends all commercial intercourse between different States and all the component parts of that intercourse. P. 290.
6.	Just as, Where goods m one State are transported into another for purposes of sale, the interstate commerce embraces their sale after they reach their destination and while they are in the original packages, on the same principle, where goods are pur-
DAHNKE-WALKER CO. v. BONDURANT. 283
282.	Argument for Plaintiff in Error.
chased in one State for transportation to another, the commerce includes the purchase quite as much as it does the transportation. P. 290.
7.	A corporation of one State may go into another, without obtaining the leave or license of the latter, for all the legitimate purposes of such commerce; and any statute of the latter State which obstructs or lays a burden on the exercise of this privilege is pro tanto void under the commerce clause. P. 291.
8.	A Tennessee corporation, in pursuance of its practice of purchasing grain in Kentucky to be transported to and used in its Tennessee mill, made a contract for the purchase of wheat, to be delivered in Kentucky on the cars of a public carrier, intending to forward it as soon as delivery was made. Held, that the transaction was in interstate commerce, notwithstanding the contract was made and to be performed in Kentucky, and that the possibility that the purchaser might change its mind after delivery and sell the grain in Kentucky or consign it to some other place in that State, did not affect the essential character of the transaction. P. 292.
185 Ky. 386, reversed.
Error to a judgment of the Court of Appeals of Kentucky which affirmed a judgment of a court of first instance on a verdict directed for the defendant in an action for damages for breach of contract, brought by the plaintiff in error.
Mr. John C. Doolan, with whom Mr. Joseph E. Robbins, Mr. R. G. Robbins, Mr. Edmund F. Trabue, Mr. Thomas Kennedy Helm and Mr. James P. Helm, Jr., were on the brief, for plaintiff in error.
While transportation is a part of commerce between the States, it is merely one of its elements. Either transportation or delivery may be the last of several steps in a transaction classed by this court as interstate commerce. In those cases where the seller goes into the buyer’s State and negotiates the sale, transportation may precede delivery. On the other hand, where the buyer goes into the seller’s State, transportation may follow delivery, as in the instant case. In either case, the parties may contract for delivery in the one State or the other, as they deem
284
OCTOBER TERM, 1921.
Argument for Defendant in Error.
257 U. S.
proper, and this does not take away the interstate commerce feature of the transaction. American Express Co. v. Iowa, 196 U. S. 133; Kinnear Manufacturing Co. v. Miner, 89 Vt. 572. In Gibbons n. Ogden, 9 Wheat. 1, 189, 190, it was conceded that commerce between the States included negotiation, buying and selling, and it required that decision to establish the principle that power to regulate commerce also included the power to regulate transportation.
Swift & Co. v. United States, 196 U. S. 375, 398, 399; Parsons-Willis Co. v. Stuart, 182 Fed. 779, 783; Kesterson v. La Moine Lumber Co., 139 Fed. 355, affirming 171 Fed. 980 ; Parker-Harris Motor Co. N. Kissel Motor Car Co., 165 Wis. 518; Kinnear Manufacturing Co. v. Miner, 89 Vt. 572; Livingstone Manufacturing Co. v. Rizzi Brothers, 86 Vt. 419; McNaughton Co. v. McGirl, 20 Mont. 124; Union Cotton Oil Co. v. Patterson, 116 Miss. 802.
This court has repeatedly held that the intention of a shipper to have his shipment moved to an ultimate destination outside the State of its origin fixes the character of the movement as interstate commerce, even though such intention was not communicated to the carrier at the inception of the movement. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498. Especially is this true where, as a practical matter, the movement of the goods is obviously intended to go beyond the bounds of the State. Texas & New Orleans R. R. Co. v. Sabine Tram Co., 227 U. S. Ill; Ohio R. R. Commission v. Worthington, 225 U. S. 101; Philadelphia & Reading Ry. Co. v. Hancock, 253 U. S. 284.
Mr. M. Walton Hendry, for defendant in error, submitted. Mr. B. T. Davis and Mr. W. J. Webb were also on the briefs.
A State may impose any condition it desires upon a foreign corporation for permitting it to engage in intrastate
DAHNKE-WALKER CO. v. BONDURANT. 285
282.	Argument for Defendant in Error.
business. Commonwealth v. Read Phosphate Co., 113 Ky. 32; Manufacturing Co. v. Ferguson, 113 U. S. 727; Insurance Co. n. Cravens, 178 U. S. 389; Hooper v. California, 155 U. S. 648; Waters Pierce Oil Co'. v. Texas, 177 U. S. 29.
The statute in question regulates transaction of business by foreign corporations within the State other than interstate commerce and is not in conflict with the Federal Constitution. Knoxville Nursery Co. v. Commonwealth, 108 Ky. 6; Oliver v. Louisville Realty Co., 156 Ky. 628; Van Meter v. Spurrier, 94 Ky. 22; Lindley v. Rutherford, 17 B. Mon. 246. On the other hand the application of the statute to foreign corporations engaged strictly in interstate commerce with citizens of the State is void. Louisville Trust Co. v. Bayer Co., 166 Ky. 746, and other cases.
Whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced. The Daniel Ball, 10 Wall. 565. But this movement does not begin until the articles have been shipped or started for transportation from the one State to the other. Coe v. Errol, 116 U. S. 517, 525. This case, it seems to us, applies with great force to the facts here.
The contract between these parties was completed before the articles became a subject of transportation, and it is immaterial what may have been the thought or purpose of the plaintiff. Gulf, Colorado & Santa Fe R. R. Co. v. Texas, 204 U. S. 403; United States v. Knight Co., 156 U. S. 1. Actual motion in transportation is essential. Bennett v. American Express Co., 83 Me. 236.
Where a state statute applies to both intrastate and interstate shipments, but the shipment involved is wholly intrastate, this court will not consider the validity of the statute when applied to interstate shipments. 3 Foster’s Fed. Prac., p. 2002; Seaboard Air Line Ry* v. Seegers, 207 U. S. 73.
286	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
The validity of a statute is not drawn into question every time a right claimed under it is controverted ; nor is the validity of an authority drawn in question every time an act done by such authority is disputed. Cook County v. Calumet Co., 138 U. S. 635; Ferry v. King County, 141 U. S. 668.
Mr. Justice Van Devanter delivered the opinion of the court.
This was an action to recover damages for the breach of a contract for the sale and delivery of a crop of wheat estimated at 14,000 bushels. The plaintiff was a Tennessee corporation engaged in operating a flour and feed mill at Union City, in that State. The defendant was a resident of Hickman, Kentucky, and extensively engaged in farming in that vicinity. They were the parties to the contract. It was made at Hickman and the wheat was to be delivered and paid for there. But the delivery was to be on board the cars of a common carrier, and the plaintiff intended to ship the wheat to its mill in Tennessee. A small part of the crop was delivered as agreed, but delivery of the rest was refused, although the plaintiff was prepared and expecting to receive and pay for it. A payment advanced on the crop more than covered what was delivered. At the time for delivery wheat had come to be worth several cents per bushel more than the price fixed by the contract. The action was brought in a state court in Kentucky.
The principal defense interposed—the only one which we have occasion to notice—was to the effect that the plaintiff had not complied, as was the fact, with a statute of Kentucky (Ky. Stats. 1915, § 571) prescribing the conditions on which corporations of other States might do business in that State, and that the contract was therefore not enforceable. To this the plaintiff replied that the only business done by it in Kentucky consisted in purchasing
DAHNKE-WALKER CO. v. BONDURANT. 287
282.	Opinion of the Court.
wheat and other grain in that State for immediate shipment to its Tennessee mill and then shipping the same there; that the contract in question was made in the course of this business and with the purpose of forwarding the wheat to the mill as soon as it was delivered on board the cars; that this transaction was in interstate commerce and as to it the statute of Kentucky whose application was invoked by the defendant was invalid because in conflict with the commerce clause of the Constitution of the United States.
The cause was tried twice. On the first trial the plaintiff obtained a verdict and judgment, the court ruling that the statute could not constitutionally be applied to the transaction in question. But the Court of Appeals of the State, while conceding the invalidity of the statute as respects transactions in interstate commerce, held the transaction in question was not in such commerce, declared the statute valid and properly enforceable as to that transaction and reversed the judgment with a direction for a new trial. That court proceeded on the theory that, as the contract was made in Kentucky, related to property then in that' State and was to be wholly performed therein, the transaction was strictly intrastate and not within the reach or protection of the commerce clause of the Constitution of the United States;—and this although the wheat was to be delivered on board the cars of a public carrier and the plaintiff intended to ship it to Tennessee as soon as it was so delivered. 175 Ky. 774. On the second trial a verdict for the defendant was directed because the plaintiff had not complied with the statute. The jury conformed to the direction, judgment was entered on the verdict and that judgment was affirmed by the Court of Appeals on the authority of its former decision. 185 Ky. 386.
The case is here on a writ of error and our jurisdiction is challenged. The objection is not that we are without
288
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
power to review the judgment, but that it can be reviewed only on a writ of certiorari. The controlling statute is § 237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, 39 Stat. 726. Besides confining our power of review in cases litigated in the state courts to those in which the decision of a federal question is involved, this jurisdictional section provides that the review in cases falling within certain classes may be on writ of error and in others on writ of certiorari, the distinguishing or dividing line being drawn according to the nature of the federal question and the way in which the state court decides it. Some cases may fall on both sides of the line, but with this we are not now concerned. Among those in which the review may be on writ of error the section includes—
“ any suit . . . where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity.”
Among those in which the review may be on writ of certiorari are—
“ any cause . . . where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is against their validity ” ; and
“ any cause . . . where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under the United States, and the decision is either in favor of or against the title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority.”
In the state court the plaintiff did not simply claim a right or immunity under the Constitution of the United
DAHNKE-WALKER CO. v. BONDURANT. 289
282.	Opinion of the Court.
States, but distinctly insisted that as to the transaction in question the Kentucky statute was void, and therefore unenforceable, because in conflict with the commerce clause of the Constitution. The court did not accede to the insistence, but applied and enforced the statute. Of course, that was an affirmation of its validity when so applied. Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 144; McCullough v. Virginia, 172 U. S. 102, 110-117; General Oil Co. v. Crain, 209 U. S. 211, 228; Corn Products Refining Co. v. Eddy, 249 U. S. 427, 432. And see Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 3, 27. The case is therefore of the class described in the first of the provisions which we have quoted from the jurisdictional section. That the statute was not claimed to be invalid in toto and for every purpose does not matter. A statute may be invalid as applied to one state of facts and yet valid as applied to another. Poindexter v. Greenhow, 114 U. S. 270, 295; St. Louis, Iron Mountain & Southern Ry. Co. v. Wynne, 224 U. S. 354; Kansas City Southern Ry. Co. v. Anderson, 233 U. S. 325. Besides, a litigant can be heard to question a statute’s validity only when and so far as it is being or is about to be applied to his disadvantage. Yazoo & Mississippi Valley R. R. Co. v. Jackson Vinegar Co., 226 U. S. 217; Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571, 576. Neither does it matter on what ground the court upheld and enforced the statute. The provisions quoted from the jurisdictional section show that in cases where the validity of a state statute is drawn in question because of alleged repugnance to the Constitution the mode of review depends on the way in which the state court resolves the question. If it be resolved in favor of the validity of the‘statute the review may be on a writ of error; and if it be resolved against the validity the review can only be on writ of certiorari. The provisions take no account of the particular grounds or reasons on which the decision is put.
290	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
It is loosely said in one of the briefs for the plaintiff that the “ sole question for decision ” is whether the contract was a part of interstate commerce; but we attach no importance to this, because it not only is said in the same brief that the plaintiff “ maintained in the state court, and it maintains here, that the Kentucky statute, as construed and applied in this case by the state court, is unconstitutional under the commerce clause,” but much of that brief and of another is devoted to an effort to show the invalidity of the statute in that regard.
Our conclusion on the jurisdictional question is that, as the state court applied and enforced to the plaintiff’s disadvantage a state statute which the plaintiff seasonably insisted as so applied and enforced was repugnant to the Constitution and void, the case is rightly here on writ of error. Like rulings on like grounds will be found in Eureka Pipe Line Co. v. Hallanan, ante, 265, and United Fuel Gas Co. v. Hallanan, ante, 277.
The commerce clause of the Constitution, Art. I, § 8, cl. 3, expressly commits to Congress and impliedly withholds from the several States the power to regulate commerce among the latter. Such commerce is not confined to transportation from one State to another, but comprehends all commercial intercourse between different States and all the component parts of that intercourse. Where goods in one State are transported into another for purposes of sale the commerce does not end with the transportation, but embraces as well the sale of the goods after they reach their destination and while they are in the original packages. Brown v. Maryland, 12 Wheat. 419, 446-447; American Steel & Wire Co. v. Speed, 192 U. S. 500, 519. On the same principle, where goods are purchased in one State for transportation to another the commerce includes the purchase quite as much as it does the transportation. American Express Co. v. Iowa, 196 U. S. 133, 143. This has been recognized in many deci-
DAHNKE-WALKER fco. v. BONDURANT. 291
282.	Opinion of the Court.
sions construing the commerce clause. Thus it was said in Welton v. Missouri, 91 U. S. 275, 280: “ Commerce is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and exchange of commodities.” In Kidd v. Pearson, 128 U. S. 1, 20, it was tersely said: “ Buying and selling and the transportation incidental thereto constitute commerce.” In United States v. E. C. Knight Co., 156 U. S. 1, 13, “ contracts to buy, sell, or exchange goods to be transported among the several States ” were declared “ part of interstate trade or commerce.” And in Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 241, the court referred to the prior decisions as establishing that “interstate commerce consists of intercourse and traffic between the citizens or inhabitants of different States, and includes not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale and exchange of commodities.” In no case has the court made any distinction between buying and selling or between buying for transportation to another State and transporting for sale in another State. Quite to the contrary, the import of the decisions has been that if the transportation was incidental to buying or selling it was not material whether it came first or last.
A corporation of one State may go into another, without obtaining the leave or license of the latter, for all the legitimate purposes of* such commerce; and any statute of the latter State which obstructs or lays a burden on the exercise of this privilege is void under the commerce clause. Crutcher v. Kentucky, 141 U. S. 47, 57; Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 27; International Textbook Co. v. Pigg, 217 U. S. 91, 112; Sioux Remedy Co. v. Cope, 235 U. S. 197.
There is no controversy about the facts bearing on the character of the transaction in question. It had been the 6267°—22-------24
292	OCTOBER *TERM, 1921.
Opinion of the Court.	257 U. S.
practice of the plaintiff to go into Kentucky to purchase grain to be transported to and used in its mill in Tennessee. On different occasions it had purchased from the defendant—at one time 13,000 bushels of corn. This contract was made in continuance of that practice, the plaintiff intending to forward the grain to its mill as soon as the delivery was made. In keeping with that purpose the delivery was to be on board the cars of a public carrier. Applying to these facts the principles before stated, we think the transaction was in interstate commerce. The state court, stressing the fact that the contract was made in Kentucky and was to be performed there, put aside the further facts that the delivery was to be on board the cars and that the plaintiff, in continuance of its prior practice, was purchasing the grain for shipment to its mill in Tennessee. We think the facts so neglected had a material bearing and should have been considered. They showed that what otherwise seemed an intrastate transaction was a part of interstate commerce. See Swift & Co. v. United States, 196 U. S. 375, 398; United States v. Reading Co., 226 U. S. 324, 367; Pennsylvania R. R. Co. v. Clark Brothers Coal Mining Co., 238 U. S. 456-468; Eureka Pipe Line Co. v. Hallanan, supra. The state court also attached some importance to the fact that after the grain was delivered on the cars the plaintiff might have changed its mind and have sold the grain at the place of delivery or have shipped it to another point in Kentucky. No doubt this was possible, £ut it also was improbable. With equal basis it could be said that a shipment of merchandise billed to a point beyond the State of its origin might be halted by the shipper in the exercise of the right of stoppage in transitu before it got out of that State. The essential character of the transaction as otherwise fixed is not changed by a mere possibility of that sort. See United Fuel Gas Co. v. Hallanan, supra.
For these reasons we are of opinion that the transaction was a part of interstate commerce, in which the plaintiff
DAHNKE-WALKER CO. v. BONDURANT. 293
282.	Brandeis and Clarke, JJ., dissenting.
lawfully could engage without any permission from the State of Kentucky, and that the statute in question, which concededly imposed burdensome conditions, was as to that transaction invalid because repugnant to the commerce clause.
Judgment reversed.
Mr. Justice Brandeis, with whom concurred Mr. Justice Clarke, dissenting.
The writ of error should, in my opinion, be dismissed. The obstacle to our assuming jurisdiction is not procedural; as it is in those cases where a plaintiff fails because the claim was not made seasonably or in appropriate form.1 Here, the obstacle is the nature of the constitutional question sought to be reviewed. It involves a state statute. But the validity of the statute is not actually drawn in question. Only the propriety of the application or use of the statute is questioned. Since the Act of September 6,1916, c. 448, § 2, 39 Stat. 726, such questions are not reviewable in this court as of right. They may now be reviewed only in the court’s discretion; and exercise of the discretion must be invoked by a petition for a writ of certiorari.
This court has now, as it had before that act, jurisdiction under § 237 of the Judicial Code to review a final judgment of the highest court of a State whenever a right under the Federal Constitution duly claimed has been denied in applying a state statute. And in no case involving a state statute can jurisdiction attach unless the statute has been applied. For unless it was applied, there could not have been an invasion of the party’s constitutional right; and unless there was such invasion the con-
xSee Jett Bros. Co. v. Carrollton, 252 U. S. 1, 6; Mergenthaler Linotype Co. n. Ddvis, 251 U. S. 256, 258; Godchaux Co. n. Estopinal, 251 U. 8. 179.
294	OCTOBER TERM, 1921.
Brandeis and Clarke, J J., dissenting. 257 U.S. stitutional question presented, whatever its nature, would be moot. But the Act of 1916 made the nature of the constitutional question raised in applying the statute a matter of importance. If the question is a denial of the power of the legislature to enact the statute as construed, a review may be had as of right. If the question concerns merely the propriety of the particular use of the statute or of the manner of applying or administering it, the review may be had only in this court’s discretion. The classification thus introduced rests upon broad considerations of policy. The steady increase of the business of this court had made it necessary to limit the appellate jurisdiction in cases arising under § 237. To this end Congress determined in 1916 that even cases involving constitutional questions should be reviewed here only where the public interest appeared to demand it. Congress left parties a review as of right where the validity of a state statute had been drawn in question; because the decision of such a question is usually a matter of general interest. But whether a valid state statute has in a particular case been so used as to violate a constitutional guaranty is ordinarily a matter of merely private interest. Hence, Congress provided that where the validity of the statute is not assailed, the denial of a claim that in applying it a right, privilege or immunity had been violated, should not be reviewed, unless this court, in its discretion to be exercised upon petition for a writ of certiorari, should direct the review. That is, Congress treated a right, privilege or immunity claimed to have been violated by the courts’ erroneously applying a confessedly valid statute to the particular facts of a case, just as it treated a claim that the right, privilege or immunity had been violated by a decision erroneous in some other respect.
In considering whether in this case the validity of the state statute was drawn in question, it is necessary to bear in mind that, in every case involving a statute, the state
DAHNKE-WALKER CO. v. BONDURANT. 295
282.	Brandéis and Clarke, JJ., dissenting.
court must perform (aside from the consideration of any constitutional questions) two functions essentially different. First the court must construe the statute ; that is, de- * termine its meaning and scope. Then it must apply the statute, as so construed, to the facts of the case.1 In this case the construction of the statute was never in controversy. It had been settled by earlier decisions that the statute referred only to corporations when transacting business in intrastate commerce. Here the only controversy concerned the character of the particular transaction to which defendant sought to have the statute applied. Was it interstate commerce? If so, the transaction was not within the scope of the statute. To decide that controversy two determinations had to be made. One was of fact: whether the wheat was sold and bought for shipment to Tennessee. The other was of law: whether the fact that the wheat was so sold and bought makes the transaction one in interstate commerce. Did that controversy over the character of the commerce draw in question the validity of the statute or did it draw in question merely the propriety, that is, the constitutionality, of its application? What the character of the controversy was must be. decided upon the record presented here.
The validity of a statute, as was said in Baltimore & Potomac R. R. Co. v. Hopkins, 130 U. S. 210, 224, is drawn in question whenever the power to enact it “ as it is by its terms, or is made to read by construction, is fairly open to denial and denied.” The power to enact
1 The word “ apply ” is used in connection with statutes in two senses. When construing a statute, in describing the class of persons, things or functions which are within its scope; as that the statute does not “ apply ” to transactions in interstate commerce. When discussing the use made of a statute, in referring to the process by which the statute is made operative; as where the jury is told to “ apply ” the statute of limitation if they find that the cause of action arose before a given date. In this opinion it is used in the latter sense.
296	OCTOBER TERM, 1921.
Brandeis and Clarke, JJ., dissenting. 257U.S.
§ 571, Kentucky Statutes, as construed by the highest court of the State, was not fairly open to denial; for the statute was construed as affecting only intrastate transactions of foreign corporations. See International Textbook Co. v. Pigg, 217 U. S. 91; Hooper v. California, 155 U. S. 648. A writ of error which rested solely upon the challenge of the statute so construed would have presented no substantial claim and must have been dismissed as frivolous. Equitable Life Assurance Society v. Brown, 187 U. S. 308, 311; Sugar man v. United States, 249 U. S. 182, 184. Compare Blumenstock Bros. Advertising Agency v. Curtis Publishing Co., 252 U. S. 436, 441. Nor was the power to enact § 571 as construed actually denied. The question decided below and presented for review here is merely whether this valid statute has been so used—not construed—as to deny to the plaintiff a privilege or immunity guaranteed by the Federal Constitution.
That the character of the commerce—and not the validity of the statute—was the only question actually in controversy and is the only question which the plaintiff actually seeks to present for review, appears from the following statement in its brief filed in this court, as well as from the supporting argument:
“ The sole question for decision by this court is whether the contract sued on is a part of interstate commerce or purely a transaction in inteastate commerce. If this court should conclude that the contract is any part of interstate commerce, the judgment of the Kentucky Court of Appeals must be reversed; otherwise, it should be affirmed.”
A party’s conception or characterization of the question presented by the record is, of course, not conclusive of his right to a review. The right is determined by the record. But in this case the record confirms the plaintiff’s conception of the question submitted for review. The judgment of the Court of Appeals brought-before us is that of October 17, 1919, which affirmed the judgment below en-
DAHNKE-WALKER CO. v. BONDURANT. 297
282.	Brandeis and Clarke, JJ., dissenting.
tered after the second trial before a jury. In 1917 the Court of Appeals, in delivering its first opinion which directed the second trial, 175 Ky. 774, said:
11 This court has heretofore held that section 571, supra, does not have any application to a foreign corporation, which is engaged strictly in interstate commerce with citizens of this State. . . . Hence, if the contract sought to be enforced was an interstate commerce transaction, the failure to comply with section 571, supra, would not affect the right of appellee to sue and recover upon its contract, but if it was an intrastate business, the failure to have complied with section 571, supra, is fatal to appellee’s right of recovery. ... So the question for decision is, was the contract between appellant and appellee one which is protected by article I, chapter 8, paragraph 3, of the Federal Constitution, from regulation by the State of Kentucky, as being a transaction in interstate commerce? ”
Since 1903 it had been the settled law of the State, as then declared by its highest court, that § 571 did not affect transactions in interstate commerce. Commonwealth v. Hogan, McMorrow & Tieke Co., 74 S. W. 737? Thus, before this action was begun, it was the settled law that such transactions of foreign corporations were not within the scope of the statute. In 1915, after this action was begun but before the first trial, that rule was again applied in Louisville Trust Co. v. Bayer Co., 166 Ky. 744, 746. When, therefore, this case was before the Circuit Court at the second trial and when it was before the Court of Appeals for the second time, there clearly was no actual controversy over the validity of the statute. It
1 See also Ryman Steamboat Line Co. v. Commonwealth, 125 Ky. 253; Commonwealth v. Chattanooga Implement & Mjg. Co., 126 Ky. 636; Commonwealth v. Eclipse Hay Press Co., 104 S. W. 224; Three States Buggy & Implement Co. n. Commonwealth, 105 S. W. 971.
298
OCTOBER TERM, 1921.
Brandéis and Clarke, JJ., dissenting.
257 U. S.
is true that plaintiff had used in pleading language which imported not only a claim of immunity because the transaction was interstate commerce but also an assertion that § 571, if construed so as to affect it, was invalid. But a review by this court as of right cannot be acquired by inaccurately describing, or by disguising, the nature of the constitutional claim actually made. Nor could there have been a conscious purpose to do this when the reply was filed. In 1915 the exact nature of the claim under the Constitution was not material. At that time the denial of any claim of constitutional right, whatever its nature, still gave the party a review in this court as of right. It was the Act of September 6, 1916, which made the division of cases involving constitutional questions into two classes a matter of substance.
If jurisdiction upon writ of error can be obtained by the mere claim in words that a state statute is invalid, if so construed as to “ apply ” to a given state of facts, the right to a review will depend, in large classes of cases, not upon the nature of the constitutional question involved but upon the skill of counsel. The result would be particularly regrettable, because the decision of such cases often depends not upon the determination of important questions of law (which should in the main engage the attention of this court), but upon the appreciation of evidence frequently voluminous. Thus, in proceedings under State Workmen’s Compensation Acts or State Employers’ Liability Acts, the question whether a carrier is liable depends often upon the question whether at the time of the accident the employee was engaged in interstate or in intrastate commerce. Since the Act of September 6, 1916, certiorari is the proper means of reviewing a judgment involving that question. Southern Pacific Co. v. Industrial Accident Commission, 251 U. S. 259. If the rule now^nsisted upon obtains, the carrier could in every such case secure a review on writ of error by simply claim-
DAHNKE-WALKER CO. v. BONDURANT. 299
282.	Brandeis and Clarke, J J., dissenting.
ing that the state statute is invalid under the commerce clause if construed so as to apply to the special facts of the case. Yet it was preeminently the decision of questions like these from which Congress sought to relieve this court by the Act of September 6,1916.1 Likewise, in cases involving state taxation the validity of the tax often depends upon the question whether the specific thing taxed was property within or property without the taxing State—a question which, as held in Dana v. Dana, 250 U. S. 220, and Citizens National Bank v. Durr, ante, 99, can be reviewed here only on writ of certiorari. If the rule now insisted upon should prevail, jurisdiction in such cases could be secured on writ of error by the simple device of claiming that the taxing statute is invalid under the Fourteenth Amendment if construed so as to apply to the specific property involved. So, in suits in state courts against foreign corporations, the question whether there is jurisdiction depends often upon the question whether the corporation was doing business within the State and had expressly or impliedly consented to be sued there.1 2 The correctness of the decision of a state court of this question has been held to be reviewable here only upon certiorari, Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245 U. S. 162. But if the rule now insisted upon
1	See Report of Judiciary Committee, House Doc. No. 794, 64th Cong., 1st sess., House Rep. vol. 3. Of the cases on the docket for the preceding term of this court 37 presented the question whether the employee was engaged in interstate or intrastate commerce. See New York Central R. R. Co. v. Winfield, 244 U. S. 147, 168, note 1; St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156; Philadelphia & Reading Ry. Co. v. Hancock, 253 U. S. 284; Philadelphia & Reading Ry. Co. v. Di Donato, 256 U. S. 327; Philadelphia & Reading Ry. Co. v. Polk, 256 U. S. 332.
2	See e. g., Philadelphia & Reading Ry. Co. v. McKibbin, 243 U. S. 264; People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79; Chipman, Limited, v. Jeffery Co., 251 U. S. 373, as illustrating the issues involved.
300
OCTOBER TERM, 1921.
Brandéis and Clarke, JJ., dissenting.
257 U. S.
should prevail, jurisdiction on writ of error may be secured by simply making the claim that the state Statute is invalid under the Fourteenth Amendment if construed so as to apply to the facts of the case.
Plaintiff relies upon á number of cases, assumed to be similar, in which, after the Act of September 6, 1916, jurisdiction was (mainly without discussion) taken on writ of error. They are not in point. In some of them orders of railroad commissions were challenged as violating the Constitution.1 Such an order, unlike decisions of courts, “ being legislative in its nature and made by an instrumentality of the State, is a state law within the meaning of the Constitution of the United States and the laws of Congress regulating our jurisdiction.” Lake Erie & Western R. R. Co. v. State Public Utilities Commission,
249	U. S. 422, 424. In each of these cases, therefore, attacking the validity of the order was drawing in question the validity of a law. In others the validity of state statutes as construed was actually drawn in question.1 2 Mc-Ginis v. California, 247 U. S. 91, and McGinis v. Cali-
1	Union Pacific R. R. Co. v. Public Service Commission, 248 U. S. 67; Lake Erie & Western R. R. Co. v. State Public Utilities Commission, 249 U. S. 422; Chicago & Northwestern Ry. Co. v. Ochs, 249 U. S. 416; Pennsylvania R. R. Co. v. Public Service Commission,
250	U. S. 566, and St. Louis & San Francisco Ry. Co. v. Public Service Commission, 254 U. S. 535.
2	Union Tank Line Co. v. Wright, 249 U. S. 275; Corn Products Refining Co. n. Eddy, 249 U. S. 427; Chalker v. Birmingham & Northwestern Ry. Co., 249 U. 8. 522; New Orleans & Northeastern R. R. Co. v. Scarlet, 249 U. S. 528; Yazoo & Mississippi Valley R. R. Co. v. Mullins, 249 U. S. 531; Kenney v. Supreme Lodge, 252 U. S. 411; Royster Guano Co. v. Virginia, 253 U. S. 412; Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554; and Merchants’ National Bank v. Richmond, 256 U. S. 635. In Eureka Pipe Line Co. v. Hallanan, ante, 265, and United Fuel Gas Co. v. Hallanan, ante, 277, it was assumed (in my opinion erroneously) that the situation presented was similar in this respect to that in Merchants’ National Bank v. Richmond, supra.
DAHNKE-WALKER CO. v. BONDURANT. 301
282.	Brandeis and Clarke, JJ., dissenting.
fornia, 247 U. S. 95, involved, like the case at bar, the determination whether the transaction in question was one in interstate or foreign commerce. Although they did not draw in question the validity of any statute, this court properly entertained the writ of error in each of those cases, because, as the original records disclose, the judgment was of a date so early as not to come within the Act of September 6, 1916. It is true that § 237 of the Judicial Code, which reenacted § 709 of the Revised Statutes, and § 2 of the Act of February 5, 1867, c. 28, 14 Stat. 385, 386, used, in defining the jurisdiction of this court, the phrase “ where is drawn in question the validity of a statute.” But under none of these acts could there be occasion for deciding the question here under discussion; for each contained also the more comprehensive provision giving jurisdiction where any right, title, privilege or immunity claimed under the Constitution had been denied. And under § 25 of the Judiciary Act of September 24, 1789, c. 20,1 Stat. 73, 85, which embodied the law prior to 1867, the conditions were substantially the same. Hence little help can be derived from the consideration of cases involving judgments entered before the Act of September 6, 1916, became effective.1 1 * * * * 6
1 Thus comprehensive constitutional claims were made the basis of the writ of error in Coe v. Errol, 116 U. S. 517, 520, and in Kelley v. Rhoads, 188 U. S. 1, 4, which presented the question, whether the property taxed was in interstate commerce and hence exempt from taxation under a general law; and in Vicksburg, Shreveport & Pacific
R. R. Co. v. Dennis, 116 U. S. 665, 667, which presented the question whether the charter of a railroad granted tax exemption so that a later general tax law if applied to it would impair its contract rights; and in Delaware, Lackawanna & Western R. R. Co. v. Pennsylvania,
198 IT. S. 341, 352, which presented the question whether the tax ap-
praisal for the purpose of fixing the value of the capital stock could include tangible personal property permanently located outside the
State. (See original records.) Compare Planters’ Bank v. Sharp,
6 How. 301, 307.
302
OCTOBER TERM, 1921.
Brandéis and Clarke, JJ., dissenting.
257 U. S.
Nor can we be aided in construing the Act of September 6, 1916, by considering cases arising under § 238 of the Judicial Code (reenacting § 5 of the Act of March 3, 1891, c. 517, 26 Stat. 826, 827, as amended). For the third clause thereof empowers this court to review by writ of error or appeal decisions of United States District Courts “ in any case that involves the construction or application of the Constitution of the United States.” This comprehensive provision renders immaterial in this connection the nature of the constitutional "question. The specification in the fourth clause, of cases “ in which the constitutionality of any law of the United States . . . is drawn in question,” and in the fifth clause, of cases “ in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States,” adds nothing. Nor can we derive aid from cases involving review by this court of cases coming from the Circuit Court of Appeals under § 241 of the Judicial Code (reenacting § 6 of the act, 26 Stat. 826, 828). For under it the right of review where available exists regardless of the nature of the constitutional question.
But cd&es coming from the District of Columbia and from the Territories in which a review by this court was sought (under the Act of March 3, 1885, c. 355, 23 Stat. 443, and under § 250 of the Judicial Code) on the ground that the validity of an authority or of a statute was drawn in question, are persuasive as to the meaning of the phrase drawing in question the validity of a statute, as used in the Act of 1916. And they were recognized in Ireland n. Woods, 246 U. S. 323, 329, as controlling. Thus United States ex rel. Champion Lumber Co. v. Fisher, 227 U. S. 445, and United States ex rel. Foreman v. Meyer, 227 U. S. 452, hold that the validity of an authority is not drawn in question where the controversy is confined to determining whether the facts upon which a person can
DAHNKE-WALKER CO. v, BONDURANT. 303
282.	Brandeis and Clarke, JJ., dissenting.
exercise that authority do or do not exist; and the writs of error were dismissed because the validity was not “ drawn in question ” in the sense in which that phrase is used in the statute, that is, brought forward or made a ground of decision.1
It is, of course, permissible to make the claim that a statute is invalid and also that as administered or applied it violates a right or immunity under the Constitution. In such a case the writ of error is clearly appropriate. But in the case at bar there never has been a real claim that the statute as construed by the highest court of Kentucky is invalid. The actual claim was and is that a confessedly valid statute was misapplied and, thereby, a constitutional guaranty was violated. A review as of right is not to be obtained by misdescribing the question in controversy. When Congress declared that there should be a review as of right only where the validity of the statute was drawn in question, it did not provide for securing the right by the use of a form of words—a potent formula which should operate as an “ Open Sesame.” It was dealing with substance. It legislated to relieve an overburdened court.
1 Compare also Snow v. United States, 118 U. S. 346, 353; Baltimore & Potomac R. R. Co. v. Hopkins, 130 U. S. 210; District of Columbia v. Gannon, 130 U. S. 227, 229; United States v. Lynch, 137 U. S. 280; Ferry n. King County, 141 U. S. 668; South Carolina v. Seymour, 153 U. 8. 353; Linford v. Ellison, 155 U. 8. 503; Taylor v. Taft, 203 U. S. 461; where the validity of an authority or of a statute was held not to have been drawn in question; with Clayton v. Utah Territory, 132 U. 8. 632; Clough v. Curtis, 134 U. 8. 361, 369; Steinmetz v. Allen, 192 U. 8. 543; McLean & Co. v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 47; Smoot v. Heyl, 227 U. 8. 518, 522; where such was held to have been drawn in question.
304	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
MILLER v. AMERICAN BONDING COMPANY.
ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
No. 59. Argued November 8, 1921.—Decided December 12, 1921.
1.	The proceeding which the Act of August 13, 1894, c. 280, 28 Stat.
278, as amended February 24, 1905, c. 778, 33 Stat. 811, permits to be brought, in the name of the United States, upon the bond of a public contractor, to satisfy private claims for labor and materials, is a single action at law in which the several claimants are not entitled as of right to separate trials. P. 307.
2.	In actions at law it is only in exceptional instances and for special and persuasive reasons that distinct causes of action, asserted in the same case, may be allowed separate trials; and the allowance rests largely in the court’s discretion. P. 308.
262 Fed. 103, affirmed.
Error to a judgment of the Circuit Court of Appeals affirming an order of the District Court striking a case finally from the trial list.
Mr. James G. Glessner, with whom Mr. R. W. Archbald was on the brief, for plaintiff in error.
Mr. Francis B. Bracken for defendant in error.
Mr. Justice Van Devanter delivered the opinion of the court.
The American Bonding Company was the surety in a bond given to the United States to secure the performance of a contract to construct a public building, at York, Pennsylvania, and the prompt payment of claims for labor and material supplied to the contractor in the prosecution of the work. The building was completed and a final settlement as between the contractor and the United States was had. No action on the bond was begun by the United States in its own behalf; but an action thereon in the name of the United States was seasonably brought by
MILLER v. AMERICAN BONDING CO. 305
304.	Opinion of the Court.
Caesar Francini for his use and benefit. He claimed that he had supplied some of the labor and material and had not been paid. In due time others making similar claims intervened in the action for the purpose of presenting their claims, having them adjudicated and realizing on the bond. C. E. Miller was one of the claimants who intervened.
The bonding company interposed affidavits of defense to all the claims, and after issue was thus joined the action was set for trial at a stated session of the court and all the parties were notified. At the appointed session a trial was had, before the court and a jury, in which all the claimants other than Miller participated. Although represented by counsel who was present when the trial was begun, Miller neither asked a continuance nor requested a separate trial; and yet “ without apparent reason or excuse ” he refused and neglected to submit his claim for adjudication at that time. The jury returned a verdict for each of the other claimants and a judgment giving effect to the verdict was entered, the aggregate of the claims included in the judgment being less than the amount of the bond. The surety sought a review in the Circuit Court of Appeals and that court affirmed the judgment as to all the claims but one, and as to it reversed the judgment with a direction for a new trial. 233 Fed. 364. That claim was then compromised and settled, so the new trial was not had.
Shortly after the trial and verdict Miller caused the case to be put on the trial list for a separate trial of his claim. The bonding company promptly challenged his right to do this, but consented that, if a new trial of the other claims should be ordered and had, his claim might be submitted with the others on the retrial. The court then directed that the case be left off the trial list pending the review in the Circuit Court of Appeals. That review, as we have seen, did not result in a new trial of the
306
OCTOBER TERM, 1921.
Opinion of the Court.'
257 U. S.
other claims or any of them. More than two years after the review Miller again caused the case to be put on the trial list, and the court, on the bonding company’s motion, struck it from the list. The court did this on the ground that the case had been theretofore set for trial and tried, that on that trial Miller had been afforded and had rejected an opportunity to establish his claim and that he was not entitled to another opportunity to establish it. 256 Fed. 545. The Circuit Court of Appeals affirmed that decision, 262 Fed. 103, and Miller sued out the present writ of error.
Whether the court erred in denying Miller another opportunity to establish his claim, and thereby in effect dismissing it, is the question for decision. He particularly insists that he was entitled as of right to a separate trial and was not required to participate with other claimants in a common trial.
The bond was given, and the action was brought, under the Act of August 13, 1894, c. 280, 28 Stat. 278, as amended February 24,1905, c. 778, 33 Stat. 811. That act contemplates and provides for two kinds of action on such a bond—one brought by the United States in its own behalf; the other brought in its name for the use and benefit of a claimant who supplies the contractor with labor or materials for which the contractor fails to pay. Where the United States sues in its own behalf any one having a claim for labor or material used in the work is accorded a “ right to intervene and be made a party ” and to have his claim “ adjudicated in such action and judgment rendered thereon,” subject to a priority which is accorded to the claim of the United States; and, if the recovery on the bond be not sufficient to pay all the claims, the judgment must direct the payment of the full amount due the United States and the distribution “pro rata among said interveners ” of the remainder of the recovery. Only when the United States does not sue
MILLER v. AMERICAN BONDING CO. 307
304.	Opinion of the Court.
within six months “ from the completion and final settlement of said contract” may an action in its name be brought by a private claimant for his use and benefit. Where such a claimant sues “only one action shall be brought, and any creditor may file his claim in such action and be made party thereto; ” and if the recovery on the bond be not sufficient “ to pay the amounts found due to all of said creditors, judgment shall be given to each creditor pro rata of the amount of the recovery.” In any suit notice is to be gived informing all creditors of “ their right to intervene.”
This summary of the act suffices to show that all claims under the bond are to be presented, adjudicated and enforced in a single action in which every claimant may intervene and be heard as a party to it. Of course the purpose in this is to avoid the expense, confusion and delay incident to a multiplicity of actions, to enable each claimant to be heard not only in support of his own claim but also in opposition to the claims of others in so far as their allowance may tend to prevent the full payment of his claim, and generally to conserve the common security for the benefit of all who are entitled to share in it.
The right of action given to those who have claims against the contractor is a creature of the act and the mode of enforcement there prescribed cannot be disregarded. Texas Portland Cement Co. v. McCord, 233 U. S. 157, 162; United States v. Congress Construction Co., 222 U. S. 199. We have held that the enforcement is to be in a proceeding at law, and not in equity. Illinois Surety Co. v. Peeler, 240 U. S. 214, 223. The provision that there shall be but one action, which shall be open to all claimants, and the provision dealing with the judgment to be entered, show that the action is to proceed as a single case. There is nothing in the act indicative of a purpose to accord to each claimant a separate trial as of right; and to do so would make the provision for a single 6267°—22------25
308	OCTOBER TERM, 1921.
Orders.	257 U.S.
action of little avail. In actions at law the general practice is to try all the issues in a case at one time; and it is only in exceptional instances where there are special and persuasive reasons for departing from this practice that distinct causes of action asserted in the same case may be made the subjects of separate trials. Whether this reasonably may be done in any particular instance rests largely in the court’s discretion. See Connecticut Mutual Life Insurance Co. v. Hillmon, 188 U. S. 208, 210.
We conclude that Miller was not entitled as of right to a separate trial and that on this record it cannot be said that the court erred in refusing him a second opportunity to establish his claim, and in effect dismissing it.
Judgment affirmed.
STATE OF OKLAHOMA v. STATE OF TEXAS.
UNITED STATES, INTERVENER.
IN EQUITY.
No. 20, Original.
ORDERS ENTERED DECEMBER 12, 1921.
Granting leave to intervene.
The motion of the Grand Oil & Developing Company, submitted December 9,1921, is granted to the extent that said company is hereby given leave to file a petition in intervention setting up its rights and claims in and to any portion of the territory in dispute by reason of the controversy as to the location of the boundary line between the States of Oklahoma and Texas; without -waiver of the right of said company to object to the jurisdiction of this court over the subject-matter.
OKLAHOMA v. TEXAS.	309
308.	Orders.
Approving report oj Special Master on certain claims, and directing payments by Receiver, etc. See 256 U. S. 603.
Upon consideration of the report of Frederick S. Tyler, Special Master, respecting the claims of J. R. Armstrong, et al., on a certain fund in the hands of the Receiver, and derived by him from Receiver’s wells numbered 157, 162 and 170, and it appearing that copies of said report have been mailed to counsel for the respective claimants and that no exceptions or objections thereto have been presented;
It is Ordered that said report be, and it is hereby, approved and that the Receiver be, and he is hereby authorized and directed to pay over said fund to the following persons and in the following amounts, to wit: [Here follow the names and amounts,] with interest upon each of said amounts at the rate of three per centum per annum from December 1st, 1920; provided, however, that there shall first be deducted from said fund and paid to Frederick S. Tyler the sum of one thousand and forty-eight dollars and thirty-eight cents to cover in full his services and expenses as such master in connection with said fund and the claims to it; and the amount so paid to him shall be deducted pro rata from the several awards hereby made to the claimants above named.
And it is Further Ordered that the payment and acceptance of said several awards as herein made shall operate and be taken as a release and discharge of the Receiver by such claimants of all claims on and to the fund so disbursed and distributed
310
OCTOBER TERM, 1921.
Order.
257 U.S.
HILL, JR., ET AL. v. WALLACE, SECRETARY OF AGRICULTURE, ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
No. 616. Argued on motion to modify restraining order December 5, 1921.—Order entered December 12, 1921.1
Order vacating stay, granting injunction pending appeal and requiring bond.
The order entered herein, November 21, 1921, so far as it operates to stay proceedings pending the appeal is hereby vacated, and in lieu thereof it is ordered (the appellees not objecting), that during the pendency of said appeal in this court and for 20 days after final decree herein the Board of Trade of the City of Chicago and its directors, appellees, are restrained from admitting to membership in said board any representative of a cooperative association of producers not otherwise admissible to membership under the rules of said Board of Trade in effect prior to the institution of this suit, and from making and filing or requiring appellants or any other of its members to make and file any report required by any rule or regulation issued by the Secretary of Agriculture under the Act of Congress approved August 24, 1921, entitled “ The Future Trading Act,” and from modifying its rules and by-laws in respect to admitting to membership any representative of any such cooperative association or in respect to the making and filing of such reports, in order to entitle said Board of Trade to be designated as a “ contract market; ”
And that during the same period the appellee, Henry C. Wallace, Secretary of Agriculture, is restrained from designating the said Chicago Board of Trade as a “ con-
For the order of November 21, 1921, see post, 615.
HILL v. WALLACË.	311
310.	Order.
tract market ” except temporarily for and during said period, and is restrained from requiring said Board of Trade during said period to comply with the conditions and requirements of § 5 of said act as to the making and filing of reports showing the details and terms of transactions entered into by the board or the members thereof, or as to the keeping by the board or its members of a record showing the details and terms of said transactions ; and from requiring the governing board of said Chicago Board of Trade during said period to admit to membership and the privileges thereof any representative of a cooperative association of producers not otherwise admissible to membership under the rules of said Board of Trade in effect prior to the institution of this suit;
And that the said Henry C. Wallace, Secretary of Agriculture, is authorized to designate the said Board of Trade of the City of Chicago as a “ contract market ” under the said act of Congress, for and during the same period, without requiring said Board of Trade to comply with the conditions and requirements of § 5 of said act in the several respects above mentioned.
This order is made upon condition that within 5 days hereafter the appellants execute unto the appellees herein and file in this cause a good and sufficient bond in the sum of twenty-five thousand dollars ($25,000), with sureties to be approved by the clerk of this court, and conditioned that the appellants will promptly pay any and all damages which may be suffered by the appellees herein, or any of them, by reason of the granting or continuance of this order, if it is ultimately adjudged that the said “ Future Trading Act ” is a valid act in whole or in part.
Mr. Henry S. Robbins for appellants.
Mr. Solicitor General Beck for appellees.
312
OCTOBER TERM, 1921.
Syllabus.
257 U.S.
TRUAX ET AL., COPARTNERS, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF WILLIAM TRUAX, v. CORRIGAN ET AL.
ERROR TO THE SUPREME COURT OF THE STATE OF ARIZONA.
No. 13. Argued April 29, 30, 1920; restored to docket for reargument June 6, 1921; reargued October 5, 6, 1921.—Decided December 19, 1921.
1.	Where the issue is whether a state statute, in its application to facts specifically alleged, and admitted by demurrer, violates the plaintiff’s rights under the Constitution, this court must analyze the facts as averred and draw its own inferences as to their ultimate effect; it is not bound by the state court’s conclusion in this regard, nor by that court’s declaration that the statute is merely a rule of evidence. P. 324.
2.	The bill showed in substance that the defendants, for the purpose of winning a strike called by the defendant labor union over terms and conditions of employment in plaintiffs’ restaurant, conspired to injure or destroy the business by inducing actual and prospective customers to withhold their patronage, and to thatf end caused the restaurant to be picketed by men who, throughout business hours, were stationed at the entrance proclaiming in a loud voice its “ unfairness ” to union labor, and who patrolled the sidewalk before it and, by word of mouth and through banners and handbills, made and circulated abusive and libelous attacks upon the plaintiffs, their business, their employees and customers, with threats of like consequences to future customers; and that much injury to the business resulted. Held, that the bill stated a plain case of conspiracy and actionable wrong. P. 327.
3.	If, as it seems to have been interpreted by the Supreme Court of Arizona, the law of that State (Rev. Stats., 1913, par. 1464) regulating injunctions in labor controversies, grants the defendants in this case immunity from any civil or criminal action for the wrongs above stated, or leaves them merely subject to criminal prosecution for libel, it violates the Fourteenth Amendment by depriving the plaintiffs of their property without due process of law. P. 328.
4.	The legislative power of a State can only be exerted in subordination to the fundamental principles of right and justice which
TRUAX v. CORRIGAN.	313
312.	Syllabus.
the guaranty of due process in the Fourteenth Amendment is intended to preserve, and a purely arbitrary or capricious exercise of that power, whereby a wrongful and highly injurious invasion of property rights is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with those principles. P. 329. New York Central R. R. Co. v. White, 243 U. S. 188, distinguished.
5.	The distinction between peaceful secondary boycotts and the present case, considered. P. 330.
6.	The relations of the due process and equal protection clauses of the Fourteenth Amendment, considered. P. 331.
7.	The equal protection clause was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality on the other; it secures equality of protection not only for all, but against all, similarly situated; it is a pledge of the piotection of equal laws. P. 332.
8.	Assuming that a state legislature may vary equitable relief in the state courts at its discretion, and even take away their equity jurisdiction altogether, the equality clause forbids that it deny such relief to one man while granting it to another under like circumstances and in the same territorial jurisdiction. P. 334.
9.	A state law which specially exempts ex-employees, when committing tortious and irreparable injury to the business of their former employer, from restraint by injunction, while leaving subject to such restraint all other tort-feasors engaged in like wrong-doing, is unreasonable and without any just relation to the acts in respect of which it is proposed. P. 337.
10.	Such a classification cannot be upheld as a legalized experiment in sociology; the very purpose of the Constitution was to prevent experimentation with the fundamental rights of the individual. P. 338. Second Employers’ Liability Cases, 223 U. S.1; New York Central R. R. Co. v. White, supra, and similar cases, distinguished.
11.	In view of the construction placed by the state court upon Ariz. Rev. Stats., 1913, par. 1464, in this case, and because the equal protection clause applies only to state action, the conclusion that the statute is in part unconstitutional does not mean that § 20 of the Clayton Act, an act of Congress similarly worded but very differently construed, is also invalid. P. 340. Cf. American Steel Foundries v. Tri-City Central Trades Council, ante, 184.
12.	Paragraph 1456, Ariz. Rev. Stats., 1913, making general provision for issuance of injunctions, is separable from par. 1464, supra, having been adopted by the Territory and continued by
314
OCTOBER TERM, 1921.
Argument for Plaintiffs in Error.
257 U. S.
the state constitution as a state law before par. 1464 was enacted as an amendment, and the unconstitutionality of the latter does not affect the continued operation of the former. P. 341. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, distinguished.
20 Ariz. 7, reversed.
Error to review a decree of the Supreme Court of Arizona, which affirmed a decree of the Superior Court of Cochise County dismissing upon demurrer the complaint of the present plaintiffs in error in their suit to restrain the defendants from committing the acts described in the opinion.
Mr. Clifton Mathews, with whom Mr. Everett E. Ellinwood and Mr. John Mason Ross were on the briefs, for plaintiffs in error.
The acts and conduct of defendants constitute a secondary boycott. Duplex Printing Press Co. v. Deering, 254 U. S. 443, and many other cases.
This very fact of picketing is in itself sufficient to show the coercive character of the means employed. Atchison, Topeka & Santa Fe Ry. Co. v. Gee, 139 Fed. 582; Vonnegut Machinery Co. n. Toledo Machine Co., 263 Fed. 192; Local Union No. 313 v. Stathakis, 135 Ark. 86; Pierce v. Stablemen's Union, 156 Cal. 70; Rosenberg v. Retail Clerks' Association, 39 Cal. App. 67; Barnes & Co. v. Chicago Typographical Union, 232 Ill. 424; Sherry v. Perkins, 147 Mass. 212; Beck v. Railway Teamsters' Protective Union, 118 Mich. 497; Webb v. Cooks' &c. Union, 205 S. W. 465; St. Germain v. Bakery & Confectionery Workers' Union, 97 Wash. 282.
The word “ unfair,” when used under the circumstances set forth in the complaint, is, in effect, a notification to the public that the place or person declared “ unfair ” is being boycotted by organized labor, and that anyone who continues dealing with the boycotted person will thereby incur the enmity of labor organizations generally, and will be likely to suffer some form of retaliation at their
TRUAX v. CORRIGAN.	315
312.	Argument for Plaintiffs in Error.
hands. Gompers v. Bucks Stove & Range Co., 221 U. S. 418; Seattle Brewing Co. v. Hansen, 144 Fed. 1011. See also American Federation of Labor v. Buck’s Stove & Range Co., 33 App. D. C. 83; Wilson n. Hey, 232 Ill. 389.
The printed handbills are scurrilous and abusive and convey a threat of injury to plaintiffs’ customers. The vagueness of the threat only renders it the more effective. Casey v. Cincinnati Typographical Union, 45 Fed. 135; Seattle Brewing Co. v. Hansen, 144 Fed. 1011; Rocky Mountain Bell Telephone Co. v. Montana Federation of Labor, 156 Fed. 809; My Maryland Lodge v. Adt, 100 Md. 238; Beck v. Railway Teamsters’ Union, 118 Mich. 497.
But for the statute in question, the boycott could have been enjoined. The courts of this country, both state and federal, are practically unanimous in holding that a secondary boycott, as here exemplified, is wrongful'and unlawful. [Citing many authorities.]
The writ of injunction has not been abolished in Arizona, but, on the contrary, it has been expressly recognized and provided for by statute. Rev. Stats. Arizona, 1913, par. 1456. The issuance of injunctions under this statute is a matter of daily occurrence. The only requirement is that the applicant must show himself entitled thereto under the principles of equity.
In depriving plaintiffs of the right to enjoin the boycott while leaving the remedy by injunction still available to other litigants, the statute denies plaintiffs the equal protection of the laws, contrary to the Fourteenth Amendment. As construed by the Arizona Supreme Court, it discriminates against plaintiffs, (1) by reason of the class to which they belong, and (2) by reason of the class to which their property belongs.
By these classifications, a remedy freely granted to one person is withheld from another, though they both
316
OCTOBER TERM, 1921.
Argument for Plaintiffs in Error.
257 U.S.
stand in the same situation. The right sought to be protected, the wrong sought to be prevented, the remedy sought to be applied, the propriety of the remedy, the urgency of the need, the form of the action, the pleadings, the proofs—all the facts and all the equities—may be the same in the one case as in the other; and yet the remedy which the court grants to the one applicant must be withheld from the other, simply because of the accidental and wholly irrelevant circumstance that this applicant once employed the wrong-doers, and had a disagreement with them concerning the terms and conditions of their employment and that the wrong is being committed because of that disagreement; coupled with the further accidental and irrelevant fact that the property which the applicant seeks to protect is not of a tangible character, but consists merely of his business and-of his right to conduct that business in such lawful manner as he sees fit.
Is not this as arbitrary and capricious, as unreasonable and oppressive, as if the statute had said that injunctions should be granted to white men and withheld from colored men, or granted to Protestants and withheld from Catholics, or granted to Democrats and withheld from Republicans? Might it not as well have said that injunctions should issue to protect real estate, but not personal property, or to protect brick houses, but not wooden houses, or to protect houses situated on even-numbered lots, but not those on odd-numbered lots? Can it be said that the distinction upon which the classification is based bears any reasonable or just relation to the thing in respect to which the classification is imposed?
Thanks to the good sense and fair-mindedness of legislatures generally, attempts to deny this right of equal access to the courts have been comparatively few and infrequent. Examples, however, have not been wanting. Connolly v. Union Sewer Pipe Co., 184 U. S. 540; John-
TRUAX v. CORRIGAN.	317
312.	Argument for Defendants in Error.
son v. Goodyear Mining Co., 127 Cal. 4; Black v. Seal, 6 Houst. 541; Hecker v. Illinois Central R. R. Co., 231 Ill. 574; Green v. Red Cross Medical Service Co., 232 Ill. 616; Zolnowski v. Illinois Steel Co., 233 Ill. 299; Reinhardt v. Chicago Junction Ry. Co., 235 Ill. 576; Funkhouser v. Randolph, 287 Ill. 94; Cincinnati &c. Ry. Co. v. Clark, 11 Ky. Law Rep. 286; German Insurance Co. v. Miller, 12 Ky. Law Rep. 138; Pearson v. Portland, 69 Me. 278; Opinion of Justices, 211 Mass. 618; Bogni v. Perotti, 224 Mass. 152; In re Flukes, 157 Mo. 125; McClung v. Pulitzer Publishing Co., 279 Mo. 370; Hargraves Mills v. Harden, 56 N. Y. S. 937; Rosin v. Lidgerwood Mfg. Co., 86 N. Y. S. 49; Wally’s Heirs n. Kennedy, 2 Yerg. 554; Phipps n. Wisconsin Central Ry. Co., 133 Wis. 153; Kiley v. Chicago &c. Ry. Co., 138 Wis. 215; State v. Wisconsin-Minnesota Light Co., 165 Wis. 430. Of all these cases, the one which most nearly resembles the case at bar is that of Bogni v. Perotti.
Mr. Jackson H. Ralston, with whom Mr. Stanley D. Willis, Mr. Wiley E. Jones and Mr. Samuel Herrick were on the briefs, for defendants in error.1
The issue presented is, whether peaceable persuasion by circulars, banners and word of mouth is intrinsically unlawful, and by its very existence unlawfully takes away some property or property rights of plaintiffs.
While the question has been largely discussed in picketing cases, yet, analyzing this situation, the picketing is . purely incidental—a means adopted to inform the public that plaintiffs’ establishment was deemed unfair. This picketing can not be regarded in any other light, because no state or municipal law has been violated, and the ingress and egress of customers has not been interfered with.
1At the first hearing the case was argued by Mr. Ralston and Mr. Herrick, for defendants in error.
âi8
OCTOBER TERM, 1921.
Argument for Defendants in Error.
257 U. S.
We deny that the plaintiffs possess any such absolute good will as against the defendants that it may be called property. Good will, which is property, is something which ordinarily arises out of contract. Wherever it is said to be infringed, and no contract relations have been shown to exist, such statement is made because some law has been violated, upon the observance of which the complaining party had a right to rely; or some public nuisance exists from which the plaintiff has suffered special damages. The thing which the courts protect in such cases is not good will in any usual sense of the term, but a man’s fair right to obtain a livelihood.
In the present instance, there is no contract relation of good will; there is no right to appeal to a court of equity except it be that by some means considered by the law improper under all the circumstances the defendants have injured or destroyed plaintiffs’ opportunity to gain a livelihood. This they have not done by the violation of any law, by the creation of any nuisance or in any manner save one—communication to the public of the fact that plaintiffs’ establishment is “ unfair ” to organized labor. This statement, as appears from the bill, is an entirely truthful one, and the defendants had an interest in making it known to the public. Hence, the work of the union did not constitute a gratuitous attempt to interfere with the plaintiffs’ business.
We admit that, even though these objects are generally recognized as sufficient to justify such action on the part of unions, yet, if coupled with wantonness or disorder, or creating a public nuisance, which especially affects the employer, he may appeal to a court of equity. But in the absence of wantonness or libel, which are not charged here, the defendants have an absolute right of free speech, which extends, likewise, to freedom of publication. Such rights are more sacred than are rights to conduct business.
TRUAX v. CORRIGAN.	319
312.	Argument for Defendants in Error.
The provision of the Arizona statute under consideration strongly resembles § 20 of the Clayton Act. Though §§ 6 and 20 of the Clayton Act have been before the federal courts on many occasions, it has never been suggested that that act -was unconstitutional or deprived anyone of property or of a property right. See on this point, and also on the general proposition regarding picketing: Alaska S. S. Co. v. International Longshoremen’s Association, 236 Fed. 964; Tri-City Central Trades Council v. American Steel Foundries, 238 Fed. 728 [s. c., ante, 184]; Stephens v. Ohio State Telephone Co., 240 Fed. 759; Puget Sound Traction Co. v. Whitley, 243 Fed. 945; Kroger Grocery Co. v. Retail Clerks’ Association, 250 Fed. 890; Duplex Printing Press Co. v. Deering, 247 Fed. 192; 252 Fed. 722; Kinloch Telephone Co. n. Local Union No. 2, 265 Fed. 312. In neither Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, nor Paine Lumber Co. v. Neal, 244 U. S. 459, was there any suggestion that the labor provisions of the Clayton Act were invalid.
Peaceful picketing such as has been indulged in by the defendants has many times been declared entirely lawful. [Citing many cases.]
From a consideration of these cases, it is clear that in no single instance has any court, state or federal, declared such legislation as the Arizona statute and the Clayton Act to be unconstitutional. On the contrary, they have recognized the right of the legislature to do away with proceedings by injunction, leaving to the law court determination of the question of the infliction of real and unlawful damage.
The plaintiffs seek to confuse peaceful picketing with the general subject of boycotting, with which it has but an incidental relation. Their argument for the most part begs the real question in the case,—the character, lawful or unlawful, of the defendants’ action. The cases
320
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
relied on by plaintiffs are inapplicable here. The unlawful means referred to in nearly all of them are threats of personal damage leveled at the person addressed, violence, coercion and intimidation, none of which elements is set out in the bill in this case. •
The Arizona statute does not hold in favor of any particular class, or against any other particular class, but makes a provision as to “ any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment.” A broader classification could hardly be conceived, as nearly the entire human race can be grouped under the words “ employers and employees.” Goldberg, Bowen & Co. v. Stablemen’s Union, 149 Cal. 429; Opinion of the Justices, 211 Mass. 618; and Bogni N.Perotti, 224 Mass. 152, are distinguishable.
The right of the State to make classifications is a very broad one and is to be interfered with only upon a clear showing that it resulted in denying the equal protection of the laws. Singer Sewing Machine Co. v. Brickell, 233 U. S. 304; International Harvester Co. v. Missouri, 234 U. S. 199. Certainly the discrimination alleged in the present case is no greater than that in the laws held by this court to be not unconstitutional in the two last cited cases.
Mr. Chief Justice Taft delivered the opinion of the court.
The plaintiffs in error, who were plaintiffs below, and will be so called, own, maintain and operate, on Main Street, in the City of Bisbee, Arizona, a restaurant, known as the “ English Kitchen.” The defendants are cooks and waiters formerly in the employ of the plaintiffs, together with the labor union and the trades assembly of which
TRUAX v. CORRIGAN.	321
312.	Opinion of the Court.
they were members. All parties are residents of the State of Arizona.,
The complaint set out the following case:
In April, 1916, a dispute arose between the plaintiffs and the defendants’ union concerning the terms and conditions of employment of the members of the union. The plaintiffs refused to yield to the terms of the union, which thereupon ordered a strike of those of its members who were in plaintiffs’ employ. To win the strike and to coerce and compel the plaintiffs to comply with the demands of the union, the defendants and others unknown to the plaintiffs entered into a conspiracy and boycott to injure plaintiffs in their restaurant and restaurant business, by inducing plaintiffs’ customers and others theretofore well and favorably disposed, to cease to patronize or trade with the plaintiffs. The method of inducing was set out at length and included picketing, displaying banners, advertising the strike, denouncing plaintiffs as “ unfair ” to the union and appealing to customers to stay away from the “ English Kitchen,” and the circulation of handbills containing abusive and libelous charges against plaintiffs, their employees and their patrons, and intimations of injury to future patrons. Copies of the handbills were set forth in exhibits made part of the complaint.
In consequence of defendants’ acts, many customers were induced to cease from patronizing plaintiffs, and their daily receipts, which had been in excess of the sum of $156 were reduced to $75. The complaint averred that if the acts were continued, the business would be entirely destroyed, and that the plaintiffs would suffer great and irreparable injury; that for the plaintiffs to seek to recover damages would involve a multiplicity of suits; that all the defendants were insolvent, and would be unable to respond in damages for any injury resulting from their acts and the plaintiffs were therefore without any adequate remedy at law.
322
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
The complaint further averred that the defendants were relying for immunity on Paragraph 1464 of the Revised Statutes of Arizona, 1913, which is in part as follows:
“ No restraining order or injunction shall be granted by any court of this state, or a judge or the judges thereof, in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.
“And no such restraining order or injunction shall prohibit any person or persons from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at or near a house or place where any person resides or works, or carries on business, or happens to be for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute; or from recommending, advising, or persuading others by peaceful means so to do; . . .”
The plaintiffs alleged that this paragraph if it made lawful defendants’ acts contravened the Fourteenth Amendment to the Constitution of the United States by depriving plaintiffs of1 their property without due process of law, and by denying to plaintiffs the equal protection of the laws, and was, therefore, void and of no effect. Upon the case thus stated the plaintiffs asked a temporary, and a permanent, injunction.
TRUAX v. CORRIGAN.	323
312.	Opinion of the Court.
The defendants filed a demurrer, on two grounds: First, that the complaint did not state facts sufficient to constitute a cause of action, in that the property rights asserted therein were not, under Paragraph 1464, Revised Statutes of Arizona, 1913, of such character that their irreparable injury might be enjoined, and secondly, that upon its face the complaint showed a want of equity.
The Superior Court for Cochise County sustained the demurrer and dismissed the complaint, and this judgment was affirmed by the Supreme Court of Arizona.
The ruling of the Supreme Court proceeded first on the assumption that the gravamen of the complaint was that the defendants were merely inducing patrons to cease their patronage by making public the fact of the dispute and the attitude of plaintiffs in it, and, secondly, on the proposition that, while good will is a valuable factor in business success, “no man . . . has a vested property right in the esteem of the public,” that, while the plaintiff had a clear right to refuse the demand of the union, the union had a right to advertise the cause of the strike. The court held that the purpose of Paragraph 1464 was to recognize the right of workmen on a strike to use peaceable means to accomplish the lawful ends for which the strike was called; that picketing, if peaceably carried on for a lawful purpose, was no violation of the rights of the person whose place of business was picketed; that, prior to the enactment of Paragraph 1464, picketing was unlawful in Arizona because it was presumed to induce breaches of the peace, but that plaintiffs had no vested right to have such a rule bf law continue in that State; that under Paragraph 1464 picketing was no longer conclusively presumed to be unlawful; that the paragraph simply dealt with a rule of evidence requiring the courts to substitute evidence of the nature of the act for the presumption otherwise arising; that the plaintiffs’ property rights were not invaded by picketing unless the 6267°—22------26
324
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
picketing interfered with the free conduct of the business; that plaintiffs did not claim that defendants had by violent means invaded their rights, and that if that kind of picketing were charged and established by proof plaintiffs would be entitled to relief to the extent of prohibiting violence in any form.
The effect of this ruling is that, under the statute, loss may be inflicted upon the plaintiffs’ property and business by “ picketing ” in any form if violence be not used, and that, because no violence was shown or claimed, the campaign carried on, as described in the complaint and exhibits, did not unlawfully invade complainants’ rights.
The facts alleged are admitted by the demurrer, and in determining their legal effect as a deprivation of plaintiffs’ legal rights under the Fourteenth Amendment, we are at as full liberty to consider them as was the State Supreme Court. Mackay v. Dillon, 4 How. 421; Dower v. Richards, 151 U. S. 6q8, 667. Nor does the court’s declaration that the statute is a rule of evidence bind us in such an investigation. Bailey v. Alabama, 219 U. S. 219, 238, 239; Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418; Mugler v. Kansas, 123 U. S. 623, 661; Corn Products Refining Co. v. Eddy, 249 U. S. 427, 432. In cases brought to this court from state courts for review, on the ground that a federal right set up in the state court has been wrongly denied, and in which the state court has put its decision on a finding that the asserted federal right has no basis in point of fact or has been waived or lost, this court as an incident of its power to determine whether a federal right has be&i wrongly denied, may go behind the finding to see whether it is without substantial support. If the rule were otherwise, it almost always would be within the power of a state court practically to prevent a review here. Kansas City Southern Ry. Co. v. Albers Commission Co., 223 U. S. 573, 591, 593; Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S. 655, 668,
TRUAX v. CORRIGAN.	325
312.	Opinion of the Court.
669; Southern Pacific Co. v. Schuyler, 227 U. S. 601, 611. Another class of cases in which this court will review the finding of the court as to the facts is when the conclusion of law and findings of fact are so intermingled as to make it necessary, in order to pass upon the question to analyze the facts. Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 593; Jones National Bank v. Yates, 240 U. S. 541, 552, 553. In view of these decisions and the grounds upon which they proceed, it is clear that in a case like the present, where the issue is whether a state statute in its application to facts which are set out in detail in the pleadings and are admitted by demurrer, violates the Federal Constitution, this court must analyze the facts as averred and draw its own inferences as to their ultimate effect, and is not bound by the conclusion of the State Supreme Court in this regard. The only respect in such a case in which this court is bound by the judgment of the State Supreme Court is in the construction which that court puts upon the statute.
The complaint and its exhibits make this case:
The defendants conspired to injure and destroy plaintiffs’ business by inducing their theretofore willing patrons and would-be patrons not to patronize them and they influenced these to withdraw or withhold their patronage:
(1)	By having the agents of the union walk forward and back constantly during all the business hours in front
of plaintiffs’ restaurant and within five feet thereof, dis- * playing a banner announcing in large letters that the restaurant was unfair to cooks and waiters and then-union.
(2)	By having agents attend at or near the entrance of the restaurant during all business hours and continuously announce in a loud voice, audible for a great distance, that the restaurant was unfair to the labor union.
(3)	By characterizing the employees of the plaintiffs as scab Mexican labor, and using opprobrious epithets con-
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cerning them in handbills continuously distributed in front of the restaurant to would-be customers.
(4)	By applying in such handbills abusive epithets to Truax, the senior member of plaintiffs’ firm, and making libelous charges against him, to the effect that he was tyrannical with his help, and chased them down the street with a butcher knife, that he broke his contract and repudiated his pledged word; that he had made attempts to force cooks and waiters to return to work by attacks on men and women; that a friend of Truax assaulted a woman and pleaded guilty; that plaintiff was known by his friends, and that Truax’s treatment of his employees was explained by his friend’s assault; that he was a “ bad actor.”
(5)	By seeking to disparage plaintiffs’ restaurant, charging that the prices were higher and the food worse than in any other restaurant, and that assaults and slugging were a regular part of the bill of fare, with police indifferent.
(6)	By attacking the character of those who did patronize, saying that their mental calibre and moral fibre fell far below the American average, and enquiring of the would-be patrons—Can you patronize such a place and look the world in the face?
(7)	By threats of similar injury to the would-be patrons—by such expressions as “All ye who enter here leave all hope behind.” “ Don’t be a traitor to humanity ”; by offering a reward for any of the ex-members of the union caught eating in the restaurant; by saying in the handbills: “We are also aware that handbills and banners in front of a business house on the main street give the town a bad name, but they are permanent institutions until William Truax agrees to the eight-hour day.”
(8)	By warning any person wishing to purchase the business from the Truax firm that a donation would be necessary, amount to be fixed by the District Trades As
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sembly, before the picketing and boycotting would be given up.
The result of this campaign was to reduce the business of the plaintiffs from more than $55,000 a year to one of $12,000.
Plaintiffs’ business is a property right {Duplex Printing Press Co. v. Deering, 254 U. S. 443, 465) and free access for employees, owner and customers to his place of business is incident to such right. Intentional injury caused to either right or both by a conspiracy is a tort. Concert of action is a conspiracy if its object is unlawful or if the means used are unlawful. Pettibone v. United States, 148 U. S. 197, 203; Duplex Printing Press Co. n. Deering, supra. Intention to inflict the loss and the actual loss caused are clear. The real question here is, were the means used illegal? The above recital of what the defendants did, can leave no doubt of that. The libelous attacks upon the plaintiffs, their business, their employees, and their customers, and the abusive epithets applied to them were palpable wrongs. They were uttered in aid of the plan to induce plaintiffs’ customers and would-be customers to refrain from patronizing the plaintiffs. The patrolling of defendants immediately in front of the restaurant on the main street and within five feet of plaintiffs’ premises continuously during business hours, with the banners announcing plaintiffs’ unfairness; the attendance by the* picketers at the entrance to the restaurant and their insistent and loud appeals all day long, the constant circulation by them of the libels and epithets applied to employees, plaintiffs and customers, and the threats of injurious consequences to future customers, all linked together in a campaign, were an unlawful annoyance and a hurtful nuisance in respect of the free access to the plaintiffs’ place of business. It was not lawful persuasion or inducing. It was not a mere appeal to the sympathetic aid of would-be customers by a simple statement of the
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fact of the strike and a request to withhold patronage. It was compelling every customer or would-be customer to run the gauntlet of most uncomfortable publicity, aggressive and annoying importunity, libelous attacks and fear of injurious consequences, illegally inflicted, to his reputation and standing in the community. No wonder that a business of $50,000 was reduced to only one-fourth of its former extent. Violence could not have been more effective. It was moral coercion by illegal annoyance and obstruction and it thus was plainly a conspiracy.
It would consume too great space to refer to the mass of authority which sustains this conclusion. It is sufficient to cite the general discussion of the subject in Gompers v. Bucks Stove & Range Co., 221 U. S. 418,439. Well known decisions on similar facts are Sherry v. Perkins, 147 Mass. 212; Barr v. Essex Trades Council, 53 N. J. Eq. 101; Purvis n. Local No. 500, 214 Pa. St. 348; Wilson n. Hey, 232 Ill. 389; Casey v. Cincinnati Typographical Union, 45 Fed. 135,’^Biercerv. Stablemen’s Union, 156 Cal. 70.
A law which operates to make lawful such a wrong as is described in plaintiffs’ complaint deprives the owner of the business and the premises of his property without due process, and can not be held valid under the Fourteenth Amendment.
The opinion of the State Supreme Court in this case if taken alone seems to show that the statute grants complete immunity from any civil or criminal action to the defendants, for it pronounces their acts lawful. If, however, we are to assume that the criminal laws of Arizona do provide prosecution for such libels against the plaintiffs though committed by this particular class of tort feasors, {Truax v. Bisbee Local No. 380,19 Ariz. 379), still the tort here committed was not a mere libel of plaintiffs. That would not have had any such serious consequences. The libel of the plaintiffs here was not the cause of the
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injury; it was only one step or link in a conspiracy, unlawfully to influence customers.
It is argued that, while the right to conduct a lawful business is property, the conditions surrounding that business, such as regulations of the State for maintaining peace, good order, and protection against disorder, are matters in which no person has a vested right. The conclusion to which this inevitably leads in this case is that the State may withdraw all protection to a property right by civil or criminal action for its wrongful injury if the injury is not caused by violence. This doctrine is supposed to find support in the case of New York Central R. R. Co. v. White, 243 U. S. 188, 198, and cases there cited. These cases, all of them, relate to the liabilities of employers to employees growing out of the relation of employment for injuries received in the course of employment. They concern legislation as to the incidents of that relation. They affirm the power of the State to vary the rules of the common law as to the fellow servant doctrine, assumption of risk, and negligence, in that relation. They hold that employers have no vested right in those rules of the common law. The broad distinction between one’s right to protection against a direct injury to one’s fundamental property right by another who has no special relation to him, and one’s liability to another with whom he establishes a voluntary relation under a statute is manifest upon its statement. It is true that no one has a vested right in any particular rule of the common law, but it is also true that the legislative power of a State can only be exerted in subordination to the fundamental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve, and that a purely arbitrary or capricious exercise of that power whereby a wrongful and highly injurious invasion of property rights, as here, is practically sanctioned and the
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owner stripped of all real remedy, is wholly at variance with those principles.
It is to be observed that this is not the mere case of a peaceful secondary boycott as to the illegality of which courts have differed and States have adopted different statutory provisions. A secondary boycott of this kind is where many combine to injure one in his business by coercing third persons against their will to cease patronizing him by threats of similar injury. In such a case the many have a legal right to withdraw their trade from the one, they have the legal right to withdraw their trade from third persons, and they have the right to advise third persons of their intention to do so when each act is considered singly. The question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong. But here the illegality of the means used is without doubt and fundamental. The means used are the libelous and abusive attacks on the plaintiffs’ reputation, like attacks on their employees and customers, threats of such attacks on would-be customers, picketing and patrolling of the entrance to their place of business, and the consequent obstruction of free access thereto—all with the purpose of depriving the plaintiffs of their business. To give operation to a statute whereby serious losses inflicted by such unlawful means are in effect made remediless, is, we think, to disregard fundamental rights of liberty and property and to deprive the person suffering the loss of due process of law.
If, however, contrary to the construction which we put on the opinion of the Supreme Court of Arizona, it does not withhold from the plaintiffs all remedy for the wrongs they suffered but only the equitable relief of injunction, there still remains the question whether they are thus denied the equal protection of the laws.
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The Arizona constitution provides that the superior court shall have jurisdiction in all cases of equity and, in pursuance of this provision, Paragraph 1456 of the Revised Statutes of Arizona, 1913, declares:
“Judges of the superior courts may grant writs of injunction, returnable to said courts, in the following cases:
“ 1. Where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.
“ 2. Where, pending litigation, it shall be made to appear that a party is doing some act respecting the subject of litigation, or threatens, or is about to do some act, or is procuring or suffering the same to be done, in violation of the rights of the applicant, which act would tend to render the judgment ineffectual.
“ 3. In all other cases where the applicant for such writ may show himself entitled thereto under the principles of equity.”
The necessary effect of these provisions and of Paragraph 1464 is that the plaintiffs in error would have had the right to an injunction against such a campaign as that conducted by the defendants in error, if it had been directed against the plaintiffs’ business and property in any kind of a controversy which was not a dispute between employer and former employees. If the competing restaurant keepers in Bisbee had inaugurated such a campaign against the plaintiffs in error and conducted it with banners and handbills of a similar character, an injunction would necessarily have issued to protect the plaintiffs in the enjoyment of their property and business.
This brings us to consider the effect in this case of that provision of the Fourteenth Amendment which forbids any State to deny to any person the equal protection of the laws. The clause is associated in the Amendment
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i with the due process clause and it is customary to consider them together. It may be that they overlap, that a | violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. The due process clause, brought down from Magna Charta, was found in the early state constitutions, and later in the Fifth Amendment to the Federal Constitution as a limitation upon the executive, legislative and judicial powers of the Federal Government, while the equality clause does not appear in the Fifth Amendment
1 and so does not apply to congressional legislation, h The | due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Hurtado v. California, 110 U. S. 516, 535. It, of course, tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law. “All men are equal before the law,” “ This is a government of laws and not of men,” “No man is above the Jaw,” are all maxims showing the spirit in which legislatures, executives and courts are expected to make, execute and apply laws. But the framers and adopters of this Amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty.
The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile dis-
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crimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process. Mr. Justice Field, delivering the opinion of this court in Barbier vs Connolly, 113 U. S. 27, 32, of the equality clause, said—F Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.” In Hayes v. Missouri, 120 U. S. 68, the court speaking through the same Justice said the Fourteenth Amendment “ does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Thus the guaranty was intended to secure equality of protection not only for all but against all similarly situated. Indeed, protection is not protection unless it does so. Immunity granted to a class, however limited, having the effect to deprive another class, however limited, of a v personal or property right, is just as clearly a denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the deprivation of right permitted worked against, a larger class.
Mr. Justice Matthews, in Yick Wo v. Hopkins, 118 U. S. 356, 369, speaking for the court of both the due process and the equality clause of the Fourteenth Amendment, said:
“ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color; or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”
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The accuracy and comprehensive felicity of this description of the effect of the equality clause are shown by the frequency with which it has been quoted in the decisions of this court. It emphasizes the additional guaranty of a right which the clause has conferred beyond the requirement of due process.
With these views of the meaning of the equality clause, it does not seem possible to escape the conclusion that by the clauses of Paragraph 1464 of the Revised Statutes of Arizona, here relied on by the defendants, as construed by its Supreme Court, the plaintiffs have been deprived of the equal protection of the law.
It is beside the point to say that plaintiffs had no vested right in equity relief and that taking it away does not deprive them of due process of law. If, as is asserted, the granting of equitable remedies falls within the police power and is a matter which the legislature may vary as its judgment and discretion shall dictate, this does not meet the objection under the equality clause which forbids the granting of equitable relief to one man and the denying of it to another under like circumstances and in the same territorial jurisdiction. The Fourteenth Amendment, as this court said in Barbier v. Connolly, already cited, intended “ not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances ; that no greater burdens should be laid upon one
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than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences.”
If, as claimed, the legislature has full discretion to grant or withhold equitable relief in any class of cases, indeed to take away from its courts all equity jurisdiction and leave those who are wronged to suits at law or to protection by the criminal law, the legislature has the same power in respect to the declaration of crimes. Suppose the legislature of the State were to provide that such acts as were here committed by defendants, to wit, the picketing or patrolling of the sidewalk and street in front of the store or business house of any person and the use of handbills of an abusive and libelous character against the owner and present and future customers with intent to injure the business of the owner, should be a public nuisance and be punishable by fine and imprisonment, and were to except ex-employees from its penal provisions. Is it not clear that any defendant could escape punishment under it on the ground that the statute violated the equality clause of the Fourteenth Amendment? That is the necessary effect of Connolly v. Union Sewer Pipe Co., 184 U. S. 540, where an anti-trust act was held invalid under this same clause because it contained the excepting provision that it should “not apply to agricultural products or live stock while in the hands of the producer or raiser.” That was a stronger case than this because there the whole statute was one dealing with economic policy and was a declaration of mala prohibita that had theretofore been lawful, from which it was strongly argued that the exception was justified in the interest of agriculture, and was a proper exception by permissible classification. Here is a direct invasion of the ordinary business and property rights of a person, unlawful when committed by any one, and remediable because
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of its otherwise irreparable character by equitable process, except when committed by ex-employees of the injured person. If this is not a denial of the equal protection of the laws, then it is hard to conceive what would be. To hold it not to be, would be, to use the expression of Mr. Justice Brewer in Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 154, to make the guaranty of the equality clause “ a rope of sand.”
In Missouri v. Lewis, 101 U. S. 22, we find one of the earlier and one of the most helpful discussions of the application of the equality clause to judicial procedure by Mr. Justice Bradley speaking for this court. In that case one who had been disbarred by the Court of Appeals of St. Louis sought to avoid the effect of this action by the contention that he was denied the equal protection of the laws because he was not given the right of appeal to the Supreme Court of the State, granted to litigants in the State, except in St. Louis and three other counties. It was held that the equality clause did not apply because the state legislature had the right to vary the system of courts and procedure in. various parts of the State. Mr. Justice Bradley said (p. 30):
“ The last restriction, as to the equal protection of the laws, is not violated by any diversity in the jurisdiction of the several courts as to subject-matter, amount, or finality of decision, if all persons within the territorial limits of their respective jurisdictions have an equal right, in like cases and under like circumstances, to resort to them for redress.” Again (p. 31):
“ For, as before said, it [i. e., the equality clause] has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.”
To sustain the distinction here between the ex-employees and other tort feasors in the matter of remedies
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against them, it is contended that the legislature may establish a class of such ex-employees for special legislative treatment. In adjusting legislation to the need of the people of a State, the legislature has a wide discretion and it may be fully conceded that perfect uniformity of treatment of all persons is neither practical nor desirable, that classification of persons is constantly necessary and that questions of proper classification are not free from difficulty. But we venture to think that not in any of the cases in this court has classification of persons of sound mind and full responsibility, having no special relation to each other, in respect of remedial procedure for an admitted tort been sustained. Classification must be reasonable. As was said in Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 155, classification “ must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without such basis.” As was said in Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293: “The rule [i. e., of the equality clause] is not a substitute for municipal law; it only prescribes that that law have the attribute of equality of operation, and equality of operation does not mean indiscriminate operation on persons merely as such, but on persons according to their relations.” The same principle is repeated and enforced in Southern Ry. Co. v. Greene, 216 U. S. 400, 417: “ While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and classification cannot be arbitrarily made without any substantial basis.” Classification is the most inveterate of our reasoning processes. We can scarcely think or speak without consciously or unconsciously exercising it. It must therefore obtain in
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and determine legislation; but it must regard real resemblances and real differences between things, and persons, and class them in accordance with their pertinence to the purpose in hand. Classification like the one with which we are here dealing is said to be the development of the philosophic thought of the world and is opening the door to legalized experiment. When fundamental rights are thus attempted to be taken away, however, we may well subject such experiment to attentive judgment. The Constitution was intended, its very purpose was, to prevent experimentation with the fundamental rights of the individual. We said through Mr. Justice Brewer, in Muller v. Oregon, 208 U. S. 412, that “ it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking.”
It is urged that this court has frequently recognized the special classification of the relations of employees and employers as proper and necessary for the welfare of the community and requiring special treatment. This is undoubtedly true, but those cases, the Second Employers’ Liability Cases, 223 U. S. 1; New York Central R. R. Co. v. White, 243 U. S. 188; Hawkins v. Bleakly, 243 U. S. 210; Mountain Timber Co. v. Washington, 243 U. S. 219; Middleton v. Texas Power & Light Co., 249 U. S. 152, and Arizona Employers’ Liability Cases, 250 U. S. 400, as we have already pointed out in discussing the due process clause, were cases of the responsibility of the employer for injuries sustained by employees in the course of their employment. The general end of such legislation is that the employer shall become the insurer of the employee against injuries from the employment without regard to the negligence, if any, through which it occurred, leaving to the employer to protect himself by insurance and to compensate himself for the additional cost of production
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by adding to the prices he charges for his products. It seems a far cry from classification on the basis of the relation of employer and employee in respect of injuries received in course of employment to classification based on the relation of an employer, not to an employee, but to one who has ceased to be so, in respect of torts thereafter committed by such ex-employee on the business and property right of the employer. It is really a little difficult to say, if such classification can be sustained, why special legislative treatment of assaults upon an employer or his employees by ex-employees may not be sustained with equal reason. It is said the State may deal separately with such disputes because such controversies are a frequent and characteristic outgrowth of disputes over terms and conditions of employment. Violence of exemployees toward present employees is also a characteristic of such disputes. Would this justify a legislature in excepting ex-employees from criminal prosecution for such assaults and leaving the assaulted persons to suits for damages at common law?
Our conclusion, that plaintiffs are denied the equal protection of the laws, is sustained by the decisions in this court in Truax v. Raich, 239 U. S. 33; Atchison, Topeka & Santa Fe Ry. Co. v. V osburg, 238 U. S. 56; Southern Ry. Co. v. Greene, 216 U. S. 400; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150. In the state courts, we find equal support for it. Bogni v. Perotti, 224 Mass. 152; Pearson n. Portland, 69 Me. 278; Goldberg, Bowen & Co. v. Stablemen’s Union, 149 Cal. 429, 434; Pierce„v. Stablemen’s Union, 156 Cal. 70, 74; Funkhouser v. Randolph, 287 Ill. 94; Houston v. Pulitzer Publishing Co., 249 Mo. 332; Phipps v. Wisconsin Central Ry. Co., 133 Wise. 153; Park v. Detroit Free Press Co., 72 Mich. 560; C., N. O. & T. P. Ry. Co. v. Clark & Bennett, 11 Ky. Law Rep. 286. ■'
6267°—22--27
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It is urged that in holding Paragraph 1464 invalid, we are in effect holding invalid § 20 of the Clayton Act. Of course, we are not doing so. In the first place, the equality clause of the Fourteenth Amendment does not apply to congressional but only to state action. In the second place, § 20 of the Clayton Act never has been construed or applied as the Supreme Court of Arizona has construed and applied Paragraph 1464 in this case.
We have but recently considered the clauses of § 20 of the Clayton Act, sometimes erroneously called the " picketing ” clauses. American Steel Foundries v. Tri-City Central Trades Council, ante, 184. They forbid an injunction in labor controversies prohibiting any person “ from attending at any place where any such person or persons may lawfully be, for the purpose of peacefully obtaining or communicating information, or from peacefully persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute, or from recommending, advising, or persuading others by peaceful and lawful means so to do.”
We held that under these clauses picketing was unlawful, and that it might be enjoined as such, and that peaceful picketing was a contradiction in terms which the statute sedulously avoided, but that, subject to the^ primary right of the employer and his employees and would-be employees to free access to his premises without obstruction by violence, intimidation, annoyance, importunity or dogging, it was lawful for ex-employees on a strike and their fellows in a labor union to have a single representative at each entrance to the plant of the employer to announce the strike and peaceably to persuade the employees and would-be employees to join them in it. We held that these clauses were merely declaratory of what had always been the law and the best practice in equity, and we thus applied them. The construction put
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upon the same words by the Arizona Supreme Court makes these clauses of Paragraph 1464 as far from those of § 20 of the Clayton Act in meaning as if they were in wholly different language.
We conclude that the demurrer in this case should have been overruled, the defendants required to answer, and that if the evidence sustained the averments of the complaint, an injunction should issue as prayed.
Objection is made to this conclusion on the ground that as we hold certain clauses of Paragraph 1464 of the^Ari-zona Code, as construed, invalid, they can not be separated from Paragraph 1456 which must also be held invalid and then there is no law in Arizona authorizing an injunction in this or any case. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, is cited to sustain this view. There a new anti-trust statute was enacted making criminal and subject to injunction what before had not been so. The exception from its operation of products of the farm in the hands of the producers, contained in the law as enacted, was declared to be a denial of equal protection of the laws, and the whole law was declared invalid because the court in view of the exception could not assume that the legislature would 'have enacted the law, had it known that the producers of farm products would have come within its terms. But here the case is quite different. Paragraph 1456 has been the statute law of Arizona, State and Territory, since 1901. It was first adopted in the Code of the Territory of 1901. It was continued in force, by virtue of the new constitution of Arizona ’ adopted by the people in 1912, which merely changed the name of the court, upon which general equity jurisdiction was conferred, from the District Court to the Superior Court, and which provided that the authority, jurisdiction, practice and procedure of the district courts should continue in force and apply and govern superior courts until altered or repealed. Arizona came into the
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Union with this constitution February 14, 1912. At the session of 1912 provision was made for revision and codification of the laws. The present Code was adopted by the legislature at its third special session of 1913. Paragraph 1464 was passed, as the Code itself states, at the second session of 1913. Thus Paragraph 1464 was an amendment to Paragraph 1456, and was included with the original section in the code revision of 1913. To invalidate Paragraph 1456 we must assume that had the legislature known that the clauses of Paragraph 1464 here involved, construed as the Arizona Supreme Court has construed them, were unconstitutional, it would have repealed all the existing law conferring the equitable power of injunction on its first instance courts of general jurisdiction. We can not make this assumption. The exception introduced by amendment to Paragraph 1456 proving invalid, the original law stands without the amendatory exception.
The judgment of the Supreme Court of Arizona is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Holmes, dissenting.
The dangers of a delusive exactness in the application of the Fourteenth Amendment have been adverted to before now. Louisville & Nashville R. R. Co. v. Barber Asphalt Paving Co., 197 U. S. 430, 434. Delusive exactness is a source of fallacy throughout the law. By calling a business “ property ” you make it seem like land, and lead up to the conclusion that a statute cannot substantially cut down the advantages of ownership existing before the statute was passed. An established business no doubt may have pecuniary value and commonly is protected by law against various unjustified injuries. But you cannot give it definiteness of contour by calling it a thing. It is a course of conduct and like other conduct is
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312.	Holmes, J., dissenting.
subject to substantial modification according to time and circumstances both in itself and in regard to what shall justify doing it a harm. I cannot understand the notion that it would be unconstitutional to authorize boycotts and the like in aid of the employees’ or the employers’ interest by statute when the same result has been reached constitutionally without statute by Courts with whom I agree. See The Hamilton, 207 U. S. 398, 404. In this case it does not even appear that the business was not created under the laws as they now are. Denny v. Bennett, 128 U. S. 489.
I think further that the selection of the class of employers and employees for special treatment, dealing with both sides alike, is beyond criticism on principles often asserted by this Court. And especially I think that without legalizing the conduct complained of the extraordinary relief by injunction may be denied to the class. Legislation may begin where an evil begins. If, as many intelligent people believe, there is more danger that the injunction will be abused in labor cases than elsewhere I can feel no doubt of the power of the legislature to deny it in such cases. I refer to two decisions in which I have stated what I understand to be the law sanctioned by many other decisions. Carroll v. Greenwich Insurance Co., 199 U. S. 401, 411. Quong Wing v. Kirkendall, 223 U. S. 59.
In a matter like this I dislike to turn attention to anything but the fundamental question of the merits, but Connolly v. Union Sewer Pipe Co., 184 U. S. 540, raises at. least a doubt in my mind of another sort. The exception and the rule as to granting injunctions are both part of the same code, enacted at the same time. If the ex-cep tion fails, according to the Connolly Case the statute is bad as a whole. It is true that here the exception came in later than the rule, but after they had been amalgamated in a single act I cannot know that the later legis-
344	OCTOBER TERM, 1921.
Pitney and Clarke, JJ., dissenting. 257 U. S. lature would have kept the rule if the exception could not be allowed. If labor had the ascendancy that the exception seems to indicate, I think that probably it would have declined to allow injunctions in any case if that was the only way of reaching its end. But this is a matter upon which the State Court has the last word, and if it takes this view its decision must prevail. I need not press further the difficulty of requiring a State Court to issue an injunction that it never has been empowered to issue by the quasi-sovereign that created the Court.
I must add one general consideration. There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect. I agree with the more elaborate expositions of my brothers Pitney and Brandeis and in their conclusion that the judgment should be affirmed.
Mr. Justice Pitney, with whom concurred Mr. Justice Clarke, dissenting.
The Supreme Court of the State of Arizona sustained, against objections raised by plaintiffs in error under the “ due process of law ” and “ equal protection ” clauses of the Fourteenth Amendment, a statutory provision found in Paragraph 1464, Arizona Civil Code 1913, which restricts the employment of the process of injunction against what are called peaceful picketing and boycotting under certain circumstances, in terms similar to those found in § 20 of the Clayton Act of Congress (October 15, 1914, c. 323, 38 Stat. 730, 738)?
11464. No restraining order or injunction shall be granted by any court of this state, or a judge or the judges thereof, in any case be-
TRUAX v. CORRIGAN.	345
312.	Pitney and Clarke, JJ., dissenting.
Plaintiffs in error, who were plaintiffs in the trial court and appellants in the Supreme Court of the State, were engaged in the business of conducting a restaurant in Bisbee, enjoying and dependent for success upon the good will, custom, and patronage of the public; defendants'had been employed, in one capacity or another, in the restaurant, and were members of a local labor union. A dispute arose concerning the terms and conditions of the employment, and in the course of it demands were made upon plaintiffs by the union, with which plaintiffs refused to comply. Because of this the union ordered a strike of all its members then employed by plaintiffs, and defendants joined in the strike and left plaintiffs’ employ. Thereupon, for the purpose of winning the strike and tween an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving or growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property or to a property right of the party making the application, for which injury there is no adequate remedy at law, and such property or property right must be described with particularity in the application, which must be in writing and sworn to by the applicant or by his agent or attorney.
And no such restraining order or injunction shall prohibit any person or persons from terminating any relation of employment, or from ceasing to perform any work or labor, or from recommending, advising, or persuading others by peaceful means so to do; or from attending at or near a house or place where any person resides or works, or carries on business, or happens to be for the purpose of peaceably obtaining or communicating information, or of peaceably persuading any person to work or to abstain from working; or from ceasing to patronize or to employ any party to such dispute; or from recommending, advising, or persuading others by peaceful means so to do; or from paying or giving to or withholding from any person engaged in such dispute any strike benefits or other moneys or things of value; or from peaceably assembling at any place in a lawful manner and for lawful purposes; or from doing any act or thing which might lawfully be done in the absence of such dispute by any party thereto.
346	OCTOBER TERM, 1921.
Pitney and Clarke, J J., dissenting. 257 U.S. coercing plaintiffs into complying with the demands of the union, defendants and numerous other persons unknown combined to inaugurate and did inaugurate a boycott of plaintiffs and their restaurant business, in order to induce plaintiffs’ customers and patrons to refrain from patronizing the restaurant. In furtherance of the boycott defendants caused persons to walk back and forth along the street in front of the restaurant and near to the entrance during business hours, carrying banners bearing conspicuous notices denouncing plaintiffs as unfair to organized labor, etc., and caused printed handbills to be distributed among plaintiffs’ customers and patrons recommending and attempting to persuade them to refrain from patronizing the restaurant. Having sustained serious pecuniary loss, and being threatened with further and irreparable damage, plaintiffs brought suit for injunction, setting up that defendants were relying upon the provisions of Paragraph 1464 of the Civil Code, and praying that this might be held violative of the Fourteenth Amendment and that they might have an injunction and other relief.
The Supreme Court, conceding that prior to the enactment of Paragraph 1464 picketing carried on in any manner, even in a concededly peaceable manner, was unlawful by the law of Arizona, nevertheless, upon authority of a previous case decided by it upon substantially identical facts (Truax v. Bisbee Local No. 380, 19 Ariz. 379, 392), held that relief was barred by the statute. 20 Ariz. 7.
Upon the facts, it hardly could be said that defendants kept within the bounds of a 11 peaceful ” picket or boycott. They appear to have gone beyond mere attempts to persuade plaintiffs’ customers to withdraw their patronage, and to have resorted to abusive and threatening language towards the patrons themselves. The court declared, however, that the statute established a new rule
TRUAX v. CORRIGAN.	347
312.	Pitney and Clarke, J J., dissenting.
of evidence for determining whether picketing was peaceful and not otherwise unlawful; and that, measured by the standard thus prescribed, defendants were not subject to injunction. By this construction we are bound, and the only question is whether by the statute as so construed, and as applied to the facts of the case, plaintiffs are deprived of rights secured to them by the Fourteenth Amendment.
As to this, I regret that I am not in accord with the views of the majority of the court. Expressing no opinion as to the wisdom, or policy, or propriety in the general sense, of Paragraph 1464—with neither of which is our duty concerned—I consider first, whether, as construed and applied, it has the effect of depriving plaintiffs in error of their liberty or property without due process of law.
It is beside the question to discuss whether, under the rules of the common law or the general principles of justice, picketing or boycotting, or the conduct of defendants however described, is lawful. The Supreme Court of Arizona virtually conceded that in that State, in the absence of statute, they were not. The question is whether in this respect the law might be altered by act of legislation, to the extent of depriving a party aggrieved, and threatened with irreparable injury, of relief by injunction.
That the right to conduct a lawful business, and thereby acquire pecuniary profits, is property, is indisputable. That the state of society, and the existing condition of good order, or the opposite, surrounding the business, and its liability to or immunity from interruption through particular forms of disorder, affect its profitableness, likewise is plain. But it seems to me clear that, so far as these result from the general operation of the laws and regulations established by authority of the State for maintaining the peace, good order, and tranquility of its people and affording protection against disturbing ele-
$4$	OCTOBER TERM, 1921.
Pitney and Clarke, JJ., dissenting. 257 U. S. ments and ill-disposed persons, those laws and regulations, as rules of conduct and measures of relief, are subject to be changed in the normal exercise of the legislative power of the State. That no person has a vested interest in any rule of law, entitling him to have it remain unaltered for his benefit, is a principle thoroughly settled by numerous decisions of this court, and having general application, not confined at all to the rights and liabilities existing between employers and employees, or between persons formerly occupying that relation. Munn v. Illinois, 94 U. S. 113, 134; Hurtado v. California, 110 U. S. 516, 532; Second Employers’ Liability Cases, 223 U. S. 1, 50; Chicago & Alton R. R. Co. v. Traribarger, 238 U. S. 67, 76; New York Central R. R. Co. v. White, 243 U. S. 188, 198.
The use of the process of injunction to prevent disturbance of a going business by such a campaign as defendants here have conducted, is in the essential sense a measure of police regulation. And just as the States have a broad discretion about establishing police regulations, so they have a discretion, equally broad, about modifying and relaxing them. They may adopt the common law, or some other system, as their own judgment of the interests of their people may determine. They have general dominion, and, saving as restricted by particular provisions of the Federal Constitution, complete dominion over all persons, property, and business transactions within their borders; and in regulating its internal affairs a State may establish by legislation a policy differing in one or more respects from those of other States, just as it might establish a like difference through the decisions of its courts.
Hence, I have no doubt that, without infringing the “ due process ” clause, a State might by statute establish protection against picketing or boycotting however conducted, just as many States have done by holding them to be contrary to the common law, recognizing a property
TRUAX v. CORRIGAN.	349
312.	Pitney and Clarke, JJ., dissenting.
value in a going business, and applying equitable principles in safeguarding it from irreparable injury through interference found unwarranted. Vegelahn v. Guntner, 167 Mass. 92, 97-98; Beck v. Railway Teamsters’ Protective Union, 118 Mich. 497, 520-521; Barnes & Co. v. Chicago Typographical Union, 232 Ill. 424, 435, 437; Jensen v. Cooks’ & Waiters’ Union, 39 Wash. 531, 536; St. Germain v. Bakery & Confectionery Workers’ Union, 97 Wash. 282, 289, 295; Jonas Glass Co. v. Glass Bottle Blowers’ Association, 77 N. J. Eq. 219, 222-224. And, just as one State might establish such protection by statute, so another State may by statute disestablish the protection, even as States have differed in their judicial determination of the general law upon the subject. In neither case can I find ground for declaring that the State’s action is so arbitrary and devoid of reasonable basis that it can be called a deprivation of liberty or property without due process of law, in the constitutional sense. In truth, the States have a considerable degree of latitude in determining, each for itself, their respective conditions of law and order, and what kind of civilization they shall have as a result.
Paragraph 1464 does not modify any substantive rule of law, but only restricts the processes of the courts of equity. Ordinary legal remedies remain; and I cannot believe that the use of the injunction in such cases— however important—is so essential to the right of acquiring, possessing and enjoying property that its restriction or elimination amounts to a deprivation of liberty or property without due process of law, within the meaning of the Fourteenth Amendment.
Secondly, it is said that Paragraph 1464, Arizona Civil Code, denies to plaintiffs in error the “ equal protection of the laws; ” but it seems to me evident that it does not offend in this regard. Examination shows that it does not discriminate against the class to which plaintiffs belong
350
OCTOBER TERM, 1921.
Pitney and Clarke, J J., dissenting.
257 U.S.
in favor of any other. It applies not only to cases between employers and employees, irrespective of who is plaintiff and who defendant, but to cases between employees, and between persons employed and those seeking employment. And it applies equally to all persons coming within its reach.
It is said that because, under other provisions of the Arizona statute law, plaintiffs would have been entitled to an injunction against such a campaign as that conducted by defendants, had it been in a controversy other than a dispute between employer and former employees— for instance, had competing restaurant-keepers been the offenders—refusal of relief in the particular case by force of Paragraph 1464 is undue favoritism to the class of which defendants are members. But I submit with deference that this is not a matter of which plaintiffs are entitled to complain under the “ equal protection ” clause. There is no discrimination as against them; others situated like them are accorded no greater right to an injunction than is accorded to them. Whatever complaint the competing restaurant-keepers might have, if in the case supposed they were subject to be stopped by an injunction where former employees were not, it would not be a denial of equal protection to plaintiffs. Cases arising under this clause of the Fourteenth Amendment, preeminently, call for the application of the settled rule that before one may be heard to oppose state legislation upon the ground of its repugnance to the Federal Constitution he must bring himself within the class affected by the alleged unconstitutional feature. Rosenthal v. New York, 226 U. S. 260, 270-271; Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571, 576; Arkadelphia Milling Co. V. St. Louis Southwestern Ry. Co., 249 U. S. 134, 149; Middleton v. Texas Power & Light Co., 249 U. S. 152, 156-157.
A disregard of the rule in the present case has resulted, as it seems to me, in treating as a discrimination what, so
TRUAX v. CORRIGAN.	351
312.	Pitney and Clarke, JJ., dissenting.
far as plaintiffs are concerned, is no more than a failure to include in the statute a case which in consistency ought, it is said, to have been covered—an omission immaterial to plaintiffs. This is to transform the provision of the Fourteenth Amendment from a guaranty of the “ protection of equal laws ” into an insistence upon laws complete, perfect, symmetrical.
The guaranty of “ equal protection ” entitles plaintiffs to treatment not less favorable than that given to others similarly circumstanced. This the present statute gives them. The provision does not entitle them, as against their present opponents under present circumstances, to protection as adequate as they might have against opponents of another class under like circumstances. I find no authority for the proposition that the guaranty was intended to secure equality of protection “ not only for all but against all similarly situated,” except as between persons who properly belong in the same class. The familiar expression, in Barbier v. Connolly, 113 U. S. 27, 32, “ Class legislation, discriminating against some and favoring others,” refers to a discrimination which at the same time favors others similarly situated. The same is true of what was said in Hayes v. Missouri, 120 U. S. 68, 71-72, to the effect that the Amendment “ merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Other decisions are to the same effect. Nothing in the Arizona statute under consideration, either as written or as construed and applied, operates to discriminate against plaintiffs in favor of others similarly circumstanced and conditioned. Neither class of supposed offenders—those exempt from or those subject to injunction—stands in like case with plaintiffs who seek an injunction.
But, assuming plaintiffs were entitled to assert, as a denial of equal protection, the alleged discriminatioh aris-
352	OCTOBER TERM, 1921.
Pitney and Clarke, JJ., dissenting. 257 U. S. ing from a denial of equitable relief in one class of cases which would be granted in another, I am unable to see that the statute creates an arbitrary and unreasonable discrimination in this regard.
It is going far—too far, I submit—to assume that there is any discrimination in fact. Such a campaign as that conducted by defendants, the legislature foresaw, was likely to be resorted to by employees or former employees, in the case of a dispute with the employer concerning terms or conditions of employment. In such a case, for reasons deemed sufficient, the legislature declared there should be no injunction. That such picketing or boycotting ever was conducted in Arizona, or that the legislature had reason to anticipate that it would be undertaken in the future, by competitors in business or any others than participants in a labor dispute, does not appear and cannot be assumed. Without this, the supposed discrimination is but theoretical, not practical.
But were there actual discrimination, granting immunity from injunction to laboring men who resort to unlawful conduct in the way of picketing, boycotting and the like, seriously interfering with the employer’s business, while denying the like immunity to other classes who may resort to similar unlawful and harmful conduct but with what the legislature probably regarded as a slighter claim to indulgence, I cannot agree that this demonstrates the classification to be so arbitrary and unreasonable as to render the act a denial of the equal protection of the laws. Doubtless the legislature, upon a review of the subject in the light of a knowledge of conditions in their own State that we do not possess, concluded that in labor controversies there were reasons affecting the public interest for preventing resort to the process of injunction and leaving the parties to the ordinary legal remedies, which reasons did not apply generally. The simple truth is, they merely singled out, as properly they
TRUAX v. CORRIGAN.	353
312.	Pitney and Clarke, JJ., dissenting.
might, a particular kind of controversy for what they regarded as appropriate treatment; and, as already shown, they acted upon it in a manner consistent with due process of law. There is here no denial of equal protection. Legislation almost of necessity proceeds subject by subject, with classification as an essential part of the process. In adjusting their laws to the needs of the people the States have a wide range of discretion about classification; the equal protection clause does not require that all state Jaws shall be perfect and complete, nor that the entire field of proper legislation shall be covered by a single act ; and it is not a valid objection that a law made applicable to one subject might properly have been extended to others. Rosenthal v. New York, 226 U. S. 260, 270-271; Missouri, Kansas & Texas Ry. Co. v. Cade, 233 U. S. 642, 649-650. All employers’ liability and workmen’s compensation laws proceed upon the basis that the responsibility of employers for injuries sustained by employees forms a proper subject for separate treatment. See Second Employers’ Liability Cases, 223 U. S. 1; New York Central R. R. Co. v. White, 243 U. S. 188; Hawkins v. Bleakly, 243 U. S. 210; Mountain Timber Co. v. Washington, 243 U. S. 219; Middleton v. Texas Power & Light Co., 249 U. S. 152; Arizona Employers' Liability Cases, 250 U. S. 400. And I see no adequate reason for denying the authority of a State to deal separately with those controversies between employer and employees or between persons employed and those seeking employment, which experience has shown to be a characteristic outgrowth of ^disputes over the terms and conditions of employment.
I am unable to conclude that Paragraph 1464 either de-* prives plaintiffs in error of liberty or property without due process of law, or denies to them the equal protection of the laws, within the meaning of'the Fourteenth Amendment.
354
OCTOBER TERM, 1921.
Brandéis, J., dissenting.
257 U.S.
Mr. Justice Brandeis, dissenting.
The first legislature of the State of Arizona adopted in 1913 a Civil Code. By Title 6, c. Ill, it sets forth conditions and circumstances under which the courts of the State may or may not grant injunctions. Paragraph 1464 contains, among other things, a prohibition against interfering by injunction between employers and employees, in any case growing out of a dispute concerning terms or conditions of employment, unless interposition by injunction is necessary to protect property from injury through violence. Its main purpose was doubtless to prohibit the courts from enjoining peaceful picketing and the boycott. With the wisdom of the statute we have no concern. Whether Arizona in enacting this statute transgressed limitations imposed upon the power of the States by the Fourteenth Amendment is the question presented for decision.
The employer has, of course, a legal right to carry on his business for profit; and incidentally the subsidiary rights to secure and retain customers, to fix such prices for his product as he deems proper, and to buy merchandise and labor at such prices as he chooses to pay. This right to carry on business—be it called liberty or property—has value; and, he who interferes with the right without cause renders himself liable. But for cause the right may be interfered with and even be destroyed. Such cause exists when, in the pursuit of an equal right to further their several interests, his competitors make inroads upon his trade, or when suppliers of merchandise or of labor make inroads upon his profits. What methods and means are permissible in this struggle of contending forces is deter-a mined in part by decisions of the courts, in part by acts of the legislatures. The rules governing the contest necessarily change from time to time. For conditions change; and, furthermore, the rules evolved, being merely experi-
TRUAX v. CORRIGAN.	355
312.	Brandéis, J., dissenting.
ments in government, must be discarded when they prove to be failures.
Practically every change in the law governing the relation of employer and employee must abridge, in some respect, the liberty or property of one of the parties—if liberty and property be measured by the standard of the law theretofore prevailing. If such changes are made by acts of the legislature, we call the modification an exercise of the police power. And, although the change may involve interference with existing liberty or property of individuals, the statute will not be declared a violation of the due process clause, unless the court finds that the interference is arbitrary or unreasonable or that, considered as a means, the measure has no real or substantial relation of cause to a permissible end.1 Nor will such changes in the law governing contests between employer and employee be held to be violative of the equal protection clause, merely because the liberty or property of individuals in other relations to each other (for instance, as competitors in trade or as vendor and purchaser) would not, under similar circumstances, be subject to like abridgement. Few laws are of universal application. It is of the nature of our law that it has dealt not with man in general, but with him in .relationships. That a peculiar relationship of individuals may furnish legal basis for the classification which satisfies the requirement of the Fourteenth Amendment1 2 is clear. That the relation of em-
1	Muller v. Oregon, 208 U. S. 412; Dominion Hotel n. Arizona, 249 U. S. 265.
2	“The rule, therefore, is not a substitute for municipal law; it only prescribes that that law have the attribute of equality of operation, and equality of operation does not mean indiscriminate operation on persons merely as such, but on persons according to their relations.” Mr. Justice McKenna in Magoun v. Illinois Trust & Savings Bank, 170 IL S. 283, 293.
In Fidelity Mutual Life Association v. Mettler, 185 U. S. 308, and Northwestern National Life Insurance Co. v. Riggs, 203 U, S. 243, §267°—22--------28
356	OCTOBER TERM, 1921.
Brandeis, J., dissenting.	257U.S.
ployer and employee affords a constitutional basis for legislation applicable only to persons standing in that relation has been repeatedly held by this court.* 3 * * & The questions submitted are whether this statutory prohibition of the remedy by injunction is in itself arbitrary and so unreasonable as to deprive the employer of liberty or property without due process of law;—and whether limitation of this prohibition to controversies involving employment denies him equal protection of the laws.
Whether a law enacted in the exercise of the police power is justly subject to the charge of being unreasonable or arbitrary, can ordinarily be determined only by a consideration of the contemporary conditions, social, industrial and political, of the community to be affected thereby. Resort to such facts is necessary, among other things, in order to appreciate the evils sought to be
the relation of insurer and insured was made the subject of regulation; in Western Union Telegraph Co. n. Commercial Milling Co., 218 U. S. 406; Seaboard Air Line Ry. v. Seegers, 207 U. 8. 73; Yazoo & Mississippi Valley R. R. Co. v. Jackson Vinegar Co., 226 U. S. 217, that of public utility and patron; in Noble State Bank v. Haskell, 219 U. S. 104, that of banker and depositor; in St. Louis & San Francisco Ry. Co. n. Mathews, 165 U. S. 1; Missouri, Kansas & Texas Ry. Co. v. May, 194 U. S. 267; and Minneapolis & St. Louis Ry. Co. v. Emmons, 149 U. S. 364, that of railway and adjoining landowner.
3	Holden v. Hardy, 169 U. 8. 366; St. Louis, Iron Mountain & St. Paul Ry. Co. v. Paul, 173 U. S. 404; Tullis v. Lake Erie & Western R. R. Co., 175 U. S. 348; Knoxville Iron Co. v. Harbison, 183 U. S.
13; Atkin v. Kansas, 191 U. S. 207; Great Southern Hotel Co. v. Jones, 193 U. S. 532; Minnesota Iron Co. n. Kline, 199 U. S. 593;
Wilmington Star Mining Co. v. Fulton, 205 U. S. 60; Muller n. Oregon, 208 U. S. 412; McLean v. Arkansas, 211 U. S. 539; Louisville
& Nashville R. R. Co. v. Melton, 218 U. S. 36; Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, 219 U. S. 35; Chicago, Rock Island & Pacific Ry. Co. v. Arkansas, 219 U. S. 453; Arizona Employers’ Liability Cases, 250 U. 8. 400. Compare Second Employers’ Liability Cases, 223 U. 8. 1.
TRUAX v. CORRIGAN.	357
312.	Brandeis, J., dissenting.
remedied and the possible effects of the remedy proposed. Nearly all legislation involves a weighing of public needs as against private desires; and likewise a weighing of relative social values. Since government is not an exact science, prevailing public opinion concerning the evils and the remedy is among the important facts deserving consideration; particularly, when the public conviction is both deep-seated and widespread and has been reached after deliberation.4 What, at any particular time, is the paramount public need is, necessarily, largely a matter of judgment. Hence, in passing upon the validity of a law challenged as being unreasonable, aid may be derived from the experience of other countries and of the several States of our Union in which the common law and its conceptions of liberty and of property prevail. The history of the rules governing contests between employer and employed in the several English-speaking countries illustrates both the susceptibility of such rules to change and the variety of contemporary opinion as to what rules will best serve the public interest. The divergence of opinion in this difficult field of governmental action should admonish us not to declare a rule arbitrary and unreasonable merely because we are convinced that it is fraught with danger to the public weal, and thus to close the door to experiment within the law.
In England a workingman struggling to improve his condition, even when acting singly, was confronted until 1813 with laws limiting the amount of wages which he might demand.5 Until 1824 he was punishable as a criminal if he combined with his fellow workmen to raise wages or shorten hours or to affect the business in any
4	Muller v. Oregon, 208 U. S. 412, 420.
5	53 Geo. 3, c. 40. For the earlier law see, for instance, 23 Edw. 3, c. 1-8; 25 Edw. 3, c. 1-7, The Statutes of Laborers; 5 Eliz., c. 4; 1 Jac. 1, c. 6.
358
OCTOBER TERM, 1921.
Brandéis, J., dissenting.
257 U.S.
way, even if there was no resort to a strike.6 Until 1871 members of a union who joined in persuading employees to leave work were liable criminally, although the employees were not under contract and the persuasion was both peaceful and unattended by picketing.7 Until 1871 threatening a strike, whatever the cause, was also a criminal act.8 Not until 1875 was the right of workers to combine in order to attain their ends conceded fully. In that year Parliament declared that workmen combining in furtherance of a trade dispute should not be indictable for criminal conspiracy unless the act if done by one person would be indictable as a crime.9 After that statute a combination of workmen to effect the ordinary objects of a strike was no longer a criminal offense. But picketing, though peaceful, in aid of a strike, remained illegal;10 11 and likewise the boycott.11 Not until 1906 was the ban on
6	5 Geo. 4, c. 95, (replaced by 6 Geo. 4, c. 129). For the earlier law see, for instance, 34 Edw. 3, c. 9; Theming v. Journeymen Tailors of Cambridge, 8 Modem, 10; Wright, The Law of Criminal Conspiracies.
7	Criminal Law Amendment Act (1871), 34 & 35 Vic., c. 32, § 1, last paragraph. For the earlier law see Regina n. Rowlands, 2 Den. 363.
8	Criminal Law Amendment Act (1871), 34 & 35 Vic., c. 32, § 1, sub-sec. 2. For the earlier law see Walsby v. Ariley, 3 E. & E. 516; Skinner v. Kit ch, 10 Cox C. C. 493; L. R. 2 Q. B. 393 (1867).
9	The Conspiracy and Protection of Property Act (1875), 38 & 39 Vic., c. 86, § 3. But see Rigby n. Connol, L. R. 14 Ch. D. 482, 491.
10	38 & 39 Vic., c. 86, § 7; Regina v. Bavld, 13 Cox C. C. 282; Lyons v. Wilkins, [1896] 1 Ch. 811, 826, 831; [1899] 1 Ch. 255; Taff Vale Ry. Co. v. Amalgamated Society of Railway Servants, [1901] A. C. 426.
11	Temperton y. Russell [1893] 1 Q. B. 715; Quinn v. Leathern, [1901]'A. C. 495. But compare with these cases Boots v. Grundy, 82 L. T. R. 769; Scottish Co-operative Society v. Glasgow Fleshers, 35 Scottish L. R. 645; Bulcock v. St. Anne’s Master Builders’ Federation, 19 T. L. R. 27; a distinction between these and the two former is pointed out in Quinn v, Leathern, supra, p. 539. The Royal Com
TRUAX v. CORRIGAN.	359
312.	Brandeis, J., dissenting.
peaceful picketing and the bringing of pressure upon an employer by means of a secondary strike or a boycott removed.* 12 In 1906, also, the act of inducing workers to break their contract of employment (previously held an actionable wrong)13 was expressly declared legal.14 In England improvement of the condition of workingmen
mission on Trade Disputes and Trade Combinations, whose recommendations were the basis of the Trade Disputes Act, 1906, 6 Edw. 7, c. 47, recommended, Report, p. 16, “ that an act should be passed for the following objects:— ... (2) To declare strikes from whatever motive or for whatever purposes (including sympathetic or secondary strikes), apart from crime or breach of contract, legal . . .” It is probable that §§ 1 and 3 of the Act of 1906 make the secondary strike or boycott in the course of a trade dispute legal. But see note 14, par. 2.
12	The Trade Disputes Act (1906), 6 Edw. 7, c. 47, § 2.
13	Read v. Friendly Society of Stonemasons, [1902] 2 K. B. 88; id., 732; South Wales Miners’ Federation v. Glamorgan Coal Co., [1905] A. C. 239.
14	6 Edw. 7, c. 47, § 3, “An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills.” But the employee who breaks his contract remains personally liable in damages.
The law of England still prohibits certain practices which might prove effective in the struggle between employer and employee. Thus the Trade Disputes Act, supra, does not sanction some threats or coercion; Conway v. Wade, [1909] A. C. 506, 511. It does not permit a strike to force the discharge of a member of the union who has not paid a fine, Conway v. Wade, supra. Nor does it permit inducing an employer’s men to break their contracts in order to force him to join an employers’ association, since this is not a trade dispute ■within the meaning of the act, Larkin v. Long, [1915] A. C. 814. The judges are by no means agreed as to what constitutes coercion. Compare: Hodges v. Webb, [1920] 2 Ch. 70; Valentine v. Hyde, [1919] 2 Ch. 129; Pratt v. British Medical Association, [1919]. 1' K. B. 244; and Davies v. Thomas, [1920] 1 Ch. 217.
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Brandeis, J., dissenting.
257 U. S.
and their emancipation appear to have been deemed recently the paramount public need.
In the British Dominions the rules governing the struggle between employer and employed were likewise subjected to many modifications; but the trend of social experiment took a direction very different from that followed in the mother country. Instead of enabling the worker to pursue such methods as he might deem effective in the contest, statutes were enacted in some of the Dominions which forbade the boycott, peaceful picketing, and even the simple strike and the lockout;15 use of the injunction to enforce compliance with these prohibitions was expressly santioned;16 and violation of the statute
15Australia: Commonwealth Conciliation and Arbitration Act, 1904-15, §§ 6-9; New South Wales, Industrial Arbitration Act, 1912-1918, §§ 48D and 48E; compare Queensland, Industrial Arbitration Act, 1916, § 65. New Zealand: Industrial Conciliation and Arbitration Act, 1908, § 108; Industrial Conciliation and Arbitration Amendment Act, 1908, Part I.
16	The Industrial Disputes Act of New South Wales, 1908, § 60, made strikes and lockouts illegal and the Industrial Arbitration Act, 1912, which replaced it, continued their outlawry, §§ 44-48, and expressly provided that they might be enjoined by the Court of Industrial Arbitration; but by the Act of 1918, § 15, §§ 45 to 48 inclusive of the earlier act, dealing with strikes, were amended:
“45. The following strikes and no others shall be illegal:—
“(a) Any strike by employees of the crown, etc.
“(b) Any strike by the employees in an industry the conditions of which are for the time being wholly or partially regulated by an award or by an industrial agreement: etc.
“(c) Any strike which has been commenced prior to the expiry of fourteen clear days notice in writing of intention to commence the same or of the existence of such conditions as would be likely to lead to the same given the Minister, etc.
“ 46. In the event of an illegal strike occurring in any industry, the court may order any trade union, whose executive or members are taking part in or aiding or abetting the strike, to pay a penalty not exceeding five hundred pounds.”
The Commonwealth Conciliation and Arbitration Act, 1904, § 38(e), provides that the Court of Arbitration and Conciliation
TRUAX v. CORRIGAN.	361
312.	Brandeis, J., dissenting.
was also made punishable by criminal proceedings.17 These prohibitions were the concomitants of prescribed industrial arbitration through administrative tribunals by which the right of both employer and employee to liberty and property were seriously abridged in the public interest. Australia18 and New Zealand19 made compulsory both arbitration and compliance with the award.20 Canada limited the compulsion to a postponement of the right to strike until the dispute should have been officially\nvesti-gated and reported upon.21 In these Dominions the uninterrupted pursuit of industry and the prevention oT the arbitrary use of power appear to be deemed the paramount public needs.
In the United States the rules of the common law governing the struggle between employer and employee have likewise been subjected to modifications. These have
shall have power “to enjoin any organization or person from committing or continuing any contravention of this Act.”
17	See note 15, supra.
18	The Commonwealth Conciliation and Arbitration Act, 1904-1915, §§ 19-31. (Printed as Appendix A to Commonwealth Acts 1914-1915.) See Henry B. Higgins, “A New Province for Law and Order,” 29 Harv. Law Rev. 13; 32 Harv. Law Rev. 189; 34 Harv. Law Rev. 105.
19	Industrial Conciliation and Arbitration Act, 1908, supra, §§ 53-104, as amended by Acts 1908, No. 239, Part II; Acts 1911, No. 33; Acts 1913, No. 7.
20	Compare Kansas act creating a court of industrial relations, Laws 1920, c. 29. State v. Howat, 107 Kan. 423; State v. Howat, 109 Kan. 376; Court of Industrial Relations v. Charles Wolff Packing Co., 109 Kan. 629.
21	Industrial Disputes Investigation Act, 1907, 6-7 Edw. 7, c. 20, §§ 56, 57. Rex v. McGuire, 16 O. L. R. 522. 9-10 Edw. 7, c. 29. 8-9 Geo. 5, c. 27. 10-11 Geo. 5, c. 29.
Picketing is illegal. Criminal Code, Canada, § 501; Krug Furniture Co. v. Union of Woodworkers, 5 O. L. R. 463; Cotter v. Osborne, 18 Man. 471; Vulcan Iron Works v. Winnipeg Lodge, 21 Man. 473; Le Roi Mining Co. v. Rossland Miners Union, 8 B. C. 370. But see Rev. Stats., B. C., c. 228.
362	OCTOBER TERM, 1921.
Brandeis, J., dissenting.	257U.S.
been made mainly through judicial decisions. The legal right of workingmen to combine and to strike in order to secure for themselves higher wages, shorter hours and better working conditions received early general recognition.22 But there developed great diversity of opinion as to the means by which,23 and also as to the persons through whom,24 and upon whom25 pressure might permissibly be
22	Commonwealth v. Hunt, 4 Met. Ill; for earlier common law and statutory provisions see Carew v. Rutherford, 106 Mass. 1, 14; 1 Weeden, Economic and Social History of New England, pp. 173, 334. Freund, Police Power, § 331; Commons, History of Labor in the United States, vol. 1, c. 5.
23	For the boycott see note 28, infra, p. 364; and for peaceful picketing, note 29, infra, p. 365.
In some jurisdictions the strike was considered an unlawful means of procuring the unionization of the shop,—see Plant v. Woods, 176 Mass. 492; Pickett v. Walsh, 192 Mass. 572, 585; Lucke v. Clothing Cutters’ Assembly, 77 Md. 396; Erdman v. Mitchell, 207 Pa. St. 79; Freund, Police Power, § 331;—while in others it was regarded as permissible,—National Protective Association v. Cumming, 170 N. Y. 315; Kemp n. Division No. 2^1, 255 Ill. 213; Grant Construction Co. v. St. Paul Building Trades Council, 136 Minn. 167; State v. Van Pelt, 136 N. Car. 633; Jetton^Dekle Lumber Co. v. Mather, 53 Fla. 969; Cohn & Roth Electric Co. v. Bricklayers Union, 92 Conn. 161.
24	In some jurisdictions the officers of the national union, not being employees, are regarded as outsiders with no justification for their acts,—Booth v. Burgess, 72 N. J. Eq. 181; Jonas Glass Co. v. Glass Bottle Blowers’ Association, 72 N. J. Eq. 653 ; 77 N. J. Eq. 219. In other jurisdictions it is held that they are furthering a legitimate interest,—see Allen v. Flood, [1898] A. C. 1; Jose v. Metallic Roofing Co., [1908] A. C. 514, reversing 14 0. L. R. 156; Gill Engraving Co. v. Doerr, 214 Fed. Ill; Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264. See American Steel Foundries v. Tri-City Central Trades Council, ante, 184.
25	In some jurisdictions the courts seek to localize the conflict by making it illegal to bring in any party beyond those between whom the original dispute arose,—Burnham v. Dowd, 217 Mass. 351; Booth v. Burgess, 72 N. J. Eq. 181; Purvis v. United Brotherhood, 214 Pa. St. 348;—in other jurisdictions it is considered that anyone having business relations with either party which bear on the matter in con-
TRUAX v. CORRIGAN.	363
312.	Brandéis, J., dissenting.
exerted in order to induce the employer to yield to the demands of the workingmen. Courts were required, in the absence of legislation, to determine what the public welfare demanded;—whether it would not be best subserved by leaving the contestants free to resort to any means not involving a breach of the peace or injury to tangible property; whether it was consistent with the public interest that the contestants should be permitted to invoke the aid of others not directly interested in the matter in controversy; and to what extent incidental injury to persons not parties to the controversy should be held justifiable.
The earliest reported American decision on peaceful picketing appears to have been rendered in 1888* 26; the earliest on boycotting in 1886.27 By no great majority the prevailing judicial opinion in America declares the boy-
troversy has violated his neutrality and is subject to reprisal from the union which is carrying on the struggle,—Bossert v. Dhuy, 221 N. Y. 342; Master Builders’ Association v. Domascio, 16 Colo. App. 25; Pierce n. Stablemen’s Union, 156 Cal. 70, 76; Cohn & Roth Electric Co. v. Bricklayers Union, 92 Conn. 161; Gill Engraving Co. v. Doerr, 214 Fed. Ill; Grant Construction Co. n. St. Paul Building Trades Council, 136 Minn. 167. See 31 Harv. Law Rev. 482, and Auburn Draying Co. v. Wardell, 227 N. Y. 1, for limitations.
Again, in some States it is unlawful to resort to the method of notifying persons that a strike will occur if a non-union employer or his product is employed,—Booth v. Burgess, 72 N. J. Eq. 181; Gray v. Building Trades Council, 91 Minn. 171;—while in other States it is lawful,—Cohn & Roth Electric Co. v. Bricklayers Union, 92 Conn. 161, 167; Bossert v. Dhuy, 221 N. Y. 342.
26	Sherry v. Perkins, 147 Mass. 212; but the doctrine was not established until eight years later, Vegelahn v. Guntner, 167 Mass. 92.
27	The earliest reported cases seem to be People v. Wilzig, 4 N. Y. Crim. 403; and People v. Kostka, 4 N. Y. Crim. 429, both of which occurred in June, 1886; the leading case of State v. Glidden, 55 Conn. 46, came the next year. Laidler, however, speaks of an unreported case in 1840; see Laidler, Boycotts and the Labor Struggle, p. 70; see also Commons, History of Labor in the United States, vol. 2, pp. 267, 317, 364.
364
OCTOBER TERM, 1921.
Brandéis, J., dissenting.
257 U.S.
cott as commonly practiced an illegal means28 (see Duplex Printing Press Co. v. Deering, 254 U. S. 443), while it in-
28	Some of the difference of opinion results from a difference in definition. A boycott is sometimes defined so as to entail violence or malicious oppression, State v. Glidden, 55 Conn. 46; while in other cases it is simply pressure exerted by abstention from business relations, Mills v. United States Printing Co., 99 App. Div. 605, affd. 199 N. Y. 76. The terms primary and secondary as describing the boycott are also of uncertain content. Only a boycott that is free of violence or malevolence is anywhere held to be lawful. This peaceful boycott in support of a bona fide industrial conflict, however, is not everywhere held lawful, and its lawfulness often is held to depend on whether it is used against the industrial antagonist directly (primary boycott) or against an outsider because of his influence on or connection with the industrial antagonist (secondary boycott). Holding the boycott, primary and secondary, illegal: Wilson v. Hey, 232 Ill. 389; Beck v. Railway Teamsters’ Union, 118 Mich. 497; Gray v. Building Trades Council, 91 Minn. 171; Booth v. Burgess, 72 N. J. Eq. 181; Purvis v. United Brotherhood, 214 Pa. St. 348; Patch Manufacturing Co. v. Protection Lodge, 77 Vt. 294; State v. Glidden, 55 Conn. 46; Crump n. Commonwealth, 84 Va. 927, 939; Jensen v. Cooks’, etc. Union, 39 Wash. 531; Webb v. Cooks’, etc. Union, 205 S. W. (Tex.) 465; Seubert v. Reiff, 164 N. Y. S. 522; American Federation of Labor n. Buck’s Stove & Range Co., 33 App. D. C. 83; Burnham v. Dowd, 217 Mass. 351; My Maryland Lodge v. Adt, 100 Md; 238.
Holding primary boycott legal: Foster v. Retail Clerks’ Association, 78 N. Y. S. 860, 867; Butterick Publishing Co. v. Typographical Union, 100 N. Y. S. 292; Gill Engraving Co. v. Doerr, 214 Fed. Ill; Empire Theatre Co. n. Cloke, 53 Mont. 183; Steffes v. Motion Picture Union, 136 Minn. 200; Stoner v. Robert, 43 Wash. (D. C.) L. Rep. 437; Guethler v. Altman, 26 Ind. App. 587; Pierce v. Stablemen’s Union, 156 Cal. 70; Riggs v. Cincinnati Waiters, 5 Ohio Nisi Prius, 386; McCormick v. Local Union, 13 Ohio Cir. Ct. (N. S.) 545; Ex parte Sweitzer, 13 Okl. Cr. 154. See Laws of Utah, 1917, c. 68; Root v. Anderson, 207 S. W. (Mo.) 255.
Holding secondary boycott legal: Bossert v. Dhuy, 221 N. Y. 342-though compare Auburn Draying Co. v. Wardell, 227 N. Y. 1; Stoner v. Robert, 43 Wash. (D. C.) L. Rep. 437; Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264; Pierce v. Stablemen’s Union, 156 Cal. 70, 76; Parkinson Co. v. Building Trades Council, 154 Cal. 581; see Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133.
TRUAX v. CORRIGAN.	365
312.	Bkandeis, J., dissenting.
clines towards the legality of peaceful picketing.29 See American Steel Foundries n. Tri-City Central Trades Council, ante, 184. But in some of the States, notably New York, both peaceful picketing and the boycott are declared permissible.30 Judges, being thus called upon to exercise a quasi-legislative function and weigh relative social values, naturally differed in their conclusions on such questions.31'
29	Holding picketing in itself illegal:—Vegelahn v. Guntner, 167 Mass. 92; Pierce v. Stablemen’s Union, 156 Cal. 70; Barnes & Co. n. Chicago Typographical Union, 232 Ill. 424; Lyon & Healy v. Piano, etc. Workers’ Union, 289 Ill. 176; Beck v. Railway Teamsters’ Union, 118 Mich. 497; Clarage v. Luphringer, 202 Mich. 612; Baldwin Lumber Co. v. Brotherhood of Teamsters, etc., 91 N. J. Eq. 240; Baasch v. Cooks Union, 99 Wash. 378; Webb v. Cooks’, etc., Union, 205 S. W. (Tex.) 465; the Washington Act, 1915, c. 181, declaring picketing to be unlawful, was defeated on referendum in 1916; Atchison, Topeka & Santa Fe Ry. Co. v. Gee, 139 Fed. 582.
Stating that peaceful picketing is lawful:—Riggs v. Cincinnati Waiters, 5 Ohio Nisi Prius, 386; McCormick v. Local Union, 13 Ohio Cir. Ct. (N. S.) 545; Jones v. Van Winkle Machine Works, 131 Ga. 336, 340; Karges Furniture Co. v. Amalgamated, etc., Union, 165 Ind. 421, 430, 431; Everett Waddey Co. v. Richmond Typographical Union, 105 Va. 188, 197; Steffes v. Motion Picture Union, 136 Minn. 200,—see also Laws 1917, c. 493; Stoner v. Robert, 43 Wash. (D. C.) L. Rep. 437; Empire Theatre Co. v. Cloke, 53 Mont. 183; Mills v. United States Printing Co., 99 App. Div. 605, affd. 199 N. Y. 76; Ex parte Sweitzer, 13 Okl. Cr. 154; White Mountain Freezer Co. v. Murphy, 78 N. H. 398; see Utah, Laws of 1917, c. 68; American Engineering Co. v. International Moulders Union, 25 Pa. Dist. 564; Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed'. 45; St. Louis n. Gloner, 210 Mo. 502.
30	Mills v. United States Printing Co., 99 App. Div. 605, affd. 199 N. Y. 76; see also cases in note. 29, supra, from Ohio, Minnesota, Montana, and Oklahoma.
31	Compare:—Plant v. Woods, 176 Mass. 492, 502, last paragraph, with Cohn & Roth Electric Co. v. Bricklayers Union, 92 Conn. 161, 167, and, Bossert v. Dhuy, 221 N. Y. 342, 359. See Geldart, The Present Law of Trade Unions and Trade Disputes, p. 24; Hoxie, Trade Unionism in the United States, p. 231; “Strikes and Boycotts ”, 34 Harv. Law Rev. 880.
366
OCTOBER TERM, 1621.
Brandéis, J., dissenting.
257 U. S.
In England, observance of the rules of the contest has been enforced by the courts almost wholly through the criminal law or through actions at law for compensation. An injunction was granted in a labor dispute as early as 1868.32 But.in England resort to the injunction has not been frequent and it has played no appreciable part there in the conflict between capital and labor. In America the injunction did not secure recognition as a possible remedy until 1888.33 When a few years later its use became extensive and conspicuous, the controversy over the remedy overshadowed in bitterness the question of the relative substantive rights of the parties. In the storms of protest against this use many thoughtful lawyers joined.34 The equitable remedy, although applied in accordance with established practice, involved incidents which, it was asserted, endangered the personal liberty of wage-earners. The acts enjoined were frequently, perhaps usually, acts which were already crimes at common law or had been made so by statutes. The issues in litigation arising out of trade disputes related largely to questions of fact. But in equity issues of fact as of law were tried by a single judge, sitting without a jury. Charges of violating an
32	Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551.
38	The earliest case of importance was Sherry v. Perkins, 147 Mass. 212 (1888). But injunctions were granted four or five years earlier. Commons, History of Labor in the United States, vol. 2, p. 504.
34 “ Government by Injunction ” by W. H. Dunbar, 13 Law Quarterly Review, 347; “ Government by Injunction ”, by Charles Noble Gregory, 11 Harv. Law Rev. 487; “Injunction and Organized Labor ”, by Charles C. Allen, 28 Am. Law Rev. 828; “ The Modern Use of Injunctions ”, by F. J. Stimson, 10 Pol. Sci. Quarterly, 189; “ Strikes and Courts of Equity ”, by William Draper Lewis, 46 Am. Law Reg. 1; “ Government by Injunction ”, by Percy L. Edwards, 57 Albany Law Journal, 8; “ The Abuses of Injunction ”, by Samuel Seabury, 29 Arena, 561; “ Government by Injunction ”, by Cornelius H. Fauntleroy, 69 Cent. Law Journal, 129; “ Government by Injunction ”, by Thomas F. Hargis, 4 Amer. Fed. 227. See Report of U. S. Industrial Commission (1901) vol. XVII, p. 611.
TRUAX v. CORRIGAN.	367
312.	Brandeis, J., dissenting.
injunction were often heard on affidavits merely, without the opportunity of confronting or cross-examining witnesses.35 Men found guilty of contempt were committed in the judge’s discretion, without either a statutory limit upon the length of the imprisonment, or the opportunity of effective review on appeal, or the right to release on bail pending possible revisory proceedings.36 The effect of the proceeding upon the individual was substantially the same as if he had been successfully prosecuted for a crime; but he was denied, in the course of the equity proceedings, those rights which by the Constitution are commonly secured to persons charged with a crime.
It was asserted that in these proceedings an alleged danger to property, always incidental and at times insignificant, was often laid hold of to enable the penalties of the criminal law to be enforced expeditiously without that protection to the liberty of the individual which the Bill of Rights was designed to afford; that through such proceedings a single judge often usurped the functions not only of the jury but of the police department; that, in prescribing the conditions under which strikes were per-
35	In Long v. Bricklayers, etc. Union, 17 Pa. Dist. 984, the judge prefaced his opinion as follows, “ Hardly anything of greater private or public gravity is ever presented to the court, and yet these matters are constantly receiving adjudication without a single witness brought before the judge. It is a bad practice. I confess my inability to determine with any satisfaction from an inspection of inanimate manuscript, questions of veracity. In disposing of the present rule, I am compelled to find, as* best I may from perusing two hundred and thirty-five lifeless typewritten pages of conflicting evidence, the facts which must determine respondent’s guilt or innocence on the quasicriminal charge of contempt.”
36	Hake v. People, 230 Ill. 174, 196, discretion of judge; Tinsley v. Anderson, 171 U. S. 101, 107-108, unlimited commitment; State v. Erickson, 66 Wash. 639, 641; State v. Chouteau County Court, 51 Mont. 337, 342; Scoric v. United States, 217 Fed. 871, scope of review; People v. Tefft, 3 Cow. (N. Y.) 340, Matter of Vanderbilt, 4 Johns. Ch. (N. Y.) 57, admission to bail within discretion of judge.
‘368
OCTOBER TERM, 1921.
Brandéis, J., dissenting.
257 U.S.
missible and how they might be carried out, he usurped also the powers of the legislature; and that incidentally he abridged the constitutional rights of individuals to free \ speech, to a free press and to peaceful assembly.
It was urged that the real motive in seeking the injunc-| tion was not ordinarily to prevent property from being ] injured nor to protect the owner in its use, but to endow I property with active, militant power which would make i it dominant over men. In other words, that, under the * guise of protecting property rights, the employer was seeking sovereign power. And many disinterested men, solicitous only for the public welfare, believed that the law of property was not appropriate for dealing with the forces beneath social unrest; that in this vast struggle it was unwise to throw the power of the State on one side or the other according to principles deduced from that law; that the problem of the control and conduct of industry demanded a solution of its own; and that, pending the ascertainment of new principles to govern industry, it was wiser for the State not to interfere in industrial struggles by the issuance of an injunction.37
After the constitutionality and the propriety of the use of the injunction in labor disputes was established judicially, those who opposed the practice sought the aid of Congress and of state legislatures. The bills introduced varied in character and in scope. Many dealt merely with rights; and, of these, some declared, in effect, that no act done in furtherance of a labor dispute by a combination of workingmen should be held illegal, unless it would
37 See Final Report of the (U. S.) Industrial Commission (1902); Final Report of the (U. S.) Commission on Industrial Relations (1915), (Sen. Doc. 415, 64th Cong., 1st sess.), vol. 1, pp. 52-53, 90-92, vol. 11, testimony of Mr. Gilbert E. Roe, p. 10477; testimony of Mr. Arthur Woods, p. 10550; testimony of Dr. Frank Goodnow, p. 10599. American Federationist, vol. 7, p. 350; vol. 9, p. 685; vol. 15, p. 976.
TRUAX v. CORRIGAN.	369
312.	Brandeis, J., dissenting.
have been so if done by a single individual; while others purported to legalize specific practices, like boycotting or picketing. Other bills dealt merely with the remedy; and of these, some undertook practically to abolish the use of the injunction in labor disputes, while some merely limited its use either by prohibiting its issue under certain conditions or by denying power to restrain certain acts. Some bills undertook to modify both rights and remedies.38 These legislative proposals occupied the attention of Congress during every session but one in the twenty years between 1894 and 1914.39 * * 42 Reports recommending such legis-
38	53rd Congress: S. 1563, S. 1898, S. 2253, H. R. 7362, H. R. 7363;
54th Congress: S. 237, S. 1750, S. 2984, H. R. 319; 56th Congress: S. 4233, H. R. 8917; 57th Congress: S. 1118, S. 4553, H. R. 9678, H. R. 11060; 58th Congress: H. R. 89, H. R. 1234, H. R. 4063, H. R. 6782, H. R. 8136, H. R. 18327 ; 59th Congress: S. 2829, H. R. 4445, H. R. 9328, H. R. 17976, H. R. 18171, H. R. 18446, H. R. 18752; 60th Congress: S. 4533, S. 4727, S. 5888, H. R. 69,	H.	R. 94,	H.	R.
17137, H. R. 21358, H. R. 21359, H. R. 21454, H.	R.	21489,	H.	R.
21539, H. R. 21629, H. R. 21991, H. R. 22010, H.	R.	22032,	H.	R.
22298, H. R. 26300, H. R. 24781, H. R. 36609; 61st Congress; S. 3291, S. 4481, H. R. 3058, H. R. 9766, H. R. 10890, H.	R.	16026,	H.	R.
18410, H. R. 20486, H. R. 20680, H. R. 20827, H.	R.	21334,	H.	R.
22566; 62nd Congress: S. 6266, H. R. 4015, H. R. 4651, H. R. 5328, H. R. 5606, H. R. 9435, H. R. 11032, H. R. 23189, H. R. 21486, H. R. 21595, H. R. 22208, H. R. 22349, H. R. 22354, H. R. 22355, H. R. 23635; 63rd Congress: S. 927, H. R. 1873, H. R. 4659, H. R. 5484, H. R. 15657—which became the Clayton Act.
39	See note 38, supra. Also 53rd Congress: resolutions to inves-
tigate the use of the injunction in certain cases, 26 Cong. Rec. 2466;
56th Congress: debate, 34 Cong. Rec. 2589 ; 60th Congress: hearings, Sen. Doc. 525; special message of the President, Sen. Doc. 213,
42 Cong. Rec. 1347; papers relating to injunctions in labor cases, Sen. Docs. 504 and 524; 61st Congress: debate, 45 Cong. Rec. 343 ; 62nd Congress: debate, 48 Cong. Rec. 6415-6470; hearings, Sen. Doc. 944; petitions, Sen. Doc. 440; hearings before the House Committee on the Judiciary, Jan. 11, 17-19, February 8, 14, 1912; hearings before a subcommittee of Senate Committee on the Judiciary, 62nd Congress, 2nd sess.; 63rd Congress, see debates on H. R. 15657 (the Clayton Act).
370
OCTOBER TERM, 1921.
Brandéis, J., dissenting.
257 U.S.
lation were repeatedly made by the Judiciary Committee of the House or that of the Senate; and at some sessions by both.40 Prior to 1914, legislation of this character had at several sessions passed the House;41 and in that year Congress passed and the President approved the Clayton ActJ§ 20 of which is substantially the same as Paragraph 1464 of the Arizona Civil Code. Act of October 15, 1914, c. 323, 38 Stat. 730, 738.
Such was the diversity of view concerning peaceful picketing and the boycott expressed in judicial decisions and legislation in English-speaking countries when in 1913 the new State of Arizona, in establishing, its judicial system, limited the use of the injunction and when in 1918 its Supreme Court was called upon to declare for the first time the law of Arizona on these subjects. The case of Truax v. Bisbee Local No. 380, 19 Ariz. 379, presented facts identical with those of the case at bar.42 In that case the Supreme Court made its decision on four controverted points of law. In the first place, it held that the officials of the union were not outsiders with no justification for their acts (19 Ariz. 379, 390).40 41 42 43 In the second place, rejecting the view held by the federal courts and the majority of the state courts on the illegality of the boycott, it
40	54th Congress, House Report No. 2471; 56th Congress, House Report No. 1987, 2007 ; 57th Congress, Senate Report No. 1650, House Report No. 1522; 62nd Congress, House Report No. 612; 63rd Congress, Senate Report No. 698, House Report No. 627, Conference Report, Senate Document 585.
41	In the 57th Congress, H. R. 11060 passed the House, 35 Cong. Rec. 4995. In the 62nd Congress, H. R. 23635 passed the House, 48 Cong. Rec. 6470, 6471.
42	In this case the Supreme Court of Arizona said: “ This action is founded upon the identical facts upon which the case of Truax v. Bisbee Local No. 380, 19 Ariz. 379, was founded . . . The questions presented in this record were necessarily decided by this court in the former hearing of the matter.” Truax v. Corrigan, 20 Ariz. 7, 8.
43	See note 24, p. 362, supra,
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312.	Brandeis, J., dissenting.
specifically accepted the law of New York, Montana and California, citing the decisions of those States (19 Ariz. 379, 388, 390).44 In the third place, it rejected the law of New Jersey, Minnesota and Pennsylvania that it is illegal to circularize an employer’s customers, and again adopted the rule declared in the decisions of the courts of New York, Montana, California and Connecticut (19 Ariz. 379, 389).45 In deciding these three points the Supreme Court of Arizona made a choice between well-established precedents laid down on either side by some of the strongest courts in the country. Can this court say that thereby it deprived the plaintiff of his property without due process of law?
The fourth question requiring decision was whether peaceful picketing should be deemed legal. Here, too, each of the opposing views had the support of decisions of strong courts.46 If the Arizona court had decided that by the common law of the State the defendants might peacefully picket the plaintiffs, its decision, like those of the courts of Ohio, Minnesota, Montana, New York, Oklahoma and New Hampshire, would surely not have been open to objection under the Federal Constitution; for this court has recently held that peaceful picketing is not unlawful. American Steel Foundries v. Tri-City Central Trades Council, supra. The Supreme Court of Arizona found it unnecessary to determine what was the common law of the State on that subject, because it construed Paragraph 1464 of the Civil Code as declaring peaceful picketing to be legal. In the case at bar, commenting on the earlier case, the court said: “ The statute adopts the view of a number of courts which have held 1 picketing,’
44	See note 28, p. 364, supra.
45	See note 25, p. 362, supra, 2nd paragraph; also Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264; Parkinson Co. v. Building Trades Council, 154 Cal. 581.
46	See note 29, p. 365, supra.
6267°—22--29
372	OCTOBER TERM, 1921.
Brandeis, J., dissenting.	257U.S.
if peaceably carried on for a lawful purpose, to be no violation of any legal right of the party whose place of business is ‘ picketed,’ and whether as a fact the picketing is carried on by peaceful means, as against the other view, taken by the federal courts and many of the state courts, that picketing is per se unlawful.” Shortly before that decision the Criminal Court of Appeals of Oklahoma had placed a similar construction upon a statute of that State, declaring that “ the doctrine [that picketing is not per se unlawful] represents the trend of legal thought of modern times, and is specifically reflected in the statute above construed.” Ex parte Sweitzer, 13 Okl. Cr. 154, 160. See St. Louis v. Gloner, 210 Mo. 502. A State, which despite the Fourteenth Amendment possesses the power to impose on employers without fault unlimited liability for injuries suffered by employees,47 and to limit the freedom of contract of some employers and not of others,48 surely does not lack the power to select for its citizens that one of conflicting views on boycott by peaceful picketing which its legislature and highest court consider will best meet its conditions and secure the public welfare.
The Supreme Court of Arizona, having held as a rule of substantive law that the boycott as here practiced was legal at common law; and that the picketing was peaceful and, hence, legal under the'Statute (whether or not it was legal at common law), necessarily denied the injunction, since, in its opinion, the defendants had committed no legal wrong and were threatening none. But even if this court should hold that an employer has a constitutional right to be free from interference by such a boycott or that the picketing practiced was not in fact peaceful, it does not follow that Arizona would lack the power to refuse to protect that right by injunction. For it is clear that the refusal of an equitable remedy for a tort is not
47	Arizona Employers’ Liability Cases, 250 U. S. 400.
48	Dominion Hotel v. Arizona, 249 U. S. 265.
TRUAX v. CORRIGAN.	373
312.	Brandéis, J., dissenting.
necessarily a denial of due process of law. And it seems to be equally clear that such refusal is not necessarily arbitrary and unreasonable when applied to incidents of the relation of employer and employee. The considerations which show that the refusal is not arbitrary or unreasonable show likewise that such refusal does not necessarily constitute a denial of equal protection of the laws merely because some, or even the same, property rights which are excluded by this statute from protection by injunction, receive such protection under other circumstances, or between persons standing in different relations. The acknowledged legislative discretion exerted in classification, so frequently applied in defining rights, extends equally to the grant of remedies.49 It is for the legislature to say— within the broad limits of the discretion which it possesses—whether or not the remedy for a wrong shall be both criminal and civil and whether or not it shall be both at law and in equity.
A State is free since the adoption of the Fourteenth Amendment, as it was before, not only to determine what system of law shall prevail in it, but, also, by what processes legal rights may be asserted, and in what courts they may be enforced. Missouri v. Lewis, 101U. S. 22,31; Iowa
49 In Gooch v. Stephenson, 1 Shepley (Me.) 371 (1836), the plaintiff attacked as unconstitutional a statute declaring that no action of trespass should be brought against an owner of cattle breaking through an insufficient fence. The court, inter alia, said:
" It has been insisted that justice and the security of rights is best promoted by maintaining the remedy as it before existed; but that is an argument which addresses itself to the legislative power, and not to the judicial. ... It was for the legislature to determine what protection should be thrown around this species of property; . . . and where he [the owner] might invoke the aid of courts of justice. They have no power to take away vested rights; but they may regulate their enjoyment.”
In this case the public importance of good fences was held to justify the denial of an existing remedy for injuries to property or a curtailment of the right.
374	OCTOBER TERM, 1921.
Brandeis, J., dissenting.	257 U. S.
Central Ry. Co. v. Iowa, 160 U. S. 389. As a State may adopt or reject trial by jury, Walker v. Sauvinet, 92 U. S. 90 ; or adopting it may retain or discard its customary incidents, Hayes v. Missouri, 120 U. S. 68; Brown v. New Jersey, 175 U. S. 172; Maxwell v. Dow, 176 U. S. 581; as a State may grant or withhold review of a decision by appeal, Reetz v. Michigan, 188 U. S. 505; so it may determine for itself, from time to time, whether the protection which it affords to property rights through its courts shall be given by means of the preventive remedy or exclusively by an action at law for compensation.
Nor is a State obliged to protect all property rights by injunction merely because it protects some, even if the attending circumstances are in some respects similar. The restraining power of equity might conceivably be applied to every intended violation of a legal right. On grounds of expediency its application is commonly denied in cases where there is a remedy at law which is deemed legally adequate. But an injunction has been denied on grounds of expediency in many cases where the remedy at law is confessedly not adequate. This occurs whenever a dominant public interest is deemed to require that the preventive remedy, otherwise available for the protection of private rights, be refused and the injured party left to such remedy as courts of law may afford. Thus, courts ordinarily refuse, perhaps in the interest of free speech, to restrain actionable libels. Boston Diatite Co. v. Florence Manufacturing Co., 114 Mass. 69; Prudential Assurance Co. v. Knott, L. R. 10 Ch. App. 142. In the interest of personal liberty they ordinarily refuse to enforce specifically, by mandatory injunction or otherwise, obligations involving personal service. Arthur v. Oakes, 63 Fed. 310, 318; Davis n. Foreman, [1894] 3 Ch. 654, 657; Gossard n. Crosby, 132 la. 155, 163, 164. In the desire to preserve the separation of governmental powers they have declined to protect by injunction mere political rights, Giles v.
TRUAX v. CORRIGAN.	375
312.	Brandéis, J., dissenting.
Harris, 189 U. S. 475; and have refused to interfere with the operations of the police department. Davis v. American Society for the Prevention of Cruelty to Animals, 75 N. Y. 362; Delaney v. Flood, 183 N. Y. 323; compare Bisbee v. Arizona Insurance Agency, 14 Ariz. 313. Instances are numerous where protection to property by way of injunction has been refused solely on the ground that serious public inconvenience would result from restrain-' ing the act complained of. Such, for example, was the case where a neighboring land owner sought to restrain a smelter from polluting the air, but that relief, if granted, would have necessitated shutting down the plant and this would have destroyed the business and impaired the means of livelihood of a large community.50 There are also numerous instances where the circumstances would, according to general equity practice, have justified the issue of an injunction, but it was refused solely because the right sought to be enforced was created by statute, and the courts, applying a familiar rule, held that the remedy provided by the statute was exclusive.51
Such limitations upon the use of the injunction for the protection of private rights have ordinarily been imposed in the interest of the public by the court acting in the exercise of its broad discretion. But, in some instances, the
80 See McCarthy v. Bunker Hill & Sullivan Mining Co., 164 Fed. 927; Bliss v. Anaconda Copper Mining Co., 167 Fed. 342; 186 Fed 789; Cameron Furnace Co. v. Pennsylvania Canal Co., 2 Pearson (Pa.) 208; Johnson v. United Railways Co., 227 Mo. 423, 450; Conger v. New York, W. S. & B. R. R. Co., 120 N. Y. 29; Wilkins v. Diven, 106 Kan. 283; Marconi Wireless Telegraph Co. v. Simon, 227 Fed. 906; 231 Fed. 1021.
nDimmick v. Delaware, Lackawanna & Western R. R. Co., 180 Pa. St. 468; Curran v. Delano, 235 Pa. St. 478; Janney v. Buell, 55 Ala. 408; the mechanics’ lien, for instance, is not protected by equitable remedies but only by statutory provisions, Chandler v. Hanna, 73 Ala. 390; Walker v. Daimwood, 80 Ala. 245; Phillips on Mechanics Liens, §§ 307, 308.
376	OCTOBER TERM, 1921.
Brandeis, J., dissenting.	257U.S.
denial of the preventive remedy because of a public interest deemed paramount, has been expressly commanded by statute. Thus, the courts of the United States have been prohibited from staying proceedings in any court of a State, Judicial Code, § 265; and also from enjoining the illegal assessment and collection of taxes. Revised Statutes, § 3224; Snyder v. Marks, 109 U. S. 189; Dodge v. Osborn, 240 U. S. 118. What Congress can do in curtailing the equity power of the federal courts, state legislatures may do in curtailing equity powers of the state courts; unless prevented by the constitution of the State. In other words States are free since the adoption of the Fourteenth Amendment as they were before, either to expand or to contract their equity jurisdiction. The denial of the more adequate equitable remedy for private wrongs is in essence an exercise of the police power, by which, in the interest of the public and in order to preserve the liberty and the property of the great majority of the citizens of a State, rights of property and the liberty of the individual must be remoulded, from time to time, to meet the changing needs of society.
For these reasons, as well as for others stated by Mr. Justice Holmes and Mr. Justice Pitney, [ante, 342, 344,] in which I concur, the judgment of the Supreme Court of Arizona should, in my opinion, be affirmed:—first, because in permitting damage to be inflicted by means of boycott and peaceful picketing Arizona did not deprive the plaintiffs of property without due process of law or deny them equal protection of the laws; and secondly, because, if Arizona was constitutionally prohibited from adopting this rule of substantive law, it was still free to restrict the extraordinary remedies of equity where it considered their exercise to be detrimental to the public welfare, since such restriction was not a denial to the employer either of due process of law or of equal protection of the laws.
AMERICAN COLUMN CO. v. UNITED STATES. 377
Argument for Appellants.
AMERICAN COLUMN & LUMBER COMPANY ET AL. v. UNITED STATES.
APPEAL FROM THE DISTRICT COURT* OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE.
No. 71. Argued October 20, 21, 1920; restored to docket for reargument February 28, 1921; reargued October 12, 13, 1921.—Decided December 19, 1921.
An “ Open Competition Plan ” under which manufacturers of one-third of the hardwood output of the country exchanged full and minute disclosures of the details of their business, including stocks on hand, production, shipments, prices, names of purchasers, etc., and their views on future market conditions, by means of reports and letters from the several members to a central office and distribution to them therefrom of analytical digests of the matters thus furnished, with significant suggestions as to future production and prices, by an expert agent, these means being supplemented by frequent meetings ,and discussions by the members,—is found from the evidence to have been actuated by the purpose and to have had the effect of restricting competition in interstate commerce by curtailing production and increasing prices, and is held a combination and conspiracy violating the Anti-Trust Act. P. 399.
263 Fed. 147, affirmed.
Direct appeal from a decree of the District Court granting a permanent injunction under the Anti-Trust Act.
Mr. L. C. Boyle and Mr. G. Carroll Todd for appellants.
The mere fact of association carries no presumption of guilt under the Sherman Act. Society itself is an organization, and does not object to organizations for social, religious, business, and all legal purposes. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439.
The interchange of stock, production and sales reports is not itself an unlawful act, and cannot by itself be evidence of unlawful conduct. United States v. Reading Co., 183 Fed. 427.
378
OCTOBER TERM, 1921.
Argument for Appellants.
257 U.S.
Of the “ booster ” letters, it suffices to say that however pertinent they may be to the question whether the tendency of the reports is to enhance prices, the statements contain nothing whatsoever in the way of admissions of an agreement not to compete or to curtail production. Indeed, exactly the same statements might have been made if the information contained in the reports had been furnished by the Government or any other independent agency.
The record shows that the rise in prices was brought about by natural causes: (1) By low stocks due to enforced inactivity of the saw-mills during the war; (2) by the final breaking loose of the pent-up demand; and (3) by reduced production due principally to abnormal rainfall in a large part of the hardwood section of the southern and southwestern States. Since this charge was made, and since the case was decided, a department of the Government itself, after careful study of the conditions, has reported that the rise in prices was due to these natural causes. Report on lumber industry made June 1, 1920, (by the Department of Agriculture, in response to Sen. Res. No. 311, 66th Congress, 2d sess.,) of which the court will take judicial notice. Tempel v. United States, 248 U. S. 121.
The members of the “ Open Competition Plan ” are divided into four geographical groups each of which holds a monthly meeting for the discussion of topics of interest to the industry. Prior to the meetings a questionnaire is addressed to the members of each group. The members reply or not as they see fit. On the average less than half do so. The replies from each group are summarized and compiled into a report, which is submitted to the group when it meets and constitutes the basis of discussion. These are the so-called “ market condition reports.”
The exchange of information and views on questions of the kind propounded is plainly within the right of asso-
AMERICAN COLUMN CO. v. UNITED STATES. 379
377.	Argument for Appellants.
dation, as defined in Hopkins v. United States, 171 U. S. 578, and Anderson v. United States, 171 U. S. 604. The parts of these repôrts to which the Government particularly objected were the estimates of future production and the expressions of opinion as to market conditions in the near future. As to the latter, an examination of the responses will show that they carry not the slightest suggestion of fixing prices or regulating production by agreement. With regard to the estimates of future production, if the suggestion is that they were made for the purpose of limiting production, the evidence shows that the estimates of what future production would be exceeded actual production, that production in fact increased, and that the defendants were striving to produce to their full capacity, if for no other reason, to take advantage of the strong demand at high prices.
It is fanciful to suppose that these defendants, controlling less than a third of the output, would agree to curtail their production when the undisputed evidence is that there was a demand for full production at high prices. It is still more fanciful to suppose that there could have been any such agreement when there was the greatest disparity in the rate of production of the parties, some producing to the limit of their capacity, others at less than half, owing to varying conditions of weather, etc., and when this situation was regularly disclosed through the monthly production reports, and no protest was heard from the low-producing members.
The meetings were open to everybody; they were poorly attended, fewer than one-third of the members being present most of the time; the questionnaires and market condition reports were the basis of the discussions, which included such subjects as costs of manufacture, log supply, demand, standardization of grades, inspection, weather and labor conditions, collections, car supply, exports, advertising, etc. Inspection of the minutes will
380	OCTOBER TERM, 1921.
Argument for Appellants.	257 U. S.
make it plain that nothing was said at these meetings even approaching an agreement not to compete as to prices or to curtail production. Such references to prices or production as occurred were expressions of opinion by individuals such as are bound to occur unless men engaged in the same industry are forbidden to meet at all.
That the members had no such purpose as is charged is shown: (1) By the specific and circumstantial denials under oath of about fifty of the most active of them, United States v. Reading Co., 226 U. S. 324, 346. (2) By the fact that at the very time when the members of the “ Plan ” are supposed to have been parties to agreements not to compete and to curtail production as a means of enhancing prices, leaders among them were attempting to hold prices down. (3) By the fact that not a single witness was produced from amongst the purchasers of hardwood lumber to testify that tne defendants’ prices were held higher than the conditions of supply and demand justified or that competition had been suppressed or production curtailed by agreements, notwithstanding that the Government had alleged in its complaint that purchasers were holding off in the belief that the prices demanded were too high. The absence of complaint by customers or competitors is a relevant circumstance in a case like this. United States v. United States Steel Corporation, 251 U. S. 417, 447; United States v. American-Asiatic S. S. Co., 220 Fed. 230, 235. (4) By the affirmative testimony of representatives of important groups of customers that natural causes brought about the enhancement in prices and that they had seen no indications of suppression of competition amongst the defendants, but that on the contrary the great exertions of the latter to produce as much as possible and the marked variations in the prices quoted by them indicated the existence of competition. Testimony of this character was accorded great weight in the Steel Case, 223 Fed. 55, 88. (5) By
AMERICAN COLUMN CO. v. UNITED STATES. 381
377.	Argument for Appellants.
the fact that the prices of outside manufacturers, who. controlled two-thirds of the production, moved in the same courses as the prices of the defendants. (6) By the sales reports themselves, which, so far from reflecting any agreement as to prices, disclose constant and substantial variations in the prices received by members at a given time for lumber of the same kind, grade, and thickness, customers testifying to the same variations. (7) By the production reports themselves, which show some members producing to the limit of their capacity; others much less than their capacity, principally because of bad weather conditions; and others at various stages in between. United States v. Reading Co., 183 Fed. 427; 226 U. S. 324. (8) By the evidence, nowhere contradicted, that during the period of the alleged agreement to curtail production sales of machinery to hardwood lumber mills were on an unprecedented scale. (9) By the fact— stated by many witnesses, buyers and sellers alike, and denied by none, and since confirmed by an official report of the Department of Agriculture—that there were natural causes operating to produce high prices. (10) By the inherent improbability that, with the demand insistent and increasing and prices rising, the producers of less than a third of a commodity would agree to curtail their production, leaving the increased business and profits for their competitors.
The statements selected from the “ market letters ” by the Government are but a few taken here and there out of a great mass of comment on business conditions. The letters from which the sentences were taken were not secret communications, as would be expected if the purpose in writing them were to bring about an agreement to fix prices or curtail production, but were attached to the fly-leaf of the sales reports, which were filed with the Department of Justice, the Federal Trade Commission, and the Bureau of Forestry, and were also sent to several
382	OCTOBER TERM, 1921.
Argument for Appellants.	257 U. S.
statistical publications. This is not the way conspirators act.
Even construing certain of Mr. Gadd’s statements as “ recommendations ” to maintain prices or to curtail production, or as “ arguments ” for higher prices, as the bill of complaint does, this does not make out a conspiracy without some evidence that the parties promised each other to act in accordance with such recommendations or arguments. United States v. Webster, District Court, S. D. N. Y., February, 1919, charge to jury by Hand, J.
It has not been shown that the alleged combination had the power to bring about the enhancement of prices charged against it. In the Steel Case, 251 U. S. 417, one hundred and eighty independent corporations, controlling approximately 50 per cent, of the steel trade, entered into a combination through a holding company, which the Government alleged to be in violation of the Sherman Act. 251 U. S. 439. This court adopted the finding of two of the judges below that the combination was organized for the illegal purpose of monopolizing the steel trade (251 U. S. 439, 442); but, agreeing with the same two judges, it also found that it was not shown that the combination “ ever possessed or exerted sufficient power when acting alone to control prices of the products of the industry ” (251 U. S. 440), or that it had “ power in and of itself to fix and maintain prices ” (251 U. S. 441), or that “ the power of the corporation ” ever reached to monopoly (251 U. S. 442); in other words, that it was not shown that the combination had the power to achieve its object, namely, monopoly or control of prices. It was held, therefore, that the combination did not violate the Sherman Act. See also State v. Eastern Coal Co., 29 R. I. 254.
In Chicago Board of Trade n. United States, 246 U. S. 231, this court held that, in determining whether or not a particular business practice violates the Sherman Act, “ the evil believed to exist, the reason for adopting the
AMERICAN COLUMN CO. v. UNITED STATES. 383
377.	Argument for Appellants.
particular remedy, the purpose or end sought to be obtained, are all relevant facts.” Manufacturers of hardwood lumber were situated as wheat and cotton growers and cattle raisers .would be if there were no general markets or governmental agencies to keep them informed of the conditions of supply and demand and of the movement of prices. To obtain the information made available in some industries through general markets and in others by the Department of Agriculture and to put themselves on a footing of equality in bargaining with the wholesale dealers and other large buyers, in short, to be able to conduct their business in the light of the facts surrounding the industry and not be compelled to act in the dark, was the purpose of the defendants in entering into this arrangement for the interchange of reports as to stocks on hand and past sales and prices. It is probably true that the large manufacturers could take care of themselves if this plan were stricken down. The small manufacturers, however, who constitute the great mass, cannot individually support selling organizations sufficiently extensive to keep in touch with market conditions throughout the country. Only through some such coOperative plan as these reports, therefore, is it possible for them to obtain the information as to market conditions which is so essential to their well-being and that of the industry.
In the Chicago Board of Trade Case this court recognized that it was an unhealthy condition where—“ Men had to buy and sell without adequate knowledge of actual market conditions,”—and one of the grounds for sustaining the rule there in question was that its purpose was to correct this condition. The condition must be still worse where one side has such knowledge and the other has not.
In the few cases in the lower courts, in which such interchange of reports has been challenged, its legality
384
OCTOBER TERM, 1921.
Argument for Appellants.
257 U. S.
has always been sustained until the present case. United States n. Reading Co., 183 Fed. 427; 226 U. S. 324; United States v. Piowaty & Sons, 251 Fed. 375; United States v. Aileen Coal Co. (District Court, S. D. N. Y., unreported); State v. Arkansas Lumber Co., 260 Mo. 212.
It is not without importance that the practice here in question has become an established feature of American industrial organization, on the strength and advice of counsel that the practice is legal. There is a vital difference between an agreement or association which has for its direct and immediate object the suppression of competition or the raising of prices and one whose direct and immediate object is legitimate but which indirectly might result in higher prices. Thus it is a common thing for producers of an article to associate for the purpose of enlarging the demand for it by advertising or otherwise making known new uses to which it can be put. No one questions the legality of such an association, since its direct and immediate object, namely, enlargement of demand, is legitimate, although expectation of higher prices in consequence of the greater demand was in the thoughts of the parties. United States v. Joint Traffic Association, 171 U. S. 505, 568; Hopkins v. United States, 171 U. S. 578, 592, 594, 600; Anderson v. United States, 171 U. S. 604, 613; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 244. The distinction between the direct and indirect object or effect of an agreement in determining its legality under the Sherman Act was again stated in the Standard Oil Case, 221 U. S. 1, 66. In Swift & Co. v. United States, 196 U. S. 375, after stating that in United States v. Knight Co., 156 U. S. 1, “ the subject-matter of the combination was manufacture and the direct object monopoly of manufacture within a State,” it was added, “ However likely monopoly of commerce among the States in the article manufactured was to follow from the agreement it was not a necessary con-
AMERICAN COLUMN CO. v. UNITED STATES. 385
377.	Argument for the United States.
sequence nor a primary end.” In Eastern States Retail Lumber Dealers’ Association v. United States, 234 U. S. 600, however, the direct and immediate object in distributing the information was unlawful—a boycott. There is a fundamental difference between merely exchanging information as to past prices and what was done at the “Gary Dinners.” Steel Case, 223 Fed. 55; 251 U. S. 417. There, the parties by their own admissions reached an understanding as to the prices they would charge in the future.
The stock, production and sales reports, being lawful in themselves, even assuming such a conspiracy as is alleged and that the reports were means of carrying it out, they cannot be prohibited absolutely, as the decree does, but only as such means. Where the means are themselves unlawful acts, they may be enjoined or otherwise prohibited absolutely. Continental Wall Paper Co. v. Voight, 212 U. S. 227; Wilder Manufacturing Co. v. Corn Products Refining Co., 236 U. S. 165, 177. On the other hand, an act, whether single or collective, which is unlawful only because part of an unlawful plan or conspiracy, can be enjoined only in connection with such plan, only as a means of carrying out such conspiracy. Swift Case, 196 U. S. 375, 394, 395, 401; United States v. Corn Products Co., 234 Fed. 964; United States v. Patten, 226 U. S. 525; United States v. Pacific & Arctic Ry. & Nav. Co., 228 U. S. 87.
Mr. Solicitor General Beck and Mr. James A. Fowler, Special Assistant to the Attorney General, for the United States.1
This case for the first time presents directly for the consideration of this court the practices of those organiza-
1 At the first hearing the case was argued by Mr. Henry S. Mitchell, Special Assistant to the Attorney General, on behalf of the United States. Mr. Solicitor General Frierson was also on the brief.
386
OCTOBER TERM, 1921.
Argument for the United States.
257 U. S.
tions which are known as “ open price associations.” The conditions of the industrial world are such, and the literature upon the subject so abundant, that the court will take judicial knowledge that these associations are so numerous and so extensively organized as to threaten an economic revolution. The basic principle of these associations is coOperation, as shown by the language of writers upon the subject. The object of the Anti-Trust Act was to preserve competition as defined by Adam Smith and all political economists since his time; not “ cut-throat competition,” but fair and honest competition by the elimination of fraudulent and unfair practices. But competition was intended to be real and not fake. The meaning of the words “ competition” and " cooperation ” in political economy are directly opposed to each other. “ Competition ” in commerce and economics is thus defined by Webster: “ The effort of two or more parties, acting independently, to secure the custom of a third party by the offer of the most favorable terms ”; while “ cooperation ” is defined as “ the association of a number of persons for their common benefit; collective action in the pursuit of common well being, especially in some industrial or business process.”
Members of an association may strive together to attain results beneficial to all, but such striving would not partake of the nature of an effort by each acting independently to secure the patronage for himself individually of a third party. The history of the development and the literature promoting these associations show that their chief design is to destroy competition and to substitute therefor cooperation. There are activities in which those engaged in the same industry may properly act in concert. For illustration, it would be beneficial to all hardwood lumber manufacturers for the use of lumber to be extended into new fields, or for legislation to be passed or treaties made that would promote the exportation of lumber.
AMERICAN COLUMN CO. v. UNITED STATES. 387
377.	Argument for the United States.
But when men selling in the same market and seeking the same customers join hands in doing the very things that real competitors never have done—things which are directly and fundamentally opposed to every element of competition as defined and understood by all political economists, and as understood by Congress when the Anti-Trust Law was passed, such conduct naturally excites suspicion, and is deserving of the closest scrutiny. The purpose of such conduct is undoubtedly to increase the profits of those acting in concert. In fact, this is not denied by the promoters of the “ open price plan,” but they say it is accomplished by stabilizing the price, which means that the price will be made more nearly constant at an average price higher than would be the average if the market were not thus stabilized.
It is not possible for real competition to exist under the circumstances proven in this case. If it should once develop, the organization would immediately fall to pieces, because every member of the association who had been undersold would feel that he had been wronged, and thereafter would look upon such a competitor as an enemy. The very existence of the organization depends upon the implied, if not formal, understanding that every member will respect the supposed rights of all the others; that no member will commit an act which will result in injury to any one or all of the other members, but that each will so conduct his business that it will result in the mutual benefit of all. The operation of such a plan is far more efficacious in controlling prices than an actual agreement fixing prices between the same persons. Every party to a price-fixing agreement knows that it is unlawful and incapable of enforcement, and is not only indifferent to its observance but possibly uses it as a means of deceiving his competitor. But under the system here adopted deception is impossible, because if one cuts the price every other member in a few days knows of that 6267°—22------30
388
OCTOBER TERM, 1921.
Argument for the United States.
257 U. S.
fact, and he is conscious of the secret if not the open condemnation of his associates. A distinction is suggested between the members exchanging lists of prices intended to be charged and reporting prices received in actual transactions; but how can an exchange between the members of information as to the prices they intend to charge in the future be more effective than an exchange of exact information as to what they have actually charged in the past? The latter information serves as a much better guide for the future conduct of the membership. Statements as to what one intends to do are unreliable, as they may be, and generally are, deviated from; but an exact record of what one has done is a true index as to what his conduct for the future will be.
The results of the operation of this “ open price scheme” are manifestly different when applied to different industries and under different economic conditions. When the product manufactured has but one or a very few grades and the cost of production does not greatly vary, and the capacity of the factories is about equal to the demand, the prices would be on a dead level, and every semblance of competition would disappear, and the trade would be distributed among the producers in almost exact proportion to the capacity of their factories. There would be practically no growth of the smaller factories; and a new factory would hardly dare enter the field. Where the capacities of the factories are much in excess of the demand, under the law of supply and demand prices would materially decrease; and those factories which are operated at the greatest expense would be forced to suspend. But if organized into an “ open price association,” prices would be maintained at such a point that all members, even the one whose “cost of production is greatest, would make some profit. This would be accomplished by either dividing the work between the factories in proportion to their capacities or by dividing
AMERICAN COLUMN CO. v. UNITED STATES. 389
377.	Argument for the United States.
the factories into groups and designating the period of time during which the groups may operate. When the demand for the product manufactured is decreasing and the price is falling, through the influence of an association the reduction of price is greatly impeded, first, by a curtailment of production from a tacit or expressed agreement to that effect and, second, because a member is unwilling to undersell his associates when such fact is known to them. When the demand for the product is increasing and the market is rising, the exchange of information as to mounting prices will produce far more quickly an uneasy market, and greatly increase the excessive prices, as demonstrated by the evidence in this case.
It is argued by appellants that there was no violation of the Anti-Trust Act because it is not shown that the price of lumber was fixed, or was made uniform. Such fact is wholly immaterial, as, if, by agreement, or a concert of action amounting to a tacit agreement, prices were increased, such action was as much a violation of the statute as if it had been agreed that the prices should be uniform at a fixed scale.
To show a violation of the statute it was sufficient to prove concerted action pursuant to an actual or tacit agreement which would naturally and directly curtail the production or increase the price of lumber moving in interstate commerce. That the plan here adopted was sufficiently direct to violate the Anti-Trust Act is shown by Eastern States Retail Lumber Dealers’ Association v. United States, 234 U. S. 600, 608, 612; and that concerted action which is not the result of a formal agreement may violate the law is recognized in United States v. United States Steel Corporation, 251 U. S. 417, 444, and is positively held in many other cases. The conspiracy and the acts of the conspirators in carrying it out which were condemned in Loewe v. Lawlor, 208 U. S. 274, and 235
390
OCTOBER TERM, 1921.
Argument for the United States.
257 U.S.
U. S. 522, were more remote from the result than were the adoption and execution of the plan here proven. In point of proximity of cause to effect this case is parallel with the line of cases beginning with United States v. Jellico Mountain Coal & Coke Co., 46 Fed. 432. In United States v. Reading Co., 226 U. S. 324, 348, 351, a conspiracy was condemned which had never been, and was not then, effective, and its future effect was uncertain and speculative. A line of cases beginning with Hopkins v. United States, 171 U. S. 578, is relied upon by defendants, in which it was held that the Anti-Trust Act did not apply because interstate commerce was not directly involved. Later cases have not so strictly applied the rule there laid down. See Swift & Co. v. United States, 196 U.S. 375, 397; Montague & Co. v. Lowry, 193 U. S. 38. These cases have no special bearing here, because there is no question but that the appellants’ lumber was moving in interstate commerce; and if their conduct resulted in any restraint at all, such restraint was upon interstate commerce. There is necessarily a distinction between agreements which by their nature are local in their operation and but incidentally affect interstate commerce, and those agreements which directly pertain to such commerce and are not local in their nature. Where the agreement necessarily relates to interstate commerce the courts have never drawn a nice distinction as to whether or not the effect is immediate or in a measure remote. Appellants also cite as authority Anderson v. United States, 171 U. S. 604, and Chicago Board of Trade v. United States, 246 U. S. 231; but neither of those cases has any material bearing on the questions here presented. In the former case it was held that the purpose of the regulations complained of was not to regulate, obstruct or restrain commerce, but to properly and fairly regulate the transaction of the business in which the parties to
AMERICAN COLUMN CO. v. UNITED STATES. 391
377.	Opinion of the Court.
the agreement were engaged; and in the latter case it was held that under the facts proven the object and effect of the rule of the Board complained of was to promote interstate commerce, and not to restrain it.
Mr. William J. Matthews and Mr. Hugh T. Martin, by leave of court, filed a brief as amici curiae.
Mr. Justice Clarke delivered the opinion of the court.
The unincorporated “American Hardwood Manufacturers’ Association ” was formed in December, 1918, by the consolidation of two similar associations, from one of which it took over a department of activity designated the “ Open Competition Plan,” and hereinafter referred to as the “Plan.”
Participation in the “ Plan ” was optional with the members of the Association, but, at the time this suit was commenced, of its 400 members, 305, operating 465 mills, were members of the “ Plan.” The importance and strength of the Association are shown by the admission in the joint answer that while the defendants operated only five per cent, of the number of mills engaged in hardwood manufacture in the country, they produced one-third of the total production of the United States. The places of business of the corporations and partnerships, members of the “ Plan,” were located in many States from New York to Texas, but chiefly in the hardwood producing territory of the Southwest. The defendants are the members of the “ Plan,” their personal representatives, and F. R. Gadd, its “ Manager of Statistics.”
The bill alleged, in substance, that the “ Plan ” constituted a combination and conspiracy to restrain interstate commerce in hardwood lumber by restricting competition and maintaining and increasing prices, in violation of the Anti-Trust Act of 1890, c. 647, 26 Stat. 209.
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The answer denied that the “ Plan ” had any such purpose and effect as charged, and averred that it promoted competition, especially among its own members.
A temporary injunction, granted by the District Court, restricting the activities of the “ Plan ” in specified respects, by consent of the parties was made permanent and a direct appeal brings the case here for review.
The activities which we shall see were comprehended within the “ Open Competition Plan,” (which is sometimes called “ The New Competition,”) have come to be widely adopted in our country, and, as this is the first time their legality has been before this court for decision, some detail of statement with respect to them is necessary.
There is very little dispute as to the facts. The testimony of the Government consists of various documents and excerpts from others, obtained from the files of the “ Plan,” and the testimony of the defendants consists of like documents and excerpts from other documents, also from the same files, supplemented by affidavits of a number of persons, members and non-members, chiefly to the point that the confessedly great increases of prices during 1919 were due to natural trade and weather conditions and not to the influence of the “ Plan.”
The record shows that the “ Plan ” was evolved by a committee, which, in recommending its adoption, said:
“The purpose of this plan is to disseminate among members accurate knowledge of production and market conditions so that each member may gauge the market intelligently instead of guessing at it; to make competition open and above board instead of secret and concealed; to substitute, in estimating market conditions, frank and full statements of our competitors for the frequently misleading and colored statements of the buyer.”
After stating that the purpose was not to restrict competition or to control prices but to “ furnish information to enable each member to intelligently make prices and to
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intelligently govern his production,” the committee continues :
“ The chief concern of the buyer, as we all know, is to see that the price he pays is no higher than that of his competitors, against whom he must sell his product in the market. The chief concern of the seller is to get as much as anybody else for his lumber; in other words to get what is termed the top of the market for the quality he offers. By making prices known to each other they will gradually tend toward a standard in harmony with market conditions, a situation advantageous to both buyer and seller.”
Not long after the consolidation, a further explanation of the objects and purposes of the “ Plan ” was made in an appeal to members to join it, in which it is said:
“ The theoretical proposition at the basis of the Open Competition plan is that,
“Knowledge regarding prices actually made is all that is necessary to keep prices at reasonably stable and normal levels.
“ The Open Competition plan is a central clearing house for information on prices, trade statistics and practices. By keeping all members fully and quickly informed of what the others have done, the work of the plan results in a certain uniformity of trade practice. There is no agreement to follow the practice of others, although members do naturally follow their most intelligent competitors, if they know what these competitors have been actually doing.
“ The monthly meetings held in various sections of the country each month have improved the human relations existing between the members before the organization of this plan.”
And in another later, and somewhat similar, appeal sent to all the members, this is found:
“ Competition, blind, vicious, unreasoning, may stimulate trade to abnormal activity but such condition is no
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more sound than that mediaeval spirit some still cling to of taking a club and going out and knocking the other fellow and taking away his bone.
“ The keynote to modern business success is mutual confidence and co-operation. Co-operative Competition, not Cut-throat Competition. Co-operation is a matter of business because it pays, because it enables you to get the best price for your product, because you come into closer personal contact with the market.
“ Co-operation will only replace undesirable competition as you develop a co-operative spirit. For the first time in the history of the industry, the hardwood manufacturers are organized into one compact, comprehensive body, equipped to serve the whole trade in a thorough and efficient manner. . . . More members mean more power to do more good for the industry. With co-operation of this kind we will very soon have enlisted in our efforts practically every producing interest, and you know what that means.”
Thus, the “ Plan ” proposed a system of coOperation among the members, consisting of the interchange of reports of, sales, prices, production and practices, and in meetings of the members for discussion, for the avowed purpose of substituting “ Co-operative Competition ” for “ Cut-throat Competition,” of keeping “ prices at reasonably stable and normal levels,” and of improving the “ human relations ” among the members. But the purpose to agree upon prices or production was always disclaimed.
Coming now to the fully worked out paper plan as adopted.
It required each member to make six reports to the Secretary, viz:
1.	A daily report of all sales actually made, with the name and address of the purchaser, the kind, grade and quality of lumber sold and all special agreements of every
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kind, verbal or written with respect thereto. “ These reports are to be exact copies of orders taken.”
2.	A daily shipping report, with exact copies of the invoices, all special agreements as to terms, grade, etc. The classification shall be the same as with sales.
3.	A monthly production report, showing the production of the member reporting during the previous month, with the grades and thickness classified as prescribed in the “Plan.”
4.	A monthly stock report by each member, showing the stock on hand on the first day of the month, sold and unsold, green and dry, with the total of each kind, grade and thickness.
5.	Price-lists. Members must file at the beginning of each month price-lists showing prices f. o. b. shipping point, which shall be stated. New prices must be filed with the association as soon as made.
6.	Inspection reports. These reports are to be made to the association by a service of its own, established for the purpose of checking up grades of the various members and the “ Plan ” provides for a chief inspector and sufficient assistants to inspect the stocks of all members from time to time.
The declared purpose of the inspection service is not to change any member’s grading except with his consent, but to furnish each member a basis on which he can compare his prices with those of other members, thereby making all members’ reports more intelligible and accurate.
All of these reports by members are subject to complete audit by representatives of the association. Any member who fails to report shall not receive the reports of the secretary, and failure to report for twelve days in six months shall cause the member failing to be dropped from membership.
Plainly it would be very difficult to devise a more minute disclosure of everything connected with one’s
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business than is here provided for by this “ Plan ” and very certainly only the most attractive prospect could induce any man to make it to his rivals and competitors.
But, since such voluminous disclosures to the secretary would be valueless unless communicated to the members in a condensed and interpreted form, provision is made for this, as follows:
The secretary is required to send to each member:
1.	A monthly summary showing the production of each member for the previous month, “ subdivided as to grade, kind, thickness,” etc.
2.	A weekly report, not later than Saturday, of all sales, to and including the preceding Tuesday, giving each sale and the price, and the name of the purchaser.
3.	On Tuesday of each week the secretary must send to each member a report of each shipment by each member, complete up to the evening of the preceding Thursday.
4.	He must send a monthly report, showing the individual stock on hand of each member and a summary of all stocks, green and dry, sold and unsold. This report is very aptly referred to by the managing statistician as a monthly inventory of the stock of each member.
5.	Not later than the 10th of each month the secretary shall send a summary of the price-lists furnished by members, showing the prices asked by each, and any changes made therein must be immediately transmitted to all the members.
6.	A market report letter shall be sent to each member of the association (whether participating in the “ Plan ” or not) pointing “ out changes in conditions both in the producing and consuming sections, giving a comparison of production and sales and in general an analysis of the market conditions.”
7.	Meetings shall be held once a month at Cincinnati “ or at points to be agreed upon by the members.” “ It is intended that the regular meetings shall afford oppqr-
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tunity for the discussion of all subjects of interest to the members.”
“ The ‘ Plan ’ also requires the selection of a man to take charge of the gathering and dissemination of data, with necessary assistants,” and the defendant F. R. Gadd was selected and given the title of “Manager of Statistics.”
This extensive interchange of reports, supplemented as it was by monthly meetings at which an opportunity was afforded for discussion “ of all subjects of interest to the members,” very certainly constituted an organization through which agreements, actual or implied, could readily be arrived at and maintained, if the members desired to make them.
Such, in outline, was the paper plan adopted by the association, but elaborate though it was, in practice three important additions were made to it.
First of all, the southwestern territory for meeting purposes was divided into four districts, and instead of the monthly* meeting provided for in the “ Plan,” “ in order that members could more conveniently attend,” the record shows that forty-nine of these meetings were held between January 31, 1919, and February 19, 1920,— approximately one for each week, in some part of the territory.
Second. Before each of these meetings a questionnaire was sent out to the members, and from the replies received, supplementing the other reports, the statistician compiled an estimate of the condition of the market, actual and prospective, which was distributed to the members attending each meeting, and was mailed to those not present. There were eleven questions on this list of which the most important were:
“4th. What was your total production of hardwoods during the last month? What do you estimate your production will probably be for the next two months? ”
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“ 10th. Do you expect to shut down within the next few months on account of shortage of logs or for any other reason? If so, please state how long mill will be idle? ”
“11th. What is your view of market conditions for the next few months? What is the general outlook for business? State all reasons for your conclusions.”
The “ Plan ” on paper provided only for reports of past transactions and much is made of this in the record and in argument—that reporting .to one another past transactions cannot fix prices for the future. But each of these three questions plainly invited an estimate and discussion of future market conditions by each member, and a coordination of them by an expert analyst could readily evolve an attractive basis for cooperative, even if unexpressed, “ harmony ” with respect to future prices.
Third. The “ Plan ” provided for a monthly “ market report letter ” to go to all members of the association. In practice this market report letter was prepared by F. R. Gadd, Manager of Statistics, but his review of the market and forecast for the future were contained, almost from the beginning, not only in these market letters but also in the weekly sales reports, so that they were sent out to all of the members nineteen times between February 1 and December 6, 1919, and they were discussed at all but one or two of the forty-nine meetings which were held. All the activities of the “ Plan ” plainly culminated in the counsels contained in these letters and reports.
This elaborate plan for the interchange of reports does not simply supply to each member the amount of stock held, the sales made and the prices received, by every other member of the group, thereby furnishing the data for judging the market, on the basis of supply and demand and current prices. It goes much farther. It not only furnishes such information, with respect to stock, sales and prices, but also reports, giving the views of
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each member as to “ market conditions for the next few months ”; what the production of each will be for the next “ two months ”; frequent analyses of the reports by an expert, with, we shall see, significant suggestions as to both future prices and production; and opportunities for future meetings for the interchange of views, which the record shows were very important. It is plain that the only element lacking in this scheme to make it a familiar type of the competition suppressing organization is a definite agreement as to production and prices. But this is supplied: by the disposition of men “ to follow their most intelligent competitors,” especially when powerful; by the inherent disposition to make all the money possible, joined with the steady cultivation of the value of “ harmony ” of action; and by the system of reports, which makes the discovery of price reductions inevitable and immediate. The sanctions of the plan obviously are, financial interest, intimate personal contact, and business honor, all operating under the restraint of exposure of what would be deemed bad faith and of trade punishment by powerful rivals.
The principles of law by which we must judge of the legality of the scheme of doing business thus provided for, as it was worked out in practice, are clearly settled by the Anti-Trust statute and the decisions of this court interpreting it.
The applicable provision of the act (c. 647, 26 Stat. 209) reads:
“ Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ... is hereby declared to be illegal.”
Obviously the organization of the defendants constitutes a combination and confessedly they are engaged in a large way in the transportation and sale of lumber in interstate commerce so that there remains for decision
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only the question whether the system of doing business adopted resulted in that direct and undue restraint of interstate commerce which is condemned by this Anti-Trust statute.
It has been repeatedly held by this court that the purpose of the statute is to maintain free competition in interstate commerce and that any concerted action by any combination of men or corporations to cause, or which in fact does cause, direct and undue restraint of competition in such commerce falls within the condemnation of the act and is unlawful.
In Northern Securities Co. v. United States, 193 U. S. 197, 337, it is declared that:
“ In all the prior cases in this court the Anti-Trust Act has been construed as forbidding any combination which by its necessary operation destroys or restricts free competition among those engaged in interstate commerce; in other words, that to destroy or restrict free competition in interstate commerce was to restrain such commerce.”
In United States n. Union Pacific R. R. Co., 226 U. S. 61, 87, decided in 1912, long prior to the forming of their combination by the defendants, the law was condensed into this expression:
"To preserve from undue restraint the free action of competition in interstate commerce was the purpose which controlled Congress in enacting this statute, and the courts should construe the law with a view to effecting the object of its enactment.”
And in Eastern States Retail Lumber Dealers’ Association v. United States, 234 U. S. 600, 609, it was said:
“ It [the Sherman Act] broadly condemns all combinations and conspiracies which restrain the free and natural flow of trade in the channels of interstate commerce.”
And again, on p. 613:
“ The argument that the course pursued is necessary to the protection of the retail trade and promotive of the
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public welfare in providing retail facilities is answered by the fact that Congress, with the right to control the field of interstate commerce, has so legislated as to prevent resort to practices which unduly restrain competition or unduly obstruct the free flow of such commerce, and private choice of means must yield to the national authority thus exerted.”
With this rule of law and the details of the “ Plan ” in mind, we come to consider what the record shows as to the purpose of this combination and as to its effect upon interstate commerce.
We have seen that the “ Plan ” provided for the selection of a man to have charge of the gathering and dissemination of the data, which were to be contained in the various reports, and that the defendant F. R. Gadd was selected for this purpose, with the title of “ Manager of Statistics.” Mr. Gadd was a man of large experience in the lumber business, competent and aggressive, and the record makes it clear that he was in complete and responsible charge of all the activities of this “ Open Competition Plan.” He compiled the summaries of daily, weekly and monthly reports, and wrote the monthly market letter and the market comment in the weekly sales reports, which were distributed to the members. Some disposition appears in the argument, but not in the evidence, to suggest that Gadd exceeded his authority at times, but no objection appears to have been taken to any of his conduct, and the “ Secretary-Manager ” says in his affidavit that his office adjoins that of Gadd and that “ he [Gadd] and the affiant have frequent conferences and discussions relating to their work, and that the affiant is familiar with the activities and methods of the Open Competition Plan.”
It is plain that as the “ Plan ” was the “ clearing house ” of the members, “ for information on prices, trade statistics, and practices,” so Gadd was the “'clear-
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ing house ” of the “ Plan,” and that what he said and did, acquiesced in by the members, as it was, must be accepted as the authoritative expression of the combination.
The record shows that the lumber market was inactive in the months of January and February and the first part of March of 1919. It grew better late in March and progressively stronger until in July, when it became very active, with prices high, and so continued until the end of the year we are considering.
In the first quarter of the year the problem was to maintain the war prices then prevailing rather than to advance them, and although the minutes of the various meetings were kept in barest outline, we find that beginning within a month of the consolidation of the two associations, the members of the “ Plan ” began actively to cooperate, through the meetings, to suppress competition by restricting production. This is very clearly shown by the excerpts following from the minutes of meetings and from the market letters and sales reports distributed at them.
Thus, at the meeting held at Cincinnati, on January 21, 1919, in the discussion of business conditions, the chairman said:
“ If there is no increase in production, particularly in oak, there is going to be good business.” “No man is safe in increasing his production. If he does, he will be in bad shape, as the demand won’t come.”
Again, at the meeting held on May 9th, at Memphis, in the discussion of market conditions, appears this paragraph :
“ Reference was made to members who contemplate running day and night, and it was stated that the lumber industry had seen these unusual market conditions before and that we ought to be very sure that the market is capable of taking care of night and day lumber.”
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This warning of May 9th against producing too much lumber was followed, on May 17th, by a sales report sent out by the Manager of Statistics to all members, which was headed, “ Stop, Look and Listen.” After saying that the hardwood market had assumed a decidedly better tone, with a tendency in quotations upward, with the demand on the increase and with stocks below normal, the writer continues:
“ The lumbermen have gone through several lean years, but we are confronted with the possibility of killing the goose that laid the golden egg. Overproduction will spell disaster, as it should always be borne in mind that the maximum productive capacity of the sawmills of the country is much in excess of any demand the country has ever known.”
He then quotes from an editorial in the Southern Lumberman, in which, among other things, it is said:
“The danger which we see lurking in the future for the lumber industry is overproduction. When the demand for lumber is keen and the prices are good, it is necessarily a strong temptation to the sawmill men to put on a night shift at the mill and an extra logging crew in the woods, and keep turning out lumber twenty-four hours out of the day. The desire to cash in while the cashing is good is natural and easy to understand; but every sawmill man who contemplates putting on a night shift should stop long enough to reflect on the past history of the lumber business. If he does indulge in such reflection, the chances are he will reconsider any ideas he may have had along that line. Overproduction has always been the curse of the lumber industry in America. It has caused more trouble and hardship than any other one factor. It would be criminal folly, therefore, for the lumber manufacturers to indulge themselves in any such form of commercial suicide.”
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Adding that the lumbermen have within their grasp an era of prosperity for some time to come, the writer continues :
“ They can either reach forward to seize their opportunity, or they can cast it aside by the policy of overproduction. Which shall it be? It is up to the sawmill men themselves to decide.”
The managing statistician of the association significantly adds: “Are we guilty? If so, the warning is timely”
Again, a week later, at a meeting at Shreveport, Louisiana, in the discussion of market conditions, one of the members declared: that in his opinion it was “suicidal to run mills night and day; that the pine mills had done it, but he hoped they [we] would profit by their past experience and not do it this year.”
Much more of like purport appears in the minutes of the meetings throughout the year, but this is sufficient to convincingly show that one of the prime purposes of the meetings, held in every part of the lumber district, and of the various reports, was to induce members to cooperate in restricting production, thereby keeping the supply low and the prices high, and that whenever there was any suggestion of running the mills to an extent which would bring up the supply to a point which might affect prices, the advice against operations which might lead to such result was put in the strongest possible terms. The cooperation is palpable and avowed, its purpose is clear, and we shall see that it was completely realized.
Next, the record shows clearly that the members of the combination were not satisfied to secure, each for himself, the price which might be obtainable even as the result of cooperative restriction of production, but that throughout the year they assiduously cultivated, through the letters of Gadd, speaking for them all, and through the
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discussions at the meetings, the general conviction that higher and higher prices were obtainable and a disposition on the part of all to demand them. The intention to create such a common purpose is too clear to be doubted, evidenced as it is by the following excerpts from much of like character in the testimony:
As thus, in the stock report of March 8, 1919, after pointing out that the stock at the mills was only about three-fourths normal and that the production in the Memphis group of manufacturers was only fifty-six per cent, of normal, the letter of the Manager of Statistics continues:
“ There has of course been a long drawn out and desperate effort to break the hardwood market by a withdrawal of demand; but be it said to the eternal credit of the hardwood producers that they have maintained a stout heart and stiff backbone; with the result that there has been exhibited a strength in the market which has' been little short of remarkable in the face of the light demand, and the vigorous efforts which have been steadily made to hammer down prices. ...
“ With this information before him it is difficult to see how any intelligent hardwood manufacturer can entertain any hesitation as to the proper course for him to pursue in selling his lumber.”
And it may be added that it is not difficult to see what this “ proper course to pursue ” was intended to be.
Again, three weeks later, in the market letter of March 29th, after stating that stocks had further decreased from the previous month, with a production not to exceed fifty per cent, of normal, the Manager of Statistics of the “Plan” adds:
“ Naturally the situation ought to have an important bearing on the plans of every hardwood lumberman. If the facts were better understood offers of business now at shaded prices would get scant consideration and there
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would not only be no good reason to cut prices, but there would be every reason why they should be held at reasonable profit-making levels. . . . All conditions indicate a firm market for the balance of the year, with prices moving upward.”
Another month later, in the market letter of April 26th, this influential agent of the association, after pointing out that stocks were less than seventy-five per cent, of normal, that production was about sixty per cent, of normal, and that the demand was far in excess of the supply, adds:
“ If ever there was a time when rich rewards awaited the producer of hardwood lumber, now is that time. There are glorious opportunities ahead. . . . Supply and demand must necessarily govern prices. The demand is with us, the supply inadequate, therefore, values must increase, as our competition in hardwoods is only among ourselves.”
Again, in another month, May 24th, in his market letter, the Manager of Statistics, after stating that production during the month of April was sixty-five per cent, of normal and that a careful estimate indicated that there would be no material increase in May and June, says:
“ If anyone tells you that lumber prices are coming down, call their attention to the following : Curtailed production of mills; stocks at mill points are below normal; . . . necessity on the part of lumber operators of maintaining a price level that will enable them to make a reasonable profit.”
And he concludes with:
“ The tendency of the market is upward and will undoubtedly continue to advance as long as sales and production bear their present relation to each other.”
Again on September 20th, in his market letter, he says :
“ It has been rumored that a certain class of buyers, believing that the price of lumber was too high and that the
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temporary inactivity in the export market offered the opportune moment, have agreed to confine purchases to actual immediate requirements during the next sixty days. This is not going to worry the manufacturers very much; in fact, it will give them a much needed breathing spell and an opportunity to accumulate a supply of dry stocks which, in our opinion, is the same as gold dollars in the bank.
*******
“ Those who have been looking for lower prices overlook the very important factors: that production continues below normal . . . that unsold stocks at mills are 70 per cent, below normal; . . . that the export demand has just started, . . .”
And he concludes:
“ With these conditions prevailing, there is nothing in the situation that should encourage anyone to hope for a drop in quotations.”
To this we must add that constantly throughout the minutes of the various meetings there is shown discussion of the stock and production reports in which the shortage of supply was continually emphasized, with the implication, not disguised, that higher prices must result. Men in general are so easily persuaded to do that which will obviously pjpve profitable that this reiterated opinion from the analyst of their association, with all obtainable data before him, that higher prices were justified and could easily be obtained, must, inevitably have resulted, as it did result, in concert of action in demanding them.
But not only does the record thus show a persistent purpose to encourage members to unite in pressing for higher and higher prices, without regard to cost, but there are many admissions by members, not only that this was the purpose of the “ Plan ”, but that it was fully realized.
Within four months of the consolidation, on April 23, 1919, the Manager of Statistics wrote to members asking
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each to write him “ his experience with the Plan ” and any incidents showing benefits derived from it.
The replies to this letter are significant confessions. One writes:
“All those who have access to your reports bring their prices to the top.”
Another:
“ There seems to be a friendly rivalry among members to see who can get the best prices, whereas, under the old plan it was cut throat competition.”
Another:
“ It has kept us in touch closely with the market and in many instances has made us one or more dollars per thousand feet on lumber that we have sold and we believe that the plan is going to be very successful in carrying out the purposes for which it is intended.”
Another:
“ The very first report which we received under this plan enabled us to increase our price $6 per thousand on a special item in oak. We had just taken a small order at what we thought was a satisfactory price, but discovered immediately that others were getting more money and since that time we have booked orders for a number of these special items at an increase of $6 per thousand.”
Another:
“ Since we have become members, we have been selling our lumber at several dollars per M more than formerly and we are perfectly satisfied with the plan.”
And another:
“We have always left these meetings feeling that we did not get enough money for our lumber and that we ought to try to do better.”
There was one discordant reply, saying:
“ The Open Competition Plan has been absolutely accurate but instead of apparently stabilizing the market,
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it has caused a run-a-way market.”—This on May 29th, within six months of the forming of the combination.
These quotations are sufficient to show beyond discussion that the purpose of the organization and especially of the frequent meetings was to bring about a concerted effort to raise prices regardless of cost or merit, and so was unlawful, and that the members were soon entirely satisfied that the “ Plan ” was “ carrying out the purpose for which it was intended.”
As to the price conditions during the year. Without going into detail the record shows that the prices of the grades of hardwood in most general use were increased to an unprecedented extent during the year. Thus, the increases in prices of varieties of oak, range from 33.3% to 296% during the year; of gum, 60% to 343%, and of ash, from 55% to 181%. While it is true that 1919 was a year of high and increasing prices generally and that wet weather may have restricted production to some extent, we cannot but agree with the members of the “ Plan ” themselves, as we have quoted them, and with the District Court in the conclusion that the united action of this large and influential membership of dealers contributed greatly to this extraordinary price increase.
Such close cooperation, between many persons, firms, and corporations controlling a large volume of interstate commerce, as is provided for in this “ Plan,” is plainly in theory, as it proved to be in fact, inconsistent with that free and unrestricted trade which the statute contemplates shall be maintained; and that the persons conducting the association fully realized this is apparent from their protesting so often as they did, in many of their confidential communications appearing in this record, that their purposes were not unlawful, that they sought only to supplant cut-throat competition with what in their own judgment would be “ fair and reasonable competition,” and to obtain, not make, fair prices, and by their
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repeated insistence that the Sherman Law “ designed to prevent the restraint of trade is itself one of the greatest restrainers of trade, and should be repealed.”
To call the activities of the defendants, as they are proved in this record, an “ Open Competition Plan ” of action is plainly a misleading misnomer.
Genuine competitors do not make daily, weekly and monthly reports of the minutest details of their business to their rivals, as the defendants did; they do not contract, as was done here, to submit their books to the discretionary audit and their stocks to the discretionary inspection of their rivals for the purpose of successfully competing with them; and they do not submit the details of their business to the analysis of an expert, jointly employed, and obtain from him a “ harmonized ” estimate of the market as it is and as, in his specially and confidentially informed judgment, it promises to be. This is not the conduct of competitors but is so clearly that of men united in an agreement, express or implied, to act together and pursue a common purpose under a common guide that, if it did not stand confessed a combination to restrict production and increase prices in interstate commerce and as, therefore, a direct restraint upon that commerce, as we have seen that it is, that conclusion must inevitably have been inferred from the facts which were proved. To pronounce such abnormal conduct on the part of 365 natural competitors, controlling one-third of the trade of the country in an article of prime necessity, a “ new form of competition ” and not an old form of combination in restraint of trade, as it so plainly is, would be for this court to confess itself blinded by words and forms to realities which men in general very plainly see and understand and condemn, as an old evil in a new dress and with a new name.
The “ Plan ” is, essentially, simply an expansion of the gentlemen’s agreement of former days, skilfully devised
AMERICAN COLUMN CO. v. UNITED STATES. 411
377.	Opinion of the Court.
to evade the law. To call it open competition because the meetings were nominally open to the public, or because some voluminous reports were transmitted to the Department of Justice, or because no specific agreement to restrict trade or fix prices is proved, cannot conceal the fact that the fundamental purpose of the “ Plan ” was to procure “ harmonious ” individual action among a large number of naturally competing dealers with respect to the volume of production and prices, without having any specific agreement with respect to them, and to rely for maintenance of concerted action in both respects, not upon fines and forfeitures as in earlier days, but upon what experience has shown to be the more potent and dependable restraints, of business honor and social penalties,—cautiously reinforced by many and elaborate reports, which would promptly expose to his associates any disposition in any member to deviate from the tacit understanding that all were to act together under the subtle direction of a single interpreter of their common purposes, as evidenced in the minute reports of what they had done and in their expressed purposes as to what they intended to do.
In the presence of this record it is futile to argue that the purpose of the “ Plan ” was simply to furnish those engaged in this industry, with widely scattered units, the equivalent of such information as is contained in the newspaper and government publications with respect to the market for commodities sold on boards of trade or stock exchanges. One distinguishing and sufficient difference is that the published reports go to both seller and buyer, but these reports go to the seller only; and another is that there is no skilled interpreter of the published reports, such as we have in this case, to insistently recommend harmony of action likely to prove profitable in proportion as it is unitedly pursued.
Convinced, as we are, that the purpose and effect of the activities of the “ Open Competition Plan,” here
412
OCTOBER TERM, 1921.
Holmes, J., dissenting.
257 U.S.
under discussion, were to restrict competition and thereby restrain interstate commerce in the manufacture and sale of hardwood lumber by concerted action in curtailing production and in increasing prices, we agree with the District Court that it constituted a combination and conspiracy in restraint of interstate commerce within the meaning of the Anti-Trust Act of 1890 (26 Stat. 209) and the decree of that court must be
Affirmed.
Mr. Justice Holmes, dissenting.
When there are competing sellers of a class of goods, knowledge of the total stock on hand, of the probable total demand, and of the prices paid, of course will tend to equalize the prices asked. But I should have supposed that the Sherman Act did not set itself against knowledge-—did not aim at a transitory cheapness unprofitable to the community as a whole because not corresponding to the actual conditions of the country. I should have thought that the ideal of commerce was an intelligent interchange made with full knowledge of the facts as a basis for a forecast of the future on both sides. A combination to get and distribute such knowledge, notwithstanding its tendency to equalize, not necessarily to raise, prices, is very far from a combination in unreasonable restraint of trade. It is true that it is a combination of sellers only, but the knowledge acquired is not secret, it is public, and the buyers, I think I may assume, are not less active in their efforts to know the facts. A combination in unreasonable restraint of trade imports an attempt to override normal market conditions. An attempt to conform to them seems to me the most reasonable thing in the world. I see nothing in the conduct of the appellants that binds the members even by merely social sanctions to anything that would not be practised, if we could imagine it, by an allwise socialistic government acting for the benefit
AMERICAN COLUMN CO. v. UNITED STATES. 413
377.	Brandéis and McKenna, JJ., dissenting.
of the communty as a whole. The parties to the combination are free to do as they will.
I must add that the decree as it stands seems to me surprising in a country of free speech that affects to regard education and knowledge as desirable. It prohibits the distribution of stock, production, or sales reports, the discussion of prices at association meetings, and the exchange of predictions of high prices. It is true that these acts are the main evidence of the supposed conspiracy, but that to my mind only shows the weakness of the Government’s case. I cannot believe that the fact, if it be assumed, that the acts have been done with a sinister purpose, justifies excluding mills in the backwoods from information, in order to enable centralized purchasers to take advantage of their ignorance of the facts.
I agree with the more elaborate discussion of the case by my brother Brandéis.
Mr. Justice Brandéis dissenting, with whom Mr. Justice McKenna concurs.
There are more than 9,000 hardwood lumber mills in that part of the United States which lies east of a line extending from Minnesota to Texas. Three hundred and sixty-five concerns—each separate and independent—are members of an association by means of which they cooperate under the so-called “ Open Competition Plan.” Their mills—about 470 in number—are located in eighteen States. Their aggregate production is about thirty per cent, of the total production of hardwood in the United States. The question presented for our decision is whether the “ Open Competition Plan ” either inherently or as practiced by these concerns violates the Sherman Law. The Plan provides for cooperation in collecting and distributing information concerning the business of members and generally in regard to the trade. .^That in adopting the Plan the members formed a combination
414
OCTOBER TERM, 1921.
Brandéis and McKenna, JJ., dissenting.
257 U. S.
in trade is clear. Cooperation implies combination. And this combination confessedly relates to interstate trade. It is also clear that a plan for cooperation, although itself innocent, may be made an instrument by which illegal restraint is practiced. But the decree below should, in my opinion, be reversed, because the Plan is not inherently a restraint of trade, and the record is barren of evidence to support a finding that it has been used, or was intended to be used, as an instrument to restrain trade.
Restraint of trade may be exerted upon rivals; upon buyers or upon sellers; upon employers or upon employed. Restraint may be exerted through force or fraud or agreement. It may be exerted through moral or through legal obligations; through fear or through hope. It may exist although it is not manifested in any overt act, and even though there is no intent to restrain. Words of advice seemingly innocent and perhaps benevolent, may restrain, when uttered under circumstances that make advice equivalent to command. For the essence of restraint is power; and power may arise merely out of position. Wherever a dominant position has been attained, restraint necessarily arises. And when dominance is attained, or is sought, through combination—however good the motives or the manners of those participating—the Sherman Law is violated; provided, of course, that the restraint be what is called unreasonable.
In the case before us there was clearly no coercion. There is no claim that a monopoly was sought or created. There is no claim that a division of territory was planned or secured. There is no claim that uniform prices were established or desired. There is no claim that by agreement, force, or fraud, any producer, dealer or consumer was to be or has in fact been controlled or coerced. The Plan is a voluntary system for collecting from these independent concerns detailed information concerning the business operations of each, and its opinions as to trade
AMERICAN COLUMN CO. v. UNITED STATES. 415
377.	Brandeis and McKenna, JJ., dissenting.
conditions, prospects and policy; and of collating, interpreting, and distributing the data so received among the members of the association and others. No information gathered under the Plan was kept secret from any producer, any buyer or the public. Ever since its inception in 1917, a copy of every report made and of every market letter published has been filed with the Department of Justice, and with the Federal Trade Commission. The district meetings were open to the public. Dealers and consumers were invited to participate in the discussions and to some extent have done so.
It is claimed that the purpose of the “ Open Competition Plan ” was to lessen competition. Competition among members was contemplated and was in vigorous operation. The Sherman Law does not prohibit every lessening of competition; and it certainly does not command that competition shall be pursued blindly, that business rivals shall remain ignorant of trade facts or be denied aid in weighing their significance. It is lawful to regulate competition in some degree. Chicago Board of Trade v. United States, 246 U. S. 231. But it was neither the aim of the Plan, nor the practice under it, to regulate competition in any way. Its purpose was to make rational competition possible by supplying data not otherwise available and without which most of those engaged in the trade would be unable to trade intelligently.
The hardwood lumber mills are widely scattered. The principal area of production is the Southern States. But there are mills in Minnesota, New York, New England and the Middle States. Most plants are located near the sources of supply; isolated, remote from the larger cities and from the principal markets. No official, or other public, means have been established for collecting from these mills and from dealers data as to current production, stocks on hand and market prices. Concerning grain, cotton, coal and oil, the Government collects and
416	OCTOBER TERM, 1921.
Brandeis and McKenna, JJ., dissenting. 257 U. S. publishes regularly, at frequent intervals, current information on production, consumption and stocks on hand; and boards of trade furnish freely to the public details of current market prices of those commodities, the volume of sales, and even individual sales, as recorded in daily transactions. Persons interested in such commodities are enabled through this information to deal with one another on an equal footing. The absence of such information in the hardwood lumber trade enables dealers in the large centres more readily to secure advantage over the isolated producer. And the large concerns, which are able to establish their own bureaus of statistics, secure an advantage over smaller concerns. Surely it is not against the public interest to distribute knowledge of trade facts, however detailed. Nor are the other features of the Plan—the market letters and the regional conferences, an unreasonable interference with freedom in trade. Intelligent conduct of business implies not only knowledge of trade facts, but an understanding of them. To this understanding editorial comment and free discussion by those engaged in the business and by others interested are aids. Opinions expressed may be unsound; predictions may be unfounded; but there is nothing in the Sherman Law which should limit freedom of discussion, even among traders.
It is insisted that there was a purpose to curtail production. No evidence of any such purpose was introduced. There was at no time uniformity in the percentage of production to capacity. On the contrary the evidence is uncontradicted that the high prices induced strenuous efforts to increase production. Weather and labor conditions had made production difficult. Tractors were purchased at great cost to get the logs out of the forests which excessive rains had rendered inaccessible to the usual methods of transport. The current sales of new machinery to hardwood lumber mills were on an unprece-
AMERICAN COLUMN CO. v. UNITED STATES. 417
377.	Brandeis and McKenna, JJ., dissenting.
dented scale. Where equipment and supply of logs permitted, mills were run at night to overcome the restrictions upon production which the bad weather had imposed. There were, it is true, from time to time, warnings in the “Market Letters” and otherwise, against overproduction—warnings which seem not to have been heeded. But surely Congress did not intend by the Sherman Act to prohibit self-restraint—and it was for selfrestraint that the only appeal was made. The purpose of the warnings was to induce mill owners to curb their greed—lest both they and others suffer from the crushing evils of overproduction. Such warning or advice whether given by individuals or the representatives of an association presents no element of illegality.
It is urged that this was a concerted effort to enhance prices. There was at no time uniformity in prices. So far as appears every mill charged for its product as much as it could get. There is evidence that the hardwood mills expected, by adopting the Plan, to earn more in profits; and to do so, at least in part, by getting higher prices for their product. It may be that the distribution of the trade data, the editorial comment and the conferences enabled the producers to obtain, on the average, higher prices than would otherwise have been possible. But there is nothing in the Sherman Law to indicate that Congress intended to condemn cooperative action in the exchange of information, merely because prophecy resulting from comment on the data collected may lead, for a period, to higher market prices. Congress assumed that the desire to acquire and to enjoy property is the safest and most promising basis for society. And to that end it sought, among other things, to protect the pursuit of business for private profit. Its purpose, obviously, was not to prevent the making of profits or to counteract the operation of the law of supply and demand. Its purpose was merely to prevent restraint. The illegality of a com-
418
OCTOBER TERM, 1921.
Brandéis and McKenna, J J., dissenting.
257 U. S.
bination under the Sherman Law lies not in its effect upon the price level, but in the coercion thereby effected. It is the limitation of freedom, by agreements which narrow a market, as in Addyston Pipe de Steel Co. v. United States, 175 U. S. 211, and Montague & Co. v. Lowry, 193 U. S. 38, or by organized boycott, as in Loewe v. Lawlor, 208 U. S. 274, and Eastern States Retail Lumber Dealers’ Association v. United States, 234 U. S. 600, or by the coercive power of rebates, as in Thomsen v. Cayser, 243 U. S. 66, which constitutes the unlawful restraint.
The cooperation which is incident to this Plan does not suppress competition. On the contrary it tends to promote all in competition which is desirable. By substituting knowledge for ignorance, rumor, guess and suspicion, it tends also to substitute research and reasoning for gambling and piracy, without closing the door fo adventure or lessening the value of prophetic wisdom. In making such knowledge available to the smallest concern it creates among producers equality of opportunity. In making it available also to purchasers and the general public, it does all that can actually be done to protect the community from extortion. If, as is alleged, the Plan tends to substitute stability in prices for violent fluctuations, its influence, in this respect, is not against the public interest. The evidence in this case, far from establishing an illegal restraint of trade, presents, in my opinion, an instance of commendable effort by concerns engaged in a chaotic industry to make possible its intelligent conduct under competitive conditions.
The refusal to permit a multitude of small rivals to cooperate, as they have done here, in order to protect themselves and the public from the chaos and havoc wrought in their trade by ignorance, may result in suppressing competition in the hardwood industry. These keen business rivals, who sought through cooperative exchange of trade information to create conditions under which alone ra-
THE WESTERN MAID.	419
377.	Syllabus.
tional competition is possible, produce in the aggregate about one-third of the hardwood lumber of the country. This court held in United States v. United States Steel Corporation, 251 U. S. 417, that it was not unlawful to vest in a single corporation control of 50 per cent, of the steel industry of the country; and in United States v. United Shoe Machinery Co., 247 U. S. 32, the court held that it was not unlawful to vest in a single corporation control of practically the whole shoe machinery industry. May not these hardwood lumber concerns, frustrated in their efforts to rationalize competition, be led to enter the inviting field of consolidation? And if they do, may not another huge trust with highly centralized control over vast resources, natural, manufacturing and financial, become so powerful as to dominate competitors, wholesalers, retailers, consumers, employees and, in large measure, the community?
EX PARTE IN THE MATTER OF THE UNITED STATES, OWNER OF THE AMERICAN STEAMSHIP “ WESTERN MAID,” PETITIONER.
EX PARTE IN THE MATTER OF THE UNITED STATES, FORMER REQUISITIONED OR CHARTERED OWNER OF THE AUXILIARY SCHOONER “ LIBERTY,” PETITIONER.
EX PARTE IN THE MATTER OF THE UNITED STATES, FORMER REQUISITIONED AND CHARTERED OWNER OF THE AMERICAN STEAMSHIP “ CAROLINIAN,” PETITIONER.
PETITIONS FOR WRITS OF PROHIBITION AND/OR MANDAMUS.
Nos. 21, 22, 23, Original. Argued December 12, 13, 1921.—Decided January 3, 1922.
1.	Neither upon general principle nor under § 9 of the Shipping Act of September 7, 1916, or § 4 of the “ Suits in Admiralty ” Act 6267°—22-----32
420
OCTOBER TERM, 1921.
Syllabus.
257 U.S.
of March 9, 1920,1 is the United States Hable for a collision committed by a vessel while owned by it absolutely or pro hac vice and employed by it in public and government purposes. P. 431.
2.	Held, that a vessel owned by the United States, assigned by the United States ’ Shipping Board to the War Department, manned by a navy crew and engaged in transporting foodstuffs provided by the Government for the relief of the civilian population of Europe after the Great War, to be paid for by the buyer, was not a merchant vessel but a vessel engaged in a public service; and that two others, while let or chartered to the United States on a bare-boat basis and devoted to military and naval uses were also of public status. P. 431.
1 Pertinent parts of the statutes above mentioned are as follows:
C. 451, § 9, 39 Stat. 730. “ That any vessel purchased, chartered, or leased from the [United States Shipping] board may be registered or enrolled and licensed, or both registered and enrolled and licensed, as a vessel of the United States and entitled to the benefits and privileges appertaining thereto. . . .
“ Every vessel purchased, chartered, or leased from the board shall, unless otherwise authorized by the board, be operated only under such registry or enrollment and license. Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations, and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole or in part, or hold any mortgage, lien, or other interest therein. No such vessel, without the approval of the board, shall be transferred to a foreign registry or flag, or sold; nor, except under regulations prescribed by the board, be chartered or leased. ...”
C. 95, § 4, 41 Stat. 525, 526. “ That if a privately owned vessel not in the possession of the United States or of such [United States Shipping Board Emergency Fleet] corporation is arrested or attached upon any cause of action arising or alleged to have arisen from previous possession, ownership, or operation of such vessel by the United States or by'such corporation, such vessel shall be released without bond or stipulation therefor upon the suggestion by the United States, through its Attorney General or other duly authorized law officer, that it is interested in such cause, desires such release, and assumes the liability for the satisfaction of any decree obtained by the libelant in such cause, and thereafter such cause shall proceed against the United States in accordance with the provisions of this Act.”
THE WESTERN MAID.	421
419.	Argument for the United States.
3.	The maritime law is part of the law of the country only in so far as the United States has made it so, and binds the United States only in so far as the United States has consented. P. 432.
4.	The United States has not consented to be sued for torts and therefore it cannot be said that, in a legal sense, the United States has been guilty of a tort. P. 433.
5.	This immunity extends to public vessels of the United States, at least while employed in operations of government; and liability for a tort cannot be fastened upon them by the fiction of a ship’s personality, to lie dormant while they remain with the Government and to become enforceable when they pass into other hands. P. 433. The Siren, 7 Wall. 152, and Workman v. New York City, 179 U. S. 552, distinguished.
6.	Prohibition lies to restrain the District Court from exceeding its jurisdiction in admiralty cases. P. 434.
Rule absolute for writs of prohibition.
Petitions by the United States for writs of prohibition and mandamus to prevent District Courts from exercising jurisdiction in three proceedings in rem for collisions that occurred while the vessels libeled were owned absolutely or pro hac vice by the United States and employed in the public service.
Mr. Solicitor General Beck, with whom Mr. Assistant Attorney General Ottinger and Mr. J. Frank Staley, Special Assistant to the Attorney General, were on the brief, for the United States.
The vessels were all of distinctively public status when the collisions occurred.
Section 9 of the Shipping Act has not waived the immunity of the United States or its vessels from suits in rem for losses arising while they are employed in the war service. Both the collision loss and the enforcement of the claim against the vessel must occur while the government vessel is employed solely as a merchant vessel, and then is operating for the account of others than the Government, under charter or lease.
The filing of suggestions under § 4 of the Suits in Admiralty Act only determines the United States as
422
OCTOBER TERM, 1921.
Argument for the United States.
257 U.S.
claimant for the vessel and substitutes its credit for the payment of the decree finally entered, if any, instead of the usual bond or stipulation for value otherwise entered to secure the release of a vessel from attachment. The proceedings continue as proceedings in rem. Manifestly, if the libel does not state a cause of action, in rem against the vessel, this section can not create one.
Unless there is some magic in such public vessels’ personification, the Government can not be held for these torts. There is no distinction between the Government and its property. There should be no relief by indirection where Congress has not provided relief directly. Bigby v. United States, 188 U. S. 400, 408; Langford v. United States, 101 U. S. 341, 344; Gibbons v. United States, 8 Wall. 269, 274. Public vessels are part of the sovereign State and their liabilities are merged in those of the sovereign. United States v. Ansonia Brass Co., 218 U. S. 452; Board of Commissioners v. O’Connor, 86 Ind. 531, 537; Rowley v. Conklin, 89 Minn. 172; The Fidelity, 16 Blatchf. 569, 572, 573 ; The Parlement Beige, 4 Asp. M. C. 234, 237, 241 ; The Prins Frederik, 2 Dods. 451.
The law merchant personified the commercial ship not a public ship. Commercial vessels are sent in trade to all ports. Their owners are usually inaccessible for purposes of suit, and their personal responsibilities are uncertain. The necessities of the vessel’s operation in merchant service demand that the vessel, the res, shall be responsible for her torts and contracts. The basis of the law governing merchant vessels is aid of commerce. Vande-water v. Mills, 19 How. 82; United States v. Brig Malek Adhel, 2 How. 210; The China, 7 Wall. 53; The Eugene F. Moran, 212 U. S. 466; The Young Mechanic, 2 Curtis, 404; Holmes, The Common Law, p. 25; Mayer’s Admiralty Law and Practice, p. 8. The reason and the origin of the rule show that it cannot apply to public ships engaged in war service. Cf. Ex parte New York, No. 1, 256 U. S. 490.
THE WESTERN MAID.	423
419.	Argument for Respondent.
Sovereign immunity includes immunity from lien liability as well as from process. Ex parte Muir, 254 U. S. 522; Ex parte Hussein Lutfi Bey, 256 U. S. 616; Ex parte New York, No. 1, 256 U. S. 490; Ex parte New York, No. 2, 256 U. S. 503; The Davis, 10 Wall. 15; The Tampico, 16 Fed. 491; Johnson Lighterage Co., 231 Fed. 365; The Rock Island Bridge, 6 Wall. 213; Kawananakoa v. Polyblank, 205 U. S. 349; Riddoch v. State, 68 Wash. 329; 32 Harv. Law Rev. 447 ; 30 Harv. Law Rev. 20. The Siren, 7 Wall. 152, and Workman v. New York City, 179 U. S. 552, distinguished. Cf. Carr v. United States, 98 U. S. 433, 439.
Mr. T. Catesby Jones, with whom Mr. James W. Ryan was on the brief, for respondent in No. 21, Original.
The Western Maid was a merchant vessel at the time of the collision. The sale of foodstuffs to enemy aliens is not a necessary function of the sovereign. Indeed, the Act of February 25, 1919, 40 Stat. 1161, indicates the opinion of Congress that it was unwise for the Government to engage in trade with enemy populations. It is doubtful whether it is constitutional for the Government to engage in transporting foodstuffs to be offered for sale at destination. United States v. Strang, 254 U. S. 491; United States Shipping Board v. Wood, 274 Fed. 893.
The collision took place two months after the armistice. Under such circumstances, the vessel could in no event be called a vessel engaged in a military operation. The Government has the burden of proof to establish that she was a public vessel engaged in a military operation. Ex parte Muir, 254 U. S. 522; In re Jupp, 274 Fed. 494, 485.
Even if it were a fact that no freight was to be paid for the carriage, this circumstance would not affect the case. It was intended that her cargo was to be sold to the civilian population of Europe.
There is no suggestion that the vessel was commissioned. The Exchange, 7 Cr. 116. On the contrary, the
424
OCTOBER TERM, 1921.
Argument for Respondent.
257 U.S.
record shows that she was registered as a merchant ship, and it is to be inferred that she was operating under this registry. Rev. Stats. §§ 4170, 4171; Navigation Laws of the United States, 1919, p. 41.
Congress, by the Suits in Admiralty Act of 1920, has waived immunity as to merchant vessels. In effect this is a suit under that act.
If we assume that the Western Maid was a public vessel at the time of the collision, nevertheless a claim in favor of the libelant was created against her at that time, which could be enforced in rem. The Siren, 7 Wall. 152; 13 Wall. 389. The Government contends that the language in 7 Wall. 155, 156, 158, is a dictum. When the members of this court, in face of a single dissent, make a doctrine one of the principle grounds for the court’s decision, such a doctrine can hardly be called a dictum. The Government suggests that, because the Siren was a prize, the case is distinguishable. This conclusion does not follow. See Lord, Admiralty Claims, 19 Col. Law Rev. 477.
As we view the case, The Siren was a decision directly in point. The proposition relied upon by Mr. Justice Nelson as a ground for his dissent (7 Wall. 165), viz, that, if an owner of an offending vessel is not liable, it follows that there can be no lien, is contrary to the decisions in The China, 7 Wall. 53; Ralli v. Troop, 157 U. S. 386; The Blackheath, 195 Ü. S. 361; Tucker v. Alexandroff, 183 U. S. 424; The Palmyra, 12 Wheat. 1; Brig Malek Adhel, 2 How. 210; The John G. Stevens, 170 U. S. 122; and The Barnstable, 181 U. S. 464, 467.
Liability in rem is entirely independent of liability in personam. Homer Ramsdell Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406.
Because of the difference between the American and English conceptions of the liability of a ship, the English authorities are not in point. The Davis, 10 Wall.
THE WESTERN MAID.	425
419.	Argument for Respondent.
15; The Carlo Poma, 259 Fed. 369. But even in England it is settled, as was said in Workman v. New York City, 179 U. S. 552, that a collision impresses a liability on a public vessel which becomes enforcible when the crown waives the immunity of the public vessel. The Ticonderoga, 1 Swab. Adm. Rep. 215; Fletcher v. Braddick, 2 Bos. & P. 182.
In Ex parte New York, No. 1, 256 U. S. 490, this court said that the Workman Case dealt with a question of the substantive law of admiralty, not the power to exercise jurisdiction over the person of the defendant.
The doctrine of The Davis and The Siren has long been familiar to the federal courts. The Tampico, 16 Fed. 491; Thompson Navigation Co. v. Chicago, 79 Fed. 984; Johnson Lighterage Co., 231 Fed. 365; The Attualita, 238 Fed. 909; The Luigi, 230 Fed. 493; The Othello, 5 Blatchf. 343.
The Fidelity, 16 Blatchf. 569, was disapproved in Thompson Navigation Co. v. Chicago, 79 Fed. 984, and, so far as its dictum indicated a departure from the doctrine of The Siren and The Davis, was expressly disapproved in Workman v. New York City, 179 U. S. 552, and in The Ceylon Maru, 266 Fed. 396. See also The U. S. S. Hisko, U. S. S. Roanoke and U. S. S. Pocahontas, S. D. N. Y., March 17, 1921, Manton, J., (unreported); The U. S. S. Newark, S. D. N. Y., March 18, 1921, Knox, J., (unreported); The U. S. S. Sixaola, S. D. N. Y., April 21, 1921, Mayer, J., (unreported); The F. J. Luckenbach, 267 Fed. 931; The Liberty (unreported), now before this court; The Carolinian, 270 Fed. 1011. And see The Florence H, 248 Fed. 1012; The Gloria, 267 Fed. 929; The City of Philadelphia, 263 Fed. 234; United States v. Wilder, 3 Sumner, 308, 312.
The principle that the maritime law extends to public vessels has been recognized by Congress. Act of August 19, 1890, c. 802, 26 Stat. 320; Rev. Stats., § 4233; The
426
OCTOBER TERM, 1921.
Argument for Respondent.
257 U. S.
Esparta, 160 Fed. 269; The A. A. Raven, 231 Fed. 380. Cf. Admiralty v. 5. 8. Eleanor, VI Lloyd’s List Law Rep. 456.
It cannot be said that the liability arises from the act of the Government in waiving its immunity from suit. It existed before this suit; otherwise there could be no cause of action on which to base the suit. United States v. Ringgold, 8 Pet. 162; United States n. Lee, 106 U. S. 196, 206; Lord, Admiralty Claims, 19 Col. Law Rev. 477; Hearings, Senate Committee on Commerce, 66th Cong., 1st sess., on S. 2253, p. 18.
Kawananakoa v. Poly blank, 205 U. S. 349, 353, was not a suit in admiralty and the facts were wholly different from those in this case. It was not there intended to modify the doctrine of The Siren, The Davis, and of the Ringgold Case, supra.
Mr. Edward E. Blodgett, with whom Mr. Foye M. Murphy was on the brief, for respondent in No. 22, Original.
The burden of proving immunity from the lien is upon the petitioner. The Tampico, 16 Fed. 491.
The Liberty was subject to a maritime lien arising out of this collision. The Bold Buccleugh, 7 Moore P. C. 267; The China, 7 Wall. 53; Ralli v. Troop, 157 U. S. 386; Briggs v. Light Boat, 7 Allen, 287; The John G. Stevens, 170 U. S. 113; Holmes, The Common Law, pp. 26-34; The Little Charles, 1 Brock. 347; The Palmyra, 12 Wheat. 1; United States v. Brig Malek Adhel, 2 How. 210; The John Fraser, 21 How. 184; The Merrimac, 14 Wall. 199; The Clarita, 23 Wall. 1; The Barnstable, 181 U. S. 464; The Luigi, 230 Fed. 493; Johnson Lighterage Co., 231 Fed. 365.
The lien arises though the vessel be owned, manned and operated by a sovereign for war purposes. United States v. Wilder, 3 Sumner, 308; The Davis, 10 Wall. 15;
THE WESTERN MAID.	427
419.	Argument for Respondent.
The Siren, 7 Wall. 152; Workman v. New York City, 179 U. S. 552; The Florence H, 248 Fed. 1012; The Gloria, 267 Fed. 929; The F. J. Luckenbach, 267 Fed. 931; The City of Philadelphia, 263 Fed. 234.
The property of a sovereign is not immune from preexisting maritime liens. Briggs v. Light Boat, supra; United States v. Wilder, supra; The St. Jago de Cuba, 9 Wheat. 416; The Copenhagen, 1 C. Rob. Adm. 289.
The petitioner by the Act of March 9, 1920, has impliedly admitted that a lien may be created upon vessels owned or operated by it.
In England, technical immunity attaches to all property owned by the crown, irrespective of whether or not it is in possession of the sovereign. The Broadmayne, L. R. [1916] P. D. 64; The Scotia, [1903] A. C. 501. But the Lords Commissioners of the Admiralty represent the crown, and have a discretionary power, freely exercised, to waive the privileges of the crown and consent to jurisdiction. The Fidelity, 16 Blatchf. 569; United States v. New York & Oriental S. S. Co., 216 Fed. 61 ; Thompson Navigation Co. v. Chicago, 79 Fed. 984; United States v. Lee, 106 U. S. 196, 208; Homer Ramsdell Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406. Furthermore, the personification of the res is not carried so far in England as in the United States. In the former the procedure in rem is used merely as a means to compel the appearance of the respondent, and judgment runs against the individual,—the seizure of the res is incidental. The Parlement Belge, 5 P. D. 197.
Mr. Charles S. Haight, with whom Mr. Wharton Poor was on the brief, for respondent in No. 23, Original.
The case of The Carolinian is materially different from that of The Western Maid and other cases, where at the time of the collision title to the ship was in the Government.
428	OCTOBER TERM, 1921.
Argument for Respondent.	257 U. S.
The officers in command of The Carolinian when this collision occurred, while imposed upon the ship by the authority of the Government under the Act of June 15, 1917, occupied no different position from the compulsory pilot imposed upon The China. (7 Wall. 53.) The John G. Stevens, 170 U. S. 113; Tucker v. Alexandroff, 183 U. S. 424; Workman v. New York City, 179 U. S. 552.
The decisions show that in order to sustain a suit in rem for collision only two conditions need exist: (1) Fault on the part of the navigators, and (2) the ability of the court to execute its process by seizure.
The attributes of sovereignty do not inure to the benefit of private individuals. Moran v. Horsky, 178 U. S. 205.
That a national war vessel may be held in fault for a collision due to the negligence of her officers and crew was directly decided in The Sapphire, 11 Wall. 164.
Even if, at the time of the collision, The Carolinian had been owned by the United States, an inchoate lien would nevertheless have been created which could be enforced in the present suit. The Florence H, 248 Fed. 1012; The F. J. Luckenbach, 267 Fed. 931; The Gloria, 267 Fed. 929; The Ceylon Maru, 266 Fed. 396; Johnson Lighterage Co., 231 Fed. 365; The Tampico, 16 Fed. 491; United States v. Wilder, 3 Sumner, 308; The City of Phila-* delphia, 263 Fed. 234; The Siren, 7 Wall. 152; The Davis, 10 Wall. 15; Workman v. New York City, 179 U. S. 552.
The only basis on which the exemption of government property from such a lien can be rested is the mediaeval doctrine of “ prerogative,” which forms no part of our jurisprudence. Dollar Savings Bank v. United States, 19 Wall. 227; United States v. Wilder, supra.
Nor is there any principle of public policy which prevents the creation of a maritime lien against a public vessel owned by the United States. When the privately owned vessel is at fault, the United States collects its damages from the ship or her owners, and it is only fair
THE WESTERN MAID.	429
419.	Opinion of the Court.
that a private owner should have a like right when the government ship is to blame. Congress has recognized this principle of equality by making the statutory rules for preventing collisions at sea binding upon public ships as well as private, 26 Stat. 320 ; 28 Stat. 645 ; 2 Fed. Stat. Ann., 2d ed., 376, 402, 449. If a merchant ship and a war ship are equally at fault, the damages are divided. The Sapphire, supra.
The justice of paying claims arising out of collisions for which public vessels were at fault has always been recognized by Congress through many special acts allowing claims.
The doctrine of the immunity of the sovereign from suit—to which so many exceptions have been made by statute as almost do away with the rule—is based not upon principle but upon precedent. United States v. Lee, 106 U. S. 196, 206; United States v. Emery Bird Thayer Realty Co., 237 U. S. 28, 32. This is evidenced by the practical relief from it in collision cases afforded in England, France, Germany, and in the State of New York.
The Act of March 9, 1920, is an express recognition by Congress that a maritime lien may exist against a public vessel even though used solely for governmental purposes, and as the United States has secured the release of The Carolinian under this act it cannot now contend that the court is without jurisdiction.
Mr. Justice Holmes delivered the opinion of the court.
These are petitions for prohibition to prevent District Courts of the United States from exercising jurisdiction of proceedings in rem for collisions that occurred while the vessels libeled were owned, absolutely or pro hac vice, by the United States, and employed in the public service. The questions arising in the three cases are so nearly the same that they can be dealt with together.
430
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
The Western Maid was and is the property of the United States. On January 10,1919, she was allocated by the United States Shipping Board to the War Department for service as a transport. She had been loaded with foodstuffs for the relief of the civilian population of Europe, to be delivered on arrival at Falmouth, England, to the order of the Food Administration Grain Corporation, the consignor, American Embassy, London, care of the Chief Quartermaster, American Expeditionary Forces, France; subject to the direction of Mr. Hoover. If it should prove impracticable to reship or redirect to the territories lately held by the Central Empires, Mr. Hoover was to resell to the Allied Governments or to the Belgian Relief; the foodstuffs to be paid for by the buyer. The vessel was manned by a navy crew. Later on the same day, January 10, 1919, in New York harbor, the collision occurred. On March 20, 1919, the vessel was delivered to the United States Shipping Board. The libel was filed on November 8, 1919. Act of September 7, 1916, c. 451, § 9, 39 Stat. 728, 730. The Lake Monroe, 250 U. S. 246. On February 20, 1920, the Government moved that it be dismissed for want of jurisdiction. The District Court overruled the motion. On April 11, 1921, the Attorney General moved for leave to file the present petition in this Court. Leave was granted and the case has been heard.
The Liberty was a pilot boat let to the United States on the bare-boat basis at a nominal rate of hire. She had been manned by a crew from the United States Navy and commissioned as a naval dispatch boat, and was employed to serve military needs in war service. The collision took place on December 24,1917, while she was so employed, in Boston Harbor. Afterwards the vessel was redelivered to the owners and still later, on February 5, 1921, the suit now in question was brought against her. On February 14, under the Act of March 9,1920, c. 95, § 4, 41 Stat. 525,
THE WESTERN MAID.	431
419.	Opinion of the Court.
the United States filed a suggestion of its interest, and also set up the above facts. The District Court held that they constituted no defence and this petition was brought by the Attorney General along with that last mentioned.
The Steamship Carolinian had been chartered to the United States upon a bare-boat charter and had been assigned to the War Department, by which she was employed as an army transport and furnished with an army crew. While she was so employed the collision took place in the harbor of Brest, France, on February 15, 1918. Afterwards the Carolinian was returned to the owners, and she was employed solely as a merchant vessel on July 9, 1920, when the suit in question was begun, under which the vessel was seized. In the same month the United States filed a suggestion of interest, and on January 6, 1921, set up the foregoing facts and prayed that the libel be dismissed. The District Court maintained its jurisdiction and this petition was brought by the Attorney General along with the other two. 270 Fed. 1011.
It may be assumed that each of these vessels might have been libeled for maritime torts committed after the redelivery that we have mentioned. But the Act of September 7, 1916, c. 451, § 9, does not create a liability on the part of the United States, retrospectively, where one did not exist before. Neither, in our opinion, is such a liability created by the Act of March 9, 1920, c. 95, § 4, authorizing the United States to assume the defence in suits like these. It is not required to abandon any defence that otherwise would be good. It appears to us plain that before the passage of these acts neither the United States nor the vessels in the hands of the United States were liable to be sued for these alleged maritime torts. The Liberty and the Carolinian were employed for public and government purposes, and were owned pro hac vice by the United States. It is suggested that the Western Maid was a merchant vessel at the time of the
432
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
collision, but the fact that the food was to be paid for and the other details adverted to in argument cannot disguise the obvious truth, that she was engaged in a public service that was one of the constituents of our activity in the war and its sequel and that had no more to do with ordinary merchandizing than if she had carried a regiment of troops. The only question really open to debate is whether a liability attached to the ships which although dormant while the United States was in possession became enforcible as soon as the vessels came into hands that could be sued.
In deciding this question we must realize that however ancient may be the traditions of maritime law, however diverse the sources from which it has been drawn, it derives its whole and only power in this country from its having been accepted and adopted by the United States. There is no mystic over-law to which even the United States must bow. When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules. The Lottawanna, 21 Wall. 558, 571, 572. Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, 58, 59. Dicey, Conflict of Laws, 2d ed., 6, 7. Also we must realize that the authority that makes the law is itself superior to it, and that if it consents to apply to itself the rules that it applies to others the consent is free and may be withheld. The sovereign does not create justice in an ethical sense, to be sure, and there may be cases in which it would not dare to deny that justice for fear of war or revolution. Sovereignty is a question of power, and no human power is unlimited. Carino v. Insular Government of the Philippine Islands, 212 U. S. 449, 458. But from the necessary point of view of the sovereign and its organs whatever is enforced by it as law is enforced as the
THE WESTERN MAID.	433
419.	Opinion of the Court.
expression of its will. Kawananakoa v. Polyblank, 205 U. S. 349, 353.
The United States has not consented to be sued for torts, and therefore it cannot be said that in a legal sense the United States has been guilty of a tort. For a tort is a tort in a legal sense only because the law has made it so. If then we imagine the sovereign power announcing the system of its laws in a single voice it is hard to conceive it as declaring that while it does not recognize the possibility of its acts being a legal wrong and while its immunity from such an imputation of course extends to its property, at least when employed in carrying on the operations of the Government,—specifically appropriated to national objects, in the language of Buchanan v. Alexander, 4 How. 20,—yet if that property passes into other hands, perhaps of an innocent purchaser, it may be seized upon a claim that had no existence before. It may be said that the persons who actually did the act complained of may or might be sued and that the ship for this purpose is regarded as a person. But that is a fiction not a fact and as a fiction is the creation of the law. It would be a a strange thing if the law created a fiction to accomplish the result supposed. It is totally immaterial that in dealing with private wrongs the fiction, however originated, is in force. See Liverpool, Brazil & River Plate Steam Navigation Co. v. Brooklyn Eastern District Terminal, 251 U. S. 48, 53. The personality of a public vessel is merged in that of the sovereign. The Fidelity, 16 Blatchf. 569, 573. Ex parte State of New York*, No. 2, 256 U. S. 503.
But it is said that the decisions have recognized that an obligation is created in the case before us. Legal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp. The leading authority relied upon is The Siren, 7 Wall. 152.
434	OCTOBER TERM, 1921.
McKenna, Day, and Clarke, JJ., dissenting. 257 U. S.
The ground of that decision was that when the United States came into court to enforce a claim it would be assumed to submit to just claims of third persons in respect of the same subject-matter. 7 Wall. 154. Carr v. United States, 98 U. S. 433, 438. In reaching its result the Court spoke of such claims as unenforcible liens, but that was little more than a mode of expressing the consent of the sovereign power to see full justice done in such circumstances. It would have been just as effective and more accurate to speak of the claims as ethical only, but recognized in the interest of justice when the sovereign came into court. They were treated in this way by Dr. Lushington in The Athol, 1 Wm. Rob. 374, 382. Further distinctions have been taken that need not be adverted to here. There was nothing decided in Workman v. New York City, 179 U. S. 552, that is contrary to our conclusion, which, on the other hand, is favored by The Fidelity, 16 Blatchf. 569, 573, and Ex parte State of New York, No. 1, 256 U. S. 490, and Ex parte State of New York, No. 2, 256 U. S. 503. The last cited decisions also show that a prohibition may be granted in a case like this. See The Ira M. Hedges, 218 U. S. 264, 270.
Rule absolute for writs of prohibition.
Mr. Justice McReynolds did not hear the argument in this case and took no part in the decision.
Mr. Justice McKenna, with whom concurred Mr. Justice Day and Mr. Justice Clarke, dissenting.
The question in the cases is without complexity, and the means of its solution ready at hand. The question is, What is the law applicable to colliding vessels and what remedy is to be applied to the offending one, if there be an offending one? The question, I venture to say, has unequivocal answer in a number of decisions of this court if they be taken at their word. And why should they
THE WESTERN MAID.	435
419. McKenna, Day, and Clarke, JJ., dissenting.
not be? That they have masqueraded in a double sense, cannot be assumed; that they have successively justified implications adverse to their meaning would be a matter of wonder.
What then do they express to be the law of colliding vessels, the assignment of offence, if offence there be, and how far is it dependent, if at all, upon whether the offender was in public or private service?
The answer may be immediate. This court has kept steadily in mind that the admiralty jurisprudence of the country, as adopted by the Constitution, has a distinctive individuality, and this court has felt the necessity of keeping its principles in definite integrity, and the remedies intact by which its principles can alone be realized. The most prominent and efficient of its remedies is that which subjects its instrumentalities, its ships particularly, to judgment. Personality is assigned to them and they are considered in pledge to indemnify any damage inflicted through them. They are made offenders and have the responsibility of offenders, and the remedy is suited to the purpose. In Rounds v. Cloverport Foundry & Machine Co., 237 U. S. 303, 306, it is said, Mr. Justice Hughes delivering the opinion of the court, “ The proceeding in rem which is within the exclusive jurisdiction of admiralty is one essentially against the vessel itself as the debtor or offending thing,—in which the vessel is itself ‘ seized and impleaded as the defendant, and is judged and sentenced accordingly.’ ”
In The John G. Stevens, 170 U. S. 113, 120, the court, through Mr. Justice Gray, declared, “ The foundation of the rule that collision gives to the party injured a jus in re in the offending ship is the principle of the maritime law that the ship, by whomsoever owned or navigated, is considered as herself the wrongdoer, liable for the tort, and subject to a maritime lien for the damages. This principle, as has been observed by careful text writers on both 6267°—22-------33
436
OCTOBER TERM, 1921.
McKenna, Day, and Clarke, JJ., dissenting. 257U.S. sides of the Atlantic, has been more clearly established, and more fully carried out, in this country than in England. Henry on Admiralty, §75, note; Marsden on Collisions (3d ed.) 93.” The case in many ways and by many citations fortifies and illustrates the principle.1
The Siren was cited and the fact is pertinent as we shall presently see. The China, 7 Wall. 53, was also cited and quoted from. The quotation was repeated in Ralli v. Troop, 157 U. S. 386, 402, 403, where it is said that the liability of a vessel is not derived from the authority or agency of those on board, either under the civil or common law, “ but upon a distinct principle of maritime law, namely, that the vessel, in whosesoever hands she lawfully is, is herself considered as the wrongdoer, liable for the tort, and subject to a maritime lien for the damages.”
In Tucker v. Alexandroff, 183 U. S. 424, 438, this court by Mr. Justice Brown gave graphic representation to the same principle. He described a ship prior to her launching as “ a mere congeries of wood and iron ” but after launching she took on a name, a personality of her own and had in a sense volition, became competent to contract and be contracted with, sue and be sued, could have agents of her own, was capable of committing a tort and was pledged to its reparation. Cases were cited, The Siren among others.
The doctrine thus explicitly announced is denied application in the pending cases and upon what grounds? As I understand, the contention is that a vessel has not independent guilt, that there must be fault in its owner or
1 General Mutual Insurance Co. v. Sherwood, 14 How. 351, 363; The Creole, 2 Wall. Jr. 485, 518; The Mayurka, 2 Curtis, 72, 77; The Young Mechanic, 2 Curtis, 404; The Kier sage, 2 Curtis, 421; The Yankee Blade, 19 How. 82, 89;77ie Rock Island Bridge, 6 Wall. 213, 215; The China, 7 Wall. 53, 68; The Siren, 7 Wall. 152, 155; The Lottawanna, 21 Wall. 558, 579; The J. E. Rumbell, 148 U. S. 1, 10,11, 20; The Glide, 167 U. S. 606.
THE WESTERN MAID.	437
419. McKenna, Day, and Clarke, JJ., dissenting.
operator, his fault becoming its fault. This has been said, but it puts out of view her character as bail and that the innocent victim of the injury she has inflicted shall not be remitted to the insufficient or evasive responsibility of persons but shall have the security of the tangible and available value of the thing. And this responsibility and fullness of indemnity we have seen it was declared in The John G. Stevens, supra, distinguished the law of this country from that of England.
But if the contention were conceded it would not determine these cases. I reject absolutely that because the Government is exempt from suit it cannot be accused of fault. Accountability for wrong is one thing, the wrong is another.
But I do not have to beat about in general reasoning. I may appeal to the authority of The Siren, 7 Wall. 152, and the cases that have approved and followed it. A gloss is attempted to be put upon it—which we think is unjustified and inaccurate unless indeed, it can be asserted that the writer of the opinion did not know the meaning of the words he used, and, that the members of the court who concurred with him, were equally deficient in understanding. And their insensibility to what the words conveyed had no excuse. A dissenting justice tried to bring their comprehensive import to understanding, proclaimed indeed, that the words had the extent and consequence that the court now says were not intended or accomplished.
The Siren, while in charge of a prize master and crew, having been taken in prize by the United States, ran into in the port of New York and sank the sloop Harper. The collision was regarded by the court as the fault of the Siren. She was condemned as prize and sold and the proceeds deposited with the Assistant Treasurer of the United States. The owners of the Harper asserted a claim upon her and her proceeds for the damages sus-
438	OCTOBER TERM, 1921.
McKenna, Day, and Clarke, JJ., dissenting. 257U.S. tamed by the collision. The District Court rejected the claim. Its action was reversed by this court.
The United States was an actor in the case and this was regarded by the court, who spoke by Mr. Justice Field, as removing the impediment to the claim of the owners of the Harper. It was not, however, the basis of recovery. There was no confusion in the language or conception of the learned Justice, nor in the court, of that. By becoming the actor, the United States, it was said, waived its exemption from direct suit and opened “to consideration all claims and equities in regard to the property libelled ”—not, of course, that the waiver of exemption created the “ claims and equities ”. They, it was explicitly said, were created against the offending vessel by the collision. “ In such case ”, the language was, “ the claim exists equally as if the vessel belonged to a private citizen, but for reasons of public policy, already stated, cannot be enforced by direct proceedings against the vessel.” And again, “ The inability to enforce the claim against the vessel is not inconsistent with its existence.”
The distinction was clearly made between exemption of the United States, the offence of the vessel and the existence of a claim against it in consequence of its offence. And the distinction was emphasized in the dissent of Mr. Justice Nelson. He was at pains to distinguish between liability to suit and legal liability for the act of* injury, the ground of suit. And the basis of his dissent was the same as the basis of the opinion of the court in the present cases, but not so epigrammatically expressed. In the opinion in these cases it is said that “ the United States has not consented to be sued for torts, and therefore it cannot be said that in a legal sense the United States has been guilty of a tort. For a tort is a tort in a legal sense only because the law has made it so.”
Mr. Justice Nelson was more discursive. He said that “ if the owner of the offending vessel [he regarded the Siren as owned by the United States] is not liable at all
THE WESTERN MAID.	439
419. McKenna, Day, and Clarke, JJ., dissenting.
for the collision, it follows, as a necessary legal consequence, that there can be no lien, otherwise the non-liability would amount to nothing.” And -again, “ If the government is not responsible, upon the principles of the common law, for wrongs committed by her officers or agents, then, whether the proceedings in the admiralty are against the vessel, or its proceeds, the court is bound to dismiss them.” And giving point to this view the learned Justice observed that “ no principle at common law is better settled than that the government is not liable for the wrongful acts of her public agents.”
I repeat, that in view of these extracts from Mr. Justice Nelson’s dissent, misapprehension of its opinion by the court is not conceivable nor carelessness of utterance. Yet the opinion in the present cases practically so asserts and, in effect, regards Mr. Justice Nelson’s dissent as the law of the Siren and not that which the court pronounced. The court decided that the vessel was the offending thing, and though it could not be reached in the hands of the Government, this “ inability to enforce the claim against the vessel ” was “ not inconsistent with its existence.”
The inevitable deduction is that in such situation the enforcement of a claim is suspended only, and when the vessel passes from the hands of the Government, as the offending vessels have in the cases at bar, they and “ all claims and equities in regard to ” them may be enforced.
The case was commented on in The Davis, 10 Wall. 15, 20, and the gloss now put upon it rejected. It is there said that the well supported doctrine of the case is “ that proceedings in rem to enforce a lien against property of the United States are only forbidden in cases where, in order to sustain the proceeding, the possession of the United States must be invaded under process of the court.”	* '
So again in Workman v. New York City, 179 U. S. 552, where it is said, Chief Justice White delivering the opinion of the court, after an exhaustive review of cases, such as
440
OCTOBER TERM, 1921.
McKenna, Day, and Clarke, JJ., dissenting. 257 U. S.
he usually gave, “ It results that, in the maritime law, the public nature of the service upon which a vessel is engaged at the time of the commission of a maritime tort affords no immunity from liability in a court of admiralty, where the court has jurisdiction.” In view of this it is difficult to understand how it can be said that there was nothing that case decided contrary to the conclusion in these cases.
Against this array of cases and their reasoning, Ex parte State of New York, No. 2, 256 U. S. 503, and Ex parte State of New York, No. 1, 256 U. S. 490, are adduced. Neither case has militating force. The latter case decided nothing but that a State cannot be sued without its consent. An indisputable proposition which this court in its opinion had to clear from confusing or disturbing circumstances. In the former case, The Queen City, a steam tug, was in the possession and service of the State of New York and to have awarded process against it as the District Court did, would have arrested the service. This court rightfully reversed that action. The tug had not been released from that immunity as the vessels were in the pending cases.
Counsel for claimants in opposition to the petition cite cases at circuit and district which followed The Siren.1
1 The U. S. S. Hisko, U. S. S. Roanoke and U. S. S. Pocahontas (Circuit Judge Manton, S. D. N. Y.) (March 17, 1921, unreported opinion annexed to brief);
The U. S. S. Newark (District Judge Knox, 8. D. N. Y.) (March 18, 1921, unreported opinion annexed to brief);
The U. S. S. Sixaola (District Judge Mayer, S. D. N. Y.) (April 21, 1921, unreported opinion annexed to brief);
The F. J. Luckenbach, 267 Fed. 931; The Liberty, now before this court; The Carolinian, 270 Fed. 1011, also now before this court.
Also: The Florence H., 248 Fed. 1012; The Gloria, 267 Fed. 929; The City of Philadelphia, 263 Fed. 234.
Counsel also cites: The Tampico, 16 Fed. 491; Thompson Navigation Co. v. City of Chicago, 79 Fed. 984; Johnson Lighterage Co., 231 Fed. 365; The Attualita, 238 Fed. 909; The Luigi, 230 Fed. 493; The Othello, 5 Blatchf. 343,
FEDERAL TRADE COMM. v. BEECH-NUT CO. 441
419.	Syllabus.
It is not necessary to review or comment upon them. They are testimony of what the judiciary of the country considered and consider The Siren and other cases decided. Therefore we cannot refrain from saying that it is strange, that notwithstanding the language of The Siren, its understanding and acceptance in many cases in this court, the enforcement of its doctrine at circuit and district, it should now be declared erroneous. The cases at bar would seem to be cases for the application of the maxim of stare decisis which ought to have force enough to resist a change based on finesse of reasoning or attracted by the possible accomplishment of a theoretical correctness.
The rules should be discharged.
FEDERAL TRADE COMMISSION v. BEECH-NUT PACKING COMPANY.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 47. Argued November 10, 14, 1921—Decided January 3, 1922.
1.	A trader does not violate the Sherman Act by simply refusing to sell his goods or by withholding them from those who do not sell them at the resale prices he fixes; but he may not, by contracts or combinations express or implied, unduly hinder or obstruct the free and natural flow of interstate commerce. P. 452.
2.	The public policy evinced in the Sherman Act is to be considered in determining what are “ unfair methods of competition ” within the Federal Trade Commission Act. P. 453.
3.	A plan of merchandising, in interstate trade, which has a dangerous tendency unduly to hinder competition or to create monopoly, the Federal Trade Commission has authority to order suppressed. P. 454.
4.	The respondent manufacturer, for the purpose of maintaining resale prices fixed by itself, declined to sell its products to jobbers, wholesalers or retailers who did not observe them or who sold to other dealers who failed to do so, and, to enforce this policy, ob-
442	OCTOBER TERM, 1921.
Argument for Respondent.	257 U. S.
tained, by the cooperation of its customers and through its agents and salesmen, and by marking and tracing the cases of its goods, the names of dealers who cut the prices or who sold to others who did so, and enrolled them as undesirable customers to whom it did not sell until they gave satisfactory assurances of their purpose to conform in the future. By these means it was enabled to suppress competition in the disposition of its products after it had sold them, by preventing all who did not conform to the resale prices from obtaining more goods, although there was no contract for fixing, maintaining or enforcing the resale prices. Held, that these, or any other equivalent cooperative means, should be enjoined, upon an order of the Federal Trade Commission, as an unfair method of competition. P. 454.
264 Fed. 885, reversed.
Certiorari to review a judgment of the Circuit Court of Appeals setting aside an order of the Federal Trade Commission.
Mr. Solicitor General Beck, with whom Mr. W. H. Fuller, Mr. Marshall B. Clarke and Mr. Adrien F. Busick were on the brief, for petitioner.
Mr. Charles Wesley Dunn for respondent.
The Sherman Act does not deprive a manufacturer or trader, engaged in an entirely private business and exercising his independent discretion in the normal course of his trade without any purpose to create or maintain a monopoly, of his fundamental right of freedom to trade, existing at common law, to wit, the right freely to sell his own property (consisting of legitimate articles of commerce) or not, as he pleases, for any reason he pleases, to whom he pleases, and to announce in advance the circumstances under which he will refuse to sell, who, when he does sell, imposes no restraint whatever upon the right of future alienation, by restrictive agreements (express or implied), since that act was enacted to preserve such fundamental right of freedom to trade, and not to impair or destroy it.
FEDERAL TRADE COMM. v. BEECH-NUT CO. 443
441.	Opinion of the Court.
Likewise, § 5 of the Federal Trade Commission Act, does not deprive a manufacturer or trader, engaged in an entirely private business and exercising his independent discretion in the normal course of his trade without any unlawful purpose (a purpose either opposed to good morals because characterized by fraud, deception, misrepresentation, bad faith, intimidation, oppression, or some other such wrongful element, or against public policy because involving undue restraint of trade or monopoly, actual or potential, or the doing of any act otherwise prohibited by law), of this fundamental common-law right of freedom to trade, since that act, as in the case of the Clayton Act, was enacted to supplement and strengthen the Sherman Act, and thus more completely and effectually to preserve and protect such fundamental right of freedom to trade, and not to impair or destroy it.
And if § 5 of the Trade Commission Act may be construed and is applied to deprive a manufacturer or trader of this fundamental right, then that section violates the due process clause of the Fifth Amendment.
The theory upon which the Commission predicates its charge and conclusion that the refusal-to-sell policy of the respondent involves the use of an unfair method of competition outlawed by § 5, is conclusively established to be without any support or justification whatever, either in fact or law, when tested by the agreed facts and the applicable principles of law.
Mr. Justice Day delivered the opinion of the court.
This case is here upon a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit, which court set aside an order of the Federal Trade Commission requiring the Beech-Nut Packing Company, a corporation engaged in the manufacture and sale of food and other products throughout the United States, to
444
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
cease and desist from carrying out a plan of resale of its products.1 264 Fed. 885.
The Commission condemned the plan as an unfair method of competition within the meaning of § 5 of the Federal Trade Commission Act. (38 Stat. 719).
In the original complaint it was charged that, in order to accomplish the illegal purpose intended, the Beech-Nut Company required its purchasers to agree to maintain or resell such products at standard selling prices, and that, for the purpose of maintaining such standard resale prices and for the purpose of inducing and compelling its customers to maintain and keep such standard prices, the company refused to sell its products to customers and dealers who would not agree to maintain such specified standard resale prices, and who did resell such products at the specified standard selling prices fixed and determined by the company. By stipulation before trial the complaint was amended so as to charge: That the Beech-Nut Company has adopted and enforced a system of fixing and maintaining certain specified standard prices at which its chewing gum and food products shall be
1 “ Now, therefore, it is ordered, that respondent, Beech-Nut Packing Company, its officers, directors, agents, servants, and employees cease and desist from directly or indirectly recommending, requiring, or by any means bringing about the resale of Beech-Nut products by distributors, whether at wholesale or retail, according to any system of prices fixed or established by respondent, and more particularly by any or all of the following means:
“ 1. Refusing to sell to any such distributors because of their failure to adhere to any such system of resale prices;
“ 2. Refusing to sell to any such distributors because of their having resold respondent’s said products to other distributors who have failed to adhere to any such system of resale prices;
“ 3. Securing or seeking to secure the cooperation of its distributors in maintaining or enforcing any such system of resale prices;
“4. Carrying out or causing others to carry out a resale price maintenance policy by any other means.”
FEDERAL TRADE COMM. v. BEECH-NUT CO. 445
441.	Opinion of the Court.
resold by purchasers thereof, including jobbers, wholesalers and retailers, with the purpose and effect of securing the trade of such jobbers, wholesalers and retailers, and of enlisting their active support and cooperation in enlarging the sale of respondent’s products, to the prejudice of its competitors who do not require and enforce the maintenance of resale prices for their products; and with the purpose and effect of eliminating competition in prices among all jobbers, wholesalers and retailers, respectively, engaged in handling the products manufactured by the company; thereby depriving such distributors of their right to sell, and preventing them from selling, its products at such prices as they may deem to be, and as are, adequate and warranted by their respective selling costs and efficiency, and with various other effects; and that the company, as a means of making effective its system of resale prices and of inducing and compelling its customers and the dealer customers of its customers to maintain such resale prices, 'has for more than two years last past: Made it generally known to jobbers, wholesalers and retailers, respectively, that it required and insisted that they should sell its products at the resale prices so fixed by it, and refused to sell to jobbers, wholesalers or retailers not maintaining such prices; that the company threatened to and did refuse to sell to all jobbers, wholesalers and retailers who failed to maintain the resale prices so fixed by it, or who sold to other distributors who failed to maintain such prices; induced or compelled the jobbers, wholesalers and retailers, by divers other means, not only to maintain its resale prices so fixed, but also to discontinue selling its products to other jobbers, wholesalers and retailers who did not maintain such resale prices; that the company caused the diversion of retailers’ orders away from jobbers and wholesalers who did not maintain such resale prices so fixed by it, or who
446	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. 8.
had resold its products to other jobbers, wholesalers or retailers who had failed to maintain such resale prices, and caused such orders to be given to other jobbers and wholesalers who had maintained such resale prices and/or had refused to supply other jobbers, wholesalers and retailers failing to maintain such prices; that the company solicited and secured the cooperation of wholesalers, jobbers and retailers in reporting price cutters, all in pursuance of its efforts to ascertain the names of all distributors of its products who had failed to maintain the resale prices fixed by it and/or who had resold to other jobbers, wholesalers and retailers failing to maintain such prices; that it entered in card records kept by it the names of all dealers reported to it, either in this or other ways, as not maintaining its resale prices or as selling to other distributors not maintaining such prices, and has taken various measures to prevent all such dealers from obtaining further shipments of its products from any source until it has received from them declarations, promises, assurances, statements, or other similar expressions, to the effect that in the future such dealers intend to and will sell such products at the resale prices fixed by the company and will refrain from selling the same to other jobbers, wholesalers and retailers failing to maintain such prices; that respondent employed various other means and methods for the enforcement of its system of maintaining resale prices.
The case was heard before the Commission upon an agreed statement of facts, from which, among other things, it found:
The Beech-Nut Packing Company customarily markets its products principally through jobbers and wholesalers in the grocery, drug, candy and tobacco lines, who in turn resell to retailers in these lines. Such wholesale and retail dealers are selected as desirable customers because they are known or believed to be of good credit standing,
FEDERAL TRADE COMM. v. BEECH-NUT CO. 447
441.	Opinion of the Court.
who are willing to resell at the resale prices suggested by the company and who do resell at such prices, who are willing to refuse to sell and who do refuse to sell to jobbers, wholesalers and retailers who do not resell at the resale prices suggested by the company, and who do not sell to such jobbers, wholesalers and retailers, who in other respects are good and satisfactory merchandisers. Such jobbers, wholesalers and retailers are designated by the company as “ selected ” or “ desirable ” dealers. In a few instances the company also sells “ direct ” to certain large retailers who are selected as are the jobbers, wholesalers and retailers. The total number of such dealers, handling the products of the company, includes the greater portion of the jobbers, wholesalers and retailers, respectively, in the grocery trades, and a large proportion of the jobbers, wholesalers and retailers in the drug, candy, and tobacco trades, respectively, throughout the United States.
The company has adopted and maintained, and still maintained at the time complaint was filed by the Commission, in the sale and distribution of its products, a policy known as the “ Beech-Nut Policy ”, and requests the cooperation therein of all dealers selling the products manufactured by it, dealing with each customer separately.
In order to secure such cooperation and to carry out the Beech-Nut Policy, the company:
Issues circulars, price lists, and letters to the trade generally, showing suggested uniform resale prices, both wholesale and retail, to be charged for Beech-Nut products.
Requests and insists that the selected jobbers, wholesalers and retailers sell only to such other jobbers, wholesalers and retailers as have been and are willing to resell and do resell at the prices so suggested by the company; and requests and insists that such jobbers, wholesalers
448
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
and retailers discontinue selling to other jobbers, wholesalers and retailers who fail to resell at the prices so suggested by the company.
Makes it known broadcast to such selected jobbers, wholesalers and retailers, whether sold “ direct ” or not, that, if they, or any of them, fail to sell at the resale prices suggested by the company, it will absolutely refuse to sell further supplies of its products to them, or any of them, and will also absolutely refuse to sell to any jobbers, wholesalers and retailers whomsoever who sell to other jobbers, wholesalers and retailers failing to resell at the prices suggested by the company.
The company, in the carrying out of its policy, has refused and does refuse to sell its products to practically all such jobbers, wholesalers and retailers as do not sell at the prices so suggested by it. It has refused and does refuse to sell to practically all such jobbers, wholesalers and retailers reselling to other jobbers, wholesalers and retailers who have failed to resell at the prices so suggested by it. It has refused and does refuse to sell to practically all so-called mail-order houses engaged in interstate commerce, on the ground that such mail-order houses frequently sell at cut prices, and has refused and does refuse to sell to practically all jobbers, wholesalers and retailers who sell its products to such mail-order houses. It has refused and does refuse to sell to practically all so-called price cutters. It has maintained and does maintain a large force of so-called specialty salesmen or representatives, who call upon the retail trade and solicit orders therefrom to be filled through jobbers and wholesalers, which orders are commonly known in the trade as “ turnover orders ” ; its salesmen, under respondent’s instructions, have refused and do refuse to accept any such turnover orders to be filled through jobbers and wholesalers who themselves sell or have sold at less than the suggested resale prices, or sell or have sold to job-
FEDERAL TRADE COMM. v. BEECH-NUT CO. 449
441.	Opinion of the Court.
bers, wholesalers and retailers who sell or have sold at less than such suggested resale prices; and in such cases has requested such retailers to name other jobbers.
The company has reinstated and does reinstate as distributors of its products jobbers, wholesalers and retailers previously cut off or withdrawn from the list of selected jobbers, wholesalers and retailers for failure to resell at the prices suggested by it, and for selling to distributors who do not maintain such suggested resale prices, upon the basis of declarations, assurances, statements, promises, and similar expressions, as the case may be, by such distributors, respectively, who satisfy the company that such distributors will thereafter resell at the prices suggested by it and will refuse to sell to distributors who do not maintain such suggested resale prices.
The company has added and does add to its list of new distributors, concerns reported by its representatives as declaring that they intend to and will resell at the prices suggested by it and will refuse to sell to those who do not maintain such suggested resale prices. That it has utilized a system of key numbers or symbols stamped or marked upon the cases containing the “ Beech-Nut Brand ” products, thus enabling it, for any purpose whatsoever, to ascertain the identity of the distributors from whom such products were purchased; and that repeatedly, when instances of price-cutting have been reported to it by the selected wholesalers and retailers, or ascertained in other ways, its salesmen and representatives have been instructed by it to investigate, and that in pursuance of these instructions they have by means of these key numbers or symbols traced the price-cutters from whom the goods have been obtained, and have thus ascertained the identity of such price cutters, and have also thus traced and ascertained the identity of distributors from whom price cutters have purchased “Beech-Nut Brand ” products; and it has thereafter refused to
450
OCTOBER TERM, 1921.
Opinion of the Court.
257 U- S.
supply all such dealers with its products, whether such dealers were themselves cutting the suggested resale prices or were selling to dealers cutting the suggested resale prices.
The company has maintained and does maintain card records containing the names of thousands of jobbing, wholesale and retail distributors, including the selected distributors, and in furtherance of its refusal to sell goods either to distributors selling at less than the suggested resale price, or to distributors selling to other distributors selling at less than the suggested resale prices, has listed upon those cards, bearing the names of such distributors, the word§ “ Undesirable—Price Cutters ”, “ Do Not Sell ”, or “ D. N. S.”, the abbrevation for “ Do Not Sell ”, or expressions of a like character, to indicate that the particular distributor was in the future not to be supplied with respondent’s goods on account of failure to maintain the suggested resale prices, or on account of failure to discontinue selling to dealers failing to maintain such suggested resale prices. When the company has received declarations, assurances, statements, promises, or similar expressions, as the case may be, by distributors which satisfy it that such distributors will resell at the prices suggested by it, and discontinue selling to distributors failing to maintain the resale prices suggested by it, it has issued instructions to “ Clear the record,” or directions of similar import, notation of which is made on the cards, and it has thereafter permitted shipments of its products to be made to such distributors; and such distributors to whom shipments are thus allowed to go forward constitute the company’s list of so-called “ selected ” jobbers, wholesalers and retailers, and no distributor is thus listed on such card records as one to whom goods are allowed to go forward who fails to maintain the resale prices suggested by it or sells to distributors failing to resell at such suggested prices; and when a jobber,
FEDERAL TRADE COMM. v. BEECH-NUT CO. 451
441.	Opinion of the Court.
wholesaler or retailer is reported as failing to maintain the suggested resale prices, and has been entered in the card records as one to whom shipments should not go forward, respondent notifies those jobbers, wholesalers and retailers who supply the distributor, of this fact, and also notifies its specialty salesmen, and gives similar notices to such jobbers, wholesalers and retailers and to its specialty salesmen when reinstatements are made in its list of “ selected ” jobbers, wholesalers and retailers.
The Circuit Court of Appeals was of opinion that the only difference between the price-fixing policy condemned as unlawful in Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, and the price-fixing plan embodied in the Beech-Nut policy was that in the former case there was an agreement in writing, while in this case the success or failure of the plan depended upon a tacit understanding with purchasers and prospective purchasers. While it expressed its difficulty in seeing any difference between a written agreement and a tacit understanding in their effect upon the restraint of trade, it, nevertheless, regarded the case as governed by the decision of this court in United States v. Colgate & Co., 250 U. S. 300, and, accordingly, held that the Commission had exceeded its power in making the order appealed from.
The Colgate Case was prosecuted under the Sherman Anti-Trust Act and came to this court under the Criminal Appeals Act. We therein held that this court must accept the' construction of the indictment as made in the District Court; and, that, upon such construction, the only act charged amounted to the exercise of the right of the trader, or manufacturer, engaged in private business, to exercise his own discretion as to those with whom he would deal; and to announce the circumstances under which he would refuse to sell, and that, thus interpreted, no act was charged in the indictment which amounted to a violation of the Sherman Act, prohibiting monopolies, 6267’—22------34
452
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
contracts, combinations and conspiracies in restraint of interstate commerce.
In the subsequent case of United States v. Schrader's Son, Inc., 252 U. S. 85, this court had occasion to deal with a case under the Criminal Appeals Act, wherein there was a charge that a manufacturer sold to manufacturers in several States under an agreement to observe certain resale prices fixed by the vendor,—which we held to be a violation of the Sherman Anti-Trust Act. In referring to the Colgate Case we said: “The court below misapprehended the meaning and effect of the opinion and judgment in that cause. We had no intention to overrule or modify the doctrine of Dr. Miles Medical Co. v. Park & Sons Co., [220 U. S. 373] where the effort was to destroy the dealers’ independent discretion through restrictive agreements. Under the interpretation adopted by the trial court and necessarily accepted by us, the indictment failed to charge that Colgate & Company made agreements, either express or implied, which undertook to obligate vendees to observe specified resale prices; and it was treated‘as alleging only recognition of the manufacturer’s undoubted right to specify resale prices and refuse to deal with anyone who failed to maintain the same.’ ”
In the still later case of Frey & Son v. Cudahy Packing Co., 256 U. S. 208, wherein this court again had occasion to consider the subject, it was said of the previous decisions in United States v. Colgate & Co., and United States n. Schrader's Son., Inc., supra: “Apparently the former case was misapprehended. The latter opinion distinctly stated that the essential agreement, combination or conspiracy might be implied from a course of dealing or other circumstances.”
By these decisions it is settled that in prosecutions under the Sherman Act a trader is not guilty of violating its terms who simply refuses to sell to others, and he may withhold his goods from those who will not sell them at the
FEDERAL TRADE COMM. v. BEECH-NUT CO. 453
441.	Opinion of the Court.
prices which he fixes for their resale. He may not, consistently with the act, go beyond the exercise of this right, and by contracts or combinations, express or implied, unduly hinder or obstruct the free and natural flow of commerce in the channels of interstate trade.
The Sherman Act is not involved here except in so far as it shows a declaration of public policy to be considered in determining what are unfair methods of competition, which the Federal Trade Commission is empowered to condemn and suppress. The case now before us was begun under the Federal Trade Commission Act which was intended to supplement previous anti-trust legislation. (See Report No. 597, of the Senate Committee on Interstate Commerce, June 13, 1914, 63rd Cong., 2nd sess.) That act declares unlawful “unfair methods of competition ” and gives the Commission authority after hearing to make orders to compel the discontinuance of such methods. What shall constitute unfair methods of competition denounced by the act, is left without specific definition. Congress deemed it better to leave the subject without precise definition, and to have each case determined upon its own facts, owing to the multifarious means by which it is sought to effectuate such schemes. The Commission, in the first instance, subject to the judicial review provided, has the determination of practices which come within the scope of the act. (See Report, No. 597, Senate Committee on Interstate Commerce, June 13,1914, 63rd Cong., 2nd sess.)
Of the Federal Trade Commission Act we said, in Federal Trade Commission v. Gratz, 253 U. S. 421, 427: “The words ‘unfair method of competition’ are not defined by the statute and their exact meaning is in dispute. It is for the courts, not the commission, ultimately to determine as matter of Taw what they include. They are clearly inapplicable to practices never heretofore regarded as opposed to good morals because characterized by de
454
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
ception, bad faith, fraud or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly. The act was certainly not intended to fetter free and fair competition as commonly understood and practiced by honorable opponents in trade.”
If the “Beech-Nut System of Merchandising” is against public policy because of its “dangerous tendency unduly to hinder competition or create monopoly,” it was within the power of the Commission to make an order forbidding its continuation. We have already seen to what extent the declaration of public policy, contained in the Sherman Act, permits a trader to go. The facts found show that the Beech-Nut system goes far beyond the simple refusal to sell goods to persons who will not sell at stated prices, which in the Colgate Case was held to be within the legal right of the producer.
The system here disclosed necessarily constitutes a scheme which restrains the natural flow of commerce and the freedom of competition in the channels of interstate trade which it has been the purpose of all the anti-trust acts to maintain. In its practical operation it necessarily constrains the trader, if he would have the products of the Beech-Nut Company, to maintain the prices “suggested” by it. If he fails so to do, he is subject to be reported to the company either by special agents, numerous and active in that behalf, or by dealers whose aid is enlisted in maintaining the system and the prices fixed by it. Furthermore, he is enrolled upon a list known as “Undesirable—Price Cutters,” to whom goods are not to be sold, and who are only to be reinstated as one whose record is “clear” and to whom sales may be made upon his giving satisfactory assurance that he will not resell the goods of the company except at the prices suggested by it, and will refuse to sell to distributors who do not maintain such prices.
FEDERAL TRADE COMM. v. BEECH-NUT CO. 455
441.	Opinion of the Court.
From this course of conduct a court may infer, indeed cannot escape the conclusion, that competition among retail distributors is practically suppressed; for all who would deal in the company’s products are constrained to sell at the suggested prices. Jobbers and wholesale dealers who would supply the trade may not get the goods of the company, if they sell to those who do not observe the prices indicated or who are on the company’s list of undesirables, until they are restored to favor by satisfactory assurances of future compliance with the company’s schedules of resale prices. Nor is the inference overcome by the conclusion stated in the Commission’s findings that the merchandising conduct of the company does not constitute a contract or contracts whereby resale prices are fixed, maintained, or enforced. The specific facts found show suppression of the freedom of competition by methods in which the company secures the cooperation of its distributors and customers, which are quite as effectual as agreements express or implied intended to accomplish the same purpose. By these methods the company, although selling its products at prices satisfactory to it, is enabled to prevent competition in their subsequent disposition by preventing all who do not sell at resale prices fixed by it from obtaining its goods.
Under the facts established, we have no doubt of the authority and power of the Commission to order a discontinuance of practices in trading, such as are embodied in the system of the Beech-Nut Company.
We are, however, of opinion that the order of the Commission is too broad. The order should have required the company to cease and desist from carrying into effect its so-called Beech-Nut Policy by cooperative methods in which the respondent and its distributors, customers and agents undertake to prevent others from obtaining the company’s products at less than the prices designated by
456	OCTOBER TERM, 1921.
Holmes, J., dissenting.	257 U. S.
it—(1) by the practice of reporting the names of dealers who do not observe such resale prices; (2) by causing dealers to be enrolled upon lists of undesirable purchasers who are not to be supplied with the products of the company unless and until they have given satisfactory assurances of their purpose to maintain such designated prices in the future; (3) by employing salesmen or agents to assist in such plan by reporting dealers who do not observe such resale prices, and giving orders of purchase only to such jobbers and wholesalers as sell at the suggested prices and refusing to give such orders to dealers who sell at less than such prices, or who sell to others who sell at less than such prices; (4) by utilizing numbers and symbols marked upon cases containing their products with a view to ascertaining the names of dealers who sell the company’s products at less than the suggested prices, or who sell to others who sell at less than such prices in order to prevent such dealers from obtaining the products of the company; or (5) by utilizing any other equivalent cooperative means of accomplishing the maintenance of prices fixed by the company.
The judgment of the Circuit Court of Appeals is reversed, and the cause remanded to that court with instructions to enter judgment in conformity with this opinion.
Reversed.
Mr. Justice Holmes, dissenting.
There are obvious limits of propriety to the persistent expression of opinions that do not command the agreement of the Court. But as this case presents a somewhat new field—the determination of what is unfair competition within the meaning of the Federal Trade Commission Act—I venture a few words to explain my dissent. I will not recur to fundamental questions. The ground on
FEDERAL TRADE COMM. v. BEECH-NUT CO. 457
441.	Holmes, J., dissenting.
which the respondent is held guilty is that its conduct has a dangerous tendency unduly to hinder competition or to create monopoly. It is enough to say that this I cannot understand. So far as the Sherman Act is concerned I had supposed that its policy was aimed against attempts to create a monopoly in the doers of the condemned act or to hinder competition with them. Of course there can be nothing of that sort here. The respondent already has the monopoly of its own goods with the full assent of the law and no one can compete with it with regard to those goods, which are the only ones concerned. It seems obvious that the respondent is not creating a monopoly in them for anyone else, although I see nothing to hinder its doing so by conveying them all to one single vendee. The worst that can be said, so far as I see, is that it hinders competition among those who purchase from it. But it seems to me that the very foundation of the policy of the law to keep competition open is that the subjectmatter of the competition would be open to all but for the hindrance complained of. I cannot see what that policy has to do with a subject-matter that comes from a single hand that is admitted to be free to shut as closely as it will. And, to come back to the words of the statute, I cannot see how it is unfair competition to say to those to whom the respondent sells, and to the world, you can have my goods only on the terms that I propose, when the existence of any competition in dealing with them depends upon the respondent’s will. I see no wrong in so doing, and if I did I should not think it a wrong within the possible scope of the word unfair. Many unfair devices have been exposed in suits under the Sherman Act, but to whom the respondent’s conduct is unfair I do not understand.
Mr. Justice McKen'na and Mr. Justice Brandeis concur in this opinion-
458	OCTOBER TERM, 1921.
McReynolds, J., dissenting.	257 U. S.
Mr. Justice McReynolds, dissenting.
With regret, I dissent from the opinion and judgment of the court.
This matter was submitted to the Commission upon an Agreed Statement of Facts, the twelfth clause of which— the last but one—declares: “ 12. That the merchandising conduct of respondent heretofore defined and as herein involved does not constitute a contract or contracts whereby resale prices are fixed, maintained and enforced.”
Of course, the Packing Company entered into this stipulation relying upon the quoted clause; and I am not at liberty either to disregard it or to minimize the plain import of its words. It is not a mere conclusion of the Commission but a definite and essential admission of record upon which the Company rested and without which I must conclude a different case might have been presented.
There is no question of monopoly. Acting alone, respondent certainly had the clear right freely to select its customers—to refuse to deal when and as it saw fit—and to announce that future sales would be limited to those whose conduct met with its approval. United States v. Colgate & Co., 250 U. S. 300; United States v. Schrader's Son, Inc., 252 U. S. 85; Frey & Son v. Cudahy Packing Co., 256 U. S. 208.
If the solemn stipulation did not expressly negative the existence of contracts amongst the parties to maintain prices, I should think the detailed facts sufficient to support a finding that there were such agreements. But starting with that plain negation I can find no adequate ground for condemning the respondent.
The very order which the court below is now directed to enter conflicts with the stipulation between the parties by presupposing “methods of cooperation between respondent and the distributors of its products, especially the cooperative methods by which the respondent and the
FEDERAL TRADE COMM. v. BEECH-NUT CO. 459
441.	McReynolds, J., dissenting.
distributors of its products undertake to prevent others from obtaining such products at less than the prices fixed by respondent, (by) the cooperation of customers in reporting the names of dealers who do not observe such resale prices with the view to prevent their obtaining the product of the Beech-Nut Company thereafter”. How can there be methods of coOperation, cooperative methods, an undertaking to prevent others, or the coOperation of customers with a view to prevent others, when the existence of the essential contracts is definitely excluded?
Having the undoubted right to sell to whom it will, why should respondent be enjoined from writing down the names of dealers regarded as undesirable customers? Nor does there appear to be any wrong in maintaining special salesmen who turn over orders to selected wholesalers and who honestly investigate and report to their principal the treatment accorded its products by dealers. Finally, as respondent may freely select customers, how can injury result from marks on packages which enable it to trace their movements? The privilege to sell or not to sell at will surely involves the right by open and honest means to ascertain what selected customers do with goods voluntarily sold to them.
Under the circumstances disclosed, constraint upon the freedom of merchants can only result from withholding trade relations or threatening so to do. These, when acting alone, respondent may assume or decline at pleasure, there being neither monopoly nor attempt to monopolize. And the exercise of this right does not become an unfair method of competition merely because some dealers cannot obtain goods which they desire, and others may be deterred from selling at reduced prices. If a manufacturer should limit his customers to consumers he would thereby destroy competition among dealers, but neither they nor the public could complain.
460
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
SOUTHERN PACIFIC RAILROAD COMPANY v. FALL, SECRETARY OF THE INTERIOR, ET AL.
APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
No. 60. Submitted October 21, 1921.—Decided January 3, 1922.
A regulation of the Secretary of the Interior, providing that, in the selection of indemnity lands under railroad land grants, a part only of a minor legal subdivision shall not be assigned as a base unless the rest of it be also assigned in the same selection list, held a reasonable administrative measure, and not an arbitrary abridgment or obstruction of the right of selection. P. 464.
49 App. D. C. 241; 263 Fed. 637, affirmed.
Appeal from a decree of the court below affirming a decree of the Supreme Court of the District of Columbia, which dismissed the bill in a suit against the Secretary of the Interior and the Commissioner of the General Land Office for a mandatory injunction.
Mr. C. F. R. Ogilby for appellant.
Mr. Solicitor General Beck, Mr. Assistant Attorney General Riter and Mr. H. L. Underwood for appellees.
Mr. Justice Van Devanter delivered the opinion of the court.
This is a suit to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from going beyond what the plaintiff insists is the limit of their power and duty in dealing with a selection of indemnity land under the Act of July 27,1866, c. 278,14 Stat. 292, which made a land grant in aid of the construction of a railroad in California.
The grantee constructed and put in operation the greater part of the road—495.52 miles—and thereby earned the right to have the grant fulfilled as to that part.
SOUTHERN PAG. R. R. CO. v. FALL. 461.
460.	Opinion of the Court.
As to the part not constructed—84 miles—the grant was forfeited. Act September 29, 1890, c. 1040, 26 Stat. 496.' The plaintiff long since succeeded to the rights of the grantee, and so much of the grant as was not forfeited is still in process of administration.
The grant, §§ 3 and 18, included all the odd-numbered sections within prescribed place limits on either side of the road, save as some of the sections or parts of sections fell within excepting clauses in the grant; and in lieu of the lands excepted others were to be selected by the grantee, or its successor, “ under the direction of the Secretary of the Interior,” in odd-numbered sections within prescribed indemnity limits.
Among the excepted lands, usually called “losses ” or “ bases for indemnity,” was section 15 in a particular township. That section contained 640 acres and each quarter quarter therein contained 40 acres. In presenting an extended list of indemnity selections the plaintiff sought to use 15 acres of one of these quarter quarters as the base for a particular selection without then using the remaining 25 acres; and that selection was rejected on the ground that under an existing regulation prescribed by the Secretary of the Interior it was not admissible to use a part of a minor legal subdivision as the base for a selection unless the remaining part was similarly used in the same list. Another base had been specified in the beginning, but on examination in the land office it was found to be a tract outside the place limits and the plaintiff then sought to use the present base in its stead.
In the courts below the plaintiff took the position that the regulation operated as an arbitrary curtailment of its right of selection and was not within the scope of the power and duty of the Secretary, or of the Commissioner, in administering the indemnity provisions of the grant; and on that ground the plaintiff sought a mandatory injunction requiring those officers to deal with the selection
462
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
regardless of the regulation. Both courts held the plaintiff’s position untenable and refused the injunction. 49 App. D. C. 241; 263 Fed. 637.
To determine the question presented it is necessary to have in mind the situation which prompted the adoption of the regulation and also to understand how it is applied in actual practice.
The public lands are surveyed and platted, as nearly as may be, into rectangular tracts known as sections, half sections, quarter sections, half-quarter sections, and quarter-quarter sections; and, where the lines of the survey are interrupted by lakes, public reservations, Spanish or Mexican grants, state or territorial lines, etc., the irregular tracts at the point of interruption are platted and known as fractional sections, etc., or as lots having particular numbers. After the survey the land officers dispose of the lands only according to these legal subdi-sions—that is, as sections, half sections, etc.—and regard the minor subdivisions—quarter-quarter sections and lots—as not subject to further division, save in exceptional instances where Congress has specially provided otherwise. Under this practice a right to purchase or enter 40 acres may be exercised by taking a full quarter-quarter section, but not by taking a part only of each of two or more minor subdivisions. And the same rule is applied to relinquishments and lieu selections; that is to say, a right to relinquish land to which title has been acquired and to take other land in its stead may not be exercised by exchanging less than a legal subdivision at a time. In short, where Congress has not specially provided otherwise, the practice has been, and is, to conform all sales, entries and other transactions to the subdivisions established by the survey and to treat the minor subdivisions as indivisible for all administrative purposes.
While the existence and scope of this practice are shown in many decisions of the Secretary of the Interior, it suf-
SOUTHERN PAC. R. R. CO. v. FALL. 463
460.	Opinion of the Court.
fices here to refer to two. In one it is said to be well settled in the land department u that, in the absence of a statute making special provision to the contrary, public lands can be disposed of only according to the legal subdivisions of the public survey,” Melder v. White, 28 L. D. 412, 420; and in the other it is said to be “ an established rule ” of that department “ that parts of minor legal subdivisions of surveyed public lands can not be entered, selected, relinquished, or surrendered, under the public land laws, except in entries of particular kinds.” Southern Pacific Ry. Co., 46 L. D. 279, 281.
In the exceptional instances in which Congress has directed otherwise the principle of the practice was not disturbed. All that was done was to provide a special mode of segregating and identifying particular lands which were being subjected to special forms of disposal which could not well be adjusted to the lines of the usual survey. The most conspicuous example of this is found in the laws regulating the disposal of mineral lands.
The manner of keeping the land office records—which is according to a system of “ tract books,”—and the mode of checking up and tracing the various land transactions, have long been adjusted to this practice; and in the judgment of the land officers adherence to it is of much im-portance.
The regulation in question adapts and applies this general practice to the selection of indemnity lands under railroad land grants by requiring (a) that the selections be accompanied by a specification, tract for tract, of the losses on which they are based, (b) that the selections be made by legal subdivisions, and (c) that in specifying the losses minor legal subdivisions be used in entireties and not in fragments.
The last part of the regulation is what is challenged here. As applied and enforced by the land officers it is not directed against using parts of a minor subdivision as
464
•OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
bases for two or more selections where the entire subdivision is used in the same selection list, but only against using it in fragments to sustain distinct selections in different lists. To illustrate: Parts of a lost quarter quarter containing 40 acres may be specified as the bases for selecting two or more fractional subdivisions aggregating 40 acres where the selections are all included in a single list, but not otherwise. And conversely, the loss of two or more fractional subdivisions aggregating 40 acres may be made the base for selecting a quarter quarter of 40 acres where the selection is not made piecemeal in different lists. Southern Pacific Ry. Co., supra. It, however, is not required that the losses and selections be exactly matched in quantity, but only that they correspond “ as nearly as legal subdivisions will permit.” In other words, reasonable approximation is deemed sufficient and such minor differences as are practically unavoidable are disregarded. Florida Central & Peninsular R. R. Co., 15 L. D. 529; Bull v. Northern Pacific R. R. Co., 26 L. D. 693; Northern Pacific Ry. Co., 43 L. D. 534; Southern Pacific Ry. Co., supra.
Thus understood, the regulation is merely an administrative measure designed to facilitate the examination and disposal of the selection lists and to be fair alike to the claimant and the Government. It neither abridges the right of selection nor unreasonably obstructs its exercise, but on the contrary leaves the claimant free to select and obtain indemnity for all losses, if only the lands available in the indemnity limits are sufficient for the purpose.
When the manifold losses to be indemnified under these extensive grants are considered, it is apparent that some regulation of the mode of selection is essential. This is recognized in the several granting acts, all of which in substance, or in express terms, as here, provide that the selections shall be made under the direction of the Secretary of the Interior. These provisions of course cannot
SOUTHERN PAC. R. R. CO. v. FALL. 465
460.	Opinion of the Court.
be taken as investing the Secretary with authority to abridge the right to indemnity or to interpose any unreasonable obstruction to its exercise, Payne v. Central Pacific Ry. Co., 255 U. S. 228, 236; but in our opinion they do enable him, in the interest of an orderly and efficient administration, to prescribe and enforce reasonable regulations respecting the mode in which the selections shall be made and brought to the attention of the land officers.
The regulation in question is of that character. Its evident purpose, as also its material tendency, is to simplify the task of examining and passing on the selections when presented; to avoid repeated searches to ascertain the status of the same minor subdivision, such as would be essential if it were used in fragments as bases for distinct selections made at different times; to guard against the mistakes incident to such practice; and to conform the mode of selection to the usual procedure in public land transactions.
There is nothing in this granting act with which the regulation conflicts. The grant is of sections and parts of sections to be identified by the usual survey and is accompanied by a provision, § 6, for a full survey of all lands within its exterior limits. The lands excepted are to be identified in the same way as those passing under the grant, and so of the lands which may be taken as indemnity. Thus the survey is made an element of every part of the grant. Nowhere in the granting act is there any suggestion of an intention that the grant or any part of it shall be administered otherwise than by legal subdivisions.
For these reasons we hold that the regulation is within the scope of the power and duty of the Secretary of the Interior.
Decree affirmed.
466	OCTOBER TERM, 1921.
Counsel for Parties.	257 U. S.
CUNNINGHAM v. RODGERS ET AL.
ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
No. 42. Argued October 17, 18, 1921.—Decided January 3, 1922.
1.	An action against a consul-general, upon his official bond, (Rev. Stats., § 1697, as amended,) for damage caused by his failure to perform his official duties touching the personal property of a decedent, can not be maintained by one who is not the personal representative but merely a possible owner of a share of the decedent’s estate. P. 468.
2.	A declaration alleging that an American citizen, dying in China, left valuable real estate, standing in his name in the land records of the United States Consulate at Shanghai, and that the consul-general there, despite his duty to conserve the decedent’s estate, caused one to whom he had illegally granted alleged letters testamentary, to convey it to a third party without consideration, although the deceased had not devised it, and that such assumption of jurisdiction on the part of the said consul-general, though illegal and void, had the effect of dissipating a valuable part of the estate to the consequent loss of the decedent’s brother, the plaintiff,— states no cause of action against the consul-general on his official bond. P. 468.
50 App. D. C. 51; 267 Fed. 609, affirmed.
Error to a judgment of the court below affirming a judgment of the Supreme Court of the District of Columbia sustaining a demurrer to the declaration in an action for debt and dismissing the action.
Mr. Clinton Robb and Mr. George F. Curtis, with whom Mr. Leonard J. Mather was on the brief, for plaintiff in error.
Mr. William C. Herrgn, with whom Mr. Solicitor General Frierson was on the brief, for defendants in error.
CUNNINGHAM v. RODGERS. 467
466.	Opinion of the Court.
Mr. Justice McReynolds delivered the opinion of the court.
•
Section 1697, Revised Statutes, as amended by Act of December 21,1898, c. 36, 30 Stat. 770, requires every Consul-General before receiving his commission to execute a bond conditioned for the true and faithful performance of duties lawfully imposed upon him as such officer. It is copied in the margin.1
Purporting to proceed under this section plaintiff in error brought an action in the Supreme Court, District of Columbia, against James Linn Rodgers, once Consul
1 “ Sec. 1697. Every consul-general, consul, and commercial agent, before he receives his commission, or enters upon the duties of his office, shall give a bond to the United States, with such sureties, who shall be permanent residents of the United States, as the Secretary of State shall approve, in a penal stun not less than one thousand dollars, and in no case less than the annual compensation allowed to such officer, and not more than ten thousand dollars, and in such form as the President shall prescribe, conditioned for the true and faithful accounting for, paying over, and delivering up of all fees, moneys, goods, effects, books, records, papers, and other property which shall come to his hands, or to the hands of any other person, to his use as such consul-general, consul, or commercial agent under any law, now or hereafter enacted, or by virtue of his office; and for the true and faithful performance of all other duties, now or hereafter lawfully imposed upon him as such consul-general, consul, or commercial agent. The bond herein mentioned shall be deposited with the Secretary of the Treasury. In case of a breach of any such bond, any person thereby injured may institute, in his own name and for his sole use, a suit on said bond, and thereupon recover such damages as shall be legally assessed, with costs of suit, for which execution may issue for him in due form; but if such party fails to recover in the suit, judgment shall be rendered and execution may issue against him for costs in favor of the defendant, and the United States shall, in no case, be liable for the same. The said bond shall remain, after any judgment rendered thereon, as a security for the benefit of any person injured by a breach of the condition of the same until the whole penalty has been recovered; and the proceeding shall always be as directed in this section.”
6267°—22--35
468	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
General at Shanghai, China, and the sureties upon his official bond. Process was served upon him but the sureties were not summoned and did not appear. The declaration alleges execution of the bond, its breach by Rodgers’ failure to discharge his official duties concerning property left by plaintiff’s brother who died in China June 10, 1905, and asks a recovery upon the bond for damages suffered. The trial court sustained a demurrer to the declaration, and upon appeal this action was affirmed.
The Court of Appeals held that if the Consul-General’s failure to perform his official duties concerning the personal property caused loss, the damage was to the estate, and plaintiff, being a mere possible owner of a distributive share, could not recover in his own right—any possible right of action was in the administrator. This we think was clearly right.
The second count of the painfully prolix declaration alleges “ that there were left by said decedent certain valuable real property in the Pao Shan District in Shanghai, China, of the value of, to wit, $5,000.00, which, outstanding in decedent’s name in the Land Records of said United States Consulate at Shanghai, China, it was the duty of the said defendant, James Linn Rodgers, to conserve to said decedent’s estate; but notwithstanding his said duty in this respect and in utter violation thereof, and in breach of the condition of his said bond and writing obligatory, he, the said defendant, James Linn Rodgers, instructed one E. H. Dunning to convey and transfer the same over to a certain Mrs. Green, gratuitously, and without any consideration passing therefor, four days after he had illegally and improperly granted alleged letters testamentary to the said E. H. Dunning . . . that no such real estate was devised or sought to be devised under the paper writing hereinbefore referred to as the pretended last will and testament of the said Henry H. Cunningham, deceased . . . and said
GRANT SMITH-PORTER CO. v. ROHDE. 469
466.	Syllabus.
assumption of a jurisdiction and power to so instruct the said E. H. Dunning, was wholly illegal and void, although having the effect of dissipating a valuable part of plaintiff’s deceased brother’s estate, to the consequent loss of plaintiff by this, said defendant James Linn Rodgers’ violation and breach of the condition of his bond and writing obligatory, so as aforesaid given to insure plaintiff all legal and proper protection of his said interests in and to his deceased brother’s estate, as aforesaid.”
The plaintiff’s whole cause is presented upon the theory that Rodgers had no power to administer the estate of the deceased brother or to do aught in reference thereto but what the statutes authorized; “namely, conserve and transmit to the United States for proper and legal distribution according to the laws of decedent’s domicile.” No statute is cited which imposes any duty in respect of real estate upon a consul in China. Under such circumstances mere allegation that defendant unlawfully assumed to instruct one holding void letters testamentary to transfer such property without consideration is wholly insufficient to show an actionable breach of official duty, or adequately to point out personal damage suffered by plaintiff in error. Real estate can not be dissipated by mere direction gratuitously to convey it issued without semblance of authority. The judgment below is
Affirmed.
GRANT SMITH-PORTER SHIP COMPANY v. ROHDE.
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 35. Argued December 7. 1920.—Decided January 3, 1922.
A workman employed generally as a carpenter by a builder of seagoing vessels was injured through the employer’s negligence, while engaged in construction work on a ship nearly completed and
470	OCTOBER TERM, 1921.
Argument for Defendant.	257 U. S.
launched and lying in navigable waters of the United States in Oregon. Both parties had accepted the Oregon Workmen’s Compensation Law, which in the absence of its rejection by either employer or employee requires the employer to make payments, including deductions from the employee’s wages, to a compensation fund, specifies the sums which the employee may receive therefrom in case of injury, and declares they shall be in lieu of all claims against his employer on account of the injury.
Held: (1) The general doctrine is that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality. P. 476.
(2)	The general admiralty jurisdiction extends to a proceeding to recover damages resulting from a tort committed on a vessel in process of construction when lying on navigable waters within a State. P. 477.
(3)	But in this case, since the contract for the construction of the vessel was non-maritime, and since neither the employment of the workman nor his activities at the time of injury had any direct relation to commerce or navigation, the application of the Oregon Compensation Law, with reference to which employer and employee had contracted, could not materially affect any of the rules of the sea whose uniformity is essential, and was therefore permissible. P. 477. Union Fish Co. v. Erickson, 248 U. S. 308; Southern Pacific Co. v. Jensen, 244 U. S. 205, and other cases, distinguished.
(4)	In view of its exclusive features, the Oregon Act abrogated the right of the employee to recover damages in an admiralty court, which otherwise would exist. P. 478.
This was a proceeding in admiralty to recover damages for personal injuries resulting to an employee. The questions are determined on a certificate from the court below stating the facts.
Mr. Charles A. Hart, with whom Mr. Charles H. Carey and Mr. James B. Kerr were on the brief, for Grant Smith-Porter Ship Company.
Rohde’s contract of employment required services as a carpenter and joiner in the construction of a ship before and after launching; and neither before nor after launching is such work maritime in character.
GRANT SMITH-PORTER CO. v. ROHDE. 471
469.	Argument for Defendant.
So far as we have been able to find this court has not been asked to sustain admiralty jurisdiction over torts which apart from the circumstance of locality were in no respect maritime. Distinguishing Thomas v. Lane, Fed. Cas. No. 13,902. The Plymouth, 3 Wall. 20; North Pacific S. S. Co. n. Hall Bros. Co., 249 U. S. 119.
In one class of cases several times before this court, the test of locality alone has proven insufficient: Negligent operation of vessels resulting in damage to structures in channels is cognizable in admiralty if the structure injured is in the channel for purposes of navigation and not otherwise; and this is true even though the structure is as firmly fixed to the bottom of the channel as are the piers of a railroad bridge. Philadelphia, Wilmington & Baltimore R. R. Co. v. Philadelphia Towboat Co., 23 How. 209; The Blackheath, 195 U. S. 361; Cleveland Terminal R. R. Co. v. Cleveland S. S. Co., 208 U. S. 316; Martin v. West, 222 U. S. 191; The Raithmoor, 241 U. S. 166.
There are obvious difficulties in the way of extending admiralty jurisdiction to a tort arising ex contractu when the contract itself is non-maritime. The grant of admiralty jurisdiction contemplates the administration of the general rules of the maritime law, Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; and there is an apparent anomaly in the extension of that jurisdiction, because of the accident of locality, to rights of action founded upon and controlled by state law.
If the jurisdiction may be extended through the chance of locality to transactions non-maritime in character, the necessary consequence is the extension of the general rules of the maritime law to such transactions. If the servant injured after launching is to look to the maritime law for his remedy, the master necessarily must be governed by that law in contracting for his labor.
The nature and extent of a duty imposed by law because of a contract relation cannot be determined with-
472
OCTOBER TERM, 1921.
Argument for Defendant.
257 U. S.
out consideration of the contract itself. The limitation upon the duty of a common carrier to a free passenger by the terms of the pass illustrates the point. Northern Pacific Ry. Co. v. Adams, 192 U. S. 440. Therefore the assumption of jurisdiction to determine the tort question implies a like assumption of jurisdiction to determine the contract relations of the parties; and to apply this to ship construction results in an encroachment upon the power of the States not hitherto attempted.
No requirement of maritime commerce compels uniformity in shipbuilding throughout the country; and it seems obvious that nothing in state regulation of the master and servant relation in ship construction work interferes with the proper harmony and uniformity of the maritime law in its international and interstate relations.
In each of the recent master and servant cases in which admiralty jurisdiction was sustained, the decision made clear that the employment was a maritime contract and the work maritime in its nature. Southern Pacific Co. v. Jensen, 244 U. S. 205; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372; Knickerbocker Ice Co. v. Stewart, supra.
The application of the Oregon Act to shipbuilding affects in no way the needed uniformity in maritime matters. Unlike the New York Act, the Oregon statute wipes out no rights or obligations existing under the maritime law; nor does it, of its own force, alter in the slightest degree the rights and remedies enforcible in the courts of admiralty. Its applicability results from the election of the party. The decisions in the Jensen and Stewart Cases indicate that the New York Act was declared inoperative as to maritime work because it was a compulsory compensation law.
GRANT SMITH-PORTER CO. v. ROHDE. 473
469.	Opinion of the Court.
Mr. Harry A. Hegarty, with whom Mr. Lee Roy E. Keeley and Mr. C. Larrimore Keeley were on the brief, for Rohde.
The question certified does not touch upon the construction of any contract between the libelant and the respondent, or between the respondent and the Fleet Corporation.
The true test is locality—navigable waters of the United States. Thomas v. Lane, Fed. Cas. No. 13,902; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52; Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388; Martin v. West, 222 U. S. 191; The Plymouth, 3 Wall. 20; Tucker v. Alexandraff, 183 U. S. 424.
The Oregon statute, in so far as it affects purely maritime matters, is not essentially different from the New York statute condemned in Knickerbocker Ice Co. v. Stewart, 253 U. S. 149. Southern Pacific Co. v. Jensen, 244 U. S. 205; Tucker v. Alexandroff, supra.
Mr. Justice McReynolds delivered the opinion of the court.
Asking for instruction, the court below has sent up the following certificate and questions. Judicial Code, § 239.
“ This cause came to the Circuit Court of Appeals for the Ninth Circuit upon an appeal from the United States District Court of Oregon from a judgment in favor of the appellee as libelant in that court, and against the appellant as libelee in that court, for the sum of $10,000. The cause was a libel in admiralty for damages for injury sustained.
“ Libelant, Herman F. Rohde, received injury while at work on a partially completed vessel lying at a dock in the Willamette River forming a part of the shipbuilding plant of respondent, Grant Smith-Porter Ship Company. The character of the work being done by libelant and the
474
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
operations of respondent of which the work formed a part are as follows: Respondent, Grant Smith-Porter Ship Company, at and prior to the time of libelant’s injury was engaged in constructing steam vessels for the United States government under contract with United States Shipping Board Emergency Fleet Corporation. One of these steam vessels was the steamer ‘Ahala.’ Prior to the time of libelant’s injury this steamer had been launched in the Willamette River at Portland, Oregon, which river is a part of the navigable waters of the United States. At the time of libelant’s injury, April 10, 1919, the vessel had been substantially completed, but was not ready for delivery and all of the work in process at the time of libelant’s injury was work pertaining to the construction of the vessel by respondent, Grant Smith-Porter Ship Company. Libelant’s work was that of a carpenter or joiner and at the time of the injury he was at work constructing a bulkhead enclosing certain tanks in the vessel.
“ Libelant began this proceeding in personam against respondent in the District Court of the United States for the District of Oregon sitting in admiralty. Negligence of the employer, respondent Grant Smith-Porter Ship Company, in the construction and maintenance of a scaffold is alleged as the ground for recovering of damages.
“At and prior to the time of libelant’s injury, there was in effect the so-called ‘ Workmen’s Compensation Law ’ of the State of Oregon (Chapter 112, Laws of Oregon, 1913, as amended Chapter 271 Laws of 1915, and Chapter 288 Laws of 1917). The law applied to hazardous occupations (including shipbuilding) within the State of Oregon. An option is given both to employers and workmen to accept the compensation law or to reject it; that is, both employers and workmen are required to notify the proper state authority if it is desired not to come under the act. Without such notice, the law is applicable and payments are required to be made by the employer, which
GRANT SMITH-PORTER CO. v. ROHDE. 475
469.	Opinion of the Court.
payments include deductions from the wages of workmen. Workmen who thus come under the act are entitled to receive certain specified payments in the event of injury, and the act provides (Section 12) : ‘And the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death, except as hereinafter specially provided.’
“At and prior to the time of libelant’s injury, respondent was engaged in shipbuilding operations on the Willamette River at Portland within the State of Oregon; and libelant was in its employ as a carpenter or joiner in such shipbuilding operations. Prior to the time of the injury, neither respondent, the employer, nor libelant, the workman, had notified the appropriate state authority of any rejection of the provisions of the Workmen’s Compensation Act, and up to the time of the injury, respondent, the employer, had taken all the steps required by the compensation act to bring the work under its provisions ; and there had been deducted and paid over to the commission administering the compensation fund payments from wages earned and paid libelant, the workman, up to the time of the injury. Payroll deductions from the wages of libelant and other workmen were made without regard to whether or not the work done by such workman was on vessels under construction on the ways or vessels under construction after launching.
“ Questions of law concerning which the Circuit Court of Appeals of the Ninth Circuit desires the instruction of the Supreme Court are: 1. Is there jurisdiction in admiralty because the alleged tort occurred on navigable waters? 2. Is libelant entitled because of his injury to proceed in admiralty against respondent for the damages suffered? ”
The contract for constructing “The Ahala” was non-maritime, and although the incompleted structure upon which the accident occurred was lying in navigable waters,
476
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
neither Rohde’s general employment, nor his activities at the time had any direct relation to navigation or commerce. Thames Towboat Co. v. The Schooner “Francis McDonald,” 254 U. S. 242. The injury was suffered within a State whose positive enactment prescribed an exclusive remedy therefor. And as both parties had accepted and proceeded under the statute by making payments to the Industrial Accident Fund it cannot properly be said that they consciously contracted with each other in contemplation of the general system of maritime law. Union Fish Co. v. Erickson, 248 U. S. 308. Under such circumstances regulation of the rights, obligations and consequent liabilities of the parties, as between themselves, by a local rule would not necessarily work material prejudice to any characteristic feature of the general maritime law, or interfere with the proper harmony or uniformity of that law in its international or interstate relations. Southern Pacific Co. v. Jensen, 244 U. S. 205; Western Fuel Co. v. Garcia, ante, 233.
The general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality, has been so frequently asserted by this court that it must now be treated as settled. Waring v. Clarke, 5 How. 441, 459; Philadelphia, Wilmington & Baltimore R. R. Co. v. Philadelphia Towboat Co., 23 How. 209, 215; The Propeller Commerce, 1 Black, 574, 579; The Plymouth, 3 Wall. 20, 33; Leathers v. Blessing, 105 U. S. 626, 630; Martin v. West, 222 U. S. 191, 197. See Atlantic Transport Co. v. Im-brovek, 234 U. S. 52, 59; and Hughes on Admiralty, 2d ed., p. 195.
The Workmen’s Compensation Law of Oregon declares that when a workman subject to its terms is accidently injured in the course of his employment he “ shall be entitled to receive from the Industrial Accident Fund
GRANT SMITH-PORTER CO. v. ROHDE. 477
469.	Opinion of the Court.
hereby created the sum or sums hereinafter specified and the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death . .
In Western Fuel Co. v. Garcia, supra, we recently pointed out that, as to certain local matters regulation of which would work no material prejudice to the general maritime law, the rules of the latter might be modified or supplemented by state statutes. The present case is controlled by that principle. The statute of the State applies and defines the rights and liabilities of the parties. The employee may assert his claim against the Industrial Accident Fund to which both he and the employer have contributed as provided by the statute, but he can not recover damages in an admiralty court.
This conclusion accords with Southern Pacific Co. v. Jensen, 244 U. S. 205; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372; Union Fish Co. v. Erickson, 248 U. S. 308; and Knickerbocker Ice Co. v. Stewart, 253 U. S. 149. In each of them the employment or contract was maritime in nature and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity. Here the parties contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.
As pointed out in The Ira M. Hedges, 218 U. S. 264, 270, “there sometimes is difficulty in distinguishing between matters going to the jurisdiction and those determining the merits.” The certified questions are not wholly free from uncertainty of that nature and we therefore state our view of their real intendment.
Construing the first question as meaning to inquire whether the general admiralty jurisdiction extends to a
478
OCTOBER TERM, 1921.
Syllabus.
257 U. S.
proceeding to recover damages resulting from a tort committed on a vessel in process of construction when lying on navigable waters within a State, we answer, yes.
Assuming that the second question presents the inquiry whether in the circumstances stated the exclusive features of the Oregon Workmen’s Compensation Act would apply and abrogate the right to recover damages in an admiralty court which otherwise would exist, we also answer, yes.
Mr. Justice Clarke concurs in the result.
The Chief Justice took no part in the decision of this cause.
DAVIS, DIRECTOR GENERAL OF RAILROADS, ET AL. v. WALLACE ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NORTH DAKOTA.
No. 329. Argued December 16, 1921.—Decided January 9, 1922.
1.	Where the case as made by the bill involves a real and substantial question under the Constitution and the requisite jurisdictional amount, the jurisdiction of the District Court, and of this court upon a direct review of its action, extends to all other questions involved, whether of federal or state law, and enables the court to rest its judgment on the decision of such of the questions as in its opinion effectually dispose of the case. P. 482.
2.	Equity will enjoin collection of an illegal tax in the absence of an adequate and certain remedy at law. P. 482.
3.	The Act of North Dakota, Laws 1919, c. 222, which lays an excise on foreign corporations of a percentage of their capital actually invested in the transaction of business in the State, provides that, for one engaged in business within and without the State, investment within the State shall mean that proportion of its entire stock and bond issues which its intrastate business bears to its total business; that where the business within the State is not otherwise
DAVIS v. WALLACE.	479
478.	Opinion of the Court.
easily and certainly separable, it shall be held to mean such proportion of the entire business as the property of the corporation within the State bears to its entire property, and that, in the case of a railroad or other specified public service corporation, whose line extends into the State from without, property within the State shall mean the proportion of the entire property of the corporation which its mileage within the State bears to its entire mileage. Held, that the mileage basis (declared unconstitutional in Wallace v. Hines, 253 U. S. 66), was intended to be the exclusive basis for computing the assessments of such a railroad company, and that assessments based on the ratio of the value of its railroad within the State to that of its entire railroad were not authorized by the statute. P. 482.
4.	The unconstitutionality of an excepting provision in a statute does not enlarge the scope of its other provisions. P. 484.
Reversed.
Appeal from a decree of the District Court, after a final hearing on bill and answer, dismissing a bill filed by the Director General of Railroads and five railroad companies to enjoin the collection of a special excise tax sought to be imposed under North Dakota Laws, 1919, c. 222.
Mr. Charles W. Bunn, with whom Mr. E. C. Lindley, Mr. M. L. Countryman and Mr. D. F. Lyons were on the brief, for appellants.
Mr. George E. Wallace for appellees.
Mr. Justice Van Devanter delivered the opinion of the court.	.
This is a suit by the Director General of Railroads and five railroad companies to enjoin the collection of a special excise tax assessed against each of the companies for the years 1918 and 1919 under a statute of North Dakota, c. 222, Laws 1919, which declares:
• “Every corporation, joint-stock company or association, now or hereafter organized under the law of any other State, the United States or a foreign country, and
480
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
engaged in business in the State during the previous calendar year, shall pay annually a special excise tax with respect to the carrying on or doing business in the State by such corporation, joint-stock company or association, equivalent to 50 cents for each $1,000.00 of the capital actually invested in the transaction of business in the State ; provided, that in the case of a corporation engaged in business partly within and partly without the State, investment within the State shall be held to mean that proportion of its entire stock and bond issues which its business within the State bears to its total business within and without the State and where such business within the State is not otherwise more easily and certainly separable from such entire business within and without the State, business within the State shall be held to mean such proportion of the entire business within and without the State, as the property of such corporation within the State bears to its entire property employed in such business both within and without the State ; provided, that in the case of a railroad, telephone, telegraph, car or freightline, express company or other common carrier, or a gas, light, power or heating company, having lines that enter into, extend out of or across the State, property within the State shall be held to mean that proportion of the entire property of such corporation engaged in such business which its mileage within the State bears to its entire mileage within and without the State. The amount of such annual tax shall in all cases be computed on the basis of the average amount of capital so invested during the preceding calendar year; provided, that for the purpose of this tax an exemption of $10,000.00 from the amount of capital invested in the State shall be allowed ; provided, further, that this exemption shall be allowed only if such corporation, joint-stock company or association furnish to the Tax Commissioner all the information necessary to its computation.”
DAVIS v. WALLACE.	481
478.	Opinion of the Court.
Each of the five railroad companies was subjected in the usual way to a full property tax on all of its property within the State, and that tax is not here in question. The suit relates only to the special excise tax.
The companies were all organized under the laws of States other than North Dakota and all own lines of railroad extending from other States into or through that State. These lines were under federal control and operated by the Director General during the years for which the excise tax was assessed.
The taxing officers at first assessed the tax for the year 1918 against these companies by using in its computation the mileage ratio prescribed in the second proviso of the statute; but this court held that the tax so assessed was an unwarranted interference with interstate commerce and a taking of property without due process of law. Wallace v. Hines, 253 U. S. 66. Thereupon the taxing officers assessed the tax for that year, and also for 1919, by using in its computation the ratio specified in the last preceding clause of the statute—that is to say, a ratio fixed by contrasting the value of the company’s railroad within the State with the value of its entire railroad within and without the State.
In the District Court the validity of the tax assessed on the new or substituted basis was challenged on the grounds (a) that as to railroad companies whose lines lie partly within and partly without the State the statute does not authorize or sanction a tax assessed on that basis; (b) that the statute imposes the tax only as a special excise on doing business in the State, and these companies were not thus engaged during the years for which the tax was assessed,—their railroads being then under federal control and operated exclusively by the Director General; and (c) that an excise tax assessed against these companies on the new or substituted basis operates necessarily to burden interstate commerce and to take property
482
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
without due process of law, and so is in conflict with the commerce clause of the Constitution and the due process clause of the Fourteenth Amendment.
At an early stage in the suit three judges granted an interlocutory injunction against the enforcement of the tax; but on the final hearing, which was on bill and answer, a decree was entered dismissing the bill on the merits. The plaintiffs then sought and were allowed a direct appeal to this court under § 238 of the Judicial Code.
The case made by the bill involved a real and substantial question under the Constitution of the United States and the amount in controversy exceeded three thousand dollars, exclusive of interest and costs, so the case plainly was cognizable in the District Court. In such a case the jurisdiction of that court, and ours in reviewing its action, extends to every question involved, whether of federal or state law, and enables the court to rest its judgment or decree on the decision of such of the questions as in its opinion effectively dispose of the case. Field v. Barber Asphalt Paving Co., 194 U. S. 618, 620; Siler v. Louisville & Nashville R. R. Co., 213 U. S. 175, 191; Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298, 303; Greene v. Louisville & Interurban R. R. Co., 244 U. 8. 499, 508.
As respects the right to sue in equity, it is enough to say that in this case we find the same absence of an adequate and certain remedy at law that was found in Wallace v. Hines, supra, where the right to invoke the aid of a court of equity was sustained.
The first of the objections made to the tax is that it was assessed on a basis which the statute does not authorize or sanction. Of course, if this be so the tax must fall, and the other objections need not be considered. The statute does not prescribe a single or unvarying basis whereon the tax shall be assessed, but designates several bases and
DAVIS v. WALLACE.	483
478.	Opinion of the Court.
defines the particular situation in which each shall be applied. Where the business of the • corporation is wholly within the State the tax is to be computed according to the “capital actually invested” in the business. Where the business is partly within and partly without the State the computation is to be based on a proportion of the company’s “entire stock and bond issue”, which is to be taken as representing the “investment within the State.” But the proportion is to be determined by standards which vary materially. In one situation it is to conform to the ratio of the company’s business within the State to its total business, and in another to the ratio of the company’s property employed in its business within the State to its entire property employed in its business wherever conducted. In the instance of railroad companies and other public utility corporations having lines partly within and partly without the State the statute specially provides that it shall conform to the ratio of the company’s mileage within the State to its entire mileage. This special provision is eimbodied in a proviso or excepting clause which comes immediately after the clause relating to other corporations and reads as follows:
“ . . . provided, that in the case of a railroad, telephone, telegraph, car or freight-line, express company or other common carrier, or a gas, light, power or heating company, having lines that enter into, extend out of or Across the State, property within the State shall be held to mean that proportion of the entire property of such corporation engaged in such business which its mileage within the State bears to its entire mileage within and without the State.”
This provision shows that the legislature intended by it to put the corporations which it describes in a separate class for the purposes of the tax, to require as to them that the tax be computed and assessed on the special basis there prescribed, and to exempt them from the bases 6267°—22------36
484
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
applicable to other corporations. That intention hardly could have been more clearly expressed.
True, this provision was held in Wallace v. Hines, supra, to be in conflict with constitutional limitations and indefensible as respects the railroad companies now before us; but that does not make the provision any the less a key to the intention of the legislature, or enable the taxing officers to subject these corporations to other provisions from which the act as a whole shows the legislature intended to except them.
Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted and which it was intended to qualify or restrain. The reasoning on which the decisions proceed is illustrated in State ex rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174. In dealing with a contention that a statute containing an unconstitutional proviso should be construed as if the remainder stood alone, the court there said: “This would be to mutilate the section, and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is 'stricken out.’ For all the purposes of construction it is to be regarded as part of the act. The meaning of the legislature must be gathered from all they have said, as well from that which is ineffectual for want of power, as from that which is authorized by law.”
Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that
NORTH DAKOTA v. CHICAGO & N. W. RY. CO. 485
478.	Syllabus.
restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is competent to give them a larger application. Had they been enacted without the excepting provision and had it been embodied in a subsequent amendatory act a different situation would be presented—one in which that provision would have no bearing on the meaning or scope of the others—because an existing statute cannot be recalled or restricted by anything short of a constitutional enactment. This was recognized in Truax v. Corrigan, ante, 312, where, when an amendatory exception proved unconstitutional, we held that the original statute stood wholly unaffected by it.
From what has been said it follows that to sustain the tax in question we should have to hold that the taxing officers, on finding that it could not constitutionally be assessed on the basis specially prescribed in the statute, were at liberty to assess it on another and different basis which the statute shows was not to be applied to corporations of the class to which these railroad companies belong. Of course we cannot so hold.
We are accordingly of opinion that the first objection to the tax is well taken, and therefore that the tax is invalid and its collection should be enjoined.
Decree reversed.
STATE OF NORTH DAKOTA EX REL. LEMKE, ATTORNEY GENERAL, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY ET AL.
IN EQUITY.
No. 25, Original. Argued on motion to dismiss January 5, 1922. Decided January 23, 1922.
1.	Section 211 of the Judicial Code, requiring that the United States be made a party to any suit to set aside or suspend an order of the
486	OCTOBER TERM, 1921.
Argument for Complainant.	257 U. S.
Interstate Commerce Commission, and § 208, requiring that such suits be brought in a District Court, were not repealed by the Act abolishing the Commerce Court, October 22, 1913, c. 32, 38 Stat. 219. P. 489.
2.	The provision that the United States shall be a party (Jud. Code, § 211) was made not as a mere matter of procedure but in protection of the public interests. P. 490.
3.	A State can sue in the District Court when the United States is a party and has consented to be sued there and has not expressed its consent to be sued elsewhere. P. 491.
4.	A bill brought by a State in this court against railroad companies to prevent their applying an order of the Interstate Commerce Commission increasing rates within the State, dismissed for want of equity, and the plaintiff remitted to its remedy in the District Court, upon the grounds that complete justice to the companies, and to the public policy indicated by Jud. Code, § 211, so required. P. 490.
Bill dismissed.
Original suit in this court against the above named and four other railroad companies, to restrain them from applying an order of the Interstate Commerce Commission increasing intrastate rates in North Dakota until this court can review the decision of the Commission and pass upon constitutional questions concerning it.
Mr. Charles W. Bunn, with whom Mr. Erasmus C. Lindley, Mr. Dennis F. Lyons and Mr. Benjamin W. Scandrett were on the brief, for defendants, in support of the motion to dismiss.
Mr. Karl Knox Gartner, with whom Mr. William Lemke, Attorney General of the State of North Dakota, was on the brief, for complainant, in opposition to the motion. Mr. Sveinbjorn Johnson, successor of Mr. Lemke as Attorney General, was on a supplemental brief filed after argument.
Neither the United States nor the Interstate Commerce Commission is a necessary party to this suit, as no remedy is sought against either.
NORTH DAKOTA v. CHICAGO & N. W. RY. CO. 487
485.	Argument for Complainant.
A procedure prescribed for application in the District Courts can have no application to procedure to be observed in this court in the filing of an original bill authorized by the Constitution. There is nothing in Illinois Central R. R. Co. v. State Public Utilities Commission, 245 U. S. 493, or in any other decision of this court, or in § 208 or in any other provision of the Judicial Code, or any other law of Congress, that provides that the United States is a necessary party to a suit by a State against citizens of another State brought originally in this court, even though such suit might involve the nullification indirectly of an order of the Interstate Commerce Commission. See Ames v. Kansas, 111 U. S. 449; United States v. Louisiana, 123 U. S. 32; Minnesota v. Northern Securities Co., 184 U. S. 199; Minnesota v. Hitchcock, 185 U. S. 373; Skinner & Eddy Corporation v. United States, 249 U. S. 557.
Section 208, Jud. Code, has been repealed by the District Court Jurisdiction Act of October 22, 1913, 38 Stat. 219, passed as a part of the general deficiency bill of that date.
It is uncertain under the wording of Art. HI, § 2, of the Constitution whether the original jurisdiction of this court to try suits by a State against citizens of another State or States is exclusive. Ames v. Kansas, 111 U. S. 449, 464. Cf. United States v. Louisiana, 123 U. S. 32. At the most, the District Court Jurisdiction Act created a jurisdiction in the District Courts which, as respects suits by a State against citizens of other States, is simply concurrent with the original jurisdiction of this court under Art. Ill, § 2. Can that act—an act of Congress—providing that cases in the District Courts which but for its provisions would be brought against the Interstate Commerce Commission, shall thereafter be brought against the United States, be so interpreted by this court as constituting the United States a necessary party to this suit
488
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
in the sense in which that term is defined in Minnesota v. Northern Securities Co., 184 U. S. 236? Can an act of Congress intended to operate solely as a matter of procedure to be observed in District Courts be interpreted so as to operate to defeat a jurisdiction vested by the Constitution in the sovereign States of the nation to bring their controversies with citizens of other States originally in this court? Would not such an interpretation render the act itself unconstitutional?
For reasons of comity between the state and federal sovereignties, as a matter of judicial policy, any doubt as to the matter should be resolved in favor of the right of the State to proceed originally in this court. Ames v. Kansas, supra.
Mr. Solicitor General Beck and Mr. Blackburn Ester-line, Special Assistant to the Attorney General, by leave of court, filed a brief on behalf of the United States, as amici curiae.
Mr. Justice Holmes delivered the opinion of the court.
This is a bill in equity brought in this Court by the State of North Dakota against certain named railroad companies to prevent their applying an order of the Interstate Commerce Commission until this Court can review the decision upon which that order was made. The order increased the intrastate rates in North Dakota upon a finding that the present rates were an unjust discrimination against interstate commerce within the meaning of paragraph 4 of § 13 of the Act to Regulate Commerce as amended by the Transportation Act of February 28, 1920, c. 91, Title IV, § 416, 41 Stat. 456, 484. North Dakota Rates, Fares and Charges, 61 I. C. C. 504. Increased Rates, 1920, 58 I. C. C. 220. The ground of the bill is that the increase if applied will make the jobbing business within the State unable to compete with the
NORTH DAKOTA v. CHICAGO & N. W. RY. CO. 489
485.	Opinion of the Court.
jobbers of Minnesota, and that the order of the Interstate Commerce Commission is invalid (1) because based upon an increase in interstate rates that the Commission ordered without complying with the conditions said to be imposed by §§ 15a and 19a of the Interstate Commerce Act (a physical valuation;) (2) and because based upon a misconstruction of the above mentioned § 13(4). It is not necessary to state the objections more at length.
The defendants move to dismiss the bill. The first reason offered is that a State cannot sue on account of the' private grievances of its citizens. By an amendment the State alleged a property interest in itself but that amendment did not cover the extent of the relief asked, and the case is argued on the broad ground originally taken. We shall leave this question on one side, without deciding whether this case can be distinguished from Oklahoma v. Atchison, Topeka & Santa Fe Ry. Co., 220 U. S. 277, 286, et seq. The argument that we shall consider is that the suit is one to set aside or suspend the order of the Commission, Illinois Central R. R. Co. v. State Public Utilities Commission, 245 U. S. 493; that therefore by §211 of the Judicial Code the United States must be. made a party, and that the United States has consented to be sued only in the District Court, where such suits are required to be brought. Judicial Code, § 208. Act of October 22, 1913, c. 32, 38 Stat. 219.
The State replies in the first place that the sections of the Judicial Code relied upon relate to the establishment of the Commerce Court and therefore are repealed in terms by the Act of October 22, 1913, just referred to. But that argument cannot be maintained. A provision that all suits of a certain sort shall be brought in the Commerce Court is only modified, not repealed, by the abolition of the Court and the transfer of its jurisdiction to the District Courts. Such a statute does not relate merely to the establishment of the Commerce Court. The
490	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S_
sections cited always have been assumed, we believe, to remain in force and they were made a basis of decision in Illinois Central R. R. Co. v. State Public Utilities Commission, 245 U. S. 493, 504.
The main contention of the State is that if in the opinion of the Court it has a substantial right that is infringed by what the defendants are doing Congress neither can take that right away nor prevent the State from proceeding in this Court for such remedy as law or equity may afford. But if these premises were granted, it would not follow that the bill should be maintained. It is a proceeding in equity in which the requirements of complete justice and of public policy must be taken into account. When they are considered it seems to us pretty clear that the State should be remittee! to the remedy offered by the statutes—a suit in the District Court in which the United States is made a party. Complete justice requires that the railroads should not be subjected to the risk of two irreconcilable commands—that of the Interstate Commerce Commission enforced by a decree on the one side and that of this Court on the other. The decision in this case although an authority would not be res judicata, and the Commission would not be concluded from rearguing the whole matter. As to public policy, Congress has indicated the policy of the United States. For although it is argued that the requirement that the United States should be made a party is a mere matter of procedure for the purpose of giving the Department of Justice control, we cannot limit the significance of the Judicial Code, § 211, by such a speculation. The language of the section shows that public interests were before the mind of Congress, and that in its opinion an order made in the public interest should not be hindered from going into effect until the representative of the public had been heard. It appears to us that this view is so reasonable that it should be accepted by this Court even if not bound.
CORNELI v. MOORE.	491
485.	Syllabus.
There is no doubt that a State can sue in the District Court when the United States is a party and has consented to be sued there and has not expressed its consent to be sued elsewhere. United States v. Louisiana, 123 U. S. 32. Ames v. Kansas, 111 U. S. 449. For the reasons that we have indicated it is equitable that a decree should not be entered except in such form as to bind the Interstate Commerce Commission and the United States and therefore this bill must be dismissed. The right of the State is sufficiently protected by its right to appeal from the decision of the District Court. Cohens v. Virginia, 6 Wheat. 264, 395, et seq.
Bill dismissed.
CORNELI v. MOORE, COLLECTOR OF INTERNAL REVENUE.
GHIO v. MOORE, COLLECTOR OF INTERNAL REVENUE.
APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.
BRYAN v. MILES, COLLECTOR OF INTERNAL REVENUE FOR THE DISTRICT OF MARYLAND, ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MARYLAND.
EASTES v. CRUTCHLEY, COLLECTOR OF INTERNAL REVENUE FOR THE SIXTH DISTRICT OF MISSOURI, ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.
Nos. 174, 175, 428, 548. Argued December 15, 1921.—Decided January 30, 1922.
1.	Under the National Prohibition Act, the owner of whisky stored in a bonded warehouse can not secure its release upon payment of
492	OCTOBER TERM, 1921.
Counsel for Parties.	257 U. S.
the tax, for transportation to his dwelling for consumption there as a beverage by himself, his family and bona fide guests. Sections 3,25,33,37, Title II, and § 6, Title III, considered. P. 495. Street v. Lincoln Safe Deposit Co., 254 U. S. 88, distinguished.
2.	Thus construed, the act does not deprive the owner of the liquor of property without due process of law, or take it for public purposes without compensation. P. 498.
3.	So held, where ownership was acquired, by purchase of warehouse receipts, (a) before the ratification of the Eighteenth Amendment, (b) after the ratification and before the effective date of the Prohibition Act, and (c) after that date. P. 498.
Affirmed.
Appeals from decrees of District Courts dismissing on motions as many bills filed by parties alleging themselves to be owners of barrels of whisky in bonded warehouses and praying mandatory injunctions to compel the collectors of internal revenue in charge to accept payment of the government taxes, issue the stamps and allow removal. In Nos. 428 and 548, the federal prohibition directors were also joined, the bills praying that they be required to issue the necessary permits for removal and transportation to plaintiffs’ homes. In No. 174, the plaintiff alleges that he became the owner in the spring of 1917, and in No. 175 that ownership began on February 28, 1920, by purchase of a warehouse receipt. In Nos. 428 and 548, the bills show that ownership began by purchase of warehouse receipts, October 2, 1919, and August 24, 1917.
Mr. Elliott W. Major and Mr. Glendy B. Arnold for appellants in Nos. 174,175, and 548. Mr. John T. Barker was also on the brief in No. 548.
Mr. Julian 8. Jones and Mr. J. Wallace Bryan, with whom Mr. James T. O’Neill, Mr. Glendy B. Arnold and Mr. Elliott W. Major were on the briefs, for appellant in No. 428.
Mr. Solicitor General Beck and Mrs. Mabel Walker Willebrandt, Assistant Attorney General, for appellees.
CORNELI v. MOORE.	493
491..	Opinion of the Court.
Mr. Wayne B. Wheeler, by leave.of court, filed a brief as amicus curiae.
■ Mr. Justice McKenna delivered the opinion of the court.
These cases, though having different parties and coming from different courts, are dependent upon the same considerations. They differ in some details but they all involve the Eighteenth Amendment to the Constitution of the United States and'its assistant legislation, the National Prohibition Act.
The Amendment after its ratification prohibited for beverage purposes, among other things, the transportation of intoxicating liquor within the United States and all territory subject to the jurisdiction thereof. And Congress and the States were given concurrent power to enforce the prohibition by appropriate legislation.
Congress in pursuance of that power passed the National Prohibition (Volstead) Act, 41 Stat. 305. Are the cases at bar within the mandate and the prohibition, are the special questions involved in them.
First, as to the cases as displayed in the bills—there are some differences in their averments but their essential allegations identifying them in principle are as follows: The appellees were, respectively, Collectors of Internal Revenue for the First Internal Revenue District of the State of Missouri, the District of Maryland, and the Sixth Internal Revenue District of the State of Missouri. It was the duty of each to collect and receive taxes on distilled spirits in government bonded warehouses, and upon payment of the taxes to issue revenue stamps showing the payment of the taxes. As such officers they had, respectively, the custody and control of the spirits, and the right of ingress to and egress from the warehouses.
Each appellant became the purchaser of a barrel of whiskey, in one of the warehouses (it is designated),
494	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
which was identified and which he was desirous of removing to his dwelling for use and disposition of the spirits according to law. The appellees refused to release or deliver the spirits, or to accept the payment of the taxes thereon which appellants either tendered or, on account of opposing declarations of appellees, ommitted to tender.
The refusal of appellees to release the spirits is asserted to be wrongful and illegal and a violation of the Fifth Amendment to the Constitution of the United States, in that it deprives appellants of their property without due process of law and takes it for public use without just compensation.
The prayers of the bills were in effect (we disregard particulars) to require appellees to do what was necessary to release the spirits from the warehouses and to enable them to be transported to the respective dwellings of appellants.
The bills were dismissed upon motions of appellees.
Against the rulings upon the motions, and against the decrees dismissing the bills, appellants adduce certain provisions of the National Prohibition Act and cite Street v. Lincoln Safe Deposit Co., 254 U. S. 88.
So much of the cited portions as is relevant we insert in the margin. We may observe, however, that while their provisions extend to the manufacture, sale and other disposition of intoxicating beverages, as well as to their transportation, we only insert the provisions concerning the latter.1
1 “ Sec. 3. No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect . . . transport ... or possess any intoxicating liquor except as authorized in this Act, and all the provisions of this Act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. . . . Provided, That nothing in this Act shall prohibit the purchase and sale of warehouse receipts
CORNELI v. MOORE.	495
491.	Opinion of the Court.
Before considering the provisions here specially involved, we may say that the act has been sustained, and it has been decreed that the power of Congress can be asserted against the disposal for beverage purposes of all liquor manufactured before the Amendment became effective, as it can be asserted against subsequent manufacture for those purposes. Either case is within the constitutional mandate and prohibition.
A consideration of the act becomes necessary. Section 3 is comprehensive in its prohibition, and it takes pains to provide that it shall have such liberality of construction as to achieve its declared purpose.
covering distilled spirits on deposit in Government bonded warehouses, and no special tax liability shall attach to the business of purchasing and selling such warehouse receipts.”
“ Sec. 25. It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property. . . . No search warrant shall issue to search any private dwelling occupied as such. . . . The term ‘ private dwelling ’ shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house. . . .”
“ Sec. 33. After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being . . . disposed of in violation of the provisions of this title. Every person legally permitted under this title to have liquor shall report to the commissioner within ten days after the date when the eighteenth amendment of the Constitution of the United States goes into effect, the kind and amount of intoxicating liquors in his possession. But it shall not be unlawful to possess liquors in one’s private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used.”
496
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
It is, however, contended that there is modification of this apparent universality of prohibition, and that, by a permission of traffic in warehouse receipts, liquor in storage in bonded warehouses is not subject to the ban of the section.
Regarding the words of § 3 in connection with some of the provisions of §§ 25 and 33, they give some plausibility to the contention and some puzzle to construction, but we are repelled nevertheless from those of appellants. To accept them would defeat the purpose of the act and its achievement of the mandate of the Constitution. That mandate is, as will be seen by reference to § 1 of the Amendment, that the “ transportation of intoxicating liquors within . . . the United States . . . for beverage purposes ” shall be prohibited. And, as we have said, the act declares (§3) that all of its provisions shall be liberally construed “ to the end ” to quote its words, “ that the use of intoxicating liquor as a beverage may be prevented.” The method of appellants, we think, tended to the opposite effect; tended to the use of liquor as a beverage—not its prevention.
We are unable to see in § 33 which takes illegality from the “ liquors in one’s private dwelling while the same is occupied and used by him as his dwelling only ” and the rights that may attach to liquors in such situation an intention to extend such rights to liquors not so situated or, to put it more pointedly, an intention to make all bonded warehouses of the country outbuildings of its dwellings.
There is nothing favorable to appellants’ contention in § 37.1 It permits transportation to bonded warehouses
1 “ Sec. 37. Nothing herein shall prevent the storage in United States bonded warehouses of all liquor manufactured prior to the taking effect of this Act, or prevent the transportation of such liquor to such warehouses or to any wholesale druggist for sale to such druggist for purposes not prohibited when the tax is paid, and permits may be issued therefor. . . .”
CORNELI v. MOORE.	497
491.	Opinion of the Court.
but not from them as inferred by appellants. Transportation from them is confined to transportation to a wholesale druggist for sale to him for purposes not prohibited. A permit is necessary even for this.
In connection with § 37; § 6, Title III of the act is pertinent. It permits distilled spirits produced and fit for beverage purposes remaining in bonded warehouses to be withdrawn for denaturing “ or for deposit in a bonded warehouse established under this Act.”
Counsel urge Street v. Lincoln Safe Deposit Co., supra, against this conclusion, and as sustaining their contention. In that case, by motion to dismiss, it was admitted that Street was the lessee of a room in the Deposit Company’s warehouse, in which he had stored liquors, acquired prior to the effective date of the National Prohibition Act, which liquors were “in his exclusive possession and control, and are intended, and will be used only for personal consumption by himself and the members of his family or his bona fide guests.” The storage room was obviously the use of a convenience very commonly employed and contributory to his dwelling, and therefore, for the reasons stated in that opinion, it was concluded that the National Prohibition Act did not render unlawful the storage of liquors there involved or their transportation, under proper permit, to the dwelling of the owner for lawful uses. And this difference in the facts in the case from those in the cases at bar removes it as a precedent. There is no analogy in Street’s relation to the room in the Deposit Company’s warehouse and appellants’ relation to bonded warehouses. They had neither control, access to nor possession of the spirits they purchased. Mere ownership was not the equivalent. Under § 33 there must be ownership, and possession in one’s private dwelling, and that character cannot be assigned to the bonded warehouses of the Government.
498	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
Comment on other provisions of the act we do not think is necessary. A reference to them demonstrates that they have no militating force against our conclusion.
But appellants contend the effect we assign to the act is to assign to it the effect of depriving them of their property without due process of law or taking it for public purposes without just compensation. To understand the conditions of the contention, a distinction in the cases must be noted. The purchases by appellants were at different dates. The spirits purchased by Cornell were all stored in bond in the Spring of 1917, a date prior to the ratification of the Eighteenth Amendment. Bryan became the owner of his on the second of October, 1919, and, therefore, prior to the effective date of the Volstead Act which was January 16, 1920. Dillon v. Gloss, 256 U. S. 368. Ghio’s purchase was about the twenty-eighth of February, 1920, which was after the date of the Amendment and the effective date of the Volstead Act. Eastes avers his ownership dates from August 24, 1917.
In considering the bearing of the dates of purchase and their relation to the dates of the Amendment and the Volstead Act, the question of their construction blends in the discussion somewhat confusingly with the question of their constitutionality. It is asserted that the Eighteenth Amendment was not intended to be retrospective and that if it and the Volstead Act should be so treated, that is, if applied to liquor manufactured and lawfully, acquired before their respective dates, they are void—they thereby taking from property its essential attributes, “ the right to use it, possess it and enjoy it,” contrary to the Fifth Amendment to the Constitution,—and that the Fifth Amendment is not repealed by the Eighteenth Amendment. We are not disposed to trace the elements of the contentions minutely—they are answered in all their phases by the National Prohibition Cases, 253 U. S. 350, 387.
Decrees affirmed.
CORNELI v. MOORE.	499
491.	McReynolds, J., dissenting.
Mr. Justice McReynolds, dissenting.
These cases differ somewhat and I speak with reference to No. 174—Corneli v. Moore,—finally determined on motion to dismiss.
The opinion and ruling just announced seem to me in direct conflict with Street v. Lincoln Safe Deposit Co. (1920), 254 U. S. 88. I think the reasoning of that opinion is bad; but it has been adopted, and the construction which it placed upon the act should be adhered to or frankly overruled. The effort to distinguish the present case from the earlier one is but toying with the immaterial.
Prior to the enactment of any National Prohibition law and during the Spring of 1917, Corneli acquired the barrel of distilled spirits numbered 125,694, then on deposit in United States General Bonded Warehouse No. 1, St. Louis, Mo., where he resides. In strict conformity with law he allowed the spirits to remain there until the Autumn of 1920, when he offered to pay the taxes and demanded permission to move them to his home for lawful use.
In Street v. Lincoln Safe Deposit Co., wines and liquors, worth more than $3,000 “ securely and properly packed and stored in bottles, barrels, casks and cases,” had long been held in the large public warehouse, No. 60 East Forty-second Street, New York City, owned and operated by the Deposit Company, and it was alleged that “ complainant does not intend to remove the same voluntarily except as they may be required from time to time for consumption”. Notwithstanding the inhibitions of the Volstead Act it was ruled that the owner might continue to store them for an indefinite period and then remove them to his dwelling for personal use. The opinion not only declared the storage lawful but also said (p. 93): “ That transportation of the liquors to the home of ap-6267°—22-----37
500	OCTOBER TERM, 1921.
McReynolds, J., dissenting.	257 U.S.
pellant, under the admitted circumstances, is not such as is prohibited by the section is too apparent to justify detailed consideration of the many provisions of the act inconsistent with a construction which would render such removal unlawful. . . .”
Cornell entrusted his supply to a government warehouse as permitted by the statute and is denied the privilege of taking it home because that warehouse is not contributory to his dwelling, nor an adjunct thereto, nor an outbuilding connected therewith. Street made no such claim concerning the Forty-second Street Warehouse—indeed his counsel seem to have been wholly ignorant of this extraordinary extension of his home—and the decree in his favor was not rested on that gossamer. It went upon the assumption that Congress never intended to prohibit bona fide owners of lawfully acquired liquors from storing and removing them for personal use at home, although the Government stoutly maintained the contrary view. The following quotation from the opinion sufficiently indicates the theory accepted by the court:
“ It may be that the custody of liquors by a warehouse company was thus not declared to be unlawful because the writers of the act did not have such a case in mind, but it was more probably because Congress would not consent to allow lawful possession and use of liquors in dwellings having storage facilities for them, while denying the only possible means of preserving and protecting such liquors to persons with less commodious homes. The Congress was concerned with the great problem of preventing the manufacture and sale of intoxicating liquors for beverage purposes in the future, and it seems to have given but slight attention to the consumption of such relatively small amounts of such liquors as might be in existence in private ownership and intended for consumption by the owner, his family or his guests, when the Amendment and the act should take effect. An intention
GILLESPIE v. OKLAHOMA. 501
491.	Statement of the Case.
to confiscate private property, even in intoxicating liquors, will not be raised by inference and construction from provisions of law which have ample field for other operation in effecting a purpose clearly indicated and declared.”
If Comeli had only suspected the remarkable power of the Forty-second Street Warehouse to attach itself to the dwellings of all patrons, without regard to distance, he might have chosen a safer course. He stored where the statute said he might. Now he is told that no analogy exists between his lonely barrel there and the many “ bottles, barrels, casks and cases ” which, within more favored walls, await the pleasure of their owner.
GILLESPIE v. STATE OF OKLAHOMA.
ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.
No. 322. Argued January 3, 1922.—Decided January 30, 1922.
1.	The net income derived by a lessee from sales of his share of oil and gas received under leases of restricted Creek and Osage lands, which constitute him in effect an instrumentality used by the United States in fulfilling its duties to the Indians, can not be taxed by. a State. P. 504. Choctaw, Oklahoma & Gulf R. R. Co. v. Harrison, 235 U. S. 292; Indian Territory Illuminating OU Co. v. Oklahoma, 240 U. S. .522.
2.	Distinction made between this case and taxing net income derived from interstate commerce. P. 504.
81 Okla. 103, reversed.	»
Error to a judgment of the Supreme Court of Oklahoma upholding income taxes assessed against the appellant. The judgment was in a proceeding initiated by his appeal to a court of first instance from the action of the State Auditor.
Mr. James P. Gilmore for plaintiff in error.
502
OCTOBER TERM, 1921.
Argument for Defendant in Error.
257 U. S.
Mr. C. W. King, with whom Mr. S. P. Freeling, Attorney General of the State of Oklahoma, was on the brief, for defendant in error.
It is going far afield for courts to hold that to tax the lessee of a restricted Indian leasehold upon his share of gross production of oil and gas, or other mineral, is indirectly taxing the exercise of a federal agency, and is, therefore, invalid; but to go a step farther and say that to require such lessee to include in his income tax returns net income derived from such source imposes a like burden would be carrying the idea of guardianship into too remote a channel to meet the practical application of taxing laws. The theory upon which such contention is made is that such a tax would have a deterring influence upon the purchasers of Indian leases. Such argument resolves itself into a question of degrees.
The contention was made without avail in reference to grazing leases on Indian lands that if the cattle of the lessee were taxed he would pay less for the lease to the Indian. Thomas v. Gay, 169 U. S. 264; Maricopa &c. Ry. Co. v. Arizona, 156 U. S. 347.
The fact that net income is derived from interstate commerce or exports does not remove it from state taxation. United States Glue Co. v. Oak Creek, 247 U. S. 321; Peck & Co. v. Lowe, 247 U. S. 165; Shaffer v. Carter, 252 U. S. 37; Stafford v. Travis, 132 N. E. 109.
The tax here attaches after all of the functions of the federal agency have been performed freely and untrammelled, after the lessee has received his compensation and after, with the close of his year’s business, it is found that he is possessed of a net income. To hold the tax a burden upon the lease would be to repudiate the entire scheme of net income taxation; that is, the net income regarded as a taxable subject-matter severed from its source. The income when it has reached this stage has become the individual acquisition of the taxpayer as com-
GILLESPIE v. OKLAHOMA. 503
501.	Opinion of the Court.
pletely as any other form of property and may be invested in other enterprises not connected with the business from which it came. To deny that proposition denies the power of the State to designate income as a subject of taxation.
If, however, the court should determine that the rule announced in the gross production tax cases does not apply to the Income Tax Act of Oklahoma, then defendant in error urges that the rule announced in the decided cases going up from Oklahoma was not determined with reference to the Oklahoma Act of 1916, and, as applied to the Act of 1916, the holding in the former cases—Choctaw, Oklahoma & Gulf R. R. Co. v. Harrison, 235 U. S. 292; Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U. S. 522—would be incorrect; and, further, that in determining the cases of Howard n. Gipsy Oil Co., 247 U. S. 503, and Large Oil Co. v. Howard, 248 U. S. 549, which did involve the Act of 1916, they were decided without reference to that act and without a careful regard to its provisions, but upon the theory that the statute involved was the former one previously construed; and those cases should, therefore, be overruled.
Mr. Justice Holmes delivered the opinion of the court.
Chapter 164, Oklahoma Laws of 1915, makes every person of the State liable to a tax upon his entire net income arising from all sources, except such as is exempt from taxation by some law of the United States or of the State. Under that statute Oklahoma seeks in these proceedings to hold the defendant, the plaintiff in error, liable for taxes for the years 1915, 1916, 1917 and 1918, upon net income derived by him as lessee from leases of restricted Indian (Creek and Osage) lands, the leases being of the kind dealt with in Choctaw, Oklahoma & Gulf. R. R. Co. v. Harrison, 235 U. S. 292, and Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U. S. 522. The
504
OCTOBER TERM, 1921.
Opinion of the Court.
257 U.S.
facts were set forth by the defendant in special returns for the years mentioned, claiming exemption under the Constitution and laws of the United States. The auditor of the State accepted the returns as true but held that the defendant was liable to taxes on the income derived by him from sales of his share of oil and gas received under his leases. It is agreed that the lessee was an instrumentality used by the United States in carrying out duties to the Indians that it had assumed, and that the only question in the case is whether he is liable to this kind of tax. The District Court of the State held the tax void and on appeal by the State the Supreme Court affirmed the judgment, but upon rehearing changed its mind and ordered the judgment reversed.
In Choctaw, Oklahoma & Gulf R. R. Co. v. Harrison, 235 U. S. 292, it was held that such a lessee could not be taxed on the gross sales of coals from Choctaw and Chickasaw mines, when the tax was in addition to the taxes collected upon an ad valorem basis. In Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U. S. 522, it was held that a similar lessee could not be taxed upon the value of an Osage oil lease. Subsequently the principle was applied per curiam to gross production taxes under a later statute of 1916, without reference to the fact that the taxes, instead of being in addition to, were in lieu of all taxes upon property rights. Howard v. Gipsy Oil Co., 247 U. S. 503. Large Oil Co. v. Howard, 248 U. S. 549.
The argument for the State is based primarily upon the cases sustaining taxes upon net income that include gains from interstate commerce, Shaffer v. Carter, 252 U. S. 37, 57; United States Glue Co. v. Oak Creek, 247 U. S. 321; when “ all expenses are paid and losses adjusted, and after the recipient of the income is free to use it as he chooses.” Peck & Co. v. Lowe, 247 U. S. 165, 175. It is said also that tangible property within the State is subject to taxation and that therefore the defendant’s
GILLESPIE v. OKLAHOMA. 505
501.	Opinion of the Court.
share of oil and gas cannot escape. If the cases that we have mentioned as decided per curiam tend to oppose the State’s position, on the ground that if the property is exempt the income from it also is exempt, it is urged that so far as appears the distinction between the statute of 1916 then before the Court and the statutes dealt with by the authorities cited in those cases was overlooked.
We cannot assume that there was the oversight supposed. The decision in 240 U. S. 522, that such leases were not taxable went on general principles not on the nature of the particular statute, and in Shaffer v. Carter, 252 U. S. 37, 48, a case that adverted to the distinction relied upon, pp. 57, 58, the decisions per curiam were referred to as decided upon the merits. Those decisions appear to us to have been correct. The criterion of interference by the States with interstate commerce is one of degree. It is well understood that a certain amount of reaction upon and interference with such commerce cannot be avoided if the States are to exist and make laws. New York, New Haven & Hartford R. R. Co. v. New York, 165 U. S. 628. Diamond Glue Co. v. United States Glue Co., 187 U. S. 611, 616. The rule as to instrumentalities of the United States on the other hand is absolute in form and at least stricter in substance. Williams v. Talladega, 226 U. S. 404, 416, 417,419. Johnson v. Maryland, 254 U. S. 51, 55. “A tax upon the leases is a tax upon the power to make them, and could be used to destroy the power to make them.” 240 U. S. 530. The step from this to the invalidity of the tax upon income from the leases is not long.
In cases where the principal is absolutely immune from interference an inquiry is allowed into the sources from which net income is derived and if a part of it comes from such a source the tax is pro tanto void; Pollock v. Farmers9 Loan & Trust Co., 157 U. S. 429; 158 U. S. 601; a rule lately illustrated by Evans v. Gore, 253 U. S. 245; and ap-
506
OCTOBER TERM,j 1921.
Syllabus.
257 U. S.
plied in a case somewhat like the present by the Supreme Court of Hawaii. Oahu Ry. & Land Co. v. Pratt, 14 Hawaii, 126. Whether this property could be taxed in any other form or not, it cannot be reached as profits or income from leases such as those before us. The same considerations that invalidate a tax upon the leases invalidate a tax upon the profits of the leases, and, stopping short of theoretical possibilities, a tax upon such profits is a direct hamper upon the effort of the United States to make the best terms that it can for its wards. Weston v. Charleston, 2 Pet. 449, 468. The taxation of cattle grazing in Indian lands held valid in Thomas v. Gay, 169 U. S. 264, 273, obviously is more remote. As a writ of error lies in this case the petition for certiorari that was presented for greater caution will be denied. Dahnke-Walker Milling Co. v. Bondurant, ante, 282.
Judgment reversed.
Mr. Justice Pitney, Mr. Justice Brandeis and Mr. Justice Clarke dissent.
INTERNATIONAL RAILWAY COMPANY v. DAVIDSON, INDIVIDUALLY AND AS COLLECTOR OF THE PORT OF BUFFALO, ET AL.
APPEAL FROM AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 340. Argued January 3, 4, 1922.—Decided January 30, 1922.
1. The Act of February 13, 1911, c. 46, 36 Stat. 899, authorizing special permits for immediate lading and unlading of vessels and other conveyances, and empowering the Secretary of the Treasury to fix extra compensation to be paid customs officials at the expense of the licensees for Sunday and holiday service in such lading or unlading, was not applicable to an international toll bridge nor to the operation thereon of a line of passenger trolley cars; nor was it made so by the amendment of February 7, 1920, c. 61, 41
• INTERNATIONAL RY. CO. v. DAVIDSON. 507
506.	Statement of the Case.
Stat. 402, by which the extra compensation was extended to cover overtime “ in connection with the unlading, receiving, or examination of passengers’ baggage,” this provision being given full effect if confined to baggage of passengers on vessels for the immediate lading or unlading of whose cargoes special license may issue under the original act. P. 512.
2. A company owning and operating a toll bridge, with a line of trolley cars, across the Niagara River, over which was heavy passenger travel in the cars, in other vehicles and on foot, and as to which customs inspection service had been maintained by the United States, as well on Sundays and holidays, when the travel was heaviest, as on week days, was notified that unless it procured a special license under the above amended act, which would necessitate its agreeing to pay the amount of extra compensation for customs officials and giving a bond to indemnify the United States against all losses arising from the granting of the license, no vehicle, except the cars, would be permitted to enter the United States on Sundays and holidays, and no passengers, except after surrender of all personal baggage, including handbags, to a customs guard, and that all vehicles except the cars, and all baggage surrendered, would be held by the collector at the owner’s risk for examination on the following working day. Held: (a) That the instruction of the Secretary of the Treasury to this effect could not be sustained as a discretionary determination that the movement of merchandise at the place did not justify maintaining customs service on the days in question. P. 514. (6) That it was not a valid regulation under Rev. Stats., § 161, but was both unreasonable and inconsistent with law, virtually laying a tax and providing for extra compensation of officials from a private source contrary to statute. P. 514. (c) That the bridge owner, as well as passengers and vehicle owners, had a standing to question the regulation. P. 515.
273 Fed. 153, reversed.
Review of a decree of the Circuit Court of Appeals affirming the action of the District Court in dismissing, for want of equity, a bill filed by the present petitioner to restrain the respondent collector of customs from putting into effect measures affecting the customs inspection at the terminus of petitioner’s toll bridge.
Mr. Basil Robillard for appellant and petitioner.
508
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
Mr. Assistant Attorney General Ottinger, with whom Mr. Solicitor General Beck and Mr. Harvey B. Cox were on the brief, for appellees and respondents.
Mr. John W. Beaumont, by leave of court, filed a brief as amicus curiae.
Mr. Justice Brandeis delivered the opinion of the court.
The International Railway Company owns and operates two public toll-bridges across the Niagara River between the United States and Canada. One is at Niagara Falls, the other at Lewiston, a short distance below. Over each bridge the company operates regularly its passenger cars; and over each there is heavy passenger travel also in other vehicles and on foot. For more than twenty years prior to June, 1920, the Government had, at its own expense, maintained at the American end of these bridges customs inspectors, continuously day and night, including Sundays and holidays. Then the Collector of Customs of the Port of Buffalo notified the company that on Sundays and holidays thereafter no vehicle (except trolley cars) would be permitted to enter the United States; that no passenger would be allowed to enter except after surrender to the customs guard of all personal baggage, even the smallest handbag; and that all vehicles (except trolley cars) and all baggage surrendered would be held by the Collector, at the owner’s risk, for examination on the next following working day. The company was further advised that continued service of customs inspectors on Sundays and holidays could be secured, if it would make application for a special license under the Act of February 13, 1911, c. 46, 36 Stat. 899, as amended by the Act of February 7, 1920, c. 61, 41 Stat. 402. Day and night customs service on ordinary week days was to be continued at the expense of the Government as thereto-
INTERNATIONAL RY. CO. v. DAVIDSON. 509
506.	Opinion of the Court.
fore. The Collector acted throughout under instructions of the Secretary of the Treasury.
The Act of 1911, entitled “An Act To provide for the lading or unlading of vessels at night ”, etc., declares that immediate lading or unlading of any vessel or other conveyance can be had upon the obtaining by “ master, owner, agent, or consignee ” of a special license therefor. To obtain the license it is necessary that the applicant shall agree to pay to the Collector of Customs an amount equal to the extra compensation of the customs officers employed therefor at night or on Sundays or holidays, and shall give a bond conditioned to indemnify the United States against all losses which arise from granting the license. The compensation payable for overtime, including services on Sundays and holidays, was fixed by the Secretary of the Treasury at double the day rate; and the amount of the bond for a six months’ license is fixed by the statute at fifty thousand dollars. The amendment of 1920 provides, among other things, that the work for which extra compensation is payable by the licensee shall include that of examining “ passengers’ baggage.” The company does not unlade any cargo at night or on Sundays or holidays, and does not contemplate doing so. It is interested only in preserving the passenger traffic passing over its bridges. This traffic on working days is not nearly as heavy as on Sundays and holidays. Discontinuance of the customs service on those days would, in large measure, destroy that traffic.
The company brought this suit in the Federal District Court for Western New York against the Collector to enjoin the threatened action, insisting that the provisions of these statutes are not applicable to a toll-bridge and that the Collector is without power to exact, as a condition of continuing the service, that the company take a license with the attendant burdens. The District Court
510
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
dismissed the bill for want of equity, 271 Fed. 313; and its decree was affirmed by the Circuit Court of Appeals, 273 Fed. 153. The case was brought here by appeal; and a petition for a writ of certiorari was also filed, consideration of which was postponed until the hearing on the merits. Whether the action taken and threatened exceeds the powers conferred by law is the main question presented.
The Act of 1911 contained no reference whatsoever to passengers or to their baggage or personal effects. It dealt exclusively with the grant of special permits for the immediate lading or unlading of vessels and other conveyances. It consists of five sections and a repealing clause. The first four prescribe the conditions under which such license shall issue and the proceedings to be taken thereunder. The fifth section gives the Secretary of the Treasury power to fix extra compensation to be paid customs officials serving at night, on Sundays or on holidays in connection with lading or unlading under such special permit; and it provides that an amount equal to the extra compensation shall be paid to the Collector by the licensee. The amendatory Act of February 7, 1920, made no change whatsoever in the first four sections of the Act of 1911. It dealt solely with the extra compensation, merely substituting the new § 5, shown in the margin.1 This
1 In the following reprint of the new § 5 the phrases omitted from old § 5 are bracketed and are in small capitals. The new phrases are in italics. That part of the section which remained unchanged is in ordinary type.
“ The Secretary of the Treasury shall fix a reasonable rate of extra compensation for [night] overtime services of inspectors, storekeepers, weighers, and other customs officers and employees who may be required to remain on duty between the hours of five o’clock postmeridian and eight o’clock antemeridian, or on Sundays or holidays, to perform services in connection with the lading or unlading of cargo [at night], or the lading [at night] of cargo or merchandise
INTERNATIONAL RY. CO. v. DAVIDSON. 511
506.	Opinion of the Court.
substituted section defines what shall be deemed overtime, how the rate of extra pay shall be fixed, and what the work is, for which extra compensation shall be paid. In for transportation in bond or for exportation in bond or for [the] exportation with benefit of drawback, or in connection with the receiving or delivery of cargo on or from the wharf, or in connection with the unlading, receiving, or examination of passengers’ baggage [but such rate of compensation shall not exceed an amount EQUAL TO DOUBLE THE RATE OF COMPENSATION ALLOWED TO EACH SUCH OFFICER OR EMPLOYEE FOR LIKE SERVICES RENDERED BY DAY], SUCh rates to be fixed on the basis of one-half day’s additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o’clock postmeridian (but not to exceed two and one-half days’ pay for the full period from five o’clock postmeridian to eight o’clock antemeridian), and two additional days’ pay for Sunday or holiday duty. [,] The said extra compensation shall [to] be paid by the master, owner, agent, or consignee of such vessel or other conveyance whenever such special license or permit for immediate lading or unlading or for lading or unlading at night or on Sundays or holidays shall be granted to the collector of customs, who shall pay the same to the several customs officers and employees entitled thereto according to the rates fixed therefor by the Secretary of the Treasury : Provided, That such extra compensation shall be paid if such officers or employees have been ordered to report for duty and have so reported, whether the actual lading, unlading, receiving, delivery, or examination takes place or not. Customs officers acting as boarding officers and any customs officer who may be designated for that purpose by the collector of customs are hereby authorized to administer the oath or affirmation herein provided for, and such boarding officers shall be allowed extra compensation for services in boarding vessels at night or on Sundays or holidays at the rates prescribed by the Secretary of the Treasury as herein provided, the said extra compensation to be paid by the master, owner, agent, or consignee as such vessel [s] : Provided further, That in those ports where customary working hours are other than those hereinabove mentioned, the Collector of Customs is vested with authority to regulate the hours of customs employees so as to agree with prevailing working hours in said ports, but nothing contained in this proviso shall be construed in any manner to affect or alter the length of a working day for customs employees or the overtime pay herein fixed.”
512
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
this work it includes that u in connection with the unlading, receiving, or examination of passengers’ baggage.” The contention of the Government is that the mere insertion of these words in § 5 has the effect of establishing a system of special licenses applicable to toll-bridges which are not vessels or other conveyances, and on which there is neither cargo, lading or unlading, but passengers who pass on foot or in trolleys or automobiles.
The contention is at variance with the language of the act and with its history. Obviously the words “ vessel or other conveyance ” are not appropriate to describe the plant of a toll-bridge. Other provisions, also, of the Act of 1911, like the requirement of “entry of vessels, and due report of other conveyances” before issue of the special license, show that it was not the purpose of Congress to make it applicable to the conduct of a toll-bridge or the operation thereon of a line of passenger trolley cars. The clause in the amendment of 1920 by which the extra compensation payable under § 5 is extended to cover overtime “ in connection with the unlading, receiving, or examination of passengers’ baggage ” is given full effect, if applied to the baggage of passengers on those vessels for the immediate lading and unlading of whose cargoes special license may issue under the first four sections of the Act of 1911. That these were the only overtime services in connection with passengers for which the amendment made provision is confirmed by its history. The injustice of denying to customs officials compensation for such overtime services was obvious. But the Secretary of the Treasury had been advised, after the passage of the Act of 1911, as well as before, that he was without power to make—or to require the vessel owner to make— any payment therefor, since passengers’ baggage is not “ cargo ”, 30 Ops. Atty. Gen. 123. To remedy this and other defects in the provision for extra pay, the amendment was introduced at the instance of the Treasury De-
INTERNATIONAL RY. CO. v. DAVIDSON. 513
506.	Opinion of the Court.
partment, with the approval of the United States Shipping Board and of the American Steamship Association.1
Congress created two distinct systems for the examination of articles coming from foreign countries. One dealt with articles imported as merchandise; the other with passengers’ baggage and personal effects. That distinction, established by the Act of March 2,1799, c. 22,1 Stat. 627, has been preserved in all later legislation. One Pearl Chain v. United States, 123 Fed. 371, 374. For merchandise there are elaborate provisions concerning entry, manifests, unloading, invoices, consular certificates and bills of lading. Revised Statutes, §§ 2581, 2867, 2962 and 2872, as amended by Act of June 26, 1884, c. 121, § 25, 23 Stat. 53, 59. There are special provisions affecting importations from Canada and Mexico. Revised Statutes, §§ 3097, 3098, 3099. Compliance with these requirements necessarily involves delays. Concerning passengers’ baggage and effects the provisions are much simpler. They are designed to secure expeditious entry. Revised Statutes, §§ 2799, 2800, 2801 and 2802, deal with articles from foreign ports. There are additional provisions concerning
1 Report of Committee on Commerce, Senate No. 306, 66th Cong., 1st sess. In presenting the report in the Senate on behalf of the Committee, Mr. Calder said: “We have had a law on the statute books for a number of years permitting the lading and unlading of vessels at night, for which the Government employees were paid in some such manner as is prescribed in this measure. But a year or two ago the Attorney General held that men could not be paid for passing upon the baggage taken off ships at night, but could be paid for supervising the discharging of the cargoes. That caused some difficulty, because we found a customs official examining baggage at night and being unpaid for it, and right alongside of him a customs official examining cargo and being paid for that.” 59 Cong. Rec., Part 1, p. 640. See also 59 Cong. Rec., Part 2, pp. 2176-2178; Hearing of October 11, 1919, on Hours of Labor and Pay of Customs Inspectors on H. R. 6577, Committee on Ways and Means; Senate Report No. 660, 61st Cong., 2d sess.; House Report No. 1657, 61st Cong., 2d sess.
514
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
articles coming from contiguous countries. Revised Statutes, §§ 3100, 3101, 3102. That Congress intended by the Act of 1920 to abandon this distinction between merchandise and passengers’ baggage which had been carefully preserved in the Act of 1911, is not to be assumed.
It is also insisted that the Secretary of the Treasury has authority, independently of the power specially conferred by the Act of 1911 as amended, to issue the instruction complained of. The contention is that his instruction to the Collector was not to compel the bridge company to pay the cost of the inspection service but merely to withdraw the service unless the company would agree to pay the cost ; that since customs officials cannot be maintained at every point where merchandise may conceivably enter from contiguous countries, discretion must rest in the Secretary to determine whether the character and extent of the movement at a particular place justifies maintaining them there; and that the instruction given was a regulation under § 161 of the Revised Statutes which had the force of law. Haas v. Henkel, 216 U. S. 462, 480. To this contention it is perhaps a sufficient answer to say that the instruction given was obviously not a determination by the Secretary that the travel over these bridges on Sundays and holidays was not such as to justify the Government in maintaining the inspection service. The travel was heavier on those days than on any other; and the service had been maintained continuously for more than twenty years. But there are other conclusive answers. Section 161 does not confer upon the Secretary any legislative power. Morrill v. Jones, 106 U. S. 466; United States v. George, 228 U. S. 14. A regulation to be valid must be reasonable and must be consistent with law. The instruction given lacks both of these essentials. To collect the cost of customs service from vessel owners or others is virtually laying a tax upon them. This cannot be done except by specific authorization of Congress.
INTERNATIONAL RY. CO. v. DAVIDSON. 515
506.	Opinion of the Court.
Moreover, unless so authorized, no official or employee may receive from the Government pay for extra services. Revised Statutes, § 1764; United States v. Garlinger, 169 U. S. 316. Nor may he receive in connection with his services pay from any private source, Act of March 3, 1917, c. 163, § 1, 39 Stat. 1106. Customs officials especially are forbidden to receive such payment. Revised Statutes, § 1790. Furthermore, to impose upon the company the obligation of furnishing an indemnity bond covering losses which may accrue to the Government from the action, not of the bridge company or of its employees, but of any passenger who crosses the bridge was clearly unreasonable. It was this lack of power in the Secretary to impose upon others any part of the cost of the customs service unless specially authorized by Congress which led to the enactment also of the earlier legislation concerning special licenses for lading and unlading of cargoes.1 The instructions here attacked profess to rest, not upon Revised Statutes, § 161, but upon the Act of 1911 as amended by that of 1920, T. D. 38290; T. D. 38429. The claim of such authority by virtue of the power to establish regulations for the Department was apparently first made in this suit.
It is further contended that the petitioner has no standing to question the regulation which applies not to it, but to the owners of private conveyances and of personal baggage brought over the bridge. While these also might be entitled to seek redress, it is clear that the instructions given threaten vital interests of the bridge company to which a court of equity should afford protection. The
1 See Act of March 3, 1873, c. 240, 17 Stat. 579; Revised Statutes, §§2871, 2872; Acts of June 26, 1884, c. 121, §25, 23 Stat. 53, 59; June 5, 1894, c. 92, 28 Stat. 85; May 31, 1900, c. 600, 31 Stat. 249; December 16, 1902, c. 2, 32 Stat. 753; June 30, 1906, c. 3909, 34 Stat. 633. See also T. D. 28214, in re Act of 1906; T. D. 31562, in re Act of 1911.
6267°—22---38
516	OCTOBER TERM, 1921.
Syllabus.	257 U. S.
jurisdiction of this court on appeal was also questioned. In support of the jurisdiction it is urged that the bill invoked rights under the Constitution as well as under the revenue laws; and treaty rights are also pressed upon us; Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 407; Merriam Co. v. Syndicate Publishing Co., 237 U. S. 618, 621. Whether the appeal lies we need not decide. A writ of certiorari was also applied for and the question presented is of sufficient importance to require determination by this court. Montana Mining Co. v. St. Louis Mining Co., 204 U. S. 204, 213.
Decree reversed.
STATE OF GEORGIA v. STATE OF SOUTH CAROLINA.
IN EQUITY.
No. 16, Original. Argued January 4, 5, 1922.—Decided January 30, 1922.
1.	Under the Beaufort Convention of April 28, 1787, defining the boundary between South Carolina and Georgia on the Savannah River and tributaries, reserving islands to Georgia,—Held: (a) Where there are no islands in the boundary rivers, the line is on the water midway between the main banks when the water is at ordinary stage. P. 521. (b) Where there are islands, it is midway between the island bank and the South Carolina shore, with the water at ordinary stage. P. 522. (c) Islands in the Chattooga River, the “ most northerly branch or stream ” of the Tugaloo, apparently not known as the Chattooga at the time of the Convention, are reserved to Georgia as completely as those in the Savannah and Tugaloo proper. P. 522.
2.	The general rule is that where a river, navigable or nonnavigable, is the boundary between two States, and the navigable channel is not involved, in the absence of convention or controlling circumstances to the contrary, each takes to the middle of the stream. P. 521.
GEORGIA v. SOUTH CAROLINA. 517
516.	Opinion of the Court.
3. The location of the boundary under the above convention, held unaffected by the Thalweg or Main Navigable Channel doctrine, in view of the provision that each State shall have equal rights of navigation on the streams. P. 521.
Original suit to define a boundary between States.
Mr. Geo. M. Napier, Attorney General of the State of Georgia, and Mr. Thos. F. Green, with whom Mr. Seward M. Smith was on the brief, for complainant.
Mr. S. M. Wolfe, Attorney General of the State of South Carolina, and Mr. A. M. Lumpkin for defendant.
Mr. Justice Clarke delivered the opinion of the court.
The parties to this case agree: That the boundary line between the States of Georgia and South Carolina is the river Savannah from the sea to the junction of the Seneca (formerly Keowee) and the Tugaloo (formerly spelled Tugalo) rivers; that it continues thence northwesterly by the Tugaloo river to the junction of the Tallulah and Chattooga rivers, and thence by the Chattooga river to the 35th parallel of north latitude, which is the south boundary of North Carolina. But they differ as to the location of the boundary line in these three rivers, and the State of Georgia, by original bill, prays that the controversy be settled by a decree of this court.
The State of Georgia contends: That, where there are no islands in the rivers, the line between the two States is midway between the river banks, when the water is at its ordinary stage; that, where there are islands, this line deflects and follows the middle line of the most northerly branch or stream, where it runs between any island and the South Carolina shore; and it claims jurisdiction over all islands in all three boundary rivers.
South Carolina, on the other hand, admits in its answer that where there are no islands the line between the States is the “ middle thread of the stream where the rivers flow
518
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
in one stream or volume,” but at the bar and in its brief it is argued, strenuously, that the true line is the low water mark on the southerly or Georgia bank of each river. It also claims that where there are islands the line is at low water mark on the southerly bank of the most northerly stream or branch of the river, and, while conceding all the islands in the rivers Savannah and Tugaloo to Georgia, it denies the jurisdiction of that State over those in the Chattooga river.
Thus it will be seen that the controversy is limited to the determination: (1) Whether the boundary line shall be located midway between the banks of each river where there are no islands, or at low water mark on the Georgia shore; (2) Whether the location of the boundary line where there are islands in the rivers, is in the middle of the stream running between any island and the South Carolina shore, or at low water mark on the southern or island shore of such stream; and (3) Whether any islands there may be in the Chattooga river are within the territorial jurisdiction of Georgia.
The taxation of dams and hydro-electric plants, already constructed and hereafter to be constructed, in the boundary rivers, renders the decision of the questions involved of importance to the two States.
It is not necessary to recite or discuss the historic origin of the titles which the two contending States have to the territory comprised within their present boundaries, for it is stipulated that the rights of the parties are to be determined by the construction of the terms of a written convention or treaty, entered into on April 28, 1787, by commissioners appointed by the two States. This convention, entered into pursuant to the provisions of the Articles of Confederation of 1778, under which the States were then united for the purposes of government, having been executed at Beaufort, South Carolina, is designated in the record as the Beaufort Convention.
GEORGIA v. SOUTH CAROLINA. 519
516.	Opinion of the Court.
Only two articles of this Convention need be considered, and they are as follows:
“Art. I. The most northern branch or stream of the river Savannah, from the sea or mouth of such stream to the fork or confluence of the rivers now called Tugalo and Keowee; and from thence, the most northern branch or stream of the said river Tugalo, till it intersects the northern boundary line of South Carolina, if the said branch or stream of Tugalo extends so far north, reserving all the islands in the said rivers Savannah and Tugalo to Georgia; but if the head spring or source of any (branch or stream of the said river Tugalo does not extend to the north boundary line of South Carolina, then a west line to the Mississippi, to be drawn from the head spring or source of the said branch or stream of Tugalo river, which extends to the highest northern latitude, shall for ever hereafter form the separation limits and boundary between the states of South Carolina and Georgia.
“Art. II. The navigation of the river Savannah at and from the bar and mouth, along the northeast side of Cockspur island, and up the direct course of the main northern channel along the north side of Hutchinson’s Island, opposite the town of Savannah, to the upper end of said island, and from thence up the bed or principal stream of the said river to the confluence of the rivers Tugalo and Keowee, and from the confluence up the channel of the most northern stream of Tugalo river to its source, and back again by the same channel to the Atlantic Ocean— is hereby declared to be henceforth equally free to the citizens of both states, and exempt from all duties, tolls, hinderance, interruption, and molestation whatsoever, attempted to be enforced by one state on the citizens of another; and all the rest of the river Savannah to the southward of the foregoing description, is acknowledged to be the exclusive right of the state of Georgia.”
First. As to the location of the line where there are no islands. While the admission quoted from the answer of
520
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
South Carolina would be sufficient to justify locating the line, where there are no islands, in the “middle thread of the stream where the rivers flow in one stream or volume,” nevertheless the earnestness with which the contention for the low water mark on the Georgia shore is argued constrains us to consider the question further.
That the admission in the answer was not made inadvertently is conclusively shown by the fact that the General Assembly of South Carolina, in 1852, by resolution, appearing in the record, declared: That the Beaufort Convention defines the boundary between the two States; that the terms of the first article of that convention “construed by the undisputed principles of international and common law, fix, as the limit of the respective jurisdictions of the two States, . . . the thread or middle of the most northern branch or stream of the rivers Savannah and Tugaloo, where these rivers have more than one branch or stream, and the thread or middle of these rivers where there is but one branch or stream,” and that the courts, the legislature and the departments of the government of the State have uniformly given to and acquiesced in this construction of the Convention.
A like declaration appears in the “Code of the Statute Law of South Carolina,” adopted in 1861, in which the line where there are no islands is described as located at the “ middle thread of the stream where the rivers flow in one stream or volume.”
With this construction of Article I of the Convention, by the courts, general assembly and heads of departments of South Carolina, we fully agree.
The express reservation of the islands to Georgia and the placing of the boundary line in the most northerly branch of the Savannah and then of the Tugaloo river up to the “ northern boundary of South Carolina,” makes it clear that where there are islands in the river the line must be between them and the South Carolina shore, for
GEORGIA v. SOUTH CAROLINA. 521
516.	Opinion of the Court.
otherwise the Georgia islands would be within the State of South Carolina. While it is true that the line, where there are no islands, is not specifically located by the Convention at the “ thread or middle of the stream,” neither is it, in terms, placed at the low water mark on the Georgia bank. However, the general rule is that where a river, navigable or non-navigable, is the boundary between two States, and the navigable channel is not involved, in the absence of convention or controlling circumstances to the contrary, each takes to the middle of the stream (Handly’s Lessee n. Anthony, 5 Wheat. 374, 379; Hall, International Law, 6th ed., 123; Creasy First Platform of International Law, § 231), and therefore in this case the conclusion of the General Assembly of South Carolina in 1852 and in 1861, as we have quoted it, was clearly the correct one.
We conclude that where, in any of the boundary rivers here involved, there are no islands the location of the boundary line between the two States is the thread of the river—the middle line of the stream—regardless of the channel of navigation, the precise location to be determined when the water is at its ordinary stage, “ neither swollen by freshets nor shrunk by drought.” Trustees of Hopkins Academy v. Dickinson, 9 Cush. 544, 552.
Second. As to the location of the boundary line “where the most northern branch or stream ” flows between an island or islands and the South Carolina shore.
Obviously such a stream may be wide and deep and may contain the navigable channel of the river, or it may be narrow and shallow and insignificant in comparison with the adjacent parts of the river. But such variety of conditions cannot affect the location of the boundary line in this case, because, by Article II of the Convention, equal and unrestricted right to navigate the boundary rivers is secured -to the citizens of each State, irrespective of the location of the navigable channel with respect to the boundary line.
522
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
Thus, Article II takes out of the case any influence which the Thalweg or Main Navigable Channel Doctrine {Iowa v. Illinois, 147 U. S. 1; Arkansas v. Tennessee, 246 U. S. 158, 169, 170, 171) might otherwise have had upon the interpretation to be placed on Article I, by which the location of the line must be determined, and leaves the uncomplicated case of a boundary stream between two States quite unaffected by other considerations.
Thus again we have the case of a stream for a boundary between two States and with the precise location of the boundary line unaffected by the Thalweg Doctrine, or by other circumstances, and again the rule must be applied that the division line is midway between the banks of e the stream,—here between the island bank on the one side and the South Carolina bank on the other,—its precise position to be determined when the water is at its ordinary stage.
Third. As to the islands in the Chattooga River.
Article I, as quoted, makes it plain that the commissioners executing the Convention of Beaufort intended to provide that the most northern branch of the river which they knew as the Tugaloo, as far northerly as its intersection with the northern boundary of South Carolina, if it extended so far north, should be the boundary line between the two States. It is now known that the most northern branch of that river extends as far north as the south boundary line of North Carolina (the 35th parallel of north latitude) and beyond that the controversy in this case does not extend. The fact that this “ most northerly branch or stream of the Tugalo ” has come to be known as the Chattooga in that part of it northerly of the junction of the rivers now known as the Tullulah and Chattooga, neither of which appears by this record to have been known or named at the time the Convention was executed, cannot change the rights of the parties to the Convention, in the islands in that part of
UNITED STATES v. COOK. 523
516.	Syllabus.
the stream. The Chattooga is but the extension of the Tugaloo,—the northern branch or stream of that river— and the fact that it is called Chattooga cannot affect the jurisdiction of Georgia over “ all the islands in the said rivers Savannah and Tugalo ” to which State they are specifically reserved by the Convention. The islands in the Chattooga River, as well as those in the Savannah and Tugaloo, were reserved to Georgia by the Convention.
Thus we conclude: (1) Where there are no islands in the boundary rivers the location of the line between the two States is on the water midway between the main banks of the river when the water is at ordinary stage; (2) Where there are islands the line is midway between the island bank and the South Carolina shore when the water is at ordinary stage; and (3) That islands in the Chattooga River are reserved to Georgia as completely as are those in the Savannah or Tugaloo rivers.
Counsel may present a decree, within thirty days, to carry into effect these conclusions of the court, with or without a commission to locate and monument the boundary line as they may be advised. The costs of suit will be equally divided between the two States.
UNITED STATES v. COOK, EXECUTOR OF EAMES, ET AL.
APPEAL FROM THE COURT OF CLAIMS.
No. 80. Argued January 13, 1922.—Decided February 27, 1922.
Claimants contracted with the Government to plan and supervise the construction of a public building for a fee, to be paid on monthly estimates and final completion, of 5 per cent, of the actual cost of the work executed from their drawings and specifications and under their supervision, as shown upon the books of the Supervising Architect by the net amount of construction con-
524	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
tracts awarded and proposals accepted for additions or. deductions. The building was delayed by an earthquake and fire and Congress made an additional appropriation to be paid the building contractor upon its completion, to recoup him for actually resulting losses due to increased prices of labor and materials; denying him any profit under his contract; and this extra payment was shown on the books of the Supervising Architect—but no appropriation was made for the claimants, although they had suffered likewise and had applied to Congress unsuccessfully.
Held: (1) The allowance to the building contractor was not a gratuity but an alteration of his contract based on a moral consideration. P. 526.
(2) Claimants were entitled to their percentage on the additional amount so paid, since their equity was equally as strong and the words of their contract permitted. P. 528.
55 Ct. Clms. 215, affirmed.
Appeal from a judgment of the Court of Claims upholding a claim of architects for fees under a contract with the United States.
Mr. Assistant Attorney General Lovett for the United States.
Mr. William R. Harr, with whom Mr. Chas. H. Bates was on the brief, for appellees.
Mr. Chief Justice Taft delivered the opinion of the court.
Eames and Young, architects of St. Louis, made the plans for a custom house at San Francisco and supervised its construction. They were to receive compensation at the rate of five per centum upon the actual cost of the work. The work was long delayed, three years, by the San Francisco earthquake and fire which increased the cost of labor and materials. Congress authorized the Secretary of the Treasury within a limit of $250,000 to make good to the contractor his loss from the delay and enhanced prices so that he should receive enough to re-
UNITED STATES v. COOK. 525
523.	Opinion of the Court.
coup him for his outlay but without profit. The architects claimed from the Government five per centum on the extra amount paid to the contractor. Eames died and Cook, his executor, joining with the surviving partner, Young, brought this suit in the Court of Claims. The Court of Claims gave judgment for $5,095.38, the full amount of the claim. The Government appeals.
The contract provided that the fee of the architects was to be computed at the rate of five per centum upon “ the actual cost of the work executed from the drawings and specifications, and under their supervision, as shown upon the books of the Supervising Architect’s Office, by the net amounts of contracts awarded and proposals accepted for additions or deductions.” Until the actual cost could be determined, the monthly payments were to be on the proposed cost as estimated from time to time by the Government, and upon the completion of the building the entire fee was to be computed on the actual construction cost of the work executed from the architects’ drawings and specifications and under their supervision, as shown upon the books of the Supervising Architect’s Office. The extra amount paid the contractor was in fact shown upon the books of the Supervising Architect’s Office though not of course included in the total cost stated before the passage of the act and the ascertainment of the amount due thereunder.
The clause in the Sundry Civil Appropriation Act, approved May 27, 1908, c. 200, 35 Stat. 318, providing for an extra payment to the contractor was as follows:
“ The Secretary of the Treasury is authorized, upon completion of the custom-house in the city of San Francisco, California, to pay to Thomas Butler, the contractor for the construction of said building, in addition to the contract price thereof, such sum as may be equitable and just to reimburse said contractor for any loss actually sus-
526
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
tained in consequence of the earthquake and great fire of April, nineteen hundred and six, not exceeding the sum of two hundred and fifty thousand dollars: Provided, That the amount allowed said Thomas Butler shall not be sufficient to enable him to make any profit out of the making and execution of said contract.”
The committee appointed by the Secretary of the Treasury to adjust the claim found that the actual increased cost to the contractor of constructing the building due to delay and the increased prices of labor and material was $101,907.66. During the delay of three years, the architects under their subsidiary contract had to keep a superintendent of construction on the building at a cost of $6,700, and their office and certain contingent expenses in San Francisco went on.
The Government contends that the amount awarded to the contractor under the act was a mere gratuity and can not be properly treated as a part of the cost of construction. We can not agree to this view. It seems to us that this was an alteration of the contract in response to equitable considerations. It was a change from unit prices to a cost plus nothing contract. It was not a mere lump sum gift. It was the result of inspection and examination as directed by Congress, and an award by actual estimates. It was the result of a change in the contract terms made by the principal in whose name and for whose benefit the contract was entered into, and acquiesced in by the contractor. It added to “ the actual cost of the work executed from the drawings and specifications and under [the architects’] supervision, as shown upon the books of the Supervising Architect’s Office, by the net amounts of contracts awarded and proposals accepted for additions or deductions.” The additional sum was part of the net amount of the contracts awarded, as they were legally modified by the agreement of the parties embodied in the clause of the congressional act. The
UNITED STATES v. COOK. 527
523.	Opinion of the Court.
architects’ subsidiary contract for compensation contemplated changes in the amount of actual cost by additions and deductions, i. e., by changes in the main contract, and a postponement of final calculation until the full actual cost had been ascertained. The change by legislation was, of course, not within the minds of the parties when the work was entered upon, because the earthquake and fire and change of situation were not anticipated. This, however, is not enough to exclude it from the operation of the architects’ contract if the change can be brought fairly within the terms.
It is not helpful to point out that the United States need not have varied the terms of the main contract, or that no consideration moved to it in the change, or that the contractor could not have recovered anything additional in a suit without the legislation. There was the moral consideration which properly induced the recognition of an honorable obligation and turned an unenforceable equity into a binding and effective provision.
Reference is made to Frisbie v. United States, 157 U. S. 166, and other cases in which a pension is said to be a gift and not a vested right. These cases have no bearing on the one before us. They merely establish that Congress in shaping the form of its bounty may impose conditions and limitations on its acquisition and enjoyment by the beneficiaries which it could not impose on the use and enjoyment by them of a vested right.
An authority more helpful in the present case is that of United States v. Realty Co., 163 U. S. 427. The question there was the validity of an appropriation by Congress of money to reimburse sugar planters who on the faith of a sugar bounty provided by statute, Field v. Clark, 143 U. S. 649, 694, had planted a crop and were subjected to heavy loss by repeal of the statute. The Government objected that the sugar bounty was unconstitutional and that Congress could not pay such a bounty either by
528
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
prior appropriation or by reimbursement. This court found it unnecessary to decide whether a sugar bounty was beyond the power of Congress; but assuming its invalidity, held that even though, in its purely legal aspect, an invalid law could not be made the basis of a legal claim, the planter had acquired a claim against the Government of “ an equitable, moral or honorary nature,” that Congress had power to pay the debts of the United States, that the Nation, speaking broadly, owed a “ debt ” to an individual when his claim grew out of right and justice; when, in other words, it was based upon considerations of a moral or merely honorary nature, and that the power of Congress extended to the payment of such a debt. The claim of the contractor in this case was more concrete than that of the sugar planter and was equitably recognized by Congress as part of the cost of the building to be paid by the Government.
The architects had just as great an equity in this matter as the contractor. The delays and rise in the prices affected their expenses proportionately. When, therefore, the contractor has received more for the work, it is just that the architects receive a percentage on what has thus been recognized by the Government as a “ debt ” to the contractor for his work, and the words of the contract are inclusive enough to permit this to be done.
The fact that the architects unsuccessfuly applied to Congress for relief similar to that accorded to the contractor is relied on as an admission by the architects that only by congressional action could they have equity done them. We do not consider this material or important. We can not say from anything before us but that the reason why Congress did not make special provision for the architects was the assumption that their equities might be worked out under their contract as they have been by this judgment of the Court of Claims.
Affirmed.
TERRAL v. BURKE CONSTR. CO. 529
Argument for Appellant.
TERRAL, AS SECRETARY OF STATE OF THE STATE OF ARKANSAS, v. BURKE CONSTRUCTION COMPANY.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.
No. 93. Argued January 17, 1922.—Decided February 27, 1922.
A state law which revokes the license of a foreign corporation to do business within the State because, while doing only a domestic business within the State, it resorts to the federal court sitting in the State, is unconstitutional. P. 532. Doyle v. Continental Insurance Co., 94 U. S. 535, and Security Mutual Life Insurance Co. v. Prewitt, 202 U. S. 246, held to have been overruled.
Affirmed.
Error to a decree of the District Court enjoining the appellant from revoking the license of the appellee corporation to do business in Arkansas.
Mr. J. S. Utley, Attorney General of the State of Arkansas, and Mr. Frank S. Quinn, for appellant, submitted.
It is alleged in the bill that the complainant is engaged in interstate commerce. The averment is overcome by the denial in the answer. Iowa v. Illinois, 147 U. S. 7.
The act in controversy is not repugnant to the Constitution as an undue requirement or regulation of a foreign corporation not engaged in interstate commerce. State v. Hodges, 114 Ark. 155; Doyld v. Continental Insurance Co., 94 U. S. 535; Security Mutual Life Insurance Co. v. Prewitt, 202 U. S. 246.
After the Doyle and Prewitt Cases, came the decisions in Western Union Telegraph Co. v. Kansas, 216 U. S. 1; Herndon v. Chicago, Rock Island & Pacific Ry. Co., 218 U. S. 135; and Harrison v. St. Louis de San Francisco R. R. Co., 232 U. S. 318. Those cases held that any state regulation of interstate commerce was void. In Wisconsin v. Philadelphia & Reading Coal & Iron Co., 241 U. S.
530	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
329, the question was again before this court. In that case the company was engaged in interstate as well as intrastate commerce.
The conclusion to be reached, as we conceive it, from the above decisions, is, that, in determining the validity of the act here in question, the facts surrounding this particular case must control; if the appellee is not engaged in interstate commerce and is not a foreign commercial corporation, then the act is constitutional as to it.
Mr. William Marshall Bullitt, with whom Mr. James B. McDonough was on the briefs, for appellee.
Mr. Chief Justice Taft delivered the opinion of the ’ court.
This is an appeal from the District Court under § 238 of the Judicial Code, in a case in which the law of a State is claimed to be in contravention of the Constitution of the United States.
The Burke Construction Company, a corporation organized under the laws of the State of Missouri, filed its bill against Terral, Secretary of State of Arkansas, averring that it had been licensed to do business in the State of Arkansas under an act of the Arkansas Legislature approved May 13, 1907; that it was organized for the purpose of doing construction work, and carrying on interstate commerce, and was actually so engaged in Arkansas; that the right to do business in the State was a valuable privilege, and the revocation of the license would greatly injure it; that it had brought an original suit in the federal court of Arkansas and had removed a suit brought against it to the same federal court; that the Secretary of State was about to revoke the license because of such suit and such removal, acting under the requirement of § 1 of the Act of the Legislature of Arkansas of May 13, 1907, reading as follows:
TERRAL v. BURKE CONSTR. CO. 531
529.	Opinion of the Court.
“ If any company shall, without the consent of the other party to any suit or proceeding brought by or against it in any court of this State, remove said suit or proceeding to any Federal court, or shall institute any suit or proceeding against any citizen of this State in any Federal court, it shall be the duty of the Secretary of State to forthwith revoke all authority to such company and its agents to do business in this State, and to publish such revocation in some newspaper of general circulation published in this State; and if such corporation shall thereafter continue to do business in this State, it shall be subject to the penalty of this Act for each day it shall continue to do business in this State after such revocation.”
The penalty fixed is not less than $1,000 a day. The Construction Company avers that this act is in contravention of § 2, Article III, i. e., the judiciary article of the Federal Constitution, and of § 1 of the Fourteenth Amendment.
The defendant filed an answer in which there were many denials. One was that the complainant was engaged in interstate commerce. The answer did not deny, however, that the complainant was a foreign corporation, that it had been duly granted a license to do business in the State of Arkansas, that its right to do business in the State thus licensed was a valuable right, that the complainant had brought suit in the federal district court and removed another case to that court, that such suit and removal were violations of the license granted by the State of Arkansas, or that the defendant intended to cancel the plaintiff’s license. The case was heard on bill and answer, and is to be considered on the averments of the bill which are not denied by the answer. Iowa v. Illinois, 147 U. S. 1, 7.
The sole question presented on the record is whether a state law is unconstitutional which revokes a license to a foreign corporation to do business within the State be-6267°—22-------39
532
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
cause, while doing only a domestic business in the State, it resorts to the federal court sitting in the State.
The cases in this court in which the conflict between the power of a State to exclude a foreign corporation from doing business within its borders, and the federal constitutional right of such foreign corporation to resort to the federal courts has been considered, can not be reconciled. They began with Insurance Co. v. Morse, 20 Wall. 445, which was followed by Doyle n. Continental Insurance Co., 94 U. S. 535; Barron n. Burnside, 121 U. S. 186; Southern Pacific Co. v. Denton, 146 U. S. 202; Martin v. Baltimore & Ohio R. R. Co., 151 U. S. 673, 684; Barrow S. S. Co. v. Kane, 170 U. S. 100, 111; Security Mutual Life Insurance Co. v. Prewitt, 202 U. S. 246; Herndon v. Chicago, Rock Island & Pacific Ry. Co., 218 U. S. 135; Harrison v. St. Louis & San Francisco R. R. Co., 232 U. S. 318, and Wisconsin v. Philadelphia & Reading Coal & Iron Co., 241 U. S. 329.
The principle established by the more recent decisions of this court is that a State may not, in imposing conditions upon the privilege of a foreign corporation’s doing business in the State, exact from it a waiver of the exercise of its constitutional right to resort to the federal courts, or thereafter withdraw the privilege of doing business because of its exercise of such right, whether waived in advance or not. The principle does not depend for its application on the character of the business the corporation does, whether state or interstate, although that has been suggested as a distinction in some cases. It rests on the ground that the Federal Constitution confers upon citizens of one State the right to resort to federal courts in another, that state action, whether legislative or executive, necessarily calculated to curtail the free exercise of the right thus secured is void because the sovereign power of a State in excluding foreign corporations, as in the exercise of all others of its sovereign powers, is subject to the
MISSOURI PAC. R. R. CO. v. CLARENDON CO. 533
529.	Statement of the Case.
limitations of the supreme fundamental law. It follows that the cases of Doyle v. Continental Insurance Co., 94 U. S. 535, and Security Mutual Life Insurance Co. v. Prewitt, 202 U. S. 246, must be considered as overruled and that the views of the minority judges in those cases have become the law of this court. The appellant in proposing to comply with the statute in question and revoke the license was about to violate the constitutional right of the appellee. In enjoining him the District Court was right, and its decree is
Affirmed.
MISSOURI PACIFIC RAILROAD COMPANY v. CLARENDON BOAT OAR COMPANY, INC.
ERROR TO THE COURT OF APPEALS, SECOND CIRCUIT, OF THE STATE OF LOUISIANA.
No. 102. Argued January 20, 1922.—Decided February 27, 1922.
A state law for securing jurisdiction over foreign corporations in proceedings in the state courts, by requiring appointment of agents upon whom process may be served, applicable alike to actions by residents or nonresidents, clearly does not violate due process in not applying to transitory actions arising outside the State; a contention to the contrary made by plaintiff foreign corporation is frivolous, and will not support a writ of error. P. 534.
Writ of error dismissed. ’
Error to review a judgment of the Court of Appeals of Louisiana affirming a judgment of a District Court of the State and dismissing for want of jurisdiction an action for breach of contract brought by the railroad against the Boat Oar Company.
Mr. Allan Sholars, with whom Mr. Henry Bernstein and Mr. F. G. Hudson, Jr., were on the brief, for plaintiff in error.
No brief filed for defendant in error.
534	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
Mr. Chief Justice Taft delivered the opinion of the court.
This is a writ of error to the judgment of the highest court of the State of Louisiana to which the case could be taken. The plaintiff, the Missouri Pacific Railroad Company, a Missouri corporation, sued the defendant company, the Clarendon Boat Oar Company, a New York company, for damages in the District Court of Richland Parish, for the breach of an affreightment contract entered into in the State of Arkansas and to be performed in that State. The defendant appeared solely to except to the jurisdiction. The District Court sustained the exception, and, on appeal to the Court of Appeals of the Second Circuit, this ruling was affirmed and the cause dismissed. The Supreme Court of the State refused to entertain an appeal.
Act No. 243 of 1912, p. 543, and Act No. 267 of 1914, p. 532, of the Annual Laws of Louisiana, provide that service on foreign corporations may be made on any agent which the corporation has designated, and require that every foreign corporation doing business in the State shall file a written declaration with the Secretary of the State showing its domicile and the place or places where it is to do business and designating its agent, resident in the parish where its business is to be done, and that service on said agent, whether personal or domiciliary, shall be a valid service on it. The Court of Appeals in this case held, following what it deemed to be the holding by the Louisiana Supreme Court in the case of Watkins v. North American Land & Timber Co., 106 La. 621, that the Louisiana statute was not intended to give the state courts jurisdiction over foreign corporations by service on agents appointed thereunder, in transitory actions arising in another State. The action of the Supreme Court in refusing to entertain an appeal in this cause shows this to be the
MISSOURI PAC. R. R. CO. v. CLARENDON CO. 535
533.	Opinion of the Court.
authoritative construction of the statute by the state courts.
This writ of error is based on the theory that the statute of Louisiana, thus construed, denies the plaintiff in error due process of law and the equal protection of the laws in contravention of the Fourteenth Amendment to the Federal Constitution. In the Watkins Case, supra, the Supreme Court of the State held that the provisions of the foreign corporation law furnished equal opportunity to residents and non-residents to sue foreign corporations. The contention comes down to this, therefore, that it is a lack of due process for a state statute of procedure to fail to furnish a person, within the limits of the State, power to sue a non-resident corporation and take judgment for a cause of action arising in another State. Under § 2 of Article IV of the Federal Constitution, the citizens of each State are entitled to all privileges and immunities of citizens in the several States. This secures citizens of one State the right to resort to the courts of another, equally with the citizens of the latter State; but where the citizens of the latter State are not given a process for reaching foreign corporations, it is not apparent how non-citizens can claim it. Provisions for making foreign corporations subject to service in the State is a matter of legislative discretion, and a failure to provide for such service is not a denial of due process. Still less is it incumbent upon a State in furnishing such process to make the jurisdiction over the foreign corporation wide enough to include the adjudication of transitory actions not arising in the State. Indeed, so clear is this that, in dealing with statutes providing for service upon foreign corporations doing business in the State upon agents whose designation as such is especially required, this court has indicated a leaning toward a construction where possible, that would exclude from their operation causes of action not arising in the business done by them in the State. Mitchell Furni
536	OCTOBER TERM, 1921.
Statement of the Case.	257 U. S.
ture Co. v. Selden Break Construction Co., ante, 213; Old Wayne Mutual Life Association v. McDonough, 204 U. S. 8, 22; Simon v. Southern Ry. Co., 236 U. S. 115,130. The latter case was a Louisiana case under this same law. In these circumstances and this state of the authorities in this court, it is frivolous to claim that a statute of procedure, by its failure to give jurisdiction over foreign corporations in transitory actions arising in another State, constitutes a lack of due process of which plaintiff in error can complain. In such a case the writ must be dismissed. Farrell v. O’Brien, 199 U. S. 89, 100; Empire State-Idaho Mining Co. v. Hanley, 205 U. S. 225, 232; Goodrich v. Ferris, 214 U. S. 71, 79; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Town of Graham, 253 U. S. 193,195.
The writ of error is dismissed.
UNITED STATES v. M. RICE & COMPANY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS APPEALS.
No. 114. Argued January 26, 1922.—Decided February 27, 1922.
In an importer’s protest, under par. N of the Tariff Act of 1913, against a collector’s decision on classification of goods, it is not necessary to set up the similitude clause (par. 386), which merely prescribes a rule of construction applicable to every paragraph of the tariff imposing duty on specifically described articles. P. 538.
10 Cust. App. 165, affirmed.
Certiorari to review a judgment of the Court of Customs Appeals which, reversing a judgment order of the Board of General Appraisers (unpublished abstract No. 43,391; 37 T. D. 355; Brown, G. A., dissenting), sustained the respondents’ claim.
UNITED STATES v. RICE & CO. 537
536.	Opinion of the Court.
Mr. Assistant Attorney General Hoppin, with whom Mr. Solicitor General Beck and Mr. Samuel Isenschmid were on the brief, for the United States.
Mr. J. Stuart Tompkins for respondents.
Mr. Chief Justice Taft delivered the opinion of the court.
This case involves the sufficiency of a protest necessary to justify a suit against the United States for duties illegally exacted. The Board of General Appraisers found the protest defective and refused relief. The Court of Customs Appeals on appeal reversed this action and gave judgment for the importer. 10 Cust. App. 165. The case comes here by certiorari under § 195 of the Judicial Code, as amended August 22, 1914, c. 267, 38 Stat. 703.
The subject of importation was immortelles. They were entered April 3, 1916, at the port of Philadelphia, and the duty was liquidated June 8, 1916. The Collector levied duty on them at 60 per cent, ad valorem under paragraph 347 of the Tariff Act of October 3, 1913, c. 16, 38 Stat. 114, 148. The protest of the importer of July 7, 1916, set forth that the immortelles were dutiable “ at the rate of 25% ad valorem under the first clause of paragraph 210 as palms or cut flowers, preserved or fresh.” 38 Stat. 114, 133.
The question as to the proper classification of the immortelles was settled by a decision of the Court of Customs Appeals in Bayersdorjer v. United States, 7 Cust. App. 66, and the legal duty is conceded to be 25 per cent. ad valorem by resemblance to the articles named in paragraph 210. The sole question here is whether under the form of protest presented the importer could rely upon the similitude clause (paragraph 386) of the statute and claim that the immortelles were taxable at the rate fixed
538	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
in paragraph 210, because of their resemblance to articles therein described.
Paragraph N of the Tariff Act of 1913, 38 Stat. 114, 187, provides:
“ That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise . . . shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of such merchandise . . . shall, within thirty days after but not before such ascertainment and liquidation of duties, ... if dissatisfied with such decision imposing a higher rate of duty, . . . file a protest or protests in writing with the collector, setting forth therein distinctly and specifically, and in respect to each entry or payment, the reasons for his objections thereto. . . .”
The relevant part of paragraph 386 of the same act provides:
“That each and every imported article, not enumerated in this section, which is similar, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this section as chargeable with duty, shall pay the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned. . . .”
The point here raised has long been in dispute. In Hahn v. Erhardt, 78 Fed. 620 (1897), the Circuit Court of Appeals of the Second Circuit held that mention in the protest of the paragraph fixing the duty on specifically described articles, without more, would not give the collector reason to suppose that the importer claimed the importation came under such paragraph by virtue of the similitude clause, and therefore was defective. In In re Guggenheim Smelting Co., 112 Fed. 517 (1901), the Circuit Court of Appeals held a protest sufficient to justify recovery which claimed classification under a
UNITED STATES v. RICE & CO. 539
536.	Opinion of the Court.
named paragraph, although the article imported could only be so classified by virtue of the similitude clause. In United States v. Dearberg Bros., 135 Fed. 245, the same point arose in the Circuit Court, S. D. New York, and the Board of General Appraisers was sustained in holding the protest sufficient under the authority of the Guggenheim Case. This was reversed by the Circuit Court of Appeals, 143 Fed. 472 (1905), without opinion, on the authority of the Hahn Case. Thereafter the Board of General Appraisers, in this and other cases, has by a majority vote followed the Hahn Case. In the case of United States v. Snelleriburg & Co., 9 Cust. App. 59, the Court of Customs Appeals held a protest sufficient which mentioned a special paragraph without more, although the article imported could only be brought under the paragraph by virtue of a similitude paragraph. The Court of Customs Appeals, in the judgment here under review, followed the Snelleriburg Case and sustained the protest, one member of the court dissenting. It is because of this somewhat exceptional contrariety of opinion existing among General Appraisers, Circuit Courts of Appeals and Judges of the Court of Customs Appeals, that this court has granted a certiorari herein.
The protest and similitude clauses have appeared in all tariff acts since 1842 in substantially the same form as in paragraph N and paragraph 386 of the Tariff Act of 1913, so that the authorities construing other tariff acts have application to the present question.
A protest must be distinct and specific enough to show that the objection taken at the hearing or trial was at the time of filing the protest in the mind of the importer and sufficient to notify the collector of its true nature and character to the end that he might then ascertain the precise facts and have adequate opportunity to correct mis-takes and cure defects. Heinze v. Arthur’s Executors, 144 U. S. 28, 34; Schell’s Executors v. Fauche, 138 U. S.
540	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
562; Arthur v. Morgan, 112 U. S. 495, 501; Arthur v. Dodge,, 101 U. S. 34, 37; Greely’s Administrator v. Burgess, 18 How. 413, 416. But no special form is required. “A protest which indicates to an intelligent man the ground of the importer’s objection to the duty levied upon thè articles should not be discarded because of the brevity with which the objection is stated.” Schell’s Executors v. Fauché, supra. “We are not, therefore, disposed to exact any nice precision, nor to apply any strict rule of construction upon the notices required under this statute. It is sufficient if the importer indicates distinctly and definitely the source of his complaint, and his design to make it the foundation for a claim against the government.” Greely’s Administrator v. Burgess, supra.
Does a claim in a protest under a particular paragraph, with no more, adequately indicate to the collector that the importer intends to claim the article imported may come under the specified paragraph either directly, or by resemblance to articles therein described?
In Arthur v. Fox, 108 U. S. 125, this court said:
“ If an article is found not enumerated in the tariff laws, then the first inquiry is whether it ‘ bears a similitude, either in material, quality, texture, or use to which it may be applied, to any article enumerated ... as chargeable as with duty.’ If it does, and the similitude is substantial, then, in the language of the court in Stuart n. Maxwell [16 How. 150] 1 it is to be deemed the same, and to be charged accordingly.’ In other words, although not specifically enumerated, it is provided for under the name of the article it most resembles.”
The part of paragraph 386 under consideration prescribes a rule of construction applicable to every paragraph of the tariff, imposing duty on specifically described articles. It is a general provision intended to enlarge the scope of each paragraph to include articles not specifically described but resembling articles specified. The collector
WALLACE v. UNITED STATES. 541
536.	Syllabus.
must be taken to be familiar with the general provisions of the tariff act. When an importer specifies in his protest a paragraph under which he claims his importation should be classified, the collector should enquire not only whether the article comes within the paragraph named, but also whether it so resembles the articles specifically described therein as to require it to be classified thereunder. After satisfying himself that the article does not come within the specific description of the named paragraph, its resemblance to articles which do should be his “ first inquiry.”
The quoted words of paragraph 386 mention no specific rate. Any reference to them in a protest would be meaningless unless accompanied by mention of some taxing paragraph. It is the latter which taxes the article under the- general rule of interpretation which these words furnish.
It is said thereby that resemblance is a question of fact, but it is one not very different from that involved in the classification of articles within the specific description of the paragraph. The object of the protest is to put the collector on inquiry not alone as to the law but also as to the facts which make the law applicable. The reasoning of the Court of Customs Appeals meets our approval and the judgment is
Affirmed.
WALLACE v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 118. Argued January 27, 1922.—Decided February 27, 1922.
1.	The limitations sought to be imposed upon the President’s power to remove an Army officer (118th Article of War, 39 Stat. 669; Rev. Stats., §§ 1342, 1230) do not apply when the removal is effected
542	OCTOBER TERM, 1921.
Statement of the Case.	.257 U. S.
by the President with the consent of the Senate, through the appointment of another to his place. P. 544.
2.	The court notices judicially that nominations to office are usually referred to a committee of the Senate—in this case the Military Committee—for investigation and report, and the duty of the committee to inquire into the existence of a vacancy to which the appointment can be made. P. 546.
3.	Where the President undertook to remove an Army officer and nominated another to take his place as of the day following the removal, without mentioning the removal, held, that the Senate, which confirmed the nomination, must be presumed to have known the confirmation would fill the legal complement of such officers and to have joined in the removal. P. 545.
4.	To allow pay for an officer whose place has been filled by nomina-tion and confirmation, there must be special legislative authority. P. 546.
5.	Quaere: Whether claimant lost his right to apply for a court-martial under Rev. Stats., § 1230, by waiting five months after his removal by the President? P. 547.
55 Ct. Clms. 396, affirmed.
Claiming to be a Colonel in the Quartermaster Corps of the United States Army, the appellant sued in the Court of Claims to recover $6,580.67 salary and commutation of quarters from February 13, 1918, until March 12, 1919.- His petition was dismissed.
The President, on the recommendation of the Secretary of War, issued an order dismissing the appellant from the service by General Orders No. 17, of February 13, 1918, of which he was notified on the same day. The United States was then at war with Germany. On March 1, 1918, the President sent to the Senate the following nominations:
“ I nominate the officers herein named for promotion in the Army of the United States.
Quartermaster Corps.
To be Colonels.
Lieutenant Colonel Robert S. Smith, Quartermaster Corps, with rank from February 14, 1918.
WALLACE v. UNITED STATES. 543
541.	Opinion of the Court.
Lieutenant Colonel Richmond McA. Scofield, Quartermaster Corps, with rank from February 23,1918.
To be Lieutenant Colonels.
Major Morton J. Henry, Quartermaster Corps, with rank from February 14, 1918.
Major William Elliott, Quartermaster Corps, with rank from February 23, 1918.”
These officers were confirmed March 8, 1918. This filled the complement of 21 officers allowed by law in the grade of Colonel in the Quartermaster Corps.
On July 16 appellant made a formal application • in writing for trial by court-martial, setting forth under oath that he had been wrongfully dismissed. On September 14, 1918, the trial was refused by the Secretary and no court-martial was convened.
Prior to June 24, 1918, plaintiff did not have knowledge of § 1230, Rev. Stats. He had been advised after his dismissal that he could seek relief through Congress.
Mr. H. Stanley Hinrichs and Mr. Frank S. Bright for appellant.
Mr. Assistant Attorney General Ottinger, with whom Mr. Solicitor General Beck and Mr. Charles H. Weston, Special Assistant to the Attorney General, were on the brief, for the United States.
Mr. Chief Justice Taft, after stating the case, delivered the opinion of the court.
The President acted under the 118th Article of War, which provides in part (39 Stat. 619, 650, 669) that,
“No officer shall be discharged or dismissed from the service except by order of the President or by sentence of a general court-martial; and in time of peace no officer shall be dismissed except in pursuance of the sentence of a court-martial or in mitigation thereof.”
544
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
This article is only a reenactment of the 99th Article of War contained in the Revised Statutes, § 1342. Both are, therefore, to be read with § 1230, Rev. Stats., which is as follows:
“ When any officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial, to try such officer on the charges on which he shall have been dismissed. And if a court-martial is not so convened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void.”
Appellant claims that by the failure to grant him a court-martial, his dismissal under § 1230 was rendered void ab initio and that he is still a Colonel.
The first question is whether he ceased to be a member of the Army by the nomination and confirmation of another which filled the complement of officers allowed by law in his rank. It is clear from the reasoning of this court in the case of Blake v. United States, 103 U. S. 227, that the words “by order of the President,” in § 1230, Rev. Stats., supra, refer to a dismissal by the President alone, and do not include the removal of an officer by the appointment and confirmation of his successor.
Before the Civil War there was no restriction upon the President’s power to remove an officer of the Army or Navy. The principle that the power of removal was incident to the power of appointment was early determined by the Senate to involve the conclusion that, at least in absence of restrictive legislation, the President, though he could not appoint without the consent of the Senate, could remove without such consent in the case of any officer whose tenure was not fixed by the Constitution.
WALLACE v. UNITED STATES. 545
541.	Opinion of the Court.
The first legislative restriction upon this power was enacted March 3, 1865, by the very, provision we are here considering (13 Stat. 489), which subsequently became § 1230, Rev. Stats. Thereafter, on July 13, 1866, Congress took away altogether the power of the President to dismiss an officer of the Army or Navy in time of peace, except in pursuance of a court-martial sentence or in commutation thereof (c. 176, 14 Stat. 92). After that, in the controversy between President Johnson and the Senate, the tenure of office act was passed which cut down the power of the President to remove civil officers. Act of March 2,1867, c. 154,14 Stat. 430. The validity of these acts has never been directly passed on by this court in any case. The question has been expressly saved. Parsons v. United States, 167 U. S. 324, 339.
While, thus, the validity and effect of statutory restrictions upon the power of the President alone to remove officers of the Army and Navy and civil officers have been the subject of doubt and discussion, it is settled, McElrath v. United States, 102 U. S. 426; Blake v. United States, 103 U. S. 227; Keyes v. United States, 109 U. S. 336; Mullan v. United States, 140 U. S. 240, that the President with the consent of the Senate may effect the removal of an officer of the Army or Navy by the appointment of another to his place, and that none of the limitations in the statutes affects his power of removal when exercised by and with the consent of the Senate. Indeed the same ruling has been made as to civil officers. Parsons v. United States, 167 U. S. 324.
The question here, then, is whether the Senate joined the President in his removal of the appellant. That the President intended to separate him from the Army is, of course, plain. What are we to infer from the Senate’s action in confirming appointments by the President which filled the complement of officers of the rank of appellant allowed by law? The appointment of Lieut. Colonel
546
OCTOBER TERM, 1921.
Opinion of the Court
257 U. S.
Robert Smith was made two weeks after the announcement in General Orders of the dismissal of appellant and was made to confer the rank as of February 14th, the day after appellant was dismissed. The appointment did not say, as is usual in such cases, vice Wallace dismissed; but the facts of record in the War Department and in General Orders leave no doubt of the intention of the President and the Department in that regard. This raises the inquiry what we should presume as to the knowledge of the Senate in the matter. We can take judicial notice of the fact that nominations to office sent to the Senate are usually referred to the appropriate committee for investigation and report. In this case, the nomination would have been sent to the Military Committee which considers each appointment and is, of course, charged with the duty of inquiring into the existence of a vacancy to which an appointment can be made, as well as into its wisdom and propriety. Communication between the Department and the Committee dealing with such appointments is easy and frequent. We must presume, therefore, in the absence of any showing to the contrary, that the Senate was advised of the facts in respect to the nomination of Lieut. Colonel Smith and that it intended to supply the vacancy occasioned by the dismissal of appellant. Otherwise we must conclude that the Senate Committee was recommending, and the Senate was deliberately voting, confirmation of a nomination to a place for which there was no provision by law. We must assume that the confirming authorities knew the legal complement of Colonels in the Quartermaster Corps and how many they had already confirmed for that office. They must, therefore, have made inquiry and been assured as to the vacancy which would make Colonel Smith’s nomination and rank from February 14, 1918, proper.
It is urged that if the dismissal of appellant was rendered void ab initio, as contended, the effect was to restore
ROAD DISTRICT v. ST. LOUIS S. W. RY. CO. 547
541.	Syllabus.
him to office, and he was entitled to pay although the lawful complement of officers had been exceeded. To sustain this view, Quackenbush v. United States, 177 U. S. 20, is cited. It fails entirely to do so. On the contrary, it shows that in order to authorize pay for an officer whose place has been filled by nomination and confirmation of the Senate, there must be special legislative authority.
This is conclusive and renders it unnecessary to consider whether appellant lost his right to apply for a court martial under § 1230 by waiting five months, a question not free from doubt, considering the exigencies and need for dispatch in time of war. See Norris v. United States, ante, 77, and Nicholas v. United States, ante, 71.
The judgment of the Court of Claims is
Affirmed.
COMMISSIONERS OF ROAD IMPROVEMENT DISTRICT NO. 2 OF LAFAYETTE COUNTY, ARKANSAS, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
No. 141. Argued January 26, 27, 1922.—Decided February 27, 1922.
1.	A petition for removal to a federal court of a controversy over an assessment on particular lands, involved with others in a general proceeding for assessing all the lands within a road improvement district, was in time, under Jud. Code, § 29, when filed on the day before the day advertised for the hearing in the state court and on which the landowner was required by the state law to file his written objections. P. 551.
2.	Under the law of Arkansas, the County Court approves a proposed road improvement district, which then becomes a corporation capable of suing and being sued; appoints, but cannot remove, the
6267’—22-40
548	OCTOBER TERM, 1921.
Statement of the Case.	257 U. S.
governing commissioners; passes upon their plan of improvement and estimate of cost; appoints assessors who assess the benefits and damages to the several parcels of land included; hears and determines the justice of particular assessments upon written objections filed by landowners affected, pursuant to published notice; equalizes, lowers and raises assessments; and levies a general assessment upon all the land to be collected against the properties in proportion to benefits thus adjudged by proceedings in a court of chancery. Its findings and order are declared to have the effect of a judgment against the property; and appeals from particular assessments of benefits and damages may be taken by either the landowner or the commissioners to a court of general jurisdiction for trial de novo. Held’. That, while the proceedings in the County Court are in the main legislative and administrative, a controversy therein over the benefits and damages to an owner’s land is a suit at law within the removal act because, (a) its determination is judicial, like a valuation of property in condemnation, p. 553; (&) the issue is between adversary parties, the road district and the landowner, framed on pleadings, consisting of the assessment book and the owner’s objections, to be heard on evidence, and is separable from like issues respecting other landowners, pp. 556, 559; and (c) the County Court, in disposing of such issues,lenders what is in name, form, and effect a judgment; and functions as a judicial tribunal under the Arkansas constitution. P. 556.
3.	A decision of the state court on the nature of a proceeding under the state statutes is not conclusive on the question of removability. P. 558.
4.	Section 28, Jud. Code, limiting removal to cases within the original jurisdiction of the District Court under § 24, does not deprive a defendant of the right merely because the form of the case in the state court would be awkward in the federal court or require reframing of the complaint and different procedure. P. 561.
5.	Action of the District Court in withdrawing a case from the jury and making findings of fact in the absence of a stipulation under Rev. Stats. §§ 649, 700, but without objection or exception by the parties, is not reviewable by writ of error. P. 562.
265 Fed. 524, affirmed.
Certiorari to a judgment of the Circuit Court of Appeals affirming a judgment of the District Court for the respondent railway company in a case involving a road improvement assessment removed from a state court.
ROAD DISTRICT v. ST. LOUIS S. W. RY. CO. 549
547.	Argument for Petitioner.
Mr. Henry Moore, Jr., for petitioner.
This proceeding is not a suit within the meaning of the federal removal acts. The County Court, in passing upon the benefits received from the building of the road, was acting in an administrative and not a judicial capacity, occupying the position and having the same authority as that of the Board of Supervisors under the constitution of Arkansas of 1868. Since the decision of this cause by the District Court, the Supreme Court of Arkansas has definitely so decided. Horne v. Baker, 140 Ark. 172. See also In re City of Chicago, 64 Fed. 897; State v. Barker, 116 la. 96. Distinguishing: Drainage District v. Chicago, Milwaukee & St. Paul Ry. Co., 198 Fed. 253; In re Mississippi Power Co., 241 Fed. 194; and Smith v. Douglas County, 254 Fed. 246.
Since the County Court, as a court under the constitution, has no authority over local assessment or over taxes, save county taxes, the legislature, under the state constitution, could not give the court jurisdiction in a judicial capacity to determine the amount of benefits received by lands within the road district. Cribbs v. Benedict, 64 Ark. 562.
The question at issue has been finally and definitely settled by Upshur County v. Rich, 135 U. S. 467.
Unless the assessors for the road district could have originally filed its report in the United States District Court and asked said court to raise or lower the various assessments, and exercise the authority given by statute to the County Court in its administrative capacity, then this cause could not be properly transferred, since the jurisdiction of the United States courts on removal is limited to such suits as might have been brought originally in said courts. Cochran v. Montgomery County, 199 U. S. 260; In re Winn, 213 U. S. 458; Wall v. Franz, 100 Fed. 681. Distinguishing Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239.
550	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
A state constitution may delegate to its courts either judicial powers alone or judicial, administrative and legislative powers, and although cases may be transferred from state to federal courts where judicial power is brought into question, such transfer may not be had where the powers are either legislative or administrative. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226.
If there exists the right to transfer each assessment of benefits amounting to more than $3,000 where the landowner is a nonresident then the wheels of justice may well be clogged with such administrative matters.
The courts of the United States follow the decisions of the courts of last resort in the several States in the matter of the construction of the state constitutions and statutes. The construction here is settled by Missouri Pacific R. R. Co. v. Izard County Improvement District, 143 Ark. 261, 267, and Monette Road Improvement District v. Dudley, 222 S. W. 59.
Mr. J. R. Turney, with whom Mr. Daniel Upthegrove was on the brief, for respondent.
Mr. Chief Justice Taft delivered the opinion of the court.
* The question in this case is whether a proceeding in a state county court to assess benefits and damages growing out of a road improvement was properly removed to the federal District Court.
The assessors appointed by the County Court of Lafayette County, Arkansas, for Road Improvement District No. 2, imposed an assessment on lands within the district, belonging to the St. Louis Southwestern Railway, a corporation of Missouri, of $49,706, for benefits from the projected improvement. The book of assessments for the District was filed by the District Commissioners in the office of the County Clerk and the day for
ROAD DISTRICT v. ST. LOUIS S. W. RY. CO. 551
547.	Opinion of the Court.
hearing objections by the land owners before the county court was duly advertised. On the day before the hearing, the Railway Company filed a petition for removal to the District Court for the Western District of Arkansas with the necessary bond. That court denied a motion to remand, tried the controversy between the Commissioners of the Road District and the Railway Company, reduced the assessment to $10,485.48, entered judgment therefor and certified the same to the county court. On error, the Circuit Court of Appeals affirmed the judgment, and the case is here on certiorari.
Under § 28 of the Judicial Code, a suit at common law or in equity between citizens of different States, involving more than $3,000, may be removed by the nonresident party to the proper federal district court. Under § 29 the petition for removal must be filed on or before the day when defendant is required tor answer. The petition herein was filed the day before the hearing as advertised, upon which day the land owner is required by state law to file his written objections. Thus, the requisites of the removal statute were fulfilled if the proceeding was a suit at common law in a state court.
Road District Improvements are provided for in c. 81, Title VII, Crawford and Moses, Statutes of Arkansas. A district is formed upon a petition of a majority of the land owners by the County Court’s approval of the district and the projected improvement. C. & M., § 5399. The district then becomes a corporation, with a seal and capable of contracting and suing and being sued. C. & M., § 5402 and § 5404. The court appoints three commissioners, who are the governing body of the corporation. C. & M., § 5405 and § 5407. After appointment, they can not be removed by the County Court, but are independent. Taylor v. Wallace, 143 Ark. 67. They submit to the County Court a plan for the improvement and estimate its cost. C. & M., §§ 5409-5419. The County Court
552
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
then appoints three assessors whose duty it is to assess the enhanced value which the improvement will give to the various lots of real estate (C. & M., §§ 5419, 5421) as well as the damages, if any, “ by reason of right-of-way taken, or other damage sustained.” C. & M., §§ 5419, 5421, 5422. The damages “ may be paid out of the funds of the district, or by a reduction in the assessment of benefits in proportion to the amount of damages sustained.” C. & M., § 5422. The assessments of benefits and damages are noted by the assessors in a permanent book. C. & M., § 5421. The subsequent proceedings as to hearing and judgment are set forth in C. & M., §§ 5423 and 5424, given below in the margin.1
Appeals from the judgment of the County Court as to assessments of benefits and damages may be taken to the Circuit Court, the court of general jurisdiction, either by the owner or the Commissioners of the District “ by filing an affidavit for appeal and stating therein the special matter appealed from, but such appeal shall affect only the particular tract of land . . . concerning which said appeal is taken.” C. & M., §§ 5425, 5427. Wapponocca Outing Club v. Road Improvement District, 135 Ark. 196. The Circuit Court tries all such appeals
1 C. & M. § 5423. Equalization of assessments. As soon as the assessors have completed the work of assessment for the district, they shall certify to same and deliver it to the board of commissioners. The commissioners shall immediately file same in the office of the county clerk, and the county clerk of said county shall give public notice by two consecutive insertions in a publication having a general circulation in said county. Said notice shall give a description of all lands embraced in said district in the largest subdivisions practicable and shall state said assessment of benefits and damages has been filed in said office and shall call upon any person, firm or corporation aggrieved by reason of any assessment to appear before the county court on some date to be fixed by the court not less than five days after the last insertion therein, for the purpose of having any errors adjusted, or any wrongful or grievous assessment corrected,
ROAD DISTRICT v. ST. LOUIS S. W. RY. CO. 553
547.	Opinion of the Court.
de novo as if originally brought in that court, C. & M., § 2236; and the judgment is in the same form as in the inferior court. Wilson v. Hinton, 63 Ark. 145.
Just as soon as the assessment book is filed in the office of the county clerk who is ex officio clerk of the County Court, and the Commissioners submit the estimate of cost of the improvement, the County Court, pending its hearing of objections to assessments, levies an assessment against all the real property in the district, adding ten per cent, to the estimated cost for contingencies, to be collected against the properties in proportion to the benefits then to be adjudged. C. & M., § 5432. The assessments thus determined and confirmed become liens on the property affected, and unless paid, are collected through equitable proceedings brought by the Commissioners of the Road District to sell in the Chancery Court. C. & M., § 5437.
This review shows that the proceedings for the making of this road improvement are in the main legislative and administrative. There is, however, one step in them that fulfills the definition of a judicial inquiry if made by a court. That is the determination of the issue between
and all grievances or objections to said assessment shall be presented to said court in writing. Any person who is damaged by reason of said improvement may appear before said court at the same time, for the purpose of having the assessment of damages adjusted. The county court shall hear and determine the justness of any assessment of benefits or damages, and is hereby authorized to equalize, lower or raise any assessment upon a proper showing to the court.
C. & M. § 5424. Judgment of county court. At the hearing provided for in the preceding section and after the county court shall have considered the assessment of benefits, it shall enter its findings thereon, either confirming the assessment of benefits against said property, increasing or diminishing same, and the order made by the county court shall have all the force and effect of a judgment against all real property in said district, and it shall be deemed final, conclusive, binding and incontestable except by direct attack on appeal.
554
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
the Road District on the one part and the land owners on the other, as to the respective benefits which the improvement confers on their lands, and the damages they each suffer from rights of way taken and other injury.
The distinction between a proceeding which is the exercise of legislative power and of administrative character and a judicial suit is not always clear. An administrative proceeding transferred to a court usually becomes judicial, although not necessarily so. In Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 225, 226, this court said:
“We shall assume that when, as here, a state constitution sees fit to unite legislative and judicial powers in a single hand, there is nothing to hinder so far as the Constitution of the United States is concerned. ... A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter.”
The inquiry before the County Court is a proceeding to declare and enforce a liability of lands and their owners as it stands on present and past facts under a law and rules already made by the legislature and the administrative officers.
The determination of benefits in such cases is quite like the valuation of property under condemnation proceedings. “ The true inquiry is, what will be the effect of the proposed improvement upon the market value of thè real property, including the buildings thereon. The board may consider what the property is then fairly worth in the market, and what will be the value when the improvement is made.” Kirst v. Street Improvement District, 86 Ark. 1 ; Rogers v. Highway Improvement District, 139 Ark. 322. Assessments for benefits and damages are dif-
ROAD DISTRICT v. ST. LOUIS S. W. RY. CO. 555
547.	Opinion of the Court.
ferent in their essential characteristics from those for general taxation. Paving District v. Sisters of Mercy, 86 Ark. 109. Though due process of law does not necessarily require judicial machinery to fix values in condemnation, still because of the direct invasion of private right, courts will treat it as a common-law suit whenever it is brought before a court and it becomes removable as such to the federal court. Boom Co. v. Patterson, 98 U. S. 403; Searl v. School District No. 2, 124 U. S. 197; Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239. Speaking of the power of eminent domain, Mr. Justice Field, in Boom Co. v. Patterson, supra, said :
“ But notwithstanding the right is one that appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance. If that inquiry take the form of a proceeding before the courts between parties,—the owners of the land on the one side, and the company seeking the appropriation on the other,—there is a controversy which is subject to the ordinary incidents of a civil suit, and its determination derogates in no respect from thè sovereignty of the State.”
This principle has been extended by this court to benefits set off against damages in Pacific Railroad Removal Cases, 115 U. S. 1, 18. In that case the proceeding was for widening a street running through the grounds of a railway company. Under the statute, the hearing was first before the Mayor and a jury who were to determine the actual damage done to each person in consequence of the taking of his property, without reference to the proposed improvement, and, second, to determine the actual benefits conferred upon the City and upon such private property. This court held that the proceeding before the Mayor and common council was only a preliminary inquisition, but that the distinct and separable issues in the
556
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
state circuit court between the City and the private owner as to the value of his property taken for the street, and the amount of benefit his remaining property received from the improvements, constituted “ a suit ” which might be removed to the federal court, even though their determination might delay the state court proceedings. The case rules the one before us so far as the character of the controversy is concerned. We have the same issues here and they are just as separable from benefits and damages of the other owners.
The County Court in hearing this controversy was a judicial tribunal from the time the Commissioners filed the book of assessments in its clerk’s office and asked its confirmation. The constitution of 1874 of Arkansas, now in force, declares, in § 1, Article VII, entitled the Judicial Department, that,
“ The judicial power of the State shall be vested in one Supreme Court; in Circuit Courts; in County and Probate Courts; and in Justices of the Peace. ”
Section 28 of the same article provides that,
“ The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one Judge, except in cases otherwise herein provided.”
The exclusive jurisdiction of the County Court conferred by § 28, concerns matters which are primarily of an administrative character but which often involve judicial inquiry and action inter partes. The County Court may act therein as an administrative body or as a court. The Supreme Court of Arkansas has held the County Court to be a court and capable of rendering judgment in a
ROAD DISTRICT v. ST. LOUIS S. W. RY. CO. 557
547.	Opinion of the Court.
proceeding whose judicial character is much more questionable than here. In Nevada County v. Hicks, 50 Ark. 416, it decided that every allowance of a claim by the County Court against the county was a judicial order. See Chicot County v. Sherwood, 148 U. S. 529, 532; Delaware County v. Diebold Safe Co., 133 U. S. 473.
C. & M. § 5424, quoted above in the margin, directs that after the hearing, the County Court shall make its findings, either confirming the assessments of benefits and damages, increasing or diminishing them, and that the order made by the County Court shall have “ all the force and effect of a judgment against all real property in said district, and it shall be deemed final, conclusive, binding and incontestable except by direct attack on appeal.” The form of the order of the County Court in this case made after removal, was “ It is further considered, ordered and adjudged by the court that the assessment of benefits made against the St. Louis Southwestern Railway Company . . . by the assessors for said district be approved and confirmed by the court.” Of course, the statutory designation of the action of a body as a judgment, or the phrasing of its finding and conclusion in the usual formula of a judicial order, is not conclusive of the character in which it is acting. When we find, however, that the proceeding before it has all the elements of a judicial controversy (Gaines v. Fuentes, 92 U. S. 10, 20), to wit, adversary parties and an issue in which the claim of one of the parties against the other capable of pecuniary estimation, is stated and answered in some form of pleading, and is to be determined, we must conclude that this constitutional court is functioning as such.
But it is said that the State Supreme Court has held otherwise and that such a decision is binding on us. The question of removal under the federal statute is one for the consideration of the federal court. It is not concluded
558
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
by the view of a state court as to what is a suit within the statute. Upshur County v. Rich, 135 U. S. 467, 477; Mason City & Ft. Dodge R. R. Co. v. Boynton, 204 U. S. 570; Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239. While the decision of the state court as to the nature of a proceeding under state statutes sought to be removed is, of course, very persuasive, it is not controlling because involved in the application of a federal statute and the exercise of a federal constitutional right. The issue as to removal is akin to the question, which sometimes arises in enforcing the inhibition against state laws impairing the obligation of a contract, whether there is a contract under state law. This court decides that for itself. University v. People, 99 U. S. 309; Jefferson Branch Bank v. Skelly, 1 Black, 436; Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Deimos v. Insurance Co., 14 Wall. 661.
The decision of the Supreme Court of Arkansas relied on is Missouri Pacific R. R. Co. v. Izard County Improvement District No. 1, 143 Ark. 261, in which it was held that a proceeding like the one before us in the County Court could not be removed to the federal court because “the duties which this statute devolves upon the county court, as already stated, are administrative and not judicial, although the line of demarcation is very close.”
The court further said:
“ It will be observed that the power conferred by our statute upon the county court is not to determine whether there should be any assessment, but to equalize and adjust the assessment that has been made by the commissioners. There is nothing in the nature of an adversary proceeding, inter partes, in the assessment made by the commissioners and equalized and adjusted by the county court under the authority of the statute.”
Our examination of the question leads us to a different conclusion. The book of assessments made by the as-
ROAD DISTRICT v. ST. LOUIS S. W. RY. CO. 559
547.	Opinion of the Court.
sessors, as already noted, is presented by the Commissioners of the District as an independent body, representing a fully equipped municipal corporation, capable of contracting and of suing and being sued, to the County Court. They are plaintiffs and petitioners, asking the court to give them a judgment confirming the assessments. The court’s record in this case shows them present in person and by counsel praying confirmation.
The statute does not define how the hearing before the county court is to be conducted except that the objections of the land owners are to be in writing, as the book of assessment is. These two documents make the pleadings. It is to be inferred in the absence of any restriction that oral evidence is to be heard on the issues raised by the objections and that the' Commissioners in person or by attorney may take part in the hearing. Indeed it was admitted by counsel at the hearing that this is the practice. The proceeding is said to be only equalization but we have already seen that each lot is to be separately considered as to benefits and damages, on appeal. If so, why not on removal? We conclude that the proceeding is adversary and inter partes.
The state court really decides that the issue as to the correctness of assessments of benefits and damages is always legislative and administrative. It relies chiefly on two federal authorities. Upshur County v. Rich, 135 U. S. 467, and In re City of Chicago, 64 Fed. 897. In the former, the county assessors of a county in West Virginia had valued for general taxation a large tract of wild land at a figure its owners deemed excessive. They filed a petition in the County Court asking a reduction and immediately filed another petition for removal of the proceeding to the federal court on the ground of diverse citizenship. This court held on appeal from the Circuit Court, which had denied a motion to remand, that the removal could not be sustained. It said that such assessment of a
560
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
general tax was an administrative act, that the County Court in considering the appeal from the assessors was not a court, and that the proceeding was not adversary or a suit “ though approaching very near to the line of demarcation ” (p. 472). The County Court in West Virginia had no judicial jurisdiction under the constitution of the State except that of probate. It had had in the past other judicial jurisdiction but an amendment of the constitution had taken this away and it was empowered only to exercise duties “ not of a judicial nature.”
Mr. Justice Bradley, who spoke for the court in the Pacific Railroad Removal Cases, supra, also delivered the opinion in the Upshur County Case, and summed up the conclusion as follows:
f< The principle to be deduced 'from these cases is, that a proceeding, not in a court of justice, but carried on by executive officers in the exercise of their proper functions, as in the valuation of property for the just distribution of taxes or assessments, is purely administrative in its character, and cannot, in any just sense, be called a suit; and that an appeal in such a case, to a board of assessors or commissioners having no judicial powers, and only authorized to determine questions of quantity, proportion and value, is not a suit; but that such an appeal may become a suit, if made to a court or tribunal having power to determine questions of law and fact, either with or without a jury, and there are parties litigant to contest the case on the one side and the other.”
The manifest distinctions between the Upshur County Case and this are, first, that the question here is not one of general taxation, the difference between which and assessments for benefits and damages we have already pointed out; second, that the County Court of Arkansas, differing from the West Virginia County Court, is a court and by the constitution of the State may exercise judicial
ROAD DISTRICT v. ST. LOUIS S. W. RY. CO. 561
547.	Opinion of the Court.
functions in such subjects matter; and, third, that the proceeding is inter partes.
The other federal case upon which the State Supreme Court relies, In re City of Chicago, supra, was a decision of the Circuit Court in a sewer assessment case involving the fixing of benefits which were to be equalized over a district which the assessors found to be fair. The court held it could not be removed from the county court, first, because such an assessment was a mere administrative act, an exercise of the taxing power, and, second, because the benefits could only be fixed with reference to the benefits to all other lots, and the whole case must be removed, if removed at all. The court with difficulty distinguished the Pacific Railroad Removal Cases, on the ground that that was a separate investigation as to each lot and that it was mingled with the fixing of damages. These are features which distinguish this proceeding also. Moreover, the case has been criticized and its authority shaken. In re Stutsman County, 88 Fed. 337, 341; In re Jarnecke Ditch, 69 Fed. 161; Drainage District No. 19 v. Chicago, Milwaukee & St. Paul Ry. Co., 198 Fed. 253, 260.
The next objection is that the Road District Commissioners could not file their assessment book in the federal court, assuming the necessary diverse citizenship, against any lot or lot owner, and so that the inquiry cannot be removed, because, under § 28 of the Judicial Code, removal is limited to cases within the original jurisdiction of the District Court under § 24. This limitation is not intended to exclude from the right of removal defendants in cases in the state court which because of their peculiar form would be awkward as an original suit in a federal court, or would require therein a reframing of the complaint and different procedure. Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 579; Fleitas v. Richardson, No. 1, 147 U. S. 538, 544. The limitation is that only those
562	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
proceedings can be removed which have the same essentials as original suits permissible in District Courts, that is that they can be readily assimilated to suits at common law or equity, and that there must be diverse citizenship of the parties and the requisite pecuniary amount involved. In re Stutsman County, 88 Fed. 337; Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239, 246; Searl v. School District No. 2, 127 U. S. 197; Colorado Midland Ry. Co. v. Jones, 29 Fed. 193.
It is finally contended that the judgment of the District Court should be reversed because it withdrew the case from the jury and then proceeded to make findings. No objection was taken by either party to this course and no exception was taken. Section 649, Rev. Stats., provides that a civil case in the District Court may be tried without the intervention of a jury on a written stipulation of the parties or their attorneys filed with the clerk, in which case the finding of the court on the facts, either general or special, shall have the same effect as the verdict of a jury, and by § 700, Rev. Stats., bills of exceptions may bring such findings before the Circuit Court of Appeals for review on the evidence. But if there be no written stipulation of waiver of a jury, then no questions can arise on writ of error except those which arise on the process, pleadings or judgment. Bond v. Dustin, 112 U. S. 604; Ladd & Tilton Bank v. Hicks Co., 218 Fed. 310; Ford v. United States, 260 Fed. 657. The Circuit Court of Appeals, therefore, rightly held that no error could be predicated on the action of the District Judge in withdrawing the case from the jury and making findings without objection or exception by the parties.
The judgment of the Circuit Court of Appeals is
Affirmed.
Mr. Justice Pitney took no part in the consideration or decision of this case.
WISCONSIN R.R.COMM. v. C, B. & Q. R. R. CO. 563
Syllabus.
RAILROAD COMMISSION OF WISCONSIN ET AL. v: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN.
No. 206. Argued March 11, 14, 15, 1921; restored to docket for reargument October 24, 1921; reargued December 5, 6, 7, 1921.— Decided February 27, 1922.
1.	An order of the Interstate Commerce Commission requiring a horizontal increase of intrastate passenger fares and excess baggage charges, to correspond with fares and charges fixed for like interstate service in the same State, can not be sustained, under § 13 of the Interstate Commerce Act, as amended by the Transportation Act of 1920, as an order to remove undue and unreasonable prejudice to persons traveling in interstate commerce, when it broadly embraces not only the intrastate rates to and from border points, which may work discrimination against interstate passengers and localities, but also those between points more remotely internal from which no such prejudice can arise upon the facts found by the Commission. P. 579. The Shreveport Case, 234 U. S. 342, and Illinois Central R. R. Co. v. Public Utilities'Commission, 245 U. S. 493, distinguished.
2.	Such an order is not validated by a clause saving the right of the State, or other party in interest, to apply to the Commission for a modification as to particular intrastate fares or charges. P. 580.
3.	The Transportation Act of 1920, § 422, (§ 15a), provides in part that the Commission, in the exercise of its power to prescribe just and reasonable rates, shall initiate, modify, establish or adjust such rates so that carriers as a whole, or in groups or territories designated by the Commission, will earn an aggregate net income equal to a fair return on the aggregate value of their railway property held and used for transportation; that the Commission shall determine what percentage of such aggregate property value constitutes a fair return and such percentage shall be uniform for the groups or territories; and that in making such determination it shall give due consideration to the transportation needs of the country and the necessity of enlarging transportation facilities in order to provide the people of the United States with adequate transportation.
6267°—22---41
564
OCTOBER TERM, 1921.
Statement of the Case.
257 U. S.
Held: (a) The effective operation of the Transportation Act reasonably requires that intrastate traffic over the lines of interstate carriers pay a fair proportionate share of the cost of maintaining an adequate railway system. P. 585.
(6) While § 15a, supra, confers no power on the Commission to deal with intrastate rates, § 416, (§ 13, par. 4,) of the same act, in authorizing it to remove and in forbidding and declaring unlawful, “any undue, unreasonable, or unjust discrimination against interstate or foreign commerce,” clearly contemplates that such discrimination, resulting from intrastate rates unduly low as compared with interstate rates as fixed under § 15a, and tending to thwart the purpose of that section, may be removed by the Commission. P. 586.
(c)	The act being clear on this point, reports and debates of Congress can not be resorted to to introduce ambiguity. P. 588.
(d)	The valuation required by § 15a is not confined to that part of the property of the interstate carrier used in interstate, segregated from that used in intrastate, commerce. P. 587.
(e)	Raising the level of the intrastate rates in such case, is an incident to the effective control of the interstate system, and does not violate the proviso against the Commission’s regulating traffic wholly within a State. P. 588.
(/) The act as so applied is within the power of Congress over interstate commerce. P. 589.
(g) The action of the Commission under it, respecting intrastate rates, should be directed to substantial disparity which operates as a real discrimination against and obstruction to interstate commerce, leaving state authorities to deal with intrastate rates inter sese on the general level found fair by the Commission. P. 590.
Affirmed.
The proceeding out of which this case has grown, known as the Wisconsin Passenger Fares, began in an investigation by the Interstate Commerce Commission, under paragraphs 3 and 4 of § 13 of the Interstate Commerce Act as amended by § 416 of the Transportation Act of 1920 (41 Stat. 484), into alleged undue and unreasonable discrimination against interstate commerce arising out of intrastate railroad rates in Wisconsin. The interstate carriers by steam railroad of the State were
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 565
563.	Statement of the Case.
made respondents, and the Governor and State Railroad Commission were duly nqtified. The Interstate Commerce Commission made its report and order November 27, 1920. Wisconsin Passenger Fares, 59 I. C. C. 391.
The Commission had investigated the interstate rates of carriers in the United States, in a proceeding known as Ex parte 74, Increased Rates, 58 I. C. C. 220, for the purpose of complying with § 15a of the Interstate Commerce Act as amended by § 422 of the Transportation Act of 1920 (41 Stat. 488). That section requires that the Commission so adjust rates that the revenues of the carriers shall enable them as a whole or by groups to earn a fixed net income on their railway property. The Commission ordered an increase for the carriers in the group of which the Wisconsin carriers were a part, of thirty-five per cent, in interstate freight rates, and twenty per cent, in interstate passenger fares and excess baggage charges, and a surcharge upon passengers in sleeping cars amounting to fifty per cent, of the charge for space in such cars to accrue to the rail carriers. Thereupon the carriers applied to the Wisconsin Railroad Commission for corresponding increases in intrastate rates. The state commission granted increases in intrastate freight rates of thirty-five per cent., but denied any in intrastate passenger fares and charges on the sole ground that a state statute prescribed a maximum for passengers of 2 cents a mile.
In the Wisconsin Passenger Fares, the Interstate Commerce Commission found that all of the respondent carriers of Wisconsin transported both intrastate and interstate passengers on the same train, with the same service and accommodations ; that the state passenger paying the lower rate rode on the same train, in the same car, and perhaps in the same seat with the interstate passenger who paid the higher rate; that the circumstances and conditions were substantially similar for interstate as for intrastate passenger service in Wisconsin; that travelers des-
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OCTOBER TERM, 1921.
Statement of the Case.
257 U. S.
tined to, or coming from, points outside the State found it cheaper to pay the intrastate fare within Wisconsin and the interstate fare beyond the border than to pay the through interstate fare; that undue preference and prejudice were shown by the falling off of sales of tickets from border line points in Minnesota and Michigan to stations in Wisconsin, and by a marked increase in sales of local tickets from corresponding border line points in Wisconsin to stations in Wisconsin; that the evidence as to the practice with respect to passenger fares applied in like manner to the surcharge upon passengers in sleeping and parlor cars and to excess baggage charges.
The Commission further found that the fare necessary to fulfill the requirement as to net income of this interstate railroad group under § 15a was 3.6 cents per mile, and that this was reasonable, that the direct revenue loss to the Wisconsin carriers, due to their failure to secure the 20 per cent, increase in intrastate fares, would approximate $2,400,000 per year if the 3-cent fare fixed by the President under federal war control, were continued, and $6,000,000 per year if the 2-cent fare named in the state statute, should become effective.
The Commission found that there was undue, unreasonable and unjust discrimination against persons travelling in interstate commerce and against interstate commerce as a whole; and ordered that the undue discrimination should be removed by increases in all intrastate passenger fares and excess baggage charges and by surcharges corresponding with the increases and surcharges ordered in interstate business.
The order was made without prejudice to the right of the authorities of the State or of any other party in interest to apply in the proper manner for a modification of the order as to any specified intrastate fares or charges if the latter were not related to the interstate fares or charges in such a way as to contravene the provisions of the Interstate Commerce Act.
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 567
563.	Argument for Appellants.
The carriers filed bills in equity, of which the present is one, in the District Court to enjoin the State Railroad Commission and other state officials from interfering with the maintenance of the fares thus ordered and published.
Application for interlocutory injunction was made to the District Court under § 266 of the Judicial Code. After a hearing before three judges, they granted an interlocutory injunction from which this appeal was taken.
Mr. M. B. Olbrich, with whom Mr. William J. Morgan, Attorney General of the State of Wisconsin, Mr. Ralph M. Hoyt and Mr. E. E. Brossard were on the briefs, for appellants.
No unjust discrimination, American Express Co. v. Caldwell, 244 U. S. 617, 624; Interstate Commerce Commission v. Northern Pacific Ry. Co., 216 U. S. 538, 545; Shreveport Case, 234 U. S. 342, 355, was found by the Commission with sufficient definiteness. The avowed aim was the correction of rates deemed unreasonable because they did not correspond with the standard of production set up for the regulation of interstate commerce. This was an object beyond the Commission’s power.
Even if removal of discrimination in the legal sense was one of the purposes, that purpose was so intermingled with other considerations as to make it impossible to separate the two. Foote v. Maryland, 232 U. S. 494, 503; Pure Oil Co. v. Minnesota, 248 U. S. 158, 162.
The substance of the power exercised, and not its shadow, determines the validity of the order. Interstate Commerce Commission v. Illinois Central R. R. Co., 215 IT. S. 452; Same v. Union Pacific R. R. Co., 222 U. S. 541.
The substance of the power here sought to be exercised was power to determine the amount of passenger revenue to be received by interstate carriers from the purely internal commerce of Wisconsin.
The Transportation Act conferred no power to increase the intrastate rates to make them conform to an alleged
568
OCTOBER TERM, 1921.
Argument for Appellants.
257 U.S.
standard of return prescribed by Congress. Obviously here lies the crux of the present controversy. Unless such a standard was laid down and such requirement as to contribution made, there could be no possibility of finding discrimination or burden on interstate commerce as the result of inadequate intrastate return.
When the act was passed, Congress was intent upon the restoration of state power rather than the assumption of more federal power,—the dangers of over-centralization were more threatening than any crisis of transportation. Evidence of the attitude of Congress is found not only in the history of this act but in other activities of Congress.
S.	641, 66th Cong., 1st sess.; Doc. 155, 66th Cong., 1st sess.; Doc. 155, 66th Cong., 2d sess.; H. R. No. 230, 66th Cong., 1st sess. Congress was even willing to cumber the presidential exercise of the war power with a power of veto in the States over all change or increase in state rates, and this when there remained but two months of federal control.
If the time had arrived when Congress within the scope of its conceded constitutional power had decided to assert a unified control over all commerce, is it probable that it would have done so by an act entitled as was the Transportation Act, “An Act to provide for the termination of federal control ”? Under an elaborate pretense of restoring state power, Congress would not have masked the intention of effectually displacing it by the construction of administrative machinery for its elimination.
But our contention goes beyond insistence upon the unlikelihood that Congress would do one thing, while it professed to do another. It is directed to the improbability that by any language or form of words it would have sought to inaugurate the plan of regulation for which the carriers argue.
The delegation of power to an administrative bureau to suspend, not the incidental effect of state law, but state
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 569
563.	Argument for Appellants.
law in its entirety, is too novel, too revolutionary, a suggestion to be accepted without examination. To withdraw a subject-matter from the control of the States by the assertion of a previously unexercised exclusive federal power is a matter of commonplace. To leave a qualified control subject to displacement by mere administrative fiat is, we submit, quite a different proposition,—a step radical, if not revolutionary. It is not regulation of commerce; it is supervisory control—it is regulation—of state government by a federal administrative agency without parallel in existing law, and without precedent in American history.
Plainly possessing the competence to do so, if Congress had intended to regulate the amount of revenue arising from state rates, it seems self-evident that it would have asserted that power directly,—particularly so in view of the fact that a complete system of federal control of all state rates was actually in force, to which the States had grown accustomed after an interval of experience.
Apart from mere probability, the language employed does not permit of the construction essential to sustain the validity of the order. To make clear our position as to § 13, which deals with the removal of discrimination resulting from state action, we make no contention that there is any form of discrimination so resulting that may not be removed. We concede, further, that, if discrimination actually disclosed leads to successive orders, the entire field of state authority may conceivably be absorbed. This, of course, is subject to the elementary rule of definiteness and certainty in the finding of discrimination. It is our contention merely that no discrimination has been found.
Mere desertion of travel in interstate commerce for travel in intrastate commerce does not constitute discrimination against interstate commerce. The test, we think, in all cases, is resulting interference with interstate
570
OCTOBER TERM, 1921.
Argument for Appellants.
257 U. S.
commerce. Only when commerce has been obstructed or unnecessarily encumbered by state action, Pensacola Telegrah Co. v. Western Union Telegraph Co., 96 U. S. 1, 9; In re Debs, 158 U. S. 564, 582; Loewe v. Lawlor, 208 U. S. 274, 293; Northern Securities Co. v. United States, 193 U. S. 197, 346, has the action been shown to be discriminatory.
The stream of commercial intercourse is not clogged when a person re-buys a ticket at a state line—the physical movement of commerce may actually be stimulated— but above this, it is submitted that the volume of interstate commerce is not decreased, although an individual may by resort to subterfuge successfully defraud the carrier and procure interstate transportation at intrastate cost. But this matter is very largely within the control of the carrier itself.
The carrier is under no obligation to carry the passenger who has re-bought a ticket at a state line. Missouri, K. &
T.	Ry. Co. v. Ashinger, 63 Okla. 120; Illinois Central R. R. Co. v. Holman, 106 Miss. 449; Chicago, R. I. & G. Ry. Co. v. Edwards, 232 S. W. 356.
Discrimination does not arise from mere difference in rate level, or from inadequacy of intrastate rates, until in effect the legal conception of the two classes of commerce denominated “ interstate ” and “ intrastate ” has been abandoned. Until a common standard is established, plainly power to remove discrimination is wholly irrelevant to the issue of revenue production.
Prior to the amendment of § 13, the Commission had recognized that it possessed no power to resort to interstate commerce to make up deficiencies alleged to arise from intrastate commerce. Cobb v. Northern Pacific Ry. Co., 20 I. C. C. 100; Five Per Cent. Cases, 311. C. C. 351; Western Passenger Fares, 37 I. C. C. 41. Nor are the views of counsel of eminence and standing wanting to demonstrate that the section, as finally enacted, conferred
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 571
563.	Argument for Appellants.
upon the Commission no power such as claimed. 59 Cong. Rec., pt. 1,66th Cong., 2d sess., Dec. 1,1919—Jan. 5, 1920,138,142; Hearing before House Committee on Interstate and Foreign Commerce, 66th Cong./ 1st sess., on H. R. 4378, pp. 21, 1036, 1037, 1077, 1078, 1080, 1230.
By § 15 Congress gave to the Commission power to fix reasonable interstate rates. By § 15a it established a “ rule of rate making ”—the manner of exercising the power granted by § 15. This rule for the exercise of power within a jurisdiction defined did not operate to enlarge the scope of the jurisdiction. Ex parte Siebold, 101 U. S. 371.
If § 15a were a grant of power, there might be room for the contention carriers make. But plainly it is not a grant, but a regulation or limitation of power. The purpose of § 15a was set forth by the conference committee. Conference Report on H. R. 10453, 59 Cong. Rec., pt. 4, p. 3265.
Section 15a fixes the meaning of a reasonable return at a specified percentage of property values. It further directs that such return shall be computed not upon the property of an individual road or carrier, as a separate unit, but upon the property used by all roads, the plain implication, of course, being their property used in interstate commerce. By the use of the term “aggregate,” it was merely intended to emphasize the plan of treating all property as belonging to one carrier, instead of many. There is nothing to indicate that the term was intended to have other significance than this. 59 Cong. Rec., pt. 1, p. 137.
The exercise of power over a given subject is not extended to include other matters simply because general words are employed in describing factors common to an excluded class, as well as that included within jurisdiction. So that, were there nothing more than these two sections standing alone, it could not be urged successfully
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OCTOBER TERM, 1921.
Argument for Appellants.
257 U.S.
that § 15a required the inclusion of those property values devoted to intrastate commerce.
But in addition to the proposition that all that is done pursuant to § 15a must be within the scope of what may be done under § 15, we have a direct restriction upon the meaning of § 15a. The terms of § 1 are plain. They refer to all the provisions of the act. Section 15a is one of those provisions, and we are not at liberty to assume that, speaking at page 36 of the Transportation Act, Congress had forgotten the plain declaration of its self-imposed limitation upon page 20; that “the provisions of this act shall not apply to transportation wholly within one State.” We must presume that Congress thought it unnecessary to repeat this language in every separate provision, especially in view of the rule that its intention to include intrastate commerce must be “clearly manifested.”
In the case of an administrative tribunal, the presumption is against the extension of jurisdiction. Interstate Commerce Commission v. Northern Pacific Ry. Co., 216
U.	S. 543.
The proviso renders void an order of the Commission of the nature herein challenged, not because it restrains the removal of discrimination, but because its proper application makes it impossible to find that the facts and circumstances shown constitute discrimination under the law—because it precludes a construction that Congress means unified control over commerce, removing the distinction between the two classes and making possible a legal relation between their rate productivities.
In so far as the order purports to remove prejudice and discrimination against persons or localities, it has no definite field of operation and leaves uncertain the territory and points to which it applies, and is clearly insufficient. It was entered on a different and erroneous theory.
The bill of complaint completely fails to make a prima facie showing that the Wisconsin statutes violate the Fourteenth Amendment.
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 573
563.	Argument for Appellee.
Mr. Bruce Scott and Mr. Alfred P. Thom, with whom Mr. Kenneth F. Burgess, Mr. R. V. Fletcher, Mr. 0. W. Dynes and Mr. A. A. McLaughlin were on the briefs, for appellee.
The commerce power, standing alone, is adequate to support the regulation by Congress, contained in paragraphs 3 and 4, of § 13 of the Interstate Commerce Act, of the state rates of carriers engaged in interstate commerce. The imperative need of an equitable regulation of commerce among the States was one of the most influential causes leading to the Constitution. Cook v. Pennsylvania, 97 U. S. 566; 1 McMaster’s History of the American People, p. 206; Fiske, Critical Period of American History, 1783-1789, p. 144.
This function, along with those of war, peace and finance, is one of the fundamental essentials of national existence and efficiency, and by entering into the compact each State acquired the right to have these functions performed by the Federal Government. The rights acquired are not less state rights and are not less important or less sacred than those which the States reserved.
Congress, recognizing a great economic development, has provided in the Transportation Act for the consolidation of the carriers into great systems. (§ 407, par. 4.)
The problem of greatest magnitude which concerns the people of all the States in regard to these carriers, is how their continuity of service shall be preserved unobstructed, and what shall be the quality, adequacy and efficiency which their transportation facilities shall possess.
A broad and wise policy in dealing with the instrumentalities of commerce is, therefore, a matter of supreme interest to all the States.
The proposition that the national standard as to the adequacy and efficiency of the instrumentalities of interstate commerce can not be surrendered to the States’
574
OCTOBER TERM, 1921.
Argument for Appellee.
257 U.S.
judgment without an abdication of the power to regulate interstate commerce, is sustained in principle in Houston East & West Texas Ry. Co. v. United States, 234 U. S. 355; Illinois Central R. R. Co. v. State Public Utilities Commission, 245 U. S. 506; American Express Co. v. Caldwell, 244 U. S. 617.
The argument is essentially unsound which concedes to the National Government the power to regulate interstate rates, which are merely the terms on which interstate commerce is conducted, and denies to it the power to regulate the standard and efficiency of the instrument of interstate commerce, which constitutes the essential condition of the very existence of interstate commerce itself—for the constitutional power of regulation is “ to foster and protect,” as well as “ to control and restrain.” Houston East & West Texas Ry. Co. v. United States, supra.
The argument is likewise essentially unsound which concedes to the National Government the power to declare and remove a discrimination of a single rate made by a State against a competitive interstate rate, but denies to it the power to declare and remove a discrimination created by a body of state rates against the entire structure of interstate commerce. Louisville Bridge Co. v. United States, 242 U. S. 417; Bridge Co. v. United States, 105 U. S. 480.
The following propositions, as to the extent of the power of Congress under the commerce clause, are established beyond the reach of successful controversy by the decisions of this court: (1) The power to construct, or to authorize individuals or corporations to construct, national highways and bridges from State to State, is essential to the complete control and regulation of interstate commerce. California v. Pacific R. R. Co., 127 U. S. 39. (2) Although a particular business might not when considered by itself be within the implied power of Congress, if such
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 575
563.	Argument for Appellee.
business is appropriate and relevant to the business of the corporation, the implied power is to be tested by the right to create the corporation and to attach to it that which is relevant, in the judgment of Congress, to make the business of the corporation successful. First National Bank v. Union Trust Co., 244 U. S. 420; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank, 9 Wheat. 738. (3) The entire instrumentality of interstate commerce is within the regulating power of Congress, and when exercised the regulation is controlling and exclusive. Minnesota Rate Cases, 230 U. S. 399, 411; Houston East & West Texas Ry. Co. v. United States, 234 U. S. 351; Hammer v. Dagenhart, 247 U. S. 269.
Under these principles the Government itself might construct a transportation system, or acquire one already constructed, or might exercise through private individuals or private corporations its power of providing for commerce.
Whether owning and operating the instrumentality itself, or performing the function through private individuals or private corporations, it is competent for the Government to authorize the instrumentality of interstate commerce to engage in state commerce, and, under its power to regulate the instrumentality, to regulate all its activities and interests, so far as the public interest may require, including, if it so elect, the regulation as an original matter of the state rates of such interstate carriers.
The war power, standing alone, is adequate to sustain the validity of the power exercised by Congress with reference to the state rates of carriers engaged in interstate commerce, by paragraphs 3 and 4 of § 13 of the Interstate Commerce Act. Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146; Cherokee Nation v. Kansas Ry. Co.,
576	OCTOBER TERM, 1921.
Argument for Appellee.	257 U. S.
135 U. S. 641; California v. Central Pacific R. R. Co., 127 U. S. 1.
The power to establish post offices and post roads, standing alone, is likewise adequate to sustain it. California v. Central Pacific R. R. Co., 127 U. S. 1, 39.
The contention here made that it was the purpose of Congress to provide for the support and success of this national policy of transportation out of the revenues derived from interstate commerce alone, leaving the question of whether the several States would participate in this burden, or would leave it all to rest upon interstate commerce, cannot be accepted.
The result of this would be either that the national conception of the standard of transportation facilities must be abandoned because of dissenting state opinion, or the means of sustaining it up to the national standard be cast upon the interstate part of the carrier’s services, or largely upon that and the balance on the internal commerce of those States which approved of the national standard and were willing to contribute to its support. The Transportation Act must clearly be construed as not permitting such a consequence.
Instead of finding in the Transportation Act terms which would force such a construction, we find that the purpose of Congress, as therein expressed, was directly the reverse. It is true that it did not deal with the primary jurisdiction over state rates and over interstate rates in the same way; but it did in unmistakable terms assert a jurisdiction over the ultimate and final regulation of both—over interstate rates as a matter of primary jurisdiction and over state rates as a matter of supervisory jurisdiction as defined in the act.
In § 422 (§ 15a of the Interstate Commerce Act), the Commission is required to find the aggregate value of the property of the carriers held for and used in the service of
WISCONSIN R. R. COMM. v. C., B. & Q. R. R. CO. 577
563.	Argument for Appellee.
transportation, and is not permitted to exclude any part of it because used for state transportation, or to make any distinction between that which is used in state service and that which is used in interstate service.
Likewise, when it comes to the question of the “fair return” prescribed by the act, no exclusion is permitted of the revenues derived from state traffic, but the return which must be provided is required to come from all traffic, state and interstate.
The contention insistently made that a different result must follow from the proviso that the act shall not apply to transportation wholly within one State, is unsound for two reasons. (1) The clause was in express terms a part of § 1 of the Interstate Commerce Act as it stood prior to the Transportation Act, and was a part of that act at the time of the decision in Houston, East & West Texas Ry. Co. v. United States, 234 U. S. 342. (2) The view that the clause referred to must be construed as an exclusion by Congress of jurisdiction of the Commission over the question of discrimination of state rates against interstate or foreign commerce, is plainly answered by the fact that in § 416 of the Transportation Act (paragraphs 3 and 4 of § 13 of the Interstate Commerce Act), Congress in express terms extends the power of the Commission over such discriminations. Congress, out of deference to the States, adopted the policy of dealing directly and primarily with interstate charges and of leaving the state rates to be dealt with primarily by the States, asserting a supervisory and corrective authority over state action only in cases of discrimination against interstate commerce. But, in the final result, it unmistakably undertook, in the act, to deal ultimately with both classes of rates. Illinois Central R. R. Co. v. State Public Utilities Commission, 245 U. 8.507.
578	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
Mr. John E. Benton, by leave of court, on behalf of forty-five States, as represented by their attorneys general and other counsel and by their railway and public service and utilities commissions, as amicus curice. Mr., A. E. Helm and Mr. Karl Knox Gartner were also on the briefs.
Mr. P. J. Farrell, by leave of court, on behalf of the Interstate Commerce Commission, as amicus curice.
Mr. Clifford Hilton, Attorney General of the State of Minnesota, and Mr. Henry C. Flannery, by leave of court, filed a brief as amici curice.
Mr. Forney Johnston, by leave of court, filed a brief as amicus curice.
Mr. Karl Knox Gartner and Mr. William Lemke, Attorney General of the State of North Dakota, by leave of court, filed a brief as amid curice.
Mr. Chief Justice Taft, after stating the case, delivered the opinion of the court.
The Commission’s order, interference with which was enjoined by the District Court, effects the removal of the unjust discrimination found to exist against persons in interstate commerce, and against interstate commerce, by fixing a minimum for intrastate passenger fares in Wisconsin at 3.6 cents per mile per passenger. This is done under paragraph 4 of § 13 of the Interstate Commerce Act, as amended by the Transportation Act of 1920, which authorizes the Interstate Commerce Commission, after a prescribed investigation, to remove
“ Any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable,
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 579
563.	Opinion of the Court.
or unjust discrimination against interstate or foreign commerce. ”
We have two questions to decide.
First. Do the intrastate passenger fares work undue prejudice against persons in interstate commerce, such as to justify a horizontal increase of them all?
Second. Are these intrastate fares an undue discrimination against interstate commerce as a whole which it is the duty of the Commission to remove?
We shall consider these in their order.
First. The report and findings of the Commission undoubtedly show that the intrastate fares work an undue discrimination against travellers in interstate commerce and against localities (Houston, East & West Texas Ry. Co. v. United States, 234 U. S. 342) in typical instances numerous enough to justify a general finding against a large class of fares. In a general order thus supported, possible injustice can be avoided by a saving clause allowing any one to except himself from the order by proper showing. This practice is fully sustained by precedent in what was done as a sequence of the Shreveport Case (Houston, East & West Texas Ry. Co. v. United States, supra). See 341. C. C. 472; 411. C. C. 83; Eastern Texas R. R. Co. v. Railroad Commission, 242 Fed. 300; Looney v. Eastern Texas R. R. Co., 247 U. S. 214. In Illinois Central R. R. Co. v. State Public Utilities Commission, 245 U. S. 493, 508, this court indicated its approval of such practice which was adopted by the Commission. 49 I. C. C. 713. Any rule which would require specific proof of discrimination as to each fare or rate and its effect would completely block the remedial purpose of the statute.
The order in this case, however, is much wider than the orders made in the proceedings following the Shreveport and Illinois Central Cases. There, as here, the report of the Commission showed discrimination against persons 6267°—22-------42
580
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
and localities at border points, and the orders were extended to include all rates or fares from all points in the State to border points. But this order is not so restricted. It includes fares between all interior points although neither may be near the border and the fares between them may not work a discrimination against interstate travellers at all. Nothing in the precedents cited justifies an order affecting all rates of a general description when it is clear that this would include many rates not within the proper class or the reason of the order. In such a case, the saving clause by which exceptions are permitted, can not give the order validity. As said by this court in the Illinois Central R. R. Case,“ it is obvious that an order of a subordinate agency, such as the Commission, should not be given precedence over a state rate statute otherwise valid, unless, and except so far as, it conforms to a high standard of certainty. ” See also American Express Co. v • Caldwell, 244 U. S. 617, 627.
If, in view of the changes, made by federal authority, in a large class of discriminating state rates, it is necessary from a state point of view to change non-discriminating state rates to harmonize with them, only the state authorities can produce such harmony. We can not sustain the sweep of the order in this case on the showing of discriminations against persons or places alone.
Second. The report of the Commission shows that if the intrastate passenger fares in Wisconsin are to be limited by the statute of that State to 2 cents per mile, and charges for extra baggage and sleeping car accommodations are to be reduced in a corresponding degree, the net income of the interstate carriers of the State will be cut six millions of dollars below what it would be under intrastate rates on the same level with interstate rates. Under paragraphs 3 and 4 of § 13 and § 15a as enacted in § § 416 and 422 respectively of the Transportation Act
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 581
563.	Opinion of the Court.
of 1920 (which are given in part in the margin1), are such reduction and disparity an “ undue, unreasonable, or unjust discrimination against interstate or foreign commerce ” which the Interstate Commerce Commission may remove by raising the intrastate fares? A short reference to the circumstances inducing the legislation and a summary of its relevant provisions will aid the answer to this question.
Paragraphs 3 and 4 of § 13 of § 416 and § 15a of § 422 of the same act are as follows :
“(3) Whenever in any investigation under the provisions of this Act, or in any investigation instituted upon petition of the carrier concerned, which petition is hereby authorized to be filed, there shall be brought in issue any rate, fare, charge, classification, regulation, or practice, made or imposed by authority of any State, or initiated by the President during the period of Federal control, the Commission, before proceeding to hear and dispose of such issue, shall cause the State or States interested to be notified of the proceeding. The Commission may confer with the authorities of any State having regulatory jurisdiction over the class of persons and corporations subject to this Act with respect to the relationship between rate structures and practices of carriers subject to the jurisdiction of such State bodies and of the Commission; and to that end is authorized and empowered, under rules to be prescribed by it, and which may be modified from time to time, to hold joint hearings with any such State regulating bodies on any matters wherein the Commission is empowered to act and where the rate-making authority of a State is or may be affected by the action taken by the Commission. The Commission is also authorized to avail itself of the cooperation, services, records, and facilities of such State authorities in the enforcement of any provision of this Act.
“(4) Whenever in any such investigation the Commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against interstate or foreign commerce, which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter
582	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
The Interstate Commerce Act of 1887, 24 St. 379, was enacted by Congress to prevent interstate railroad carriers from charging unreasonable rates and from unjustly discriminating between persons and localities. The railroads availed themselves of the weakness and cumbrous machinery of the original law to defeat its purpose, and this led to various amendments culminating in the amending Act of 1910, 36 Stat. 539, in which the authority of the Commission in dealing with the carriers was made summary and effectively complete. Whatever the causes, the fact was that the carrying capacity of the railroads did not thereafter develop proportionately with the growth of the country, and it became difficult for them
to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, or discrimination. Such rates, fares, charges, classifications, regulations, and practices shall be observed while in effect by the carriers parties to such proceeding affected thereby, the law of any State or the decision or order of any State authority to the contrary notwithstanding.”
Section 422 of the Transportation Act, 1920, 41 Stat. 488.
The Interstate Commerce Act is further amended by inserting after section 15 a new section to be known as section 15a and to read as follows:
“Sec. 15a. (1) . . . .
“(2) In the exercise of its power to prescribe just and reasonable rates, the Commission shall initiate, modify, establish or adjust such rates so that carriers as a whole (or as a whole in each of such rate groups or territories as the Commission may from time to time designate) will, under honest, efficient and economical management and reasonable expenditures for maintenance of way, structures and equipment, earn an aggregate annual net railway operating income equal, as nearly as may be, to a fair return upon the aggregate value of the railway property of such carriers held for and used in the service of transportation: . . .
“(3) The Commission shall from time to time determine and make public what percentage of such aggregate property value constitutes a fair return thereon, and such percentage shall be uniform for all rate groups or territories which may be designated by the Commission, In making such determination it shall give due con-
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 583
563.	Opinion of the Court.
to secure additional investment of capital on feasible terms. When the extraordinary demand for transportation arose in 1917, the Congress and the President concluded to take over all the railroads into the management of the Federal Government, and by joint use of facilities, which the Anti-Trust Law was thought to forbid under private management, and by use of Government credit, to increase their effectiveness. This was done by appropriate legislation and executive action under the war power. From January 1,1918, until March 1, 1920, when the Transportation Act went into effect, the common carriers by steam railroad of the country were operated by the Federal Government. Due to the rapid rise in the sideration, among other things, to the transportation needs of the country and the necessity (under honest, efficient and economical management of existing transportation facilities) of enlarging such facilities in order to provide the people of the United States with adequate transportation: Provided, That during the two years beginning March 1, 1920, the Commission shall take as such fair return a sum equal to 5^2 per centum of such aggregate value, but may, in its discretion, add thereto a sum not exceeding one-half of one per centum of such aggregate value to make provision in whole or in part for improvements, betterments or equipment, which, according to the accounting system prescribed by the Commission, are chargeable to capital account.
“(4) For the purposes of this section, such aggregate value of the property of the carriers shall be determined by the Commission from time to time and as often as may be necessary. The Commission may utilize the results of its investigation under section 19a of this Act, in so far as deemed by it available, and shall give due consideration to all the elements of value recognized by the law of the land for rate-making purposes, and shall give to the property investment account of the carriers only that consideration which under such law it is entitled to in establishing values for rate-making purposes. Whenever pursuant to section 19a of this Act, the value of the railway property of any carrier held for and used in the service of transportation has been finally ascertained, the value so ascertained shall be deemed by the Commission to be the value thereof for the purpose of determining such aggregate value.”
584	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
prices of material and labor in 1918 and 1919, the expense of their operation had enormously increased by the time it was proposed to return the railroads to their owners. The owners insisted that their properties could not be turned back to them by the Government for useful operation without provision to aid them to meet a situation in which they were likely to face a demoralizing lack of credit and income. Congress acquiesced in this view. The Transportation Act of 1920 was the result. It was adopted after elaborate investigations by the Interstate Commerce Committees of the two Houses.
Under Title II it made provision for the termination of federal control March 1, 1920, for the refunding of the carriers’ indebtedness to the United States, and for a guaranty for six months to the carriers of an income equal to the war-time rental for their properties, and directed that, for two years following the termination of federal control, the Secretary of the Treasury, upon certificate of the Commission, might make loans to the carriers not exceeding the maximum amount recommended in the certificate, out of a revolving fund of $300,000,000.
Under Title IV, amendments were made to the Interstate Commerce Act which included § 13, paragraphs 3 and 4, and § 15a, already quoted in the margin. The former for the first time authorizes the Commission to deal directly with intrastate rates where they are unduly discriminating against interstate commerce—a power already indirectly exercised as to persons and localities, with approval of this court in the Shreveport and other cases. The latter, the most novel and most important feature of the act, requires the Commission so to prescribe rates as to enable the carriers as a whole, or in groups selected by the Commission, to earn an aggregate annual net railway operating income equal to a fair return on the aggregate value of the railway property used in transportation. For two years, the return is to be
WISCONSIN R. R. COMM. v. C., B. & Q. R. R. CO. 585
563.	Opinion of the Court.
5^ per cent., with % per cent? for improvements, and thereafter is to be fixed by the Commission.
The act sought to avoid excessive incomes accruing, under the operation of § 15a, to the carriers better circumstanced, by using the excess for loans to the others and for other purposes. The act further put under the control of the Interstate Commerce Commission, 1st, the issuing of future railroad securities by the interstate carriers; 2nd, the regulation of their car supply and distribution and the joint use of terminals; and, 3rd, their construction of new lines, and their abandonment of old lines. The validity of some of these provisions has been questioned. Upon that we express no opinion. We only refer to them to show the scope of the congressional purpose in the act.
It is manifest from this very condensed recital that the act made a new departure. Theretofore the control which Congress through the Interstate Commerce Commission exercised was primarily for the purpose of preventing injustice by unreasonable or discriminatory rates against persons and localities, and the only provisions of the law that inured to the benefit of the carriers were the requirement that the rates should be reasonable' in the sense of furnishing an adequate compensation for the particular service rendered and the abolition of rebates. The new measure imposed an affirmative duty on the Interstate Commerce Commission to fix rates and to take other important steps to maintain an adequate railway service for the people of the United States. This is expressly declared in § 15a to be one of the purposes of the bill.
Intrastate rates and the income from them must play a most important part in maintaining an adequate national railway system. Twenty per cent, of the gross freight receipts of the railroads of the country are from intrastate traffic, and fifty per cent, of the passenger receipts. The ratio of the gross intrastate revenue to the
586
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
interstate revenue is a little less than one to three. If the rates, on which such receipts are based, are to be fixed at a substantially lower level than in interstate traffic, the share which the intrastate traffic will contribute will be proportionately less. If the railways are to earn a fixed net percentage of income, the lower the intrastate rates, the higher the interstate rates may have to be. The effective operation of the act will reasonably and justly require that intrastate traffic should pay a fair proportionate share of the cost of maintaining an adequate railway system. Section 15a confers no power on the Commission to deal with intrastate rates. What is done under that section is to be done by the Commission “in the exercise of its power to prescribe just and reasonable rates ”, i. e., powers derived from previous amendments to the Interstate Commerce Act, which have never been construed or used to embrace the prescribing of intrastate rates. When we turn to paragraph 4, § 13, however, and find the Commission for the first time vested with a direct power to remove “ any undue, unreasonable, or unjust discrimination against interstate or foreign commerce ”, it is impossible to escape the dovetail relation between that provision and the purpose of § 15a. If that purpose is interfered with by a disparity of intrastate rates, the Commission is authorized to end the disparity by directly removing it, because it is plainly an “ undue, unreasonable, or unjust discrimination against interstate or foreign commerce ”, within the ordinary meaning of those words.
Counsel for appellants, not able to satisfy their meaning by the suggestion of any other discrimination to which they apply, are forced to the position that the words are tautological and a mere repetition of “ any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand,” which precede them. In view of their apt appli-
WISCONSIN R. R. COMM. v. C., B. & Q. R. R. CO. 587
563.	Opinion of the Court.
cation to the most important purpose of the legislation, we are not at liberty to take such a view. If “ undue, unreasonable, or unjust discrimination against interstate or foreign commerce ” are tautological, why are they followed by the phrase “which is hereby forbidden and declared to be unlawful? ” To accompany a meaningless phrase with words of such special emphasis would be unusual.
It is urged that in previous decisions, notably the Minnesota Rate Cases, 230 U. S. 352, the Shreveport Case, supra, and the Illinois Central Case, supra, the expression “ unjust discrimination against interstate commerce ” was often used when, as the law then was, it could only mean discrimination as between persons and localities, and therefore that it is to be given the same limited meaning here. But, here, the general words are used after discrimination against persons and localities have been specifically mentioned. The natural inference is that even if they include what has gone before, they mean something more. When we find that they aptly include a kind of discrimination against interstate commerce which the operation of the new act for the first time makes important and which would seriously obstruct its chief purpose, we cannot ignore their necessary effect.
Counsel for appellants are driven by the logic of their position to maintain that the valuation required for the purposes of § 15a to be ascertained pursuant to § 19a of the Interstate Commerce Act (37 Stat. 701; amended 41 Stat. 493), is to be only of that part of the property and equipment of the interstate carriers which is used in commerce among the States and must be segregated from that used in intrastate commerce. This is contrary to the construction which since the enactment of § 19a, March 1, 1913, the Commission has put upon that section in carrying out its injunction. It is inadmissible. The language of § 15a refutes such interpretation. The per
588	OCTOBER TERM, 1921.
Opinion of the Court.	257U.S.
centage is to be calculated on “ the aggregate value of the railway property of such carriers held for and used in the service of transportation.” To impose on the Commission the duty of separating property used in the two services when so much of it is used in both, and to do this in a reasonably short time for practical use, as contemplated by the statute, would be to assign it a well-nigh impossible task. This, of itself, prevents our giving the words such a construction unless they clearly require it. They certainly do not.
It is objected here, as it was in the Shreveport Case, that orders of the Commission which raise the intrastate rates to a level of the interstate structure violate the specific proviso of the original Interstate Commerce Act repeated in the amending acts, that the Commission is not to regulate traffic wholly within a State. To this, the same answer must be made as was made in the Shreveport Case (234 U. S. 342, 358), that such orders as to intrastate traffic are merely incidental to the regulation of interstate commerce and necessary to its efficiency. Effective control of the one must embrace some control over the other in view of the blending of both in actual operation. The same rails and the same cars carry both. The same men conduct them. Commerce is a unit and does not regard state lines, and while, under the Constitution, interstate and intrastate commerce are ordinarily subject to regulation by different sovereignties, yet when they are so mingled together that the supreme authority, the Nation, cannot exercise complete effective control over interstate commerce without incidental regulation of intrastate commerce, such incidental regulation is not an invasion of state authority or a violation of the proviso.
Great stress is put on the legislative history of the Transportation Act to show that the bill was not intended to confer on the Commission power to remove any discrimination against interstate commerce involved in a
WISCONSIN R.R.COMM. v. C., B. & Q. R. R. CO. 589
563.	Opinion of the Court.
general disparity between interstate and intrastate rates. Committee reports and explanatory statements of members in charge made in presenting a bill for passage have been held to be a legitimate aid to the interpretation of a statute where its language is doubtful or obscure. Duplex Printing Press Co. v. Deering, 254 U. S. 443, 475. But when taking the act as a whole, the effect of the language used is clear to the court, extraneous aid like this can not control the interpretation. Pennsylvania R. R. Co. v. International Coal Mining Co., 230 U. S. 184, 198. Caminetti v. United States, 242 U. S. 470, 490. Such aids are only admissible to solve doubt and not to create it. For the reasons given, we have no doubt in this case.
Counsel for the appellants have not contested the constitutional validity of the statute construed as we have construed it, although the counsel for the state commissions whom we permitted to file briefs as amici curiae have done so. The principles laid down by this court in the Minnesota Rate Cases, 230 U. S. 352, 432, 433, the Shreveport Case, 234 U. S. 342, 351, and the Illinois Central Case, 245 U. S. 493, 506, which are rates cases, and in the analogous cases of Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 618; Southern Ry. Co. v. United States, 222 U. S. 20, 26, 27; Second Employers’ Liability Cases, 223 U. S. 1, 48, 51, we think, leave no room for discussion on this point. Congress in its control of its interstate commerce system is seeking in the Transportation Act to make the system adequate to the needs of the country by securing for it a reasonable compensatory return for all the work it does. The States are seeking to use that same system for intrastate traffic. That entails large duties and expenditures on the interstate commerce system which may burden it unless compensation is received for the intrastate business reasonably proportionate to that for the
590
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
interstate business. Congress as the dominant controller of interstate commerce may, therefore, restrain undue limitation of the earning power of the interstate commerce system in doing state work. The affirmative power of Congress in developing interstate commerce agencies is clear. Wilson v. Shaw, 204 U. S. 24; Luxton v. North River Bridge Co., 153 U. S. 525; California v. Central Pacific R. R. Co., 127 U. S. 1, 39. In such development, it can impose any reasonable condition on a State’s use of interstate carriers for intrastate commerce it deems necessary or desirable. This is because of the supremacy of the national power in this field.
In Minnesota Rate Cases, 230 U. S. 352, where relevant cases were carefully reviewed, it was said, p. 399: “ The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the Nation may deal with the internal concerns of the State, as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the national power within its appointed sphere.”
It is said that our conclusion gives the Commission unified control of interstate and intrastate commerce. It is only unified to the extent of maintaining efficient regulation of interstate commerce under the paramount power of Congress. It does not involve general regulation of intrastate commerce. Action of the Interstate Commerce Commission in this regard should be directed to substantial disparity which operates as a real discrimination
NEW YORK v. UNITED STATES. 591
563.	Syllabus.
against, and obstruction to, interstate commerce, and must leave appropriate discretion to the state authorities to deal with intrastate rates as between themselves on the general level which the Interstate Commerce Commission has found to be fair to interstate commerce.
It may well turn out that the effect of a general order in increasing all rates, like the one at bar, will, in particular localities, reduce income instead of increasing it, by discouraging patronage. Such cases would be within the saving clause of the order herein, and make proper an application to the Interstate Commerce Commission for appropriate exception. So, too, in practice, when the state commissions shall recognize their obligation to maintain a proportionate and equitable share of the income of the carriers from intrastate rates, conference between the Interstate Commerce Commission and the state commissions may dispense with the necessity for any rigid federal order as to the intrastate rates, and leave to the state commissions power to deal with them and increase them or reduce them in their discretion.
The order of the District Court granting the interlocutory injunction is
Affirmed.
STATE OF NEW YORK ET AL. v. UNITED STATES, CLARK ET AL., CONSTITUTING THE INTERSTATE COMMERCE COMMISSION, AND (INTERVENING) LEHIGH VALLEY RAILROAD COMPANY ET AL.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.
No. 283. Argued October 19, 20, 1921.—Decided February 27, 1922.
1. Absence of any substantial evidence to sustain a finding of the Interstate Commerce Commission material to an order adjusting rates, may be relied on in a suit directly attacking the order, to
592	OCTOBER TERM, 1921.
Argument for Appellants.	257 U.S.
which the United States and the Commission are made parties. P. 600.
2.	Evidence found insufficient to sustain an order for a general increase of state passenger, baggage and milk rates as prejudicial to persons and localities in interstate commerce, under § 416, (§ 13, paragraph 4,) of the Transportation Act of 1920. P. 600. Cf. Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy R. R. Co., ante, 563.
3.	Interference with a charter fare-limiting contract between a railroad and a State, is not a taking of the property of the State or its people without due process of law, when done under the power of Congress to regulate interstate commerce; nor does the contract clause of the Constitution forbid. P. 600.
4.	Intrastate rates so low that they discriminate against interstate commerce, within the meaning of the Transportation Act of 1920, may constitutionally be increased thereunder, by the Interstate Commerce Commission, to conform with like rates in interstate commerce fixed by it pursuant to the act. P. 601. Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy R. R. Co., ante, 563.
272 Fed. 758, affirmed.
Appeal from a decree of the District Court dismissing a bill brought by appellants against the United States and the Interstate‘Commerce Commission to annul an order of the latter authorizing an increase of intrastate railroad rates. Various carriers intervened and became appellees.
Mr. Edward G. Griffin and Mr. John E. Benton, with whom Mr. Charles D. Newton, Attorney General of the State of New York, and Mr. George L. Meade were on the briefs, for appellants.
The appellants have capacity to sue. Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163; Rhode Island v. Palmer, 253 U. S. 350; New Jersey v. Palmer, 253 U. S. 350; California v. Southern Pacific Co., 157 U. S. 229; Ames v. Kansas, 111 U. S. 449; American Express Co. v. Caldwell, 244,U. S. 617; Ex parte McCardle, 7 Wall. 506.
NEW YORK v. UNITED STATES. 593
591.	Argument for Appellants.
This court has jurisdiction to review the facts on which the report, findings and order were made and to set aside the report,,findings and order of the Commission. Interstate Commerce Commission v. Union Pacific R. R. Co., 222 U. S. 541; Procter & Gamble Co. v. United States, 225 U. S. 282; Manufacturers Ry. Co. v. United States, 246 U. S. 457; Seaboard Air Line Ry. Co. v. United States, 254 U. S. 57; Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452.
The formula of raising all state rates to the level of interstate rates is too rigid to be practicable and too unjust to have been intended by Congress. Minnesota Rate Cases, 230 U. S. 352,412; Shreveport Case, 234 U. S. 342; American Express Co. n. Caldwell, 244 U. S. 417; Illinois Central R. R. Co. v. State Public Utilities Commission, 245 U. S. 493. In none of these cases were any more of the state rates invalidated than those, which the court held to be in direct conflict with lawfully established interstate rates. And § 13 (4) of the amended Interstate Commerce Act goes no further.
Regulation of interstate commerce may not provide revenue from state commerce. Smyth v. Ames, 169 U. S. 466, 541.
The New York Central is doing business under a charter contract. Only by abandoning its charter and by federal incorporation may it avoid the two cent fare. Cleveland v. Cleveland City Ry. Co., 194 U. S. 517; Columbus Ry. & Power Co. v. Columbus, 249 U. S. 399; Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396; Grand Rapids & Indiana Ry. Co. v. Osborn, 193 U. S. 7. The purpose of Congress to violate this contract should not be implied. Congress may not forever destroy the rights of the State in a contract, under an unlimited and interminable exercise of its war powers. Ther^are dicta to the general effect that Congress may impair the obligations of contracts, because at the time of the adop-
594
OCTOBER TERM, 1921.
Argument for Appellants.
257 U. S.
tion of the Constitution only the States were specially restrained and Congress was not. Sinking-Fund Cases, 99 U. S. 718; Mitchell v. Clark, 110 U. S. 643; Legal Tender Cases, 12 Wall. 529; Evans-Snider-Buel Co. v. McFadden, 105 Fed. 297; Michigan Central R. R. Co. v. Slack, 17 Fed. Cas. No. 9,527a, affd. 100 U. S. 595; Evans v. Eaton, Pet. (C. C.) 322; 8 Fed. Cas. No. 4,559; Bloomer n. Stolley, 5 McLean, 158; 3 Fed. Cas. No. 1,559; Hardeman v. Downer, 39 Ga. 425; Jones v. Harker, 37 Ga. 503; Black v. Dusk, 69 Ill. 70.
On the other hand the contrary has just as strongly been said. Hepburn v. Griswold, 8 Wall. 603, 623; Sinking-Fund Cases, 99 U. S. 700, 718-719; St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 372; Legal Tender Cases, 12 Wall. 457, 581; Loan Association v. Topeka, 20 Wall. 655, 663-664; Fletcher v. Peck, 6 Cranch, 87.
Madison had denounced such laws as “ contrary to the first principles of the social compact and every principle of sound legislation.” Planters’ Bank v. Sharp, 6 How. 301, 319. One reason why the States had been specially restricted in Article X was because of outrages upon aliens and because the impairment of agreements with the British Government had endangered international relations. 5 Elliott, pp. 127, 171, 207, 546. The convention had rejected Mr. Gerry’s resolution made on September 14th, to put a like prohibition on Congress.
Yet this does not necessarily mean that authority had been delegated to the Nation to commit an act malum in se and that national honor restrained only local greed.
If the prohibition on Congress does not rest upon first principles, the Fifth Amendment with the expanded interpretation of “ due process ” is now a sufficient restraint.
Due process in the Fifth and Fourteenth Amendments has come to mean the same thing. United States v. Arm-
NEW YORK v. UNITED STATES. 595
591.	Argument for Appellants.
strong, 265 Fed. 683, 690, and now protects all property against both the States and the United States. See particularly the dissenting opinion in Wight v. Davidson, 181 U. S. 371, 387.
The State is a person under the analogy of the decisions that a private or municipal corporation is a person. The charter contract was made upon behalf of all the people and all the citizens of the State. Their interest represented by the State is entitled to the protection of the Constitution. Dakota Central Telephone Co. v. South Dakota, 250 U. S.*163, 180.
Even though the State’s right in this charter is not based upon property, its right should be recognized in its power—its police power over common carirers, and its power to create or to refuse to create corporations under such terms and conditions as it may see fit. Although a corporation, after its creation, under the Federal Constitution is entitled to engage in interstate commerce, before its creation the State may impose conditions precedent, which if imposed as conditions subsequent might be violative of various provisions of the State or Federal Constitutions. Municipal Gas Co. v. Public Service Commission, 225 N. Y. 93; Railroad Co. v. Maryland, 21 Wall. 456; Horn Silver Co. v. New York, 143 U. S. 305; Raritan Co. v. Delaware Canal Co., 18 N. J. Eq. 546. The State may generally impose any condition in return for the grant of a charter. Although it may be impracticable for the railroad to abandon its corporate character and operate as a copartnership or otherwise, it is theoretically possible. On the other hand, if the burdens of its charter here are too great, it can seek incorporation as an interstate carrier under an act of Congress. The power of Congress to grant such a charter seems unquestionable. California v. Central Pacific R. R. Co., 127 U. S. 1. Then it might become subject only to New York’s police power. 6267°—22-------43
596
OCTOBER TERM, 1921.
Argument for Appellants.
257 U.S.
Reagan v. Mercantile Trust Co., 154 U. S. 413; Legal Possibilities of Federal Incorporation, 26 Yale Law Jour. 207; Right to Engage in Commerce, 8 Mich. Law Rev. 458; Federal Incorporation, 17 Mich. Law Rev. 64, 143, 238. For the present the benefits of the charter cannot be left to the railroad and its burdens removed by Congress throughout the life of the charter. Paige v. Schenectady Ry. Co., 178 N. Y. 102, 114.
Discrimination must be substantial and material to warrant federal interference and the appropriate proof of substantial discrimination is loss of business thereby. Illinois Central R. R. Co. v. State Public Utilities Commission, 245 U. S. 493; Interstate Commerce Commission v. Baltimore & Ohio R. R. Co., 145 U. S. 263; Second Employers’ Liability Cases, 223 U. S. 1, 47. Under these decisions the normal volume of interline business on the Long Island Railroad is negligible and would not warrant any action by the Commission. Moreover, there is in this case no scintilla of evidence that even the smallest portion of this negligible so-called interstate business has been adversely affected in the least. As to the Staten Island Company, the case is even worse.
The railroads cannot claim that every passenger who leaves New York State after traveling on their lines is an interstate passenger while on their lines. Gulf, Colorado & Santa Fe Ry. Co. v. Texas, 204 U. S. 403; Chicago, Milwaukee & St. Paul Ry. Co. v. Iowa, 233 U. S. 334; Pennsylvania R. R. Co. v. Mitchell Coal Co., 238 U. S. 251. The mere fact that there are two tickets, one interstate and one intrastate, does not conclude the inquiry. The only rule is that the decision must rest upon the facts of the case in question. Southern Pacific Co. n. Arizona, 249 U. S. 472; Public Utilities Commission v. Landon, 249 U. S. 236; Arkadelphia Co. v. St. Louis Southwestern Ry. Co., 249 U. S. 134; Illinois Central R. R. Co. v. Fuentes, 236 U. S. 67.
NEW YORK v. UNITED STATES. 597
591.	Opinion of the Court.
The Commission has unauthorizedly assumed the authority of an appellate tribunal to review the action of the state legislature and regulatory bodies.
Its order is unlawful and unconstitutional on its face.
Congress did not attempt to enlarge the scope of the power of the Commission over intrastate rates, as is shown by the legislative history of the amendments of 1920.
The doctrine of the Shreveport Case, 234 U. S. 342, has not broadened materially the power of Congress over purely intrastate commerce.
The States, and not Congress, under the Constitution, have the right .to regulate commerce within their respective borders.
Mr. Walter C. Noyes and Mr. Alfred P. Thom, with whom Mr. George F. Brownell, Mr. W. S. Jenney, Mr. C. L. Andrus, Mr. R. W. Barrett, Mr. John J. Beattie, Mr. D. E. Minard and Mr. William D. Waldron were on the briefs, for the railroad companies, intervening defendants.
Mr. P. J. Farrell for the Interstate Commerce Commission.
Mr. Solicitor General Beck for the United States.
Mr. Chief Justice Taft delivered the opinion of the court.
This was a bill in equity against the United States and the Interstate Commerce Commission and others brought by the State of New York and its Attorney General to annul and enjoin the enforcement of an order of the Interstate Commerce Commission requiring the interstate railroads operating in intrastate commerce in the State of New York to charge in such commerce 3.6 cents a mile for all passengers, twenty per cent, increase over the then excess baggage rates to intrastate passengers, a surcharge of fifty per cent, of the charges for space in sleeping cars
598
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
to such passengers, and twenty per cent, increase in intrastate rates on milk, all for the purpose of bringing the intrastate rates to the level of the interstate rates previously fixed by the Commission. The bill was filed under, and by virtue of, the statute repealing the Commerce Court Act and conferring jurisdiction on the District Court. 38 Stat. 219. The application for an interlocutory injunction was heard by a Circuit Judge and two District Judges. Then a final hearing was had, and the court entered a final decree dismissing the complaint, from which this appeal has been taken. The Railroad Companies affected by the order were on their petition permitted to intervene, and are here as appellees.
It appears from the record that, in the proceeding by the Interstate Commerce Commission to fix interstate commerce rates to comply with the requirements of § 15a of the Interstate Commerce Act, added by § 422 of the Transportation Act of 1920, 41 Stat. 488—a proceeding known as Ex parte 74, Increased Rates, 58 I. C. C. 220—the Commission, after conference with a committee representing all the state commerce commissions and authorities, authorized the group of interstate railroads of which the railroads operating in New York were a part to raise their freight rates forty per cent., their passenger rates and excess baggage charges twenty per cent., and to add a surcharge of fifty per cent, for passengers on sleeping cars. As soon as the order in Ex parte 74 was made, the railroads concerned applied to the Public Service Commission of the State of New York for similar increases in intrastate rates. That commission granted the increase in freight rates, but denied it as to milk rates and passenger fares. The passenger intrastate fares were 3 cents a mile under the order of the President during the war control, but, when that should become ineffective, a statute of New York fixing passenger fares on the New York Central Railroad from Albany to Buffalo at two
NEW YORK v. UNITED STATES. 590
591.	Opinion of the Court.
cents a mile would come into force and operation. As soon as the state commission made its ruling, the railroads applied to the Interstate Commerce Commission under § 13 of the act, of which proceeding notice was given to the State of New York, the Attorney General and the Public Service Commission, all of whom appeared, for an order directing the railroads to put intrastate passenger fares, excess baggage charges, sleeping car surtaxes and milk rates on the same level with interstate rates. Proof was offered by the railways to show that conditions of operation in state and interstate passenger traffic were alike and there was no showing otherwise. The record in Ex parte 74 was put in evidence. There was evidence also to show that at Buffalo and other border points the difference between the interstate and intrastate fares would divert business from the interstate lines between New York City and Buffalo to the New York Central lines, and that the same difference would break up interstate journeys to the west into intrastate journeys to Buffalo from New York and an interstate journey beyond, thus reducing interstate travel and discriminating against passengers carried therein. Evidence was adduced to show the injury to interstate business in the transportation of milk from the country to New York City from points outside of the State in competition with intrastate traffic in this necessity of life. No investigation was made into suburban commuter travel and it is excluded by the Commission from the scope of the order which it made. The order was state wide in its effect and required all interstate carriers to bring their intrastate milk rates, their intrastate passenger fares except commuters’ rates, excess baggage charges and sleeping car surcharges to a level with interstate fares and rates as ordered in Ex parte 71*. The Commission introduced a saving clause in its findings by which the New York authorities or any other interested parties were given leave to apply for modification of its order or
600
OCTOBER TERM, 1921.
Opinion of the Court.
257 U. S.
findings as to any intrastate fares, charges or rates included therein on the ground that the latter were not related to interstate fares, charges or rates in such a way as to contravene the provisions of the Interstate Commerce Act. Under this clause, at least one petition has been filed by a railroad and the railroad excepted from the order.
The District Court dismissed the bill.
This case differs from the Wisconsin Rate Case, just decided, ante, 563, in that it is a direct proceeding to annul or set aside the order of the Interstate Commerce Commission complained of, brought against the United States and the Commission under the statute. Skinner & Eddy Corporation v. United States, 249 U. S. 557. The Wisconsin Rate Case was a suit by a railroad against the state authorities to prevent the latter from penalizing the railroad for complying with the order of the Commission. To this suit the United States and the Commission were not parties. The defense of the state authorities was a collateral attack upon the order, to prevail in which, they were obliged to show that the order was void on the face of the findings without regard to the evidence or the absence of it. In the case before us, the complainants are entitled to rely on the absence of any substantial evidence to sustain a material finding as a basis for attacking the order.
The first objection of the appellants is that there was no sufficient evidence of discrimination against persons and localities under § 13, par. 4, § 416 of the Transportation Act of 1920, to justify a state-wide order of the kind here made. We have considered this objection in the Wisconsin Rate Case on a similar showing on the findings. Here we consider it on the evidence. We reach the same conclusion here and sustain the objection.
The next objection is that the State has a charter contract with the New York Central Railroad Company by
NEW YORK v. UNITED STATES. 601
591.	Opinion of the Court.
which the latter is bound not to charge more than two cents a mile for passenger carriage between Albany and Buffalo, and that, if the Transportation Act permits the Interstate Commerce Commission by such an order to enable the railroad company to violate its contract, it impairs the obligation of a contract in violation of § 10, Article I, of the Federal Constitution. That section provides that “ no State shall . . . pass any . . . law impairing the obligation of contracts,” and does not in terms restrict Congress or the United States. But it is said that it deprives New York and her people of property without due process of law. We said in Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 230, “Anything which directly obstructs and thus regulates that commerce which is carried on among the States, whether it is state legislation or private contracts between individuals or corporations, should be subject to the power of Congress in the regulation of that commerce.” Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467. See also Scranton v. Wheeler, 179 U. S. 141, 162, 163; Union Bridge Co. v. United States, 204 U. S. 364, 400.
The main objections to the order are the same as those presented, considered and overruled in the Wisconsin Rate Case, just decided. The evidence in this case shows that, if the passenger and other rates here in controversy were to continue in force as ruled by the Public Service Commission of New York, the annual gross revenues of the interstate railroads operating in the State of New York from both interstate and intrastate passenger and milk business would be less by nearly twelve millions of dollars than those revenues if the intrastate fares and rates were on the same level as the interstate rates as fixed by the Interstate Commerce Commission. If the lower level of intrastate fares and rates is to be maintained, it will discriminate against interstate commerce, in that it will require higher fares and rates in the interstate commerce of
602	; OCTOBER TERM, 1921.
Syllabus.	257 U.S.
the State to secure the income for which the Interstate Commerce Commission must attempt to provide by fixing rates under § 15a of the Interstate Commerce Act, as amended by § 422 of the Transportation Act of 1920, 41 Stat. 456, 488, in carrying out the declared congressional purpose “ to provide the people of the United States with adequate transportation.” As we have just held in the Wisconsin Rate Case, this constitutes “undue, unreasonable, or unjust discrimination against interstate .
commerce ”, which is declared to be unlawful and prohibited by § 13, par. 4, of the Interstate Commerce Act, as amended by § 416 of the Transportation Act of 1920, 41 Stat. 456, 484, and which the Interstate Commerce Commission is authorized therein to remove by fixing intrastate rates for the purpose. We need not repeat our reasons for our ruling. Nor need we consider and give again the grounds upon which we hold § 13, par. 4 as thus construed to be valid under the Constitution of the United States.
The decree of the District Court dismissing the bill of complaint is
Affirmed.
SMIETANKA, AS COLLECTOR OF INTERNAL REVENUE OF THE UNITED STATES FOR THE FIRST DISTRICT OF ILLINOIS, v. FIRST TRUST & SAVINGS BANK, TRUSTEE OF YOUNG, DECEASED.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
No. 540. Argued January 19,1922.—Decided February 27,1922.
1. The Income Tax Act of 1913 made no provision for taxing income held and accumulated by a trustee for unborn and unascertained beneficiaries. P. 605.
SMIETANKA v. FIRST TRUST & SAVGS. BANK. 603
602.	Opinion of the Court.
2. Semble that the specific inclusion of such income by the Act of 1916 was a legislative interpretation of the earlier act as not including it. P. 607.
Affirmed.
Certiorari to a judgment of the Circuit Court of Appeals affirming a judgment of the District Court for the present respondent, in an action to recover a tax. The District Court had first sustained a demurrer to the declaration, but later, pursuant to a mandate of reversal, (see 268 Fed. 230), overruled it, and rendered judgment against the present petitioner, who stood upon the demurrer. The case then went again to the court below and the judgment was affirmed.
Mr. Assistant Attorney General Ottinger, with whom Mr. Solicitor General Beck and Mr. Charles H. Weston, Special Assistant to the Attorney General, were on the brief, for petitioner.
Mr. John P. Wilson, with whom Mr. William B. Hale and Mr. Walter Bruce Howe were on the brief, for respondent.
Mr. Chief Justice Taft delivered the opinion of the court.
The question presented for decision is whether, under the Income Tax Law of 1913, income held and accumulated by a trustee for the benefit of unborn and unascertained persons was taxable. The accumulations of income were $789,905.65 for the years 1913, 1914 and 1915, and the tax collected by the petitioner as Collector, and paid under protest by the trustee, the respondent, amounted to $36,638.69. Respondent brought suit for this sum against the petitioner in the District Court for the Northern District of Illinois, and judgment was rendered against it on demurrer to the declaration. The
604	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
judgment was reversed by the Circuit Court of Appeals, 268 Fed. 230. The District Court then overruled the demurrer and, the petitioner electing not to plead further, rendered a judgment for the respondent, which was affirmed by the court below on a second appeal. As this case arises under the revenue laws and the judgment of the Circuit Court is final (§ 128 of the Judicial Code), certiorari issued under § 240 of the Code.
The income tax here in question was provided for in “An Act To reduce tariff duties and to provide revenue for the Government, and for other purposes”, enacted October 3, 1913, c. 16, 38 Stat. 114, and is embodied in § II of that act (pages 166, et seq.}. The tax is imposed by par. A, subd. 1. It levies a normal tax of one per cent, upon the entire yearly net income arising from all sources accruing to every citizen of the United States and to every person in the United States residing there. In subd. 2, an additional or surtax is levied on the net income of every individual. Under par. G, the normal tax imposed on individuals is extended to corporations. Paragraph B defines the net income of individuals and specifies the deductions. Paragraph D makes provision for returns by persons and then says:
“ Guardians, trustees, executors, administrators, agents, receivers, conservators, and all persons, corporations, or associations acting in any fiduciary capacity, shall make and render a return of the net income of the person for whom they act, subject to this tax, coming into their custody or control and management, and be subject to alt the provisions of this section which apply to individuals.”
Paragraph E provides that, among others, all lessees or mortgagors of real or personal property, trustees acting in any trust capacity, executors, administrators, agents, receivers, conservators, having control, receipt, custody, disposal or payment of annual gains, profits and income
SMIETANKA v. FIRST TRUST & SAVGS. BANK. 605
602.	Opinion of the Court.
of another person, exceeding $3,000 for any taxable year, who are required to make return in behalf of another, shall deduct the normal tax on the income and pay it to the United States, and they are each made personally liable for such tax. It is further declared that these payments of the tax at the source shall only apply to the normal tax thereinbefore imposed on individuals.
It is obvious from a reading of the statute, the relevant provisions of which we have summarized, that Congress was seeking to require fiduciaries to make return and pay the normal tax due from persons subject to the tax on such income as the fiduciaries were receiving for such persons. There was nowhere in the act a payment required of the fiduciary of a tax upon the income of the estate or trust property, the income from which he collects, except as it is to enure to the benefit of a person or an individual from whose income he is authorized and required to deduct the normal tax thereon. There must have been a taxable person for whom the fiduciary was acting to make the provisions relied upon by the Government applicable. There was no provision for the payment “ at the source ” by the fiduciary of anything but the normal tax. It was intended that the additional or surtax should be paid by the cestui que trust. Here there was no cestui que trust to pay a surtax.
No language in the act included a tax on income received by a trustee by him to be accumulated for unborn or unascertained beneficiaries. There was indicated in the taxing paragraph A the congressional intention to tax citizens everywhere, and non-citizens, resident in the United States, including persons, natural and corporate, on income from every source less allowed deductions. But nowhere were words used which can be stretched to include unborn beneficiaries for whom income may be accumulating. It may be that Congress had a gen
606	OCTOBER TERM, 1921.
Opinion of the Court.	257 U. S.
eral intention to tax all incomes whether for the benefit of persons living or unborn, but a general intention of this kind must be carried into language which can be reasonably construed to effect it. Otherwise the intention can not be enforced by the courts. The provisions of such acts are not to be extended by implication. Treat •v. White, 181 U. S. 264, 267; United States v. Field, 255 U. S. 257; Gould v. Gould, 245 U. S. 151, 153.
The Treasury Department did not attempt, for two years, to collect tax on income of this character. This was in accord with the ruling of Deputy Commissioner of Internal Revenue Speer, dated February 9, 1915, published by the Department (Corporation Trust Co. Income Tax Service 1915, p. 426). He held that “the income tax can be levied only on such income as is payable to some natural or artificial person subject to the provisions of the law.”
Subsequently this ruling was changed and the Commissioner of Internal Revenue held that “ when the beneficiary is not in esse and the income of the estate is retained by the fiduciary, such income will be taxable to the estate as for an individual, and the fiduciary will pay the tax both normal and additional.” Id., p. 493.
This seems to us to graft something on the statute that is not there. It is an amendment and not a construction, and such an amendment was made in subsequent income tax laws as we shall see.
Counsel for the Government cite the case of Merchants’ Loan & Trust Co. n. Smietanka, 255 U. S. 509, to support their contention. It does not do so because it deals with an amendment of the provision here under discussion. The issue there was the legality of an income tax levied against a trustee for income received by him under a testamentary trust to pay the net income to the widow for life and afterwards to the chil-
SMIETANKA v. FIRST TRUST & SAVGS. BANK. 607
602.	Opinion of the Court.
dren. It was held that the trustee was a taxable person under the Act of October 3, 1917, c. 63, 40 Stat. 331, which required trustees to render a return of the income for the person, trust, or estate for whom or which they act.
The Act of September 8, 1916, c. 463, 39 Stat. 757, specifically declared that the income accumulated in trust for the benefit of unborn or unascertained persons should be taxed and assessed to the trustee. It is obvious that, in the acts subsequent to that of 1913, Congress sought to make specific provision for the casus omissus in the earlier act.
This case is not unlike that of United States v. Field, 255 U. S. 257. The Revenue Act of 1916 imposed a tax on the estate of a decedent at the time of his death. The Government sought to tax property passing under a decedent’s testamentary execution of a general power of appointment. It was held that, while in equity property passing under such a power might be treated as assets of the donee for the use of his creditors if executed in favor of a volunteer, it was not subject to distribution as part of the estate of the donee and was not taxable. In the later act, such property was expressly included. This was thought by the court to show at least a legislative doubt whether the earlier act included such property. This court said (p. 264) that it would have been easy for Congress to express a purpose to tax such property but it had not done so. In the Act of 1913, it would have been easy to require a trustee to pay an income tax on income received by him for unborn beneficiaries or for the trust or the estate. But Congress did not do so. In the next act, it did so. We can not supply the omission in the earlier act.
The judgment of the Circuit Court of Appeals is
Affirmed.
OCTOBER TERM, 1921.	609
257 U. S.	Decisions Per Curiam, Etc.
DECISIONS PER CURIAM, FROM OCTOBER 3, 1921, TO AND INCLUDING FEBRUARY 27, 1922, NOT INCLUDING ACTION ON PETITIONS FOR WRITS OF CERTIORARI.
No. 20, Original. State of Oklahoma v. State of Texas. Order entered October 5,1921.
It is ordered that the interveners herein claiming under or through the State of Texas be permitted to appear before the commissioner now taking evidence respecting the true boundary line along the south bank of Red River and to present evidence bearing on that question and in support of their claims; and the evidence so presented shall be subject to rebuttal in the same way and at the same time as that presented by the State of Texas.
No. —, Original. Ex parte: In the Matter of Mary Ellen Bain, Petitioner. Submitted October 4, 1921. Decided October 10, 1921. Motion for leave to file petition for a writ of mandamus herein denied. Mr. Samuel Russell for petitioner. Mr. Assistant Attorney General Nebeker in opposition to the petition.
No. 54. John Armstrong Chaloner v. W. Gilmer Dunn. Error to the District Court of the United States for the Western District of Virginia. Motion for injunction, and motion to quash injunction and to dismiss writ of error submitted October 4, 1921. Decided October 10, 1921. Dismissed for the want of jurisdiction. Mr. Hollins N. Randolph and Mr. Sidney J. Dudley for plaintiff in error. Mr. W. Gwynn Gardiner for defendant in error.
No. 104. People of the State of Michigan ex rel. Alex. J. Groesbeck, Attorney General, etc. v. Detroit
610	OCTOBER TERM, 1921.
Decisions Per Curiam, Etc.	257U.S.
United Railway. Error to the Supreme Court of the State of Michigan. Motion to dismiss or affirm submitted October 4,1921. Decided October 10, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394. Mr. Merlin Wiley, Mr. Clare Raton and Mr. Sheridan F. Master for plaintiff in error. Mr. Elliott G. Stevenson and Mr. William L. Carpenter for defendant in error.
No. 158. Cornelia G. Goodrich et al. v. West Lumber Company. Error to the Supreme Court of the State of Texas. Motion to dismiss or affirm submitted October 4, 1921. Decided October 10, 1921. Per Curiam. Dismissed for want of jurisdiction upon the ground that there is no federal question presented in the record. Gasquet v. Lapeyre, 242 U. S. 367, 369-370. Mr. Hannis Taylor for plaintiffs in error. Mr. H. M. Garwood for defendant in error.
No. 301. Charles O’Connor et al. v. John Slaker, Acting Administrator, etc., et al. Error to the Supreme Court of the State of Nebraska. Motion to dismiss or affirm submitted October 4, 1921. Decided October 10, 1921. Per Curiam. Dismissed for want of jurisdiction on the ground that there is no federal question presented in the record. Gasquet v. Lapeyre, 242 U. S. 367, 369-370. Mr. James M. Johnson for plaintiffs in error. Mr. Henry H. Wilson, Mr. Elmer J. Burkett and Mr. W. T. Thompson for defendants in error.
No. 353. Louisiana Railway & Navigation Company v. R. E. Williams. Error to the Circuit Court of Appeals for the Fifth Circuit. Motion to dismiss or affirm sub-
OCTOBER TERM, 1921.	611
257 U. S.	Decisions Per Curiam, Etc.
mitted October 4, 1921. Decided October 10, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Sugarman n. United States, 249 U. S. 182,184; with imposition of five per cent, penalty under the 23rd Rule. Mr. E. H. Randolph for plaintiff in error. Mr. S. P. Jones for defendant in error.
No. 20, Original. State of Oklahoma v. State of Texas. Orders entered October 17, 1921.
Upon the motion of Francis Chanate and others claiming under Indian allotments, they are granted leave to intervene herein and to file the petition of intervention tendered with such motion.
The motion of the Melish Consolidated Placer Mining Association for a modification of the order of June 1,1921, in so far as it relates to the Burke-Senator well, is denied without prejudice to a renewal of such motion if in the further progress of this cause it becomes necessary or proper to renew the same.
The motion of the Melish Consolidated Placer Mining Association for the return of wells Nos. 152, 153, and 160, to the custody of the receiver, is denied without prejudice to a renewal of such motion if in the further progress of this cause it becomes necessary or proper to renew the same.
No. 25. Albert Rennie v. John W. Gibson. Error to the Supreme Court of the State of Oklahoma. Submitted October 6, 1921. Decided October 17, 1921. Per Curiam. Dismissed for want of jurisdiction. Section 237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726; Jett Bros Distilling Co.
6267°—22---44
612	OCTOBER TERM, 1921.
Decisions Per Curiam, Etc.	257U.S.
v. City of Carrollton, 252 U. S. 1, 5—6. Mr. John A. McClure for plaintiff in error. Mr. R. B. Brown for defendant in error.
No. 17. Edward C. Ward v. State of Washington et al. Error to the Supreme Court of the State of Washington. Argued October 6, 1921. Decided October 17,1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of Gasquet v. Lapeyre, 242 U. S. 367, 369-370. Mr. W. F. Magill, with whom Mr. H. S. Wilson, Mr. Donald MacMaster and Mr. Geo. A. Brodie were on the briefs, for plaintiff in error. Mr. L. L. Thompson, with whom Mr. Nat. U. Brown was on the brief, for defendants in error.
No. 171. R. D. Langan et al. v. City of Louisville. Error to the Court of Appeals of the State of Kentucky. Argued October 4, 1921. Decided October 17, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of Manhattan Life Insurance Co. v. Cohen, 234 U. S. 123,136; Consolidated Turnpike n. Norfolk, &c. Ry. Co., 228 U. S. 596, 600. Mr. John Bryce Baskin, with whom Mr. Alex. Pope Humphrey was on the brief, for plaintiffs in error. Mr. Harry E. Tincher, with whom Mr. Jos. S. Lawton and Mr. M. H. Thatcher were on the briefs, for defendant in error.
No. 229. Tennessee, Alabama & Georgia Railroad Company v. W. M. Drake. Error to the United States Circuit Court of Appeals for the Fifth Circuit. Motion to dismiss submitted October 10, 1921. Decided October 17, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of: (1) Delaware, Lackawanna & Western R. R. Co. v. Yurkonis, 238 U. S. 439, 444; (2) Section 3, Act of September 6, 1916, c. 448, 39 Stat. 726,
OCTOBER TERM, 1921.	613
257 U. S.	Decisions Per Curiam, Etc.
727. Mr. Samuel Bosworth Smith and Mr. George E. Maddox for plaintiff in error. Mr. George Westmoreland for defendant in error.
No. —, Original. Ex parte: In the Matter of Oregon Eilers Music House, Petitioner. Submitted October 4, 1921. Decided October 24, 1921. Motion for leave to file petition for a writ of prohibition herein denied. Mr. Will R. King, Mr. Thomas Mannix and Mr. C. A. A. McGee for petitioner. Mr. Levi Cooke and Mr. William C. Bristol for respondent.
No. 370. Lehigh Valley Railroad Company v. John Lysaght, Limited. Error to the Circuit Court of Appeals for the Second Circuit. Motion to dismiss or affirm submitted October 17, 1921. Decided October 24, 1921. Per Curiam. Dismissed for lack of jurisdiction in this court upon the authority of Southern Pacific Co. v. Stewart, 245 U. S. 359. Mr. Charles A. Boston, Mr. Edgar H. Boles, Mr. George S. Hobart and Mr. Lindley M. Garrison for plaintiff in error. Mr. W. Kintzing Post for defendant in error.
No. 43. Philadelphia & Reading Railway Company v. Amy Smith. Certiorari to the Supreme Court of the State of Pennsylvania. Submitted October 17, 1921. Decided November 7,1921. Per Curiam. Reversed with costs, upon authority of Philadelphia & Reading Ry. Co. v. Di Donato, 256 U. S. 327. Mr. George Gowen Parry for petitioner. Mr. Roscoe R. Koch for respondent.
No. 44. Abdul Samad v. Henry Behrandt, U. S. Marshal, etc., et al. Appeal from the District Court of the United States for the Eastern District of Michigan. Ar-
614	OCTOBER TERM, 1921.
Decisions Per Curiam, Etc.	257U.S.
gued October 18, 1921. Decided November 7, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of Brolan v. United States, 236 U. S. 216, 217-218; Sugarman v. United States, 249 U. S. 182, 185. Mr. Hannis Taylor for appellant. Mr. William C. Herron with whom Mr. Assistant Attorney General Stewart and Mr. H. S. Ridgely were on the brief, for appellees.
No. 111. Julia Boylan et al. v. United States. Error to the Circuit Court of Appeals for the Second Circuit. Motion to dismiss submitted October 24, 1921. Decided November 7, 1921. Per Curiam. Dismissed for want of jurisdiction, due to failure to apply for writ of error within the statutory period which began with the date of the entry of the final judgment of the Circuit Court of Appeals to which the writ of error issued, and not with date of the entry of the judgment in the District Court under the mandate of the Circuit Court of Appeals. Act of September 6, 1916, c. 448, § 6, 39 Stat. 726, 727. Mr. William F. Santry and Mr. E. Leland Hunt for plaintiffs in error. Mr. Solicitor General Beck and Mr. Assistant Attorney General Riter for the United States.
No. —, Original. Ex parte: In the Matter of Brady x W. Warner, Petitioner. Submitted November 7, 1921. Decided November 14, 1921. Motion for leave to file petition for a writ of mandamus herein denied. Mr. Frans E. Lindquist for petitioner.
No. 369. Lehigh Valley Railroad Company v. Allied Machinery Company of America. Error to the Circuit Court of Appeals for the Second Circuit. Motion to dismiss or affirm submitted November 7, 1921. Decided November 14, 1921. Per Curiam. Dismissed for
OCTOBER TERM, 1921.	615
257 U. S.	Decisions Per Curiam, Etc.
want of jurisdiction upon the authority of Shulthis v. McDougal, 225 U. S. 561; Hull v. Burr, 234 U. S. 712, 720; St. Anthony Church v. Pennsylvania R. R. Co., 237 U. S. 575, 577, 578. Mr. Edgar H. Boles, Mr. Charles A. Boston, Mr. George S. Hobart and Mr. Lindley M. Garrison for plaintiff in error. Mr. Hartwell Cabell for defendant in error.
No. —, Original. The Texas-Cherokees and Associate Bands v. State of Texas. Motion for leave to file bill of complaint submitted November 14,1921. Decided November 21, 19^1. Per Curiam. The motion for leave to file an original bill of complaint in this case is denied upon authority of Cherokee Nation v. Georgia, 5 Pet. 1. Mr. William Sulzer for complainant.
No. 616. John Hill jr., et al. v. Henry C. Wallace, Secretary of Agriculture, et al. Appeal from the District Court of the United States for the Northern District of Illinois. Motion to advance and for an order preserving status quo submitted November 15, 1921. Order entered November 21, 1921.
Order.—Motion to advance herein is granted, and the case is set for January 3, 1922, after the cases specially set for that day; and it is ordered, the appellees not objecting, that the Board of Trade of the City of Chicago and its directors, appellees, are restrained from seeking or accepting from the Secretary of Agriculture a designation of said board of trade as a “ contract market ” under the Act of Congress approved August 24, 1921, entitled “ The Future Trading Act,” or from admitting to membership in said board any representative of any cooperative association of producers as required by said act, or from modifying its rules or- by-laws, as required by said Future Trading Act, in order to entitle said board of trade to be
616	OCTOBER TERM, 1921.
Decisions Per Curiam, Etc.	257U.S.
designated as a “ contract market,” and from otherwise complying with the terms of said act prior to the final judgment of the court herein.
Also, that during the pendency of said cause in this court and for twenty (20) days after final judgment herein the appellees, Henry C. Wallace, Secretary of Agriculture of the United States; David H. Blair, Commissioner of Internal Revenue of the United States; Charles F. Clyne, United States District Attorney for the Northern District of Illinois; and John C. Cannon, Collector of Internal Revenue for the First District of Illinois, and each of their successors in office, are restrained from collecting, or attempting to collect, by suit, criminal prosecution, or otherwise, from appellants, or any other member of said board of trade, any tax or penalty which may have accrued or been incurred under said Future Trading Act, or from taking during said period any other steps against said board of trade or any of its members to enforce or compel their compliance with, or punish for noncompliance with, any of the provisions of said Trading Act.
This order is made upon condition that within ten (10) days herefrom the appellants execute unto the appellees herein and file in this cause a good and sufficient bond in the sum of twenty-five thousand dollars ($25,000), with sureties to be approved by the clerk of this court, and conditioned that the appellants will promptly pay any and all damages which may be suffered by the appellees herein, or any of them, by reason of the granting or continuance of this order, if it is ultimately adjudged that the said Future Trading Act is a valid act in whole or in part. Mr. Henry S. Robbins for appellants. Mr. Solicitor General Beck for appellees. [For order modifying the above, see ante, 310.]
No. 20, Original. State of Oklahoma v. State of Texas. November 21,. 1921. Order entered authorizing payments to counsel and to the receiver.
OCTOBER TERM, 1921.	617
257 U. S.	Decisions Per Curiam, Etc.
No. 61. City of Chicago v. Chicago Railways Company et al. Error to the Supreme Court of the State of Illinois. Argued November 8, 9, 1921. Decided November 21, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of Pawhuska V. Pawhuska Oil & Gas Co., 250 U. S. 394; Chicago v. Dempcy, 250 U. S. 651. Mr. Chester E. Cleveland, with whom Mr. Samuel A. Ettelson and Mr. George B. Gillespie were on the brief, for plaintiff in error. Mr. Harry P. Weber, with whom Mr. W. W. Gurley, Mr. James M. Sheean and Mr. George W. Miller were on the brief, for defendants in error.
No. 64. Leopold Sternberger et al. v. Continental Mines, Power & Reduction Company. Error to the Supreme Court of the State of Colorado. Submitted November 15, 1921. Decided November 21, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 582, 583; Piedmont Power & Light Co. v. Graham, 253 U. S. 193, 195. Mr. Norton Montgomery for plaintiffs in error. Mr. Morrison Shajroth for defendant in error.
No. 66. Cornelius C, Watts et al. v. State of Arizona at the Relation, etc., of Ignatius Burgoon, Treasurer, etc. Error to the Supreme Court of the State of Arizona. Argued November 16, 1921. Decided November 21, 1921. Per Curiam. Dismissed for want of jurisdiction. Section 237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. S. L. Kingan and Mr. Joseph W. Bailey, with whom Mr. Herbert Noble, Mr. Hartwell P. Heath and Mr. Conrad H. Syme were on the brief, for plaintiffs in
618	OCTOBER TERM, 1921.
Decisions Per Curiam, Etc.	257U.S.
error. Mr. Leslie C. Hardy, with whom Mr. W. J. Galbraith was on the brief, for defendant in error.
No. 72. Eastman Jones, a Minor, etc. v. H. 0. Seif-fert et al. Error to the Supreme Court of the State of Oklahoma. Submitted November 17, 1921. Decided November 21, 1921. Per Curiam. Dismissed for want of jurisdiction. Section 237 of the Judicial Code, as amend-. ed by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. W. F. Semple and Mr. W. E. Utterback for plaintiff in error. Mr. W. Y. Dilley and Mr. C. S. Arnold for defendants in error.
No. 362. Krauss Brothers Lumber Company v. Board of Assessors for the Parish of Orleans et al. Error to the Supreme Court of the State of Louisiana. Motion to dismiss or affirm submitted November 21,1921. Decided December 5, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of: (1) Equitable Life Assurance Society v. Brown, 187 U. S. 308, 314; Consolidated Turnpike Co. v. Norfolk, &c. Ry. Co., 228 U. S. 596, 600; Pennsylvania Hospital v. Philadelphia, 245 U. S. 20, 24. (2) Brown v. Houston, 114 U. S. 622; Coe v. Errol, 116 U. S. 517; American Steel & Wire Co. v. Speed, 192 U. S. 500; Bacon v. Illinois, 227 U. S. 504, 514. Mr. Burt W. Henry for plaintiff in error. Mr. Harry P. Sneed and Mr. J. D. Moore for defendants in error. [See post, 636.]
No. 560. Township of Avon et al. v. Detroit United Railway. Error to the Supreme Court of the State of Michigan. Motion to dismiss or affirm submitted December 5, 1921. Decided December 12, 1921. Per Curiam.
OCTOBER TERM, 1921.	619
257 U. S.	Decisions Per Curiam, Etc.
Dismissed for want of jurisdiction upon the authority of Pawhuska v. Pawhuska Oil & Gas Co., 250 U. S. 394, 397; Hunter v. Pittsburgh, 207 U. S. 161, 178; Kansas City n. Public Service Commission of Missouri, 250 U. S. 652; Hillsboro v. Public Service Commission of Oregon, point (3), 255 U. S. 562; Groesbeck v. Detroit United Railway, ante, 609. Mr. Glenn C. Gillespie for plaintiffs in error. Mr. Elliott G. Stevenson and Mr. William L. Carpenter for defendant in error.
No. 92. United States ex rel. Robert A. Widen-mann v. Charles E. Hughes, as Secretary of State, etc. Error to the Court of Appeals of the District of Columbia. Motion to dismiss or affirm submitted December 12, 1921. Decided December 19, 1921. Per Curiam. Affirmed upon the authority of the National Prohibition Cases, 253 U. S. 350. Mr. George W. Tucker and Mr. Everett V. Abbott for plaintiff in error. Mr. Solicitor General Beck for defendant in error.
No. 155. United States ex rel. Harry S. Mecartney v. Bainbridge Colby, Secretary of State et al. Error to the Court of Appeals of the District of Columbia. Motion to dismiss or affirm submitted December 12, 1921. Decided December 19, 1921. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O'Brien, 199 U. S. 89, 100; Toop n. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Graham, 253 U.* S. 193, 195. Mr. Harry S. Mecartney and Mr. W. C. Sullivan for plaintiff in error. Mr. Solicitor General Beck for defendants in error.
No. 592. City of Louisville v. Louisville Railway Company. On certificate from the Circuit Court of Ap-
620	OCTOBER TERM, 1921.
Decisions Per Curiam, Etc.	257 U. S.
peals for the Sixth Circuit. Argued December 16, 1921. Decided December 19, 1921. Per Curiam. Dismissed for the want of jurisdiction. Mr. J. S. Lawton, with whom Mr. William T. Baskett and Mr. M. H. Thatcher were on the briefs, for City of Louisville. Mr. Churchill Humphrey, with whom Mr. Alex. Pope Humphrey and Mr. Edward P. Humphrey were on the briefs, for Louisville Railway Company.
No. 17, Original. Commonwealth of Pennsylvania v. State of West Virginia; and
No. 18, Original. State of Ohio v. State of West Virginia. Argued December 8, 9,1921. Order entered January 9, 1922.
It is ordered that these cases be restored to the docket for reargument on February 27, with special reference to the questions: (1) Whether the suit was not prematurely brought as no action has been taken either by the State or by the state commission under the statute, and (2) Whether the bill presents a cause justiciable between the two States parties to the action.
No. 368. Thomas Snyder, on Behalf of Himself, etc. v. George G. Davidson Jr., Individually and as Collector of Customs, etc., et al. Appeal from the District Court of the United States for the Western District of New York. Argued January 3, 4, 1922. Decided January 9, 1922. Per Curiam. Dismissed for want of jurisdiction, upon the authority of St. Anthony Church v. Pennsylvania R. R. Co., 237 U. S. 575, 577-578. Mr. Basil Robillard for appellant. Mr. Assistant Attorney General Ottinger, with whom Mr. Solicitor General Beck and Mr. Harvey B. Cox were on the brief, for appellees. Mr. John W. Beaumont, by leave of court, filed a brief as amicus curiae.
OCTOBER TERM, 1921.	621
257 U. S.	Decisions Per Curiam, Etc.
No. 20, Original. State of Oklahoma v. State of Texas. January 16, 1922. Order entered making allowance to commissioner appointed to take and return testimony in this cause for his services and his expenses.
No. 144. Frank H. Schurmann v. United States. Appeal from the Circuit Court of Appeals for the Ninth Circuit. Motion to dismiss submitted January 3, 1922. Decided January 16, 1922. Per Curiam. Proof of proper notice for motion having now been produced, the motion to dismiss is granted and the appeal is dismissed upon the authority of Lau Ow Bew v. United States, 144 U. S. 47, 58; Horn v. Mitchell, 243 U. S. 247, 249. Mr. Harvey M. Friend for appellant. Mr. Solicitor General Beck for the United States.
No. 85. Kansas City Motion Picture Machine'Op-ERATORS, ETC., ET AL. V. JOHN E. HUGHES ET AL., ETC. Error to the Supreme Court of the State of Missouri. Argued January 13, 1922. Decided January 16, 1922. Per Curiam. Dismissed for the want of jurisdiction. Section 237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, §2, 39 Stat. 726; Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. William J. Hughes, Mr. Frank P. Walsh and Mr. Joseph W. Folk, for plaintiffs in error, submitted. Mr. Charles M. Miller, with whom Mr. J. W. Dana was on the brief, for defendants in error.
No. —, Original. Ex parte: In the Matter of Essex Rubber Company, Petitioner. Submitted January 16, 1922. Decided January 30, 1922. Motion for leave to file a petition for a writ of prohibition, and the petition for a writ of certiorari, herein, denied. Mr. Thomas J.
622	OCTOBER TERM, 1921.
Decisions Per Curiam, Etc.	257U.S.
Johnston and Mr. Lucius E. Varney for petitioner. Mr. Charles A. Brown for respondent.
No. 133. Luther M. Nesmith v. State of Ohio. Error to the Supreme Court of the State of Ohio. Motion to dismiss submitted January 16, 1922. Decided January 30, 1922. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop n. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Graham, 253 U. S. 193, 195. Mr. Smith W. Bennett and Mr. Benjamin F. James for plaintiff in error. Mr. John G. Price for defendant in error.
No. 344. King County v. Hewitt-Lea Lumber Company. Error to the Supreme Court of the State of Washington. Motion to dismiss and petition for a writ of certiorari submitted January 23, 1922. Decided January 30,1922. Per Curiam. Dismissed for want of jurisdiction upon the authority of Schlosser v. Hemphill, 198 U. S. 173, 175; Louisiana Navigation Co. v. Oyster Commission of Louisiana, 226 U. S. 99, 101; Coe v. Armour Fertilizer Works, 237 U. S. 413, 418, 419; Gray’s Harbor Co. v. Coats-Fordney Co., 243 U. S. 251, 255; Bruce n. Tobin, 245 U. S. 18, 19. Writ of certiorari denied upon the same ground. Mr. Howard A. Hanson and Mr. Malcolm Douglas for plaintiff in error. Mr. James B. Howe for defendant in error. 
No. 609. Continental Insurance Company et al. v. United States et al.; and
No. 610. Seward Prosser et al. v. United States et al. Appeals from the District Court of the United States for the Eastern District of Pennsylvania. Argued January 18, 19, 1922. Order entered February 27, 1922.
OCTOBER TERM, 1921.	623
257 U. S.	Decisions Per Curiam, Etc.
It is ordered that these cases be restored to the docket for reargument, as the first cases for hearing April 10 next, on the question whether the decree in the District Court, from which these are appeals, is in conformity with the opinion of this court in United States v. Reading Co., 253 U. S. 26, and that the Attorney General be advised of this order.
No. 75. Pueblo of Laguna v. Jose Candelaria et al. Appeal from the District Court of the United States for the District of New Mexico. Argued January 12, 13, 1922. Decided February 27, 1922. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O’Brien, 199 U. S. 89,100; Toop n. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power cfc Light Co. v. Graham, 253 U. S. 193, 195. Mr. Francis C. Wilson for appellant. Mr. Frank W. Clancy for appellees.
No. 112. P. H. Harris v. United States. Appeal from the Circuit Court of Appeals for the Eighth Circuit. Argued January 25, 1922. Decided February 27, 1922. Per Curiam. Dismissed for want of jurisdiction upon the authority of United States v. Krall, 174 U. S. 385, 389-391; German National Bank v. Speckert, 181 U. S. 405, 409; United States v. Beatty, 232 U. S. 463, 466. Mr. Charles B. Stuart, Mr. John F. Sharp and Mr. Marion K. Cruce, for appellant, submitted. Mr. Assistant Attorney General Riter, with whom Mr. Solicitor General Beck and Mr. H. L. Underwood were on the brief, for the United States.
No. 115. Missouri Pacific Railroad Company v. Izard County Highway Improvement District No. 1. Error to the Supreme Court of the State of Arkansas. Submitted January 26, 1922. Decided February 27, 1922. Per Curiam. Dismissed for want of jurisdiction. Section
624	OCTOBER TERM, 1921.
Decisions Granting Certiorari.	257 U. S.
237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, § 2, 39 Stat. 726; Jett Bros. Distilling* Co. v. Carrollton, 252 U. S. 1, 5-6. Mr. Edward J. White, Mr. Thomas B. Pryor and Mr. Samp Jennings for plaintiff in error. Mr. Joseph S. Utley for defendant in error.
No. 125. Gustavus French Harvey et al. v. Union Traction Company, J. D. Siggins, President. Appeal from the District Court of the United States for the District of Kansas. Submitted January 25, 1922. Decided February 27, 1922. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. v. Graham, 253 U. S. 193, 195. Mr. Gustavus French Harvey for appellants. Mr. John J. Jones for appellee.
No. 420. J. Dan Blackistone v. Leonard W. Groomes. Error to the Court of Appeals of the District of Columbia. Motion to dismiss submitted January 30, 1922. Decided February 27, 1922. Per Curiam. Dismissed for want of jurisdiction upon the authority of Farrell v. O’Brien, 199 U. S. 89, 100; Toop v. Ulysses Land Co., 237 U. S. 580, 583; Piedmont Power & Light Co. n. Graham, 253 U. S. 193, 195. Mr. Raymond M. Hudson for plaintiff in error. Mr. Joseph D. Sullivan for defendant in error.
PETITIONS FOR CERTIORARI GRANTED OR RESTORED TO DOCKET, FROM OCTOBER 3, 1921, TO AND INCLUDING FEBRUARY 27, 1922.
No. 314. Dharandas Tulsidas et al. v. Insular Collector of Customs. October 10, 1921. Petition for a writ of certiorari to the Supreme Court of the Philippine
OCTOBER TERM, 1921.	625
257 U. S.	Decisions Granting Certiorari.
Islands granted. Mr. Adams C. Carson for petitioners. Mr. Grant T. Trent and Mr. Logan N. Rock for respondent.
No. 327. James C. Davis, Director General, etc. v. J. J. Smith, Jr., Administrator, etc. Error to the Supreme Court of the State of Mississippi. October 10,1921. Petition for a writ of certiorari herein granted. Mr. H. O’B. Cooper, Mr. J. Blanc Monroe, Mr. Monte M. Lemann, Mr. A. S. Bozeman, Mr. S. R. Prince and Mr. L. E. Jeffries, for plaintiff in error, in support of the petition. No brief filed for defendant in error.
No. 348. John Ewen v. American Fidelity Company. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Henry E. Davis for petitioner. Mr. Abram I. Elkus for respondent.
No. 379. Minnesota Commercial Men’s Association v. Minnie Mae Benn, as Executrix, etc. . October 10, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota granted. Mr. David F. Simpson, Mr. A. V. Ricks and Mr. William A. Lancaster for petitioner. No appearance for respondent.
No. 382. Charles McKelvey et al. v. United States. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. Ralph W. Adair for petitioners. Mr. Assistant Attorney General Riter and Mr. H. L. Underwood for the United States.
No. 386. Regal Drug Corporation v. Justus S. Wardell, as United States Collector Of Internal Rev-
626	OCTOBER TERM, 1921.
Decisions Granting Certiorari.	257 U. S.
enue, etc. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. John W. Preston for petitioner. Mr. Solicitor General Beck for respondent.
No. 388. Colonial Beach Company, Owner, etc. v. Quemahoning Coal Company et al. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit granted. Mr. Hugh H. Obear and Mr. Paul Dulaney for petitioner. No appearance for respondents.
No. 391. New York Central & Hudson River Railroad Company v. John W. Kinney. October 10, 1921. Petition for a writ of certiorari to the Supreme Court of the State of New York granted. Mr. Maurice C. Spratt for petitioner. Mr. Hamilton Ward for respondent.
No. 405. American Mills Company v. American Surety Company of New York. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Henry Uttal for petitioner. Mr. Henry C. Willcox and Mr. William Marshall Bullitt for respondent.
No. 426. Champlain Realty Company v. Town of Brattleboro. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Vermont granted. Mr. William C. Cannon for petitioner. Mr. Ernest W. Gibson for respondent.
No. 427. Osaka Shosen Kaisha et al. v. Pacific Export Lumber Company. October 17, 1921. Petition •
OCTOBER TERM, 1921.	627
257 U. S.	Decisions Granting Certiorari.
for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit granted. Mr. William H. Hayden for petitioners. Mr. Erskine Wood for respondent.
No. 439. James C. Davis, Director General of Railroads, etc. v. Mrs. Maude E. Green, Administratrix, etc. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Mississippi granted. Mr. B. E. Eaton and Mr. T. J. Wills for petitioner. Mr. J. W. Cassedy for respondent.
No. 451. American Railway Express Company v. A. J. Lindenburg. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of Appeals of the State of West Virginia granted. Mr. D. C. T. Davis, Jr., for petitioner. No brief filed for respondent.
No. 463. Kansas City Southern Railway Company v. Elizabeth Van Zant. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Missouri granted. Mr. Cyrus Crane for petitioner. Mr. Charles H. Montgomery for respondent.
No. 526. United States Shipping Board Emergency Fleet Corporation, etc. v. Roger B. Wood, Trustee, etc. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Solicitor General Beck, Mr. Guy D. Goff and Mr. Abram F. Myers for petitioner. Mr. Godfrey Goldmark for respondent.
No. 533. Federal Trade Commission v. Fruit Growers’ Express, Inc. October 24, 1921. Petition for a writ 6267°—22------45
628	OCTOBER TERM, 1921.
Decisions Granting Certiorari.	257 U. S.
of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. Solicitor General Beck and Mr. Adrien F. Busick for petitioner. No appearance for respondent.
No. 540. Julius F. Smietanka, Collector of Internal Revenue, etc. v. First Trust & Savings Bank, Trustee, etc. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. Solicitor General Beck for petitioner. Mr. John P. Wilson for respondent. [See ante, 602.]
No. 545. Takuji Yamashita et al. v. J. Grant Hinkle, as Secretary of State of the State of Washington. October 24, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Washington granted. Mr. Corwin S. Shank for petitioners. No brief filed for respondent.
No. 550. Eibel Process Company v. Minnesota & Ontario Paper Company. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit granted. Mr. Frederick P. Fish, Mr. Guy Cunningham and Mr. Harrison F. Lyman for petitioner. Mr. Amasa C. Paul and Mr. Livingston Gifford for respondent.
No. 367. Liberty Oil Company v. Condon National Bank et al. ;
No. 377. Ole Tolo v. Steamship Hannah Neilson, Her Engines, etc. ;
No. 381. Sioux City Bridge Company v. Dakota County, Nebraska;
No. 434. Doo Fook v. United States; and
OCTOBER TERM, 1921.	629
257 U. S.	Decisions Granting Certiorari.
No. 435. Chan Wy Sheung v. United States. Order entered November 7, 1921.
These were petitions for a rehearing of the dismissal of petitions for certiorari which were not submitted to the court in accordance with the provision of Rule 37, par. 4, that “An application for a writ of certiorari will be deemed in time when the petition therefor, accompanied by the printed record and brief, is filed within the period prescribed by law, provided this is followed by submitting the petition in open court on some motion day not later than the first one which follows a period of four weeks after such filing.” It has been made to appear to the satisfaction of the court that the failure to submit these petitions at the proper time was due to a misunderstanding as to the effect of the rule and an unwarranted reliance upon the assumed practice of the clerk of his own motion to present such petitions. The authority given by the rule to the clerk to present the petitions at the request of counsel was for the purpose of relieving counsel of the necessity of coming to court, frequently from long distances, to make a formal motion. It was not, however, intended to relax the requirement adopted to facilitate dispatch of business, that the petition should be presented on the motion day fixed by the rule. By granting these motions the court does not intend to relax the requirements of the rule, and suggests that hereafter to avoid question requests made to the clerk to present such petitions should be in writing. The applications in the foregoing cases are severally granted, and the petitions will be restored to the docket for consideration on their merits and considered as submitted. [See post, 630, 651, 652, 653, 654.]
No. 481. Great Northern Railway Company v. Vivian H. Steinke et al. November 7, 1921. Petition for a writ of certiorari to the Supreme Court of the State of
630	OCTOBER TERM, 1921.
Decisions Granting Certiorari.	257 U. S.
North Dakota granted. Mr. M. L. Countryman and Mr. C. J. Murphy for petitioner. Mr. William G. Owens for respondents.
No* 510. Donald M. Hill et al. v. Charles S. Smith. November 7, 1921. Petition for a writ of certiorari to the Superior Court of the State of Massachusetts granted. Mr. Edward E. Blodgett for petitioners. No brief filed for respondent.
No. 575. A. Bourjois & Company, Inc. v. Anna Katzel. November 7, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Hans V. Briesen and Mr. William A. Redding for petitioner. Mr. Manton M. Wyvell for respondent. Mr. Lindley M. Garrison, by leave of court, filed a brief as amicus cur ice.
No. 577. United States v. A. C. Loucks et al. November 7, 1921. Petition for writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit granted. Mr. Solicitor General Beck and Mr. Assistant Attorney General Riter for the United States. No brief filed for respondents.
No. 367. Liberty Oil Company v. Condon National Bank et al. November 14, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit granted. Mr. Frederick W. Lehmann for petitioner. Mr. Jbhin J. Jones for respondents. [See post, 651; ante, 628.]
No. 381. Sioux City Bridge Company v. Dakota County, Nebraska. November 14,1921. Petition for a
OCTOBER TERM, 1921.	631
257 U. S.	Decisions Granting Certiorari.
writ of certiorari to the Supreme Court of the State of Nebraska granted. Mr. Wymer Dressier for petitioner. Mr. F. W. Sargent for respondent. [See post, 652; ante, 628.]
No. 334. McLane Tilton v. Felix M. Drennen, as Receiver, etc. December 12,1921. Petition for a rehearing of order denying certiorari under par. 4 of Rule 37 granted. Mr. Forney Johnston for appellant. Mr. H. L. Stevens for appellee. [See post, 651, 657.]
No. 598. Henry E. Stevens, jr. v. Arthur S. Arnold et al., executors, etc. December 12, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit granted. Mr. Harvey F. Carr for petitioner. No brief filed for respondents.
No. 625. State Industrial Commission of the State of New York v. Nordenholt Corporation et al. December 12, 1921. Petition for a writ of certiorari to the Supreme Court of the State of New York granted. Mr. E. Clarence Aiken for petitioner. Mr. Elmer C. Sherwood for respondents.
No. 629. United States v. Charles Walter Moreland. December 19, 1921. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia granted. Mr. Solicitor General Beck, Mr. F. H. Stephens, Mr. George P. Barse and Mr. Lewis B. Perkins for the United States. Mr. Foster Wood for respondent.
No. 630. Federal Trade Commission v. Sinclair Refining Company. January 3, 1922. Petition for a writ
632	OCTOBER TERM, 1921.
Decisions Granting Certiorari.	257 U. S.
of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Mr. Solicitor General Beck, Mr. Blackburn Esterline, Mr. W. H. Fuller, Mr. Adrien F. Busick and Mr. Eugene W. Burr for petitioner. No brief filed for respondent.
No. 652. James C. Davis, Director General of Railroads, etc. v. L. N. Dantzler Lumber Company. January 3, 1922. Petition for a writ of certiorari to the Supreme Court of the State of Mississippi granted. Mr. Carl Fox and Mr. R. C. Beckett for petitioner. No appearance for respondent.
No. 648. Wabash Railway Company v. Miles Elliott. January 16, 1922. Petition for a writ of certiorari to the Kansas City Court of Appeals of the State of . Missouri granted. Mr. Frederic D. McKenney and Mr. N. S. Brown for petitioner. Mr. William Buchholz, Mr. I. B. Kimbrell and Mr. Martin J. O’Donnell for respondent.
No. 676. Crown Die & Tool Company v. Nye Tool & Machine Works. January 16, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit granted. Florence King for petitioner. Mr. W. H. Dyrenjorth and Mr. George A. Chritton for respondent.
No. 674. Concrete Steel Company v. George E. Van-denburg. January 30, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit granted. Mr. Thomas J. Johnston and Mr. L. E. Varney for petitioner. Mr. Carlos P. Griffin, Mr. 0.
OCTOBER TERM, 1921. '	633
257 U. S.	Decisions Denying Certiorari.
Ellery Edwards and Mr. Joseph W. Cox for respondent. Mr. Solicitor General Beck, by leave of court, filed a brief as amicus curioe.
No. 690. Thomas G. Watkins, Trustee, et al. v. J. H. Sedberry et al. January 30, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit granted. Mr. C. C. Calhoun and Mr. Clarence T. Boyd for petitioners. Mr. Charles S. Lawrence for respondents.
PETITIONS FOR CERTIORARI DENIED OR DISMISSED AS TARDY OR PREMATURE, FROM OCTOBER 3, 1921, TO AND INCLUDING FEBRUARY 27, 1922.
No. 300. State of Ohio ex rel. Allen J. Seney, Prosecuting Attorney, etc. v. Swift & Company et al. Appeal from the Circuit Court of Appeals for the Sixth Circuit. October 10, 1921. Petition for a writ of certiorari herein denied. Mr. Charles S. Northup, for appellant, in support of the petition. Mr. Harold W. Fraser, for appellees, in opposition to the petition.
No. 316. P. E. Hunter v. United States. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Wade H. Ellis and Mr. Challen B. Ellis for petitioner. Mr. Assistant Attorney General Stewart and Mr. Hugh A. Fisher for the United States.
No. 331. Garfield Prioleau v. United States. October 10, 1921. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr.
634	' OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
Jacob Mooser and Mr. Joseph H. Stewart for petitioner. Mr. Solicitor General Beck and Mr. Roy C. McHenry for the United States.
No. 337. Kissel Motor Car Company v. T. L. Walker et al. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Samuel B. Dabney for petitioner. No appearance for respondents.
No. 339. Charles Vincenti et al. v. United States. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Levi H. David for petitioners. No brief filed for the United States.
No. 341. J. K. Armsby Company v. Steamship Esrom, Her Engines, etc. October 10,1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. D. Roger Englar for petitioner. Mr. Roscoe H. Hupper for respondent.
No. 342. Oliver J. Olson, Owner, et al. v. Charles F. Adams et al., Trustees, etc. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Leon T. Seawell for petitioners. Mr. Edward E. Blodgett, Mr. Floyd Hughes and Mr. Albert T. Gould for respondents.
No. 349. First National Bank of Philadelphia v. J. Walter Farrell et al., etc. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Joseph S. Clark and Mr. Owen J. Roberts for petitioner. Mr. Henry A. Rubino for respondents.
OCTOBER TERM, 1921.	635
257 U. S.	Decisions Denying Certiorari.
No. 419. J. Walter Farrell et al. v. First National Bank of Philadelphia. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Henry A. Rubino for petitioners. Mr. Joseph S. Clark and Mr. Owen J. Roberts for respondent.
No. 350. Silas Williams, Trustee, etc. v. National Discount Company. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. J. W. Thompson and Mr. Paul Campbell for petitioner. Mr. Austin V. Cannon for respondent.
No. 351. Sidney S. McConnell, as Receiver, etc. v. Walter C. Hubbard et al. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Archibald R. Watson, Mr. Luke E. Wright and Mr. Frank M. Thompson for petitioner. Mr. Edward H. Blanc and Mr. Henry Craft for respondents.
No. 354. Salvatore Lauria v. United States. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Ormond Simkins for petitioner. No brief filed for the United States.
No. 360. Panhandle Grain & Elevator Company v. Cromwell Brothers. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. W. F. Wilson for petitioner. Mr. John W. Scothorn for respondent.
No. 361. Morse Dry Dock & Repair Company v. Steamship Nord Alexis, etc., et al. October 10, 1921.
636	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Pierre M. Brown for petitioner. Mr. Chauncey I. Clark for respondents.
No. 362. Krauss Brothers Lumber Company v. Board of Assessors for the Parish of Orleans et al. Error to the Supreme Court of the State of Louisiana. October 10, 1921. Petition for a writ of certiorari herein denied. Mr. Burt W. Henry, for plaintiff in error, in support of the petition. No brief filed for defendants in error. [See ante, 618.]
No. 371. Frank H. Hereford v. Edwin A. Meserve. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Charles H. Bates and Mr. John H. Campbell for petitioner. Mr. Paul H. McPherrin for respondent.
No. 375. William J. Crittenden v. Dora Widrevitz, as Administratrix, etc. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. A. Gordon Murray for petitioner. Mr. Tobias A. Keppler for respondent.
No. 384. Erie Railroad Company v. Ida Cott, as Administratrix, etc. October 10,1921. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. John W. Ryan for petitioner. Mr. Hamilton Ward for respondent.
No. 385. Erie Railroad Company, as Lessee, etc., et al. v. Ida Cott, as Administratrix, etc. October 10,
OCTOBER TERM, 1921.	637
257 U. S.	Decisions Denying Certiorari.
1921. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. Lyman M. Bass for petitioners. Mr. Hamilton Ward for respondent.
No. 387. Fred L. Lezinsky et al. v. Mason Malt Whiskey Distilling Company, etc., et al. October 10, 1921. Petition for a writ of certiorari to the Supreme Court of the State of California denied. Mr. Percy V. Long, Mr. Theodore A. Bell and Mr. William Sea, Jr., for petitioners. Mr. George J. Hatfield for respondents.
No. 400. Ed. Slocum, as Trustee, etc. v. Anna Halliday et al. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Charles J. Pretzman for petitioner. Mr. Smith W. Bennett for respondents.
No. 404. Harry Lefkowitz et al. v. United States. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John J. Curtin, Mr. Herbert C. Smyth and Mr. Elijah N. Zoline for petitioners. Mr. Solicitor General Beck and Mr. H. S. Ridgely for the United States.
No. 406. H. L. and R. V. Grayson v. United States. October 10, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Samuel Bosworth Smith for petitioners. Mr. Solicitor General Beck for the United States.
No. 409. John H. Martens et al. v. Twin Falls-Oakley Land & Water Company. October 10, 1921.
638	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Frank K. Nebeker and Mr. W. L. Dunn for petitioners. Mr. James H. Richards and Mr. Oliver 0. Haga for respondent.
No. 320. Upjohn Company v. William S. Merrell Chemical Company. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Fred L. Chappell for petitioner. Mr. Walter F. Murray for respondent.
No. 330. Traylor Engineering & Manufacturing Company v. Ephraim Lederer, Collector, etc. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Worth E. Caylor for petitioner. Mr. Solicitor General Beck and Mr. Robert P. Reeder for respondent.
No. 414. Strick Line, Limited, as Owner, etc. v. A. Suna, Master, etc. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. William H. McGrann and Mr. John M. Woolsey for petitioner. Mr. George Forbes for respondent.
No. 415. City of Dallas et al. v. Dallas Telephone Company. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. James J. Collins for petitioners. Mr. Henry C. Coke, Mr. D. A. Frank and Mr. J. D. Frank for respondent.
No. 421. Philadelphia & Reading Railway Company v. Carl A. Berg. October 17, 1921. Petition for a
OCTOBER TERM, 1921.	639
257 U. S.	Decisions Denying Certiorari.
writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. William Clarke Mason for petitioner. Mr. Silas B. Axtell and Mr. Warren Bigelow for respondent.
No. 425. Catherine Ryan v. Aetna Life Insurance Company of Hartford, Connecticut. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Thomas J. O’Neill for petitioner. Mr. John Vernon Bouvier, Jr., for respondent.
No. 431. Frederick M. Kilmer, Trustee, etc. v. Charles H. Keith, Trustee, etc. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. Elbridge R. Anderson tor petitioner. Mr. Lee M. Friedman and Mr. Percy A. Atherton for respondent.
No. 433. Director General of Railroads v. Helen Buschalewski, as Administratrix, etc. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. Maurice C. Spratt for petitioner. Mr. Hamilton Ward for respondent.
No. 437. A. Klipstein & Company v. Garbiss Dil-sizian et al. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John J. Schwartz for petitioner. Mr. Henry J. Bigham for respondents.
No. 438. Pang Hing v. Edward White, Commissioner of Immigration, etc. October 17, 1921. Peti-
640	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
tion for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Jackson H. Ralston and Mr. George W. Hott for petitioner. Mr. Solicitor General Beck and Mr. H. S. Ridgely for respondent. ......................... ..- — ■ *
No. 440. Grinnell Overland Company v. Merchants National Bank et al. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Iowa denied. Mr. Liston McMillen for petitioner. No appearance for respondents.
No. 441. James J. O’Brien v. Walter B. Lashar et al.; AND
No. 442. James J. O’Brien v. Percy P. Anderson et al. October 17, 1921. Petitions for writs of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. James J. O’Brien pro se. Mr. Arthur M. Marsh and Mr. William H. O’Hara for respondents.
No. 444. John William Henry v. United States. October 17, 1921. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Daniel Thew Wright for petitioner. Mr. Solicitor General Beck and Mr. Roy C. McHenry for the United States.
No. 447. Gertrude E. Fonda et al. v. City of St. Albans. Error to the Supreme Court of the State of Vermont. October 17, 1921. Petition for a writ of certiorari herein denied. Mr. Marvelle C. Webber, for plaintiffs in error, in support of the petition. Mr. Charles H. Darling, for defendant in error. [See post, 666.]
OCTOBER TERM, 1921.	641
257 U. S.	Decisions Denying Certiorari.
No. 449. Peninsular Portland Cement Company v. Consolidation Coal Company. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Theodore K. Bryant for petitioner. No appearance for respondent.
No. 453. Detroit Edison Company v. Jewett Bigelow & Brooks. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. J. 0. Murfin for petitioner. Mr. Hal H. Smith for respondent.
No. 457. Edward Kelley et al. v. West Braddock Bridge Company. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Charles Koonce, Jr., for petitioners. Mr. Edwin W. Smith for respondent.
No. 458. Margaret Ford, as Administratrix, etc. v. James C. Davis, Director General of Railroads, etc. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of the State of New York denied. Mr. Thomas A. Sullivan for petitioner. Mr. Halsey Sayles for respondent.
No. 461. Wabash Railway Company v. Henry D. Stewart. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Nebraska
• denied. Mr. John Lee Webster for petitioner. No appearance for respondent.
No. 462, Hyman Katz et al. v. United States. October 17? 1921, Petition for a writ of certiorari to the
642	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
Circuit Court of Appeals for the First Circuit denied. Mr. David R. Radovsky and Mr. Asa P. French for petitioners. Mr. Solicitor General Beck and Mr. W. C. Herron for the United States.
No. 471. James C. Davis, Director General of Railroads, etc. v. State Industrial Commission et al. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Sangamon County, State of Illinois, denied. Mr. William L. Patton and Mr. Silas H. Strawn for petitioner. Mr. John F. McCarron for respondents.
No. 474. John A. Savage v. United States. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. William H. Dickson for petitioner. Mr. Solicitor General Beck and Mr. H. S. Ridgely for the United States. _
No. 430. Guayaquil & Quito Railroad Company v. New York & Cuba Mail Steamship Company. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit dismissed for failure to file the petition within the statutory time. Mr. John Thomas Smith for petitioner. Mr. Roscoe H. Hupper for respondent.
No. 454. John Barton Payne, Director General of Railroads etc. v. A. E. Stevens et al. October 17, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Mississippi dismissed for failure to file the petition within the statutory time. Mr. Gregory L. Smith for petitioner. No appearance for respondents.
OCTOBER TERM, 1921.	643
257 U. S.	Decisions Denying Certiorari.
No. 473. George Moorehead et al. v. United States. October 17, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit dismissed for failure to file the petition within the statutory time. Mr. William H. Watkins for petitioners. Mr. Assistant Attorney General Ottinger and Mr. Harvey B. Cox for the United States.
No. 412. Verde Water & Power Company v. Salt River Valley Water Users’ Association. October 24, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Arizona denied. Mr. Alexander Britton, Mr. Francis W. Clements and Mr. James P. Lavin for petitioner. Mr. J. L. B. Alexander and Mr. Geo. D. Christy for respondent.
No. 475. A. C. Townley et al. v. State of Minnesota. October 24, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota denied. Mr. George Nordlin for petitioners. Mr. Clifford L. Hilton and Mr. James E. Markham for respondent.
No. 476. George H. McFadden Bros. Agency et al. v. Standard Warehouse & Compress Company et al. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. J. Blanc Monroe, Mr. Monte M. Lemann and Mr. Walter J. Suthon, Jr., for petitioners. No appearance for respondents.
No. 477. Globe & Rutgers Fire Insurance Company v. Walker D. Hines, as Agent, etc. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Pierre M.
6267°—22---46
644	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
Brown for petitioner. Mr. Henry J. Bigham for respondent.
No. 482. Fred W. Weitzel v. United States. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. A. E. Stricklett' for petitioner. Mr. Solicitor General Beck and Mr. William C. Herron for the United States.
No. 483. Landis Tool Company et al. v. Arthur H. Ingle. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Frederic J). McKenney and Mr. E. W. Bradford for petitioners. Mr. Clyde L. Rogers for respondent.
No. 486. Moritz Loewenthal v. United States. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. John A. Cline for petitioner. Mr. Solicitor General Beck and Mr. H. S. Ridgely for the United States.
No. 489. Mexico North Western Railway Company v. F. L. Williams. October 24, 1921. Petition for a writ of certiorari-to the Supreme Court of the State of Texas denied. Mr. Alexander Britton and Mr. A. H. Culwell for petitioner. No appearance for respondent.
No. 490. Dunkley Company v. California Packing Company. October 24, 1921. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit denied. Mr. Fred L. Chappell for petitioner. Mr. E. S. Pillsbury, Mr. Alfred S. Sutro, Mr.
OCTOBER TERM, 1921.	645
257 U. S.	Decisions Denying Certiorari.
H. D. Pillsbury, Mr. Oscar Sutro and Mr. Frank D. Madison for respondent.
No. 493. Rockford Palace Furniture Company v. Robert D. Paden. October 24, 1921. Petition for a writ of certiorari to the Appellate Court, Second District, of the State of Illinois, denied. Mr. Roy F. Hall for petitioner. Mr. Harry B. North for respondent.
No. 495. Perlman Rim Corporation v. Louis deF. Munger. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Melville Church and Mr. John Thomas Smith for petitioner. Mr. William B. Greeley for respondent.
No. 497. Gould & Curry Mining Company v. W. G. Douglas. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. W. E. F. Deal for petitioner. Mr. George Springmeyer for respondent.
No. 504. Alvin M. Muck et al. v. Weyerhaeuser Timber Company. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Charles R. Pierce and Mr. John M. Sutton for petitioners. Mr. Chas. H. Carey, Mr. James B. Kerr and Mr. Charles A. Hart for respondent.
No. 507. Erath County, Texas, et al. v. Powell, Garard & Company. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. George Thompson and Mr. J.
646	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
H. Barwise, Jr., for petitioners. Mr. R. V. Davidson for respondent.
No. 551. Powell, Garard & Company v. Erath County, Texas, et al. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. R. V. Davidson for petitioner. No appearance for respondents.
Nos. 508 and 509. Oregon Eilers Music House v. H. W. Sitton, as Trustee, etc. October 24, 1921. Petitions for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Will R. King, Mr. Thomas Mannix and Mr. C. A. A. McGee for petitioner. Mr. William C. Bristol for respondent.
No. 514. Texas Ranger Producing & Refining Company v. E. T. Robinson. October 24, 1921.' Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Cecil H. Smith and Mr. H. 0. Head for petitioner. Mr. J. D. Wilkinson for respondent.
No. 515. J. Herman Dierkes v. United States. October 24,1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Frederick W. Schmitz for petitioner. Mr. Solicitor General Beck and Mr. H. S. Ridgely for the United States.
No. 516. Leopold Harris v. United States. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Roger B. Wood for petitioner. Mr. Solicitor General Beck and Mr, William C. Herron for the United States.
OCTOBER TERM, 1921.	647
257 U. S.	Decisions Denying Certiorari.
No. 517. L. W. Wineman et al., etc. v. Anderson-Tully Company et al. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Percy Bell for petitioners. Mr. Allen Hughes for respondents.
No. 519. Arminius Chemical Company v. Acme Manufacturing Company. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. C. V. Meredith for petitioner. Mr. T. D. Savage for respondent.
No. 520. Henry Conlin v. Emma Rose et al. October 24, 1921. Petition for a writ of certiorari to the District Court of Appeal, First Appellate District, of the State of California, denied. Mr. Jesse C. Adkins, Mr. Charles W. Cobb and Mr. Edgar C. Chapman for petitioner. Mr. Garret W. McEnerney for respondents.
No. 522. Hector H. Elwell v. United States. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Roy D. Keehn for petitioner. No brief filed for the United States.
No. 523. C. W. Anderson et al. v. United States. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Otto Christensen for petitioners. Mr. Solicitor General Beck and Mr. H. S. Ridgely for the United States.
No. 529. Southern Pacific Company v. Industrial Accident Commission of California et al. October 24,
♦
648	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
1921. Petition for a writ of certiorari to the Supreme Court of the State of California denied. Mr. Henley C. Booth and Mr. W. F. Herrin for petitioner. Mr. Warren H. Pillsbury for respondents.
No. 531. Henry S. DeRees v. David Costaguta et al. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Marion Erwin and Mr. Frederick M. Czaki for petitioner. Mr. Walter H. Merritt for respondents.
No. 534. City and County of San Francisco v. Postal Telegraph Cable Company. October 24, 1921. Petition for a writ of certiorari to the District Court of Appeal, First Appellate District, of the State of California, denied. Mr. George Lull, Mr. Charles S. Peery and Mr. Maurice T. Dooling, Jr., for petitioner. Mr. Delger Trowbridge and Mr. J. A. Van Arsdale for respondent.
No. 537. Dermott Land & Lumber Company v. Walter A. Zelnicker Supply Company. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Shepard Barclay for petitioner. No appearance for respondent.
No. 549. Lorraine de la Montanya Crittenden et al. v. Narcissus Augustus Dorn et al. October 24, 1921. Petition for a writ of certiorari to the Circuit Court, of Appeals for the Ninth Circuit denied. Mr. Frank R. Wehe for petitioners. Mr. A. E. Cooley for respondents.
No. 558. J. N. Pharr & Sons, Limited v. C. D. Kenny Company. October 24, 1921. Petition for a writ of cer-
OCTOBER TERM, 1921.	649
257 U. S.	Decisions Denying Certiorari.
tiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. R. E. Milling for petitioner. Mr. W. J. Waguespack for respondent. Mr. F. T. Saussy and Mr. Edgar Watkins, by leave of court, filed a brief as amid curiae.
No. 559. Walker D. Hines, Director General of Railroads, Agent v. Anthony Kowalski. October 24, 1921. Petition for a writ of certiorari to the Supreme Court of the State of New Jersey denied. Mr. Albert C. Wall, Mr. John A. Hartpence and Mr. Frederic D. McKenney for petitioner. Mr. Marshall Van Winkle for respondent.
No. 576. Nichols Field Wilson et al. v. United States. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John M. Coleman, Mr. Stanley C. Fowler and Mr. Grant Hoerner for petitioners. No brief filed for the United States. Mr. William R. Willcox, by leave of court, filed a brief as amicus curiae.
No. 365. Virginia Railway & Power Company et al. v. Bankers TruSt Company, Executor, etc.; and
No. 366. Virginia Railway & Power Company et al. v. Thomas O’Connor et al. October 24, 1921. Petitions for writs of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Henry W. Anderson and Mr. Thomas B. Gay for petitioners. Mr. James Mann for respondents.
No. 532. Seth Gettys et al. v. Silvan Newburger et al. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit
650	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
denied. Mr. W. A. Ledbetter, Mr. H. L. Stuart and Mr. R. R. Bell for petitioners. Mr. Bernard Titche, Mr. Henry E. Asp and Mr. Henry G. Snyder for respondents.
No. 557. Metallic Rubber Tire Company v. Hartford Rubber Works Company. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Henry F. Parmelee and Mr. George D. Watrous for petitioner. Mr. Livingston Gifford and Mr. Charles S. Jones for respondent.
No. 539. E. Luther Melin v. Northland Pine Company et al. October 24, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Minnesota dismissed for failure to file the petition within the statutory time. Mr. E. Luther Melin pro se. No appearance for respondents.
No. 547. Joe Dubman v. United States. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit dismissed for failure to file the petition within the statutory time. Mr. P. H. Cullen for petitioner. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. W. C. Herron for the United States.
No. 319. Rosalyn Zucht, etc. v. W. A. King et al. October 24, 1921. Petition for a writ of certiorari to the Court of Civil Appeals for the Fourth Supreme Judicial District of the State of Texas dismissed for failure to submit petition in open court on the motion day as required by Rule 37. Mr. Don A. Bliss for petitioner. No appearance for respondents.
OCTOBER TERM, 1921.	651
257 U. S.	Decisions Denying Certiorari.
No. 332. Charles E. Schaff, Receiver, etc. v. Maurice Miller. October 24, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Missouri dismissed for failure to submit petition in open court on the motion day as required by Rule 37. Mr. Alexander Britton and Mr. Joseph M. Bryson for petitioner. No appearance for respondent.
No. 334. McLane Tilton v. Felix M. Drennen, as Receiver, etc. Appeal from the Circuit Court of Appeals for the Fifth Circuit. October 24, 1921. Petition for a writ of certiorari herein dismissed for failure to submit petition in open court on the motion day as required by Rule 37. Mr. Forney Johnston for appellant. Mr. H. L. Stevens for appellee. [See ante, 631; post, 657.]
No. 367. Liberty Oil Company v. Condon National Bank et al. October 24, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit dismissed for failure to submit petition in open court on the motion day as required by Rule 37. Mr. Frederick W. Lehmann for petitioner. Mr. John J. Jones for respondents. [See ante, 628, 630.]
No. 377. Ole Tolo v. Steamship Hannah Neilson, her engines, etc. October 24,1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit dismissed for failure to submit petition in open court on the motion day as required by Rule 37. Mr. Frederick R. Graves for petitioner. Mr. Warner C. Pyne, Mr. O. D. Duncan and Mr. Russell T. Mount, for respondent. [See ante, 628; post, 653.]
652	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
No. 381. Sioux City Bridge Company v. Dakota County, Nebraska. October 24, 1921. Petition for a writ of certiorari to the Supreme Court of the State of Nebraska dismissed for failure to submit petition in open court on the motion day as required by Rule 37. Mr. Wymer Dressier for petitioner. Mr. F. W. Sargent for respondent. [See ante, 628, 630.]
No. 434. Doo Took v. United States; and
No. 435. Chan Wy Sheung v. United States. October 24, 1921. Petitions for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit dismissed for failure to submit petitions in open court on the motion day as required by Rule 37. Mr. M. Walton Hendry for petitioners. Mr. Solicitor General Beck and Mr. H. S. Ridgely for the United States. [See ante, 628; post, 654.]
No. 538. James Cox Davis, Director General of Railroads, etc. v. Edward 0. Colvin. November 7, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. P. H. Van Alstine and Mr. H. J. Killilea for petitioner. No appearance for respondent.
No. 588 and 589. John Barton Payne, Director General of Railroads, etc. v. Catherine Lind, Administratrix, etc. November 7, 1921. Petitions for writs of certiorari to the Court of Appeals of Hamilton County, State of Ohio, denied, because prematurely filed. Mr. George Hoadly, Mr. Edward Colston and Mr. Judson Harmon for petitioner. Mr. Edward M. Ballard for respondent.
OCTOBER TERM, 1921.	653
257 U. S.	Decisions Denying Certiorari.
No. 358. Studebaker Corporation v. Gear Grinding Machine Company. November 14, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Frederick P. Fish and Mr. Edward Rector for petitioner. Mr. D. Anthony Usina and Mr. Melville Church for respondent.
No. 511. John Barton Payne, Director General of Railroads, etc. v. Leila Shotwell, as Administratrix, etc. November 14, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Frederic B. Scott for petitioner. No appearance for respondent.
No. 377. Ole Tolo v. Steamship Hannah Neilson, her Engines, etc. November 14, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Frederick R. Graves for petitioner. Mr. Warner C. Pyne, Mr. 0. D. Duncan and Mr. Russell T. Mount for respondent. [See ante, 628, 651.]
No. 565. Carlos L. Byron et al. v. United States. November 14, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. William Robert Andrews, Mr. S. H. Piles and Mr. C. A. Keigwin for petitioners. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. W. C. Herron for the United States.
No. 567. Robert H. Davis v. American Engineering Company et al., etc. November 14, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the
654	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. 8.
Second Circuit denied. Mr. Robert H. McCarter for petitioner. Mr. Alfred T. Davison and Mr. Oscar A. Lewis for respondents.
No. 568. City of New York v. Title Guarantee & Trust Company, Trustee, etc., et al. November 14, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John F. O’Brien for petitioner. Mr. Alfred T. Davison and Mr. Oscar A. Lewis for respondents.
No. 580. Farmers Life Insurance Company v. Foster Building & Realty Company et al.; and
No. 581. Farmers Life Insurance Company v. Foster Building & Realty Company. November 14, 1921. Petition for writs of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. Lewis R. Bryan, Mr. Henry A. Hicks and Mr. B. D. Tarlson for petitioners. Mr. C. M. McWilliams for respondents.
No. 584. Star Company v. Wheeler Syndicate, Inc.; and
No. 585. Star Company v. Harry C. Fisher. November 14, 1921. Petitions for writs of certiorari to the Supreme Court of the State of New York denied. Mr. William A. DeFord and Mr. Nathan Burkan for petitioner. Mr. Charles E. Kelley for respondents.
No. 434. Doo Fook v. United States; and
No. 435. Chan Wy Sheung v. United States. November 21, 1921. Petitions for writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied.
OCTOBER TERM, 1921.	655
257 U. S.	Decisions Denying Certiorari.
Mr. M. Walton Hendry for petitioners. Mr. Solicitor General Beck and Mr. H. S. Ridgely for the United States. [See ante, 628, 652.]
No. 593. Ashton F. Embry et al. v. United States. December 5, 1921. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied. Mr. Charles A. Douglas, Mr. Arthur Peter, Mr. Frank J. Hogan and Mr. Hugh H. Obear for petitioners. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. F. G. Wixson for the United States.
No. 603. P. B. Cross v. Ramdullah. December 5, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. John S. Partridge for petitioner. Mr. John W. Preston for respondent.
No. 606. Barber & Company, Inc. v. Wilhelm Wil-helmsen et al. December 5, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. D. Roger Englar and Mr. Dix W. Noel for petitioner. Mr. Charles S. Haight and Mr. John W. Griffin for Gans Steamship Line. Mr. Charles C. Burlingham and Mr. Roscoe H. Hupper for Wilhelmsen et al.
No. 612. Joseph B. Rose v. United States. December 5, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. F. B. Kavanaugh and Mr. Frank B. Gentsch for petitioner. Mr. Solicitor General Beck and Mrs. Mabel Walker Willebrandt, Assistant Attorney General, for the United States.
656	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
No. 597. Louisa Pickens et al. v. J. H. Merriam et al. December 12, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Louisa Pickens and Johanna Schutt pro se. Mr. William J. Hunsaker, Mr. E. W. Britt, Mr. T. B. Cosgrove and Mr. Robert B. Murphy for respondents.
No. 611. Theodore Bowen v. Seth Hickey. December 12, 1921. Petition for a writ of certiorari to the District Court of Appeal, Second Appellate District, of the State of California, denied. Mr. C. C. Calhoun for petitioner. Mr. Ira M. Flocker for respondent.
No. 613. Sherman Billingsley v. United States; and
No. 614. Orrie Billingsley v. United States. December 12, 1921. Petitions for writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. William F. Connolly for petitioners. Mr. Solicitor General Beck and Mrs. Mabel Walker Willebrandt, Assistant Attorney General, for the United States.
No. 622. Lawrence F. Connolly, administrator, etc. et al. v. Celia Diamond et al. December 12, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Charles W. Beale for petitioners. No appearance for respondents.
No. 627. Robert Grogan v. United States. December 12, 1921. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. William J. Fallon for petitioner. No brief filed for the United States.
OCTOBER TERM, 1921.	657
257 U. S. * Decisions Denying Certiorari.
No. 334. McLane Tilton v. Felix M. Drennen, as Receiver, etc. Appeal from the Circuit Court of Appeals for the Fifth Circuit. December 19, 1921. Petition for a writ of certiorari herein denied. Mr. Forney Johnston for appellant, in support of the petition. Mr. H. L. Stevens, for appellee, in opposition to the petition. [See ante, 631, 651.]
No. 632. Henry F. Maresca et al. v. United States. January 3, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. John W. Davis for petitioners. Mr. Solicitor General Beck and Mrs. Mabel Walker Willebrandt, Assistant Attorney General, for the United States.
No. 650. Sam Cohen v. United States. January 3, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Chester H. Krum for petitioner. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States.
No. 669. Toledo Scale Company v. Computing Scale Company. January 9, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Frederick P. Fish, Mr. Edward Rector and Mr. Robert H. Parkinson for petitioner. Mr. John M. Zane and Mr. Charles F. Morse for respondent.
No. 670. Bulk Oil Transports v. T. Langland Thompson. January 9, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. William J. Hughes, Mr. Saul S.
658	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
Myers and Mr. Charles H. Tuttle for petitioner. Mr. Roscoe H. Hupper for respondent.
No. 628. H. S. Herrick v. A. Basletta. January 16, 1922. Petition for a writ of certiorari to the District Court of Appeal, First Appellate District, of the State of California, denied. Mr. H. S. Herrick pro se. No appearance for respondent/
No. 643. K. W. Ignition Company v. Ford Motor Company. January 16, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Emory R. Buckner for petitioner. Mr. Otto F. Barthel, Mr. Edward Rector and Mr. W. Clyde Jones for respondent.
No. 654. Jacques Rousso v. Reuben E. Barber et al. January 16, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Joshua R. H. Potts for petitioner. No brief filed for respondent.
No. 656. Walter Matthey v. United States. January 16, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. A. G. Bush for petitioner. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States.
No. 661. James C. Davis, Director General of Railroads, etc. v. E. C. Akins. January 16, 1922. Petition for a writ of certiorari to the Supreme Court of the State
OCTOBER TERM, 1921.	659
257 U. S.	Decisions Denying Certiorari.
of Kansas denied. Mr. Joseph M. Bryson for petitioner. Mr. Charles Stephens for respondent.
No. 662. Walker D. Hines, Director General of Railroads, et al. v. John H. Butler et al. January 16, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. George Weems Williams for petitioners. Mr. John H. Skeen, Mr. George Forbes and Mr. J. Purdon Wright for respondents.
No. 680. William J. Jackson, Receiver, etc. v. Perry D. White. January 16,1922. Petition for a writ of certiorari to the Appellate Court, First District, of the State of Illinois, denied. Mr. Edward W. Rawlins and Mr. H. T. Dick for petitioner. No appearance for respondent.
No. 647. Anaheim Sugar Company v. T. W. Jenkins & Company. January 30, 1922. Petition for a*writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit denied. Mr. Donald Barker for petitioner. No appearance for respondent.
No.‘ 658. Walter S. Greevy v. Commonwealth of Pennsylvania. January 30, 1922. Petition for a writ of certiorari to the Supreme Court of the State of Pennsylvania denied. Mr. Robert A. Henderson for petitioner. No appearance for respondent.
No. 685. Leigh Ellis & Company v. James C. Davis, as Agent, etc. Error to the Circuit Court of Appeals for the Fifth Circuit. January 30, 1922. Petition for a writ 6267°—22-------47
660	OCTOBER TERM, 1921.
Decisions Denying Certiorari.	257 U. S.
of certiorari herein denied. Mr. Edgar Watkins, for plaintiff in error, in support of the petition. Mr. Walter T. Colquitt and Mr. A. A. McLaughlin, for defendant in error, in opposition to the petition.
No. 677. Wabash Railway Company v. W. Koenig et al., etc. January 30, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Frederic D. McKenney and Mr. Nat. S. Brown for petitioner. Mr. Clifford B. Allen for respondents.
No. 682. Charles H. Rowan v. United States. January 30, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit denied. Mr. Charles H. Rowan pro se. Mr. Solicitor General Beck, Mr. Assistant Attorney General Crim and Mr. H. S. Ridgely for the United States.
>
No. 694. Electro Bleaching Gas Company v. William G. Miller et al. January 30, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. Drury W. Cooper and Mr. E. Henry Lacombe for petitioner. Mr. Arthur C. Brown for respondents.
No. 707. U. S. Rubber Reclaiming Works et al. v. Philadelphia Rubber Works Company. January 30, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Second Circuit denied. Mr. Simon Fleischmann, Mr. Hans V. Briesen and Mr. J. Edgar Bull for petitioners. Mr. Charles Neave and Mr. William G. McKnight for respondent.
OCTOBER TERM, 1921.	661
257 U. S.	Decisions Denying Certiorari.
No. 344. King County v. Hewitt-Lea Lumber Company. Error to the Supreme Court of the State of Washington. [See ante, 622.]
No. 666. Woodrow-Parker Company et al. v. Amos S. Herschberger, by his next Friends, etc. February 27, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit denied. Mr. Thomas H. Tracy, Mr. E. J. Marshall and Mr. Harold W. Fraser for petitioners. Mr. Charles A. Seiders for respondent.
No. 688. Rhode Island Hospital Trust Company, administrator, etc., et al. v. Kate Atwood et al. February 27, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the First Circuit denied. Mr. William R. Tillinghast, Mr. Herbert Barry, Mr. Walter F. Angell and Mr. Eugene A. Kingman for petitioners. Mr. Lyman K. Clark and Mr. Herbert Parsons for respondents.
No. 692. Sarah Schauffele, as administratrix, etc. v. John Barton Payne, Director General of Railroads, etc. February 27, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Third Circuit denied. Mr. Thomas J. O’Neill for petitioner. Mr. Charles E. Miller for respondent.
No. 693. Union Pacific Railroad Company v. Elizabeth Mabel Perrin, administratrix, etc. February 27, 1922. Petition for a writ of certiorari to the Supreme Court of the State of Utah denied. Mr. Henry W. Clark, Mr. N. H. Loomis and Mr. George H. Smith for petitioner. No appearance for respondent.
662	OCTOBER TERM, 1921.
Cases Disposed of Without Consideration by the Court. 257 U. S.
No. 695. Local Union No. 2 of the International Brotherhood of Electrical Workers et al. v. Kinloch Telephone Company et al. February 27, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Eighth Circuit denied. Mr. John P. Leahy for petitioners. Mr. Bruce A. Campbell and Mr. Edward C. Kramer for respondents.
No. 701. Gans Steamship Line v. Isles Steamshipping Company, Ltd. February 27, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. John W. Griffin for petitioner. Mr. John M. Woolsey for respondent.
No. 702. Gans Steamship Line v. George H. Arnot, Master, etc., et al. February 27, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fourth Circuit denied. Mr. Clarence Bishop Smith for petitioner. Mr. John M. Woolsey for respondents.
No. 719. Central of Georgia Railway Company v. M. J. Newberry. February 27, 1922. Petition for a writ of certiorari to the Circuit Court of Appeals for the Fifth Circuit denied. Mr. William M. Williams for petitioner. No appearance for respondent.
CASES DISPOSED OF WITHOUT CONSIDERATION BY THE COURT, FROM OCTOBER 3, 1921, TO AND INCLUDING FEBRUARY 27, 1922.
No. 22. Iowa Gas & Electric Company v. City of Mt. Pleasant, Iowa, et al. Appeal from the District Court of the United States for the Southern District of
OCTOBER TERM, 1921.	663
257 U. S. Cases Disposed of Without Consideration by the Court.
Iowa. October 4, 1921. Dismissed with costs, on motion of counsel for appellant. Mr. William Chamberlain for appellant. Mr. J. C. McCoid and Mr. Paul B. Galer for appellees.
No. 129. Copper Queen Consolidated Mining Company v. Joseph C. Mayne. Error to the District Court of the United States for the District of Arizona. October 4, 1921. Dismissed with costs, per stipulation of counsel. Mr. Everett E. Ellinwood and Mr. John Mason Ross for plaintiff in error. Mr. Walter Bennett for defendant in error.
No. 181. Carlos Carmelo Garcia v. James B. Holohan, U. S. Marshal etc., et al. Appeal from the District Court of the United States for the Northern District of California. October 4, 1921. Dismissed with costs, on motion of counsel for appellant. Mr. John W. Preston for appellant. The Attorney General for appellees.
No. 197. J. D. Cole et al. v. James W. Sullinger, U. S. Attorney, etc. Appeal from the District Court of the United States for the Western District of Missouri. October 4, 1921. Dismissed with costs, on motion of counsel for appellants. Mr. I. N. Watson, Mr. John H. Lucas and Mr. Henry N. Ess for appellants. The Attorney General for appellee.
No. 227. Pullman Company v. State of Minnesota. Error to the Supreme Court of the State of Minnesota. October 4, 1921. Dismissed with costs, per stipulation of counsel. Mr. Cordenio A. Severance for plaintiff in error. Mr. Clifford L. Hilton and Mr. Egbert S. Oakley for defendant in error.
664	OCTOBER TERM, 1921.
Cases Disposed of Without Consideration by the Court. 257 U. S.
No. 243. Julius N. Heldman v. Central Trust Company of Illinois, Trustee. On petition for a writ of certiorari to the Circuit Court of Appeals for the Seventh Circuit. October 4, 1921. Petition for writ of certiorari dismissed, upon authority of petitioner. Mr. James W. Beach for petitioner. No appearance for respondent.
No. 356. I. T. S. Rubber Company v. Essex Rubber Company. Appeal from the District Court of the United States for the District of Massachusetts. October 4, 1921. Dismissed with costs, on motion of counsel for appellant. Mr. Charles A. Brown for appellant. No appearance for appellee.
No. 389. S. C. Crookshank v. Charles H. Stone, Chief of Police, etc. Appeal from the District Court of the United States for the Southern District of California. October 4, 1921. Dismissed with costs, on motion of counsel for appellant. Mr. George E. Whitaker for appellant. No appearance for appellee.
No. 7. United States v. Keystone Watch Case Company; and
No. 8. Keystone Watch Case Company v. United States. Appeals from the District Court of the United States for the Eastern District of Pennsylvania. October 4, 1921. Dismissed, on motion of Mr. Solicitor General Beck for the United States. Mr. George Carlton Comstock and Mr. Wm. W. Bride for Keystone Watch Case Company.
No. 9. John C. Robinson et al. v. United States ex rel. Brown-Ketcham Iron Works et al. Error to the Circuit Court of Appeals for the Second Circuit. October
OCTOBER TERM, 1921.	665
257 U. S. Cases Disposed of Without Consideration by the Court.
4, 1921. Dismissed, per stipulation of counsel. Mr. Fletcher Dobyns, Mr. Louis B. Eppstein and Mr. Charles Y. Freeman for plaintiffs in error. Mr. Robert Thorne, Mr. Frederick Hulse, Mr. E. Crosby Kindleberger, Mr. D. Cady Herrick and Mr. Henry C. Willcox for defendants in error.
No. 34. Hannah T. Willson v. Curtis C. McDonnell. Error to the Court of Appeals of the District of Columbia. October 7, 1921. Dismissed with costs, on motion of Mr. Henry E. Davis for plaintiff in error. Mr. Leon Tobriner and Mr. Levi H. David for defendant in error.
No. 286. People of the State of New York ex rel. Brixton Operating Corporation v. Edward B. La Fetra, a Justice, etc. Error to the Supreme Court of the State of New York. October 10, 1921. Dismissed with costs, on motion of counsel for plaintiff in error. Mr. Louis Marshall for plaintiff in error. Mr. William D. Guthrie and Mr. Julius Henry Cohen for defendant in error.
No. 525. J. E. Martineau, Chancellor, et al. v. State of Arkansas ex rel. Attorney General et al. On petition for a writ of certiorari to the Supreme Court of the State of Arkansas. October 17, 1921. Dismissed with costs, on motion of counsel for petitioners. Mr. Scipio A. Jones for petitioners. No appearance for respondents.
No. 506. Charles S. Davis v. Rena Cooksey et al. Error to the Court of Appeals of the District of Columbia. October 24, 1921. Reversed with costs, on confession of error, on motion of Mr. J. S. G. Gallagher for defendants in error. Mr. Raymond M. Hudson for plaintiff in error.
666	OCTOBER TERM, 1921.
Cases Disposed of Without Consideration by the Court. 257 U. S.
No. 447. Gertrude E. Fonda et al. v. City of St. Albans. Error to the Supreme Court of the State of Vermont. October 24, 1921. Dismissed with costs, on motion of counsel for plaintiffs in error. Mr. Marvelle C. Webber for plaintiffs in error. Mr. Charles H. Darling for defendant in error. [See ante, 640.]
No. 608. United States v. G. M. Caster et al. Appeal from the Circuit Court of Appeals for the Eighth Circuit. November 7, 1921. Dismissed on motion of Mr. Solicitor General Beck for the United States. No appearance for appellees.
No. 36. Daniel Boyle et al. v. A. M. Holter Hardware Company et al. Appeal from the District Court of the United States for the District of Montana. November 7, 1921. Dismissed with costs, per stipulation. Mr. Burton K. Wheeler for appellants. Mr. M. S. Gunn for appellees.
No. 546. Oklahoma Gas & Electric Company v. Corporation Commission of the State of Oklahoma et al. Appeal from the District Court of the United States for the Western District of Oklahoma. December 5, 1921. Dismissed with costs, on motion of counsel for appellant. Mr. Benjamin S. Minor and Mr. Dennis T. Flynn for appellant. No appearance for appellees.
No. 18. James R. Ward v. People of the State of Illinois ex rel. Chicago Bar Association. Error to the Supreme Court of the State of Illinois. December 12, 1921. Dismissed with costs, on motion of counsel for plaintiff in error. Mr. James R. Ward and Mr. James W. Breen for plaintiff in error. No appearance for defendant in error.
OCTOBER TERM, 1921.	667
257 U. S. Cases Disposed of Without Consideration by the Court.
No. 67. United States v. Henry W. Volk, as Trustee, etc.; AND
No. 68. United States v. Emil Schoyen, as Administrator, etc., et al. Appeals from the Court of Claims. December 19, 1921. Dismissed and remanded, on motion of Mr. Solicitor General Beck for the United States. Mr. Harrison L. Schmitt and Mr. John W. Schmitt for appellees.
Nos. 247 and 294. Everglades Sugar & Land Company et al. v. Frank A. Bryan, Clerk, etc., et al. Error to the Supreme Court of the State of Florida. January 3, 1922. Dismissed with costs, on motion of counsel for plaintiffs in error. Mr. Frederick M. Hudson and Mr. J. Emmet Wolfe for plaintiffs in error. No appearance for defendants in error.
No. 86. Alfred F. Smith et al. v. United States; and No. 87. Joseph R. Bowles et al. v. United States. Error to the District Court of the United States for the District of Oregon. January 11, 1922. Dismissed with costs, per stipulation, and causes remanded for further proceedings, on motion of Mr. Solicitor General Beck in that behalf. Mr. Dan J. Malarkey, Mr. W. Lair Thompson and Mr. Wallace McCamant for plaintiffs in error.
No. 79. John W. Davidge v. Leo Simmons; and
No. 58. John W. Davidge, v. Leo Simmons. Error and petition for writ of certiorari to the Court of Appeals of the District of Columbia. January 12, 1922. Dismissed with costs, on motion of Mr. Chapin Brown for plaintiff in error and petitioner. Mr. Leo Simmons pro se.
No. 279. Lee Roy E. Keeley v. Walter H. Evans, as District Attorney, etc., et al. Appeal from the Dis-
668	OCTOBER TERM, 1921.
Cases Disposed of Without Consideration by the Court. 257 U. S. trict Court of the United States for the District of Oregon. January 13, 1922. Dismissed with costs, on motion of counsel for appellant. Mr. Lee Roy E. Keeley pro se. The Attorney General for appellees.
No. 88. Edward Johnson v. State of South Carolina. Error to the Supreme Court of the State of South Carolina. January 13, 1922. Dismissed with costs, on motion of counsel for plaintiff in error. Mr. Edwin C. Brandenburg for plaintiff in error. Mr. S. M. Wolfe for defendant in error.
No. 478. City of Dallas et al. v. Dallas Telephone Company. Appeal from the Circuit Court of Appeals for the Fifth Circuit. January 24, 1922. Dismissed with costs, per stipulation of parties for withdrawal of motion of appellee to dismiss and to dismiss appeal. Mr. James J. Collins for appellants. Mr. D. A. Frank, Mr. J. D. Frank, Mr. Henry C. Coke and Mr. William H. Duls for appellee.
No. 117. Leon Israel et al., etc. v. Moore & McCormack, Inc. Appeal from the District Court of the United States for the Southern District of New York. January 25, 1922. Dismissed per stipulation of counsel. Mr. Ray Rood Allen for appellants. Mr. Foye M. Murphy for appellee.
No. 180. Robert H. Strahan v. Howard G. Hanvey et al. Appeal from the District Court of the United States for the Northern District of California. January 26, 1922. Dismissed with costs, on motion of counsel for appellant. Mr. Charles P. Howland for appellant. No appearance for appellees.
OCTOBER TERM, 1921.	669
257 U. S. Cases Disposed of Without Consideration by the Court.
No. 128. Southern Express Company v. P. B. Spigener, as Treasurer of Richland County. Error to the Supreme Court of the State of South Carolina. January 26, 1922. Dismissed with costs, per stipulation. Mr. Douglas McKay and Mr. Robert C. Alston for plaintiff in error. Mr. Samuel M. Wolfe for defendant in error.
No. 94. Public Service Electric Company et al. v. Town of Westfield. Appeal from the District Court of the United States for the District of New Jersey. January 30,1922. Dismissed, with costs to be paid by the appellee, per stipulation, on motion of counsel for appellants. Mr. Frank Bergen for appellants. Mr. Paul E. Oliver for appellees.
No. 240.« Walker D. Hines, Director General of Railroads, et al. v. Fred Mauldin. Error to the Supreme Court of the State of Arkansas. January 30, 1922. Judgment reversed, per stipulation, and cause remanded for further proceedings. Mr. Edgar B. Kinsworthy and Mr. Robert E. Wiley for plaintiffs in error. Mr. W. F. Denman for defendant in error.
No. 424. George Washington Pace v. Fred G. Zerbst, Warden, etc. Appeal from the District Court of the United States for the Northern District of Georgia. February 27, 1922. Dismissed with costs, on motion of appellant. Mr. George Washington Pace pro se. The Attorney General for appellee.
INDEX.
ABATEMENT. See Parties, 1, 2.
ADMINISTRATION:
Of estates. See Bonds, 2, 3; Taxation, II, 5-7.
ADMINISTRATIVE DECISIONS. See Anti-Trust Acts, 4, 5; Army, 1; Customs Law, 1,4-6; Interstate Commerce Acts; Jurisdiction, I; IV, 12; Public Lands, I.
ADMIRALTY:	Page.
1.	Jurisdiction. Prohibition, lies to restrain District Court
from exceeding jurisdiction in admiralty. The Western Maid..............................................  419
2.	Id. Personal Injury. Action for damages for death due
to negligence not maintainable under general maritime law. Western Fuel Co. v. Garcia..........................233
3.	Id. State Remedies. Admiralty courts will entertain libel in personam under state law for death resulting from maritime tort committed on navigable waters within a State. Id.
4.	Id. Limitations. When state statute applies. Id.
5.	Id. ’ Contract and Tort. In contract matters jurisdiction depends upon nature of transaction; in tort, upon locality.
It extends to action for tort committed on vessel in process of construction when lying on navigable waters within a State. Grant Smith-Porter Co. v. Rohde.....................469
6.	Id. State Law; Non-maritime Contract; Personal Injury. Oregon Workmen’s Compensation Law, accepted by employer and employee, held applicable where contract for construction was non-maritime and employment had no direct relation to commerce or navigation. Id.
1.	Id. Remedy in Admiralty Superseded. In view of its exclusive features, Oregon Act abrogated right of employee to recover damages in admiralty, which otherwise would exist.
Id.
671
672	INDEX.
ADMIRALTY—Continued.	page.
8.	Public Vessels; Collision. Neither on general principle,
nor under Shipping Act or Suits in Admiralty Act, is United States liable for collision by vessel owned by it absolutely or pro hac vice and employed in public purpose. The Western Maid ................................................. 419
9.	Id. Merchant Vessels Distinguished. Vessels (a) owned by United States and assigned to War Department for transporting foodstuffs to Europe for civilian relief, and (b) chartered to United States on a bare-boat basis and devoted to military uses, held of public status. Id.
10.	Id. Immunity from Maritime Tort. United States is bound by maritime law only in so far as it has consented; it has not consented to be sued for torts, and this immunity extends to its public vessels, while employed in government operations. Id.
11.	Id. Ship’s Personality. Liability for tort cannot be fastened upon public vessels by fiction of ship’s personality, to lie dormant while they remain with Government and become enforceable when they pass into other hands. Id.
ADMISSION. See Jurisdiction, III, 19; IV, 8.
ADVERSE POSSESSION. See Boundaries, 10.
AGENTS. See Constitutional Law, VIII, 7; Corporations;
Jurisdiction, II; Mails, 2.
ANTI-TRUST ACTS:
1.	Trade Association. Association of lumber manufactur-
ers, for purpose of interchange through central office of trade information, found from evidence to have been actuated by purpose and to have had effect of restricting competition, by curtailing production and increasing prices, and held unlawful. American Column & Lumber Co. v. United States ............................................... 377
2.	Re-sale Prices. Trader may refuse to sell to those who
do not observe re-sale prices; he may not, by contracts, express or implied, obstruct natural flow of interstate commerce. Federal Trade Comm. v. Beech-Nut Co............ 441
3.	Id. Unfair Competition ; Federal Trade Commission Act. Public policy of Sherman Act considered in determining “ unfair methods of competition ” within Federal Trade Commission Act. Id,
INDEX.	673
ANTI-TRUST ACTS—Continued.	Page.
4.	Id. Authority of Commission, to suppress plan of merchandising which tends to hinder competition or to create monopoly. Id.
5.	Id. Injunction. Practice designed to maintain re-sale prices and withhold products from those who do not conform, although there was no contract for fixing or maintaining re-sale prices, enjoined, upon order of Commission, as unfair. Id.
6.	Clayton Act; Labor Disputes; Injunction. Conclusion
that Arizona law regulating injunctions in labor controversies’ is in part unconstitutional, does not mean that § 20, Clayton Act, similarly worded but differently construed, is also invalid. Truax v. Corrigan_______________________312
7.	Id. Retroactive Law. No vested right in injunction
granted in labor controversy where case pending in Court of Appeals when Clayton Act was passed. American Foundries v. Tri-City Council......................... 184
8.	Id. Irreparable Injury. Business of employer protected by § 20. Id.
9.	Id. Strangers, who are neither ex-employees nor seeking employment, cannot invoke § 20. Id.
10.	Id. Peaceful Persuasion. Section 20, forbidding injunctions against peaceful persuasion, merely declares what was always best equity practice. Id.
11.	Id. Intimidation. Freedom of workmen from intimidation and right of employer to free access by them to place of employment. Id.
12.	Id. Picketing of employer’s plant by groups, resulting in violence, held unlawful and to be enjoined eo nomine, without adding the words “ in a threatening and intimidating manner.” Id.
13.	Id. Injunction broadly forbidding ex-employees from persuading employees and would-be employees to leave employment, conflicts with Clayton Act. Id.
APPEAL AND ERROR. See Jurisdiction; Procedure.
APPOINTMENT. See Army; Officers and Employees, 3-8.
674	INDEX.
ARMY:	Paga
1.	Officers; Removal; Nominations. Limitations on Presi-
dent’s power of removal (118th Art. of War) inapplicable when removal effected, with consent of Senate, through appointment of successors. Wallace v. United States... 541
2.	Id. Judicial Notice. Of the fact that nominations are referred to Senate committee for investigation and report, and of duty of committee to inquire into existence of vacancies. Id.
3.	Id. Presumption. That Senate knew confirmation would fill legal complement of officers and joined in removal. Id.
4.	Id. Pay. Special legislative authority necessary to allow pay for officer whose place has been filled by nomination and confirmation. Id.
5.	Id. Right to Court-Martial; Laches. Quaere: Whether right under Rev. Stats., § 1230, lost by waiting 5 months after removal by President? Id.
ARTICLES OF WAR. See Army, 1.
ASSIGNMENT OF ERRORS. See Procedure, V, 1.
ATTORNEY GENERAL. See Parties, 3.
BANKS AND BANKING. See National Banks.
BONDS:
Appeal. See Procedure, III.
Injunction. See Jurisdiction, IV, 16.
1.	Public Contracts; Claims of Materialmen; Trial. Action
upon bond to satisfy private claims permitted by Act 1894, is a single action at law; several claimants not entitled to separate trials. Miller v. American Bonding Co........ 304
2.	Consul-General; Estates of Decedents; Actions. Suit
upon official bond (Rev. Stats., § 1697) for damage to personal property of decedent, not maintainable by one not a personal representative but merely a possible distributee. Cunningham v. Rodgers.............................. 466
3.	Id. Real Estate. Declaration alleging consent by consul to conveyance of real estate of citizen dying in China, resulting in dissipation of part of estate to consequent loss of decedent’s brother, held not to state cause of action on bond. Id.
INDEX.	675
BOUNDARIES. See Jurisdiction, III, 12, 13.	Page.
1.	Georgia-South Carolina; Savannah River; Islands; Beaufort Convention. Where there are no islands in boundary rivers, boundary line is midway between main banks; where there are islands, it is midway between island bank and South Carolina shore, with water at ordinary stage. Georgia
v. South Carolina...................................... 516
2.	Id. Chattooga River. Islands in, held reserved to Georgia. Id.
3.	Id. General Rule. Where river, navigable or nonnavi-gable, is boundary between two States, and navigable channel is not involved, in absence of convention, each takes to middle of stream. Id.
4.	Id. Thalweg Rule. Location of boundary under Beaufort Convention, held unaffected by main navigable channel doctrine, in view of provision that each State shall have equal rights of navigation. Id.
5.	Maryland—Virginia—District of Columbia. Title of Maryland to which United States succeeded extended to low water on Virginia side of Potomac. Marine Ry. Co. v. United States, 47
6.	Id. Colonial Grants, held not to affect Maryland title. Id.
7.	Id. Cession to United States, and regrant to Virginia, did not enlarge Virginia’s original rights. Id.
8.	Id. Maryland-Virginia Compact, dealing only with commerce and riparian rights, did not settle boundary between States. Id.
9.	Id. Arbitration and Award of 1878, fixing fine at low water in Virginia, drawn from headland to headland, assented to by United States, did not affect boundary as between Virginia and District. Id.
10.	Id. Prescription; Virginia Statutes. Adverse occupation of land originally below low water in Virginia under erroneous claim that Virginia included cove in which land was situated, gave no prescriptive right, as against Maryland or United States, though claim supported by Virginia statutes. Id.
11.	Id. Legislative Description, of District, in Rev. Stats., 1874, imports assertion that title of United States embraces whole river. Id.
6267°—22---48
676	INDEX.
BOUNDARIES—Continued.	page.
12.	Id. Reclaimed Lands. Right of United States to lands in District, reclaimed by filling below low water on Virginia side. Id.
BOYCOTT. See Employer and Employee, 3.
BRIDGES. See Customs Law, 2-6.
BROKERS. See Taxation, IV, 5-10.
BURDEN OF PROOF. See Evidence, 2.
CARRIERS. See Interstate Commerce; Interstate Commerce Acts; Jurisdiction, III, 2; IV, 4-6; Taxation, IV, 11.
Charter fare contracts. See Constitutional Law, III, 2; IV.
Vessels; charters. See Admiralty, 8, 9.
Federal Control; Actions; Venue. Order of Director General prescribing venue, held within power conferred on President by Federal Control Act. Alabama & Vicksburg Ry. v. Journey................................r...... Ill
CERTIFICATE. See Jurisdiction, III, 14.
CERTIORARI. See Jurisdiction, III, 15, 18, 20-23.
CHARTERS:
Vessels. See Admiralty, 8, 9.
Railroad fare contracts. See Constitutional Law, III, 2;
IV.
CHINA:
Consul-general. See Bonds, 2, 3.
CITIZENSHIP. See Jurisdiction, IV, 9.
Privileges and immunities. See Constitutional Law, II.
CIVIL SERVICE. See Officers and Employees, 3-8.
CLAIMS. See Bonds, 1; Contracts; Mails.
Funds held by receiver; original suits. See Procedure, I, 2.
1.	Private Property; Flooding. In suit for damages from unforeseen flooding of soda lakes through construction of irrigation project, allegations of percolation due to improper construction and natural conditions, held not intended to set up negligence, but to show causal connection between
INDEX.	677
CLAIMS—Continued.	< page.
project and flooding; action not ex delicto. Horstmann Co.
v. United States..................................... 138
2.	Id. Implied Contract. Where no intentional taking can be implied, Government not liable ex contractu. Id.
CLAYTON ACT. See Anti-Trust Acts, 6-13.
COLONIAL GRANTS. See Boundaries, 6.
COMMERCE. See Anti-Tnist Acts; Carriers; Constitutional Law, III, V; Interstate Commerce;.Interstate Commerce Acts; Jurisdiction, III, 21, 23.
COMMON LAW. See Execution Sale, 1, 3; National Banks, 2.
CONFORMITY ACT. See Execution Sale; Procedure, V, 1.
CONGRESS:
Powers. See Constitutional Law.
Statutes cited. See Table at front of volume.
Appropriations. See Contracts.
Committee reports; debates. See Statutes, 6. Nomination and confirmation of officers. See Army.
CONSPIRACY. See Anti-Trust Acts, 1; Criminal Law, 3.
CONSTITUTIONAL LAW:
I.	General, p. 678.
II. Judiciary, p. 678.
III.	Commerce Clause, p. 678.
IV.	Contract Clause, p. 679.
V.	Indians, p. 679.
VI.	Insular Possessions, p. 679.
VII.	Fifth Amendment, p. 679.
VIII.	Fourteenth Amendment:
(1)	Notice and Hearing, p. 680.
(2)	Liberty and Property; Police Power; Taxation, p.
680.
(3)	Equal Protection of the Laws, p. 681.
IX.	Sixteenth Amendment, p. 682.
See Jurisdiction.
Privileges and immunities; right to resort to federal court.
See II, infra.
Eighteenth Amendment. See VII, 1, infra.
State tax on federal instrumentality. See V, infra.
678	INDEX.
CONSTITUTIONAL LAW—Continued.
I.	General.
Page.
1.	Separable Statute. Unconstitutionality of exception, does* not enlarge scope of other provisions. Davis v. Wallace.... 478
2.	Id. Unconstitutionally of Arizona law regulating in-
junctions in labor controversies, does not affect general statutory provisions for issuance of injunctions. Truax v. Corrigan...................................................312
3.	Id. Statute may be invalid as applied to one state of facts and valid as applied to another. Dahnke-Walker Co.
v. Bondurant........■:................................. 282
4.	Id. Who May Object. Litigant may question statute’s validity only when and in so far as it is applied to his disadvantage. Id.
II.	Judiciary.
Foreign Corporations; Resort to Federal Court. Invalidity of state law revoking license to do business within State for resorting to federal court. Terral v. Burke Construction Co..................................................... 529
III.	Commerce Clause. See V, infra, and Interstate Commerce.
1.	Regulation of Intrastate Rates. Transportation Act, in authorizing raising of intrastate rates by Interstate Commerce Commission, to prevent discrimination against interstate commerce, held within power of Congress. Wisconsin
R. R. Comm. v. Chicago, B. & Q. R. R..................  563
2.	Id. Charter Contract. Interference with charter farelimiting contract between railroad and a State, is not a taking of property of the State or its people, when done under commerce power of Congress. New York v. United States.. 591
3.	Id. Removal of Discrimination. Power of Interstate Commerce Commission, under Transportation Act, to increase intrastate rates, to conform with like rates in interstate commerce fixed under act. Id.
4.	Foreign Corporations; Local Business. Right to go into
State, without obtaining license, for interstate commerce. Dahnke-Walker Co. v. Bondurant......................... 282
5.	Cotton Gins; Corporations. State law prohibiting ownership and operation by corporations when interested in manufacture of cotton seed oil, ^sustained. Crescent OU Co. v.
Mississippi...........................................  129
INDEX.	679
CONSTITUTIONAL LAW—Continued.	Page.
6.	State Tax; Pipe Lines. Tax on transportation of oil and gas produced and gathered in State and transported in continuous stream destined beyond State, held void.
United Fuel Gas Co. v. Hallanan...................... 277
Eureka Pipe Line Co. v. Hallanan....................... 265
7.	Id. Diversion for Local Use. Interstate character not affected by right of local diversion or commingling of small z quantities for local use. Id.
8.	Id. New York Stock Exchange Membership. Validity of tax on membership employed by Ohio broker in executing orders for Ohio clients through Exchange in New York.
Citizens Natl. Bank v. Durr........................... 99
IV.	Contract Clause.
Railroad Charter; Rights of States. Contract clause does not forbid interference with charter fare-limiting contract between railroad and a State, when done under commerce power of Congress. New York v. United States......... 591
V.	Indians.
State Taxation. Net income of lessee from sale of oil and gas under leases of restricted lands which constitute him an instrumentality of United States in fulfilling duties to Indians, not taxable by State; distinction between this case and taxing net income from interstate commerce. Gillespie v.
Oklahoma............................................. 501
VI.	Insular Possessions.
Philippine Islands; Export Tax; Congressional Ratification. Tax on exports, collected while such duties forbidden by act of Congress, held legalized by congressional Act of 1920. This was within power of Congress, where judgments for restitution were obtained in Supreme Court of Philippines before ratifying statute but were still reviewable in this court.
Rafferty v. Smith, Bell & Co......................... 226
VII.	Fifth Amendment.
1.	Due Process; Taking; Intoxicating Liquors. National Prohibition Act, in forbidding owner of whisky stored in bond to secure release upon payment of tax, for transportation to dwelling for personal use, does not deprive of prop- t erty without due process, or take it for public purposes without compensation. Corneli v. Moore................ 491
680	INDEX.
CONSTITUTIONAL LAW—Continued.	Page.
2.	Id. State Railroad Charter; Interstate Commerce. Interference with charter fare-limiting contract, between railroad and a State, is not a taking of property of the State or its people, when done under commerce power of Congress. New York v. United States....................... 591
3.	Retroactive Law; Right to Injunction. Injunction does
not give vested right while appealable and is subject to statutes affecting jurisdiction of federal courts passed pending appeal. American Foundries v. Tri-City Council...... 184
4.	Id. Judgment for Restitution of Illegal Tax. Effect of
subsequent legalization by act of Congress, where case still reviewable in this court. Rafferty v. Smith, Bell & Co.. 226
VIII.	Fourteenth Amendment.
(1)	Notice and Hearing.
1.	Drainage Districts; Repairs. Power of supervising board, after construction of ditches and assessment of costs upon hearing, to determine, without further notice, necessity and extent of repairs, and to assess costs in proportion to original assessments. Breiholz v. Board of Supervisors............ 118
2.	Id. Landowners not denied due process, where state law permits board, for purpose of repair, to enlarge and improve ditches, but where work done was within scope of a cleaning, alteration and repair and no new taking of property involved. Id.
3.	Oyster Beds; Private Property; Injunction. Right of
State to remove stakes and open private oyster grounds to public use. Hurley v. Commission of Fisheries.......... 223
(2)	Liberty and Property; Police Power; Taxation. See 1-3, supra; 8-11, infra.
4.	Double Tax. Identical property interests are taxable by
two States. Citizens Natl. Bank v. Durr................. 99
5.	Injunction; Labor Disputes. State law regulating injunctions in labor controversies, in granting employees immunity from civil or criminal action for acts resulting in injury to employer’s business, violates due process. Truax
v. Corrigan............................................ 312
%
6.	Foreign Corporations; Railroads; Excise Tax. Under North Dakota Law, track mileage basis prescribed for inter-
INDEX.	681
CONSTITUTIONAL LAW—Continued.	Page.
state railroads, held invalid in 253 U. S. 66, can not be substituted by ratio of value of railroad within State to that of entire railroad. Davis v. Wallace....................... 478
7.	Id. Right to Sue in State Court. Law providing for
service on foreign corporations through process agents, does not violate due process by not applying to transitory actions arising outside the State. Missouri Pacific R. R. v. Clarendon Co............................................   533
(3)	Equal Protection of the Laws. See 5, supra.
8.	Class Legislation. Clause protects against individual or
class privilege, and against hostile discrimination or oppression of inequality. Truax v. Corrigan..............  312
9.	Id. Equitable Remedies. Right of State to vary or abolish; may not be denied to one class while granted to another. Id.
10.	Id. Labor Disputes; Injunction; Arizona Statute. Special exemption of ex-employees, when committing irreparable injury to business of employer, from restraint by injunction, is unreasonable. Id.
11.	Clause Inapplicable to Act of Congress. In view of state construction, and because equal protection clause applies only to state action, conclusion that Arizona statute is in part unconstitutional does not mean that § 20, Clayton Act, similarly worded but differently construed, is also invalid. Id.
12.	Classification; Corporations and Individuals. Prohibition of ownership and operation of cotton gins by corporations when interested in manufacture of cotton seed oil, sustained. Crescent Oil Co. v. Mississippi...:. 129
13.	Id. Municipal and Private Corporations; Rates. Ex-
emption of municipally owned electric plant from regulation by state commission, upheld. Springfield Gas Co. v. Springfield ............................................... 66
14.	Id. Stock Exchange Memberships. Tax on membership of Ohio resident in New York Exchange^ while exempting memberships in local exchange, sustained. Citizens Natl.
Bank v. Durr ......................................... 99
682	INDEX.
CONSTITUTIONAL LAW—Continued.
IX.	Sixteenth Amendment. See Taxation, II, 4-6.
7	Page. x
1.	Construction. Substance and not form control in application of amendment and income tax laws. United States v.
Phellis................................................ 156
2.	Income, when term includes distribution of corporate shares to shareholders. Id.
See also Rockefeller v. United States................. 176
CONSTRUCTION. See Contracts; Statutes.
CONSUL-GENERAL. See Bonds, 2, 3.
CONTRACTS. See Interstate Commerce, 2, 3; Jurisdiction,
III,	21; Mails.
Impairment of. See Constitutional Law, III, 2; IV.
Restraint of trade. See Anti-Trust Acts, 2-5.
Non-maritime. See Admiralty, 6.
Taking of private property; when contract to pay not implied. See Claims.
Public contractors; action on bond for labor and material.
See Bonds, 1.
Malicious enticement of laborers. See Employer and Employee, 5.
1.	Government Buildings; Architects’ Fees. Equitable right of architects, contracting on percentage basis, to fees based on additional appropriation made by Congress to recoup actual losses sustained by contractor through earthquake and fire. United States v. Cook. j.............. 523
2.	Id. Moral Consideration. Allowance to building contractor held not a gratuity but an alteration of his contract based on a moral consideration. Id.
CORPORATIONS. See National Banks.
Classification. See Constitutional Law, VIII, 12, 13.
Stock. See Execution Sale, 4.
Id. Reorganization; stock dividend. See Taxation, II, 3,4. Railroads; suits under Federal Control Act. See Carriers.
Foreign; right to resort to federal court. See Constitutional Law, II.
Id. To sue in state court. See id., VIII, 7; Jurisdiction,
II, 3.
Id. Railroads; excise tax; mileage basis. See Taxation,
IV,	11.
INDEX.	683
CORPORATIONS—Continued.	Page.
Id. Rights respecting interstate business. See Constitutional Law, III, 4; Jurisdiction, III, 21.
1.	Foreign Corporations; Service of Process; Agents. Purpose of state law requiring local agents is to secure jurisdiction in respect of business transacted within State; scope of agency not extended by implication. Mitchell Furn. Co. v.
Selden Breck Co..................................... 213
2.	Id. Withdrawal from State. In action on contract, service held void where defendant appointed local agent and did business in State when contract was made but, before suit, ceased operations and withdrew property from State. Id.
COSTS. See Procedure, V, 6.
COUNTERFEITING. See Criminal Law.
COURT OF CLAIMS. See Claims; Contracts; Mails.
COURT-MARTIAL. See Army, 5.
COURTS. See Equity; Evidence; Execution Sale; Judgments; Judicial Notice; Jurisdiction; Limitations; Procedure; Statutes; Trial.
Effect of administrative decisions. See Anti-Trust Acts, 4, 5; Army, 1; Customs Law, 1, 4-6; Interstate Commerce Acts; Jurisdiction, I; IV, 12; Public Lands, I.
Foreign corporations; right to resort to federal court. See Constitutional Law, II.
Id. To sue in state court. See id., VIII, 7; Jurisdiction, II, 3.
CREDITORS. See Bonds, 1; Execution Sale.
CRIMINAL LAW:
1.	War Savings Certificates and Stamps, issued under Act of
1917, 1918, and executive regulations, held obligations of United States, within §§ 148, 151, Crim. Code. United States v. Sacks..................................... 37
2.	Id. Alteration and Possession, with intent to defraud United States, within §§ 148, 151, Crim. Code. Id.
3.	Id. Conspiracy, to defraud United States, and to commit offense of altering, with intent to defraud, obligations of United States. Crim. Code, §§ 37, 148. United States v.
Janowitz ........................................... 42
684	INDEX.
CUSTOMS LAW:	Page.
Employees; appointment and removal. See Officers and Employees, 3-8.
1.	Tariff Act, 1913; Protest; Sufficiency. Protest, under par. N, against collector’s classification, need not set up similitude clause (par. 386), which merely prescribes rule of construction applicable to every paragraph of tariff imposing duty on specifically described articles. United States v.
Rice & Co...........................................  536
2.	Unloading; Permits; Inspection Service; Overtime. Act of 1913, authorizing permits for immediate unloading, and empowering Secretary of Treasury to fix extra compensation of inspectors at expense of licensee for Sunday and holiday service, inapplicable to international toll bridge and passenger trolley cars operated thereon. International Ry. v.
Davidson ............................................. 506
3.	Id. Passengers’ Baggage. Act was not made applicable by amendment of 1920, extending extra compensation to cover overtime in connection with passengers’ baggage on vessels. Id.
4.	Id. Administrative Regulations. Withdrawal of Sunday and holiday inspection service, unless operating company procured special license, which would necessitate payment by it of extra compensation, held not sustainable as discretionary determination by Secretary that movement of merchandise did not justify customs service on days in question. Id.
5.	Id. Rev. Stats., § 161. Such regulation held unreasonable and inconsistent with law, virtually laying a tax and providing for extra compensation of officials from a private source. Id.
6.	Id. Questioning Validity. Bridge owner, as well as passengers and vehicle owners, may question regulation. Id.
DAMAGES. See Interstate Commerce Acts, 1, 2.
DECREES. See Execution Sale; Judgments; Procedure, V.
DESCENT AND DISTRIBUTION. See Bonds, 2, 3; Taxation, II, 5-7.
DIRECTOR GENERAL OF RAILROADS. See Carriers.
DISTRICT OF COLUMBIA. See Boundaries, 5-12; Jurisdiction, III (3).
INDEX.	685
Page.
DISTRICT COURT. See Execution Sale, 1; Jurisdiction, II;
III,	1-11, 13; IV.
DIVERSE CITIZENSHIP. See Jurisdiction, IV, 9.
DIVIDENDS. See Taxation, II, 2rA.
DRAINAGE. See Taxation, IV, 12, 13.
DUE PROCESS. See Constitutional Law.
DUTIES. See Customs Law.
EIGHTEENTH AMENDMENT. See Constitutional Law,
VII, 1.
ELECTRIC COMPANIES:
Rates. See Constitutional Law, VIII, 13.
Rights of way. See Public Lands, II.
EMPLOYER AND EMPLOYEE. See Officers and Employees.
Personal injury; non-maritime employment; Oregon Workmen’s Compensation Law. See Admiralty, 5-7.
Compensation award, measure of amount of, when attacked in federal court. See Jurisdiction, IV, 2, 3.
Joint tort liability; fraudulent joinder to prevent removal.
See id., IV, 9.
1.	Strikes and Picketing. Rights of employer, employees, strikers and labor union.
American Foundries v. Tri-City Council.................. 184 Truax v. Corrigan ..................................... 312
2.	Id. Injunction, scope of. Id.
3.	Id. Boycott. Definition and distinctions. Truax v.
Cprrigan	..................312
4.	Id. Class Legislation. Arizona law, specially exempting striking employees from injunction when committing irreparable, tortious injury, unconstitutional. Id.
See also Anti-Trust Acts, fi-13.
5.	Malicious Enticement. Where members of local union,
not ex-employees, have reason to expect reemployment at plant where wages have been reduced, peaceable persuasion by them to induce strike against lowered wages is not malicious or without lawful excuse. American Foundries v. Tri-City Council........................................... 184
686	INDEX.
Page.
EQUAL PROTECTION OF THE LAWS. See Constitutional Law, VIII (3).
EQUITY. See Contracts; Injunction.
Equitable rights and remedies in labor controversies. See Anti-Trust Acts, 6-13; Constitutional Law, I, 2; VIII, 5, 8-11; Employer and Employee.
Unfair competition. See Anti-Trust Acts, 2-5.
1.	Injunction; Intrastate Rates; Interstate Commerce Commission. Suit by State against railroads to prevent their applying order increasing intrastate rates, dismissed for want of equity, and plaintiff remitted to remedy in District Court.
North Dakota v. Chicago & N. W. Ry....................... 485
2.	Id. Illegal Tax. Equity will enjoin collection of illegal tax in absence of adequate legal remedy. Davis v. Wallace.. 478
3.	Forfeiture; Canal Right of Way; Nonuser. Right of
United States to equitable relief where right to forfeiture is clear. Kern River Co. v. United States................... 147
ERROR AND APPEAL. See Jurisdiction; Procedure.
ESTATES OF DECEDENTS. See Bonds, 2, 3; Taxation, II, 5-7.
EVIDENCE. See Judicial Notice."
Presumption. See Army, 3; Officers and Employees, 7;
Patents for Inventions, 1.
Restraint of trade. See Anti-Trust Acts, 1.
Sufficiency, to sustain rate orders. See Interstate Commerce Acts, 9, 11.
Review, on appeal from state court. See Procedure, V, 4.
Id. Amount in controversy. See Jurisdiction, III, 4. Withdrawal of case from jury; findings by District Court. See id., Ill, 10.
1.	Findings of Interstate Commerce Commission, as prima
facie evidence. Pennsylvania R. R. v. Weber............... 85
2.	Burden of Proof, to sustain allegation of fraudulent joinder in removal proceedings. Wilson v. Republic Iron Co... 92
EXCEPTIONS. See Jurisdiction, III, 10.
EXECUTION SALE. See Jurisdiction, III, 18; Procedure,
V,	1.
1.	Conformity Act. Applicability of state law to marshal’s sale under common-law execution issued from federal court.
INDEX.	687
EXECUTION SALE—Continued.	Page.
Rev. Stats., §§ 914, 916. Yazoo & Miss. Valley R. R. v. Clarksdale............................................ 10
2.	Id. Place of Sale; Federal Court. Act of 1893 applies only to judicial sales under order of court, requiring confirmation. Id.
3.	Id. Common-Law Execution; Personalty. Where state law designates county court house sale may be at federal court house where judgment entered'and execution issued. Id.
4.	Corporate Shares. Under Miss. Code 1871, § 849, certificate of shares, subject to levy and sale. Id.
5.	Venditioni Exponas. When not necessary to sale of property taken under fieri facias. Id.
6.	Id. Surplusage in return. Id.
EXECUTIVE OFFICERS. See Army; Bonds, 2, 3; Carriers; Customs Law, 2-6; Execution Sale; Mails; Officers and Employees; Public Lands, II, 1, 5; War Savings Certificates.
Administrative decisions. See Anti-Trust Acts, 4,5; Army, 1; Customs Law, 1; Interstate Commerce Acts; Jurisdiction, I; IV, 12; Public Lands, I.
EXECUTORS AND ADMINISTRATORS. See Bonds, 2, 3; Taxation, II, 7.
EXPORTS. See Taxation, III.
FACTS. See Evidence; Judicial Notice.
Administrative decisions. See Anti-Trust Acts, 4, 5;
Army, 1; Customs Law, 1, 4-6; Interstate Commerce Acts;
Jurisdiction, I; IV, 12; Public Lands, I.
Review on appeal, from state court. See Procedure, V, 4.
Id. Amount in controversy. See Jurisdiction, III, 4. Withdrawal of case from jury; findings by District Court. See id., Ill, 10.
FEDERAL CONTROL. See Carriers.
FEDERAL QUESTION. See Jurisdiction, III, (4); IV, 1.
FEDERAL TRADE COMMISSION. See Anti-Trust Acts, 3-5.
FIFTH AMENDMENT. See Constitutional Law, VII.
688	INDEX.
FINAL JUDGMENT. See Jurisdiction, III, 6, 7.	Page.
FISHERIES:
See Hurley n. Commission of Fisheries................. 223
FORFEITURE. See Public Lands, II, 4-7.
FOURTEENTH AMENDMENT. See Constitutional Law, VIII.
FRAUD. See Criminal Law; National Banks.
Joinder, to prevent removal. See Jurisdiction, IV, 7-9.
GAS AND GAS COMPANIES:
Pipe lines. See Taxation, IV, 1, 2.
Indian leases. See id, 3, 4.
Rates; effect of decision affirming without prejudice decree upholding rate ordinance; jurisdiction of District Court to award restitution for charges collected under injunction.
See Procedure, V, 7-10.
GEORGIA. See Boundaries, 1-4.
HEARING. See Constitutional Law, VIII (1); Officers and Employees, 3-8.
IMPORTS. See Customs Law.
INCOME TAX. See Constitutional Law, IX; Taxation, II, 1-6; IV, 3, 4.
INDIANS:
State Taxation; Federal Instrumentalities. Net income of lessee from sale of oil and gas under leases of restricted Creek and Osage lands, which constitute him an instrumentality of United States in fulfilling duties to Indians, not taxable by State. Gillespie v. Oklahoma............... 501
INFRINGEMENT. See Patents for Inventions, 3.
INJUNCTION. See Equity.
In labor controversies. See Anti-Trust Acts, 6-13; Constitutional Law, I, 2; VIII, 5, 8-11; Employer and Employee.
Vested right to. See Constitutional Law, VII, 3.
Bond. See Jurisdiction, IV, 16.
Unfair competition. See Anti-Trust Acts, 5.
1.	Vacating Stay; Bond on Appeal. Order vacating stay, granting injunction pending appeal, and requiring bond.
Hill v. Wallace......................................... 310
INDEX.	689
INJUNCTION—Continued.	„	Page.
2.	Preliminary Injunction. Affirmance on appeal. Hurley
v. Commission of Fisheries. . C... 223
INSULAR POSSESSIONS. See Constitutional Law, VI; Taxation, III.
INTERIOR, SECRETARY OP. See Public Lands, I; II, 1.
INTERNAL REVENUE. See Parties, 1; Taxation, II.
INTERNATIONAL LAW. See Boundaries.
Bridges. See Customs Law, 2-6.
Consular bonds. See Bonds, 2, 3.
INTERSTATE COMMERCE. See Anti-Trust Acts; Constitutional Law, III, V; Interstate Commerce Acts; Jurisdiction, III, 21, 23.
1.	Definition. Term not confined to interstate transportation; comprehends all commercial intercourse between States and all component parts of that intercourse. Dahnke-Walker Co. v. Bondurant............................... 282
2.	Purchase for Transportation. Where goods purchased in one State for transportation to another, the interstate commerce includes purchase as well as transportation. Id.
3.	Id. Contract for purchase of grain for delivery to carrier and forwarding to purchaser’s mill in another State, held interstate; character of transaction not affected by possibility of purchaser’s selling in State of purchase. Id.
4.	Cotton Gins not rendered instrumentalities of interstate commerce by fact that owner ships out of State, for its use in another State, cotton seed purchased in connection with ginning operations. Crescent Oil Co. v. Mississippi.... 129
5.	Id. Ginning is merely manufacture; seeds not in interstate commerce until committed to carrier for interstate transport. Id.
6.	Oil and Gas, produced and gathered in State and transported in continuous stream destined beyond State, are subjects of interstate commerce; interstate character is not affected by right of local diversion or commingling of small quantities for local use.
United Fuel Gas Co. v. Hallanart................... 277
Eureka Pipe Line Co. v. Hallanan................... 265
690	INDEX.
Page.
INTERSTATE COMMERCE ACTS. See Anti-Trust Acts;
Carriers; Jurisdiction, III, 2; IV, 4-6.
1.	Reparation; Car Distribution; Findings. In action to enforce award, findings and order of Commission are prima fade evidence of facts therein stated. Pennsylvania R. R.
v. Weber ............................................. 85
2.	Id. Award on Erroneous Basis, may be sustained by evidence before Commission, supplemented at trial, that damages equal to award resulted from unfair practices. Id.
3.	Mistake of Law. Ground for setting aside orders. Central R. R. v. United States............................ 247
4.	Discrimination, § 3; Creosoting-in-Transit. Power of Commission to determine reasonableness of-privilege and to require allowance or withdrawal. Id.
5.	Id. Remedy, where denial of privilege was not in itself unreasonable, but plant suffered from maintenance of joint rates with other carriers who allowed privilege to plants on their own lines, without concurrence of, or participation in revenue by, carriers before the Commission. Id.
6.	Id. Not differences of transportation rates and facilities, but unjust discrimination by same carried, is prevented by § 3. Id.
7.	Id. Joint Rates. Participation in joint rates does not make connecting carriers partners; they are jointly and severally responsible only if each has participated in that which causes discrimination. Id.
8.	Id. Transportation Act. Scope of § 3, in this respect, not changed by Act of 1920 or earlier amendatory legislation. Id.
9.	Suit to Vacate Order; Evidence. Claim that order was unsupported by evidence not considered if only part of evidence before Commission is introduced in suit. Louisiana
& P. B. Ry. v. United States............................ 114
10.	Discrimination; Lumber Tap Lines; Rates. Order refusing increase over allowance for tap line haul, claimed on account of preliminary out-of-line haul for weighing shipments, sustained. Id.
11.	Rate Order; Attacking for Lack of Evidence. Absence of substantial evidence to sustain finding material to order, may be relied on in suit directly attacking order, to which
INDEX.	691
INTERSTATE COMMERCE ACTS—Continued.	Page.
United States and Commission are parties. New York v.
United States ......................................... 591
12.	Transportation Act; State Rates Discriminating against Persons and Localities. Order raising intrastate fares to prevent prejudice to interstate passengers is void if exceeding necessity shown by facts found by Commission. Wisconsin
R. R. Comm. v. Chicago, B. & Q. R. R................... 563 New York v. United States.........................   591
13.	Id. Invalid Order; Saving Clause. Such order not validated by clause saving right to State to apply for modification as to particular intrastate fares. Id.
14.	Id. Discrimination against Interstate Commerce, § Jjl6. Transportation Act requires that intrastate traffic of interstate carriers pay fair share of cost of maintaining adequate railway system. Id.
15.	Id. While § 422 confers no power on Commission to deal with intrastate rates, § 416 empowers it to raise general level of intrastate rates when unduly low as compared with interstate rates fixed under § 422. Id.
16.	Id. Valuation of Railroads, required by § 422, not confined to that part of property of interstate carrier used in interstate commerce. Id.
17.	Id. Proviso as to Intrastate Traffic. Raising level of intrastate rates as an incident to effective control of interstate system does not violate proviso against regulating traffic wholly within a State. Id.
18.	Id. Intrastate Rates; State Authority. Action of Commission should be directed to substantial disparity which operates as real discrimination against interstate commerce, leaving States to deal with intrastate rates inter sese on general level of rates found fair by Commission. Id.
INTERSTATE COMMERCE COMMISSION. See Interstate Commerce Acts; Jurisdiction, III, 2; IV, 4-6.
INTERVENTION. See Procedure, I, 1.
INTOXICATING LIQUORS:
1.	National Prohibition Act; Transportation. Owner of whisky stored in bond cannot secure release upon payment 6267°—22------49
692	INDEX.
INTOXICATING LIQUORS—Continued.	Page.
of tax, for transportation to dwelling for personal use. §§ 3,
25, 33, 37, Tit. II, and § 6, Tit. Ill, considered. Cornell v.
Moore................................................. 491
2.	Id. Due Process. Thus construed, act does not deprive owner of property without due process or take it for public purposes without compensation. Id.
JOINDER. See Jurisdiction, IV, 7-9.
JUDGMENTS. See Execution Sale; Procedure, V.
Administrative decisions. See Anti-Trust Acts, 4, 5; Army, 1; Customs Law, 1, 4r-6; Interstate Commerce Acts; Jurisdiction, I; IV, 12; Public Lands, I.
Final. See Jurisdiction, III, 6, 7.
Resting judgment on non-federal ground. See id., Ill, 9.
1.	Retroactive Statutes; Illegal Tax. Judgments for restitution of illegal tax; effect of subsequent legalization by act of Congress where case still reviewable in this court. Rafferty
v. Smith, Bell & Co................................... 226
2.	Id. Injunction, granted in labor controversy; no vested right where case pending in Court of Appeals when Clayton Act was passed. American Foundries v. Tri-City Council.. 184
3.	Scope and Form of Injunction; Clayton Act; Strike Controversy. Picketing by ex-employees and others of employer’s plant. Id.
4.	Former Decision. Effect of decision affirming without
prejudice decree upholding rate ordinance; jurisdiction of District Court to award restitution of charges collected under injunction. Ex parte Lincoln Gas Co................. 6
JUDICIAL NOTICE:
Senate Confirmations. Court notices that nominations to office are referred to Senate Committee for investigation and report, and duty of committee to inquire into existence of vacancies. Wallace v. United States................... 541
JUDICIAL SALE. See Execution Sale, 2.
JURISDICTION:
I. Generally, p. 693.
II.	Jurisdiction Over the Person, p. 693.
INDEX.	693
JURISDICTION—Continued.	page.
III.	Jurisdiction of this Court:
(1)	Original, p. 694.
(2)	Over District Court, p. 694.
(3)	Over Courts of District of Columbia, p. 695.
(4)	Over State Courts, p. 695.
IV.	Jurisdiction of District Court, p. 696.
See Admiralty; Constitutional Law; Equity; Execution Sale; Judgments, 1; Procedure.
Jurisdiction of courts of District of Columbia. See III (3), infra.
Jurisdiction of state courts. See II, 2, 3; III, 6-8, 15-24;
IV, 7-14, infra.
Administrative decisions. See I; IV, 12, infra; Anti-Trust Acts, 4, 5; Army, 1; Customs Law, 1, 4-6; Interstate Commerce Acts; Public Lands, I.
Foreign corporations; right to resort to federal court. See Constitutional Law, II.
Over foreign corporations. See II, 2, 3; III, 21, infra.
Certiorari. See III, 15, 18, 20-23, infra.
Federal question. See III, (4) ; IV, 1, infra.
Final judgment. See III, 6, 7, infra.
Local law. See II, 2; III, 13, III (4) ; IV, infra.
Id. Conformity Act. See Execution Sale, 1.
I.	Generally.
Executive Officers; Discretion. Removal of customs employees held not subject to revision by courts. Eberlein v. United States.i..... . 82
II.	Jurisdiction Over the Person.
1.	Void Process. Dismissal upon ground that process was
void and gave no jurisdiction over person of defendant; direct review. Mitchell Fum. Co. v. Selden Breck Co.213
2.	Id. Foreign Corporations ; Local Agents; State Construction. Purpose of state law requiring process agents is to secure jurisdiction in respect of local business; scope of agency not extended by implication unless so construed by State Supreme Court. Id.
3.	Id. Frivolous Question. Contention that state law for
securing jurisdiction over foreign corporations by requiring appointment of process agents, applicable to actions by residents and nonresidents, is invalid in not applying to transitory actions arising outside the State, is frivolous. Missouri Pacific R. R. v. Clarendon Co........................ 533
694	INDEX.
JURISDICTION—Continued.	Page.
III.	Jurisdiction of this Court.
(1)	Original.
1.	Prohibition; Admiralty. Prohibition lies to restrain District Court from exceeding jurisdiction in admiralty. The Western Maid......................................... 419
2.	States; Orders of Interstate Commerce Commission. Suit by state against railroads to prevent their applying order increasing intrastate rates, dismissed for want of equity, and plaintiff remitted to remedy in District Court. North Dakota v. Chicago & N. W. Ry............................ 485
(2)	Over District Court. See II; III, 1, 2, supra; III, 13;
IV,	infra.
3.	Prohibition; Admiralty; Exceeding Jurisdiction. When
prohibition lies to restrain District Court. The Western Maid..................................................  419
4.	Jurisdictional Question; Pecuniary Amount. Where answer questions pecuniary amount involved, District Court will decide matter upon facts adduced; review by this court upon evidence. North Pacific S. S. Co. v. Soley........... 216
5.	Id. Invalid Service. Dismissal upon ground that process was void and gave no jurisdiction over person of defendant; direct review. Mitchell Fum. Co. v. Selden Breck Co....... 213
6.	Id. Removal. Decision Sustaining Jurisdiction of District Court to retain case; review after final judgment. Wilson v. Republic Iron Co............................. 92
7.	Id. Final Judgment. Distinction between judgment ending the action and judgment conclusive inter partes. Id.
8.	Id. Questions Reviewable. Upon review of the jurisdictional question, propriety of dismissal for failure to pay costs in another case not considered. Id.
9.	Federal and Non-federal Questions. Jurisdiction of Dis-
trict Court, and of this court upon direct review, to rest judgment on non-federal question. Davis v. Wallace.....478
10.	Writ of Error. Withdrawal of Case from Jury, by District Court, and making findings of fact in absence of stipulation under Rev. Stats., §§ 649, 700, but without objection or exception by parties, is not reviewable. Road District v.
St. Louis S.W. Ry...................................... 547
INDEX.	695
JURISDICTION—Continued.	Page.
11.	Preliminary Injunction. Refusal, without dismissing bill, in suit to enjoin state officers from removing stakes designating private oyster grounds and opening them to public use, affirmed. Hurley v. Commission of Fisheries.......... 223
(3)	Over Courts of District of Columbia.
12.	Territorial Jurisdiction, of District Supreme Court, case involving; judgment of Court of Appeals reviewable under Jud. Code, § 250 (1). Marine Ry. Co. v. United States.... 47
13.	Id. Construction of Federal Law. Quaere: Whether rule construing Jud. Code, § 250 (6), as conferring jurisdiction only when law is of general application throughout United States, applies to case involving statute fixing District boundary? Id.
14.	Id. Certificate, under Jud. Code, § 250 (1); when not necessary. Id.
(4)	Over State Courts. See II, 2, 3; III, 6-8, supra; IV, 7-14, infra.
15.	Federal Question; Certiorari. Judgment sustaining state tax where immunity claimed for particular subject taxed, without questioning validity of statute as construed. Citizens Natl. Bank v. Durr.........■....................... 99
16.	Id. Raised Too Late, where first advanced in petition for rehearing in State Supreme Court. Id.
17.	Id. Local Law. Taxability in Ohio of membership of Ohio resident in New York Stock Exchange. Id.
18.	Id. Certiorari. Judgment denying validity of title
claimed under marshal’s execution sale. Yazoo & Miss. Valley R. R. v. Clarksdale.................................. 10
19.	Id. ■ Facts. This court will determine ultimate effect of admitted facts, where constitutionality of state statute is involved; not bound by state court’s conclusion nor its declaration that statute is a rule of evidence. Truax v. Corrigan.. 312
20.	Id. Writ of Error, lies to judgment enforcing statute against claim of unconstitutionality as applied to particular transaction. Dahnke-Walker Co. v. Bondurant........... 282
21.	Id. So held, where enforceability of contract of foreign corporation denied upon ground that contract was local and corporation had not complied with state statutes, although
696	INDEX.
JURISDICTION—Continued.	Page,
corporation insisted contract was interstate and that statute, so applied, was invalid. Id.
22.	Id. Reasoning of State Court. Review of validity of statute, under Jud. Code, § 237, is independent of grounds upon which state court upholds it. Id.
23.	Id. Writ of Error, lies to judgment sustaining state tax on interstate commerce, where court below construed statute as applicable to intrastate commerce only and erroneously classified as intrastate the commerce in question.
Eureka Pipe Line Co. v. Hallanan....................... 265 United Fuel Gas Co. v. Hallanan...................*...	‘2H7
24.	Frivolous Federal Question. Claim that state law for
securing jurisdiction over foreign corporations, by requiring appointment of process agents, applicable to actions by residents and non-residents, is invalid in not applying to transitory actions arising outside the State, is frivolous. Missouri Pacific R. R. v. Clarendon Co........................ 533
IV. Jurisdiction of District Court. See II; III, 1-11, 13, supra.
1.	Federal and Non-federal Questions. Jurisdiction to rest judgment on non-federal question. Davis v. Wallace...... 478
2.	Pecuniary Amount. Dismissal where requisite amount not involved; decision upon facts when question raised by answer. North Pacific S. S. Co. v. Soley................. 216
3.	Id. Workmen’s Compensation Award. No jurisdiction where defendant cured before suit filed, and liability reduced to less than $3,000. Id.
4.	Orders of Interstate Commerce Commission; Suit to Set Aside. Jud. Code, § 211, requiring that United States be made a party, and § 208, requiring suit in District Court, not repealed by act abolishing Commerce Court. North Dakota
v. Chicago & N. W. Ry.................................485
5.	Id. Provision of § 211, supra, made not as mere matter of procedure but in protection of public interests. Id.
6.	Id. Suit by State, in District Court, when United States is a party and has consented to be sued there. Id.
7.	Removal; Fraudulent Joinder, shown by verified petition, binding state court. Wilson v. Republic Iron Co.... 92
INDEX.	697
JURISDICTION—Continued.	Page.
8.	Id. Motion to Remand; Issue and Determination; Burden of Proof. Admission by failure to traverse petition. Id.
9.	Id. Joint Liability of Defendants. Where petition showed joinder fraudulent in fact, question whether an em-ployer and a coemployee of plaintiff, could be jointly liable in law for his personal injuries, was irrelevant. Id.
10.	Id. Delay, as object of removal, does not affect jurisdiction to retain case. Id.
11.	Id. Timely Application. Petition filed on day before
date advertised for hearing of road improvement assessments in state court and on which landowner required to file objections, in time under Jud. Code, § 29. Road District v. St. Louis S. W. Ry......................................... 547
12.	Id. Nature of Proceeding. Controversy in Arkansas County Court over benefits and damages, held a suit at law within removal act, since determination is judicial, issue is between adversary parties, framed on pleadings, to be heard on evidence, and court renders judgment and functions as judicial tribunal. Id.
13.	Id. State Construction, of nature of proceeding under state law, not conclusive on right to remove. Id.
14.	Id. Reframing Action. Jud. Code, § 28, limiting removal to cases within original jurisdiction of District Court under § 24, does not deprive of right to remove merely because form of case in state court would be awkward in federal court or require new complaint and different procedure. Id.
15.	Ancillary Jurisdiction; Mandate. Jurisdiction to award
restitution of charges collected by gas company under injunction subsequently dismissed; effect of new suit and restraining order. Ex parte Lincoln Gas Co................. 6
16.	Id. Sufficiency of Injunction Bond. Such ancillary jurisdiction independent of whether injunction bond sufficient to cover overcharges. Id.
JURY:
Withdrawal of case. See Jurisdiction, III, 10.
LABOR UNIONS. See Anti-Trust Acts, 6-13; Constitutional Law, I, 2; VIII, 5, 8-11; Employer and Employee.
698	INDEX.
LACHES. See Army, 5; Officers and Employees, 5.	page,
LEASE. See Indians.
LEGACIES. See Taxation, II, 5-7.
LICENSE. See Constitutional Law, II; Customs Law, 2-6; Public Lands, II, 2.
LIMITATIONS. See Army, 5; Officers and Employees, 5.
Against United States; forfeiture of canal right of way. See Public Lands, II, 7.
1.	State Statute; Admiralty. Limitation applied to libel for death by wrongful act. Western Fuel Co. v. Garcia....... 233
2.	Id. Concealment of Cause of Action. Suit by receiver against former directors of national bank for losses due to improper loans, etc.; when state limitation applies in federal court, and when not suspended upon ground of fraudulent concealment of cause of action. Curtis v. Connly......... 260
LOCAL LAW. See Execution Sale, 1; Jurisdiction, II, 2; III, 13; III (4); IV.
MAILS:
1.	Transportation Contracts; Extra Service. Stipulation re-
quiring additional or changed service without additional compensation, when ordered by Postmaster General, does not authorize exaction without pay of heavy and expensive service. Hunt v. United States...................... 125
2.	Id. Subletting. Right to sue in Court of Claims for extra service exacted where contract was sublet and service performed by subcontractor. Id.
MANDATE. See Procedure, V, 8.
MARITIME LAW. See Admiralty.
MARYLAND. See Boundaries, 5-12.
MASTER. See Procedure, I, 2.
MASTER AND SERVANT. See Employer and Employee.
MATERIALMEN. See Bonds, 1.
MISTAKE, OF LAW. See Interstate Commerce Acts, 3.
MONOPOLIES. See Anti-Trust Acts.
INDEX.	699
MUNICIPAL CORPORATIONS:	Page.
Rate regulation. See Constitutional Law, VIII, 13.
NATIONAL BANKS:
1.	Directors; Actions Against; Limitations. Application of state limitation to suit in federal court by receiver against former directors for losses due to improper loans, investments and dividends. Curtis v. Connly......................... 260
2.	Id. Fraudulent Concealment; Notice. Suit being based on bank’s common-law right, statute not tolled upon ground of concealment of cause of action where bank had notice by entries on books. Id.
3.	Id. Where misrepresentations relied on for suspending statute were entering at face value upon books, and in reports to Comptroller, of loans and investments known by directors to be worthless, bank is chargeable with notice of parties to whom loans made and character of assets. Id.
4.	Id. Representations implied from reports not taken as continuing after they had been superseded by later reports. Id.
5.	Id. Misrepresentations of value imported by valuations on books were not concealment of cause of action after new directors came in and knew facts, since their knowledge was imputable to bank. Id.
6.	Id. Statute of limitations not suspended by concealment beyond period in which new directors, performing their duty, would presumably have discovered cause of action. Id.
7.	Id. Duration of fiduciary relation between bank and directors. Id.
NATIONAL PROHIBITION ACT. See Intoxicating Liquors.
NAVIGABLE WATERS. See Admiralty; Boundaries.
NEGLIGENCE. See Admiralty, 2-4; Claims, 1.
NOMINATIONS. See Army.
NONRESIDENTS. See Constitutional Law, VIIl’ 7; Jurisdiction, II; IV, 9; Taxation, IV, 5-10.
NOTICE. See Constitutional Law, VIII (1); Judicial Notice;
National Banks; Officers and Employees, 3-8.
700	INDEX.
, Page.
OFFICERS AND EMPLOYEES. See Army; Bonds, 2, 3; Carriers; Customs Law, 2-6; Execution Sale; Mails; National Banks; Public Lands, II, 1, 5; War Savings Certificates. Administrative decisions. See Anti-Trust Acts, 4, 5; Army, 1; Customs Law, 1; Interstate Commerce Acts; Jurisdiction, I; IV, 12; Public Lands, I.
1.	Internal Revenue Collector; Illegal Tax; Personal Liability. Action not maintainable against successor. Smietanka
v. Indiana Steel Co..................................... 1
2.	Id. Abatement. Act of 1899, saving suits from abatement upon death or expiration of term, supposes suit begun against officer in his lifetime. Id.
3.	Customs Employees; Appointment and Removal. Power of Secretary of Treasury.
Norris v. United States................................ 77
Eberlein v. United States............................... 82
4.	Id. Judicial Review, none of removal. Eberlein v. United States. 82
5.	Id. Illegal removal; salary; laches. Nicholas v. United
States................................................. 71
6.	Id. Reinstatement. Effect on right to pay where office
immediately abolished. Norris v. United States......... 77
7.	Id. Assistant Secretary; Rev. Stats. §§ 161, 2^5. Presumption of authority to abolish office. Id.
8.	Id. Eligibility and Reinstatement. Effect of Presidential order. Eberlein v. United States.................... 82
OIL:
Pipe lines. See Taxation, IV, 1, 2.
Indian leases. See id., 3, 4.
OKLAHOMA. See Procedure, I.
ORIGINAL CASES. See Boundaries, 1-4; Jurisdiction, III (1); Procedure, I.
OYSTER BEDS.
See Hurley v. Commission of Fisheries..................223
PARTIES:
United States; maritime tort; immunity. See Admiralty, 8-11.
Questioning validity of statute. See Constitutional Law,
I, 4.
Orders of Interstate Commerce Commission; direct attack.
See Interstate Commerce Acts, 11.
INDEX.	701
PARTIES—Continued.	Page.
Intervention. See Procedure, I, 1.
Joinder; fraudulent, to prevent removal. See Jurisdiction, IV, 7-9.
Jurisdiction over the person. See id., II.
Trial; severance. See Trial.
1.	Internal Revenue Collector; Illegal Tax. Action for re-
covery is based on personal liability; not maintainable against successor. Smietanka v. Indiana Steel Co........	1
2.	Abatement. Act of 1899, saving suits from abatement upon death or expiration of term, supposes suit begun against officer in his lifetime. Id.
3.	United States; Forfeiture; Canal Right of Way. Right of Attorney General to sue for forfeiture for nonuser without act of Congress. Kern River Co. v. United States.... 147
4.	Id. Suit to Set Aside Order of Interstate Commerce
Commission. Jud. Code, § 211, requiring that United States be made a party, and § 208, requiring suit in District Court, not repealed by act abolishing the Commerce Court; provision of § 211 made not as mere matter of procedure but in protection of public interests. North Dakota v. Chicago & N.W. Ry................................................ 485
5.	Id. States may sue in District Court when United States is a party and has consented to be sued there. Id.
6.	Government Contractors; Subletting. Right to sue in Court of Claims for extra service exacted where contract was sublet and service performed by subcontractor. Hunt v. United States................. .t.............. ... i.... 125
7.	Labor Controversies; Clayton Act. Strangers held not
entitled to invoke § 20, forbidding injunctions against peaceful persuasion, etc. American Foundries v. Tri-City Council ................................................... 184
8.	Questioning Administrative Regulations. Owner of international toll bridge entitled to question validity of executive regulation withdrawing Sunday and holiday customs inspection service. International Ry. v. Davidson.............. 506
9.	Action on Consul-General’s Bond. Distributee of share of estate of citizen dying in China held not entitled to maintain action on consul’s official bond (Rev. Stats., § 1697) for damage to personal property of decendent. Cunningham
v. Rodgers............................................ 466
702	INDEX.
PATENTS FOR INVENTIONS:	Page
1.	Priority; Novelty. Presumption of, from granting of patent, after contest in patent office. Hildreth v. Mastoras.. 27
2.	Generic Patent. Sufficient to show that machine embodies generic principle and performs function by which it makes substantial change in art. Id.
3.	Anticipation; Infringement. Dickinson patent for candy puller held not anticipated by earlier Firchau patent and infringed by later Langer patent. Id.
4.	Id. Equivalents. Trough to support candy against gravity, held not an essential element; substitution of pins at most an improved equivalent. Id.
PAY. See Army, 4; Customs Law, 2-6; Officers and Employees,
5.	6.
PERSONAL INJURY. See Admiralty, 2-7; Jurisdiction, IV,
2,	3, 9.
PHILIPPINE ISLANDS. See Constitutional Law, VI; Taxation, III.
PICKETING. See Anti-Trust Acts, 6-13; Constitutional Law,
I,	2; VIII, 5, 8-11; Employer and Employee.
PIPE LINES. See Constitutional Law, III, 6, 7.
PLEADING. See Trial.
Admissions. See Jurisdiction, III, 19; IV, 8.
Proceedings removed from state court. See id., IV, 7-14.
Protest; sufficiency. See Customs Law, 1.
Venue; Federal Control Act. See Carriers.
1.	Declaration; Bond of Consul-General. Facts alleged held not to state cause of action on official bond (Rev. Stats.,
§ 1697). Cunningham v. Rodgers....................... 466
2.	Jurisdictional Amount, in District Court, questioned by answer. North Pacific S. S. Co. v. Soley................. 216
3.	Negligence. In suit against Government for damages
• from unforeseen flooding of soda lakes through construction of irrigation project, allegations of percolation due to improper construction and natural conditions, held not intended to set up negligence, but to show causal connection between project and flooding. Horstmann Co. v. United States................................................... 138
INDEX.	703
POLICE POWER. See Constitutional Law.	page.
POSTMASTER GENERAL. See Mails.
PRESIDENT. See Army; Carriers; Officers and Employees, 8.
PRESUMPTION. See Army, 3; Officers and Employees, 7; Patents for Inventions, 1.
PRINCIPAL AND AGENT. See Constitutional Law, VIII, 7; Corporations; Jurisdiction, II; Mails, 2.
PRIVILEGES AND IMMUNITIES. See Constitutional Law,
II.
PROCEDURE. See Admiralty; Equity; Evidence; Execution Sale; Interstate Commerce Acts; Judgments; Judicial Notice; Jurisdiction; Limitations; Parties; Pleading; Statutes; Trial.
Administrative decisions. See Anti-Trust Acts, 4, 5; Army, 1; Customs Law, 1, 4-6; Interstate Commerce Acts; Jurisdiction, I; IV, 12; Public Lands, I.
Abatement; suit against Collector of Internal Revenue. See Parties, 1, 2.
Assignment of errors. See V, 1, infra.
Certiorari. See Jurisdiction, III, 15, 18, 20-23.
Conformity Act. See Execution Sale, 1; and V, 1, infra.
Damages. See Interstate Commerce Acts, 1, 2.
Federal question. See Jurisdiction, III (4); IV, 1.
Final judgment. See id., Ill, 6-7.
Injunction. See Anti-Trust Acts, 5-13; Constitutional Law, I, 2; VII, 3; VIII, 5, 8-11; Employer and Employee; Equity; Injunction; Jurisdiction, IV, 16.
Intervention. See I, 1, infra.
Limitations. See Army, 5; Officers and Employees, 5; * Public Lands, II, 7.
Local law. See Execution Sale, 1; Jurisdiction, II, 2; III, 13; III (4); IV.
Presumption. See Army, 3; Officers and Employees, 7;
Patents for Inventions, 1.
Protest; sufficiency. See Customs Law, 1.
Removal. See Jurisdiction, III, 6-8; IV, 7-14.
Venue; Federal Control Act. See Carriers.
I.	Original Cases. See Jurisdiction, III (1).
1. Intervention. Order granting leave to file petition setting up claims, etc. Oklahoma v. Texas....................... 308
704	INDEX.
PROCEDURE—Continued.	Page
2.	Claims; Funds Held by Receiver. Order approving .report of special master and directing payments by re-
ceiver. Id.
II.	Certificate.
Court of Appeals, District of Columbia. When not necessary under Jud. Code § 250 (1). Marine Ry. Co. v. United States....................................................
III.	Injunction.
Vacating Stay; Bond on Appeal. Order vacating stay, granting injunction pending appeal, and requiring bond.
Hill v. Wallace............................................310
IV.	Prohibition.
Admiralty. Prohibition lies to restrain District Court from exceeding jurisdiction in admiralty. The Western Maid... 419
V.	Scope of Review and Disposition of Case. See Judgments,
1,	2.
1.	Assignment of Error, in State Supreme Court, held sufficient to claim validity for marshal’s sale under Rev. Stats.,
§ 916. Yazoo & Miss. Valley R. R. v. Clarksdale........... 10
2.	Resting Judgment on Non-federal Ground in District
Court, and in this court upon direct review. Davis v. Wallace ..................................................... 478
3.	Jurisdictional Question; Evidence. When this court will
review upon evidence decision of District Court on question whether case involves requisite jurisdictional amount. North Pacific S. S. Co. v. Soley................................ 216
4.	State Decision; Facts. This court will determine ultimate effect of admitted facts, where constitutionality of state statute is involved; not bound by state court’s conclusion nor its declaration that statute is a rule of evidence. Truax
v. Corrigan............................................... 312
5.	Removal of Causes. State Construction, of nature of proceeding under state law, not conclusive on right to remove.
Road District v. St. Louis S.W. Ry........................ 547
6.	Id. Costs in Former Suit. Upon review of District Court’s jurisdiction to retain case, propriety of dismissal for failure of plaintiff to pay costs in earlier action upon same cause not considered. Wilson v. Republic Iron Co... 92
INDEX.	705
PROCEDURE—Continued.	Page.
7.	Former Decision; Affirmance Without Prejudice. Gas
rate ordinance sustained by District Court held exclusive measure of rates chargeable until new suit begun. Ex parte Lincoln Gas Co........................................ 6
8.	Id. Mandate. Suit does not end until going down of mandate. Id.
9.	Id. New suit held not to affect jurisdiction of District Court, ancillary to former suit, to award restitution for overcharges collected pendente lite. Id.
10.	Id. Injunction Bond, in former suit. Such ancillary jurisdiction is independent of whether bond sufficient to co vèr overcharges. Id.
11.	Withdrawing Case from Jury, by District Court, and
making findings of fact in absence of stipulation under Rev. Stats., §§ 649., 700, but without objection or exception by parties, is not reviewable. Road District v. St. Louis
S.W. Ry............................................. 547
12.	Preliminary Injunction. Refusal by District Court,
without dismissing bill, in suit to enjoin State from removing stakes designating private oyster grounds and opening them to public use, affirmed. Hurley v. Commission of Fisheries	j.................... 223
PROCESS. See Corporations; Jurisdiction, II.
PROHIBITION. See Procedure, IV.
PROHIBITION ACT. See Intoxicating Liquors.
PUBLIC LANDS:
I.	Railroad Grants.
Indemnity Lands; Administrative Regulations. Regulation of Secretary of Interior providing that part only of minor legal subdivision shall not be assigned as a base unless the rest of it be also assigned in same selection list, sustained. Southern Pac. R. R. v. Fall......................... 460
II.	Canal Rights of Way.
1.	Nature of Grant. Right of way, obtained through approval by Secretary of Interior of application under Act of 1891, a limited fee on implied condition of reverter in event of nonuser. Kern River Co. v. United States.... 147
706	INDEX.
PUBLIC LANDS—Continued.
2.	Act of 1896, providing for rights of way for electric power, allowing revocable license and not limited fee, superseded by Act of 1901. Id.
3.	Public Purposes; Electric Power; Commercial Use. Under Act of 1898, use must be subsidiary to main purpose of irrigation, whether classed as for public purpose or development of power. Id.
4.	Forfeiture, where canal never used and grantees precluded by agreement and consent decree from using it, for irrigation. Id.
5.	Id. Suit by Attorney General, under general authority without express act of Congress. Id.
6.	Id. Equitable Relief, where right to forfeiture is clear and asserted in public interest. Id.
7.	Id. Limitations. Suit for forfeiture for breach of condition subsequent not subject to six-year limitation of Act of 1891. Id.
RAILROADS. See Carriers; Interstate Commerce Acts; Public Lands, I; Taxation, IV, 11.
Suits respecting orders of Interstate Commerce Commission.
See Jurisdiction, III, 2; IV, 4-6.
- Fare charter contracts. See Constitutional Law, III, 2; IV.
RATES. See Constitutional Law, HI, 2; IV; VIH, 13; Interstate Commerce Acts.
Effect of decision affirming without prejudice decree upholding rate ordinance; jurisdiction of District Court to award restitution for overcharges collected under injunction. See Procedure, V, 7-10.
RECEIVERS. See National Banks, 1; Procedure, I, 2.
REMOVAL:
Of causes. See Jurisdiction, III, 6-8; IV, 7-14.
Of officers. See Army; Officers and Employees, 3-8.
REPARATION. See Interstate Commerce Acts, 1, 2.
RES JUDICATA. See Procedure, V, 7-10.
RE-SALE PRICES. See Anti-Trust Acts, 2-5.
INDEX.	707
RESIDENTS. See Constitutional Law, VIII, 7; Jurisdiction, II; IV, 9; Taxation, IV, 5-10.
RETROACTIVE LAW. See Constitutional Law, VII, 3, 4.
REVIVOR. See Parties, 1, 2.
RIGHTS OF WAY. See Public Lands, II.
SALES. See Anti-Trust Acts, 2-5; Execution Sale; Interstate Commerce, 2, 3.
SECRETARY OF THE INTERIOR. See Public Lands, I;
II,	1.
SECRETARY OF THE TREASURY. See Customs Law, 2-6;
Officers and Employees, 3-8; War Savings Certificates.
SENATE. See Army, 2-4.
SERVICE OF PROCESS. See Corporations; Jurisdiction, II.
SEVERANCE. See Trial.
SHAREHOLDERS. See Execution Sale, 4; Taxation, II, 2-4.
SHERMAN ACT. See Anti-Trust Acts, 1-5.
SIXTEENTH AMENDMENT. See Constitutional Law, IX.
SOUTH CAROLINA. See Boundaries, 1-4.
STATES. See Boundaries; Constitutional Law; Interstate Commerce; Taxation, IV.
Courts. See Jurisdiction, II, 2, 3; III, 6-8, 15-24; IV, 7-14.
Original suits. See Boundaries, 1-4; Procedure, I.
Conformity Act. See Execution Sale, 1.
Suit by, to set aside order of Interstate Commerce Commission. See Jurisdiction, III, 2.
Intrastate rates; federal regulation. See Interstate Commerce Acts, 12-18.
Foreign corporations; jurisdiction over. See Corporations;
Jurisdiction, II.
Railroad charters. See Constitutional Law, III, 2; IV.
Workmen’s compensation laws. See Admiralty, 6, 7; Jurisdiction, IV, 2, 3.
Local law. See Jurisdiction, II, 2; III, 13; III (4); IV.
6267°—22---50
708	INDEX.
Page. STATUTES. See Admiralty; Anti-Trust Acts; Army; Bonds;
Boundaries; Carriers; Constitutional Law; Criminal Law; Customs Law; Execution Sale; Interstate Commerce Acts; „ Intoxicating Liquors; Jurisdiction; Limitations; Mails; Officers and Employees; Parties, 2; Public Lands; Taxation.
Beaufort Convention. See Boundaries, 1-4.
Retroactive statutes. See Constitutional Law, VII, 3, 4.
1.	Partial Unconstitutionality. Unconstitutionality of Arizona law regulating injunctions in labor controversies, does not affect general statutory provisions for issuance of injunctions. Truax v. Corrigan..........i.................... 312
2.	Id. Statute may be invalid as applied to one state of facts and valid as applied to another. Dahnke-Walker Co.
v. Bondurant.......................................... 282
3.	Id. Invalidity of exception in statute, does not enlarge
scope of its other provisions. Davis v. Wallace........478
4.	Construction; Income Tax Laws. Substance and not form are controlling. United States v. Phellis............ 156
5.	Legislative Interpretation. Semble, that specific inclu-
sion of income, held by trustee for unborn and unascertained beneficiaries, by Income Tax Act of 1916, was a legislative interpretation of the Act of 1913 as not including it. Smie-tanka v. First Trust & Savgs. Bank.	. 602
6.	Committee Reports; Debates. Where statute is clear, reports and debates can not be resorted to to introduce ambiguity. Wisconsin R. R. Comm. v. Chicago, B. & Q.
R. R...................................................	563
STIPULATION. See Jurisdiction, III, 10.
STOCK EXCHANGE. See Taxation, IV, 5-10.
STOCKHOLDERS. See Execution Sale, 4; Taxation, II, 2-4.
STRIKES. See Anti-Trust Acts, 6-13; Constitutional Law, I, 2; VIII, 5, 8-11; Employer and Employee.
SURETIES. See Bonds, 1.
TARIFF ACTS. See Customs Law, 1.
INDEX.	709
Page. TAXATION. See Customs Law; Intoxicating Liquors; Par-
ties, 1.
I.	General.
1.	Injunction; Inadequate Legal Remedy. Equity will en-
join collection of illegal tax in absence of adequate legal remedy. Davis v. Wallace...................................478
2.	Executive Regulation, requiring vessel owners or others to pay cost of customs inspection, amounts to laying a tax, and is invalid unless authorized by Congress. International Ry.
v. Davidson ............................. i. J. ........ 506
II.	Federal Taxation.
1.	Income Tax Law; Construction. Substance and not form are controlling. United States v. Phellis................. 156
2.	Id. Income Defined; Dividends. Not everything in form of dividend is income; only income derived in way of dividends is taxable. Id.
3.	Id. Corporate Reorganization; Stock Distribution. Organization of new corporation to take over assets of old as going concern; new shares received by stockholders, representing surplus of old company, held income of stockholders and taxable. Id.
4.	Id. Organization of new corporation to take over pipe line properties of old; new shares received by stockholders, equal to value of property conveyed, held dividends within Act of 1913, and income within Sixteenth Amendment.
Rockefeller v. United States.............................. 176
5.	Id. Income Held by Trustee. Act of 1913 made no provision for taxing income held by trustee for unborn and unascertained beneficiaries. Smietanka v. First Trust & Savgs.
Bank ..................................................... 602
6.	Id. Legislative Interpretation. Semble, that specific inclusion of such income by the Act of 1916 was a legislative interpretation of earlier act as not including it. Id.
7.	War Revenue Act, 1898. Legacies of life interests in trust funds, held vested in possession prior to July 1, 1902, within refunding act, and taxable under Act of 1898, where amounts ascertainable and legatees entitled to income. Kahn v.
United States........................... ..................244
710	INDEX.
TAXATION—Continued.	page.
III.	Insular Possessions.
1.	Philippine Islands. Export Taxes, collected while such
duties forbidden by act of Congress, held legalized by congressional Act of 1920. Rafferty v. Smith, Bell & Co.....226
2.	Id. Judgments; Vested Rights. This was within power of Congress, where judgments for restitution were obtained in Supreme Court of Philippines before ratifying statute but were still reviewable in tips court. Id.
IV.	State Taxation.
1.	Interstate Commerce; Pipe Lines; Transportation. Tax on transportation of oil and gas produced and gathered in State and transported in continuous stream destined beyond State, held void.
United Fuel Gas Co. v. Hallanan........................ 277 Eureka Pipe Line Co. v. Hallanan....................... 265
2.	Id. Local Use; Diversion. Interstate character not affected by right of diversion or commingling of small quantities for local use. Id.
3.	Federal Instrumentalities; Indian Leases; Income Tax.
Net income of lessee from sale of oil and gas received under leases of restricted lands, which constitute him an instrumentality of United States in fulfilling its duties to Indians, not taxable by State. Gillespie v. Oklahoma............. 501
4.	Id. Interstate Commerce. Distinction between this case and taxing net income derived from interstate commerce. Id.
5.	Stock Exchange Membership, is subject to property taxation. Citizens Natl. Bank v. Durr........................ 99
6.	Id. Situs. Privileges, not confined to real estate of Exchange in New York, which enable nonresident member to conduct business in State of residence through New York members, render membership taxable at his domicile. Id.
■ 7. Id. Discrimination. Such tax not invalidated by exemption of memberships in local exchange. Id.
8.	Id. Interstate Commerce, not burdened by tax on membership in New York Exchange, employed by Ohio broker in executing orders for Ohio clients through Exchange in New York. Id.
INDEX.	711
TAXATION—Continued.	Page.
9.	Id. Double Tax. Identical property interests are taxable by two States. Id.
10.	Id. Local Question. Taxability in Ohio of membership in New York Stock Exchange, when held by resident of Ohio. Id.
11.	Foreign Corporations; Railroads; Excise Tax. Under
state law laying tax on percentage of capital employed in State, mileage basis prescribed for interstate railroads held exclusive basis for computing assessments; assessments based on ratio of value of railroad within State to that of entire railroad held not authorized. Davis v. Wallace.......478
/
12.	Drainage Districts; Repairs. State law empowering
board, after construction of ditches and assessment of costs upon hearing, to determine, without further notice, necessity and extent of repairs, and to assess costs in proportion to original assessments, held consistent with Fourteenth Amendment. Breiholz v. Board of Supervisors.............. 118
13.	Id. Landowners not denied due process, where state law permits board, for purpose of repair, to enlarge and improve ditches, but where work done was within scope of a cleaning, alteration and repair and no new taking of property involved. Id.
14.	Road Improvements; Removal Acts. Nature of Pro-
ceeding in Arkansas County Court, respecting road improvements and assessments, considered in determining right to remove controversy from state to federal court. Road District v. St. Louis S.W. Ry.......................... 547
TERRITORIES. See Constitutional Law, VI; Taxation, III.
TEXAS. See Procedure, I.
THALWEG RULE. See Boundaries, 4.
TORTS. See Admiralty, 2-11; Claims, 1; Employer and Employee.
TRANSPORTATION ACT. See Interstate Commerce Acts, 8,
12-18.
712	INDEX.
Page. TREASURY, SECRETARY OF. See Customs Law, 2-6; Officers and Employees, 3-8; War Savings Certificates.
TRIAL. See Interstate Commerce Acts, 1, 2.
Withdrawing case from jury. See Jurisdiction, III, 10.
1.	Separate Trial; Discretion. When distinct causes of action, at law, asserted in same case, allowed separate trials.
Miller v. American Bonding Co...........................304
2.	Id. Materialmen’s Claims; Public Contractors’ Bonds. Action upon bond to satisfy private claims, permitted by Act 1894, is a single action at law; several claimants not entitled to separate trials. Id.
TRUSTEES. See Taxation, II, 5-7.
UNFAIR COMPETITION. See Anti-Trust Acts, 3-5.
UNITED STATES. See Army; Boundaries, 5-12; Claims; Contracts; Customs Law; Indians; Mails; Public Lands; Taxation, II, III; War Savings Certificates.
Suits against. See Interstate Commerce Acts, 11; Parties,
4,	5. Against officers. See Parties, 1-2. By Attorney General. See id., 3.
Contractors; claims of materialmen. See Bonds, 1.
Vessels; maritime torts. See Admiralty, 8-11.
Federal control; railroads. See Carriers.
VENUE:
Federal Control Act. See Carriers.
VIRGINIA. See Boundaries, 5-12.
WAIVER. See Army, 5; Jurisdiction, HI, 10.
WAR REVENUE ACT. See Taxation, II, 7.
WAR SAVINGS CERTIFICATES. See Criminal Law.
Acts 1917, 1918, and Administrative Regulations. Power of Secretary of Treasury to issue stamps and non-transferable certificates, and to prescribe conditions respecting validity.
United States v. Sacks.................................. 37
WATERS. See Admiralty; Boundaries; Claims.
INDEX.	713
WORDS AND PHRASES:
Page.
1.	“Alteration,” obligations of United States. See United
States v. Sacks........................................ 37 United States v. Janowitz............................... 42
2.	“Dividends.” See United States v. Phellis............. 156 Rockefeller v. United States............................. 176
3.	“ Income.” See Id.
4.	“ Interstate commerce.” See Dahnke-Walker Co. v.
Bondurant ............................................ 282
5.	“ Unfair methods of competition.” See Federal Trade
Comm. v. Beech-Nut Co............................... 441
6.	“Vessel or other conveyance.” See International Ry.
v. Davidson ....................................... 506,512
WORKMEN ’ S COMPENSATION. See Admiralty, 6,7 ; Juris-
diction, IV, 2, 3.
WRIT:
Of error and certiorari. See Jurisdiction; Procedure.
Of execution. See Execution Sale.
Of prohibition. See Procedure, IV.
o